J-S47037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

GERALD CARL LIBERACE

                         Appellant                   No. 44 EDA 2014


             Appeal from the PCRA Order of December 10, 2013
             In the Court of Common Pleas of Delaware County
             Criminal Division at No.: CP-23-CR-0004523-2010


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                          FILED AUGUST 25, 2014

      Gerald Carl Liberace appeals the December 10, 2013 order dismissing

his petition filed pursuant to the Post-                               See

42 Pa.C.S. §§ 9541-46. We affirm.

      The PCRA court has summarized the relevant factual and procedural

history of this case as follows:

         [A] criminal complaint charging [Liberace] with the
         indecent assault of a person less than thirteen years of
         age, endangering the welfare of a child and corruption of
         minors was filed after a Statewide Investigating Grand Jury
         issued a presentment recommending these charges. The

         an eighteen[-]year-old college student[,] testified that in
         August of 2004, when she was twelve years old, she was
         in the care of [Liberace,] her step-father. Her mother was
         away with friends for an overnight stay. This was the first
         time mother and daughter had ever been apart overnight.

         bedroom her mother shared with [Liberace]. She got into
         bed with [Liberace]. He rubbed her back as he had on
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        many occasions when her mother was present. On this
        night however, in addition to rubbing her back he went
                                                           are

        this incident until 2007 after her mother and [Liberace]
        separated and they no longer lived together. In the fall of

        with her father, his wife and their two children. In the
        spring of 2009[,] when [L.H.] was having difficulties in
        school[,] she told her father and her step-mother that

        engaged in counseling with a therapist once a week and
        eventually, in June or July of 2009[,] she relayed the
        details of the 2004 incident to the counselor who made a
        report to law enforcement. L.H. gave a written statement
        at the [police station] and later agreed to participate in a
        consensual telephone intercept.          Three telephone
        conversations between [Liberace] and L.H. that were
        captured on audio tape were played for the jury at trial.

     Trial Court Opinion Direct Appeal, filed 5/31/2011.

     [Liberace] was charged with three counts of indecent assault of a
     person less than thirteen years of age1, endangering the welfare
     of a child2 and corrupting the morals of a minor3. The jury found
     that he was guilty of endangering the welfare of a child and
     corrupting the morals of a minor. On March 29, 2011[,] an
     aggregate sentence of six to twelve months of incarceration to

     direct appeal followed the imposition of judgment of sentence,
     and[,] on May 19, 2011, the Superior Court [of Pennsylvania]
     affirmed
     allowance of appeal was denied by the Pennsylvania Supreme
     Court on July 11, 2012.
           1
                 18 Pa.C.S. § 3126(a)(7).
           2
                 18 Pa.C.S. § 4304(a).
           3
                 18 Pa.C.S. § 6301.

     On July 3, 2013[, Liberace] filed a timely [PCRA] petition and
     thereafter the Commonwealth answered the petition.          After
     reviewing the petition and the record the [PCRA court] concluded
     that there were no genuine issues of material fact and on
     November 6, 2013[,] the [PCRA] court entered an order wherein

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       [Li
       petition without a hearing.        [See Pa.R.Crim.P. 907(1).]        The

       on December 10, 2013, the petition was dismissed without a
       hearing.

PCRA                                                    -3 (record citations omitted).

       On December 26, 2013, Liberace filed a timely notice of appeal. On

February 5, 2014, the PCRA court ordered Liberace to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On February 21, 2014, Liberace timely filed his Rule 1925(b) statement. On

March       28,   2014,   the   PCRA   court    filed    an   opinion   pursuant    to

Pa.R.A.P. 1925(a).

       Liberace presents three issues for our review:

       1. Was [Liberace] denied effective assistance of counsel due to
                                                                     -
          examine the complaining witness with crucial inconsistent
          Grand Jury testimony?

       2. Was [Liberace] denied effective assistance of counsel for the
          failure [of Lib
          jury instructions regarding Endangering the Welfare of
          Children and Corruption of the Morals of a Minor?

       3.
            petition without a hearing?

Brief for Liberace at 3.

       Our review of a PCRA court order dismissing a petition under the PCRA

is subject to the following standard:

       We review an order dismissing a petition under the PCRA in the
       light most favorable to the prevailing party at the PCRA level.
       This review is limited to the findings of the PCRA court and the


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       is supported by evidence of record and is free of legal error.

       the record supports it. 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. Further, where the
       petitioner raises questions of law, our standard of review is de
       novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)

(citations omitted).

