J-S77011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM JOSEPH KEMP,
Appellant No. 537 MDA 2017
Appeal from the PCRA Order Entered March 16, 2017
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000525-2012
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 20, 2018
Appellant, William Joseph Kemp, appeals from the post-conviction
court’s March 16, 2017 order denying his first petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In this appeal, Appellant presents the following four issues for our
review:
A. Trial [c]ounsel was ineffective for failing to call character
witnesses on Appellant’s behalf when character witnesses
were available and essential to Appellant’s defense.
B. Appellant’s direct appeal rights must be reinstated when
[a]ppellate [c]ounsel failed to appeal an order prohibiting the
introduction of statements of the Commonwealth’s key
witness that he was concerned about ending up in prison.
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* Former Justice specially assigned to the Superior Court.
J-S77011-17
C. Appellant was entitled to an evidentiary hearing to address
the failure to object to the Commonwealth’s shifting the
burden of proof to Appellant by its questioning of three
witnesses.
D. Trial [c]ounsel was ineffective by opening the door to
Appellant’s previously precluded prejudicial testimony through
questioning of a defense witness.
Appellant’s Brief at 4.
“This Court’s standard of review from the grant or denial of post-
conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free
of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has directed that the following standards apply:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective 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.” 42
Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See [Commonwealth
v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
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prove any of these prongs, his claim fails.” Commonwealth v.
Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
omitted). Generally, counsel's assistance is deemed
constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate
his client's interests. See Ali, supra. Where matters of strategy
and tactics are concerned, “[a] 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.”
Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
In this case, we have reviewed the certified record, the briefs of the
parties, and the applicable law. We have also examined the thorough and
well-reasoned opinion of The Honorable Marc F. Lovecchio of the Court of
Common Pleas of Lycoming County. Judge Lovecchio aptly summarizes the
facts and procedural history of Appellant’s case. See PCRA Court Opinion,
6/28/17, at 1-4. He then cogently addresses each of Appellant’s four
ineffectiveness issues, concluding that each is meritless for various reasons.
See id. at 5-25. Judge Lovecchio’s decision is both supported by the
evidence of record, and is free from legal error. Accordingly, we adopt
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Judge Lovecchio’s opinion as our own, and we affirm the order denying
Appellant’s petition for the reasons set forth therein.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2018
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Circulated 02/05/2018 02:06 PM
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IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA
COMMON\VEAL TH No. CP-41-CR-0000525-2012
vs. CRIMINAL DIVISION
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OPINION IN SUPPORT OF ORDER IN§s- ; g§ W tJ g
COMPLIANCE \VITH RULE 1925(8) Of0;;;'1 -::, z
THE RULES OF APPELLATE PROCEDURE rn .c �
This opinion is written in support of this court's order entered on March 16,
20 I 7, which denied the Post Conviction Relief Act (PCRA) petition filed by Appellant,
William Kemp (hereinafter "Kemp"). The factual and procedural history follows.
On the evening of February 13, 2012, Kirsten Radcliffe, Michael Updegraff,
and Thomas Schmitt were drinking at the Fifth Avenue Tavern in Williamsport. Updegraff
and Radcliffe, who were boyfriend and girlfriend, got into a disagreement. Radcliffe left the
Tavern and walked away down Fifth A venue, ending up outside of Defendant William
Kemp's apartment.
Twenty to thirty minutes later, Kemp gave Radcliffe a ride to the residence she
shared with Updegraff at 1017 Franklin Street.
Kemp entered the residence with Radcliffe. Updegraff was upstairs and
Schmitt was on a couch downstairs. When Updegraff came downstairs and saw Kemp) he
asked Schmitt who the hell Kemp was. Schmitt responded that he did not know and that Ms.
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Radcliffe had brought him. Radcliffe explained that Kemp had given her a ride home.
Updegraff told Kemp to get out of his house but Kemp refused to leave. Radcliffe apologized
f?r Updegraff s behavior and told Kemp that he should just leave.
Updegraff grabbed Kemp and pushed or shoved him into a wall and then out
the door. Updegraff and Schmitt followed Kemp outside and part way down the driveway.
