Com. v. Branch, J.

• Court: Superior Court of Pennsylvania
• Decided: March 2, 2022
• Docket: 192 EDA 2021
• Status: Unpublished

Opinion

J-S33034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JERRY BRANCH : : Appellant : No. 192 EDA 2021

Appeal from the PCRA Order Entered December 17, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002170-2014

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 2, 2022

Jerry Branch appeals the denial of his petition for relief under the Post

Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. He

maintains that the PCRA court erred in concluding that his claims of

ineffective assistance of trial counsel were meritless. We affirm.

On June 16, 2016, a jury found Branch guilty of involuntary deviate

sexual intercourse, sexual assault, and corruption of minors.1 The evidence

at trial established that Branch, who was a friend of the victim’s family,

sexually assaulted the minor victim, J.K., on five separate occasions. The

trial court sentenced Branch to an aggregate term of 15 to 35 years’

imprisonment. This Court affirmed the convictions but remanded for

resentencing. See Commonwealth v. Branch, 190 A.3d 744 (Pa.Super.

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1 18 Pa.C.S.A. §§ 3123(a)(7), 3124.1, and 6301(a)(1), respectively. J-S33034-21

April 26, 2018) (Table). Upon remand, the trial court sentenced Branch to 10

to 35 years’ imprisonment, on November 19, 2018.

On November 14, 2019, Branch filed the instant counseled PCRA

petition raising claims of ineffective assistance of counsel. The PCRA court

denied the petition, concluding that it was meritless. This timely appeal

followed.

Branch presents the following issues before this Court:

I. Did the PCRA court err in not finding trial counsel ineffective where trial counsel failed to object when a detective testified that [Branch] declined to give a statement in violation of [Branch’s] right to silence under both the United States and Pennsylvania Constitutions?

II. Did the PCRA court err in not finding that prior counsel was ineffective for failing to object to inadmissible hearsay by four separate “prompt complaint” witnesses where: (1) the complainant did not disclose the alleged assaults until years after the fact; and (2) where the testimony of the four witnesses was cumulative and highly prejudicial?

III. Did the PCRA court err in concluding that trial counsel was not ineffective for failing to properly authenticate text messages sent from the victim to [Branch], thereby preventing [Branch] from introducing the messages into evidence, where the messages would have impeached the complainant’s claim he did not contact [Branch] after the abuse ended?

IV. Did the PCRA court err in concluding that trial counsel was not ineffective for failing to investigate and call witnesses at [Branch’s] trial where the witnesses would have established that the complainant was abusing alcohol and drugs long before the alleged abuse began, thereby rebutting

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the Commonwealth’s claims that the abuse drove J.K. to drug and alcohol addiction and provided corroboration that J.K.’s allegations were true?

Branch’s Br. at 4-5 (answers of trial court omitted).

When reviewing the denial of a PCRA petition, we “determine whether

the PCRA court’s findings of fact are supported by the record, and whether

its conclusions of law are free from legal error.” Commonwealth v. Small,

238 A.3d 1267, 1280 (Pa. 2020). Our standard of review of the PCRA court’s

legal conclusions is de novo, while our “scope of review is limited to the

findings of the PCRA court and the evidence of record[.]” Id.

Counsel is presumed effective, therefore a petitioner must plead and

prove the following to succeed on a claim of ineffective assistance of

counsel: “(1) [the] underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate [the petitioner’s] interests; and, (3) but for counsel's

ineffectiveness, there is a reasonable probability that the outcome of the

challenged proceeding would have been different.” Commonwealth v.

Fulton, 830 A.2d 567, 572 (Pa. 2003). An ineffectiveness claim will only be

successful where the petitioner satisfies each prong. Commonwealth v.

Daniels, 963 A.2d 409, 419 (Pa. 2009).

Branch argues that counsel was ineffective for failing to object, seek a

mistrial, or ask for a cautionary instruction when a detective testified, on

defense counsel’s cross-examination, about Branch’s post-arrest silence. The

referenced portion of testimony is as follows:

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Q [Defense Counsel]: You arrested Mr. Branch?

A [Detective Justin Montgomery]: Yes, sir.

Q: When you arrested him, did he run?

A: No, he did not, sir.

Q: Did he fight you?

A: No. No, sir.

Q: Did he punch at you and try to stop from being arrested?

A: No, sir.

Q: So he didn’t exhibit – I’ll take that question back. Was he compliant with everything?

A: Yes, sir. He was afforded – also afforded the opportunity to provide a statement, which he denied, sir.

Q: He didn’t have an attorney at the time; did he?

A: Correct, sir.

N.T. Trial, 6/14/16, at 200-01.

