Com. v. Nguyen, T.

J-S06026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TRI THANH NGUYEN

Appellant No. 811 MDA 2015

Appeal from the PCRA Order April 29, 2015

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0002261-2008

BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.: FILED MARCH 18, 2016

Appellant, Tri Thanh Nguyen, appeals from the April 29, 2015 order,

denying his first petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

A prior panel of this Court summarized the relevant procedural history

of this case as follows.

On April 15, 2010, [following a bench trial,

Appellant was found] guilty of various charges

stemming from the sexual assault of minors.

Following trial, [trial counsel] was permitted to

withdraw as counsel, and [current counsel] was

appointed in his place. On March 1, 2011,

[Appellant] was found to be a Sexually Violent

Predator and was also sentenced [to an aggregate

term of 406 to 888 months of imprisonment]. On

March 14, 2011, [Appellant] filed a post-sentence

motion alleging the ineffective assistance of trial

counsel. Due to a lengthy investigation by

[Appellant], the matter did not proceed to an

*Former Justice specially assigned to the Superior Court.

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evidentiary hearing until June 30, 2011. On July 18,

201[1], the Clerk of Courts entered an order

deeming the post-sentence motion denied by

operation of law due to the passage of 120 [days]

since the filing of the post-sentence motion pursuant

to Pa.R.Crim.P. 720.

Following the denial of the post[-]sentence

motion, [Appellant] made the decision to [forgo] an

appeal and, instead, filed a [timely PCRA petition] on

February 29, 2012. An evidentiary hearing was held

on May 7, 2012. At the hearing, the Commonwealth

challenged the Court’s jurisdiction to hear the matter

due to the fact that ineffective assistance of counsel

had been raised in the post[-]sentence motion, the

denial of which was not appealed, and therefore had

been waived. The [PCRA] court ordered briefs on

the issue. An Order dismissing the [PCRA petition]

was entered on December 18, 2012, along with an

accompanying Opinion explaining the [PCRA court’s]

decision.

Commonwealth v. Nguyen, 87 A.3d 372 (Pa. Super. 2013) (unpublished

memorandum at 1-2), appeal denied, 89 A.3d 661 (Pa. 2014), quoting PCRA

Court Opinion, 3/11/13, at 1. On September 4, 2013, this Court reversed

the PCRA court’s order and remanded for further proceedings, concluding

that Appellant did not waive his ineffective assistance of counsel claims. Id.

at 5-6. Our Supreme Court denied the Commonwealth’s petition for

allowance of appeal on April 4, 2014. See id.

On remand, Appellant filed an amended PCRA petition on October 28,

2014. The Commonwealth filed its answer on November 5, 2014. On April

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29, 2015, the PCRA court entered an order denying Appellant’s PCRA

petition. On May 11, 2015, Appellant filed a timely notice of appeal. 1

On appeal, Appellant raises the following issue for our review.

1. Did the [PCRA] court err in denying Appellant’s

request for relief under the [PCRA]?

Appellant’s Brief at 4.

We begin by noting our well-settled standard of review. “In reviewing

the denial of PCRA relief, we examine whether the PCRA court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.” Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.” Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

____________________________________________

1

Appellant and the PCRA court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

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The Sixth Amendment to the Federal Constitution provides, in relevant

part, “[i]n all criminal prosecutions, the accused shall enjoy the right … to

have the Assistance of Counsel for his defence.”2 U.S. Const. amend. VI.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel. See generally Strickland v.

Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987).

In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have

been different.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to satisfy any one of these prongs.” Commonwealth v. Elliott, 80

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2

Likewise, Article I, Section 9 of the Pennsylvania Constitution states in

relevant part, “[i]n all criminal prosecutions the accused hath a right to be

heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme

Court has held that the Pennsylvania Constitution does not provide greater

protection than the Sixth Amendment. Pierce, supra at 976.

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A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v.

Pennsylvania, 135 S. Ct. 50 (2014).