       In his first issue, Liberace alleges that his trial counsel provided

inef



Specifically, Liberace alleges the following:

       At the trial, [L.H.] testified that [Liberace] had on ten or more



                                                                did not
       go a

Id. (emphasis in original; record citations omitted).



claim raised under the PCRA, a petitioner must plead and prove by a



the truth determining process that no reliable adjudication of guilt or



       We begin with the presumption that counsel rendered effective
       assistance.  Commonwealth v. Basemore, 744 A.2d 717,
       728 n.10 (Pa. 2000). To obtain relief on a claim of ineffective

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     assistance of counsel, a petitioner must rebut that presumption

     that such performance prejudiced him.            Strickland v.
     Washington, 466 U.S. 668, 687-91 (1984).                 In our
     Commonwealth, we have rearticulated the Strickland
     performance and prejudice inquiry as a three-prong test.
     Specifically, a petitioner must show: (1) the underlying claim is

     action or inactio
     that there is a reasonable probability that the result of the
     proceeding would have been different absent such error.
     Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citations



any of the Pierce prongs, the Court need not address the remaining prongs

                 Commonwealth v. Fitzgerald, 979 A.2d 908, 911

(Pa. Super. 2009).




     It is apparent from the notes of testimony from the Grand Jury
     proceedings that [L.H.] was describing different events: first,
     events that occurred on one night in August of 2004 when her

     where [L.H.] spent time in bed with her mother and [Liberace]

     near the top of the crack of her buttocks, but not on the middle
     of her buttocks.

P.C.O. at 7-8 (record citations omitted). We have reviewed the record and

                                 ization. Because it is based upon a clear




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lacks arguable merit, and he has failed to establish the first prong of the

Pierce                                                                llegation

necessarily fails.



ineffective assistance in failing to demand that the trial judge fully instruct

                                                                            or

Liberace at 16. Specifically, Liberace alleges the following:

      As to the offense of Corruption of the Morals of a Minor, the trial
      judge should have been requested to tell the jury that, as to
      what actions might corrupt the morals of a minor, the
      Commonwealth would have to prove that [Liberace] committed

      and the sense of decency, propriety, and morality which most
                            Commonwealth v. Smith, 863 A.2d
      1172, 1177 (Pa. Super. 2004); Commonwealth v. Slocum,
      86 A.3d 272, 277 (Pa. Super. 2014); Commonwealth v.
      Decker, 698 A.2d 99, 101 (Pa. Super. 1997).

      As to the charge of Endangering the Welfare of Children, the trial
      judge did instruct the jury that the Commonwealth had to prove
      beyon

      have also requested that the jury be charged that the
      Commonwealth must prove that [Liberace] was aware of the
      duty to keep this child safe and to act in a way that would



Id. at 16-17 (citations modified). In the instant case, there is no indication



that there is a reasonable probability that the result of the trial would have

been different absent such error. Pierce, 527 A.2d at 975.




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      To convict a defendant of corruption of the morals of a minor, the



conduct satisfied the following definition:

      [W]hoever, being of the age of 18 years and upwards, by any
      act corrupts or tends to corrupt the morals of any minor less
      than 18 years of age, or who aids, abets, entices or encourages
      any such minor in the commission of any crime, or who
      knowingly assists or encourages such minor in violating his or
      her parole or any order of court, commits a misdemeanor of the
      first degree.

18 Pa.C.S. § 6301(a)(1)(i). Regarding that charge, the trial court instructed

the jury as follows:

      [Liberace] has been charged with corrupting a minor. To find
      [Liberace] guilty of this offense, you must find that each of the
      following three elements [has] been proven beyond a reasonable
      doubt. First, that [Liberace] was 18 years of age or older at the
      time of the incident giving rise to the charge. Second, that
      [L.H.] was under [eighteen] years of age at the time. And,
      third, that [Liberace] corrupted or tended to corrupt the morals
      of [L.H.] by the following alleged conduct, touching her buttocks
      or touching her vaginal area or exposing his penis.

                                                                          -20.



                                                          ting SSJI (Crim)

15.6301A).

                                                                    -specific

circumstances required the court to clarify whether a given act might



argument as follows:

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      Our appellate courts have at times considered the sufficiency of
      the evidence to determine whether the Commonwealth had met
      its burden of proving that a defendant had committed particular
      acts that tended to corrupt the morals of a minor. See, e.g.,
      Smith, 863 A.2d at 1177, Commonwealth v. DeWalt, 752
      A.2d 915, 918-19 (Pa. Super. 2000); Commonwealth v. Todd,
      502 A.2d 631, 635-36 (Pa. Super. 1985). In assessing the
      sufficiency of the evidence[,] the Superior Court has explained
                            ded to corrupt the morals of a minor were

      and the sense of decency, propriety and morality which most
                             Decker, 698 A.2d at 101. However, a
      finding that the particular acts perf
      the common sense of the community and the sense of decency,

      not an element of the offense and it has not been so designated
      by caselaw. In this case, further explanation to elucidate or to
      describe which acts tend to corrupt the morals of a minor . . .
      was unnecessary where [L.H.] testified that [Liberace] touched
      her buttocks and vaginal areas and exposed his penis. The
      corrupting nature of these acts is obvious given the facts and
      circumstances of this case where it was alleged that [L.H.] was
                         -]year-old step-daughter.

