J-S39031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                  Appellee                 :
                                           :
            v.                             :
                                           :
SETH THOMAS GRIFFITH,                      :
                                           :
                  Appellant                :            No. 64 EDA 2015

         Appeal from the PCRA Order entered on December 8, 2014
           in the Court of Common Pleas of Montgomery County,
               Criminal Division, No. CP-46-CR-0007121-2009

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 17, 2015

      Seth Thomas Griffith (“Griffith”) appeals from the denial of his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On July 27, 2009, Eileen Bai (“Bai”) visited Wal-Mart to drop off a

prescription. While Bai waited for her prescription to be filled, she browsed

around the store and inadvertently caught the attention of Griffith. Griffith

followed Bai around the store for approximately forty minutes until Bai

picked up her prescription.     Subsequently, Griffith followed Bai into the

parking lot, and both individuals got into their vehicles. Griffith followed Bai

to her house, parked his vehicle on the street, and watched Bai enter her

home through the garage door.        Thereafter, Griffith entered Bai’s home,

without permission, through the open garage door.
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      Once he entered her home, Griffith walked into Bai’s bedroom and

attempted to forcibly have sex with her. Griffith ripped Bai’s panties off her

body, and proceeded to rub his fingers on her vagina. Griffith tied a black

belt around Bai’s neck in an attempt to muffle her cries for help.         Bai

continued to struggle, and, after twenty to thirty minutes, Griffith left the

home and Bai called the police.

      On May 28, 2010, a jury convicted Griffith of numerous crimes,

including criminal attempt rape and burglary.     On December 3, 2010, the

trial court imposed a sentence of five and one-half to twenty years in prison

on the criminal attempt rape conviction, and a consecutive prison term of

three to ten years for the burglary conviction. On November 16, 2011, this

Court affirmed the judgment of sentence. See Commonwealth v. Griffith,

38 A.3d 921 (Pa. Super. 2011) (unpublished memorandum).

      Griffith filed a timely pro se PCRA Petition on December 14, 2012. The

PCRA court appointed Griffith counsel, who filed an amended PCRA Petition.

Following evidentiary hearings, the PCRA court denied the Petition. Griffith

filed a timely Notice of Appeal, and a court-ordered Pennsylvania Rule of

Appellate Procedure 1925(b) Concise Statement. Thereafter, the PCRA court

issued an Opinion.

      On appeal, Griffith raises the following questions for our review:

      1. Whether trial counsel rendered ineffective assistance by
      failing to object to the prosecutor’s cross[-]examination of
      [Griffith’s]   character  witness,     Joshua     Pendergast



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      [(“Pendergast”)], as it denied [Griffith] the right to present
      evidence of good character, and constituted prejudicial error?

      2. Whether trial counsel rendered ineffective assistance by
      failing to investigate and present good character evidence of
      Cynthia Perrotta [(“Perrotta”)], and additional testimony from
      [Pendergast] and Karen Drabick [(“Drabick”)] regarding
      [Griffith’s] reputation in the community for being a law-abiding,
      non-violent and peaceful person?

Brief for Appellant at 6-7.

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. 2011) (citations and

quotation marks omitted).

      To succeed on his ineffectiveness claims, Griffith must demonstrate by

the preponderance of evidence that:

      (1) [the] underlying claim is of arguable merit; (2) the particular
      course of conduct pursued by counsel did not have some
      reasonable basis designed to effectuate his interests; and (3) but
      for counsel’s ineffectiveness, there is a reasonable probability
      that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                Counsel is

presumed to be effective and the burden is on the appellant to prove

otherwise. Commonwealth v. Hannible, 30 A.3d 426, 439 (Pa. 2011).




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      In his first claim, Griffith argues that his trial counsel, John Kravitz,

Esquire (“Attorney Kravitz”), was ineffective because he failed to object to

the cross examination of a character witness, Pendergast, who testified on

behalf of Griffith.    Brief for Appellant at 15-16.   Griffith contends that

Attorney Kravitz should have objected during the cross-examination of

Pendergast when he was questioned about Griffith’s criminal acts.       Id. at

16-20.       Griffith claims that, contrary to the PCRA court’s reasoning,

Pendergast did not open the door to the improper cross-examination. Id. at

19-20. Griffith contends that Attorney Kravitz’s inaction denied him the right

to present evidence of good character, and constituted prejudicial error. Id.

at 16, 21.

      In a criminal case, the defendant may offer character witnesses
      to testify as to that defendant’s reputation in the community
      regarding a relevant character trait.            Of course, the
      Commonwealth may attempt to impeach those witnesses. For
      example, when cross-examining character witnesses offered by
      the accused, the Commonwealth may test the witnesses’
      knowledge about specific instances of conduct of the accused
      where those instances are probative of the traits in question.
      However, the Commonwealth’s right to cross-examine character
      witnesses is not unlimited: the Commonwealth may not cross-
      examine a character witness about a defendant’s uncharged
      criminal allegations, or a defendant’s arrests that did not lead to
      convictions.

