J-S48034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

THOMAS EDWARD REITZ, IV

                        Appellant                   No. 236 WDA 2015


              Appeal from the PCRA Order of January 12, 2015
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No.: CP-02-CR-0006379-2011


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                      FILED SEPTEMBER 29, 2015

      Thomas Reitz appeals the January 12, 2015 order denying his petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. We affirm.

      In a prior opinion, we summarized the pertinent factual history of this

case as follows:

      [O]n April 1, 2011, [R.W.] and her fiancé, Adam Pellegrino,
      attended a party at [Reitz’] apartment.

      [R.W.] did not [drink] any alcohol prior to the party, but
      consumed two beers and a shot of vodka while at [Reitz’]
      residence. While she was sitting at the dining room table,
      [Reitz] started to rub her leg. [Reitz] then leaned toward [R.W.]
      and told her he desired to have sexual intercourse with her.
      [R.W.] pushed [Reitz’] hand away.

      An hour later, approximately at midnight, [R.W.] entered the
      bathroom and closed the door.        Shortly thereafter [Reitz]
      entered the bathroom uninvited, closed the door behind him,
      and told [R.W.] to be quiet. [Reitz] tried to pull [R.W.’s] pants
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       down as she was trying to pull them up. [R.W.] tried to leave
       the bathroom, but [Reitz] blocked her escape. [Reitz] put one
       hand on [R.W.’s] breast and another on her chin while he kissed
       her neck.

       At that point, [R.W.] heard the doorknob jiggle and voices of
       people outside. [Reitz] yelled out to the people on the other
       side of the door “It is Ok. Don’t worry, we will be out in a
       minute. She is throwing up.” [R.W.,] who had not thrown up,
       was handed a toothbrush by [Reitz,] and ordered to brush her
       teeth. [R.W.] stated that she was afraid of [Reitz] because she
       remembered him showing a gun to people earlier that night.

       While she was brushing her teeth, [Reitz] pulled her pants down
       and thrusted [sic] his penis into her vagina. [R.W.] was able to
       pull away. [Reitz] then pushed her to the floor and attempted to
       engage in oral sex. [R.W.] shoved him away and lunged toward
       the handle, opening the door. Adam Pellegrino and his brother
       Brandon were outside the door.          [R.W.] was crying and
       repeatedly saying that she wanted to go home. [R.W.] did not
       explain to her fiancé what happened at that time because she
       was afraid of a confrontation between Adam and [Reitz.] When
       they went outside and got into Adam’s truck, Adam refused to
       leave until [R.W.] told him what was wrong. After [R.W.] said
       that [Reitz] had raped her, Adam drove his truck into [Reitz’]
       vehicle.

                                         ****

       Following a jury trial, [Reitz] was convicted of sexual assault,
       unlawful restraint, and simple assault.[1] He was sentenced to
       48 to 108 months’ incarceration for sexual assault, 3 years’
       probation for unlawful restraint to be served consecutively to the
       sentence for sexual assault, and 2 years’ probation for simple
       assault to be served concurrently with the probationary sentence
       for unlawful restraint.

Commonwealth v. Reitz, 1602 WDA 2012, slip op. at 1-4 (Pa. Super. Oct.

25, 2013) (minor modifications for clarity). On October 25, 2013, this Court

____________________________________________


1
       18 Pa.C.S. §§ 3124.1, 2902, and 2701(a)(1), respectively.



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affirmed Reitz’ judgment of sentence in an unpublished memorandum

decision. See id. Reitz did not file a petition for allowance of appeal to the

Pennsylvania Supreme Court.

      On February 27, 2014, Reitz timely filed a PCRA petition.          Therein,

Reitz alleged various instances of ineffective assistance of trial counsel.

Relevant to this appeal, Reitz alleged that his attorney was ineffective in

failing to call character witnesses at Reitz’ trial and in interfering with Reitz’

right to testify.   Reitz attached to his PCRA petition affidavits from ten

character witnesses, each of whom asserted that they were available and

willing to testify at Reitz’ trial. The PCRA court held a hearing on Reitz’ PCRA

petition on July 18, 2014, and July 21, 2014. Reitz, trial counsel, and five of

Reitz’ would-be character witnesses testified at that hearing.       On January

13, 2015, the PCRA court issued an order dismissing Reitz’ PCRA petition.

      On February 10, 2015, Reitz timely filed a notice of appeal. On that

same day, the PCRA court ordered Reitz to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).              Reitz timely

complied.   On May 15, 2015, the PCRA court filed a Pa.R.A.P. 1925(a)

opinion.

      Reitz presents two issues for our consideration:

      1. Did the [PCRA] court err in denying [Reitz’] PCRA petition
         since trial counsel was ineffective for failing to call character
         witnesses at trial to offer character testimony regarding
         [Reitz] being a peaceful and law-abiding citizen, and for
         failing to even discuss character witnesses with [Reitz?]



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      2. Did the [PCRA] court err in denying [Reitz’] PCRA petition
         since trial counsel was ineffective for interfering with [Reitz’]
         right to testify at his jury trial?

