J-S45006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GARY CALHOUN,

                            Appellant               No. 848 WDA 2015


                 Appeal from the PCRA Order of April 28, 2015
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000449-2012


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED JULY 11, 2016

        Appellant, Gary Calhoun, appeals from the order entered on April 28,

2015, denying his petition filed under the Post-Conviction Relief Act (PCRA),

42 Pa.C.S.A. § 9541-9546. We affirm.

        During Appellant’s direct appeal, we summarized the facts underlying

his conviction and sentence as follows:

          [Appellant] was charged with one count of corruption of
          minors[1] and two counts each of indecent assault[2] and
          endangering the welfare of children[3] after his daughter,
          H.C., disclosed that [Appellant] repeatedly had her remove
          her pants and underwear, ostensibly so that [Appellant]
____________________________________________


1
    18 Pa.C.S.A. § 6301(a)(1)(ii).
2
    18 Pa.C.S.A. § 3126(a)(7).
3
    18 Pa.C.S.A. § 4304(a)(1).



*Retired Senior Judge assigned to the Superior Court.
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        could check to see if she was wiping properly, and touched
        her vaginal area, rubbing his fingers in a circular motion. A
        jury convicted [Appellant] of one count of corruption of
        minors and, on December 17, 2013, the trial court
        sentenced him to a mandatory term of twenty-five years in
        prison pursuant to 42 Pa.C.S.A. § 9781.2.[fn.1] [Appellant]
        was also found to be a sexually violent predator pursuant to
        42 Pa.C.S.A. § 9792 and was directed to comply with the
        registration provisions of Megan’s Law IV.

           [fn.1] Section 9718.2 imposes a mandatory twenty-five-
           year sentence on offenders who have a prior conviction for
           certain offenses enumerated in 42 Pa.C.S.A. § 9799.14.
           [Appellant] was convicted in 1993 of multiple such
           offenses in relation to the sexual abuse of a daughter from
           a previous marriage.

Commonwealth       v.   Calhoun,    93    WDA   2014   (Pa.   Super.    2014)

(memorandum opinion).     Appellant filed a timely notice of appeal and we

affirmed his judgment of sentence on November 12, 2014.

     On January 1, 2015, Appellant filed a pro se petition for post-

conviction collateral relief. The PCRA court appointed counsel and counsel

later filed an amended PCRA petition on Appellant’s behalf. Within the PCRA

petition, Appellant alleged that his trial counsel was ineffective for the

following reasons: 1) “for failing to investigate the circumstances in which

the allegations of sexual abuse surfaced [and] for failing to investigate or

interview Christina Gibson who was present at the time the allegations were

set forth by [H.C.];” 2) “for failing to investigate and present medical

records supporting the medical conditions of the victim relevant to

establishing a viable component of [Appellant’s] defense;” 3) “for failing to

subpoena the attendance and testimony at trial of Mr. William Ward, a

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former employee of Cambria County Children [and] Youth;” 4) “for failing to

elicit and present school records of [E.C.] and the other children, medical

records of [M.C.] and [G.C.] and divorce records and correspondence as

[Appellant] requested to combat inferences and allegations made by the

Commonwealth;” and, 5) “for failing to object to the presence of the jury

during testimony regarding competency of the minors [H.C.] and [M.C.].”

Amended PCRA Petition, 3/12/15, at 3-6 (internal bolding omitted) (some

internal capitalization omitted).

      On March 26, 2015, the PCRA court held a hearing on Appellant’s

petition.   During the PCRA hearing, Appellant presented the testimony of

both he and his trial counsel, Arthur McQuillan, Esquire (hereinafter

“Attorney McQuillan” or “trial counsel”).    Appellant did not present the

testimony of Christina Gibson or William Ward. Further, during the hearing,

Appellant did not “present medical records supporting the medical conditions

of the victim” and Appellant did not “present school records of [E.C.] and the

other children, medical records of [M.C.] and [G.C.] and divorce records and

correspondence.” Amended PCRA Petition, 3/12/15, at 3-6.




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       On April 28, 2015, the PCRA court entered an order denying

Appellant’s PCRA petition. Appellant filed a timely notice of appeal and now

raises the following issues:4

         [1.] Whether trial counsel was ineffective for failing to
         investigate and interview Christina Gibson, a witness
         present at the time in which the allegations of sexual abuse
         against [Appellant] surfaced?

         [2.] Whether trial counsel was ineffective for failing to
         investigate and present medical records and testimony on
         Appellant’s behalf supporting the asserted defense of good
         faith medical and hygienic [purpose]?

         [3.] Whether trial counsel was ineffective for failing to
         subpoena or request the attendance and testimony at trial
         of William Ward, a former employee of Cambria County
         Children and Youth Services?

