J. S53042/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                        Appellant      :
                                       :
                   v.                  :        No. 3835 EDA 2016
                                       :
FODAY F. KANU                          :


               Appeal from the PCRA Order, December 1, 2016,
               in the Court of Common Pleas of Chester County
               Criminal Division at No. CP-15-CR-0000834-2009



COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                   v.                  :
                                       :
FODAY F. KANU,                         :          No. 81 EDA 2017
                                       :
                        Appellant      :


               Appeal from the PCRA Order, December 1, 2016,
               in the Court of Common Pleas of Chester County
               Criminal Division at No. CP-15-CR-0000834-2009


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JUNE 06, 2018

     The Commonwealth appeals from the December 1, 2016 order that

granted Foday F. Kanu’s (hereinafter “Kanu”) petition filed pursuant to the

Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and
J. S53042/17

ordered a new trial on all charges filed against appellant.           Kanu cross

appeals. After careful review, we reverse in part and affirm in part.

      The PCRA court set forth the following factual history:

            [The victim, H.K.,] is a native and citizen of the West
            African country of Sierra Leone.          The national
            language is Krio. She was raised in a small village
            with her ten (10) siblings. It is a tribal community
            whereby conflict is first addressed by the immediate
            families of the parties involved, then the families’
            elders, and if it is still not resolved, then the
            “paramount chief” resolves the matter according to
            custom. It is customary for men to be allowed to
            marry multiple women, while women are married to
            only one man. In Sierra Leone there is no concept of
            rape. A woman is subservient to the man in all
            matters. It is customary to have the man marry the
            woman who is allegedly raped.

            Although it is rare for a woman to pursue an
            education, [H.K.] was allowed to attend school
            (provided by missionaries) while living at her village.
            She again continued her education in Freetown, the
            capitol of Sierra Leone, after moving there in 1991.

            Subsequently, she applied for “the lottery” and won
            a visa to come to and work in the United States.
            She eventually settled in West Chester and began
            working for Barclay Friends, an assisted living
            facility. Thereafter, [H.K.] obtained her certification
            as a nursing assistant and began attending the
            Center for Arts and Technology (CAT), at the
            Brandywine campus, Chester County, Pennsylvania,
            to obtain a Licensed Practical Nurse (LPN) degree.

            [H.K.] met [Kanu] in 2005 while working at Barclay
            Friends. [Kanu] is also a native of Sierra Leone. He
            and [H.K.] struck-up a friendship akin to brother and
            sister. Because of their brother/sister relationship,
            [H.K.] gave [Kanu] a key to her apartment. On two
            occasions, she loaned him money which he paid
            back. In late September of 2006, she loaned him


                                     -2-
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          money to buy a car, which was not paid back. On
          October 9, 2006, there was an argument about when
          she would be paid back. This argument escalated
          into an alleged physical assault and rape. The next
          morning she sought medical treatment for injuries
          resulting from the alleged assault and rape. [H.K.]
          did not lodge a complaint with the Police. After the
          2006 incident, [H.K.] testified [Kanu] warned her not
          to say anything to anyone or “something bad” would
          happen to her. She lived in fear that if she did
          anything she would be hurt more.

          [H.K.] visited Africa in March of 2007 to attend her
          father’s funeral. Upon her return to West Chester,
          [Kanu] would come to her apartment and request
          sex. Although it was not her desire to have sex with
          [Kanu], the tenor of her testimony indicated she
          acquiesced until April of 2007, at which time she
          refused and was allegedly beaten by [Kanu]. She
          then acquiesced again to having sex with [Kanu] due
          to her fear of being hurt.

          [H.K.] decided to report [Kanu’s] treatment so that
          the facts surrounding her eventual death would be
          known.     Detective Stanley J. Billie (hereinafter
          “Detective Billie”) took her complaint regarding the
          October, 2006 alleged rape on March 20, 2008.
          [H.K.] also sought a Protection From Abuse Order
          (hereinafter “PFA”). Subsequently, [Kanu] told her
          “she would lose her life.” Due to her fear, she did
          not pursue a permanent PFA Order and withdrew her
          March 20, 2008 complaint.

          On July 21, 2008, [Kanu] called [H.K.] and told her
          he was coming over to repay the car loan. She
          allowed him to enter her apartment at approximately
          2:00 p.m. He did not have the money. They had an
          argument. [H.K.] left to go to her night class. She
          returned to her apartment after 11:00 p.m., at which
          time [Kanu] presented himself suddenly behind her.
          [Kanu] requested sex and [H.K.] refused. [Kanu]
          proceeded to assault her. He restrained her, placed
          a cloth in her mouth and pushed her onto the
          mattress in her bedroom.


                                  -3-
J. S53042/17



          She continued to struggle but stopped when she saw
          that [Kanu] had brought an eight (8) inch knife and
          placed it near where they were struggling. [H.K.]
          thought she was going “to lose [her] life. [She]
          thought this is the end of me.”

          [Kanu] continued    to   have sex with her.        He
          ejaculated   into    a    T-Shirt/vest.[Footnote   5,
          Footnote 6].

          [H.K.] testified [Kanu] held her hands and pushed
          her into the bathroom and instructed her to take a
          shower. He then forced her to get re-dressed. She
          proceeded to the kitchen to finish preparing her
          native dish of hot cereal. A verbal argument ensued.
          [Kanu] rushed at her while she was holding the hot
          pot. In the struggle with [Kanu], hot cereal splashed
          on her arms, hands, neck and face. [Kanu] also
          suffered burns. [H.K.] tried to leave the apartment
          4-5       times     but     was      prevented     by
          [appellant].[Footnote 8] [Kanu] struck [H.K.] and
          held her down. He placed a pillow(s) over her head
          to stifle her screams. She could not breathe and lost
          consciousness.[Footnote 9]

               [Footnote     5]   [H.K.]    placed    the
               T-Shirt/vest in a plastic bag and hid it in
               her hamper.        There was evidence
               presented by the Commonwealth that
               semen, found on [Exhibit] C-3, was from
               [Kanu], as confirmed by DNA testing.

