Com. v. Smith, A.

J-S10028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW SMITH :
:
Appellant : No. 3283 EDA 2016

Appeal from the PCRA Order October 5, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008249-2007,
CP-51-CR-1300825-2006

BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.: FILED MAY 14, 2018

Appellant, Andrew Smith, appeals from the order entered on October

5, 2016, dismissing his petition filed under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. § 9541-9546. After careful review, we vacate the

PCRA court’s order in part and remand for an evidentiary hearing.

The PCRA court ably summarized the underlying facts of this case:

[Following Appellant’s arrest in 2006, the Commonwealth
charged him with] two counts of rape of a child under [the
age of 13], two counts of unlawful contact with a minor[],
two counts of corruption of a minor[], and one count of
aggravated assault[.1 The charges arose out of Appellant’s
sexual attacks upon two 12-year-old girls: J.D.R. and G.O.]

____________________________________________

1 18 Pa.C.S.A. §§ 3121(c), 6318(a)(1), 6301(a)(1), and 3125(a)(1),
respectively.
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The first victim, J.D.R.[,] lived with her mother in Florida
during the school year and with her father in Philadelphia
during the summer months. During the summer of 2004,
J.D.R. first met [Appellant] when their karate classes
conducted a demonstration at a fundraiser benefit. Their
relationship progressed over the next year, and by the
summer of 2005, [12-year-old] J.D.R. began considering
[Appellant] her boyfriend. At approximately 1:00 a.m. one
summer evening in 2005, J.D.R. spoke on the phone with
[the 18-year-old] Appellant. During this conversation,
J.D.R. told [Appellant] she was visiting her grandmother’s
house in Southwest Philadelphia and spending the night
there. [Appellant] asked J.D.R. if he could come over. At
first, J.D.R. said “no,” but after [Appellant] persisted, she
agreed.

When he first arrived, [Appellant] and J.D.R. talked and
kissed. Later, [Appellant] tried to unbutton J.D.R.’s pants,
but she initially said “no.” [Appellant] told J.D.R., “I want
to do this because I love you, and I want to show you how I
love you.” J.D.R. continued to say “no” and [Appellant]
backed off. However, later on, [Appellant] attempted to
unbutton J.D.R.’s pants again. When J.D.R. objected,
[Appellant] became angry and began to leave.

When [Appellant] got up to leave, J.D.R. said “okay, I’ll do
it. Okay.” [Appellant] then penetrated J.D.R.’s vagina with
his fingers and then his penis. During penetration, J.D.R.
asked [Appellant] to stop because she was in severe pain,
but he refused. J.D.R. did not reveal that she had sex with
[Appellant] until approximately one-and-a-half years later.

Complainant G.O. first met [Appellant] at karate class when
she was six years old and considered him a family friend for
years. On the morning of September 27, 2005, [the
12-year-old] G.O. was at home sleeping when she heard a
knock on the door. G.O. got up, opened the door, and saw
[Appellant]. [Appellant] told G.O. that he came to say
goodbye because he was leaving Philadelphia. [Appellant]
then asked G.O. if he could use the bathroom and G.O. said
yes. [Appellant] proceeded upstairs to the second floor
bathroom.

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After a few minutes, G.O. thought [Appellant] was taking
too long to return so she called up to him. [Appellant] did
not answer so G.O. went upstairs to find him. G.O. found
[Appellant] in her bedroom. When questioned, [Appellant]
said he was just looking at her bedroom. [Appellant] then
told G.O. to give him a hug, but G.O. refused and said “let’s
go downstairs.” Instead, [Appellant] grabbed G.O., hugged
her, and said he wanted G.O. to remember him. Still
holding G.O. in an embrace, [Appellant] positioned G.O.
between his legs and lowered her onto the bed. [Appellant]
put G.O. on her back while he kept his forearms around her.
[Appellant] told G.O. that he would miss her and wanted to
give her “stuff” to remember him[]. [Appellant] kissed
G.O.’s neck and pulled her pajama pants down. G.O. told
[Appellant] to stop, but he ignored her. [Appellant]
penetrated G.O.’s vagina with his penis as she lay crying.
During the penetration, G.O.’s cell phone rang downstairs.
[Appellant] “popped up” from the bed. G.O. then pushed
[Appellant] off of her, went downstairs, and answered her
cell phone. While she was on the phone, [Appellant] left
the house.

G.O. did not immediately report the rape because she was
scared and did not trust anyone. Approximately one year
later, G.O. told her mother what had happened because she
heard [Appellant] was returning to Philadelphia. G.O.’s
mother took her to the hospital and filed a police report.

PCRA Court Opinion, 6/30/17, at 1 and 3-5 (internal footnotes and some

internal capitalization omitted).