A prosecutor may not comment on or attempt to elicit testimony about

a defendant’s post-arrest silence. See Commonwealth v. Turner, 454

A.2d 537, 539-40 (Pa. 1982). Defense counsel’s failure to object to such

commentary or questioning may support an ineffectiveness claim. See

Commonwealth v. Spotz, 870 A.2d 822, 831 (Pa. 2005).

Branch compares his case to Commonwealth v. McEnany, 667 A.2d

1143 (Pa.Super. 1995), and argues that his underlying claim has arguable

merit. In McEnany, the prosecutor explicitly inquired into McEnany’s post-

arrest silence. The prosecutor asked an officer whether McEnany gave a

statement after being advised of his constitutional rights. The officer

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responded, “No, sir, [he] did not.” Id. at 1150. A panel of this Court

concluded that the Commonwealth “presented direct evidence of

[McEnany’s] post-arrest silence,” and the testimony the offending question

elicited “was an improper reference to [McEnany’s] exercise of his

constitutional privilege from which the jury might infer an admission of

guilt.” Id. at 1151.2

The PCRA court concluded that Branch’s ineffectiveness claim was

meritless. It concluded that “[t]rial counsel had an objectively reasonable

basis for not objecting to this passing reference because an objection would

have called attention to [Branch’s] failure to give a statement to police.”

PCRA Ct. Op., filed 4/14/21, at 6.

The PCRA court’s rejection of this claim was not erroneous. Branch’s

reliance on McEnany is misplaced. Here, the prosecutor did not comment on

or elicit testimony about Branch’s post-arrest silence. Rather, in response to

questioning that did not on its face seek such testimony, the detective

volunteered that Branch did not make a statement. Branch has not shown

that counsel’s decision not to highlight the testimony was unreasonable.

Next, Branch claims trial counsel was ineffective for failing to object to

the testimony of four “prompt complaint” witnesses as inadmissible hearsay.

2McEnany has been abrogated on other grounds. See Commonwealth v. Prater, 256 A.3d 1274, 1286 (Pa.Super. 2021) (recognizing abrogation), appeal denied, No. 317 EAL 2021, 2021 WL 5629075 (Pa. Dec. 1, 2021).

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Branch maintains that the testimony was not prompt complaint testimony

because, according to Branch, the victim told the witnesses “about the abuse

anywhere from one to seven years after the last assault allegedly took

place[.]” Branch’s Br. at 29.

Hearsay is an out of court statement entered for the truth of the

matter asserted and is generally inadmissible over objection unless a

hearsay exception applies. See Pa.R.E. 801(c), 802. Pennsylvania Rule of

Evidence 613(c)(1) permits evidence of prior consistent statements to rebut

an express or implied charge of “fabrication, bias, improper influence or

motive, or faulty memory.” Pa.R.E. 613(c)(1). As applied to a sexual assault

case, the Rule allows the Commonwealth to present evidence in its case-in-

chief to show a prompt complaint by the victim. Commonwealth v.

Bryson, 860 A.2d 1101, 1104 (Pa.Super. 2004)(en banc). This is “because

[the] alleged victim’s testimony is automatically vulnerable to attack by the

defendant as recent fabrication in the absence of evidence of hue and cry on

[the alleged victim’s] part.’” Id. (citations omitted). When a witness’s prior

consistent statement is admissible to counter an express or implied charge

of “fabrication, bias, improper influence or motive, or faulty memory,” the

opposing party must have an opportunity to cross-examine the witness

about the statement, and the statement must have been “made before that

which has been charged existed or arose[.]” Pa.R.E. 613(c)(1).

Here, the referenced testimony of three of the four witnesses,

Kathleen Breslin, Laura Kuneck, and Deepika Setty, was introduced by the

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Commonwealth after defense counsel questioned the victim at length

regarding his failure to disclose the sexual abuse immediately afterward.

See N.T. Trial, 6/14/16, at 99, 114, 115 (counsel cross-examining the victim

that he never told the individuals he was drinking with when he visited

Branch’s house and never told his parents or his aunt). Thus, this testimony

was properly admitted to rebut defense counsel’s suggestion that the

victim’s statement was one of “fabrication, bias, improper influence or

motive, or faulty memory.” See Pa.R.E. 613(c)(1). Additionally, defense

counsel presented the testimony of the victim, on cross examination, that

when he was 16 years old he told the fourth witness, Phillip Gillice, about the

last incident of abuse “right after” it happened. See N.T. Trial, 6/14/16, at

71-72. Gillice then testified that the victim told him about Branch’s sexual

abuse when both Gillice and the victim were 16 years old. This claim fails.