               [Footnote 6] The testimony of what took
               place in the bedroom, as believed by the
               jury, supports a finding of rape and
               sexual assault.

               [Footnote 8] This testimony, as believed
               by the jury, supports a finding of false
               imprisonment.




                                   -4-
J. S53042/17


                [Footnote 9] This testimony, as believed
                by the jury, supports a finding of
                aggravated assault.

          One of the officers initially on the scene was Corporal
          Thomas Gotthold (hereinafter “Corporal Gotthold”).
          He observed [H.K.] on the floor. She was hysterical
          and unresponsive to questions. Two unidentified
          females, one unidentified male and [Kanu] were
          present at the time of his arrival. These individuals,
          along with [Kanu] were very calm and “seemed to be
          uninterested. Almost like it was normal what had
          happened.” Corporal Gotthold believed the 911 call
          to which he was responding was made by [Kanu].

          [H.K.] was treated for her burns at Chester County
          Hospital and then transported to Brandywine
          Hospital by Officer Pamela McClaren (hereinafter
          “Officer McClaren”) for additional treatment not
          related to her burns. At Brandywine Hospital, [H.K.]
          was examined by a SANE nurse, Hazel Stanton
          (hereinafter “Nurse Stanton”), who took saliva, hair,
          nail scrapings etc. as part of a rape kit.

          [H.K.] gave a statement, as to the events of July 22,
          2008, to Detective Billie later that day. She told him
          about the T-Shirt/vest and Officer McClaren escorted
          her back to her apartment to retrieve it. Detective
          Billie called [Kanu] later that same day and:

                “asked him to come in and speak to
                [him] about what happened so [he]
                could get [Kanu’s] version of events
                . . . . [Kanu] told [Detective Billie] he
                would not [come to the police station].
                [Kanu] said that he did not have sex with
                [H.K.] last night. [Kanu] then became
                irate, sounded angry, [began] shouting
                on the phone, ‘I am her boyfriend, I can
                do what I want.’”

          Thereafter, a warrant was issued for the arrest of
          [Kanu]. An arrest was made on August 1, 2008 and



                                   -5-
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          a sample of [Kanu’s] DNA was taken. A preliminary
          hearing was scheduled for August 19, 2008.

          After the arrest, between July 22, 2008 and
          August 19, 2008, [H.K.] began receiving calls from
          Africa; first, from [Kanu’s] family in Africa who tried
          to convince her not to proceed, and then from her
          own family in Africa who were concerned she would
          die if she proceeded with charges against
          [Kanu].[Footnote 11] A village elder flew from Africa
          to meet with her, and the Assistant District Attorney,
          to convince her she should drop the charges and
          marry [Kanu].[Footnote 12] [H.K.] did not appear
          for the preliminary hearing because of the threats
          against her.      The charges against [Kanu] were
          withdrawn.

                [Footnote 11] Her mother told her
                voodoo and black magic would be used
                against her and her family. This terrified
                [H.K.].

                [Footnote 12] This testimony, as
                believed by the jury, supports the first
                count of intimidation for the period of
                July 22, 2008 through August 19, 2008.

          [H.K.] reinstated her charges on January 21,
          2009.[Footnote 13] She was contacted by a friend
          of her family. He requested she attend a “family
          meeting[.”]   [H.K.] attended the meeting.     Her
          Pastor, Diedone Onzo Diela, accompanied her. There
          were about 12-15 persons at the meeting. [Kanu]
          appeared at the meeting. [Kanu] called her later
          that same night and warned her he would kill her if
          she proceeded.[Footnote 14]       [H.K.] did not
          withdraw her charges.

                [Footnote 13] [H.K.] testified that,
                through counseling, medical treatment
                and the assistance of community support
                from her Pastor, she desired to proceed
                with charges against [Kanu].



                                   -6-
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                     [Footnote 14] This testimony, as
                     believed by the jury, supports the second
                     count of intimidation for January 27,
                     2009.

                It was further established, by stipulation of both
                counsels       before      the      jury,      that
                “Ibrahim Jalloh”[Footnote 15] would testify he has
                spoken with members of the community who know
                [Kanu] and [Kanu] has a reputation for a peaceful
                and law-abiding nature.[]

                     [Footnote 15] This individual is a friend
                     of [Kanu]. There was also testimony
                     from [H.K.] that this witness paid her
                     $3,000 on behalf of [Kanu] for the car
                     loan.

PCRA court opinion, 12/1/16 at 3-11 (citations to notes of testimony and

trial exhibits omitted; footnotes 1, 2, 3, 4, 7, & 10 omitted; some brackets

in original).

      The PCRA court set forth the following procedural history:

                On October 16, 2009, following a jury trial, [Kanu]
                was found guilty of Rape, 18 Pa.C.S.A. § 3121(a)(1),
                Sexual Assault, 18 Pa.C.S.A. § 3124.1[,] False
                Imprisonment, 18 Pa.C.S.A. § 2903, Aggravated
                Assault, 18 Pa.C.S.A. § 2702(a)(1) and two counts of
                Intimidation of a Witness/Victim, 18 Pa.C.S.A.
                § 4952(a)(1). On March 11, 2010, we sentenced
                [Kanu] to an aggregate term of 16 to 32 years’
                imprisonment. Post sentence motions were filed and
                denied. [Kanu] did not file a direct appeal.

