Com. v. Kemp, B.

• Court: Superior Court of Pennsylvania
• Decided: January 10, 2023
• Docket: 143 MDA 2022
• Status: Unpublished

Opinion

J-S44034-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRADLEY EUGENE KEMP : : Appellant : No. 143 MDA 2022

Appeal from the PCRA Order Entered October 28, 2021 In the Court of Common Pleas of Juniata County Criminal Division at No(s): CP-34-CR-0000099-2017

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 10, 2023

Bradley Eugene Kemp (Kemp) appeals1 from the October 28, 2021 order

of the Court of Common Pleas of Juniata County (PCRA court) dismissing his

petition filed pursuant to the Post-Conviction Relief Act (PCRA).2 We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1Kemp timely filed his pro se notice of appeal pursuant to the prisoner mailbox rule by handing the notice to prison authorities for mailing on November 24, 2021. See Response to Rule to Show Cause, 6/30/22, at ¶ 11 & Exhibit A; Pa. R.A.P. 121(f), (g).

2 42 Pa.C.S. §§ 9541 et seq. J-S44034-22

I.

A.

We glean the following facts from the certified record. Kemp met the

12-year-old victim, K.S. (Victim), in 2015 through Victim’s uncle. Victim

began racing go-karts and performing odd jobs for Kemp. Victim spent the

night at Kemp’s home after a race and awoke to find Kemp touching the

Victim’s genitals and touching himself.3 Victim told Kemp that he was going

to call the police and Kemp responded that he would shoot himself and that

Victim would not be able to race go-karts anymore. Victim did not tell anyone

about the interaction. Two weeks later, Victim spent the night at Kemp’s

home and again awoke to him touching Victim’s genitals and touching himself.

On that occasion, Victim pushed Kemp away and again told him that he would

call the police. Kemp did not touch Victim again and Victim continued to spend

the night at Kemp’s home because he did not want to stop racing go-karts.

Victim did not report these incidents until 2017, after Kemp rubbed

Victim’s legs while they were alone together. He believed the abuse might

start again so he reported the prior incidents to his uncle and the Pennsylvania

State Police (PSP) three weeks later. Victim said he also argued with Kemp

one week before reporting the incidents but could not recall why.

3Kemp told Victim that he had to spend the night at Kemp’s house after racing so that he could clean the go-kart the next day.

-2- J-S44034-22

At trial, Victim’s uncle (Uncle) testified that in 2017, there was an

altercation involving the police at Victim’s home. The police asked Uncle if the

Victim could stay with him for the night to “neutralize the situation.” N.T.,

8/1/18, at 70. Uncle did not know the nature of the altercation but agreed to

watch Victim for the night. That night, Victim disclosed the abuse to him and

Uncle immediately took him to the PSP barracks to report the incidents. No

one was available to take a statement so they made an appointment for Victim

to return the following morning.

Uncle testified that after Victim reported the incidents to police, he

spoke with Kemp on the phone to arrange to retrieve some of Victim’s

belongings and return Kemp’s belongings. During the conversation, Kemp

was upset and said that he only touched Victim for five minutes and “[didn’t]

see what the big deal was.” N.T., 8/1/18, at 66-67. Later, Kemp made the

same statements in person when Uncle met with him to exchange the

belongings. Uncle testified that Victim’s behavior had changed prior to his

disclosure and that he had been lashing out and acting out of character.

Victim’s mother (Mother) testified that on the night Victim disclosed the

abuse, he had gotten into a physical fight with her and would not tell her why

he was upset. After he pushed and hit her, the police called Uncle to remove

Victim from the home. The following day, she took Victim to the PSP barracks

after Uncle had made an appointment for him to make a statement. Mother

testified that Victim’s behavior had changed a few weeks prior to his disclosure

-3- J-S44034-22

but he had refused to tell her what was wrong. On the day of the altercation,

they had fought because Mother refused to drive him to his girlfriend’s home.

