J-S39040-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONALD MICHAEL KLOCH, :
:
Appellant : No. 1833 MDA 2015
Appeal from the PCRA Order September 18, 2015
in the Court of Common Pleas of York County
Criminal Division, at No(s): CP-67-CR-0006893-2012
BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 08, 2016
Donald Michael Kloch (Appellant) appeals from the order which denied
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the facts underlying this matter
as follows.
On February 11, 2013, a jury found [A]ppellant guilty of
one count of attempted homicide, two counts of aggravated
assault, three counts of terroristic threats, one count of false
imprisonment, one count of unlawful restraint, three counts of
simple assault, three counts of recklessly endangering another
person [(“REAP”)], and one count of attempted involuntary
deviate sexual intercourse (“IDSI”).
Appellant’s convictions arose from events that transpired
on May 7, 2012, in Peach Bottom Township. At that time, the
victim, Aerial Auble, was at [A]ppellant’s house purchasing and
consuming drugs. Auble came and went from [A]ppellant’s
residence several times that day. Eventually, after exchanging
text messages with one Kacey Simon, Auble informed
*Retired Senior Judge assigned to the Superior Court.
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[A]ppellant that Simon could get them a good deal on Percocet.
Appellant gave Simon [approximately] $800 and transported
Auble and Simon to a house in Maryland. Simon went into the
house, but never returned, and no one answered the door to the
house when [A]ppellant knocked. Simon initially had responded
to text messages from Auble, but eventually stopped returning
her messages.
Appellant and Auble returned to [A]ppellant’s residence
and went into his bedroom. Appellant announced his intent to go
to Simon’s house. He retrieved a double-barreled shotgun and
loaded it. Auble attempted to grab her purse and leave, but
[A]ppellant prevented her. Appellant told Auble that she was
responsible for him losing his money and that she needed to fix
it. Appellant then repeatedly told Auble that she better be “a
good piece of ass” for his money. Appellant grabbed Auble by
the hair and the shotgun discharged through the floor near
Auble’s feet. Appellant pushed Auble onto the bed and, while
holding her down, reloaded the shotgun. Appellant first tried to
remove Auble’s clothing and then exposed his penis and
attempted to force Auble’s face down to his groin, telling her to
“suck his dick.”
At this moment, Auble’s cellular telephone began to ring.
Appellant grabbed the phone and hit Auble in the head with it
which had the inadvertent effect of answering the telephone. On
the other end was Auble’s mother who overheard the sounds of
their struggle. Auble’s mother summoned Auble’s father and the
two of them, along with one Benjamin Pohl, went to
[A]ppellant’s house. Ultimately, Auble’s father and Pohl entered
the house and broke down the bedroom door. Appellant
threatened them with the shotgun, and a physical struggle for
the gun ensued among [A]ppellant, Auble’s father, and Pohl,
with the gun twice discharging into the bedroom wall. Appellant
eventually lost control of the gun and Auble, her father, and Pohl
were able to make their escape. Appellant followed them out
onto his front porch threatening that if he ever saw any of them
again, he would kill them.
Commonwealth v. Kloch, 105 A.3d 784 (Pa. Super. 2014) (unpublished
memorandum at 1-3) (footnotes omitted).
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On May 30, 2013, Appellant was sentenced to an aggregate term of
8½ to 17 years of imprisonment with a consecutive 5 years of probation.
Appellant filed post-sentence motions, which were denied after a hearing.
Appellant filed a notice of appeal to this Court, which affirmed his judgment
of sentence on July 8, 2014. See Commonwealth v. Kloch, 105 A.3d 784
(Pa. Super. 2014) (unpublished memorandum).
On October 15, 2014, Appellant pro se filed a PCRA petition. Counsel
was appointed, and an amended petition was filed on February 2, 2015.
Following a hearing held on June 19, 2015, the PCRA court denied
Appellant’s petition. This appeal followed.
Appellant presents one issue for this Court’s consideration: “Whether
the PCRA court erred by finding that Appellant’s counsel was not ineffective
for failing to call character witnesses when the only two witnesses to critical
points of the events were Appellant and the victim, and such character
evidence is of paramount important [sic] under such circumstances?”
Appellant’s Brief at 4.
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).
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Appellant’s claim is based upon the alleged ineffective assistance of his
trial counsel.
[I]n order to obtain relief based on [an ineffective
assistance of counsel] claim, a petitioner must
establish: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s
actions or failure to act; and (3) petitioner suffered
prejudice as a result of counsel’s error such that
there is a reasonable probability that the result of
the proceeding would have been different absent
such error.
Trial counsel is presumed to be effective, and a PCRA petitioner
bears the burden of pleading and proving each of the three
factors by a preponderance of the evidence.
Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015)
(citations omitted).
Because Appellant argues that trial counsel was ineffective for failing
to call certain witnesses, the following standards also are applicable.
To establish ineffectiveness for failure to call a witness, Appellant
must establish that: (1) the witness existed; (2) the witness was
available; (3) counsel was informed of the existence of the
witness or counsel should otherwise have known him; (4) the
witness was prepared to cooperate and testify for Appellant at
trial; and (5) the absence of the testimony prejudiced Appellant
so as to deny him a fair trial. A defendant must establish
prejudice by demonstrating that he was denied a fair trial
because of the absence of the testimony of the proposed
witness.
Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003) (quoting
Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002)).
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Evidence of a person’s character is generally inadmissible as proof that
the person acted consistent with that character on any particular occasion.
