J-A10039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT LEE WEGEMER

                            Appellant                 No. 732 WDA 2015


                   Appeal from the PCRA Order April 13, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002267-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED OCTOBER 6, 2016

        Appellant, Robert Lee Wegemer, appeals from the order entered in the

Erie County Court of Common Pleas, which denied his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant was friends with the victim’s father. While babysitting the victim

in June 2010, Appellant removed the victim’s clothes and had vaginal

intercourse with her.       The victim was nine years old at the time.   A jury

convicted Appellant of rape of a child, sexual assault, indecent assault,

endangering welfare of children (“EWOC”), and corruption of minors.         On

November 20, 2012, the court sentenced Appellant to a term of ten (10) to
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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twenty (20) years’ incarceration for rape of a child, a consecutive term of

nine (9) to twenty-four (24) months’ incarceration for EWOC, and concurrent

terms of nine (9) to twenty-four (24) months’ incarceration for indecent

assault and corruption of minors. The sexual assault conviction merged for

sentencing.    This Court affirmed the judgment of sentence on October 8,

2013.      See Commonwealth v. Wegemer, No. 1984                  WDA 2012,

unpublished memorandum (Pa.Super. filed October 8, 2013).            Appellant

timely filed a counseled PCRA petition on October 6, 2014. On January 28,

2015, the PCRA court issued notice of its intent to dismiss the petition

pursuant to Pa.R.Crim.P. 907. On February 6, 2015, Appellant filed a motion

for reconsideration along with a motion to amend and/or supplement the

PCRA petition.     Following a hearing, the court denied Appellant’s motions

and PCRA petition on April 13, 2015.         Appellant timely filed a notice of

appeal on May 5, 2015. The court did not order Appellant to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and

Appellant filed none.

        Appellant raises the following issue for our review:

           WHETHER…THE      [PCRA]     COURT    ERRED     IN
           DISMISSING…APPELLANT’S MOTION TO AMEND PETITION
           FOR RELIEF UNDER THE POST CONVICTION RELIEF ACT
           PURSUANT     TO    PA.R.[CRIM.]P.  905    AND/OR
           SUPPLEMENTAL PETITION FOR RELIEF UNDER THE POST
           CONVICTION RELIEF ACT DUE TO A CHANGE IN THE LAW
           AND MOTION FOR RECONSIDERATION OF OPINION AND
           NOTICE OF INTENT TO DISMISS PCRA WITHOUT [A]
           HEARING PURSUANT TO PENNSYLVANIA RULE OF
           CRIMINAL PROCEDURE 907(1) WHEN TRIAL COUNSEL

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          RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL TO
          APPELLANT FOR FAILING TO CALL AVAILABLE CHARACTER
          WITNESSES ON BEHALF OF APPELLANT AT TRIAL,
          ESPECIALLY IN LIGHT OF THE FACT THAT THERE WERE
          ONLY TWO DIRECT WITNESSES INVOLVED (THE ALLEGED
          VICTIM, M.H. AND…APPELLANT)[,] CONSEQUENTLY, THE
          CREDIBILITY OF THE WITNESSES WAS OF PARAMOUNT
          IMPORTANCE?

(Appellant’s Brief at 6).2

       Appellant argues several potential character witnesses were available

and prepared to testify at trial regarding Appellant’s reputation in the

community as a law-abiding citizen.              Appellant maintains he informed

defense counsel of the existence of the witnesses before trial but counsel

dismissed them as “worthless.” Appellant claims four of the five witnesses in

question were present at trial to support Appellant.            Appellant asserts

character witness testimony was crucial in this case because the evidence

mainly consisted of the conflicting accounts of Appellant and the victim.

Appellant contends counsel was ineffective for failing to call the witnesses or

to request their names and investigate further before deciding against their

use. Appellant concludes he is entitled to a new trial. We disagree.
____________________________________________


2
  Appellant’s stated issue also complains the court refused to allow him to
amend his PCRA petition based on a change in the law. Appellant devotes
his entire brief, however, solely to argument and discussion of his ineffective
assistance of counsel claim regarding character witnesses. Moreover, we
observe our Supreme Court’s recent decision in Commonwealth v.
Washington, ___ A.3d ___, 2016 WL 3909088 (Pa. filed July 9, 2016),
which held that Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d
314 (2013) does not apply retroactively for purposes of collateral attacks on
mandatory minimum sentences.



