Com. v. Kerrick, B.
Com. v. Kerrick, B. No. 1452 MDA 2016
| Pa. Super. Ct. | Feb 21, 2017Background
- Benjamin Kerrick was convicted by a jury in February 2014 of multiple sexual offenses (indecent assault, aggravated indecent assault, incest) for abusing his daughter when she was between 11–14; sentence was aggregate 10 years 9 months to 22 years.
- Two alleged offenses occurred in Carbon County; remaining offenses occurred in Tioga County; all were tried together in Tioga County.
- Direct appeal affirmed the convictions; Kerrick filed a timely counseled PCRA petition alleging ineffective assistance of trial counsel.
- PCRA hearing held; PCRA court denied relief on August 17, 2016; Kerrick appealed.
- Kerrick’s PCRA claims: (1) counsel misframed a challenge to consolidation/venue (treated as jurisdiction), (2) ineffective cross-examination of his mother about an alleged confession, and (3) failure to call two defense witnesses (wife and father).
- Superior Court affirmed denial, holding Kerrick proved arguable merit and some counsel error on framing the venue issue but failed to prove prejudice on any claim.
Issues
| Issue | Kerrick's Argument | Commonwealth/PCRA Court Argument | Held |
|---|---|---|---|
| Counsel misframed consolidation issue as jurisdiction rather than venue | Manchester should have raised venue; misframing waived the issue on direct appeal | Even assuming error, Kerrick cannot show prejudice or that he was denied a fair trial in Tioga County | Affirmed — no prejudice shown, claim denied |
| Counsel failed to adequately cross‑examine mother about alleged confession | Mother’s trial testimony was vague/ambiguous; better cross would have shown confession limited to a single incident | Mother’s testimony, and Kerrick’s quoted responses, indicated the admission related to a single act; no prejudice shown | Affirmed — no ineffective assistance (no prejudice) |
| Counsel failed to call wife and father as defense witnesses | Wife and father would have testified about sleeping arrangements and lack of favoritism, corroborating defense | Kerrick did not identify specific proffered testimony or show that absence deprived him of a fair trial | Affirmed — failure to call witnesses not shown to be prejudicial |
Key Cases Cited
- Spotz v. Commonwealth, 84 A.3d 294 (Pa. 2014) (PCRA ineffective‑assistance standards discussion)
- Colavita v. Commonwealth, 993 A.2d 874 (Pa. 2010) (presumption of counsel effectiveness; strategic choices)
- Pierce v. Commonwealth, 527 A.2d 973 (Pa. 1987) (three‑part ineffectiveness test refinement)
- Ali v. Commonwealth, 10 A.3d 282 (Pa. 2010) (performance and prejudice elements explained)
- Bethea v. Commonwealth, 828 A.2d 1066 (Pa. 2003) (venue challenge prejudice requirement)
- Morales v. Commonwealth, 701 A.2d 516 (Pa. 1997) (standard of review for PCRA orders)
- Washington v. Commonwealth, 927 A.2d 586 (Pa. 2007) (test for prejudice when counsel fails to call a witness)