J-S59037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JULIAN FRISBY,                             :
                                               :
                       Appellant               :   No. 3522 EDA 2017

                Appeal from the PCRA Order September 28, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008244-2011


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED DECEMBER 31, 2018

       Julian Frisby appeals from the order entered September 28, 2017, in the

Philadelphia County Court of Common Pleas, dismissing his first petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Frisby seeks relief from a term of life imprisonment without parole for first-

degree murder, and concurrent sentences of ten to 20 years for criminal

conspiracy and one to two years for firearms not to be carried without a

license.2 On appeal, Frisby contends trial counsel was ineffective for failing to

call a character witness. For the reasons below, we affirm.


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1   See 42 Pa.C.S. §§ 9541-9546.

2  See 18 Pa.C.S. §§ 2502(a), 903(c), and 6106(a)(1). Frisby was also
convicted of possession of an instrument of crime, 18 Pa.C.S. § 907(a), but
the court did not impose a further penalty regarding the crime.
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      The facts underlying Frisby’s convictions are well-known to the parties

and we need not reiterate them in detail herein. See Commonwealth v.

Frisby, 120 A.3d 388 [1148 EDA 2014] (Pa. Super. 2015) (unpublished

memorandum), appeal denied, 119 A.3d 350 (Pa. 2015). To summarize the

procedural history, on May 5, 2011, Frisby was arrested and charged with the

shooting death of Jarell Seay. On July 29, 2013, Frisby elected to be tried by

a jury, but his first trial ended in a mistrial after the jury failed to reach a

unanimous decision. On March 20, 2014, after a retrial, the jury convicted

Frisby of the above-mentioned crimes. On March 21, 2014, the court imposed

an aggregate sentence of life imprisonment without the possibility of parole.

      Frisby filed a direct appeal, challenging the sufficiency of evidence with

respect to his convictions.   On February 23, 2015, a panel of this Court

affirmed the judgment of sentence, and on August 4, 2015, the Pennsylvania

Supreme Court denied his petition for allowance of appeal.             See id.

Thereafter, on March 4, 2016, Frisby filed a pro se PCRA petition. Counsel

was appointed who filed an amended petition on April 12, 2017. On July 6,

2017, the PCRA court issued a notice of intention to dismiss Frisby’s petition

without a hearing pursuant to Rule 907. Frisby filed pro se a response on July




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13, 2017.3 On September 28, 2017, the PCRA court dismissed the petition.

This appeal followed.4, 5

       In his sole issue on appeal, Frisby claims trial counsel was ineffective for

failing to call his grandfather, Henry Frisby, as a character witness to testify

to Frisby’s reputation for being a nonviolent individual. See Frisby’s Brief at



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3  The PCRA court noted that in his response, Frisby did not raise any new
issues,

       but instead aver[red] that he had not communicated with his
       attorney since December 12, 2016 and was unaware of the issues
       PCRA counsel had raised on his behalf. On July 19, 2017, [the
       PCRA c]ourt forwarded [Frisby]’s letter to PCRA counsel
       requesting assurance that counsel was in contact with his client.
       On August 10, 2017, after counsel indicated that he had not
       communicated with his client, [the PCRA c]ourt continued the
       matter so counsel could contact [Frisby].

PCRA Court Order and Opinion, 9/28/2017, at 2 n.2. On August 23, 2017,
PCRA counsel filed a letter-in-brief indicating Frisby wished to raise an
additional issue concerning whether a juryperson was forced to remain on the
panel despite alleging she could not hear the case for religious or moral
reasons. Id. at 2, n.3. The PCRA court continued the matter so that notes of
testimony from the voir dire could be completed and reviewed. On September
27, 2017, PCRA counsel submitted a second letter-in-brief, indicating: (1) he
had reviewed the testimony wherein the potential juror in question was
excused for cause by agreement, and (2) he no longer wished to raise that
issue. Id.

4 The PCRA court did not order Frisby to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).

5 On April 6, 2018, by per curiam order, this Court found counsel failed to file
an appellate brief and remanded the matter to determine whether counsel had
abandoned Frisby and to take further action as required to protect his right to
appeal. See Order, 4/6/2018. The PCRA court removed prior counsel from
the matter and appointed new PCRA counsel on May 1, 2018.

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9. Frisby states that while his mother, Alexis Frisby, testified as to Frisby’s

good character for being law-abiding, she “did not testify as to [her son]’s

character for being peaceful and nonviolent.” Id. at 12-13. Therefore, Frisby

contends his grandfather’s testimony would have been of most importance

because:

            First, [Henry] Frisby’s testimony would not have been
      cumulative because [Alexis] Frisby did not discuss [Frisby]’s
      reputation for being peaceful.

