Com. v. Deloe, M.

J-S54001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL JAMES DELOE :
:
Appellant : No. 581 WDA 2017

Appeal from the PCRA Order March 17, 2017
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000369-2008

BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.: FILED NOVEMBER 09, 2018

A jury convicted Michael Deloe of various crimes based on charges he

sexually abused a five-year-old victim. Deloe did not testify in his own

defense, and did not call character witnesses. He subsequently filed a petition

pursuant to the Post Conviction Relief Act (“PCRA”), asserting his counsel was

ineffective due to these testimonial omissions. He now appeals from the

dismissal of his PCRA petition. We affirm.

Deloe was charged with digitally penetrating the victim’s vagina while

showing her pornographic videos. The jury found him guilty of aggravated

indecent assault, indecent assault, corruption of minors, and endangering the

welfare of children. We affirmed his judgment of sentence on March 8, 2011.

He filed the current petition on March 5, 2012. It was therefore a timely, first

PCRA petition.
J-S54001-18

After several delays, the PCRA court concluded a hearing on the petition

on December 31, 2014. The Commonwealth filed a brief in opposition to the

petition on August 4, 2016, and the PCRA court entered an order dismissing

the petition on March 17, 2017. This timely appeal followed.

On appeal, Deloe argues his trial counsel was ineffective in omitting

character witness testimony and in interfering with Deloe’s right to testify in

his own defense. We proceed by determining whether the PCRA court’s factual

findings are supported by the record. See Commonwealth v. Ford, 44 A.3d

1190, 1194 (Pa. Super. 2012). In doing so, we read the record in the light

most favorable to the prevailing party. See id. If this review reveals support

for the PCRA court’s credibility determinations and other factual findings, we

may not disturb them. See id. We, however, afford no deference to the PCRA

court’s legal conclusions. See id., at 1194.

We presume counsel’s effectiveness, and an appellant bears the burden

of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965

(Pa. Super. 2017). To establish ineffectiveness of counsel, a PCRA petitioner

must plead and prove: his underlying legal claim has arguable merit; counsel’s

actions lacked any reasonable basis; and counsel’s actions prejudiced the

petitioner. See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).

Failure to satisfy any prong of the ineffectiveness test requires dismissal of

the claim. See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super.

2004).

-2-
J-S54001-18

“Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (internal quotation marks and citations omitted).

Deloe’s first claim on appeal is that counsel interfered with his right to

testify in his own defense. “Claims alleging ineffectiveness of counsel premised

on allegations that trial counsel's actions interfered with an accused's right to

testify require a defendant to prove either that counsel interfered with his right

to testify, or that counsel gave specific advice so unreasonable as to vitiate a

knowing and intelligent decision to testify on his own behalf.”

Commonwealth v. Miller, 987 A.2d 638, 660 (Pa. 2009) (internal quotation

marks and citations omitted).

After reviewing the parties’ briefs and the certified record, we conclude

the PCRA court’s opinion thoroughly and adequately resolves the issue. See

PCRA Court Opinion, 12/26/17, at 8-12 (finding no arguable merit to Deloe’s

first claim because counsel credibly testified he discussed the issue at least

three times with Deloe, had advised Deloe it was not necessary, as Deloe’s

girlfriend would provide essentially the same testimony, and that counsel

informed Deloe it was Deloe’s decision to make).1 Deloe’s first issue on appeal

merits no relief.

____________________________________________

1We have redacted the attached copy of the PCRA court’s opinion to further
protect the identity of the victim.

-3-
J-S54001-18

Next, Deloe argues counsel was ineffective by failing to call Jamie Pastin,

Lisa Plutto, Pamela Shulzendorf, and Chris King to testify as to Deloe’s good

character in the community.

When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the Strickland test by establishing
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. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012) (citations

omitted). “To demonstrate prejudice where the allegation is the failure to

interview a witness, the petitioner must show that there is a reasonable

probability that the testimony the witness would have provided would have

led to a different outcome at trial.” Commonwealth v. Pander, 100 A.3d

626, 639 (Pa. Super. 2014) (en banc) (citation omitted).

Generally, the Pennsylvania Rules of Evidence prohibit the presentation

of evidence of an accused’s bad character at trial to establish that the accused

acted pursuant to that character. See Commonwealth v. Fletcher, 861 A.2d

898, 915 (Pa. 2004). However, “the accused may offer witnesses to testify to

the accused's relevant character traits.” Commonwealth v. Hoover, 16

A.3d 1148, 1149 (Pa.Super. 2011) (citation omitted). “In order to prove this

[relevant] trait of good character, the accused may opt to introduce evidence

-4-
J-S54001-18

of his or her reputation among associates or within a particular community.”

Fletcher, 861 A.2d at 915 (emphasis supplied).

After reviewing the parties’ briefs and the certified record, we conclude

the PCRA court’s opinion thoroughly and adequately resolves the issue. See

PCRA Court Opinion, 12/26/17, at 15-20 (finding no arguable merit to Deloe’s

second claim as the affidavits revealed the witnesses would testify to their

own opinion of Deloe’s character, not his reputation in the community; also,

there was a substantial amount of exculpatory circumstantial evidence

presented to the jury; if the jury rejected that evidence in favor of the

Commonwealth’s evidence, it would not have been swayed by character

evidence). Deloe’s second issue on appeal merits no relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2018

-5-
 Circulated 10/30/2018 10:25 AM

IN THE COURff or COMMON PLEAS or w ASHINGTON COUNTY . l
PENNSYLVANIA .

