J-S22010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
LEON D. BODLE
Appellant No. 1234 MDA 2015
Appeal from the Order Entered June 26, 2015 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001997-2008 CP-41-CR-0002072-2008
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED APRIL 20, 2016
Appellant, Leon D. Bodle, appeals from the June 26, 2015 order,
denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm based on the
sound reasoning of the PCRA court’s June 26, 2015, and September 18,
2015 opinions.
The PCRA court summarized in detail the procedural history of this
case and the facts adduced at the March 17, 2014 evidentiary hearing on
Appellant’s petition, and we need not repeat that history in full here. We
note that Appellant filed a timely pro se PCRA petition on February 3, 2014.
Counsel was appointed and an amended and a supplemental amended PCRA ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S22010-16
petition were subsequently filed. On March 17, 2014, the PCRA court held a
hearing to address Appellant’s ineffective assistance of counsel claims, based
on counsel’s alleged failure to call certain witnesses at trial. In a written
opinion and order filed June 26, 2015, the PCRA court denied Appellant’s
PCRA petition on its merits. Appellant filed a timely notice of appeal on July
20, 2015.1
On appeal, Appellant raises the following issues for our review.
I. Did the [PCRA] Court err in precluding Karen Bodle from testifying to specific acts which were reiterated to her by parents and teachers of community [sic] to illustrate the [Appellant’s] good reputation in the community[?]
II. Did the [PCRA] Court err in finding that failing to put any evidence on the record including Ronald Weigle’s testimony of [Appellant’s] good character in the community was not ineffective assistance of counsel[?]
Appellant’s Brief at 4.2
We first address an issue raised by the PCRA court in its September
18, 2015 opinion, wherein it opined that Appellant’s Rule 1925(b) statement
____________________________________________ 1 Appellant and the PCRA court have procedurally complied with Pennsylvania Rule of Appellate Procedure 1925. We discuss Appellant’s substantive compliance with the Rule infra. The PCRA court’s September 18, 2015 Rule 1925(a) opinion incorporated and expanded on its June 26, 2015 opinion, which accompanied its dismissal order. 2 The Commonwealth has not filed a brief in this appeal.
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was too vague and that the issues raised therein were subsequently waived.
PCRA Court Opinion, 9/18/15, at 1 n.1.
[G]enerally [] issues not raised in a Rule 1925(b) statement will be deemed waived for review. An appellant’s concise statement must properly specify the error to be addressed on appeal. In other words, the Rule 1925(b) statement must be specific enough for the trial court to identify and address the issue [an appellant] wishe[s] to raise on appeal. [A] [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all. The court’s review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver.
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (internal
quotation marks and citations omitted), appeal denied, 32 A.3d 1275 (Pa.
2011). “One of the main purposes of the waiver doctrine is to ensure that
the appellate court is provided with the benefit of the trial court’s
reasoning.” Commonwealth v. Santiago, 822 A.2d 716, 723 (Pa. Super.
2003), appeal denied, 843 A.2d 1237 (Pa. 2004), cert. denied, Santiago v.
Pennsylvania, 542 U.S. 942 (2004). Thus, if the lower court authors a
1925(a) opinion that addresses an appellant’s issue on appeal, allowing
meaningful review, we will not find waiver. Commonwealth v. Smith, 955
A.2d 391, 393 (Pa. Super. 2008); but see Commonwealth v. Lemon, 804
A.2d 34, 38 (Pa. Super. 2002) (concluding, “when an appellant fails to
identify in a vague Pa.R.A.P.1925(b) statement the specific issue he/she
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wants to raise on appeal, the issue is waived, even if the trial court guesses
correctly and addresses the issue in its Pa.R.A.P.1925(a) opinion”).
Instantly, Appellant’s Rule 1925(b) statement included the following.
2. [Appellant] was denied the effective assistance of counsel as guaranteed by Article 1, § 9 of the Pennsylvania Constitution and the 6th and 14th Amendments of the United States Constitution, in that [trial counsel] failed to present testimony that would offset the weight of evidence offered by prosecution when [trial counsel] knew (1) that witness existed; (2) that witness was available; (3) that counsel was informed of existence of witness or should have known of witness’s existence; (4) that witness was prepared to cooperate and would have testified on [Appellant’s] behalf; and (5) that absence of testimony prejudiced [Appellant].
3. The [PCRA c]ourt erred in finding that there was no basis upon which to grant relief after an evidentiary hearing.
Concise Statement of Matter Complained of on Appeal, 12/12/15, at 1-2.
Turning to Appellant’s first issue on appeal, we cannot overlook the
complete absence of the issue from Appellant’s Rule 1925(b) statement. In
his first issue, Appellant challenges the evidentiary rulings of the PCRA court
during the PCRA hearing relative to the testimony of Karen Bodle, who
Appellant proffered as a character witness that trial counsel failed to call.
Appellant’s Rule 1925(b) statement in no way suggests a challenge to the
PCRA court’s evidentiary rulings and the PCRA court addresses those rulings
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only tangentially, hampering our ability to review the issue. Accordingly, we
deem Appellant’s first issue waived.3 See Hansley, supra.
