J-S34001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 MICHAEL JOHN HUDAK                       :
                                          :
                    Appellant             :   No. 1814 WDA 2016

               Appeal from the PCRA Order October 17, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0004843-2011

BEFORE:      BOWES, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 29, 2018

      Michael John Hudak appeals from the October 17, 2016 order that

denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).

We affirm.

      Appellant was charged with various crimes related to his sexual assault

of a six-year-old girl in 2011. At trial, the Commonwealth offered testimony

from the victim, two police detectives, and a pediatric nurse practitioner. See

N.T. Trial, 2/13-15/12, at 51-118. Appellant testified in his own defense, and

called as a character witness Maria Combs, Appellant’s paramour of eighteen

years and the mother of his five children, who testified that Appellant has a

reputation within the community for truthfulness. See id. at 119-58.

      A jury convicted Appellant of rape of a child, aggravated indecent assault

of a child, involuntary indecent sexual intercourse with a child, indecent

assault of a person less than thirteen years of age, and endangering the
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34001-18


welfare of a child. Appellant was sentenced to an aggregate term of forty to

eighty years imprisonment.     This Court affirmed Appellant’s judgment of

sentence on nunc pro tunc direct review, and our Supreme Court denied his

petition for allowance of appeal. Commonwealth v. Hudak, 105 A.3d 787

(Pa.Super. 2014) (unpublished memorandum), appeal denied, 106 A.3d 724

(Pa. 2014).

      Appellant, through counsel, filed a timely PCRA petition on November

16, 2015. The PCRA court held a hearing on October 12, 2016. The docket

reflects that the PCRA court denied Appellant’s petition by order of October

17, 2016; however, contrary to the mandates of Pa.R.Crim.P. 114(C)(2)(c),

the docket does not indicate when, or if, the order was served upon the

parties.

      Appellant, through counsel, next filed an “Omnibus Post-Sentence

Motion” in which counsel sought time to review the PCRA hearing transcript

and discuss the case with Appellant.        Omnibus Post-Sentence Motion,

10/20/16, at unnumbered page 2. The Commonwealth responded with an

objection, properly noting that an appeal, not a post-sentence motion, is the

appropriate step for Appellant to utilize in challenging the denial of his PCRA

petition. Commonwealth’s Objection, 10/24/16, at 3. On November 4, 2016,

the PCRA court signed an order denying Appellant’s motion, and indicating

that Appellant had thirty days from the denial of his PCRA petition to file an




                                     -2-
J-S34001-18


appeal to this Court. Order, 11/4/16. However, the docket does not reflect

service of the order upon the parties.

       Appellant filed a notice of appeal on November 23, 2016, which was

more than thirty days from the date of the order denying his PCRA petition. 1

The PCRA court ordered Appellant to file a statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925, but, despite the grant of extensions,

none was filed. This Court dismissed the appeal for Appellant’s failure to file

a docketing statement as required by Pa.R.A.P. 3517, then reinstated it upon

Appellant’s motion. Counsel later filed a petition to remand the case pursuant

to Pa.R.A.P. 1925(c)(3), to rectify his failure to file the Rule 1925(b)

statement. This Court granted the request, and both Appellant and the PCRA

court complied with Rule 1925.

       Before we consider the merits of Appellant’s issue, we address the

Commonwealth’s contention that this appeal should be quashed as untimely.

See Commonwealth’s brief at 14-17.               As noted above, the PCRA court

dismissed Appellant’s petition by order dated October 17, 2016, but Appellant

did not file his notice of appeal until November 23, 2016.         As such, the

Commonwealth argues, the appeal was untimely under Pa.R.A.P. 903


____________________________________________


1  Appellant purported to appeal from the November 4, 2016 order denying his
ill-conceived post-sentence motion. However, the appeal is properly taken
from the order that denied his PCRA petition. See Pa.R.Crim.P. 910 (“An order
granting, denying, dismissing, or otherwise finally disposing of a petition for
post-conviction collateral relief shall constitute a final order for purposes of
appeal.”).

                                           -3-
J-S34001-18


(requiring appeal to be filed within thirty days of the entry of the order from

which the appeal is taken).

