J-S04042-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
LEON D. BODLE,                            :
                                          :
                Appellant                 : No. 1132 MDA 2014

            Appeal from the PCRA Order Entered June 24, 2014,
             in the Court of Common Pleas of Lycoming County,
            Criminal Division, at No(s): CP-41-CR-0000743-2009

BEFORE:     BOWES, ALLEN, and STRASSBURGER, JJ.*

MEMORANDUM BY: STRASSBURGER, J.:                   FILED MARCH 24, 2015

      Leon D. Bodle (Appellant) appeals from the order entered on June 24,

2014 which denied his petition filed pursuant to the Post-Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we vacate the

order of the PCRA court and remand for an evidentiary hearing.

      A prior panel of this Court summarized the facts underlying Appellant’s

conviction as follows.

             The police began investigating Appellant when the parents
      of an eleven year old girl informed them that Appellant, who had
      been the girl’s substitute teacher in the past, began sending her
      instant messages that the parents believed were inappropriate.
      No charges were filed against Appellant stemming from his
      contact with this eleven year old girl; however, the police spoke
      to other female students and former students of Appellant about
      his interactions with them. The police also interviewed Appellant
      and seized two computers that he used. On the computers, the
      police discovered numerous images of child pornography. As a
      result of the investigation by the police, the Commonwealth filed
      an Information charging Appellant with solicitation of involuntary
      deviate sexual intercourse with a child less than 16 years old,

*Retired Senior Judge assigned to the Superior Court.
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     unlawful communication with a minor, two counts of
     disseminating explicit sexual materials to a minor, twenty seven
     counts of sexual abuse of children related to possession of child
     pornography, four counts of criminal use of communications
     facility, and six counts of corruption of a minor.

           A jury trial was held March 2-4, 2010. The jury found
     Appellant guilty of all of the charges except two counts of sexual
     abuse of children (Counts 9 and 18) and one count of corruption
     of a minor.

Commonwealth v. Bodle, 32 A.3d 286 (Pa. Super. 2011) (unpublished

memorandum at 1-2).

     The trial court held a hearing and concluded that Appellant was a

sexually violent predator (SVP).      Appellant was then sentenced to an

aggregate term of 10 to 20 years of incarceration, followed by 10 years of

probation. A panel of this Court affirmed Appellant’s judgment of sentence

on July 29, 2011, and our Supreme Court denied Appellant’s petition for

allowance of appeal on April 24, 2013. Id., appeal denied, 65 A.3d 412 (Pa.

2013).

     Appellant timely filed a pro se PCRA petition. Counsel was appointed,

and an amended petition was filed. On May 14, 2014, the PCRA court issued

notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s

petition without a hearing.     Appellant did not respond, and on June 24,

2014, the PCRA court formally dismissed Appellant’s petition.      Appellant

timely filed a notice of appeal, and both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.



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        Appellant presents two questions for our review.

        1. The [PCRA] court erred by denying [Appellant’s] request for
        an evidentiary hearing on the issue of trial counsel’s ineffective
        assistance in failing to call character witnesses and in failing to
        discuss the importance of calling character witnesses with
        [Appellant] and by failing to grant [Appellant] a new trial due to
        counsel’s error.

        2. The [PCRA] court erred by denying [Appellant’s] request for
        an evidentiary hearing on the issue of trial counsel’s ineffective
        assistance in failing to subpoena phone records from
        Commonwealth witness J.E.’s home to demonstrate [Appellant]
        did not call her, for failing to subpoena disciplinary records for
        witness J.E. from the Sugar Valley [Charter] School and by
        failing to grant [Appellant] a new trial due to trial counsel’s
        failure.

Appellant’s Brief at 4 (unnecessary capitalization omitted).1

        In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                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).

        As Appellant’s claims allege the ineffective assistance of trial counsel,

we set forth the well-settled principles of law. In reviewing the PCRA court’s

denial of such claims, we bear in mind that counsel is presumed to be

1
    The Commonwealth has not filed a brief on appeal.



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effective.   Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).               To

overcome this presumption, Appellant bears the burden of proving the

following:   “(1) the underlying substantive claim has arguable merit; (2)

counsel whose effectiveness is being challenged did not have a reasonable

basis for his or her actions or failure to act; and (3) the petitioner suffered

prejudice as a result of counsel’s deficient performance.”     Id.     Appellant’s

claim will be denied if he fails to meet any one of these three prongs. Id.

