J-S50035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: E.S., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF E.S., A MINOR

                                                      No. 2677 EDA 2014


              Appeal from the Dispositional Order August 25, 2014
              In the Court of Common Pleas of Philadelphia County
               Juvenile Division at No(s): CP-51-JV-1000230-2013


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED OCTOBER 16, 2015

        Appellant E.S., a minor, appeals from the dispositional order entered in

the Philadelphia County Court of Common Pleas following his adjudication of

delinquency for harassment1 and indecent assault.2 After careful review, we

affirm.

        On November 4, 2013, the juvenile division of the Montgomery County

Court of Common Pleas conducted a hearing in which minor victim K.K.

testified that Appellant touched her vagina over her clothing, on three

separate occasions, while the two of them were in an eleventh grade class

together. N.T., 11/4/13, at 22-23. K.K. testified that Appellant threatened

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1
    18 Pa.C.S. § 2709(a)(4).
2
    18 Pa.C.S. § 3126(a)(1).
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to kill K.K. if she told anyone about the incident, and that he was going to

force K.K. to “fuck him.”      Id. at 25-26.   Classmate S.M. testified that he

witnessed Appellant touch K.K. under the table in class on one occasion. Id.

at 8.

        Appellant testified that he did not threaten K.K. or touch her vagina,

but rubbed her knee and thigh once while in class to “calm her down” when

she was upset about something, because she was his girlfriend. Id. at 61,

63, 64.       Classmate H.G. testified that K.K. told him Appellant was her

boyfriend and that she did not want anyone to know about their relationship.

Id. at 81. Teacher Joanne Thern testified that she and another teacher were

in the six-person class at all times, and she did not observe the incidents of

offensive touching. Id. at 50-52. K.K.’s counselor, Annette Sudler-Brown,

testified that K.K. does not have a good reputation for truthfulness and

honesty, and has embellished stories. Id. at 56.

        The    juvenile   court credited K.K.’s   testimony, found   Appellant’s

testimony unreliable, and found Appellant guilty of harassment and indecent

assault. The court acquitted Appellant of charges of the summary offense of

harassment, terroristic threats, and indecent assault by forcible compulsion.

The court transferred the case to Philadelphia, with the adjudication

withheld, to give Appellant an opportunity to have a hearing on whether he

needed supervision, treatment or rehabilitation.

        On August 25, 2014, the juvenile division of the Philadelphia County

Court of Common Pleas adjudicated Appellant delinquent, required him to

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remain in secure detention at Philadelphia Juvenile Justice Services Center,

and committed him to a residential facility at the Pennsylvania State

Department of Public Welfare for appropriate placement.

      On September 10, 2014, Appellant timely filed a notice of appeal. On

September 29, 2014, the Philadelphia County Court of Common Pleas

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on October

17, 2014.       On December 15, 2014, the Philadelphia County Court of

Common Pleas filed an opinion pursuant to Pa.R.A.P. 1925(a). On December

26, 2014, the Montgomery County Court of Common Pleas filed an opinion

pursuant to 1925(a), which addressed Appellant’s issue.

      Appellant raises the following issue for our review:

         WAS NOT APPELLANT, A JUVENILE, DENIED EFFECTIVE
         ASSISTANCE OF COUNSEL WHERE HIS ATTORNEY FAILED
         TO PRESENT CHARACTER EVIDENCE ON HIS BEHALF
         DURING A CONTESTED ADJUDICATORY HEARING AT
         WHICH CREDIBILITY WAS A CRITICAL ISSUE AND WHERE
         APPELLANT HAD NO PRIOR ADJUDICATIONS OR
         CONVICTIONS?

Appellant’s Brief at 3.

      As a prefatory matter, we must consider whether Appellant’s claim is

properly before this Court.

      “It is clear that a juvenile has the right of appeal following his initial

disposition.”   In re M.D., 839 A.2d 1116, 1118 (Pa.Super.2003).           “The

order of disposition in a juvenile matter is akin to the judgment of sentence


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in a criminal matter in that both are final orders subject to appeal.” Id. at

1119.