The jury found Appellant guilty of every charged crime and, on

January 28, 2011, the trial court sentenced Appellant to serve an aggregate

term of seven to 14 years in prison for his convictions. N.T. Sentencing,

1/28/11, at 48-50. We affirmed Appellant’s judgment of sentence on June

19, 2012; the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on December 27, 2012. Commonwealth v. Smith, 47

A.3d 862 (Pa. Super. 2012), appeal denied, 60 A.3d 536 (Pa. 2012).

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On September 3, 2013, Appellant filed a timely, pro se PCRA petition.

Within the petition, Appellant claimed that his trial counsel was ineffective

for “failing to object to testimony by [a prosecutor who asserted that she]

had found [] G.O. to be credible as a [complaining] witness in [a prior sexual

abuse] case.” Appellant’s Pro Se PCRA Petition, 9/3/13, at 2. Separately,

the petition alleged that trial counsel was ineffective for “question[ing] the

investigating officer in a fashion that elicited testimony that the investigating

officer found [complainant G.O.] to be credible.” Id.

The PCRA court appointed counsel to represent Appellant and counsel

later filed an amended petition, which reiterated the claims that Appellant

raised in his pro se petition. See Appellant’s Amended PCRA Petition,

1/16/15, at 1-6.

On August 24, 2016, the PCRA court provided Appellant with notice

that it intended to dismiss the petition in 20 days, without holding a hearing.

PCRA Court Notice, 8/24/16, at 1; see also Pa.R.Crim.P. 907(1). The PCRA

court finally dismissed Appellant’s petition on October 5, 2016 and Appellant

filed a timely notice of appeal. Appellant raises two claims on appeal:2

1. Did the PCRA court err when it denied [Appellant’s]
amended petition that alleged trial counsel’s ineffectiveness
for opening the door to testimony from a detective which
improperly bolstered the complainant’s testimony?

____________________________________________

2 For ease of discussion, we have re-numbered Appellant’s claims on appeal.

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2. Did the PCRA court err when it denied [Appellant’s]
amended PCRA petition that alleged trial counsel’s
ineffectiveness for failing to object to testimony from a
prosecutor that improperly bolstered one of the
complainant’s testimony?

Appellant’s Brief at 3 (some internal capitalization omitted).

To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness 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.A. § 9543(a)(2)(ii).

Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged
proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court

has explained:

A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See

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Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted
as true, do not establish the underlying claim . . . , he or
she will have failed to establish the arguable merit prong
related to the claim”). Whether the facts rise to the level of
arguable merit is a legal determination.

The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client's
interests. We do not employ a hindsight analysis in
comparing trial counsel's actions with other efforts he may
have taken.

Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

internal quotations and citations omitted). “A failure to satisfy any prong of

the test for ineffectiveness will require rejection of the claim.” Id.

Moreover, a PCRA petitioner is not automatically entitled to an

evidentiary hearing on his petition. Specifically, a PCRA petition may be

dismissed without a hearing if the PCRA court “is satisfied from [its review of

the petition] that there are no genuine issues concerning any material fact

and that the [petitioner] is not entitled to post-conviction collateral relief,

and no purpose would be served by any further proceedings.” Pa.R.Crim.P.

907(1). If, however, the PCRA petition raises material issues of fact, the

PCRA court “shall order a hearing.” Pa.R.Crim.P. 908(A)(2). Thus, “[t]o

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obtain reversal of a PCRA court's decision to dismiss a petition without a

hearing, an appellant must show that he raised a genuine issue of fact

which, if resolved in his favor, would have entitled him to relief, or that the

court otherwise abused its discretion in denying a hearing.”

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (internal

quotations and citations omitted).

For Appellant’s first claim on appeal, Appellant asserts that his trial

counsel was ineffective “when trial counsel questioned [Police Officer Michael

O’Brien] in a fashion that elicited testimony that [Officer O’Brien] found G.O.

to be credible and opened the door for the district attorney to question

[Officer O’Brien] about his belief that she was credible.” Appellant’s Brief at

9. This claim fails.

Appellant argues:

[During trial counsel’s cross-examination of investigating
Police Officer Michael O’Brien, trial counsel] inexplicably
asked Officer O’Brien if he believed G.O.’s word that
[Appellant] raped her. The officer responded in the
[affirmative], saying that he found G.O. to be a very
credible complaining witness. Having thus opened the door
to this impermissible testimony, the Commonwealth then
elicited more testimony that the officer found G.O. to be
credible, and that the officer does not proceed with cases in
which he does not believe the witnesses to be telling the
truth.

Appellant’s Brief at 4 (internal citations omitted).

The above argument distorts the record and Appellant’s claim thus

fails.

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During the cross-examination of Officer O’Brien, Appellant’s trial

counsel sought to establish that the only evidence against Appellant was

G.O.’s word. Trial counsel’s cross-examination of Officer O’Brien proceeded

in the following way:

Q: If I understand your testimony, after you met with
[G.O.], you didn’t do any follow up investigation; is that
correct?

A: I did the biographical information on [Appellant].

Q: Well, the biographical information on [Appellant], where
did that come from?

A: His driver’s license; I tried to get his date of birth and his
address.

