J-S05014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BENJAMIN JOSEPH KERRICK,
Appellant No. 1452 MDA 2016
Appeal from the PCRA Order Entered August 17, 2016
In the Court of Common Pleas of Tioga County
Criminal Division at No(s): CP-59-CR-0000020-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 21, 2017
Appellant, Benjamin Joseph Kerrick, appeals from the post-conviction
court’s August 17, 2016 order denying his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant raises
three claims of trial counsel’s ineffectiveness. After careful review, we
affirm.
In February of 2014, a jury convicted Appellant of various sexual
offenses stemming from his abuse of his daughter. This Court previously
summarized the facts underlying Appellant’s convictions, as follows:
The record reveals the victim was eleven years old when
she first met her father, [Appellant]. Not long after they were
reunited, [Appellant] began sexually assaulting the victim,
including digital penetration of and sexual intercourse with her.
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*
Retired Senior Judge assigned to the Superior Court.
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These assaults took place in Elkland and Jim Thorpe,
Pennsylvania. Elkland is in Tioga County while Jim Thorpe is in
Carbon County. As noted, one instance of incest and one
instance of aggravated indecent assault took place in Carbon
County. This pattern of sexual abuse continued until the victim
was 14 years old. Some years later, the victim reported the
abuse. The victim was 19 years old at the time of trial.
Commonwealth v. Kerrick, No. 1125 MDA 2014, unpublished
memorandum at 2 (Pa. Super. filed June 16, 2015).
Appellant was charged with numerous offenses and, at the conclusion
of a jury trial, he was convicted of indecent assault (victim less than 13
years old), three counts of aggravated indecent assault (victim less than 16
years old), and three counts of incest.1 On June 11, 2014, Appellant was
sentenced to an aggregate term of 10 years’ and nine months’ to 22 years’
incarceration. He was determined not to be a sexually violent predator.
Appellant filed a timely direct appeal, and this Court affirmed his judgment
of sentence on June 16, 2015. See Kerrick, supra.
On May 31, 2016, Appellant filed a timely, counseled, PCRA petition,
asserting several claims of ineffective assistance of his trial counsel(s).2 A
hearing was conducted on August 11, 2016. On August 17, 2016, the PCRA
court issued an order and opinion dismissing Appellant’s petition. He filed a
timely notice of appeal, and also timely complied with the PCRA court’s order
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1
18 Pa.C.S. §§ 3126(a)(7), 3125(a)(8), and 4302, respectively.
2
Appellant had two attorneys during the course of the pretrial and trial
proceedings: Roger Laguna, Esq. (pretrial counsel), and R. Bruce
Manchester, Esq. (trial and direct appeal counsel).
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to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Herein, Appellant presents the following three issues for our review:
1. Did the PCRA court err in denying relief based on trial
counsel’s failure to preserve a potentially meritorious appeal
issue where the Superior Court had already deemed the issue in
question waived on direct appeal?
2. Did the PCRA court err in denying relief based on [Appellant’s]
claim of ineffective cross-examination of a key prosecution
witness[,] where such witness testified at the PCRA hearing that
her testimony did not present a full and accurate description of
[Appellant’s] alleged confession?
3. Did the PCRA court err in denying relief based on trial
counsel’s decision not to call any witnesses other than
[Appellant] himself[,] where trial counsel based such decision on
a grossly inaccurate understanding of the background
information relevant to such decision?
Appellant’s Brief at 2.
Preliminarily, we note that, “[t]his Court’s standard of review from the
grant or denial of post-conviction relief is limited to examining whether the
lower court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d
516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,
356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received
ineffective assistance of counsel, our Supreme Court has directed that the
following standards apply:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
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Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See [Commonwealth
v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
prove any of these prongs, his claim fails.” Commonwealth v.
Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
omitted). Generally, counsel's assistance is deemed
constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate
his client's interests. See Ali, supra. Where matters of strategy
and tactics are concerned, “[a] finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.”
Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Appellant first contends that his trial counsel, Attorney Manchester,
was ineffective by incorrectly framing a challenge to the consolidation of
Appellant’s charges in Tioga County. As stated supra, two of Appellant’s
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charges (one count of incest and one count of aggravated indecent assault)
stemmed from conduct committed in Carbon County, while his remaining
crimes were committed in Tioga County. At trial, Attorney Manchester
framed his challenge to the consolidation of Appellant’s charges as a
jurisdictional issue.3 On direct appeal, this Court declared that
“[i]ntercounty determinations are … a question of venue[,]” rather than
jurisdiction. Kerrick, No. 1125 MDA 2014, unpublished memorandum at 3.
Because Appellant “never challenged the Tioga County venue[,]” we
concluded that he had waived his claim that his charges should not have
been consolidated. Id.