      We first consider Appellant’s claim that counsel was ineffective for

failing to investigate and call character witnesses, and we provide a brief

summary of the law surrounding both the role and importance of character

evidence in criminal cases.

            As a general rule, evidence of a person’s character may
      not be admitted to show that individual acted in conformity with
      that character on a particular occasion. However, Pennsylvania
      Rule of Evidence 404(a)(1) provides an exception which allows a
      criminal defendant to offer evidence of his or her character traits
      which are pertinent to the crimes charged and allows the
      Commonwealth to rebut the same. This Court has further
      explained the limited purpose for which this evidence can be
      offered:

                    It has long been the law in Pennsylvania that
             an individual on trial for an offense against the
             criminal law is permitted to introduce evidence of his
             good reputation in any respect which has “proper
             relation to the subject matter” of the charge at issue.
             Such evidence has been allowed on a theory that
             general reputation reflects the character of the
             individual and a defendant in a criminal case is
             permitted to prove his good character in order to
             negate his participation in the offense charged. The



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            rationale for the admission of character testimony is
            that an accused may not be able to produce any
            other evidence to exculpate himself from the charge
            he faces except his own oath and evidence of good
            character.

                  It is clearly established that evidence of good
            character is to be regarded as evidence of
            substantive fact just as any other evidence tending
            to establish innocence and may be considered by the
            jury in connection with all of the evidence presented
            in the case on the general issue of guilt or
            innocence. Evidence of good character is substantive
            and positive evidence, not a mere make weight to be
            considered in a doubtful case, and, ... is an
            independent factor which may of itself engender
            reasonable doubt or produce a conclusion of
            innocence. Evidence of good character offered
            by a defendant in a criminal prosecution must
            be limited to his general reputation for the
            particular trait or traits of character involved in
            the commission of the crime charged. The cross-
            examination      of    such     witnesses   by    the
            Commonwealth must be limited to the same traits.
            Such evidence must relate to a period at or about
            the time the offense was committed, and must be
            established by testimony of witnesses as to the
            community opinion of the individual in
            question, not through specific acts or mere
            rumor.

Commonwealth v. Johnson, 27 A.3d 244, 248 (Pa. Super. 2011) (citing

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

(citations omitted) (emphasis added).

      We first consider whether Appellant’s claim that trial counsel was

ineffective in failing to investigate and call character witnesses presents an

issue of arguable merit.   “A claim has arguable merit where the factual



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averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013). “A claim that trial counsel

did not conduct an investigation or interview known witnesses presents an

issue of arguable merit where the record demonstrates that counsel did not

perform an investigation.” Id. at 712.      Moreover, “failing to interview a

witness is distinct from failure to call a witness to testify.” Commonwealth

v. Dennis, 950 A.2d 945, 960 (Pa. 2008).

      This Court has held repeatedly that a claim that counsel was

ineffective for failing to investigate and call character witnesses has arguable

merit because character evidence in and of itself can raise reasonable doubt

in a jury’s mind, and may be the only evidence available to a defendant in

some cases. See Luther, supra at 1078 (holding that there was arguable

merit in a rape case to a claim that counsel was ineffective in failing to

investigate or call character witnesses to testify to the defendant’s

reputation for “non-violence or peaceableness, quietness, good moral

character, chastity, and disposition to observe good order”).      Accordingly,

we conclude Appellant’s claim has arguable merit and now consider whether

counsel had a reasonable basis in failing to investigate and call character

witnesses.




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      Appellant’s PCRA petition set forth three potential character witnesses:

Reverend James Behrens (Behrens), Ronald Weigle (Weigle), and Karen

Bodle (Bodle).

             In order to prevail on a claim of ineffectiveness for failing
      to call a witness, a defendant must prove, in addition to meeting
      the three [aforementioned] requirements, that: (1) the witness
      existed; (2) the witness was available to testify for the defense;
      (3) counsel knew or should have known of the existence of the
      witness; (4) the witness was willing to testify for the defense;
      and (5) the absence of the witness’s testimony was so prejudicial
      as to have denied him a fair trial.

Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) (citing

Commonwealth v. Wright, 961 A.2d 119, 155 (Pa. 2008)) (citations

omitted).

