J-S35044-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KURT ALLYN SHEERIN : : Appellant : No. 21 MDA 2025
Appeal from the PCRA Order Entered August 8, 2024 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000900-2020
BEFORE: OLSON, J., MURRAY, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED: NOVEMBER 12, 2025
Kurt Allyn Sheerin (“Sheerin”) appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
On October 5, 2019, Sheerin, an inmate at the State Correctional
Institution at Camp Hill (“SCI Camp Hill”), was in line at the medical
dispensary, waiting to receive his medication. Sheerin became involved in a
verbal dispute with Corrections Officer Craig Crankfield (“Officer Crankfield”),
who decided to place Sheerin in handcuffs. A physical altercation ensued, and
Seargeant James Hunsberger (“Sergeant Hunsberger”) and another
corrections officer (“CO”) arrived to assist Officer Crankfield in restraining
Sheerin. During the altercation, Sheerin struck Officer Crankfield in the head
with his head and elbow, causing a concussion, and he bit off the tip of
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1 See 42 Pa.C.S.A §§ 9541-9546. J-S35044-25
Sergeant Hunsberger’s finger. Both Officer Crankfield and Sergeant
Hunsberger required medical attention, and each missed three months of
work.
The Commonwealth charged Sheerin with multiple offenses, including
two counts of aggravated assault of an officer in the performance of his duty.2
Attorney Jacob Jividen, Esquire (“Trial Counsel”) represented Sheerin from his
preliminary hearing through his jury trial. Trial Counsel’s primary defense at
trial was that Sheerin was acting in self-defense in response to an unprovoked
attack by the COs.
Officer Crankfield testified at trial to the following. His assignment at
the time of the incident was to supervise the inmates as they waited in line at
the dispensary. See N.T., 9/1/21, at 59. The dispensary’s computer system
malfunctioned, bringing the line of thirty to forty inmates to a halt. See id.
at 61-62, 64. Sheerin became angry at the delay and exited the line and
approached Officer Crankfield. See id. at 62. Officer Crankfield instructed
Sheerin to return to the line and wait his turn. See id. at 62-63. After the
second malfunction, Sheerin again exited the line, and Officer Crankfield
stated, “If you don’t get back in line, I am going to spray you” with pepper
spray. Id. at 63.
Sheerin returned to the line but quickly left it again and said to Officer
Crankfield, “[D]o you know what, mother fucker, why don’t we just go back
2 See 18 Pa.C.S.A. § 2702(a)(3).
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to my cell and talk[?]” Id. at 64, 66. Based on his experience, Officer
Crankfield interpreted Sheerin’s statement as a threat of physical violence.
See id. at 64.
Officer Crankfield then instructed Sheerin to “cuff up,” which meant to
place his hands behind his back for handcuffing. See id. at 64, 66. At this
point, Sergeant Hunsberger and another CO were by Officer Crankfield’s side
to assist him in restraining Sheerin. See id. at 64. Instead of keeping his
hands still to allow handcuffing, Sheerin raised his arms and freed himself
from Officer Crankfield’s grip. See id. at 66-67. Officer Crankfield took
Sheerin to the ground, and one of the other COs dispensed pepper spray at
Sheerin. See id. at 67-68.
Sheerin continued to resist while on the ground. See id. He headbutted
Officer Crankfield to the side of the head and elbowed him in the face. See
id. at 69-71. Officer Crankfield was diagnosed with a concussion and suffered
migraines as a result of the incident. See id. at 74-75.
Sergeant Hunsberger testified as follows. He was escorting a group of
inmates to the dispensary when he saw Officer Crankfield and Sheerin “face-
to-face arguing.” Id. at 106-07. Sergeant Hunsberger approached with his
pepper spray in his hand. See id. at 107. After Officer Crankfield told Sheerin
to “cuff up,” Sheerin turned around and swung his fist at Officer Crankfield.
See id. at 109. Sergeant Hunsberger then sprayed Sheerin with pepper spray
and assisted Officer Crankfield and another CO in taking Sheerin to the
ground. See id. at 110.
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Once on the ground, Officer Crankfield and the other CO attempted to
restrain Sheerin’s body, while Sergeant Hunsberger attempted to control his
neck and head. See id. at 110-11. Sergeant Hunsberger applied a “pressure
point compliance technique” by forcefully pressing his thumb down on
Sheerin’s neck. See id. at 111-12. Sheerin then turned his head and bit off
the tip of Sergeant Hunsberger’s right pinky finger. See id. at 112. Right
after doing so, Sheerin stated, “I got your finger, mother fucker. How does
that feel?” Id. at 113. Sergeant Hunsberger lost the tip of the bone of his
finger and his fingernail as a result of the incident. See id. at 116.
