J-S53011-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
PAUL ROBERT MILLER,                       :
                                          :
                    Appellant             : No. 1790 WDA 2013

                  Appeal from the PCRA Order October 11, 2013,
                    Court of Common Pleas, Armstrong County,
                 Criminal Division at No. CP-03-CR-0000171-2010

BEFORE: DONOHUE, OLSON and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED OCTOBER 1, 2014

      Appellant, Paul Robert Miller (“Miller”), appeals from the order dated

October 11, 2013 by the Court of Common Pleas, Armstrong County,

dismissing his petition for relief pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46.      For the reasons set forth herein, we

reverse.

      A summary of the facts of this case is as follows. In 2001, Miller met

his wife, Tammy Miller (“Tammy”). Tammy had two children from previous

relationships, a son, Daniel Reesman (“Reesman”), and a daughter, R.M.,

whom Miller later adopted.         In approximately November 2009, R.M.

informed her friend, E.K., that Miller had been making her perform oral sex

on him and have sexual intercourse with him.       E.K.’s father notified state

police officer, Steven Liston (“Trooper Liston”), of the allegations in February




*Retired Senior Judge assigned to the Superior Court.
J-S53011-14


2010.     Trooper Liston interviewed Miller and Tammy at the state police

barracks, wherein Miller allegedly confessed to having sexual intercourse and

oral sex with R.M. Trooper Liston thereafter filed criminal charges against

Miller, including, three counts of involuntary deviate sexual intercourse, 18

Pa.C.S.A. § 3123, three counts of statutory sexual assault, 18 Pa.C.S.A. §

3122.1, three counts of aggravated indecent assault, 18 Pa.C.S.A. § 3125,

three counts of indecent assault with a person less than 16 years of age, 18

Pa.C.S.A.    §   3126(a)(8), and    three    counts of corruption of     minors,

18 Pa.C.S.A. § 6301(a)(1)(i).

        At trial, R.M. testified that Miller began to sexually abuse her in 2008,

when she was 13 years old.          During her testimony, R.M. provided the

following timeline of events.    In October 2008, Miller and Tammy showed

her a video on how to use a condom. On a Friday evening, towards the end

of October 2008, R.M. asked Miller for permission to go glow bowling with

her friends. Miller told her that she first had to learn something about sex,

and had R.M. put a condom on his penis.          After R.M. put the condom on

Miller, she was allowed to go bowling. A few weeks later, R.M. asked Miller if

she could go to a concert with friends. Miller told R.M. that if she wanted to

go to the concert, she had to have sex with him. Miller and R.M. went to her

bedroom and had sexual intercourse.          In November 2008, Miller required

R.M. to perform oral sex on him in order for her to go bowling with her




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friends.   R.M. testified that Miller had R.M. perform oral sex on him most

Friday nights.

      R.M. testified that she performed oral sex on Miller approximately 10

times and had sexual intercourse with Miller at least four or five times. R.M.

also testified that Miller performed oral sex on her at least once and digitally

penetrated her vagina more than once. R.M. testified that these incidents

usually occurred around 3:00 p.m. after R.M. got home from school when

they were alone. She further provided that the last incident occurred a few

days before Christmas 2009 when Miller made R.M. perform oral sex on him.

      Trooper Liston also testified at trial on behalf of the Commonwealth.

Trooper Liston testified that during his interview with Miller, Miller admitted

to downloading a video to show R.M. how to put a condom on. He further

testified that Miller admitted to having sexual intercourse with R.M., having

R.M. perform oral sex on him, and performing oral sex on R.M. However,

Miller told Trooper Liston that he engaged in these activities for R.M.’s

benefit to educate her on how to handle herself and what to expect from

young men. Miller also explained that he always wore a condom because he

was teaching her about sex and wanted to make sure that she knew the boy

had a condom on whenever they had sex.

      The interview between Trooper Liston and Miller was not recorded and

Miller did not sign a statement.     However, the Commonwealth presented

Corporal Daniel Herr (“Corporal Herr”) of the state police in rebuttal to



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Miller’s case to testify that he was present during Trooper Liston’s interview

of Miller and corroborated Trooper Liston’s testimony.

      Miller testified in his own defense. During his testimony, Miller denied

the allegations against him and also denied that he admitted to having

sexual relations with R.M. Miller attempted to discredit R.M.’s testimony by

establishing that R.M. played basketball year round and did not get home

until 5:30 on weekdays. Miller also attempted to rule out specific dates by

establishing that R.M. had a game on one of the Fridays she alleged these

incidents occurred and practice on another.

      On August 12, 2010, a jury convicted Miller on all charges. The trial

court found Miller to be a sexually violent predator on January 21, 2011. On

April 5, 2011, the trial court sentenced Miller to an aggregate sentence of 20

to 40 years of incarceration.

