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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL JOHN HUDAK :
:
Appellant : No. 1814 WDA 2016
Appeal from the PCRA Order October 17, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004843-2011
BEFORE: BOWES, J., STABILE, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 29, 2018
Michael John Hudak appeals from the October 17, 2016 order that
denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).
We affirm.
Appellant was charged with various crimes related to his sexual assault
of a six-year-old girl in 2011. At trial, the Commonwealth offered testimony
from the victim, two police detectives, and a pediatric nurse practitioner. See
N.T. Trial, 2/13-15/12, at 51-118. Appellant testified in his own defense, and
called as a character witness Maria Combs, Appellant’s paramour of eighteen
years and the mother of his five children, who testified that Appellant has a
reputation within the community for truthfulness. See id. at 119-58.
A jury convicted Appellant of rape of a child, aggravated indecent assault
of a child, involuntary indecent sexual intercourse with a child, indecent
assault of a person less than thirteen years of age, and endangering the
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* Retired Senior Judge assigned to the Superior Court.
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welfare of a child. Appellant was sentenced to an aggregate term of forty to
eighty years imprisonment. This Court affirmed Appellant’s judgment of
sentence on nunc pro tunc direct review, and our Supreme Court denied his
petition for allowance of appeal. Commonwealth v. Hudak, 105 A.3d 787
(Pa.Super. 2014) (unpublished memorandum), appeal denied, 106 A.3d 724
(Pa. 2014).
Appellant, through counsel, filed a timely PCRA petition on November
16, 2015. The PCRA court held a hearing on October 12, 2016. The docket
reflects that the PCRA court denied Appellant’s petition by order of October
17, 2016; however, contrary to the mandates of Pa.R.Crim.P. 114(C)(2)(c),
the docket does not indicate when, or if, the order was served upon the
parties.
Appellant, through counsel, next filed an “Omnibus Post-Sentence
Motion” in which counsel sought time to review the PCRA hearing transcript
and discuss the case with Appellant. Omnibus Post-Sentence Motion,
10/20/16, at unnumbered page 2. The Commonwealth responded with an
objection, properly noting that an appeal, not a post-sentence motion, is the
appropriate step for Appellant to utilize in challenging the denial of his PCRA
petition. Commonwealth’s Objection, 10/24/16, at 3. On November 4, 2016,
the PCRA court signed an order denying Appellant’s motion, and indicating
that Appellant had thirty days from the denial of his PCRA petition to file an
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appeal to this Court. Order, 11/4/16. However, the docket does not reflect
service of the order upon the parties.
Appellant filed a notice of appeal on November 23, 2016, which was
more than thirty days from the date of the order denying his PCRA petition. 1
The PCRA court ordered Appellant to file a statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925, but, despite the grant of extensions,
none was filed. This Court dismissed the appeal for Appellant’s failure to file
a docketing statement as required by Pa.R.A.P. 3517, then reinstated it upon
Appellant’s motion. Counsel later filed a petition to remand the case pursuant
to Pa.R.A.P. 1925(c)(3), to rectify his failure to file the Rule 1925(b)
statement. This Court granted the request, and both Appellant and the PCRA
court complied with Rule 1925.
Before we consider the merits of Appellant’s issue, we address the
Commonwealth’s contention that this appeal should be quashed as untimely.
See Commonwealth’s brief at 14-17. As noted above, the PCRA court
dismissed Appellant’s petition by order dated October 17, 2016, but Appellant
did not file his notice of appeal until November 23, 2016. As such, the
Commonwealth argues, the appeal was untimely under Pa.R.A.P. 903
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1 Appellant purported to appeal from the November 4, 2016 order denying his
ill-conceived post-sentence motion. However, the appeal is properly taken
from the order that denied his PCRA petition. See Pa.R.Crim.P. 910 (“An order
granting, denying, dismissing, or otherwise finally disposing of a petition for
post-conviction collateral relief shall constitute a final order for purposes of
appeal.”).
