J-S64022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

CHERYL ANN KUNKLE

Appellant No. 206 EDA 2016

Appeal from the PCRA Order Dated December 21, 2015

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0001390-2005

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 04, 2016

Appellant, Cheryl Ann Kunkle, appeals from the order denying her 

petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546, on the ground that her counsel was ineffective. We 

affirm.

In 2007, Appellant was convicted of murdering Benjamin Amato in his 

Chestnuthill Township, Monroe County home in 2001. As the PCRA court 

explained, Appellant and Amato had a child together in 1998, and then 

ended their relationship and fought over custody of the child. During the 

custody dispute in 2001, Appellant accused Amato of harassing her, but 

Amato was acquitted of those charges. PCRA Court Opinion, 12/21/15, at 1; 

see N.T. 2/8/07, at 486-88, 493. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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That November, Amato was found dead in his home. The evidence at 

trial showed that Amato was attacked in his basement, sprayed with “pepper 

spray,” and struck in the head three or four times with a blunt object. See 

N.T. 2/7/07, 175-76, 231-32; 2/9/07, 619; 2/13/07, 960. Appellant was 

found guilty of committing the murder and sentenced to life imprisonment 

on the murder charge and a concurrent term of 10 to 23 years on related 

charges. PCRA Court Opinion, 12/21/15, at 2. Her appeal to this Court was 

dismissed when her counsel failed to file a brief. Commonwealth v. 

Kunkle, No. 2750 EDA 2007 (Pa. Super., May 12, 2008) (unpublished 

memorandum).

On July 22, 2008, Appellant filed her first PCRA petition, seeking 

reinstatement of her direct appellate rights. The PCRA court granted that 

petition and reinstated Appellant’s appellate rights nunc pro tunc. This Court 

then affirmed Appellant’s judgment of sentence. Commonwealth v. 

Kunkle, No. 3447 EDA 2008 (Pa. Super., Dec. 2, 2009) (unpublished 

memorandum), appeal denied, 27 A.2d 223 (Pa. 2011).

On August 31, 2012, Appellant filed a second PCRA petition that again 

sought reinstatement of her direct appellate rights, this time on the ground 

that her appellate counsel failed properly to preserve certain claims in her 

direct appeal. Once again, the PCRA court granted Appellant’s PCRA petition 

and reinstated her direct appellate rights nunc pro tunc. And once again this 

Court affirmed the judgment of sentence. Commonwealth v. Kunkle, 79 

A.3d 1173 (Pa. Super. 2013), appeal denied, 114 A.3d 1039 (Pa. 2015). 
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Appellant filed this PCRA petition, her third, on June 8, 2015.1 The 

PCRA court appointed counsel for Appellant, who then filed an Amended 

PCRA Petition on September 11, 2015. PCRA Court Opinion, 12/21/2015, at 

2-3. In her amended petition, Appellant claimed that trial counsel was 

ineffective for: (1) failing to submit physical evidence for further DNA 

testing; (2) failing to comply with Pennsylvania Rule of Evidence 609 with 

regard to impeachment of a Commonwealth witness, Gerald Terlesky; and 

(3) failing to play for the jury a recording of a voicemail message Appellant 

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1

 As the PCRA court noted, this third petition was timely filed. See PCRA 

Court Opinion, 12/21/15, at 3. Generally, a PCRA petition must be filed 

within one year of the date the petitioner’s judgment of sentence became 

final. 42 Pa.C.S. § 9545(b). For purposes of the PCRA, “a judgment 

becomes final at the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the Supreme Court of 

Pennsylvania, or at the expiration of time for seeking the review.” 42 

Pa.C.S. § 9545(b)(3). Although Appellant was convicted in 2007, the 

reinstatements of her direct appeal rights as a result of her first two PCRA 

petitions meant that her sentence was not final until completion of the 

reinstated appellate proceedings in 2015. The Supreme Court of 

Pennsylvania denied Appellant’s petition for allowance of appeal in her 

reinstated direct appeal on April 22, 2015. Commonwealth v. Kunkle, 

114 A.3d 1039 (Pa. 2015). Appellant did not seek a writ of certiorari from 

the U.S. Supreme Court, and her time for doing so expired on July 21, 2014, 

90 days after the Supreme Court of Pennsylvania’s decision. See U.S. Sup. 