Sheerin called Carson Sampsell (“Sampsell”), who testified as follows.
Sampsell was also an inmate at SCI Camp Hill, and he was behind Sheerin in
the medical dispensary line on October 5, 2019. See id. at 186-88. Sampsell
explained that there are generally two lines of inmates to enter the dispensary,
but on that date only one line was open. See id. at 188.
Sheerin was waiting in one of the lines and walked into the area where
he would receive his medication, as it was his turn. Id. A CO asked him,
“[W]here are you going and what do you think you are doing[?]” Id. Sheerin
responded that he was getting his medication, and said, “[W]hy do you have
to speak to me like that[?]” Id. at 189. The CO responded, “[Y]ou are going
to wait your fuckin turn” and instructed Sheerin to “cuff the fuck up.” Id.
Sheerin asked why the CO was handcuffing him, and the CO responded
by “slamm[ing him] against a brick wall face first.” Id. The CO then placed
Sheerin in a headlock and took him to the ground, with the assistance of
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another CO who had run over to assist. See id. Once on the ground, both
COs began punching Sheerin, and one of the COs pepper sprayed him. See
id. at 190-91.
Sheerin also described the October 5, 2019 incident during his trial
testimony. Like Sampsell, Sheerin stated that he was polite and never struck
the COs, and instead Officer Crankfield initiated the violent interaction. See
N.T., 9/2/21, at 211-13, 219. After instructing Sheerin to “turn the fuck
around and cuff up,” Officer Crankfield struck him in the head with a pepper
spray cannister, slammed him against the wall, and took him to the ground.
Id. at 211-13.
Sheerin testified that, once on the ground, Seargeant Hunsberger
“slam[med Sheerin’s] face multiple times on the ground” and pressed his
thumb on the pressure point behind Sheerin’s jaw. Id. at 212, 217. After
this did not provoke a response from Sheerin, Sergeant Hunsberger “stuck his
pinky into [Sheerin’s] mouth while his thumb was still hooked behind
[Sheerin’s] jaw and pulled [his] face.” Id. at 218. This caused Sheerin
intense pain and “shocked” and “scared” him, “so [he] bit down.” Id. He
immediately spit the tip of Sergeant Hunsberger’s finger out. See id.
The jury convicted Sheerin of two counts of aggravated assault of an
officer in the performance of his duty. Sheerin filed a notice of appeal, and
this Court affirmed his judgment of sentence on July 26, 2022. See
Commonwealth v. Sheerin, 283 A.3d 399 (Pa. Super. 2022) (unpublished
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memorandum). He did not file a petition for allowance of appeal in our
Supreme Court.
On October 26, 2022, Sheerin filed a timely pro se PCRA petition.3 The
PCRA court appointed counsel, and PCRA counsel filed an amended petition.
Sheerin’s amended petition raised an ineffective assistance of counsel claim
based on Trial Counsel’s alleged failure to call Tristan Mutzabaugh
(“Mutzabaugh”), another SCI Camp Hill inmate, as a witness at trial.4
The PCRA court held an evidentiary hearing on May 16, 2024, at which
Mutzabaugh, Trial Counsel, and Sheerin testified. Mutzabaugh testified to the ____________________________________________
3 Sheerin’s judgment of sentence became final on August 25, 2022, the last
day upon which he could have filed a timely petition for allowance of appeal with our Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3) (providing that judgment of sentence becomes final under the PCRA at the conclusion of direction review “or at the expiration of time for seeking the review”); see also Pa.R.A.P. 1113(a) (providing that petition for allowance of appeal be filed within thirty days of judgment). As Sheerin filed his PCRA petition within one year of August 25, 2022, the petition was timely. See 42 Pa.C.S.A § 9545(b)(1) (providing that petitioner must file petition within one year of date judgment of sentence becomes final). 4 The amended petition also alleged that Trial Counsel was ineffective for failing to present Officer Crankfield’s medical and personnel records and Sheerin’s medical records. At the PCRA hearing, PCRA counsel only elicited testimony regarding Trial Counsel’s decision to not introduce Sheerin’s medical records. The PCRA court found that the medical records would have been cumulative of other evidence and Trial Counsel was therefore not ineffective. See PCRA Court Opinion, 8/7/24, at 2. While Sheerin raised Trial Counsel’s alleged ineffectiveness for not presenting Sheerin’s medical records in his Pa.R.A.P. 1925(b) concise statement, he has abandoned this claim by not presenting any argument regarding the PCRA court’s determination in his appellate brief. See Commonwealth v. Gould, 187 A.3d 927, 934 n.7 (Pa. Super. 2018) (stating that an appellant who raises an issue in his Pa.R.A.P. 1925(b) statement but then presents no argument on the issue in his appellate brief has abandoned the issue).
