Commonwealth v. Hull

982 A.2d 1020, 2009 Pa. Super. 201, 2009 Pa. Super. LEXIS 4256, 2009 WL 3321452

Opinions

OPINION BY

FITZGERALD, J.:

¶ 1 The Commonwealth of Pennsylvania files this appeal from the order entered in the Fayette County Court of Common Pleas, which granted relief to Appellee, Rick Elwood Hull, based on his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).¹ We hold that counsel 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. Accordingly, we affirm.

¶ 2 Appellee was convicted by a jury in 2004 of involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, indecent exposure, and corruption of minors, involving allegations of sexual acts performed on his adopted daughter. The only evidence presented at trial was the recollection of witnesses, including those of the victim and her brother, of the events. The victim’s brothers, who Appellee also adopted, testified that Appellee and his wife regularly struck them. Appellee was sentenced to an aggregate sentence of five to fifteen years’ imprisonment. The trial court further required Appellee to comply with the lifetime registration requirements of 42 Pa.C.S. § 9795.1(b)(2) on the conviction for involuntary deviate sexual intercourse. This Court affirmed his judgment of sentence. Commonwealth v. Hull, 902 A.2d 977 (Pa.Super.2006) (unpublished memorandum). Appellee did not petition for allowance of appeal with our Supreme Court.

¶ 3 Appellee filed a PCRA petition in 2007, alleging ineffectiveness of counsel due to failure to present character witnesses. It is not contested that there were available witnesses who were willing and able to testify as to Appellee’s good character at trial. The PCRA court granted relief, finding counsel ineffective based on his failure to call character witnesses. The PCRA court therefore granted a new trial. The Commonwealth timely appealed.

¶ 4 The Commonwealth raises two issues:

Whether the court erred in granting Appellee a new trial based on trial counsel’s failure to introduce testimony of various character witnesses produced by the defendant?

Whether the evidence at trial was so overwhelming that the failure to introduce such testimony was harmless error?

Commonwealth’s Brief at 3.

¶ 5 “In addressing the grant or denial of post-conviction relief, we consider whether the PCRA court’s conclusions are supported by record evidence and are free of legal error.” Commonwealth v. Sattazahn, 597 Pa. 648, 669, 952 A.2d 640, 652 (2008). ‘We must accord great deference to the findings of the PCRA court, and such findings will not be disturbed unless they have no support in the record.” Commonwealth v. Scassera, 965 A.2d 247, 249 (Pa.Super.2009).

¶ 6 The Commonwealth argues that the PCRA court erred in finding no reasonable explanation for trial counsel’s approach. See PCRA Ct. Op., filed 7/15/08, at 9. The Commonwealth contends it was a calculated decision by counsel not to call character witnesses. The Commonwealth finds reasonable trial counsel’s conclusion that Ap-pellee’s most successful strategy was to paint a picture of Appellee’s house as a miserable place to live, motivating the children to fabricate a story in order to facilitate their removal from the house. The Commonwealth also argues the PCRA court erred when it found that counsel’s ineffectiveness led to actual prejudice. See PCRA Ct. Op. at 12. The Commonwealth submits that the outcome of the proceedings would not have been any different if character evidence had been introduced. We disagree.

¶7 In order to succeed on a claim of ineffective assistance of counsel:

The petitioner in such matters is required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. The failure to satisfy any prong of this test will cause the entire claim to fail. Finally, counsel is presumed to be effective, and petitioner has the burden of proving otherwise.

Commonwealth v. Harris, 972 A.2d 1196, 1203 (Pa.Super.2009) (citations omitted). “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. Harris, 785 A.2d 998, 1000 (Pa.Super.2001) (citing Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073, 1077 (1983)).

¶ 8 Instantly, the PCRA court acted within its discretion when it decided the underlying claim had merit:

In this case, no one other than G.EL testified as to the acts upon which the charges were based and there were no physical findings to corroborate the acts. Therefore, the credibility of the witnesses was of paramount importance, and character evidence is critical to a jury’s determination of credibility. Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992). The failure to present available character evidence may constitute ineffective assistance of counsel. Commonwealth v. Harris, 785 A.2d 998 (Pa.Super.2001). The defendant’s claim is, therefore, not without merit.

PCRA Ct. Op. at 8. The Commonwealth does not contest this aspect of the PCRA court’s determination.

