J-S47037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

GERALD CARL LIBERACE 

 Appellant No. 44 EDA 2014 

Appeal from the PCRA Order of December 10, 2013 

In the Court of Common Pleas of Delaware County 

Criminal Division at No.: CP-23-CR-0004523-2010 

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED AUGUST 25, 2014 

 Gerald Carl Liberace appeals the December 10, 2013 order dismissing 

his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”). See

42 Pa.C.S. §§ 9541-46. We affirm. 

 The PCRA court has summarized the relevant factual and procedural 

history of this case as follows: 

[A] criminal complaint charging [Liberace] with the 

indecent assault of a person less than thirteen years of 

age, endangering the welfare of a child and corruption of 

minors was filed after a Statewide Investigating Grand Jury 

issued a presentment recommending these charges. The 

matter proceeded to a jury trial where the victim[,] “L.H.,” 

an eighteen[-]year-old college student[,] testified that in 

August of 2004, when she was twelve years old, she was 

in the care of [Liberace,] her step-father. Her mother was 

away with friends for an overnight stay. This was the first 

time mother and daughter had ever been apart overnight. 

During the night L.H. was “scared” and went into the 

bedroom her mother shared with [Liberace]. She got into 

bed with [Liberace]. He rubbed her back as he had on 
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many occasions when her mother was present. On this 

night however, in addition to rubbing her back he went 

further and rubbed her “butt” and vaginal area on bare 

skin for about ten minutes. L.H. didn’t tell anyone about 

this incident until 2007 after her mother and [Liberace] 

separated and they no longer lived together. In the fall of 

2009[,] L.H.’s residence changed when she went to live 

with her father, his wife and their two children. In the 

spring of 2009[,] when [L.H.] was having difficulties in 

school[,] she told her father and her step-mother that 

[Liberace] touched her “inappropriately” in 2004. She 

engaged in counseling with a therapist once a week and

eventually, in June or July of 2009[,] she relayed the 

details of the 2004 incident to the counselor who made a 

report to law enforcement. L.H. gave a written statement 

at the [police station] and later agreed to participate in a 

consensual telephone intercept. Three telephone 

conversations between [Liberace] and L.H. that were 

captured on audio tape were played for the jury at trial. 

Trial Court Opinion Direct Appeal, filed 5/31/2011. 

[Liberace] was charged with three counts of indecent assault of a 

person less than thirteen years of age1, endangering the welfare 

of a child2 and corrupting the morals of a minor3. The jury found 

that he was guilty of endangering the welfare of a child and 

corrupting the morals of a minor. On March 29, 2011[,] an 

aggregate sentence of six to twelve months of incarceration to 

be followed by two years of probation was imposed. [Liberace’s] 

direct appeal followed the imposition of judgment of sentence, 

and[,] on May 19, 2011, the Superior Court [of Pennsylvania] 

affirmed [Liberace’s] judgment of sentence. A petition for 

allowance of appeal was denied by the Pennsylvania Supreme 

Court on July 11, 2012. 

1 18 Pa.C.S. § 3126(a)(7). 

2 18 Pa.C.S. § 4304(a). 

3

 18 Pa.C.S. § 6301.

On July 3, 2013[, Liberace] filed a timely [PCRA] petition and 

thereafter the Commonwealth answered the petition. After 

reviewing the petition and the record the [PCRA court] concluded 

that there were no genuine issues of material fact and on 

November 6, 2013[,] the [PCRA] court entered an order wherein 
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[Liberace] was advised of the court’s intent to dismiss the 

petition without a hearing. [See Pa.R.Crim.P. 907(1).] The 

[PCRA court] considered [Liberace’s] response to the notice, and 

on December 10, 2013, the petition was dismissed without a 

hearing. 

PCRA Court Opinion (“P.C.O.”), 3/28/2014, at 1-3 (record citations omitted). 

