Com. v. Gerkin, M.

• Court: Superior Court of Pennsylvania
• Decided: November 27, 2024
• Docket: 1284 WDA 2023
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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

* 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. J-S34044-24

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

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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