Commonwealth v. Kruder, 62 A.3d 1038, 1057 (Pa. Super. 2013)

(citations omitted).

      Our review of the record shows that Griffith introduced Pendergast as

a character witness at trial. N.T., 2/18/14, at 27. Pendergast stated that



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Griffith had a good reputation, and that he would personally trust Griffith

with anything. N.T., 5/27/10, at 169. On cross-examination, the prosecutor

asked Pendergast questions concerning Griffith’s criminal acts at issue. Id.

at 170 (wherein the prosecution asked Pendergast if he would trust Griffith,

knowing that he entered Bai’s home without permission and tried to rape

her). Griffith elicited testimony from Pendergast regarding personal opinions

of Griffith, which opened the door for the Commonwealth to cross-examine

on what might change these opinions.          See Kruder, 62 A.3d at 1057.

Contrary to Griffith’s claim, the cross-examination questions concerning

Pendergast’s personal opinion of Griffith, in light of the charges against him,

were not improper. See Id. (stating that where a witness gives his or her

personal opinion about the defendant on direct examination, it is not

improper for the prosecution to ask that witness if his or her opinion of the

defendant might change given the allegations at issue in that case). Thus,

the underlying claim is without arguable merit.

      Further, Griffith has failed to demonstrate that the outcome of the

case would have been different if Attorney Kravitz had objected during the

Commonwealth’s      cross-examination    of    Pendergast,   given    Griffith’s

incriminating statement to police.    See N.T., 5/27/10, at 47-48 (wherein

Griffith admitted that he followed Bai home, entered her home without

permission, grabbed a belt and intended to have sex with her with or




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without her permission);1 see also Commonwealth v. Sepulveda, 55

A.3d 1108, 1151 (Pa. 2012) (stating that the outcome of the trial

proceedings would have been the same given the overwhelming evidence of

appellant’s guilt revealed through police confessions); Commonwealth v.

Steele, 961 A.2d 786, 801 (Pa. 2008) (holding that where the evidence

overwhelmingly     demonstrates     appellant’s    guilt,   appellant   cannot

demonstrate prejudice). Thus, the outcome of the trial proceedings would

not have been different even if Attorney Kravitz had objected to the

Commonwealth’s cross-examination, and Griffith is not entitled to relief.

      In his second claim, Griffith argues that Attorney Kravitz was

ineffective because he failed to present good character testimony from

Perrotta.   Brief for Appellant at 22.   Griffith asserts that Attorney Kravitz

spoke with Perrotta prior to trial, and then failed to call her as a witness.

Id. at 25. Also, Griffith argues that Attorney Kravitz was ineffective because

he failed to ask witnesses Karen Drabick (“Drabick”) and Pendergast

questions about Griffith’s good character in the community as a law-abiding,

peaceful person.    Id. at 23.    Griffith contends that the jury could have

believed his theory, that the encounter between Bai and himself was

consensual, if Attorney Kravitz had asked these questions.       Id. at 24-25.



1
  Previously, this Court concluded that Griffith’s confession constituted
overwhelming evidence of his guilt, rendering harmless any error regarding
the failure to give a jury instruction for character witnesses. See Griffith,
38 A.3d 921 (unpublished memorandum at 12-14).


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Griffith states that he was prejudiced at trial based on the overall lack of

good character evidence. Id. at 25-26.

      Our review of the record shows that Attorney Kravitz obtained

testimony from Drabick and Pendergast related to Griffith’s truthfulness.

N.T., 2/18/14, at 31.     Attorney Kravitz stated that he sought witness

testimony   that highlighted   Griffith’s   truthfulness, as   opposed to   his

reputation as a law-abiding citizen, in light of Griffith’s incriminating

statement to police. Id. Griffith has failed to show that this trial strategy,

given the overwhelming evidence of guilt, was unreasonable.                 See

Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa. Super. 2013) (holding

that trial counsel was not ineffective for choosing a strategy that did not

include good character testimony where the appellant made an incriminating

statement, and appellant’s “character was likely beyond repair within the

fact finder’s eyes.”).2

      With regard to Perrotta, we note that when raising a failure to call a

potential witness claim, the PCRA petitioner must establish 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; (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. Johnson, 966 A.2d 523, 536 (Pa. 2009).


2
  As noted above, because Griffith confessed to his crimes, there is no
prejudice. See 5/27/10, at 47-48; see also Steele, 961 A.2d at 801.


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      Griffith has failed to demonstrate that he was prejudiced by the

absence of Perrotta’s good character testimony, given the overwhelming

evidence of his guilt. See N.T., 5/27/10, at 47-48; see also Sepulveda, 55

A.3d at 1151. Thus, Griffith’s second claim is without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2015




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