Q: Just the stuff on the computer, basically?

A: Yes.

Q: You didn’t talk to any additional witnesses?

A: No.

Q: You didn’t talk to, for example, [G.O.’s] mom, take a
statement from her?

A: No.

Q: So, you didn’t do anything. You just basically looked at
a computer to determine my client’s biographical
information from the Department of Motor Vehicles; is that
correct?

A: Yes.

Q: Then you prepared an arrest warrant, basically; is that
correct?

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A: Yes.

Q: So your testimony before this jury is that all that it took
to arrest [Appellant] for the rape of [G.O.] was [G.O.’s]
word; is that correct?

A: A very credible complainant, yes.

Q: You say a very credible complainant. You just testified
before this jury that you did nothing to corroborate what
she said; isn’t that correct?

...

A: Yes.

Q: Thank you.

[Appellant’s Attorney]: Nothing further.

N.T. Trial, 7/27/10, at 124-126.

The Commonwealth then questioned Officer O’Brien on redirect. In

relevant part, Officer O’Brien testified:

Q: In your experience have you interviewed complainants
you did not find credible?

[Appellant’s Attorney]: Objection.

[The Commonwealth]: Counsel opened the door.

[Appellant’s Attorney]: I didn’t open the door to that.

[Trial Court]: I will allow it.

Q: Have you ever interviewed a complainant that you did
not find to be credible?

A: Yes.

Q: In those instances did you still process the arrest?

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[Appellant’s Attorney]: This is where I am objecting. I
move to strike.

[Trial Court]: Go ahead.

Q: In the instances where you did not find the complainant
credible, did you still move forward with the arrest[?]

A: No.

[The Commonwealth]: Nothing [further].

[Appellant’s Attorney]: Note my objection to the
question.

[Trial Court]: So noted.

Id. at 126-127.

Appellant claims that his trial counsel was ineffective for “inexplicably

ask[ing] Officer O’Brien if he believed G.O.’s word that [Appellant] raped

her.” Appellant’s Brief at 4. According to Appellant, this question “opened

the door” to “more testimony that the officer found G.O. to be credible, and

that the officer does not proceed with cases in which he does not believe the

witnesses to be telling the truth.” Id. The record belies appellant’s claim.

At the outset, trial counsel did not ask Officer O’Brien “if he believed

G.O.’s word that [Appellant] raped her.” See id. Rather, counsel posed the

following question to the officer: “[s]o your testimony before this jury is

that all that it took to arrest [Appellant] for the rape of [G.O.] was [G.O.’s]

word; is that correct?” N.T. Trial, 7/27/10, at 125. This question requested

a “yes” or “no” answer from the witness and was intended to highlight the

absence of physical or other corroborating evidence in the case.

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Importantly, however, the question did not ask Officer O’Brien “if he

believed G.O.’s word that [Appellant] raped her.” Rather, Officer O’Brien

went beyond the question that was asked of him and volunteered his opinion

that G.O. was “a very credible complainant.” See id.

While trial counsel might have requested that the trial court strike

Officer O’Brien’s testimony regarding G.O.’s credibility, trial counsel did not

do so – and Appellant has not claimed that trial counsel was ineffective for

failing to move to strike the statement.

Appellant further claims that trial counsel’s question “opened the door”

to “more testimony that the officer found G.O. to be credible, and that the

officer does not proceed with cases in which he does not believe the

witnesses to be telling the truth.” Appellant’s Brief at 4. This assertion is

faulty in numerous respects.

First, there was no “more testimony that the officer found G.O. to be

credible.” See id.; see also N.T. Trial, 2/27/10, at 126-127. Second, as

was explained above, trial counsel’s question did not “open the door” to

Officer O’Brien’s redirect testimony “that the officer does not proceed with

cases in which he does not believe the witnesses to be telling the truth.”

See Appellant’s Brief at 4. Instead, counsel asked Officer O’Brien to answer

“yes” or “no” to the question: “[s]o your testimony before this jury is that all

that it took to arrest [Appellant] for the rape of [G.O.] was [G.O.’s] word; is

that correct?” N.T. Trial, 7/27/10, at 125. Again, while Officer O’Brien went

beyond the question and volunteered his opinion that G.O. was “[a] very

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J-S10028-18

credible complainant,” Appellant’s trial counsel did not move to strike the

volunteered statement and Appellant has not claimed that trial counsel was

ineffective for failing to so move. Regardless, it cannot be said that trial

counsel’s question “opened the door” to Officer O’Brien’s redirect testimony

“that the officer does not proceed with cases in which he does not believe

the witnesses to be telling the truth,” when trial counsel’s question did not

ask Officer O’Brien to opine on G.O.’s credibility. Thus, Appellant’s claim of

ineffectiveness with respect to Officer O’Brien’s testimony has no arguable

merit and fails.