CRJMINAL DIVISION

COMMONWEALTH or PENNSYLVANIA )
)
v. ) CP-63-CR-0000369-2008
)
MICHAEL JAMES DELOE )

.,
Opinion of Court

This matter comes before the Court upon Defendant's appeal from the PCRA court's

Order dated March 17, 2017, denying his Post Conviction Relief Act (PCRA) Petition.
'i
On April 13, 2017, Defendant, Michael James Deloe (hereinafter "Defendant"), through

counsel, filed a timely Notice of Appeal to theSuperior Court from the denial of his PCRA

petition.

Factual History

The facts of the case, as briefly summarized, are as follows:
;

Defendar:,.t collaterally appeals from the guilty verdict and subsequent sentencing

stemming from charges that Defendant engaged in sexual conduct
.:.':"".: {,') (...)

- the "victim") sometime between November lst and November 25th, 2007. 'tjifaact��s
--�.. . ...: ..... ••••

,, .... ,..,
,, 1

. . :t�·· . I
presented by the ·commonwealth were that whilellJwas laying on the living roo�'fiporui ,. '•.

'... .. : J
'.. "',
.
watching television, Defendant caused pornographic material to be displayed on th;�;:�vis�n,
. •.1: •.

'·,,:,•'

pulled down her underwear, laid on top of her, rubbed his penis on her vagina, and e��ked�

vaginal penetration with his finger. This incident occurred when both ... and her then 9-year

- ·.··-

APPENDIX
B
 '7'

......-
I

---··--·--··
••••••). Inconsistent testimony prevented the date of the

incident from being affixed with exact certainty, but the fact that. I told his mother on

November 25th, 2007, that he had seen Defendant "humping" his siste�, along with other

corroborating evidence, suggested the incident occurred duringllllt. an-s last visit, over

the weekend of S�turday, November 24th, 2007.1

Procedural History

On February 14, 2008, the Washington County District Attorney's Office filed a criminal

information against the Defendant charging one(]) count of Aggravated Indecent Assault,2 one

(l) count of Indecent Assault,3 one (I) count of Corruption of Minors," and one (1) count of

Endangering the Welfare of Children.5 Docket Entry 8. On June I 2, 2008, Defendant's case was
'•'•I

scheduled for a F;ry trial before the Honorable Judge Janet Moschetta Bell on Monday, July 21,
I!
2008. Docket Entry I 3. By motion of Defendant's counsel, the trial was continued until the trial

term of November 2008, and a status conference was scheduled for September 30, 2008. Docket
·,

Entry 16. An application for continuance filed by the defense was granted on November 7, 2008
.....
dictating that jury selection for the trial would be done on January 5, 2009, and trial to be

scheduled during the January 2009 trial term, between January 5 and January 16, 2009. Docket
.ii
Entry 17.

On January 15, 2009, the empaneled jury found the Defendant guilty on all four of the

aforementioned ;�ounts for which he was charged. Docket Entry 18. On January 26, 2009, the

I
Tr 230. Numbers following "TT" are page numbers from the transcript of the trial conducted January
12th-15th, 2009.
2
18 Pa.C.S. § 3,1,25(A)(l)(2)(7)(8).
3
18Pa.C.S. § 3J°26(A)(l)(2)(7).
4
18 Pa.C.S. § 62:0l(a)(I).
5
18 Pa.C.S. § 42-04(a)(I).

2
:·:
defense filed a motion to declare mistrial which was denied by the Honorable Judge Moschetta

Bell that same day. Docket Entry 24. On March 2, 2009, Thomas Farrell entered his appearance

on behalf of the I?efendant for post-sentence motions, appeal, and the sentencing hearing.

Docket Entry 25. On March 23, 2009, trial counsel for the Defendant, Todd Zwikl, filed a

motion for leave to withdraw his appearance as counsel which was denied and counsel was

ordered to appear with new counsel of record at sentencing. Docket Entry 26.

On April I ) , 2009, Honorable Judge Moschetta Bell sentenced the Defendant as follows:

On the charge of AggravatedJ!!Qecent Assault of a Child
Under the Age of Thirteen, here,-
..... a Felony of the i" degree, the Defendant is sentenced to
pay the costs of prosecution; to be sentenced to SCI Pittsburgh or
off1er state penal institution for intake and processing for
ccnfinement in an appropriate state penal institution for no less
than six (6) years and no more than twelve (12) years with credit
for time served as computed by the authorities at the Washington
County Correctional Facility as indicated on DC-3008 form; the
Defendant is ordered to undergo sexual perpetrator counseling; to
have no contact with the child victim, A.D., her family, and
specifically, including her mother and minor brother, An.D.

: The Defendant is ordered to pay restitution in the amount
of $335.00 to the North Strabane Township Police Department,
I �129 Route 519 South, Canonsburg, Pennsylvania 15317. The
Defendant is ordered to pay restitution to the Pennsylvania State
Police Greensburg Regional Laboratory, 99 Westmoreland
Avenue, Greensburg, Pennsylvania 15601-0436 in the amount of
$175.00 for seminal stain identification and in the amount of
$; ,985.00 for handling fees and DNA analysis .

