Commonwealth v. Johnson

DISSENTING OPINION BY

BOWES, J.:

I respectfully dissent from the majority’s decision herein. A jury convicted Appellant of attempted involuntary deviate sexual intercourse with a child, indecent assault, and indecent exposure. At trial, the Commonwealth produced evidence that while the then-five-year-old victim was staying overnight at Appellant’s residence on July 30, 2005, Appellant awoke her, exposed his penis, and attempted to place the victim’s mouth on it. The victim did not tell anyone precisely what occurred that night for approximately one year.

At Appellant’s jury trial, his counsel attempted to present the testimony of eight character witnesses on Appellant’s behalf. Trial counsel admittedly failed to make the proper proffer at trial, and the trial court disallowed the evidence. Specifically, counsel stated that the witnesses would testify about Appellant’s reputation for chastity among family members. N.T. Trial, 1/18/07, at 150-53. However, the record establishes that the witnesses were willing, available, and able to testify about Appellant’s character for chastity regarding children and appropriate behavior around children in the community in general. At a post-trial hearing on this matter, trial counsel admitted that he had made the incorrect proffer at trial. The issue thus presented herein is whether trial counsel was ineffective in this respect.

“To prevail on his ineffectiveness claims, Appellant must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) Appellant suffered prejudice because of counsel’s action or inaction.” Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa.2011). Since trial counsel obviously had no reasonable strategy for making the incorrect proffer, the questions remaining in this appeal are: 1) whether there is arguable merit to the position that the witnesses in question would have been permitted to testify had the correct proffer been made; and 2) whether Appellant was prejudiced by counsel’s default. “To establish the ... prejudice prong [of the ineffectiveness standard, the defendant] must show that there is a reasonable probability that the *251outcome of the proceedings would have been different but for counsel’s action or inaction.” Id.

The first issue is whether the witnesses in question were valid character witnesses. At the PCRA hearing on this matter, Appellant introduced the affidavits, which were attached to the PCRA petition, of the eight character witnesses. The Commonwealth had no objection to the presentation of these affidavits, which read as follows. Tracey J., the wife of Appellant’s nephew, had known Appellant for twelve years. Given her relationship with Appellant, her area of residence, socialization, and general interaction in the community in performing the basic functions of life, Tracey J. could testify about Appellant’s “character and reputation in the community.” Affidavit, Tracey J., 6/23/09, at 1. At Appellant’s trial, she was able, willing, and ready to testify on Appellant’s behalf and remains able to testify, based on this knowledge, that Appellant has “established a reputation in the community as being innocent of unlawful sexual intercourse, being pure in thought and act, acting appropriately in relation to children and being a decent person relative to caring for children in a close setting.” Id.

John J. is Appellant’s brother, and based upon that relationship, his area of residence, employment, socialization, and “general interaction in the community in performing the basic functions of life,” he was familiar with Appellant’s “character and reputation in the community.” Affidavit John J., 6/22/09, at 1. He was ready, willing, and able to testify at Appellant’s trial and continues to be able to testify that based upon this knowledge, Appellant has “established a reputation in the community as being innocent of unlawful sexual intercourse, being pure in thought and act, acting appropriately in relation to children and being a decent person relative to caring for children in a close setting.” Id.

Janet A. and Susan S., Appellant’s sisters, affirmed the following. In light of Janet A.’s relationship with Appellant, her “area of residence, socialization, and general interaction in the community in performing the basic functions of life,” she was familiar with Appellant’s “character and reputation in the community.” Affidavit of Janet A., 6/22/09, at 1. Based on Susan S.’s relationship with Appellant, her “area of residence, employment, socialization, and general interaction in the community in performing the basic functions of life,” she was familiar with Appellant’s “character and reputation in the community.” Affidavit of Susan S., 6/22/09, at 1. As a result of their knowledge, both sisters were ready, willing, and able to testify at trial and remain willing to testify that Appellant “has established a reputation in the community of being innocent of unlawful sexual intercourse, being pure in thought and act, acting appropriately in relation to children and being a decent person relative to caring for children in a close setting.” Affidavit of Janet A., 6/22/09, at 1; Affidavit of Susan S., 6/22/09, at 1.

