Com. v. Corliss, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN CORLISS :
:
Appellant : No. 1272 EDA 2020
Appeal from the PCRA Order Entered May 27, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001749-2013
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: April 30, 2021
Justin Corliss appeals the order of the Court of Common Pleas of Monroe
County (PCRA court) denying his petition filed pursuant to the Post-Conviction
Relief Act (PCRA). See 42 Pa.C.S. §§ 9541-9546. Following a jury trial as to
counts charged in case number 1749-CR-2013, Corliss was found guilty of
sexual offenses against his daughter, C.C., and sentenced to an aggregate
prison term of 30 to 60 years.1 Corliss now seeks PCRA relief based on an
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 In that case, as to C.C., Corliss was convicted of Count I (involuntary deviate
sexual intercourse with a child) (IDSI); Count 2 (attempted IDSI); Count 3
(indecent assault); Count 4 (indecent exposure); Count 5 (incest); Count 6
(endangering the welfare of a child); and Count 7 (corruption of a minor). The
trial on those counts was joined with case number 2173-CR-2013, which
concerned similar allegations by a different victim, R.V.
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expiration of the statute of limitations period, insufficiency of the evidence,
ineffective assistance of counsel, and the quashing of subpoenas by the PCRA
court. We affirm.
I.
A.
The underlying facts and procedural history of this convoluted case have
been previously summarized by this Court as follows:
[Corliss] operated a pet store in Monroe County. In 1993,
[Corliss] commenced a romantic relationship with his coworker,
K.V. Shortly thereafter, [appellant] moved in the residence K.V.
shared with her minor daughter, R.V. In 1995, when R.V. was
approximately nine years old, [Corliss] began to molest R.V. At
first, [Corliss] would tickle R.V. when they played together.
[Corliss’] behavior escalated, however, and he began placing his
hands down R.V.’s pants. [Corliss] digitally penetrated R.V. on
multiple occasions between 1995 and 1997. The abuse occurred
at K.V.’s residence, often while K.V. was in another room. On one
occasion, [Corliss] inappropriately touched R.V. during a car trip
to New York. The molestation continued until 1997, when
[Corliss] moved out of K.V.’s residence. R.V. did not immediately
report the abuse.
In 1996, fourteen-year old [D.G.] began to work at [Corliss’] pet
store. [D.G.’s] father was a regular customer at the pet store,
and [Corliss] had known [D.G.] since she was eleven years old.
After [D.G.] started working at the pet store, [Corliss] would tickle
her. [Corliss’] behavior escalated, and he began placing his hands
down [D.G.’s] pants. Eventually, [Corliss] and [D.G.] engaged in
sexual intercourse. [Corliss] also performed oral sex on [D.G.] on
multiple occasions.
The abuse occurred at the pet store during regular business hours.
On two occasions, [D.G.’s] twelve-year-old friend witnessed the
sexual activity. [Corliss] also fondled [D.G.] during car trips to
New York. [D.G.] testified that [Corliss] took her on these trips
“almost every single Monday” to pick up supplies for the pet store.
In addition to the liaisons at work, [Corliss] molested [D.G.] at
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K.V.’s residence at least once. In 1997, [D.G.]’s mother learned
about the abuse and immediately informed the police.
At No. 743 of 1997, the Commonwealth charged [Corliss] with
multiple offenses related to the molestation of [D.G.] Following a
trial in 1998, a jury convicted [Corliss] of two (2) counts of
statutory sexual assault and one (1) count each of aggravated
indecent assault, indecent assault, and corruption of minors. On
August 20, 1998, the [trial] court sentenced [Corliss] to an
aggregate term of four (4) to ten (10) years’ imprisonment. This
Court affirmed the judgment of sentence on November 30, 1999.
See Commonwealth v Corliss, 750 A.2d 366 (Pa. Super. 1999)
(unpublished memorandum).
Prior to the start of the 1998 trial, [Corliss] met C.T. at the pet
store. [Corliss] and C.T. married, and C.T. became pregnant
before [Corliss’] sentencing hearing. C.T. gave birth to [Corliss’]
daughter, C.C., in 1999 while [Corliss] was incarcerated. [Corliss]
remained incarcerated until 2008. Upon his release, [Corliss]
returned to live with C.T. and C.C. C.T. had no concerns about
[Corliss] being around C.C., because [Corliss] had convinced C.T.
that he was actually innocent of the charges pertaining to [D.G.]