. ,, No further sentence is being imposed upon the jury's guilty
v,�'rdict on the Indecent Assault of a Child Under the Age of 13, a
7Y.i,isdemeanor of the I" degree, due to merger principles.
('

!. On the charge of Corruption of Minors, a Misdemeanor of
t�e l st Degree, the Court sentences the Defendant to pay the costs
ci( prosecution; to be sentenced to SCI Pittsburgh or other state
penal institution for intake and processing for confinement in an

3
1.,

appropriate penal institution for no less than one(!) year and no
more than two (2) years consecutive with the Aggravated Indecent
Assault of a Child Under the Age of Thirteen.

:.:: On the charge of Endangering the Welfare of Children, a
tv(isdemeanor of the 151 Degree, the Defendant is sentenced to pay
the costs of prosecution; to be sentenced to SCI Pitts burgh or other
state penal institution for intake and processing for confinement in
an appropriate penal institution for no less than one (I) year and no
more than two (2) years consecutive with the Aggravated Indecent
Assault sentence and consecutive to the Corruption of Minors
sentence.

The Defendant's aggregate s�ntetrce,·therefore, is a
minimum of eight (8) years and maximum of sixteen ( 16) years.
The Defendant is not eligible for RRRI consideration due to his
cqnviction for Aggravated Indecent Assault and Indecent Assault.
T'tie Defendant is subject to Megan's Law ....
,',

Docket Entry 29.

On April 13, 2009, defense counsel filed a post-sentence motion which was denied on
.;�
April I 3, 2009. pocket Entry 31. On September 9, 2009, Thomas Farrell filed a notice of

appeal on behalf :1f the Defendant appealing the judgment of sentence to the Superior Court of

Pennsylvania. �.9cket Entry 34. On September 29, 2009, defense counsel filed a statement of

errors complained of on appeal. Docket Entry 36. Honorable Judge Moschella Bell rendered an

opinion December 31, 2009 regarding Defendant's appeal of his sentence of April 1, 2009.

Docket Entry 38i.1 On March 8, 2011, the Superior Court of Pennsylvania entered an order
li
affirming the sentence
·!•
of April I, 2009. Docket Entry 38. On March 5, 2012, Michael Healey,
.,
listed as counsel !of record, filed a Post Conviction Relief Act Petition on behalf of the

Defendant. Docket Entry 40. Thomas Farrell filed a motion for leave to withdraw as counsel on

March 19, 2012, which was granted by Honorable Judge Moschetta Bell on April 2, 2012.

4
 Docket Entry 43. The Commonwealth filed an answer to the Defendant's PCRA Petition on

April 19, 2012. Docket Entry·44.

On August J 4, 2012, Honorable Judge Moschetta Bell granted the Defendant a hearing

on his PCRA Petition regarding defendant's allegations of ineffective assistance of trial counsel,

as to the issue of.failure to allow defendant to testify, as the record did not reflect a colloquy by

,, court regarding defendant's right to testify and/or his decision not to testify.
trial counsel or the

The Commonwealth, in its Answer, noted that trial counsel stated in chambers that defendant

would not testify. Docket Entry 45. The PCRA hearing was originally scheduled for October

11, 2012, but WM, postponed until an agreeable time for the parties by order of court on

September 20, 2012. Docket Entry 46. A PCRA hearing was ultimately conducted before the

undersigned on March 17, 2014, but was not concluded and scheduled to be continued on ,\ly
i:
28, 2014. Docket Entry 50. The PCRA hearing was eventually resumed on NC'fi1ber 20, 2014,
,.
but was, once again, not cone! uded and continued until December 31, 2014. D�ket Entry 5 I.

Defense counsel filed a Post Hearing Brief in Support of Post Conviction Relie Act Petition on

March 5, 2015. �ocket Entry 58. The Commonwealth filed a Brief in Opposi\on to PCRA
'h
Relief on August 4, 2016. Docket Entry 63.

On Marc)\ I 7, 2017, Honorable Judge DiSalle rendered an opinion On the PCRA Petition

and, by order of court, denied Defendant's request for relief. Docket Entr; 66. On April 13,
,.
2017, Defense counsel filed a notice of appeal indicating that Defendant was appealing to the

Superior Court of Pennsylvania from the opinion and order of March 1 �/, 2017. Docket Entry 67.
\

Defense counsel filed a Concise Statement of Matters Comple:"med of On Appeal on May

31, 2017 which alleged the following:

5
 I. Trial counsel was ineffective for interfering with Petitioner Deloes constitutional right to
testify par-icularly in a case where no colloquy was conducted of Defendant waiving his
right to testify.

2. Trial counsel was ineffective for his failure to investigate, interview, and call to testify
known character witnesses.
J�

Docket Entry 69 -,

Legal Analysis

As stated above, Defendant raised two issues in his concise statement claiming that his

trial counsel was ineffective. Defendant claims that trial counsel was ineffective for interfering

with Defendant's constitutional right to testify. Defendant also claims that trial counsel was

ineffective for failing to call certain character witnesses. This court finds that there are no issues
·, .
of material fact and that the Defendant is not entitled to relief under the PCRA.

The PCRA provides in pertinent part that:

(a) Gen�r.al rule. - To be eligible for relief under this subchapter, the petitioner
must ple�i} and prove by a preponderance of the evidence all of the following:

*
(2) That the conviction or sentence resulted from one or more of the
following:

Ci/ a violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the circumstances of
the particular case, so undermined the truth-determining process that no
r�fiable adjudication of guilt or innocence could have taken place.

