J-S13021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY LEE KEMBERLING                     :
                                               :
                       Appellant               :    No. 1898 MDA 2019

             Appeal from the PCRA Order Entered October 16, 2019
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0000263-2015


BEFORE:      STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.:                           FILED: APRIL 13, 2020

        Appellant, Anthony Lee Kemberling, appeals from the Order entered

October 16, 2019, denying his Petition for collateral relief filed under the Post

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

        In February 2016, a jury convicted Appellant of Rape of a child less than

thirteen years of age, as well as several related crimes.1 Thereafter, the trial

court imposed a sentence of thirty to sixty years of incarceration. Appellant

timely appealed from the Judgment of Sentence; this Court affirmed, and the

Pennsylvania Supreme Court denied further review. See Commonwealth v.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. § 3121(c). The jury also convicted Appellant of Involuntary
Deviate Sexual Intercourse, Aggravated Indecent Assault, Indecent Assault,
Endangering Welfare of Children, and Corruption of Minors. See 18 Pa.C.S.
§§ 3123(b), 3125(a)(7), 3126(a)(7), 4304(a)(1), and 6301(a)(1)(i),
respectively.
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Kemberling, 2087 MDA 2016, unpublished memorandum, (Pa. Super. filed

Oct. 26, 2017), appeal denied, 184 A.3d 940 (Pa. 2018).

      In March 2019, Appellant timely and pro se filed a Petition seeking

collateral relief. The PCRA court appointed counsel, who thereafter filed an

Amended Petition and a Supplemental Amended Petition. Appellant claimed

that trial counsel was ineffective because he had failed to request and

interview   any   character    witnesses   to   testify   on   Appellant’s   behalf.

Supplemental Amended Petition, 5/9/19.

      In July 2019, the PCRA court held an evidentiary hearing.          Appellant

testified that trial counsel never discussed the possibility of securing character

witness testimony for his trial but that numerous people would have been

willing to testify on his behalf, if only counsel had sought their testimony. N.T.

PCRA, 7/29/19, at 6-8.

      In support of this assertion, Appellant presented testimony from three

family members, who confirmed their willingness to testify on Appellant’s

behalf.   Id. at 13, 17, 21.    Appellant’s younger brother, Alan Kemberling,

testified that Appellant was “stable”, had lived in Lebanon most of his adult

life, and worked long hours. Id. at 13-15. Alan Kemberling testified further

that he had never observed Appellant behave inappropriately around children.

Id. at 14-15.

      Appellant’s older brother, Edward Kemberling, testified that he did not

see Appellant often and rarely spoke to Appellant on the phone. Id. at 16-

17. When asked regarding Appellant’s reputation in the community, Edward

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Kemberling responded that Appellant was a chef and was “cool.” Id. at 18.

He also testified that he had never observed Appellant act inappropriately

around children. Id.

      Appellant’s aunt, Barbara Ney, testified that she would see Appellant

only “every couple months” because she did not live in the same town. Id.

at 21. Nevertheless, she suggested that Appellant was a good role model for

young people in the community because Appellant enjoyed karate. Id. at 21-

22. She, too, testified to her personal observations of Appellant’s interactions

with children, asserting that she never saw cause for concern. Id. at 22.

      Appellant’s trial counsel, Nicholas Sidelnick, Esq., disputed Appellant’s

account, testifying that he had secured a list of potential witnesses from

Appellant for trial.   Id. at 24.   According to trial counsel, no non-family

members were willing to testify for Appellant. Id. at 30. Further, counsel

testified that he interviewed Appellant’s older brother just prior to trial but

determined that his testimony would not prove useful. Id. at 25-26.

      The PCRA court denied relief. Trial Ct. Order, 10/16/19. In an Opinion

explaining its decision, the court reasoned that Appellant’s relatives did not

present admissible character evidence. Trial Ct. Op., 10/16/19, at 7-8. Thus,

the PCRA court concluded, their absence from trial did not prejudice Appellant.

Id. at 8.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. Upon review, the PCRA court determined that its prior Opinion

addressed Appellant’s asserted claim of error. Trial Ct. Order, 12/9/19.