      If the PCRA court’s October 17, 2016 order had been docketed in

compliance with Pa.R.Crim.P. 114, we would indeed quash this appeal as

untimely as the Commonwealth suggests. However, the failure of the clerk of

courts to comply with Rule 114 renders this appeal timely.                    See

Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa.Super. 2000) (“Our

review of the docket entries discloses no indication that the clerk furnished a

copy of the order to Appellant. Thus, we assume the period for taking an

appeal was never triggered and the appeal is considered timely.”); see also

Commonwealth v. Chester, 163 A.3d 470, 472 (Pa.Super. 2017) (holding

order to file Rule 1925(b) statement was unenforceable where there was no

indication on the docket of the date of service of the order requiring its filing).

Accordingly, we shall proceed to the merits of Appellant’s issue.

      Appellant presents one question for this Court’s review: “Was trial

counsel effective despite his failure to call or even interview several character

witnesses who would have testified to [Appellant’s] reputation for truthfulness

and for being a law-abiding citizen?” Appellant’s brief at 4.

      We begin with principles relevant to our consideration of Appellant’s

claim. “When reviewing the denial of a PCRA petition, our standard of review

is limited to examining whether the PCRA court’s determination is supported

by evidence of record and whether it is free of legal error.” Commonwealth


                                       -4-
J-S34001-18


v. Jordan, 182 A.3d 1046, 1049 (Pa.Super. 2018). Counsel is presumed to

be effective, and a PCRA petitioner bears the burden of proving otherwise.

Commonwealth v. Becker, 192 A.3d 106 (Pa.Super. 2018). To do so, the

petitioner must plead and prove (1) the legal claim underlying his

ineffectiveness claim has arguable merit; (2) counsel’s decision to act (or not)

lacked a reasonable basis designed to effectuate the petitioner’s interests; and

(3) prejudice resulted. Id. The failure to establish any prong is fatal to the

claim. Id.

      When claiming that counsel was ineffective in failing to call a witness, a

PCRA petitioner must also 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. Washington, 927 A.2d 586, 599 (Pa. 2007).

      Appellant claims that counsel was ineffective in failing to call a number

of character witnesses.     Evidence of a person’s character is generally

inadmissible as proof that the person acted consistent with that character on

any particular occasion. Pa.R.E. 404(a)(1). However, a criminal defendant

may offer evidence of his or her pertinent character trait as substantive

evidence that he or she did not commit a charged crime.                 Pa.R.E.

404(a)(2)(A); Commonwealth v. Padden, 50 A.2d 722, 725 (Pa.Super.

1947).   Further, subject to statutory exceptions, “a defendant may offer

                                     -5-
J-S34001-18


evidence of an alleged victim’s pertinent trait” as part of his or her defense.

Pa.R.E. 404(a)(2)(B).      “[O]ur Supreme Court has interpreted the term

‘pertinent’ to refer to a character trait that is relevant to the crime charged

against the accused.”      Commonwealth v. Minich, 4 A.3d 1063, 1071

(Pa.Super. 2010).

      Here, Appellant claims that counsel should have presented additional

character witnesses to testify that Appellant has a reputation for truthfulness

and for being law-abiding.     Appellant’s brief at 28-29.   He contends that,

because this was “a purely testimonial case,” with no physical evidence,

Appellant’s “character was perhaps the central issue at trial.” Id. at 30.

      Assuming arguendo that Appellant established that the witnesses in

question were known to trial counsel and were willing and available to testify

for the defense, Appellant has not convinced us that the PCRA court erred or

abused its discretion in holding that Appellant was not prejudiced by counsel’s

decision to call only one character witness.

      First,   as   the   Commonwealth   argues,   Appellant’s   character   for

truthfulness was not a trait pertinent to the crimes at issue.               See

Commonwealth’s brief at 26-28.       Our rules of evidence provide that, “A

witness’s credibility may be attacked or supported by testimony about the

witness’s reputation for having a character for truthfulness or untruthfulness.

But evidence of truthful character is admissible only after the




                                     -6-
J-S34001-18


witness’s character for truthfulness has been attacked.” Pa.R.E. 608(a)

(emphasis added).