(ii) Ineffective 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.

(iii) A plea of guilty unlawfully induced where the circumstances make it
likely that the inducement caused the petitioner to plead guilty and the
petitioner is innocent.
·11
!(i

(i{) The improper obstruction by government officials of the petitioner's

6
 right of appeal where a meritorious appealable issue existed and was
properly preserved in the trial court.

* *
...
(vi) The unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of
the. trial if it had been introduced.
; '
(vii) The imposition of a sentence greater than the lawful maximum.
1:
I

(viii) A proceeding in a tribunal without jurisdiction

(3) That the allegation of error has not been previously litigated or waived.

42 Pa.C.S. § 9543.

Defendant has raised two separate claims for ineffective assistance of counsel on appeal.

Pennsylvania employs a three-prong test (the "Pierce" test), derived from the guidelines

espoused by the lJ.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), to

evaluate ineffective assistance of counsel claims. Commonwealth v. Pierce, 498 A.2d 423 (Pa.

Super. 1985), aff:.'�· 527 A.2d 973 (Pa. 1987). Specifically, to be entitled to post-conviction
. .

relief, a defendant must demonstrate that:
,'
J.
(I) the claim underlying the ineffectiveness claim has arguable merit;
(2) counsel's actions lacked any reasonable basis; and
(3) counsel's actions resulted in prejudice to [the defendant].

Commonwealth;:. Cox, 983 A.2d 666, 678 (Pa. 2009) (citations omitted).
'!

Prongs (l) and (2) of this test are concerned with the "performance component" of
il
counsel's assistance. Pierce, 498 A.2d at 425. Combined, they address "per se" ineffectiveness,
·i
whether counsel ·1·1vas in actuality ineffective. Pierce, 527 A.2d at 974. Counsel is presumed

effective, and it is the defendant's burden to prove otherwise. Commonwealth v. Reyes-

Rodriguez, 11 l X.3d 775, 779-780 (Pa. Super. 2015). If some reasonable basis existed for the

course chosen by counsel, "counsel's assistance is deemed effective," unless some other course

7
 "offered a potential for success substantially greater than the course actually pursued."

Commonwealth v. WiHiams, 899 A.2d 1060, l 064 (Pa. 2006) (citations omitted).

Prong (3 ):of the test is concerned with whether the ineffectiveness can be "linked

specifically" to prejudice suffered by the defendant. Pierce, 527 A.2d at 974. A defendant "must

show that there lsia reasonable probability that the outcome of the proceedings would have been

different but for counsel's ineffectiveness." Commonwealth v. Chmiel, 30 A.3d 1111, 1127-28

(Pa. 2011) ( ci tations omitted). "[Bjoilerplate allegations and bald assertions of no reasonable

basis and/or ensui_ng prejudice cannot satisfy a petitioner's burden to prove that counsel was

ineffective." Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011). Further, because a

defendant must establish all three prongs of the Pierce test, a court is "not required to analyze the
ir
elements of an ineffectiveness claim in any specific order [and] if a claim fails under any
,•

required element, [the claim can be dismissed] on that basis." Commonwealth. v. Treiber, 121

A.3d 435, 445 (P�. 2015) (citations omitted).

Defenda�t' s first c !aim of ineffective assistance of counsel is that Attorney Zwikl

"fail[ed] to allow" Defendant to testify at trial.6 The Commonwealth contends that this claim
.,
does not meet the first prong of the Pierce test, that "the claim underlying the ineffectiveness

claim has arguable merit.'' Cox, 983 A.2d at 678. The court agrees. "Claims alleging

ineffectiveness ;;· counsel premised on allegations that trial counsel's actions interfered with an

accused's right t�\estify require a defendant to prove either that 'counsel lnterfered vtuu his right

to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and

intelligent decisic'.n to testify on his own behalf."' Commonwealth v. Miller, 987 A.2d 638, 660

(Pa. 2009) (quoting Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (emphasis

6
PCRA 3. (Numbers following "PCRA" are page numbers from Defendant's PCRA Petition filed March
5th, 2012). .·

8
 ....

added). A claim such as the one stated here, that counsel simply Jailed to allow Defendant to

testify does not arise to "interference" as contemplated under the first prong of the Pierce test.

See Commonweafth v. Uderra, 706 A.2d 334, 340 (Pa. I 998) (noting that a claim of ineffective

assistance of counsel
,
did not satisfy the requirement of interference where counsel only "advised

[the defendant] not to testify [but] did not in any way prevent [the defendant] from taking the

stand").

The most pefendant alleges to support this claim is that Attorney Zwikl did not inform

him of his right to testify and did not prepare him to testify.7 Attorney Zwikl, during the second

PCRA hearing, testified that he spoke with Defendant regarding Defendant's right to testify on

three separate occasions. 8 The trial court found Attorney Zwikl 's testimony to be credible and

accurate. Commo�wealth v. Garrity, 500 A.2d J J 06, I 1 I 1 (Pa. J 985) (appellate court ceding to

the trial court's fii�ding that trial counsel's testimony was accurate and the defendant's
.:.
conflicting testimony was not). See also Commonwealth v. Neal, 618 A.2d 438, 441 (Pa. Super.
r.
1 992) (ruling in favor of the defendant where "trial counsel stated that ... he did not specifically

remember discussing with [the defendant] the right to testify ... [and] conceded that it was

possible that he never consulted with [the defendant] on the matter") (citations omitted).

