J-S35007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

JULIO CESAR MARTINEZ-OCASIO,

                          Appellee                    No. 874 MDA 2016


             Appeal from the PCRA Entered Order April 22, 2016
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0002495-2012


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

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 14, 2018

      The Commonwealth appeals from the post-conviction court’s April 22,

2016 order granting Appellee’s, Julio Cesar Martinez-Ocasio, petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and

awarding Appellee a new trial based on the court’s conclusion that his trial

counsel acted ineffectively by failing to call character witnesses on Appellee’s

behalf. After careful review, we affirm.

      In this appeal, the Commonwealth presents the following issue for our

review:

      1. Whether the PCRA court erred in granting [Appellee] a new trial
         where:

          a. the claim lacks arguable merit as the alleged character
             traits were not at issue during the trial; and

          b. trial counsel had a reasonable basis for not calling
             character witnesses; and
J-S35007-18


         c. the decision not to include character witnesses did not
            prejudice [Appellant] as [Appellant] admitted to violating
            the law and driving in a reckless manner and where the
            evidence of guilt was overwhelming?

Commonwealth’s Brief at 4.

      We begin by recognizing that,

      [i]n 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,
      600 Pa. 329, 966 A.2d 523, 532 (2009). We pay great deference
      to the findings of the PCRA court, “but its legal determinations are
      subject to our plenary review.” Id.

Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).

      With this standard of review in mind, we have carefully examined the

certified record, the briefs of the parties, and the applicable law. We have

also assessed the detailed opinion of the Honorable John S. Kennedy of the

Court of Common Pleas of York County filed on October 24, 2017.              We

conclude that Judge Kennedy’s thoughtful and comprehensive analysis is

supported by the record, and that he adequately addresses the issues raised

by the Commonwealth.        Moreover, we discern no legal error in Judge

Kennedy’s conclusion that Appellee’s trial counsel acted ineffectively and,

therefore, Appellee is entitled to a new trial. Consequently, we affirm the

PCRA court’s order granting Appellee’s petition on the basis set forth in Judge

Kennedy’s opinion.




                                      -2-
J-S35007-18



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/18




                          -3-
                                                                       Circulated 08/03/2018 11:49 AM




     IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA


COMMONWEALTH OF PENNSYLVANIA                    : CP-67-CR-0002495-2012

                     v.                           874 MDA 2016

   JULIO CESAR MARTINEZ-OCASIO


              APPEARANCES:

              STEPHANIE ELIZABETH LOMBARDO, Esq.
              For the Commonwealth/Appellant                                   ('"'")
                                                                               r-
                                                                              f''i ::::,
              WILLIAM BRAUGHT, Esq.                                           ::i.: (:)
                                                                              AZ
              For the Defendant/Appellee                                      00
                                                                              - '1 (/)


                                                                         191�fa)
                                                                              r-,-

     OPINION PURSUANT TO RULE OF APPELLATE PROCEDURE                                       ;;i
                                                                            ::. ..� r-
       On May 20, 2016, Appellant filed a Notice of Appeal to the Pennsylvaflia
                                                                                           -..
Superior Court from an Order issued on April 22, 2016 and filed on May 11, 2016,

granting Appellee's request for a new trial under the Post Conviction Relief Act

("PCRA'") codified at 42 Pa.C.S. §9541 et seq. On May 23, 2016, Appellant was

directed to file a Concise Statement of Errors pursuant to Rule 1925(b), which was filed

on June 13, 2016. We now issue the following Opinion:

                       FACTS AND PROCEDURAL HISTORY

       The pertinent factual history has been set forth in our previous 1925(a) Opinion

issued on April 30, 2014 and adopted by the Superior Court of Pennsylvania in its

opinion issued in this case:

      On August 10, 2011 at approximately 6: 30 p.m., Dana Briggs (the "Victim")
      suffered serious bodily injury as a result of an automobile collision occurring
      along Route 30 in East York, Pennsylvania. The Victim was traveling eastbound
      in Route 30 en route to her residence when a BMW collided with a Mercedes in
      the westbound lane, thereby causing the Mercedes to cross the center median
      and strike the Victim's Chevrolet. [Appellee] was the operator of said BMW. The

                                            1

                                     EXHIBIT D
       Victim lost consciousness as a result of the collision, and she remained in a
       coma for approximately one month thereafter. The Victim spent the following two
       months in a hospital and rehabilitation facility, and symptoms of her injuries
       persisted through the date of trial.

       The speed limit governing the stretch of roadway in question is forty (40) miles
       per hour. The evidence presented at trial shows a number of speed limit and
       other warning signs were prominently posted and would have been visible to
       [Appellee) as he traveled westbound on Route 30. The evidence also indicates
       the collision occurred on a roadway that is highly congested most evenings.
       More specifically, the collision ensued as [Appellee's) vehicle approached the
       congested intersection of Route 30 and North Hills Road, adjacent to North Hills
       Elementary School and various retail stores.

       At trial, Timothy K[ie]hl testified he witnessed the collision while traveling
       westbound on Route 30. Mr. K[ie]hl observed the BMW pass him in a "flash",
       traveling at a speed he estimated to be one hundred (100) miles per hour.
       Similarly, Constance Arnold, another eyewitness to the collision, testified that she
       heard "a loud sound, like a whiz, fly by" her just prior to the collision. The expert
       reconstructionist who testified at trial was unable to form any conclusions with
       regard to the speed at which [Appellee's) vehicle was traveling.

