J-S77011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAM JOSEPH KEMP,

                            Appellant                  No. 537 MDA 2017


              Appeal from the PCRA Order Entered March 16, 2017
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000525-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 20, 2018

        Appellant, William Joseph Kemp, appeals from the post-conviction

court’s March 16, 2017 order denying his first petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        In this appeal, Appellant presents the following four issues for our

review:

        A. Trial [c]ounsel was ineffective for failing to call character
           witnesses on Appellant’s behalf when character witnesses
           were available and essential to Appellant’s defense.

        B. Appellant’s direct appeal rights must be reinstated when
           [a]ppellate [c]ounsel failed to appeal an order prohibiting the
           introduction of statements of the Commonwealth’s key
           witness that he was concerned about ending up in prison.


____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S77011-17


      C. Appellant was entitled to an evidentiary hearing to address
         the failure to object to the Commonwealth’s shifting the
         burden of proof to Appellant by its questioning of three
         witnesses.

      D. Trial [c]ounsel was ineffective by opening the door to
         Appellant’s previously precluded prejudicial testimony through
         questioning of a defense witness.

Appellant’s Brief at 4.

      “This Court’s standard of review from the grant or denial of post-

conviction   relief   is   limited   to   examining   whether   the   lower   court’s

determination is supported by the evidence of record and whether it is free

of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has directed that the following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.” 42
      Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel's performance was deficient and that such
      deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
      Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
      Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
      Pennsylvania, we have refined the Strickland performance and
      prejudice test into a three-part inquiry. See [Commonwealth
      v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
      prove counsel ineffective, the petitioner must show that: (1) his
      underlying claim is of arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) the petitioner
      suffered actual prejudice as a result. Commonwealth v. Ali,
      608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to

                                          -2-
J-S77011-17


     prove any of these prongs, his claim fails.” Commonwealth v.
     Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
     omitted).      Generally,   counsel's   assistance  is   deemed
     constitutionally effective if he chose a particular course of
     conduct that had some reasonable basis designed to effectuate
     his client's interests. See Ali, supra. Where matters of strategy
     and tactics are concerned, “[a] finding that a chosen strategy
     lacked a reasonable basis is not warranted unless it can be
     concluded that an alternative not chosen offered a potential for
     success substantially greater than the course actually pursued.”
     Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
     quotation marks omitted). To demonstrate prejudice, the
     petitioner must show that “there is a reasonable probability that,
     but for counsel's unprofessional errors, the result of the
     proceedings would have been different.” Commonwealth v.
     King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
     quotation marks, and citation omitted). “‘[A] reasonable
     probability is a probability that is sufficient to undermine
     confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
     86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
     598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
     U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

     In this case, we have reviewed the certified record, the briefs of the

parties, and the applicable law. We have also examined the thorough and

well-reasoned opinion of The Honorable Marc F. Lovecchio of the Court of

Common Pleas of Lycoming County. Judge Lovecchio aptly summarizes the

facts and procedural history of Appellant’s case. See PCRA Court Opinion,

6/28/17, at 1-4.    He then cogently addresses each of Appellant’s four

ineffectiveness issues, concluding that each is meritless for various reasons.

See id. at 5-25.     Judge Lovecchio’s decision is both supported by the

evidence of record, and is free from legal error.     Accordingly, we adopt




                                    -3-
J-S77011-17



Judge Lovecchio’s opinion as our own, and we affirm the order denying

Appellant’s petition for the reasons set forth therein.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




                                      -4-
                                                                           Circulated 02/05/2018 02:06 PM
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             IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA



    COMMON\VEAL TH                                  No. CP-41-CR-0000525-2012

       vs.                                          CRIMINAL DIVISION
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                        OPINION IN SUPPORT OF ORDER       IN§s-   ; g§       W        tJ            g
                       COMPLIANCE \VITH RULE 1925(8) Of0;;;'1                -::, z
                   THE RULES OF APPELLATE PROCEDURE rn .c                         �

                   This opinion is written in support of this court's order entered on March 16,

    20 I 7, which denied the Post Conviction Relief Act (PCRA) petition filed by Appellant,

    William Kemp (hereinafter "Kemp"). The factual and procedural history follows.

                   On the evening of February 13, 2012, Kirsten Radcliffe, Michael Updegraff,

    and Thomas Schmitt were drinking at the Fifth Avenue Tavern in Williamsport. Updegraff

   and Radcliffe, who were boyfriend and girlfriend, got into a disagreement. Radcliffe left the

   Tavern and walked away down Fifth A venue, ending up outside of Defendant William

   Kemp's apartment.

                  Twenty to thirty minutes later, Kemp gave Radcliffe a ride to the residence she

   shared with Updegraff at 1017 Franklin Street.

                  Kemp entered the residence with Radcliffe. Updegraff was upstairs and

   Schmitt was on a couch downstairs. When Updegraff came downstairs and saw Kemp) he

   asked Schmitt who the hell Kemp was. Schmitt responded that he did not know and that Ms.


                                                                                                         1
                                     . >:.
 Radcliffe had brought him. Radcliffe explained that Kemp had given her a ride home.

 Updegraff told Kemp to get out of his house but Kemp refused to leave. Radcliffe apologized

 f?r Updegraff s behavior and told Kemp that he should just leave.

                Updegraff grabbed Kemp and pushed or shoved him into a wall and then out

 the door. Updegraff and Schmitt followed Kemp outside and part way down the driveway.

 Updegraffstopped at the endof li!s van (which was parkeamtne driveway) and-Schmitt

 c_ontinued walking for several feet so that he was approximately midway between the end of

the van and Kemp's vehicle, which was parked on Franklin Street. Throughout, Updegraff

and Schmitt continued yelling at Kemp to keep going, get off the property and leave.

                Kemp continued walking quickly down the driveway to his vehicle. Instead of

leaving, however, Kemp opened the door of his vehicle and grabbed his handgun. He turned

back towards Updegraff and Schmitt and began firing shots as he moved towards them. One

shot struck Schmitt in the neck and another was a contact or near contact shot to the back of

his head.

                Updegraff and Radcliffe tried to wrestle the firearm away from Kemp. While

doing so, they punched and kicked Kemp repeatedly. Various neighbors saw and/or heard

the gunshots and commotion and called 911. Within minutes, the police arrived and took

Kemp into custody. Schmitt died as a result of his gunshot wounds.

               Kemp was charged with, among other things, third degree murder, two counts

of aggravated assault, possession of instrument of crime, and two counts of recklessly

endangering another person. A jury trial commenced on September 9, 2013. On September

17, 2013, the jury returned verdicts of guilty on all charges.


                                                                                                2
                   Following
                         .   a hearing on January 29, 2014,
                                                        .
                                                            the trial court sentenced Kemp to a

    term of imprisonment of 20 to 40 years. Kemp filed a timely post-sentence motion on

    February 7, 2014, which the trial court denied on June 9, 2014.

                   Kemp filed a timely .appeal. The. Pennsylvania Superior Court affirmed

    Kemp's judgment of sentence in a decision filed on June 8, 2015. Subsequently, Kemp filed a

    retition for allowance ofappeal,-which--the Pennsylvania Supreme Court-denied.on.Februa -v---+---

    10,2016.

                  On February 29, 2016, Kemp filed a prose Post Conviction Relief Act

    (PCRA) petition. The court appointed counsel to represent Kemp, and counsel filed an

amended PCRA petition on June 7, 2016.

                  The amended PCRA petition raised five issues: (1) trial counsel was

ineffective for failing to call character witnesses on Kemp' behalf; (2) trial counsel was
.                           .

ineffective for failing to employ and utilize an expert witness to offer a fingerprint and trace

evidence analysis on the knife found at the crime scene by Corporal Dustin Reeder of the

Williamsport Police Department; (3) appelJate counsel was ineffective for failing to appeal to

the Superior Court of Pennsylvania this court's prohibition on introducing Michael

Updegraff's statements that he was concerned about ending up in prison for his role in the

events of February 13, 2012; (4) trial counsel was ineffective for failing to object to the

Commonwealth's questions to several witnesses which shifted the burden of proof to Kemp

thus denying him a fair trial; and (5) trial counsel provided ineffective assistance by opening

the door through questioning of defense witness Kristen Smith, allowing the Commonwealth

to introduce rebuttal testimony concerning Kemp's statements made during a December 2009


                                                                                                   3
  dependency hearing.

                   The court held an argument/conference on the amended petition on June 27,

  2� I 6. In an Opinion and Order entered on October 24, 2016, the court granted an evidentiary

  hearing on the claims of trial counsel's ineffectiveness related to failing to call character

  witnesses and opening the door to rebuttal testimony concerning Kemp's statements made

· -dtil'rng a Decem6er 2009 dependency hearing. On all other claims, the court explained why it

 believed suchclaims did not warrant �n evidentiary hearing or relief.