In this case, Attorney Zwikl specifically recalled three instances where he discussed
1·,
Defendant's right to testify, and although Attorney Zwikl had advised Defendant it was not

"necessary" for him to testify," he also communicated that it was Defendant's decision. JO The

7
Id.
R 2PT 5. (Numbers following "I PT" are page numbers from the transcript of the first PCRA Hearing
conducted March =11th, 2014, and numbers following "2PT" arc page numbers from the transcript of the
second PCRA Hearing conducted on December 31st, 2014). See also PHB 3 n.3 (Numbers following
PHB arc page numbers from Defendant's Post Hearing Brief in Support of Post Conviction Relief Act
Petition filed March 3rd, 2015).
9
Id. 9.
10
Id 6-7.

9
.(
 fact that Attorney Zwikl hadnot prepared Defendant to testify was a result of Defendant having

never voiced "a �qherent statement on what his intentions were .... "11 to counsel. However,

trial counsel maintained that "it wouldn't have been particularly difficult to [prepare Defendant],

because [he would be) asking, essentially, the same 9uestions to [Amanda Keam12]."13 Attorney

Zwikl indicated that his third and final discussion with Defendant regarding his testimony

occurred off the record, after the defense rested." The trial transcript corroborates Attorney

Zwikl's recollecti;,)n:

THE COCRT: Nothing from the Commonwealth. Anything for the Defendant?

MR. ZWIKL: One minute, Your Honor.

(Discussion was held off the record between defense counsel and defendant.)

MR. ZWIKL: Nothing further, Your Honor.
"
THE CO{JRT: All right. So the Commonwealth rests and the defense does as

well?
,l

MR. ZWikL: Yes, Your Honor.15

Attorney Zwikl r�called that during this off-record discussion, he again reviewed with Defendant

the "pros and cons," of testifying, 16 and informed Defendant that it was not too late to testify, 17

but that as a result. of this discussion, Defendant "made the decision not to testify."18

',·

I I Id. J (-12. ):
12
Amanda Kearn �,as Defendant's girlfriend at the time of the incident. Kearn and Defendant were
separated by the time of trial, but Kearn testified that she was present in the home at the time of the
incident and saw nothing happen.
13 Id. 8. ;.·:
14 Id. 12.
15
TT 699.
162PTl3.
17
Id. 12
18
id. 13.
{:·
10
 The PCRA petition also asserts that Defendant, "insisted, orally and in writing, from very

early on that ... he needed to testify .... "19 Defendant's contention that he insisted on testifying

requires a finding that Defendant understood his right and renders Attorney Zwikl's alleged

failure to inform Defendant of that right impotent. Moreover, Defendant did state during his

PCRA hearing thi.t he was aware of his right to testify. 20 "Since [Defendant) was aware of his

right as well as trial counsel's strategy, he could have exercised his own informed judgement and

asserted his right to testify, by asking trial counsel to depart from the original strategy." Garrity,

500 A.2d at 1111. In fact, the trial transcript reveals the perfect opportunity for Defendant to

have enunciated his dissension with Attorney Zwikl's strategy:

THE COURT: So you are not calling the Defendant?

MR. zwixi, If she [defense witness Amanda Kearn] goes down in flames and I
see the ju/y making nooses, then I may call my client, I'm not intending to.

THE COlJRT: I'm not going to hold you to it. But as of now, you are not
i·:
planning to?

MR. zwrio. That's correct.2'
Defendant's understanding, coupled with his "full consultation[s]" with Attorney Zwikl,
?

Commonwealth v·. Breisch, 719 A.2d 352, 355-56 (Pa. Super. 1998) (holding that the underlying

claim had merit in the absence of a "full consultation"), and his opportunity to make his desire to

testify known to the trial court leaves no basis to infer that Defendant's right was interfered with

or that his capacity to make a "knowing and intelligent decision" was "vitiated." Miller, 987

A.2d at 660. See /tso Commonwealth v. Wallace, 500 A.2d 816, 819-20 (Pa. Super. 1985)
n.
(where the appell(:c argued to no avail that he did not understand his right due to this youth and

19
PCRA 3. See als� I PT 12, 18.
20
IPT 18. :
21
1T 593.

11
 inexperience). Defendant, by his own admission, understood his right to testify and therefore

"must bear the burden of his decision not to testify and cannot shift the blame to his attorney."

Commonwealth v_. Mancini, 490 A.2d 1377, 1387 (Pa. Super. 1985) (citations omitted).
'!

Thus, Defendant's underlying claim of ineffectiveness does not meet the required criteria
'

and it is unnecessary for the court to evaluate the overarching claim of ineffectiveness with

regards to Prongs (2) and (3) of the Pierce test. "Where it is clear that a petitioner has failed to
,·
meet any of the three, distinct prongs of the Pierce test, the claim may be disposed of on that

basis alone, without a determination of whether the other two prongs have been met."

CQrnmonwealth v Steele, 961 A.2d 786, 797 (Pa. 2008) (citations omitted). Nonetheless, based

on the following reasoning, the trial court finds that counsel's actions, in not having Defendant

testify had a reasonable basis (prong 2) and did not result in prejudice to Defendant (prong 3).

Cox, 983 A.2d at:�78.

