J-S30033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
            v.                            :
                                          :
HOWARD WILLIAM DEWEESE,                   :
                                          :
                  Appellant               :           No. 1998 MDA 2016

               Appeal from the PCRA Order November 8, 2016
              in the Court of Common Pleas of Dauphin County,
              Criminal Division, No(s): CP-22-CR-0003531-2010

BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 08, 2017

      Howard William DeWeese (“DeWeese”) appeals from the Order

dismissing his first Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm in part and reverse

in part the Order denying PCRA relief, vacate DeWeese’s underlying

judgment of sentence, and remand for resentencing in accordance with this

Memorandum.

      In its Opinion, the PCRA court concisely set forth the relevant factual

and procedural history underlying this appeal.     See PCRA Court Opinion,

11/10/16, at 1-2. We adopt the PCRA court’s recitation as though fully set

forth herein, see id., with the following addendum.

      At trial, the trial court precluded some of the witnesses proffered by

the defense. Specifically, as this Court previously explained,

      the [trial] court precluded [DeWeese] from calling some of his
      so-called “mantra” witnesses [(hereinafter “the excluded mantra
J-S30033-17


     witnesses”), most of whom had served as volunteers on
     DeWeese’s political campaigns, ruling that] the proffered
     testimony would have been cumulative. The trial court noted for
     the record that the [excluded] []mantra[] witnesses would have
     testified that [DeWeese] told [his staff] that “if you engage in
     campaign time you have to use leave slips[]” [(hereinafter
     referred to as “the mantra”)].

Commonwealth       v.    DeWeese,       83   A.3d    1067      (Pa.   Super.    2013)

(unpublished memorandum at 2-3) (citation to record omitted, footnote in

original moved to body). However, we explained that “eight of [DeWeese’s]

witnesses testified to the mantra” at trial. Id. (unpublished memorandum at

8) (quotation marks omitted).        Additionally, at sentencing, the trial court

ordered that the restitution imposed as part of DeWeese’s sentence

($116,668.52) shall be paid directly to the Commonwealth.

     DeWeese appealed his judgment of sentence, asserting, inter alia, that

the trial court erred and deprived him of due process by precluding the

excluded mantra witnesses from testifying.          We ruled that this issue had

been waived for lack of preservation, stating that “[b]ecause we have no

record of what [DeWeese] presented to the [trial] court regarding the

[excluded   mantra]     witnesses’   testimony,     we   are   unable   to     conduct

meaningful appellate review of his allegation that the court abused its

discretion in finding that the proffered testimony was cumulative.”                Id.

(unpublished memorandum at 9); see also id. (stating that “the offers of

proof for [the excluded mantra] witnesses are not in the certified record, in

spite of [DeWeese’s] attempt to argue now that the proffered testimony



                                     -2-
J-S30033-17


would not have been cumulative.”).          The Supreme Court of Pennsylvania

subsequently denied DeWeese’s Petition for allowance of appeal.                See

Commonwealth v. DeWeese, 81 A.3d 75 (Pa. 2013).

          On November 26, 2014, DeWeese filed a PCRA Petition, after which he

filed an Amended PCRA Petition in March 2015. On April 22, 2016, the PCRA

court conducted an evidentiary hearing on the Petition (hereinafter “the

PCRA hearing”).       Therein, several witnesses testified, including DeWeese’s

trial/direct appeal counsel, William C. Costopoulos, Esquire (hereinafter “trial

counsel”), and fourteen of the excluded mantra witnesses, each of whom

stated that they would have presented testimony concerning the mantra at

trial.1

          By an Order entered on November 8, 2016, the PCRA court dismissed

DeWeese’s PCRA Petition.          Thereafter, DeWeese filed the instant timely

appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

errors complained of on appeal.