                . Evidentiary hearings were held on November 29, 2016 and December 2, 2016.

 On March 16, _2017, the court entered an Opinionand Order denying Kemp's PCRA petition .

                 . Kemp filed a timely notice of appeal. Kemp asserts four issues on appeal: ( l)

 the trial courterred by failing to grant a new trial because trial counsel provided ineffective

assistance of counsel by not calling character witnesses on Kemp's behalf; (2) the trial court

erred by failing to reinstate Kemp's direct appeal rights due to appellate counsel's failure to

appeal to the Superior Court of Pennsylvania the trial court's ruling prohibiting trial counsel

from introducing Michael Updegraff's statements that he was concerned about ending up in

prison for his role in the events of February 13, 2012; (3) the trial court erred by denying

Kemp's request for an evidentiary hearing on the issue of trial counsel's ineffective

assistance in failing to object to the Commonwealth's questions of several witnesses which

shifted the burden of proof to Kemp thus denying him a fair trial and by failing to grant a new

trial due to trial counsel's error; and ( 4) the trial court erred by failing to grant a new trial

because trial counsel provided ineffective assistance by opening the door through questioning

of defense witness Kristen Smith allowing the Commonwealth to introduce testimony


                                                                                                     4
                 •'.


  concerning Kemp's statements made during a December 2009 dependency hearing.

 DISCUSSION

                        In analyzing claims of ineffective assistance of counsel, the court presumes

 that counsel was effective unless the PCRA petitioner proves otherwise. Commonwealth v.

 Cox, 983 A.2d 666, 678 (Pa. 2009). In order to succeed on a claim of ineffective assistance
 .           -

 of cmmsel.,- �1e petitioner-must prove the following:_(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 the petitioner prejudice. Id; see also Commonwealth v.

 Fu//011, 83 A.2d 567, 572 (Pa. 2003); Commonwealtlt v. Faure/us, 147 A.3d 905, 911 (Pa.

 Super. 2016).

                       "Where the underlying claim lacks arguable merit, counsel cannot be deemed

ineffective
 .   .
            for. failing to raise it." Commonwealth v. Jarosz, 2016 PA Super 281, 2016 Pa.

Super. LEXIS 757, *5 (December 13, 2016), citing Commonwealth v. Koehler, 36 A.3d 121,

14Q (Pa. 2012). All three prongs must be proven and a petitioner's failure to prove any one

prong results in the ineffectiveness claim being deemed without merit. Jarosz, id.;

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).

                       Kemp first asserts that the court erred by failing to grant a new trial with

respect to trial counsel's failure to call character witnesses. At the evidentiary hearings,

Kemp presented testimony from two individuals that Kemp asserted trial counsel should have

called as character witnesses at trial, Gerald Zeidler and Amy Embick.             ·

                       Kemp contended that trial counsel should have called Gerald Zeidler to testify

about his character for truthfulness and nonaggressive or nonviolence. Mr. Zeidler was a


                                                                                                       5
         longtime friend and former coworker of Kemp's. He is presently employed as a police

         officer in Bloomsburg.

                       . .. With respect to Kemp's reputation in the community for truthfulness, both

     prior to and after the murder, Mr. Zeidler testified that Kemp's reputation was that he was

 '_'honest �o a. fault." According to Mr. Zeidler, all of Kemp's friends considered Kemp to be
      ..            .;.




 truthful and honest. Kemp's sister, Amy Embick, a so testffiedabout his reputation for
 •       I         �      •                                                                      '




 truthfulness.

                              The Commonwealth objected to any testimony regarding Kemp's reputation in

 the community for truthfulness. The Commonwealth argued that such testimony was not

 relevant or admissible in this case, because the Commonwealth did not attack at trial Kemp's

reputation for truthfulness and honesty.

                              The court initially reserved its decision with respect to this argument, but

agreed with the Commonwealth when it ruled on this issue.

                              During the trial in this matter, Kemp was extensively cross-examined about

his version of the events. The Commonwealth clearly attacked the credibility                   of Kemp's
     I

version of the events. However, the Commonwealth did not attack Kemp's community

reputation for truthfulness generally. Furthermore, Kemp's reputation for truthfulness was

not pertinent to any of the underlying criminal offenses.

                              "[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. Kennedy, 2016 PA Super


                                                                                                             6
                       273, 2016 Pa. Super. L_EXIS 734, *23 (December 6, 2016)(quoting Commonwealth v.

                       Constant, �25 A.2d 810, 823 (Pa. Super. 2007)� overruled on other grounds, Commonwealth
                       ..               I
                                        ;
                                                        •   •




                       l:'· Minnis,
                                ·!
                                                            s9 A.3d 1047 (Pa. Super. 2014) (en bane)).
                                                                t


                                    I                                In other words, when truthfulness is not relevant to the underlying criminal
                                    I

                   offenses, a defendant may only call witnesses to testify as to his truthfulness when (a) he
                   ...              r                           1




------1-1--Gh�oses to-testify on.his.own behalf; and (b) the Commonwealth attacks the defendant's
                  ·. !                                      ...
                  truthfulness through cross-examination or by other witness'·l�timony. Kennedy, id. (citing
                  . I           .. .
                  Co111111011wea/th v. Minicti, 4 A.3d 1_063, 1070 (Pa. Super. 2010)). While Rule 608 (a) of the

                  Pennsylvania Rules of Evidence permits a testifying defendant to call witnesses to testify as

                  to l�is truthful character whenever the Commonwealth attacks his general reputation for
                                I                                                                                                   .
                                I

                  truthfulness during trial, Rule 404(A)(2)(a) permits a defendant to call a witness to testify as
                  .,            !           .   .   •       'r,                          ,'
                  ••            ! ·,.               . ..    t',•      •   I
                                I                                                                                                           .


                  to his truthful character only when the defendant's reputation for truthfulness is pertinent to

                  the.underlying criminal offense.

                            J
                            I                                       Kemp did not argue that the Commonwealth attacked his general reputation
                            I
                            l1ruthfuln�ss,
             !   for                                                  and the court's review of the record revealed no such attack on his general
                            I
         •   I




                 reputation for truthfulness. Accordingly, Kemp was not entitled to call character witnesses to

                 testify to his truthfulness.

                                                                    Mr. Zeidler and Ms. Embick also testified with respect to Kemp's reputation

                 for being a nonaggressive or nonviolent person.

                                                                    Mr. Zeidler testified that Kemp had a universal reputation of being a

                 nonaggressive and nonviolent person both before and after the murder charge.

                                                                    After seeing a television news report about the murder, Mr. Zeidler visited


                                                                                                                                                    7
           Kef!lp at the Lycoming County Prison. They discussed Mr. Zeidler being a character witness.

           During the trial, f�om September 9 through September 17, 2013, Mr. Zeidler would have

          been availabie to testify "depending on the day." He could not recall his work schedule. He
            ' ....
           ·:


          d_id !r�memb��· receiving a telephone call at one time from a representative of the defense team

      .   but .never heard from
                            .   that           . He was not subpoenaed or asked to be present at trial
                                  . person again.


                      . .. :, . did not attend.
          and'accordingly
          ... . . . .
                    i   . .. � .
           ., . ;                  He did clearly indicate, however, that if he would have been subpoenaed he
          ·r : .        . . . ..     ,    ..    .
          would have �een present and even if he had not �een subpoenaed he was willing to testify as

          long as there was no emergency at work requiring "all available law enforcement personnel"
           .
          •I•
                    j  :.J
                              . .            '


          to be present..

                              , He could not recall the specific date and time that he discussed his possible
                              '

          testimony with a member of the defense team but he did recall receiving a voicemail and then

          returning the call. He did end up speaking with, he believes, "Mr. Miele" but could not recall
                I.,

      the entire conversation.
          I     ;




                                   Regarding Kemp's reputation in the community for being a nonaggressive and
:.·
',              !                                             .
      nonviolent person, Mr. Zeidler was extensively cross-examined regarding specific alleged

      incidents of violence and aggression including but not limited to Kemp threatening to kill

      himseJf, Kemp threatening to harm someone, Kemp pulling a knife on someone at Wegmans,

      Kemp talking to a mental health professional for aggressive behavior, Kemp refusing to

      follow the directives of constables, Kemp slapping his wife in the face because she woke him

      up, Kemp allegedly slapping or choking Kristin Smith, and Kemp carrying a firearm because

      he did not want to get into a fight that he would not lose. Mr. Zeidler was not aware of any of


                                                                                                                8
                                                    I
                                        ··I.,                                                  ... ·1I
                                                    I

                  ·J '
                                            .,
                                                I                                                                •

                                        these incidents or allegations.
                                            ·I                          ;         .            ,· :;

                                                '                       I                                    I
                                        ·1                              !                                    '. Kemp's sister, Amy Embick, also testified at the PCRA hearing about Kemp's
                                            !                           I
                                                                                                             !