        Generally, “claims of ineffective assistance of counsel are to be

deferred to [Post Conviction Relief Act (“PCRA”)3] review”. Commonwealth

v. Holmes, 79 A.3d 562, 576 (Pa.2013).                 However, “[b]ecause of a

juvenile’s lack of access to collateral review, we have concluded that it is

necessary to review a juvenile’s ineffective assistance of counsel claims on

direct appeal, when properly raised.” In re K.A.T., Jr., 69 A.3d 691, 698

(Pa.Super.2013), appeal denied, 81 A.3d 78 (Pa.2013) (quoting In re B.S.,

831 A.2d 151 (Pa.Super.2003)).

        Pa.R.J.C.P. 620 provides a mechanism for a juvenile to raise an

ineffective assistance of counsel claim:

          A. Optional Post-Dispositional Motion.

              1) The parties shall have the right to make a post-
              dispositional motion. All requests for relief from the
              court shall be stated with specificity and particularity,
              and shall be consolidated in the post-dispositional
              motion.

              2) Issues raised before or during the adjudicatory
              hearing shall be deemed preserved for appeal whether
              or not the party elects to file a post-dispositional motion
              on those issues.

          B. Timing.

                                       *       *   *
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3
    42 Pa.C.S. §§ 9541-9546.



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              3) If a post-dispositional motion is not timely filed, a
              notice of appeal shall be filed within thirty days of
              the imposition of disposition.

237 Pa. Code § 620 (emphasis added).

       This Court Observed:

          The only available mechanism to raise ineffective
          assistance of counsel claims is Pa.R.J.C.P. 620.
          However, the Supreme Court made clear that an appellant
          cannot be sanctioned for failing to raise these claims in a
          Pa.R.J.C.P. 620 motion, because such a motion is, by the
          express terms of the rule, optional. If we were to apply our
          waiver principles to ineffective assistance of counsel
          claims, the juvenile would not have the benefit of the
          PCRA, or any other meaningful collateral mechanism,
          either to raise those claims for the first time or to seek a
          remedy for failing to properly preserve them in the first
          instance.

K.A.T., 69 A.3d at 699 (some internal citations omitted) (emphasis added).

       The Commonwealth and the Montgomery County Court of Common

Pleas contend Appellant should have filed a motion for nunc pro tunc relief in

the Montgomery County Court within sixty (60) days of the hearing in which

the alleged ineffectiveness took place, pursuant to Pa.R.J.C.P. 622.4

Commonwealth’s Brief at 7-9; Montgomery County Pa.R.A.P. 1925(a)

Opinion, filed December 29, 2014, (“Opinion”) at 6-13. The court submits:

“To allow a Juvenile to plead or otherwise pursue a claim of ineffective


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4
  Pa.R.J.C.P. 622 became effective April 1, 2012, after the appellant in
K.A.T. filed his notice of appeal, but before this Court filed its opinion.



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assistance of counsel in a manner other than by filing a motion pursuant to

rule 622 would defeat the policy objectives of the rule.” Opinion at 10.

      Pa.R.J.C.P. 622 provides:

         § 622. Motion for Nunc Pro Tunc Relief.

         A. Timing. A motion for nunc pro tunc relief shall be filed
         by the juvenile with the clerk of courts in the court in
         which the alleged error occurred as soon as possible
         but no later than sixty days after the date that the
         error was made known.

         B. Counsel. If alleged ineffective assistance of counsel is
         the basis for the motion, counsel is to withdraw pursuant
         to Rule 150(C) and the judge shall assign new counsel.

         C. Contents of Motion. A motion for relief under this rule
         shall include:

            1) the name of the juvenile and case docket number;

            2) the location of the juvenile;

            3) the delinquent act(s) for which the juvenile
            was adjudicated delinquent;

            4) if ineffective assistance of counsel is alleged, the
            name of counsel who allegedly rendered ineffective
            assistance;

            5) the relief requested;

            6) a statement that one of the following requirements
            for the relief has been met:

               a) there is a need for correction of an error to
               accurately reflect the court’s findings; or

               b) allegations that:




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                1) the juvenile           has been adjudicated
                delinquent   and         is under  the court’s
                supervision;

                2) there is a legitimate basis for the relief
                requested; and

                3) there are sufficient facts upon which to
                conclude the delay was justified and should be
                overlooked in the interest of justice;

          7) the facts supporting the grounds for relief and
          sufficient facts to support any delay in filing the motion
          for relief that:

              a) appear in the record, and the place in the record
              where they appear; and

              b) do not appear in the record, and an identification
              of any affidavits, documents, and other evidence
              showing such facts;

          8) whether the grounds for the relief requested were
          raised before, and if so, at what stage of the
          proceedings;

          9) a verification that the facts set forth in the motion
          are true and correct to the best of the movant’s
          personal knowledge or information and belief and that
          any false statements are made subject to the penalties
          of the Crimes Code, 18 Pa.C.S. § 4904, relating to
          unsworn falsification to authorities;

          10) if applicable, any request for an evidentiary
          hearing, including:

              a) a signed certification by counsel as to each
              intended witness, stating the:

              i) witness’s name;

                ii) witness’s address;

                iii) witness’s date of birth; and

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                   iv) the substance of the witness’s testimony; and

                b) any documents material to the               witness’s
                testimony, attached to the motion; and

             11) if applicable, any request for discovery.