          DeWeese now presents the following issues for our review:

          1. Did the PCRA court err in [dismissing DeWeese’s] PCRA
             Petition alleging ineffective assistance where [DeWeese]
             established that [trial] counsel was ineffective for failing to
             adequately proffer, or preserve for direct appeal, the
             testimony of fourteen [] [of the excluded mantra]
             witnesses[,] whose noncumulative testimony was essential
             to [DeWeese’s] defense[,] and which undermined the
             credibility of the Commonwealth’s primary witnesses on
             factual elements critical to the charges at issue?

1
  Several of the excluded mantra witnesses testified as defense character
witnesses at trial.


                                     -3-
J-S30033-17



       2. Whether the restitution order in this case was illegal
          because the Commonwealth cannot be a victim under the
          subject criminal statutes?

Brief for Appellant at 4.

             This Court examines PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record. Additionally, we grant great deference to the factual
      findings of the PCRA court[,] and will not disturb those findings
      unless they have no support in the record. In this respect, we
      will not disturb a PCRA court’s ruling if it is supported by
      evidence of record and is free of legal error. However, we afford
      no deference to its legal conclusions.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)

(internal citations, quotation marks and brackets omitted).

      “To obtain relief on a claim of ineffective assistance of counsel, a

petitioner must demonstrate that the underlying claim is of arguable merit,

no reasonable basis existed for counsel’s action or inaction, and counsel’s

error caused prejudice such that there is a reasonable probability that the

result of the proceeding would have been different absent such error.”

Commonwealth v. Beasley, 967 A.2d 376, 383 n.5 (Pa. 2009) (citation

omitted). Concerning the third prong of the ineffectiveness test (hereinafter

“the prejudice prong”), if it is clear that a petitioner has failed to

demonstrate that counsel’s act or omission adversely affected the outcome

of the proceedings, the claim may be dismissed on that basis alone, without

a determination of whether the petitioner met the first and second prongs.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995); see also 42


                                 -4-
J-S30033-17


Pa.C.S.A. § 9543(a)(2)(ii) (noting that in order to be entitled to relief, a

PCRA petitioner alleging ineffective assistance of counsel must establish

that it was of the type “which, in the circumstances of the particular case,

so undermined the truth-determining process that no reliable adjudication

of guilt or innocence could have taken place.”).        This prejudice inquiry

requires consideration of the totality of the evidence. Commonwealth v.

Spotz, 870 A.2d 822, 834 n.15 (Pa. 2005).

      DeWeese first argues that the PCRA court erred in determining that he

was not entitled to collateral relief on his claim that trial counsel was

ineffective for failing to proffer, or preserve for direct appeal, the testimony

of the excluded mantra witnesses.         See Brief for Appellant at 33-57.

According to DeWeese, the proposed testimony of the excluded mantra

witnesses

      was essential to the very crux of [DeWeese’s] case theory, and it
      impeached the Commonwealth’s key witnesses by calling into
      question [these witnesses’] allegations that [DeWeese] had
      rarely made efforts to enforce compliance[, i.e., with the
      mantra] …. However, trial counsel’s failure to make such an
      offer of proof waived [DeWeese’s] ability to challenge [the trial
      court’s] decision[, i.e., to preclude the excluded mantra
      witnesses’ testimony,] on direct appeal, as [the Superior] Court
      ruled that it was without a proper record to determine the
      content of the [excluded mantra] witnesses’ testimony. By
      doing so, [trial counsel] waived a substantial, meritorious
      appellate issue that, if preserved, would have provided a
      reasonable probability that, upon remand[,] and armed with
      testimony essential to [DeWeese’s] defense, the outcome of the
      proceeding would likely have differed.

Id. at 33 (citation to record omitted).