Now, Appellant claims that Attorney Manchester acted ineffectively by
failing to properly frame the challenge to the consolidation of the Carbon
County charges in Tioga County as a venue issue, which ultimately resulted
in that claim being waived on appeal. We accept that Appellant’s underlying
claim has arguable merit, and that Attorney Manchester had no reasonable
basis for not framing the issue as one implicating venue, rather than
jurisdiction. See Commonwealth v. Bethea, 828 A.2d 1066, 1074-75 (Pa.
2003) (stating that “[v]enue in a criminal action properly belongs in the
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3
Appellant does not cite to where in the record Attorney Manchester raised
an objection to the consolidation of his charges. However, the
Commonwealth and the PCRA court agree that Attorney Manchester
presented a jurisdictional challenge to the consolidation of Appellant’s
charges below. See Commonwealth’s Brief at 4; PCRA Court Opinion (PCO),
8/17/16, at 1.
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place where the crime occurred[,]” and clarifying that courts of common
pleas have subject matter jurisdiction over “[c]ontroversies arising out of
violations of the Crimes Code”).
Nevertheless, Appellant has failed to demonstrate that he was
prejudiced by counsel’s conduct. “To prevail on [a] claim that counsel erred
in failing to challenge the propriety of venue … [a petitioner] must
demonstrate that but for the failure of counsel the outcome of trial would
have been different.” Id. at 1076. In other words, “to establish prejudice
flowing from trial counsel’s failure to raise th[e] issue” of venue, the
petitioner “must demonstrate that he was unable to receive a fair and
impartial trial in the venue where the trial was held.” Id.
Here, Appellant wholly fails to meet that burden. Similar to the
petitioner in Bethea, Appellant makes no argument that “he suffered undue
expense in appearing before the court in [Tioga] County, that he was unable
to obtain the presence of witnesses or evidence related to his defense
because of the location, that the Commonwealth engaged in forum shopping
in order to achieve an advantage over the defense,[4] or that he was
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4
Appellant baldly states that he was, “in fact, … subject to an
unconstitutional forum selection procedure in violation of the Sixth
Amendment to the United States Constitution and Article I, § 9 of the
Pennsylvania Constitution….” Appellant’s Brief at 10. However, Appellant
does not elaborate on this claim, or offer any explanation of why prosecuting
the Carbon County charges in Tioga County gave the Commonwealth an
advantage over the defense.
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deprived of a fair and impartial trial.” Id. at 1077. We also stress that
Appellant does not argue that he was prejudiced by the consolidation
because the Tioga County jury heard evidence regarding the Carbon County
acts, which might not have occurred had the charges been tried separately.
In sum, Appellant has not presented any developed argument to
demonstrate that he did not receive a fair and impartial trial in Tioga County
on the offenses which occurred in Carbon County. Accordingly, like the
petitioner in Bethea, Appellant has failed to show any “prejudice from the
error in venue,” and his “ineffectiveness claim must be denied.” Id.
Appellant next contends that Attorney Manchester was ineffective for
failing to cross-examine Appellant’s mother, Sarah Kerrick (hereinafter,
“Sarah”), regarding “the specific details of her son’s purported confession….”
Appellant’s Brief at 11. Briefly, Sarah provided a lengthy, pretrial statement
to police in which she asserted, in pertinent part, the following:
I sat down across from [Appellant] and told him [the victim] told
me he put his hand on her in a sexual way and [I asked him]
was it true. He said, “Yes, but I am not sure how they got
there.”
Sarah Kerrick’s Written Statement, 2/6/14, at 4; see also PCRA Hearing,
8/11/16, at 38 (Commonwealth’s entering Sarah Kerrick’s statement into
evidence as Commonwealth’s Exhibit 1). At trial, Sarah testified about this
same conversation with Appellant as follows:
I went in, pulled the chair up across from him, and I said, [“]I
got a phone call last night from [the victim,”] and he just put his
head down and I said, [“]she told me that you had been
molesting her and that you put your -- that she woke up and
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your hands were in her underwear.[”] And I said[, “]please tell
me that this is not true.[”] And he said, [“]I don’t know. I’m
confused about the whole thing.[”] He said[, “]I’m confused
about it. I don’t know how it happened.[”] I said, [“]but is it
true?[”] And he said, [“]yes.” He said … [“]it is true, but I don’t
know how it happened.[”]
N.T. Trial, 2/19/14, at 102 (emphasis added).
Appellant now argues that while Sarah’s written statement to police
“made it clear that [Appellant’s] confession was of an extremely limited
nature and referred only to a single incident of inappropriate touching[,]” her
trial testimony “was prejudicially vague in that she reported confronting
[Appellant] with allegations both that he ‘had been molesting [the victim]’
and also ‘that [he] put [his] - that [the victim] woke up and [his] hands
were in her underwear.’” Appellant’s Brief at 11-12 (emphasis in original).
