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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


*
    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Commonwealth           v.    Kerrick,     No.    1125   MDA   2014,   unpublished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
____________________________________________


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
____________________________________________


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

____________________________________________


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

____________________________________________


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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