 On December 26, 2013, Liberace filed a timely notice of appeal. On 

February 5, 2014, the PCRA court ordered Liberace to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

On February 21, 2014, Liberace timely filed his Rule 1925(b) statement. On 

March 28, 2014, the PCRA court filed an opinion pursuant to 

Pa.R.A.P. 1925(a). 

 Liberace presents three issues for our review: 

1. Was [Liberace] denied effective assistance of counsel due to 

the failure [of Liberace’s trial counsel] to properly crossexamine the complaining witness with crucial inconsistent 

Grand Jury testimony? 

2. Was [Liberace] denied effective assistance of counsel for the 

failure [of Liberace’s trial counsel] to object to inadequate 

jury instructions regarding Endangering the Welfare of 

Children and Corruption of the Morals of a Minor? 

3. Did the lower court err by dismissing [Liberace’s] PCRA 

petition without a hearing? 

Brief for Liberace at 3. 

 Our review of a PCRA court order dismissing a petition under the PCRA 

is subject to the following standard: 

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court and the 
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evidence of record. We will not disturb a PCRA court’s ruling if it 

is supported by evidence of record and is free of legal error. 

This Court may affirm a PCRA court’s decision on any grounds if 

the record supports it. We grant great deference to the factual 

findings of the PCRA court and will not disturb those findings 

unless they have no support in the record. However, we afford 

no such deference to its legal conclusions. Further, where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review is plenary. 

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) 

(citations omitted). 

 In his first issue, Liberace alleges that his trial counsel provided 

ineffective assistance “by failing to properly establish a crucial discrepancy 

concerning the trial testimony of [L.H.].” Brief for Liberace at 13. 

Specifically, Liberace alleges the following: 

At the trial, [L.H.] testified that [Liberace] had on ten or more 

occasions placed his hand in the area of her “butt crack,” 

whereupon he proceeded to “rub her butt crack,” “where [her] 

anus is.” However, in [L.H.’s] testimony of January 7, 2010[,] 

before the grand jury, she had testified that [Liberace] “did not 

go all the way under and to the middle of” her buttocks.

Id. (emphasis in original; record citations omitted). 

Generally, to prevail on an ineffective assistance of counsel (“IAC”) 

claim raised under the PCRA, a petitioner must plead and prove by 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.” 42 Pa.C.S. § 9543(a)(2)(ii).

We begin with the presumption that counsel rendered effective 

assistance. Commonwealth v. Basemore, 744 A.2d 717, 

728 n.10 (Pa. 2000). To obtain relief on a claim of ineffective 
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assistance of counsel, a petitioner must rebut that presumption 

and demonstrate that counsel’s performance was deficient, and 

that such performance prejudiced him. Strickland v. 

Washington, 466 U.S. 668, 687-91 (1984). In our 

Commonwealth, we have rearticulated the Strickland Court’s 

performance and prejudice inquiry as a three-prong test. 

Specifically, a petitioner must show: (1) the underlying claim is 

of arguable merit; (2) no reasonable basis existed for counsel’s 

action or inaction; and (3) counsel’s error caused prejudice such 

that there is a reasonable probability that the result of the 

proceeding would have been different absent such error. 

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). 

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (citations 

modified). “If an appellant fails to prove by a preponderance of the evidence 

any of the Pierce prongs, the Court need not address the remaining prongs 

of the test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 

(Pa. Super. 2009). 

In the instant case, Liberace’s first IAC claim lacks arguable merit. As 

the PCRA court correctly noted, Liberace’s first IAC claim “is based on a 

mischaracterization of the testimony of record”:

It is apparent from the notes of testimony from the Grand Jury 

proceedings that [L.H.] was describing different events: first, 

events that occurred on one night in August of 2004 when her 

mother was away[,] and second, a “usual” course of conduct 

where [L.H.] spent time in bed with her mother and [Liberace] 

and where [Liberace] rubbed [L.H.’s] back below her panty line, 

near the top of the crack of her buttocks, but not on the middle 

of her buttocks. 