        Mr. K[ie]hl's opinion was that the drivers of the BMW and Mercedes were racing
       each other. Anthony Miller, the driver of the Mercedes, admitted to police that it
       probably appeared as though the cars were racing. A written statement signed
       by [Appellee] describes the Mercedes as "the car that was racing previously
       against me." The testimony clearly indicates the vehicles weaved in and out of
       traffic just prior to impact. Kathy Ermolovich provided eyewitness testimony that
       the impact was a result of [Appellee's] attempt to "wedge" his BMW between two
       vehicles traveling in close proximity to one another in the leftlane. [Appellee's]
       vehicle collided with the Mercedes as a result, and the Mercedes then crossed
       the median and struck the Victim's vehicle. An on-scene inspection of the
       vehicles failed to uncover any obvious mechanical defects in any of the vehicles
       other than those caused by the collision itself.


Commonwealth v. Martinez-Ocasio, No. 61 MDA 2014, at 2-3 (Pa. Super. filed 4/21/15)

(unpublished memorandum)(record citations omitted).

      Appellee was charged with the felony offenses of aggravated assault, 18 Pa.C.S.

§2702 §§A1, and aggravated assault by motor vehicle, 75 Pa.C.S. §3732.1 §§A, the

summary offenses of reckless driving, 75 Pa.C.S. §3736 §§A, careless driving, 75


                                            2

                                     EXHIBIT D
 Pa.C.S. §3714 §§A, illegal racing, 75 Pa.C.S. §3367 §§B, driving at unsafe speed, 75

 Pa.C.S. §3361 and the misdemeanor offense of recklessly endangering another person

 ("REAP"), 18 Pa.C.S. §2705. Two jury trials were held. The first trial was held on

 January 7-10, 2013, which resulted in Appellee's conviction of aggravated assault by

 vehicle and REAP. He was also found guilty by the trial court of the summary offenses

 of reckless driving, careless driving and failure to drive at a safe speed. Appellee was

 acquitted of illegal racing. However, the jury could not reach a verdict on the additional

charge of aggravated assault. As a result, Appellee was retried in September 9-10,

2013, and the prior charges of which he was convicted were again submitted to the jury.

His sentencing was postponed until the completion of the second trial.

       In the second trial, the jury found Appellee not guilty of aggravated assault,

aggravated assault by vehicle and illegal racing, but found him guilty of REAP. On

October 21, 2013, Appellee was sentenced concurrently to nine (9) to twenty-three (23)

months of incarceration followed by twenty-four (24) months of probation for the

charges of aggravated assault by vehicle and REAP. Appellee paid fines and court

costs for the summary offenses of reckless driving, careless driving and failure to drive

at a safe speed.

       Appellee filed a post-sentence motion followed by a timely direct appeal to the

Superior Court of Pennsylvania on December 27, 2013. The Superior Court affirmed

Appellee's sentence on April 21, 2015. (See 61 MDA 2015 Non-Precedential Decision).

Appellee filed a Petition for Allowance of Appeal with the Supreme Court on May 22,

2015. (See docket at 512 MAL 2015). The Supreme Court denied Appellee's Petition

for Allowance of Appeal by Order dated February 1, 2016. As such, Appellee's direct



                                             3
                                      EXHIBIT D
      appeal was completed and the trial court entered an Order on February 3, 2016,

      instructing Appellee to report to the York County Prison to begin serving his sentence.

      Appellee's postponed report date was March 2, 2016.

             On March 10, 2016, Appellee, through privately-retained counsel, filed a timely

     first Petition for Post-Conviction Collateral Relief requesting that his judgment of

     sentence be vacated and that he be granted a new trial. In his PCRA Petition, Appellee

     alleged the ineffective assistance of trial counsel which so undermined the truth-

}    determining process that no reasonable adjudication of guilt or innocence could have
,J
.)   taken place. Specifically, Appellee alleged that 1) trial counsel failed to investigate and

     call character witnesses on Appellee's behalf who would testify as to Petitioner's

     character for being law-abiding, truthful, non-violent and not reckless and that 2) trial

     counsel gave advice so unreasonable that it vitiated the Appellee's knowing and

     intelligent decision to not testify in his own defense.

            On April 22, 2016, a PCRA hearing was held to address Appellee's claims. This

     Court heard testimony from trial counsel as well as from several intended witnesses that

     could have testified on Appellee's character at the time of trial. This Court found that

     Appellee adequately explored the issue of whether he should testify at trial with his trial

     counsel and did not find that trial counsel was ineffective as to that claim. However, this

     Court found that trial counsel was ineffective as he did not have a good reason for not

     calling character wltnesses who could have testified as to Appellee's good character

     traits for truthfulness, peacefulness and law-abiding. This Court found that the case

     presented a difficult decision for the jury and that the standard instructions indicate that

     character testimony alone can be a basis for a reasonable doubt. For these reasons,



                                                   4

                                            EXHIBIT D
     Appellee's PCRA Petition was granted and a new trial was ordered. The

     Commonwealth timely appealed the decision and the instant appeal followed.

