J-S06045-16

                                2016 PA Super 195



COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

CHAD D. BENNER,

                          Appellant                   No. 40 MDA 2015


              Appeal from the Order Entered November 21, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0003805-2010


BEFORE: PANELLA, J., MUNDY, J., AND STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                         FILED AUGUST 31, 2016

      Appellant Chad D. Benner files this pro se appeal from the order

entered by the Court of Common Pleas of Luzerne County denying

Appellant’s petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

      In 2010, Appellant was charged in connection with allegations of

sexual assault made by C.H., the younger sister of Appellant’s former

girlfriend.   The following factual background was developed at a jury trial

held on April 13, 2011:       C.H. testified that she first had contact with

Appellant when her sister had moved into an apartment with Appellant,

which occurred in July 2002. C.H. began to visit the apartment and babysit

her sister’s son while her sister and Appellant were at work. At that time,

Appellant was twenty-nine and C.H. was fourteen.
*Former Justice specially assigned to the Superior Court.
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      C.H. testified that her relationship with Appellant became increasingly

more uncomfortable as time passed.        She indicated that first, Appellant

would compliment her looks and tell her that he would like to kiss and touch

her. Although C.H. indicated that she told Appellant to stop and would not

respond to his advances, Appellant began to show her physical affection like

extended hugs and back rubs. C.H. recalled a time where Appellant came

up behind her, wrapped his arms around her waist, and kissed her neck. As

time passed, Appellant’s behavior progressed to include sexual advances,

including touching C.H.’s breasts and thighs.   C.H. would tell Appellant to

stop this behavior and tried to leave or move to another room.          C.H.

revealed she did not tell her sister as she was afraid her sister would be

disgusted and ashamed of her.

      C.H. remembered that she was fourteen years old the first time

Appellant forced her to have oral sex. She recalled that she was laying on

the couch in her sister’s apartment when Appellant unexpectedly sat on her

chest, pinned her down, and forced his penis into her mouth. C.H. panicked

and struggled to get free, but was unable to get away before Appellant

ejaculated.   She did not remember what month this assault occurred, but

indicated there were additional times where Appellant pressured her to give

him oral sex or to allow him to perform oral sex on her. As time went on,

C.H. stopped struggling when Appellant would approach her to have sexual

contact as he would tell her that she was pretty and seemed to show

romantic feelings for her.

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      Appellant continued the sexual assaults on occasions when he could be

alone with C.H.; the sexual abuse only stopped when C.H.’s sister broke up

with Appellant for unrelated reasons in September 2004.          Although the

assaults began in 2002, C.H. refrained from telling anyone about the abuse

for several years. In 2006, C.H. first shared the details of her sexual contact

with her then boyfriend, who is now her husband. In 2008, C.H. revealed

the abuse to her parents, who contacted authorities.

      In the criminal information, the Commonwealth alleged that Appellant

committed the relevant crimes between July 2002 and September 2004. On

April 14, 2011, a jury convicted Appellant of Involuntary Deviate Sexual

Intercourse (“IDSI”) and three counts of indecent assault.     The trial court

sentenced Appellant to a mandatory minimum sentence of ten to twenty

years’ incarceration for the IDSI conviction pursuant to 42 Pa.C.S. § 9714,

based on Appellant’s prior sodomy conviction. The trial court also sentenced

Appellant to consecutive terms of one to two years imprisonment for each of

the indecent assault convictions, rendering an aggregate sentence of

thirteen to twenty-six years’ imprisonment. Appellant filed a post-sentence

motion which the trial court subsequently denied.

      On September 13, 2012, this Court vacated Appellant’s sentence,

agreeing that there was insufficient evidence to support one of the indecent

assault convictions.   Upon remand, Appellant was resentenced by the trial

court on September 12, 2013, to an aggregate sentence of twelve to

twenty-four years imprisonment with credit for time served.

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      On March 31, 2014, Appellant filed the instant pro se PCRA petition,

claiming, inter alia, that he was denied due process as the Commonwealth

failed to prove the commission of offenses charged upon a date fixed with

reasonable certainty as dictated by Commonwealth v. Devlin, 460 Pa.

508, 333 A.2d 888 (1975).           The PCRA court appointed counsel, Jeffrey

Yelen, Esq., who filed a brief in support of Appellant’s pro se petition. After

a hearing, the PCRA court filed an order on November 21, 2014, denying

Appellant’s petition.

      On December 18, 2014, Appellant filed a pro se notice of appeal.

Appellant also filed a motion with the PCRA court to reconsider the dismissal

of his petition, arguing that PCRA counsel was ineffective in failing to

adequately argue his claim pursuant to Devlin. Appellant asked that Atty.

