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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                                           :

               v.                          :

                                           :

    WARREN DAVID YOUNG                     :
                                               No. 718 WDA 2019
                                           :

                     Appellant             :

               Appeal from the PCRA Order Entered April 11, 2019
      In the Court of Common Pleas of Bedford County Criminal Division at
                        No(s): CP-05-CR-0000347-2014


BEFORE:      McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.:                     FILED FEBRUARY 06, 2020

        Warren David Young (Appellant) appeals from the order entered in the

Bedford County Court of Common Pleas, denying in part and granting in part

his first petition for collateral relief under the Post Conviction Relief Act

(“PCRA”).1    Appellant contends the PCRA court erred in denying him relief

based on trial counsel’s ineffectiveness for failing to present character

witnesses at his jury trial. For the reasons below, we affirm.

        In June of 2014, Appellant was charged with numerous sexual offenses,

including multiple counts of rape of a child, statutory sexual assault,

involuntary deviate sexual intercourse (victim less than 13 years of age),


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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indecent assault (victim less than 13 years of age), and indecent exposure.2

In a prior decision, this Court summarized the evidence presented during

Appellant’s jury trial as follows:

      The charges stem from Appellant’s sexual victimization of his
      stepdaughter, M.M. The victim testified that she remembered
      Appellant touching her vagina when she was seven or eight years
      old. Appellant began performing oral sex on her when she was
      nine or ten. Appellant also made the victim rub his penis with her
      hand, and perform oral sex on him. These offenses occurred in
      the bathroom and bedroom of the family’s singlewide trailer, while
      the victim’s older brothers were playing outside. All of the
      offenses save one occurred when the victim’s mother was not at
      home. The victim eventually divulged Appellant’s conduct to her
      fifth-grade teacher. The teacher took her to the school nurse, who
      described the victim’s account as “[v]ery concerned, very sincere,
      very questioning.” The victim’s mother testified that she did not
      know what to believe about the victim’s allegations, but she also
      testified that she did not know the victim to make up lies.

      Appellant testified in his own defense. He claimed he weighed 320
      pounds before he went to jail and the acts the victim described in
      the bathroom of the trailer were physically impossible. Appellant
      also claimed he had been on blood pressure medication that made
      it difficult for him to get an erection, such that each act could not
      have happened within the time span the victim alleged.

Commonwealth v. Young, 1093 WDA 2016 (unpub. memo. at 1-2) (Pa.

Super. Sep. 25, 2017) (record citations omitted).

      Appellant’s trial counsel called two additional witnesses—Appellant’s

half-sister, Mona Young, and friend, Harvey Hann—both of whom testified they

spent considerable time in the trailer where the abuse allegedly occurred, and

never witnessed any inappropriate behavior. N.T. Trial, 3/15/16, at 287-89,


2 18 Pa.C.S. §§ 3121(c), 3122.1(a), 3123(b), 3126(a)(7), and 3127(a),
respectively.


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308-09.3 However, trial counsel did not present any character witnesses on

Appellant’s behalf.

      On March 15, 2016, the jury found Appellant guilty on all counts. On

June 30, 2016, the trial court sentenced Appellant to an aggregate term of 48

to 96 years’ imprisonment, and determined that Appellant met the criteria for

classification as a sexually violent predator (SVP) under the then-applicable

Sexual Offender Registration and Notification Act (SORNA I). See 42 Pa.C.S.

§ 9799.24. Appellant’s judgment of sentence was affirmed by this Court on

direct appeal. Young, 1093 WDA 2016 (unpub. memo.).

      On May 31, 2018, Appellant filed the present, timely PCRA petition.

Counsel was appointed, and filed an amended petition on November 21, 2018,

asserting both the ineffectiveness of trial counsel and the illegality of

Appellant’s classification as an SVP. The PCRA court conducted a hearing on

January 11, 2019. To support his claim that trial counsel was ineffective for

failing to present character evidence at his jury trial, Appellant called two

proposed character witnesses—Donna Shover and Shover’s 15-year-old

daughter, R.S.   Shover testified that both she and her husband were present

at Appellant’s trial and prepared to testify on his behalf, but trial counsel

informed them they “would not be needed.” N.T. PCRA H’rg, 1/11/19, at 35.

R.S. testified that Appellant, who was like an uncle to her, babysat her on

3 We note that the trial transcript is dated 12/1/15. However, a review of the
certified record and docket entries reveals the court granted a defense request
for a continuance on that date, and after another continuance, Appellant’s jury
trial was held on March 15, 2016.


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occasion. Id. at 45. Both Shover and R.S. testified they knew Appellant to

be peaceful and non-violent. Id. at 37, 46.

      On April 11, 2019, the court entered an order and opinion, granting in

part and denying in part Appellant’s PCRA petition. Because the PCRA court

agreed that Appellant’s designation as an SVP was “rendered an illegal

sentence under Commonwealth v. Muniz[, 164 A.3d 1189 (Pa. 2017),] and

its progeny[,]”4 it vacated that part of his sentence, but noted Appellant “shall

remain classified as a Tier III offender under [the current SORNA].” PCRA Ct.