When [Corliss] would play with C.C., C.T. noticed that [Corliss]
tickled the child and scratched the child’s back. The tickling
started to bother C.C., and she asked [Corliss] not to touch her,
but C.T. did not intervene. [Corliss’] relationship with C.T. ended
in 2010, after C.T. discovered that [Corliss] was having an affair
with another teenager. In 2013, C.C. informed C.T. that [Corliss]
had molested her. C.C. claimed that [Corliss] would put his hands
down her pants and touch her vagina, exposed his penis to C.C.,
and attempted to force the child to perform oral sex on him.
Police arrested [Corliss] for the offenses against C.C. in July 2013.
The media reported on [Corliss’] arrest, and R.V. saw the
coverage. R.V. decided to contact police and inform them of the
abuse she suffered from 1995 until 1997. At No. 1749 of 2013,
the Commonwealth charged [Corliss] with sex offenses committed
against C.C. At No. 2173 of 2013, the Commonwealth charged
[Corliss] with sex offenses committed against R.V.
Commonwealth v. Corliss, 2091 EDA 2014, 2105 EDA 2014 (Pa. Super. July
14, 2015) (unpublished memorandum) (footnotes omitted).
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The two cases involving the allegations of C.C. and R.V. were tried
together, and at that joint trial, the Commonwealth was permitted to introduce
evidence of Corliss’ prior conduct toward D.G. in case 743-CR-1997. See id.(reversing trial court’s order denying the Commonwealth’s motion in limine to
admit evidence of prior bad acts under Pa.R.E. 404(b)).
Corliss was found guilty of offenses against both C.C. and R.V., and as
to the counts concerning C.C. in case number 1749-CR-2013, he was
sentenced to a total prison term of 30 to 60 years. The judgment of sentence
was affirmed. See Commonwealth v. Corliss, 108 EDA 2017 (Pa. Super.
Dec. 8, 2017) (unpublished memorandum); see also Commonwealth v.
Corliss, 176 MAL 2018 (Pa. Oct. 30, 2018) (denying petition for allowance of
appeal). The present appeal only concerns the denial of Corliss’ PCRA claims
with respect to that case.2
B.
Within a year from the date that his judgment of sentence became final,
Corliss timely petitioned for PCRA relief and he received an evidentiary
hearing. The PCRA court denied Corliss’ petition in its entirety and he timely
appealed. The PCRA court submitted a thorough opinion detailing the history
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2 In appellate case number 1239 EDA 2020, we separately review the denial
of Corliss’ PCRA claims pertaining to R.V.’s allegations in case 2173-CR-2013.
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of the case and the reasons for its rulings. See PCRA Court Opinion,
5/27/2020.
For greater clarity, we have reworded and renumbered Corliss’ appellate
issues into six main grounds:
1. The trial court lacked jurisdiction as to four counts because the
statute of limitations period had elapsed, barring prosecution.
2. The conviction on the count of deviate involuntary intercourse
must be vacated because the alleged conduct does not meet the
statutory definition of the offense.
3. Defense counsel performed ineffectively by refusing to
challenge prosecutorial comment and prior bad act evidence
relating to Corliss’ convictions from 1998.
4. Defense counsel performed ineffectively by not calling to the
stand an expert witness whose testimony about a 1997 DNA
report would have exonerated him of earlier convictions that were
introduced at trial under Pa.R.E. 404(b).
5. Defense counsel performed ineffectively by failing to impeach
the prosecution’s witnesses on cross examination.
6. The PCRA court erred in quashing subpoenas issued for
witnesses whose testimony would have proven defense counsel’s
ineffectiveness.
See Appellant’s Brief, at 4-5. Each of these issues will be addressed in turn
below.3
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3 “Our standard of review in PCRA appeals is limited to determining whether
the findings of the PCRA court are supported by the record and free from legal
error.” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
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II.
Corliss first argues that his convictions as to four counts (indecent
assault, indecent exposure, corruption of minors, and endangering the welfare
of children) must be vacated because the two-year statute of limitations
period expired before the charges were filed, divesting the trial court of
jurisdiction. The PCRA court properly denied this claim, as it was previously
litigated on direct appeal. See Commonwealth v. Corliss, 108 EDA 2017
(Pa. Super. Dec. 8, 2017); see also Commonwealth v. Corliss, 176 MAL
2018 (Pa. Oct. 30, 2018) (denying petition for allowance of appeal).4
We explained in pages 8 and 9 of our memorandum that the above
counts are subject to a statutory exception to the limitations period.
