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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DAVID H. DEANGELO, :
:
Appellee : No. 1976 MDA 2016
Appeal from the PCRA Order November 22, 2016
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005383-2014
BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 10, 2017
The Commonwealth of Pennsylvania appeals from the order entered
November 22, 2016, which granted Appellee David H. Deangelo relief in the
form of a new trial on his petition filed pursuant to the Post-Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541–9546. After review, we reverse the PCRA
court’s order.
Deangelo was found guilty of indecent assault and summary
harassment following a bifurcated trial.1 On October 28, 2015, Deangelo was
sentenced to an aggregate term of two years of probation. He did not file
post-sentence motions or an appeal. On August 9, 2016, Deangelo filed a
PCRA petition alleging that, inter alia, trial counsel was ineffective for “failing
1
The jury sat as factfinder on the indictable offense and found Deangelo
guilty of indecent assault, and the trial court convicted him of summary
harassment.
*Retired Senior Judge assigned to the Superior Court.
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to properly call character witnesses” and failing to “present effective
character witness evidence.” PCRA Petition, 8/9/2016, at 2 (unnumbered).
Following a hearing, the PCRA court determined that trial counsel was
“ineffective in preparing and presenting … character witnesses,” and issued
an order granting Deangelo a new trial. PCRA Court Opinion, 12/7/2016, at
6-7. This appeal followed. Both the Commonwealth and the PCRA court
have complied with the mandates of Pa.R.A.P. 1925.
On appeal, the Commonwealth raises the following issues.
A. Did the PCRA court err by finding trial counsel
ineffective for failing to call character witnesses where the record
demonstrates that counsel called all [13] of [] Deangelo’s
character witnesses at trial?
B. Did the PCRA court err as a matter of law by finding
that Deangelo was prejudiced by trial counsel’s improper
presentation of character evidence where all of Deangelo’s
character witnesses testified favorably for the defense including
several witnesses whose testimony exceeded the permissible
scope of character evidence under Pa.R.E. 405?
Commonwealth’s Brief at 4 (unnecessary capitalization omitted).
“Our standard of review in an appeal from the grant or denial of PCRA
relief requires us to determine whether the ruling of the PCRA court is
supported by the record and is free from legal error.” Commonwealth v.
Lesko, 15 A.3d 345, 358 (Pa. 2011) (citation omitted). This Court “will not
disturb findings that are supported by the record.” Commonwealth v.
Watley, 153 A.3d 1034, 1039–40 (Pa. Super. 2016) (citation omitted).
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When analyzing ineffectiveness claims, we begin with the
presumption that counsel was effective. [T]he defendant bears
the burden of proving ineffectiveness. To overcome the
presumption of effectiveness, a PCRA petitioner must
demonstrate that: (1) the underlying substantive claim has
arguable merit; (2) counsel whose effectiveness is being
challenged did not have a reasonable basis for his or her actions
or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel’s deficient performance. A claim of
ineffectiveness will be denied if the petitioner’s evidence fails to
meet any of these prongs. To establish the second
ineffectiveness prong, the petitioner must prove that an
alternative not chosen offered a potential for success
substantially greater than the course actually pursued. To
establish the third prong, the petitioner must show that there is
a reasonable probability that the outcome of the proceedings
would have been different but for counsel’s action or inaction.
Id. at 1040 (citations and quotation marks omitted).
It is well-settled 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 the
evidence presented in the case on the general issue of guilt or innocence.”
Commonwealth v. Hull, 982 A.2d 1020, 1023 (Pa. Super. 2009) (citation
omitted). Our Supreme Court has emphasized that “[i]n 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 … may, in
and of itself, create a reasonable doubt of guilt and, thus, require a verdict
of not guilty.” Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992).
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Instantly, the jury heard testimony from Deangelo, his wife, his
alleged victim, his victim’s co-workers, and the responding officer. N.T.,
6/17-18/2015, at 83-220. Additionally, defense counsel presented 13
witnesses to testify as to Deangelo’s character for law-abidingness. Id. at
221-266. Of those 13, nine failed to qualify as character witnesses under
Pa.R.E. 405.2 Id. The remaining four individuals did qualify as character
witnesses pursuant to the Rules of Evidence and testified regarding
Denagelo’s positive, long-standing reputation in the community for law-
abidingness. Id.
At the PCRA hearing, trial counsel testified that Deangelo had given
her the list of 13 potential character witnesses prior to trial. N.T.,
2
The Rule provides that “[w]hen evidence of a person’s character or
character trait is admissible, it may be proved by testimony about the
person’s reputation. Testimony about the witness’s opinion as to the
character or character trait of the person is not admissible.” Pa.R.E.
405 (emphasis added). Here, the trial court granted the Commonwealth’s
objection to the testimony given by four potential character witnesses,
Merrill Schaeffer, Linda Schaeffer, Tom Ashman, and Michelle Deangelo,
after each admitted under questioning from defense counsel that he or she
did not discuss with members of Deangelo’s community his reputation for
law-abidingness. N.T., 6/17-18/2015, at 241-247, 253-256, 262-265.
Three additional witnesses, Jerry Oyler, Carolyn Oyler, and Susan Klusaritz,
were withdrawn by defense counsel after each testified that he or she had
not discussed Deanglo’s relevant character trait with members of his
community. Id. at 248-253, 257-259. Notably, all three indicated that he or
she had not done so because there was no need and testified that he or she
knew nothing “negative” about Deangelo’s reputation. Id. Witnesses Judith
Bauer and Jerome Klusaritz lacked the proper foundation for providing
character testimony, but neither was subject to a ruling by the trial court,
nor was either witness withdrawn by counsel. Id. at 231-235, 259-261. Both
Judith Bauer and Jerome Klusaritz testified that he or she was aware
personally of Denagelo’s positive, law-abiding reputation. Id.