      Miller filed a post-sentence motion on April 15, 2011, containing

numerous claims of ineffective assistance of counsel. Among these claims

were claims that trial counsel, Attorney Preston Younkins (“Attorney

Younkins”), was ineffective for failing to call character witnesses at trial,

failing to call Holly Mallory (“Mallory”) as a fact witness at trial, failing to file

a bill of particulars, and failing to prepare for trial and inadequate

performance at trial.

      At the post-sentence hearing, Miller presented various witnesses to

testify in support of his assertion that Attorney Younkins provided ineffective



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assistance.   First, Miler presented eight character witnesses that were

available and willing to testify at trial on Miller’s behalf to establish that he

had a good reputation in the community, a good reputation for honesty in

the community, and a good reputation for high moral standards in the

community. N.T., 9/1/11, at 5-22. Miller also presented Mallory to testify

that she was available and willing to testify at trial that R.M. told her that

she never had intercourse with Miller.         Id. at 31-32.      Finally, Miller

presented Dr. Ruth Martin Pisarcik and Daniel Reesman to testify concerning

Attorney Younkins’ failure to prepare them for trial.     Id. at 23-28, 33-39.

Following the witnesses’ testimony, Attorney Younkins testified regarding his

trial strategy and the tactical decisions he made at trial. After reviewing and

considering the record and testimony, the trial court denied Miller’s post-

sentence motion on September 12, 2011.

      Miller filed a direct appeal to this Court on October 7, 2011 raising a

sufficiency of the evidence claim and four ineffectiveness of counsel claims.

On July 27, 2012, we denied Miller’s direct appeal as to the sufficiency of the

evidence claim and declined to review Miller’s ineffectiveness of counsel

claims, dismissing the claims without prejudice so that Miller could raise

them in a PCRA petition after his direct appeal rights were exhausted.

      On March 18, 2013, Miller filed a PCRA petition claiming, as he did in

his post-sentence motion, that Attorney Younkins was ineffective for failing

to call character witnesses, failing to call fact witnesses, failing to request a



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bill of particulars, and failing to prepare for trial and inadequate performance

at trial.   On June 13, 2013, an evidentiary hearing was held on the PCRA

petition.     At the PCRA hearing, Miller and the Commonwealth stipulated

that the court “take judicial notice of the transcript from the [hearing on] the

Post-Sentence Motion held on September 1, 2011” with regard to the eight

character witnesses and Attorney Younkins.”         N.T., 6/13/13, at 4-5.   The

parties stipulated to the testimony of these witnesses in order to “save the

[c]ourt a substantial amount of time” by not rehashing the same issues from

the post-sentence hearing. Id. at 5. On October 11, 2013, the PCRA court

dismissed Miller’s PCRA petition. On November 7, 2013, Miller timely filed a

notice of appeal.

       On appeal, Miller raises the following issues for our review:

       1.     Did the PCRA [c]ourt err when it denied [Miller’s]
              [PCRA] Petition and determined that [t]rial [c]ounsel
              was not ineffective for failing to investigate or call
              character witnesses on behalf of [Miller]?

       2.     Did the PCRA [c]ourt commit an error of law when it
              determined that [t]rial [c]ounsel was not ineffective
              for failing to investigate or call as [] fact witnesses,
              Holly Mallory and Roberta Miller, to testify on behalf
              of [Miller]?

       3.     Did the [PCRA] [c]ourt commit an [e]rror of [l]aw
              when it determined that [t]rial [c]ounsel was not
              ineffective for failing to file a Bill of Particulars?

       4.     Did the [PCRA] [c]ourt commit an error of law when
              it denied [Miller’s] [PCRA] Petition alleging trial
              counsel’s ineffectiveness in his preparation and
              performance at trial, specifically in regard to the



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            testimony of the alleged victim, Dr. Janet Squires,
            Trooper Liston, Dr. Ruth Martin[,] and Daniel
            Reesman?

Miller’s Brief at 4. After our review of the record, we find the first two issues

to be dispositive.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's findings of fact, and whether the PCRA

court's determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005), appeal denied, 42 A.3d 1059 (Pa. 2012)).

A PCRA petitioner must establish the claim by a preponderance of the

evidence.   Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).

Credibility determinations made by the PCRA court are binding on this Court

where    there   is   support    in   the   record   for   the   determination.

Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      On appeal, Miller raises ineffective assistance of counsel claims. “Our

longstanding test for ineffective assistance of counsel derives from the

standard set by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984).” Commonwealth v. Clark, 961 A.2d

80, 85 (Pa. 2008). The test for ineffective assistance of counsel requires the

petitioner to meet a three-prong test: (1) underlying the petitioner’s

allegation of ineffectiveness, there is a claim of arguable merit; (2)



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petitioner’s counsel had no reasonable strategic basis for proceeding as he

did; and (3) the petitioner was prejudiced by counsel’s ineffectiveness. Id.

Failure to meet any one of the three prongs is fatal to petitioner’s claim of

ineffectiveness. Id.

     For his first issue on appeal, Miller argues that the PCRA court erred in

determining that Attorney Younkins was not ineffective for failing to call

character witnesses at trial. The PCRA court found arguable merit to Miller’s

claim. However, the PCRA court determined that Miller was not prejudiced

by the absence of character witness testimony and therefore, concluded that

Attorney Younkins was not ineffective.     For the reasons that follow, we

disagree.

