J-S90043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS CERAUL

                            Appellant                 No. 1642 EDA 2016


                  Appeal from the PCRA Order March 28, 2016
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002630-2012


BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 16, 2016

        Thomas Ceraul (“Appellant”) appeals from the order entered in the

Northampton County Court of Common Pleas, which granted in part and

denied in part his petition filed for relief pursuant to the Post Conviction

Relief Act (“PCRA”).1 After careful review, we affirm.

        The relevant facts and procedural history of this appeal are as follows.

On February 6, 2013, a jury convicted Appellant of four counts of statutory

sexual assault,2 six counts of involuntary deviate sexual intercourse (“IDSI”)

person less than 16 years of age,3 aggravated indecent assault person less
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3122.1.
3
    18 Pa.C.S. § 3123(a)(7).
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than 16 years of age,4 corruption of minors,5 four counts of indecent assault

person less than 16 years of age,6 and selling or furnishing liquor to minors.7

Appellant’s convictions stem from four sexual encounters he had with victim

J.S. between 2008 and 2010, when J.S. was between the ages of 13 and 16

years old and Appellant was over 40 years old.

        On June 11, 2013, the court determined that Appellant was a sexually

violent predator and sentenced him to an aggregate term of 65 years and

four months to 132 years of state incarceration.         His sentence included a

mandatory minimum sentence for each of his IDSI convictions pursuant to

42     Pa.C.S.    §    9718(a)(1),      which    was   held   unconstitutional   in

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super.2014).

        On June 18, 2013, Appellant filed a timely post-sentence motion,

which the court denied on August 19, 2013. On May 15, 2014, this Court

affirmed Appellant’s judgment of sentence, and the Pennsylvania Supreme

Court denied his petition for allowance of appeal on September 24, 2014.

Appellant did not file a petition for a writ of certiorari with the Supreme

Court of the United States, and his judgment of sentence became final on

____________________________________________


4
    18 Pa.C.S. § 3125(a)(8).
5
    18 Pa.C.S. § 6301(a)(1).
6
    18 Pa.C.S. § 3126(a)(8).
7
    18 Pa.C.S. § 6310.1(a).



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December 23, 2014. See 42 Pa.C.S. § 9545 (b)(3) (“For purposes of this

subchapter, a judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.”); Supreme Court Rule 13.

       On November 20, 2015, Appellant filed a timely pro se PCRA petition.

See 42 Pa.C.S. § 9545(b)(1). The PCRA court appointed counsel, who filed

an amended PCRA petition on January 15, 2016. On February 5, 2016, the

PCRA court conducted a hearing on Appellant’s claims, including claims of

ineffective assistance of trial counsel. On March 28, 2016, the PCRA court

granted Appellant’s petition by vacating his judgment of sentence due to the

illegal mandatory minimum sentences imposed. The PCRA court also denied

and dismissed Appellant’s PCRA petition in all other respects. On April 29,

2016, the court resentenced Appellant to an aggregate term of 586 months

(48.83 years) to 1,992 months (166 years) of state incarceration.

       On May 20, 2016, the court granted Appellant’s motion to have his

appellate rights re-instated nunc pro tunc so that he could appeal the PCRA

order of March 28, 2016.          On May 24, 2016, Appellant filed a notice of

appeal and a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).8 Appellant raises the following issue for our review:

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8
 The motion to reinstate appellate rights nunc pro tunc was dated May 20,
2016, but the Clerk of Courts did not enter the order on the docket until
(Footnote Continued Next Page)


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          WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
          IMPEACH THE ONLY EYEWITNESS AGAINST [APPELLANT]
          ON THE GROUNDS OF PRIOR INCONSISTENT TESTIMONY
          WHICH WOULD HAVE MADE HER VERSION OF EVENTS
          IMPOSSIBLE DUE TO [APPELLANT’S] INCARCERATION AND
          FOR FAILING TO STATE THE RELEVANCE OF J.S.’S
          ALLEGATIONS AGAINST OTHER MEN? ALTERNATIVELY
          STATED, WAS TRIAL COUNSEL INEFFECTIVE FOR
          PRODUCING    EVIDENCE   OF   [APPELLANT’S]  PRIOR
          INCARCERATION BUT THEN FAILING TO SHOW THE
          EXCULPATORY NATURE OF SAID INCARCERATION AND
          FOR FAILING TO ASSERT THE RELEVANCE OF J.S.’S
          ALLEGATIONS AGAINST OTHER MEN?

