J-S11041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MARTIN H. CHAMBERS                         :
                                               :
                      Appellant                :   No. 1311 WDA 2016

                   Appeal from the PCRA Order July 21, 2016
                In the Court of Common Pleas of Warren County
              Criminal Division at No(s): CP-62-CR-0000361-2014


BEFORE:      OLSON, RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MARCH 21, 2017

        Appellant, Martin H. Chambers, appeals from the July 21, 2016, order

entered in the Court of Common Pleas of Warren County denying his first

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546, following an evidentiary hearing.           After a careful review, we

affirm.

        The relevant facts and procedural history are as follows:       Appellant

and the victim were in a romantic relationship, and after it ended, Appellant

continued to send unwanted texts and make unwanted phone calls to the

victim.    Becoming concerned for her safety, on September 25, 2014, the



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S11041-17


victim had an alarm system, which included a panic system, activated at her

home.

      On October 7, 2014, at approximately 3:00 a.m., as the victim

attempted to go into her residence, someone grabbed her from behind,

pulled her by the neck, and in a “really weird voice,” ordered her to go into

the house. N.T., Trial, 8/13/15, at 60, 64. Although he was attempting to

disguise his voice, the victim recognized the person as being Appellant. Id.

at 60.   As Appellant pulled the victim into the house, Appellant told the

victim she could turn off the alarm system. Id. at 61. Instead, unbeknownst

to Appellant, the victim entered a four-digit panic code to alert the police

that she was in need of assistance. Id.

      Thereafter, Appellant pulled the victim into one of the rooms and

removed her pants.       Id. at 62.    The victim struggled, and when she

momentarily freed herself, Appellant knocked her down. Id. at 62-63. As

the struggle continued, the police arrived and arrested Appellant.

      On August 13, 2015, Appellant, who was represented by private

counsel, Erika L. Mills, Esquire, proceeded to a jury trial, at the conclusion of

which the jury convicted Appellant of criminal attempt (rape by forcible

compulsion), burglary, aggravated indecent assault, criminal trespass,




                                      -2-
J-S11041-17


stalking, unlawful restraint, false imprisonment, and indecent assault.1

Following trial, Attorney Mills was granted permission to withdraw her

representation,     and    Public   Defender     John   R.   Parroccini   entered   his

appearance on behalf of Appellant. On November 13, 2015, Appellant was

sentenced to an aggregate of one hundred months to two hundred months

in prison. Appellant filed neither post-sentence motions nor a direct appeal.

       On February 29, 2016, Appellant filed a timely, counseled PCRA

petition, and following an evidentiary hearing at which Appellant and

Attorney Mills testified, the PCRA court denied Appellant’s petition on July

21, 2016.     This timely, counseled appeal followed, and all Pa.R.A.P. 1925

requirements have been met.

       Appellant contends the PCRA court erred in failing to find trial counsel

was ineffective on the following basis:

       1. Trial counsel refused to allow [Appellant] to present character
          witness[es];
       2. Trial counsel failed to obtain and present documentation from
          a similar claim by the victim from Skokie, Illinois;
       3. Trial counsel failed to present any lay or expert evidence of
          whether the victim’s mental illness (Bi-Polar Disorder) would
          affect memory;
       4. Trial counsel failed to obtain telephone records of text
          communications between [Appellant] and the victim
          immediately prior to the alleged assault;


____________________________________________


1
  18 Pa.C.S.A. §§ 901, 3502, 3125, 3503, 2709.1, 2902, 2903, and 3126,
respectively.



                                           -3-
J-S11041-17


      5. Trial counsel failed to enlist the services of an investigator to
         assist in [Appellant’s] defense.

Appellant’s Brief at 12.

      Initially, we note:

      We review an order [denying] a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court’s decision on any grounds if
      the record supports it. We 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. Further, where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012) (citations

omitted).