            Second, [Alexis] Frisby’s testimony was rebutted by police
      and she is [Frisby]’s mother. The presentation of [Henry] Frisby
      could have rebutted Officer [Dionne] Madison’s testimony and
      [Henry] Frisby’s testimony would have provided at least some
      objectivity since he was not [Frisby]’s mother.

Id. at 13. Additionally, Frisby states:

      Trial counsel had no reasonable basis for not presenting [Henry]
      Frisby, an available witness, to testify as to [his] character for
      being peaceful/nonviolent. [Henry] Frisby was available and
      willing to testify. [Frisby] suffered prejudice because another
      individual, Alan Berks, had similar tattoos to [Frisby], his DNA was
      recovered from the crime scene, and the trial court noted issues
      associated with the prosecution in relation to [Frisby] and Berks.

Id. (record citations omitted).

      We begin with our well-settled standard of review:

      Our standard of review of a PCRA court’s dismissal of a PCRA
      petition is limited to examining whether the PCRA court’s
      determination is supported by the evidence of record and 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.

      In order to prevail on a claim of ineffective assistance of counsel,
      an appellant must show three things: that the underlying claim
      has arguable merit, that counsel’s performance was not

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     reasonably designed to effectuate the defendant’s interests, and
     that counsel’s unreasonable performance prejudiced the
     defendant. A defendant 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. Sampson, 900 A.2d 887, 890 (Pa. Super. 2006)

(quotations and citations omitted), appeal denied, 907 A.2d 1102 (Pa. 2006).

     As a general rule, evidence of a person’s character may not be
     admitted to show that individual acted in conformity with that
     character on a particular occasion. Pa.R.E. 404(a). However,
     Pennsylvania Rule of Evidence 404(a)(1) provides an exception
     which allows a criminal defendant to offer evidence of his or her
     character traits which are pertinent to the crimes charged and
     allows the Commonwealth to rebut the same. Pa.R.E. 404(a)(1).
     This Court has further explained the limited purpose for which this
     evidence can be offered:

        It has long been the law in Pennsylvania that an individual
        on trial for an offense against the criminal law is permitted
        to introduce evidence of his good reputation in any respect
        which has “proper relation to the subject matter” of the
        charge at issue. Such evidence has been allowed on a
        theory that general reputation reflects the character of the
        individual and a defendant in a criminal case is permitted to
        prove his good character in order to negate his participation
        in the offense charged. The rationale for the admission of
        character testimony is that an accused may not be able to
        produce any other evidence to exculpate himself from the
        charge he faces except his own oath and evidence of good
        character.

        It is clearly established that evidence of good character is to
        be regarded as evidence of substantive fact just as any
        other evidence tending to establish innocence and may be
        considered by the jury in connection with all of the evidence
        presented in the case on the general issue of guilt or
        innocence. Evidence of good character is substantive and
        positive evidence, not a mere make weight to be considered
        in a doubtful case, and, ... is an independent factor which
        may of itself engender reasonable doubt or produce a

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         conclusion of innocence. Evidence of good character offered
         by a defendant in a criminal prosecution must be limited to
         his general reputation for the particular trait or traits of
         character involved in the commission of the crime charged.
         The cross-examination of such witnesses by the
         Commonwealth must be limited to the same traits. Such
         evidence must relate to a period at or about the time the
         offense was committed, and must be established by
         testimony of witnesses as to the community opinion of the
         individual in question, not through specific acts or mere
         rumor.

Commonwealth v. Johnson, 27 A.3d 244, 247-248 (Pa. Super. 2011), citing

Commonwealth v. Luther, 463 A.2d 1073, 1077-1078 (Pa. Super. 1983)

(citations omitted).   See also Commonwealth v. Goodmond, 190 A.3d

1197, 1201-1202 (Pa. Super. 2018). Moreover,

         when raising a claim of ineffectiveness for the failure to call
         a potential witness, a petitioner satisfies the performance
         and prejudice requirements of the [Strickland v.
         Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
         674 (1984),] test by establishing 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. Sneed, 616 Pa. 1, 45 A.3d 1096, 1108-09
      (Pa. 2012). “To demonstrate Strickland prejudice, a petitioner
      must show how the uncalled witnesses’ testimony would have
      been beneficial under the circumstances of the case.” Sneed, 45
      A.3d at 1109. Counsel will not be found ineffective for failing to
      call a witness “unless the petitioner can show that the witness’s
      testimony would have been helpful to the defense. A failure to
      call a witness is not per se ineffective assistance of counsel for
      such decision usually involves matters of trial strategy. Id.
      (internal quotation marks and citations omitted).