Yelen withdraw his representation and requested the appointment of

“competent counsel” or permission to file a pro se appeal.

      On December 22, 2014, Atty. Yelen filed a notice of appeal on

Appellant’s behalf along with a motion for the appointment of conflict

counsel.     The PCRA court allowed Atty. Yelen to withdraw and appointed

substitute counsel Mary V. Deady, Esq., who filed a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).          On May 22,

2015, Appellant filed an Application for Relief in this Court, seeking to

proceed pro se, claiming Atty. Deady ignored his request to preserve his

challenge under Devlin. On June 9, 2015, this Court issued a per curiam

order,     directing   the   PCRA   Court   to   hold   a   hearing   pursuant   to

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Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) to determine

whether Appellant’s waiver of counsel was knowing, intelligent, and

voluntary.

      On June 17, 2015, the PCRA court filed an order and opinion

responding to Appellant’s counseled 1925(b) statement. The PCRA court did

not address Petitioner’s desired claim under Devlin, but did find that trial

counsel had a reasonable basis for not admitting the disputed letters to

challenge C.H.’s motive as Appellant would have opened the door to a

discussion of his prior conviction for sexual assault.   The PCRA court then

transmitted the certified record to this Court.

      On June 22, 2015, the PCRA court held a Grazier hearing and

determined that Appellant understood that he was waiving his right to

representation by counsel and acknowledged he will be required to raise his

potential claims in a timely manner complying with all procedural rules. Trial

Court Order, 6/23/15, at 1. Accordingly, the PCRA court granted Appellant’s

request to proceed pro se.

      Appellant filed a brief in this Court, reiterating his claim that PCRA

counsel was ineffective in failing to argue that the Commonwealth was

required to prove with reasonable certainty the date the offense occurred

pursuant to the Supreme Court’s decision in Devlin.       Although the PCRA

court conducted a Grazier hearing and granted Appellant the right to

proceed pro se, its previously filed opinion did not address Appellant’s claim

based on Devlin.     Accordingly, we remanded to the PCRA court for the

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preparation of a supplemental opinion addressing this claim. After remand,

the parties have submitted additional briefs to address the claim Appellant

wishes to raise and this appeal is ready for disposition.

      Our standard of review regarding an order dismissing a petition under

the PCRA is as follows:

      This Court analyzes PCRA appeals in the light most favorable to
      the prevailing party at the PCRA level. Our review is limited to
      the findings of the PCRA court and the evidence of record and we
      do not disturb a PCRA court's ruling if it is supported by evidence
      of record and is free of legal error. Similarly, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.
      However, we afford no such deference to its legal conclusions.
      Where the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary. Finally, we
      may affirm a PCRA court's decision on any grounds if the record
      supports it.

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)

(citations omitted).   In order to be eligible for PCRA relief, the petitioner

must prove by a preponderance of the evidence that his conviction or

sentence resulted from one or more of the enumerated circumstances found

in Section 9543(a)(2), which includes the ineffective assistance of counsel.

42 Pa.C.S. § 9543(a)(2)(i).

      “It is well-established that 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. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on


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an ineffectiveness claim, the petitioner has the burden to prove that “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Commonwealth v. Sneed, 616

Pa. 1, 18, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 203, 786 A.2d 203, 213 (2001)). The failure to satisfy any one

of the prongs will cause the entire claim to fail. Id.

      As noted above, Appellant’s first claim is that both direct appeal and

PCRA counsel provided ineffective assistance in failing to argue that

Appellant was not properly informed of the charges lodged against him

pursuant to Devlin.      Pointing to the criminal complaint in which the

Commonwealth charged him with IDSI and Indecent Assault for acts

committed between July 2002 through September 2004, Appellant contends

that counsel should have argued that dates of the offenses were not alleged

with sufficient certainty. We disagree as this claim has no arguable merit.

      In Devlin, our Supreme Court held that due process mandates that

the prosecution must fix the date of the commission of the offense with

reasonable certainty. Devlin, 460 Pa. at 513, 333 A.2d at 890-91. In that

case, the prosecution charged the defendant with one count of IDSI for the

sexual assault of an intellectually disabled individual that allegedly occurred

at some point during a fourteen-month period.            The Supreme Court

concluded that the defendant’s right to due process was violated as the

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Commonwealth’s      broad    timeframe    in   which   the   offense   occurred

substantially denied the defendant the opportunity to present an alibi

defense and to attack the victim’s credibility.