)
                                            DISCUSSION

            The Commonwealth/Appellant argues the following issues in their 1925(b)
,J

     Statement:
,'
                1. The PCRA court erred in granting Appellee's petition for post-conviction
)
                   relief on the basis that trial counsel was ineffective for not calling character
                   witnesses to testify. Specifically, the Commonwealth argues:
1
)
                   a.    that the claim lacks arguable merit as the alleged character traits were
                        not at issue during the trial (Notes of PCRA testimony pages 81, 82-
                        83);

                   b. that trial counsel had a reasonable basis for not calling character
                      witnesses (Notes of PCRA testimony pages 52-53, 55-56); and

                   c. that the decision to not include character witnesses did not prejudice
                      Appellee as Appellee admitted to violating the law and driving in a
                      reckless manner (Notes of PCRA testimony pages 81, 85-86; see also
                      Commonwealth v. Martinez-Ocasio, 61 MDA 2014, unpublished
                      memorandum opinion dated April 21, 2015, pages 8-9, 9-10, 11 ).


            Generally, in deciding claims of ineffective assistance of counsel, the

     following three-pronq test (also known as the Pierce-test) is applied: 1) whether the

     issue underlying the charge of ineffective assistance has arguable merit; 2) whether

     the course of conduct pursued by counsel had some reasonable basis designed to

     effectuate the client's interests; and 3) whether there is a reasonable probability that,

     but for counsel's ineffectiveness, the outcome of the challenged proceeding would

     have been different. Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth

     v. Ross, 856 A.2d 93, 97 (Pa. Super. Ct. 2004). Trial counsel is presumed to have

     been effective. Commonwealth v. Fowler, 703 A.2d 1027, 1028 (Pa. 1997). With



                                                  5
                                            EXHIBIT D
      these principles in mind, we now address Appellant's claims.

             Appellant's first claim directly addresses the first prong of the ineffective

      assistance of counsel test in that the claim lacks arguable merit as the alleged character

·'    traits were not at issue during the trial. Pennsylvania law has long since established

      that an individual on trial for a criminal offense 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. Commonwealth v. Luther, 463 A.2d 1073, 1077 (Pa. Super. Ct. 1983).
1
      The Superior Court further clarified that "[s]uch evidence has been allowed on a theory
.,J
l     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."   kl   Furthermore, "[t]he 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 offered by a defendant in a criminal prosecution must be limited to his

      general reputation."   kl
             In addition, in situations where only two direct witnesses are involved, the

      credibility of witnesses is of prime importance and character evidence becomes critical

      to the jury's determination of credibility. Commonwealth v. Weiss, 606 A.2d 439, 442

      (Pa. 1992). Since evidence of good character is substantive, it is not merely



                                                     6

                                            EXHIBIT D
 "makeweight evidence" and can "in and of itself, create reasonable doubt of guilt and,

 this, require a verdict of not guilty." l!;L The Superior Court summarized in

 Commonwealth v. Reyes-Rodriguez that "[u]nder Pennsylvania Rule of Evidence

 404(a)(1), 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.' Pa. RE.

404(a)(1). Under Rule 404(a)(2)(A), a criminal defendant may introduce evidence of a

'pertinent' character trait." Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 781 (Pa.

Super. Ct. 2015). "Pertinent" is defined as "relevant to the crimes charged."

Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa. Super. Ct. 2010).

        In the instant case, Defendant's character was placed at issue by virtue of the

offenses he was charged with as well as during trial. Specifically, Defendant was

charged with aggravated assault by vehicle and recklessly endangering another person.

The traits of being law-abiding, truthful, non-violent and not reckless are all relevant to

the crimes of aggravated assault by vehicle and recklessly endangering another person.

The trait of recklessness is also an element of each crime and must be proven beyond a

reasonable doubt. The elements for the crime of aggravated assault by motor vehicle

are "{a]ny person who recklessly or with gross negligence causes serious bodily injury

to another person while engaged in the violation of any law of this Commonwealth or

municipal ordinance applying to the operation or use of a vehicle or to the regulation of

traffic, except section 3802 (relating to driving under influence of alcohol or controlled

substance), is guilty of aggravated assault by vehicle, a felony of the third degree when

the violation is the cause of the injury." 75 Pa.C.S.A. §3732.1. The elements for the

crime of recklessly endangering another person are "[a] person commits a



                                             7

                                      EXHIBIT D
misdemeanor of the second degree if he recklessly engages in conduct which places or

may place another person in danger of death or serious bodily injury." 18 Pa.C.S.A.

§2705. As such, we find that the traits of being law-abiding, truthful, non-violent and not

reckless are pertinent to the crimes charged.

       The Commonwealth also argues that Defendant's traits of being law-abiding,

truthful, non-violent and not reckless were not at issue during the trial. We disagree

with this contention for two primary reasons. First, several witnesses testified at trial

that Defendant was racing the driver of the Mercedes and was also changing lanes

erratically. The Commonwealth first called Timothy F. Kiehl to testify as to his

observations regarding Defendant's driving:

              ATTORNEY MELLOTT: And when you saw the two black cars go by
              you one after another and as a flash, as you've described it, do you know
              approximately about how fast they were going?