Ct. R. 13; Commonwealth v. Miller, 102 A.3d 988, 993 (Pa. Super. 2014) 

(where Superior Court affirmed judgment of sentence, Supreme Court of 

Pennsylvania denied allocatur, and appellant did not seek review in U.S. 

Supreme Court, judgment of sentence became final when period for seeking 

review in U.S. Supreme Court expired). Thus, Appellant’s judgment of 

sentence became final on July 21, 2015, and her third PCRA petition, which 

was filed on June 8, 2015, was timely.
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left for Amato before the murder occurred. See Amended PCRA Petition, 

9/11/15, ¶¶ 13-37.2 

The PCRA court held an evidentiary hearing on November 2, 2015, and 

both parties submitted post-hearing briefs. On December 21, 2015, the 

PCRA court denied Appellant’s petition. In an opinion filed that same day, 

the court explained its rationale: (1) Appellant’s claim regarding DNA testing 

lacked arguable merit because additional testing would not exculpate 

Appellant, see PCRA Court Opinion, 12/21/15, at 5-8; (2) Appellant was not 

prejudiced by trial counsel’s failure to comply with Rule of Evidence 609 

because the testimony of the witness at issue was cumulative of other 

testimony, see id. at 8-12; and (3) trial counsel had a reasonable basis for 

not playing the voicemail recording in which Appellant used a threatening 

tone of voice towards Amato, see id. at 13-16. This appeal followed. 

Appellant raises the following issues, as stated:

1. Whether the trial court erred in finding trial counsel effective 

despite his decision not to submit physical evidence for further 

DNA testing.

2. Whether the trial court erred in determining Appellant was not 

prejudiced by trial counsel’s failure to properly comply with 

Pennsylvania Rule of Evidence 609.

____________________________________________

2 Appellant raised a fourth claim in her Amended PCRA Petition, but later 

withdrew that claim. See Brief in Support of Defendant’s Petition for PostConviction Collateral Relief, 12/1/15, at 1 n.1
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3. Whether the trial court erred in determining trial counsel’s 

decision to refrain from playing a voicemail recording was 

reasonable.

Appellant’s Brief at 4. We will address these issues in the order presented. 

Preliminarily, we recognize that in reviewing the propriety of an order 

granting or denying PCRA relief, this Court is limited to ascertaining whether 

the evidence supports the determination of the PCRA court and whether the 

ruling is free of legal error. Commonwealth v. Payne, 794 A.2d 902, 905 

(Pa. Super. 2002), appeal denied, 808 A.2d 571 (Pa. 2002) (table). This 

Court defers to the findings of the PCRA court, which will not be disturbed 

unless they have no support in the certified record. Id. Furthermore, to be 

entitled to relief under the PCRA, the petitioner must plead and prove by a 

preponderance of the evidence that the conviction or sentence arose from 

one or more of the errors enumerated in Section 9543(a)(2) of the PCRA. 

One such error is “[i]neffective 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.” 42 Pa.C.S. § 9543(a)(2)(ii). Each of Appellant’s three issues 

challenges the effectiveness of trial counsel under this provision. 

The law presumes that counsel was effective, and it is the petitioner’s 

burden to prove the contrary. Payne, 794 A.2d at 906. To satisfy this 

burden, a petitioner must plead and prove that: (1) the underlying claim is 

of arguable merit; (2) counsel lacked a reasonable basis for taking the 

actions that are claimed to have been ineffective; and (3) the ineffectiveness 
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of counsel caused petitioner prejudice. See Commonwealth v. Pierce, 

527 A.2d 973, 975 (Pa. 1987). “To demonstrate prejudice, the petitioner 

must show that “there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have been 

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) 

(quotation marks and citation omitted). If a petitioner fails to prove by a 

preponderance of the evidence any of the Pierce prongs, the court need not 

address the remaining prongs. Commonwealth v. Fitzgerald, 979 A.2d 

908, 911 (Pa. Super. 2009), appeal denied, 990 A.2d 727 (Pa. 2010) 

(table).