Branch also argues that trial counsel was ineffective for failing to

authenticate alleged text messages between the victim and Branch. He

maintains that this failure prevented him from introducing the texts into

evidence to impeach the victim’s claim that he was no longer in contact with

Branch after the sexual abuse stopped. Branch suggests that counsel could

have subpoenaed “records from [Branch] and J.K.’s cell phone providers or

otherwise search[ed] the messages for contextual clues.” Branch’s Br. at 37.

During cross-examination, defense counsel showed the victim a

printout of a conversation via text message that allegedly occurred between

the victim and Branch in 2010, after the sexual abuse had ended. N.T. Trial,

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6/14/16, at 122; Exh. D-1. Branch’s counsel asked the victim if he had sent

the messages displayed on the document, and he responded, “I didn't send

those messages, no, I did not.” N.T. Trial, 6/14/16, at 126. Later, counsel

moved to admit the text messages and the trial court refused to admit them.

It stated that the text messages had not been authenticated and made note

that the victim testified that he did not send the messages. N.T. Trial,

6/15/16, at 74. The trial court also denied Branch’s request to use the

testimony of Branch’s mother to show that Branch did not fabricate the

messages. Id. at 76.3

Before evidence may be admitted, it must be properly authenticated.

Pa.R.E. 901(a). The requirement of authentication is satisfied where the

proponent produces “evidence sufficient to support a finding that the item is

what the proponent claims it is.” Id. Text messages may be authenticated

by “(1) testimony from either the author or the sender; (2) circumstantial

evidence, including ‘distinctive characteristics’ like information specifying the

author-sender or ‘reference to or correspondence with relevant events’

preceding or following the message; or (3) ‘any other facts or aspects of the

[message] that signify it to be what its proponent claims.’” Commonwealth

v. Murray, 174 A.3d 1147, 1156-57 (Pa.Super. 2017) (quoting

Commonwealth v. Koch, 106 A.3d 705, 712–13 (Pa. 2014)).

3 This was proposed after the court suggested that the text messages were “a self-serving exhibit created by the defendant.” N.T. Trial, 6/15/16, at 73.

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Here, Branch has failed to show that counsel would have been able to

authenticate the text messages. The certified record contains no evidence

suggesting that counsel would have been able to authenticate them.

Branch’s suggestions that counsel could have authenticated the messages by

subpoenaing phone records or looking for contextual clues is mere

speculation. Branch did not offer anything to substantiate his claim – such as

the cell phone records or contextual clues – to show that had counsel tried,

he could have authenticated the messages. Therefore, this claim fails as

well.

Finally, Branch claims that the PCRA court erred in rejecting his claim

that counsel was ineffective for failing to call witnesses. He alleges that prior

to trial, he gave counsel a packet with witnesses’ names, addresses, and

contact information. He maintains that they would have “testif[ied] that

J.K.’s issues with drugs and alcohol started well before the time that he

claimed [Branch] started to molest him.” Branch’s Br. at 41. Branch argues

that this proposed testimony could have rebutted the Commonwealth’s

argument to the jury that the victim’s “struggles with addiction confirmed

his claims of molestation.” Id.

To succeed on a claim of ineffectiveness for failure to call witnesses, a

petitioner must plead and prove that the witness: (1) existed; (2) was

available to testify for the defense; (3) was known or should have been

known to counsel; (4) was willing to testify for the defense; and (5) would

have provided testimony of such a nature that the failure to present it was

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so prejudicial as to have denied the defendant a fair trial. Commonwealth

v. Selenski, 228 A.3d 8, 16 (Pa.Super. 2020).

In his PCRA petition, Branch referenced five potential witnesses, two of

whom testified as Commonwealth witnesses. Branch also attached the

informational packet that he gave to counsel with the names, addresses, and

photos of these potential witnesses. However, Branch failed to show that the

witnesses were willing and available to testify for the defense, or what the

substance of their testimony would be. See id.; 42 Pa.C.S.A. §

9545(d)(1)(i) (“Where a petitioner requests an evidentiary hearing, the

petition shall include a certification signed by each intended witness stating

the witness’s name, address, date of birth and substance of testimony and

shall include any documents material to that witness’s testimony”).

Additionally, despite his claim that this testimony would have rebutted the

Commonwealth’s argument, the record shows that the victim admitted to

drinking alcohol before the molestation started. See N.T. Trial, 6/14/16, at

69-70. Therefore, the PCRA court did not err in concluding that counsel was

not ineffective for failing to call the witnesses as Branch failed to show their

testimony would have been helpful to the defense. We affirm the order

denying Branch’s PCRA petition.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/02/2022

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