Updegraffstopped at the endof li!s van (which was parkeamtne driveway) and-Schmitt
c_ontinued walking for several feet so that he was approximately midway between the end of
the van and Kemp's vehicle, which was parked on Franklin Street. Throughout, Updegraff
and Schmitt continued yelling at Kemp to keep going, get off the property and leave.
Kemp continued walking quickly down the driveway to his vehicle. Instead of
leaving, however, Kemp opened the door of his vehicle and grabbed his handgun. He turned
back towards Updegraff and Schmitt and began firing shots as he moved towards them. One
shot struck Schmitt in the neck and another was a contact or near contact shot to the back of
his head.
Updegraff and Radcliffe tried to wrestle the firearm away from Kemp. While
doing so, they punched and kicked Kemp repeatedly. Various neighbors saw and/or heard
the gunshots and commotion and called 911. Within minutes, the police arrived and took
Kemp into custody. Schmitt died as a result of his gunshot wounds.
Kemp was charged with, among other things, third degree murder, two counts
of aggravated assault, possession of instrument of crime, and two counts of recklessly
endangering another person. A jury trial commenced on September 9, 2013. On September
17, 2013, the jury returned verdicts of guilty on all charges.
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Following
. a hearing on January 29, 2014,
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the trial court sentenced Kemp to a
term of imprisonment of 20 to 40 years. Kemp filed a timely post-sentence motion on
February 7, 2014, which the trial court denied on June 9, 2014.
Kemp filed a timely .appeal. The. Pennsylvania Superior Court affirmed
Kemp's judgment of sentence in a decision filed on June 8, 2015. Subsequently, Kemp filed a
retition for allowance ofappeal,-which--the Pennsylvania Supreme Court-denied.on.Februa -v---+---
10,2016.
On February 29, 2016, Kemp filed a prose Post Conviction Relief Act
(PCRA) petition. The court appointed counsel to represent Kemp, and counsel filed an
amended PCRA petition on June 7, 2016.
The amended PCRA petition raised five issues: (1) trial counsel was
ineffective for failing to call character witnesses on Kemp' behalf; (2) trial counsel was
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ineffective for failing to employ and utilize an expert witness to offer a fingerprint and trace
evidence analysis on the knife found at the crime scene by Corporal Dustin Reeder of the
Williamsport Police Department; (3) appelJate counsel was ineffective for failing to appeal to
the Superior Court of Pennsylvania this court's prohibition on introducing Michael
Updegraff's statements that he was concerned about ending up in prison for his role in the
events of February 13, 2012; (4) trial counsel was ineffective for failing to object to the
Commonwealth's questions to several witnesses which shifted the burden of proof to Kemp
thus denying him a fair trial; and (5) trial counsel provided ineffective assistance by opening
the door through questioning of defense witness Kristen Smith, allowing the Commonwealth
to introduce rebuttal testimony concerning Kemp's statements made during a December 2009
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dependency hearing.
The court held an argument/conference on the amended petition on June 27,
2� I 6. In an Opinion and Order entered on October 24, 2016, the court granted an evidentiary
hearing on the claims of trial counsel's ineffectiveness related to failing to call character
witnesses and opening the door to rebuttal testimony concerning Kemp's statements made
· -dtil'rng a Decem6er 2009 dependency hearing. On all other claims, the court explained why it
believed suchclaims did not warrant �n evidentiary hearing or relief.
. Evidentiary hearings were held on November 29, 2016 and December 2, 2016.
On March 16, _2017, the court entered an Opinionand Order denying Kemp's PCRA petition .
. Kemp filed a timely notice of appeal. Kemp asserts four issues on appeal: ( l)
the trial courterred by failing to grant a new trial because trial counsel provided ineffective
assistance of counsel by not calling character witnesses on Kemp's behalf; (2) the trial court
erred by failing to reinstate Kemp's direct appeal rights due to appellate counsel's failure to
appeal to the Superior Court of Pennsylvania the trial court's ruling prohibiting trial counsel
from introducing Michael Updegraff's statements that he was concerned about ending up in
prison for his role in the events of February 13, 2012; (3) the trial court erred by denying
Kemp's request for an evidentiary hearing on the issue of trial counsel's ineffective
assistance in failing to object to the Commonwealth's questions of several witnesses which
shifted the burden of proof to Kemp thus denying him a fair trial and by failing to grant a new
trial due to trial counsel's error; and ( 4) the trial court erred by failing to grant a new trial
because trial counsel provided ineffective assistance by opening the door through questioning
of defense witness Kristen Smith allowing the Commonwealth to introduce testimony
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concerning Kemp's statements made during a December 2009 dependency hearing.