      Moreover, “Pa.R.Crim.P. 902(A)(15) states that a petition seeking an

evidentiary hearing shall include ‘a signed certification as to each intended

witness, stating the witness’s name, address, and date of birth, and the

substance of the witness’s testimony. Any documents material to the

witness’s   testimony    shall   also    be   included   in   the   petition[.]’”

Commonwealth v. Pander, 100 A.3d 626, 640 (Pa. Super. 2014).                  In

Pander, this Court also clarified that such certifications do not need to be in

the form of affidavits. Id.

      Instantly, attached to Appellant’s PCRA petition is a certification from

Appellant setting forth three names: Bodle, Weigle, and Behrens. Appellant

stated that all were available and willing to testify at trial. See Witness



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Certification of [Appellant], 11/18/2013. A specific certification on behalf of

Weigle included Weigle’s name, address, phone number, and his willingness

and availability to testify to Appellant’s good reputation in the community for

being “a law abiding person, for being a truthful person and for being a

nonviolent person who comports himself appropriately around children[.]”

Witness Certification of Ronald Weigle, 11/12/2013, at ¶ 3.           An identical

certification was attached for Karen Bodle. Witness Certification of Karen

Bodle, 11/12/2013.      No such certification exists for Reverend Behrens;

accordingly, we agree with the PCRA court that Appellant would not have

been entitled to an evidentiary hearing on the basis of Behrens’ testimony as

Appellant did not comply with Pa.R.Crim.P. 905(A)(15).

      However,    the   certifications    of   Weigle   and   Bodle    meet   the

aforementioned requirements; thus, we must consider whether counsel had

a reasonable basis in failing to investigate or call them as witnesses. “Our

Supreme Court has cautioned against speculating about the reasons for

counsel’s actions in the absence of an evidentiary hearing, except in the

clearest of cases.” Commonwealth v. Perry, 959 A.2d 932, 937 (Pa.

Super. 2008).     Furthermore, “[w]hen an arguable claim of ineffective

assistance of counsel has been made, and there has been no evidentiary

hearing in the [PCRA court] to permit the defendant to develop evidence on

the record to support the claim, and to provide the Commonwealth an




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opportunity to rebut the claim, this Court will remand for such a hearing.”

Commonwealth v. Savage, 695 A.2d 820, 825 (Pa. Super. 1997).

       Instantly, the PCRA court concluded that this is one such clear case

because the testimony of proposed witnesses “would not likely result in a

different outcome.” PCRA Court Opinion, 5/14/2014, at 5.

       Clearly, [Karen Bodle, Appellant’s mother, and Ronald Weigle,
       Appellant’s uncle,] have a bias in favor of [Appellant]. Moreover,
       there was documentary evidence to support most of the charges
       in this case, such as numerous images of child pornography and
       various America Online instant message chats that were
       retrieved from [Appellant’s] computer. [Appellant] also made
       some statements in his interview with the police where he
       admitted that he was talking with girls between the ages of 13
       and 19 in online chats and instant messages and he would tell
       them that he was 18 or 19, but he claimed that they would start
       talking dirty and would send him pictures of themselves. Given
       the other evidence in this case, character evidence from
       [Appellant’s] mother and uncle would not have affected the
       outcome.

Id. at 5-6.

       The PCRA court presents two reasons why Appellant was not

prejudiced: 1) because a jury would not believe these witnesses; and 2) the

evidence against Appellant was overwhelming.          However, “one of the

primary reasons PCRA hearings are held in the first place is so that

credibility determinations can be made; otherwise, issues of material fact

could be decided on pleadings and affidavits alone.” Johnson, 966 A.2d at

539.    Accordingly, we hold that the PCRA court’s conclusion that a jury




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would not believe these witnesses because of their potential bias, without