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following. He was Sheerin’s cellmate and was directly in front of him in the
medical dispensary line on October 5, 2019. See N.T., 5/16/24, at 5-7. While
they were waiting in line, Mutzabaugh allowed Sheerin to go in front of him.
See id. at 7. In response, the CO stationed in the dispensary said, “Yo, I ain’t
fucking tell you to go yet. Get the fuck back in line.” Id. at 8. The CO then
pushed Sheerin in the face with both hands, smashing his head on the
concrete wall. See id. at 9-11.
The CO called for backup, and several COs took turns punching and
kicking Sheerin while he was on the ground. See id. at 10-11. One of the
COs stuck his index finger in Sheerin’s mouth “like he had a fish hook” and
“pull[ed Sheerin’s] head off the ground so that they could get him in a choke
hold.” Id. at 9, 12. Mutzabaugh heard Sheerin biting off the tip of the finger,
and the CO shouting, “My finger[.]” Id. at 9. At no point during the
altercation did Mutzabaugh observe Sheerin react violently toward any of the
COs. See id. at 11-13.
Mutzabaugh resided in New Bloomfield, Perry County at the time of
Sheerin’s September 2021 trial. See id. at 14-15. Mutzabaugh spoke with
Trial Counsel by telephone several times in the months prior to the trial, and
he related his account of the October 5, 2019 incident to Trial Counsel. See
id. at 14-15. Trial Counsel informed Mutzabaugh that “he would call [him]
back with a trial date,” but Mutzabaugh “never heard from him.” Id. at 15-
16. Mutzabaugh denied exchanging text messages with Trial Counsel, and he
did not recall Trial Counsel offering to pay for transportation to Cumberland
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County. See id. at 18-19. Mutzabaugh indicated that, if Trial Counsel had
informed him of the trial date, he would have willingly testified at Sheerin’s
trial. See id. at 16, 20-22.
Trial Counsel testified to the following at the PCRA hearing. He was
aware of Mutzabaugh and that he could provide potentially beneficial
testimony to Sheerin’s claim that he acted in self-defense. See id. at 28-29.
Trial Counsel and Sheerin “had always planned on [Mutzabaugh] testifying at
trial.” Id. at 29. Trial Counsel first spoke with Mutzabaugh by telephone in
the summer of 2020, following his release from prison. See id. at 30. Trial
Counsel and Mutzabaugh had two more phone conversations during the
summer of 2021, wherein they reviewed Mutzabaugh’s testimony. See id. at
31-33. However, in the months leading to trial, Trial Counsel developed
“concerns” that Mutzabaugh may not appear as he “was becoming less and
less reliable,” “more reluctant” to discuss the case, and like a “different
person.” Id. at 36, 39. Trial Counsel had concerns that Mutzabaugh had
resumed drug use based on his conversations with Sheerin. See id. at 36.
Once Trial Counsel received notice of the week when trial would start,
he placed several calls to Mutzabaugh, but Mutzabaugh “stopped answering
his phone.” Id. at 33-35. Trial Counsel sent several text messages to
Mutzabaugh during the week of trial requesting his attendance. See id. at
35, 47-48. Mutzabaugh responded to one text message, stating that he did
not have a ride to the courthouse. See id. at 48. Trial Counsel sent a
message after the first day of trial that he “could reimburse [Mutzabaugh] for
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travel, bus or Uber or whatever” if he showed up the next day to testify, but
Mutzabaugh did not respond. Id. at 48-49 (unnecessary capitalization
omitted).
Trial Counsel discussed the possibility of subpoenaing Mutzabaugh with
Sheerin. See id. at 35-37. However, Trial Counsel believed that
Mutzabaugh’s testimony might not be “help[ful]” if they “brought him [to
court] in handcuffs.” Id. at 37. Trial Counsel further felt that Mutzabaugh
would not have had “all that much more to add” after Sampsell, who “ended
up being a fantastic witness.” Id. Trial Counsel recalled telling Sheerin mid-
trial that they did not “need” Mutzabaugh and should proceed in presenting
their defense without him. Id. at 50. Sheerin agreed with Trial Counsel’s
assessment. See id.
