J-S39040-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                     Appellee            :
                                         :
                     v.                  :
                                         :
DONALD MICHAEL KLOCH,                    :
                                         :
                      Appellant          :     No. 1833 MDA 2015

               Appeal from the PCRA Order September 18, 2015
                  in the Court of Common Pleas of York County
              Criminal Division, at No(s): CP-67-CR-0006893-2012

BEFORE:       STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 08, 2016

      Donald Michael Kloch (Appellant) appeals from the order which denied

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

      A prior panel of this Court summarized the facts underlying this matter

as follows.

            On February 11, 2013, a jury found [A]ppellant guilty of
      one count of attempted homicide, two counts of aggravated
      assault, three counts of terroristic threats, one count of false
      imprisonment, one count of unlawful restraint, three counts of
      simple assault, three counts of recklessly endangering another
      person [(“REAP”)], and one count of attempted involuntary
      deviate sexual intercourse (“IDSI”).

            Appellant’s convictions arose from events that transpired
      on May 7, 2012, in Peach Bottom Township. At that time, the
      victim, Aerial Auble, was at [A]ppellant’s house purchasing and
      consuming drugs. Auble came and went from [A]ppellant’s
      residence several times that day. Eventually, after exchanging
      text messages with one Kacey Simon, Auble informed

*Retired Senior Judge assigned to the Superior Court.
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     [A]ppellant that Simon could get them a good deal on Percocet.
     Appellant gave Simon [approximately] $800 and transported
     Auble and Simon to a house in Maryland. Simon went into the
     house, but never returned, and no one answered the door to the
     house when [A]ppellant knocked. Simon initially had responded
     to text messages from Auble, but eventually stopped returning
     her messages.

           Appellant and Auble returned to [A]ppellant’s residence
     and went into his bedroom. Appellant announced his intent to go
     to Simon’s house. He retrieved a double-barreled shotgun and
     loaded it. Auble attempted to grab her purse and leave, but
     [A]ppellant prevented her. Appellant told Auble that she was
     responsible for him losing his money and that she needed to fix
     it. Appellant then repeatedly told Auble that she better be “a
     good piece of ass” for his money. Appellant grabbed Auble by
     the hair and the shotgun discharged through the floor near
     Auble’s feet. Appellant pushed Auble onto the bed and, while
     holding her down, reloaded the shotgun. Appellant first tried to
     remove Auble’s clothing and then exposed his penis and
     attempted to force Auble’s face down to his groin, telling her to
     “suck his dick.”

            At this moment, Auble’s cellular telephone began to ring.
     Appellant grabbed the phone and hit Auble in the head with it
     which had the inadvertent effect of answering the telephone. On
     the other end was Auble’s mother who overheard the sounds of
     their struggle. Auble’s mother summoned Auble’s father and the
     two of them, along with one Benjamin Pohl, went to
     [A]ppellant’s house. Ultimately, Auble’s father and Pohl entered
     the house and broke down the bedroom door. Appellant
     threatened them with the shotgun, and a physical struggle for
     the gun ensued among [A]ppellant, Auble’s father, and Pohl,
     with the gun twice discharging into the bedroom wall. Appellant
     eventually lost control of the gun and Auble, her father, and Pohl
     were able to make their escape. Appellant followed them out
     onto his front porch threatening that if he ever saw any of them
     again, he would kill them.

Commonwealth v. Kloch, 105 A.3d 784 (Pa. Super. 2014) (unpublished

memorandum at 1-3) (footnotes omitted).




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      On May 30, 2013, Appellant was sentenced to an aggregate term of

8½ to 17 years of imprisonment with a consecutive 5 years of probation.

Appellant filed post-sentence motions, which were denied after a hearing.

Appellant filed a notice of appeal to this Court, which affirmed his judgment

of sentence on July 8, 2014. See Commonwealth v. Kloch, 105 A.3d 784

(Pa. Super. 2014) (unpublished memorandum).