P.C.O. at 7-8 (record citations omitted). We have reviewed the record and 

confirmed Liberace’s mischaracterization. Because it is based upon a clear 

mischaracterization of the testimony in question, Liberace’s first IAC issue 
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lacks arguable merit, and he has failed to establish the first prong of the 

Pierce test. 527 A.2d at 975. Thus, Liberace’s first IAC allegation 

necessarily fails. 

In his second issue, Liberace alleges that trial counsel “provided 

ineffective assistance in failing to demand that the trial judge fully instruct 

the jury as to the two offenses for which [Liberace] was convicted.” Brief for 

Liberace at 16. Specifically, Liberace alleges the following: 

As to the offense of Corruption of the Morals of a Minor, the trial 

judge should have been requested to tell the jury that, as to 

what actions might corrupt the morals of a minor, the 

Commonwealth would have to prove that [Liberace] committed 

acts “that would offend the common sense of the community,

and the sense of decency, propriety, and morality which most 

people entertain[.”] Commonwealth v. Smith, 863 A.2d 

1172, 1177 (Pa. Super. 2004); Commonwealth v. Slocum, 

86 A.3d 272, 277 (Pa. Super. 2014); Commonwealth v. 

Decker, 698 A.2d 99, 101 (Pa. Super. 1997). 

As to the charge of Endangering the Welfare of Children, the trial 

judge did instruct the jury that the Commonwealth had to prove 

beyond a reasonable doubt that [Liberace] knowingly “violated a 

duty of care, protection, or support.” However, counsel should 

have also requested that the jury be charged that the 

Commonwealth must prove that [Liberace] was aware of the 

duty to keep this child safe and to act in a way that would 

protect the child’s welfare.

Id. at 16-17 (citations modified). In the instant case, there is no indication 

that Liberace’s trial counsel’s alleged error, if any, caused prejudice such 

that there is a reasonable probability that the result of the trial would have 

been different absent such error. Pierce, 527 A.2d at 975. 
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 To convict a defendant of corruption of the morals of a minor, the 

Commonwealth must prove beyond a reasonable doubt that the defendant’s 

conduct satisfied the following definition: 

[W]hoever, being of the age of 18 years and upwards, by any 

act corrupts or tends to corrupt the morals of any minor less 

than 18 years of age, or who aids, abets, entices or encourages 

any such minor in the commission of any crime, or who 

knowingly assists or encourages such minor in violating his or 

her parole or any order of court, commits a misdemeanor of the 

first degree. 

18 Pa.C.S. § 6301(a)(1)(i). Regarding that charge, the trial court instructed 

the jury as follows: 

[Liberace] has been charged with corrupting a minor. To find 

[Liberace] guilty of this offense, you must find that each of the 

following three elements [has] been proven beyond a reasonable 

doubt. First, that [Liberace] was 18 years of age or older at the 

time of the incident giving rise to the charge. Second, that 

[L.H.] was under [eighteen] years of age at the time. And, 

third, that [Liberace] corrupted or tended to corrupt the morals 

of [L.H.] by the following alleged conduct, touching her buttocks 

or touching her vaginal area or exposing his penis. 

Notes of Testimony of Verdict Proceeding (“N.T.V.”), 1/5/2011, at 19-20. 

The PCRA court noted that “[t]his instruction follows the Suggested Standard 

Jury Instruction nearly verbatim.” P.C.O. at 13 (citing SSJI (Crim) 

15.6301A). 