Next, Appellant claims that his trial counsel was ineffective for “failing

to object to testimony from a prosecutor that improperly bolstered

[complainant G.O.’s] testimony.” Appellant’s Brief at 3. We conclude that

the PCRA court erred when it dismissed this claim without holding an

evidentiary hearing.

The Commonwealth’s first witness at trial was G.O. As recounted

above, G.O. testified that Appellant raped her on September 27, 2005. See

N.T. Trial, 7/27/10, at 26-39. During cross-examination, Appellant attacked

G.O.’s credibility by questioning her about a prior juvenile delinquency case,

where she was also the victim and complainant. Id. at 69-75. This prior

delinquency case took place in 2006, when the Commonwealth filed a

delinquency petition against a juvenile named J.S. and accused him of

committing the delinquent act of indecent assault against G.O. See id. at

97 and 101.

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During the delinquency proceedings, G.O. wrote a letter to J.S., where

she recanted her allegations against J.S. and declared that she and J.S. did

not have sexual intercourse. Id. at 69-75. However, G.O. then repudiated

her recantation and J.S. later pleaded guilty to committing the delinquent

act of indecent assault against G.O.3 Id. at 101.

During the cross-examination of G.O. in the case at bar, Appellant’s

trial counsel questioned G.O. as to whether she was untruthful in her initial

report to the police, in the recantation letter, or in her repudiation of the

recantation letter.4 Trial counsel’s cross-examination of G.O. transpired in

the following manner:

Q: Let’s talk about [J.S.]. You wrote a letter, did you not?

[Appellant’s counsel]: And I will ask to have this marked
as D-4.

[Trial Court]: So marked.
____________________________________________

3 The testimony regarding the factual predicate for the charges against J.S.
is vague.

4 Prior to trial, Appellant filed a motion in limine where he sought “to bring
out evidence of [G.O.’s] past sexual conduct insofar as that conduct is
shown by her having admitting false sexual abuse claims against other
individuals.” Appellant’s Motion in Limine, 5/22/07, at 1-2. Specifically,
Appellant sought to introduce evidence of G.O.’s recantation letter and her
repudiation of the recantation letter in the case against J.S. See id. This
evidence was not relevant to any issue other than G.O.’s credibility and, as
will be explained later in this memorandum, was inadmissible under
Pennsylvania Rule of Evidence 608. Nevertheless, the trial court granted
Appellant’s motion and the Commonwealth did not appeal the trial court’s
order. See Docket Entry at 6/21/07.

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...

Q: I want you to look at the second to last page and tell me
if you wrote that. . . .

A: Yes, I wrote this. It’s my handwriting.

Q: I would like you to [read] it out loud, please.

A: “I feel real bad right now because I know my [mom] is
pressing charges on you and got you locked up. But the
thing I really feel bad for is I lied to everybody. I lied to the
police officer, to my mom, the doctor, and to the guy at
[Special Victims]. I lied to them, told them that I had sex
with you, but you know and I know that we never had sex.
I’m sorry about May 22 was a lie. I only told that to my
mom and the police guy because I was scared of my mom
and scared of everything that was going on. I was under a
lot of pressure and I didn’t know what to do. I’m sorry for
everything. Hope everything calms down.”

Q: So, your testimony was that you wrote this letter
because [J.S.’s] mom told you to write it?

A: Yes.

Q: So, you lied at the request of somebody else; correct?

A: Yes.

Q: You knew this letter would be used hopefully to help
[J.S.] and prevent him from being arrested; correct?

A: Yes.

Q: You lied at least on one occasion right then and there;
right?

A: Yes.

Q: Then you later recanted your story to the police and to
the District Attorney saying, no, this letter was a lie. He
really did sexually assault me; correct?

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A: No.

Q: No, you didn’t?

A: That was what she wanted me to write.

Q: No, no, no. You don’t understand my question. This
letter is a lie; right?

A: Yes.

Q: And we both agree that somebody asked you to lie, and
you willingly did that for them; correct?

A: Yes.

Q: Knowing full well that the police and the courts might act
favorably on [J.S.], based on this lie; correct?

A: Yes.

Q: In other words, they might dismiss the case. That was
your hope; right?

A: Yes.

Q: But later on [J.S.] goes to court; right?

A: Yes.

...

Q: Did you withdraw what you said about in this letter? Did
you take it back?

A: Yes.

...

Q: Who did you talk to saying I take back this letter[?]

A: Because it was a lie. That’s what his mom wanted me to
say.

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Q: But who did you eventually tell is what I’m trying to ask
you? . . . Someone from the District Attorney’s Office?

A: Yes.

Q: Now, my point is, you changed your story twice on
[J.S.’s] case; right?

A: I don’t know.

Q: Do you understand my question? My point is, you
changed your story. On one occasion you said [J.S.] did it,
and on another occasion you said he didn’t do it, and then
you said he did it again. Would that be accurate?

A: I guess. . . . Yes.

N.T. Trial, 7/27/10, at 69-75.