Op., 4/11/19, at 8-9.      The court, however, denied relief on Appellant’s

ineffectiveness claims. Appellant filed this timely appeal, and complied with

the PCRA court’s order to submit a Pa.R.A.P. 1925(b) statement of matters

complained of on appeal.

      In his sole issue on appeal, Appellant argues the PCRA court erred when

it denied relief on his claim that trial counsel was ineffective for failing to call

character witnesses at his sexual assault trial. Appellant’s Brief at 4.

      Our review of an order denying PCRA relief is well-established.

      “To the extent review of the PCRA court’s determinations is
      implicated, an appellate court reviews the PCRA court’s findings of
      fact to determine whether they are supported by the record, and


4 In Muniz, the Pennsylvania Supreme Court held the retroactive application
of SORNA I’s registration requirements constituted an unconstitutional ex post
facto punishment. Muniz, 164 A.3d at 1193, 1211. Thereafter, this Court,
relying upon Muniz, held SORNA I’s statutory procedure for designating a
defendant as an SVP was also “constitutionally flawed.” Commonwealth v.
Butler, 173 A.3d 1212, 1218 (Pa. Super. 2017), appeal granted, 190 A.3d
581 (Pa. 2018).


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      reviews its conclusions of law to determine whether they are free
      from legal error.” The 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 trial level.

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

Moreover, “[t]he PCRA court’s credibility determinations, when supported by

the record, are binding on this Court.” Commonwealth v. Medina, 92 A.3d

1210, 1214 (Pa. Super. 2014) (en banc).

      Where, as here, the claim alleges the ineffective assistance of trial

counsel, the petitioner has the burden to prove all three prongs of the

ineffectiveness test:

      (1) the underlying claim is of arguable merit; (2) that counsel had
      no reasonable strategic basis for his or her action or inaction; and
      (3) but for the errors and omissions of counsel, there is a
      reasonable probability that the outcome of the proceedings would
      have been different.

Commonwealth          v.    Sandusky,   203   A.3d   1033,   1043   (Pa.   Super.

2019), appeal denied, 216 A.3d 1029 (Pa. 2019). The failure to prove any

one prong is fatal.        Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa.

Super. 2013) (en banc). Furthermore,

      [i]n establishing whether defense counsel was ineffective for
      failing to call witnesses, appellant must prove:

        (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. Treiber, 121 A.3d 435, 463-64 (Pa. Super. 2015)

(quotations omitted).

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     Pursuant to the Pennsylvania Rules of Evidence, a criminal defendant is

permitted to present evidence of his character traits, so long as those

character traits are pertinent to the crimes charged. Pa.R.E. 404(a)(2)(A).

     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. . . . 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.”

     In a rape case, evidence of the character of the defendant would
     be limited to presentation of testimony concerning his general
     reputation in the community with regard to such traits as non-
     violence or peaceableness, quietness, good moral character,
     chastity, and disposition to observe good order.

     This court has made clear that “[i]n a case . . . where intent and
     credibility are decisive factors leading to either acquittal or
     conviction, the accused’s reputation is of paramount importance.
     Indeed, evidence of good character may, in spite of all evidence
     to the contrary, raise a reasonable doubt in the minds of the jury.”

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

(citations omitted and some emphasis added).


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      Here, Appellant contends character testimony was crucial to his case

because the jury’s verdict rested solely upon its credibility assessment of the

victim. Appellant’s Brief at 18. Accordingly, relying upon Commonwealth

v. Weiss, 606 A.2d 439 (Pa. 1992), and Commonwealth v. Hull, 982 A.2d

1020 (Pa. Super. 2009), Appellant asserts trial counsel was ineffective for

failing to call any character witnesses at trial. He maintains that, during the

PCRA hearing, counsel “failed to articulate any reasonable basis for failing to

call character witnesses,” and “[h]ad character witnesses been presented, the

outcome unmistakably could have been different[.]” Appellant’s Brief at 20,

26.

      With regard to the missing witness test, Appellant maintains that both

Donna Shover and Shover’s daughter, R.S., “presented viable character

testimony” at the PCRA hearing, and the trial transcript establishes counsel

knew, or should have known, of the existence of these witnesses at the time

of trial. Id. at 25. Moreover, Appellant insists he was prejudiced by counsel’s

inaction, because “character witnesses are of upmost importance” in a case

such as this, “which relied on the credibility of a minor victim,” and evidence

of his “good character and lack of a criminal record . . . would have bolstered

his defense.” Id. (internal punctuation omitted).

      In denying Appellant relief, the PCRA court concluded that while

Appellant may have been able to prove the first four elements of the missing

witness test, “he [was] clearly unable to prove the critical final element[,]”

prejudice. PCRA Ct. Op. at 5. Specifically, the court found the “quality of

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[Appellant’s proposed] good character evidence to be poor, rendering it utterly

inconsequential to altering the outcome of [Appellant’s] trial.” Id. at 6. The

court opined:

      Upon our observation of both proffered witnesses, their testimony
      presents as vague and not credible. Neither proffered witness is
      able to give specifics in their testimony. Moreover, their testimony
      is seemingly limited to [Appellant’s] interaction with a single child,
      [R.S.].