¶ 9 Next, “we apply the ‘reasonable basis’ test to determine whether counsel’s chosen course was designed to effectuate his client’s interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel’s assistance is deemed effective.” Weiss, 530 Pa. at 5-6, 606 A.2d at 441-42; see also Commonwealth v. Blount, 538 Pa. 156, 170-71, 647 A.2d 199, 207 (1994) (“[Djefense counsel’s decision was not a tactical one made after weighing all of the alternatives, but was based on the fact that he had failed to interview and prepare potential character witnesses, and consult with his client thereto. These failures by counsel were precipitated by defense counsel’s perception that familial character witnesses were per se worthless.” (quotation omitted)). “The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” Blount, 538 Pa. at 171, 647 A.2d at 207 (quoting Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967)). Counsel has a reasonable, strategic basis for not calling character witnesses if he has a legitimate reason to believe that the Commonwealth would cross-examine the witnesses concerning bad-character evidence. See Commonwealth v. Van Horn, 797 A.2d 983, 988 (Pa.Super.2002) (finding counsel’s strategy not to call client’s relatives as character witnesses reasonable because of client’s prior convictions of burglary and statutory rape) (citing Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516 (1997)).

¶ 10 It is undisputed that counsel’s stated strategy was to show that “these children were lying and because they weren’t happy there, they wanted to go home to Lancaster where they had a mother who, I guess, essentially let them do whatever they wanted to do, run the streets, and that they wanted to go home.” N.T. PCRA Hearing, 5/16/07, at 18. If counsel had presented character witnesses, such testimony would have been consistent with this strategy because it could have made Appellee’s story, that the children were making up these accusations, more believable. By portraying Appellee as a good man who would emphasize morals and discipline, counsel would have had an opportunity to enhance his strategy of proving that the children had a motivation to lie about their accusations. Counsel, however, chose not to present these character witnesses; accordingly, we will review whether counsel had reason to believe that any negative consequences would outweigh this positive aspect.

¶ 11 Initially, counsel justified his failure to call character witnesses by claiming that their testimony was irrelevant because they had no information about the case, a justification which counsel, on cross-examination, admitted was erroneous:

Q. What’s the purpose of calling character witnesses?

A. The purpose of calling character witnesses?

Q. Yes, the purpose of calling character witnesses.

A. Typically, to testify as to an individual’s reputation in the community.

Q. So it wouldn’t make any difference whether they knew anything about the case, would it?

A. No.

Q. You said that was one of your concerns, that they didn’t have any information about the case, you remember saying that, don’t you?

A. Yes.

Q. It has absolutely nothing to do with a good character witness, does it?

A. No.

Id. at 26-27.

¶ 12 Counsel’s other justification, then, was his attempt to avoid allowing the Commonwealth to cross-examine Appellee on potential character issues:

Q. Did you have any concerns about calling character witnesses at that time? A. Some.

Q. And what were they?

A. That it would open the door to character and allow other adverse character witnesses to be called.

Q. And what did you, and again, you’re looking at this from a trial standpoint, what did you think that might happen if those other witnesses were called, the negative character witnesses?

A. That they would adversely impact the jury and their decision in the matter.

Q. And what was your specific concern about what they would testify about?

A. I did not have any specific concerns at that point.

* * *

Q. Did you have any concerns about this issue about the children being disciplined and/or being beaten and/or being called names might be something that the community might have been aware of?

A. Yes.

Q. And you were worried about that then coming up on cross-examination?

A. Yes.

Id. at 24-25 (emphasis added). Counsel, therefore, established he was initially afraid that, upon cross-examination regarding Appellee’s character, the Commonwealth could introduce evidence of Ap-pellee’s reputation for abusing children. During cross-examination at the PCRA hearing, however, Appellee inquired into the basis of counsel’s concern:

Q. You had no evidence whatsoever that anybody was going to come into court and testify against his bad charac ter because as far as you know, there was no bad character from character witnesses, isn’t that right?

A. That’s correct.

Q. But you never bothered investigating that. You left it up to your client to tell you, basically, go get good character witnesses, right?

A. No. My client provided me with names.

Q. And what did you do after you got the names, did you talk to any of these people?

A. Yes, I talked to several of them.

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Q. Let me ask you this. Until somebody puts in a good character, their character shouldn’t be attacked, right?