                                  -5-
J-S30033-17


     In its Opinion, the PCRA court concluded that DeWeese’s claim of trial

counsel’s ineffectiveness does not entitle him to relief, determining that (1)

DeWeese failed to establish the prejudice prong; (2) the excluded mantra

witnesses’ testimony was cumulative to that already presented by the

defense; and (3) even if the trial court erred in precluding the testimony of

the excluded mantra witnesses, such error was harmless and caused

DeWeese no prejudice.    See PCRA Court Opinion, 11/10/16, at 7-11. We

agree with the PCRA court’s analysis and determination.2           Given the

cumulative nature of the proposed testimony of the excluded mantra

witnesses, even if trial counsel had proffered their testimony (or adequately

preserved the issue for review on direct appeal), there is no reasonable

probability that there would have been a different result (1) if the excluded

mantra witnesses had testified at trial; or (2) concerning DeWeese’s claim

regarding the excluded mantra witnesses raised on direct appeal.         See

Travaglia, supra.     Accordingly, we affirm based on the PCRA court’s

2
  We have reviewed the testimony offered by the excluded mantra witnesses
at the PCRA hearing.          This testimony supports the PCRA court’s
determination that it would have been cumulative of the evidence presented
at trial by several defense witnesses concerning the mantra, who stated that
DeWeese had frequently repeated the mantra, on many separate occasions,
over a period of years. Moreover, we observe that all of the excluded
mantra witnesses stated on cross-examination at the PCRA hearing that (1)
they did not work for DeWeese during the relevant time period; and (2) they
did not know whether DeWeese’s staff performed campaign work during the
business day. See generally N.T., 4/22/16. Additionally, at trial, the jury
considered considerable incriminatory evidence, including, inter alia, the
testimony of several of DeWeese’s staff that DeWeese ordered them to
perform campaign work on legislative time at the office, a matter about
which the excluded mantra witnesses conceded they have no knowledge.


                                 -6-
J-S30033-17


Opinion in rejecting DeWeese’s first issue.        See PCRA Court Opinion,

11/10/16, at 7-11.

      In his second issue, DeWeese contends that the restitution portion of

his sentence is illegal and must be vacated because the Pennsylvania

Supreme Court has held that the Commonwealth cannot be considered a

direct victim (nor a reimbursable compensating government agency), under

18 Pa.C.S.A. § 1106,3 for purposes of restitution. Brief for Appellant at 57

(citing Commonwealth v. Veon, 150 A.3d 435, 456 (Pa. 2016) (holding

that a restitution order directing payment to the Commonwealth as the

victim of a crime constitutes an illegal sentence)).4 We agree.5

      Here,   the   Commonwealth    is   not   a   victim   or   a   reimbursable

compensating government agency under section 1106. See Veon, 150 A.3d




3
  Section 1106, governing the payment of restitution, provides, inter alia,
that “[u]pon conviction for any crime wherein property has been stolen,
converted or otherwise unlawfully obtained, or its value substantially
decreased as a direct result of the crime, or wherein the victim suffered
personal injury directly resulting from the crime, the offender shall be
sentenced to make restitution in addition to the punishment prescribed
therefor.” 18 Pa.C.S.A. § 1106(a).
4
  Though DeWeese did not raise this claim in his court-ordered Pa.R.A.P.
1925(b) Concise Statement, it is nevertheless preserved for our review,
since challenges to the legality of a sentence cannot be waived. See
Commonwealth v. Foster, 17 A.3d 332, 336 (Pa. 2011) (plurality) (noting
that a challenge to the legality of a sentence presents a non-waivable
jurisdictional issue).
5
  The Commonwealth concedes that the restitution portion of DeWeese’s
sentence is illegal under Veon. See Brief for the Commonwealth at 51-52.


                                 -7-
J-S30033-17


at   454-55.     Accordingly,   DeWeese’s     sentence   of   restitution   to   the

Commonwealth is illegal, and must be vacated. Id. at 455-56.

      Because vacating DeWeese’s restitution sentence may disrupt the trial

court’s overall sentencing scheme, we vacate his judgment of sentence and

remand for resentencing. See Commonwealth v. Hill, 140 A.3d 713, 718

(Pa. Super. 2016) (stating that where vacating a sentence disrupts a trial

court’s overall sentencing scheme, this Court will remand to the trial court

for resentencing); see also Veon, 150 A.3d at 456 (same).

