Com. v. Musgrove, C.

• Court: Superior Court of Pennsylvania
• Decided: March 25, 2025
• Docket: 276 WDA 2024
• Status: Unpublished

Opinion

J-A05039-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER MUSGROVE : : Appellant : No. 276 WDA 2024

Appeal from the PCRA Order Entered January 31, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009603-2019

BEFORE: MURRAY, J., KING, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MARCH 25, 2025

Christopher Musgrove appeals from the order dismissing his petition,

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546

(“PCRA”), and seeks a remand for further proceedings consistent with

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). After review, we

remand.

On June 25, 2021, Musgrove proceeded by way of non-jury trial with

the assistance of Leslie Perlow, Esquire. The court found Musgrove guilty on

all charges.1 On September 20, 2021, the court sentenced Musgrove to an

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* Retired Senior Judge assigned to the Superior Court.

1 Musgrove’s convictions consist of two counts each of rape of a child, involuntary deviate sexual intercourse with a child, incest with a minor—victim under 13 years of age, corruption of minors, endangering the welfare of (Footnote Continued Next Page)

*Retired Senior Judge assigned to the Superior Court J-A05039-25

aggregate term of 26 to 52 years’ incarceration followed by 5 years’ probation.

Musgrove did not appeal.

On September 26, 2022, through newly-appointed post-conviction

counsel—Ryan James, Esquire—Musgrove timely filed his first PCRA petition,

alleging, inter alia, ineffective assistance of trial counsel for failure to present

a character witness. The PCRA court held a hearing on the petition on July

12, 2023, and took the case under advisement at the conclusion of the

hearing. On January 31, 2024, the PCRA court dismissed Musgrove’s petition.

The court then granted Attorney James’ petition to withdraw and thereafter

appointed Corrie Woods, Esquire.

Attorney Woods filed a counseled notice of appeal on March 1, 2024,

and continues to represent Musgrove in this appeal. Musgrove and the PCRA

court have complied with Pennsylvania Rule of Appellate Procedure 1925. In

Musgrove’s Rule 1925(b) concise statement, he raises for the first time, and

at his first opportunity to do so, the ineffective assistance of Attorney James

for failure to raise a claim of Attorney Perlow’s ineffectiveness for failure to

present the testimony of five character witnesses not discussed in Musgrove’s

PCRA petition.

On appeal, Musgrove, through Attorney Woods, alleges he is entitled to

a remand for a hearing pursuant to Bradley, supra, so that he may develop

children, and unlawful contact with a minor, and one count each of indecent assault—victim less than 13 years of age and simple assault of a child.

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the above-mentioned layered claims of ineffectiveness relating to the five

potential character witnesses. Accordingly, Musgrove presents the following

question for our review:

Is Musgrove entitled to a remand to make out a claim that [Attorney James] was ineffective in failing to adequately investigate and present a claim that [Attorney Perlow] was ineffective in failing to call Tom Evan, Rhonda Scott, James Ekiss, “Bob,” and “Roger” as witnesses as to Musgrove’s character and in failing to call Attorney Perlow to testify at the PCRA hearing herein?

Appellant’s Brief, at 4.

Our standard of review for the denial of a PCRA petition is as follows:

An appellate court reviews the PCRA court’s findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error. The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the [PCRA court] level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014) (citation

and original brackets omitted).

On appeal, Musgrove argues that he is entitled to a remand for an

evidentiary hearing on the issue of whether Attorney James was ineffective

for failing to allege the ineffectiveness of Attorney Perlow, stemming from her

failure to call Tom Evan, Rhonda Scott, James Ekiss, “Bob,” and “Roger” as

character witnesses at Musgrove’s trial.2

2 Bob’s and Roger’s last names are not of record.

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The Commonwealth responds that no evidentiary hearing on these

layered ineffectiveness claims is required because Musgrove agreed, during a

trial colloquy, that he understood his rights regarding calling character

witnesses and was willing to proceed at trial without calling any character

witnesses. The Commonwealth urges that Musgrove should be bound to his

previous statements to the court and denied relief presently on that basis.

In Musgrove’s reply brief, he agrees he is bound by his trial statements

to the court that he understood his right to call character witnesses.

Nevertheless, Musgrove points to the narrow issue that the record is silent on

whether it was a reasonable trial strategy for Attorney Perlow to fail to call

any character witnesses, especially the five individuals identified in this

appeal. In connection with this layered ineffectiveness claim, Musgrove notes

that Attorney James never called Attorney Perlow to testify at the PCRA court’s

evidentiary hearing to inquire into whether Attorney Perlow’s failure to call the

five witnesses was a reasonably-based trial strategy and argues that a remand

is therefore necessary to develop that claim. We agree.

Pennsylvania law is well-settled regarding how to raise a claim of layered

ineffective assistance of counsel:

[I]n addressing a petitioner’s layered claim of ineffectiveness, we presume counsel is effective and determine whether the petitioner rebutted that presumption by establishing: (1) the underlying claim of ineffectiveness has arguable merit; (2) counsel’s act or omission was not reasonably designed to advance the interest of the petitioner; and (3) the petitioner was prejudiced—that is, but for counsel’s errors, the outcome of the proceeding would have been different. Additionally, in determining a layered claim of ineffectiveness, the critical inquiry is whether the first attorney

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that the petitioner asserts was ineffective did, in fact, render ineffective assistance of counsel.

Commonwealth v. McCready, 295 A.3d 292, 298-99 (Pa. Super. 2023)

(citations, quotations marks, emphasis, and original brackets omitted). See

also Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.