Dealing next with Appellant’s second issue, we conclude that, although
it is broadly stated, the issue, that the PCRA court erred in determining the
failure of trial counsel to call Weigle as a character witness at trial did not
constitute ineffective assistance of counsel, was fairly suggested by
Appellant’s 1925(b) statement, and was fully addressed by the PCRA court in
its June 26, 2015, and September 18, 2015 opinions. Accordingly, we do
not conclude our review of that issue is hampered, and we decline to find
waiver. See Smith, supra.
Our review of an order denying PCRA relief is guided by the following.
Our standard of review of [an] order granting or denying relief under the PCRA requires us to determine whether the decision of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super.
2015) (citation omitted). We review the PCRA court’s legal conclusions de
____________________________________________ 3 The PCRA court discussed in detail its reasons for determining that Karen Bodle’s testimony did not establish that she would be a viable character witness and for determining that trial counsel did explore the possibility of calling her as a witness, but ultimately deferred to Appellant’s decision not to do so. PCRA Court Opinion, 6/26/15, at 12-14; PCRA Court Opinion, 9/18/15, at 2. Thus, even if Appellant’s first issue was not waived, we would adopt the PCRA court’s findings and analysis as an alternative basis for affirming.
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novo. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014)
(citation omitted).
In order to obtain relief under the PCRA based on a claim of ineffectiveness of counsel, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied the Strickland test by requiring a petitioner to establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). Counsel is presumed to have rendered effective assistance, and, if a claim fails under any required element of the Strickland test, the court may dismiss the claim on that basis. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010).
To prevail on a claim that trial counsel was ineffective for failing to present a witness, the petitioner must prove that: (1) the witness existed; (2) counsel was either aware of or should have been aware of the witness’s existence; (3) the witness was willing and able to cooperate on behalf of the defendant; and (4) the proposed testimony was necessary to avoid prejudice to the petitioner. Commonwealth v. Tharp, 627 Pa. 673, 101 A.3d 736, 757 (2014).
Commonwealth v. VanDivner, 130 A.3d 676, 680 (Pa. 2015). “A defense
counsel’s failure to call a particular witness to testify does not constitute
ineffectiveness per se.” Commonwealth v. Johnson, 27 A.3d 244, 247
(Pa. Super. 2011). At issue is trial counsel’s decision not to call certain
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character witnesses at trial, which implicates the following additional
considerations.
As a general rule, evidence of a person’s character may not be admitted to show that individual acted in conformity with that character on a particular occasion. Pa.R.E. 404(a). However, Pennsylvania Rule of Evidence 404(a)(1) provides an exception which allows a criminal defendant to offer evidence of his or her character traits which are pertinent to the crimes charged and allows the Commonwealth to rebut the same. Pa.R.E. 404(a)(1). This Court has further explained the limited purpose for which this evidence can be offered:
It has long been the law in Pennsylvania that an individual on trial for an offense against the criminal law is permitted to introduce evidence of his good reputation in any respect which has “proper relation to the subject matter” of the charge at issue. Such evidence has been allowed on a theory that general reputation reflects the character of the individual and a defendant in a criminal case is permitted to prove his good character in order to negate his participation in the offense charged. The rationale for the admission of character testimony is that an accused may not be able to produce any other evidence to exculpate himself from the charge he faces except his own oath and evidence of good character.
It is clearly established that evidence of good character is to be regarded as evidence of substantive fact just as any other evidence tending to establish innocence and may be considered by the jury in connection with all of the evidence presented in the case on the general issue of guilt or innocence. Evidence of good character is substantive and positive evidence, not a mere make weight to be considered in a doubtful case, and, … is an independent factor which may of itself
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engender reasonable doubt or produce a conclusion of innocence. Evidence of good character offered by a defendant in a criminal prosecution must be limited to his general reputation for the particular trait or traits of character involved in the commission of the crime charged. The cross-examination of such witnesses by the Commonwealth must be limited to the same traits. Such evidence must relate to a period at or about the time the offense was committed, and must be established by testimony of witnesses as to the community opinion of the individual in question, not through specific acts or mere rumor.
Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073, 1077–78 (1983) (citations omitted) (emphasis added).
Id. at 247-248.
Instantly, Appellant claims the PCRA court erred in failing to find trial
counsel was ineffective based on the following.
[Appellant] asserts that after trial counsel was notified that Ronald Weigle could testify at trial as to [Appellant’s] good character in the community and failed to call him, or any other witness, trial counsel’s omission was per se ineffective assistance of counsel under Commonwealth v. Hull[, 982 A.2d 1020 (Pa. Super. 2009)]. There could have been no legitimate purpose for trial counsel’s omission and there was no evidence that his alternative strategy offered a potential of substantially greater success.
Appellant’s Brief at 13.
The PCRA court, after a full hearing, determined that Appellant failed
to meet his burden to show ineffective assistance of trial counsel in two
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respects. First, the PCRA court determined that Weigle’s evidence indicated
he had little relevant knowledge at the time of trial and what he did offer
would not constitute admissible character evidence as it was based on
specific acts rather than general community reputation. PCRA Court
Opinion, 6/26/15, at 14; PCRA Court Opinion, 9/18/15, at 2. Second, the
PCRA court determined that trial counsel had a reasonable strategy for not
calling character witnesses, having investigated Appellant’s general
reputation and discovered negative aspects, which could have been
presented to the jury by the Commonwealth if the defense opened the door
by putting character at issue. PCRA Court Opinion, 6/26/15, at 13-14; PCRA
Court Opinion, 9/18/15, at 2.