      Based on the foregoing, we vacate DeWeese’s judgment of sentence

and remand for resentencing consistent with this Memorandum. We affirm

the PCRA court’s denial of PCRA relief on DeWeese’s claim of ineffectiveness

of trial counsel, as the claim lacks merit.

      Order denying PCRA relief affirmed in part.        Judgment of sentence

vacated and case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/8/2017




                                   -8-
J-S30033-17




              -9-
                                                                              Circulated 04/27/2017 10:00 AM




COMMONWEAL TH OF PENNSYLVANIA                       IN THE COURT OF COMMON PLEAS
                                                    DAUPHIN COUNTY, PENNSYLVANIA
                      V.
                                                    NO. 3531 CR 2010
H. WILLIAM DEWEESE,
                  Defendant/Petitioner              PCRA

                              MEMORANDUM OPINION
PROCEDURAL AND SACKGROUND HISTORY

      The Superior Court of Pennsylvania        summarized the facts of this case succinctly

in their Memorandum        Opinion of August 16, 2013:

                      For over three decades, Appellant was a member of
             the Pennsylvania General Assembly, representing Greene
             County and portions of Washington and Fayette Counties in
             his capacity as a state representative. At all times relevant
             to. this appeal, Appellant was the highest-ranking member of
             the House Democratic Caucus, and held the position of
             either Speaker of the House or Minority Leader.
                      On December 10, 2009, the twenty-eighth statewide
             investigating      grand     jury   issued      a    presentment
             recommending        that criminal charges be brought again·
             Appellant     and Sharon A. Rodavich,          an employee      in
             Appellant's Waynesburg, Pennsylvania district office, for a
             variety of actions involving the misappropriation of taxpayer
             resources from 2001 through 2006. Criminal charges were
             filed against Appellant and Rodavich on December 15, 2010.
             Appellant filed an omnibus pre-trial motion on July 28, 2011,
              raising issues of, inter alia, and prosecutorial misconduct at
             the preliminary hearing, the constitutionality of the conflict of
              lnterest statute, and venue. On January 6, 2012, the court
             denied the motion asserting prosecutorial             misconduct.
              dismissed the constitutional challenge, and stayed the venue
             issue pending voir dire.
                      A fury trial commenced on January 23, 2012. The
              Commonwealth        presented a total of · ten witnesses and
              introduced sixty-nine exhibits that the trial court admitted into
              evidence. Appellant called forty-two witnesses and entered
              thirteen documents into evidence. During the course of trial,
              the court precluded Appellant from calling some of his so-
              ca!led "mantra" witnesses because the proffered testimony

                                           Page 1 of 11
               would have been cumulative.           The court also limited
               testimony from some campaign volunteers on the basis of
               relevance.     On February 6, 2012, the jury convicted
               Appellant of the charges mentioned previously.
                     · On April- 24,. 2012, the court sentenced Appellant to
             an aggregate term of no less than thirty months nor more
            than sixty months' incarceration, plus restitution in the
             amount of $116,668.52, costs and fines. The-court found
            Appellant eligible under the Recidivism Risk Reduction
             Incentive Act (RRRI), and set his minimum sentence under
             the Act at twenty-two and one-half months. Appellant filed
            timely post-sentence motions that the court . denied on
            August 23, 2012.
(See Superior Court Opinion, 1528 MDA 2012 at p. 1-3).

       Appellant timely appealed to the Pennsylvania Superior Court, which affirmed the

trial court's denial of post sentence motions.               The Petitioner filed a Petition for

Allowance of Appeal with the Pennsylvania Supreme Court on August 25, 2013, which

was denied per curium on August 23, 2013.

               Petitioner filed a timely Post-Conviction Collateral Relief Act ("PCRA")

Petition and is currently before this court on the amended PCRA Petition, which was

filed on March 12, 2015.1      Said Amended Petition asserted three (3) claims for relief:

        1. Petitioner's inability to call fact witnesses in his defense violated his
            constitutional rights to due process.

