J. S02013/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :
                                         :         No. 2000 EDA 2018
                                         :
DWAYNE ANTHON EDWARDS                    :


             Appeal from the PCRA Order Entered June 4, 2018,
             in the Court of Common Pleas of Delaware County
              Criminal Division at No. CP-23-CR-0000661-2015


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 08, 2019

      The Commonwealth appeals the June 4, 2018 order entered in the Court

of Common Pleas of Delaware County that granted Dwayne Anthon Edwards’s

amended petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546 (“PCRA”), and ordered a new trial. After careful review, we

affirm.

      The PCRA court set forth the following:

            After a jury trial[, appellee] was found guilty of
            indecent assault of a person less than thirteen years
            of age[Footnote 1], corruption of minors[Footnote 2],
            endangering the welfare of a child[Footnote 3], and
            false imprisonment[Footnote 4].      [Appellee] was
            found not guilty of Involuntary Deviate Sexual
            Intercourse, Sexual Assault and Aggravated Indecent
            Assault. A sentence of twelve to eighty-four months
            of incarceration to be followed by three years of
            probation was imposed on October 16, 2015.
J. S02013/19


          [Appellee] moved for reconsideration of sentence.
          Following the denial of that post-sentence motion[,
          appellee] pursued his right to a direct appeal. On
          November 2, 2016 the Superior Court affirmed
          judgment of sentence. On February 15, 2017 the
          Supreme Court denied his Petition for Allowance of
          Appeal.

                [Footnote 1] 18 Pa.C.S.A. § 3123(a)(7)[.]
                [Footnote 2] 18 Pa.C.S.A. § 6301(a)(1)(i)[.]
                [Footnote 3] 18 Pa.C.S.A. § 4304(a)(1)[.]
                [Footnote 4] 18 Pa.C.S.A. § 2903(a)(1)[.]

          On May 1, 2017 [appellee] filed a pro se Motion for
          [PCRA r]elief. Counsel was appointed and on April 6,
          2018 appointed counsel filed an amended petition on
          [appellee’s] behalf.      This petition alleged that
          [appellee] was denied the effective assistance of
          counsel at trial. In support it was alleged that trial
          counsel was informed of the existence of certain
          character witnesses who were available to testify on
          [appellee’s] behalf at trial but that counsel failed to
          contact or call the witnesses to testify. No evidence
          of [appellee’s] reputation for relevant character traits
          was offered at trial.

          An evidentiary hearing took place on May 17, 2018.
          At the hearing the [PCRA c]ourt heard the testimony
          of [appellee] and of trial counsel. Although the
          relevant character witnesses were in attendance the
          substance of their testimony was entered by
          stipulation. Each character witness would testify that
          she was available to testify at trial regarding
          [appellee’s] reputation for being a peacefulness [sic]
          and law-abiding individual. It was also stipulated that
          each of these witnesses was “either related [to
          [appellee]] as relative and mother and wife.” At the
          conclusion of the hearing the [PCRA c]ourt took the
          matter under advisement and on June 4, 2018 an
          Order granting [appellee] a new trial was entered.

          The Commonwealth filed a motion for reconsideration.
          On July 2, 2018 the motion for reconsideration was
          denied. The Commonwealth filed a timely Notice of


                                   -2-
J. S02013/19


                Appeal on July 3, 2018, necessitating this Opinion. In
                its timely “Concise Statement of Matters Complained
                of on Appeal,” the Commonwealth claims that the
                PCRA court’s determination that trial counsel provided
                ineffective assistance was in error because [appellee]
                failed to prove that the absence of the proposed
                character testimony was not so prejudicial as to have
                denied [appellee] a fair trial.

PCRA court opinion, 8/14/18 at 1-2 (record citations omitted; some brackets

in original).

      The Commonwealth raises the following issue for our review:

                Did the [PCRA] court commit an error of law in finding
                that trial counsel was constitutionally ineffective and
                ordering a new trial?