After careful review, we conclude that the PCRA court’s June 26, 2015,
and September 18, 2015 opinions fully set forth Appellant’s claim, identify
the proper standards of review, discuss the relevant law, and explain the
bases for its conclusion that Appellant has failed to establish any of the
Pierce prongs for ineffective assistance of counsel. See VanDivner,
supra. We also conclude the PCRA court correctly determined that
Appellant’s reliance on Hull is misplaced. PCRA Court Opinion, 6/26/15, at
13-14. As explained by the PCRA court, the Hull court held it was
ineffective assistance of counsel to fail to consider offering character
witnesses on the ground it would open the door for negative reputation
without at least investigating the defendant’s reputation in the community.
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Hull, supra at 1025-1026. Instantly, trial counsel did investigate and his
concerns were based on his investigation not on mere speculation. PCRA
Court Opinion, 6/26/15, at 14. Accordingly, we adopt the June 26, 2015,
and September 18, 2015 opinions of the Honorable Richard A. Gray as our
own for the purposes of our disposition of this appeal.
Based on the foregoing, we conclude the PCRA court committed no
error or abuse of discretion in dismissing Appellant’s PCRA petition on its
merits. See Melendez-Negron, supra; VanDivner, supra. Accordingly,
the PCRA court’s June 26, 2015 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/20/2016
- 10 - Circulated 03/31/2016 03:00 PM
IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CR-1997-2008; / v. CR- 2072-2008 CRIMINAL DIVISION. LEON BODLE, PCRA HEARING ORDER
Before the Court is a Petition for Post-Conviction Relief filed by Defendant, Leon
Bodle, pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-9546.
Following an evidentiary hearing and upon consideration of the testimony, arguments and
case-law, and for the reasons provided below, the Court DENIES the petition for relief.
I. Factualand ProceduralBackground
On January 2, 2009 the Commonwealth charged Bodle at docket no. 1997-2008 with
five counts of sexual offenses against a seven year old boy as follows: count 1, criminal
solicitation, a felony of the first degree; count 2, unlawful contact, a felony of the first
degree; count 3, obscene and other sexual material, a felony of the third degree; count 4,
indecent assault, a misdemeanor of the first degree; and count 5, corruption of the morals of
a minor, a misdemeanor of the first degree.1 On December 10, 2008, the Commonwealth
charged Bodle at docket no. 2072-2008 with sexual offenses against a nine year old boy, a
nine year old girl and a six year old boy as follows: count 1, criminal solicitation, a felony
of the second degree, count 2, criminal solicitation, a felony of the third degree, count 3,
obscene and other sexual materials, count 4, obscene and other sexual materials, a felony of
the third degree, count 5, unlawful communication with a minor, a felony of the third
:::;~~ ::! ~ 118 Pa. C.S. § 902(a); 18 Pa. C.S.A. § 63 I 8(A); 18 Pa. c.s. § 5903(c)(I ); I 8 Pa. c.s.&2§:-J l~(A)(~; I 8 ~ Pa.C.S.A. § 6301 (a)(]). ·::~" ;;: ;::; '··-) {_) I ll ·":. ·~) 7 -rl ,<,,, -
~~~ ·~ ~?'. (), ~: ~ .I? :;_? CJ ::-~:~ ~~: ri · { __ :$4 ·- J . ~~·-·: ··~-:.: -c:1 . ·J ~~-:_· . ----. r1 --~ ·-1 degree, and count 6, unlawful communication with a minor, a felony of the third degree,
count 7 indecent exposure, a misdemeanor of the first degree, count 8 indecent exposure, a
misdemeanor of the first degree, count 9 corruption of minors, a misdemeanor of the first
degree, and count 10 corruption of minors, a misdemeanor of the first degree.2
The Court consolidated these cases for the purpose of trial. A two-day jury trial was
held on December 6-7, 2011, at which the Undersigned presided. On December 7, 2011, the
jury rendered a verdict of guilty on all counts at both docket numbers for a total of 15
counts.
The Court sentenced Bodle on April 6, 2011. The Court sentenced Bodle to serve an
aggregate sentence at a State Correctional Institution, the minimum of which was 242
months and the maximum of which was 484 months.
Bodle did not file post-sentence motions. Bodle filed a notice of appeal on May 5,
2011. On July 6, 2012, the Superior Court granted the Commonwealth's motion to dismiss
the appeal for failure to include the relevant transcripts. On August 20, 2012, Bodle filed his
first PCRA petition and petition for leave to proceed in forma pauperis. On August 24,
2012, the court appointed the public defender to represent Bodle in that PCRA matter. On
November 27, 2012, this Court reinstated Bodle's direct appeal rights. On December 24,
2012, Bodle filed a direct appeal to the Superior Court. On January 8, 2014, the Superior
Court affirmed the judgment of sentence.