Brief for Reitz at 3 (capitalization modified for clarity).

      This Court analyzes PCRA appeals “in the light most favorable to
      the prevailing party at the PCRA level.” Commonwealth v.
      Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). Our “review is
      limited to the findings of the PCRA court and the evidence of
      record” and we do not “disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error.” Id.
      Similarly, “[w]e grant great deference to the factual findings of
      the PCRA court and will not disturb those findings unless they
      have no support in the record. However, we afford no such
      deference to its legal conclusions.”    Id. (citations omitted).
      “[W]here the petitioner raises questions of law, our standard of
      review is de novo and our scope of review is plenary.” Finally,
      we “may affirm a PCRA court’s decision on any grounds if the
      record supports it.” Id.

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).

      Pennsylvania     has   recast   the   two-factor   inquiry   regarding   the

effectiveness of counsel set forth by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984), as the following three-

factor inquiry:

      [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.

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)).



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     “In accord with these well-established criteria for review, a petitioner

must set forth and individually discuss substantively each prong of the

Pierce test.” Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008).

Moreover, because trial counsel is presumed to be effective, a PCRA

petitioner bears the burden of pleading and proving each of the three factors

by a preponderance of the evidence.        Commonwealth v. Rathfon, 899

A.2d 365, 369 (Pa. Super. 2006).

      Reitz first argues that trial counsel was ineffective for failing to call

character witnesses at trial. The decision whether or not to call a particular

witness generally is a matter of trial strategy.    See Commonwealth v.

Jones, 652 A.2d 386, 389 (Pa. Super. 1995). Such choices, when “made

after thorough investigation of law and facts relevant to plausible options,”

are “virtually unchallengeable.” Strickland, 466 U.S. at 690.

      The test for deciding whether counsel had a reasonable basis for
      his action or inaction is whether no competent counsel would
      have chosen that action or inaction, or [whether] the alternative
      not chosen offered a significantly greater potential chance of
      success.    Commonwealth v. Colavita, 993 A.2d 874 (Pa.
      2010). Counsel’s decisions will be considered reasonable if they
      effectuated his client’s interests. Commonwealth v. Miller,
      987 A.2d 638 (Pa. 2009). We do not employ a hindsight
      analysis in comparing trial counsel’s actions with other efforts he
      may have taken. Id. at 653.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013).

      At the outset, we note that the record demonstrates that it was Reitz

himself, rather than his attorney, who ultimately decided not to present

character evidence at trial.   At Reitz’ PCRA hearing, trial counsel testified

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that it was “100 percent” Reitz’ decision not to call character witnesses. See

Notes of Testimony PCRA (“N.T.P.”), 7/18/2014, at 24, 86. Moreover, the

trial court conducted the following colloquy on the final day of Reitz’ trial:

      The Court:     [Trial counsel] also discussed with you the right to
                     call character witnesses[?]

      Reitz:         Yes.

      The Court:     You understand the limited nature of character
                     witness testimony?

      Reitz:         Yes.

      The Court:     Having again discussed with [trial counsel] your
                     trial strategy[,] and having considered his advice,
                     have you made a decision whether or not you wish
                     to call character witnesses in your case?

      Reitz:         I made the decision not to do so.

      The Court:     So it is your decision, not [trial counsel’s,] but you
                     have consulted and discussed this with him and
                     you do understand character witness testimony; is
                     that correct?

      Reitz:         Correct.

      The Court:     Any questions, [trial counsel,] regarding your
                     client’s decision . . . not to call any character
                     witnesses?

      Counsel:       Only, Mr. Reitz, you’re not currently under the
                     influence of drugs or alcohol that would affect your
                     ability to think clearly this morning?

      Reitz:         No, I am not.

      Counsel:       Have you taken any prescription medication?

      Reitz:         No, I have not.

      Counsel:       Has anyone made any threats or promises to get
                     you to waive your right?

      Reitz:         Nobody has.

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     Counsel:      So your decision is knowingly, intelligently[,] and
                   voluntary [sic] made?

     Reitz:        Correct.

Notes of Testimony (“N.T.”), 7/19/2012, at 349-50.

     Reitz alleges that trial counsel induced the above testimony by

threatening to withdraw as counsel if Reitz exercised his right to call

character witnesses.   N.T.P. at 182-83.   This claim is without merit.   We

have held that “[a] defendant who voluntarily waives the right to call

witnesses during a colloquy cannot later claim ineffective assistance and

purport that he was coerced by counsel.” Commonwealth v. Lawson, 762

A.2d 753, 756 (Pa. Super. 2000).

     Even in the absence of Reitz’ voluntary waiver of his right to present

character evidence, his claim would still fail. The PCRA court concluded that

Reitz failed to demonstrate that trial counsel lacked a reasonable basis for

not presenting evidence of Reitz’ law-abiding character. PCRA Court Opinion

(“P.C.O.”), 5/15/2015, at 4. When viewed in the light most favorable to the

Commonwealth—as our standard of review requires—the record before us

amply supports that conclusion.