In an attempt to rehabilitate G.O., the Commonwealth next called

assistant district attorney Kirsten Heine (hereinafter “ADA Heine”) as a

witness. Id. at 96. ADA Heine testified that, in August 2006, she was an

assistant district attorney in the Juvenile Unit of the Philadelphia District

Attorney’s Office and was assigned the task of prosecuting J.S. Id. at 97-

98. During its direct examination of ADA Heine, the Commonwealth

questioned her on the way she handled the prior case against J.S. In

relevant part, ADA Heine testified:

Q: And did it come to your attention in August of 2006 while
you were handling that case that there had been a so-called
recantation letter written by [G.O.]?

A: Yes.

...

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Q: When that recantation letter came to your attention,
what did you [do] as a result of that?

A: Well, I spoke to the police officers involved in the case,
but the most important thing is I read the letter. I looked
at what the factual background of the case was, what
[G.O.’s] situation was, and then I spoke with [G.O.] about
the letter after I had done all those things.

Q: What information did you get from her?

A: She told me that the recantation letter was not true, that
what she had originally reported to the police is what
happened, that she had been involved in a physical
relationship with [J.S.], and that she had had sexual
intercourse with him. I don’t remember exactly what [] her
assault acts were that were involved in the case, but I do
remember that [the] original report to the police is what
happened.

Q: When you receive such things as a recantation letter, are
you required, or do you have certain responsibilities that
you must take before you proceed one way or the other?

A: I wouldn’t say that there are a list of guidelines, but
obviously as a lawyer and a prosecutor you have an
obligation not to put a case before a fact finder if you don’t
believe there is a good faith basis to prosecute the crime.
So, if you don’t believe a complainant, you can’t call him as
a witness to testify because he would be suborning perjury.
So, if I believe there is a question of credibility, I have to
really investigate that and feel confident that my final
decision is accurate because of what I learned about the
case.

Q: What did you do after you told us you met with [G.O.]?
What did you do after that?

A: Based on everything about the case including her telling
me that her original report to the police was accurate, I
reported to the court . . . that I was ready to proceed to
trial. . . .

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Q: Could you have moved forward to trial or moved forward
with a guilty plea if you had questions about [G.O.’s]
credibility?

A: No, I wouldn’t have. . . .

N.T. Trial, 7/27/10, at 98-104.

Appellant claims that trial counsel was ineffective for failing to object

to the portions of ADA Heine’s testimony where she expressed her belief that

G.O. was credible in the prior case against J.S. According to Appellant, ADA

Heine’s testimony regarding G.O.’s credibility was inadmissible; further,

Appellant claims that the testimony was prejudicial to his case because it

“improperly bolstered [G.O.’s] testimony.” Appellant’s Brief at 3.

The Commonwealth argues that Appellant’s ineffective assistance of

counsel claim fails. First, the Commonwealth contends that Appellant’s claim

does not have arguable merit because “the question asked by the

Commonwealth did not improperly bolster the victim, but rather explained

why charges were pursued despite the fact that one of the victims had

recanted allegations made in another case several years earlier.”

Commonwealth’s Brief at 6. Second, the Commonwealth argues, Appellant’s

trial counsel had a reasonable basis for not objecting to the question

because an objection would “emphasize and draw attention to the disputed

testimony.” Id. Finally, the Commonwealth claims that Appellant was not

prejudiced by counsel’s failure, as the trial court instructed the jury that the

jury was the sole arbiter of a witness’s credibility. Id.

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We conclude that Appellant’s claim has arguable merit and that

Appellant’s petition raises a genuine issue of material fact regarding the

“reasonable basis” and “prejudice” prongs of his ineffective assistance of

counsel claim. Therefore, we conclude that the PCRA court erred when it

dismissed this claim without holding an evidentiary hearing.

At the outset, we disagree with the Commonwealth’s contention that

ADA Heine’s testimony, regarding her belief in G.O.’s credibility, was

admissible to explain “why charges were pursued [against J.S.] despite the

fact that [G.O.] had recanted [her] allegations” against him. See

Commonwealth’s Brief at 6. In this case, it appears that the entire reason

for calling ADA Heine as a witness was to rehabilitate G.O.’s credibility by

calling an assistant district attorney as a witness, who would testify that, in

the assistant district attorney’s personal and professional opinion, G.O. was

credible during a prior, specific instance. This was impermissible under our

rules of evidence.

Pennsylvania Rule of Evidence 608 is entitled “A Witness’s Character

for Truthfulness or Untruthfulness” and declares:

(a) Reputation Evidence. A witness's credibility may be
attacked or supported by testimony about the witness's
reputation for having a character for truthfulness or
untruthfulness. But evidence of truthful character is
admissible only after the witness's character for truthfulness
has been attacked. Opinion testimony about the witness's
character for truthfulness or untruthfulness is not
admissible.

