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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BRANDON DEVAU MCCLENDON
Appellant No. 59 WDA 2020
Appeal from the PCRA Order entered December 19, 2019
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0014747-2007
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 17, 2020
Appellant, Brandon Devau McClendon, appeals from the order entered
in the Court of Common Pleas of Allegheny County on December 19, 2019,
following dismissal of his petition for collateral relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. Appellant contends
the PCRA court erred by denying relief because trial counsel’s failure to call
character witnesses constituted ineffectiveness. Upon review, we affirm.
The record reflects that Appellant was charged with, and subsequently
convicted of, attempted murder and aggravated assault stemming from the
September 4, 2007 shooting of Elijah Posey while Posey was sitting in a parked
car in Pittsburgh. Quoting this Court’s memorandum opinion on direct appeal,
the PCRA court recognized that, “[t]o the police, Posey identified Appellant as
his assailant, but he also made a statement to a hospital counselor that others
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may have shot him. . . . At trial, Appellant’s defense focused on the possibility
that someone other than Appellant shot Posey.” PCRA Court Opinion,
12/17/19, at 2 (quoting Commonwealth v. McClendon, 548 WDA 2010,
unpublished memorandum at 2 (Pa. Super. filed November 15, 2011)).
By way of background, Appellant, who was 19 years old at the time of
the shooting, was in an on-again, off-again relationship with 18-year-old
Janya Jenkins, the mother of Appellant’s daughter. Meanwhile, Jenkins had
begun an intimate relationship with Posey, who was 41 years old. “Based on
the police investigation, the Commonwealth alleged Appellant shot Posey due
to a love triangle.” Id.
Appellant’s first trial resulted in a conviction that was reversed by this
Court because “certain remarks made by the prosecutor during the
Commonwealth’s closing argument denied [him] a fair trial.” Id. at n.2.
Appellant was represented in his successful appeal by Carrie Allman, Esquire,
of the Allegheny County Public Defender’s Officer. Attorney Allman then
defended Appellant on retrial in 2012. According to the PCRA judge, who also
presided over both of Appellant’s trials, “[t]he presentation of facts in the 2012
trial did not materially differ from those in the first trial in 2009.” Id. at 3.
At the close of the prosecution’s case on retrial, the trial judge explained
to Appellant that he had no burden to carry and did not have to prove himself
innocent. Notes of Testimony (“N.T.”), Trial, 4/26/12, at 274-75. The judge
explained that Appellant had the option of calling witnesses and indicated that
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“there are fundamentally three types of witnesses[.]” Id. at 275. After
explaining the role of eyewitnesses and alibi witnesses, and after Appellant
indicated his understanding of both, the court stated:
But perhaps the most powerful witness perhaps [sic] is what’s
called character witness, and what a character witness can talk
about is your reputation in the community, not for what they did
with you themselves, but your reputation from interacting with
other people who know you in the community about specific
character traits, like your character for being law abiding and your
character for being peaceful and your character for any of a
number of traits that they could speak to your character in the
community.
Id. at 276. The court then asked Appellant if he understood and Appellant
replied, “Yes, sir.” Id. The court continued, “Now, I don’t need to know
whether or not you are going to call them, but have you had an opportunity
discuss that option with counsel?” Again, Appellant replied, “Yes, sir.” Id.1
Appellant was the sole witness for the defense. Ultimately, the jury
returned convictions of attempted murder and aggravated assault. The trial
court sentenced him to ten to twenty years in prison for attempted homicide,
with no further penalty imposed for aggravated assault. After unsuccessfully
pursuing a direct appeal from his sentence, Appellant filed a timely PCRA
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1 Similarly, the trial judge explained to Appellant the importance and benefit
of calling character witnesses at the beginning of the defense case in
Appellant’s first trial. See N.T., Trial, 7/16/09, at 502-04. Appellant
acknowledged his understanding, indicated he had discussed the topic of
character witnesses with counsel, and stated he would not be calling character
witnesses. Id. at 504.
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petition. Counsel was appointed and filed amended petitions on Appellant’s
behalf. The gist of the argument raised in Appellant’s petition was that
Attorney Allman was ineffective for failing to call three character witnesses at
Appellant’s retrial.2
PCRA counsel requested an evidentiary hearing and the Commonwealth
agreed a hearing was appropriate. The hearing was conducted on November
29, 2017. As of that time, Attorney Allman was employed in the Montgomery
County Public Defender’s Office. Because of a glitch in communications,
Attorney Allman participated by audio conference. Although she was able to
view the proceedings in Allegheny County, the PCRA judge, Appellant, and
other participants in Allegheny County were unable to see her. Consequently,
the court left it up to Appellant whether to proceed or to continue the hearing.
Appellant chose to proceed. N.T., Evidentiary Hearing, 11/29/17, at 6.