      All of Appellant’s claims allege the ineffective assistance of trial

counsel.     In analyzing claims of ineffective assistance of counsel, we

presume that counsel was effective unless the PCRA petitioner proves

otherwise.    Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167,

1177 (1999).     In order to succeed on a claim of ineffective assistance of

counsel, Appellant must demonstrate (1) that the underlying claim is of

arguable merit; (2) that counsel's performance lacked a reasonable basis;

and (3) that the ineffectiveness of counsel caused Appellant prejudice.

Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523 (2009). “[Where]

the underlying claim lacks arguable merit, counsel cannot be deemed


                                     -4-
J-S11041-17


ineffective for failing to raise it.” Commonwealth v. Koehler, 614 Pa. 159,

36 A.3d 121, 140 (2012).       Appellant bears the burden of proving each of

these elements, and his “failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” Commonwealth v.

Daniels, 600 Pa. 1, 963 A.2d 409, 419 (2009) (citation omitted). With this

standard in mind, we address each of Appellant's claims.

      With regard to Appellant’s claim that trial counsel was ineffective in

failing to present character witnesses on behalf of Appellant, Appellant is

required to demonstrate:

      (1) the witness existed; (2) the witness was available; (3)
      counsel was informed of the existence of the witness or counsel
      should otherwise have known of him; (4) the witness was
      prepared to cooperate and testify for Appellant at trial; and (5)
      the absence of the testimony prejudiced Appellant so as to deny
      him a fair trial.    A defendant must establish prejudice by
      demonstrating that he was denied a fair trial because of the
      absence of the testimony of the proposed witness.

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004) (internal

citations and quotation omitted).

      Here, in rejecting Appellant’s claim, the PCRA court set forth the

following rationale in its opinion:

           At the time of the PCRA hearing, Appellant testified that he
      requested that trial counsel call character witnesses on his behalf
      and that she did not do as he requested. [N.T., PCRA hearing,
      7/21/16, at 6-7.] Appellant did not elaborate as to the identity
      of any such witnesses or as to the testimony that they would




                                      -5-
J-S11041-17


       have provided had they been called.2 [Id.] At the time of the
       PCRA hearing, trial counsel testified that she did not call
       character witnesses on Appellant’s behalf, because she was
       aware of Appellant’s prior criminal history, involving a domestic
       violence incident, involving his ex-wife[,] and trial counsel was
       concerned that had character evidence been presented, it would
       have opened the door to other damaging evidence that could
       then have been presented by the Commonwealth. [Id. at 13.]
       Trial counsel testified that she did not feel that such disclosures
       would have been in the best interests of [Appellant]. [Id.]

PCRA Court Opinion, filed 10/11/16, at 4-5 (footnote added).

       Based on the aforementioned, the PCRA court concluded that Appellant

did not meet his burden as he did not establish the identity of any character

witnesses who would have been prepared to cooperate and testify favorably

for him.    Id. at 5.    Alternatively, the PCRA court noted that trial counsel

provided a reasonable, strategic basis for not calling character witnesses, in

general, since such evidence would “open the door” for the Commonwealth

to cross-examine the witnesses concerning bad-character evidence. Id.

       We agree with the PCRA court’s sound reasoning and conclude

Appellant is not entitled to relief on this ineffective assistance of counsel

claim.   Commonwealth v. Hull, 982 A.2d 1020, 1023 (Pa.Super. 2009)

(“Counsel has a reasonable, strategic basis for not calling character

witnesses if he has a legitimate reason to believe that the Commonwealth

would cross-examine the witnesses concerning bad-character evidence.”)
____________________________________________


2
  During the PCRA hearing, the PCRA court asked Appellant for the identity
of the alleged character witnesses, and Appellant indicated that he did not
have a list. N.T., PCRA hearing, 7/21/16, at 7.



                                           -6-
J-S11041-17


(citations   omitted));     O’Bidos,   supra   (setting   forth   requirements   to

demonstrate counsel was ineffective in failing to present witnesses).