                On June 6, 2011, [Kanu] filed his first PCRA petition
                and PCRA counsel was appointed. After review by
                the Commonwealth, it was determined that [Kanu’s]
                counsel had failed to file a direct appeal from the
                judgment of sentence. On June 20, 2011, without
                Commonwealth objection, this court granted
                [Kanu’s] PCRA petition seeking permission to file a


                                        -7-
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            direct appeal nunc pro tunc. In a Memorandum
            filed on August 22, 2012, the Superior Court
            affirmed judgment of sentence. See Memorandum
            Opinion at 1773 EDA 2011. On September 21, 2012,
            [Kanu] petitioned the Pennsylvania Supreme Court
            for allowance of appeal, which that Court denied on
            June [11], 2013.[1]

            [Kanu] filed the instant pro se PCRA on April 7,
            2014.     The content and format of the petition
            suggests that he had the assistance of unidentified
            counsel, whether attorney or otherwise, in preparing
            the petition. We appointed the Public Defender of
            Chester County PCRA counsel, who in the person of
            Maria Heller, Esquire on August 22, 2014 filed an
            “adoption of [Kanu’s] pro se petition, adding three
            potential witnesses to those identified in the petition
            for purposes of an evidentiary hearing.         [Kanu]
            attached 34 “Character Witness Certifications” to his
            PCRA petition. The Commonwealth filed an Answer
            to the Petition on December 29, 2014.

            We conducted an evidentiary hearing on January 28,
            2015 at which testimony was taken.             At the
            evidentiary hearing, fourteen fact witnesses testified,
            including 12 so-called character witnesses, [Kanu]
            and trial counsel, Jacob Gurwitz, Esquire (“Trial
            Counsel”). PCRA counsel filed a memorandum of law
            in support of the Petition on April 17, 2015. The
            Commonwealth filed its memorandum of law in
            opposition on June 9, 2015.

Id. at 1-2 (footnotes omitted; some brackets in original).

       On December 1, 2016, the PRCA court granted, in part, Kanu’s PCRA

petition and ordered a new trial on all charges. The Commonwealth filed a

notice of appeal to this court on December 14, 2016.         On December 15,

2016, the PCRA court ordered the Commonwealth to file a concise statement


1   Commonwealth v. Kanu, 68 A.3d 907 (Pa. 2013).


                                     -8-
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of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Kanu filed

a notice of cross-appeal with this court on December 23, 2016, and the

PCRA court ordered Kanu to file a concise statement of errors complained of

on appeal on January 3, 2017. Both parties timely complied with the court’s

orders, and on January 25, 2017, the PCRA court filed an opinion pursuant

to Pa.R.A.P. 1925(a), in which it relied upon its December 1, 2016 opinion

and order.

     The Commonwealth raises the following issue for our review:

             Whether the PCRA court committed an error of law
             by granting the PCRA petition and a new trial based
             on the alleged ineffectiveness of counsel[?]

Commonwealth’s brief at 4 (capitalization omitted).

     On cross-appeal, Kanu raises the following issues for our review:

             1.   Did the PCRA court err in finding that trial
                  counsel, Mr. Jacob Gurwitz, Esq., was not
                  ineffective in failing to properly object to the
                  inadmissible hearsay testimony offered by
                  West Chester Police Officer Pamela McClaren?
                  In addition, did the PCRA court err in finding
                  that appellate counsel, Mr. Jack McMahon,
                  Esq., was not ineffective for failing to raise this
                  issue on direct appeal?

             2.   Did the PCRA court err in finding that trial
                  counsel, Mr. Jacob Gurwitz, Esq., was not
                  ineffective for his failure to object to West
                  Chester Police Detective Stanley Billie’s
                  inadmissible hearsay testimony which did not
                  fit or exceeded the “excited utterance” and
                  “prompt complaint” exceptions?

             3.   Did the PCRA court err in finding that trial
                  counsel, Mr. Jacob Gurwitz, Esq., was not


                                     -9-
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                     ineffective for his failure to object to
                     Commonwealth’s closing argument where
                     prosecution argued that a prior rape was
                     “intent” for the charge being tried when the
                     trial court had admitted the prior rape solely as
                     evidence to show the background of the case?

Kanu’s brief at 4.

      Appeals following the granting of a PCRA petition are subject to the

following standard of review:

            Our standard of review from the grant or denial of
            post-conviction relief is limited to examining whether
            the PCRA court’s determination is supported by the
            evidence of record and whether it is free of legal
            error. Commonwealth v. Morales, 701 A.2d 516,
            520 (Pa. 1997). We will not disturb findings that are
            supported by the record.           Commonwealth v.
            Yager, 685 A.2d 1000, 1003 (Pa.Super. 1996)
            (en banc).

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal

denied, 30 A.3d 487 (Pa. 2011).

            To be entitled to relief on an ineffective assistance
            claim, a PCRA petitioner must establish: (1) the
            underlying claim has arguable merit; (2) no
            reasonable basis existed for counsel’s action or
            failure to act; and (3) he suffered prejudice as a
            result of counsel’s error, with prejudice measured by
            whether there is a reasonable probability that the
            result of the proceeding would have been different.
            Commonwealth v. Chmiel, 30 A.3d 1111, 1127
            (Pa. 2011) (employing ineffective assistance of
            counsel test from Commonwealth v. Pierce, 527
            A.2d 973, 975-976 (Pa. 1987).[Footnote 5] Counsel
            is presumed to have rendered effective assistance.
            Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.
            2010).     Additionally, counsel cannot be deemed
            ineffective for failing to raise a meritless claim.
            Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.