A. Right.

Q. Throughout this entire trial, his character was attacked by these children when he never even raised his good character, isn’t that right?

A. Not through the entire trial, no.

Q. A good portion of it.

A. At times.

Q. Right. So was there any particular trial strategy on your part not to call these good character witnesses?

A. No.

Id. at 28-29 (emphases added).

¶ 13 We agree with the PCRA court’s assessment of counsel’s testimony:

During his testimony, [counsel] appeared to have a lack of understanding with regard to the importance of reputation testimony. He appeared to be unaware that evidence of good character in and of itself could raise a reasonable doubt of the defendant’s guilt and appeared unfamiliar with the Court’s obligation to instruct the jury on the significance of such evidence had reputation testimony been introduced. It was clear from the testimony of defense counsel that he did not understand the significance and importance of reputation evidence.

PCRA Ct. Op. at 6. We agree with the PCRA court that counsel did not understand what role character evidence should have played in his overall trial strategy. Appellee had no criminal record, and no witness indicated that he or she had any bad-character evidence against Appellee. Counsel, therefore, had no reasonable expectation that any of the witnesses would have negative evidence against Appellee. In fact, it appears counsel’s concern was a broad-based fear, and was not based on any particular concern he learned of in the course of investigating the character witnesses.

¶ 14 For counsel’s decision to be reasonable, counsel would have had to investigate the witnesses, determine what they knew about Appellee, and evaluate how that information would help or hurt his trial strategy. See Weiss, 530 Pa. at 5-6, 606 A.2d at 441-42. Counsel’s assertion instead gave the impression that he was afraid a more thorough investigation by the Commonwealth would uncover negative information about Appellee that counsel himself could not uncover.

¶ 15 In Weiss, our Supreme Court addressed trial counsel’s decision not to have the defendant’s parents-in-law, employer, and co-worker testify as to the defendant’s good character:

In a case such as this, where there are only two direct witnesses involved, credibility of the witnesses is of paramount importance, and character evidence is critical to the jury’s determination of credibility. Evidence of good character is substantive, not mere makeweight evidence, and may, in and of itself, create a reasonable doubt of guilt and, thus, require a verdict of not guilty....

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Trial counsel’s failure to use appellant’s numerous relatives as character witnesses was based upon his perception of familial character evidence. He testified that, “[a]s a policy matter, I don’t ever recall ever putting on character evidence of family members. I think the jury just thinks it’s garbage.” Counsel admits that he never discussed with appellant the possibility of presenting character evidence from appellant’s family. Counsel’s preconceived notions about familial character evidence led to his failure to even interview appellant’s relatives, and precluded him from assessing their credibility. Although familial character witnesses generally lack the credibility of unbiased non-familial witnesses, an attitude that they are per se worthless, is sufficient evidence of counsel’s competency.

In light of the overwhelming need for character evidence in a case such as this, counsel’s limited investigation into the quantity and/or quality of potential character witnesses on behalf of appellant, and counsel’s prejudice toward familial witnesses, we find no reasonable basis to support trial counsel’s decision not to call any character witnesses.

Id. at 6, 8, 606 A.2d at 442, 443 (emphasis added) (citations omitted).

¶ 16 Similarly, in the instant matter, we cannot accept counsel’s decision not to conduct a more thorough investigation as a reasonable strategy. As our Supreme Court stated in Weiss, counsel should have investigated the character witnesses to determine their value on the stand. See id. Counsel did not cull his beliefs, either that the character witnesses’ testimony would have no value because they had no specific knowledge of the case, or that counsel worried about the potential of the Commonwealth to cross-examine them on Appellee’s bad character, through proper investigation. See id. In particular, because the charges against Appellee were based solely on the accusations by the alleged victim and her brothers, credibility was the primary factor in the jury’s determination. See id. at 6, 606 A.2d at 442 (observing that when only two direct witnesses are involved, credibility “is of paramount importance”). Indeed, counsel admitted that his overall strategy was to question the children’s credibility by formulating in the jurors’ minds a motive for the children to fabricate their allegations against Appellee and his wife.