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

Counsel’s failure to present available character witnesses may constitute

ineffective assistance if there is no reasonable basis for that failure. See

Commonwealth v. Mickens, 597 A.2d 1196, 1203 (Pa. Super. 1991) (“a

lawyer who fails to use character evidence on a defendant’s behalf can indeed

be deemed constitutionally ineffective if there is no reasonable basis for such

failure”). Further, we have previously observed that there are procedural and

substantive requirements for raising counsel’s ineffectiveness for failing to

present witness testimony:

First, a [PCRA petitioner] must attach to his PCRA petition “a signed certification as to each intended witness stating the witness’s name, address, date of birth and substance of testimony.” 42 Pa.C.S.[] § 9545(d)(1); Pa.R.Crim.P. 902(A)(15); see also Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014). Second, a [PCRA petitioner] must establish that: “(1) the witness existed; (2) the witness was available; (3) counsel was informed or should have known of the existence of the witness; (4) the witness was prepared to cooperate and would have testified on [the petitioner]’s behalf; [and] (5) the absence of such testimony prejudiced him and denied him a fair trial.” Reid, supra.

McCready, 295 A.3d at 299.

This Court has previously explained that character evidence is

substantive evidence sufficient to create reasonable doubt by itself:

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[E]vidence 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 engender reasonable doubt or produce a conclusion of innocence.

Commonwealth v. Johnson, 27 A.3d 244, 248 (Pa. Super. 2011) (citations

omitted).

Here, the record indicates that Attorney Perlow was aware of potential

character witnesses at the time of trial insofar as Cheryl Wilcox, Musgrove’s

aunt, testified at the PCRA evidentiary hearing that she provided the above-

mentioned names to Attorney Perlow’s investigator, Bob Keys. See N.T. PCRA

Evidentiary Hearing, 7/12/23, at 61 (Wilcox testifying she provided

Investigator Keys with names of potential character witnesses including, “Bob,

Roger, my pastor, Pastor [Gary] LaPietra” as well as “Pastor Jim Ecass [sic],

Brother Tom Evan[,] and Sister Rhonda Scott”). Attorney Perlow also

informed the court that she was aware of potential character witness

testimony, but, with the input of Investigator Keys and Musgrove, she

determined that no character witnesses should be called, and Musgrove

agreed. See N.T. Non-Jury Trial, 6/5/21, at 79 (Attorney Perlow telling trial

court “Originally[, Musgrove] gave me some names of people. [Investigator

Keys] interviewed them and based on his opinion, my opinion, and

conversations with [] Musgrove, we are not calling these people as character

witnesses.”). Nevertheless, the record does not contain the reasons

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supporting Attorney Perlow’s decision to advise Musgrove as she did, nor does

the record reveal which character witnesses she evaluated. Also, Attorney

James sought to raise a claim of Attorney Perlow’s ineffectiveness for a failure

to call a character witness—Pastor LaPietra—but failed to call Attorney Perlow

to testify at the PCRA evidentiary hearing. The record also does not otherwise

contain the reasons supporting Attorneys James’ or Perlow’s decisions—as

PCRA and trial counsel, respectively—as it relates to Musgrove’s layered

ineffectiveness claim.

After our review, we conclude remand is necessary because the record

is insufficient to determine whether Attorney James’ failure to call Attorney

Perlow at the PCRA hearing—and the failure to raise the layered ineffective

assistance of counsel claims alleged in this appeal—was based on a reasonable

strategy.3 See Bradley, 261 A.3d at 402 (in some cases appellate court may

need to remand to PCRA court for further development of record and for PCRA

court to consider ineffective assistance of PCRA counsel claims in first

instance). Similarly, the record is not sufficiently developed to evaluate

Musgrove’s claim of trial counsel’s ineffectiveness, especially where the record

fails to reflect the reasons supporting Attorney Perlow’s advice to Musgrove to

3 At this stage, we do not opine on the effectiveness of any of Musgrove’s attorneys and, instead, leave those determinations for the PCRA court to make in the first instance.

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decline to call any character witnesses at trial.4 See Mickens, supra.

Accordingly, we must remand for further proceedings to develop the record

on Musgrove’s layered claims of ineffective assistance of counsel. See

Commonwealth v. Parrish, 317 A.3d 551, 561-62 (Pa. 2024) (remanding

because “PCRA court needs to further develop the record in this case and

consider, in the first instance, Parrish’s layered claims, all alleging the

ineffective assistance of initial PCRA counsel”); cf. McCready, 295 A.3d at

302 (declining to remand because existing record resolved alleged Bradley

issues relating to trial level layer of layered ineffective assistance claim).

Therefore, we must reverse the order denying PCRA relief and remand to the

PCRA court for further proceedings.

In sum, because the record is insufficient to evaluate Musgrove’s claims,

this case is remanded to the PCRA court so that current PCRA counsel may file

an amended PCRA petition that, inter alia, complies with Section 9545(d)(1)

of the PCRA and sets forth a viable layered ineffectiveness claim. Thereafter,

the PCRA court shall conduct an evidentiary hearing for the purpose of

considering Musgrove’s ineffectiveness claims.

Order reversed. Case remanded. Jurisdiction relinquished.

4 Although Musgrove told the court he understood his right to present character witnesses during his trial colloquy, the record fails to reflect the reasons Attorney Perlow relied upon in reaching the conclusion that Musgrove should decline to present such evidence, which are facts necessary to making any finding regarding counsel’s reasonably-based trial strategy.

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DATE: 3/25/2025

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