J-A22045-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

JOSEPH SCOTT RANKINEN 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 403 MDA 2021

Appeal from the PCRA Order Entered March 5, 2021

In the Court of Common Pleas of Clinton County

Criminal Division at No(s): CP-18-CR-0000429-2016

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: DECEMBER 7, 2021

Appellant, Joseph Scott Rankinen, appeals from the order entered in the 

Clinton County Court of Common Pleas, which dismissed his first petition filed 

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. 

We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

In May 2011, Appellant raped and sexually assaulted Victim during a 4-H 

program at the Clinton County Fairgrounds. At the time, Appellant was sixteen 

(16) years old, and Victim was twelve (12) years old. Victim did not report 

the crimes until 2015, when she realized the gravity of Appellant’s actions. 

Following trial, a jury convicted Appellant of rape, rape of a child, 

involuntary deviate sexual intercourse (“IDSI”), indecent assault, and 

terroristic threats. On September 18, 2017, the court sentenced Appellant to 
J-A22045-21

- 2 -

an aggregate fifteen (15) to thirty (30) years’ imprisonment. This Court 

affirmed the judgment of sentence on May 31, 2019, and our Supreme Court 

denied allowance of appeal on February 19, 2020. 

On June 8, 2020, Appellant timely filed a counseled PCRA petition, 

raising various claims of trial counsel’s ineffectiveness. The court conducted 

an evidentiary hearing on October 13, 2020. Appellant’s trial counsel was the 

only witness presented at the hearing. After supplemental briefing, the court 

denied PCRA relief on March 5, 2021. 

Appellant timely filed a notice of appeal on March 25, 2021. That same 

day, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement 

of errors complained of on appeal. Appellant timely filed his Rule 1925(b) 

statement on April 12, 2021. 

Appellant now raises the following issues for our review: 

Whether the court erred in denying Appellant’s argument of 

[ineffective] assistance of counsel where counsel failed to 

object at trial to the testimony by Trooper Sweet to 

Appellant’s post-arrest and post-Miranda[1] silence? 

Whether the court erred in denying Appellant’s argument of 

[ineffective] assistance of counsel where counsel failed to 

request a jury instruction on the lack of prompt complaint 

for the eleven (11) month time period of May of 2014 to 

April of 2015? 

Whether the court erred in denying Appellant’s argument of 

[ineffective] assistance of counsel where counsel failed to 

move pretrial to dismiss the charge of [IDSI]? 

____________________________________________

1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 
J-A22045-21

- 3 -

(Appellant’s Brief at 3). 

“Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s determination 

and whether its decision is free of legal error.” Commonwealth v. Beatty, 

207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, ___ Pa. ___, 218 

A.3d 850 (2019). This Court grants great deference to the factual findings of 

the PCRA court if the record contains any support for those findings. 

Commonwealth v. Howard, 249 A.3d 1229 (Pa.Super. 2021). “[W]e review 

the court’s legal conclusions de novo.” Commonwealth v. Prater, 256 A.3d 

1274, 1282 (Pa.Super. 2021). 

In his first issue, Appellant contends that the Commonwealth presented 

trial testimony from Corporal Matthew Sweet, the state police officer who 

questioned Appellant following his arrest. Appellant asserts that: 1) the 

prosecutor asked Corporal Sweet about Appellant’s post-arrest statements; 

2) Corporal Sweet testified that he questioned Appellant about his attitudes 

towards sex and sexuality; and 3) when Corporal Sweet asked Appellant about 

whether he thought that sexual abuse was normal, Appellant did not respond. 

Appellant notes that trial counsel failed to object to this testimony, and the 

prosecutor subsequently exploited the testimony by referencing Appellant’s 

post-arrest silence during closing arguments. 

Appellant argues that Corporal Sweet’s testimony violated his Fifth 

Amendment privilege against self-incrimination. Appellant maintains that trial 
J-A22045-21

- 4 -

counsel had no reasonable basis for failing to object to Corporal Sweet’s 

testimony, and trial counsel misapprehended the relevant law regarding postarrest silence. Appellant also complains that he suffered prejudice due to trial 

counsel’s inaction, where “[c]ounsel’s error was compounded by the fact that 

the District Attorney later used that specific prejudicial evidence against 

Appellant in his closing arguments to the jury.” (Appellant’s Brief at 17). 

Appellant concludes that trial counsel was ineffective for failing to object to 

Corporal Sweet’s testimony regarding Appellant’s post-arrest silence. We 

disagree. 

“Counsel is presumed to have rendered effective assistance.” 

Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal 

denied, ___ Pa. ___, 242 A.3d 908 (2020). 