         [4.] Whether trial counsel was ineffective for failing to elicit
         and present school records of Appellant’s other children as
         well as divorce records and correspondence as Appellant
         requested prior to trial in order to combat inferences and
         allegations made by the Commonwealth?

         [5.] Whether trial counsel was ineffective for failing to
         object to the presence of the jury during competency
         testimony of [] Appellant’s minor children, which included
         the testimony of his accuser, H.C.?

Appellant’s Brief at 2.



____________________________________________


4
  The PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). See Pa.R.A.P. 1925(b). Appellant complied and, within
his Rule 1925(b) statement, Appellant listed the five issues currently raised
on appeal.



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      We review an order granting or denying PCRA relief “to determine

whether the PCRA court’s decision is supported by evidence of record and

whether its decision is free from legal error.” Commonwealth v. Liebel,

825 A.2d 630, 632 (Pa. 2003), citing Commonwealth v. Carpenter, 725

A.2d 154, 159 (Pa. 1999).       In order to be eligible for relief, the appellant

must plead and prove by a preponderance of the evidence that his conviction

resulted from an error or defect under 42 Pa.C.S.A. § 9543(a)(2). One such

eligible error is “ineffective assistance of counsel 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.”          42

Pa.C.S.A. § 9543(a)(2)(ii).

      Trial counsel is presumed to be effective and the appellant has the

burden of proving ineffectiveness. Commonwealth v. Howard, 749 A.2d

941, 946 (Pa. Super. 2000).       To succeed on an ineffectiveness of counsel

claim, the appellant must show:

        (1) that the claim of counsel’s ineffectiveness has arguable
        merit; (2) that counsel had no reasonable strategic basis for
        his action or inaction; and (3) that the error of counsel
        prejudiced the [appellant], i.e., that there is a reasonable
        probability that, but for the error of counsel, the outcome of
        the proceeding would have been different.

Id.   If Appellant fails to satisfy any prong of the test, the ineffectiveness

claim must be rejected.       Commonwealth v. Fulton, 830 A.2d 567, 572

(Pa. 2003).




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      To establish the reasonable basis prong, we must look to see whether

trial counsel’s strategy was “so unreasonable that no competent lawyer

would have chosen that course of conduct.” Commonwealth v. Williams,

640 A.2d 1251, 1265 (Pa. 1994). An attorney’s trial strategy “will not be

found to have lacked a reasonable basis unless it is proven that an

alternative not chosen offered a potential for success substantially greater

than the course actually pursued.” Commonwealth v. Howard, 719 A.2d

233, 237 (Pa. 1998).      Further, if an appellant has clearly not met the

prejudice prong, a court may dismiss the claim on that basis alone and need

not   determine    whether    the   other   two   prongs    have   been    met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

      In his first issue, Appellant argues trial counsel was ineffective for

failing to interview and investigate Christina Gibson. Appellant’s Brief at 8.

      To establish trial counsel was ineffective for failing to call a witness,

Appellant must show: “(1) the witness existed; (2) the witness was

available; (3) counsel knew [] of the existence of the witness; (4) the

witness was willing to testify for the defense; and (5) the absence of the

testimony was so prejudicial to [appellant] to have denied [him] a fair trial.”

Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011).                 When the

Commonwealth’s case depends on the credibility of witnesses, trial counsel

“must explore the testimony of any witness . . . whose testimony might cast




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doubt      on    the   testimony       of       the   Commonwealth’s          witnesses.”

Commonwealth v. McCaskill, 468 A.2d 472, 477 (Pa. Super. 1983).

        However, “the question of failing to interview a witness is distinct from

failure to call a witness to testify.” Commonwealth v. Dennis, 950 A.2d

945, 960 (Pa. 2008).        A claim that trial counsel did not interview or

investigate a known witness “presents an issue of arguable merit where the

record demonstrates that counsel did not perform an investigation.”

Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013). Further,

failing to investigate a known witness can be unreasonable per se; however,

an appellant must still show prejudice from this failure. Id., citing Dennis,

950 A.2d at 960.

        Here, Appellant and the Commonwealth both agree upon the existence

of   Christina   Gibson   and   that    trial     counsel   knew   of   her    existence.

Commonwealth’s Brief at 5. However, Christina Gibson did not testify during

the PCRA hearing and Appellant did not introduce an affidavit setting forth

Christina Gibson’s relevant knowledge or how she could “cast doubt on the

allegations of abuse.” Appellant’s Brief at 12. Thus, there is no evidence

that the failure to interview or investigate Christina Gibson caused Appellant

prejudice. See Dennis, 950 A.2d at 961 (“the burden on [a]ppellant in this

case remains to plead and prove sufficient prejudice – i.e., a reasonable

probability that the outcome of trial would have been different had counsel




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interviewed and/or called [the particular individual] to the stand”). As such,

Appellant’s first claim on appeal necessarily fails.