Mother testified that approximately three weeks before Victim’s

disclosure, he told her that he did not want to be around Kemp and that he

quit racing. He would not explain why. Around that time, he also struck Kemp

and told him he did not want to see him anymore when they ran into each

other at an event. Victim had also gotten angry at Kemp on prior occasions

when Kemp refused to drive him to his girlfriend’s house.

Mother admitted that she previously messaged Kemp’s sister and told

her that Victim had recanted the allegations and that he should fight the

charges. She said she was experiencing difficulty with Victim and they had

been fighting about money. However, Mother said that Victim would often

say things in the heat of the moment during arguments that were not true.

PSP Trooper Shane Varner (Trooper Varner) testified that he took

Victim’s statement when he reported the abuse. They were able to identify

the dates of the incidents by looking at the racing schedule for 2015, as Victim

recalled that the first incident happened after the first race of the season and

the second occurred two weeks later. Victim called Kemp on the phone while

Trooper Varner listened in to talk about the allegations, but Kemp denied that

he had ever touched Victim. Trooper Varner then contacted Kemp directly to

come in for an interview. During that interview, Kemp first denied the

allegations and told Trooper Varner that he had recently argued with Victim.

-4- J-S44034-22

Eventually, he admitted to undressing Victim and touching his genitals once

but said that Victim had asked him to do so.

Prior to trial, Kemp requested that the trial court charge the jury with

the standard jury instruction regarding failure to make prompt complaint in

sexual offenses. See Failure to make prompt complaint in certain sexual

offenses, Pa. SSJI (Crim), §4.13A. The trial court held that the instruction

was not appropriate based on Victim’s age, and trial counsel did not object to

the failure to give the instruction after the trial court had charged the jury.

Kemp was subsequently convicted of two counts of indecent assault of a child

and two counts of corruption of minors4 and the trial court sentenced him to

an aggregate of 50 to 100 years’ imprisonment.5 Kemp filed a direct appeal

but discontinued the matter prior to briefing.

B.

Kemp filed the instant timely petition on March 12, 2021. Relevant to

this appeal, he argued that trial counsel was ineffective for failing to object to

the trial court’s refusal to give a jury instruction regarding Victim’s failure to

4 18 Pa.C.S. §§ 3126(a)(7) & 6301(a)(1)(ii).

5 Kemp was subject to a mandatory minimum sentence of 25 to 50 years’ imprisonment on each count. See 42 Pa.C.S. 9718.2(a)(1) (mandatory sentencing for recidivist sexual offenders). The trial court imposed the sentences for indecent assault consecutively, the sentences for corruption of minors consecutively, and the sentences for indecent assault and corruption of minors concurrent to each other.

-5- J-S44034-22

make a prompt complaint. The PCRA court held an evidentiary hearing at

which trial counsel and Kemp testified. Trial counsel testified that his defense

was to argue that Victim was in trouble at home when he made the allegations

and did so to deflect attention and garner pity from his family. He attempted

to attack Kemp’s statement to Trooper Varner by playing the recording of his

denials during the phone call with Victim and arguing that Kemp had been

drinking and his statement was coerced.

Trial counsel testified that he requested the standard jury instruction on

failure to make prompt complaint in sexual offenses before the trial and his

request was denied. He did not raise his objection again after the trial court

had concluded charging the jury because he believed that his objection prior

to the charge was sufficient to preserve the issue for appeal.6 He said he did

not raise the issue in Kemp’s direct appeal because he did not believe that he

could establish an abuse of discretion under the circumstances.

PCRA counsel read the Subcommittee Note to trial counsel:

The propriety of a prompt complaint instruction is determined on a case-by-case basis pursuant to a subjective standard based upon the age and condition of the victim. For example, where the ____________________________________________

6 When the trial court denies a request for a jury instruction at a charging conference, a defendant is required to place a specific objection to the omission on the record following the charge in order to preserve the issue for appeal. Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014). Trial counsel here failed to preserve this issue for appeal based on a misunderstanding of the relevant law. However, our disposition does not rest on whether trial counsel had a reasonable basis for failing to preserve the claim.