              MR. KIEHL: To me, like, a hundred - a hundred miles an hour. Like,
              again, a flash, if someone were to fly past you. You know, that's just my
              opinion.

              ATTORNEY MELLOTT:          Sure. And did it appear as if these two cars
              were racing or driving some other way?

              MR. KIEHL: Actually, that was my first response that I initiated to the
              police - policeman that I gave my information to, that they were racing.
              That was my first reply.

              ATTORNEY MELLOTT:           So that was based on what you've observed at
              the time?

              MR. KIEHL: Yes.


              ***

             ATTORNEY DUBBS:            Do you remember as far as telling him that you
             saw the BMW cross into the left-hand lane, clip the Mercedes, and that
             was the action that caused the Mercedes to spin out of control?


                                             8

                                      EXHIBIT D
 1




                      MR. KIEHL: No, l do not. I don't recall that.

,,·,1                ATTORNEY DUBBS:             So if he would note that in his report, he would
                     be incorrect that that's what you told him?
.
,,
•<
   '
                      MR. KIEHL: I guess if that's what he noted that 1 said, yes.
,,)



                      (Tr. ofJanuary?-10, 2013, p.113, 121.)
,.)
        Mr. Kiehl's testimony alleged that Defendant was speeding to about one hundred miles

        an hour as well as racing the driver of the Mercedes. Furthermore, Mr. Kiehl's

,.,J    testimony was also that Defendant "clipped" the Mercedes as he was changing lanes,

        implying that Defendant changed lanes in a reckless manner. The Commonwealth also

        called Officer Ryan Thomas to testify as to his interactions with Defendant regarding

        statements about the accident:

                     ATTORNEY MELLOTT:           Certainly. All right. And, Officer Thomas, now
                     addressing your  interactions with the other individual, Julio Martinez-
                     Ocasio, at the scene of the crash, did that particular Defendant make any
                     statements to you regarding the incident at the time?

                     OFFICER THOMAS:            He did. I asked him as I asked Mr. Miller what
                     happened. He told me that he was going the speed limit, and when he
                     went to merge from the right lane into the left lane, the vehicle, in his
                     words, came flying up behind me going really fast.

                     He stated that after their vehicles had collided in the westbound lanes, the
                     vehicle then jumped the median into the eastbound lanes and collided with
                     the Cavalier.


                     (Tr. of January 7-10, 2013, p. 164.)

        Officer Thomas' interactions with Defendant resulted in a polar opposite recount of the

        events. Defendant, in his statement to Officer Thomas, alleged that he was going the

        speed limit and that as he changed lanes, the Mercedes sped up from behind him,



                                                    9

                                             EXHIBIT D
which resulted in the collision between Defendant's vehicle and the Mercedes.

Sergeant Brian T. Wilbur, who arrived at the scene of the accident a little later, was

advised that "there were some witnesses statements said that two of the vehicles might

have been racing in the westbound lanes, one of which crossed over the median." (Tr.

Of January 7-10, 2013, p. 173.) Sergeant Wilbur later testified about Defendant's

statement:

              ATTORNEY MELLOTT:           Okay. And what's he say in his statement?

              SERGEANT WILBUR:               Lower speed to around40 plus changing lane
              from right side to left side to prevent hit a car in front of me. The car that
              was racing previously against me saw an open lane and increase his
              speed to pass me, causing the car to lose control and hit me at the end
              driver side of the car and move from left up lane to the other left down lane
              and hitting - the arrows are referring to his diagram - left down lane and
              hitting others in the opposite direction.

              ***

             A DORNEY HOFFMAN: Okay. And what you're testifying to is that not
             that he said he was racing, but you asked him a question about why
             people thought he was racing, and he said - did he say yes to that
             question? I'm a little confused. Can you explain that for me?

             SERGEANT WILBUR:            I believe I asked him, were you - I explained to
             him, I said, there's some witness statements that indicated that you were
             possibly racing another vehicle. And then I said, were you racing a
             vehicle?

             And he said, Yes.

             A TIORNEY HOFFMAN: Okay. But he never actually said that he was
             racing, because you testified before that he - and I'm assuming Julio here
             - but he didn't tell me that they were racing. Do you remember saying
             that before?

             SERGEANT WILBUR:         He didn't use the word "racing." I used the
             word "racing." He answered my question.

             ATIORNEY HOFFMAN:           Okay. Thank you.



                                           10

                                     EXHIBIT D
:•
11


·"
                         (Tr. of January 7-10, 2013, pp. 213-214.)
,)

           Sergeant Wilbur confirmed in his testimony that Defendant had never used the word

:)         "racing" himself. Rather, it appeared that Mr. Kiehl originally stated that he believed the
,,)
           two vehicles were racing and that the officers questioned others about whether they
•• ,.i..


           were racing based on Mr. Klehl's statements. Accordingly, Mr. Kiehl's testimony directly

           placed Defendant's character at issue when he alleged that Defendant was racing and
.•?-
,J1
           recklessly changing lanes.
,,.)
... J             Second, the standard jury instructions given at trial for the charges of aggravated
;)

           assault by vehicle and recklessly endangering another person also place Defendant's

           character at issue. The   3rd   edition of the Pennsylvania Suggested Standard Criminal

