167 A.3d 782
Pa. Super. Ct.2017Background
- Kerry Charles Smith was tried for multiple sexual offenses involving two child victims he babysat; allegations included masturbation, digital and oral contact, and attempted kissing.
- A consensual recorded phone call between Smith and one victim contained incriminating statements; the recording was central at trial.
- Smith had engaged a private forensic engineer, Dennis Walsh, before trial counsel entered; Walsh had credibility issues (past perjury, resume falsification, paranoia diagnosis).
- Trial counsel called Walsh to challenge the recording rather than forgoing expert rebuttal; counsel reviewed Walsh’s resume and consulted him several times.
- A jury convicted Smith; he received an aggregate sentence of 80 to 195 years.
- On PCRA review, Smith alleged trial counsel was ineffective for (1) not challenging the competency of an 11‑year‑old witness, (2) not filing a “taint” motion based on suggestive police/family questioning, and (3) calling/vetting Walsh or failing to call a different expert. The PCRA court denied relief and the Superior Court affirmed.
Issues
| Issue | Appellant's Argument | Commonwealth/Defense Argument | Held |
|---|---|---|---|
| Competency of child witness (failure to conduct formal competency hearing outside jury) | Smith: counsel ineffective for not requesting competency colloquy/hearing for 11‑year‑old and for not objecting when prosecutor asked competency questions before jury | Trial counsel had no reasonable basis to challenge omitted, but the Commonwealth: victim’s on‑record answers and trial court observation cured error; no prejudice shown | Court: Waivable error; even assuming arguable merit, Smith failed prejudice prong—no evidence child was incompetent and jury instructions cured any risk; claim denied |
| Taint motion (memory corruption from suggestive interview) | Smith: counsel ineffective for not moving to exclude testimony due to suggestive police/family questioning that allegedly implanted memories | PCRA court: Trooper’s initial open‑ended questioning elicited the same account; later suggestions were resisted by the child; no ‘‘some evidence’’ of taint to warrant hearing | Court: No arguable merit—given totality, no showing of taint; counsel not ineffective for failing to raise meritless motion |
| Expert selection/vetting (calling Dennis Walsh) | Smith: counsel failed to properly vet Walsh and should have called a different, credible expert | PCRA court: counsel reviewed Walsh’s resume, consulted him repeatedly, and faced binary choice—call a flawed expert to challenge crucial recording or call no expert; no proof another expert existed or was willing to testify | Court: Counsel had reasonable basis; no prejudice shown because Smith did not identify an available alternative expert; claim denied |
Key Cases Cited
- Pierce v. Commonwealth, 645 A.2d 189 (Pa. 1994) (establishes reasonable‑basis inquiry for counsel strategy in ineffectiveness claims)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑pronged ineffective assistance standard requiring prejudice)
- Delbridge v. Commonwealth, 855 A.2d 27 (Pa. 2004) (taint/competency framework and "some evidence" threshold for taint hearings)
- Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998) (requires child competency hearings outside jury under certain circumstances)
- Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011) (harmless‑error analysis where competency colloquy occurs before jury and court issues no vouching)