218 Pa. C.S. § 902(a); 18 Pa. C.S. § 5903(c)(l ); I 8 Pa. C.S.A. §63 l 8(A); 18 Pa. C.S. §3127 (A); J 8 Pa. C.S.A. §630l(a)(l).
2 On February 3, 2014, Bodle filed the instant PCRA petition prose. On April 24,
2014, the Court appointed Jeffy Lynch, Esq. to represent Bodle in the instant PCRA and
directed PCRA counsel to file an amended petition or Turnery/Finley' letter on or before
June 20, 2014. Following an initial conference on July 1, 2014, the court granted an
extension of time to file an amended PCRA petition to August 11, 2014 and directed the
preparation of transcripts of jury selection pursuant to the request of Bodle. PCRA counsel
was also directed to attach certifications concerning any witnesses that were not called at
trial. A conference was scheduled for August 28, 2014. Upon Bodle's application, the
matter was continued from August 25, 2014 to October 23, 2014. Upon Bodle's application,
the matter was then continued from October 23, 2014 to November 25, 2014.
On November 24, 2014, Bodle filed an amended PCRA. Upon Bodle's motion, the
matter was continued on November 26, 2014 to allow PCRA counsel to meet with trial
counsel. PCRA counsel was ordered to file a supplemental amended petition on or before
January 10, 2015, identifying what the subject witnesses could add to the case that could be
relevant evidence and trial counsel's strategy with respect to what witnesses were called. On
January 14, 2015, Bodle filed a supplemental PCRA. In his amended PCRA, Boldle seeks
relief on the grounds that trial counsel was ineffective for failure to call certain witnesses.
Specifically, Bodle contends that his mother, Karen Bodle and his uncle, Ronald Weigle,
should have been called as witnesses to provide positive character evidence and negative
evidence about the child victims. In addition, Bodle contends trial counsel should have
called his nephew, Devan Bodle, and his nephew's girlfriend, Haley Groulx, to testify that
3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
3 the children had made false allegations to police in the past." Following a conference on
February 4, 2015, an evidentiary hearing was held and testimony was received on March 17,
2014.
At the PCRA evidentiary hearing, Bodle presented six witnesses, four of whom
Bodle contends should have been called at his trial. Bodle contends that two of those four
witnesses, Bodle's nephew, Devan Bodle, and his nephew's girlfriend, Haley Groulx, should
have been called to testify as to false allegations made by the children. However, at the
PCRA evidentiary hearing, those two witnesses did not provide any testimony in support of
Bodle's claims. Both denied any knowledge of supposed false allegations allegedly made to
the Old Lycoming Police by the children. Neither witness testified to any knowledge of
fabrications made by the children.
The remaining two witnesses that Bodle contends should have been called to provide
positive character evidence and negative evidence about the child victims testified at the
PCRA hearing but did not provide any testimony as to reputation. Bodle's mother, Karen
Bodle, testified that had she been called and if admissible, she would have testified that
Bodle had good character because he cared for his grandfather. There was no foundation to
establish that Karen Bodle had personal knowledge of any reputation that Bodle had in the
community as to his character. Karen Bodle's only proffered testimony about specific
4In his amended PCRA, Bodle contends that an inmate, William Heiser, should have been called to testify that one of the Commonwealth's witnesses told Heiser that he intended to fabricate testimony against Bodle. The witness certification established that the information Heiser only notified trial counsel on May 6, 2011, well over a year after trial. As such, this contention lacks merit. Failure to call a witness requires that "counsel knew or should have known of the existence of the witness." Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) quoting, Commonwealth v. Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008) (citations omitted). Moreover, since Heiser did not testify at the PCRA hearing and no further argument was raised as to Heiser, it appears the issue has been abandoned and waived.
4 incidents of good acts by Bodle. Similarly, there was no foundation to establish that Karen
Bodle had personal knowledge of any reputation in the community as to any of the victims'
reputation for truthfulness or dishonesty. Instead Karen Bodle proffered testimony only as
to specific instances of dishonesty or bad acts by the child victims. Karen Bodle was
confused while providing testimony at the PCRA hearing and some of her testimony was
non-responsive. Bodle's Uncle, Ronald Weigle testified at the PCRA hearing that his
knowledge of the case was through what others might have said, but that he had no proof.
Weigle further testified that he did not know more about the case until after the trial. Weigle
did not provide testimony as to any reputation in the community that Bodle may have had.
Trial counsel testified at the PCRA hearing about his trial strategy. Trial counsel
testified that he represented Bodle in two separate trials involving sexual abuse to minors at
around the same time period. Both trials included similar witnesses and investigations.
Trial counsel testified that, after reviewing the pros and cons of any witnesses with Bodle,
trial counsel left the decision of whether to call witnesses up to Bodle. Trial counsel testified
that in his experience juries do not put a lot of weight into character evidence provided by
the mother, close relatives, or friends of a defendant.