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(b) Specific Instances of Conduct. Except as provided in
Rule 609 (relating to evidence of conviction of crime),

(1) the character of a witness for truthfulness may
not be attacked or supported by cross-examination
or extrinsic evidence concerning specific instances
of the witness' conduct; however,

(2) in the discretion of the court, the credibility of a
witness who testifies as to the reputation of another
witness for truthfulness or untruthfulness may be
attacked by cross-examination concerning specific
instances of conduct (not including arrests) of the other
witness, if they are probative of truthfulness or
untruthfulness; but extrinsic evidence thereof is not
admissible.

Pa.R.E. 608 (emphasis added).

This Court explained the scope and applicability of Rule 608 – and its

variance with Rule 404 – in Commonwealth v. Minich, 4 A.3d 1063 (Pa.

Super. 2010).5 In Minich, the defendant was charged with sexually abusing
____________________________________________

5 Pennsylvania Rule of Evidence 404 is entitled “Character Evidence; Crimes
or Other Acts” and declares, in relevant part:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person's character or
character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character
or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case.
The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant's
pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it;

(Footnote Continued Next Page)

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two minor boys. Id. at 1065. Prior to trial, the Commonwealth filed a

motion in limine, where it sought to preclude the use of any evidence that

one victim was “caught in several lies” at school. Id. at 1066. As the

Commonwealth argued, the evidence was only relevant to the issue of the

(Footnote Continued) _______________________

(B) subject to limitations imposed by statute a
defendant may offer evidence of an alleged victim's
pertinent trait, and if the evidence is admitted the
prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant's same trait; and

...

(3) Exceptions for a Witness. Evidence of a witness's
character may be admitted under Rules 607, 608, and 609.

...

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character.

(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this evidence
is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice. . . .

Pa.R.E. 404.

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victim’s truthfulness; and, while Rule 608 permits a witness’s credibility to

be challenged with “evidence of the witness’s general reputation for

truthfulness or untruthfulness,” Rule 608(b) “specifically prohibits a witness

from supporting or attacking another witness’s credibility with instances of

specific conduct.” Id. at 1069. Accordingly, the Commonwealth argued,

evidence that the victim was “caught in several lies” at school was

inadmissible under Rule 608(b), as it constituted an attack on the victim’s

credibility with an instance of specific conduct. Id.

The trial court denied the Commonwealth’s motion and allowed the

subject evidence at trial. Id. at 1070. As the trial court noted, Rule 404

permits admission of a victim’s “pertinent trait.”6 The trial court held that,

____________________________________________

6 In 2013, the Pennsylvania Supreme Court rescinded and replaced the
Pennsylvania Rules of Evidence. We note that the current version of Rule
404 differs slightly from the version that the Minich Court applied.
Nevertheless, the differences between the current Rule 404 and the version
at issue in Minich are not substantive. Indeed, as the explanatory comment
preceding the Pennsylvania Rules of Evidence declares:

The Pennsylvania Rules of Evidence were rescinded and
replaced on January 17, 2013, and become effective on
March 18, 2013. They closely follow the format, language,
and style of the amended Federal Rules of Evidence. The
goal of the Pennsylvania Supreme Court's rescission and
replacement of the Pennsylvania Rules of Evidence was [] to
make its rules more easily understood and to make the
format and terminology more consistent, but to leave the
substantive content unchanged.

Pa.R.E., Explanatory Comment, at ¶ 2.

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since the defendant’s “guilt or innocence depend[ed] largely on the

credibility of [the victim’s] testimony, . . . [the victim’s] trait of character for

truthfulness” was a “pertinent trait” at trial and, thus, specific instances of

the trait were admissible under our rules of evidence. Id.; see also Pa.R.E.

405.

The Commonwealth filed an immediate notice of appeal and claimed,

on appeal, that Rule 608 “exclusively controls the admissibility of all

character evidence relating to testimonial truthfulness or untruthfulness.”

Id. Thus, the Commonwealth argued, evidence that the victim was “caught

in several lies” at school was inadmissible under Rule 608, as the rule

“provides that the character of a witness for truthfulness may not be

attacked or supported by cross-examination or extrinsic evidence concerning

specific instances of a witness’s conduct.” Id.

We held that the Commonwealth was correct and that the evidence

was inadmissible under Rule 608. As we explained:

Pa.R.E. 608 codifies the long established rule limiting the
type of evidence admissible to challenge a witness’s
credibility, to evidence of the witness’s general reputation
for truthfulness or untruthfulness. . . .

Pa.R.E. 404(a) applies to evidence regarding any “pertinent”
character trait and, through the operation of case law
codified in Pa.R.E. 405, allows evidence of specific conduct
to prove the “pertinent” trait.

[We hold that] a “pertinent” character trait for purposes of
Pa.R.E. 404(a)(2)(i) is limited to a character trait of the
victim that is relevant to the crime or defense at issue
in the case. Therefore, whenever the accused seeks

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to offer character evidence for purposes of attacking
or supporting the credibility of a victim who testifies,
the admissibility of such evidence is governed by
Pa.R.E. 608 and proof of specific incidents of conduct
by either cross-examination or extrinsic evidence is
prohibited. To hold otherwise would allow the phrase
“pertinent trait of character” in [Rule 404] to modify
established case law defining the parameters of permissible
evidence to impeach or bolster the credibility of witnesses.