Liberace’s challenge relies upon several cases in which case-specific 

circumstances required the court to clarify whether a given act might 

“corrupt the morals of any minor.” The PCRA court aptly rejected this 

argument as follows: 
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Our appellate courts have at times considered the sufficiency of 

the evidence to determine whether the Commonwealth had met 

its burden of proving that a defendant had committed particular 

acts that tended to corrupt the morals of a minor. See, e.g., 

Smith, 863 A.2d at 1177, Commonwealth v. DeWalt, 752 

A.2d 915, 918-19 (Pa. Super. 2000); Commonwealth v. Todd, 

502 A.2d 631, 635-36 (Pa. Super. 1985). In assessing the 

sufficiency of the evidence[,] the Superior Court has explained 

“that actions that tended to corrupt the morals of a minor were 

those that ‘would offend the common sense of the community 

and the sense of decency, propriety and morality which most 

people entertain.’” Decker, 698 A.2d at 101. However, a 

finding that the particular acts performed by a defendant “offend 

the common sense of the community and the sense of decency, 

propriety and morality which most people entertain,” is simply 

not an element of the offense and it has not been so designated 

by caselaw. In this case, further explanation to elucidate or to 

describe which acts tend to corrupt the morals of a minor . . . 

was unnecessary where [L.H.] testified that [Liberace] touched 

her buttocks and vaginal areas and exposed his penis. The 

corrupting nature of these acts is obvious given the facts and 

circumstances of this case where it was alleged that [L.H.] was 

[Liberace’s] twelve[-]year-old step-daughter. 

P.C.O. at 13-14. We agree. Pennsylvania law simply does not require jury 

instructions that wander so far afield of the elements of the offense at issue. 

Even assuming arguendo that this issue had arguable merit, and that 

counsel lacked a reasonable basis for not seeking the desired instruction, 

Liberace’s claim nonetheless fails for want of proof of prejudice. To establish 

prejudice, Liberace must show that, had the jury been provided with 

Liberace’s additional requested instruction, there was a reasonable 

probability that it would have determined that a grown man touching the 

buttocks and vagina of his twelve-year-old stepdaughter in the manner and 

circumstances described above did not “offend the common sense of the 
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community, and the sense of decency, propriety, and morality which most 

people entertain,” and that the jury would have acquitted Liberace based 

upon that finding. Commonwealth v. Slocum, 86 A.3d 272, 277 (Pa. 

Super. 2014). We cannot so conclude, given the evidence in this case and 

the conduct at issue. Accordingly, Liberace’s IAC claim fails in this regard.

Liberace’s challenge to the jury charge for endangering the welfare of 

a child also fails for want of prejudice. Section 4304 of the Pennsylvania 

Crimes Code defines “endangering the welfare of children” as follows:

Offense defined.—

(1) A parent, guardian or other person supervising the welfare 

of a child under 18 years of age, or a person that employs or 

supervises such a person, commits an offense if he knowingly 

endangers the welfare of the child by violating a duty of care, 

protection or support. 

18 Pa.C.S. § 4304(a)(1). 

The trial court instructed the jury as follows: 

To find [Liberace] guilty of this offense, you must find that each 

of the following elements has been proven beyond a reasonable 

doubt. First, that [Liberace] endangered the welfare of [the] 

child by violating a duty of care, protection or support. Second, 

that [Liberace] endangered the welfare of the child knowingly. A 

person’s conduct is knowing when he or she is aware that it is 

practically certain that his or her conduct will cause a particular 

result. Third, that [Liberace] was at the time a parent, guardian, 

person supervising the welfare of that child under the age of 18, 

or a person employed [sic] or supervised such a person. Fourth, 

that the child was under the age of 18 years at the time of the 

endangering. 
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N.T.V. at 20. The PCRA court noted that this instruction also tracks the 

Suggested Standard Jury Instruction nearly verbatim. P.C.O. at 14 (citing 

SSJI (Crim) 15.4304A (Crim) A). 

