Opinion
J-S67039-18 No. 208 EDA 2018
01-29-2019
COMMONWEALTH OF PENNSYLVANIA, Appellee v. CHRISTOPHER DUNBAR, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order December 13, 2017 in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002187-2013 BEFORE: OTT, J., NICHOLS, J. and STRASSBURGER, J. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Christopher Dunbar (Appellant) appeals from the order entered December 12, 2017, dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The record reveals the following factual and procedural history. Appellant was involved in a relationship with a woman (Victim) from 2008 until they separated in January 2013. Victim has three children from a prior relationship and Appellant and Victim share one child together. After their separation, Appellant sometimes cared for all four children. On Mother's Day, May 12, 2013, Appellant was scheduled to bring the children to Victim's house around 10:00 a.m. so that Victim could celebrate Mother's Day with her children. Instead, Appellant showed up with the children eight hours early, around 2:00 a.m., and encountered Victim with a man, which enraged Appellant. Appellant ordered the man to leave and began putting the children to bed. Meanwhile, Victim ran into her bedroom and locked the door. Appellant persuaded Victim to open the door and then attacked her. He ripped off her clothing, threw her across the room, grabbed her by the hair, and slammed her head on the dresser. Appellant grabbed a dildo and hit Victim in the face with it multiple times. One of the strikes caused Victim to black out and see flashes of light. At one point during the attack, Appellant choked Victim and held his hand over her mouth and nose, preventing her from breathing. He told her he was deciding whether or not to kill her, but he wanted her to suffer first. Throughout the attack, Appellant also forcibly penetrated Victim with the dildo, telling her he was going to leave her so she never wanted to have sex again.
The attack continued throughout the night, lasting approximately four hours. Appellant periodically exited the bedroom to tell the children to go back to sleep or to tend to the youngest child. Victim initially resisted and cried out for her daughter to call 911, but she eventually became compliant so as not to enrage Appellant further. She eventually was able to call for help around 7 a.m., when she texted her friend to call the police.
When the police arrived, they found Appellant along with Victim, who was bloodied, beaten, and shaking. They observed that Victim's bedroom looked like a struggle had taken place. Victim received treatment at Lehigh Valley Hospital for her injuries. The gynecologist who examined Victim opined at trial that in his expert opinion, the swelling of Victim's vagina was "more consistent with external use with force versus consensual intercourse." N.T., 2/5/2014, at 150.
Appellant was arrested and charged, and the case proceeded to a jury trial, where Appellant was represented by James Heidecker, Esquire. At trial, Victim, several responding and/or investigating officers, a nurse and two doctors who examined Victim, and two friends who responded to Victim's texts testified regarding the incident. Appellant also testified, admitting that in anger he grabbed and ripped Victim's clothes and struck Victim in the face with the dildo. He denied the rest of Victim's account, including her accusation that he penetrated her involuntarily with the dildo. According to Appellant, they argued and tussled, but after he hit her, he tended to her wounds and they went to sleep in Victim's bed. Through cross-examination, Appellant's counsel suggested that the swelling in Victim's vagina came from consensual intercourse or Victim's own masturbation with the dildo.
Initially, Appellant had pleaded guilty, but he withdrew his plea before trial.
The jury found Appellant guilty of involuntary deviate sexual intercourse, simple assault, and resisting arrest, and not guilty of attempted criminal homicide and aggravated assault. On May 29, 2014, the trial court sentenced Appellant to an aggregate term of 13½ to 29 years of incarceration. Appellant filed a direct appeal. This Court affirmed his judgment of sentence, a ruling our Supreme Court declined to review. See Commonwealth v. Dunbar , 133 A.3d 64 (Pa. Super. 2015) (unpublished memorandum), appeal denied, 134 A.3d 54 (Pa. 2016).
On October 5, 2016, Appellant timely filed pro se a PCRA petition. The PCRA court appointed counsel, but later permitted counsel to withdraw following counsel's submission of a petition and no-merit letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). Privately-retained counsel then entered his appearance on Appellant's behalf and eventually filed an amended PCRA petition alleging that Attorney Heidecker, Appellant's trial counsel, rendered ineffective assistance by failing to call any character witnesses to testify on Appellant's behalf at trial. Attached to the amended petition were affidavits from Carla Guzman and Lorna James, Appellant's former co-worker and neighbor, respectively, who claimed they had been willing and available to testify regarding Appellant's reputation in the community for peacefulness and abiding by laws.