           Jury Instructions for the crimes of aggravated assault by vehicle and recklessly

           endangering another person states as follows:

                 17.3732.1 (Crim) Aggravated Assault by Vehicle
                 1. The defendant is charged with aggravated assault by vehicle. The crime of
                 aggravated assault by vehicle requires that the defendant be in violation of some
                 section of the Vehicle Code, a local ordinance, or any other law related to the
                 operation of a motor vehicle when the serious bodily injury of the victim occurs. In
                 this matter, the defendant is charged with aggravated assault by vehicle while
                 engaged in the violation of section [section number] of [the Vehicle Code] [other
                 statute]. Section [section number] provides: [At this point, quote the language or
                 paraphrase the relevant portions of the one or more underlying statutes or
                 ordinances allegedly violated by the defendant, including the relevant mens rea
                 for each.}
                 2. In order to find the defendant guilty of aggravated assault by vehicle, you must
                 be satisfied that the Commonwealth has proven each of the following elements
                 beyond a reasonable doubt:
                 First, that the defendant committed the underlying violation of section [[[[section
                 number] [Note: Since enhanced penalties are applicable if the underlying Motor


                                                         11

                                                   EXHIBIT D
f'l

.;.
        Vehicle Code violation is either section 3325 (relating to duty of driver on

... )
        approach of emergency vehicle) or section 3327 (relating to duty of driver in
        emergency response areas), where those enhanced penalties are sought, the
        verdict slip should direct the jury to make a specific finding beyond a reasonable
        doubt as to which Motor Vehicle Code section was violated in satisfaction of this
        element.]
··�     Second, that the defendant acted recklessly or with gross negligence by
.,      [[[[driving in a manner] [engaging in conduct] that violated section [section
·,;)
        number];
        Third, that [name of victim] suffered serious bodily injury; and
.n      Fourth, that the defendant's violation of section [section number] was the cause
        of injury.
        [Where active work zone enhancement is charged:]
        [Fifth, that the offense occurred in an active work zone, that is, the portion of an
        area of a highway where construction, maintenance, or utility work activities are
        being conducted, which is properly signed as a work zone in accordance with
        regulations of the Department of Transportation, and where construction,
        maintenance, or utility workers are located on the roadway, berm, or shoulder.]
        3. "Recklessly" for purposes of this offense requires that the defendant be
        [[[[driving in a manner] [engaging in conduct] that violates section [section
        number]when [he] [she] consciously disregards a substantial and unjustifiable
        risk that [his] [her] [driving] [conduct] will cause death, the nature and the degree
        of the risk being such that it is grossly unreasonable for [him] [her] to disregard it.
        4. "Grossly negligent" for purposes of this offense requires that the defendant
        [drive in a manner] [engage in conduct] that violates section [{[[section number]
        when [he] [she] should be aware of a substantial and unjustifiable risk that [his]
        [her] [driving] [conduct] will cause death, the nature and degree of the risk being
        that it is grossly unreasonable for [him] [[([her] to fail to recognize the risk. In
        deciding whether the defendant's [[[[driving] [conduct] was reckless or grossly
        negligent, you should consider all of the relevant facts and circumstances,
        including the nature and intent of the defendant's [driving] [conduct] and the
        circumstances known to [him] [her].
        5. Serious bodily injury means any bodily injury that creates a substantial risk of
        death or that causes serious, permanent disfigurement or protracted loss or
        impairment of the function of any bodily member or organ.


                                               12

                                        EXHIBIT D
 )
               6. If you are satisfied that the Commonwealth has proven the above elements of
               aggravated assault by vehicle beyond a reasonable doubt, you may find the
 )

 ;..
 .             defendant guilty. However, if you are not satisfied beyond a reasonable doubt •
               you must find the defendant not guilty.


               Pa. SSJI (Crim), §17.3732.1 (2016).



               15.2705 (Crim) Recklessly Endangering Another Person
               1. The defendant has been charged with recklessly endangering another person.
               To find the defendant guilty of this offense, you must find that the defendant
'l
)
               recklessly did something that placed or may have placed [name of victim] in
               danger of death or serious bodily injury.
               2. A person acts recklessly with respect to serious bodily injury when he or she
               consciously ignores a great and unjustifiable risk that what he or she is doing will
              cause another person to be seriously injured. The risk must be so serious that,
              considering what a defendant did and what his or her intentions were, he or she
              acted in a way that would amount to a gross deviation from the standard of
              conduct that a reasonable person in his or her situation would have followed.
              3. If, after considering all the evidence, you find that the Commonwealth has
              established beyond a reasonable doubt that the defendant's reckless action
              placed [name of victim] in danger of death or serious injury, you should find the
              defendant guilty of recklessly endangering another person. Otherwise, you must
              find the defendant not guilty.


              Pa. SSJI (Crim), §15.2705 (2016).