Appellant’s Brief at 5.

      Preliminarily, the PCRA court order which granted Appellant’s PCRA

petition as it pertained to sentencing and denied it in all other respects was

a final and appealable order.9          See Commonwealth v. Gaines, 127 A.3d

15, 17–18 (Pa.Super.2015) (en banc) (plurality) (“there can be no serious

dispute that the order granting in part and denying in part all the issues

raised in the PCRA petition finally disposed of Appellant’s PCRA petition

[where] Appellant’s PCRA petition raised several claims, each seeking either
                       _______________________
(Footnote Continued)

June 1, 2016, after Appellant filed his appeal. We consider Appellant’s
appeal perfected at the time the Clerk of Courts entered the order on the
docket.    See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”).
9
  The PCRA court did not expressly reinstate Appellant’s direct appeal rights;
it merely corrected an illegal sentence. Cf. Commonwealth v. Miller, 868
A.2d 578, 580 (Pa.Super.2005) (Generally, when a PCRA court order re-
instates a petitioner’s direct appeal rights, it may not reach the merits of the
remaining claims, including claims of ineffectiveness. “The PCRA court may
inquire, but its inquiry [cannot] result in an appealable disposition.”).



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a new trial or resentencing [and t]he PCRA court granted one sentencing

claim and denied all claims for a new trial…. Under a plain, straightforward

application of Rule 910, the PCRA court’s order was a final one.”).    Thus,

Appellant’s appeal of the dismissal of his PCRA petition regarding his

ineffective assistance of counsel claim is properly before us, and we shall

proceed to address the merits of his claim.

     Appellant argues his counsel was ineffective for failing to adequately

impeach his victim regarding the dates of the sexual assaults and for failing

to cross-examine his victim regarding her sexual contact with other men.

He claims counsel’s actions were prejudicial because counsel failed to give

the jury any reason to question the credibility of his victim, who was the

only witness against him. Appellant concludes he is entitled to a new trial

with new counsel. We disagree.

     We observe the following standard of review:

        [W]hen examining a mixed question of law and fact, the
        level of deference afforded to the court is analyzed on an
        issue-by-issue basis. Commonwealth v. Martin, 5 A.3d
        177, 197 ([Pa.]2010). As this Court has reasoned, “Where
        the legal issues predominate in mixed questions of law and
        fact, [appellate courts] review the question de novo.
        However, where the analysis is primarily a factual one, the
        trial court’s findings of fact are binding upon a reviewing
        court, unless those findings were clearly erroneous.”
        Commonwealth v. Santiago, 654 A.2d 1062, 1072
        ([Pa.Super.]1994) (brackets in original) (internal citations
        and quotations omitted). Simply put, “The more fact
        intensive the determination, the more deference a
        reviewing court should afford that conclusion.” Martin,
        supra at 197.


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Commonwealth v. Manahan, 45 A.3d 413, 416 (Pa.Super.2012).

        This Court follows the Pierce10 test to review claims of ineffective

assistance of counsel:

          When a petitioner alleges trial counsel’s ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          ineffective   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. We have
          interpreted this provision in the PCRA to mean that the
          petitioner must show: (1) that his claim of counsel’s
          ineffectiveness has merit; (2) that counsel had no
          reasonable strategic basis for his action or inaction; and
          (3) that the error of counsel prejudiced the petitioner-i.e.,
          that there is a reasonable probability that, but for the error
          of counsel, the outcome of the proceeding would have
          been different. We presume that counsel is effective, and it
          is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

        Regarding Appellant’s contention that his trial counsel was ineffective

for failing to impeach his victim with prior testimony at the preliminary

hearing about the specific dates of her sexual encounters with Appellant and


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10
     Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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bringing to light her previous statement that one of the sexual encounters

occurred while Appellant was incarcerated, the PCRA court reasoned:

