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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

KARL FRANZ SCHUBERT

                         Appellant                      No. 1643 MDA 2015


              Appeal from the PCRA Order September 11, 2015
            In the Court of Common Pleas of Cumberland County
            Criminal Division at No(s): CP-21-CR-0002779-2012


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

MEMORANDUM BY PANELLA, J.                                FILED JUNE 30, 2016

      Appellant, Karl Franz Schubert, appeals from the order dismissing his

petition pursuant to the Post Conviction Relief Act (“PCRA”). Schubert argues

that the PCRA court erred in finding that his trial counsel had a reasonable

strategy for not interviewing or presenting the testimony of a known fact

witness, and further erred in concluding that he did not suffer any prejudice

from these failures. After careful review, we affirm.

      After a three-day trial, a jury convicted Schubert of various crimes

arising from allegations that he had raped and molested E.L., who was

approximately 8 to 11 years old at the time of the crimes. E.L. did not come

forward with these allegations until she was approximately 16 years old. At

trial, E.L. testified to repeated molestation at the hands of Schubert, as well

as death threats to keep her silent regarding the abuse.
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       E.L.’s older brother, E.G., testified that he and Schubert were friends

during the relevant time period, and that they would “hang out” at his

family’s pool. E.G. stated that he had once observed Schubert molesting E.L.

E.G. further testified that Schubert threated to kill him if he told anyone

about the incident.

       The primary focus of this appeal is a witness who did not testify at

Schubert’s trial. S.K. was E.L.’s babysitter around the time of the crimes. At

the PCRA hearing, S.K. testified that she was at E.L.’s residence six to seven

days a week during the relevant time period. S.K. observed that Schubert

was often at E.L.’s residence, but that she never saw him molest or abuse

E.L.

       At trial, E.L. testified that she had notified S.K. of Schubert’s actions

while the molestation was ongoing. In contrast, S.K. testified at the PCRA

hearing that E.L. had confided in her that E.G. had molested her. S.K.

testified that E.L. never told her that Schubert had molested her.

Furthermore, S.K. testified that she had reported E.L.’s allegations against

E.G. to their mother.

       Schubert’s trial counsel testified at the PCRA hearing that he

performed no investigation prior to trial. He further testified that he did not

hire   an   investigator.   According   to   S.K.,   no   agent   from   either   the

Commonwealth or the defense ever questioned her prior to the trial.

Schubert’s trial counsel admitted that he was aware of S.K., but could not


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identify why he had not investigated or questioned her regarding her

observations. At the PCRA hearing, S.K. testified that while she did not wish

to be involved in the case, if asked, she would have testified to the

allegations made by E.L. against E.G.

      After the hearing, the PCRA court dismissed Schubert’s PCRA petition.

This timely appeal followed.

      On appeal, Schubert claims that the PCRA court erred in finding that

trial counsel was not ineffective. “On appeal from the denial of PCRA relief,

our standard and scope of review is limited to determining whether the PCRA

court’s findings are supported by the record and without legal error.”

Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation

omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).

“[Our] scope of review is limited to the findings of the PCRA court and the

evidence of record, viewed in the light most favorable to the prevailing party

at the PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131

(Pa. 2012) (citation omitted). “[T]his Court applies a de novo standard of

review to the PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18

A.3d 244, 259 (Pa. 2011) (citation omitted).

      In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). It

is well settled that


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      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel's act or failure to act.

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012),

appeal denied, 64 A.3d 631 (Pa. 2013) (citation omitted). A failure to satisfy

any   prong   of   the   test   will   require    rejection   of   the   claim.   See

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of

arguable merit is a legal determination.” Commonwealth v. Barnett, 121

A.3d 534, 540 (Pa. Super. 2015) (citation omitted). “Generally, where

matters of strategy and tactics are concerned, counsel’s assistance is

deemed constitutionally effective if he chose a particular course that had

some reasonable basis designed to effectuate his client’s interests.”

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010) (citation

omitted). “[A] defendant [raising a claim of ineffective assistance of counsel]

is required to show actual prejudice; that is, that counsel’s ineffectiveness

was of such magnitude that it ‘could have reasonably had an adverse effect

on the outcome of the proceedings.’”             Commonwealth v. Gribble, 863

A.2d 455, 472 (Pa. 2004) (citation omitted).

      Schubert’s first two arguments on appeal focus on trial counsel’s

failure to procure the testimony of S.K. at trial. First, Schubert contends that


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trial counsel’s failure to perform any investigation at all constituted

ineffective assistance of counsel. While arguably broader than the mere

failure to procure S.K.’s testimony, Schubert’s prejudice argument focuses

heavily on the effects S.K.’s testimony would have had at trial.

      The PCRA court found that the failure to investigate claim had arguable

merit. See PCRA court opinion, 9/11/15, at 16. However, the PCRA court

found that trial counsel had pursued a reasonable strategy in failing to

interview S.K., and that Schubert had failed to establish prejudice. See id.

While we conclude that the PCRA court erred in its conclusion of a

reasonable trial strategy, we cannot similarly conclude that it erred in

holding that Schubert had failed to establish prejudice.

      The PCRA court found that trial counsel had pursued a reasonable trial

strategy in deciding to forgo any investigation into the witnesses in general

and S.K. in particular. The PCRA court first found that “[t]his was not a

situation where trial counsel completely failed to investigate or prepare a

defense.” Id. Presumably, the PCRA court was focusing on the last half of

the conjunctive clause, as it is clear that defense counsel did prepare a

defense highlighting the weakness of the Commonwealth’s investigation.