     We begin by noting that “the courts of this Commonwealth have long

recognized the importance of character evidence.” In re R.D., 44 A.3d 657,

668 (Pa. Super. 2012) (citing Commonwealth v. Nellom, 565 A.2d 770,

776 (Pa. Super. 1989)).     Character evidence “‘is an independent factor

which may of itself engender reasonable doubt or produce a conclusion of

innocence.’”   In re R.D., 44 A.3d at 668 (quoting Commonwealth v.

Luther, 463 A.2d 1073, 1077 (Pa. Super. 1983)). Therefore, “[t]he failure

to present available character evidence may constitute ineffective assistance

of counsel.”   Commonwealth v. Harris, 785 A.2d 998, 1000 (Pa. Super.

2001).




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      In Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992), our Supreme

Court held that trial counsel was ineffective for failing to present character

evidence at trial.   In that case, the appellant shared custody of his four-

year-old daughter with his estranged wife. Id. at 440. The child lived with

the appellant’s wife but visited the appellant for several days at a time. Id.

at 441. After one visit, the appellant’s wife discovered a one-inch long cut

on the child’s vagina and took the child to the emergency room.         Id.   An

examining physician observed the one-inch long cut and also discovered a

torn hymen. Id.

      At trial, the child testified that the appellant “woke her up, inserted his

finger and his penis into her vagina, put Cheerios in her vagina, and cut her

vaginal area with a plastic knife.” Id. The appellant was convicted of rape,

statutory rape, incest, indecent assault, simple assault, endangering the

welfare of children, and corruption of minors. Id. On appeal, the appellant

claimed that trial counsel was ineffective for failing to call character

witnesses on his behalf at trial that were willing to testify to the appellant’s

good character. Id at 440-42. Our Supreme Court granted the appellant a

new trial after determining that all three prongs of the test for ineffective

assistance of counsel were satisfied.

      With regard to the first prong of the test for ineffective assistance of

counsel, the Court explained:




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            In a case such as this, where there are only two
            direct witnesses involved, credibility of the witnesses
            is of paramount importance, and character evidence
            is critical to the jury’s determination of credibility.
            Evidence of good character is substantive, not mere
            makeweight evidence, and may, in and of itself,
            create a reasonable doubt of guilt and, thus, require
            a verdict of not guilty. Appellant’s claim, therefore,
            is not without merit.

Id. at 442 (internal citations omitted).

      The Court in Weiss further determined that trial counsel did not have

a reasonable basis for failing to present character witnesses at trial.   Trial

counsel claimed that he contemplated the use of character testimony but

concluded that he could not use the witnesses offered by the appellant. Id.

Trial counsel admitted that “he never discussed with [the] appellant the

possibility of presenting character evidence from [his] family[,]” but rather

concluded that he could not use the appellant’s relatives as character

witnesses because he had preconceived notions that “the jury just thinks

[familial character evidence is] garbage.”    Id. at 443.    In addition, trial

counsel also “could not state with certainty that he contacted all of the

names given him by [the] appellant […] [and] by his own admission, did not

contact any witnesses until the day before trial.” Id. at 442-43.

      In its opinion, our Supreme Court determined that trial 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




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potential character witnesses, and consult with his client thereto.”   Id. at

443. The Court concluded:

           In light of the overwhelming need for character
           evidence in a case such as this, counsel’s limited
           investigation into the quantity and/or quality of
           potential character witnesses on behalf of appellant,
           and counsel’s prejudice toward familial witnesses, we
           find no reasonable basis to support trial counsel’s
           decision not to call any character witnesses.

Id. at 443 (emphasis in original).

      Finally, with regard to the third prong of the test for ineffective

assistance of counsel, the Court held that in order to establish prejudice,

“[the] [a]ppellant must demonstrate that the alternative not selected by

counsel offered a substantially greater chance of success than the tactic

chosen.” Id. (citing Commonwealth v. Saxton, 532 A.2d 352 (Pa. 1987)).

Furthermore, the Court held that in order “[t]o properly determine whether

prejudice resulted from the quality of counsel’s representation, we must

focus on counsel’s overall trial strategy and view his performance as a

whole.” Weiss, 606 A.2d at 443 (citing Saxton, 532 A.2d at 355).

      The Court in Weiss determined that there was no overwhelming

evidence of guilt, but rather, the evidence “boiled down to [the] appellant’s

word against the word of his wife and daughter.” Weiss, 606 A.2d at 443.

Given trial counsel’s strategy to not “contest the physical findings of sexual

abuse, but to focus on the fact that it may have been [the] appellant’s wife,

not [the] appellant who ‘set the whole thing up[,]’” it would have been



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beneficial to present character witnesses to bolster the appellant’s good

character and impeach the wife’s character. Id. Moreover, the Court held

that

             Considering there was no overwhelming evidence of
             guilt in this case, credibility of the witnesses was of
             paramount importance, and counsel’s error not to
             employ character witnesses, familial or otherwise,
             undermined [the] appellant’s chances of instilling
             reasonable doubt in the minds of the jury and
             resulted in prejudice to [the] appellant.