      With regard to Appellant’s claim that trial counsel was ineffective in

failing to obtain and present documentation regarding a similar claim of

sexual abuse the victim allegedly made against her ex-husband in Skokie,

Illinois, we conclude that Appellant is not entitled to relief.

      During the PCRA hearing, Appellant relevantly testified as follows on

direct-examination:

      Q: Okay. All right. All right. My next question, did you make
      [trial counsel] aware of a similar claim made by the victim in
      Skokie, Illinois now?
      A: Yes, sir. I did.
      Q: And, did she follow up and get any type of documentation
      relating to that claim?
      A: I told her toward the end of November, early December of
      2014 about this other, this similar claim. And, I found out that
      she had called, but never, she never subpoenaed anything. She
      called, I believe, in March, April, and maybe [ ] May or June.
      But, she never subpoenaed anything.
            And, we had never gotten anything from Skokie, Illinois
      Police Department.

N.T., PCRA hearing, 7/21/16, at 7-8.

      Trial counsel relevantly testified as follows on direct-examination

during the PCRA hearing:

      Q: Okay. Thank you. With regards to the allegations that
      something about a prior claim or present documentation from a
      similar claim by the victim in Skokie, Illinois. What can you tell
      us about that?




                                        -7-
J-S11041-17


      A: [Appellant] made me aware of a, he told me about, he said
      that there was an incident in Skokie, Illinois in 2006, between
      the victim in this case, [] and her ex-husband.
            Where, she had, apparently, made similar accusations
      against the ex-husband to what she made in the underlying case
      here.
           I did request, I did make a Freedom of Information Act
      request of the village of Skokie. That request was transmitted to
      them via email on March 9th of 2015. I received a response back
      from them indicating that, that request was in progress as of
      March 10th. So, I know that they received it.
      Q: Did you ever receive anything by way of records in regard to
      the victim in Skokie, Illinois?
      A: I did not. No.
      Q: So what, did you, strike that. So, there are no records from
      Skokie, Illinois, but you did make a request for them?
      A: I did make a request, and I did not receive anything in
      response to that request. No.
      Q: You were the defense counsel at the trial?
      A: I was.
                                  ***
      Q: During that trial, did, was there any [sic] anything brought up
      about the Skokie, Illinois alleged claim?
      A: My recollection, I believe [Appellant], himself actually had
      mentioned that during his testimony.
      Q: Okay. And, is it fair to say that he testified about this issue
      [that allegedly occurred] in Skokie, Illinois?
      A: I believe he did, to the best of my recollection, I believe he
      did.

Id. at 13-18.

      A review of the jury trial transcript confirms that Appellant testified at

trial as follows on direct-examination regarding the alleged Skokie, Illinois

incident:



                                     -8-
J-S11041-17


      A: At 6:30 in the morning or 7:30 in the morning our time, 6:30
      Chicago time, [the victim] calls me crying and drops the phone.
      And, her ex-husband gets on the phone, and I hear her yelling, I
      hate you, Joe. Why the F did you do that?
            And she gets back on the phone. I said, what happened?
      She said, he took advantage of me while I was passed out. And,
      I could not believe this. I told her, I said, you need to call the
      cops. She called Skokie Police, hung up with me because they
      were there.
      Q: Did she later tell you anything different about that incident?
      A: Well, a week later, she was at the house with me, again, in
      my trailer, where the Sheetz is now in North Warren. I was in
      the trailer park there. And, we were drinking and I asked her
      about it.
            I said, well, did you put your legs around him? She looked
      at the floor. And, I said, just tell me. She kind of nodded her
      head and said, yes.
            I said, did you put your arms around him? She said, yes. I
      said, did you kiss him? She said, yes. Then I said, he didn’t
      rape you [.] I said, you cheated on me.
            And, she began to cry, begging me, please don’t leave me.
      Please, please don’t leave. We will work it out. Don’t worry, we
      can work this out. We can work anything out.
      Q: So, she admitted to you she wasn’t faithful?
      A: Yes. She admitted to me. She also had said that she was
      upset with the police in Skokie, because they had walked in the
      house, and instead of saying, Mr. St. Clair, they called him by his
      first name.
            But, it’s still the fact, you know, she is, she had done this
      back in 2006. And I even asked her, I said, why? She said,
      because I felt comfortable with him. I did. I felt really
      comfortable with him.