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11/3/2016, at 7-8. Counsel contacted the witnesses by telephone but “only
spoke to a few of them” for a few minutes at a time. Id. at 11-12. While
she had presented character witnesses at prior trials, counsel conceded that
she did not spend enough time preparing Deangelo’s character witnesses;
thus, those persons were unaware they could not testify as to specific
instances of, or their subjective belief in, Deangelo’s reputation for law
abidingness. Id. at 13-16. Counsel acknowledged that she was unable to
rehabilitate nine of the witnesses called to testify at trial, although these
witnesses did testify favorably about Deangelo before their testimony was
objected to or stricken from the record. Id. at 13-26. Following the PCRA
hearing, the PCRA court granted Deangelo’s request for a new trial,
explaining as follows.
[Deangelo] wanted thirteen witnesses who were his
friends, former co-workers, and a daughter-in-law, to testify as
to his good character. All these witnesses lived, interacted,
socialized and worked in the pertinent community; therefore,
they had to have known about [DeAngelo’s] reputation as to law
abidingness, his lack of a criminal record, and the lack of such an
accusation in his lifetime. Thus, these witnesses could have
been crucial to his case since the only evidence of what had
occurred was the controverted testimony of the victim and
[DeAngelo].
Nine witnesses, because of cross examination and
objections by the Commonwealth, did not testify as to
[Deangelo’s] reputation in the community. Due to their lack of
preparation by trial counsel, they were eliminated as witnesses
by defense counsel after they had been called to testify and after
being sworn in as witnesses. The elimination of the witnesses
after each one’s attempt to testify as to the positive character of
[Deangelo] was even worse than not calling them at all. The
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witnesses were impotent; their failure to present useful
testimony, as to [Denagelo’s] reputation, cast further suspicion
on [Deangelo’s] character. These were all people who know
[Deangelo] very well for years. Each was a person of reputable
character; but the majority could not even tell the jury what a
man of positive character [Deangelo] is in the community. The
jurors were thus free to conclude that the character witnesses
could not testify as to [Deangelo’s] good character because
although these are [Deangelo’s] friends, co-workers, and
relatives, they had nothing positive to say about his character,
making this strategy counterproductive for [Deangelo].
PCRA Court Opinion, 11/23/2016, at 5-6.
We begin by noting that, specifically related to a claim for
ineffectiveness for the failure to call a witness, the PCRA petitioner must
establish that “(1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, 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 testimony of the witness was so
prejudicial as to have denied the defendant a fair trial.” Commonwealth v.
Matias, 63 A.3d 807, 810–811 (Pa. Super. 2013). Further, “ineffectiveness
for failing to call a witness will not be found where a defendant fails to
provide affidavits from the alleged witnesses indicating availability and
willingness to cooperate with the defense.” Commonwealth v. O'Bidos,
849 A.2d 243, 249 (Pa. Super. 2004). Deangelo’s PCRA petition did not
contain the affidavits of any of the “impotent” witnesses averring that those
persons could give proper character testimony. Accordingly, his claim fails.
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Moreover, even if Deangelo had met this burden, and assuming
arguendo that the issue has arguable merit, and that counsel had no
reasonable basis for her lack of preparation, our review of the record
demonstrates that the PCRA court erred in determining that Deangelo
suffered prejudice such that a new trial was warranted. Denagelo was not
deprived completely of the opportunity to present character testimony.
Rather, the fact remains that four persons, Dana Fisher, N.T., 6/17-18/2015,
at 227-228; Robert Lindenmuth, id. at 229-231; Joan Miller, id. at 235-327;
and Steven Miller, id. at 238-241, testified as to Deangelo’s character for
law-abidingness within the confines of Pa.R.E. 405. The remainder of the
proffered witnesses testified favorably on Deangelo’s behalf, even if their
testimony was inadmissible. Notably, the trial court, which sustained the
Commonwealth’s objections to the improper character testimony and
granted a number of motions to strike, did not instruct the jury to disregard
the testimony of those witnesses. Thus, contrary to the PCRA court’s
conclusion, the jury heard from multiple sources that Deangelo was a man of
a law-abiding nature and no suspicion was cast as to Denagelo’s character.
Moreover, our Supreme Court has held that trial counsel will not be
found ineffective for failing to call a witness whose testimony would be
cumulative. Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008).
We are mindful that, in cases such as this, character evidence is of the
paramount importance. Weiss, 606 A.2d 439. However, we reiterate that
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the jury heard from four character witnesses and nine others, all of whom
testified favorably on behalf of Deangelo. In his PCRA petition, Deangelo
failed to demonstrate how additional character testimony would have been
anything other than cumulative. Thus, we are unconvinced that Deangelo
was prejudiced.
Accordingly, because Deangelo did not append to his PCRA petition
affidavits indicating that the nine disputed witnesses could, with additional
preparation, provide proper character testimony, and because the record
does not support the court’s conclusion as to prejudice, we hold that
Deangelo failed to meet his burden of proving counsel’s ineffectiveness and
reverse the order granting him a new trial.
Order reversed. Jurisdiction relinquished.
P.J.E. Bender joins.
Judge Ott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2017
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