Although presented as one issue, Appellant raises two ineffective

assistance of counsel claims in this appeal. In his first claim, Appellant avers

trial counsel was ineffective for not calling D.N., a man who lived in

Appellant’s home and admitted to molesting two of the victims in this case.

Appellant’s Brief at 17. This Court has previously noted that a PCRA

petitioner has a heavy burden when alleging that counsel failed to call a

certain witness at trial.

[I]n the particular context of the alleged failure to

call witnesses, counsel will not be deemed ineffective

unless the PCRA petitioner demonstrates: (1) the

witness existed; (2) the witness was available; (3)

counsel knew of, or should have known of the

existence of the witness; (4) the witness was willing

to testify for the defense; and (5) the absence of the

testimony was so prejudicial to petitioner to have

denied him or her a fair trial.

Commonwealth v. Miner, 44 A.3d 684, 687 (Pa. Super. 2012) (citation

omitted).

[After] … establish[ing] deficient performance,

[a defendant] must also show that there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different. A reasonable probability

is a probability sufficient to undermine confidence in

the outcome. When a defendant challenges a

conviction, the question is whether there is a

reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt

respecting guilt.

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Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (per curiam). “[T]he

test for prejudice in the ineffectiveness context is more exacting than the

test for harmless error, and the burden of proof is on the defendant, not the

Commonwealth.” Spotz, supra at 315. “[T]he Pierce prejudice standard

[] requires the defendant to show that counsel’s conduct had an actual

adverse effect on the outcome of the proceedings.” Id. “[N]ot every error

by counsel can or will result in a constitutional violation of a defendant’s

Sixth Amendment right to counsel.” Id.

After careful review, we conclude Appellant has failed to satisfy the

last two prongs articulated in Miner. Appellant has not made any showing

that D.N. was available and willing to testify for the defense. Appellant

instead posits that trial counsel should have subpoenaed D.N. and let him

invoke the Self-Incrimination Clause of the Fifth Amendment on the stand,

or negotiate immunity for D.N. with the Commonwealth. Appellant’s Brief at

24. This concedes that D.N. was unavailable to testify for the defense if trial

counsel was required to subpoena him for trial. See generally

Commonwealth v. Mollett, 5 A.3d 291, 308 (Pa. Super. 2010) (stating,

“[a] witness who asserts his Fifth Amendment right is unavailable if the trial

court finds that the witness’s concern with incriminating himself is valid[]”),

appeal denied, 14 A.3d 826 (Pa. 2011).

Furthermore, Appellant does not explain how D.N. invoking the Fifth

Amendment on the stand would give rise to “a reasonable probability that …

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the factfinder would have had a reasonable doubt respecting guilt.” Hinton,

supra. D.N.’s hypothetical invocation of the Self-Incrimination Clause would

not have produced any new facts for the jury to consider in conducting its

deliberations in this case. Based on these considerations, we conclude

Appellant’s first claim on appeal lacks arguable merit, and Appellant has

failed to show prejudice. See Miner, supra.

In his second claim, Appellant avers that trial counsel was ineffective

for not filing a taint or competency motion under Pennsylvania Rule of

Evidence 601 for witnesses L.U., who was 15 years old at the time of trial,

and for R.M., who was 9 years old at the time of trial. Appellant’s Brief at

31-34. The Commonwealth counters that both claims lack arguable merit as

Appellant has not shown that either child was incompetent or that her

testimony was tainted. Commonwealth’s Brief at 10-19. We address each

witness in turn.

As noted above, L.U. was 15 years old at the time of trial. Therefore,

as a matter of law, L.U.’s competency was established. See

Commonwealth v. Moore, 980 A.2d 647, 652 (Pa. Super. 2009) (stating,

“when a witness is under the age of fourteen, the trial court must hold a

competency hearing[]”), appeal denied, 991 A.2d 311 (Pa. 2010). For the

same reason, the trial court was not required to hold a taint hearing. See

Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011) (stating that

because witnesses were “fourteen and fifteen at the time of the taint hearing

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… the issue of taint was totally irrelevant as a matter of law[]”); accord

Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006), appeal

denied, 912 A.2d 1291 (Pa. 2006).

