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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
: No. 2000 EDA 2018
:
DWAYNE ANTHON EDWARDS :
Appeal from the PCRA Order Entered June 4, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0000661-2015
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 08, 2019
The Commonwealth appeals the June 4, 2018 order entered in the Court
of Common Pleas of Delaware County that granted Dwayne Anthon Edwards’s
amended petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541-9546 (“PCRA”), and ordered a new trial. After careful review, we
affirm.
The PCRA court set forth the following:
After a jury trial[, appellee] was found guilty of
indecent assault of a person less than thirteen years
of age[Footnote 1], corruption of minors[Footnote 2],
endangering the welfare of a child[Footnote 3], and
false imprisonment[Footnote 4]. [Appellee] was
found not guilty of Involuntary Deviate Sexual
Intercourse, Sexual Assault and Aggravated Indecent
Assault. A sentence of twelve to eighty-four months
of incarceration to be followed by three years of
probation was imposed on October 16, 2015.
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[Appellee] moved for reconsideration of sentence.
Following the denial of that post-sentence motion[,
appellee] pursued his right to a direct appeal. On
November 2, 2016 the Superior Court affirmed
judgment of sentence. On February 15, 2017 the
Supreme Court denied his Petition for Allowance of
Appeal.
[Footnote 1] 18 Pa.C.S.A. § 3123(a)(7)[.]
[Footnote 2] 18 Pa.C.S.A. § 6301(a)(1)(i)[.]
[Footnote 3] 18 Pa.C.S.A. § 4304(a)(1)[.]
[Footnote 4] 18 Pa.C.S.A. § 2903(a)(1)[.]
On May 1, 2017 [appellee] filed a pro se Motion for
[PCRA r]elief. Counsel was appointed and on April 6,
2018 appointed counsel filed an amended petition on
[appellee’s] behalf. This petition alleged that
[appellee] was denied the effective assistance of
counsel at trial. In support it was alleged that trial
counsel was informed of the existence of certain
character witnesses who were available to testify on
[appellee’s] behalf at trial but that counsel failed to
contact or call the witnesses to testify. No evidence
of [appellee’s] reputation for relevant character traits
was offered at trial.
An evidentiary hearing took place on May 17, 2018.
At the hearing the [PCRA c]ourt heard the testimony
of [appellee] and of trial counsel. Although the
relevant character witnesses were in attendance the
substance of their testimony was entered by
stipulation. Each character witness would testify that
she was available to testify at trial regarding
[appellee’s] reputation for being a peacefulness [sic]
and law-abiding individual. It was also stipulated that
each of these witnesses was “either related [to
[appellee]] as relative and mother and wife.” At the
conclusion of the hearing the [PCRA c]ourt took the
matter under advisement and on June 4, 2018 an
Order granting [appellee] a new trial was entered.
The Commonwealth filed a motion for reconsideration.
On July 2, 2018 the motion for reconsideration was
denied. The Commonwealth filed a timely Notice of
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Appeal on July 3, 2018, necessitating this Opinion. In
its timely “Concise Statement of Matters Complained
of on Appeal,” the Commonwealth claims that the
PCRA court’s determination that trial counsel provided
ineffective assistance was in error because [appellee]
failed to prove that the absence of the proposed
character testimony was not so prejudicial as to have
denied [appellee] a fair trial.
PCRA court opinion, 8/14/18 at 1-2 (record citations omitted; some brackets
in original).
The Commonwealth raises the following issue for our review:
Did the [PCRA] court commit an error of law in finding
that trial counsel was constitutionally ineffective and
ordering a new trial?
Commonwealth’s brief at 7.
In PCRA appeals, our scope of review “is limited to the findings of the
PCRA court and the evidence on the record of the PCRA court’s hearing, viewed
in the light most favorable to the prevailing party.” Commonwealth v. Sam,
952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most
PCRA appeals involve questions of fact and law, we employ a mixed standard
of review. Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). We
defer to the PCRA court’s factual findings and credibility determinations
supported by the record. Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa.Super. 2014) (en banc). In contrast, we review the PCRA court’s legal
conclusions de novo. Id.
The Commonwealth’s issue asserts error in the PCRA court’s
determination that trial counsel was ineffective.
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In evaluating claims of ineffective assistance of
counsel, we presume that counsel is effective.
Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
435, 441 (Pa. 1999). To overcome this presumption,
Appellee must establish three factors. First, that the
underlying claim has arguable merit. See
Commonwealth v. Travaglia, 541 Pa. 108, 661
A.2d 352, 356 (Pa. 1995). Second, that counsel had
no reasonable basis for his action or inaction. Id. In
determining whether counsel’s action was reasonable,
we do not question whether there were other more
logical courses of action which counsel could have
pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis. See Rollins, 738
A.2d at 441; Commonwealth v. (Charles) Pierce,
515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally,
“Appellee must establish that he has been prejudiced
by counsel’s ineffectiveness; in order to meet this
burden, he must show that ‘but for the act or omission
in question, the outcome of the proceedings would
have been different.’” See Rollins, 738 A.2d at 441
(quoting Travaglia, 661 A.2d at 357). A claim of
ineffectiveness may be denied by a showing that the
petitioner’s evidence fails to meet any of these
prongs. Commonwealth v. (Michael) Pierce, 567
Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001);
Commonwealth v. Basemore, 560 Pa. 258, 744
A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v.
Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998)
(“If it is clear that Appellee has not demonstrated that
counsel’s act or omission adversely affected the
outcome of the proceedings, the claim may be
dismissed on that basis alone and the court need not
first determine whether the first and second prongs
have been met.”).
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).
The failure to call character witnesses does not
constitute per se ineffectiveness. Commonwealth
v. Cox, 603 Pa. 223, 983 A.2d 666, 693 (Pa. 2009)
(citation omitted). In establishing whether defense
counsel was ineffective for failing to call witnesses,
appellee must prove:
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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. Treiber, 121 A.3d 435, 464-465 (Pa.Super. 2015)
(citation omitted).
The record reflects that in his amended PCRA petition, appellee alleged
that he informed trial counsel of the existence of four character witnesses;
specifically, Sherenina Hylton, Louise Brown, Gabrielle Graham, and
Jade Graham. (Appellee’s amended PCRA petition, 3/6/18 at 1, ¶ 5.) Appellee
further alleged that trial counsel “did not contact any of these individuals to
testify as character witnesses at the time of [appellee’s t]rial” and that
counsel’s failure to do so “constitutes ineffectiveness of counsel.” (Id. at 2,
¶¶ 6, 7.)
The record further reflects that at the evidentiary hearing, the parties
stipulated that Ms. Hylton, who was identified as appellee’s cousin; Ms. Brown,
who was identified as appellee’s aunt; Gabrielle Graham, who was identified
as appellee’s wife; and Jade Graham, who was identified as appellee’s
daughter, would have testified that they were available to testify at trial and
that they would have testified that appellee is a peaceful and law-abiding
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citizen. (Notes of testimony, 5/17/18 at 29-30, 33-35.) The record also
demonstrates that the testimony of appellee and trial counsel conflicted as to
whether appellee informed trial counsel of the existence of these four
witnesses. Additionally, the record reveals that appellee testified that he was
convicted of disorderly conduct and placed on probation in 2010. (Id. at 29.)
At the conclusion of testimony, PCRA counsel argued that “there was no
reason not to put character witnesses on,” but whether trial counsel had a
reasonable basis was “at least partially . . . an issue of credibility.” (Id. at
36.)
On June 4, 2018, the PCRA court entered an order, without an opinion,
that granted appellee PCRA relief in the form of a new trial. (Order of court,
6/4/18.) The Commonwealth filed a motion for reconsideration alleging that
appellee failed to meet his burdens of (1) establishing that no reasonable basis
existed for trial counsel’s actions; and (2) prejudice. (Commonwealth’s
motion for reconsideration of order granting PCRA relief, 6/20/18.) The PCRA
court denied the motion without an opinion. (Order of court, 7/2/18.)
In its Rule 1925(a) opinion, the PCRA court, who also presided at trial,
concluded that:1
1 We note that in its Rule 1925(a) opinion, the PCRA court states that the
“Commonwealth does not challenge the PCRA [c]ourt’s determinations that
[appellee’s] claim has arguable merit and that trial counsel had no reasonable
basis for his failure to present character witnesses in this case.” (PCRA court
opinion, 8/15/18 at 3.) A reading of the Commonwealth’s brief reveals that it
correctly recognizes that because the PCRA court made a factual finding based
on a credibility determination as to this prong of the ineffectiveness test, this
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Had evidence of [appellee’s] reputation for law
abidingness been put before the jury[, appellee]
would have been entitled to the Standard Jury
Instruction:
The law recognizes that a person of good
character is not likely to commit a crime
that is contrary to that person’s nature.
Evidence of good character may by itself
raise a reasonable doubt of guilt and
require a verdict of not guilty. You must
weigh and consider the evidence of good
character along with the other evidence in
the case. If, on all the evidence, you have
a reasonable doubt of the defendant’s
guilt, you must find him not guilty.
However, if, on all the evidence, you are
satisfied beyond a reasonable doubt that
the defendant is guilty, you should find
him guilty.
Pennsylvania Suggested Standard Criminal Jury
Instructions, 3.06.
The fact that the witnesses offered were [appellee’s]
relatives does not warrant a different conclusion. The
evidence of guilt in this case was far from
overwhelming. The [v]ictim’s complaint came three
years after the alleged assault and long after the
relationship between [the victim’s mother] and
[appellee] ended. However, there was evidence that
during the intervening years the animus between the
two remained. Familial character witnesses may “lack
the credibility of unbiased non-familial witnesses.”
However, they are not worthless and should have
been made available for the jury’s consideration. See
Commonwealth v. Weiss, 606 A.2d 439, 443 (Pa.
1992). Finally, [appellee] admitted that in 2010 he
was convicted of disorderly conduct, a misdemeanor.
This conviction would properly have been raised in
cross-examination. Given the relatively minor
court is bound by that determination on appeal. (Commonwealth’s brief at
18.)
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conviction in comparison to the nature and
seriousness of the crimes charged the impact of that
evidence would have had little if any impact on a
factfinder.
PCRA court opinion, 8/14/18 at 8-9.
Our review of the findings of the PCRA court and the evidence on the
record of the PCRA court’s hearing, as viewed in the light most favorable to
appellee who prevailed below, supports the PCRA court’s factual findings. The
PCRA court deemed appellee’s evidence more credible than the evidence
presented by the Commonwealth, and based upon those determinations, the
PCRA court found that appellee carried his burden in establishing trial
counsel’s ineffectiveness. Because the record supports the PCRA court’s
findings, we decline to disturb its determination on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/19
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Com. v. Edwards, D.
Combined Opinion