As to the specific witnesses at issue, trial counsel testified as follows. Trial counsel
was concerned about calling Devan Bodle to testify because Devan Bodle vigorously
testified for the Commonwealth in the other trial with testimony that would be harmful to
Bodle. If Devan Bodle testified, damaging information might come in to play by opening
the door, particularly to evidence relating to evidence in the other trial that had been ruled
inadmissible in this trial. Nonetheless, trial counsel left the decision about whether to call
5 Devan Bodle to Bodle. Trial counsel also had concerns that Haley Groulx's testimony.
Trial counsel believed Groulx's testimony to be based upon hearsay and would not establish
reputation. Even if admissible, trial counsel was not convinced that Bodle could prove that
the supposed allegations made by the children were indeed false. Trial counsel testified that
he left the decision as to which witnesses to call to the defendant Bodle.
As to Defendant's mother, Karen Bodle, trial counsel had extensive contact with her
and had concerns that she could be easily confused. She was very shaky physically. Trial
counsel discussed with the Bodle how well his mother may or may not do on the stand, what
harm she could do to Bodle' s case if she appeared confused, against the benefit and weight
of any favorable testimony coming from a victim's mother. As to whether his mother
should testify as to a specific incident of good character, if admissible, trial counsel had
concerns about introducing evidence of good character which opens the door to significantly
harmful evidence. The ultimate decision of whether to call his mother as a witness was left
to Bodle.
As to Ronald Weigle, trial counsel testified that Weigle could not give specifics and
relied on hearsay. Even if admissible, such evidence may open the door to evidence that had
already been determined inadmissible.
Overall, trial counsel had significant concerns that if the defense called character
witnesses, the Commonwealth would call witnesses in rebuttal. The investigation revealed
that there were neighbors who were hostile to Bodle and could be called to rebut any
positive character evidence with bad character evidence. Similarly, some individuals at the
school where Bodle worked had a bad opinion of Bodle and there was concern they could be
6 called as adverse witnesses. Trial counsel nonetheless allowed the client to make the
determination of each witness; even if it is against his advice, he abides by the client's
decision.
Although not raised in his amended PCRA, Bodle testified at his PCRA hearing that
his decision not to testify on his own behalf at trial was made in reliance of his
understanding that others would be testifying on his behalf. As the Commonwealth pointed
out, however, Bodle was colloquied as to his decision not to testify after trial counsel had
informed the Court that the defense had no additional testimony. Notes of Testimony
(N.T.), 12/7/2010, 22-23.
II. Issues Raised
In essence, Bodle's amended petition asserts eligibility for relief pursuant to 42 Pa.
C.S. § 954(a)(2)(i) and (ii) on the grounds that trial counsel failed to call witnesses as to
defendant's alleged good character and witnesses as to the child victim's alleged bad
character and dishonesty. Bodle appears to contend that failure to call character witnesses is
per se ineffective under Commonwealth v Hull, 2009 PA Super 201; 982 A.2d 1020 ( Pa. 5 Super. 2009) requiring a new trial no matter the circumstances.
5 In his amended PCRA, Bodle identified other issues but appeared to abandon those claims as being without merit. Bodle asserted an issue related to exculpatory evidence and the change in time-line that had been adjudicated during the appeal process. This Court has independently reviewed such claims and agrees that they have been adjudicated through the appeal process. Bodle also contended that trial counsel failed to ask potential jurors whether they could render a fair verdict if Defendant elected not to testify, but his petition appears to have abandoned this claim because trial counsel asked whether anyone feels that could not be fair and impartial and because the trial court provided sufficient instruction to the jury as to that matter. Lastly, PCRA counsel appears to have abandoned the claim of ineffective assistance of counsel for failing to formally seek recusal of the Court because one of the victims' mother worked at the courthouse. The matter had been visited prior to trial and there was no evidence of prejudice. After conducting an independent review of those issues, the Court finds that those issues lack merit and were waived.
7 III. Eligibility for Post-Conviction Relief
The PCRA provides specific requirements for eligibility for post-conviction relief.
42 Pa. C.S. § 9543. Section 9543(a) provides that in order to be eligible for relief, a
Defendant must be convicted and serving a sentence of incarceration. Id. In this matter, it is
uncontested that Defendant is currently serving a state sentence of incarceration. However,
section 9543(a) also lists three (3) other eligibility requirements; these requirements include:
(2) That the conviction or sentence resulted from one or more of the following: (i) A violation of the Constitution ofthis Commonwealth or the Constitution or laws of the United States 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. (ii) 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. (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
* * * * * * * * * * * (3) That the allegation of en-or has not been previously litigated or waived. (4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel. Id.
IV. Legal Standards
Ineffective Assistance of Counsel
Trial counsel is presumed to be effective. Commonwealth v. Martin, 5 A.3d 177,
183 (Pa. 2010). In order to succeed on a claim for ineffective assistance of counsel,
8 Defendant must overcome the presumption of counsel effectiveness by proving the
following three factors, that: (1) Defendant's underlying claim has arguable merit, (2) trial
counsel had no reasonable basis for her action or inaction, and (3) the performance of trial
counsel prejudiced Defendant. Commonwealth v. Chimel, 1 111, 1 127 (Pa. 201 1)
(referencing Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987)). See also
Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super. Ct. 2006), appeal denied, 907
A.2d 1102 (Pa. 2006) (citing Commonwealth v. Lynch, 820 A.2d 728, 733 (Pa. Super.