                                       - 10 -
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           2006).     Finally, because a PCRA petitioner must
           establish all the Pierce prongs to be entitled to
           relief, we are not required to analyze the elements of
           an ineffective assistance claim in any specific order;
           thus, if a claim fails under any required element, we
           may dismiss the claim on that basis. Ali, 10 A.3d at
           291.

                   [Footnote 5] Pierce reiterates the
                   preexisting   three-prong   test    for
                   ineffective assistance of counsel in
                   Pennsylvania and holds it to be
                   consistent    with    the    two-prong
                   performance and prejudice test in
                   Strickland v. Washington, 466 U.S.
                   668 (1984). Pierce, 527 A.2d 976-977.

Commonwealth v. Trieber, 121 A.3d 435, 445 (Pa. 2015).

           Generally,     counsel’s   assistance    is   deemed
           constitutionally effective if he chose a particular
           course of conduct that had some reasonable basis
           designed to effectuate his client’s interests. Where
           matters of strategy and tactics are concerned, a
           finding that a chosen strategy lacked a reasonable
           basis is not warranted unless it can be concluded
           that an alternative not chosen offered a potential for
           success substantially greater than the course
           actually pursued.

Commonwealth v. Spotz, 84 A.3d 294, 311-312 (Pa. 2014) (citations and

quotations omitted).

     The Commonwealth’s sole issue on appeal is whether the PCRA court

erred in finding that Attorney Gurwitz provided ineffective assistance of

counsel   by   failing   to   call   Magnus     Stevens   (hereinafter   “Stevens”),

Mohammed Koroma (hereinafter “Koroma”), and Alie Kargbo (hereinafter

“Kargbo”) as fact and/or character witnesses on Kanu’s behalf at trial. The



                                       - 11 -
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PCRA court specifically stated that because H.K. “denied that she was

engaged[,] at any time[,] in a romantic relationship with [Kanu, it] was thus

critically important to the defense to attempt to establish the contrary,

especially     since     the   Commonwealth      was   permitted   to   introduce

[Pa.R.E.] 404(b)(2) evidence about the prior relationship of [Kanu] from

[H.K.’s] perspective.” (PCRA court opinion, 12/1/16 at 34.) The PCRA court

further stated that fact testimony from Stevens, Koroma, and Kargbo,

“if believed by the jury, would have cast doubt on [H.K.’s] testimony in this

respect, an issue at the crux of the case.”        (Id.)   Additionally, the PCRA

court found that Stevens and Koroma would have been able to testify as to

Kanu’s reputation within the community for peacefulness and non-violence.

(Id. at 35.)

      When evaluating whether counsel was ineffective for failing to call a

potential witness, we are bound by the following standard:

               When raising a failure to call a potential witness
               claim, the PCRA petitioner satisfies the performance
               and prejudice requirements of the Strickland test
               by establishing 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;
                       and (4) the absence of the testimony of
                       the witness was so prejudicial as to have
                       denied the defendant a fair trial.

               Commonwealth v. Washington, 592 Pa. 698, 927
               A.2d 586, 599 (2007). To demonstrate Strickland
               prejudice, the PCRA petitioner “must show how the


                                        - 12 -
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            uncalled witnesses’ testimony would have been
            beneficial under the circumstances of the case.”
            Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d
            1110, 1134 (2008); see also Commonwealth v.
            Chmiel, 585 Pa. 547, 889 A.2d 501, 546 (2005)
            (“Trial counsel’s failure to call a particular witness
            does not constitute ineffective assistance without
            some showing that the absent witness’s testimony
            would have been beneficial or helpful in establishing
            the asserted defense.”).

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009).

      In Commonwealth v. Hull, 982 A.2d 1020 (Pa.Super. 2009), we

considered whether a trial counsel’s failure to investigate potential character

witnesses constituted ineffective assistance of counsel.

            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,     606    A.2d   at    441-442;    see    also
            Commonwealth v. Blount, 647 A.2d 199, 207 (Pa.
            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, 647 A.2d at 207 (quoting Commonwealth
            ex rel. Washington v. Maroney, 235 A.2d 349,
            352 (Pa. 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


                                    - 13 -
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             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, 701 A.2d 516 (Pa. 1997)).

Hull, 982 A.2d at 1023.

        During the trial, the Commonwealth was prepared to introduce expert

testimony pertaining to the cultural differences between the laws of

Sierra Leone and the laws of the United States regarding sexual offenses.

The trial court restricted to rebuttal the Commonwealth’s use of expert

testimony pertaining to Sierra Leonean culture in the event that testimony

elicited from defense witnesses pertaining to Sierra Leonean culture

necessitated expert testimony.

        Attorney Gurwitz testified that he was reluctant to call any character

witnesses after Amara Conteh’s (hereinafter “Conteh”) cross-examination by

the Commonwealth at trial.         (Notes of testimony, 1/28/15 at 229.)

Specifically, Attorney Gurwitz stated that the Commonwealth was asking

Conteh questions about the cultural differences between the United States

and Sierra Leone in an effort to call the Commonwealth’s expert on rebuttal.

(Id.)

        During cross-examination, Conteh admitted that he was not familiar

with the concept of rape.




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          Q.     Mr. Conteh, you knew that the defendant was
                 arrested for rape and aggravated assault and
                 other charges; right?

          A.     Excuse me, why you bring about rape? I don’t
                 know what you’re talking about rape.

          Q.     Do you know what the word rape means?

          A.     No.

          Q.     You never heard the word rape before?

          A.     I don’t know what you mean by rape. You try
                 to specify it for me.

          Q.     Okay, rape is force or threat of force to engage
                 in sexual intercourse. Do you know what that
                 means?