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      Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the   evidence    of   record     supports     the     court’s

determination     and   whether   its    decision   is   free   of     legal    error.

Commonwealth v. Wright, 935 A.2d 542 (Pa.Super. 2007).                   This Court

grants great deference to the findings of the PCRA court if the record

contains any support for those findings.       Commonwealth v. Boyd, 923

A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74

(2007).     If the record supports a post-conviction court’s credibility

determination, it is binding on the appellate court.        Commonwealth v.

Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal denied, 563 Pa.

659, 759 A.2d 383 (2000).

      The   law   presumes    counsel    has   rendered    effective     assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). When asserting a claim

of ineffective assistance of counsel, the petitioner is required to make the

following showing: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and, (3) but for

the errors and omissions of counsel, there is a reasonable probability that

the   outcome     of    the   proceedings      would     have   been         different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Gonzalez, supra.


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     To establish counsel’s ineffectiveness for failure to call a witness, a

petitioner must demonstrate:

        (1) the witness existed; (2) the witness was available; (3)
        counsel was informed of the existence of the witness or
        counsel should otherwise have known of him; (4) the
        witness was prepared to cooperate and testify for
        Appellant at trial; and (5) the absence of the testimony
        prejudiced Appellant so as to deny him a fair trial. A
        defendant must establish prejudice by demonstrating that
        he was denied a fair trial because of the absence of the
        testimony    of    the     proposed     witness.        Further,
        ineffectiveness for failing to call a witness will not be found
        where a defendant fails to provide affidavits from the
        alleged witnesses indicating availability and willingness to
        cooperate with the defense.

Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 580 Pa. 696, 860 A.2d 123 (2004) (quoting Commonwealth v.

Khalil, 806 A.2d 415, 422 (Pa.Super. 2002), appeal denied, 572 Pa. 754,

818 A.2d 503 (2003)) (internal citations omitted).

     Pennsylvania Rule of Evidence 404 provides in relevant part:

        Rule 404. Character Evidence; Crimes or Other Acts

        (a)   Character Evidence.

        (1) Prohibited Uses. Evidence of a person’s character or
        character trait is not admissible to prove that on a
        particular occasion the person acted in accordance with the
        character or trait.

        (2) Exceptions for a Defendant or Victim in a Criminal
        Case. The following exceptions apply in a criminal case:

           (A) a defendant may offer evidence of the defendant’s
           pertinent trait, and if the evidence is admitted, the
           prosecutor may offer evidence to rebut it[.]


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                                  *    *    *

Pa.R.E. 404(a).

         Evidence of good character offered by a defendant in a
         criminal prosecution must be limited to his general
         reputation for the particular trait or traits of character
         involved in the commission of the crime charged. Such
         evidence must relate to a period at or about the time the
         offense was committed…and must be established by
         testimony of witnesses as to the community opinion of
         the individual in question, not through specific acts or
         mere rumor. In a rape case, evidence of the character of
         the defendant would be limited to presentation of
         testimony concerning his general reputation in the
         community with regard to such traits as non-violence or
         peaceableness, quietness, good moral character, chastity,
         and disposition to observe good order.

Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa.Super. 2003), appeal

denied, 574 Pa. 752, 830 A.2d 975 (2003) (internal citations and quotation

marked omitted).

      Instantly, Appellant attached to his PCRA petition the affidavits of five

individuals who stated they would have testified at trial regarding Appellant’s

reputation in the community as law-abiding. At the PCRA hearing, Appellant

testified that several months before trial, he had discussions with defense

counsel about witnesses who could testify for the defense. Appellant stated:

         A.      I presented I have character witnesses to
         [defense counsel]. I did not use the word character. I
         used the word witnesses. I paused for a second when
         [defense counsel] asked what type.