During the hearing, counsel for Appellant asked Attorney Allman if she
had discussed the use of character witnesses with Appellant. She replied that
the issue was addressed both in one-on-one meetings in person on February
24 and March 16, 2012, and in writing by letter dated March 5, 2012. N.T.,
Evidentiary Hearing, 11/29/17, at 11. Counsel asked Attorney Allman if
Appellant identified any potential character witnesses, and, specifically, if he
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2 Although Appellant also asserted ineffectiveness for failure to call a fact
witness (Fred Morgan), Appellant is not pursuing that claim in this appeal.
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mentioned Chalcy McClendon, Shamica McClendon, or Chris McClendon as
potential character witnesses.3 Attorney Allman replied that Appellant did not
identify any potential character witnesses and explained that she did not have
any recollection of any of the mentioned names, nor did she have any
reference in her notes to any of those individuals. Id. at 11-12. She indicated
that family members attended the trial and that she spoke extensively with
them throughout the trial concerning the status and procedure. However, she
did not recall “any conversations with them about them being character
witnesses[.]” Id. at 12.
Attorney Allman explained that she ultimately did not call any character
witnesses. When asked if Appellant indicated at the time of trial that he had
people to present as character witnesses, she responded, “Not to my
recollection. My only recollection is that there was an on the record colloquy
as to his right to testify and to call character witnesses, and he did in fact
testify. I don’t recall any discussion about calling character witnesses at the
time of trial.” Id. at 13.
On cross-examination, counsel for the Commonwealth asked Attorney
Allman about the March 5, 2012 letter.4 Attorney Allman noted that beginning
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3Chalcy and Christian are Appellant’s siblings. Shamica is his sister-in-law.
N.T., Evidentiary Hearing, 11/29/17, at 17-24.
4The transcript reflects that participants in the hearing in Allegheny County
had a copy of the March 5, 2012 letter.
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in the third paragraph on page 2 and continuing through to the second to last
paragraph on page 3, she addressed the issue of character witnesses,
complete with citations to case law. Id. at 14. She testified that in the letter,
“I suggested to him that he give me names and contact information.” Id. at
14-15. She also testified as to her notes from three meetings with Appellant
at the Allegheny County Jail. The notes from those meetings, which took place
on February 16, February 24, and March 16, 2012, “reflect that we talked
about character witnesses at those meetings.” Id. at 15.
Chalcy McClendon testified that she was present “for the most part” at
Appellant’s trial. She stated that no one from Attorney Allman’s office
contacted her about being a character witness. Id. at 18. She said Appellant
asked her if she would testify and asked her whether she would have been
willing to testify. She responded affirmatively to both questions. Id. When
asked if it occurred to her that the trial was almost over and she had not been
called to testify, she stated, “I didn’t think about it, no.” Id. at 20. She
explained she “guess[ed] they didn’t need me as a witness.” Id.
Shamica McClendon testified that she told Appellant she would testify
as a character witness. Id. at 22. She claimed she approached Attorney
Allman and they discussed the trial. She stated that that Attorney Allman said
“she might call me.” Id.
Christian McClendon testified that he spoke with Appellant about being
a character witness. He also stated that he approached Attorney Allman and
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asked her about testifying because he was in and out of the trial due to his
work schedule. “I told her I could testify on his behalf, and she was supposed
to call me, but she never did.” Id. at 25. He stated that when he asked
Attorney Allman why she had not called him as a character witness, “she never
gave me a response.” Id.
Appellant also testified at the hearing. When asked if Attorney Allman
discussed the use of character witnesses with him, he replied, “To my
knowledge, not that I can recall. All she discussed with me was the defense
witnesses.” Id. at 29. After PCRA counsel clarified that character witnesses
would be defense witnesses, Appellant stated that he gave Attorney Allman
the names of Chalcy, Shamica, and Christian, along with two others. When
asked if he told Attorney Allman that he wanted her to call character
witnesses, Appellant testified that they “talked about it, and she told me it
probably wouldn’t matter if we called the character witnesses, . . . [h]er whole
thing was she didn’t think they would help me. That was her whole thing.”
Id. at 30.
The following exchange then took place with the PCRA judge:
THE COURT: There was a point in the proceeding when it became
the defense case, and we brought you forward, and one of the
questions I asked you was whether you had the opportunity to
talk to Ms. Allman about calling witnesses, and I explained to you
that there were three types of witnesses. Do you recall that
conversation?
APPELLANT: Yes.
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THE COURT: One of the things I talked to you about and asked
you about was if you had an opportunity to discuss with Ms.
Allman character witnesses, and I routinely go through the same
conversation about the impact of character witnesses. Do you
remember that?
APPELLANT: Yes.
THE COURT: What was your statement?
APPELLANT: I don’t even remember my statement.
Id. at 31.