DISCUSSION
In analyzing claims of ineffective assistance of counsel, the court presumes
that counsel was effective unless the PCRA petitioner proves otherwise. Commonwealth v.
Cox, 983 A.2d 666, 678 (Pa. 2009). In order to succeed on a claim of ineffective assistance
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of cmmsel.,- �1e petitioner-must prove the following:_(1) that the underlying claim is of
arguable merit; (2) that counsel's performance lacked a reasonable basis; and (3) that the
ineffectiveness of counsel caused the petitioner prejudice. Id; see also Commonwealth v.
Fu//011, 83 A.2d 567, 572 (Pa. 2003); Commonwealtlt v. Faure/us, 147 A.3d 905, 911 (Pa.
Super. 2016).
"Where the underlying claim lacks arguable merit, counsel cannot be deemed
ineffective
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for. failing to raise it." Commonwealth v. Jarosz, 2016 PA Super 281, 2016 Pa.
Super. LEXIS 757, *5 (December 13, 2016), citing Commonwealth v. Koehler, 36 A.3d 121,
14Q (Pa. 2012). All three prongs must be proven and a petitioner's failure to prove any one
prong results in the ineffectiveness claim being deemed without merit. Jarosz, id.;
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
Kemp first asserts that the court erred by failing to grant a new trial with
respect to trial counsel's failure to call character witnesses. At the evidentiary hearings,
Kemp presented testimony from two individuals that Kemp asserted trial counsel should have
called as character witnesses at trial, Gerald Zeidler and Amy Embick. ·
Kemp contended that trial counsel should have called Gerald Zeidler to testify
about his character for truthfulness and nonaggressive or nonviolence. Mr. Zeidler was a
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longtime friend and former coworker of Kemp's. He is presently employed as a police
officer in Bloomsburg.
. .. With respect to Kemp's reputation in the community for truthfulness, both
prior to and after the murder, Mr. Zeidler testified that Kemp's reputation was that he was
'_'honest �o a. fault." According to Mr. Zeidler, all of Kemp's friends considered Kemp to be
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truthful and honest. Kemp's sister, Amy Embick, a so testffiedabout his reputation for
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truthfulness.
The Commonwealth objected to any testimony regarding Kemp's reputation in
the community for truthfulness. The Commonwealth argued that such testimony was not
relevant or admissible in this case, because the Commonwealth did not attack at trial Kemp's
reputation for truthfulness and honesty.
The court initially reserved its decision with respect to this argument, but
agreed with the Commonwealth when it ruled on this issue.
During the trial in this matter, Kemp was extensively cross-examined about
his version of the events. The Commonwealth clearly attacked the credibility of Kemp's
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version of the events. However, the Commonwealth did not attack Kemp's community
reputation for truthfulness generally. Furthermore, Kemp's reputation for truthfulness was
not pertinent to any of the underlying criminal offenses.
"[W[here the prosecution has merely introduced evidence denying or
contradicting the facts to which the defendant testified, but has not assailed the defendant's
community reputation for truthfulness generally, evidence of the defendant's alleged
reputation for truthfulness is not admissible." Commonwealth v. Kennedy, 2016 PA Super
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273, 2016 Pa. Super. L_EXIS 734, *23 (December 6, 2016)(quoting Commonwealth v.
Constant, �25 A.2d 810, 823 (Pa. Super. 2007)� overruled on other grounds, Commonwealth
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s9 A.3d 1047 (Pa. Super. 2014) (en bane)).