At the PCJtA hearing, Attorney Zwikl conveyed that he felt that Defendant did not need

to testify based on "the volume of other exculpatory evidence .... " in the case.22 Included in this

evidence was the /estimony of Amanda Kearn, Defendant's ex-girlfriend who testified that she
I
was present at the time of the incident and "categorically denied ... the allegations that were

made against [Deibndant]."23 One of Attorney Zwikl's central trial strategies was to rely on
,\
Kearn's testimony in preference of placing Defendant on the stand and "open[ing] the door to

other questions thi'1t could be, potentially, problematic .... "24 The Court deems this trial strategy

to have a reasonaf:'le
I
basis and Defendant has failed to show that some other course offered a

"substantially greater" potential for success. Williams, 899 A.2d at 1064. In Breisch, the
,·

petitioner's only defense to the charges including forgery and theft "was based on her belief that

22
2PT 9.
iJ Id. 9-10.
24
Id 11.

12
 [.she was authorized] to charge expenses to the business." 719 A.2d at 356. The Superior Court

determined that "the testimony that [the defendant] would have given was the sole opportunity to

rebut the prosecution's incriminating testimony." Id. This is not so in the matter before the trial

court. An adult witness supplied testimony denying that the conduct from which the charges

arose ever occurred. This witness, according to Attorney Zwikl 's judgment, precluded the

necessity of Defendant taking the stand. "When determining whether counsel's actions or

omissions were reasonable, we do not question whether there were other more logical courses of
r,

actions which counsel could have pursued: rather, we must examine whether counsel's decisions

had any reasonable basis." Steele, 96 I A.2d at 797 ( citations omitted). In this case, the Court is

satisfied that Attorney Zwikl had a reasonable basis for his decision not to call the Defendant as

a witness.
ii
By the same logic, it is the trial court's finding that Attorney Zwikl's strategy did not

prejudice Defendi;nt. The jury heard Defendant's "version of the events" through Keam's
\
'!!
25
testimony. The fact that the jury did not credit the lucid testimony of a dissociated witness over
i:;.
the testimony of ac-year old victim, makes it unlikely that they would have credited the

accused's testimony. Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. 2005) (noting
...
that "jurors are likely to suspect that ... testimony of child witnesses in general, and child
.1·,
victims of sexual assaults in particular, may be distorted by fantasy, exaggeration, suggestion, or

decay of the original memory of the event.") ( citations omitted). It certainly does not establish

with "a reasonable probability that the outcome of the proceedings would have been different"

had Defendant testified, Chmiel, 30 A.3d at 1127-28.

15
I PT 20.

13
 . Defendant's second claim of ineffective assistance of counsel is that Attorney Zwikl

"fail[ed] to investigate, interview, and call" character witnesses to testify on his behalf at trial."

Defendant avers that he provided trial counsel with a list of eight character witnesses willing to

testify on Defendant's behalf: and that these witnesses were "familiar with [Defendant's]

reputation in the cornrnunity for being honest, law abiding, and non-violent.v' ' Defendant avers,

and Attorney Zwikl recalled, that these character witnesses were never interviewed or

subpoenaed. While "[ e[vidence of good character ... may, in and of itself, create a reasonable

doubt of guilt," Commonwealth v. Harris, 785 A.2d 998, 1000 (Pa. Super. 2001) (citations

omitted), "[fjailure to call a witness is not per se ineffective. Commonwealth v. Washington. 927

A.2d 586, 599 (Pa. 2007). "When raising a failure to cat! a potential witness claim, the PCRA

petitioner satisfies the performance and prejudice requirements of the [Pierce test] by

establishing that:'···
;

(l) the witness existed;
(2) the witness was available to testify for the defense;
(3) couns�'i 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 abJ�nce of the testimony of the witness was so prejudicial as to have
denied the.defendant
... a fair trial."

Commonwealth v.. Johnson, 966 A.2d 523, 536 (Pa. 2009). See also Commonwealth v. Lauro,

819 A.2d 100, I �;i (Pa. Super. 2003 ). It remains Defendant's burden to show that trial counsel

"had no reasonable basis for declining to call ... a witness." Washington, 927 A.2d at 599. In the

case sub Judice, Defendant meets criteria (I) through (4) of the above modified _rjerce test, as

there is no challenge by the Commonwealth to the existence, availability, and willingness of the

witnesses to testify. However, Defendant's claim lacks merit for the following reasons.

26
PCRA 4.
27
PHB 5. :•
-}

14
 Of the three character traits the witnesses would have presumably testified to,

Defendant's reputation for honesty is irrelevant. "Character evidence of [a] defendant's

truthfulness is admissible only if: (I) the character trait of truthfulness is implicated by the

elements of the charged offenses; or (2) the defendant's character for truthfulness was attacked

by evidence of bad reputation." Commonwealth v. Minich, 4 A.Jd 1063, I 070 (Pa. Super. 2010)

(citations omitted). In the instant case, none of Defendant's charges implicate Defendant's

honesty. See Com\nonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super. 2003) ("In a rape case,

evidence of the character of the defendant would be limited to presentation of testimony

concerning his general reputation in the community with regard to such traits as non-violence or

peaceableness, quietness, good moral character, chastity, and disposition to observe good
'·'

order.") (citationsorniued). See also Commonwealth v. Puksar, 951 A.2d 267, 281 n.7 (Pa.
'
2008) (noting evidence of a defendant's honesty is "irrelevant" in a murder prosecution).
'. �
Further, "merely i;itroduc[ing) evidence denying or contradicting the [defendant's version of the

facts, without assailing defendant's community reputation for truthfulness generally, renders]
j
evidence of the defendant's alleged reputation for truthfulness [injadmissible." Commonwealth

v. Kennedy, 151 A. 3d 1117, 1128 (Pa. Super. 2016) (citations omitted). Here, Defendant did not
!::
testify and his reputation for truthfulness was not impugned, nor does Defendant so contend. As

a result, testimon/vouching for Defendant's reputation of honesty would have been irrelevant to

the charges he was facing and therefore inadmissible at trial.