2003)). Actual prejudice must occur; that is, trial counsel's ineffectiveness must have been
so evasive that it is reasonable it had an adverse impact on the proceeding's outcome.
Sampson, 900 A.2d at 890 ( citing Commonwealth v. Howard, 645 A.2d 1300, 1307 (Pa.
1994)).
Failure to Call a Witness
The standard for ineffective assistance of counsel for failure to call a witness is well-
settled.
In order to prevail on a claim of ineffectiveness for failing to call a witness, a defendant must prove, in addition to meeting the three Pierce 10 requirements, that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew 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 witness's testimony was so prejudicial as to have denied him a fair trial. Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) quoting, Commonwealth v.
Wright, 599 Pa. 270, 331, 961 A.2d 119, 155 (2008) (citations omitted)
9 Character Evidence
"Evidence of good character is to be regarded as evidence of substantive fact just as
any other evidence tending to establish innocence and may be considered by the jury in
connection with all the evidence presented in the case on the general issue of guilt or
innocence." Commonwealth v Hull, 2009 PA Super 201; 982 A.2d 1020 (Pa. Super. 2009),
citing, Commonwealth v. Harris, 2001 PA Super 291, 785 A.2d 998, 1000 (Pa. Super.
2001) (citing Commonwealth v. Luther, 317 Pa. Super. 41, 463 A.2d 1073, 1077 (Pa. Super.
1983)). See Also, Commonwealth v. Johnson, 27 A.3d 244, 248 (Pa. Super. 2011).
However, "[ e Jvidence of good character offered by a defendant in a criminal prosecution
must be limited to his general reputation for the particular trait or traits of character
involved in the commission of the crime charged." Commonwealth v. Johnson, 27 A.3d
244, 248 (Pa. Super. 2011) ( emphasis added). The evidence must be "as to the community
opinion of the individual in question, not through specific acts or mere rumor." Id.,
Commonwealth v. Luther, supra, 463 A.2d at 1077. (citations omitted)(emphasis added)
Reasonable Basis for Trial Strategy
To succeed in an ineffective assistance of counsel claim, trial counsel must not have
had a reasonable basis for the act or omission at issue. Chmiel, supra, 30 A.3d at 1127.
The Pennsylvania Supreme Court has concluded that "counsel's chosen strategy lacked a
reasonable basis only if the petitioner proves that the alternative strategy not selected offered
a potential for success substantially greater than the course actually pursued.
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (Pa. 2012)(emphasis added).
10 "Where matters of strategy and tactics are concerned, counsel's assistance is deemed
constitutionally effective if he chose a particular course that had some reasonable basis
designed to effectuate his client's interests." Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d
874, 887 (Pa. 2010) (quoting Commonwealth v. Howard, 553 Pa. 266, 719 A.2d 233, 237
(Pa. 1998)). 11A finding that a chosen strategy lacked a reasonable basis is not warranted
unless it can be concluded that an alternative not chosen offered a potential for success
substantially greater than the course actually pursued." Id.
Prejudice
"Prejudice in the context of ineffective assistance of counsel means demonstrating
there is a reasonable probability that, but for counsel's error, the outcome of the proceeding
would have been different." Commonwealth v. Champney, 65 A.3d 386, 396 (Pa. 2013),
citing, Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (Pa. 1999).
With these standards in mind, the Court will address Mr. Bodle's PCRA claims.
V. Discussion
Bodle has not overcome the presumption of counsel effectiveness by proving all, or
even one, of the three factors required. A claim of ineffectiveness will be denied when
defendant fails to establish any one of the three factors. Busanet, supra, 54 A.3d at 45.
Bodle has not proven any of the required factors.
The first factor requires that Bodle show that there is arguable merit to the claim that
trial counsel should have called the witnesses. In this case, there is no arguable merit that
trial counsel should have called the witnesses. Generally, the failure to call provide positive
11 character evidence and negative character evidence about victims, particularly with respect
to dishonesty, would have arguable merit. See, e.g., Hull, supra, Harris, supra, and Luther,
supra. In the present case, however, none of the witnesses testified as to the reputation in
the community of a character trait for Bodle or any of the child victims.
Moreover, the Court had the opportunity to hear and observe the witnesses testify as
they would have if called at trial. This Court presided over the two-day trial and was able to
observe the atmosphere at trial. After hearing the testimony at the PCRA hearing, the Court
concludes that there was no error in not calling these witnesses. Devan Bodle and Haley
Groulx had no knowledge of the supposed false allegations to police that a child victim was
alleged to have made. Bodle's mother and uncle appeared frail, easily confused and eager to
help Bodle, such that their lack of helpful testimony was all the more harmful. These
witnesses would have harmed Bodle's case, even in the absence of rebuttal evidence that
trial counsel anticipated would be elicited from the Commonwealth in response.