Id.    Accordingly, the Court reversed the judgment of sentence and

remanded for a new trial. Id. at 444.

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

encountered a case similar to the one presently before this Court. In Hull,

the appellee was convicted of involuntary deviate sexual intercourse,

aggravated indecent assault, indecent assault, indecent exposure, and

corruption of minors, involving allegations of sexual acts performed on his

adopted daughter. Id. at 1022. The appellee filed a PCRA petition alleging

ineffective assistance of counsel for failing to present character witnesses at

trial. Id. The PCRA court found counsel to be ineffective and granted a new

trial. Id.

       On appeal to this Court, we determined that the PCRA court acted

within its discretion.    First, we concluded that the appellee’s claim of

ineffective assistance had arguable merit because the only evidence at trial

was the victim’s testimony of the alleged acts and the victim’s brothers who



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alleged that they witnessed the sexual acts. Id. at 1022-23. Therefore, the

issue before the jury was a matter of credibility. Id. at 1023.

      With regard to the second prong of the test, trial counsel stated that

his strategy was to show that the victim and her siblings were lying because

they wanted to live with their mother who let them do whatever they wanted

to do. Id. Trial counsel provided that he chose not to investigate character

witnesses because he did not believe the witnesses had any information that

was relevant and was also worried about the potential of the Commonwealth

to cross-examine the character witnesses regarding the appellee’s bad

character. Id. at 1024-25.

      We provided that “[f]or counsel’s decision to be reasonable, counsel

would have had to investigate the witnesses, determine what they knew

about [the] [a]ppellee, and evaluate how that information would help or hurt

his trial strategy.” Id. at 1025 (citing Weiss, 606 A.2d at 441-42). After

reviewing the record, we determined that

           If counsel had presented character witnesses, such
           testimony would have been consistent with this
           strategy because it could have made [the]
           [a]ppellee’s story, that the children were making up
           these accusations, more believable. By portraying
           [the] [a]ppellee as a good man who would
           emphasize morals and discipline, counsel would have
           had an opportunity to enhance his strategy of
           proving that the children had a motivation to lie
           about their accusations.




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Id. at 1023-24.    Furthermore, we determined that the record established

that trial counsel had no indication that any of the character witnesses had

bad-character evidence against the appellee. Id. at 1025. As a result, we

concluded that trial counsel did not have a reasonable basis for failing to

investigate

      Finally, we concluded that the appellee was prejudiced by trial

counsel’s failure to present character witnesses because “[e]vidence of [the]

[a]ppellee’s good character, particularly in the absence of any bad-character

evidence outside of the children’s testimony, would have bolstered his

defense.” Id. at 1026 (citations omitted).       “[T]hus, by bolstering [the]

[a]ppellee’s credibility, the jury would have been more likely to consider his

theory that the children falsified the allegations.         Counsel’s inaction,

however, caused the jury to weigh only [the] [a]ppellee’s and his wife’s

testimony against the children’s.” Id. at 1027. Accordingly, we concluded

that the appellee satisfied all three prongs of the test for ineffective

assistance of counsel and affirmed the PCRA court’s decision to grant a new

trial. Id. at 1027-28.

      Turning to the instant matter, Miller was convicted of various charges

based upon R.M.’s testimony of the assaults and testimony by two state

police officers that alleged Miller, in an undocumented confession, admitted

to committing acts of sexual assault. Thus, much like the cases discussed

supra, the crux of this case was credibility. Nevertheless, like trial counsel in



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the aforementioned cases, Attorney Younkins failed to present character

witnesses at trial. We are now asked to determine whether Miller received

ineffective assistance as a result of Attorney Younkins’ failure to present

character witnesses.

      With regard to the first prong of the Strickland test for ineffective

assistance of counsel, we conclude that Miller presented an issue of arguable

merit. Here, as in Weiss and Hull, the credibility of the witnesses was of

paramount importance since there were only two direct witnesses, R.M. and

Miller. Thus, “character evidence [was] critical to the jury’s determination of

credibility.” Weiss, 606 A.2d at 442.

      Attorney Younkins testified at the post-sentence hearing that while he

agreed that character witnesses could be important when credibility is at

issue, he admitted that he did not have any discussions with Miller regarding

potential character witnesses in this case. N.T., 9/1/11, at 43. This Court

previously determined that “[a] claim that trial counsel did not conduct an

investigation or interview known witnesses presents an issue of arguable

merit where the record demonstrates that counsel did not perform an

investigation.” Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super.

2013) (citations omitted). In this case, Attorney Younkins admittedly failed

to conduct an investigation or interview potential character witnesses.

Accordingly, we conclude that Miller has presented a claim of arguable merit,

thereby satisfying the first prong of the Strickland test.