                                    .�;epptation for being peaceful and nonviolent.                                                                                          She testified that "everybody I ever talked to
                                     .,     :
                                                 .. ;.                  : .
                                                                                                             i
                                                                                                                                                                         .
                                                                                                                                                                                                         .

                                    said he was �onviolent." She added that his reputation for being nonviolent did not change
                                    ··i- ;                                                  . !'                                                                             .
                                    rift�r the charges were filed. Following the charges, Ms. Embick's husband would not allow
                  : :--         ::j ·                               1 .. :                 .. ·1                           ;                  · ·       ·            :
----+- �! - --ij.er�te-Hav�ai.:ly.-cont�ct-with-he1'-brother. Kemp, however, contacted Ms. Embick and_aske.d..___ _
                                        I                           f. ·              '    •
                                                                                           .;., ]·.
                                                                                                                           ,                                         •
                                --tr                                I..               .


                                tier;to testify :as a character witness.
                                        !                           I                                    '             .           .      ,   •



                                                                                                                     Ms. Embick recalled havingrepresentatives of both the Commonwealth and
                            .. ,
                                                                                                         .:.
                                                                                                         I
                            ;�e tublic Dten�er's. ffice speak with her re arding Kemp's reputation for violence or
                                                 �                       �
              I
              I        .                                                                                                                                                                                                 .
           '1      i·,
              I    f       tjo�violence. [She. remembered speaking with.Bill Miele. After she ended up speaking with
                                ., :                            I                                •.I

                           hin], however, he never contacted her again.
                            :!                                  : ••                                 ,.                            ,, •
                                    .                           �
                                                                                                                                                                 I




                                                                                                     : While her husband would not allow her to attend the trial, Ms. Embick
                            �l                                  i .•.                     ., ,       I



                           tbst1fied that she would have testified for Kemp if she had been subpoenaed. Ms. Embick
                                I .!                                          .                     :                  .                            .                                               .
                                I                           I

                           thstified that-�lth�ugh
                                                 ' her husband \Vas "abusive and controlling" and he essentially would
                           ·i                               I                                    I                             .                             ·
           I:              1otjallow he� to leave the house, he ou1d not have �topped her from attending and testifying
                                                               �
          . !
          •, t
          . I
                           ·,   I

                                                            :
                                                            •                                    I
                                                                                                                               .
                                                                                                                                                            ·.




          .       ,:       if s�e was subpoenaed. Trial counsel, though, never subpoenaed her .

                                                                                                [ Ms. Embick was also cross-examined by the Commonwealth regarding the
                                                                                                !
                                                        '                                       I
                           numerous specific incidents of violence with which the Conunonwealth cross-examined Mr.

                           Zeidler. She.conceded on cross-examination that she was of the opinion that her brother shot
                            I                           l


                           and killed the other individual because he had no choice. She noted that Kemp's reputation

                           amongst his friends was that he would not do anything unless "he had to." She clarified that

                           unless Kemp thought that he was threatened, his kids were being threatened or a family


                                                                                                                                                                                                                              9
                                                                   I
                                                                   !
             '·,,                                     ... I.
                                                                   i
                         .                                     i
                    member was being threatened, he would not resort to violence.
                     ..        ....
                     1,
                         I
                                iI                    •




                    .. : '. . · K�mp was represented at trial by William Miele and Robert Cronin. Mr.
                     I           I                    .·•     ti
    t               ciro�1in testifibd that the defense focus was first self-defense and alternatively heat of passion
    ! ,\·            :i .           :I
                                     •       .            •
    I··:.                I
                                 I
                                 .                             I
    I
                    for voluntary-manslaughter. He conceded that Kemp's reputation for truthfulness was not as
                     ', . .                           .. l
                     ..'
·i                  much of an issue, although Kemp's reputation for being non-violent and peaceful was "a
                     •       I                                 !
 '
                    concern" and�cfirectly-relatea to Kemp's claim of self-defense.Prtorto trial-;-Mr. eronin,ne��
                         .                                     '

                    ,�itl�   oh numerous occasions. Among other things, they discussed character witnesses.
                                     Kemp
                         I     I                        . .
 i :
                    . !' I : .1
 !                  Kemp wanted to call character witnesses and gave to Mr. Cronin specific names and as much
'I ..,.             .u '
                     .
                             ,       •   •       ....         I!·            .. .     .
                             !                                                                                                                  '

., .                contact
                       ,· 'J
                              information
                                 • • •
                                            as "he could."
                                                    .

.                   ·:,           '· j·
'j      •I

·,.:!
                            •        t Mr. Cronin did not recall being told that Kemp's sister Amy Embick was
                                                       .                                        .         '                     .
                    "        I                        . ' t·I            .            .

                    iiiding to tesiify, although he did speak with Mr. Zeidler. According to Mr. Cronin, Mr.
                     I       f                                !          '      : •         •   •:
                             i
                    Zeidler indicated that he was not willing to testify because of his employment as a police
                             .                                l                                 .
                    .,
                    �r       ! '         •        ••          t                 '     • •           I




                    officer and "did not want to 'get invo:l�ed." According to Mr. Cronin, Mr. Zeidler would not
                     I       ,
I'.;
                     :       i
                    cooperate and accordingly, it was decided not to even attempt to utilize him as a character
                     ; I         i
..
.       •'
         :
                     I
                    witness.
                             I

                                 .
                                                              •




                     I       I
                     !       I

                                                                       In fact, the defense decided not to call any character witnesses for two reasons.

                    First, it would open the door to specific instances of violence which the defense wanted to
                             •                                I
                     I       ·                                i

                    keep out and 'second, a majority if not all of the proposed character witnesses were "not valid
                                                              I



                    character witpesses." In other words, they could testify as to their own impressions but not as
                    ..                            .           I




                    to Kemp's reputation in the community.

                                                                       Mr. Cronin recalled speaking to Kemp about this "trial strategy" not to call

                    character witnesses. He recalled Kemp noting that he had faith in "our defense" and. that he
                                                              .
                                                                                                                                                      10
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                   r
                                                                                                                         .
                                    · 1                 I                                                •
                1J,·,                   �               i                                                .       .
               1
                   fiiH                 •               I                                        !
                   Hf               ·�olild "listen" to his attorneys.
                   r •.                 !j
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                                                                                  . •
                                                                              •••••\
                                                                                                 l
                                            '           I                                        .                                   ,
                                                                                      :J. Mr_. Cr:onin �xplaineq in_ his testimony that the defense team was particularly
                                        ;j              f
                                                                 .       .        ...




                                f�r�:
                                .:j -� I
                                         ...                                      ' ..   I-�.                •                       �   • •   •



                                        9o�cemed that if reputation: witnesses were called, they could be cross-examined regarding
                                                , 1 ·                                .1                                              .
                                        ' . I .                               ., ·i'                                                 .
                                                                         pl:1.'.tg. knife for no valid r:ason; regularly carrying a gun; having a permit to use.

                                    �utj.; carrying the. gun because he did, not want to get into a fight that he might lose; getting
                i'                  .                                                .

---- f.:.:_ _ �intJ-i-ncidenti his mother; and using a weapon.in.a.public place against an.unarmed.person,                                                                               _
     j !'      ,; .                                     I·.                       -•••                                           :



     i:;:      Mri Cronin explained that if all of these specific incidents were brought out before a jury, the

           ;11                                  rxtremely
                !i �i           ?te e·n:se
                                   �       wa.�           concerned th;t Kemp "was likely to get convicted offirst degree
                            :




           ·:1.jl'
           :r, ! '°             A1utder"." In Jylr. Cronin's opinion, these incidents showed a specific propensity for violence.
            f-'::.              ·;··· i:  .. j      .   .               :
            I :· :              i ,·;� .:                                    .. .. .
                                               !: On cross-examination, Mr. Cronin admitted that there were numerous other
            !:         !�                                                                                            .
            f; (               incidents that may have been admitted and which would have clearly been detrimental to
          ;i: fi:
           11! r;!'
                            :tLPI · ,:
                             ::1 ·
                                      incl.'.J;ng,
                                                   but not limited to, .Kemp doing the following: making suicidal threats;
                                              I ; . . : .:             :; .  :.  .                      .
           I· 1::.
           ·r ..
                             1�h;�atening t� blow· his brai�s out; wanting to harm his mother; talking to mental health
          .I·          r.   ,i?tkers reg�rding
           Ir·;:                                    incidents and threats; slapping his wife; and choking Kristen Smith. As a
           I,..r,                   .               I                                        .                               '
            r··�-f                       �he Commonw�alth introduced as exhibits numerous police reports that
          .I
            I>..            �ud,plement,
           'I �
          ,tit
                            ) I
                            tefJrenced alleged acts of violence by Kemp.
                                                                                         I                                   '
           '            r



           ..
           11:·
           ,I                                                                                         While. Mi·. Cronin was not sure that all of the proffered bad acts evidence
                                        '
                            would be adr'nitted as evidence, he knew that much.of it would and that for strategic purpose
           i.:.
           1*··
           '.
                                I

                                •               .
                                                                                         .
                                                                                         ;


                                                                                         I
                                                                                                                                                   '



                            the. defense was not willing to risk calling any character witnesses. He was concerned that
                            .                   l                                        �
                            calling character _witnesses would open the door and essentially lead to a first degree
           ! .
                                                                                         I
                                                •                                        r

                            homicide conviction,

                                                                                                      Kemp testified at the evidentiary hearing held on December 2, 2016. He


                                                                                                                                                                                    11
                 :    : .