Subsection 5552(c)(3) provides that if such offenses are committed against a
minor victim, then they may be prosecuted “up to the later of the period of
limitation provided by law after the minor has reached 18 years of age or the
date the minor reaches 55 years of age.” 42 Pa.C.S. § 5552(c)(3) (emphasis
added). There was no dispute in this case that C.C. was under the age of 55
at the time the counts were charged, so the exception applied.
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4 Corliss also unsuccessfully raised this exact jurisdictional claim in a petition
for writ of habeas corpus filed in federal court. See Corliss v. McGinley,
2020 WL 4758250 at *6 (M.D. Pa. Aug. 17, 2020). The PCRA court has further
enumerated several other fruitless attempts by Corliss to raise the same claim.
See PCRA Court Opinion, 5/27/2020, at 52 n.9.
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A prerequisite for PCRA relief is that a claim of error has not been
previously litigated. See 42 Pa.C.S. § 9543(a)(3). This occurs when “the
highest appellate court in which the petitioner could have had review as a
matter of right has ruled on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2).
Corliss received a ruling as to this statute of limitations claim on direct appeal,
and our Supreme Court declined to grant further review. Thus, the PCRA
correctly determined that the prior resolution of this issue compelled the denial
of the reasserted claim.
III.
Corliss next contends that the PCRA court erred in denying his claim that
the evidence was legally insufficient to sustain his conviction on the count of
involuntary deviate sexual intercourse (IDSI). Again, the PCRA court did not
err in denying this claim because it was previously raised on direct appeal,
and the denial of the claim was affirmed. See Commonwealth v. Corliss,
108 EDA 2017 (Pa. Super. Dec. 8, 2017); see also Commonwealth v.
Corliss, 176 MAL 2018 (Pa. Oct. 30, 2018) (denying petition for allowance of
appeal).
In our memorandum, we discussed the statutory definitions of IDSI in
18 Pa.C.S. § 3123(b) and 18 Pa.C.S. § 3101. We then explained that the
evidence presented at trial was legally sufficient to meet those definitions:
C.C. . . . testified that [Corliss] touched her chest and vagina,
exposed his penis, tried to place his penis in her mouth, and put
his mouth directly on her vagina. We find that this testimony
supports the jury’s guilty verdict for IDSI. See generally
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Commonwealth v. Mawhinney, 915 A.2d 107, 111 (Pa. Super.
2006), appeal denied, 932 A.2d 1287 (Pa. 2007) (finding that
the victim’s testimony describing elements of IDSI is sufficient
evidence to warrant conviction).
Corliss, 176 MAL 2018, at 10-12. Thus, the PCRA court correctly ruled that
this claim is now barred because it has already been fully litigated.
IV.
We now turn to Corliss’ claims of ineffective assistance of counsel. The
first claim is that defense counsel failed to challenge the admission of evidence
of his sexual offenses against D.G. The second claim is that defense counsel
failed to call to the stand an author of the DNA report from that prior case.
The third claim appears to be that defense counsel failed to adequately
impeach C.C.’s credibility through the cross-examination of witnesses.
"In order to obtain relief under the PCRA premised upon a claim that
counsel was ineffective, a petitioner must establish beyond a preponderance
of the evidence that counsel’s ineffectiveness ‘so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.’” Commonwealth v. Payne, 794 A.2d 902, 905 (Pa.
Super. 2002) (quoting 42 Pa.C.S. § 9543(a)(2)(ii)). Counsel is presumed to
be effective and the petitioner has the burden of proving otherwise. Payne,
794 A.2d at 906. “Counsel cannot be deemed ineffective for failure to assert
a meritless claim.” Id.To prevail on a claim of ineffectiveness, a PCRA petitioner must show
that (1) the claim is of arguable merit; (2) counsel had no reasonable strategic
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basis for his or her action or inaction; and (3) counsel’s ineffectiveness was
prejudicial. See Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999).
Prejudice in this context is defined as an error that was reasonably likely to
affect the outcome of the proceedings. See Commonwealth v. Mallory, 941
A.2d 686, 702 (Pa. 2008). Failure to satisfy any of these three prongs is fatal
to an ineffectiveness claim. See Commonwealth v. Wholaver, 177 A.3d
136, 144 (Pa. 2018).