       2. [Defense counsel} provided ineffective assistance of counsel in failing
          to adequately present and preserve the proffered testimony of these
          seventeen witnesses.

        3. [Defense counsel] provided ineffective assistance of counsel in failing
           to in anyways respond to Sidella's unsolicited, nonresponsive, and
           prejudicial testimony on cross-examination.


1
 When the trial judge, the Honorable Todd A. Hoover, went out on indefinite medical leave, and ultimately
retired, this matter was re-assigned to the Honorable Bernard F. Coates. With the untimely death of
Judge Coates, this matter was re-assigned to this Judge.

                                             Page 2 of 11
(Petitioner H. William DeWeese's Amended                   Petition under the Post-Conviction                Relief
Act, filed March 12, 2015 at p. 10-33).

          During the pre-hearing           conference,   the Court learned that a witness at the trial

was previously         represented by. this judge prior to. his election to the bench, and

disclosed same to counsel.             The Commonwealth           made a request for recusal out of an

"abundance         of caution",     and was allowed to place concerns                   on the record at the

beginning of the evidentiary               hearing on April 22, 2016.          At that time Petitioner was

colloquyed as to his waiver of any perceived conflict.

          During the evidentiary           hearing, counsel were allowed to question fourteen (14) of

the witnesses who were precluded by the trial court from testifying at trial, as well as the

trial   counsel,    William   Costopoulous,          Esquire,   and   K.      Kenneth     Brown,     ll, Esquire.

Following the evideniiary           hearing counsel were allowed to submit proposed findings of

facts and conclusions of law. This Opinion and Order follow.


DISCUSSION

          This Court must first address the issue of recusal. Although this Court addressed

the issue on the record during the April 22, 2016 proceedings, the Court feels compelled

to supplement the record.             A review of the entire record shows that there was no need

for this Court to evaluate the "credibility" of either the trial testimony                of Brenda Devecka

or the hearing testimony of Attorney Brown based upon the unique nature of the present

action.

          Ms.   Devecka's         direct     testimony   was    essentially     consistent    with     the    other

Commonwealth          witnesses.       Her testimony on cross-examination was the first mention of


                                                   Page 3 of 11
the Petitioner's "mantra" testimony which was consistent with other defense witnesses

as well as the proffered testimony of the fourteen (14) witnesses who were denied the

opportunity     fc.testify     at trial, but testified at .the evidentiary   hearinq on April 22, 2016.

Similarly,    Mr. Brown's testimony simply directed the Court's attention to portions of                 the

trial record which allegedly undermined the Petitioner's claim for relief.

          As this Court's subsequent           discussion of the case will reveal,       the testimony of

Ms. Devecka and Attorney Brown had no effect on this Court's evaluation                       of the case.

Had this Court encountered             such a problem, it would have re-visited the original ruling

on the recusal.

          In Paragraphs        14 and 15 of the Amended PCRA petition, Petitioner raises three

(3) issues, and we will address the third one first:

               [T]hat Mr. Costopolous provided ineffective assistance of
               counsel in failing to object to or otherwise ameliorate the
               unsolicited, nonresponsive, and prejudicial testimony of key
               prosecution witness Kevin Sidella and the result of the
               proceeding would have been different absent this error.
(Petitioner H. William DeWeese's Amended Petition under the Post-Conviction                            Relief
Act, filed March 12, 2015 at p, 4).

          To prevail on a claim of ineffective             assistance   of counsel,     a petitioner    must

overcome the presumption              that counsel is effective by establishing     the three (3) prongs

as set forth in Commonwealth               v. Pierce2:   (1) the underlying    legal claim has arguable

merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the

petitioner suffered prejudice because of.counsel's ineffectiveness.                   In analyzing a claim

of ineffective assistance of counsel, the Supreme Court of Pennsylvania                   has held:


---------¥--·----
2
    527 A.2d 973 (Pa. 1987).