However, R.M. was 9 years old at the time of trial. Therefore, R.M.’s

competency “must be independently established.” Commonwealth v.

Harvey, 812 A.2d 1190, 1199 (Pa. 2002), abrogated on other grounds,

Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013).

In order to be found competent, the minor must

possess: (1) the capacity to communicate, including

both an ability to understand questions and to frame

and express intelligent answers; (2) the mental

capacity to observe the occurrence itself and the

capacity to remember the matter about which she

has been called to testify; and (3) a consciousness of

the duty to speak the truth.

Id.

In Harvey, the defendant was convicted of first-degree murder, and

he challenged the determination that a 13 year old witness was competent

to testify at trial. Id. at 1193, 1199. Although our Supreme Court held that

the trial court erred in not conducting a separate colloquy on competency, it

concluded the error was harmless.

In the instant case, the record clearly indicates

that [the victim] was able to understand the

questions asked of her by counsel and was able to

frame and express intelligent answers to those

questions regarding the details of the shooting.

However, as the trial court acknowledged, given that

[the victim] was only thirteen years old at the time

of trial, the court did err in failing to conduct a

separate colloquy in order to determine [the victim’s]

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understanding of the oath that she took to tell the

truth. Nevertheless, we agree with the trial court

that because it had the opportunity to observe [the

victim’s] demeanor and was the sole determiner of

her truthfulness, the fact that the trial court did not

engage in a distinct colloquy regarding the

truthfulness aspects of her competency did not

prejudice Appellant.

Id. at 1199.

In this case, the PCRA court concluded that Appellant had not shown

prejudice within the meaning of Strickland and Pierce based on the

following.

I don't think there’s any - clearly no prejudice here

because the fact finder in this case was Judge

Herman who obviously knew what the standard for

competency is. He was able to view the witness

well, observed how she responded to the questions,

and my review of the hard transcript I see nothing to

say that she couldn’t observe what she said she saw,

that she had any trouble articulating what she said

she saw or that she had [any trouble with] an

appreciation for the truth telling process, so I just

don’t think especially in a case with a bench trial that

I see any prejudice because I see nothing from the

record to say that she was not competent to testify,

so I will - I don’t find that he was ineffective for not

asking for a competency hearing because I don't find

that [Appellant] was prejudiced in any way.

N.T., 4/22/15, at 24.

After careful review of the certified record, we conclude Appellant is

not entitled to relief. Our Supreme Court has explained a defendant’s

burden to show prejudice in the following terms.

Relating to the prejudice prong of the

ineffectiveness test, the PCRA petitioner must

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demonstrate that there is a reasonable probability

that, but for counsel’s error or omission, the result of

the proceeding would have been different.

Particularly relevant herein, it is well-settled that a

court is not required to analyze the elements of an

ineffectiveness claim in any particular order of

priority; instead, if a claim fails under any necessary

element of the Strickland test, the court may

proceed to that element first.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). As the PCRA

court noted, this was a bench trial, and the trial court was well aware of the

law on competency and “the trial court … had the opportunity to observe

[R.M.]’s demeanor and was the sole determiner of her truthfulness[.]”

Harvey, supra. In this instance, we find our Supreme Court’s decision in

Harvey controlling and conclude Appellant is not entitled to relief on this

issue.

As for the issue of taint, Appellant argues on appeal that two items in

the record point to evidence of taint. First, Appellant reports that R.M. was

subjected to four interviews by Children and Youth Services (CYS) on

January 5, 2007, January 8, 2007, February 19, 2007, and February 15,

2008, at the conclusion of which no evidence of sexual abuse was

discovered. Appellant’s Brief at 36-37. According to Appellant, “[i]t wasn’t

until October of 2008 that reports of sexual abuse pertaining to [Appellant]

began to arise.” Id. at 37. Appellant also alleges that R.M.’s foster parents

“undoubtedly conducted countless interrogations of the children previously

living in [Appellant]’s home.” Id. at 37. Appellant continues that “the foster

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parents had an incentive to interrogate and encourage the victims to explain

that Appellant was molesting them because if the victims told authorities

that Appellant was molesting them, their meal ticket was punched in that

they would be guaranteed the financial assistance they received to support

the children.” Id. at 38.

