J-S33039-18

                                   2018 PA Super 168

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES GOODMOND                           :
                                               :
                       Appellant               :   No. 3349 EDA 2016

                Appeal from the PCRA Order September 23, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004767-2009


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                               FILED JUNE 15, 2018

       Appellant Charles Goodmond appeals from the denial of his first petition

filed pursuant to the Post Conviction Relief Act (PCRA).1 We affirm.

       Appellant was convicted of rape, involuntary deviate sexual intercourse

(“IDSI”), unlawful contact with a minor, aggravated indecent assault without

consent, incest, endangering the welfare of a child, and corruption of a minor.2

A panel of this Court previously set forth the relevant facts which led to these

convictions as follows:

             [Appellant] assaulted his daughter, C.M., over a four year
       period, beginning when C.M. was nine-years-old. C.M., who lived
       with her mother, visited [Appellant] every other weekend. C.M.
       stated that [Appellant] would take advantage of these visits to
       assault her. C.M. indicated that the first assault occurred while
       C.M. was visiting [Appellant] at his girlfriend’s house in
       Philadelphia.   C.M. testified that while she was sleeping,
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1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. §§ 3121, 3123, 6318, 3125, 4302, 4304, and 6301,
respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      [Appellant] carried her from her bed to the living room sofa, where
      he laid her on top of him and began to rub her buttocks.
      [Appellant] then placed C.M. on the floor and exposed his penis.
      He made her rub his penis with her hand and then inserted it into
      her mouth and moved her head “up and down.”
            C.M. testified that [Appellant] continued to force her to
      perform oral sex on him nearly every time she visited him. C.M[.]
      also testified that [Appellant] inserted his fingers in her vagina on
      several of these occasions. Once, while C.M. was visiting
      [Appellant] at her grandmother’s house, [Appellant] forced her to
      suck his penis, ejaculated in her mouth and had her spit his semen
      into a soda bottle.
            C.M. testified that she tried to stop seeing [Appellant], and
      that she became depressed and began to cut herself as a result of
      the abuse. Eventually, C.M. told a counselor at a psychiatric
      inpatient facility that [Appellant] had sexually abused her.
      [Appellant] was subsequently arrested.

Commonwealth          v.   Goodmond,        No.   185    EDA     2012,   unpublished

memorandum at 1-2 (Pa.Super. filed July 23, 2013).

      Following   a   non-jury    trial,   Appellant    was    found   guilty   of   the

aforementioned crimes.       On June 17, 2011, Appellant was sentenced to

consecutive terms of ten (10) years to twenty (20) years in prison for the rape

conviction and five (5) years to ten (10) years in prison for the IDSI conviction.

The trial court further ordered that these prison terms would be followed by

four consecutive terms of five (5) years’ probation for the unlawful contact

with a minor, aggravated indecent assault, incest, and endangering the

welfare of a child convictions.

      Appellant filed post-sentence motions, which the trial court denied.

Appellant thereafter filed a timely notice of appeal. As the trial court was no

longer sitting on the bench at the time Appellant filed his appeal, a concise


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statement pursuant to Pa.R.A.P. 1925(b) was neither ordered nor filed. This

Court denied the appeal in a memorandum decision filed on July 23, 2013.

Commonwealth v. Goodmond, 82 A.3d 1074 (Table).

      On July 16, 2014, Appellant filed the instant PCRA petition. Counselled

amended petitions were filed on September 3, 2015, and on August 26, 2016.

The PCRA court dismissed Appellant’s petition on September 23, 2016, and

the instant appeal followed on October 21, 2016. The trial court issued its

Order pursuant to Pa.R.A.P. 1925(b) on March 31, 2017, and Appellant filed

his Statement of Matters Complained of on April 18, 2017.

      In his appellate brief, Appellant presents the following Statement of

Questions Involved:

      1.     Did the trial court err by dismissing the Post Conviction
      Relief Act (PCRA) petition of [Appellant] because trial counsel was
      ineffective for failing to call any character witnesses to testify on
      [Appellant’s] good character?

      2.    Did the trial court err by dismissing the Post Conviction
      Relief Act (PCRA) petition of [Appellant] where trial counsel was
      ineffective for failing to obtain the lab results from the rape kit to
      determine whether the victim had gonorrhea?

Brief of Appellant at 3 (unnecessary capitalization omitted).

      The applicable standards of review regarding the dismissal of a PCRA

petition and ineffectiveness claims are as follows:

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court's determinations are supported by the record and are
      free of legal error. The PCRA court's credibility determinations,
      when supported by the record, are binding on this Court; however,
      we apply a de novo standard of review to the PCRA court's legal
      conclusions.

