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Commonwealth v. Riggle

Superior Court of Pennsylvania

July 7, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LARRY EUGENE RIGGLE, Appellant

Submitted: May 11, 2015.

Page 1059

[Copyrighted Material Omitted]

Page 1060

Appeal from the PCRA Order June 6, 2014 of the Court of Common Pleas, Lycoming County, Criminal Division, No(s): CP-41-CR-0001002-2008. Before BROWN, J.

Larry E. Riggle, appellant, pro se.

Eric R. Linhardt, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: BOWES, OTT and STABILE, JJ.

OPINION

Page 1061

BOWES, J.

Larry Eugene Riggle appeals pro se from the June 6, 2014 order denying him PCRA relief. We affirm.

On April 29, 2009, a jury convicted Appellant of one count each of involuntary deviate sexual intercourse, aggravated indecent assault, and corruption of a minor, and four counts of indecent assault. The victim was M.B., Appellant's thirteen-year-old nephew, who was sexually abused by Appellant from June 2007 to February 2008. M.B. testified that Appellant, then forty-nine years old, performed oral sex on him on five occasions. Appellant also penetrated his nephew's anus with his fingers at least five times and placed his penis inside the victim's anus once. M.B. said that three dildos colored caramel, black, and purple were used during other sexual assaults. Appellant also showed M.B. gay pornographic movies. Pursuant to a search warrant, police recovered the three described dildos and gay pornography from Appellant's residence.

Appellant did not admit to committing the crimes and maintained to police that M.B. knew about the sex toys and pornography from secretly going through Appellant's belongings. At trial, Appellant testified in his own defense, again denying that he sexually assaulted M.B. Appellant also presented character witnesses and the testimony of two relatives who lived with Appellant during the time frame of the assaults. The jury credited the Commonwealth's proof and convicted Appellant.

On August 7, 2009, Appellant was sentenced to eight to sixteen years incarceration followed by four years of probation. The sentence included a mandatory minimum term of five years incarceration for the crime of involuntary deviate sexual intercourse. 42 Pa.C.S. § 9718(a)(1)[1] (" A

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person convicted of the following offenses when the victim is less than 16 years of age shall be sentenced to a mandatory term of imprisonment as follows: . . . 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse)--not less than ten years." ).[2] On direct appeal, we affirmed, rejecting Appellant's challenges to the sufficiency and weight of the evidence. Commonwealth v. Riggle, 31 A.3d 746 (Pa.Super. 2011) (unpublished memorandum). Our Supreme Court denied allowance of appeal on December 15, 2011. Commonwealth v. Riggle, 613 Pa. 664, 34 A.3d 829 (Pa. 2011).

On December 18, 2012, Appellant filed a timely PCRA petition. He averred that trial counsel was ineffective for failing to: 1) call witnesses Richard Bower, Carol Henry, Jack Eoute and Raymone Kontz III; 2) cross-examine Denise Scott by rebutting her testimony that M.B. suffered from a central auditory processing disorder; 3) request the victim's medical records, which would have demonstrated that there was nothing physically wrong with M.B.; 4) object to the Commonwealth's failure to establish a specific date that he committed the offenses; and 5) object to the prosecutor's improper closing remarks.

Appellant completed witness certifications. Mr. Bower and Mr. Eoute purportedly would have testified that M.B.'s parents used Appellant's address to defraud the county, state, and federal governments of cash, food stamps, and medical care, and, after Appellant reported them to authorities, they encouraged M.B. to fabricate the charges in order to retaliate against Appellant. Appellant represented that Ms. Henry would have stated that, when she babysat M.B., he would rummage through her drawers and cupboards. Mr. Kontz allegedly would have informed the jury that M.B.'s parents and family " always lie." PCRA Petition, 12/18/12, at 6. Counsel was appointed but filed a petition to withdraw and a no-merit letter, as permitted by Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (Pa.Super. 1988) ( en banc ).

The PCRA court found that none of Appellant's issues had merit, allowed counsel to withdraw, and sent notice of its intent to dismiss the PCRA petition without a hearing. In response to the notice, Appellant claimed that his sentence was illegal under Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

Appellant filed the present appeal from the June 6, 2014 order denying him PCRA relief. Appellant was ordered to file a statement of matters complained of on appeal.[3] Appellant raised seven issues therein: 1) his sentence is illegal under Alleyne; 2) trial counsel was ineffective for failing to object to various improper remarks that the prosecutor made during her closing; 3) trial counsel was ineffective for not presenting expert witnesses to contradict Denise Scott's expert testimony; 4) trial counsel was ineffective for not obtaining pre-trial discovery of the victim's medical records; 5) he is entitled to a new trial based upon prosecutorial misconduct; 6)

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PCRA counsel should not have been allowed to withdraw " where Appellant had meritorious issues concerning violation of his guaranteed and protected constitutional rights to a Jury trial, Fair trial, and the Due Process Clauses of the United States and Pennsylvania Constitution," Statement of Matters Complained of on Appeal, 8/5/14, at ¶ 6; and 7) his constitutional rights were violated because the Commonwealth did not specify the dates upon which the offenses occurred. While Appellant reserved the right to file a supplemental Pa.R.A.P. 1925(b) statement, none was filed.

On appeal, Appellant raises eight contentions:

I. Appellant's sentence is illegal under Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013), because the trial court's application of 42 Pa.C.S.A. § 9718 to impose a mandatory minimum sentence violated Appellant's constitutional rights to a jury under the 6th amendment and the 14th amendments of the United States Constitution and Article I, § 9 of the Pennsylvania Constitution and the due process clauses.
II. The PCRA court erred as a matter of law and constitution, when it dismissed Appellant's PCRA petition, where Appellant had meritorious issues that his trial counsel was constitutionally ineffective for failing to make a critical and valid objection to the prosecutor's closing remarks that (1) bolstered and vouched for witnesses: (2) unfairly characterized and stigmatized appellant's with epithets; (3) expressed her own personal beliefs by direct statements and indirect figure of speech as to the veracity of the witnesses: (4) engaged in conduct designed to arouse and inflame the passion of the jurors and prompt the jury to act out of sympathy for the victim; and (5) indicated that information which is not before the jury supports the witness testimony.
III. The PCRA court erred as a matter of law and constitution when it dismissed Appellant's PCRA petition, where appellant had meritorious issues that trial counsel was constitutionally ineffective for failing to present expert witness testimony ...

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