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I In other words, when truthfulness is not relevant to the underlying criminal
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offenses, a defendant may only call witnesses to testify as to his truthfulness when (a) he
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------1-1--Gh�oses to-testify on.his.own behalf; and (b) the Commonwealth attacks the defendant's
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truthfulness through cross-examination or by other witness'·l�timony. Kennedy, id. (citing
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Co111111011wea/th v. Minicti, 4 A.3d 1_063, 1070 (Pa. Super. 2010)). While Rule 608 (a) of the
Pennsylvania Rules of Evidence permits a testifying defendant to call witnesses to testify as
to l�is truthful character whenever the Commonwealth attacks his general reputation for
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truthfulness during trial, Rule 404(A)(2)(a) permits a defendant to call a witness to testify as
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to his truthful character only when the defendant's reputation for truthfulness is pertinent to
the.underlying criminal offense.
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l1ruthfuln�ss,
! for and the court's review of the record revealed no such attack on his general
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reputation for truthfulness. Accordingly, Kemp was not entitled to call character witnesses to
testify to his truthfulness.
Mr. Zeidler and Ms. Embick also testified with respect to Kemp's reputation
for being a nonaggressive or nonviolent person.
Mr. Zeidler testified that Kemp had a universal reputation of being a
nonaggressive and nonviolent person both before and after the murder charge.
After seeing a television news report about the murder, Mr. Zeidler visited
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Kef!lp at the Lycoming County Prison. They discussed Mr. Zeidler being a character witness.
During the trial, f�om September 9 through September 17, 2013, Mr. Zeidler would have
been availabie to testify "depending on the day." He could not recall his work schedule. He
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d_id !r�memb��· receiving a telephone call at one time from a representative of the defense team
. but .never heard from
. that . He was not subpoenaed or asked to be present at trial
. person again.
. .. :, . did not attend.
and'accordingly
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., . ; He did clearly indicate, however, that if he would have been subpoenaed he
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would have �een present and even if he had not �een subpoenaed he was willing to testify as
long as there was no emergency at work requiring "all available law enforcement personnel"
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to be present..
, He could not recall the specific date and time that he discussed his possible
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testimony with a member of the defense team but he did recall receiving a voicemail and then
returning the call. He did end up speaking with, he believes, "Mr. Miele" but could not recall
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the entire conversation.
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Regarding Kemp's reputation in the community for being a nonaggressive and
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nonviolent person, Mr. Zeidler was extensively cross-examined regarding specific alleged
incidents of violence and aggression including but not limited to Kemp threatening to kill
himseJf, Kemp threatening to harm someone, Kemp pulling a knife on someone at Wegmans,
Kemp talking to a mental health professional for aggressive behavior, Kemp refusing to
follow the directives of constables, Kemp slapping his wife in the face because she woke him
up, Kemp allegedly slapping or choking Kristin Smith, and Kemp carrying a firearm because
he did not want to get into a fight that he would not lose. Mr. Zeidler was not aware of any of
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these incidents or allegations.
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·1 ! '. Kemp's sister, Amy Embick, also testified at the PCRA hearing about Kemp's
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.�;epptation for being peaceful and nonviolent. She testified that "everybody I ever talked to
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said he was �onviolent." She added that his reputation for being nonviolent did not change
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rift�r the charges were filed. Following the charges, Ms. Embick's husband would not allow
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----+- �! - --ij.er�te-Hav�ai.:ly.-cont�ct-with-he1'-brother. Kemp, however, contacted Ms. Embick and_aske.d..___ _
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tier;to testify :as a character witness.
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Ms. Embick recalled havingrepresentatives of both the Commonwealth and
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;�e tublic Dten�er's. ffice speak with her re arding Kemp's reputation for violence or
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I f tjo�violence. [She. remembered speaking with.Bill Miele. After she ended up speaking with
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hin], however, he never contacted her again.
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: While her husband would not allow her to attend the trial, Ms. Embick
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tbst1fied that she would have testified for Kemp if she had been subpoenaed. Ms. Embick
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thstified that-�lth�ugh
' her husband \Vas "abusive and controlling" and he essentially would
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I: 1otjallow he� to leave the house, he ou1d not have �topped her from attending and testifying
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. ,: if s�e was subpoenaed. Trial counsel, though, never subpoenaed her .
[ Ms. Embick was also cross-examined by the Commonwealth regarding the
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numerous specific incidents of violence with which the Conunonwealth cross-examined Mr.
Zeidler. She.conceded on cross-examination that she was of the opinion that her brother shot
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and killed the other individual because he had no choice. She noted that Kemp's reputation
amongst his friends was that he would not do anything unless "he had to." She clarified that
unless Kemp thought that he was threatened, his kids were being threatened or a family
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member was being threatened, he would not resort to violence.