After several continuances, the PCRA court conducted an evidentiary hearing on September 14, 2017. Attorney Heidecker testified that he did not recall receiving a list of potential character witnesses from Appellant, besides Appellant's mother, Nutella Anderson. N.T., 9/14/2017, at 5-6, 13-14, 17. Attorney Heidecker decided against calling Appellant's mother because (1) Appellant had told a psychologist that his mother abused him as a child; (2) Attorney Heidecker thought it would not look good to the jury to present only Appellant's mother as a character witness; and (3) Appellant's mother did not live in the same community as Appellant and therefore could not speak to his general reputation. Id. at 16-17, 20. Attorney Heidecker was concerned in general about calling character witnesses because it opened up a risk that prosecutors would seek to admit evidence of a similar incident in 2005 involving Appellant and another woman. Id. at 6-10. He acknowledged that the incident likely was inadmissible pursuant to Pa.R.E. 405, but "it was close enough of a call that [he did not] want to risk it." Id. at 7-8. He also was concerned that if witnesses testified to Appellant's character, it would open the door to cross-examination concerning fraud committed by Appellant in obtaining his employment. Id. at 15.
The 2005 incident had come to light as part of the pre-sentencing investigation conducted prior to Appellant's entry of a guilty plea, which was later withdrawn. Id. at 6-7.
According to the trial court, a psychologist who examined Appellant revealed in his report that Appellant lied about his educational credentials to obtain his position as a behavioral counselor, allegedly substituting his name for that of another student on a transcript to falsely indicate that he had undergraduate and master's degrees when he had none. Trial Court Opinion, 12/13/2017, at 9. Appellant alluded to this at the evidentiary hearing, testifying that he would allow a jury to hear about this because he is not perfect and "[l]ying on an employment application does not make me a rapist." N.T., 9/14/2017, at 84.
Appellant, on the other hand, testified that he specifically asked Attorney Heidecker to explore calling his mother, James, Guzman, and three others as character witnesses. Id. at 79.
Three proposed character witnesses testified at the PCRA hearing, all of whom said they would have been available to testify at Appellant's trial, had they been asked to do so. Guzman, a former co-worker, claimed Appellant had a reputation for being peaceful, honest, and law-abiding. Id. at 25-26. However, she conceded on cross-examination that she was basing her testimony about his reputation on her own personal opinion, not on discussions she had with anyone in their community. Id. at 30. She also conceded that she would question his truthfulness if she learned he lied about having undergraduate and master's degrees. Id. at 34.
Appellant's mother acknowledged what Appellant did was "wrong." Id. at 50. Nevertheless, she testified that she was aware from discussions with friends and neighbors that Appellant had a reputation for being peaceful, honest, and law-abiding, id. at 39, but all of the people knew Appellant when he was in his mid-twenties, not at age 39 around the time of the crimes. Id. at 47. Furthermore, despite her claim that Appellant had a reputation for being honest, she denied Appellant's allegation that she had abused him as a child, and claimed all the statements Appellant had made to a psychologist about her were false. Id. at 52-57.
Specifically, she denied that she had told Appellant's teachers that Appellant was a homosexual ad drug user, that she had told Appellant when he was a child that she should have aborted him, and that she had told hospital staff that Appellant was a manipulator and a liar. Id.
Appellant's former neighbor James testified that she was aware from discussions with neighbors that Appellant had a reputation for being peaceful, honest, and law-abiding, but again this reputation was based upon Appellant up until his mid-twenties and somewhat based upon her own personal opinion. Id. at 58-61, 68. She also testified that she would have questions about his truthfulness if she learned he had lied about his educational credentials to get a job. Id. at 75.
Following the hearing, the PCRA court dismissed Appellant's petition by order dated December 13, 2017. Appellant timely filed a notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant challenges the PCRA court's dismissal of his amended PCRA petition based upon trial counsel's failure to call Guzman, James, and his mother at trial. Appellant's Brief at 6. He argues trial counsel was ineffective for failing to present evidence of his good character, which could have raised reasonable doubt in the mind of the jury, particularly because the case hinged on whether the jury believed Appellant's version of the event or Victim's. Appellant's Brief at 24-25. According to Appellant, Attorney Heidecker had no reasonable basis for failing to call Guzman, James, and his mother, and his failure to call them prejudiced Appellant by costing him a fair trial. Id. at 25-33.
We review such claims using the following standard.
This Court analyzes PCRA appeals in the light most favorable to the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we do not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Similarly, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Finally, we may affirm a PCRA court's decision on any grounds if the record supports it.Commonwealth v. Benner , 147 A.3d 915, 919 (Pa. Super. 2016) (quoting Commonwealth v. Perry , 128 A.3d 1285, 1289 (Pa. Super. 2015)).
"[C]ounsel is presumed to be effective, and the petitioner bears the burden of proving to the contrary." Commonwealth v. Brown , ___ A.3d ___, 2018 WL 5046812, at *12 (Pa. filed Oct. 17, 2018).