A.
We dispose of the first ineffectiveness claim by referring to our previous
memorandum in which the merit of the underlying evidentiary issue was
decided. In Commonwealth v. Corliss, 2105 EDA 2014, 2091 EDA 2014
(Pa. Super. July 14, 2015), the Commonwealth filed an interlocutory appeal
of the trial court’s exclusion of Corliss’ prior offenses against D.G. We held
that under Pa.R.E. 404(b), the criminal conduct was relevant to prove the
allegations of C.C. in the present case. To remedy the error, we reversed the
trial court’s ruling and remanded for further proceedings consistent with our
mandate.
When the prosecution went on to refer to Corliss’ prior convictions from
his 1998 case throughout the trial in 2016, it would have been improper for
defense counsel to object or seek other relief. By then, the issue had already
been adjudicated in the Commonwealth’s favor. Counsel may not be found
ineffective for failure to assert a baseless claim.
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B.
For similar reasons, defense counsel was not ineffective for failing to call
to the stand Beth Giles, an author of the DNA report compiled in 1997. Corliss
argues that the testimony of this witness would have established that the DNA
report was exonerating as to the alleged crimes against D.G., impeaching the
latter witness’ credibility. The record does not support this claim.
To establish that counsel is ineffective under the PCRA by failing to call
or interview a potential witness, the petitioner must establish 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. Washington, 927 A.2d 586, 599 (Pa. 2007).
Corliss did not carry this burden, especially with respect to the second,
fourth and fifth prongs above. He made no showing that Giles was available
or willing to testify at the trial in 2016. He made no showing that Giles would
have given any testimony that would conflict with the contents of the DNA
report already in Corliss’ possession since 1997.
With respect to the final prejudice prong, we note that for years, Corliss
has tried and failed to prove the existence of a government conspiracy to
misrepresent the DNA report as “inconclusive.” He has repeatedly sought to
relitigate his convictions from the 1998 case, arguing that the DNA report was
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actually exonerating.5 Yet there is no basis in the record from which we could
conclude that the lack of testimony from Giles was so prejudicial as to deprive
Corliss of a fair trial. Thus, the PCRA court did not err in denying the claim
that defense counsel performed ineffectively in this regard.
C.
It appears that Corliss’ third ground of ineffectiveness is that defense
counsel did not adequately question C.C. and other witnesses about why she
refrained from reporting any sexual abuse in 2010, when, at age 10, she was
interviewed for purposes of a child custody dispute. Corliss posits that a more
aggressive approach on this topic would have bolstered his theory that C.C.
made up the accusations to appease her vindictive mother, Corliss’ ex-wife.
See Appellant’s Brief, at 67-74.
As to this claim or series of claims, Corliss fails to develop an argument
that is cogent enough for us to directly address. It is more of a catch-all
assertion of ineffectiveness that does not adequately specify what counsel
should have done differently with respect to a particular witness or piece of
evidence. “When issues are not properly raised and developed in briefs, [or]
when the briefs are wholly inadequate to present specific issues for review[,]
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5 Corliss has recently attempted to collaterally attack his convictions in the
1998 case by introducing an expert opinion that the DNA report was, in fact,
exculpatory. In Commonwealth v. Corliss, 1232 EDA 2020 (Pa. Super.
2020), we discuss in more depth why the PCRA procedurally bars all such
claims and precludes any attempt to use post-conviction proceedings as a
means of proving his innocence in case 743-CR-1997.
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a Court will not consider the merits thereof.” Commonwealth v. Sanford,
445 A.2d 149, 150 (Pa. Super. 1982).
We, therefore, dispose of these remaining claims by adopting the
portion of the PCRA court’s opinion that addresses all of Corliss’ ineffectiveness
grounds. See PCRA Court Opinion, 5/27/2020, at 19-29.
V.
Lastly, we consider Corliss’ claim that the PCRA court erred in summarily
quashing subpoenas of several individuals who were not called to the stand at
his trial in 2016. Corliss argues that these witnesses were relevant to prove
that defense counsel was ineffective, and that had counsel sought to question
the witnesses, their testimony would have exonerated him.