P.C.O. at 13-14. We agree. Pennsylvania law simply does not require jury

instructions that wander so far afield of the elements of the offense at issue.

      Even assuming arguendo that this issue had arguable merit, and that

counsel lacked a reasonable basis for not seeking the desired instruction,



prejudice, Liberace must show that, had the jury been provided with



probability that it would have determined that a grown man touching the

buttocks and vagina of his twelve-year-old stepdaughter in the manner and

circumstances described abov



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community, and the sense of decency, propriety, and morality which most



upon that finding.    Commonwealth v. Slocum, 86 A.3d 272, 277 (Pa.

Super. 2014). We cannot so conclude, given the evidence in this case and




a child also fails for want of prejudice.   Section 4304 of the Pennsylvania



      Offense defined.

      (1) A parent, guardian or other person supervising the welfare
      of a child under 18 years of age, or a person that employs or
      supervises such a person, commits an offense if he knowingly
      endangers the welfare of the child by violating a duty of care,
      protection or support.

18 Pa.C.S. § 4304(a)(1).

      The trial court instructed the jury as follows:

      To find [Liberace] guilty of this offense, you must find that each
      of the following elements has been proven beyond a reasonable
      doubt. First, that [Liberace] endangered the welfare of [the]
      child by violating a duty of care, protection or support. Second,
      that [Liberace] endangered the welfare of the child knowingly. A

      practically certain that his or her conduct will cause a particular
      result. Third, that [Liberace] was at the time a parent, guardian,
      person supervising the welfare of that child under the age of 18,
      or a person employed [sic] or supervised such a person. Fourth,
      that the child was under the age of 18 years at the time of the
      endangering.




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N.T.V. at 20.   The PCRA court noted that this instruction also tracks the

Suggested Standard Jury Instruction nearly verbatim. P.C.O. at 14 (citing

SSJI (Crim) 15.4304A (Crim) A).

     Liberace contends, in addition to the charge that was given (with



the jury be charged that the Commonwealth must prove that [Liberace] was

aware of the duty to keep this child safe and to act in a way that would



prejudice, Liberace must plead and prove that, had the jurors been provided



probability that the jury would have determined that Liberace was not aware

of his duty to care for his twelve-year-old stepdaughter while his wife was

away, and would have acquitted Liberace based upon that finding.

     The PCRA court responded to this specious argument as follows:

     The [c]ourt instructed that the Commonwealth bore the burden
     of proving that [Liberace] endangered the welfare of a child by
     violating a duty of care, protection or support and that he did so
     knowingly. Read as a whole and in a common[-]sense manner
     this instruction accurately instructed the jury as to the elements
     of this offense. Furthermore, any claim that [Liberace] suffered
     prejudice as a result of the alleged deficiency is patently
                                              -father and [she] was in

     convicted occurred.

P.C.O. at 15. We agree. We cannot conclude that any reasonable juror, if



concluded that Liberace might not have been aware of the duty in question

                                   - 10 -
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not to touch a twelve-year-old stepdaughter in a sexual manner          such that

he could not be convicted of knowingly having endangered the welfare of a

child.




charges caused prejudice, even if the instructions in question were amenable

of challenge, an unlikely proposition indeed.           There is no reasonable

probability that the result of the trial would have been different had the trial

court instructed the jury as Liberace would have preferred.               Pierce,

527 A.2d at 975. Because Liberace has failed to establish the third prong of

the Pierce test with respect to either of these challenges, his second IAC

claim fails.

         In his third and final issue, Liberace alleges that the PCRA court erred



            . . . sufficient facts and laws that would have warranted an



                                        t a hearing is as follows:

         If the judge is satisfied from this review [of the petition] that
         there are no genuine issues concerning any material fact and
         that the defendant is not entitled to post-conviction collateral
         relief, and no purpose would be served by any further
         proceedings, the judge shall give notice to the parties of the
         intention to dismiss the petition and shall state in the notice the
         reasons for the dismissal.




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Pa.R.Crim.P. Rule 907(1). As noted above, in reviewing the dismissal of a

PCRA p

                                                               Rykard, 55 A.3d

at

petition, and if the PCRA court can determine from the record that no



Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).



record demonstrates that [Liberace] is not entitled to relief and there are no

genuine issues of fact that would entitle [Liberace] to relief if resolved in his



                             upported by the facts of record and free of legal

error. Rykard

is based upon a material and fatal mischaracterization of the testimony of

                                                           harge fails because



caused prejudice such that there is a reasonable probability that the result of

the trial would have been different absent such error. Thus, the PCRA court

pr                                                                  Rykard, 55

A.3d at 1183.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




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