[T]o establish a claim of ineffective assistance of counsel, a 

defendant must show, by a preponderance of the evidence, 

ineffective assistance of counsel which, in the circumstances 

of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence 

could have taken place. The burden is on the defendant to 

prove all three of the following prongs: (1) the underlying 

claim is of arguable merit; (2) that counsel had no 

reasonable strategic basis for his or her action or inaction; 

and (3) but for the errors and omissions of counsel, there is 

a reasonable probability that the outcome of the 

proceedings would have been different. 

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019), 

appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and 

quotation marks omitted). The failure to satisfy any prong of the test for 

ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612 
J-A22045-21

- 5 -

Pa. 333, 30 A.3d 1111 (2011). 

“The threshold inquiry in ineffectiveness claims is whether the 

issue/argument/tactic which counsel has foregone and which forms the basis 

for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth 

v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175, 

179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524, 

645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing 

to pursue a baseless or meritless claim.” Commonwealth v. Poplawski, 

852 A.2d 323, 327 (Pa.Super. 2004). 

“Once this threshold is met we apply the ‘reasonable basis’ test to 

determine whether counsel’s chosen course was designed to effectuate his 

client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012 

(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95). 

The test for deciding whether counsel had a reasonable 

basis for his action or inaction is whether no competent 

counsel would have chosen that action or inaction, or, the 

alternative, not chosen, offered a significantly greater 

potential chance of success. Counsel’s decisions will be 

considered reasonable if they effectuated his client’s 

interests. We do not employ a hindsight analysis in 

comparing trial counsel’s actions with other efforts he may 

have taken. 

Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting 

Sandusky, supra at 1043-44). 

“To demonstrate prejudice, the petitioner must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result 
J-A22045-21

- 6 -

of the proceedings would have been different. [A] reasonable probability is a 

probability that is sufficient to undermine confidence in the outcome of the 

proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312 

(2014) (internal citations and quotation marks omitted). “[A] criminal 

defendant alleging prejudice must show that counsel’s errors were so serious 

as to deprive the defendant of a fair trial, a trial whose result is reliable.” 

Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3, 

22, 807 A.2d 872, 883 (2002)). 

“It is axiomatic that a defendant enjoys a Constitutional right to remain 

silent and that it is a violation of that right where reference is made to the 

accused’s post-arrest silence.” Commonwealth v. Messersmith, 860 A.2d

1078, 1093 (Pa.Super. 2004), appeal denied, 583 Pa. 688, 878 A.2d 863 

(2005). 

To protect an individual’s Fifth Amendment privilege against 

self-incrimination, the United States Supreme Court has 

held that, before an individual in police custody may be 

interrogated, he must first be informed, in clear and 

unequivocal terms, that he has the right to remain silent, 

that anything he says can and will be used against him in 

court, and that he has the right to consult with counsel and 

to have counsel present during interrogation, and, if he is 

indigent, counsel will be appointed for him. If an individual

indicates in any manner, at any time prior to or during 

questioning, that he wishes to remain silent, the 

interrogation must cease, and any statement taken after the 

person invokes his privilege cannot be other than the 

product of compulsion, subtle or otherwise. 

Commonwealth v. Frein, 651 Pa. 635, 661-62, 206 A.3d 1049, 1064 

(2019), cert. denied, ___ U.S. ___, 140 S.Ct. 844, ___ L.Ed.2d ___ (2020) 
J-A22045-21

- 7 -

(internal citations, footnote, and quotation marks omitted). 

“It is the Commonwealth’s burden to establish whether [a defendant] 

knowingly and voluntarily waived his Miranda rights. In order to do so, the 

Commonwealth must demonstrate that the proper warnings were given, and 

that the accused manifested an understanding of these warnings.” 

Commonwealth v. Baez, 21 A.3d 1280, 1283 (Pa.Super. 2011), appeal 

denied, 614 Pa. 699, 37 A.3d 1193 (2012) (quoting Commonwealth v. 

Eichinger, 591 Pa. 1, 24, 915 A.2d 1122, 1135-36 (2007)). “If the totality 

of the circumstances reveals an uncoerced choice and the requisite level of 

comprehension, a court may properly find that Miranda rights have been 

waived.” Commonwealth v. Lukach, 163 A.3d 1003, 1011 (Pa.Super. 

2017), affirmed, 649 Pa. 26, 195 A.3d 176 (2018). 

“[I]n Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 

L.Ed.2d 1098 (2010), the high Court held that an individual in police custody 

subject to interrogation must affirmatively invoke his or her Miranda rights; 

thus, mere silence in the face of police questioning after being given Miranda

warnings is insufficient to invoke Miranda rights.” Commonwealth v. 