The Blood and Hair Samples

Appellant first claims that trial counsel was ineffective for not 

submitting physical evidence (two blood samples from Mr. Amato’s house 

and a hair from Amato’s shirt) for additional DNA testing, which, Appellant 

asserts, “would have provided significant exculpatory evidence in that it 

would have provided evidence to implicate another individual.” Appellant’s 

Brief at 17. Prior to trial, the Commonwealth’s expert, Gina T. Musante, 

tested the blood samples and determined that both contained DNA from 

Amato and an unidentified source. Ms. Musante testified at trial that 

Appellant was excluded as a contributor of the DNA in both blood samples. 

See Appellant’s Brief at 16; N.T. 2/9/07, 662, 664-65. Ms. Musante also 

testified that the hair was too degraded for her to perform nuclear DNA 
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testing. However, she acknowledged that mitochondrial DNA testing, which 

her lab did not perform, could yield results when materials are too degraded 

for nuclear DNA testing. She did not know if the hair recovered from Mr. 

Amato’s shirt was suitable for mitochondrial DNA testing. See Appellant’s 

Brief at 16; N.T. 2/9/07, at 657, 666-67.

Relying upon Commonwealth v. [Rasheed] Williams, 899 A.2d 

1060 (Pa. 2006), Appellant argues that her claim has arguable merit 

because further DNA testing would rebut identification testimony offered by 

the Commonwealth. Appellant’s Brief at 14-15. In Williams, the Court held 

that a claim that trial counsel was ineffective for not requesting DNA testing 

had arguable merit because the resulting evidence could have challenged 

the victim’s identification of the petitioner. Williams, 899 A.2d at 1064.3

Here, with respect to the blood samples, the PCRA court properly 

concluded that Appellant’s claim lacked arguable merit. See PCRA Court 

Opinion, 12/21/15, at 5. As the PCRA court explained: “DNA testing [of the 

blood samples] had already excluded [Appellant] as a contributor. Further 

DNA testing would not give ‘exculpatory results’ because there was no 

reason to further exculpate [Appellant] in this regard — the evidence 

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3

 The Court in Williams remanded for an evidentiary hearing to address 

whether counsel had a reasonable basis for not requesting the testing, and it 

suggested that if Williams could prove that his counsel lacked such a 

reasonable basis, DNA testing could be conducted. The results of that 

testing would allow the PCRA court to then address whether the failure to do 

the testing prejudiced the defendant. See Williams, 899 A.2d at 1065-66.
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introduced by the Commonwealth already showed that the DNA did not 

belong to [Appellant].” Id. at 7 (citations to the record omitted). The PCRA 

court also explained why Appellant’s reliance on Williams was misplaced. 

In Williams, there was no pre-trial testing of the evidence at all. PCRA 

Court Opinion, 12/21/15, at 7 (citing Williams, 899 A.2d at 1062). Here, 

by contrast, pre-trial testing excluded Appellant as a source of the DNA in 

the blood samples, making Williams inapposite. See PCRA Court Opinion, 

12/21/15, at 7.

Appellant responds that “[s]ince trial counsel was unable to provide a 

specific individual who would have motive to murder the victim, evidence of 

another person’s presence at the scene would have significantly 

strengthened Appellant’s theory [that someone else was responsible for the 

murder] at trial.” Appellant’s Brief at 17. However, the evidence presented 

at trial — that the DNA from the blood samples matched the victim and 

another person who was not Appellant — already demonstrated another 

person’s presence at the scene. Appellant’s trial counsel was able to use 

that evidence to support Appellant’s theory. See N.T. 2/15/07, at 1127.

Appellant also argues that trial counsel lacked a reasonable basis for 

not pursuing mitochondrial DNA testing of the hair found on Amato’s shirt. 

Appellant’s Brief at 18-20. While the PCRA court’s opinion on this issue does 

not specifically address Appellant’s argument regarding the hair, we 

conclude that a remand for the filing of a supplemental opinion would be an 
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unnecessary expenditure of judicial resources because the record shows that 

trial counsel articulated a reasonable basis for his course of action. 

The Supreme Court of Pennsylvania recently reiterated the standard 

we apply in assessing the reasonable basis prong of the ineffectiveness test:

When assessing whether counsel had a reasonable basis for his 

act or omission, the question is not whether there were other 

courses of action that counsel could have taken, but whether 

counsel's decision had any basis reasonably designed to 

effectuate his client's interest. As the Commonwealth accurately 

states, this cannot be a hindsight evaluation of counsel's 

performance, but requires an examination of “whether counsel 

made an informed choice, which at the time the decision was 

made reasonably could have been considered to advance and 

protect [the] defendant's interests.” 