          A.     That was just explained to me.

          Q.     I just explained to you.   Had you heard that
                 before?

          A.     (The witness shook his head in the negative.)

          ....

          Q.     Growing up in Africa, you’ve never heard the
                 word rape?

          A.     Yeah, I don’t know that word.

          Q.     You don’t know what that is?

          A.     No.

          Q.     When I just explained to you the definition of
                 rape, do you understand what that means?

          A.     Yes, now you explained to me. Growing up in
                 Africa, I don’t know about that one. I never
                 heard about that.


                                   - 15 -
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           Q.    You never heard about rape in Africa?

           A.    (The witness shook his head in the negative.)

Notes of testimony, 10/16/09 at 39-41.

     In order to determine whether Attorney Gurwitz’s failure to call

Stevens, Koroma, and Kargbo as character and/or fact witnesses based on

his apprehension of opening the door as to permit the Commonwealth’s

expert to testify on rebuttal, we must first look to the differences in how

sexual offenses are addressed in the United States and Sierra Leone.      As

noted by the PCRA court, there is no concept of rape in Sierra Leone and

that it is customary for the man to marry the woman who he allegedly

raped. (PCRA court opinion, 12/1/16 at 3.) The PCRA court also noted that

women are subservient to men in all matters. (Id.)

     Moreover, during trial, West Chester Police Detective Stanley J. Billie

testified that when he called Kanu to ask if Kanu would be willing to speak

with the police to obtain Kanu’s version of the events the previous night,

Kanu refused to speak with police and stated, “I am [H.K.’s] boyfriend, I can

do what I want.” (Notes of testimony, 10/15/09 at 57.) After making that

statement, Kanu immediately hung up the phone. (Id. at 58.)

     Additionally, the facts established that once the accusations were

made against Kanu, H.K. was subject to cultural pressure from her village

elder in Africa and her own family to drop the charges.




                                   - 16 -
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      While winnowing out many of the proposed character witnesses, the

PCRA court placed great weight on three in particular, and we will examine

each in turn.

Magnus Stevens

      We shall first analyze Stevens’ potential testimony.2 In its opinion, the

PCRA court found Attorney Gurwitz to be ineffective for failing to call

Stevens as a fact and character witness. Specifically, the PCRA court stated

that “had Stevens been thoroughly interviewed by trial counsel, [Kanu]

would have had the benefit of valuable evidence questioning [H.K.’s]

credibility, specifically casting doubt as to whether a rape had occurred.”

(PCRA court opinion, 12/1/16 at 32.)          Stevens also offered testimony in

which he indicated that he had not “heard a bad reputation for [Kanu] ever

in any community back home and [in Chester County.]”                 (Notes of

testimony, 1/28/15 at 118.)     Stevens further testified that to him, Kanu’s

“reputation has been very much positive in the community and he has been

nonviolent.     I have not heard anything regarding violence ever.”     (Id. at




2 To prevail on an ineffective assistance of counsel claim for failing to call a
witness, a PCRA petition must establish by a preponderance of the evidence
that the witness existed, was available and willing to testify for the defense,
and that counsel knew, or should have known, of the existence of the
witness. Commonwealth v. Matias, 63 A.3d 807, 810-811 (Pa.Super.
2013), appeal denied, 74 A.3d 1030 (Pa. 2013), citing Commonwealth v.
Sneed, 45 A.3d 1008-1009 (Pa. 2012). Here, the record reflects that Kanu
has met these four requirements pertaining to Stevens.


                                     - 17 -
J. S53042/17

119.) The PCRA court made a specific finding that Stevens’ testimony at the

PCRA hearing was credible. (PCRA court opinion, 12/1/16 at 32.)

      Nevertheless, we find it abundantly clear that Attorney Gurwitz had a

reasonable basis not to call Stevens to testify as a character witness at trial.

Kanu failed to establish that Stevens’ potential testimony would not have

opened the door for the Commonwealth to call its cultural expert on rebuttal.

Indeed, the record does not reflect that Stevens possessed an understanding

of the cultural differences between the United States and Sierra Leone—

particularly with how sexually based offenses are addressed.            Clearly, the

record reflects distinct differences between the community standards for

sexual violence in the United States and Sierra Leone. Stevens’ testimony

would have opened the door for the Commonwealth to establish those

differences.         Accordingly,   in   light    of   Conteh’s   cross-examination,

Attorney Gurwitz had a reasonable basis for not calling Stevens to testify.

      As a fact witness, Stevens arrived after the incident in question, and

was one of the people in H.K.’s apartment when the police arrived. Based

on our review of the record, we fail to see how Stevens’ testimony as to the

factual issues in this case would have affected the outcome of the trial.

Accordingly, Kanu’s claim as to Attorney Gurwitz’s failure to call Stevens to

testify must fail.




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J. S53042/17

Mohammed Koroma

      Kanu also avers that Attorney Gurwitz rendered ineffective assistance

for failing to call Mohammed Koroma (hereinafter “Koroma”) to testify at

trial. Here, Kanu fails to establish that Koroma was available to testify for

the defense. Indeed, Attorney Gurwitz testified that he expected Koroma to

appear and testify on October 16, 2009.        (Notes of testimony, 1/28/15 at

227.) The trial record reflects, however, that at the time Attorney Gurwitz

was prepared to call witnesses for the defense, one of the witnesses had

failed to appear.   (See notes of testimony, 10/16/09 at 7-9.)      The record

further reflects that the trial court took a recess in order to give the witness

a chance to appear.     (Id. at 8.)     The trial record does not reflect that

Koroma ever appeared.      Accordingly, we find that Kanu failed to establish

that Koroma was available to testify for the defense; therefore, his claim as

it pertains to Koroma’s potential testimony must fail.

