J-S33034-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERRY BRANCH :
:
Appellant : No. 192 EDA 2021
Appeal from the PCRA Order Entered December 17, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002170-2014
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 2, 2022
Jerry Branch appeals the denial of his petition for relief under the Post
Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. He
maintains that the PCRA court erred in concluding that his claims of
ineffective assistance of trial counsel were meritless. We affirm.
On June 16, 2016, a jury found Branch guilty of involuntary deviate
sexual intercourse, sexual assault, and corruption of minors.1 The evidence
at trial established that Branch, who was a friend of the victim’s family,
sexually assaulted the minor victim, J.K., on five separate occasions. The
trial court sentenced Branch to an aggregate term of 15 to 35 years’
imprisonment. This Court affirmed the convictions but remanded for
resentencing. See Commonwealth v. Branch, 190 A.3d 744 (Pa.Super.
____________________________________________
1 18 Pa.C.S.A. §§ 3123(a)(7), 3124.1, and 6301(a)(1), respectively.
J-S33034-21
April 26, 2018) (Table). Upon remand, the trial court sentenced Branch to 10
to 35 years’ imprisonment, on November 19, 2018.
On November 14, 2019, Branch filed the instant counseled PCRA
petition raising claims of ineffective assistance of counsel. The PCRA court
denied the petition, concluding that it was meritless. This timely appeal
followed.
Branch presents the following issues before this Court:
I. Did the PCRA court err in not finding trial counsel
ineffective where trial counsel failed to object when a
detective testified that [Branch] declined to give a
statement in violation of [Branch’s] right to silence
under both the United States and Pennsylvania
Constitutions?
II. Did the PCRA court err in not finding that prior
counsel was ineffective for failing to object to
inadmissible hearsay by four separate “prompt
complaint” witnesses where: (1) the complainant did
not disclose the alleged assaults until years after the
fact; and (2) where the testimony of the four
witnesses was cumulative and highly prejudicial?
III. Did the PCRA court err in concluding that trial
counsel was not ineffective for failing to properly
authenticate text messages sent from the victim to
[Branch], thereby preventing [Branch] from
introducing the messages into evidence, where the
messages would have impeached the complainant’s
claim he did not contact [Branch] after the abuse
ended?
IV. Did the PCRA court err in concluding that trial
counsel was not ineffective for failing to investigate
and call witnesses at [Branch’s] trial where the
witnesses would have established that the
complainant was abusing alcohol and drugs long
before the alleged abuse began, thereby rebutting
-2-
J-S33034-21
the Commonwealth’s claims that the abuse drove
J.K. to drug and alcohol addiction and provided
corroboration that J.K.’s allegations were true?
Branch’s Br. at 4-5 (answers of trial court omitted).
When reviewing the denial of a PCRA petition, we “determine whether
the PCRA court’s findings of fact are supported by the record, and whether
its conclusions of law are free from legal error.” Commonwealth v. Small,
238 A.3d 1267, 1280 (Pa. 2020). Our standard of review of the PCRA court’s
legal conclusions is de novo, while our “scope of review is limited to the
findings of the PCRA court and the evidence of record[.]” Id.
Counsel is presumed effective, therefore a petitioner must plead and
prove the following to succeed on a claim of ineffective assistance of
counsel: “(1) [the] underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate [the petitioner’s] interests; and, (3) but for counsel's
ineffectiveness, there is a reasonable probability that the outcome of the
challenged proceeding would have been different.” Commonwealth v.
Fulton, 830 A.2d 567, 572 (Pa. 2003). An ineffectiveness claim will only be
successful where the petitioner satisfies each prong. Commonwealth v.
Daniels, 963 A.2d 409, 419 (Pa. 2009).
Branch argues that counsel was ineffective for failing to object, seek a
mistrial, or ask for a cautionary instruction when a detective testified, on
defense counsel’s cross-examination, about Branch’s post-arrest silence. The
referenced portion of testimony is as follows:
-3-
J-S33034-21
Q [Defense Counsel]: You arrested Mr. Branch?
A [Detective Justin Montgomery]: Yes, sir.
Q: When you arrested him, did he run?
A: No, he did not, sir.
Q: Did he fight you?
A: No. No, sir.
Q: Did he punch at you and try to stop from being
arrested?
A: No, sir.
Q: So he didn’t exhibit – I’ll take that question back. Was
he compliant with everything?
A: Yes, sir. He was afforded – also afforded the
opportunity to provide a statement, which he denied, sir.
Q: He didn’t have an attorney at the time; did he?
A: Correct, sir.
N.T. Trial, 6/14/16, at 200-01.