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Commonwealth v. Matias, 63 A.3d 807, 810-811 (Pa. Super. 2013), appeal

denied, 74 A.3d 1030 (Pa. 2013).

     Here, the PCRA court found the following:

            At trial, [Frisby] called his mother, Alexis Frisby, to testify
     about his reputation for good character in the community,
     specifically his reputation as a quiet man, a law-abiding citizen,
     and that he was not a member of a gang. N.T., 3/17/2014 at 132.
     In the instant petition, [Frisby] claims that trial counsel was
     ineffective for failing to call his grandfather, Henry Frisby, as an
     additional character witness, who would testify that [Frisby] was
     law-abiding, peaceful, and not affiliated with a gang. [Frisby]
     characterizes Henry Frisby as ready, willing and able to testify at
     trial, where he would have countered the Commonwealth’s theory
     of motive that the shooting was gang-related.

           The procedure of the instant matter closely resembles that
     of Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997). In Hall,
     the appellant presented character testimony from his mother and
     the mother of his child, each of whom testified to his good
     character. On collateral review, the appellant argued that counsel
     was ineffective for failing to call five witnesses, four of whom were
     unrelated, to testify to the appellant’s good reputation in the
     community. Id. at 204-206. In rejecting this claim, the Supreme
     Court determined that each witness would present cumulative
     testimony, precluding any finding of ineffectiveness. Id. at 205-
     206.

            Here, trial counsel cannot be held ineffective for failing to
     call Henry Frisby as a character witness because his testimony
     would merely be cumulative of Alexis Frisby’s testimony.
     Assuming that each of [Frisby]’s averments are true, Henry Frisby
     would testify that [Frisby] had a reputation as a peaceful, law-
     abiding, and non-gang-affiliated individual. Alexis Frisby was
     equally as capable of presenting that testimony, and in fact did
     so. Unlike the proposed witnesses in Hall, Henry Frisby is related
     to [Frisby], and could be considered equally as credible as Alexis
     Frisby given their familial status.      Although the proposed
     witnesses in Hall may be considered more credible as unbiased,
     unrelated character witnesses, the Supreme Court nonetheless
     found their proposed testimony cumulative.


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              Henry Frisby’s proposed testimony is duplicative of Alexis
       Frisby’s testimony and creates no additional fact basis to sway a
       jury to change the instant verdict. Moreover, his proposed
       testimony was also directly contra[dicted] at trial. In rebuttal to
       Alexis Frisby’s testimony, the Commonwealth presented Officer
       Dionne Madison, who testified that [Frisby] did not have a
       reputation as a peaceful and law-abiding citizen, but was silent
       with respect to his gang membership. [N.T., 3/17/2014 at 135].
       The jury considered Alexis Frisby’s testimony concerning
       [Frisby]’s reputation and rejected it. Having an additional family
       member reiterate identical testimony at trial would not change the
       outcome of the case, especially after a Commonwealth witness
       directly contradicted the proposed testimony. [Frisby] fails to
       demonstrate prejudice.

PCRA Court Order and Opinion, 9/28/2017, at 6-8.

       We agree with the PCRA court that Frisby failed to demonstrate

prejudice. See Matias, supra. Frisby’s counsel presented his mother as a

character witness for being law-abiding and not a member of a gang, whose

testimony was rebutted by the Commonwealth.6              Contrary to Frisby’s

argument, one can reasonably infer the character trait of being law-abiding

also includes being peaceful and non-violent.7       As such, calling Frisby’s

grandfather, Henry Frisby, would have been cumulative, merely repeating the

testimony of Frisby’s mother. Moreover, it is reasonably unlikely that having


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6   See N.T., 3/17/2014, at 131-135.

7  See Commonwealth v. Rashid, 160 A.3d 838, 849 (Pa. Super. 2017)
(concluding convictions for drug dealing and possession of an illegal firearm
were relevant to determining whether defendant has a reputation for being
peaceful and nonviolent), appeal denied, 170 A.3d 976 (Pa. 2017).




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the grandfather take the stand at Frisby’s trial would have “been beneficial

under the circumstances of the case.” Sneed, 45 A.3d at 1109.8 Accordingly,

trial counsel cannot be deemed ineffective for failing to call Henry Frisby as a

character witness. Therefore, we conclude the trial court did not err in denying

Frisby relief under the PCRA.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/18




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8   Additionally, it merits emphasis that four eyewitnesses, including the
victim’s father, grandfather, a friend, and neighbor, testified Frisby was at the
victim’s house at the time of the murder.

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