                                  *    *    *

         Q.        And what did [defense counsel] say to that?


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J-A10039-16


         A.       He said, character witnesses? I said, yes. He
         said that, no, they don’t do any good. They’re worthless.
         And who cares if I fixed someone’s lawn mower, a
         neighbor’s lawn mower.

         Q.       And did you give him names of potential people
         that could be character witnesses on your behalf?

         A.        I wasn’t afforded the opportunity to.

(N.T. PCRA Hearing, 3/12/15, at 6).           On cross-examination, Appellant

testified as follows:

         Q.      So, [Appellant], you’re saying you bring up to
         [defense counsel] you have witnesses?

         A.        Yes.

         Q.        You just say that six or seven months prior to
         trial?

         A.        Yes.

         Q.        And you didn’t give him these names, did you?

         A.        No.

         Q.      And you didn’t tell these people to contact
         [defense counsel], did you?

         A.        No.

         Q.        In fact, they didn’t even show up for the trial, did
         they?

         A.        Yes, some did.

                                    *    *    *

         Q.      Okay. And you didn’t tell your attorney, these are
         the people I wanted, they are sitting in the back of the
         courtroom, did you?


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        A.       No.

Id. at 8. Defense counsel testified at the PCRA hearing as follows:

        Q.      [D]o you recall [Appellant] asking you to call
        character witnesses for him at trial?

        A.       I do not.

                                 *      *   *

        Q.       At no time did         [Appellant]   mention   these
        [witnesses’] names to you?

        A.       Not that I recall. I do not recall having any
        specific conversation about calling character witnesses.
        And listening to [Appellant’s] testimony about—I heard
        him say something about a lawn mower. I do recall a
        conversation. He said that his neighbor could testify that
        he was friendly, that he was—would help people and that
        he would fix somebody’s lawn mower for them without
        paying him. And I explained to [Appellant] that really was
        not an issue for trial and would not be relevant or
        admissible by the judge.          That’s really the only
        conversation I recall about other witnesses. …

                                 *      *   *

        Q.        So your testimony is he didn’t give you any
        specific names [or] addresses?

        A.       I do not recall that. I looked through my file. I
        did not see any notes about addresses. …

                                 *      *   *

        Q.       During the trial at no time did [Appellant] direct
        your attention to individuals sitting in the gallery that were
        there for him other than the mother and the sister?

        A.       I do not believe so.

        Q.      Do you recall anyone coming up to you identifying
        themselves as any of the names that I’ve mentioned?

                                     -8-
J-A10039-16



         A.       No.   I mean, somebody may have said or
         [Appellant] may have said that he had a co-worker, was
         here to watch the trial or there in support of [Appellant],
         but I was never asked or told there were people present
         that were wanting to testify for [Appellant].

                                  *     *     *

         Q.      And had he given you these names and
         addresses, you would have interviewed these individuals
         as character witnesses?

         A.       I certainly would have talked to them, yes.

Id. at 15-18. Based on this testimony, the PCRA court found Appellant did

not inform defense counsel of the identities or contact information of the

prospective character witnesses, and defense counsel was not aware of their

existence.    The record supports the court’s conclusions.      To the extent

Appellant testified that counsel abruptly rejected the possibility of using any

character evidence, the court was free to disbelieve that testimony.      See

Knighten, supra.     Thus, counsel was not ineffective for failing to call the

alleged character witnesses. See O’Bidos, supra. Counsel acknowledged

that Appellant mentioned during their pretrial discussions one potential

witness, who would have testified that Appellant was “friendly” and fixed his

lawnmower free of charge. Nevertheless, that testimony would have been

irrelevant to whether Appellant had a reputation in the community as law-

abiding or any other pertinent trait.       Moreover, Appellant could not have

introduced character evidence at trial through testimony regarding specific

acts. See Lauro, supra. Therefore, the PCRA court properly determined

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counsel had a reasonable basis for declining to call that witness.    See

Kimball, supra.     Based on the foregoing, the court properly denied PCRA

relief. Accordingly, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




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