Minich, 4 A.3d at 1069-1070 and 1072 (internal footnotes omitted)

(emphasis added).

With respect to the case at bar, G.O.’s recantation letter and her

subsequent repudiation of the recantation in the prior case against J.S. is

only relevant to the issue of G.O.’s truthfulness. In other words, the

evidence is not relevant to show that G.O. has any potential bias against

Appellant or a motive to lie, and the one instance of recantation and

repudiation concerning a prior sexual assault does not establish a modus

operandi or a common scheme. See Pa.R.E. 404(b). Further, G.O.’s

truthfulness was not a “pertinent” character trait for purposes of Rule

404(a)(2)(i), as it was not “relevant to the crime or defense at issue in the

case” against Appellant. See Minich, 4 A.3d at 1072. Therefore, the

evidence was not admissible under Rule 404.

As such, evidence of G.O.’s recantation letter and her subsequent

repudiation of the recantation in the prior case against J.S. was inadmissible

under Rule 608, as it constituted an attack on G.O.’s credibility by “extrinsic

evidence concerning specific instances of [G.O.’s] conduct.” See Pa.R.E.

608(b)(1). Further, and in following, ADA Heine’s challenged testimony

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constituted extrinsic evidence that supported G.O.’s credibility in one

specific instance. Simply stated, under the plain language of Rule 608, the

Commonwealth was not permitted to call ADA Heine and have her testify

that G.O. was credible in one specific instance.7 Pa.R.E. 608(b)(1); see

also Minich, 4 A.3d at 1069-1072. Therefore, ADA Heine’s testimony

regarding this matter was inadmissible and, if trial counsel had objected to

the testimony, Rule 608 would have required that the objection be sustained

and the testimony stricken. Hence, Appellant’s claim has arguable merit.

Moreover, we conclude that Appellant’s petition raises a genuine issue

of material fact with respect to the “reasonable basis” and “prejudice”

prongs of his ineffective assistance of counsel claim, thus necessitating a

hearing on the matter.

First, as to the “reasonable basis” prong, Appellant pleaded that his

trial counsel had no reasonable basis for failing to object to ADA Heine’s

testimony. See Appellant’s Amended PCRA Petition, 1/16/15, at 3. The

Commonwealth, on the other hand, claims that Appellant cannot satisfy the

reasonable basis prong because “counsel’s decision not to object to this

____________________________________________

7 Pennsylvania Rule of Evidence 609 permits the impeachment of a witness
with evidence of a prior criminal conviction, where the conviction involved a
crime of dishonesty or false statement. See Pa.R.E. 608(b) and 609. We
note that G.O. was not convicted of any crime related to her recantation or
her subsequent repudiation of the recantation in the J.S. case.

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[testimony] was [] reasonable in order to not emphasize and draw attention

to the disputed testimony.” See Commonwealth’s Brief at 6.

In the case at bar, the PCRA court did not hold an evidentiary hearing

and Appellant’s trial counsel did not explain the reason he failed to object to

ADA Heine’s testimony. Therefore, this Court is unable to determine

whether Appellant’s counsel did or did not have a reasonable basis for failing

to object to ADA Heine’s inadmissible testimony. Commonwealth v.

Spotz, 870 A.2d 822, 832 (Pa. 2005) (declaring: “[the Supreme] Court has

expressed a distinct preference for a hearing on counsel’s strategy before

venturing to hold that counsel lacked a reasonable basis for his or her

actions or inactions” and “[t]he fact that an appellate court, reviewing a cold

trial record, cannot prognosticate a reasonable basis for a particular failure

to raise a plausible objection does not necessarily prove that an objectively

reasonable basis was lacking. Objections sometimes highlight the issue for

the jury, and curative instructions always do”); Commonwealth v. McGill,

832 A.2d 1014, 1022 (Pa. 2003) (“It is only in the most clear-cut of cases

that the reasons for the conduct of counsel are clear from the record. Thus,

only where the record clearly establishes that the action or omission of

[counsel] was without a reasonable basis should the court resolve the

reasonable basis prong absent a remand for an evidentiary hearing as to the

strategy of counsel”). An evidentiary hearing on this issue is required.

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Further, we conclude that Appellant properly pleaded the “prejudice”

prong of his ineffective assistance of counsel claim and that an evidentiary

hearing is also necessary on this issue.

Again, during trial, the Commonwealth called ADA Heine as a witness

and ADA Heine testified that, after G.O. wrote the recantation letter in the

J.S. case, ADA Heine met with G.O. ADA Heine testified that G.O. told her

“that the recantation letter was not true, that what she had originally

reported to the police is what happened, that she had been involved in a

physical relationship with [J.S.], and that she had had sexual intercourse

with him.” N.T. Trial, 7/27/10, at 100. ADA Heine then testified:

as a lawyer and a prosecutor you have an obligation not to
put a case before a fact finder if you don’t believe there is a
good faith basis to prosecute the crime. So, if you don’t
believe a complainant, you can’t call him as a witness to
testify because he would be suborning perjury. So, if I
believe there is a question of credibility, I have to really
investigate that and feel confident that my final decision is
accurate because of what I learned about the case.