-6- J-S44034-22

victim of a sexual assault is a minor, who may not have appreciated the offensive nature of the conduct, the lack of prompt complaint would not necessarily justify an inference of fabrication.

Notes of Testimony, 7/2/2021, at 26 (quoting Failure to make prompt

complaint in certain sexual offenses, Pa. SSJI (Crim), §4.13A, cmt (citations

omitted)). “This is especially true where the perpetrator is one with authority

or custodial control over the victim.” Id. at 28 (quoting Failure to make

prompt complaint in certain sexual offenses, Pa. SSJI (Crim), §4.13A, cmt

(citations omitted)).

Trial counsel admitted that there had been testimony from Victim

establishing that, despite his age, he understood that Kemp’s actions were

wrong. While he believed that testimony would support issuing the instruction

to the jury, he also thought additional circumstances supported the trial

court’s refusal to read the instruction. Specifically, reporting the abuse would

have jeopardized Victim’s ability to race go-karts, which he enjoyed and did

not want to lose, and Kemp had custodial control or authority over Victim.

The PCRA court dismissed the petition, holding that the ineffectiveness

claims lacked arguable merit. It further concluded that trial counsel’s failure

to preserve the issue did not undermine the truth-determining process and

there was no reasonable probability that the outcome of the trial would have

been different if trial counsel had raised the objection. PCRA Court Opinion,

10/28/21, at 2. Kemp appealed and complied with Pa. R.A.P. 1925.

-7- J-S44034-22

II.

Kemp contends that trial counsel was ineffective for failing to preserve

an objection to the denial of the failure to make prompt complaint jury

instruction and for failing to raise that claim on appeal.7 “To prove counsel

ineffective, the petitioner must show that: (1) his underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his action or inaction;

and (3) the petitioner suffered actual prejudice as a result.” Commonwealth

v. Sarvey, 199 A.3d 436, 452 (Pa. Super. 2018). “[F]ailure to prove any of

these prongs is sufficient to warrant dismissal of the claim without discussion

of the other two.” Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa.

2005) (citation omitted). We presume that counsel has rendered effective

assistance. See Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).

Finally, counsel cannot be ineffective for failing to pursue a meritless claim.

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012).

The failure to make prompt complaint jury instruction8 is derived from

Chapter 31 of the Crimes Code, which relates to sexual offenses:

7 “The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).

[W]hen evaluating the propriety of jury instructions, this Court will look to the instructions as a whole, and not simply isolated portions, to determine if the instructions were improper. We further note that, it is an unquestionable maxim of law in this (Footnote Continued Next Page)

-8- J-S44034-22

Prompt reporting to public authority is not required in a prosecution under this chapter: Provided, however, That nothing in this section shall be construed to prohibit a defendant from introducing evidence of the complainant’s failure to promptly report the crime if such evidence would be admissible pursuant to the rules of evidence.

18 Pa.C.S. § 3105. “Section 3105 codified a common law principle recognizing

that the victim of a sexual assault naturally would be expected to complain of

the assault at the first safe opportunity.” Commonwealth v. Dillon, 360,

925 A.2d 131, 137 (Pa. 2007). Thus, the jury is permitted to consider the

lack of prompt complaint when weighing a victim’s credibility. Id.

However, “consideration should be given to factors inherent in cases

involving minor victims which may explain the delay without reflecting

unfavorably on the minor witness’ credibility.” Commonwealth v. Snoke,

580 A.2d 295, 298 (Pa. 1990). The Snoke Court recognized that not all delay

in reporting sexual offenses bears on the alleged victim’s credibility, and there

may be other reasonable explanations for the delay, particularly in cases with

minor victims. Id. at 297-98. As a result, the “propriety of a prompt

complaint instruction is determined on a case-by-case basis pursuant to a

Commonwealth that a trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. Only where there is an abuse of discretion or an inaccurate statement of the law is there reversible error.

Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa. Super. 2007) (citation omitted).

-9- J-S44034-22

subjective standard based upon the age and condition of the victim.”

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006).