Commonwealth v. [Christopher] Williams, 141 A.3d 440, 463 (Pa. 

2016) (citations omitted). Here, at the PCRA hearing, trial counsel testified 

that mitochondrial DNA testing provides information only as to a maternal 

line, and that a hair from Appellant or her son, Gregory Rowe, would of 

course derive from the same maternal line. Trial counsel testified to a 

concern at the time of trial that additional testing therefore could seem to 

implicate Appellant indirectly if the hair was from her son, even if the hair 

was not hers. N.T. 11/2/15, 20-21. This unrebutted testimony 

demonstrates that counsel had a reasonable basis for not pursuing further 

testing of the hair. See [Rasheed] Williams, 899 A.2d at 1064 (“Not 

seeking testing that has the potential to convict a client may be a very 

reasonable strategy; strategy is not measured through hindsight against 
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alternatives not pursued, so long as trial counsel had a reasonable basis for 

the decision made”). 

We therefore hold that the PCRA court did not err in its determination 

that counsel was not ineffective for not seeking further DNA testing of either 

the blood or hair evidence at issue here.

Impeachment of Gerald Terlesky

Appellant next claims that the PCRA court erred in declining to find 

trial counsel ineffective for not complying with Pennsylvania Rule of Evidence 

609 with respect to Commonwealth witness Gerald Terlesky. Rule 609 

provides that a witness may be impeached with evidence of a prior 

conviction for a crime that involved dishonesty or a false statement. 

Pa.R.Evid. 609(a). If more than ten years have passed since the conviction 

or the witness’s release from confinement for that conviction, the conviction 

is admissible only if: “(1) its probative value substantially outweighs its 

prejudicial effect; and (2) the proponent gives an adverse party reasonable 

written notice of the intent to use it so that the party has a fair opportunity 

to contest its use.” Pa.R.Evid. 609(b).

Terlesky was the work partner of Appellant's father. At Appellant’s 

trial, he testified that Appellant told him that she killed Amato and that she 

had confessed committing the murder to her boyfriend, Officer Marty 

Reynolds. Terlesky testified that Appellant told him she had waited at 

Amato’s house for Amato to come home, hit him in the head at the top of a 
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set of stairs, and then fled out of a side door onto a deck, adding that she 

said Amato “went down like a pussy.” Terlesky stated that Appellant was 

limping and, when he asked why, Appellant told him she hurt herself when, 

while fleeing Amato’s house, she jumped off Amato’s deck and hit Amato’s 

boat. Terlesky also testified that Appellant asked Terlesky to retrieve a pair 

of shoes, a bat, and gloves that she had discarded in the woods after the 

killing and to help her burn them. See Commonwealth v. Kunkle, 79 

A.3d at 1177–78 (summarizing evidence introduced at trial). 

In her PCRA petition, Appellant alleged that Terlesky had convictions 

from 1977 for burglary and theft and that her trial counsel failed to provide 

notice to the Commonwealth of his intent to use those convictions to 

impeach Terlesky, as required by Rule 609(b). As a result, she claims, she 

was precluded from using the convictions to impeach Terlesky. See 

Amended PCRA Petition, 9/11/15, at ¶ 15-17; Appellant’s Brief at 23-26. 

The PCRA court concluded that Appellant failed to prove that she was 

prejudiced by trial counsel’s noncompliance with Rule 609, explaining that 

“[e]very pertinent fact Terlesky relayed at trial was also testified to by other 

witnesses, specifically Gregory Rowe and Marty Reynolds.” PCRA Court 

Opinion, 12/21/15, 8-12. Rowe is Appellant’s son. At Appellant’s murder 

trial, Rowe testified that two to three weeks before Amato’s death, Appellant 

had him purchase a can of mace for her, and that Appellant later told him 

that she killed Amato by spraying him with mace, knocking him down the 
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stairs, and beating him with a baseball bat until he was dead. See 79 A.3d 

at 1177 (summarizing evidence at trial). Reynolds was Appellant’s boyfriend 

and was a former police officer for the Pocono Mountain Regional Police. 