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(requiring appeal to be filed within thirty days of the entry of the order from
which the appeal is taken).
If the PCRA court’s October 17, 2016 order had been docketed in
compliance with Pa.R.Crim.P. 114, we would indeed quash this appeal as
untimely as the Commonwealth suggests. However, the failure of the clerk of
courts to comply with Rule 114 renders this appeal timely. See
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa.Super. 2000) (“Our
review of the docket entries discloses no indication that the clerk furnished a
copy of the order to Appellant. Thus, we assume the period for taking an
appeal was never triggered and the appeal is considered timely.”); see also
Commonwealth v. Chester, 163 A.3d 470, 472 (Pa.Super. 2017) (holding
order to file Rule 1925(b) statement was unenforceable where there was no
indication on the docket of the date of service of the order requiring its filing).
Accordingly, we shall proceed to the merits of Appellant’s issue.
Appellant presents one question for this Court’s review: “Was trial
counsel effective despite his failure to call or even interview several character
witnesses who would have testified to [Appellant’s] reputation for truthfulness
and for being a law-abiding citizen?” Appellant’s brief at 4.
We begin with principles relevant to our consideration of Appellant’s
claim. “When reviewing the denial of a PCRA petition, our standard of review
is limited to examining whether the PCRA court’s determination is supported
by evidence of record and whether it is free of legal error.” Commonwealth
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v. Jordan, 182 A.3d 1046, 1049 (Pa.Super. 2018). Counsel is presumed to
be effective, and a PCRA petitioner bears the burden of proving otherwise.
Commonwealth v. Becker, 192 A.3d 106 (Pa.Super. 2018). To do so, the
petitioner must plead and prove (1) the legal claim underlying his
ineffectiveness claim has arguable merit; (2) counsel’s decision to act (or not)
lacked a reasonable basis designed to effectuate the petitioner’s interests; and
(3) prejudice resulted. Id. The failure to establish any prong is fatal to the
claim. Id.
When claiming that counsel was ineffective in failing to call a witness, a
PCRA petitioner must also establish that:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).
Appellant claims that counsel was ineffective in failing to call a number
of character witnesses. Evidence of a person’s character is generally
inadmissible as proof that the person acted consistent with that character on
any particular occasion. Pa.R.E. 404(a)(1). However, a criminal defendant
may offer evidence of his or her pertinent character trait as substantive
evidence that he or she did not commit a charged crime. Pa.R.E.
404(a)(2)(A); Commonwealth v. Padden, 50 A.2d 722, 725 (Pa.Super.
1947). Further, subject to statutory exceptions, “a defendant may offer
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evidence of an alleged victim’s pertinent trait” as part of his or her defense.
Pa.R.E. 404(a)(2)(B). “[O]ur Supreme Court has interpreted the term
‘pertinent’ to refer to a character trait that is relevant to the crime charged
against the accused.” Commonwealth v. Minich, 4 A.3d 1063, 1071
(Pa.Super. 2010).
Here, Appellant claims that counsel should have presented additional
character witnesses to testify that Appellant has a reputation for truthfulness
and for being law-abiding. Appellant’s brief at 28-29. He contends that,
because this was “a purely testimonial case,” with no physical evidence,
Appellant’s “character was perhaps the central issue at trial.” Id. at 30.
Assuming arguendo that Appellant established that the witnesses in
question were known to trial counsel and were willing and available to testify
for the defense, Appellant has not convinced us that the PCRA court erred or
abused its discretion in holding that Appellant was not prejudiced by counsel’s
decision to call only one character witness.
First, as the Commonwealth argues, Appellant’s character for
truthfulness was not a trait pertinent to the crimes at issue. See
Commonwealth’s brief at 26-28. Our rules of evidence provide that, “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
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witness’s character for truthfulness has been attacked.” Pa.R.E. 608(a)
(emphasis added).