A prosecutor may not comment on or attempt to elicit testimony about
a defendant’s post-arrest silence. See Commonwealth v. Turner, 454
A.2d 537, 539-40 (Pa. 1982). Defense counsel’s failure to object to such
commentary or questioning may support an ineffectiveness claim. See
Commonwealth v. Spotz, 870 A.2d 822, 831 (Pa. 2005).
Branch compares his case to Commonwealth v. McEnany, 667 A.2d
1143 (Pa.Super. 1995), and argues that his underlying claim has arguable
merit. In McEnany, the prosecutor explicitly inquired into McEnany’s post-
arrest silence. The prosecutor asked an officer whether McEnany gave a
statement after being advised of his constitutional rights. The officer
-4-
J-S33034-21
responded, “No, sir, [he] did not.” Id. at 1150. A panel of this Court
concluded that the Commonwealth “presented direct evidence of
[McEnany’s] post-arrest silence,” and the testimony the offending question
elicited “was an improper reference to [McEnany’s] exercise of his
constitutional privilege from which the jury might infer an admission of
guilt.” Id. at 1151.2
The PCRA court concluded that Branch’s ineffectiveness claim was
meritless. It concluded that “[t]rial counsel had an objectively reasonable
basis for not objecting to this passing reference because an objection would
have called attention to [Branch’s] failure to give a statement to police.”
PCRA Ct. Op., filed 4/14/21, at 6.
The PCRA court’s rejection of this claim was not erroneous. Branch’s
reliance on McEnany is misplaced. Here, the prosecutor did not comment on
or elicit testimony about Branch’s post-arrest silence. Rather, in response to
questioning that did not on its face seek such testimony, the detective
volunteered that Branch did not make a statement. Branch has not shown
that counsel’s decision not to highlight the testimony was unreasonable.
Next, Branch claims trial counsel was ineffective for failing to object to
the testimony of four “prompt complaint” witnesses as inadmissible hearsay.
____________________________________________
2McEnany has been abrogated on other grounds. See Commonwealth v.
Prater, 256 A.3d 1274, 1286 (Pa.Super. 2021) (recognizing abrogation),
appeal denied, No. 317 EAL 2021, 2021 WL 5629075 (Pa. Dec. 1, 2021).
-5-
J-S33034-21
Branch maintains that the testimony was not prompt complaint testimony
because, according to Branch, the victim told the witnesses “about the abuse
anywhere from one to seven years after the last assault allegedly took
place[.]” Branch’s Br. at 29.
Hearsay is an out of court statement entered for the truth of the
matter asserted and is generally inadmissible over objection unless a
hearsay exception applies. See Pa.R.E. 801(c), 802. Pennsylvania Rule of
Evidence 613(c)(1) permits evidence of prior consistent statements to rebut
an express or implied charge of “fabrication, bias, improper influence or
motive, or faulty memory.” Pa.R.E. 613(c)(1). As applied to a sexual assault
case, the Rule allows the Commonwealth to present evidence in its case-in-
chief to show a prompt complaint by the victim. Commonwealth v.
Bryson, 860 A.2d 1101, 1104 (Pa.Super. 2004)(en banc). This is “because
[the] alleged victim’s testimony is automatically vulnerable to attack by the
defendant as recent fabrication in the absence of evidence of hue and cry on
[the alleged victim’s] part.’” Id. (citations omitted). When a witness’s prior
consistent statement is admissible to counter an express or implied charge
of “fabrication, bias, improper influence or motive, or faulty memory,” the
opposing party must have an opportunity to cross-examine the witness
about the statement, and the statement must have been “made before that
which has been charged existed or arose[.]” Pa.R.E. 613(c)(1).
Here, the referenced testimony of three of the four witnesses,
Kathleen Breslin, Laura Kuneck, and Deepika Setty, was introduced by the
-6-
J-S33034-21
Commonwealth after defense counsel questioned the victim at length
regarding his failure to disclose the sexual abuse immediately afterward.
See N.T. Trial, 6/14/16, at 99, 114, 115 (counsel cross-examining the victim
that he never told the individuals he was drinking with when he visited
Branch’s house and never told his parents or his aunt). Thus, this testimony
was properly admitted to rebut defense counsel’s suggestion that the
victim’s statement was one of “fabrication, bias, improper influence or
motive, or faulty memory.” See Pa.R.E. 613(c)(1). Additionally, defense
counsel presented the testimony of the victim, on cross examination, that
when he was 16 years old he told the fourth witness, Phillip Gillice, about the
last incident of abuse “right after” it happened. See N.T. Trial, 6/14/16, at
71-72. Gillice then testified that the victim told him about Branch’s sexual
abuse when both Gillice and the victim were 16 years old. This claim fails.