Liberace contends, in addition to the charge that was given (with 

which Liberace has no complaint), counsel also should have “requested that 

the jury be charged that the Commonwealth must prove that [Liberace] was 

aware of the duty to keep this child safe and to act in a way that would 

protect the child’s welfare.” Brief for Liberace at 17. Thus, to establish 

prejudice, Liberace must plead and prove that, had the jurors been provided 

with Liberace’s additional requested instruction, there is a reasonable 

probability that the jury would have determined that Liberace was not aware 

of his duty to care for his twelve-year-old stepdaughter while his wife was 

away, and would have acquitted Liberace based upon that finding. 

The PCRA court responded to this specious argument as follows: 

The [c]ourt instructed that the Commonwealth bore the burden 

of proving that [Liberace] endangered the welfare of a child by 

violating a duty of care, protection or support and that he did so 

knowingly. Read as a whole and in a common[-]sense manner 

this instruction accurately instructed the jury as to the elements 

of this offense. Furthermore, any claim that [Liberace] suffered 

prejudice as a result of the alleged deficiency is patently 

frivolous. [Liberace] was [L.H.’s] step-father and [she] was in 

his care in her mother’s absence when the acts for which he was 

convicted occurred. 

P.C.O. at 15. We agree. We cannot conclude that any reasonable juror, if 

provided with Liberace’s additional requested instruction, could have 

concluded that Liberace might not have been aware of the duty in question –
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not to touch a twelve-year-old stepdaughter in a sexual manner – such that 

he could not be convicted of knowingly having endangered the welfare of a 

child. 

For the foregoing reasons, there is no indication that Liberace’s trial 

counsel’s alleged ineffectiveness with respect to either of the challenged jury 

charges caused prejudice, even if the instructions in question were amenable 

of challenge, an unlikely proposition indeed. There is no reasonable 

probability that the result of the trial would have been different had the trial 

court instructed the jury as Liberace would have preferred. Pierce, 

527 A.2d at 975. Because Liberace has failed to establish the third prong of 

the Pierce test with respect to either of these challenges, his second IAC 

claim fails. 

 In his third and final issue, Liberace alleges that the PCRA court erred 

in dismissing Liberace’s PCRA petition without a hearing because he 

“pleaded . . . sufficient facts and laws that would have warranted an 

evidentiary hearing.” Brief for Liberace at 18. The standard for a PCRA 

court’s dismissal of a petition without a hearing is as follows: 

If the judge is satisfied from this review [of the petition] that 

there are no genuine issues concerning any material fact and 

that the defendant is not entitled to post-conviction collateral 

relief, and no purpose would be served by any further

proceedings, the judge shall give notice to the parties of the 

intention to dismiss the petition and shall state in the notice the 

reasons for the dismissal. 
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Pa.R.Crim.P. Rule 907(1). As noted above, in reviewing the dismissal of a 

PCRA petition, an appellate court “will not disturb a PCRA court’s ruling if it is 

supported by evidence of record and is free of legal error.” Rykard, 55 A.3d 

at 1183. “There is no absolute right to an evidentiary hearing on a PCRA 

petition, and if the PCRA court can determine from the record that no 

genuine issues of material fact exist, then a hearing is not necessary.” 

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). 

In the instant case, the PCRA court ultimately concluded that “[t]he 

record demonstrates that [Liberace] is not entitled to relief and there are no 

genuine issues of fact that would entitle [Liberace] to relief if resolved in his 

favor.” P.C.O. at 16. We find that the PCRA court’s summary dismissal of 

Liberace’s PCRA petition is supported by the facts of record and free of legal 

error. Rykard, 55 A.3d at 1183. As noted above, Liberace’s first IAC claim 

is based upon a material and fatal mischaracterization of the testimony of 

record. Liberace’s IAC claims arising from the jury charge fails because 

there is no indication that trial counsel’s alleged ineffectiveness, if any, 

caused prejudice such that there is a reasonable probability that the result of 

the trial would have been different absent such error. Thus, the PCRA court 

properly dismissed Liberace’s PCRA petition without a hearing. Rykard, 55 

A.3d at 1183. 

 Order affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/25/2014