Id. at 100-101.

Finally, ADA Heine testified that she would not “have moved forward to

trial or moved forward with a guilty plea if [she] had questions about

[G.O.’s] credibility” in the case against J.S. Id. at 102.

Appellant claims that he suffered prejudice from ADA Heine’s

inadmissible testimony, insofar as ADA Heine opined that G.O. was credible

when she accused J.S. of assaulting her. Appellant’s Brief at 7-9.

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As our Supreme Court has held, “[g]enerally, a prosecutor commits

improper bolstering when it places the government's prestige behind a

witness through personal assurances as to the witness's truthfulness, and

when it suggests that information not before the jury supports the witness's

testimony.” Commonwealth v. Reid, 99 A.3d 427, 447 (Pa. 2014).

Further, the Supreme Court held:

[t]he question of whether a particular witness is testifying in
a truthful manner is one that must be answered in reliance
upon inferences drawn from the ordinary experiences of life
and common knowledge as to the natural tendencies of
human nature, as well as upon observations of the
demeanor and character of the witness. The phenomenon
of lying, and situations in which prevarications might be
expected to occur, have traditionally been regarded as
within the ordinary facility of jurors to assess. For this
reason, the question of a witness' credibility has routinely
been regarded as a decision reserved exclusively for the
jury. . . . It is an encroachment upon the province of the
jury to permit admission of expert testimony on the issue of
a witness' credibility.

Commonwealth v. Seese, 517 A.2d 920, 922 (Pa. 1986) (internal

quotations and citations omitted).

The case at bar does not involve a classic case of improper bolstering

because ADA Heine was not Appellant’s prosecutor (but was rather a witness

for the Commonwealth)8 and ADA Heine did not express an opinion as to
____________________________________________

8 But see Commonwealth v. Tann, 459 A.2d 322, 327 (Pa. 1983) (holding
that there was improper bolstering when two attorneys for Commonwealth
witnesses took the stand and testified that their clients had agreed to tell the
truth at trial); see also Commonwealth v. Cousar, 928 A.2d 1025, 1042
(Pa. 2007) (recognizing Tann’s holding); Commonwealth v. Maconeghy,
(Footnote Continued Next Page)

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whether G.O. was credible when she accused Appellant of raping her.

Nevertheless, ADA Heine’s testimony was inadmissible under Pennsylvania

Rule of Evidence 608 and ADA Heine’s testimony could be understood to

mean that, in ADA Heine’s personal and professional opinion, G.O. was

credible in her allegations against J.S. Compounding this is the fact that:

ADA Heine is an assistant district attorney and, thus, comes from a position

of governmental power, prestige, and influence; ADA Heine testified that it is

a requirement of her job that she be able to determine whether to believe or

disbelieve a complainant (which, essentially, declared that she is an expert

in determining credibility); and, at trial in the case at bar, the

Commonwealth did not present any physical evidence linking Appellant with

the crimes against G.O. and J.D.R. (rather, the Commonwealth’s case

against Appellant wholly depended upon the credibility of G.O. and J.D.R.).

Under these facts, ADA Heine’s testimony could have bolstered G.O.’s

credibility in the eyes of the jury and led the jury to believe that, since ADA

Heine believed G.O. in the prior case, G.O. was telling the truth in the case

at bar. Further, this could have led the jury to believe that, since G.O. was

telling the truth, so was J.D.R. Therefore, we conclude that Appellant has

(Footnote Continued) _______________________

171 A.3d 707, 712-713 (Pa. 2017) (holding that “an expert witness may not
express an opinion that a particular complainant was a victim of sexual
assault based upon witness accounts couched as a history, at least in the
absence of physical evidence of abuse” because “such testimony intrudes
into the province of the jury relative to determining credibility” and
constitutes “indirect vouching” for the complainant’s credibility).

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properly pleaded that he was prejudiced by trial counsel’s failure to object to

ADA Heine’s inadmissible testimony, as Appellant has pleaded that, “but for

counsel’s errors, the result of the proceeding would have been different.”

Stewart, 84 A.3d at 707. We thus vacate the PCRA court’s order in part

and remand for an evidentiary hearing. See, e.g., Commonwealth v.

Hughes, 865 A.2d 761, 799 (Pa. 2004) (“the absence of a hearing and fact

finding affects our ability to assess prejudice[;] . . . as the matter must be

remanded for a hearing concerning the existence of a reasonable basis for

counsel's actions, it is preferable that any assessment of prejudice be made,

in the first instance, by a fact finder”).

Order vacated in part. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/14/18

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