Appellant’s niece Ginny Y., and nephew, William J., knew Appellant their entire lives. Given their relationship to Appellant, their “area of residence, employment, socialization, and general interaction in the community in performing the basic functions of life,” Ginny Y. and William J. could provide evidence of Appellant’s “character and reputation in the community.” Affidavit, Ginny Y, 6/22/09, at 1; Affidavit, William J., 6/23/09, at 1. At Appellant’s trial, they were able, willing, and ready to testify on Appellant’s behalf and remain able to testify, based on this knowledge, that Appellant has “established a reputation in the community as being innocent of unlawful sexual intercourse, being pure in thought *252and act, acting appropriately in relation to children and being a decent person relative to caring for children in a close setting.” Affidavit, Ginny Y., 6/22/09, at 1; Affidavit, William J., 6/28/09, at 1.

Rocky N. was Appellant’s best friend and had known him for thirty years as of 2009. Rocky N. lived and worked in the same area as Appellant. Due to Rocky N.’s relationship with Appellant, “area of residence, employment, socialization, and general interaction in the community in performing the basic functions of life,” Rocky N. was familiar with Appellant’s “character and reputation in the community.” Affidavit of Rocky N., 6/22/09, at 1. Based upon his knowledge, Rocky N. was prepared, willing, and able to testify at trial and remains willing to testify that Appellant “has established a reputation in the community of being innocent of unlawful sexual intercourse, being pure in thought and act, acting appropriately in relation to children and being a decent person relative to caring for children in a close setting.” Id.

Delilah P. was also a friend of Appellant and had known him for thirty years. As a result of her relationship with Appellant, her “area of residence, socialization, and general interaction in the community in performing the basic functions of life,” Delilah P. could and can provide evidence about Appellant’s “character and reputation in the community.” Affidavit, Delilah P., 6/22/09, at 1. At Appellant’s trial, she was able, willing, and ready to testify on Appellant’s behalf and remains able to testify, based on this knowledge, that Appellant has “established a reputation in the community as being innocent of unlawful sexual intercourse, being pure in thought and act, acting appropriately in relation to children and being a decent person relative to caring for children in a close setting.” Id.

The law of this Commonwealth is that “[e]vidence of good character is to be regarded as evidence of substantive fact just as any other evidence tending to establish innocence and may be considered by the jury in connection with all the evidence presented in the case on the general issue of guilt or innocence.” Commonwealth v. Hull, 982 A.2d 1020, 1022 (Pa.Super.2009), (quoting Commonwealth v. Harris, 785 A.2d 998, 1000 (Pa.Super.2001)). Pursuant to Pa.R.E. 404(a)(1), a defendant can present evidence of his reputation in the community as to the character trait that is pertinent at trial.

The affidavits of each witness clearly and unequivocally establish that they were prepared, able, and willing to testify as to the pertinent character trait at issue in this trial, chastity with children, and that they had knowledge as to this character trait of Appellant in the community. They were not planning to testify that Appellant did not sexually abuse them or their children. Cf. Commonwealth v. Van Horn, 797 A.2d 983 (Pa.Super.2002) (witnesses could not testify that defendant did not sexually abuse them; such testimony is not character evidence). While the witnesses were family members and friends, they worked and lived in the pertinent community, knew Appellant for years, and their knowledge was not merely based upon their relationship with Appellant but also upon their socialization and interaction in the community. The testimony from each witness is classic character evidence and would have been admissible at Appellant’s trial under binding Supreme Court precedent.

Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992), is dispositive. In that case, Weiss was convicted of numerous offenses related to his sexual abuse of a minor. On appeal, he claimed that he received ineffective assistance of trial counsel since coun*253sel failed to present character witnesses at his trial. Weiss alleged that members of his family, a co-worker, and his employer were available and willing to testify that he had a good character for chastity. The Court observed that character evidence, in and of itself, is sufficient to raise a reasonable doubt as to a defendant’s guilt, and concluded that counsel was ineffective for failing to explore and present these witnesses at trial in light of the fact that Weiss’s convictions rested solely on the credibility of the victim. Thus, our Supreme Court has ruled that family members, who necessarily know about a defendant’s character based on their familial and social relationship with the defendant, are valid character witnesses.