       Both crimes require that the jury find that Defendant acted recklessly. Specifically, to be

       charged with aggravated assault and recklessly endangering another person, the jury

       must have found that Defendant's alleged racing and switching of lanes amounted to a

       conscious disregard for a substantial and unjustifiable risk that caused Ms. Briggs'

       injuries. The Commonwealth's main theory that Defendant was racing and recklessly

       changing lanes stemmed from the sole testimony of Mr. Kiehl. Defendant's own


                                                   13

                                               EXHIBIT D
1·1

       statements indicated that he was not speeding and that he changed lanes in order to

       avoid a collision with the Mercedes that was speeding up from behind. As such,

,)
       particularly since Mr. Kiehl was the sole witness who claimed that the two vehicles were

       racing, character evidence of Defendant's good traits of being law-abiding, truthful, non-
,,)

       violent and not reckless would have helped the jury determine issues of credibility and

       whether to believe Defendant's version of the events .
-, )


              In order to prevail on a claim of ineffectiveness for failing to call a witness, "a
n
       defendant must prove, in addition to meeting the three Pierce 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. Ct. 2010). During the PCRA Hearing, Defendant offered four witnesses

       who could have testified as to his reputation for being law-abiding, honest, and

       peaceful. The first witness called was Shooty Leonard, who has worked as a validation

       specialist for fourteen years. (Tr. of April 22, 2016, p. 3.) Ms. Leonard testified that she

       had known the Defendant from November 2008 to May 2012 while working together on

       a work project in Taiwan.     kl at pp.    4-5. She testified that she came to know the

       Defendant really well as they spent quite a lot of time together working, sometimes

       almost seven days a week.       kl at p.   6. She testified that Defendant had a reputation for

       being law-abiding, honest and peaceful amongst the group of people involved in the

       Taiwan project.   kl at pp.   7-8. Ms. Leonard also testified that Defendant was very hard-

       working and very responsible.     kl at p.    9. Lastly, Ms. Leonard indicated that she had



                                                         14

                                                  EXHIBIT D
 _.•"',I

 ·,

 .n

              never been contacted to testify as a character witness prior to January 2013 and that

 �... )      she would have been available and willing to testify in January 2013.             kL at pp. 9-10.
                    The next witness offered by Defendant was Michael Bradley who worked as a

 , .. ,}>-
             site lead for a company that acts as a contracting and consulting firm for the
,-.,J

             pharmaceutical industry.     kL at p.   12. Mr. Bradley was also involved in the same

             Taiwan project as Ms. Leonard and Defendant.           kt at p.    13. Mr. Bradley testified that

             he continued to work with Defendant at other client sites after the Taiwan project.              kt at
\.,)         p. 14. He testified that Defendant had a reputation for being honest, law-abiding and

;.,,:.       peaceful.   kt at pp.   16-17. He also testified that he was never contacted by an attorney

             to testify on Defendant's behalf in January 2013 and that he would have been available

             and willing had he been asked at the time.        kt at p.   18.

                    Defendant also called Hamilton Negron and Ediberto Acosta who are familiar

             with Defendant through friends and family members.            kt at pp. 22, 28.    Mr. Hamilton

             testified that nobody in their circle of friends ever had any complaints about Defendant

             and that they have an opinion that Defendant is truthful, honest and peaceful.            kt at pp.
             23-24. Mr. Acosta testified that he had known Defendant since 2005.               kt at p. 27.   Mr.

             Acosta similarly testified that Defendant has a reputation for honesty and truthfulness,

             being law-abidinq, and being nonviolent.        kt at pp. 28-29.    He also described Defendant

             as a peaceful and happy person.         kt   Lastly, both Mr. Negron and Mr. Acosta denied

             being contacted back in January 2013 to testify on Defendant's behalf.             kL at pp. 24-25,
             29. Both Mr. Negron and Mr. Acosta testified that they were available and willing to

             testify on behalf of Defendant in January 2013.       kt at pp. 25, 30.
                   Defendant also testified at the PCRA hearing. As way of background, Defendant



                                                              15

                                                      EXHIBIT D
 .,·.I




 fl


            is a mechanical engineer who has lived in York, Pennsylvania since 2005.      kh at p. 34.
 ·-... )    Defendant had retained trial counsel around August 2011 when he was first charged.

           � at p. 35. Defendant testified that trial counsel never discussed calling character

           witnesses for his trial. � at pp. 43-44. Defendant also stated that he was never aware

           that he could call character witnesses for his trial. � To summarize, all four of the
  ...
           witnesses that Defendant has offered at the PCRA hearing stated that they would have

           been available and willing to testify on Defendant's behalf. In addition, trial counsel did

'-,...)
           not discuss the possibility of calling character witnesses but could have been aware of

J;..       the existence of the four witnesses had he discussed the issue with Defendant.

                  Lastly, we must discuss whether the absence of such character witnesses was

           so prejudicial to Defendant as to deny him a fair trial. As mentioned previously, the

           Commonwealth's primary case theory was that Defendant was illegally racing another

           vehicle and erratically changing lanes. The idea that Defendant was racing and

           recklessly changing lanes was supported by the sole testimony of Mr. Kiehl in

           contradiction to Defendant's own testimony. ln this case, when only two witnesses are

           involved, the credibility of witnesses becomes substantive evidence and can in and of

           itself raise issues of doubt for the jury. Here, Defendant's credibility as to whether he is

           honest and peaceful was crucial to the jury to determine whether they believed

           Defendant's or Mr. Kiehl's version of the events. The four witnesses that Defendant

           presented at the PCRA hearing all found Defendant to be an honest, law-abiding and

           peaceful person. Defendant also has no criminal record and is gainfully employed as

           an engineer, facts that could also cause the jury to doubt as to whether Defendant was

           dishonest. Given the importance of character evidence in this situation, we find that the



                                                        16

                                                 EXHIBIT D
 -:..
          absence of character evidence at trial rises to the level of prejudice that would deny the

·..,.}    Defendant a fair trial.