Branch also argues that trial counsel was ineffective for failing to
authenticate alleged text messages between the victim and Branch. He
maintains that this failure prevented him from introducing the texts into
evidence to impeach the victim’s claim that he was no longer in contact with
Branch after the sexual abuse stopped. Branch suggests that counsel could
have subpoenaed “records from [Branch] and J.K.’s cell phone providers or
otherwise search[ed] the messages for contextual clues.” Branch’s Br. at 37.
During cross-examination, defense counsel showed the victim a
printout of a conversation via text message that allegedly occurred between
the victim and Branch in 2010, after the sexual abuse had ended. N.T. Trial,
-7-
J-S33034-21
6/14/16, at 122; Exh. D-1. Branch’s counsel asked the victim if he had sent
the messages displayed on the document, and he responded, “I didn't send
those messages, no, I did not.” N.T. Trial, 6/14/16, at 126. Later, counsel
moved to admit the text messages and the trial court refused to admit them.
It stated that the text messages had not been authenticated and made note
that the victim testified that he did not send the messages. N.T. Trial,
6/15/16, at 74. The trial court also denied Branch’s request to use the
testimony of Branch’s mother to show that Branch did not fabricate the
messages. Id. at 76.3
Before evidence may be admitted, it must be properly authenticated.
Pa.R.E. 901(a). The requirement of authentication is satisfied where the
proponent produces “evidence sufficient to support a finding that the item is
what the proponent claims it is.” Id. Text messages may be authenticated
by “(1) testimony from either the author or the sender; (2) circumstantial
evidence, including ‘distinctive characteristics’ like information specifying the
author-sender or ‘reference to or correspondence with relevant events’
preceding or following the message; or (3) ‘any other facts or aspects of the
[message] that signify it to be what its proponent claims.’” Commonwealth
v. Murray, 174 A.3d 1147, 1156-57 (Pa.Super. 2017) (quoting
Commonwealth v. Koch, 106 A.3d 705, 712–13 (Pa. 2014)).
____________________________________________
3 This was proposed after the court suggested that the text messages were
“a self-serving exhibit created by the defendant.” N.T. Trial, 6/15/16, at 73.
-8-
J-S33034-21
Here, Branch has failed to show that counsel would have been able to
authenticate the text messages. The certified record contains no evidence
suggesting that counsel would have been able to authenticate them.
Branch’s suggestions that counsel could have authenticated the messages by
subpoenaing phone records or looking for contextual clues is mere
speculation. Branch did not offer anything to substantiate his claim – such as
the cell phone records or contextual clues – to show that had counsel tried,
he could have authenticated the messages. Therefore, this claim fails as
well.
Finally, Branch claims that the PCRA court erred in rejecting his claim
that counsel was ineffective for failing to call witnesses. He alleges that prior
to trial, he gave counsel a packet with witnesses’ names, addresses, and
contact information. He maintains that they would have “testif[ied] that
J.K.’s issues with drugs and alcohol started well before the time that he
claimed [Branch] started to molest him.” Branch’s Br. at 41. Branch argues
that this proposed testimony could have rebutted the Commonwealth’s
argument to the jury that the victim’s “struggles with addiction confirmed
his claims of molestation.” Id.
To succeed on a claim of ineffectiveness for failure to call witnesses, a
petitioner must plead and prove that the witness: (1) existed; (2) was
available to testify for the defense; (3) was known or should have been
known to counsel; (4) was willing to testify for the defense; and (5) would
have provided testimony of such a nature that the failure to present it was
-9-
J-S33034-21
so prejudicial as to have denied the defendant a fair trial. Commonwealth
v. Selenski, 228 A.3d 8, 16 (Pa.Super. 2020).
In his PCRA petition, Branch referenced five potential witnesses, two of
whom testified as Commonwealth witnesses. Branch also attached the
informational packet that he gave to counsel with the names, addresses, and
photos of these potential witnesses. However, Branch failed to show that the
witnesses were willing and available to testify for the defense, or what the
substance of their testimony would be. See id.; 42 Pa.C.S.A. §
9545(d)(1)(i) (“Where a petitioner requests an evidentiary hearing, the
petition shall include a certification signed by each intended witness stating
the witness’s name, address, date of birth and substance of testimony and
shall include any documents material to that witness’s testimony”).
Additionally, despite his claim that this testimony would have rebutted the
Commonwealth’s argument, the record shows that the victim admitted to
drinking alcohol before the molestation started. See N.T. Trial, 6/14/16, at
69-70. Therefore, the PCRA court did not err in concluding that counsel was
not ineffective for failing to call the witnesses as Branch failed to show their
testimony would have been helpful to the defense. We affirm the order
denying Branch’s PCRA petition.
Order affirmed.
- 10 -
J-S33034-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/02/2022
- 11 -