Pa.R.E. 404(a)(1). However, a criminal defendant may offer evidence of his
or her pertinent character trait as substantive evidence that he or she did
not commit a charged crime. Pa.R.E. 404(a)(2)(A); Commonwealth v.
Padden, 50 A.2d 722, 725 (Pa. Super. 1947). “[O]ur Supreme Court has
interpreted the term ‘pertinent’ to refer to a character trait that is relevant
to the crime charged against the accused.” Commonwealth v. Minich, 4
A.3d 1063, 1071 (Pa. Super. 2010).
Herein, Appellant challenges trial counsel’s failure to call witnesses to
testify at trial as to Appellant’s character for truthfulness and non-violence.
With respect to Appellant’s character for truthfulness, we note that, as
observed by the Commonwealth, Appellant failed to present any witnesses
at the PCRA hearing to testify to that character trait. Commonwealth’s Brief
at 17-18. Appellant presented four character witnesses at the PCRA hearing
in an effort to elicit testimony limited to Appellant’s character for
peacefulness and non-violence. N.T., 6/19/2015, at 58-72. Thus, in this
regard, Appellant has failed to prove he is entitled to relief on the
ineffectiveness claim relating to truthfulness. See Todd, 820 A.2d at 712
(explaining that, in order to establish ineffectiveness for failure to call a
witness, Appellant must establish that the witness existed, was available,
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and was prepared to cooperate and testify for Appellant at trial, among other
factors).
As for Appellant’s character for non-violence, the PCRA court
concluded that, inter alia, trial counsel had a reasonable basis for not calling
character witnesses. With respect to the reasonable basis prong of the
ineffectiveness test, our Supreme Court has observed:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. 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 the trial
counsel’s decision had any reasonable basis.
Commonwealth v. Hawkins, 894 A.2d 716, 730 (Pa. 2006) (emphasis in
original) (citation omitted).
In reaching its conclusion, the PCRA court reasoned, in part, as
follows:
During the PCRA hearing, trial counsel was asked why he did not
present character witnesses on [Appellant’s] behalf. Trial
counsel explained his rationale:
[M]y thought process was how am I going to be able to
bring testimony in from these people saying that he has a
reputation in the community for being a peaceful, law
abiding person when he himself is getting on the stand,
admitted he went to the closet and got a shotgun out and
loaded it in an effort to go hunt this guy down to get his
money back. So I thought that would be -- it looked
poorly, it would come out poorly to the jury is what I was
thinking.
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[N.T., 6/19/2015, at 30-31.]
[Appellant] testified at trial about a conversation with the
victim while returning from the botched drug buy.
[A]t one point as we was coming up the road, she says,
well, I know where he lives at, we’ll go over there. I said,
okay. Let’s go home and I’ll get my gun. She knew about
the gun on the way coming back up the road, going back
to my house. I’ll go get my gun and we’ll go over there.
She said okay.
[N.T., 2/7/2013, at 840.] [Appellant] further testified that he
retrieved the shotgun once he and the victim arrived at home in
accord with the stated plan. “I get in the closet, get the gun
out, get the shells off the top shelf of the closet bring them out.”
[Id. at 842.]
Trial counsel’s decision to forego character witness
testimony is reasonable in light of [Appellant’s] own testimony.
Indeed, such conflicting testimony could have caused [Appellant]
to lose credibility with the jury. As aptly stated by the [Court in
Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992)],
“credibility of the witnesses is of paramount importance.” [Id.
at 442]. This includes the credibility of [Appellant] himself. This
[c]ourt finds that trial counsel had a reasonable basis for not
calling character witnesses.
PCRA Court Opinion, 9/18/2015, at 9-11.
The record supports the PCRA court’s conclusion that trial counsel had
a reasonable basis for not presenting character witnesses in that he believed
that, in light of Appellant’s own testimony, presenting such evidence would
reflect poorly on Appellant in the eyes of the jury. As trial counsel testified
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to a reasonable basis for not calling character witnesses,1 he cannot be
found to be ineffective. Hawkins, 894 A.2d at 730; Commonwealth v.
Reed, 42 A.3d 314, 324 (Pa. Super. 2012) (“If a reasonable basis exists for
the particular course, the inquiry ends and counsel’s performance is deemed
constitutionally effective.”). Accordingly, we affirm the order of the PCRA
court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
1
Appellant claims that “[t]he fact that a defendant may be acting in a
violent way during an alleged crime is not a basis for failing to call character
witnesses for non-violence,” relying on Commonwealth v. Harris, 785
A.2d 998 (Pa. Super. 2001). Appellant’s Brief at 21-23. Appellant’s
argument is unpersuasive. Indeed, trial counsel in Harris stated that he
“didn’t have a strategic reason for failing to introduce … character
testimony.” Id. at 1001. This Court explained that, “[a]s counsel has
stated that he had no strategic reason for not calling these witnesses, we
need not further weigh the matter. Thus, we conclude that counsel had no
strategic reason for failing to call these witnesses.” Id. at 1001-02.
Moreover, trial counsel herein did not base his decision merely on Appellant’s
acting violent during the incident at issue. Rather, he based it upon his
legitimate concern that the conflict between Appellant’s trial testimony,
which itself revealed the violent nature of his actions, and the testimony of
character witnesses relating to Appellant’s non-violence would “come out
poorly to the jury.” See N.T., 6/19/2015, at 30-31.
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