conducting an evidentiary hearing to hear the testimony, was error.2

      Moreover, without understanding trial counsel’s strategy, this Court is

unable to review whether Appellant was prejudiced by the trial counsel’s

purported failure to investigate and call character witnesses. To prevail, an

“[a]ppellant must demonstrate that the alternative not selected by counsel

offered a substantially greater chance of success than the tactic chosen. To

properly determine whether prejudice resulted from the quality of counsel’s

representation, we must focus on counsel’s overall trial strategy and view his

performance as a whole.” Commonwealth v. Weiss, 606 A.2d 439, 443

(Pa. 1992) (citations omitted).    Accordingly, we hold that because trial

counsel’s strategy is so inexorably intertwined with Appellant’s potential

prejudice, the PCRA court erred in concluding that Appellant was not

prejudiced by trial counsel’s performance.3



2
  We recognize that familial character witnesses by their very nature are
biased. See Weiss, 606 A.2d at 443 (“Although familial character witnesses
generally lack the credibility of unbiased non-familial witnesses, an attitude
that they are per se worthless, is sufficient evidence of counsel’s
incompetency.”). It is within the province of the fact-finder to weigh that
bias against the testimony offered in assessing how much weight to give the
testimony of a character witness.
3
  To the extent the PCRA court is carving out an exception where there is
such “overwhelming evidence” against an Appellant, we conclude that this
was error. Appellant was convicted of numerous charges in this case. While
there may have been documentary evidence to support some, as well as
admissions by Appellant to others, certain charges were based solely upon


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      We now turn to Appellant’s second issue, whether trial counsel was

ineffective in failing to investigate “mitigating evidence” with respect to J.E.

Appellant’s Brief at 17-19. J.E. was one of numerous victims called by the

Commonwealth to testify against Appellant.       Specifically, J.E. testified that

Appellant was a substitute teacher while she was in seventh grade at school.

She testified that Appellant called her at home four times, inquiring into her

homework, inviting her to an amusement park, inviting her to go to his

house and “hang out with him” and “have sex with him and suck his dick

and everything[,]” and asking her to go on a date and “party hardy”. N.T.,

3/2/2010, at 105-7. Accordingly, with respect to this witness, Appellant was

convicted of criminal solicitation, unlawful contact or communication with a

minor, criminal use of a communication facility, and corruption of minors.

      Appellant contends that trial counsel should have obtained J.E.’s phone

records to contradict this testimony.      Additionally, Appellant asserts that

J.E.’s disciplinary records4 would show that J.E. “had a reputation for making

false allegations[.]” Appellant’s Brief at 18.

      The PCRA court offered numerous reasons as to why it denied relief.

First, it determined that these requests amount to “little more than a fishing


the fact-finder’s credibility determinations of the victims.    Accordingly, we
cannot agree with the trial court.
4
 Appellant alleged that “J.E. had received disciplinary action at school for
making false assertions about staff and students.” Appellant’s Brief at 18.



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expedition.” PCRA Court Opinion, 5/14/2014, at 6. Furthermore, the PCRA

court pointed out that in his interviews with police, Appellant “admitted he

had conversations with J.E. about going to an amusement park and other

things.” Id. at 7. With respect to both the phone records and disciplinary

records, the PCRA court concluded that Appellant should have attached them

to his PCRA petition in order to be entitled to a hearing pursuant to

Pa.R.Crim.P. 902(A)(12)(b) and (D).5 Id. at 6, 7.

     Counsel has a general duty to undertake reasonable investigations or

make reasonable decisions that render particular investigations unnecessary.

Commonwealth v. Basemore, 744 A.2d 717, 735 (Pa. 2000). Appellant’s

primary complaint is that trial counsel failed to make a reasonable

investigation, an argument which, as noted previously, is best left for

determination via an evidentiary hearing. Thus, regardless of whether PCRA

5
  Pennsylvania Rule of Criminal Procedure 902(A) provides, in relevant part,
that a “petition for post-conviction collateral relief shall bear the caption,
number, and court term of the case or cases in which relief is requested and
shall contain substantially the following information:

     (12) the facts supporting each such ground that:

                                     ***

           (b) do not appear in the record, and an identification of any
     affidavits, documents, and other evidence showing such facts;

Furthermore, Pa.R.Crim.P. 902(D) provides that the “defendant shall attach
to the petition any affidavits, records, documents, or other evidence which
show the facts stated in support of the grounds for relief, or the petition
shall state why they are not attached.”


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counsel should or should not have attached any relevant documents,

Appellant is entitled to an evidentiary hearing to assess whether trial

counsel’s investigation into these matters was deficient.     “Because the

reasons, if any, for counsel’s inaction cannot be determined from the record

before us, the appropriate remedy is to remand to the [PCRA] court for an

evidentiary hearing to determine the grounds for counsel’s conduct.”

Commonwealth v. Jennings, 414 A.2d 1042, 1043 (Pa. 1980).

     Order vacated. Case remanded for an evidentiary hearing consistent

with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/24/2015




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