                 .::.: ! .
                      t
                                 .
                                   •
                                                        . II
                testified that he and Mr. Cronin specifically talked about character witnesses soon after Mr.
                      .' ; I
                      '            •                            I

                Cr.0)1in became involved. At first Mr. Miele and Ms. Longo were representing Kemp and then

                �'.·!
                 .:r. ·.: .. ·                         :. ,                   .               .
                                       Cronin _took over for Ms. Longo. According to Kemp, "it was an ongoing discussion
                .::: ·i .                       · ·:        I                             ·
                between" them and his attorneys "were aware of [it) for the duration."
                ..1:, !i'                                   t                             .       . .
                                                            : He provided to his attorneys, on an ongoing basis; names and some contact
                ·•i=:          i •·•                   · r                                ·           ·
                ;��drmati.on. tor                                                                         HeHabsolutely'·'
                                                                        cl1aracter �1tnesses.                                wanted to utilize character witnessesr="
                               :
                                                            r·

                �:
                     ·'·
                      �;   .   I
                                                                    .                 .           .




                . J: : !                ;         .. j                  He n<?te� that at the "onset of trial" his attorneys were concerned about calling
                '.;:' . ! . .                     . -       J

                �h�racter witnesses in that the "Children & Youth stuff' would come out. During trial,
                 �:' . I. :                 I      .    ·   I. . '                        .               .
                character witnesses were not called and, according to Kemp, this was "a very sore point." It
                 •             J                            ;                                                                                                    '
                                                   .        1·
                                                            I                                                                       .
                was his understanding that the decision was made not to call character witnesses because of
 \     ;
                ';;·: ! ..                       . ;. ,                   :       .                       .                                       .
.·1. ,,1·1·
·?     ;1
       ·!
       �I       �he ccncern.tbat the Children & Youth statements would come in. The "only reason" his
-�·,,,1··.'
•.;
      1l:I
                .i, . l .                   .               j·            .               .               ..

                counsel        ever gave him for not calling character witnesses was "the potential admission of the
                ·...:' I                             .




                r! . . '
                                                            I·                                            .
                                        I
                 :_�I . l .. • • ' - . ': . •      ' '
                ipo,9 Children & Youth statements.":
                                          ·1
                                                            1
                                             The Court fo�nd that,
                                                                   �!though
                                                                            character evidence in and of itself can raise
                 11 -1                                                                                .   .
                �baJonable doubt in a J\11y' s 'mind, and may be the only evidence available to a defendant in
                !I'    ·
                ·.! j.
                                                            I                                         ·   ,
                                                            !
                some cases, 1 trial counsel had a reasonable basis for not calling character witnesses in this
 I,.
 I          .
 (;.
 t !'           particular case. By calling character witnesses for peacefulness and nonviolence, Kemp
                                                            I
 t·:_:
.,              would have opened the door not only to the statements at the 2009 Children and Youth
  ..
 i, :
                                                            !
                                                            '
 .�- ..         hearing but ahost of other specific instances of violent conduct by Kemp. As the
 .
 j' :·

 i:j

                Commonwealth did quite effectively during cross-examination of the character witnesses

                during the P�RA hearing, each of the character witnesses could have been questioned


                               ;
                 I
                      See C01111no11 wealth v. Luther, 463 A.2d l 073, l 077 (Pa. Super. 1983).
                                                                                                                                                                     12
                                                                              i                                                                                  Circulated 02/05/2018 02:06 PM

·, i'
               .1
                   .i:                                                        l
                                    Ii

               . , ..
               ,.:·


               }egh.rding close to, if not more than, ten specific incidents of violent and non-peaceful
               ·,�_                 t        *           : •   • .:·          J•                            • •       I




               :\5etl�viors                                    By! Kemp.

               J .: I . :
                                    '                           ·.,·.�';

               ,\;,             :            •           •                         I        '       '




                                                                :;_ { It "" certainly reas��able for defense counsel to want to avoid such. As Mr.
               '·I                  t                                         1                                           ·
               ,yrqnin testified, Kemp was facing afirst degree homicide charge. The strategy was to                                                                                      .
               :'�t:0.:(:    . -:�:t
                                1
                                                                                                            .; .              !           . .
                       pefully 0 blain an                         1
                                                                                                        acquittal based on self-defense or, at the most, a voluntary manslaughter
               ""t
                                                                          •   .i                            .
               '�o�victhm:-Jpening the--deerwould-expose the jucy to evidence extremely prejudicial to                                                                                             -·-
                   .;.              ;                          . .: ?                       .               .
                    I
                                    '                             •
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               ; r.
                   Kemp.                                                       1

                                    j                             : Ji:
                                                                                           Tl�e
                                                 .                                              court believes that testimony about an incident that occurred at Wegman's

               t:b�ly
               ·:r .. , i.                               ..
                                                             stor \ould .,

                                                                  ... I:                        .               .
                                                                                                                      b�en particularly harmful. Kemp and his children were shopping
                                                                                                                      . :                 ,. .
               ,'·: · 1                                           •            l                                              .           '                                           .
               ·an'd one of his children was pushing the cart. When another individual inadvertently bumped
                 : I             I            .        .
                 l   ,           !            :
                !\is icart into ihe cart Kemp's child was pushing, Kemp pulled a knife out of his pocket and
               :,i-·-:;.: ' tj.                  '                    I
                                                                                                                :             .
                                                                                                                              •
                                                                                                                                          :
                                                                               j


               ��$ {�ady;·I��ol�ttack th�.in��yidual. �he court precluded the Commonwealth from presenting
               I
                                                                              1




               1ll!"\·l; :   '":   !. ! . l  [l  1     ,· '      .
               ·J:vibe�ce abo�tt this ind dent in its case 'in chief but if the defense had presented character
               :,:; ·I· •                                                         1·1                                                          .
               •',j=    I_                                       .!                                     ,         •               .       I                  •

               \vitpesses regarding Kemp's reputation for peacefulness and nonviolence, the court would
               ·t ·1 found: ttat
                             .
                                     defense:opened
               'iaJe             the                the door to evidence regarding this incident. The court
                   :J. .                                          -J              I                                                           .·
               :bell�\'es this!incident would have been particularly harmful to Kemp's defense because it
                      .      . .
                                   Kemp overreacts to trivial incidents and slights and how skewed his
  I.".
       .        's. hows how· much
                               .
                             . !
  .i :           concept "self-defense" is that he was ready to use deadly force in a situation where clearly
                          of
                        I               .                                          !
  ..                ·I                   . .                                       f
                    there was no; threat of death or imminent serious bodily injury .
  : -.



  .'    ·• :
                                                                                           Further, the court could not conclude that Kemp was prejudiced by trial
                   . ';                  .                                         II                                                              .
                     counsel' s failure to call character witnesses. In the context of an ineffective assistance of
                                         1


                     �oJnsel claiJ1, prejudice means a reasonable probability that the outcome would have been
                            I                        .                                 ;                                              I




                     ·!
                                                                                                                                                                                              13
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                i . .-:                  ., ..            c; •                                                  ·
                 1
                               1:        different. Commonwealth v. Johnson, ·139 A.3d 1257, 1284 (Pa. 2016). A reasonable
                ii r
                '
                                        :h:. ! .:. . .. ·: I   ... ·. :             .
                                        pro�abjli_�/sl_a
                :; i:;                                       probability sufficient to undermine confidence in the outcome. Id. The failure
                .. t:·                  ,,.; · I                       .·                           ·· •                1                            ..
                               f;f;      ��};a.fl cha;·��jte_r
                ti                                                                                                                   witne_sses              irl this case was part of counsel's overall trial strategy, and the
                ,� tJ;
                ,, . :
                                         ·�� ·1'J
                                             ,it
                                                                       :•                      I            •                            •       •   '            •
                                                                                                                                                                  .           .
                } ;'!                   c:ouH cannot conclude that there is areasonable probability that the jury ve.rdict would have
                �:i ·,�f·                :•· . 'j   i
                                                    :
                                                                  i
                                                                  .        .
                ·i f,!                  qeep more fayorable to Kemp if the character witnesses had been called .
                .. ,1                   · ;•        I . . ,       1 •                                   ,


            ,.....•---,----+-The
______,·_,!·',                                                                                                                               character witnes�es-were-a family member and-a-friend,who-were-not-- -
            . .f.:                      .:;: • ' '                                                                   !
                                       �i
                                                                                                                                                                       I•




            I. �;·
                                                          1�r:�. of any
                                                                                                                    i?f the specific incidents that the Commonwealth questioned them about on
            1,
                :          .
                           tt,
                                            '
                                                I
                                                         t :               •'      •                                :�



            'l ;.·
                           I
                                       cross-examination. Given this lack of awareness, the witnesses' bias in favor of Kemp, and
            1:             �!.            . ..        i     .                    . .
            :• i;I                     l� �� lestimony:
            ., '··                                      of the neutral, :residen{s of Franklin Street whose testimony contradicted
                                        .'!:
                                                                                                                    j                                         I
                                                              I                .   ..                   .
                                         •;:                  I            .           .   ,                •                ,       ,       ,                        · ..