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Commonwealth v. Roney, 622 Pa. 1, 15-16, 79 A.3d 595, 603 (2013)

(citation omitted), cert. denied, 135 S.Ct. 56, 190 L.Ed. 56, 83 USLW 3185

(2014).

      In order to obtain relief on an ineffectiveness 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. Trial
      counsel is presumed to be effective, and Appellant bears the
      burden of pleading and proving each of the three factors by a
      preponderance of the evidence.

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013) (citations

omitted). “A court is not required to analyze the elements of an ineffectiveness

claim in any particular order of priority; instead, if a claim fails under any

necessary element of the ineffectiveness test, the court may proceed to that

element first.” Commonwealth v. Tharp, 627 Pa. 673, 692, 101 A.3d 736,

747 (2014) (citations omitted).

      Appellant first asserts counsel was ineffective for failing to call any

character witnesses to testify as to Appellant’s good character. Appellant

attached to his first supplemental PCRA petition affidavits of his mother, Diane

Harris, and another woman, Linda Ansley, which indicated they would testify

as to his reputation in the community for “being honest” and “telling the

truth.” See Petition for Post Conviction Collateral Relief, filed September 3,


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2015, Exhibit “A.” Appellant contends such testimony would not have been

utilized either to bolster or to impeach a witness, but rather baldly states that:

             The importance of character testimony is extremely
       important in the case at bar because the conviction of Appellant
       [] of assaulting C.M. over a four year period beginning when she
       was 9 years old is based primarily on the testimony of C.M. The
       disclosure by C.M. happened when she told a counselor at a
       psychiatric inpatient facility that Appellant [ ] had sexually abused
       her. Appellant [ ] was subsequently arrested.
             Character testimony was therefore extremely important in
       order to raise a reasonable doubt.

Brief of Appellant at 10-11, 17-18.3

       We begin by noting that other than the aforementioned quotation,

Appellant’s argument on this point is comprised primarily of quotations and

paraphrases of literary works and other writings by what Appellant refers to

as “authors and other luminaries.”             See Brief of Appellant at 8-11, 15-18.

Because this claim is undeveloped, we could find it waived, for this Court will

not act as counsel and will not develop arguments on behalf of an appellant.

See In re R.D., 44 A.3d 657, 674 (Pa.Super. 2012), appeal denied, 618 Pa.

677, 56 A.3d 398 (2012); Commonwealth v. Jones, 583 Pa. 130, 140, 876

A.2d 380, 386 (2005) (undeveloped claims based upon a boilerplate assertion

of counsel’s ineffectiveness cannot establish counsel’s ineffectiveness).

Notwithstanding, this claim lacks merit.

            As a general rule, evidence of a person's character may not
       be admitted to show that individual acted in conformity with that
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3Appellant presents the same argument in both the “Summary of Argument”
and “Argument” portions of his brief.

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     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 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.




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Commonwealth v. Johnson, 27 A.3d 244, 247–48 (Pa.Super. 2011) (citing

Commonwealth v. Luther, 463 A.2d 1073, 1077–78 (Pa.Super. 1983)

(citations omitted; emphasis added)).

      Our Supreme Court has determined that “[t]he failure to call character

witnesses does not constitute per se ineffectiveness.” Commonwealth v.

Treiber, 632 Pa. 449, 498, 121 A.3d 435, 463 (2015) (citation omitted). It

is axiomatic that when a PCRA petitioner claims counsel was ineffective for

failing to call a witness, he or she must establish “(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.” Id. at 498,

121 A.3d at 464.

      As stated previously, attached to Appellant’s PCRA petition are two

almost identical affidavits, neither of which is witnessed or notarized, which

indicate that each potential witness was aware of Appellant's reputation in the

community for “being honest” and “telling the truth,” was available to testify

at trial, and was never asked to do so by trial counsel. See Amended PCRA

Petition, filed September 3, 2015, Exhibit “A.” However, Appellant failed to

demonstrate to the PCRA court or to this Court that trial counsel had been

aware of these particular witnesses at the time of trial, or should have been

aware of them.     Also, Appellant has failed to establish the absence of the


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proposed witnesses’ testimony was so prejudicial as to deny him a fair trial

(See Commonwealth v. Paddy, 609 Pa. 272, 292, 15 A.3d 431, 443 (2011)

(stating “boilerplate allegations and bald assertions of no reasonable basis

and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that

counsel was ineffective.”). Because Appellant has failed to meet his burden

of proving counsel had been ineffective for failing to call Ms. Harris and Ms.