Briggs, 608 Pa. 430, 475 n.27, 12 A.3d 291, 318 n.27 (2011), cert. denied, 

565 U.S. 889, 132 S.Ct. 267, 181 L.Ed.2d 157 (2011). “If an accused makes 

a statement concerning [his or her Miranda rights] ‘that is ambiguous or 

equivocal’ or makes no statement, the police are not required to end the 

interrogation ... or ask questions to clarify whether the accused wants to 
J-A22045-21

- 8 -

invoke his or her Miranda rights....” Berghuis, supra at 381, 130 S.Ct. at 

2259-60, 176 L.Ed.2d at ___ (internal citations omitted) (emphasis added). 

Instantly, Corporal Sweet testified that he executed an arrest warrant 

and took Appellant into custody on April 6, 2016. (See N.T. Trial, 6/22/17, 

at 197). Prior to conducting an interview, Corporal Sweet advised Appellant 

of his Miranda rights. (Id. at 198). At the time, Appellant and Corporal 

Sweet were seated in the back of an unmarked state police vehicle. (Id.) 

Another trooper drove the vehicle. (Id.) Appellant “indicated that he 

understood his Miranda warnings and that he agreed to talk to us at that 

point.” (Id. at 198-99). 

During the interview, Corporal Sweet informed Appellant about the 

nature of Victim’s allegations. (Id. at 200). Appellant denied sexually 

assaulting Victim. (Id. at 201). After Appellant’s denial, Corporal Sweet 

changed tactics and attempted “to deflect some of the blame on maybe the 

way he was growing up or brought up or something that had happened in 

[Appellant’s] past.” (Id. at 202-03). Appellant subsequently indicated that 

he had been sexually assaulted by “an older neighbor boy” in the past. (Id.

at 205). Corporal Sweet then asked Appellant about his sexuality: 

I got into him with his sexuality, whether he was a virgin, 

stuff like that, trying to get, again, conversation to keep him 

talking to possibly get some sort of admission. He indicated 

that he lost his virginity sometime after the 2011 incident, 

and I guess at that point I asked him, you know, do you feel 

that sexual abuse is normal, you know, the loss of your 

virginity. To that he gave no answer. He remained silent. 
J-A22045-21

- 9 -

(Id. at 206). 

Despite Appellant’s silence in response to this one specific inquiry, the 

interview continued. Appellant acknowledged that he knew Victim, but their 

interactions were limited to the 4-H program. (Id. at 207). During the 

remainder of the interview, Corporal Sweet characterized Appellant’s behavior 

as “happy go lucky, jovial at times.” (Id. at 208). Corporal Sweet also 

indicated that Appellant “was cracking jokes pretty much the entire ride ... 

making light of a lot of things that were going on.” (Id.) 

Although trial counsel did not object to Corporal Sweet’s reference to 

Appellant’s silence, the PCRA court emphasized that Appellant did not actually 

invoke his right to remain silent: 

In the present matter, [Appellant] took absolutely no 

affirmative action to invoke his right to remain silent. 

[Appellant] continued to answer [Corporal] Sweet’s 

questions following his waiver of his Miranda Rights for the 

vast majority of the interview, with the exception of the one 

question at issue. These actions are not clear and 

[un]ambiguous as they need to be for the invocation of his 

right to remain silent. 

(PCRA Court Opinion, filed March 5, 2021, at 8) (unnumbered). 

Our review of the record confirms the PCRA court’s conclusion. See 

Prater, supra; Beatty, supra. Appellant’s silence in response to one 

question after being given Miranda warnings was insufficient to invoke 

Miranda rights. See Briggs, supra. See also Berghuis, supra (holding

defendant did not unambiguously invoke right to remain silent; fact that 

defendant was silent during first two hours and forty-five minutes of three-
J-A22045-21

- 10 -

hour interrogation was insufficient to invoke right to remain silent under 

Miranda, where defendant never stated that he wanted to remain silent or 

that he did not want to talk with police). Because the Commonwealth did not 

violate Appellant’s rights by eliciting testimony regarding this limited instance 

of silence, there is no arguable merit to Appellant’s first ineffectiveness claim. 

See Frein, supra; Smith, supra. Consequently, no relief is due. 

In his second issue, Appellant admits that trial counsel requested a 

generic “prompt complaint” jury instruction. Appellant contends, however,

that Victim saw Appellant in May 2014. Although Victim “testified that 

everything came rushing back to her at that time,” Appellant emphasizes that 

Victim “still did not report the [crimes] until eleven (11) months later ... when 

she told her mother.” (Appellant’s Brief at 20). Appellant insists that trial 

counsel should have made a specific request for a prompt complaint 

instruction for the period from May 2014 through when the complaint was 

made in 2015. 