In Pennsylvania, a witness’s truthfulness may be attacked by
showing that he or she has a bad reputation for truth and veracity.
If a witness is impeached by proof of bad reputation for truth and
veracity, evidence may then be admitted to prove good reputation
for truth and veracity. Evidence in support of the general
reputation of a witness for truth and veracity, however, is
not competent until his or her general reputation has been
assailed. Every witness puts his or her character in issue; but
until evidence tending directly to impeach it is produced, the law
presumes it to be good, and therefore testimony to prove it good
is superfluous.
Commonwealth v. Fisher, 764 A.2d 82, 86-87 (Pa.Super. 2000) (emphasis
added). “[W]here the prosecution has merely introduced evidence denying or
contradicting the facts to which the defendant testified, but has not assailed
the defendant’s community reputation for truthfulness generally, evidence of
the defendant’s alleged reputation for truthfulness is not admissible.”
Commonwealth v. Fulton, 830 A.2d 567, 573 (Pa. 2003) (Opinion
Announcing the Judgment of the Court).
Our review of the trial transcripts revealed no instances of the
Commonwealth attacking Appellant’s reputation for truthfulness. Accordingly,
character evidence as to truthfulness was not relevant. See, e.g., Fisher,
supra at 87 (holding evidence as to the defendant’s character for truthfulness
was properly barred where “at no time did the Commonwealth attack, impugn
or otherwise besmirch [the defendant’s] general reputation in the community
for telling the truth” and, therefore, the defendant was not permitted “to
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enhance or bolster his testimony in the eyes of the jury by introducing
collateral evidence to establish his reputation for telling the truth”).
Moreover, counsel did manage to have Ms. Combs’s testimony about
Appellant’s reputation for truthfulness admitted at trial. As such, we are not
convinced that additional, cumulative testimony on that point was likely to
lead to a different verdict. See PCRA Court Opinion, 2/21/18, at 5 (citing
Commonwealth v. Milligan, 693 A.2d 1313, 1319 (Pa.Super. 1997) (“As a
general rule, counsel will not be deemed ineffective for failing to call witnesses
whose testimony is merely cumulative of that of other witnesses.”)). See
also Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 782 (Pa.Super.
2015) (en banc) (affirming PCRA court’s determination that counsel was not
ineffective in presenting additional character evidence because “any additional
character evidence would have been cumulative”).
Second, Appellant also failed to demonstrate that the PCRA court erred
in concluding that counsel was not ineffective in failing to offer evidence of
Appellant’s reputation for being a law-abiding citizen. A reputation for being
law-abiding, unlike one for truthfulness, was obviously pertinent to the
charges at hand. However, once Appellant offered such evidence, the
Commonwealth would have been permitted to rebut it by questioning the
character witnesses about specific instances of Appellant’s conduct. See
Pa.R.E. 404(a)(2)(A); Pa.R.E. 405(a)(1).
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The certified record reveals that Appellant had a prior record score of
three. See Guideline Sentence Form, 5/17/12. Accordingly, producing such
character evidence at Appellant’s trial would have opened the door to evidence
that Appellant had a history of being the opposite of law-abiding, and/or
demonstrated that his character witnesses were unaware of the criminal
record of this supposedly-law-abiding citizen. We cannot conclude that
counsel’s failure to call witnesses who would have opened the door to
damaging, otherwise-inadmissible evidence “was so prejudicial as to have
denied [Appellant] a fair trial.” Washington, supra at 599. See also
Commonwealth v. Morales, 701 A.2d 516, 526 (Pa. 1997) (“Trial counsel
cannot be deemed ineffective for failing to present character witnesses who
could have been cross-examined about appellant’s prior [convictions].”).
Therefore, Appellant has failed to meet his burden of convincing this
Court that the PCRA court erred and that relief is due. Commonwealth v.
Feliciano, 69 A.3d 1270, 1275 (Pa.Super. 2013).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2018
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