Com. v. McClendon, B. ( 2020 )


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  • J-S43025-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
    OF PENNSYLVANIA
    Appellee
    v.
    BRANDON DEVAU MCCLENDON
    Appellant                    No. 59 WDA 2020
    Appeal from the PCRA Order entered December 19, 2019
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No: CP-02-CR-0014747-2007
    BEFORE: SHOGAN, J., STABILE, J., and KING, J.
    MEMORANDUM BY STABILE, J.:                      FILED DECEMBER 17, 2020
    Appellant, Brandon Devau McClendon, appeals from the order entered
    in the Court of Common Pleas of Allegheny County on December 19, 2019,
    following dismissal of his petition for collateral relief pursuant to the Post
    Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. Appellant contends
    the PCRA court erred by denying relief because trial counsel’s failure to call
    character witnesses constituted ineffectiveness. Upon review, we affirm.
    The record reflects that Appellant was charged with, and subsequently
    convicted of, attempted murder and aggravated assault stemming from the
    September 4, 2007 shooting of Elijah Posey while Posey was sitting in a parked
    car in Pittsburgh. Quoting this Court’s memorandum opinion on direct appeal,
    the PCRA court recognized that, “[t]o the police, Posey identified Appellant as
    his assailant, but he also made a statement to a hospital counselor that others
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    may have shot him. . . . At trial, Appellant’s defense focused on the possibility
    that someone other than Appellant shot Posey.”             PCRA Court Opinion,
    12/17/19, at 2 (quoting Commonwealth v. McClendon, 548 WDA 2010,
    unpublished memorandum at 2 (Pa. Super. filed November 15, 2011)).
    By way of background, Appellant, who was 19 years old at the time of
    the shooting, was in an on-again, off-again relationship with 18-year-old
    Janya Jenkins, the mother of Appellant’s daughter. Meanwhile, Jenkins had
    begun an intimate relationship with Posey, who was 41 years old. “Based on
    the police investigation, the Commonwealth alleged Appellant shot Posey due
    to a love triangle.” Id.
    Appellant’s first trial resulted in a conviction that was reversed by this
    Court because “certain remarks made by the prosecutor during the
    Commonwealth’s closing argument denied [him] a fair trial.”            Id. at n.2.
    Appellant was represented in his successful appeal by Carrie Allman, Esquire,
    of the Allegheny County Public Defender’s Officer.         Attorney Allman then
    defended Appellant on retrial in 2012. According to the PCRA judge, who also
    presided over both of Appellant’s trials, “[t]he presentation of facts in the 2012
    trial did not materially differ from those in the first trial in 2009.” Id. at 3.
    At the close of the prosecution’s case on retrial, the trial judge explained
    to Appellant that he had no burden to carry and did not have to prove himself
    innocent. Notes of Testimony (“N.T.”), Trial, 4/26/12, at 274-75. The judge
    explained that Appellant had the option of calling witnesses and indicated that
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    “there are fundamentally three types of witnesses[.]”        Id. at 275.      After
    explaining the role of eyewitnesses and alibi witnesses, and after Appellant
    indicated his understanding of both, the court stated:
    But perhaps the most powerful witness perhaps [sic] is what’s
    called character witness, and what a character witness can talk
    about is your reputation in the community, not for what they did
    with you themselves, but your reputation from interacting with
    other people who know you in the community about specific
    character traits, like your character for being law abiding and your
    character for being peaceful and your character for any of a
    number of traits that they could speak to your character in the
    community.
    Id. at 276. The court then asked Appellant if he understood and Appellant
    replied, “Yes, sir.”    Id.   The court continued, “Now, I don’t need to know
    whether or not you are going to call them, but have you had an opportunity
    discuss that option with counsel?” Again, Appellant replied, “Yes, sir.” Id.1
    Appellant was the sole witness for the defense.      Ultimately, the jury
    returned convictions of attempted murder and aggravated assault. The trial
    court sentenced him to ten to twenty years in prison for attempted homicide,
    with no further penalty imposed for aggravated assault. After unsuccessfully
    pursuing a direct appeal from his sentence, Appellant filed a timely PCRA
    ____________________________________________
    1 Similarly, the trial judge explained to Appellant the importance and benefit
    of calling character witnesses at the beginning of the defense case in
    Appellant’s first trial. See N.T., Trial, 7/16/09, at 502-04. Appellant
    acknowledged his understanding, indicated he had discussed the topic of
    character witnesses with counsel, and stated he would not be calling character
    witnesses. Id. at 504.