                                                  Page 4 of 11
           With regard to the second, reasonable basis prong, "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." (citation omitted)    We will conclude that. counsel's
           chosen strategy lacked a reasonable basis only if Appellant
            proves that "an alternative not chosen offered a potential for
           success substantially      greater than the course actually
            pursued." (citation omitted) To establish the third, prejudice
            prong, the petitioner must show that there is a reasonable
           probability that the outcome cf the proceedings would have
            been different but for counsel's ineffectiveness.     (citation
           omitted)    We stress that boilerplate allegations and bald
           assertions of no reasonable basis and/or ensuing prejudice
           cannot satisfy a petitioner's burden to prove that counsel
           was ineffective.
(Commonwealth v. Paddy, 15 A.3d 431 (Pa. 2011 )).

       Petitioner's   challenge· arises   from the following   exchange   during   the cross-

examination of Kevin Sidella:

              Q:      My question is did Bill DeWeese tell you to your face
              in the presence of others, to you, if you're doing campaign
              work, Mr. Sidel!a, make sure you're doing it on legislative -
              make sure you're doing it on leave time?
              A:      Actually, I did answer your question.   And I said I
              don't recall a time where he told me that in the presence of
              others.

               Q:    All right. Now, does this refresh your memory?         Do
               you know Shirl Barnhart?
               A:    He was the township supervisor.

               Q:      Did Mr. DeWeese tell you unequivocally          in the
               presence of Shirl Barnhart to use vacation, comp or personal
               time when doing campaign work?
               A:      I can count tfle amount of times I've been around Mrs.
               Barnhart probably on one hand. I don't remember him - I
               don't remember that interaction.

               Q:      Do you know Jay Allen Blaker?
               A:      l know the name. I don't remember a face.


                                          Page 5 of 11
                 Q:      You don't remember DeWeese telling you to make
                 sure, Mr. Sidella, that you were on leave time if you're
                 campaigning in - with him, overhearing it in your presence?
                 A:    . Well, l can't even picture his face so, no, I don't
                 remember it.

                 Q:      Do you know Sam Boyd?
                 A:      I remember Sam Boyd.

                 Q:Do you remember being with Sam Boyd when
            Deweese told you over and over that campaign work was
            not to be done on legislative time? Does that referse your
            member of a specific occasion?
            A:     I don't remember that interaction with Mr. Boyd, but all
            of these people are people Bill would have said it in front of,
            again, to cover his butt.
(Notes of Testimony, Trial ("N.T. Trial") at 556:22 - 558:9). The contention is that

Attorney Costopolous' failure "to object to or otherwise ameliorate Sidella's unsolicited,

nonresponsive and prejudicial testimony during cross-examination" when he responded:

"I don't remember that interaction with Mr. Body, but all of these people are people Bill

would have said it in front of, again, to cover his butt." (N.T. Trial at 558:6-9).

          Petitioner is correct in concluding that the second part of that answer was

unresponsive and prejudicial.             However, that statement was nothing new when

compared to his entire direct testimony. Instead of objecting, counsel simply moved on

to identify other witnesses who would state that the Petitioner made repeated assertions

that campaign work would have to be done on leave time in the presence of Sidella.

          This Court listened to the testimony of Attorney Costopolous when he explained

his tactical decision, and found his testimony credible.3 More importantly, looking at Mr.

Sidella's     testimony in context, it would appear that an objection would have

----··-------
3
    See Notes of Testimony, PCRA Evidentiary Hearing ('"N.T. PCRA") at 153-56.

                                              Page 6 of 11
accomplished     little tactically, but would have risked emphasizing the statement further,

even if the objection would have been sustained." Accord\ngly, Petitioner's claim of

ineffectivenessfails as there is no arquable merit to the underlying legal claim.

        Petitioner's remaining two issues are inter-related: (1) Petitioner's inability              to   call

fact witnesses in his defense violated his constitutional right to due process; and (2) Mr.