We note that a motion for a taint hearing is governed by the following

legal parameters.

In order for the court to investigate the issue of taint

at a competency hearing, however, the moving party

must come forward with evidence of taint. Once the

moving party comes forward with some evidence of

taint, the court must expand the scope of the

competency hearing to investigate that specific

question. The party alleging taint bears the burden

of production of some evidence of taint as well as the

ultimate burden of persuasion to show taint by clear

and convincing evidence after any hearing on the

matter. When determining whether a defendant has

presented some evidence of taint, the court must

consider the totality of the circumstances

surrounding the child’s allegations. Some of the

factors that are relevant in this analysis are: (1) the

age of the child; (2) the existence of a motive hostile

to the defendant on the part of the child’s primary

custodian; (3) the possibility that the child’s primary

custodian is unusually likely to read abuse into

normal interaction; (4) whether the child was

subjected to repeated interviews by various adults in

positions of authority; (5) whether an interested

adult was present during the course of any

interviews; and (6) the existence of independent

evidence regarding the interview techniques

employed.

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Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (internal

quotation marks and citations omitted), appeal denied, 912 A.2d 1291 (Pa.

2007).

The PCRA court rejected Appellant’s taint issue because it had

reviewed the interviews, and it “just [did not] see anything unduly

suggestive during the interviews in any way. They [were] very open

end[ed] questions … [and no] suggestion of answers.” N.T., 4/16/15, at 24-

25. The PCRA court continued that “[t]here’s nothing in the Children’s

Resource Center to indicate that they were being suggested the answers.”

Id. at 25.

After careful review of the certified record, we conclude Appellant is

not entitled to relief on this issue. As noted above, in order for a taint

hearing to be warranted, the burden would have been on Appellant to come

forward with evidence of taint. Judd, supra. There appears to be no

dispute in this case that there were multiple interviews conducted of the

children. However, multiple interviews are only one factor for a trial court to

consider. See id. Our cases unequivocally require us to review a taint

motion utilizing a totality of the circumstances test. See id.

As to the foster mothers’ alleged financial motive, Appellant’s brief

only refers to testimony by Kristin Nicklas, Esquire (Attorney Nicklas), an

attorney who reviewed certain CYS records for Appellant, that the foster

mothers would call in and ask for more children to be placed with them and

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requested the financial assistance that came with such placement.

Appellant’s Brief at 37-38. Attorney Nicklas testified that the foster mothers

asked for the placement of more children and the subsidies for the foster

children. N.T., 5/7/12, at 26. According to Attorney Nicklas, the foster

mothers’ requests were refused. Id.

Appellant’s argument is that the foster mothers had a financial

incentive “to interrogate and encourage the victims to explain that Appellant

was molesting them” and this is evidence of taint. Appellant’s Brief at 38.

However, Attorney Nicklas’s testimony merely established that the foster

mothers asked for additional foster children and the subsidies that would

come with said additional children. Without asserting any evidentiary nexus

between the foster mothers’ requests and their alleged financial motive,

Appellant attempts to impute monetary gain as the specific reason for their

requests to the agency. In our view, Attorney Nicklas’s testimony does not

establish that the foster mothers’ ever conducted any interrogations of any

of the children. Accordingly, based on the totality of the circumstances

presented in this case, we conclude Appellant would not have met his

burden to warrant a taint hearing. It is axiomatic that counsel cannot be

ineffective for failing to raise a meritless issue. Fears, supra at 804.

Therefore, we conclude that Appellant has failed to carry his burden to show

that this claim has arguable merit.

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Based on the foregoing, we conclude all of Appellant’s issues on appeal

are devoid of merit. Accordingly, the PCRA court’s April 29, 2015 order is

affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2016

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