Sheerin testified at the PCRA hearing that he believed Mutzabaugh
would appear to testify until Trial Counsel showed him the text message
exchange on the second day of trial. See id. at 56. According to Sheerin, he
asked Trial Counsel to subpoena Mutzabaugh, and Trial Counsel indicated that
“it wasn’t a good idea” to bring Mutzabaugh to court “in handcuffs.” Id. at
57. Sheerin stated he deferred to Trial Counsel’s strategic decision, but he
would have preferred to have subpoenaed Mutzabaugh. See id. at 57, 60.
Sheerin acknowledged that he expressed concerns to Trial Counsel that
Mutzabaugh had begun using drugs again, but stated he had no personal
knowledge whether Mutzabaugh had done so. See id. at 58-59.
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On August 7, 2024, the PCRA court entered an order and accompanying
opinion denying Sheerin’s petition. As relevant here, the PCRA court found
that Mutzabaugh was not willing to appear at trial and Trial Counsel was not
ineffective for not seeking to compel Mutzabaugh’s testimony. See PCRA
Court Opinion, 8/7/24, at 2. This appeal followed.5 Sheerin complied with
the PCRA court’s order to file concise statements of errors complained of on
appeal pursuant to Pa.R.A.P. 1925, and the PCRA court issued a statement
indicating that it relied on its earlier opinion.
Sheerin raises the following issue on appeal: “Whether the [PCRA c]ourt
erred in holding that [T]rial [C]ounsel’s decision to not subpoena . . .
Mutzabaugh was a reasonable strategic decision.” Sheerin’s Brief at 4.
On appeal from the grant of PCRA relief, our review “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Agnew, 299 A.3d 1001, 1005 (Pa. Super. 2023) (citation omitted). The PCRA
court’s factual findings and credibility determinations are binding when the
record supports them. See Commonwealth v. Small, 238 A.3d 1267, 1280
(Pa. 2020). However, we review the PCRA court’s legal conclusions de novo.
See id. We confine our review to the findings of the PCRA court and the
5 Sheerin did not initially file a timely notice of appeal of the August 7, 2024
order. On December 30, 2024, Sheerin, through counsel, filed a motion for leave to file a notice of appeal nunc pro tunc. The PCRA court granted the motion, and Sheerin filed a notice of appeal on January 3, 2024.
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evidence of record, which we view in the light most favorable to the party who
prevailed below. See id.
In assessing an ineffective assistance of counsel claim under the PCRA,
we presume that counsel has rendered effective assistance. See
Commonwealth v. Washington, 269 A.3d 1255, 1263 (Pa. Super. 2022)
(en banc). To overcome the presumption, the petitioner must show that: “(1)
the underlying claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and (3) but for the errors and
omissions of counsel, there is a reasonable probability that the outcome of the
proceedings would have been different.” Id. (citation omitted). The
defendant must satisfy all three prongs of this test to obtain relief under the
PCRA. See id.
“A defense attorney’s failure to call certain witnesses does not constitute
per se ineffectiveness.” Commonwealth v. Cox, 983 A.2d 666, 693 (Pa.
2009). To establish that defense counsel was ineffective for failing to call a
witness at trial, the PCRA petitioner must demonstrate that:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Medina, 209 A.3d 992, 998 (Pa. Super. 2019) (citation
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Sheerin asserts he established the first three criteria for demonstrating
Trial Counsel’s ineffectiveness, as Mutzabaugh “clearly existed and was
available” and Trial Counsel spoke with him several times prior to trial.
Sheerin’s Brief at 12. With regard to the PCRA court’s finding that Mutzabaugh
was not willing to testify, Sheerin contends that this determination lacks
support in the record. Sheerin avers that Trial Counsel’s testimony showed
that the only reason Mutzabaugh did not voluntarily appear was that he lacked
transportation from his home in Perry County to Cumberland County. While
Mutzabaugh did not respond to Trial Counsel’s text message offering to pay
for transportation to the courthouse, Sheerin argues that “[a] lack of response
is not dispositive of whether . . . Mutzabaugh was unwilling to testify.” Id. at
13.
Sheerin argues that Trial Counsel’s testimony also failed “to support his
belief that . . . Mutzabaugh would not [have been] helpful for the defense if
served with a subpoena.” Id. Sheerin submits that a “subpoena would have
only served to reinforce the importance of . . . Mutzabaugh’s testimony” and
provided “the means by which to get . . . Mutzabaugh to court through
assistance of the trial court.” Id. at 13-14.