The PCRA court has detailed in its opinion why quashing these
subpoenas could not have prejudiced Corliss in the preparation of his case:
All of the witnesses subpoenaed were irrelevant to these cases
and were either involved in [Corliss’] previous 1998 conviction,
are current sitting judges, the prosecutor in these cases, or they
are witnesses whose testimony would have been privileged.
The witnesses subpoenaed by [Corliss] include James Butz, Esq.
(counsel for Ms. Tsang in a custody matter with [Corliss]), Daniel
Lyons, Esq. (custody conciliator), Beth Giles (State Police crime
lab at Greensburg, re: 1997 case DNA report), Sandra Singer
(State Police crime lab at Wyoming, re: 1997 case DNA report),
Brian Germano ([Corliss’] counsel at trial in the 743 CR 1997
matter and currently a Magisterial District Justice), Honorable
David J. Williamson (sitting judge in these matters), Honorable
Stephen Higgins (judge presiding over custody/support matters of
[Corliss]), Patricia Cheslock (counselor who met with C.C. in
counselling sessions prior to the allegations being made in case
1749 CR 2013), Detective Thomas Lynott (affiant in case 1749 CR
2013 and 743 CR 1997), Michael Rakaczewski (prosecutor in these
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cases), and David Skutnik, Esq. (counsel for [Corliss] for a period
of time in case 743 CR 1997).
Motions to quash the subpoenas of Attorney Butz, Attorney Lyons,
Ms. Giles, Ms. Singer and M.D.J. Germano were filed and granted
by this court prior to the PCRA hearing. Ms. Cheslock and Attorney
Skutnik did not appear at the hearing and there was no proof of
service on them. This court denied the subpoena requests as to
Judge Williamson, Judge Higgins, Attorney Rakaczewski, and
Detective Lynott at the PCRA hearing.
The testimony of the prosecutor in this case is not relevant to any
issues raised in the PCRA. The sitting judge in these matters is
not a proper witness and [Corliss] showed no grounds to compel
such testimony.
Judge Higgins was involved in [Corliss’] custody/support issues
and his testimony would not be relevant or permitted. Patricia
Cheslock did not appear at the hearing and [Corliss] did not
request her appearance at time of the PCRA hearing nor did he
show that service of the subpoena had been made.
Ms. Cheslock was a counsellor who allegedly met with C.C.
sometime in or about 2012 or 2013. She was not called as a
witness at time of trial, and her testimony would have been
irrelevant to the issues properly allowed in this PCRA matter.
The other subpoenas were denied prior to the PCRA hearing based
upon the reasons set forth in the various motions to quash.
PCRA Court Opinion, 5/27/2020, at 10-12.
Having reviewed the relevant materials in the record, the PCRA court’s
reasoning and Corliss’ arguments on appeal, we find no error. Neither the
individuals involved in the trial in 1998 nor the individuals who produced a
DNA report in 1997 have any relevant testimony to offer at this point.
Furthermore, as discussed in our memorandum in case 1232 EDA 2020,
Corliss long ago exhausted his chances to prove that there was a conspiracy
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to misrepresent the DNA report as “inconclusive” when it was supposedly
exonerating. The PCRA prohibits him from relitigating his convictions in the
underlying matter at docket number 743 CR 1997.
The remaining witnesses – those relating to the more recent case at
docket number 1749-CR-2013 – were also properly excused from testifying.
Corliss has argued that during a custody dispute in 2010, Judge Higgins, Lyons
and Butz each interviewed C.C. after the alleged sexual offenses had occurred,
and yet C.C. made no mention of them at that time, instead waiting until 2013
to do so; Dr. Cheslock allegedly interviewed C.C. in 2012 or 2013. Corliss
maintains that the testimony of these witnesses would have somehow proven
that C.C. fabricated her accusations, and that his defense counsel was
ineffective for failing to bring that fact to light at trial.
By statute, however, all those conversations were privileged, and Corliss
had no right to compel their testimony in order to discredit his daughter, C.C.
See 23 Pa.C.S. § 6116 (Protection from Abuse Act); 42 Pa.C.S. § 5945.1
(Sexual Assault Counselor Privilege); 42 Pa.C.S. § 6307 (Juvenile Act); 23
Pa.C.S. § 6301-6385 (Child Protective Services Law). This is especially so
because the reasons Corliss offers for delving into that material are
nonsensical, and he has cited no legal basis for overcoming these privileges.
For all of the above reasons, the PCRA court committed no reversible
error, and the order on review must stand.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:4/30/21
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