      On October 15, 2014, Appellant pro se filed a PCRA petition. Counsel

was appointed, and an amended petition was filed on February 2, 2015.

Following a hearing held on June 19, 2015, the PCRA court denied

Appellant’s petition. This appeal followed.

      Appellant presents one issue for this Court’s consideration: “Whether

the PCRA court erred by finding that Appellant’s counsel was not ineffective

for failing to call character witnesses when the only two witnesses to critical

points of the events were Appellant and the victim, and such character

evidence is of paramount important [sic] under such circumstances?”

Appellant’s Brief at 4.

      Our standard of review of [an] order granting or denying relief
      under the PCRA requires us to determine whether the decision of
      the PCRA court is supported by the evidence of record and is free
      of legal error. The PCRA court’s findings will not be disturbed
      unless there is no support for the findings in the certified record.

Commonwealth v. Melendez–Negron, 123 A.3d 1087, 1090 (Pa. Super.

2015) (citation omitted).




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      Appellant’s claim is based upon the alleged ineffective assistance of his

trial counsel.

            [I]n order to obtain relief based on [an ineffective
            assistance of counsel] claim, a petitioner must
            establish: (1) the underlying claim has arguable
            merit; (2) no reasonable basis existed for counsel’s
            actions or failure to act; and (3) petitioner suffered
            prejudice as a result of counsel’s error such that
            there is a reasonable probability that the result of
            the proceeding would have been different absent
            such error.

      Trial counsel is presumed to be effective, and a PCRA petitioner
      bears the burden of pleading and proving each of the three
      factors by a preponderance of the evidence.

Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015)

(citations omitted).

      Because Appellant argues that trial counsel was ineffective for failing

to call certain witnesses, the following standards also are applicable.

      To establish ineffectiveness for failure to call a witness, Appellant
      must establish that: (1) the witness existed; (2) the witness was
      available; (3) counsel was informed of the existence of the
      witness or counsel should otherwise have known him; (4) the
      witness was prepared to cooperate and testify for Appellant at
      trial; and (5) the absence of the testimony prejudiced Appellant
      so as to deny him a fair trial. A defendant must establish
      prejudice by demonstrating that he was denied a fair trial
      because of the absence of the testimony of the proposed
      witness.

Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003) (quoting

Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super. 2002)).




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      Evidence of a person’s character is generally inadmissible as proof that

the person acted consistent with that character on any particular occasion.

Pa.R.E. 404(a)(1). However, a criminal defendant may offer evidence of his

or her pertinent character trait as substantive evidence that he or she did

not commit a charged crime.       Pa.R.E. 404(a)(2)(A); Commonwealth v.

Padden, 50 A.2d 722, 725 (Pa. Super. 1947). “[O]ur Supreme Court has

interpreted the term ‘pertinent’ to refer to a character trait that is relevant

to the crime charged against the accused.” Commonwealth v. Minich, 4

A.3d 1063, 1071 (Pa. Super. 2010).

      Herein, Appellant challenges trial counsel’s failure to call witnesses to

testify at trial as to Appellant’s character for truthfulness and non-violence.

With respect to Appellant’s character for truthfulness, we note that, as

observed by the Commonwealth, Appellant failed to present any witnesses

at the PCRA hearing to testify to that character trait. Commonwealth’s Brief

at 17-18. Appellant presented four character witnesses at the PCRA hearing

in an effort to elicit testimony limited to Appellant’s character for

peacefulness and non-violence.    N.T., 6/19/2015, at 58-72.     Thus, in this

regard, Appellant has failed to prove he is entitled to relief on the

ineffectiveness claim relating to truthfulness.   See Todd, 820 A.2d at 712

(explaining that, in order to establish ineffectiveness for failure to call a

witness, Appellant must establish that the witness existed, was available,




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and was prepared to cooperate and testify for Appellant at trial, among other

factors).

