OPINION BY STEVENS, P.J.E.:
Appellant Chad D. Benner files this pro se appeal from the order entered by the Court of Common Pleas of Luzerne County denying Appellant's petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
In 2010, Appellant was charged in connection with allegations of sexual assault made by C.H., the younger sister of Appellant's former girlfriend. The following factual background was developed at a jury trial held on April 13, 2011: C.H. testified that she first had contact with Appellant when her sister had moved into an apartment with Appellant, which occurred in July 2002. C.H. began to visit the apartment and babysit her sister's son while her sister and Appellant were at work. At that time, Appellant was twenty-nine and C.H. was fourteen.
C.H. testified that her relationship with Appellant became increasingly more uncomfortable as time passed. She indicated that first, Appellant would compliment her looks and tell her that he would like to kiss and touch her. Although C.H. indicated that she told Appellant to stop and would not respond to his advances, Appellant began to show her physical affection like extended hugs and back rubs. C.H. recalled
C.H. remembered that she was fourteen years old the first time Appellant forced her to have oral sex. She recalled that she was laying on the couch in her sister's apartment when Appellant unexpectedly sat on her chest, pinned her down, and forced his penis into her mouth. C.H. panicked and struggled to get free, but was unable to get away before Appellant ejaculated. She did not remember what month this assault occurred, but indicated there were additional times where Appellant pressured her to give him oral sex or to allow him to perform oral sex on her. As time went on, C.H. stopped struggling when Appellant would approach her to have sexual contact as he would tell her that she was pretty and seemed to show romantic feelings for her.
Appellant continued the sexual assaults on occasions when he could be alone with C.H.; the sexual abuse only stopped when C.H.'s sister broke up with Appellant for unrelated reasons in September 2004. Although the assaults began in 2002, C.H. refrained from telling anyone about the abuse for several years. In 2006, C.H. first shared the details of her sexual contact with her then boyfriend, who is now her husband. In 2008, C.H. revealed the abuse to her parents, who contacted authorities.
In the criminal information, the Commonwealth alleged that Appellant committed the relevant crimes between July 2002 and September 2004. On April 14, 2011, a jury convicted Appellant of Involuntary Deviate Sexual Intercourse ("IDSI") and three counts of indecent assault. The trial court sentenced Appellant to a mandatory minimum sentence of ten to twenty years' incarceration for the IDSI conviction pursuant to 42 Pa.C.S. § 9714, based on Appellant's prior sodomy conviction. The trial court also sentenced Appellant to consecutive terms of one to two years imprisonment for each of the indecent assault convictions, rendering an aggregate sentence of thirteen to twenty-six years' imprisonment. Appellant filed a post-sentence motion which the trial court subsequently denied.
On September 13, 2012, this Court vacated Appellant's sentence, agreeing that there was insufficient evidence to support one of the indecent assault convictions. Upon remand, Appellant was resentenced by the trial court on September 12, 2013, to an aggregate sentence of twelve to twenty-four years imprisonment with credit for time served.
On March 31, 2014, Appellant filed the instant pro se PCRA petition, claiming, inter alia, that he was denied due process as the Commonwealth failed to prove the commission of offenses charged upon a date fixed with reasonable certainty as dictated by
On December 18, 2014, Appellant filed a pro se notice of appeal. Appellant also filed a motion with the PCRA court to reconsider the dismissal of his petition, arguing that PCRA counsel was ineffective in failing to adequately argue his claim pursuant to
On December 22, 2014, Atty. Yelen filed a notice of appeal on Appellant's behalf along with a motion for the appointment of conflict counsel. The PCRA court allowed Atty. Yelen to withdraw and appointed substitute counsel Mary V. Deady, Esq., who filed a concise statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b). On May 22, 2015, Appellant filed an Application for Relief in this Court, seeking to proceed pro se, claiming Atty. Deady ignored his request to preserve his challenge under
On June 17, 2015, the PCRA court filed an order and opinion responding to Appellant's counseled 1925(b) statement. The PCRA court did not address Petitioner's desired claim under
On June 22, 2015, the PCRA court held a
Appellant filed a brief in this Court, reiterating his claim that PCRA counsel was ineffective in failing to argue that the Commonwealth was required to prove with reasonable certainty the date the offense occurred pursuant to the Supreme Court's decision in
Our standard of review regarding an order dismissing a petition under the PCRA is as follows:
"It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him."
As noted above, Appellant's first claim is that both direct appeal and PCRA counsel provided ineffective assistance in failing to argue that Appellant was not properly informed of the charges lodged against him pursuant to
Nevertheless, the Supreme Court acknowledged that it was not appropriate to fix a bright line rule but allowed for flexibility in this determination:
This case can be distinguished from
More recently, in
Moreover, at trial, the Commonwealth presented evidence to narrow the timeframe during which Appellant's course of sexual assault began. The prosecutor introduced the testimony of C.H.'s sister, who testified that she began living with Appellant in July 2002. Appellant's advances toward C.H. quickly escalated from hugs and back rubs to inappropriate touching and forcible oral sex when C.H. was still fourteen years old. C.H. clearly testified that she remembered her first sexual encounter with Appellant occurred when she was fourteen. As C.H. turned fifteen on January 6, 2003, the Commonwealth clarified that Appellant committed IDSI and indecent assault with fourteen-year-old C.H. within an approximate six-month period (July 2002 to early January 2003).
Accordingly, we conclude Appellant was not deprived due process by the Commonwealth's inability to fix the time of the offenses that occurred in a continuous course of conduct with greater specificity. Counsel cannot be deemed ineffective in failing to pursue a meritless claim.
Appellant's second claim is that direct appeal and PCRA counsel were ineffective in failing to pursue Appellant's claim that trial counsel should have thoroughly cross-examined C.H.'s sister with respect to letters she wrote to Appellant while he was in jail. Appellant alleges that "information found in the content of these letters in question could have reasonably supported a defense allegation that [C.H.] was charging [A]ppellant with these offenses to help her sister obtain full custody of a child that [A]ppellant fathered with [C.H.'s sister]." Appellant's Brief, at 27.
At the PCRA hearing, Appellant's trial counsel, Atty. Jonathan Donovan testified that he was aware of the letters and indicated to Appellant that the correspondence did not show that C.H. was willing to fabricate false allegations of sexual assault to help her sister deprive Appellant of custody of his child. Atty. Donovan indicated that he was also concerned about introducing the letters into evidence, as the writings contained references to the fact that Appellant was serving a term of incarceration for a prior convictions of sodomy and unlawful contact with a child. Fearing that this information would undermine Appellant's defense, Atty. Donovan made a strategic decision not to cross-examine the
Accordingly, we conclude that the PCRA court did not err in rejecting Appellant's ineffectiveness claims and dismissing his petition.
Judge Mundy did not participate in the consideration or decision of this case.