Additionally, based on the present record, a finding of prejudice is compelled. Instructive is our recent decision in Commonwealth v. Hull, supra, where we affirmed the PCRA court’s decision to grant the defendant a new trial based upon trial counsel’s failure to present character witnesses. Therein, the defendant was convicted of sexually abusing his adopted daughter, and his convictions were premised solely upon her testimony. Trial counsel’s strategy was to demonstrate that the victim was fabricating the charges, but counsel neglected to present available witnesses as to defendant’s good character in the community for morality and upstanding behavior. We concluded that counsel’s decision to forego that testimony instead of using it to complement his attack on the victim’s veracity constituted ineffectiveness in light of the fact that there were no physical findings to corroborate that the crimes occurred.

We noted in Hull that where a witness’s testimony is “of paramount importance, ... character evidence is critical to a jury’s determination of credibility.” Id. at 1022. We also concluded that counsel’s fear that damaging character witnesses might be called was unfounded because the defendant had no prior record and there was no indication that such witnesses were available. See also Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983) (in awarding a new trial to a defendant prosecuted for rape due to counsel’s failure to present character witnesses, we noted that where the Commonwealth’s evidence rests upon a single witness and the defendant lacks a prior criminal record, character witnesses can be crucial in establishing a defendant’s innocence).

In this case, there was no physical evidence of abuse, and Appellant’s convictions rest upon the testimony of a six-year-old who did not report Appellant’s actions for nearly one year. The record establishes that at fifty years of age, Appellant had no prior record; his sole conviction was a DUI that was processed through ARD. Cf. Van Horn, supra (character witnesses could have been impeached with defendant’s prior convictions). All eight witnesses in question would have testified properly as to Appellant’s reputation in the community for chastity with children. This evidence could have been crucial in obtaining an acquittal.

The PCRA court and majority herein rely upon Van Horn, supra, in concluding that the witnesses’ testimony was inadmissible. My reading of Van Horn reveals that it is distinguishable and its application constitutes an error of law. Therein, the defendant claimed that counsel was ineffective in not obtaining the testimony of relatives that “Appellant had a good relationship with the victim and that Appellant did not sexually abuse any of them.” Id. at 988. We noted that such evidence did not constitute character evidence because “the relatives’ own experience with Appellant and their perceived relationship between Appellant and the victim is not *254testimony regarding Appellant’s ‘general reputation in the community.’ ” Id. In this case, however, the affidavits clearly establish that each witness would have testified about Appellant’s “general reputation [in the community] for the particular trait or traits of character involved in the commission of the crime charged,” which we acknowledged in Van Horn to be proper character evidence. Id. at 987.

The PCRA court herein also concluded that the witnesses’ opinions were infirm because, on cross-examination, the witnesses were unable to articulate the basis for their knowledge other than their familial or social contact with Appellant. This type of reasoning, which the majority accepts, effectively defeats a defendant’s ability to present character evidence. Character witnesses are, in most instances, family and friends. Social and familial contact is the primary manner in which a friend or family will gain knowledge of a person’s community reputation. Nevertheless, all these witnesses lived, interacted, socialized, and, in some cases, worked in the pertinent community. Through living, interacting, socializing, and working in the community, they knew Appellant’s reputation for chastity with children. He had never been accused of such misconduct and was known by them for acting appropriately with children.

The type of community interaction discounted by the PCRA court and majority as a proper basis of knowledge of a person’s character will always be the ground for any character witness’s knowledge of the defendant’s character in the community. Indeed, it is unnecessary for a witness to have specifically discussed a particular character trait with community members in order for the witness to be familiar with that characteristic. Commonwealth v. Gaines, 167 Pa.Super. 485, 75 A.2d 617 (1950).

The end result of the majority’s holding serves to prevent any relative or friend, who necessarily gains knowledge of a person’s reputation through interaction with relatives and friends, from being a character witness. This type of rationale is directly contrary to Weiss, supra, which permits relatives to be character witnesses. The majority’s decision today runs contrary to settled case law permitting a defendant to present evidence of his character in the community from family and friends to establish a character trait that is pertinent for purposes of trial.

The majority and PCRA court further rely upon the Commonwealth’s cross-examination of these witnesses about the basis of their knowledge as the rationale for precluding the testimony in the first instance. This, too, is error. The fact that each witness may be impeached by the Commonwealth as to the basis for their knowledge relates to the weight to be given to their testimony by the jury and not its admissibility in the first instance. The affidavits demonstrate that each witness’s proffered testimony constituted classic character evidence, and Appellant planned to call none to testify about his specific acts relating to friends and family. In sum, the witnesses in question were proper character witnesses. In my view, our case law mandates reversal herein, and I therefore respectfully dissent.