N.T., Trial, 8/13/15, at 156-57.

      Based on the aforementioned, the PCRA court rejected Appellant’s

ineffectiveness claim for the following reasons:




                                     -9-
J-S11041-17


          1) The alleged Illinois incident is remote in time; 2) Appellant did
          not present any documentation of the incident at the time of his
          PCRA hearing and thus failed to establish that any such
          documentation existed; 3) Trial counsel sought to discover the
          existence of such documentation through the proper channels
          and was unable to substantiate the existence of such evidence
          despite her efforts; and 4) Even if such evidence did exist, trial
          counsel[’s] failure to obtain and present documentation from a
          similar claim by the victim from Skokie, Illinois, did not present a
          reasonable probability that the outcome of the proceedings
          would have been different given the fact that Appellant was
          provided with a full and ample opportunity to testify[, and in fact
          did testify] as to these matters at the time of his trial.

PCRA Court Opinion, filed 10/11/16, at 6.

          The PCRA court’s determination is supported by the evidence of record

and is free of legal error. Ford, supra.           Simply put, Appellant has failed to

demonstrate        the   three   prongs    necessary     to   establish   a   claim   of

ineffectiveness. See Johnson, supra.

          With regard to Appellant’s claim that trial counsel was ineffective in

failing to present lay or expert evidence of whether the victim had a mental

illness that affected her memory, we conclude Appellant is not entitled to

relief.

          Our Supreme Court has relevantly held as follows:

          When a witness suffers from a mental disability relevant to his or
          her ability to accurately observe, recall or report events, the jury
          must be informed of the disability in order to assist it in properly
          assessing the weight and credibility of the witness's testimony.
          The evidence can be said to affect credibility when it shows that
          the witness’s mental disorganization impaired his or her capacity
          to observe an event at the time of its occurrence, to maintain a
          clear recollection of it, or to communicate the observation
          accurately and truthfully at trial.


                                          - 10 -
J-S11041-17


Commonwealth v. Davido, 630 Pa. 217, 106 A.3d 611, 637 (2014)

(citations omitted).

         Initially, we note that, aside from his own self-serving testimony,

which the PCRA court was free to reject, Appellant did not offer any evidence

at the PCRA hearing establishing that the victim suffered from a mental

illness, which affected her memory at the time of or after the incident at

issue.    Moreover, as trial counsel testified at the PCRA hearing, Appellant

informed trial counsel that there was no indication the victim was actively

involved in any type of psychological or psychiatric treatment. N.T., PCRA

hearing, 7/21/16, at 19. Thus, trial counsel noted that there was no treating

physician who could offer any kind of opinion regarding whether the victim

suffered from a mental illness and, if so, whether such would have affected

her memory.       Id.    In any event, trial counsel testified that the victim

admitted at trial that her memory was “faulty” and not “perfect or [] clear on

what      had   taken   place”   such   that     the   defense   “already   had   the

acknowledgment that [the victim] couldn’t remember well enough.” Id.

         Based on the testimony presented at the PCRA hearing, the PCRA

court concluded trial counsel had a reasonable, strategic basis for not

presenting lay or expert evidence of whether the victim had a mental illness

that would affect her memory and, additionally, since the victim admitted

that her memory was faulty, Appellant was not prejudiced.              PCRA Court’s




                                        - 11 -
J-S11041-17


Opinion, filed 10/11/16, at 7. The PCRA court’s determination is supported

by the evidence of record and is free of legal error. Ford, supra.

      With regard to Appellant’s claim that trial counsel was ineffective in

failing to obtain telephone records of text communications between

Appellant and the victim which occurred immediately prior to the alleged

assault, we conclude Appellant is not entitled to relief.