Costopolous provided ineffective assistance of counsel in failing to adequately present

and preserve the proffered testimony of these seventeen witnesses.                       Essentially, trial

counsel took a direct appeal to the Superior Court of Pennsylvania on the trial court's

denial of Petitioner's request to call seventeen (17) witnesses at trial. That direct appeal

was denied, and Petitioner's conviction was affirmed by the Superior Court on August

16, 2013.     The Superior Court concluded that appellate counsel failed to adequately

preserve the record for fair appeal:

          Because we have no record of what Appellant presented to
          the court regarding proposed witnesses' testimony, we are
           unable to conduct meaningful appellate review of his
           allegation that the court abused its discretion in finding that
          the proffered testimony was cumulative. Hence, Appellant's
         -first issue is waived.
Commonwealth v. DeWeese, 1528 MDA 2012 at 7-8.

        Accordingly, this Court is bound to accept the determination of the Superior Court

that appellate counsel was ineffective.5 That would make the final PCRA issue ripe for

decision: did the Petitioner's inability to call fact witnesses in his defense violate his

constitutional right to due process?
-·-·-------
4
  See Commonwealth v. Charleston, 94 A.3d 1012, 1023 (Pa. Super. 2014).
5
  Although this Court fully appreciates the fact that trial counsel attempted on a number of occasions lo
place his proffer on the record, and that the trial court assured him that his objection was preserved, this
Court is bound by the determination of the Superior Court. Therefore, this Court must conclude that trial
counsel was ineffective for failing to create a legally sufficient record for appeal.

                                               Page 7 of 11
           In reviewing the trial court transcript,   this Court shared the Superior    Court's

 frustration    in trying to determine exactly what proffered testimony was presented    to the

· trial court prior   to the court's ruling. It would appear that there was an extensive off-
 record discussion as· to which witnesses the defense intended to call.            Then, the

 following morning, the court made a ruling to allow only one more "mantra" witness.6

 There was an extensive discussion on the record with attempts to place the proffer on

 the record.' but unfortunately, there was not a lot of detail provided.    Hence, this Court

 cannot be sure if the proffer on the record adequately documented what was placed

 before the court, off the record, the evening before.

           Nevertheless, it is clear that the defense had not only anticipated calling a

 significant number of "mantra witnesses", the defense strategy appeared to be based

 substantially on those witnesses.       When the Defendant testified, he specifically stated

 that he had between twenty (20) and thirty (30) witnesses who would substantiate his

 claims.       Similarly, the defendant, while cross-examining one of the Commonwealth's

 star witnesses, Kevin Sidella, succeeded in having Mr. Sidelfa testify that he was never

 told by the Defendant in front of campaign volunteers to make sure that he was not on

 state time.        Obviously, defense counsel intended to call a significant number of

 witnesses who would testify to the contrary - thereby calling Mr. Sidella's credibility into

 question




 6
     See N.T Trial at 1010-12.
 7
     See NT. Trial at 1013-14.

                                           Page 8 of 11
        When      the     Superior     Court     decided         this    case    on    direct     appeal,   it   cited

Commonwealth        v. Williams, 58 A.2d 796 (Pa. Super. 2012) when it stated the limited

appellate standard of review on evidentiary rulings:

           The admissibility of evidence· is a matter of trial court
            discretion and ruling thereon will only be reversed upon· a
            showing that the trial court abused that discretion. An abuse
            of discretion may not be found merely because an appellate
            court might have reached a different conclusion, but requires
           a result      of manifest       unreasonableness.    or partiality,
            prejudice, bias, or ill-will, or such lack of support so as to be
            clearly erroneous.
Commonwealth v. Williams, 58 A.2d 796, 800 (Pa. Super. 2012).

        Since    evidence      is deemed       to be relevant            if it logically   tends to establish        a

material fact in the case, tends to make                   a fact at issue more or less probable, or

supports a reasonable inference or presumption                     regarding a material fact, it is clear that

the proffered testimony was relevant.              Whether it was cumulative               is   a question best left

to the sound discretion of the trial court.