Commonwealth’s brief at 7.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing, viewed

in the light most favorable to the prevailing party.” Commonwealth v. Sam,

952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most

PCRA appeals involve questions of fact and law, we employ a mixed standard

of review. Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). We

defer to the PCRA court’s factual findings and credibility determinations

supported by the record.         Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa.Super. 2014) (en banc). In contrast, we review the PCRA court’s legal

conclusions de novo. Id.

      The       Commonwealth’s     issue   asserts   error   in   the   PCRA   court’s

determination that trial counsel was ineffective.


                                           -3-
J. S02013/19


          In evaluating claims of ineffective assistance of
          counsel, we presume that counsel is effective.
          Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
          435, 441 (Pa. 1999). To overcome this presumption,
          Appellee must establish three factors. First, that the
          underlying claim has arguable merit.                See
          Commonwealth v. Travaglia, 541 Pa. 108, 661
          A.2d 352, 356 (Pa. 1995). Second, that counsel had
          no reasonable basis for his action or inaction. Id. In
          determining whether counsel’s action was reasonable,
          we do not question whether there were other more
          logical courses of action which counsel could have
          pursued; rather, we must examine whether counsel’s
          decisions had any reasonable basis. See Rollins, 738
          A.2d at 441; Commonwealth v. (Charles) Pierce,
          515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally,
          “Appellee must establish that he has been prejudiced
          by counsel’s ineffectiveness; in order to meet this
          burden, he must show that ‘but for the act or omission
          in question, the outcome of the proceedings would
          have been different.’” See Rollins, 738 A.2d at 441
          (quoting Travaglia, 661 A.2d at 357). A claim of
          ineffectiveness may be denied by a showing that the
          petitioner’s evidence fails to meet any of these
          prongs. Commonwealth v. (Michael) Pierce, 567
          Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001);
          Commonwealth v. Basemore, 560 Pa. 258, 744
          A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v.
          Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998)
          (“If it is clear that Appellee has not demonstrated that
          counsel’s act or omission adversely affected the
          outcome of the proceedings, the claim may be
          dismissed on that basis alone and the court need not
          first determine whether the first and second prongs
          have been met.”).

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

          The failure to call character witnesses does not
          constitute per se ineffectiveness. Commonwealth
          v. Cox, 603 Pa. 223, 983 A.2d 666, 693 (Pa. 2009)
          (citation omitted). In establishing whether defense
          counsel was ineffective for failing to call witnesses,
          appellee must prove:


                                   -4-
J. S02013/19




                   the witness existed; (2) the witness was
                   available to testify for the defense;
                   (3) counsel knew of, 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
                   testimony of the witness was so
                   prejudicial as to have denied the
                   defendant a fair trial.

Commonwealth v. Treiber, 121 A.3d 435, 464-465 (Pa.Super. 2015)

(citation omitted).

      The record reflects that in his amended PCRA petition, appellee alleged

that he informed trial counsel of the existence of four character witnesses;

specifically,   Sherenina   Hylton,   Louise   Brown,   Gabrielle   Graham,   and

Jade Graham. (Appellee’s amended PCRA petition, 3/6/18 at 1, ¶ 5.) Appellee

further alleged that trial counsel “did not contact any of these individuals to

testify as character witnesses at the time of [appellee’s t]rial” and that

counsel’s failure to do so “constitutes ineffectiveness of counsel.” (Id. at 2,

¶¶ 6, 7.)

      The record further reflects that at the evidentiary hearing, the parties

stipulated that Ms. Hylton, who was identified as appellee’s cousin; Ms. Brown,

who was identified as appellee’s aunt; Gabrielle Graham, who was identified

as appellee’s wife; and Jade Graham, who was identified as appellee’s

daughter, would have testified that they were available to testify at trial and

that they would have testified that appellee is a peaceful and law-abiding



                                       -5-
J. S02013/19

citizen.   (Notes of testimony, 5/17/18 at 29-30, 33-35.)       The record also

demonstrates that the testimony of appellee and trial counsel conflicted as to

whether appellee informed trial counsel of the existence of these four

witnesses. Additionally, the record reveals that appellee testified that he was

convicted of disorderly conduct and placed on probation in 2010. (Id. at 29.)