Bodle also failed to prove the second factor which requires that trial counsel had no
reasonable basis for not calling the witnesses. Trial counsel testified at the PCRA
evidentiary hearing as to his trial strategy. The Court found trial counsel extremely credible
and his strategy with respect to presentation of witnesses reasonable. Trial counsel weighed
the possible benefits that might come from calling Bodle's mother and nephew against the
possibility that they may become confused, garner little weight as family members, and the
likelihood that such testimony would open the door to neighbors and co-workers providing
adverse character evidence. Trial counsel advised Bodle of the pros and cons of each
witness and allowed Bodle to make the final determination as to whether to call the witness.
12 Trial counsel opined that more harm than good would come from calling these witnesses.
The Court agrees. The Court concludes that trial counsel had a reasonable trial strategy for
not calling the witnesses.
Bodle relies on Hull for the proposition that there is no reasonable trial strategy to
forgo character evidence in this case because there was no risk to presenting character
evidence when there was no other testimony in the case-in-chief. In Hull, the Superior Court
affirmed the PCRA Court's determination that granted a new trial on the basis of trial 6 counsel's failure to investigate and present character evidence. The Hull Court held the
following.
[C]ounsel lacked a reasonable basis for failing to call good character witnesses based on his overall trial strategy to show that the children were lying. Specifically, we hold that trial counsel may not state a broad concern that opposing counsel might introduce bad character evidence on cross-examination without having conducted any kind of investigation to determine if, in fact, there exists bad-character evidence. Hull, supra, 982 A.2d at 1021.
The Superior Court specifically noted that trial counsel had a broad-based fear, and
not fear "based on any particular concern he learned of in the course of investigating the
character witnesses." Id. Trial counsel was afraid that when the Commonwealth cross-
examined regarding the character evidence, the Commonwealth would elicit adverse
testimony. However, trial counsel was not aware of any adverse evidence that could be
elicited. Trial counsel had "no reasonable expectation that any of the witnesses would have
negative evidence" in rebuttal. Hull, supra, 982 A.2d at 1025. Specifically, the Court
6 In affirmance, the Superior Court noted that since the PCRA court observed the atmosphere of the trial, it
must "determine whether the PCRA court's observations are supported by the record, and whether those observations support the result reached by the court." Hull, supra, 982 A.2d at 1027. The same is true in the present case.
13 concluded that "counsel may not justify his failure to present good-character evidence by
citing a broad concern that opposing counsel might introduce bad-character evidence on
cross-examination without having investigated whether that concern is based in reality."
Hull, supra, 982 A.2d at 1027.
By contrast in the present case, trial counsel's investigation revealed hostile
neighbors and co-workers with a bad opinion about Bodle who may be called to rebut
character evidence. Trial counsel was reasonably concerned that the door to inadmissible
evidence from another trial would be opened by these witnesses. One of the witnesses had
testified vigorously for the Commonwealth in the other trial against Bode. In the present
case, trial counsel had specific concerns about presenting the evidence. Hull does not
require trial counsel to present character evidence every time a defendant does not present
much evidence in his case-in chief and there is also an issue as to credibility of witnesses.
Hull specifically considered whether "counsel had reason to believe that any negative
consequences would outweigh this positive aspect." Hull, supra, 982 A.2d at 1024. In the
present case, trial counsel credibly testified that he weighed the pros and cons of each
witness and left the ultimate decision of whether to call the witness up to Bodle. Moreover,
none of the proffered testimony constituted character evidence but instead referred to the
witnesses' personal opinion of character and/or specific acts rather than reputation in the
community.
As to the third prong, the Court concludes that the failure to call the witnesses did
not prejudice Bodle. To the contrary, the Court concludes that the witnesses would have
harmed Bodle's case. There was no prejudice from failing to call them. This is particularly
14 true since none of the testimony went to reputation evidence, and thus would have been
inadmissible as specific acts of good and bad character. The Court finds that the evidence
against Bodle was so overwhelming that the outcome would not have been different had any
of the witnesses been called.
VI. Conclusion
Based upon the foregoing, the Court finds no basis upon which to grant the Bodle's
PCRA Petition. After an evidentiary hearing, the petition is dismissed.
Pursuant to Pennsylvania Rules of Criminal Procedure 908, Defendant is hereby
notified that he has the right to appeal from this order to the Pennsylvania Superior Court.
The appeal is initiated by the filing of a Notice of Appeal with the Clerk of Courts at the
county courthouse, with notice to the trial judge, the court reporter and the prosecutor. The
Notice of Appeal shall be in the form and contents as set forth in Rule 904 of the Rules of
Appellate Procedure. The Notice of Appeal shall be filed within thirty (30) days after the
entry of the order from which the appeal is taken. Pa.R.A.P. 903.
If the Notice of Appeal is not filed in the Clerk of Courts' office within the thirty (30)
day time period, Defendant may lose forever his right to raise these issues. A copy of this
order shall be mailed to Defendant by regular and certified mail, return receipt requested.
ORDER AND NOW, this 26111 day of June2015, Defendant is hereby notified that it is the
Court's intention to dismiss his PCRA Petition, unless he files an objection to that dismissal
within twenty days (20) of today's date. This Opinion and Order will be served on
Defendant as set forth in Pa.R.Crim.P. 908(E).