          D. Answer.

             1) The Commonwealth may answer the motion. If the
             Commonwealth chooses to respond to the motion, such
             response shall:

                a) be submitted within ten days of receipt of the
                motion; and

                b) include a verification that the facts set forth in the
                answer are true and correct to the best of the
                attorney’s personal knowledge or information and
                belief and that any false statements are made
                subject to the penalties of the Crimes Code, 18
                Pa.C.S. § 4904, relating to unsworn falsification to
                authorities;

             2) The court may order the Commonwealth to file an
             answer within a timeframe established by the court.

             Official Note: Rule 622 adopted February 23, 2012,
             effective April 1, 2012.

237 Pa. Code § 622.

        In this case, the Montgomery County Court of Common Pleas found

Appellant guilty of harassment and indecent assault after the hearing in

which the alleged ineffective assistance of counsel occurred on November 4,

2013.     The court, however, withheld adjudication of delinquency and

disposition for the Philadelphia County Court of Common Pleas, which

adjudicated Appellant delinquent and issued its disposition on August 25,

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2014. Thus, Appellant could not have filed a motion for nunc pro tunc relief

within sixty (60) days of the alleged error and included in his motion the

acts for which he was adjudicated delinquent. Under these circumstances,

Pa.R.J.C.P. 622 does not provide Appellant with another means to raise an

ineffective assistance of counsel claim.5 Thus, we proceed to the merits of

Appellant’s claim.

       Appellant argues that his counsel was ineffective for failing to present

character witnesses to testify to his law-abiding nature, because credibility

was critical to his case due to the two conflicting witness accounts.

Appellant concedes that lack of a criminal record is not admissible as

character evidence at trial, but argues that character evidence about his trait

of being law abiding, with no prior convictions, would have bolstered his

defense.    He concludes that we should find counsel per se ineffective or

remand his case for an evidentiary hearing on his claim. We disagree.

       Our standard of review of dispositional orders in juvenile proceedings

is well settled: “The Juvenile Act grants broad discretion to the court when

determining an appropriate disposition.          We will not disturb a disposition

absent a manifest abuse of discretion.” In re R.D., 44 A.3d 657, 664



____________________________________________


5
  We need not address whether Pa.R.J.C.P. 622 could preclude a juvenile
appellant from bringing an ineffective assistance of counsel claim on direct
appeal in other circumstances.



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(Pa.Super.2012), appeal denied 56 A.3d 398 (Pa.2012) (quoting In re

R.D.R., 876 A.2d 1009, 1013 (Pa.Super.2005)) (internal citation omitted).

      “With regard to ineffectiveness claims, counsel is presumed to be

effective, and the appellant bears the burden of proving otherwise.” K.A.T.,

69 A.3d at 699 (quoting In re A.D., 771 A.2d 45, 50 (Pa.Super.2001)).

When reviewing claims of ineffective assistance of counsel:

        We must first consider whether the issue underlying the
        charge of ineffectiveness is of arguable merit. If not, we
        need look no further since counsel will not be deemed
        ineffective for failing to pursue a meritless issue. If there is
        arguable merit to the claim, we must then determine
        whether the course chosen by counsel had some
        reasonable basis aimed at promoting the client’s interests.
        Further, there must be a showing that counsel’s
        ineffectiveness prejudiced Appellant’s case. The burden of
        producing the requisite proof lies with Appellant.
Id.

      “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).

        [C]haracter evidence is critical to a jury’s determination of
        credibility. Commonwealth v. Weiss, 606 A.2d 439
        (Pa.1992). The failure to present available character
        evidence may constitute ineffective assistance of counsel.
        Commonwealth        v.      Harris,      785     A.2d    998
        (Pa.Super.2001).

Hull, 982 A.2d at 1023.

      However,

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        The failure to call character witnesses does not constitute
        per se ineffectiveness. Commonwealth v. Cox, 983 A.2d
        666, 693 (Pa.2009) (citation omitted). In establishing
        whether defense counsel was ineffective for failing to call
        witnesses, appellant must prove:

           (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. Puksar, 951 A.2d 267, 277 (Pa.2008)
        (citation omitted).

Commonwealth v. Treiber, ___ A.3d ___, 2015 WL 4886374, at *23 (Pa.

