Com. v. Gerkin, M. ( 2024 )

J-S34044-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK GERKIN :
:
Appellant : No. 1284 WDA 2023
Appeal from the Judgment of Sentence Entered September 26, 2023
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001777-2022
BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: November 27, 2024
Mark Gerkin appeals from the September 26, 2023 aggregate judgment
of sentence of 25 to 50 years’ imprisonment, followed by 3 years’ probation,
imposed after a jury found him guilty of corruption of minors, unlawful contact
with a minor, indecent assault without complainant’s consent, and indecent
assault of a complainant less than 16 years of age.1 After careful review, we
affirm the judgement of sentence.
The trial court summarized the relevant facts of this case, as gleaned
from the trial testimony, as follows:
[V.S. (hereinafter, “the victim”),] testified that
Appellant, her mother’s boyfriend, slapped her butt on
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6301(a)(1)(ii), 6318(a)(1), and 3126(a)(1) and (8),
respectively.
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more than one occasion. [The victim] testified that
these incidents occurred two years ago, when she was
15 years old. [The victim] further testified that on
February 4, 2022, Appellant entered her room without
knocking while she was not wearing a shirt. Appellant
left the room but returned approximately 5-10
minutes later. This time Appellant grabbed [the
victim’s] breast and told her she was “filling out
nicely.” Appellant said that he watched her sleeping
and that he had seen her asleep with her shirt lifted
and her breasts exposed. [The victim] went to her
friend’s home for the weekend and disclosed these
incidents to that friend, who contacted the police.
[The victim] wrote a letter to her mother about
Appellant’s conduct and gave it to her mother the
following Monday. Weeks or perhaps months later,
[the victim] wrote another letter, this time recanting
her disclosure. [The victim] testified that she wrote
the letter because she was afraid that she would have
to testify, and she did not want her mother to get in
any trouble.
Trial court opinion, 2/28/24 at 3 (citations to notes of testimony omitted).
Appellant was arrested in connection with these incidents and charged
with corruption of minors, unlawful contact with a minor, and two counts of
indecent assault. Appellant proceeded to a jury trial on June 27, 2023 and
was found guilty of the aforementioned offenses the following day. As noted,
the trial court sentenced Appellant to an aggregate term of 25 to 50 years’
imprisonment, followed by 3 years’ probation, on September 26, 2023.2
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2 The record reflects that given Appellant’s prior conviction for sexual battery
in the state of Florida, these instant convictions constituted a mandatory
second strike and Appellant was subject to a “minimum sentence of at least
25 years of total confinement.” See 42 Pa.C.SA. § 9718.2(a).
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Appellant did not file any post-sentence motions. This timely appeal followed
on October 26, 2023.3
Appellant raises the following issue for our review:
I. Whether the trial court abused its discretion in
excluding testimony regarding [the victim’s]
mental health history when the privilege did not
apply or the Commonwealth opened the door,
thereby, removing any privilege?
Appellant’s brief at 5.
Generally, “[q]uestions concerning the admissibility of evidence lie
within the sound discretion of the trial court, and a reviewing court will not
reverse the court’s decision on such a question absent a clear abuse of
discretion.” Commonwealth v. Crosley, 180 A.3d 761, 768 (Pa.Super.
2018) (citation omitted), appeal denied, 195 A.3d 166 (Pa. 2018). “An
abuse of discretion may not be found merely because an appellate court might
have reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Commonwealth v. Bullock, 170
A.3d 1109, 1126 (Pa.Super. 2017) (citation omitted), appeal denied, 184
A.3d 944 (Pa. 2018).
The scope of cross-examination is addressed in Pennsylvania Rule of
Evidence 611(b), which provides as follows: “Cross-examination of a witness
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3 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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other than a party in a civil case should be limited to the subject matter of the
direct examination and matters affecting credibility; however, the court may,
in the exercise of discretion, permit inquiry into additional matters as if on
direct examination.” Pa.R.E. 611(b). “Cross-examination may be employed
to test a witness’ story, to impeach credibility, and to establish a witness’s
motive for testifying. The scope of cross-examination is a matter within the
discretion of the trial court and will not be reversed absent an abuse of that
discretion.” Commonwealth v. Ballard, 80 A.3d 380, 394 (Pa. 2013)
(citation and quotation marks omitted), cert. denied, 573 U.S. 940 (2014).
Upon review, we find Appellant’s claim that the trial court abused its
discretion by limiting the scope of his cross-examination of the victim with
regard to her mental health is belied by the record. At trial, Appellant’s
counsel attempted to question the victim as to the state of her mental health
at the time she wrote her July 13, 2022 recantation letter, and the
Commonwealth objected. See notes of testimony, 6/27-28/23 at 79-82. As
noted by the trial court, “[a]t that point in the trial, no evidence had been
admitted that [the victim] had a mental health history and trial counsel had
not filed a motion in limine to address this issue.” Trial court opinion, 2/28/24
at 3 (citation and footnote omitted). The record reflects that although the trial
court initially sustained the Commonwealth’s objection on this basis, see
notes of testimony, 6/27-28/23 at 80, the court later reversed its ruling after
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reviewing the victim’s recantation letter and determining that it referenced
the state of her mental health when she wrote the letter:
THE COURT: I’m reading through the letter here. The
reference to mental health is very, very vague in here,
and it doesn’t entail anything about her having a
history of a mental health diagnosis or treatment or
anything like that. She just is indicating that she felt
a lot of stress and pressure. I would reverse my earlier
ruling. I think it is fair cross examination given this
letter.
Id. at 84-85.
Based on the foregoing, it is evident that Appellant’s counsel was in fact
given the opportunity to cross-exam the victim with regard to her mental state
at the time she wrote her recantation letter, following the trial court’s initial
ruling precluding him from doing so. Id. at 87. Appellant’s claim to the
contrary misconstrues what actually transpired at trial and is devoid of merit.
Accordingly, we affirm the September 26, 2023 judgment of sentence.
Judgment of sentence affirmed.
DATE: 11/27/2024
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