Id. Moreover, the PCRA court noted the two defense witnesses who did testify

at trial, Mona Young and Harvey Hann, essentially provided de facto good

character testimony.     See id. at 7 Therefore, the court also concluded

Appellant’s “new good character witnesses would merely be cumulative in

nature[.]” Id.

      Upon our review, we find no basis to disturb the ruling of the PCRA court.

While we agree with Appellant that this claim has arguable merit, and counsel

had no reasonable basis for failing to present good character evidence at trial,5


5 We note the PCRA court credited trial counsel’s testimony at the PCRA
hearing that: (1) “to his recollection, he called all of the witnesses [Appellant]
requested him to” and (2) “he did not recall meeting the proffered character
witnesses at trial [because] if he had, he would have called them as
witnesses.” PCRA Ct. Op. at 5 n.4. While we generally defer to the PCRA
court’s credibility determinations on appeal, here, the court’s finding is not
supported by the record, at least with respect to potential witness Donna
Shover. See Medina, 92 A.3d 1210, 1214. Indeed, the trial transcript
reveals that after the Commonwealth closed its case-in-chief, the trial court
asked defense counsel who he intended to call as witnesses for the defense.
Counsel responded: “I’m going to call Mona Young, and then Randy and
Donna Shover and Harvey Hann.” N.T. Trial at 282 (emphasis added).
However, counsel never called either Randy or Donna Shover as a witness.
Nevertheless, it is evident trial counsel was at least aware Shover was a
potential witness at trial.


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we nevertheless conclude Appellant has failed to prove he was prejudiced by

counsel’s inaction.

      First, the PCRA court explicitly found the proposed character testimony

“not credible.” PCRA Ct. Op. at 6. As we explained above, we are bound by

the PCRA court’s credibility determinations that are supported by the record.

Medina, 92 A.3d at 1214.       Here, the court described Shover and R.S.’s

testimony as “vague” and “seemingly limited to [Appellant’s] interaction with

a single child, [R.S.]” PCRA Ct. Op. at 6. We agree. Moreover, we conclude

the testimony offered by Shover and R.S. at the PCRA hearing would not have

constituted proper character evidence.     See Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa. Super. 2012) (“This Court may affirm a PCRA court’s

decision on any grounds if the record supports it.”).

      Our Supreme Court has explained that “[c]haracter evidence is not the

opinion of one person or even a handful of persons, but must represent the

consensus of the community.” Commonwealth v. Keaton, 45 A.3d 1050,

1074 (Pa. 2012) (citation omitted).      In Keaton, the Court rejected the

defendant’s claim that his trial counsel was ineffective for failing to present

character witnesses, because the proposed witnesses’ affidavits “did not aver

they were aware of [the defendant’s] reputation in the community for

peacefulness and non-violence, but only that their opinion was he was such a

person.” Id. (footnote omitted). See also Commonwealth v. Johnson, 27

A.3d 244, 248-49 (Pa. Super. 2011) (denying claim that counsel was

ineffective for failing to call character witnesses; although proposed witnesses

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testified as to their belief that petitioner was not guilty “because he always

acted appropriately around children in the family,” none testified as to his

“general reputation for having chastity as a character trait”). The same is true

in the present case.

      At the PCRA hearing, Shover testified that she would have been willing

to be a character witness for Appellant if she had been called at trial. N.T.

PCRA Hrg. at 35-36. Thereafter, the following exchange took place:

      [PCRA Counsel:] Can you describe for the court what you know
      to be [Appellant’s reputation] such as being law abiding and
      peaceful in a brief statement?

      [Shover:] I never known him to be in trouble with the law. He’s
      always. (sic) Kids, everybody seemed to love [Appellant] that I’ve
      been around. He actually lived with my husband, my daughter,
      and myself for a period of time.

                                  *     *      *

      Q. Did you ever have any trouble with [Appellant] specifically to
      your kids?

      A. No.

      Q. Would you describe [Appellant] as having good character?

      A. Yes.

      Q. Would you describe [Appellant] as being law abiding?

      A. Yes.

      Q. Would you describe [Appellant] as being peaceful?

      A. Yes.

      Q. Would you describe [Appellant] as being non-violent?

      A. Yes.




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Id. at 36-37. Similarly, PCRA counsel asked R.S. if she knew Appellant to

be peaceful and non-violent, to which she replied, “Yes.” Id. at 46.

      Neither witness offered proper character testimony at the PCRA hearing.

As noted above, the “opinion of one person” does not constitute proper

character evidence.     Keaton, 45 A.3d at 1074.       Rather, evidence of a

defendant’s good character “must be limited to his general reputation for

the particular trait or traits of character involved in the commission of the

crime charged . . . [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.” Luther, 463 A.2d at 1077-78 (some emphasis added).

Here, both Shover and her daughter testified as to their own opinion of

Appellant, but not as to his reputation in the community as a peaceful, non-

violent citizen. Because Appellant failed to present proper character testimony

at the PCRA hearing, we conclude he is entitled to no relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2020




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