Com. v. Kunkle, C.
206 EDA 2016
| Pa. Super. Ct. | Nov 4, 2016Background
- Cheryl Ann Kunkle was convicted in 2007 of the 2001 murder of Benjamin Amato; she received life imprisonment and related concurrent terms.
- Physical evidence included two blood samples from Amato’s home (containing Amato’s DNA and an unidentified contributor excluding Kunkle) and a degraded hair from Amato’s shirt (unsuitable for nuclear DNA testing; mitochondrial testing not performed).
- Key trial testimony included confessions/admissions attributed to Kunkle by witnesses Gerald Terlesky, Gregory Rowe (her son), and Marty Reynolds (her boyfriend); other witnesses testified Kunkle tried to hire persons to kill Amato.
- Kunkle filed a timely third PCRA petition (after prior reinstatements of direct appeal rights) alleging ineffective assistance of trial counsel for (1) not seeking further DNA testing, (2) failing to use prior convictions to impeach Terlesky under Pa.R.E. 609, and (3) not playing a voicemail Kunkle left for Amato at trial.
- At a PCRA evidentiary hearing, trial counsel explained strategic reasons: further DNA testing would not exculpate Kunkle and mitochondrial testing could implicate her or her son via maternal-line matches; counsel did not play the voicemail because its aggressive tone could hurt the defense; and counsel’s failure to impeach Terlesky was not prejudicial because other witnesses provided the same damaging testimony.
- The PCRA court denied relief; the Superior Court affirmed, finding each ineffectiveness claim lacked merit or prejudice under Pierce and related precedent.
Issues
| Issue | Plaintiff's Argument (Kunkle) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| 1) Failure to seek further DNA testing (blood and hair) | Further testing (including mitochondrial testing of hair) could identify another individual and be exculpatory. | Blood already excluded Kunkle; further testing of blood unnecessary; mitochondrial testing of hair could produce maternal-line matches that might implicate Kunkle or her son and counsel reasonably declined. | Denied — no arguable merit/prejudice; counsel had a reasonable strategic basis. |
| 2) Failure to impeach witness (Terlesky) under Pa.R.E. 609 | Counsel failed to give required notice to use Terlesky’s old convictions for impeachment, so jury was not exposed to evidence undermining his credibility. | Even if Terlesky had been impeached, his key testimony was cumulative of Gregory Rowe and Marty Reynolds; no prejudice. | Denied — no prejudice shown; outcome likely unchanged. |
| 3) Failure to play voicemail for jury | Playing the voicemail would have shown it contained no threats and undercut Commonwealth’s insinuation. | The recording’s aggressive tone could be harmful; counsel reasonably chose not to play it and used its absence strategically to argue there were no recorded threats. | Denied — counsel’s tactical decision was reasonable. |
Key Cases Cited
- Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006) (DNA-testing claim can have arguable merit when it could undercut identification evidence)
- Commonwealth v. Williams, 141 A.3d 440 (Pa. 2016) (standard for assessing whether counsel had a reasonable basis for strategic choices)
- Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (three-prong test for ineffective assistance of counsel)
- Commonwealth v. Payne, 794 A.2d 902 (Pa. Super. 2002) (standard of review for PCRA decisions)