See N.T., PCRA Hearing, 2/13/15, at 69. However, trial counsel just as

clearly admitted to having performed no investigation whatsoever. See id.,

at 60. Furthermore, he testified that he had no recollection of having a

specific reason for not performing an investigation. See id., at 66.


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      This Court has held that it is “untenable to conceive a reasonable

justification for appearing in a first-degree murder case without thorough

preparation,   including   interviewing   a   known     potential   alibi   witness.”

Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013). The

Stewart Court explicitly disclaimed any intent to restrict its analysis based

upon the severity of the charges faced by the defendant. See id. Nor do we

think that a potential eyewitness, such as S.K., is worthy of lesser

investigation than an alibi witness. “[H]owever hostile these [eye]witnesses

may have appeared to be, there is no basis for the decision neither to

interview them nor attempt to do so.” Commonwealth v. Mabie, 359 A.2d

369, 374 (Pa. 1976). See also Commonwealth v. Dennis, 950 A.2d 945,

960 (Pa. 2008) (“Mabie arguably stand[s] for the proposition that, at least

where there is a limited amount of evidence of guilt, it is per se

unreasonable    not   to   attempt   to   investigate     and   interview     known

eyewitnesses in connection with defenses that hinge upon the credibility of

other witnesses.”).

      Here, trial counsel indisputably pursued a defense challenging the

credibility of E.L. and the police investigator. Furthermore, it is undisputed

that there was no forensic evidence linking Schubert to the crimes. As noted,

trial counsel admitted to having no specific reason for failing to investigate

and interview S.K. prior to trial. Under these circumstances, we conclude

that the PCRA court erred in finding that trial counsel was pursuing a


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reasonable trial strategy in not interviewing S.K. However, this does not

change the fact that Schubert was required to establish prejudice. See

Stewart, 84 A.3d at 712.

      The PCRA court found that Schubert did not establish prejudice.

Specifically, the PCRA court found that there was no reasonable probability

that S.K.’s testimony would have changed the outcome of the trial. While the

PCRA court’s critique of S.K.’s credibility due to her failure to come forward

with this information is incongruous with its defense of E.L.’s credibility

under similar circumstances, we can find no fault with the PCRA court’s

analysis of the weight of E.L.’s testimony.

      At trial, E.L. testified at length about specific instances of abuse
      that she suffered at the hands of [Schubert] 7 to 10 years ago.
      [E.L.] was subjected to 37 pages of intense cross-examination.
      After careful deliberation the jury chose to believe [E.L.] While
      [Schubert] tried to refute her testimony, there was simply no
      motive put forward by [Schubert] as to why E.L. would make up
      these allegations of abuse and subject herself to testifying at
      trial, years after the fact. [S.K.’s] testimony, even if presented
      to the jury, would not have changed this fact.

PCRA Court Opinion, 9/11/15, at 18. It is for the PCRA court to render an

assessment of the credibility of prejudice evidence under the Strickland

test. See Commonwealth v. Stewart, 84 A.3d 712, n.4. Pursuant to our

standard of review, we cannot find an abuse of the PCRA court’s discretion in

making this factual finding, and therefore Schubert’s first claim fails.

      As noted above, Schubert’s second claim is closely related to his first

claim. Here, Schubert argues that trial counsel was ineffective for failing to


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call S.K. at trial. While this claim is legally distinct from the failure to

investigate claim, see Dennis, 950 A.2d at 960, it still requires a finding of

prejudice. As we have found that the PCRA court did not abuse its discretion

in finding that there was no reasonable probability that S.K.’s testimony

would have caused a different outcome, we conclude that Schubert’s second

argument on appeal merits no relief.

      In his third and final argument, Schubert contends that trial counsel

was ineffective in failing to present certain evidence to impeach E.L.’s

testimony at trial. To understand Schubert’s argument, it is important to

note that at trial E.L. testified to molestations occurring in Schubert’s red

truck that had a foam ceiling. See N.T., Trial, 9/11-13/13, at 28-29. When

asked when the abuse started, E.L. stated that she was “about eight or nine.

It was third grade. It may have happened sooner, but I’m not sure.” Id., at

20.

      Schubert had various pieces of evidence that demonstrated his red

truck had been totaled approximately 6 months before E.L. began third

grade, and that during the timeline established by the Commonwealth, he

was driving a gray truck that did not have a foam ceiling. The PCRA court

found that even if this evidence had been presented, it would not have

presented a serious indictment of E.L.’s testimony, as she admitted she was

unsure of the exact dates and that it might have been earlier. We can find

no fault in the PCRA court’s reasoning.


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      Schubert argues that the PCRA court failed to consider the cumulative

effect of the prejudice from this error in determining that there was no

reasonable probability of a different outcome. We disagree. The PCRA court

found that it was not convinced that any of the issues raised by Schubert

would have made the jury disbelieve E.L.’s detailed testimony of traumatic

events from her distant childhood. Furthermore, it is important to recognize

that the PCRA court did not find that the evidence regarding Schubert’s truck

to be in direct conflict with E.L.’s testimony. Thus, there was no prejudice to

cumulate from its absence. Schubert’s third and final issue on appeal

therefore merits no relief.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2016




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