¶ 17 We therefore turn to the third prong of the ineffective assistance of counsel analysis. In order to determine whether there is a reasonable probability that effective assistance of counsel would have led to a different outcome, Appellee “must demonstrate that the alternative not selected by counsel offered a substantially greater chance of success than the tactic chosen.” Id. at 8, 606 A.2d at 443. “To properly determine whether prejudice resulted from the quality of counsel’s representation, we must focus on counsel’s overall trial strategy and view his performance as a whole.” Id. at 8-9, 606 A.2d at 443.

¶ 18 As noted above, counsel’s overall trial strategy was to convince the jury that the children had a motive to fabricate their allegations against Appellee. Evidence of Appellee’s good character, particularly in the absence of any bad-character evidence outside of the children’s testimony, would have bolstered his defense. See id. at 6, 606 A.2d at 442.

¶ 19 We must also consider, however, the Commonwealth’s assertion that even if Appellee presented character witnesses, the evidence against Appellee was so overwhelming that the outcome would not have been different. The other available evidence cited by the Commonwealth includes the competing oral accounts of the witnesses. The Commonwealth asserts that the victim’s brother’s testimony was “extremely uncommon in child sexual assault cases as most, if not all, cases rely only on the testimony of the victim.” Commonwealth’s Brief at 11. The Commonwealth claims that the brother’s testimony was “extensive” and “undermines” the PCRA court’s finding of lack of overwhelming evidence. Id. at 12. We disagree.

¶ 20 Our review of the testimony of the victim’s brother reveals that it was too vague and uncertain to constitute overwhelming evidence, especially since the weight given to it by the jury still depended on his credibility. On one of the instances in question, the brother observed Appellee kneeling under the pool, but did not see the victim. N.T. Trial, 5/6/04, at 84. On another, the brother testified he watched Appellee put his hand under the victim’s nightgown. See id. at 81. On a third occasion, the brother claimed that he witnessed Appellee kneeling in front of the victim “trying to touch her vagina” while the victim pushed him away. Id. at 83. At one point in his testimony, the brother admitted that when he confronted the victim about one of these incidents, she denied it was true. See id. at 85.

¶ 21 Importantly, the character evidence at issue could cast doubt on the brother’s testimony since that evidence speaks not only to the victim’s credibility, but also her brother’s, whose testimony the Commonwealth claims renders the evidence overwhelming. Allegedly, the victim and her brother would share the same motive; thus, by bolstering Appellee’s credibility, the jury would have been more likely to consider his theory that the children falsified the allegations. Counsel’s inaction, however, caused the jury to weigh only Appellee’s and his wife’s testimony against the children’s.² Since the PCRA court was able to observe the atmosphere at trial, we need only determine whether the PCRA court’s observations are supported by the record, and whether those observations support the result reached by the court. See Sattazahn, 597 Pa. at 669, 952 A.2d 640. We agree the record supports the PCRA court’s findings and conclude that the failure to present Appellee’s desired character witnesses prejudiced his defense.

¶ 22 We accordingly hold that counsel lacked a reasonable basis not to call good-character witnesses based on his overall trial strategy of showing that the children had a motive to lie about their allegations against Appellee. 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.³ We therefore find no error in the PCRA court’s decision to order a new trial.

¶ 23 Order affirmed.

¶ 24 Judge STEVENS files a Dissenting Opinion.

Footnotes

1

. 42 Pa.C.S. §§ 9541-9546.

2

. Appellee also presented alibi evidence from his brother-in-law, who testified that when he left the house, the children were in bed on one of the nights in question, but he could not testify as to whether the victim may have gotten out of bed. Appellee's sister testified as to the difficulties Appellee and his wife were having with the children and her doubts about the victim's accusations.

3

. We are mindful of the Commonwealth's concern that "[t]he Commonwealth now faces the prospect of a re-trial with the necessity of presenting the same child to testify about incidents now occurring more than six (6) to seven (7) years ago, forcing the child to relive and relate sexual incidents which it can be argued that she ha[s] no interest in recalling.” Commonwealth's Brief at 11. We cannot agree with the Commonwealth, however, that "[t]o now allow the Appellee to obtain a new trial based on whether character witnesses who had no knowledge of any of these events should have been called by defense counsel is more than sad — it is an inappropriate remedy.” Id. As we have determined, the value of the character witnesses lies not in what they witnessed, but in directly supporting Appel-lee's defense and indirectly refuting the children’s allegations. Accordingly, permitting Appellee the opportunity to assert a colorable defense properly constitutes the only fair remedy in this case.