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     With regard to the second prong of the test, this Court has held:

           A lawyer has a duty to ‘keep the accused fully
           informed of all options throughout the proceedings.’
           Additionally, the failure by counsel ‘to investigate
           potentially meritorious defenses, and/or to interview
           witnesses whose testimony could prove beneficial
           and exculpatory to the defendant's case, can
           constitute ineffective assistance of counsel if no
           reasonable basis otherwise exists for counsel's
           failure.’ Therefore, a lawyer who fails to use
           character evidence on a defendant's behalf can
           indeed be deemed constitutionally ineffective if there
           is no reasonable basis for such failure. However, ‘[a]
           decision by counsel not to take a particular action
           does not constitute ineffective assistance if that
           decision was reasonably based, and was not the
           result of sloth or ignorance of available alternatives.’
           ‘The decision not to present a particular defense is a
           tactical one and will not be deemed ineffective
           stewardship if there is a reasonable basis for that
           position.’

Commonwealth v. Jones, 636 A.2d 1184, 1189 (Pa. Super. 1994)

(internal citations omitted) (citing Commonwealth v. Mickens, 597 A.2d

1196, 1203 (Pa. Super. 1991)).

     When questioned regarding his trial strategy in this case, Attorney

Younkins responded as follows:

           Basically it came down to an issue of credibility. []
           Miller denied the allegations being made against him
           by his adoptive daughter. So it was basically an
           issue of tried [sic] to address some issues about her
           credibility and basically having [] Miller testify as to
           his recollection of these non-incidents.

N.T., 9/1/11, at 42-43. Attorney Younkins further testified that he made a

tactical decision not to include character witnesses. Id. at 61, 64-65; N.T.,



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6/13/13, at 53. Attorney Younkins explained that he made a judgment call

that Miller’s credibility did not require character witnesses because his

concern was not so much with Miller’s credibility versus the credibility of

R.M., but rather, “[his] concern was [] Miller’s credibility versus the State

Police who testified that he had made an admission to them.”           Id.   After

reviewing the record, we conclude that Attorney Younkins did not have a

reasonable basis for failing to investigate and present character witnesses at

trial.

         First, there is no support in the record for Attorney Younkins’ assertion

that it was his trial tactic not to include character witnesses.         Attorney

Younkins’ decision “was not a tactical one made after weighing all of the

alternatives, but was based on the fact that he failed to interview and

prepare potential character witnesses, and consult with his client thereto.”

Weiss, 606 A.2d at 443. As stated above in Hull, trial counsel is required

to investigate character witnesses and evaluate how the information they

possess would help or hurt his trial strategy. Hull, 982 A.2d at 1025. In

this case, Attorney Younkins admittedly failed to investigate character

witnesses or evaluate what those witnesses knew about Miller or how their

testimony would influence the jury. N.T., 9/1/11, at 43.

         Second, the record reflects that Attorney Younkins failed to take any

action in furtherance of his trial strategy. In fact, Attorney Younkins’ failure

to investigate and call character witnesses at trial is in direct opposition to



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his strategy of challenging the credibility of either R.M. or the police officers,

or bolstering Miller’s own credibility.   As in Hull, presenting testimony of

character witnesses establishing that Miller had a reputation for honesty and

high moral standards could have made Miller’s claims that he did not commit

the acts or confess to the police more credible.          See id. at 1023-24.

Accordingly, we conclude that Attorney Younkins did not have a reasonable

basis for failing to call character witnesses at trial, thereby satisfying the

second prong of the Strickland test.

      Finally, we must determine whether Miller was prejudiced by Attorney

Younkins’ failure to present character witnesses. This Court previously held:

             To satisfy the prejudice prong of [the ineffective
             assistance of counsel] test when raising a claim of
             ineffectiveness for the failure to call a potential
             witness at trial, our Supreme Court has instructed
             that the PCRA petitioner must establish that: (1) the
             witness existed; (2) the witness was available to
             testify for the defense; (3) counsel knew, 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. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citing

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations

omitted)).

      In this case, Miller satisfied the first four elements of the test. Miller

presented eight character witnesses at the PCRA hearing who testified that




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they were available and would have testified at trial on Miller’s behalf if they

were contacted to do so. Had Attorney Younkins considered using character

witnesses and discussed character witnesses with Miller, Miller could have

provided Attorney Younkins with these witnesses. Thus, the only remaining

issue is whether Miller satisfied the fifth element of the test by establishing

that the absence of the character witnesses’ testimony was so prejudicial as

to have denied him a fair trial.

       To establish prejudice that is so prejudicial as to deny a fair trial, the

petitioner must “show that the witness’s testimony would have been helpful

to the defense.”       Sneed, 45 A.3d at 1109 (emphasis in original) (citing

Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996)). A witness’s

testimony is beneficial or helpful to the defense if “it would have created a

reasonable probability of a different outcome at trial.” Wantz, 84 A.3d at

333.