Reynolds testified that Appellant confessed to him that she killed Amato, 

showed Reynolds bruises on the left portion of her thigh, and told Reynolds, 

“I was there,” and “we fought all the way down the steps.” Id. at 1178. In 

light of this evidence at trial, the PCRA court found that Appellant failed to 

prove prejudice. PCRA Court Opinion, 12/21/15, at 12 (citing 

Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012), 

overruled on other grounds by Commonwealth v. Pander, 100 A.3d 

626 (Pa. Super. 2014)).

Appellant responds that the only witness other than Terlesky who 

provided information regarding physical evidence linking her to the crime 

was Gregory Rowe, her son, whose own credibility was “seriously 

questioned” because child pornography charges against him were withdrawn 

in exchange for his testimony against Appellant. Appellant’s Brief at 24.4 

The PCRA court correctly rejected this argument:

To the extent [Appellant] presently argues Terlesky bolstered 

Rowe’s credibility, the jury was similarly aware of Rowe’s crimen 

falsi conviction and the disposition of pending child pornography 

charges in exchange for his testimony against [Appellant]. The 

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4

 Rowe had also been convicted of unrelated murders in Pike County, as 

well as shoplifting, and the jury was made aware of those convictions. N.T. 

2/8/07, at 404-06.
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fact that the jury did not accept defense counsel’s interpretation 

of either of these sets of facts cannot be held against defense 

counsel as ineffectiveness.

PCRA Court Opinion, 12/21/15, at 11 (citations omitted). 

Upon careful review of the record, we agree with the PCRA court’s 

conclusion that even if Terlesky’s testimony had been impeached, “the 

Commonwealth still presented the same pertinent evidence through other 

witnesses.” PCRA Court Opinion, 12/21/15, at 12.5 Therefore Appellant 

could not show that, had trial counsel complied with Rule 609, there was a 

reasonable probability that the outcome of her trial would have been 

different. 

The Voicemail Message

In her third and final issue, Appellant claims that trial counsel was 

ineffective for not playing for the jury a recording of a voicemail message 

Appellant left for Amato prior to the killing. She argues that this would have 

dispelled the inference that the recording, referred to but not played by the 

Commonwealth, contained threats she made to Amato. See Appellant’s 

Brief at 26-28. At the PCRA hearing, trial counsel, Brett Riegel, testified that 

he listened to the recording before trial, and he described it as a “tirade” and 

“a venting of spleen kind of voice mail message.” N.T. 11/2/15, 23. He 

____________________________________________

5

 There was damaging evidence in addition to the testimony of Rowe and 

Reynolds. For example, two people testified that Appellant tried to hire 

them to kill Mr. Amato. See N.T. 2/9/07, 673-77; 2/12/07, 747-49. 
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testified that, while it did not contain explicit threats, Appellant’s tone could 

be interpreted as threatening. Id. at 24-25. He concluded that, in light of 

this tone, it would be better for Appellant if the jury did not hear the 

recording. Id. at 25. 

As the PCRA court concluded, trial counsel had a reasonable basis for 

not playing the recording:

Attorney Riegel’s decision not to play the tape for the jury was 

reasonable. His client was on trial for the murder of Amato and 

the trial strategy was that someone else had committed the 

crime. A voicemail from the [Appellant] to Amato in an 

aggressive tone, regardless of whether said message contained 

threats, would not have benefited [Appellant], particularly since 

the Commonwealth alleged she killed Amato out of hatred for 

him. Moreover, Attorney Riegel used the absence of the tape in 

evidence to his client’s advantage: based on the 

Commonwealth’s theory, they should have seized the 

opportunity to play a recorded threat from [Appellant] to Amato. 

However, they did not do so and Attorney Riegel was able to 

point that absence out to the jury and reasonably argue that it 

was because there were no threats on the tape. Moreover, this 

argument was effectively employed without revealing 

[Appellant’s] aggressive tone towards Amato.

PCRA Opinion, 12/21/15, at 15-16 (citations to the record and footnote 

omitted). We agree and find that the PCRA court correctly rejected 

Appellant’s third ineffectiveness claim.

In summary, the PCRA court correctly concluded that Appellant was 

not entitled to prevail on any of her three claims of trial counsel 

ineffectiveness. Accordingly, we affirm the PCRA court’s order denying 

Appellant post-conviction relief.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/4/2016