At the conclusion of testimony, PCRA counsel argued that “there was no

reason not to put character witnesses on,” but whether trial counsel had a

reasonable basis was “at least partially . . . an issue of credibility.” (Id. at

36.)

       On June 4, 2018, the PCRA court entered an order, without an opinion,

that granted appellee PCRA relief in the form of a new trial. (Order of court,

6/4/18.) The Commonwealth filed a motion for reconsideration alleging that

appellee failed to meet his burdens of (1) establishing that no reasonable basis

existed for trial counsel’s actions; and (2) prejudice.       (Commonwealth’s

motion for reconsideration of order granting PCRA relief, 6/20/18.) The PCRA

court denied the motion without an opinion. (Order of court, 7/2/18.)

       In its Rule 1925(a) opinion, the PCRA court, who also presided at trial,

concluded that:1


1 We note that in its Rule 1925(a) opinion, the PCRA court states that the
“Commonwealth does not challenge the PCRA [c]ourt’s determinations that
[appellee’s] claim has arguable merit and that trial counsel had no reasonable
basis for his failure to present character witnesses in this case.” (PCRA court
opinion, 8/15/18 at 3.) A reading of the Commonwealth’s brief reveals that it
correctly recognizes that because the PCRA court made a factual finding based
on a credibility determination as to this prong of the ineffectiveness test, this


                                      -6-
J. S02013/19


           Had evidence of [appellee’s] reputation for law
           abidingness been put before the jury[, appellee]
           would have been entitled to the Standard Jury
           Instruction:

                The law recognizes that a person of good
                character is not likely to commit a crime
                that is contrary to that person’s nature.
                Evidence of good character may by itself
                raise a reasonable doubt of guilt and
                require a verdict of not guilty. You must
                weigh and consider the evidence of good
                character along with the other evidence in
                the case. If, on all the evidence, you have
                a reasonable doubt of the defendant’s
                guilt, you must find him not guilty.
                However, if, on all the evidence, you are
                satisfied beyond a reasonable doubt that
                the defendant is guilty, you should find
                him guilty.

           Pennsylvania Suggested     Standard    Criminal    Jury
           Instructions, 3.06.

           The fact that the witnesses offered were [appellee’s]
           relatives does not warrant a different conclusion. The
           evidence of guilt in this case was far from
           overwhelming. The [v]ictim’s complaint came three
           years after the alleged assault and long after the
           relationship between [the victim’s mother] and
           [appellee] ended. However, there was evidence that
           during the intervening years the animus between the
           two remained. Familial character witnesses may “lack
           the credibility of unbiased non-familial witnesses.”
           However, they are not worthless and should have
           been made available for the jury’s consideration. See
           Commonwealth v. Weiss, 606 A.2d 439, 443 (Pa.
           1992). Finally, [appellee] admitted that in 2010 he
           was convicted of disorderly conduct, a misdemeanor.
           This conviction would properly have been raised in
           cross-examination.     Given the relatively minor

court is bound by that determination on appeal. (Commonwealth’s brief at
18.)


                                   -7-
J. S02013/19


            conviction in comparison to the nature and
            seriousness of the crimes charged the impact of that
            evidence would have had little if any impact on a
            factfinder.

PCRA court opinion, 8/14/18 at 8-9.

      Our review of the findings of the PCRA court and the evidence on the

record of the PCRA court’s hearing, as viewed in the light most favorable to

appellee who prevailed below, supports the PCRA court’s factual findings. The

PCRA court deemed appellee’s evidence more credible than the evidence

presented by the Commonwealth, and based upon those determinations, the

PCRA court found that appellee carried his burden in establishing trial

counsel’s ineffectiveness.   Because the record supports the PCRA court’s

findings, we decline to disturb its determination on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/8/19




                                      -8-
