Com. v. Liberace, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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