Appeal from the PCRA Order entered July 14, 2008 In the Court of Common Pleas of Fayette County Criminal Nos.: CP-26-CR-0000624-2003, CP-26-CR-0001306-2003.
The opinion of the court was delivered by: Fitzgerald, J.
BEFORE: STEVENS, DONOHUE, and FITZGERALD,*fn1 JJ.
¶ 1 The Commonwealth of Pennsylvania files this appeal from the order entered in the Fayette County Court of Common Pleas, which granted relief to Appellee, Rick Elwood Hull, based on his petition filed pursuant to the Post Conviction Relief Act ("PCRA").*fn2 We hold that counsel lacked a reasonable basis for failing to call good character witnesses based on his overall trial strategy to show that the children were lying. Specifically, we hold that trial counsel may not state a broad concern that opposing counsel might introduce bad character evidence on cross-examination without having conducted any kind of investigation to determine if, in fact, there exists bad-character evidence. Accordingly, we affirm.
¶ 2 Appellee was convicted by a jury in 2004 of involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, indecent exposure, and corruption of minors, involving allegations of sexual acts performed on his adopted daughter. The only evidence presented at trial was the recollection of witnesses, including those of the victim and her brother, of the events. The victim's brothers, who Appellee also adopted, testified that Appellee and his wife regularly struck them. Appellee was sentenced to an aggregate sentence of five to fifteen years' imprisonment. The trial court further required Appellee to comply with the lifetime registration requirements of 42 Pa.C.S. § 9795.1(b)(2) on the conviction for involuntary deviate sexual intercourse. This Court affirmed his judgment of sentence. Commonwealth v. Hull, 902 A.2d 977 (Pa. Super. 2006) (unpublished memorandum). Appellee did not petition for allowance of appeal with our Supreme Court.
¶ 3 Appellee filed a PCRA petition in 2007, alleging ineffectiveness of counsel due to failure to present character witnesses. It is not contested that there were available witnesses who were willing and able to testify as to Appellee's good character at trial. The PCRA court granted relief, finding counsel ineffective based on his failure to call character witnesses. The PCRA court therefore granted a new trial. The Commonwealth timely appealed.
¶ 4 The Commonwealth raises two issues:
Whether the court erred in granting Appellee a new trial based on trial counsel's failure to introduce testimony of various character witnesses produced by the defendant? Whether the evidence at trial was so overwhelming that the failure to introduce such testimony was harmless error?
Commonwealth's Brief at 3.
¶ 5 "In addressing the grant or denial of post-conviction relief, we consider whether the PCRA court's conclusions are supported by record evidence and are free of legal error." Commonwealth v. Sattazahn, 597 Pa. 648, 669, 952 A.2d 640, 652 (2008). "We must accord great deference to the findings of the PCRA court, and such findings will not be disturbed unless they have no support in the record." Commonwealth v. Scassera, 965 A.2d 247, 249 (Pa. Super. 2009).
¶ 6 The Commonwealth argues that the PCRA court erred in finding no reasonable explanation for trial counsel's approach. See PCRA Ct. Op., filed 7/15/08, at 9. The Commonwealth contends it was a calculated decision by counsel not to call character witnesses. The Commonwealth finds reasonable trial counsel's conclusion that Appellee's most successful strategy was to paint a picture of Appellee's house as a miserable place to live, motivating the children to fabricate a story in order to facilitate their removal from the house. The Commonwealth also argues the PCRA court erred when it found that counsel's ineffectiveness led to actual prejudice. See PCRA Ct. Op. at 12. The Commonwealth submits that the outcome of the proceedings would not have been any different if character evidence had been introduced. We disagree.
¶ 7 In order to succeed on a claim of ineffective assistance of counsel:
The petitioner in such matters is required to make the following showing in order to succeed with such a claim:
(1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. The failure to satisfy any prong of this test will cause the entire claim to fail. Finally, counsel is presumed to be effective, and petitioner has the burden of proving otherwise.
Commonwealth v. Harris, 972 A.2d 1196, 1203 (Pa. Super. 2009) (citations omitted). "Evidence 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. Harris, 785 A.2d 998, 1000 (Pa. Super. 2001) (citing Commonwealth v. Luther, 463 A.2d 1073, 1077 (Pa. Super. 1983)).
¶ 8 Instantly, the PCRA court acted within its discretion when it decided the underlying claim had merit:
In this case, no one other than G.H. testified as to the acts upon which the charges were based and there were no physical findings to corroborate the acts. Therefore, the credibility of the witnesses was of paramount importance, and character evidence is critical to a jury's determination of credibility. Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992). The failure to present available character evidence may constitute ineffective assistance of counsel. Commonwealth v. Harris, 785 A.2d 998 (Pa. Super. 2001). The defendant's claim is, therefore, not without merit.
PCRA Ct. Op. at 8. The Commonwealth does not contest this aspect of the PCRA court's determination.
¶ 9 Next, "we apply the 'reasonable basis' test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective." Weiss, 530 Pa. at 5-6, 606 A.2d at 441-42; see also Commonwealth v. Blount, 538 Pa. 156, 170-71, 647 A.2d 199, 207 (1994) ("[D]efense counsel's decision was not a tactical one made after weighing all of the alternatives, but was based on the fact that he had failed to interview and prepare potential character witnesses, and consult with his client thereto. These failures by counsel were precipitated by defense counsel's perception that familial character witnesses were per se worthless." (quotation omitted)). "The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis." Blount, 538 Pa. at 171, 647 A.2d at 207 (quoting Commonwealth ex rel. Washington & Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967)). Counsel has a reasonable, strategic basis for not calling character witnesses if he has a legitimate reason to believe that the Commonwealth would cross-examine the witnesses concerning bad-character evidence. See Commonwealth v. Van Horn, 797 A.2d 983, 988 (Pa. Super. 2002) (finding counsel's strategy not to call client's relatives as character witnesses reasonable because of client's prior convictions of burglary and statutory rape) (citing Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516 (1997)).
¶ 10 It is undisputed that counsel's stated strategy was to show that "these children were lying and because they weren't happy there, they wanted to go home to Lancaster where they had a mother who, I guess, essentially let them do whatever they wanted to do, run the streets, and that they wanted to go home." N.T. PCRA Hearing, 5/16/07, at 18. If counsel had presented character witnesses, such testimony would have been consistent with this strategy because it could have made Appellee's story, that the children were making up these accusations, more believable. By portraying Appellee as a good man who would emphasize morals and discipline, counsel would have had an opportunity to enhance his strategy of proving that the children had a motivation to lie about their accusations. Counsel, however, chose not to present these character witnesses; accordingly, we will review whether counsel had reason to believe that any negative consequences would outweigh this positive aspect.
¶ 11 Initially, counsel justified his failure to call character witnesses by claiming that their testimony was irrelevant because they had no information about the case, a justification which counsel, on cross-examination, admitted was erroneous:
Q: What's the purpose of calling character witnesses?
A: The purpose of calling character witnesses?
Q: Yes, the purpose of calling character witnesses.
A: Typically, to testify as to an individual's reputation in the community.
Q: So it wouldn't make any difference whether they knew anything about the case, would it?
Q: You said that was one of your concerns, that they didn't have any information about the case, you remember saying that, don't you?
Q: It has absolutely nothing to do with a good character ...