        If this Court were to rule on the issue at trial, defense counsel would have been

allowed to identify the "cumulative"             witnesses       and state that their testimony would be

substantially    similar to the previous "mantra" witnesses                  (similar to the manner by which

the cumulative       character       witnesses     testified).          Such a ruling would          have allowed

defense    counsel to satisfy         Defendant's        promise to provide twenty               (20) to thirty (30)

witnesses,      and more       importantly,      allow    defense         counsel     to further     challenge     Mr.

Sidella's credibility.

        However,         the test for reversal       is not whether             a reviewing       court would     rule

differently,    but rather,    the test is whether           there       is manifest       unreasonableness.        or


                                                  Page 9 .of 11
partiality, prejudice, bias, or ill-wil!.8     In this case, the transcript   reveals no evidence of

partiality, prejudice, bias, or ill-will.      Instead, there appeared to be some level of trial

fatigue and an obvious desire to wind up the trial. Therefore, this Court cannot find that·

there was an abuse of discretion.

          In the event that the error was an abuse of discretion, the error would have been

harmless since an opposite ruling would not have affected the outcome of the trial. The

doctrine of harmless error is:

                    A technique of appellate review designed to advance judicial
           economy by obviating the necessity for a retrial where the
           appellate court is convinced that a trial error was harmless
           beyond a reasonable doubt. Its purpose is premised on the
           well-settled proposition that ''[a] defendant is entitled to a fair
           trial but not a perfect one."
Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012), citing Commonwealth                            v.

Thornton, 431 A.2d 248, 251 (Pa. 1981).

          In the Commonwealth's          case in chief, the Defendant's       own testimony   before a

grand     jury was introduced.         Essentially, the Defendant    admitted    his culpability   under

oath.     That testimony,        combined   with the testimony    of the ten (10) Commonwealth's

witnesses,        was sufficient    to prove the Defendant's     guilt beyond a reasonable         doubt.

Defense          counsel succeeded      in calling forty-two   (42) witnesses    (including   character

witnesses).         The addition      of the testimony    from the fourteen      (14) witnesses      who

subsequently         testified   at the evidentiary   hearing on April 22, 2-16,      would not have

sufficiently      undermined       the Commonwealth's     case to alter the verdict.       ft is equally

possible that the result of calling the other witnesses             may have made them actually


8
    See Willi~     supra.

                                               Page 10 of 11
sound   like "mantra"   witnesses   and thereby   further   undermine   the defense's   case.

Therefore,   if there was any error, said error would       have been harmless    beyond    a

reasonable doubt.

        Accordingly, we enter the following Order:




                            (This space intentiona!Jy left blank.)




                                       Page 11 of 11
COMMONWEAL TH OF PENNSYLVANIA                                 IN THE COURT OF COMMON PLEAS
                                                              DAUPHIN COUNTY, PENNSYLVANIA
                     v.
                                                              NO. 3531 CR 2010
H. WILLIAM D.EWEESE,
              · Defendant/Petitioner                        : PCRA·

                                                    ORDER
      AND NOW, this 81h day of November, 2016, upon consideration of the Amended

Petition Under the Post Conviction Relief Act, the Commonwealth's Response thereto.

and the evidentiary hearing held on April 22, 2016, IT IS HEREBY ORDERED that said

Amended Petition is DISMISSED.

      Petitioner is hereby advised of the right to the appeal this Order to the Superior

Court within thirty (30) days from the date of this Order.                   The Clerk of Courts is

directed to send a copy of this Order to the Petitioner by certified mail, return

receipt requested.

                                                              BY THE COURT:




                               Postman<

                                 Here
                                                                                                 ((\o:si
                                                        Street, Suite 3402, Philadelphia, PA 19103

                          W-,fYlCI      ·   Op, f\11J1.,:
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