Sheerin contends that the absence of Mutzabaugh’s testimony was
prejudicial where “Mutzabaugh was the sole witness (other than [Sheerin])
who would have testified that [Sergeant Hunsberger] put his finger in
[Sheerin’s] mouth and used it to pull back on [Sheerin’s] head in a fishhook
fashion.” Id. at 14. Sheerin asserts that Mutzabaugh’s testimony would have
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“supported [Sheerin’s] claim of self-defense by showing that” the act of biting
Sergeant Hunsberger’s finger “was solely a visceral reaction to [Sergeant
Hunsberger’s] action.” Id.
The PCRA court concluded that Sheerin “indisputably established” some
elements of his ineffectiveness claim but the “central question[s]” that
remained were “whether Mutzabaugh was willing to appear and, if not,
whether it would have been sensible to compel his presence.” PCRA Court
Opinion, 8/7/24, at 2. The court “answer[ed] in the negative on both counts,”
reasoning as follows:
[Trial Counsel] spoke with Mutzabaugh in the year leading up to trial, confirming his willingness to testify. He informed Mutzabaugh once the time for trial had been set. As those dates approached, however, [Trial Counsel] noticed a change, with Mutzabaugh becoming more evasive. During trial week itself, [Trial Counsel] attempted to contact Mutzabaugh several times, without success, concluding that the witness had changed his mind and that whatever testimony might be extracted by compulsion would not inure to [Sheerin’s] benefit. In short, [the court found Trial Counsel’s] testimony to be far more credible than . . . Mutzabaugh’s.
Id. The PCRA court therefore determined that Trial Counsel’s strategic
decision to not subpoena Mutzabaugh was “eminently reasonable.” Id.
Upon review, we conclude the record supports the PCRA court’s denial
of relief. See Agnew, 299 A.3d at 1005. Initially, we emphasize that the
PCRA court found Trial Counsel more credible than Mutzabaugh, a
determination that finds support in the record and is therefore binding on this
Court. See Small, 238 A.3d at 1280. Trial Counsel testified that, while
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Mutzabaugh initially expressed his willingness to testify in Sheerin’s defense,
he became “more reluctant” and “less reliable” as the trial date approached.
N.T., 5/16/24, at 36, 39, 45. After the first day of trial, when Trial Counsel
requested Mutzabaugh testify the following day, Mutzabaugh stated that he
did not have transportation to the courthouse. However, when Trial Counsel
offered to reimburse travel expenses, Mutzabaugh ceased communicating with
Trial Counsel. See id. at 48-49. Viewing this testimony in the light most
favorable to the Commonwealth, the evidence supports the PCRA court’s
finding that Mutzabaugh was not “willing to testify for the defense.” Medina,
209 A.3d at 998 (citation omitted); see also Small, 238 A.3d at 1280.
Furthermore, we discern no grounds to disturb the PCRA court’s
conclusion that Trial Counsel made a reasonable strategic decision to not
request a subpoena for Mutzabaugh’s testimony. Trial Counsel explained that
he decided not to subpoena because: (1) Mutzabaugh may not have provided
beneficial testimony if they “brought him [to court] in handcuffs;” and (2)
Mutzabaugh’s testimony did not appear to be necessary after Sampsell’s
effective rebuttal of Officer Crankfield’s and Sergeant Hunsberger’s accounts.
N.T., 5/16/24, at 37, 50. In light of Trial Counsel’s detailed testimony
regarding the efforts he undertook to procure Mutzabaugh’s voluntary
appearance, as well as his concerns relating to Mutzabaugh’s changed
demeanor and potential resumption of drug use, the evidence clearly
supported the PCRA court’s finding that Trial Counsel had a reasonable basis
to not subpoena Mutzabaugh.
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For the foregoing reasons, we conclude Sheerin did not prove that
Mutzabaugh was willing to testify, a necessary element to prove his claim that
Trial Counsel was ineffective for not calling Mutzabaugh as a witness. See
Medina, 209 A.3d at 998. Additionally, Sheerin did not demonstrate that Trial
Counsel lacked a reasonable strategic basis for his decision to not subpoena
Mutzabaugh’s testimony. See Washington, 269 A.3d at 1263. Thus,
Sheerin’s appellate issue merits no relief, and we affirm the denial of his PCRA
petition.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 11/12/2025
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