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      Appellant raises the following issue on appeal:

      Whether . . . Appellant was denied his constitutionally guaranteed
      right to effective representation when [t]rial [c]ounsel failed to
      request and interview any character witnesses to testify on
      Appellant’s behalf regarding his character and positive reputation
      in the community[.]

Appellant’s Br. at 4.

      We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error.    Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014)).

      Appellant contends that trial counsel was ineffective.          We presume

counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).

To overcome this presumption, a petitioner must establish that: (1) the

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for

his   act   or   omission;   and   (3)   petitioner   suffered   actual    prejudice.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).                    In order to

establish prejudice, a petitioner must demonstrate “that there is a reasonable

probability that, but for counsel's error or omission, the result of the

proceeding would have been different.”         Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012). A claim will be denied if the petitioner fails to meet

any one of these prongs.            See Jarosz, 152 A.3d at 350 (citing

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



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      According to Appellant, trial counsel was ineffective because he failed to

secure testimony from character witnesses willing to testify on Appellant’s

behalf. See Appellant’s Br. at 7. In support of this assertion, Appellant points

to the testimony adduced from three family members who appeared at his

PCRA hearing. See id. at 8. Appellant does not discuss their testimony in

detail, but he suggests that these witnesses could have provided the jury with

a more accurate assessment of his “work ethic, role in the community[,] and

mannerisms around minors.” Id. at 10.

      We have reviewed the testimony of Appellant’s relatives.           For the

following reasons, we agree with the trial court that this testimony did not

constitute proper character evidence and that its absence from Appellant’s

trial, therefore, did not prejudice him. See Trial Ct. Op., 10/16/19, at 7-8.

      Generally, evidence of a person’s character is not admissible to prove

that the individual acted in conformity with that character on a particular

occasion.   Pa.R.E. 404(a)(1).    However, a criminal defendant may offer

evidence of his character traits that are pertinent to the crimes charged.

Pa.R.E. 404(a)(2).

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




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Commonwealth v. Goodmond, 190 A.3d 1197, 1201-02 (Pa. Super. 2018)

(citations and emphasis omitted).

      Where the crimes charged involve sexual violence, “evidence of the

character of the defendant would be limited to presentation of testimony

concerning his general reputation in the community with regard to such traits

as non-violence or peaceableness, quietness, good moral character, chastity,

and disposition to observe good order.” Commonwealth v. Lauro, 819 A.2d

100, 109 (Pa. Super. 2003) (citation omitted).

      There is no rule precluding relatives of a criminal defendant from

providing character evidence.       However, evidence of relatives’ personal

observations or experience with the defendant does not constitute proper

character testimony. Commonwealth v. Van Horn, 797 A.2d 983, 988 (Pa.

Super. 2002); see also Commonwealth v. Medina, 209 A.3d 992, 998 (Pa.

Super. 2019) (“[O]nly reputation evidence may be used to prove character,

not the individual's opinion of the [a]ppellant's character.”); Pa.R.E. 405(a).

      Appellant faced charges of sexual violence.      However, the character

evidence proffered by Appellant did not address his general reputation in the

community for non-violence or chastity, character traits pertinent to the

crimes charged. Rather, for example, Appellant’s brothers both testified to

his strong work ethic. See N.T. PCRA at 13-15, 16-18. Thus, the PCRA court

was correct to reject this testimony. Goodmond, supra; Lauro, supra.

      Appellant’s relatives also testified that they never observed Appellant

behave inappropriately around children.     See N.T. PCRA at 14-15, 18, 22.

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However, while such evidence may imply the relevant trait of good moral

character, see Lauro, 819 A.2d at 109, his relatives were unable to testify to

his reputation in the community as required. Goodmond, supra. Indeed,

as noted by the PCRA court, Appellant’s aunt did not even reside in Appellant’s

community. See N.T. PCRA at 21, 23. Their personal observations or opinions

of Appellant do not constitute proper character evidence. Van Horn, supra.

      Appellant failed to proffer proper character evidence and, therefore,

could not establish that his counsel’s decision to forgo introducing the

testimony of his relatives in any way prejudiced him at trial. Treiber, supra.

Thus, we discern no error in the PCRA court’s decision to deny Appellant

collateral relief. Jarosz, supra.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/13/2020




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