      At the PCRA hearing, trial counsel testified that she, in fact, obtained

the telephone records at issue. N.T., PCRA hearing, 7/21/16, at 20.

Specifically, trial counsel testified:

            [T]he Commonwealth provided to me the entire disk with
      the data dump from the whole phone. There were 4,000 some
      pages worth of information there.
           This was provided to me literally on the eve of trial. This
      was provided to me [at] approximately 3:00 o’clock, I believe,
      the day before; maybe it was two days before, if I am
      remembering correctly.
             I did speak to [Appellant] about that at the time because I
      was concerned about being able to review all of that in the time
      period that we had left between when I received them and when
      the trial was going to take place.
            And, he did not want the trial to be continued. He wanted
      it over with. He wanted it done with. He wanted to move on
      with his life. And, he told me that the, he didn’t feel that the
      text messages would show anything that helpful, anyway.
            I did review all of the text messages, anyway. And, I
      couldn’t find anything that would have contradicted that he had
      no contact with [the victim] within the two weeks prior.
            And, I was also concerned reviewing them that there were
      messages in there that, where she is advising him to stop
      contacting her and things like that. And, I was concerned that if
      we tried to being that up, it would open the door to the rest of
      those messages also coming in.


                                         - 12 -
J-S11041-17


Id. at 20-21.

     As was within its province, the PCRA court found trial counsel’s

testimony to be credible.   See Ford, supra.     Specifically, the PCRA court

concluded that trial counsel “not only obtained the records at issue, but also

reviewed them and ultimately reached the conclusion that there was nothing

that would have been helpful to Appellant.     In fact, trial counsel felt that

some of the records would [] be potentially harmful to Appellant.” PCRA

Court Opinion, filed 10/11/16, at 8. Accordingly, the PCRA court found no

merit to Appellant’s claim and, additionally, that trial counsel had a

reasonable basis for not utilizing the telephone records. The PCRA court’s

determination is supported by the evidence of record and is free of legal

error. Ford, supra.

     With regard to Appellant’s claim that trial counsel was ineffective in

failing to enlist the services of an investigator to assist in Appellant’s

defense, it is well-settled that “the [f]ailure of trial counsel to conduct a

more intensive investigation or to interview potential witnesses does not

constitute ineffective assistance of counsel, unless there is some showing

that such investigation or interview would have been helpful in establishing

the asserted defense.” Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d

293, 306 (1999) (citations omitted).

     Here, during the PCRA hearing, Appellant relevantly testified as follows

on direct-examination:


                                    - 13 -
J-S11041-17


            Q: Okay. At any time were you aware whether or not [trial
      counsel] had enlisted the services of an investigator to assist in
      your defense?
            A: I was never even offered about it. She never spoke
      about it. And, being she is [a] lawyer, I left it in her hands
      thinking that it was the right thing.
            Q: Okay. Okay?
            A: So, no. She never even mentioned an investigator.

N.T., PCRA hearing, 7/21/16, at 9.

      Trial counsel admitted she did not enlist the services of an investigator

and, explained, in relevant part, the following:

             The reason for that was the, this incident was, there was
      no indication whatsoever that this occurred in any way or in any
      place other than inside a private residence, between two
      individuals.
            There were no witnesses. No eye witnesses identified by
      [Appellant] that would have needed interviewing. There were
      two friends of [the victim’s] that had been with [the victim] prior
      to the incident.
            But, their statements were provided to me as part of
      discovery. I simply didn’t feel that it was necessary to employ
      the services of an investigator. I didn’t think it would reveal
      anything else.

Id. at 21-22.

      Based on the aforementioned, we agree with the PCRA court that

Appellant failed to demonstrate that an investigator would have been helpful

to his defense. See PCRA Court Opinion, filed 10/11/16, at 9-10.

Accordingly, trial counsel cannot be deemed ineffective on this basis. See

Pursell, supra.

      For all of the foregoing reasons, we affirm.


                                     - 14 -
J-S11041-17


     Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2017




                          - 15 -