     At Reitz’ PCRA hearing, trial counsel testified that he was hesitant to

call character witnesses at trial for three reasons. First, because Reitz had

decided not to testify in his own defense, trial counsel was concerned that

jurors would ask themselves “Well, why did people get up there and say he’s

such a wonderful . . . and law-abiding person, but we didn’t hear from



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[him?]”      N.T.P. at 73.          Second, trial counsel knew that that the

Commonwealth likely would rebut evidence that Reitz had a reputation for

being a law-abiding citizen with evidence that Reitz had pleaded guilty to

harassment (and was charged with simple assault and terroristic threats)

only ten months before he allegedly sexually assaulted R.W. Id. at 18, 75;

see Pa.R.E. 404 (“[A] defendant may offer evidence of the defendant’s

pertinent trait, and if the evidence is admitted, the prosecutor may offer

evidence to rebut it.”).      Third, because many of Reitz’ proposed witnesses

were closely related to him, counsel believed that the jury would assume

they were biased, and discredit their testimony.

      The PCRA court did not abuse its discretion in holding that trial

counsel’s    decision   not    to   present    character   testimony   constituted   a

reasonable trial strategy. Counsel focused upon challenging the veracity of

the Commonwealth’s witnesses and evidence instead of distracting the jury

with arguably disingenuous accounts of Reitz’ law-abiding character, which

the Commonwealth could easily refute. That decision was a reasonable trial

strategy, which does not amount to ineffective assistance of counsel. See

Commonwealth v. Williams, 732 A.2d 1167, 1189 (Pa. 1999) (“A finding

that a chosen strategy lacked a reasonable basis is not warranted unless it

can be concluded that an alternative not chosen offered a potential for

success     substantially     greater   than    the   course   actually   pursued.”).

Accordingly, Reitz’ first issue is without merit.




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      In his second issue, Reitz argues that “trial counsel was ineffective for

interfering with [his] right to testify.” Brief for Reitz at 18.

      The decision of whether or not to testify on one’s own behalf is
      ultimately to be made by the defendant after full consultation
      with counsel. In order to sustain a claim that counsel was
      ineffective for failing to advise the appellant of his rights in this
      regard, the appellant must demonstrate either that counsel
      interfered with his right to testify, or that counsel gave specific
      advice so unreasonable as to vitiate a knowing and intelligent
      decision to testify on his own behalf.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations

omitted).

      With regard to Reitz’ decision not to testify on his own behalf, the trial

court conducted the following colloquy:

      The Court:     [Do y]ou understand that you have the absolute
                     right to testify if you choose to?

      Reitz:         I do.

                                      ****

      The Court:     But you do not have any obligation to do so.

      Reitz:         Correct.

      The Court:     So having discussed all of this with [trial counsel]
                     and having considered his recommendation, have
                     you made a decision on your own behalf whether
                     or not you wish to testify[?]

      Reitz:         I have.

      The Court:     What is that decision?

      Reitz:         I’m not going to testify.

      The Court:     Again, that’s a decision that you made having
                     consulted with and considered [trial counsel’s]
                     advice, but it is your decision, not his?

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       Reitz:          It is my decision.

N.T. at 347-49.

       Reitz contends that “he was not telling the truth when he stated . . .

that he did not want to testify, and only did so in response to trial counsel’s

instruction . . . to tell the Judge that he would not testify.” Brief for Reitz at

19.    Nevertheless, it is well settled that a defendant who knowingly,

voluntarily, and intelligently waives his right to testify will not be afforded

relief based upon a claim that he committed perjury during the trial court’s

colloquy. See Lawson, 762 A.2d at 756 (“A defendant will not be afforded

relief where he voluntarily waives the right to take the stand during a

colloquy with the court, but later claims that he was prompted by counsel to

lie or give certain answers.”); Commonwealth v. Schultz, 707 A.2d 513,

520 (Pa. Super. 1997) (“While, in retrospect, appellant may believe her

failure to testify prejudiced her, the fact remains that appellant’s decision

was fully informed and voluntary.              As such, neither trial nor appellate

counsel may be deemed ineffective in this regard.”).              Because the trial

court’s colloquy demonstrates that Reitz made a knowing, voluntary, and

intelligent waiver of his right to testify, his claim of ineffective assistance of

counsel fails.2

____________________________________________


2
      Reitz’ claim that trial counsel interfered with his right to testify would
be without merit even if it were not precluded by the trial court’s colloquy.
Although Reitz claims that his attorney threatened to abandon him if he “got
on the stand,” N.T.P. 170, trial counsel unequivocally denied making such a
(Footnote Continued Next Page)


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      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




                       _______________________
(Footnote Continued)

threat. Id. at 23. In dismissing Reitz’ PCRA petition, the court found Reitz’
self-serving testimony to be incredible, and accepted counsel’s recollection
of the events, which is corroborated by Reitz’ own testimony during the
colloquy. See P.C.O. at 5. Because the certified record supports the PCRA
court’s findings, we may not disturb them on appeal. Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (“The PCRA court’s findings will
not be disturbed unless there is no support for the findings in the certified
record.”).



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