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.. : '. . · K�mp was represented at trial by William Miele and Robert Cronin. Mr.
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t ciro�1in testifibd that the defense focus was first self-defense and alternatively heat of passion
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for voluntary-manslaughter. He conceded that Kemp's reputation for truthfulness was not as
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·i much of an issue, although Kemp's reputation for being non-violent and peaceful was "a
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concern" and�cfirectly-relatea to Kemp's claim of self-defense.Prtorto trial-;-Mr. eronin,ne��
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,�itl� oh numerous occasions. Among other things, they discussed character witnesses.
Kemp
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! Kemp wanted to call character witnesses and gave to Mr. Cronin specific names and as much
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information
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as "he could."
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• t Mr. Cronin did not recall being told that Kemp's sister Amy Embick was
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iiiding to tesiify, although he did speak with Mr. Zeidler. According to Mr. Cronin, Mr.
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Zeidler indicated that he was not willing to testify because of his employment as a police
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officer and "did not want to 'get invo:l�ed." According to Mr. Cronin, Mr. Zeidler would not
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cooperate and accordingly, it was decided not to even attempt to utilize him as a character
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witness.
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In fact, the defense decided not to call any character witnesses for two reasons.
First, it would open the door to specific instances of violence which the defense wanted to
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keep out and 'second, a majority if not all of the proposed character witnesses were "not valid
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character witpesses." In other words, they could testify as to their own impressions but not as
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to Kemp's reputation in the community.
Mr. Cronin recalled speaking to Kemp about this "trial strategy" not to call
character witnesses. He recalled Kemp noting that he had faith in "our defense" and. that he
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Hf ·�olild "listen" to his attorneys.
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:J. Mr_. Cr:onin �xplaineq in_ his testimony that the defense team was particularly
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9o�cemed that if reputation: witnesses were called, they could be cross-examined regarding
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pl:1.'.tg. knife for no valid r:ason; regularly carrying a gun; having a permit to use.
�utj.; carrying the. gun because he did, not want to get into a fight that he might lose; getting
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---- f.:.:_ _ �intJ-i-ncidenti his mother; and using a weapon.in.a.public place against an.unarmed.person, _
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i:;: Mri Cronin explained that if all of these specific incidents were brought out before a jury, the
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� wa.� concerned th;t Kemp "was likely to get convicted offirst degree
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:r, ! '° A1utder"." In Jylr. Cronin's opinion, these incidents showed a specific propensity for violence.
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!: On cross-examination, Mr. Cronin admitted that there were numerous other
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f; ( incidents that may have been admitted and which would have clearly been detrimental to
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incl.'.J;ng,
but not limited to, .Kemp doing the following: making suicidal threats;
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1�h;�atening t� blow· his brai�s out; wanting to harm his mother; talking to mental health
.I· r. ,i?tkers reg�rding
Ir·;: incidents and threats; slapping his wife; and choking Kristen Smith. As a
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r··�-f �he Commonw�alth introduced as exhibits numerous police reports that
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tefJrenced alleged acts of violence by Kemp.
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,I While. Mi·. Cronin was not sure that all of the proffered bad acts evidence
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would be adr'nitted as evidence, he knew that much.of it would and that for strategic purpose
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the. defense was not willing to risk calling any character witnesses. He was concerned that
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calling character _witnesses would open the door and essentially lead to a first degree
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homicide conviction,
Kemp testified at the evidentiary hearing held on December 2, 2016. He
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testified that he and Mr. Cronin specifically talked about character witnesses soon after Mr.
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Cr.0)1in became involved. At first Mr. Miele and Ms. Longo were representing Kemp and then
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Cronin _took over for Ms. Longo. According to Kemp, "it was an ongoing discussion
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between" them and his attorneys "were aware of [it) for the duration."
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: He provided to his attorneys, on an ongoing basis; names and some contact
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;��drmati.on. tor HeHabsolutely'·'
cl1aracter �1tnesses. wanted to utilize character witnessesr="
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.nted .w\11 the presu mpjio•n of [<�tive assistance of counsel be overcome."