         While it is accurate that Attorney Goodrich did not question
         J.S. specifically with regard to her testimony at the
         preliminary hearing about the dates of the offenses, he did
         introduce evidence, by way of Corrections records, to
         challenge her testimony with respect to those dates,
         attempting to show that [Appellant] was unavailable due
         to his incarceration during a considerable period of time
         when J.S. stated that the offenses occurred, specifically
         December 2008 to February 2010. (N.T. 2/5/13, pp. 157-
         160). Moreover, as the Commonwealth was not required
         to prove the dates of the offenses with specificity, given
         the nature of [Appellant’s] course of conduct over a
         lengthy period and the age of J.S., any failure by Attorney
         Goodrich to thoroughly cross-examine J.S. so as to pin
         down specific dates could not have prejudiced [Appellant].
         Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990
         (Pa.Super.2007). As the record reflects, [Appellant] was
         not incarcerated during the bulk of the time period in
         which J.S. testified that the assaults occurred.
         Accordingly, we cannot conclude that this contention has
         merit.

PCRA Court Opinion, filed March 28, 2016, at 4.

      The PCRA court’s findings are supported by the record and not clearly

erroneous. We agree with its determination that Appellant’s contention that

his trial counsel was ineffective for failing to impeach his victim lacks merit,

and the alleged ineffectiveness did not prejudice Appellant.

      Appellant further argues that his trial counsel was ineffective for failing

to cross-examine the victim about her sexual contact with other men. This

claim is devoid of merit.




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      “All relevant evidence is admissible, except as otherwise provided by

law. Evidence that is not relevant is not admissible.” Commonwealth v.

Serge, 896 A.2d 1170, 1190 (Pa.2006) (citing           Pa.R.E. 402).   The

legislature has additionally provided:

         § 3104. Evidence of victim’s sexual conduct

         (a) General rule.--Evidence of specific instances of the
         alleged victim’s past sexual conduct, opinion evidence of
         the alleged victim’s past sexual conduct, and reputation
         evidence of the alleged victim’s past sexual conduct shall
         not be admissible in prosecutions under this chapter
         except evidence of the alleged victim’s past sexual conduct
         with the defendant where consent of the alleged victim is
         at issue and such evidence is otherwise admissible
         pursuant to the rules of evidence.

18 Pa.C.S. § 3104.

      Although § 3104

         does not always preclude evidence the complainant was a
         victim of a prior sexual assault, see Commonwealth v.
         Johnson, 638 A.2d 940, 942 ([Pa.]1994)[, ]the proffered
         evidence must still be relevant and material under the
         rules of evidence. Id. Thus, the question is whether
         allegations of complaints against other persons are
         relevant to the issue at hand: whether the [a]ppellant
         sexually abused the victim.

Commonwealth v. L.N., 787 A.2d 1064, 1069 (Pa.Super.2001).

      The PCRA court found:

         The record reflects that Attorney Goodrich did attempt to
         question J.S. and her mother about the other men by
         whom whe was assaulted around the same time period as
         her assaults by [Appellant], as well as what she told her
         guidance counselor in regard to same. (N.T. 2/5/13, pp.
         59-60, 74-75; N.T. 2/4/13, pp. 32-33). However, the
         [c]ourt ruled that any evidence with respect to sexual

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         assaults by other men was not admissible, as it was not
         relevant pursuant to Johnson, [supra.] and L.N.,
         [supra.], thereby prohibiting Attorney Goodrich from that
         line of questioning. While [Appellant] now contends that
         Attorney Goodrich was ineffective in failing to preserve and
         pursue that issue on appeal, such a claim must fail
         because it has no arguable merit – the ruling prohibiting
         that line of questioning on the grounds of irrelevance was
         proper, and Attorney Goodrich would have gained nothing
         by pursuing an appeal thereof.

PCRA Court Opinion at 5.

      Again, the PCRA court’s findings are supported by the record and not

clearly erroneous. We agree with the PCRA court’s conclusion that the trial

court properly excluded evidence of the victim’s sexual assaults by other

men, and that trial counsel would not have gained favorable results by

appealing the evidentiary ruling. Appellant’s claim lacks merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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