      Nevertheless, the Supreme Court acknowledged that it was not

appropriate to fix a bright line rule but allowed for flexibility in this

determination:

      Here, as elsewhere, [t]he pattern of due process is picked out in
      the facts and circumstances of each case. Due process is not
      reducible to a mathematical formula. Therefore, we cannot
      enunciate the exact degree of specificity in the proof of the date
      of a crime which will be required or the amount of latitude which
      will be acceptable.     Certainly the Commonwealth need not
      always prove a single specific date of the crime. Any leeway
      permissible would vary with the nature of the crime and the age
      and condition of the victim, balanced against the rights of the
      accused.

Id. at 515-16, 333 A.2d at 892 (footnote and citations omitted).

      This case can be distinguished from Devlin as that case only involved

one single instance of sexual assault, whereas in this case Appellant was

charged with an ongoing pattern of sexual abuse that spanned several

months.       Appellant took advantage of C.H.’s age and exploited her

insecurity to groom her for sexual contact by complimenting her appearance

and showing physical affection through extended embraces and back rubs.

Appellant was able to escalate his behavior to fondle Complainant’s breasts

and force her to give him oral sex while he pinned her down so she could not

escape. Through his manipulation, Appellant subsequently pressured C.H. to

engage oral sex with him on multiple occasions.        “[T]he Commonwealth


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J-S06045-16



must be afforded broad latitude when attempting to fix the date of offenses

which involve a continuous course of criminal conduct.” Commonwealth v.

Groff, 548 A.2d 1237, 1242 (Pa. Super. 1988).

      More recently, in Commonwealth v. G.D.M, Sr., 926 A.2d 984, 990

(Pa. Super. 2007), we reaffirmed that “the due process concerns of Devlin

are satisfied where the victim ... can at least fix the times when an ongoing

course of molestation commenced and when it ceased.” In the present case,

C.H. was able to testify that Appellant subjected her to an ongoing pattern of

molestation that began when she was fourteen and ended when she was

sixteen. C.H. clearly confirmed that Appellant first began forcing her to have

oral sex when she was fourteen years old. Appellant continued to sexually

assault C.H. until he no longer had access to her when C.H.’s sister ended

her relationship with Appellant in September 2004.

      Moreover, at trial, the Commonwealth presented evidence to narrow

the timeframe during which Appellant’s course of sexual assault began. The

prosecutor introduced the testimony of C.H.’s sister, who testified that she

began living with Appellant in July 2002. Appellant’s advances toward C.H.

quickly escalated from hugs and back rubs to inappropriate touching and

forcible oral sex when C.H. was still fourteen years old. C.H. clearly testified

that she remembered her first sexual encounter with Appellant occurred

when she was fourteen.      As C.H. turned fifteen on January 6, 2003, the

Commonwealth clarified that Appellant committed IDSI and indecent assault




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J-S06045-16



with fourteen-year-old C.H. within an approximate six-month period (July

2002 to early January 2003).

        Accordingly, we conclude Appellant was not deprived due process by

the Commonwealth’s inability to fix the time of the offenses that occurred in

a continuous course of conduct with greater specificity. Counsel cannot be

deemed ineffective in failing to pursue a meritless claim. Groff, 548 A.2d at

1243.     Thus, we reject Appellant’s claim that he was denied effective

assistance of counsel when his attorneys refused to raise a claim under

Devlin.

        Appellant’s second claim is that direct appeal and PCRA counsel were

ineffective in failing to pursue Appellant’s claim that trial counsel should

have thoroughly cross-examined C.H.’s sister with respect to letters she

wrote to Appellant while he was in jail. Appellant alleges that “information

found in the content of these letters in question could have reasonably

supported a defense allegation that [C.H.] was charging [A]ppellant with

these offenses to help her sister obtain full custody of a child that

[A]ppellant fathered with [C.H.’s sister].” Appellant’s Brief, at 27.

        At the PCRA hearing, Appellant’s trial counsel, Atty. Jonathan Donovan

testified that he was aware of the letters and indicated to Appellant that the

correspondence did not show that C.H. was willing to fabricate false

allegations of sexual assault to help her sister deprive Appellant of custody

of his child.   Atty. Donovan indicated that he was also concerned about

introducing the letters into evidence, as the writings contained references to

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J-S06045-16



the fact that Appellant was serving a term of incarceration for a prior

convictions of sodomy and unlawful contact with a child. Fearing that this

information would undermine Appellant’s defense, Atty. Donovan made a

strategic decision not to cross-examine the witness as to the contents of the

letter as to prevent her from testifying that she wished to keep her son away

from Appellant due to his prior convictions for improper sexual contact with

a child. As Appellant failed to show that trial counsel lacked a reasonable

basis for his strategy, his ineffectiveness claim must fail.

        Accordingly, we conclude that the PCRA court did not err in rejecting

Appellant’s ineffectiveness claims and dismissing his petition.

        Order affirmed.


        Judge Mundy did not participate in the consideration or decision of this
case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2016




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