!]? ij!i ·:cbr111110mve}tlth v. Jones, 815 A.2tj .598, 367-368 (Pa. 2002)(quoting Gray v. Greer, 800
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iF: }d 64�, Ji4j6 (7� :,\'.. ; 19 �cl),. '."h icli_ ·'."as quoted with approval in Smith v. Robbins, 528 U.S.
·:$ t itll, .288 (10'.0o)}.. -��mp. h�s �ot m� �e;
any allegations or arguments to show this issue was
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st�:�ger 01;·9�greater ch�nce for: �uccess than the issues raised by appellate counsel. ··--··- -
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Furthermore, the court precluded Mr. Updegraff s statement, because trial .
.;� j}; j;c;���1sel, was fmiscons�ruing 'it and taking it out of context. N.T., September 10, 2013, at 55-
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Kernp'x'current argument is still misconstruing the statement and taking it out of context.
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· _J\1( Upde.gr�ff'd ;tate�_el:"1\did not �xpress concern about ending up in prison for his role in
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.;f �!: :;01b!, �vef1ts=of that evening but about �horn Kemp may be "running with" and what Mr.
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;1_fe.jf1, 1 iJ!�Jq�gr?ff;f1�ight:have dtj prot��t
:i 1 ! t to to �imself. The full context of Mr. Updegraffs
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!; : ., i . MI JiiAEL: UPDE(;RAFF: So I don't understand here, here's
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whatJ- see I got a couple of things to look at here. First of all to make sure
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·r;· ;:;. you guys don't twist this thing wrong and I got a f-ing problem, which 1
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wh�te;,1er. Al�o I?got to wo;ry ha�out �is dumfbfa-
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band wagon like that and do something like that.
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• I' : DETECTIVE STEVEN SORAGE: You're talking about the guy
� ii, with the gun?
· MICHAEL.UPDEGRAFF: Yeah.
DETECTIVE STEVEN SORAGE: Okay.
MICHAEL UPDEGRAFF: I don't know where he's from, I know
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he's from Fifth Avenue area, apparently, I don't know sh-t about him.
'; DETECTIVE STEVEN SORAGE: How do you know he's from
the F)fth A venue area? . -
: MICHAEL UPDEGRAFF: Because that's where she walked from
there: so apparently she picked this dumb a- up somewhere along the line. I
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know nothing about this mother f=-er.
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! j DETECTIVE STEVEN SORAGE: Okay.
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··; MICHAEL UPDEGRAFF: You understand? But I imagine it's
froh1 there - · ·· ! ; ··
'° '. DETECTIVE STEVEN SORAGE: All I've heard. is his first
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name's [B]ill, that's all I know right now, I don't know a last name, I don't
;·; t..j .: kno,vjanything else about him.
: ...: ] MICHAEL UPDEGRAFF: Well we'll all find that out later, but I
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I! don't know nothing (sic) about this guy. So you know, I mean ifhe has
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�J'; 1.....!, . know; I got to look at my avenue like, you know, who's he running with?
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·y.ou know - so whateve]: But, you know, I'm 51 years old and I kept
:;; ! . my a� out of any penitentiary� Dia -�notof county,lmrl'm not going------�
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.. bound, so I don't expect to 'sit my a- in a f-ing cage
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•, ! I somewhere the rest of my entire life.
.. ···1'. ·_ ·; DETECTIVE STEVEN SORAGE: No .
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:: MICHAEL tJPDEGRA.FF: So I'm not going to f-ing go after
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these mother f=-ers, but they step on my land I want to make sure that I'm
covered here, you understand what I'm saying.
·· i·., "i' DETECTIVE STE\,-EN SORAGE: I understand.
MICHAEL UPDEGRAFF: I don't know who these guys are, you
,. i, know'. what I mean? ·1 mean he's got nothing else to do something like this,
'. ''. · · who'�· he running wi�h? You following me?
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·· ii· · ··· DETECTIVE STEVEN SORAGE: Yep.
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': .'. j : MICHAEL UPDEGRA.FF: Which I'm going to find out, and I'll
!·: :[ ! · siap·t��t on down the line who he's running with, because apparently these
, : ;!. j · mother f--ers are nuts. That' s crazy what he did.