      As     for   Appellant’s   character   for   non-violence,   the   PCRA   court

concluded that, inter alia, trial counsel had a reasonable basis for not calling

character witnesses.       With respect to the reasonable basis prong of the

ineffectiveness test, our Supreme Court has observed:

      Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. 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 the trial
      counsel’s decision had any reasonable basis.

Commonwealth v. Hawkins, 894 A.2d 716, 730 (Pa. 2006) (emphasis in

original) (citation omitted).

      In reaching its conclusion, the PCRA court reasoned, in part, as

follows:

      During the PCRA hearing, trial counsel was asked why he did not
      present character witnesses on [Appellant’s] behalf.       Trial
      counsel explained his rationale:

            [M]y thought process was how am I going to be able to
            bring testimony in from these people saying that he has a
            reputation in the community for being a peaceful, law
            abiding person when he himself is getting on the stand,
            admitted he went to the closet and got a shotgun out and
            loaded it in an effort to go hunt this guy down to get his
            money back. So I thought that would be -- it looked
            poorly, it would come out poorly to the jury is what I was
            thinking.



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      [N.T., 6/19/2015, at 30-31.]

            [Appellant] testified at trial about a conversation with the
      victim while returning from the botched drug buy.

         [A]t one point as we was coming up the road, she says,
         well, I know where he lives at, we’ll go over there. I said,
         okay. Let’s go home and I’ll get my gun. She knew about
         the gun on the way coming back up the road, going back
         to my house. I’ll go get my gun and we’ll go over there.
         She said okay.

      [N.T., 2/7/2013, at 840.] [Appellant] further testified that he
      retrieved the shotgun once he and the victim arrived at home in
      accord with the stated plan. “I get in the closet, get the gun
      out, get the shells off the top shelf of the closet bring them out.”
      [Id. at 842.]

             Trial counsel’s decision to forego character witness
      testimony is reasonable in light of [Appellant’s] own testimony.
      Indeed, such conflicting testimony could have caused [Appellant]
      to lose credibility with the jury. As aptly stated by the [Court in
      Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992)],
      “credibility of the witnesses is of paramount importance.” [Id.
      at 442]. This includes the credibility of [Appellant] himself. This
      [c]ourt finds that trial counsel had a reasonable basis for not
      calling character witnesses.

PCRA Court Opinion, 9/18/2015, at 9-11.

      The record supports the PCRA court’s conclusion that trial counsel had

a reasonable basis for not presenting character witnesses in that he believed

that, in light of Appellant’s own testimony, presenting such evidence would

reflect poorly on Appellant in the eyes of the jury. As trial counsel testified




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to a reasonable basis for not calling character witnesses,1 he cannot be

found to be ineffective.    Hawkins, 894 A.2d at 730; Commonwealth v.

Reed, 42 A.3d 314, 324 (Pa. Super. 2012) (“If a reasonable basis exists for

the particular course, the inquiry ends and counsel’s performance is deemed

constitutionally effective.”).   Accordingly, we affirm the order of the PCRA

court.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016

1
  Appellant claims that “[t]he fact that a defendant may be acting in a
violent way during an alleged crime is not a basis for failing to call character
witnesses for non-violence,” relying on Commonwealth v. Harris, 785
A.2d 998 (Pa. Super. 2001).        Appellant’s Brief at 21-23.       Appellant’s
argument is unpersuasive. Indeed, trial counsel in Harris stated that he
“didn’t have a strategic reason for failing to introduce … character
testimony.” Id. at 1001. This Court explained that, “[a]s counsel has
stated that he had no strategic reason for not calling these witnesses, we
need not further weigh the matter. Thus, we conclude that counsel had no
strategic reason for failing to call these witnesses.”        Id. at 1001-02.
Moreover, trial counsel herein did not base his decision merely on Appellant’s
acting violent during the incident at issue. Rather, he based it upon his
legitimate concern that the conflict between Appellant’s trial testimony,
which itself revealed the violent nature of his actions, and the testimony of
character witnesses relating to Appellant’s non-violence would “come out
poorly to the jury.” See N.T., 6/19/2015, at 30-31.


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