As examples of what actual character testimony might have been proffered, PCRA

counsel provided eight affidavits. Seven of these affidavits included either letters from potential

character witnesses or excerpts of witnesses' testimony proffered at Defendant's sentencing. The

15
 trial court finds that the substance of these writings does not evince testimony that would have

been admissible at... trial.

Evidence c,f good character offered by a defendant in a criminal prosecution must
be limited to his general reputation for the particular trait or traits of character
involved in the commission of the crime charged .... Such evidence must relate
to a period at or about the time the offense was committed, and must be
established by testimony of witnesses as to the community opini�n of the
individual in question, not through specific acts or mere rumor.
...
Commonwealth v: Johnson, 27 A.3d 244, 248 (Pa. Super. 2011) (emphasis removed). In the

instant case, although the provided affidavits purport that witnesses would have testified to

Defendant's community reputation for being law-abiding and non-violent, the samples supplied

do not actually "rr.eet the evidentiary criteria." Id. at 250. Instead, the great majority of potential

witnesses' writings and testimony address their own opinion and perception of Defendant and

specific instances.of Defendant's conduct. Witnesses' "own experience with [Defendant] and

their perceived relationship between [Defendant] and the victim is not testimony regarding

..
[Defendant's] general reputation in the community." Commonwealth v. Van Hom, 797 A.2d

983, 988 (Pa. Su�;;r. 2002) (citations omitted). See also Johnson, 27 A.3d at 249-50 (holding that

testimony relating. (a defendant's] "specific acts in behaving appropriately around children in

their family ... i�: not proper character evidence to his general reputation for chastity in the
, ..
community.") (citations omitted). Because the substance of the witness' statements contained in

the proffered writings in the instant case were not "limited" to Defendant's general community

reputation for bei'1;g law-abiding and non-violent, the substance of the testimony would have

been inadmissibl{at trial toward either trait. See Lauro, 819 A.2d at I 09. Accordingly, the trial

court finds that Di;fendant's second PCRA claim also lacks arguable merit. Id. at 109-10.
Assuming1'arguendo, that Defendant had presented appropriate and admissible character

evidence, he failsto establish that there was no reasonable basis for his counsel's decision not to

16
 ca 11 character
. witnesses,
. . and that he was denied a fair trial and thereby "prejudiced" as a result.

Cox, 983 A.2d at 693.

Attorney fwikl explained his rationale for declining to offer character witnesses at trial,
,:
noting the formidable amount of evidence favorable to the Defendant that had been placed before

the jury. In addition to the testimony of Amanda Kearn, Attorney Zwikl cited the DNA Analysis

performed by the Pennsylvania State Police Bureau of Forensic Services to which Defendant

voluntarily submit'ied. The test compared the DNA profile of a dried blood sample taken from

Defendant to the DNA profile of seminal stains recovered from the front of A.D.'s underwear.

The test revealed that "[tJhe DNA profile obtained from [Defendant) did not match the DNA

profile obtained from the sperm and non-sperm fractions of the [underwear]." Lab Report 2
);
(emphasis added). Attorney Zwikl also cited the testimony of the emergency room physician, Dr.
(;
Amy Smookler, and the Sexual Assault Nurse Examiner (SANE), Kathryn Dames. Dr.
>·.
Smookler, who examined the victim on November 25th, 2007, testified that A.D. had a lack of
\!
physical trauma a·; well as an intact hymen.28 Nurse Dames testified that based on her

examination of the. child, "(she] was not able to rule in or rule out sexual assault .... "29 In his
(
closing Attorney Zwikl emphasized the significance of this evidence for the jury:
l\
�nt · is about six foot and change and 200 and some pounds, and •
-- is about this big (indicating). I can't under those circumstances, be
completely dismissive of the Jack of physical evidence or non-existence of any
trauma evi,1Jence anywhere or of DNA.

Now, after that, it comes down to testimony that you heard this morning from
Amanda Kearn. She was there. I don't know that I'll get many sexual assaults
where there is a third person in the room to talk about what they saw or what they
didn't see'.' I would imagine that most of them are between the victim and the
accused. Eut she testified that from November 23rd, which was a Friday, to

iR TT 343, 347.
29
Id. 407.