      Moreover, even if Koroma had been available to testify for the

defense, the record reflects that his testimony also would have opened the

door for the Commonwealth to call its expert witness on rebuttal. Indeed,

H.K. testified that she told Koroma about the rape. “. . . I explained to him,

and he was just laughing, what are you talking about rape, you are an

African girl, you shouldn’t talk about rape, you know in Africa you don’t talk

about rape, what are you talking about. And they just, like, they don’t care




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J. S53042/17

about    it.”   (Notes   of   testimony,    10/14/09   at   115.)3   Therefore,

Attorney Gurwitz also had a reasonable basis for failing to call Koroma, even

if he had been available to testify.

Alie Kargbo

        Finally, Kanu contends that Attorney Gurwitz rendered ineffective

assistance by failing to call Kargbo to testify for the defense.      Citing to

Kargbo’s testimony at the PCRA hearing, the PCRA court concludes that had

he been called, Kargbo was willing to testify that Kanu and H.K. had a

romantic relationship. (See PCRA court opinion, 12/1/16 at 33.) The PCRA

court further concluded that it could “perceive no reasonable basis grounded

in trial strategy why trial counsel failed to call Kargbo as a trial witness.”

(Id.) We disagree.

        Similar to our analysis of Attorney Gurwitz’s decision to not call

Stevens to testify, we find that Attorney Gurwitz’s decision not to call Kargbo

based in reasonable trial strategy, especially given the witness intimidation

charges filed against Kanu. Kargbo testified that H.K. asked him in April or

May of 2008—several months before the alleged rape—to mediate a conflict

between herself and Kanu regarding money she was owed.               (Notes of




3 H.K. testified that Mohammed referred to Mohammed Karbo. (Id. at 115.)
Later in her testimony, H.K. stated that it was Koroma that laughed at her
after she told him about being raped. (Id. at 258.) Based on our review of
the record, Karbo and Koroma appear to be the same person.


                                       - 20 -
J. S53042/17

testimony, 1/28/15 at 158.)     Based on this knowledge, Attorney Gurwitz

testified as follows:

            I don’t know about the rape part, the idea that you
            would have a third party say it’s a boyfriend and
            girlfriend because they are having problems in April
            or May of 2008. The idea of this was the part that
            really got to the heart and soul of the witness
            intimidation stuff.

            ....

            I had problems with the perceptibility to it. . . . And
            then you got [Conteh’s] testimony. At the point
            after the cross examination I felt my cross earlier of
            [H.K.] and the chief detective went very well. I
            thought the Assistant D.A. Deb Ryan’s cross-
            examination of [Conteh] in these cultural differences,
            I just got really bogged down and kept centering on
            that.

            And I was concerned after hearing that cross was
            Alie Kargbo, should he be present at the time. I
            need him to show this April or May of 2008 meeting.
            You got him to interact later. There is an idea
            somehow that no one ever has telephone calls or
            phone calls between [Kanu] and [H.K.] after the fact.
            And money exchanged after the fact is somehow
            going to be perceived as something. That is going to
            be something that is taken at face value of a
            reconciliation or I’m paying for rent or paying for
            laptop as opposed to using it as hush money which is
            the interpretation that can be easily used or
            intimidation that I’m trying to scare you. It cuts
            both ways.

            After the cross-examination of [Conteh,] I didn’t
            perceive too much value in the April or May attempt
            at reconciliation. I didn’t understand the concept of
            why she is dumping hot oatmeal on [Kanu’s] head to
            try to hurt him and be able to explain that. They
            had a relationship. They had problems. And there



                                    - 21 -
J. S53042/17


               were people that they interacted with to resolve the
               problem.

               ....

               ...     This idea that there is this big witness
               intimidation circle or some language thing where in
               African culture is the thesis of this was essentially in
               Africa women are property and men can do whatever
               they wanted. And that attitude carried over when
               they came to the United States.           That is the
               explanation for [H.K.] and for [Kanu] and the like. I
               believe it’s completely bolstering. The D.A.’s office
               funded it and the [trial court] was entertaining the
               thought that the door could possibly be opened.

               ....

               ...    You have the fact witness but you have
               character witnesses and you get into what nonviolent
               means and law abiding when you have different laws
               and different cultural standards. And you have the
               possibility for prosecution to open the door and to
               have this expert witness come and testify and clarify
               cultural differences. That was a legitimate fear after
               the cross of [Conteh.]

Id. at 232-238.

      Based on Attorney Gurwitz’s testimony, we find that his decision not to

call Kargbo was based in reasonable trial strategy, as he feared once again

opening the door for the Commonwealth to call its expert witness on

rebuttal. Accordingly, we find that the PCRA court erred when it determined

that Attorney Gurwitz rendered ineffective assistance for failing to call

Kargbo to testify.     Any expert testimony on the sexual cultural differences

between the United States and Sierra Leone would have been devastatingly

prejudicial.


                                        - 22 -
J. S53042/17

       Having reversed the PCRA court’s order granting Kanu’s PCRA petition

and ordering a new trial on all charges, we must now turn to the issues Kanu

raises on cross-appeal. Kanu’s first two issues pertain to whether the PCRA

court erred when it determined that Attorney Gurwitz was not ineffective for

failing to object to hearsay testimony offered by Officer McClaren and

Detective Billie.

       We shall first address Kanu’s issue pertaining to Officer McClaren’s

testimony. Kanu contends that Attorney Gurwitz failed to “adequately object

to [the] Commonwealth’s proffered testimony,” from Officer McClaren.

(Kanu’s brief at 17.) Specifically, Kanu argues that “[t]rial counsel should

have    responded    to   [the]   Commonwealth’s   grounds    for   admitting

Officer McClaren’s testimony by prompting the [trial] court to apply the

limits on prompt complaint testimony.” (Id. at 24.)