                                       ?eiilp's version of the events             the victim's death, it is unlikely that the jury would
                                                                      surrounding
                                                                            ,
                                       ,.I,
                                       ·•Ir
                                            I .
                                       �·1·. : .
                                              '
                                                                                                    ...1
                                                                                                ·,· . .                              .                                ! :
                                                                                                                                                                      •
                                         •1·: I                                            .
                                       -,I����f: toinp.l�te.ly acquitted
                                                                                                                    I            .                            .           '       .




                                       ,•:                    I
                                                                . . . . �.emp or even
                                                              I .l               .. . found him guilty of an offense lesser than third
                                                                                   .           .,           '·I                                                       .
                                      ��gt�e murder, If anything, opening: the door to specific instances of aggressive and non-
                                      ::!'.            i q ;.     :     . !: :             . "'-:!:
                                      peaceful conduct could have put Kemp more at risk of a first degree murder conviction.
                                            ! ·1·                                                   .               I·.                                       .
                                      J; ; ; : . · : I. Ke:"� next a�serts th�t the trial court erred by failing to reinstate his direct
                                      ay�ra�
                                       · .. ;
                                                rights f 1�e fo �ppellate counsel's failure to appeal the trial court's ruling prohibiting
                                                       I
                                      trial counsel from introducing Michael Updegraff's statements that he was concerned about

                                      ending up in prison for his role in the events of February 3, 2012.
                     I                                                                                          I
            .        I
                                                                                                                '. Appellate counsel is not required to raise alJ non-frivolous claims on appeal.
        .            ,;:.
        .                              . '
                                      Rather, appellate counsel may select to raise those issues that maximize the likelihood of
                                       .:;                .                                                     I

            . t"                                                                                                I
                                      success on appeal. Thus, "arguably meritorious claims may be omitted in favor of pursuing
        ..•:.
            •        I
                                                � i                                                             t
        :.                            claims which,' in the exercise of appellate counsel's objectively reasonable professional
        ......      -                  ·: ; .                                                                   i
                                      judgment, offer a greater prospect of securing relief." Common wealth v. Lambert, 797 A.2d
                                                                       .                                        I
        .           :·,                                                                                         I
                                                          I
                                       ,I                ·:



                                                                                                                                                                                                                                   14
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                 ·H :                 :. :1          YI                            .
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                                      J3±. ·24� (�a;. 2001 ).                                                                      "Generally, only when ignored issues are clearly stronger than those


                                               f
                 . t-··

                J            1:           �                                                              ef
                                                                         .nted .w\11 the presu mpjio•n of [<�tive assistance of counsel be overcome."

            !]? ij!i                  ·:cbr111110mve}tlth v. Jones, 815 A.2tj .598, 367-368 (Pa. 2002)(quoting Gray v. Greer, 800

            •!� �i
                ·,it ,i1:             ''.!" { I : : .                        . ', : :. 1:.                    !       .: · : ·�                      '           ii                               .
                                   iF: }d 64�, Ji4j6 (7� :,\'.. ; 19 �cl),. '."h icli_ ·'."as quoted with approval in Smith v. Robbins, 528 U.S.
            ·:$              t     itll, .288 (10'.0o)}.. -��mp. h�s �ot m� �e;
                                                                                            any allegations or arguments to show this issue was
                                                                                                                                                                          1




--�-�� .r- -- .
                    : �;:·               Ir                                        -·     J                                            .       ".                         .. .
                ·s., •.ni          .. . r:; I                                . :.              J              1            - ,             .        .,   •       •l           •       .   •   �
                                          st�:�ger 01;·9�greater ch�nce for: �uccess than the issues raised by appellate counsel.                                                                         ··--··- -

                ·; I�. ·' ·
                \' I•,'            ,:               '. •
                                                         I                                     1
                                                                                               •
                                                                                                         Furthermore, the court precluded Mr. Updegraff s statement, because trial .

        .;� j};                    j;c;���1sel, was fmiscons�ruing 'it and taking it out of context. N.T., September 10, 2013, at 55-
            !·: 1_;,
            ·_.: J:'.
                                   f! 57,,;1::                                     ' '..· .. ': '.                                              !            i: .                 .
                                                                 Kernp'x'current argument is still misconstruing the statement and taking it out of context.
        ·1,, ,..�,-;                  ·         ', . ·                                         .i         ,            .                        .            ti
                                  · _J\1( Upde.gr�ff'd ;tate�_el:"1\did not �xpress concern about ending up in prison for his role in
                                                   1
            j ti
       .;f �!:                    :;01b!, �vef1ts=of that evening but about �horn Kemp may be "running with" and what Mr.
                ;                                        I                                 ,                                       . .                       I
       !.
            ;1_fe.jf1, 1          iJ!�Jq�gr?ff;f1�ight:have dtj prot��t
        :i 1 ! t                                              to   to    �imself. The full context of Mr. Updegraffs
                 ,




                             j        11    .  ·'"   I . • '     .
                                  ,n· .. ·:.·. ·1'- '
                                  ·i:
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        I                I
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                                                                      1;
                                                                                                    I

       ··H1•
        i�-r
        '� [�•                    ,st�rem
                                               .
                                         , ent is as follows:                                                                                                         I




                                  ;'.:, i I , '
                                                                                           1                                                                 ,!
       .!J
       } {
                         !;                                                  : .,          i . MI JiiAEL: UPDE(;RAFF: So I don't understand here, here's
                                  •:,
                                          whatJ- see I got a couple of things to look at here. First of all to make sure
                                               :-
                                                  1
                                                    ·.
                      !!1.
       ·r;·                       ;:;.    you guys don't twist this thing wrong and I got a f-ing problem, which 1
                                               ;1:..
                                                                        wh�te;,1er. Al�o I?got to wo;ry ha�out �is dumfbfa-
                                             i:i1 seehha: �p�yni��knbut '
                                   i: . do:                                             f
       .;); �'.;:
                                  ! :i Jl
                     1




                                                                                                                                                                              1
                                  1




       it.1;,r                    :··ti:: and.who e is, oil, ow what 'msaymg. l mean for im to jump o the
                                  ;




                                          band wagon like that and do something like that.
            _: 1-.
            • I'                                   : DETECTIVE STEVEN SORAGE: You're talking about the guy
            � ii,                         with the gun?
                                                     · MICHAEL.UPDEGRAFF: Yeah.
                                                       DETECTIVE STEVEN SORAGE: Okay.
                                                       MICHAEL UPDEGRAFF: I don't know where he's from, I know
       ,· !
                                          he's from Fifth Avenue area, apparently, I don't know sh-t about him.
                                                '; DETECTIVE STEVEN SORAGE: How do you know he's from
                                          the F)fth A venue area?         .                                    -
                                                  : MICHAEL UPDEGRAFF: Because that's where she walked from
                                          there:    so apparently she picked  this dumb a- up somewhere along the line. I
                                   _i  i          I                         .

                                          know nothing about this mother f=-er.
                                                     I

                                        !         j DETECTIVE STEVEN SORAGE: Okay.
                                                                                                                                                                                                          15


            .        t
                      I·                    I
                                1




                                                            ··; MICHAEL UPDEGRAFF: You understand? But I imagine it's
                                                froh1 there - ·         ··       !       ; ··
                                             '° '. DETECTIVE STEVEN SORAGE: All I've heard. is his first
                                                        !