17
 :�/· .
.'.f'.) .:'_

,,
:�:"'.\ ·.
{\J.�·. November,25th, she was there with the children, that she was present and no one
?�J:.;. ':. a
got out of-her sight for more than a bathroom break in small apartment, and that
nothing happened.
.

j:: . •·
I,•

There is ��lot of evidence there, You can. weigh it and choose it as you see fit,
��',:'"'· .. weight to what you find important and what you don't find important. But at the
,t:·... ·
,::- �· . .. end of the.day, I wonder if you can find a reasonable doubt.30
{!2"' .·.: :

i·
Attorney Zwikl reiterated at the second PCRA Hearing that this evidence, "should have been

more than enougli:1!' and that character evidence might have "detractjed] from [this other) very

serious exculpato;� evidence. 1131
:�;>�.:

ittf·) Historically, the necessity for character testimony has been recognized when a defendant

is unable lo "produce any other evidence to exculpate himself from the charge he faces except

his own oath and ·�vidence of good character," Commonwealth v. Luther, 463 A·.2d l 073, 1077

(Pa. Super. J 983) lcitations omitted). While it may be advisable to call character witnesses in

other contexts, th�s court is not prepared lo declare that such testimony was necessary In this

context or that tri(I counsel's actions lacked any reasonable basis by failing lo do so. The court

lit}·.
i,-, ... , •••
is satisfied that At;:orney Zwikl did consider calling character wilnesses,32 and that the decision
"
lo forego charnctei· testimony was a "tactical one" with a "reasonable basis." See Commonwealth
1t:

11
v. Mickens, 597 ;pd l 196, 1203 (Pa. Super. 199 l ). The strategy of relying on physical and
• 1'\ •

other exculpatory ,;vidence was deemed by counsel to be a course conducive to success at the

time, and "[a] clni1� of ineffectiveness generally cannot succeed through oomparlng, in
Jit·'.:':. 'I ·i�;�.
hindsight, the triai"strategy employed with alternatives not pursued." Washington, 927 A.2d'at

,r;·
:.?}(-:".•
,t;•-.'t

599-600, AccordiTigly, this court holds that Defendant's second claim of ineffective assistance of

counsel fails to m!et the second prong of the Pierce test.

it�?: JO kl. 71 Q. I 2,

It
·" 2PT 17.
;i Id, 16.

18

f1J<, >.
:L' � '(:
 .?;'.:�.".:
Ir;::•,,,'
)t:>'.·<

iJ·· By similar rationale, the court is disinclined to conclude that Defendant was prejudiced

jf},. :
/:�'!:(.:i
by the absence of:clharacter testimony. Attorney Zwikl believed that the amount of exculpatory
)•

evidence present did not need to be supplemented by cha�acter evidence in order to achieve a
;;:,<.! .• ·
�-

IL
not-guilty verdlct..
. '
·'
What r tol1j the jury [was), we voluntarily submitted to a DNA test, so we could
come to you and tell you . . . there was no. match . . , . You had no physical
tr��.:-. · evidence, and beyond that, there was a physical examination of the young girl that
revealed nl.li signs of any sort of physical trauma to her whatsoever. So ... those
factors, sta;nding Alone, could have raised a reasonable doubt, before you even got
to the fact'that Ms. Kearn got up .and testified that she was personally there, and
. that this didn't happen.33

i In light of all this substantive evidence, that did not overcome the victim's testimony and

preven; the jury from finding Defendant guilty, the court is unconvinced that the testimony of fl
I
: ·;

handful of witnesses vouching for Defendant's law-abiding character would have swayed the

IJ:. :

:
-c
jury. See Commonwealth. v. Ferrari, 593 A.2d 846, 852 (Pa. Super. 1991) (holding that calling
J, .
character witnesses would not have offered a reasonable probability of a "more favorable"
.
. .
outcome where other witnesses "confirmed [the defendant's] version of the [facts] .. , [and t]he
; ·1
Jury n�vertheless11hose to believe the testimony of the Commonwealth's witnesses").
11
Additionally, Att�mey Zwikl did call witnesses Joseph Lubas and Maryann Lubas (Defendant's
stepfather and m61her, respectively) who claimed that they had visited with Defendant, Kearn,
11111111111.
and the vi�tim on the weekend in question and went out to dinner with them on the

evening ofNoveri;ber 24V1, 2007.34 Specifically, Maryann Lubas testified at length regarding the
: :\
demc�nor of the household:

If
' f walked �;ut into the living room. (The victim) was all bubbly and happy. There
! wasn't aqything wrong at all. She wanted to show me a game that Amanda
: [Kearn) hiid put on the computer ... Mike [Defendant] was asking me questions
('
. .-.:., .. -...

�.·
:ff.}/. =t« 18. ·,.•,,
JI TT �31.
•..•.•••. ·l'

i 19
�; .
.?J:!0�<;··.:
·:·p·1 '/"'_·:·..:..
�
!L.: ,,·
 at the sam{i time about the business and - was just kind of following us
: around ... i it was just a normal Sunday afternoon, 35

Finally, the testimony of Amanda Kearn presented Defendant's character in a positive light

describing how he :would refer to the victim as "hls princess,"36••••••••••
0

.. 7
Neither this testimony nor any of the other exculpatory evidence discussed, had the
i; , .
impact on the jury that Defendant expects the court to believe that character witnesses would
,:
have had. Therefo1;e, the court finds no basis to draw the inference that "there is a reasonable
11·:'
probability that but for the [ omission of character evidence] the outcome of the proceedings

would have been different," Harris, 785 A.2d al l 000. Such is needed to meet the.third prong of

the Pierce test and as stated, Defendant has failed to do so.

For the re��ons set forth, the trial court submits that Defendant failed to prove that he i's
entitled lo relief under the Post Conviction Relief Act. The court therefore submits that its denial

of Defendant's PqRA petition should be affirmed .

..

JOHN F. DISALLE, J.
·'

ll Id. 540.
6
' Id. 628.
1
) Id, 602,

20
:_1.