Ansley, he is not entitled to relief.4

       Appellant next posits trial counsel was ineffective for his failure to obtain

evidence that C.M. did not have gonorrhea and that Appellant did have the

disease. Appellant first raised this claim in his Second Amended Petition for

Post-Conviction Collateral Relief filed on August 26, 2016; however, Appellant

has preserved it, as the PCRA court had granted Appellant several

continuances      to   enable    the    filing   of   an   amended   petition.   (See

Commonwealth v. Mason, 634 Pa. 359, 401 n. 30, 130 A.3d 601, 626 n.

____________________________________________


4 The PCRA court found Appellant’s first claim lacked merit in light of well-
established precedent that evidence of a witness’s character for truthfulness
or honesty is inadmissible to bolster the witness’s testimony unless the
witness’s truthfulness and honesty were attacked first. The PCRA court
reasoned that the testimony of Ms. Harris and Ms. Ansley would likely not
have been permitted because “only C.M.’s testimony contradicting Appellant’s
testimony, and the testimony of Appellant elicited through cross-examination,
were used to impeach Appellant, as opposed to bad character evidence. As
such, trial counsel had a reasonable basis for not introducing [their]
testimony.” PCRA Court Opinion, filed 7/31/17, at 6. This Court is not bound
by the rationale of the lower court, and we may affirm it on any basis.
Commonwealth v. Williams, 73 A.3d 609, 617 (Pa.Super. 2013), appeal
denied, 624 Pa. 690, 87 A.3d 320 (2014).



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30 (2015) (stating a PCRA petitioner may not raise new claims by merely

supplementing a pending PCRA petition without court authorization because

doing so wrongly subverts the PCRA’s time limitation and serial petition

restrictions).

        Appellant disagrees with the trial court’s conclusion in its Pa.R.A.P.

1925(a) Opinion that he could have contracted gonorrhea in prison where he

had no contact with C.M. After making unsubstantiated allegations as to the

number of cases of gonorrhea reported to the CDC 5 in 2016 and the manner

in which gonorrhea is transmitted, Appellant baldly states that, the trial court’s

decision to the contrary, “[t]he chances of acquittal would have increased

substantially if the crucial medical evidence would have been introduced and

admitted into trial.” Brief of Appellant at 13, 20.

        Once again, we could find Appellant has waived this utterly undeveloped

claim. See In re R.D.; Jones, supra. However, this issue, too, lacks merit.

Appellant indicates in his Second Amended Petition for Post-Conviction

Collateral Relief that “[i]t was determined after the trial that [Appellant] was

suffering with gonorrhea. See Second Amended Petition for Post-Conviction

Collateral Relief, filed 8/26/16, at ¶ 4 (emphasis added).       He attaches as

Exhibit “A” notes of testimony from the November 22, 2011, hearing held on




____________________________________________


5   Centers for Disease Control and Prevention.

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Appellant’s post-sentence motion pertaining to what he terms this “after

discovered evidence.”

      Appellant’s argument fails to acknowledge that trial counsel would have

had no basis upon which to inquire as to whether C.M. had contracted

gonorrhea because the record is devoid of any evidence that Appellant had

the disease prior to or at the time of trial. To the contrary, Appellant’s own

averments indicate he did not become aware that he had gonorrhea until he

was diagnosed with the disease in prison. N.T., 11/22/11, at 8-9, 13. As

such, counsel cannot be deemed ineffective for failing believe gonorrhea was

a relevant consideration herein. See Commonwealth v. Lewis, 560 Pa. 240,

244–45, 743 A.2d 907, 910 (2000) (stating that “[b]ecause appellant gave no

indication at the time of his trial that he suffered from brain damage or serious

mental illness, his trial counsel and subsequent appellate counsel cannot be

ineffective for failing to investigate, discover and present evidence of such

brain damage or mental illness).

      In addition, as the PCRA court found, Appellant cannot prove prejudice:

             To establish prejudice, Appellant must show that there is a
      reasonable probability that the outcome of the proceedings would
      have been different but for counsel’s ineffectiveness.
      Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).
      Appellant still to this day as not acquired the rape kit results.
      Obviously, if the results came back that C.M. had gonorrhea, his
      claim would fall flat on its face. Moreover, because gonorrhea is
      not automatically transmitted between people who have sexual
      contact, and given that Appellant could have contracted gonorrhea
      in prison after his interactions with C.M. had ceased, Appellant
      cannot demonstrate a reasonable probability that he would have
      avoided a conviction even if the rape kit results were negative.

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      His chances of acquittal could have increased under those
      circumstances but not by a sufficient magnitude. Accordingly,
      Appellant’s claim fails.

PCRA court’s Opinion, filed 7/31/17, at 7-8. We agree that even had trial

counsel obtained the rape kit with a negative test result, there would not have

been a reasonable probability that the outcome would have differed. In light

of the foregoing, Appellant’s second claim fails.

     Order affirmed.

                Judge McLaughlin joins the Opinion.

                Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/18




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