                                    name's [B]ill, that's all I know right now, I don't know a last name, I don't
                    ;·; t..j .: kno,vjanything else about him.
                                     : ...: ] MICHAEL UPDEGRAFF: Well we'll all find that out later, but I
                                        I
                            I I
                           I!      don't know nothing (sic) about this guy. So you know, I mean ifhe has
                  •
                    .-t .• , I
                            I

                     .,         : enough balls to do some stupid a- moron bullsh- like this, then you
                  �J'; 1.....!, . know; I got to look at my avenue like, you know, who's he running with?
                      ·




                   ,,/ r . An:d
                   ' .I
                  ,,j
                                              ·y.ou know - so whateve]: But, you know, I'm 51 years old and I kept
                   :;; ! . my a� out of any penitentiary� Dia -�notof county,lmrl'm not going------�
                     ·,· ('
                                ..                     bound, so I don't expect to 'sit my a- in a f-ing cage
                          ! : .: penitentiary
                     .·.·,
                   •, ! I          somewhere the rest of my entire life.
                   .. ···1'.                ·_ ·; DETECTIVE STEVEN SORAGE: No .
                   ,:· � i

                                                 :: MICHAEL tJPDEGRA.FF: So I'm not going to f-ing go after
                      ' 'I
                          · I
                                   these mother f=-ers, but they step on my land I want to make sure that I'm
                                   covered here, you understand what I'm saying.
                                    ·· i·., "i' DETECTIVE STE\,-EN SORAGE: I understand.
                                                    MICHAEL UPDEGRAFF: I don't know who these guys are, you
                    ,. i, know'. what I mean? ·1 mean he's got nothing else to do something like this,
                 '. ''. · · who'�· he running wi�h? You following me?
                 ·�          '                  I    .    ,    .       '
                    ·· ii·               · ··· DETECTIVE STEVEN SORAGE: Yep.
                                                I              :       '
                 ': .'. j                       : MICHAEL UPDEGRA.FF: Which I'm going to find out, and I'll
                 !·: :[ ! · siap·t��t on down the line who he's running with, because apparently these
                 , : ;!. j · mother f--ers are nuts. That' s crazy what he did.
                 �rit���ript: of:videot�ped
                                                            int�rview �� Michael Updegraff on February 14, 2012, at 59-60 .
                 . I       I)•                              '
                 i ..      (f'.                 '   :       1       •        '       ·:
                 ";"' ( J ·                         ·       !· Kemp also has failed' to establish the third prong of the ineffectiveness test.
                 .·j       ii                       '       1 •              I
                                                                                     ·;
                                                                                            .
                                                            1




                 ·I        'I                                   '            .       .
                 'Kemp has not made any allegations 'or arguments to even suggest that there is a reasonable·

 .. !
                                                            .
  -! • 1         probability that the outcome of the appeal would have been different, i.e. that his conviction
 . t•!            .. ! .
.. ,' .  I
                                                            l                .


         :·
                 would have been overturned, but for counsel's alleged ineffectiveness. Unsupported
         .
                 speculation, which is what Kemp has presented here, does not establish a reasonable
 •       I




                 pro?ability that the outcome of the appeal would have been different, as required to establish

                 the _prejudice prong of a claim of ineffective assistance of counsel. Commonwealth v.
                  :
                      ..   . :

                                                            94 A.3d IO 12, 1026 (Pa. Super. 2014 ) .
                           .        '

                  Clutrleston,

 .
 . i
         :                                                                                                                                       16
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                  .i
                                              .f_/
                                                                                                                                         Kentalso cOntends:the trial court erred by denying his request for an
                                                                      i_                  _
                                                                                                                                                                                                  t:;ial counsel's ineffective assistance in failing to object to
                                        �Ji�·entiary 'Be�ring on .the i�sue of

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                                    ;thH�·on�!��r{wealth's questions of s:�veral witnesses which shifted the burden of proof to

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                                                                                                                                                                                          trial   �i,d by failing to grant a new trial due to trial counsel's
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                                             · .,',                    admissibility.of evidence is.a.matter for the discretion of the trial court.
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                                     :::'.1-r. abuse.�� discretioi:i may not be.found merely because an appellate court might have
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                                    .reached a different conclusion, but requires a result of manifest unreasonableness, or

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                                                                                   wil 1.i or such lack of support so as to he clearly erroneous."
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                                    . Common wealth v. Mc Clure, 144 A.3d 970, 975 (Pa. Super. 2016)(quoting Commonwealth
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                                        v. 'Poplawsld, 130 A.3d 697, 716 (Pa. 2015)).

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                                                                                                                                                       .cla�m� that. th�· C�mmonwealth's
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                                                                  •••         •               r •    J· Kemp                                                                                                           questioning of certain witnesses
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                   �t1            ::1��Jrt�:d t_h� �\1rden o( p�·oof by allegt?ly implying to the jury that Kemp had the burden to
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                                  ;prov.e that. he. \yas innocent of the crimes charged. (Amended PCRA Petition, para. 13 7). The
                                                                1      ,i     : , i::i,,,                                                 !       , : :                   .                                                                      ·
             ;jf                  !�6'Hrt 'founithat Ke1�p's clqim in .i's regard had no arguable merit.
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             :<t �!               :; ; ) I                                                    : .. 11 T�ere was n? support for a claim that the questions infringed on the Kemp's s               ,




                                  :}i�h Amendment rights, that the K�mp was compelled to give evidence against himself, that
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                                  .�e�p  wa� compelled to produce incriminating evidence or that Kemp had the burden of
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                                  ·�·rdving
              u:.                                                                 innocence. Indeed, the court's instructions to the jury at each stage of the
                , I



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                  • .I
                                   pro:ceedings,'.i.e., during jury selection, prior to evidence being taken and final instructions,

                                  :all made it crystal clear thatthe Commonwealth had the burden of proof and Kemp had no
                                  i::                                                                  -



                                   burden whatsoever.
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                             . f. i                             i. .                         · : !: All of the questions which Kemp contended were objectionable were clearly
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                            A�h�is'.si}?le. to! refute his:claiA1 of self-defense.
                                                                                   Kemp raised the claim during his opening
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                            st�t!;!ment and the: entire defense was premised on self-defense. The questioning was designed
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                            1·0 khow that Kemp's statements changed as the case went on to add factual assertions to
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                          �Mfrrrt �                                                                                        o; �elf-t�e1se. In ��ct, most of the questions focused on th� fact that in his

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                                                                            state.111�rits '.on tl1erugfftof tl'ie·incidenrKemp did not mention that anybody-had-----·
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                        threatened him, displayed a knife or gun, or even said the words gun or knife. The
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                       qu�ktioning.djd not shift any burden'of proof. The questioning was utilized to attack Kemp's
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                       ir�<;liQility which was clearly withinthe province of the Commonwealth.
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                        . ·:·;'          . ' I(emp's final assertion is that the trial court erred by failing to grant a new trial
                    1;,,· ;,iJ., : . . .•i···1 :         .. ':         ::r·             •       t                    •                          '        I

                    be�Lse trial �:'ounsel provided ineffective assistance through certain questioning of defense ·
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                                 K.J·istbn       Smith. whicl�
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                                                               allowe''.d the Commonwealth
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                                                                                            to introduce testimony concerning
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                   :thite111ents. K¢.ri1p made during a December 2009 dependency hearing.
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                   ,;,         ! .            . : . Kristin Smith testified on September 16, 2013. Kemp had previously been her
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                                                       ,�er�           for       years, including on the date of the incident on
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                    February 13,2012. (Tnal Transcnpt, 9/16/ 2013, at 3).
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                   ,,                                                                       ·.;.·During �er testimony, she was asked by defense counsel whether she was
                   : �; .                   :                                                        I

                   aware that there was a firearm in Ke1!1p's SUV. She indicated that she was so aware. She was
                   _' �           I•        i

                   then specifically asked: "Do you know why he kept it in the SUV?" She answered "I didn't

                  .�vant it in my-house." She elaborated further that Kemp "always had the firearm" and that "it
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                  �act; been in' the vehicle for quite a while." (Trial Transcript, 9/16/ 2013, at 9-10).

                  ':,.
                                                                                                               Upon cross-examination, the Commonwealth asked Ms. Smith: "Okay, now

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                                      .had. indicated ., the 011ly reasrn why the gun is not in the house is because you
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                      :+?µI_dn't                              le{1the                     gun in t�e l�ouse, aµd he never did anything that would lead you to believe
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                                                                                     use it in the commission'of a crime; is that right?" To which Ms. Smith
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                      i�iJJv)�red �;�bri·ect.,, (Trial ;franscriJt, 9/16/2013, at 14).

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                  :;l(i i l                                   · !·                       Subsequently, over �
                                                                                                             em.p's
                                                                                                                    objection, the court held that the defense opened
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                      �i'�l�_oor to.. �p's pri9r st�tement� from a dependency hearing. The com1 permitted the·                                                               _
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                                                                                          to �'f1eni              that when asked why he carried a gun, Kemp stated that.
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                                  �av� anydesire to get intb a'fight that he could not win and what was the point of
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                                                                                          th; p;rmitio carry!if [he was] not going to use it.