      In Pennsylvania, a witness’s truthfulness may be attacked by
      showing that he or she has a bad reputation for truth and veracity.
      If a witness is impeached by proof of bad reputation for truth and
      veracity, evidence may then be admitted to prove good reputation
      for truth and veracity. Evidence in support of the general
      reputation of a witness for truth and veracity, however, is
      not competent until his or her general reputation has been
      assailed. Every witness puts his or her character in issue; but
      until evidence tending directly to impeach it is produced, the law
      presumes it to be good, and therefore testimony to prove it good
      is superfluous.

Commonwealth v. Fisher, 764 A.2d 82, 86-87 (Pa.Super. 2000) (emphasis

added). “[W]here the prosecution has merely introduced evidence denying or

contradicting the facts to which the defendant testified, but has not assailed

the defendant’s community reputation for truthfulness generally, evidence of

the defendant’s alleged reputation for truthfulness is not admissible.”

Commonwealth v. Fulton, 830 A.2d 567, 573 (Pa. 2003) (Opinion

Announcing the Judgment of the Court).

      Our review of the trial transcripts revealed no instances of the

Commonwealth attacking Appellant’s reputation for truthfulness. Accordingly,

character evidence as to truthfulness was not relevant. See, e.g., Fisher,

supra at 87 (holding evidence as to the defendant’s character for truthfulness

was properly barred where “at no time did the Commonwealth attack, impugn

or otherwise besmirch [the defendant’s] general reputation in the community

for telling the truth” and, therefore, the defendant was not permitted “to


                                     -7-
J-S34001-18


enhance or bolster his testimony in the eyes of the jury by introducing

collateral evidence to establish his reputation for telling the truth”).

      Moreover, counsel did manage to have Ms. Combs’s testimony about

Appellant’s reputation for truthfulness admitted at trial. As such, we are not

convinced that additional, cumulative testimony on that point was likely to

lead to a different verdict. See PCRA Court Opinion, 2/21/18, at 5 (citing

Commonwealth v. Milligan, 693 A.2d 1313, 1319 (Pa.Super. 1997) (“As a

general rule, counsel will not be deemed ineffective for failing to call witnesses

whose testimony is merely cumulative of that of other witnesses.”)).         See

also Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 782 (Pa.Super.

2015) (en banc) (affirming PCRA court’s determination that counsel was not

ineffective in presenting additional character evidence because “any additional

character evidence would have been cumulative”).

      Second, Appellant also failed to demonstrate that the PCRA court erred

in concluding that counsel was not ineffective in failing to offer evidence of

Appellant’s reputation for being a law-abiding citizen. A reputation for being

law-abiding, unlike one for truthfulness, was obviously pertinent to the

charges at hand.      However, once Appellant offered such evidence, the

Commonwealth would have been permitted to rebut it by questioning the

character witnesses about specific instances of Appellant’s conduct.         See

Pa.R.E. 404(a)(2)(A); Pa.R.E. 405(a)(1).




                                      -8-
J-S34001-18


      The certified record reveals that Appellant had a prior record score of

three. See Guideline Sentence Form, 5/17/12. Accordingly, producing such

character evidence at Appellant’s trial would have opened the door to evidence

that Appellant had a history of being the opposite of law-abiding, and/or

demonstrated that his character witnesses were unaware of the criminal

record of this supposedly-law-abiding citizen.     We cannot conclude that

counsel’s failure to call witnesses who would have opened the door to

damaging, otherwise-inadmissible evidence “was so prejudicial as to have

denied [Appellant] a fair trial.”   Washington, supra at 599.       See also

Commonwealth v. Morales, 701 A.2d 516, 526 (Pa. 1997) (“Trial counsel

cannot be deemed ineffective for failing to present character witnesses who

could have been cross-examined about appellant’s prior [convictions].”).

      Therefore, Appellant has failed to meet his burden of convincing this

Court that the PCRA court erred and that relief is due. Commonwealth v.

Feliciano, 69 A.3d 1270, 1275 (Pa.Super. 2013).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2018

                                     -9-
J-S34001-18




              - 10 -