Because the Commonwealth’s case revolved around Victim’s testimony, 

Appellant maintains that Victim’s credibility was critical, and “the issue of the 

lack of a prompt complaint was significant.” (Id. at 23). Appellant further 

argues that trial counsel had no reasonable strategic basis for failing to raise 

the issue of prompt complaint “as framed here,” and the court’s failure to 

provide such a jury instruction caused Appellant to suffer prejudice. (Id.) 

Appellant concludes that trial counsel was ineffective on this basis. We 
J-A22045-21

- 11 -

disagree. 

“It is well-settled that ‘the trial court has wide discretion in fashioning 

jury instructions. The trial court is not required to give every charge that is 

requested by the parties and its refusal to give a requested charge does not 

require reversal unless the appellant was prejudiced by that refusal.’” 

Commonwealth v. Scott, 73 A.3d 599, 602 (Pa.Super. 2013) (quoting 

Commonwealth v. Brown, 911 A.2d 576, 583 (Pa.Super. 2006)). 

[T]his Court has explained that [t]he prompt complaint 

instruction is based upon a belief that a victim of a violent 

assault would reveal the assault occurred at the first 

available opportunity. 

However, [t]he propriety of a prompt complaint instruction 

is determined on a case-by-case basis pursuant to a 

subjective standard based upon the age and condition of the 

victim. For example, where the victim of a sexual assault is 

a minor who may not have appreciated the offensive nature 

of the conduct, the lack of a prompt complaint would not 

necessarily justify an inference of fabrication. This is 

especially true where the perpetrator is one with authority 

or custodial control over the victim. 

Commonwealth v. Snyder, 251 A.3d 782, 790 (Pa.Super. 2021) (internal 

citations and quotation marks omitted). 

Instantly, trial counsel requested Pennsylvania Suggested Standard 

Criminal Jury Instruction 4.13(A), regarding a victim’s failure to make a 

prompt complaint. (See N.T. Trial, 6/23/17, at 8-9). At that time, trial 

counsel did not specify that the instruction should be for the period from May 

2014 through when the complaint was made in 2015. In denying trial 

counsel’s request, the court correctly noted that the lack of a prompt 
J-A22045-21

- 12 -

complaint does not necessarily justify an inference of fabrication where the 

victim is a minor who “may not have appreciated the offensive nature of the 

conduct.” (Id. at 10). 

Regardless of whether trial counsel limited her request for a prompt 

complaint instruction to the period from May 2014 through when the complaint 

was made, our review of the record confirms that Victim did not appreciate 

the offensive nature of Appellant’s conduct until she first informed her mother 

about the underlying incident in 2015. At trial, Victim testified that she was 

a virgin, and she did not know what sex was at the time of the assault. (See

N.T. Trial, 6/22/17, at 58). Victim also testified about the circumstances of 

the 2015 revelation to her mother: “I told her that he raped me because I 

knew what that term meant at that time.” (Id. at 86). Victim further 

explained that she did not share information about the assault sooner because 

she “was embarrassed, scared,” and she had been working with a therapist 

for “about a year” to overcome these issues. (Id. at 87). 

Because Victim did not appreciate the offensive nature of Appellant’s 

conduct for a period after the assault, any prompt complaint instruction was 

unwarranted. See Snyder, supra. Under these circumstances, there is no 

arguable merit to Appellant’s ineffectiveness claim. See Smith, supra. 
J-A22045-21

- 13 -

Therefore, Appellant is not entitled to relief on his second issue.

2

 

In his third issue, Appellant asserts that the Commonwealth’s pretrial 

discovery did not contain information to support the IDSI charge. “Despite 

this fact, [trial] counsel failed to move pretrial to dismiss the charge of [IDSI].” 

(Appellant’s Brief at 23). Appellant insists that the court would have had no 

choice but to grant a motion to dismiss the IDSI charge, where the 

Commonwealth failed to support the offense “even at a prima facie level.” 

(Id.) Appellant contends that trial counsel did not have a reasonable strategic 

basis for failing to move for dismissal of the charge prior to trial. Appellant 

also argues that he suffered prejudice due to trial counsel’s inaction. 