       Here, the PCRA court determined that Miller was not prejudiced by the

absence of character witness testimony. PCRA Court Opinion, 10/11/13, at

9. The PCRA court held that because R.M.’s testimony was convincing and

two state troopers testified that Miller confessed to engaging in sexual acts

with the victim, the evidence “far overwhelmed the defense’s case” such that

“[there] is no reasonable probability that the character witnesses’ testimony

would have changed the outcome of the trial.”        Id. After a review of the

record, we disagree.



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     “The rationale for the admission of character testimony is that an

accused may not be able to produce any other evidence to exculpate himself

from the charges he faces except his own oath and evidence of good

character.”    Commonwealth v. Johnson, 27 A.3d 244, 248 (Pa. Super.

2011) (citing Commonwealth v. Luther, 463 A.2d 1073, 1077-78 (Pa.

1983)). This is precisely the issue that Miller faced at trial. As previously

discussed, the evidence presented against Miller at trial consisted of R.M.’s

testimony     and   testimony   by   two   state   police   officers regarding an

undocumented confession by Miller. In his defense, Miller testified that he

did not commit any of the alleged crimes and did not confess to doing so.

As such, evidence of Miller’s good character would have bolstered his

credibility, and in turn, cast doubt on the testimony presented by R.M. and

the police. See Hull, 982 A.2d at 1026. As a result, there is a reasonable

probability that the testimony would have changed the outcome of the trial.

     Moreover, as Pennsylvania case law establishes, “character evidence is

vital to the jury’s determination of credibility, and that by creating a

reasonable doubt, that evidence may produce acquittal.” Harris, 785 A.2d

at 1002; Weiss, 606 A.2d at 442. Given the importance of credibility in the

case at bar, we conclude that character witness testimony would have been

beneficial to Miller’s defense, and accordingly, Miller was prejudiced by

Attorney Younkins’ failure to present character witnesses at trial. Therefore,

the record does not support the PCRA court’s decision.



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      The Commonwealth argues that introduction of the eight character

witnesses at trial would not have affected the outcome of the case, stating,

“[a]lthough Miller claims that the character witnesses would have influenced

the jury by testifying to his honesty and good moral character, of the eight

witnesses,   three     knew   Miller   only     through    business    transactions.”

Commonwealth’s Brief at 14.       The Commonwealth further noted that “[a]

fourth witness, Reverend McFarland, did not even know Miller before the

time of his incarceration.” Id.

      Although   the    Commonwealth’s          argument    suggests    that   these

witnesses did not know Miller well enough to testify with regard to Miller’s

character, the witnesses’ testimony suggests a contrary conclusion. Bruce

Allen Klingensmith testified that his interactions with Miller were limited to

business. N.T., 9/1/11, at 13. However, Klingensmith knew Miller and his

family for 30 years, lives two-tenths of a mile away from Miller, and sees

him on a regular basis. Id. at 12. Similarly, Linda Breneman testified that

she knew Miller by virtue of his business, but provided that her interactions

with Miller date back 24 years.        Id. at 10.    Harry Robert Heckman also

testified that he knew Miller for all of Miller’s life and brought his cars to

Miller’s business for service. Id. at 16. Moreover, despite the fact that their

interactions were limited to business, all three of these witnesses testified

that they knew of Miller’s reputation in the community for honesty and high

moral standards.     Id. at 10-12, 16-17.        Additionally, although Reverend



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McFarland did not know Miller prior to his incarceration, id. at 20, he

testified that he knew of Miller’s reputation in the community by speaking

with other people in the community. Id. at 21.

      The Commonwealth also ignores the testimony of the remaining four

witnesses. William Rearick testified that he knew Miller for most of Miller’s

life, as Miller grew up in the same neighborhood and continues to live in the

same neighborhood as Rearick. N.T., 9/1/11, at 5. Emma Jean Heckman’s

testimony established that she knew Miller for 30 years, had the opportunity

to personally interact with Miller, and knew others in the community who

knew Miller.   Id. at 14.    Wayne Clair Miller and Diane Lynn McClafferty

testified that Miller was their nephew and that they have known him his

entire life. Id. at 8, 18. McClafferty further testified that she interacts with

other people in the community who know Miller. Id. at 18-19. All four of

these witnesses testified that in addition to their personal knowledge and

interactions with Miller, they knew of Miller’s reputation in the community,

his reputation for honesty, and his reputation for high moral standards.

Id. at 6, 8, 14-15, 19.

      Viewing the testimony and evidence presented at trial, we do not find

persuasive the Commonwealth’s argument that introduction of the eight

character witnesses at trial would not have affected the outcome of the case.

Instead, we conclude that the jury in this case “was precluded from hearing

positive and substantial character evidence which, if believed, may have



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been sufficient to raise a reasonable doubt and require an acquittal.”

Commonwealth v. Glover, 619 A.2d 1357, 1360-61 (Pa. Super. 1993). As

a result, Miller is entitled to relief on this issue.