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                                  i . ': . .. L                                      'More speci fically, t�e Commonwealth was permitted to introduce statements

                  :i��j1�� 1�1act'.�� a Seft�?1?e� 2009 d�pendency beating on a petition filed by the Clinton
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                     C6unty Children &      Youth            ' a t  which Kemp, explaining why he carries a gun and
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                                                  Services,
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                        ,1·:: · .· stated,,.,j.
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                                                                            ;"well, honestly, because I have a right to; and I feel like I should exercise [it].
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  .                   lt: {htl, �vhat s /he pointin ha�ing the kuns and the permit to carry if you are not going to make
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                                                    i � ..                           ?or't h;�'e tI1e .45 on'my hip, I would have a knife in my pocket at almost all
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                                                                            ·1           The court specifically permitted the Commonwealth to introduce the
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                      {ii:all.enged statements to rebut Ms. Smith's testimony. Ms. Smith testified that Kemp kept a
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                      l:,g... :rn� in his car  because the weapon was not permitted in her residence. The court reasoned that
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                             testimony opened the door for the Commonwealth to rebut this evidence with Kemp's
                      "ii � : .     .!             .
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                       :b\.�n statements about why he kept gun in the vehicle. On direct appeal, the Superior Court      a
                      ·!.:.
                       foJnd no ab�se of discretion in this court's determination that Kemp's prior statements were
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          -1 �         *          �it�i�sibl�;{t rebut th; inference that if Ms. S111-ith had permitted Kemp's gun to be kept in

           1j                     Iiil�L�Jtp ;wouid �o;

                                    ::· . ! · ·
                                                                 :have ke;t the gun with him in the car. (Superior Court Opinion at
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          ·;·; ;_                       '' '. !                                           i        During trial, Mr. Crohin was acutely aware of the fact that the Commonwealth

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                                                                                                             & � ., state1�ents to come in. Indeed, the Commonwealth vehemently
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                                                                    pre��6:u'slyci�1rig�th� trial th�� �emp had opened-the-door er-that-the statements
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                                                         for �tl��r rea sons. � court rebuffed th� Commonwealth attempts and
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                                               t I: .                   · ,: .: . Mr. Cronin testified that when he was questioning witnesses, he was "on
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                                  -�,$$sh�ll� s� .as n�t to �pen t�e door." When he called Ms. Smith and asked her the question
                                  :jt,itl ';: .                         :}t : : : : . i
                                   ��g�rding why Kemp kept the gun iri.the SUV, his purpose was to elicit testimony that Kemp
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                                   9. i� 'not. "lntend to kill or employ the'gun criminally.') Mr. Cronin explained that it went to
                                   I,.,. I ;'· . ··,·.•,ii·. .          'I•'         •l                        • I                   .

                                  -�·1ii·:-�e·1:.his J�ilf-defense.cir.he'it ofpask'io� arguments. He did not believe that it opened up the
                                                                 . . :    .,      l :: .


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                                   door. Obviously, both this court and the Superior Court disagreed .
                                  . ,,t·:' .] .                                  : !:                                                                i·      :

                                   '.;[;\I :                            :: !                       In further ex�laining                         �i,' reasoning, Mr. Cronin argued that he wanted
                                   1Jl·
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                                               'I          ·
                                                                        to··l how that ·the gun was always kept in the car and that when Kemp left the house
                                                                             •                                                                       I·      .




                                   ;�ci; night, he;did not leave with anycriminal intent. He was concerned that the
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                                   Commonwealth would argue that Kemp left with the gun in his car and that by doing so he
                                    !": ·, .                                                                                                             .

                                   i:�t�               1nded
                                                                      to use it in an; confrontation. Again, Mr. Cronin was particularly concerned about a
                                   \.'.!                                        . ·i·                                  .                             ;.
                                   fjrst degree. murder conviction.
                                   ,l•                 ;                                  i


                                    i(;                                     : ,.-:l                    While not believing that it would open the door, only "get me to the door
                                       :· I•
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               ,..                 without opening it," Mr. Cronin evaluated which was the higher priority. Specifically,
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            ,·kJ.�pi°ng out the statements or causing reasonable doubt with respect to Kemp's intent.
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            :;! � j :                                    .. l . Further, in retrospect; Nfr. Cronin argued that the statements were not that
                                                         i ': 1.: '. · .. · .:       '.\.
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                h&:r,mful and 'did not "ultimately lead" to the conviction. He noted that Mr. Miele ably
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               ·i<1 · ··! ·                .. ·           1
             :�ddr�ssed thb statements in his closihg arguments and, in Mr. Cronin's opinion,"overcame
               1 . ··: .. . · ..
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            ,ian'x prejudice."                          :i
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                                         Pennsy��ania St\irJme
          . ) ' ! ; '.: - ;} . i: The                          Court has concluded that "counscl'acbnsec
                                                                                                             . _n_o_ t
                                                                                                       strate_g_y
                           1J�� a:;.els�i.�1J basi; oil.1/ifthe p titioner
          ' .!�i · )}gy                                           �        proves that the alternative              -1


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                                                                                   a
                                                                                    .

            -!�el�c�e·d offel:e'd potential for succJss: greater than the course actually pursued."
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            :t;JJ1in10m1iet1'th v. Elliott, 80 A.3d 415, 427 (Pa. 2013).
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          .'.jj1, f.1 '. _;                                                       "Generally, -�here matters of strategy and tactics are concerned, counsel's
                                                         q-1-:: :
          ·:�:s�:ti stance is_ d�erned constitutionally effective if he chose a particular course that has some
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            tf·.1                                        f;·'!I                             ·; .. :                      .                     .
            \e��oi1able b�sis designed to effectuate his client's interest." Commonwealth v. Colavita, 993
            •l ·d .:.                               ·· ····F·,
          · )�-�d 874, 88i(Pa. 20fO). "A findi�g that a chosen strategy lacked a-reasonable basis is not
                                                                                                                         ,


          ..lt)1�i �nt�<l'ti.J1�ss:it                                                                    C?nclude�
                                                                                        can be                               tfiat an alternative not chosen offered a potential for
          ·:11! ·:I                        ! �I     .    h. ii. .                                   I    .;          'i '                                           .
          ';�ti�de'.ss s�1:bs!a�tially gi-eater than the cburse actually pursued." Id.
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                                   j,: :Alth<;mgh tri�l couns�l opened the door to the admission of Kemp's statements
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           Jr�i11 the 2009 dependency hearing, the court could not find that Kemp was entitled to a new
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           :fri'al. as a result thereof.'
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                                                                                  First, counsel had a reasonable, strategic basis for his actions. Kemp was
            i!I r1 ·                                      . ::- :-                                  ·                    ·. :
            ;p��rged with an open c.ount of homicide, and the District Attorney was strenuously
           .::: ,:                                                   I
            :advocating for a first degree murder conviction. Trial counsel wanted to show that Kemp did
  . -.�                                                              :                              �
            :;�ot intenti,�nklly take the gun and place it in his vehicle before driving Ms. Radcliffe to her
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                                                                                             I
                                     residence at'
                                         1: :
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                                                                                              7 Franklin Street.
                                                                                                     '
                                                                                                                                                                     Counsel's first priority was making sure Kemp was not
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                                      :, ·; i .                           ' . : '                                 .           ' : : .;
                                       ' 1•                               .                  .                                     '
                                     convicted of first degree murder .
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                                     ). Jj                                               : Second, the jury could reasonably interpret the statements as Kemp possessed
                                     .j.- t I .                          . .. '·I                                             • •              •                 '               '
                                     1' � :                              '               ?          '                                                            ;               •
                               thJ !gdn and knives for self-defense .. As the court noted in its decision on the motion in
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                          . • I ·11 · ·                                                  :                                                                                , I            I

                                 tb�ine, Kemp indicated. thathe had the right to carry guns, he had a permit to carry guns, and
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                                            I
                                     ;:' ·i' ··:
                                                .1 .  .     .
                                                                         . '•·..                                                   . ..                      :           :
                                 lie ,Ja1;ries guns�because of concerns aooucoemg attuckedrFurthermore, in-the-statement-
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                               ff1yvh�t's the p'o!nt in havi�g}he guns and the permit to carry if you're not going to use it," the

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                                            i
                                              yp�(re
                                                I '.•
                                                     :not
                                                          �;i�g
                                                                use
                                                                    i/refe1Ted

                                                                . . .,.,,.
                                                                                to using the permit to
                                                                                         +
                                                                                                       carry
                                                                                                             guns in his vehicle
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                         :�n�l :oh his.person, and not using the.guns to murder people.
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                                               _·Tl:ird, t�e.st�tem�nts.
                          it(.{ I;:; . : ,;ii.                           r�re introduced for limited purposes, i.e., to show other
                             'I: ·,                                                                                                                                                                  .
                        . dr �additional .reasons why Kemp had. the gun in his vehicle, to evaluate the credibility of
                          i1J· fl i ! · . j· :: .),; · : · : . · · I      ·; :
                         :f.i}�t;ri Siriitl;       's testimony, �nd to rebut  the inference that the only reason Kemp had the gun

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                                          �h�:.
                                          ;, ,
                                                              vehicle that night was because; Ms. Smith would not permit him to keep the gun in their
                                                                    .. .       .
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                    :,.�P�l�1�ent         li
                                         statements·ivere no<admitted
                                  .. The                              to show Kemp's intent or malice, and the
                    .,:111. �i I! ·                                              •.
                                                                                     ·                                                                 ·
                        ;�ta'fements were not utilized in that manner at trial. In fact, the District Attorney did not even
                    · :!1 ;!,, .: . I· t ·                                                                                                             :             :: ·
                      I: ' haon . .
                        ���
                             I
                                                                fh6S�; statements j�I his closing argument.
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                                                                         · ; Kemp also did not meethis burden to show that he was prejudiced by
                        . �1
                        ·'1            ,
                                       ! !