By order entered December 17, 2019, the PCRA court dismissed
Appellant’s petition. This timely appeal followed. The PCRA court did not
order the filing of a Rule 1925(b) statement but instead issued a statement in
lieu of a Rule 1925(a) opinion on January 24, 2020, indicating that the reasons
for dismissing Appellant’s petition were set forth in a December 17, 2019
opinion issued in conjunction with its dismissal order.
Appellant presents one issue for our consideration:
I. The PCRA court erred in denying relief because trial counsel
was ineffective for failing to call character witnesses during
[Appellant’s] jury trial to testify to his peaceable, non-
violent reputation within the community, where evidence of
good care would have established reasonable doubt for the
jury[.]
Appellant’s Brief at 4 (some capitalization omitted).
As our Supreme Court recently reiterated:
Our standard of review in a PCRA appeal requires us to determine
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601,
617 (2015). The scope of our review is limited to the findings of
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the PCRA court and the evidence of record, which we view in the
light most favorable to the party who prevailed before that court.
Commonwealth v. Hanible, 612 Pa. 183, 30 A.3d 426, 438
(2011). . . . The PCRA court’s factual findings and credibility
determinations, when supported by the record, are binding upon
this Court. Mason, 130 A.3d at 617. However, we review the
PCRA court's legal conclusions de novo. Id.
Commonwealth v. Small, --- A.3d ----, 2020 WL 5833781, at *8 (Pa.
October 1, 2020).
The PCRA court recognized that “[i]n the right circumstance, the failure
to present available character witness testimony may constitute ineffective
assistance of counsel.” PCRA Court Opinion, 12/17/19, at 5 (citing
Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992)). However, the failure
to call character witnesses is not per se ineffectiveness. Id. (citing
Commonwealth v. Treiber, 121 A.3d 435 (Pa. 2015)).
In establishing whether defense counsel was ineffective for failing
to call witnesses, appellant must prove:
(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.
Treiber, 121 A.3d at 463-64 (quoting Commonwealth v. Puksar, 951 A.2d
267, 277 (Pa. 2008)).
The PCRA court first acknowledged that each of three proposed
character witnesses presented testimony at the evidentiary hearing satisfying
the legal requirement that Appellant had a reputation for non-violent behavior.
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PCRA Court Opinion, 12/17/19, at 5 (quoting N.T., Evidentiary Hearing,
11/29/17, at 18 (Chalcy: “he wasn’t known to be violent in the community”),
at 23 (Shamica: “he was known for nonviolence”), and at 27 (Christian: “he
was peaceful and nonviolent”). However, as reflected in the quoted excerpt
from Treiber, to prove ineffectiveness for failing to call a character witness,
Appellant must prove that “counsel knew of, or should have known of, the
existence of the witness[.]” Treiber, 121 A.3d at 464. Here, the PCRA court
found the testimony of Attorney Allman “enlightening” and stated he
“believe[d] Ms. Allman that she was not aware of these possible character
witnesses.” PCRA Court Opinion, 12/17/19, at 6.
Specifically, the court observed that Attorney Allman’s notes from her
meetings with Appellant “did not reveal the names of the three proposed
character witnesses. She was asked point blank by PCRA counsel about each
name. Ms. Allman responded after checking her notes.” Id.5 “The existence
of those notes and the information it contains, or, in this case, does not
contain, is very helpful when questioned about events that took place several
years ago.” Id. The court continued:
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5 We acknowledge the PCRA court’s misstatement reflecting that the court
“noticed” Attorney Allman looking at her notes from “a few feet away.” PCRA
Court Opinion, 12/17/19, at 6. As noted above, Attorney Allman participated
in the hearing by audio conference. We find the misstatement by the court in
an opinion issued more than two years after the hearing to be insignificant.
The transcript clearly reflects that she was reviewing her notes in the course
of her testimony.
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The court notes Ms. Allman was not a neophyte when it came to
this case. She handled [Appellant’s] appeal and achieved a rare
result—a reversal for prosecutorial misconduct. She then handled
the second trial. That is not the norm. As such, her knowledge
of this case and all its nuances, was far superior than that
possessed by the prosecutor. So, with that background, it is very
believable that Ms. Allman recognized early in the game the
importance of character witnesses. The court believes her when
she testified that the topic was raised with [Appellant] – once in
writing and twice in face-to-face conferences. Despite three
attempts to make his case that much better, [Appellant] failed to
identify any potential character witnesses to his lawyer.
Id. (footnote, some capitalization, and citation to evidentiary hearing
transcript omitted).
Based on our review, we have determined that the PCRA court’s findings
of fact, viewed in the light most favorable to the Commonwealth as the
prevailing party, as well as the court’s credibility determinations, are
supported by the record. Further, we find that its conclusions of law are free
from legal error. Therefore, we shall not disturb the court’s order dismissing
Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2020
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