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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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.                                       :
                                               :
DAVID H. DEANGELO,                             :
                                               :
            Appellee                           :   No. 1976 MDA 2016

              Appeal from the PCRA Order November 22, 2016
                in the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005383-2014

BEFORE:     BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED AUGUST 10, 2017

      The Commonwealth of Pennsylvania appeals from the order entered

November 22, 2016, which granted Appellee David H. Deangelo relief in the

form of a new trial on his petition filed pursuant to the Post-Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541–9546. After review, we reverse the PCRA

court’s order.

      Deangelo    was    found   guilty   of   indecent   assault   and   summary

harassment following a bifurcated trial.1 On October 28, 2015, Deangelo was

sentenced to an aggregate term of two years of probation. He did not file

post-sentence motions or an appeal. On August 9, 2016, Deangelo filed a

PCRA petition alleging that, inter alia, trial counsel was ineffective for “failing


1
  The jury sat as factfinder on the indictable offense and found Deangelo
guilty of indecent assault, and the trial court convicted him of summary
harassment.
*Retired Senior Judge assigned to the Superior Court.
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to properly call character witnesses” and failing to “present effective

character witness evidence.” PCRA Petition, 8/9/2016, at 2 (unnumbered).

Following a hearing, the PCRA court determined that trial counsel was

“ineffective in preparing and presenting … character witnesses,” and issued

an order granting Deangelo a new trial. PCRA Court Opinion, 12/7/2016, at

6-7.   This appeal followed.    Both the Commonwealth and the PCRA court

have complied with the mandates of Pa.R.A.P. 1925.

       On appeal, the Commonwealth raises the following issues.

             A. Did the PCRA court err by finding trial counsel
       ineffective for failing to call character witnesses where the record
       demonstrates that counsel called all [13] of [] Deangelo’s
       character witnesses at trial?

            B. Did the PCRA court err as a matter of law by finding
       that Deangelo was prejudiced by trial counsel’s improper
       presentation of character evidence where all of Deangelo’s
       character witnesses testified favorably for the defense including
       several witnesses whose testimony exceeded the permissible
       scope of character evidence under Pa.R.E. 405?

Commonwealth’s Brief at 4 (unnecessary capitalization omitted).

       “Our standard of review in an appeal from the grant or denial of PCRA

relief requires us to determine whether the ruling of the PCRA court is

supported by the record and is free from legal error.” Commonwealth v.

Lesko, 15 A.3d 345, 358 (Pa. 2011) (citation omitted). This Court “will not

disturb findings that are supported by the record.” Commonwealth v.

Watley, 153 A.3d 1034, 1039–40 (Pa. Super. 2016) (citation omitted).




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            When analyzing ineffectiveness claims, we begin with the
     presumption that counsel was effective. [T]he defendant bears
     the burden of proving ineffectiveness. To overcome the
     presumption of effectiveness, a PCRA petitioner must
     demonstrate that: (1) the underlying substantive claim has
     arguable merit; (2) counsel whose effectiveness is being
     challenged did not have a reasonable basis for his or her actions
     or failure to act; and (3) the petitioner suffered prejudice as a
     result of counsel’s deficient performance. A claim of
     ineffectiveness will be denied if the petitioner’s evidence fails to
     meet any of these prongs. To establish the second
     ineffectiveness prong, the petitioner must prove that an
     alternative not chosen offered a potential for success
     substantially greater than the course actually pursued. To
     establish the third prong, the petitioner must show that there is
     a reasonable probability that the outcome of the proceedings
     would have been different but for counsel’s action or inaction.

Id. at 1040 (citations and quotation marks omitted).

     It is well-settled that “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. Hull, 982 A.2d 1020, 1023 (Pa. Super. 2009) (citation

omitted). Our Supreme Court has emphasized that “[i]n a case such as this,

where there are only two direct witnesses involved, credibility of the

witnesses is of paramount importance, and character evidence is critical to

the jury’s determination of credibility. Evidence of good character … may, in

and of itself, create a reasonable doubt of guilt and, thus, require a verdict

of not guilty.” Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992).




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     Instantly, the jury heard testimony from Deangelo, his wife, his

alleged victim, his victim’s co-workers, and the responding officer. N.T.,

6/17-18/2015, at 83-220.      Additionally, defense counsel presented 13

witnesses to testify as to Deangelo’s character for law-abidingness. Id. at

221-266. Of those 13, nine failed to qualify as character witnesses under

Pa.R.E. 405.2 Id. The remaining four individuals did qualify as character

witnesses pursuant to the Rules of Evidence and testified regarding

Denagelo’s positive, long-standing reputation in the community for law-

abidingness. Id.

     At the PCRA hearing, trial counsel testified that Deangelo had given

her the list of 13 potential character witnesses prior to trial. N.T.,

2
   The Rule provides that “[w]hen evidence of a person’s character or
character trait is admissible, it may be proved by testimony about the
person’s reputation. Testimony about the witness’s opinion as to the
character or character trait of the person is not admissible.” Pa.R.E.
405 (emphasis added). Here, the trial court granted the Commonwealth’s
objection to the testimony given by four potential character witnesses,
Merrill Schaeffer, Linda Schaeffer, Tom Ashman, and Michelle Deangelo,
after each admitted under questioning from defense counsel that he or she
did not discuss with members of Deangelo’s community his reputation for
law-abidingness.    N.T., 6/17-18/2015, at 241-247, 253-256, 262-265.
Three additional witnesses, Jerry Oyler, Carolyn Oyler, and Susan Klusaritz,
were withdrawn by defense counsel after each testified that he or she had
not discussed Deanglo’s relevant character trait with members of his
community. Id. at 248-253, 257-259. Notably, all three indicated that he or
she had not done so because there was no need and testified that he or she
knew nothing “negative” about Deangelo’s reputation. Id. Witnesses Judith
Bauer and Jerome Klusaritz lacked the proper foundation for providing
character testimony, but neither was subject to a ruling by the trial court,
nor was either witness withdrawn by counsel. Id. at 231-235, 259-261. Both
Judith Bauer and Jerome Klusaritz testified that he or she was aware
personally of Denagelo’s positive, law-abiding reputation. Id.