Aug. 17, 2015.).

        Evidence of good character offered by a defendant in a
        criminal prosecution must be limited to his general
        reputation for the particular trait or traits of character
        involved in the commission of the crime charged.

Commonwealth v. Johnson, 27 A.3d 244, 248 (Pa.Super.2011).

        Under Pennsylvania Rule of Evidence 404(a)(1), a
        “person’s character or character trait is not admissible to
        prove that on a particular occasion the person acted in
        accordance with the character or trait.” Pa. R.E. 404(a)(1).
        Under Rule 404(a)(2)(A), a criminal defendant may
        introduce evidence of a “pertinent” character trait.
        “Pertinent” means relevant to the crimes charged.
        Commonwealth v. Minich, 4 A.3d 1063, 1071
        (Pa.Super.2010).

Commonwealth        v.    Reyes-Rodriguez,       111     A.3d    775,   781

(Pa.Super.2015).




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      Here, Appellant and K.K. presented conflicting testimony and the

Montgomery County court based its findings on credibility.             Appellant’s

counsel failed to present any character evidence to promote Appellant’s

credibility. Appellant submits that counsel should have presented character

evidence concerning only his “trait of being law abiding”, but fails to specify

any witnesses who would have testified on behalf of his law-abiding

character. Appellant’s Brief at 18. Thus, even if Appellant’s trait of being

law-abiding was pertinent to the crimes of harassment and indecent assault,

his underlying issue lacks arguable merit.

      Moreover,   character   evidence      concerning   Appellant’s   law-abiding

nature would not have affected the outcome of the trial.

      In making its determination, the Montgomery County Court of

Common Pleas reasoned:

         [Ms. Joanne] knows both of these kids. She said that she
         never saw anything that happened under the table. I view
         her like I do a couple of the witnesses. It’s kind of a no
         harm no foul witness… I think things could have happened
         under the table that that lady didn’t see.

                                  *     *      *

         [Appellant] was a little bit of a bob and weaver around the
         truth, especially on cross-examination. He seemed to
         have an answer for everything. Quickly tried to wrap
         everything up and make it look like a present with a big
         red bow. It was a little too pat for me.

                                  *     *      *




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         I believe [K.K.] when she tells me that you were
         inappropriate. I think [Appellant] did do this. I think [he]
         didn’t get the boundaries and touched her.

N.T., 11/4/13, at 97-98, 99, 103.

      After finding him guilty of the offenses, the court was apprised of

Appellant’s law-abiding nature when it ascertained that Appellant did not

have a prior record:

         THE COURT: I will…withhold adjudication. Is this his first
         arrest?

         [DEFENSE COUNSEL]: Yes, Your Honor.

         [PROSECUTOR]: Yes, it is, Your Honor.

         THE COURT: Okay. So I hope you heard what I said,
         young man. You were out of line here. You need to know
         that. And I made my decision fair and square. I listened
         very carefully here.    So you’ve got to learn about
         boundaries, and, you know, when it’s not okay. What I’m
         going to do is withhold adjudication, send it to
         Philadelphia.

N.T., 11/4/13, at 106-107.

      The Philadelphia County Court of Common Pleas was aware that

Appellant was “law-abiding” and did not have a prior record of arrests or

convictions before his present crimes when it adjudicated him:

         THE COURT: And this is an adjudication of delinquency
         based upon all of the violations, the fact that I have
         attempted to have [Appellant] treated without adjudicating
         him and that just has not fared well. So the court does
         find him in need of treatment, supervision, and
         rehabilitation.

N.T., 8/25/14, at 7.


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      Because Appellant’s claim lacks arguable merit and he was not

prejudiced by his counsel’s failure to present character evidence of his law-

abiding nature, we need not remand for an evidentiary hearing to see if

counsel had a reasonable basis for his action. See K.A.T., supra; see also

Commonwealth        v.    Petras,     534   A.2d   483,   485   (Pa.Super.1987)

(“[R]emand for an evidentiary hearing is not a discovery tool wherein

counsel may conduct investigation and interrogation to search for support

for vague or boilerplate allegations of ineffectiveness… [I]f it is clear that:

the allegation lacks arguable merit; an objectively reasonable basis designed

to effectuate appellant’s interests existed for counsel’s actions or inactions;

or appellant was not prejudiced by the alleged error by counsel, then an

evidentiary hearing is unnecessary.”).

      Appellant failed to prove his counsel was ineffective, and the court did

not abuse its discretion in adjudicating him delinquent and determining his

disposition. Therefore, we affirm.

      Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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