Specifically, Appellant notes that Victim “testified [at trial] that Appellant 

forced her to the ground and made her perform oral sex on him,” and this was 

the first time that there was any mention of behavior that satisfied the 

elements of IDSI. (Id. at 24). Based upon the foregoing, Appellant concludes 

that trial counsel was ineffective for failing to move for dismissal of the IDSI 

____________________________________________

2 The PCRA court characterized this issue as previously litigated on direct 

appeal. We disagree with this conclusion. Specifically, Appellant’s direct 

appeal argument was that the trial court erred in denying the requested

prompt complaint instruction. See Commonwealth v. Rankinen, 217 A.3d 

449 (Pa.Super. 2019), appeal denied, ___ Pa. ___, 225 A.3d 1099 (2020) 

(unpublished memorandum). The current PCRA issue based upon counsel’s 

purported ineffectiveness “raises a claim distinct from the underlying 

allegations of trial court error, given its basis in Sixth Amendment principles.” 

Commonwealth v. Gibson, 597 Pa. 402, 445, 951 A.2d 1110, 1136 (2008). 

This Court, however, is not bound by the rationale of the PCRA court and may 

affirm on any basis. See In re Jacobs, 15 A.3d 509 (Pa.Super. 2011). 
J-A22045-21

- 14 -

charge prior to trial. We disagree. 

“The purpose of a preliminary hearing is to determine whether the 

Commonwealth has made out a prima facie case for the offenses charged.”

Commonwealth v. Bostian, 232 A.3d 898, 908 (Pa.Super. 2020), appeal 

denied, ___ Pa. ___, 244 A.3d 3 (2021). “A prima facie case consists of 

evidence, read in the light most favorable to the Commonwealth, that 

sufficiently establishes both the commission of a crime and that the accused 

is probably the perpetrator of that crime.” Id. (quoting Commonwealth v. 

Black, 108 A.3d 70, 77 (Pa.Super. 2015)). “A pre-trial habeas corpus motion 

is the proper means for testing whether the Commonwealth has sufficient 

evidence to establish a prima facie case.” Commonwealth v. Dantzler, 135 

A.3d 1109, 1112 (Pa.Super. 2016) (en banc). 

Further, the Crimes Code defines IDSI of a child as follows: 

§ 3123. Involuntary deviate sexual intercourse

* * *

(b) Involuntary deviate sexual intercourse with a 

child.—A person commits involuntary deviate sexual 

intercourse with a child, a felony of the first degree, when 

the person engages in deviate sexual intercourse with a 

complainant who is less than 13 years of age. 

18 Pa.C.S.A. § 3123(b). “[I]n order to sustain a conviction for [IDSI], the 

Commonwealth must establish the perpetrator engaged in acts of oral or anal 

intercourse, which involved penetration however slight.” Commonwealth v. 

L.N., 787 A.2d 1064, 1070 (Pa.Super. 2001), appeal denied, 569 Pa. 680, 
J-A22045-21

- 15 -

800 A.2d 931 (2002). 

Instantly, trial counsel testified at the PCRA hearing and confirmed that 

the Commonwealth did not provide any information during discovery to 

support the IDSI charge. (See N.T. PCRA Hearing, 10/13/20, at 26). Trial 

counsel also provided the following explanation for her decision not to make 

a pretrial motion to dismiss the IDSI charge: 

So my experience has been that there are times that 

prosecutors aren’t truly prepared and so they don’t present 

all of the elements in a case. If I alert the prosecution prior 

to a trial that there are elements that are missing, they’ll 

just clean it up. So taking that plus the thought that the 

jury would hear initially in an opening argument that there 

were multiple charges and then when the instruction was 

given a charge was gone, I trust that juries pick up on those 

pieces of information and then start to question the 

information that’s in front of them. 

(Id. at 27). Trial counsel also testified that she met with Appellant prior to 

trial, she reviewed the discovery with him, and Appellant was aware of trial 

counsel’s strategy regarding the timing for a motion to dismiss the IDSI 

charge. (Id. at 11-12, 27). 

The PCRA court found trial counsel’s testimony credible, and it would 

not “second guess” trial counsel’s strategy. (See PCRA Court Opinion at 11)

(unnumbered). In light of the applicable standard of review, we grant great 

deference to the court’s credibility determination. See Commonwealth v. 

Johnson, 600 Pa. 329, 356, 966 A.2d 523, 539 (2009) (stating, “A PCRA 

court passes on witness credibility at PCRA hearings, and its credibility 

determinations should be provided great deference by reviewing courts”). We 
J-A22045-21

- 16 -

also decline Appellant’s invitation to employ a hindsight analysis in comparing 

trial counsel’s actions with other efforts she could have taken. See King, 

supra. Consequently, Appellant is not entitled to relief on his third claim, and 

we affirm the order denying PCRA relief. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/07/2021