                 Appellant's second claim also directly addresses the second prong of the Pierce-

         test. The Commonwealth argues that trial counsel had a reasonable basis for not

         calling character witnesses. We have already determined that calling character
f•"

         witnesses on behalf of Defendant had merit and so we next analyze whether counsel

         had a reasonable basis for not calling character witnesses. The "reasonable basis" test
,,)

,1'1
         involves an inquiry into "whether counsel's chosen course was designed to effectuate

         his client's interests. If we conclude that the particular course chosen by counsel had

         some reasonable basis, our inquiry ceases and counsel's assistance is deemed

         effective." Weiss supra at 441-442.

                Attorney Hoffman also testified during the PCRA Hearing. Attorney Hoffman

         indicated that the trial strategy he had developed with Defendant was that "this was a

         civil action. That this was essentially a traffic accident that did not rise to the level of a

         criminal event." (Tr. of April 22, 2016, p. 52.) When asked as to why he did not

         consider using character evidence in this case, Attorney Hoffman responded:



                       ADORNEY LOMBARDO: Did you consider using character evidence in
                       this case?

                       A DORNEY HOFFMAN:             No, l did not.

                       A DORNEY LOMBARDO: And can you tell the Court why you didn't think
                       to use character evidence in this case?

                       A DORNEY HOFFMAN: The problem with character evidence ordinarily
                       is that you are opening up doors that are best left closed. In this case,
                       what we had was basically speeding that led to an accident with an
                       intermediary factor. The problem with the character witness is that the


                                                       17

                                                EXHIBIT D
 -,




                          absolute best thing a character witness can say is that they have never
                          seen Julio speed or they have never seen Julio act in a manner that is
 -;»                      reckless.
 I•:.�

',,J
                          The problem is the Commonwealth then has this door opened up where
                          they can say, Have you been in a car with him, have you seen him
                          speeding before, have you seen him driving in a manner that is not
       J
                          appropriate, have you ever seen him change lanes without signaling, and
> ••




                          once that happens, there is no good answer. Either the witness says, no,
                          I have never seen him do any of those things, in which case the jury is not
                          going to believe the witnesses because everyone has done those things at
                          least once in their lives, or the witness says, yeah, I have seen him speed
                          before, and then you just giving the Commonwealth a silver bullet. So
                          instead of opening up doors, I wanted to keep those avenues closed.

                         ATIORNEY LOMBARDO: And, Attorney Hoffman, just quickly, were you
                         aware of any traffic violations that Mr. Ocasio had?

                         ATTORNEY HOFFMAN: I don't believe he had any. At the time - at the
                         time we went to trial in January, I don't think he had any.

                         ***

                         ATIORNEY LOMBARDO: Did Mr. Ocasio ever give you any names of
                         any witnesses he wanted to call?

                         ATIORNEY HOFFMAN:            No. In his defense, l never asked.

                         kL at pp. 55-57.
           Attorney Hoffman admitted that he never asked Defendant about possible witnesses

           that could testify on his behalf at trial. Counsel's rationale for not calling character

           witnesses was solely based on the fact that those witnesses might be cross-examined

           by the Commonwealth about Defendant's driving habits. We do not find that this

           constitutes a reasonable basis done so with the client's interests in mind. First, Attorney

           Hoffman would have had the opportunity to investigate the witnesses and determine

           whether they even had knowledge about Defendant's reputation for driving vehicles.

           Second, at the time of the first trial, Defendant had a squeaky-clean driving record with


                                                        18

                                                  EXH_IBIT D
 .Ii


            not even a traffic citation so even if the Commonwealth further "opened the door" into

 ·..,)      Defendant's driving record, he did not have such a record that would have been

 �... ).    damaging at trial. Lastly, the four witnesses that Defendant presented at the PCRA
  ..
_,.
"'
            hearing all testified that Defendant had a reputation for honesty as well as for being law-

.... �      abiding and peaceful. These four witnesses could have elaborated on Defendant's

\._.,)
           reputation for honesty and not just his reputation for driving vehicles.

                   Appellant's last claim is that the decision to not include character witnesses did

           not prejudice Defendant as Defendant admitted to violating the law and driving in a

,,.-J      reckless manner. This last claim also directly touches upon the last prong of the Pierce-

           test. The last prong of the Pierce-test requires that we determine whether Defendant

           was prejudiced by counsel's deficient representation. In order to successfully show that

           he was prejudiced, Defendant "must demonstrate that the alternative not selected by

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

           Commonwealth v. Saxton, 532 A.2d 352 (Pa. 1987). To make a determination of

           prejudice, "we must focus on counsel's overall trial strategy and view his performance

           as a whole."   kl at 355.
                  As discussed earlier, trial counsel's strategy at trial was that the accident did not

           rise to the level of a criminal manner and was instead a civil action. While we do not

           find the trial strategy itself to be without merit, we find that counsel could have further

           carried out this trial strategy by calling character witnesses on behalf of Defendant.