It is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel's error.Commonwealth v. Johnson , 179 A.3d 1105, 1114 (Pa. Super. 2018) (citations omitted). "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels , 963 A.2d 409, 419 (Pa. 2009).
Generally, evidence of a person's character may not be admitted to show the person acted in conformity with such character on a particular occasion. Pa.R.E. 404(a). In a criminal case, however, a defendant may offer evidence of his or her character traits which are pertinent to the crimes charged, and the Commonwealth may offer evidence to rebut the trait. Pa.R.E. 404(a)(2). Testimony must be about the defendant's reputation, not the witness's opinion of the character or character trait of the defendant. Pa.R.E. 405(a). "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. Goodmond , 190 A.3d 1197, 1201-02 (Pa. Super. 2018). On cross-examination, the Commonwealth may inquire into relevant specific instances of the person's conduct probative of the character trait in question. Pa.R.E. 405(a)(1). However, the Commonwealth may not inquire into allegations of other criminal conduct by the defendant that did not result in conviction. Pa.R.E. 405(a)(2).
Our Supreme Court has determined that "[t]he failure to call character witnesses does not constitute per se ineffectiveness." Commonwealth v. Treiber , [] 121 A.3d 435, 463 ([Pa.] 2015). It is axiomatic that when a PCRA petitioner claims counsel was ineffective for failing to call a witness, he or she must establish "(1) 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." Id. [] at 464.Goodmond , 190 A.3d at 1201-02.
In dismissing Appellant's petition, the PCRA court explicitly credited Attorney Heidecker's testimony over Appellant's on the issue of whether Appellant provided names of potential witnesses to Attorney Heidecker beyond the name of his mother. PCRA Court Opinion, 12/13/2017, at 3. "A PCRA court's credibility findings are to be accorded great deference," and, if the findings are supported by the record, they are binding upon a reviewing court. Commonwealth v. Orlando , 156 A.3d 1274, 1280 (Pa. Super. 2017) (citation omitted). Based upon Attorney Heidecker's testimony and the PCRA court's credibility finding, we discern no abuse of discretion in the PCRA court's conclusion that Attorney Heidecker could not be ineffective for failing to call witnesses of whom he was not aware.
Appellant does not argue, and there is no indication in the record, that Attorney Heidecker should have been aware of these witnesses through his own investigation or from a source other than Appellant.
Moreover, even if Attorney Heidecker was aware of James and Guzman, we agree with the PCRA court's assessment that there is no arguable merit to Appellant's claim that James, Guzman, and Appellant's mother should have been called as character witnesses. See PCRA Court Opinion, 12/13/2017, at 8-10. Both James and Guzman referred to their own personal opinions in describing Appellant's good character. The testimony of James and Appellant's mother was based upon Appellant's reputation approximately fifteen years before the crimes. Thus, the PCRA court did not abuse its discretion by concluding that none of the proposed witnesses would have qualified as character witnesses. See Pa.R.E. 405(a); Goodmond , 190 A.3d at 1201-02.
We note that Appellant neither listed his mother as a potential witness nor certified the substance of her testimony in his PCRA petition or amended PCRA petition as required by the PCRA. See 42 Pa.C.S. § 9545(d)(1) (requiring petitioners to include a signed certification as to each intended witness; failure to comply renders the testimony of the proposed witness inadmissible); Commonwealth v. Pander , 100 A.3d 626, 642 (Pa. Super. 2014) (holding that petitioner or his attorney must file a certification certifying the substance of a witness's testimony or the witness cannot testify at an evidentiary hearing). Nevertheless, because the PCRA court permitted Appellant's mother to testify at the evidentiary hearing, we will address the issue of whether she should have been called as a character witness.
We also agree with the PCRA court that even if Attorney Heidecker were aware of James and Guzman, counsel had a reasonable basis for not calling James, Guzman, and Appellant's mother as character witnesses, given the fact that all three backtracked on their testimony as to Appellant's truthfulness when presented with certain points on cross-examination. See PCRA Court Opinion, 12/13/2017, at 8-10. Moreover, it was not unreasonable for counsel to have avoided calling Appellant's mother as his only character witness, lest the jury think that his mother was the only person who had good things to say about him. Id. at 8.
Although not addressed by the PCRA court, we also note that Appellant did not establish prejudice. While this case obviously largely hinged on whether the jury believed Appellant's or Victim's version of events, Appellant ignores the Commonwealth's introduction of other evidence supporting Victim's version, including medical testimony regarding swelling of Victim's vulva and testimony from Victim's friends whom she texted for help.
Based on the foregoing, the PCRA court did not err by dismissing Appellant's PCRA petition due to Appellant's failure to meet his burden in demonstrating trial counsel's ineffectiveness. Accordingly, we affirm the order of the PCRA court.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/29/19