       This court has previously described the scope of prompt complaint

testimony:

             Pennsylvania Rule of Evidence 613(c)(1) allows
             evidence of prior consistent statements to rebut an
             express or implied charge of “fabrication, bias,
             improper influence or motive, or faulty memory.” In
             cases involving sexual assault, Rule 613 authorizes
             the Commonwealth to present evidence in its
             case-in-chief of a prompt complaint by the victim
             “because    the   alleged   victim’s   testimony  is
             automatically vulnerable to attack by the defendant
             as recent fabrication in the absence of evidence of
             hue and cry on her part.           Pa.R.Evid. 613(c)
             (comment), citing Commonwealth v. Freeman,
             441 A.2d 1327, 1331 (Pa.Super. 1982). “Evidence
             of a complaint of a sexual assault is ‘competent


                                    - 23 -
J. S53042/17


           evidence, properly admitted when limited to
           establish that a complaint was made and also to
           identify the occurrence complained of with the
           offense charged.’” Commonwealth v. Stohr, 522
           A.2d 589, 592-593 (Pa.Super. 1987) (en banc),
           quoting [Freeman, 441 A.2d at 1331].

Commonwealth v. O’Drain, 829 A.2d 316, 321-322 (Pa.Super. 2003),

cited by Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa.Super.

2004) (en banc), appeal denied, 875 A.2d 1072 (Pa. 2005).

     Here, the testimony in question by Officer McClaren is as follows:

           She said that she was at home, and that Mr. Kanu
           had forced her to have sexual intercourse against
           her will; that the only reason she went along with it
           is he had a knife on his person and she was scared
           for her safety. And that during the assault, that he
           did not ejaculate inside of her but ejaculated on what
           she described as a vest.         And after she was
           assaulted, he refused to let her call anybody and
           took her cell phone and forced her to take a shower
           also against her will.

Notes of testimony, 10/15/09 at 7.

     Kanu argues that Officer McClaren’s testimony was tantamount to a

“recitation of the complainant’s statement,” going “beyond ‘identifying the

complaint and its nature,’” thus rendering the testimony inadmissible

hearsay not subject to the prompt complaint exception. (Kanu’s brief at 23.)

We disagree.

     Kanu relies on our supreme court’s holding in Commonwealth v.

Green, 409 A.2d 371 (Pa. 1979).          The testimony at issue in Green,

however, is distinguishable from Officer McClaren’s testimony at issue here.



                                     - 24 -
J. S53042/17

In Green, a detective taking the stand after the victim had testified, stated

that the victim, “had not testified to anything different than what she had

told him.”   Id. at 374.   Our supreme court found that such a statement

“clearly goes beyond identifying the complaint and its nature and is,

therefore, not properly admissible under that principle.”        Id. at 374-375

(footnote omitted). To the contrary, in Commonwealth v. Stohr, 522 A.2d

589, 592 (Pa.Super. 1987), this court determined that testimony by a

victim’s mother corroborating “her daughter’s statements concerning the

assault and the identity of the defendant” was admissible under the prompt

complaint exception to the rule against hearsay.

      Here, Kanu fails to explain how Officer McClaren’s testimony goes

beyond identifying the complaint and its nature.          Unlike the detective in

Green, Officer McClaren does not provide an all-encompassing statement

corroborating   H.K.’s   testimony;   rather,   Officer    McClaren’s   testimony

corroborates H.K.’s statements concerning the assault and the identity of the

defendant. We therefore find that this claim is without merit.

      Kanu forwards a layered claim of ineffective assistance of counsel in

that he alleges that his counsel rendered ineffective assistance on direct

appeal for failing to raise Officer McClaren’s testimony as an issue on direct

appeal. (Kanu’s brief at 24.)

      Here, Kanu failed to establish the three Pierce prongs pertaining to

the assistance of his trial counsel in relation to Officer McClaren’s testimony,



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J. S53042/17

as the claim lacked arguable merit. Accordingly, Kanu’s claim of ineffective

assistance of appellate counsel must likewise fail, as counsel cannot be held

to   be   ineffective   for   failing   to   pursue   a   meritless   claim.   See

Commonwealth v. Baldwin, 760 A.2d 883, 885 (Pa.Super. 2000), appeal

denied, 781 A.2d 138 (Pa. 2001), citing Commonwealth v. Wilson, 672

A.2d 293, 298 (Pa. 1996), cert. denied, 519 U.S. 951 (1996).

      We now turn to Detective Billie’s testimony.              Kanu alleges that

Attorney Gurwitz rendered ineffective assistance based on his failure to

object to Detective Billie’s “improper recitation of [H.K.’s] version of events.

(Kanu’s brief at 19.)

      Detective Billie testified as follows:

             She told me that while she was at her apartment --
             after returning home from school, she was cooking
             an African cereal on the stove and she had gone and
             she got changed. And she described to me the
             clothing that she was wearing, which she called it a
             lape, which she explained to me what it was. And
             she said when she returned to the kitchen area,
             Mr. Kanu was now in the apartment. He forced her
             into the bedroom where he threw her on the bed and
             forced her to engage in sexual intercourse.

             At that point, she said at one point she felt
             something on her back, and when she had an
             opportunity to look, she saw a large eight-inch knife,
             kitchen knife, on the floor. She became in fear for
             her life. She said he then ejaculated into what she
             called a vest, which later I learned what she called a
             vest was the white tank top T-shirt that we had
             secured as evidence.

             Following the sexual assault, he then forced her to
             take a shower, which she did, and she went and


                                         - 26 -
J. S53042/17


            returned to the kitchen to tend to the African cereal
            that she was cooking.