      For his second issue on appeal, Miller argues that the PCRA court erred

when it determined that Attorney Younkins was not ineffective for failing to

call Holly Mallory (“Mallory”) and Miller’s mother, Roberta Miller (“Roberta”),

as fact witnesses.     Miller’s Brief at 30-33.    Miller asserts that Mallory and

Roberta’s testimony would have undermined the credibility of R.M. and could

have caused reasonable doubt for the jury. Id. at 32-33. After our review

of the record, we agree with the portion of Miller’s argument that the PCRA

court erred when it determined that Attorney Younkins was not ineffective

for failing to call Roberta as a fact witness.1

      At the PCRA hearing, Roberta testified that R.M. rarely came home

after school because of basketball practice and when she did, Roberta was

responsible for getting her off the bus and taking her home. N.T., 6/13/13,

at 33-35. Roberta stated that Miller might have picked R.M. up from the bus

once or twice. Id. at 35. Furthermore, Roberta testified that on the days


1
   With regard to Attorney Younkins’ failure to call Mallory as a fact witness,
we conclude that the record supports the PCRA court’s finding that Attorney
Younkins’ testimony “that he did not know of Mallory’s existence as a
possible witness or that Mallory had relevant information, to be credible.”
PCRA Court Opinion, 10/11/13, at 12. As Wantz provides, to establish
prejudice, Miller must establish that “counsel knew, or should have known,
of the existence of the witness.” Wantz, 84 A.3d at 331 (citing Sneed, 45
A.3d at 1108-09).       Thus, Miller failed to demonstrate prejudice, and
accordingly, failed to establish that counsel was ineffective on this basis.


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she got R.M. off the bus, she would stay at the house with R.M. while she

did her homework.     Id.   Because Roberta’s testimony undermines R.M.’s

allegations that these incidents occurred after school when she was alone

with Miller, we conclude that Miller’s claim has arguable merit.

      We also conclude that Attorney Younkins did not have a reasonable

strategic basis for failing to call Roberta to testify. When questioned at the

post-sentence motion hearing regarding why he did not call Roberta to

testify, Attorney Younkins responded that “the problem was that I don’t

think we could eliminate all possible dates.” N.T., 9/1/11, at 52. He further

testified that he “wasn’t sure narrowing the dates would have provided an

alternate theory.” Id. at 53.

      Our Supreme Court has held that “[a] chosen strategy will not be

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

alternative not chosen offered a potential for success substantially greater

than the course actually pursued.’” Commonwealth v. Williams, 899 A.2d

1060, 1064 (Pa. 2006) (citing Commonwealth v. Howard, 719 A.2d 233,

237 (Pa. 1998)).    In this case, Attorney Younkins failed to establish how

omitting Roberta’s testimony supported his trial strategy.         Instead, the

record reflects that Roberta’s testimony at trial would have supported

Attorney Younkins’ overall trial strategy by bolstering Miller’s credibility and

attacking R.M.’s credibility.   Roberta’s testimony would have provided the

defense with evidence in support of Miller’s claim that he did not sexually



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assault R.M. by establishing that she was usually not at home after school,

and when she was home after school, she was not alone. Moreover, even if

Roberta’s testimony could not eliminate all possible dates, her testimony

would have the effect of diminishing R.M.’s credibility with regard to her

claims that she came home from school at 3:00 and that the assaults

occurred shortly thereafter. Therefore, the record reflects that introducing

Roberta’s testimony at trial would have generated a greater potential for

success than omitting the vital evidence that supported the defense would.

As a result, we conclude that Attorney Younkins did not have a reasonable

strategic basis for failing to call Roberta as a witness at trial.

      With regard to third prong of the Strickland test, we reiterate that in

order to demonstrate that he was prejudiced by Attorney Younkins’ failure to

call Roberta, Miller must establish:

            (1) the witness existed; (2) the witness was
            available to testify for the defense; (3) counsel
            knew, 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.

Wantz, 84 A.3d at 331 (citing Sneed, 45 A.3d at 1108-09).

      We find the first four elements to be satisfied in this case. Attorney

Younkins admitted that Roberta attended “many of the meetings” prior to

trial and knew what Roberta’s role was in caring for R.M., including that she

was responsible for getting R.M. off of the bus on a number of days. N.T.,



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9/1/11, at 52. Finally, Roberta testified that she was available and willing to

testify at trial. N.T., 6/13/13, at 37.

      With regard to the fifth element, the PCRA court determined that

Attorney Younkins was not ineffective for failing to call Roberta as a witness

at trial, because the absence of her testimony was not so prejudicial as to

have denied Miller a fair trial.