Appellant contends that,
[g]rammatically, these are separate and distinct accusations.
The tense structure used by Sarah Kerrick in relation to the
accusation of molestation connotes an ongoing course of
conduct. Sarah Kerrick also used the conjunction “and” to
separate such allegation from the allegation regarding
[Appellant’s] placing his hands in [the victim’s] underwear.
Furthermore, the latter part of Sarah Kerrick’s statement uses a
different tense to clearly connote a single instance. In effect, if
not by intention, Ms. Kerrick testified that she had confronted
[Appellant] with two separate and distinct allegations.
Sarah Kerrick’s description of [Appellant’s] response did
not in any way elucidate whether it was directed only to the
specific allegation of accidental inappropriate touching or also to
the more general allegation of ongoing molestation….
Nonetheless, instead of cross-examining Sarah Kerrick in
such a way as to specifically clarify the extremely-limited [sic]
extent of the purported confession, trial counsel instead just
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“attempted to impeach her.” (N.T. [PCRA Hearing, 8/11/16,] at
88).
Appellant’s Brief at 12.
Appellant’s argument fails to convince us that Sarah’s trial testimony
was “prejudicially vague….” Id. Appellant hyper-technically analyzes the
“tense structure” of Sarah’s testimony about what she said to him, asserting
that it is clear that she confronted him with “separate and distinct
accusations.” Id. Conversely, however, he goes on to argue that Sarah’s
testimony about his response should be loosely interpreted as an admission
to both the “specific allegation of inappropriate touching” and “the more
general allegation of ongoing molestation.” Id. Appellant wholly ignores
that in his response to Sarah’s questions, he repeatedly used the singular
term “it” - stating that, “it is true,” and that he did not “know how it
happened.” N.T. Trial, 2/19/14, at 102 (emphasis added).
Given that Sarah asked Appellant about a specific incident of abuse
and that, in his response, he utilized the singular pronoun “it,” we conclude
that Sarah’s testimony conveyed to the jury that Appellant’s confession was
limited to the one act putting his hands in the victim’s underwear.
Therefore, Appellant has not demonstrated that he was prejudiced by
Attorney Manchester’s failure to cross-examine Sarah Kerrick about the
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ostensible discrepancy between her written statement and her trial
testimony.5
Next, Appellant contends that Attorney Manchester acted ineffectively
by failing to call two witnesses: Appellant’s wife, Stephanie Kerrick
(hereinafter, “Stephanie”), and his father, Robert Kerrick (hereinafter,
“Robert”).6 “To establish that counsel was ineffective for failing to call a
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5
We note that the PCRA court essentially concluded that Attorney
Manchester expressed a reasonable basis for not cross-examining Sarah
Kerrick about this alleged discrepancy. Specifically, the court reasoned:
While [Attorney] Manchester did cross-examine Sarah at some
length, the [c]ourt accepts his position that his cross-
examination was limited by an extensive ten-page statement
Sarah had previously given to the police, which apparently
disclosed even more areas of concern, the exploration of which
would have not been of benefit to [Appellant].
PCO at 3. The PCRA court does not cite to where in the record Attorney
Manchester testified that this was his basis for not cross-examining Sarah
Kerrick on the alleged disparity between her written statement and trial
testimony. Our review of the record does not reveal that counsel offered
this rationale at the PCRA hearing; rather, Attorney Manchester testified that
he simply did not see Sarah’s testimony as being inconsistent with her
written statement. N.T. PCRA Hearing at 92. Accordingly, the court’s
characterization of counsel’s reason for not cross-examining Sarah on this
issue is not supported by the record. In any event, “this Court may affirm
the decision of the PCRA [c]ourt if it is correct on any basis.”
Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000) (citing
Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa. 2000);
Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super. 1996)).
6
Appellant also argued in his PCRA petition, that counsel ineffectively failed
to call Sue McGinty to the stand at trial. However, in his appellate brief, he
“concedes that a reasonable tactical decision could have been made not to
use Ms. McGinty as a witness….” Appellant’s Brief at 14 n.1. Accordingly,
(Footnote Continued Next Page)
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witness, Appellant must demonstrate that: (1) the witness existed; (2) the
witness was available to testify for the defense; (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 of the
witness was so prejudicial as to have denied the defendant a fair trial.”
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007) (citation
omitted).
Here, Appellant has failed to demonstrate the final prong of this test,
i.e., that the absence of testimony by Stephanie and/or Robert was so
prejudicial that it denied him a fair trial.7 First, in regard to how Stephanie’s
_______________________
(Footnote Continued)
Appellant abandons his ineffectiveness claim pertaining to counsel’s decision
not to call Ms. McGinty as a defense witness. Id.