            She told me at that point she told Mr. Kanu that she
            was going to call the police, and he became irate and
            he kind of approached her and at the same time
            lunged at her spilling the African cereal, the pot that
            she was holding, on her causing the burns on her
            facial area and her arms, both arms.

            She said she tried to get out of the apartment
            several times and was unable to do so. And she did
            not have a cell phone to call. At which time she said
            at some point there were multiple people in the
            apartment and somebody called 911. And that’s
            when the police arrived and she was transported to
            the Chester County Hospital via an ambulance.
            Mr. Kanu    was     transported    by     I   believe
            Corporal Gotthold from the West Chester Police
            Department to Chester County Hospital for the burns
            that he had on him.

Notes of testimony, 10/15/09 at 54-55.

      After careful review of the record, we agree with the PCRA court’s

conclusion that Detective Billie’s testimony was admissible under the prompt

complaint exception to the rule against hearsay. Specifically, the PCRA court

noted that “Detective Billie’s testimony was abbreviated, and did not go into

the detailed account of the rape which [H.K.] had earlier described to the

jury in her trial testimony. [Detective] Billie’s testimony did not fill in any

blanks in [H.K.’s] description of the events of the evening of the rape.”

(PCRA court opinion, 12/1/16 at 42.)

      In his third and final issue on cross-appeal, appellant contends that the

PCRA court erred when it did not find Attorney Gurwitz ineffective for failing



                                    - 27 -
J. S53042/17

to object to the “Commonwealth’s closing argument where [it] argued that a

prior rape was ‘intent’ for the charge being tried when the trial court had

admitted the prior rape solely as evidence to show the background of the

case[.]” (Kanu’s brief at 4.) Specifically, Kanu argues that this omission on

the part of Attorney Gurwitz denied him a fair trial. (See id. at 25.) Put

another way, Kanu appears to be raising a claim that Attorney Gurwitz failed

to object to statements that constituted prosecutorial misconduct on the part

of the Commonwealth during its closing statement.

       Prosecutorial misconduct does not occur unless the jurors form a fixed

bias   and   hostility   toward   the   defendant    based on   the   prosecutor’s

comments. Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005).

When specifically considering a prosecutor’s comments to a jury during

closing arguments, this court has stated, “It is well settled that a prosecutor

has considerable latitude during closing arguments and his arguments are

fair if they are supported by the evidence or use inferences that can

reasonably be derived from the evidence.”           Commonwealth v. Caldwell,

117 A.3d 763, 774 (Pa.Super. 2015) (en banc) (citations omitted).             This

court further stated that any taint from a prosecutor’s improper statements

may be cured by a curative instruction to the jury, and that courts are

compelled to consider “all surrounding circumstances before finding that

curative instructions [are] insufficient and the extreme remedy of a mistrial

is required.” Id. (citations omitted). A jury is presumed to have followed



                                        - 28 -
J. S53042/17

any instructions provided by the trial court. Commonwealth v. Elliott, 80

A.3d 415, 445 (Pa. 2013), citing Commonwealth v. DeJesus, 860 A.2d

102, 111 (Pa. 2004).

      Here, Kanu alleges that Attorney Gurwitz should have objected to the

following   statement    made   by   the   Commonwealth   during   its   closing

statement to the jury:

            Next there’s a charge of burglary. Burglary is the
            intent to commit a crime inside a property. So that
            when this defendant comes to [H.K.’s] property
            July 22nd at night, he gets into the apartment
            without her permission and his intent was to rape
            her.

            And how do we know that? We know what [H.K.]
            told you what his actions were, but you can also
            consider the other rapes that she talked about.
            Think about the rape from October of 2006. On that
            occasion, you heard two people come forward to
            testify as prompt complaint witnesses.

Notes of testimony, 10/16/09 at 134.

      Kanu’s argument relies upon Pennsylvania Rule of Evidence 105.

Rule 105 states, in relevant part:     “If the court admits evidence that is

admissible against a party or for a purpose--but not against another party or

for another purpose--the court, on timely request, must restrict the evidence

to its proper scope and instruct the jury accordingly.” Pa.R.E. 105. Kanu’s

reliance is misplaced.

      The record reflects that the trial court provided an instruction to the

jury pertaining to the prior rape:



                                     - 29 -
J. S53042/17


            [i]n the context of this case, that kind of unrelated
            activity is offered to establish the background to and
            the development of and the history and existence of
            a relationship between the parties. So make sure
            that you do not fall into the error of believing that
            prior conduct that was described by [H.K.] is proof
            that the conduct was repeated in connection with the
            crime charged.

Notes of testimony, 10/15/09 at 51.

      Kanu’s argument implies that the Commonwealth referenced the

alleged prior rape during its closing argument to show intent of repeating

that conduct. “Where the act of rape was disputed entirely, the prejudice is

clear as it adds impermissible evidence to the prosecution argument.”

(Kanu’s brief at 27-28.) This claim is belied by the record. As noted above,

the Commonwealth did not reference the alleged prior rape in connection

with the rape charge’s being considered by the jury; rather, the alleged prior

rape was referenced in connection to the burglary charge’s being considered

by the jury. Taken in that context, the reference to the prior alleged rape is

not being used to show intent to repeat the alleged conduct.         Moreover,

Kanu fails to prove by a preponderance of the evidence that the jury formed

a fixed bias and hostility toward him as a result of the Commonwealth’s

closing statement. Accordingly, Kanu’s claim lacks arguable merit.

      Order reversed in part and affirmed in part. Jurisdiction relinquished.




                                    - 30 -
J. S53042/17



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 6/6/18




                          - 31 -