           Even if we presume that trial counsel delivered an adequate performance at trial, given

           Defendant's immaculate criminal record and driving record as well as his reputation

           both professionally and amongst friends, presenting such character witnesses would



                                                        19

                                                  EXHIBIT D
   ·,

  .11



          have not only vouched for Defendant's good character, but would have given the jury a

  '-.)    reasonable doubt regarding Defendant's guilt. Thus, the failure to call such character

         witnesses undermined Defendant's chance to place reasonable doubt in the minds of

         the jury and we find that this greatly prejudiced Defendant's chance to succeed at trial.

                Lastly, the Commonwealth also argues that Defendant admitted to violating the
  , ..
         law and driving in a reckless manner. The Commonwealth cites to testimony from

         pages 81 and 85-86 of the PCRA Hearing as well as the Superior Court's unpublished
.)1

'·..'•   memorandum opinion dated April 21, 2015 regarding Defendant' direct appeal of the

'. 1,·   verdict. Regarding Defendant's speeding on the day of the accident, Defendant's

         statement to Officer Wilson and Sergeant Wilbur was that he was not speeding and that

         he changed lanes in order to avoid the oncoming Mercedes vehicle that was quickly

         approaching from behind. During the PCRA Hearing, it was counsel's decision to

         concede the issue that Defendant was speeding and Attorney Hoffman clarified this

         fact

                      ATTORNEY LOMBARDO: Mr. Hoffman, let's go back to your character
                      evidence or start there I should say. As part of your trial strategy, were
                      you conceding that Mr. Ocasio was speeding that day?

                      ATTORNEY HOFFMAN: Essentially. The nice thing about all the
                      witness testimony is that it was focused more on Mr. Miller. In regards to
                      Mr. Ocasio's speed, they actually never really verified it. ..

                      ***

                     ATTORNEY BRAUGHT: You also just testified that you were essentially
                     conceding at trial that Mr. Ocasio was speeding?

                     A TT OR NEY HOFFMAN: More or less. I mean the witnesses had seen
                     that. So we were trying to again fly under the radar in that respect. This
                     entire trial was about whether or not his decision to change lanes was
                     somehow the reason for this accident.



                                                   20

                                             EXHIBIT D
  ,I��.,
  ·,

 .n

                           ATTORNEY BRAUGHT: You are aware that Mr. Ocasio when he gave a
 .. :..'
                           statement to Sergeant Wilbur said that he was going 40 miles an hour?
\,.)

                           ATTORNEY HOFFMAN:             That's correct.
\,,)
                           ATTORNEY BRAUGHT:             And that would not have been speeding?

                           ATTORNEY HOFFMAN:             No, it would not have been speeding.
,...,,'!,.


                           (Tr. of April 22,. 20161 p. 81, 85-86.)
.,.,,�)
             We find that conceding the issue of Defendant's speeding was a lapse of judgment on

             the part of trial counsel as Defendant has clearly disputed that fact in his statements to
.,n
"-.,,)
             officers. We also find that Defendant did not actually admit that he was driving

             recklessly during the trial and that both Officer Wilson and Sergeant Wilbur testified that

             Defendant contended that he was going around forty miles an hour and changing lanes

             in order to avoid a collision rather than doing so in a reckless manner.

                    Furthermore, as mentioned previously, Sergeant Wilbur clarified that Defendant

             never stated that he was racing the Mercedes, rather, Defendant simply answered

             Sergeant Wilbur's questions on racing. The Superior Court's unpublished

             memorandum on page pages 8-9 also mentions that Defendant describes Co-

             Defendant Miller's Mercedes as "the car that was previously racing against me."

             Defendant later clarified that he did not mean that statement to imply that he was racing

             rather that the Mercedes was racing. Again, this is precisely why character evidence

             would have been so valuable at trial. The crux of the Commonwealth's case rests upon

             whether Defendant was indeed racing. As Attorney Hoffman admitted, Defendant's

             speed was never actually determined at trial. Surely, the fact that Defendant had a

             reputation for being honest, peaceful and law-abiding would have raised doubt in the

             minds of the jury as to whether he was really racing and as to whether his testimony


                                                          21

                                                   EXHIBIT D
 .... ·,l




 .•11


            was credible. We once aqain find that the lack of character witnesses at trial greatly

            prejudiced Defendant's chances to raise doubts in the minds of the jury as to his guilt.

                   For the reasons stated, we find that Defendant has satisfied all three prongs of

            the Pierce-test and met the burden of proving that trial counsel was ineffective. As
 .... ,J

            such, he is entitled to relief under the Post Conviction Relief Act and a new trial is

            granted.

                                                      CONCLUSION

                   This Court has thoroughly reviewed all of the relevant pleadings and

,:r·        transcripts in this matter.     We rely on and incorporate those pleadings and

            transcripts, including the within Opinion as its 1925(a) Opinion in the above-

            captioned matter.



                                                              BY THE COURT,
                                                                                      ---

                                                                        ennedy,Judge


            Date: October 24, 2017

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                                                        22

                                                 EXHIBIT D