�rit���ript: of:videot�ped
int�rview �� Michael Updegraff on February 14, 2012, at 59-60 .
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'Kemp has not made any allegations 'or arguments to even suggest that there is a reasonable·
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-! • 1 probability that the outcome of the appeal would have been different, i.e. that his conviction
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would have been overturned, but for counsel's alleged ineffectiveness. Unsupported
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speculation, which is what Kemp has presented here, does not establish a reasonable
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pro?ability that the outcome of the appeal would have been different, as required to establish
the _prejudice prong of a claim of ineffective assistance of counsel. Commonwealth v.
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94 A.3d IO 12, 1026 (Pa. Super. 2014 ) .
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Clutrleston,
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Kentalso cOntends:the trial court erred by denying his request for an
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t:;ial counsel's ineffective assistance in failing to object to
�Ji�·entiary 'Be�ring on .the i�sue of
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;thH�·on�!��r{wealth's questions of s:�veral witnesses which shifted the burden of proof to
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i\(bbp thu�Wl1ying
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trial �i,d by failing to grant a new trial due to trial counsel's
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· .,', admissibility.of evidence is.a.matter for the discretion of the trial court.
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:::'.1-r. abuse.�� discretioi:i may not be.found merely because an appellate court might have
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.reached a different conclusion, but requires a result of manifest unreasonableness, or
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bias"
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wil 1.i or such lack of support so as to he clearly erroneous."
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. Common wealth v. Mc Clure, 144 A.3d 970, 975 (Pa. Super. 2016)(quoting Commonwealth
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v. 'Poplawsld, 130 A.3d 697, 716 (Pa. 2015)).
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.cla�m� that. th�· C�mmonwealth's
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�t1 ::1��Jrt�:d t_h� �\1rden o( p�·oof by allegt?ly implying to the jury that Kemp had the burden to
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;prov.e that. he. \yas innocent of the crimes charged. (Amended PCRA Petition, para. 13 7). The
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;jf !�6'Hrt 'founithat Ke1�p's clqim in .i's regard had no arguable merit.
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door. Obviously, both this court and the Superior Court disagreed .
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'.;[;\I : :: ! In further ex�laining �i,' reasoning, Mr. Cronin argued that he wanted
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to··l how that ·the gun was always kept in the car and that when Kemp left the house
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;�ci; night, he;did not leave with anycriminal intent. He was concerned that the
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to use it in an; confrontation. Again, Mr. Cronin was particularly concerned about a
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fjrst degree. murder conviction.
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,.. without opening it," Mr. Cronin evaluated which was the higher priority. Specifically,
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,·kJ.�pi°ng out the statements or causing reasonable doubt with respect to Kemp's intent.
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h&:r,mful and 'did not "ultimately lead" to the conviction. He noted that Mr. Miele ably
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:�ddr�ssed thb statements in his closihg arguments and, in Mr. Cronin's opinion,"overcame
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,ian'x prejudice." :i
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Pennsy��ania St\irJme
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strate_g_y
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' .!�i · )}gy � proves that the alternative -1
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-!�el�c�e·d offel:e'd potential for succJss: greater than the course actually pursued."
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:t;JJ1in10m1iet1'th v. Elliott, 80 A.3d 415, 427 (Pa. 2013).
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·:�:s�:ti stance is_ d�erned constitutionally effective if he chose a particular course that has some
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\e��oi1able b�sis designed to effectuate his client's interest." Commonwealth v. Colavita, 993
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· )�-�d 874, 88i(Pa. 20fO). "A findi�g that a chosen strategy lacked a-reasonable basis is not
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'.;: . /!i;�n'l think about running away on/oot from 1017 Franklin Street toward Washington
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H·W !, i, Finally.jhe court f0t/nd that the facts of'this case did not support a jury
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: .:ifr ;k:1Wc.eeding�·ty�:rnid have- been differ1ent. Therefore, Kemp was not prejudiced by counsel's
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and !1.� was not entitled to a. �ew trial.
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By The Court,
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Marc F: Lovecchio, Judge
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. J.<:�11neth Oso_ko.w, Esq�tire (ADA)
J�:::, VDqnal.
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Tl l;I · Work file · · ·
'.Hi:! G�ry·\veber, Esquire (Lycoming Reporter)
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