In Commonwealth v. Ables, 590 A.2d 334 (Pa. Super. 1991), we

concluded that when there is no evidence regarding whether a minor victim

comprehended the offensiveness of the alleged conduct, the trial court must

consider additional factors to determine whether there was a legitimate reason

for the delayed reporting. Id. at 340. We identified relevant factors for

consideration as “[t]he age of the victim, the mental and physical condition of

the victim, the atmosphere and physical setting in which the incidents were

alleged to have taken place, the extent to which the accused may have been

in a position of authority, domination or custodial control over the victim, and

whether the victim was under duress.” Id. There, we held that the instruction

was not warranted when the defendant told the 13-year-old victim that she

could not tell anyone about the abuse or he would get in trouble, and “the

victim was at a difficult age to be able to adequately comprehend the nature

of the acts perpetrated against her.” Id. at 341.

Similarly, in Commonwealth v. Williams, 274 A.3d 722 (Pa. Super.

2022), we found no abuse of discretion when the trial court denied the

instruction when the 10-year-old victim did not report months of sexual abuse

until a month after moving out of the defendant’s home. There, the defendant

had a supervisory role over the victim, the victim was afraid to report the

abuse because the defendant had hit her brother in the past, the abuse was

- 10 - J-S44034-22

non-violent and the victim was afraid of her mother’s reaction. However, the

victim’s statements throughout the case were inconsistent and she admitted

at one point that she would lie under oath if she was told to do so. We

concluded that in a case where different factors both favor and disfavor the

instruction, the trial court was entitled to exercise its discretion in declining to

issue the instruction, particularly when it instructed the jury generally about

credibility and evaluating the witnesses’ inconsistent statements. Id. at 737.

Consistent with Ables and Williams, the trial court here did not abuse

its discretion in denying Kemp’s request for the prompt complaint instruction.

Victim was 12 years old at the time of the abuse and testified that the incidents

were non-violent and Kemp stopped when he told him to. Victim said he

declined to report the incidents because Kemp, who he considered a friend,

said he would shoot himself if Victim reported it and Victim would no longer

be able to race go-karts. The abuse ceased for two years and Victim came

forward with the allegations only when he was afraid that Kemp might attempt

to touch him again. Finally, Kemp regularly had custodial control over Victim,

who would spend the night at his home after the go-kart races. Based on

these facts, the trial court did not abuse its discretion in concluding that Victim

was under duress that prevented him from reporting the abuse immediately.

Because this claim lacks merit, trial counsel was not ineffective for failing to

preserve the issue for appeal. Rykard, supra.

- 11 - J-S44034-22

Moreover, we cannot conclude that the outcome of the proceedings

would have been different if the trial court had issued the instruction to the

jury. Trial counsel thoroughly cross-examined Victim regarding the delay in

reporting the incidents, the fact that Victim had continued to spend the night

at Kemp’s home even after the abuse occurred, and that Victim had argued

with Kemp the week prior to disclosing the abuse. He further established that

Victim was experiencing trouble at home when he chose to disclose the

incidents. He elicited testimony from Mother that Victim would occasionally

say untruthful things in the heat of the moment during an argument, and that

on one occasion, she told Kemp’s sister that Victim had recanted the

allegations. Trial counsel relied on these aspects of the evidence in his closing

argument that Victim’s allegations were not credible.

The trial court properly instructed the jury on its duty to weigh the

evidence and determine the credibility of witnesses in its deliberations. Notes

of Testimony, 8/1/18, at 187-88. The jury was entitled to weigh the evidence

of Victim’s credibility against his testimony and Kemp’s confessions to Uncle

and Trooper Varner and conclude that Victim was testifying truthfully. See

Commonwealth v. Sandusky, 77 A.3d 663, 669 (Pa. Super. 2013) (finding

no prejudice in denial of prompt complaint instruction when the trial court

otherwise thoroughly instructed the jury on its duty to evaluate witness

credibility). Thus, because Kemp has not established that actual prejudice

- 12 - J-S44034-22

arose from the alleged ineffectiveness, he is not entitled to relief. Sarvey,

supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/10/2023

- 13 -