            The point of [Roberta’s] testimony would be to attack
            the victim’s credibility by showing that the sexual
            assaults that [R.M.] alleged had occurred between 3
            p.m. and 5 p.m. at the Miller residence, could not
            have occurred because the victim was hardly ever
            home after school and when the victim did come
            directly home, [Roberta] always got her off the bus
            and took her in the Miller house to do homework.
            […]

                                      ***

            However, the main point of [Roberta]’s testimony
            had already been made by [Miller] at trial. [Miller]
            testified at length about [R.M.]’s busy basketball
            schedule, stating that the earliest time [R.M.] would
            arrive home from school was 5:30 p.m. ‘on any
            weekday.’ T.T. at 69. He stressed that [R.M.] was
            hardly ever home directly after school. He also
            explained that it was impossible for him to have
            assaulted [R.M.] after school on the first two Fridays
            of December 2009 as claimed, pointing out that
            [R.M.] had had a basketball game one Friday and
            basketball practice on the other Friday. Thus, the
            absence of [Roberta]’s testimony was not so
            prejudicial as to have denied [Miller] a fair trial.

PCRA Court Opinion, 10/11/13, at 13, 15. The record does not support the

PCRA court’s conclusion.




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      Our courts have established that

             [i]n a case where virtually the only issue is the
             credibility of the Commonwealth’s witness versus
             that of the defendant, failure to explore all
             alternatives available to assure that the jury heard
             the testimony of a known witness who might be
             capable     of   casting   a   shadow    upon    the
             Commonwealth’s witness’s truthfulness is ineffective
             assistance of counsel.

Commonwealth v. Fierst, 620 A.2d 1196, 1204 (Pa. Super. 1993) (citing

Commonwealth v. Twiggs, 331 A.2d 440, 443 (Pa. 1975)).

      In Commonwealth v. Matias, 63 A.3d 807 (Pa. Super. 2013) (en

banc), the appellee was charged with and convicted of involuntary deviate

sexual intercourse, indecent assault, aggravated indecent assault, and

corruption of minors following allegations that he sexually assaulted his 13-

year-old neighbor (“the victim”) on two separate occasions. Id. at 809. At

trial, the victim claimed that the first incident occurred as she and the

appellee’s daughter were playing a video game in the appellee’s basement.

Id. at 811. The victim claimed that she was sitting on the couch between

the appellee and his daughter when the appellee “reached behind her back

and placed his hand down into her pants and rubbed his hand on her bare

buttocks.”   Id.   However, the victim’s testimony at trial differed from her

statement to the police and her statement at the preliminary hearing,

wherein the victim alleged that she was not in the basement when the

appellee sexually assaulted her the first time. Id.




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      Despite the victim’s change in testimony, trial counsel did not present

the appellee’s daughter as a witness at trial. The appellee’s daughter would

have testified that the appellee only sat on a couch in the basement with her

and the victim on one occasion to set up a video game for them. Id. at 812.

The appellee’s daughter would have further testified that after the appellee

set up the video game, he left the basement and went upstairs. Id.

      Following an evidentiary hearing on appellant’s PCRA petition, the

PCRA court granted the appellee a new trial, finding that counsel provided

ineffective assistance for failing to present the appellee’s daughter, an

eyewitness to the alleged incident, at trial. The PCRA court explained that

because the case concerned the victim’s word against the appellee’s word,

the eyewitness testimony “was of critical significance because [the]

testimony would contradict [the victim’s] testimony.” Id. at 811. The PCRA

court further provided that trial counsel’s “course of conduct was without

any reasonable basis designed to effectuate [the appellee’s] best defense,”

given the victim’s change in testimony and because the witness’s testimony

completely contradicted the victim’s testimony. Id. at 811-12. An en banc

panel of this Court agreed with the PCRA court, concluding that the record

supported “the PCRA court’s observation that the Commonwealth’s case

against [the appellee] rested entirely upon the credibility of [the victim], and

the PCRA court’s determination that the absence of [the witness’s] testimony

was so prejudicial as to deny [the appellee] a fair trial.” Id. at 812.



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       Instantly, as in Matias, the core of this case concerned Miller’s

credibility versus that of R.M. and the police officers. At the PCRA hearing,

Attorney Younkins himself acknowledged that credibility was the “whole

theme of [the] case.” N.T., 6/13/13, at 50. Miller’s defense rested upon his

assertions that he could not have assaulted R.M. as she claimed because she

was rarely home after school because of her basketball schedule. Like the

daughter’s testimony in Matias, Roberta’s testimony would have provided a

first-hand account from someone other than the defendant that Miller could

not have committed these acts as R.M. described because she was not home

alone after school.       Thus, Roberta’s testimony would have directly

contradicted R.M.’s assertions that the assaults occurred after school and

bolstered Miller’s credibility with regard to his arguments and testimony that

the assaults could not have occurred as R.M. claimed. Roberta’s testimony

was therefore capable of casting a shadow upon R.M.’s truthfulness and

credibility.   Given the importance of credibility in this matter, Roberta’s

testimony would have been helpful to the defense by diminishing R.M.’s

credibility and bolstering Miller’s credibility, such that “it would have created

a reasonable probability of a different outcome at trial.” Wantz, 84 A.3d at

333.    As a result, we conclude that Miller was prejudiced by Attorney

Younkins’ failure to call Roberta as a fact witness.         Attorney Younkins

provided ineffective assistance, thereby requiring relief as requested.




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      Order reversed.     Case remanded for a new trial.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/1/2014




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