      In his second issue, Appellant argues trial counsel was ineffective for

failing to present medical records showing H.C.’s medical conditions relating

to hygiene. Appellant’s Brief at 13. This claim fails because Appellant did

not present any of H.C.’s medical records during the PCRA hearing and

Appellant has never specified which medical records trial counsel should

have introduced during trial.       Therefore, with respect to this claim of

ineffectiveness, Appellant did not satisfy his burden of production or

persuasion on any of the          ineffective   assistance   of counsel prongs.

Appellant’s claim on appeal thus fails.

      In his third issue, Appellant argues that trial counsel was ineffective for

failing to call William Ward to testify, instead only reading part of his report

at trial. Appellant’s Brief at 16. As stated above, to establish counsel was

ineffective for failing to call a witness, Appellant must show: “(1) the witness

existed; (2) the witness was available; (3) counsel knew [] of the existence

of the witness; (4) the witness was willing to testify for the defense; and (5)

the absence [] was so prejudicial to [appellant] to have denied him a fair

trial.” Dennis, 17 A.3d at 302.

      Appellant’s claim on appeal fails because, during the PCRA hearing,

Attorney McQuillan testified that Mr. Ward was unavailable to testify at trial.

N.T. PCRA Hearing, 3/26/15 at 39 (“Q: Was that your assumption prior to


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reading the stipulation into the record that [Mr. Ward] was unavailable to

testify?; [Attorney McQuillan]: Yes, most certainly.     That was discussed in

chambers, and [the trial court] indicated [Mr. Ward] was going to be

declared as an unavailable witness”).     Further, the PCRA court found as a

fact that Attorney McQuillan was not ineffective for failing to call Mr. Ward as

a witness because “[Mr.] Ward was unavailable at the time of trial.” PCRA

Court Opinion, 7/27/15, at 7. Thus, Appellant is not entitled to relief on this

claim.

      In his fourth claim, Appellant argues trial counsel was ineffective for

failing to present school records of his other children.    Appellant’s Brief at

19. However, Appellant concedes there is “nothing in the record to support

[his] claim of ineffective assistance of counsel pursuant to these issues.” Id.

at 20. Accordingly, Appellant is not entitled to relief on this claim.

      In his final issue, Appellant argues trial counsel was ineffective for

failing to object to the presence of the jury during testimony about the

competency of his minor children. Appellant’s Brief at 22. Appellant’s brief

cites the per se rule that competency hearings for child witnesses must be

held away from the jury. Commonwealth v. Washington, 722 A.2d 643,

647 (Pa. 1998).      However, Appellant has failed to show that this was

prejudicial to his case and would have caused a different outcome.

      During trial, Appellant did not deny that the touching occurred.       He

instead argued that it was not criminal touching and he did it for hygienic


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reasons. N.T. Trial, 10/9/13, at 30-31. Further, Appellant does not contest

the competency of the victim to testify and the victim’s trial testimony did

not conflict with this defense.     Her testimony even coincided with his

defense.   Indeed, during trial, H.C. testified that Appellant touched her to

see if she was wiping. N.T. Trial, 10/8/13, at 64 and 72.

      Moreover, the competency questioning of the children was brief and

only concerned their ability to perceive events and understand the difference

between the truth and a lie. Id. at 49-54 and 89-92. The trial court made

no comment on the credibility of either child and instructed the jury that

they were the sole determiners of credibility of the witnesses and facts. Id.

None of this indicates Appellant was prejudiced from the jury being present

for the competency hearing. See Commonwealth v. Ali, 10 A.3d 282, 300

(Pa. 2010) (holding that the defendant was not prejudiced by the fact the

trial court held a competency examination and made a competency ruling in

front of the jury, where the examination merely consisted of “questions

probing the ability to perceive and relate events [and] the awareness of the

duty to speak the truth” and where the “court’s in-court statement of its

finding of competency . . . was stated in neutral terms”).

      Further, at the PCRA hearing, trial counsel testified about his

reasonable strategy for not objecting to this procedure. N.T. PCRA Hearing,

3/26/15, at 60.   Counsel testified that he has been able to make use of

testimony during the competency hearing if the child makes a misstatement


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or has a lapse in memory.   Id.   He also testified that he has used these

hearings to show that a child may not know the truth from a lie. Id. Thus,

counsel’s chosen trial strategy was not so unreasonable that no competent

attorney would have used it, and accordingly, Appellant is not entitled to

relief on this claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2016




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