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11/3/2016, at 7-8. Counsel contacted the witnesses by telephone but “only

spoke to a few of them” for a few minutes at a time. Id. at 11-12. While

she had presented character witnesses at prior trials, counsel conceded that

she did not spend enough time preparing Deangelo’s character witnesses;

thus, those persons were unaware they could not testify as to specific

instances of, or their subjective belief in, Deangelo’s reputation for law

abidingness. Id. at 13-16.   Counsel acknowledged that she was unable to

rehabilitate nine of the witnesses called to testify at trial, although these

witnesses did testify favorably about Deangelo before their testimony was

objected to or stricken from the record. Id. at 13-26. Following the PCRA

hearing, the PCRA court granted Deangelo’s request for a new trial,

explaining as follows.

             [Deangelo] wanted thirteen witnesses who were his
      friends, former co-workers, and a daughter-in-law, to testify as
      to his good character. All these witnesses lived, interacted,
      socialized and worked in the pertinent community; therefore,
      they had to have known about [DeAngelo’s] reputation as to law
      abidingness, his lack of a criminal record, and the lack of such an
      accusation in his lifetime. Thus, these witnesses could have
      been crucial to his case since the only evidence of what had
      occurred was the controverted testimony of the victim and
      [DeAngelo].

            Nine witnesses, because of cross examination and
      objections by the Commonwealth, did not testify as to
      [Deangelo’s] reputation in the community. Due to their lack of
      preparation by trial counsel, they were eliminated as witnesses
      by defense counsel after they had been called to testify and after
      being sworn in as witnesses. The elimination of the witnesses
      after each one’s attempt to testify as to the positive character of
      [Deangelo] was even worse than not calling them at all. The

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     witnesses were impotent; their failure to present useful
     testimony, as to [Denagelo’s] reputation, cast further suspicion
     on [Deangelo’s] character. These were all people who know
     [Deangelo] very well for years. Each was a person of reputable
     character; but the majority could not even tell the jury what a
     man of positive character [Deangelo] is in the community. The
     jurors were thus free to conclude that the character witnesses
     could not testify as to [Deangelo’s] good character because
     although these are [Deangelo’s] friends, co-workers, and
     relatives, they had nothing positive to say about his character,
     making this strategy counterproductive for [Deangelo].

PCRA Court Opinion, 11/23/2016, at 5-6.

     We    begin   by   noting   that,    specifically   related   to   a   claim   for

ineffectiveness for the failure to call a witness, the PCRA petitioner must

establish that “(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.” Commonwealth v.

Matias, 63 A.3d 807, 810–811 (Pa. Super. 2013). Further, “ineffectiveness

for failing to call a witness will not be found where a defendant fails to

provide affidavits from the alleged witnesses indicating availability and

willingness to cooperate with the defense.” Commonwealth v. O'Bidos,

849 A.2d 243, 249 (Pa. Super. 2004). Deangelo’s PCRA petition did not

contain the affidavits of any of the “impotent” witnesses averring that those

persons could give proper character testimony. Accordingly, his claim fails.




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     Moreover, even if Deangelo had met this burden, and assuming

arguendo that the issue has arguable merit, and that counsel had no

reasonable basis for her lack of preparation, our review of the record

demonstrates that the PCRA court erred in determining that Deangelo

suffered prejudice such that a new trial was warranted. Denagelo was not

deprived completely of the opportunity to present character testimony.

Rather, the fact remains that four persons, Dana Fisher, N.T., 6/17-18/2015,

at 227-228; Robert Lindenmuth, id. at 229-231; Joan Miller, id. at 235-327;

and Steven Miller, id. at 238-241, testified as to Deangelo’s character for

law-abidingness within the confines of Pa.R.E. 405. The remainder of the

proffered witnesses testified favorably on Deangelo’s behalf, even if their

testimony was inadmissible. Notably, the trial court, which sustained the

Commonwealth’s objections to the improper character testimony and

granted a number of motions to strike, did not instruct the jury to disregard

the testimony of those witnesses. Thus, contrary to the PCRA court’s

conclusion, the jury heard from multiple sources that Deangelo was a man of

a law-abiding nature and no suspicion was cast as to Denagelo’s character.

     Moreover, our Supreme Court has held that trial counsel will not be

found ineffective for failing to call a witness whose testimony would be

cumulative. Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008).

We are mindful that, in cases such as this, character evidence is of the

paramount importance. Weiss, 606 A.2d 439. However, we reiterate that

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the jury heard from four character witnesses and nine others, all of whom

testified favorably on behalf of Deangelo.    In his PCRA petition, Deangelo

failed to demonstrate how additional character testimony would have been

anything other than cumulative. Thus, we are unconvinced that Deangelo

was prejudiced.

      Accordingly, because Deangelo did not append to his PCRA petition

affidavits indicating that the nine disputed witnesses could, with additional

preparation, provide proper character testimony, and because the record

does not support the court’s conclusion as to prejudice, we hold that

Deangelo failed to meet his burden of proving counsel’s ineffectiveness and

reverse the order granting him a new trial.

      Order reversed. Jurisdiction relinquished.

P.J.E. Bender joins.

Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/10/2017




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