15 Circulated 03/31/2016 03:00 PM
IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, 1234 MDA 2015 , / Plaintiff, CR:. 1997-2008; 2072-2008 vs. OTN: K 735906-3; K 735914-4
LEON BODLE, Defendant. PCRA APPEAL/ 1925 (a)
OPINION AND ORDER Issued Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)
. • This Court issues the following Opinion and Order pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a). This is an appeal from the denial of Mr. Bodle's PCRA petition
following a full evidentiary hearing. The reasons for the court's decision to dismiss the PCRA
petition can be found in the opinion and order entered on June 26, 2015. In his concise
statement of matters complained of on appeal, Mr. Bodle provided the following.
Defendant was denied the effective assistance of counsel as guaranteed by Article 1, § 9 of the Pennsylvania constitution and the 6th and 141h Amendments of the United States Constitution, in that Attorney Protasio failed to present testimony that would offset the weight of the evidenced offered by prosecution when Attorney Protasio knew (1) that witness existed; (2) that witness was available; (3) that counsel was informed of existence of witness or would have known of witness's existence; (4) that witness was prepared to cooperate and would have testified on defendant's behalf; and (5) that absence of testimony prejudiced defendant.
The court erred in finding that there was no basis upon which to grant relief after an evidentiary hearing.
In the absence of a specific error, 1 this Court respectfully relies upon it previous opinion
dated, June 26, 2015, in support of its request for the affirmance. Since the transcript was not
I This Court believes that the concise statement is too vague for meaningful review as it implicates the entirety of this Court's ultimate decision on the issues raised in the petition without specifying any specific legal conclusion or factual finding that was in error. "When the trial court has to guess what issues an appellant is appealing, that is not enough for meaningful review." Commonwealth v. Dowling, 2001 PA Super 166, 778 A.2d 683, 686 (Pa. Super. 2001) Issues raised in an overly broad and vague concise statement are waived as being the "functional equivalent" of not being raised at all. See, e.g., Hess v. Fox Rothschild. LLP, 2007 PA Super 133, 925 A.2d 798 (Pa. Super. 2007)( citations omitted). 1 transcribed at the time of the opinion, this Court submits the following transcript references to
supplement that opinion
As this Court noted in its opinion, there is no arguable merit that trial counsel should
have called the 4 witnesses at issue, counsel had a reasonable basis for not calling them and
Bodle suffered no prejudice from the failure to call them. Two of the four proposed witnesses
essentially testified that they had no knowledge about the information sought. Notes of
Testimony, hearing on March 17, 2015, (N.T.) 47:20; 48:19-21; 64: 17-24; 65: 11. The third
witness, Bodle's Uncle, Ronald Weigle, essentially admitted that he did not know much at the
time of trial and what he did know, was something others had said, but which he could not prove.
61 :16-19.
The remaining witness that Bodle claims should have been called is his mother, Karen
Bodle. However, Bodle did not establish that his mother could provide any relevant admissible
testimony. The proposed testimony from Bodle's mother was that Bodle had allegedly never
been in trouble before, N. T. 51 : 12-13, and that Bodle' s character was good because he cared for
his grandfather. N.T. 51 :4-5. There was no foundation to establish that Bodle's mother had
personal knowledge of any reputation in the community as to Bodle's character. N.T. 56:24;
57:2-3, 21-23; 58:1.
Moreover, even if there had been some admissible testimony as to character, the decision
about whether to call witnesses, and more specifically as to whether to call Mr. Bodle's mother,
was ultimately made by Mr. Bodle after consultation with his trial attorney. Trial Counsel
testified that he discussed with Bodle whether to call his mother, and was concerned that she
appeared easily confused. N.T. 22:4-7. Trial Counsel did not believe the defense could establish
a general reputation of the victim being untruthful, N.T. 30:10-12, or establish what the kids'
2 reputations in the community were. N.T. 31: 18-21. Nonetheless, Trial counsel testified that the
decision about whether to call his mother was made by Bodle.
Ultimately, as I usually do in almost every case -in fact I can't remember one where I wouldn't have - the ultimate decision is up to the client whether we call a witness. I explained to him the pros and cons and my opinion as to how well she [Bodle's mother] would do or not do and it was his decision not to have called her .... Ultimately that would have been his [Bodle's] decision. N.T. 22-23.
Even if there had been character evidence available, trial counsel had significant concerns
that if the defense called character witnesses, the Commonwealth would call witnesses and cross-
examine witnesses in rebuttal, and that it might have opened the door to evidence from the other
criminal trial that would otherwise be inadmissible. N.T. 25-27; 36-40. An investigation
revealed that neighbors, teachers, others at the school had a "very bad opinion" of Mr. Bodle and
could potentially testify to bad character on the part of the defendant. N.T. 36-40. Trial counsel
nonetheless allowed the client to decide whether to call each witness. N.T. 40.
For the reasons stated in this Court opinion dated June 26, 2015, as supplemented by the
above references to the record, this Court respectfully requests that its judgment be affirmed.
~COURT,
/\ September 17, 2015 Date J- A. Gray, J.
cc: District Attorney's Office (KO) Gerald E. Lynch, Esq. (PCRA Counsel for Defendant) Leon D. Bodle, JV-4596 SCI Houtzdale P.O. Box 1000 Houtzdale, PA 16698-1000 (Superior & 1)