                    )ottnsel's actions, "To show prejudice the petitioner must demonstrate that there is a
                    ·;' u                             .                          .                                                                                   .
                    ·i�e4sonable pt9babiJity
                                                                                                                              that, but for cbunsel 's alleged unprofessional conduct, the result of the
                    ;li � ! :                        I           ·
                                                                     ;.
                                                                                 1;·                                                               .                 :
                    _pro:ceedings would have been different. A reasonable probability-is a probability sufficient to
!·.':··             �·' . . .
                        undermine confidence in the outcome." Common wealth v. Joh 11so11, 139 A.2d 1257, 1284
     '
_.J.:.              I   ;1            � I .



         �--            (Pa.   2016) .
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                                                                                                                                    . The court's confidence in the outcome of this case was not undermined.
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                                                                                                    wer�-�ultiple,                                                      t�'ird
                                                                                                        independent          party witnesses who testified that the victim and Mr.
                                                                                                                  attaci �ing
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                                                                            i      1 � �g,;f}:J:ie     chtsing
                                                                                                   not         or             Kemp when he retrieved his firearm and went back
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               . Ji.':                                       .qnfo the property to shoot the victim .
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                             t                              : '.;: I ·                                                     .            MalcolmErb, who lited next door, testified that he heard Mr. Updegraff
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                                                                ��� � ���-�,?�P to get;the_ �----out o��s hous� and off his property.and he.heard another
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                                                                  · say ;f ii'i not going f-�-ing anywhere."
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                                                                                                           He looked out his window and saw Mr.
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               :)�::                                       )Jp8Y.graff �tbp at the rear corner ofjthe van in the driveway, the victim stop about 15 feet past
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               ::.f;,�· :'.                                  '.�?f· �·�?n   �nd femp walking toward his Durango, Mr. Updegraff and the victim were not
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               :::1rn·1                                    l)j sing Ke.n�P. and Mr .. Erb did not see them display any weapons. Once Kemp reached his
               i'.lj!'!I'                                  ,l;,:            I_:                             ,.,  '·;       I    1             : '               i
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               j?�JU                         i ·       :;1�{1��hgo, �fr:i Erb thought h was o��r; he thought Kemp would get into his Durango and go
               · l;j!jiL                                   •!!�! f i                    ';                       , ...     j:'.   11
               · ;.1111,;                              .   Jio1ne. ;,.                                  Instead, Kemp grabbed a gun  from his vehicle, turned and started shooting toward the
               :




                                                                                                                                                       �1/ Erb di�i not see anybody touch Kemp. (Trial Transcript,
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                                                       \:1;:1 i !; : . ; . :,; Randee '.J-Ialitead and;her son lived across the street.
                                                                                  I                                                They initially thought the
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               H��jl:                                   ;f�\�ti{wo shots:were·fir�woi·ks. Wh�:n they looked outside, however, they saw Kemp and the

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                                                        ·:�i��\1.11 faci�1� each �ther and standing fi�e or six feet apart. They heard a third shot and saw
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               /,);1                                       :1\h�l vjctim·{all to the ground. They did not see Kemp and the victim arguing, fighting,
                                                                                                        ni.J:
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                                                           ::��\t,�gl
                                                                             charging'
                                                                      i                 at ., o the,: (Trial Transcript, 9/10/20 13, at IO 1-105, 126-129).
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                                                                                                                                        Brenda Dunkle burger also lived across the street from 1017 Franklin Street.
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                                                            ::She heard a lot of yelling arid screaming and went to her window.                                                                       She saw three people in
                                                            ·:;: � l
                                                            ·?:ti:          .
                      ..                                     '..th� driveway. Two of them, Mr. Updegraff and Kemp, were pushing and shoving each other
               .... ·...                                         .          •! : .
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                                                                                                                                 �vas:�o punching or kicking and no one was being beaten. She did not
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                                         �r. U�:�1!lraff or t�� v.i�tim in �ossession of a knife, gun or any other weapon. She saw
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                     F.ifr               Updegraffand the \rictiin escort Kemp off of the property and then head back toward the
                                                                                                                                 .              '
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                 ipp�s�_. Shf thought theincident wa�.over and Kemp was going to leave. All of a sudden she
                                              I                                                                                                         '




                 j:(I:' ·.;I! . She . :· ; and.. ;: the flash of a muzzle. Kemp was shooting up the
                  �r�r�;gun$l?O!�·     looked        saw_
                 -!h,'I '', .. ;.: ·
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                                                :fired
                                                        !: .
                                                       the shots, neither Updegraff nor the-victim were physicall
                  �nveway. Aftnel1me J(emp
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                     ·oJ ;1erbally threatening him .. She did not see or hear anything that would lead her to believe
                . iijJl� �as.-��:f�ar for �is: !if�. (Trial\ranscript, 9/10/2013, at 158-172).
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                -:1,:_!                                 physical evidence also supported the testimony of the Commonwealth's
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: I              :��!���ses:· !l�� loca�i?\1 of t:he shell'casings and bullet marks supported the neighbor's and
  !                   0pde�;�}is testim ny            Ke;�
                                          � 1'.hat
                                                             fired two shots as he returned onto the property, he
                 =11·1         r                          · . · .,., :                                                           : ·,                   ii                      .
                 ·�1�bt the vie tirn' twice -dnce in the neck and once in the back of the head, and he fired another
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  .t                        '.�eforf�� was disarmed, The ·1apk of blood inside the residence supported Mr.
   I

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                                     that he did not beat up Kemp inside the residence, but rather that he
                  l,
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                 )iJpf egraff'
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                 }pfhe.d or �r�?�ed Kemp and then escorted him outside. The location of the blood outside the
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                   1:est'dence supported Mr. Updegraff's testimony that Mr. Updegraff punched and kicked
                                                                                                                                 I                      ; :         ,       •              •



                     ;!        : : .                                 .                     .. .                                  I
                     ke�1p
                     ,.. I!•\
                                                      to wrest the gun from Kemp's hands afterKemp shot the victim.
                                                                                           .                                                                •




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                                                                                                           Furthermore, Kemp's own testimony undercut his self-defense claims. He

                   'escaped from the residence and made it safely back to his vehicle. (Trial Transcript,
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                 ·'.?,!}6/2013, 64-65.) He did not know how he ended up back on the property. (Id. at 153,
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                     J5[,7t). He claimed that he "ascertained" the situation before firing his weapon, but he testified
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                                     .
                      that he did not see either the victim or Mr. Updegraff in possession of any weapon. (See id. at
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                                                                                                                                                                                                    24
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                             H71'} 73, 88). , Though Kemp testified that he could not find his car keys to drive away, he just
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                     '.;:    . /!i;�n'l think about running away on/oot from 1017 Franklin Street toward Washington
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                                                                                           ·oa. at 64).:
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           H·W                                                            !, i,                          Finally.jhe court f0t/nd that the facts of'this case did not support a jury
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    , I    !:tm              :l!1/''::i)I }i1,              �tlctioh li6r\01t111ta;y manslaughter based on "heat of passion" and this ruling was upheld
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                                                                          l : ; ·: Under all of the fact� and circumsta�ces of this case, even if defense counsel
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           ;'( �· .:;,1:,!b;�� �oi:�i,in�d the dodr t� ihe intro duction of Kemp's statements at the 2009 dependency                   1

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                                   l�{y�'.�li,:. t1·1
                                                                                           f,�ur�· foun�
           ;}\J�f            : jf                                                                        tl'\ai there �.as tot a reasonable probability that the outcome of these

           : .:ifr             ;k:1Wc.eeding�·ty�:rnid have- been differ1ent. Therefore, Kemp was not prejudiced by counsel's
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                                             and !1.� was not entitled to a. �ew trial.
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