7
Consequently, we need not assess the reasonableness of counsel’s decision
not to call Stephanie or Robert to the stand, despite that Appellant spends a
significant portion of his argument on that prong of the ineffectiveness test.
In particular, Appellant contends that counsel’s grounds for not calling these
witnesses cannot be considered as reasonable where, according to Appellant,
counsel premised those decisions on incorrect beliefs about each witness.
For instance, Appellant claims that counsel erroneously thought that he and
Stephanie were having marital problems that may have made her a hostile
witness. Additionally, Appellant maintains that Attorney Manchester
mistakenly believed that Robert had a volatile relationship with Appellant
and a seedy reputation in the community. The PCRA court essentially
concluded that counsel acted reasonably by not calling these witnesses,
based on his beliefs (mistaken or not) about them and their relationships
with Appellant. See PCO at 3. Ultimately, we need not assess the
correctness, or reasonableness, of counsel’s decisions regarding these
witnesses, as we conclude, for the reasons stated infra, that Appellant has
not demonstrated that he was prejudiced by the omission of their testimony
at trial. We reiterate that we may affirm the decision of the PCRA court on
any basis. See Hutchins, 760 A.2d at 54.
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testimony would have bolstered his defense, Appellant’s entire argument is
as follows:
If called as a witness, Stephanie Kerrick could have
testified about her personal direct knowledge of sleeping
arrangements during [Appellant’s] visits with his daughter,
([PCRA Hearing] at 45), and she could also have contradicted
assertions made by the Commonwealth that [Appellant] showed
overt favoritism for the alleged victim over her sister (Id. at 45-
47). The lack of such testimony prejudiced the defense by
leaving the Commonwealth’s assertions uncontradicted by
anyone other than [Appellant] himself, and it left [Appellant’s]
version of events uncorroborated.
Appellant’s Brief at 15-16 (citation to the record omitted).
Initially, the record does not demonstrate what specific testimony
Stephanie would have offered about the sleeping arrangements during her
overnight trips with Appellant and the victim. While Stephanie did state that
she “personally observed” where “people were sleeping” during these trips,
she never testified about what those arrangements were. See PCRA Hearing
at 45. Therefore, Appellant has failed to prove that Stephanie would have
offered testimony to refute the Commonwealth’s evidence, which
demonstrated that Appellant and the victim had been sleeping in the same
bed on certain occasions when he had abused her. See N.T. Trial, 2/19/14,
at 26, 28.
Additionally, while Stephanie testified at the PCRA hearing that
Appellant did not exhibit favoritism toward the victim, Appellant offers no
developed discussion regarding how the absence of such testimony resulted
in an unfair trial. More specifically, Appellant claims that, at trial, the
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Commonwealth ‘made assertions’ that he favored the victim, yet he provides
no citations to the record to support this argument. Without such argument
and/or citations, we cannot examine how vital Appellant’s purported
‘favoritism’ of the victim was to the prosecution’s case, nor gauge how
important Stephanie’s testimony to the contrary would have been for
Appellant’s defense. Consequently, he has not demonstrated that an unfair
trial resulted from Attorney Manchester’s decision not to call Stephanie to
the stand.
The same is true for counsel’s decision not to call Appellant’s father,
Robert Kerrick, as a defense witness at trial. Again, Appellant claims that
Robert’s
testimony could have been used to provide additional
information about the circumstances of the visits between the
alleged victim and [Appellant] (most of their contact took place
at Robert Kerrick’s home, (N.T. [PCRA Hearing, 8/11/16,] at
50)) and to contradict the assertions made as part of the
Commonwealth’s case that [Appellant] showed overt favoritism
for the alleged victim over her sister. (Id. at 51). The lack of
such testimony prejudiced the defense by leaving the
Commonwealth’s assertions uncontradicted by anyone other
than [Appellant] himself, and it left [Appellant’s] version of
events uncorroborated.
Appellant’s Brief at 15.
As with Appellant’s argument regarding Stephanie’s testimony, his
claims to support the import and benefit of Robert’s testimony are not
sufficiently developed. Appellant does not elaborate on what “additional
information” Robert could have provided “about the circumstances of the
visits” between Appellant and the victim. Id. Additionally, he again fails to
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cite to where in the record the Commonwealth offered evidence that he
favored the victim, or argued that that fact demonstrated his guilt.
Therefore, we cannot assess the import of Robert’s testimony contradicting
that purported evidence or argument. Consequently, Appellant’s minimal
argument has not convinced us that he received an unfair trial due to the
absence of Robert’s testimony.
In sum, having carefully reviewed Appellant’s arguments, the record of
his trial, and the record of the lengthy PCRA hearing, we conclude that
Appellant has not demonstrated that Attorney Manchester acted ineffectively
in any of the three ways asserted by Appellant. Accordingly, we affirm the
PCRA court’s order denying his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
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