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    petition. Counsel was appointed and filed amended petitions on Appellant’s
    behalf.   The gist of the argument raised in Appellant’s petition was that
    Attorney Allman was ineffective for failing to call three character witnesses at
    Appellant’s retrial.2
    PCRA counsel requested an evidentiary hearing and the Commonwealth
    agreed a hearing was appropriate. The hearing was conducted on November
    29, 2017. As of that time, Attorney Allman was employed in the Montgomery
    County Public Defender’s Office.          Because of a glitch in communications,
    Attorney Allman participated by audio conference. Although she was able to
    view the proceedings in Allegheny County, the PCRA judge, Appellant, and
    other participants in Allegheny County were unable to see her. Consequently,
    the court left it up to Appellant whether to proceed or to continue the hearing.
    Appellant chose to proceed. N.T., Evidentiary Hearing, 11/29/17, at 6.
    During the hearing, counsel for Appellant asked Attorney Allman if she
    had discussed the use of character witnesses with Appellant. She replied that
    the issue was addressed both in one-on-one meetings in person on February
    24 and March 16, 2012, and in writing by letter dated March 5, 2012. N.T.,
    Evidentiary Hearing, 11/29/17, at 11.            Counsel asked Attorney Allman if
    Appellant identified any potential character witnesses, and, specifically, if he
    ____________________________________________
    2 Although Appellant also asserted ineffectiveness for failure to call a fact
    witness (Fred Morgan), Appellant is not pursuing that claim in this appeal.
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    mentioned Chalcy McClendon, Shamica McClendon, or Chris McClendon as
    potential character witnesses.3 Attorney Allman replied that Appellant did not
    identify any potential character witnesses and explained that she did not have
    any recollection of any of the mentioned names, nor did she have any
    reference in her notes to any of those individuals. Id. at 11-12. She indicated
    that family members attended the trial and that she spoke extensively with
    them throughout the trial concerning the status and procedure. However, she
    did not recall “any conversations with them about them being character
    witnesses[.]” Id. at 12.
    Attorney Allman explained that she ultimately did not call any character
    witnesses. When asked if Appellant indicated at the time of trial that he had
    people to present as character witnesses, she responded, “Not to my
    recollection. My only recollection is that there was an on the record colloquy
    as to his right to testify and to call character witnesses, and he did in fact
    testify. I don’t recall any discussion about calling character witnesses at the
    time of trial.” Id. at 13.
    On cross-examination, counsel for the Commonwealth asked Attorney
    Allman about the March 5, 2012 letter.4 Attorney Allman noted that beginning
    ____________________________________________
    3Chalcy and Christian are Appellant’s siblings. Shamica is his sister-in-law.
    N.T., Evidentiary Hearing, 11/29/17, at 17-24.
    4The transcript reflects that participants in the hearing in Allegheny County
    had a copy of the March 5, 2012 letter.
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    in the third paragraph on page 2 and continuing through to the second to last
    paragraph on page 3, she addressed the issue of character witnesses,
    complete with citations to case law. Id. at 14. She testified that in the letter,
    “I suggested to him that he give me names and contact information.” Id. at
    14-15. She also testified as to her notes from three meetings with Appellant
    at the Allegheny County Jail. The notes from those meetings, which took place
    on February 16, February 24, and March 16, 2012, “reflect that we talked
    about character witnesses at those meetings.” Id. at 15.
    Chalcy McClendon testified that she was present “for the most part” at
    Appellant’s trial.   She stated that no one from Attorney Allman’s office
    contacted her about being a character witness. Id. at 18. She said Appellant
    asked her if she would testify and asked her whether she would have been
    willing to testify. She responded affirmatively to both questions. Id. When
    asked if it occurred to her that the trial was almost over and she had not been
    called to testify, she stated, “I didn’t think about it, no.”   Id. at 20.   She
    explained she “guess[ed] they didn’t need me as a witness.” Id.
    Shamica McClendon testified that she told Appellant she would testify
    as a character witness.    Id. at 22. She claimed she approached Attorney
    Allman and they discussed the trial. She stated that that Attorney Allman said
    “she might call me.” Id.
    Christian McClendon testified that he spoke with Appellant about being
    a character witness. He also stated that he approached Attorney Allman and
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    asked her about testifying because he was in and out of the trial due to his
    work schedule. “I told her I could testify on his behalf, and she was supposed
    to call me, but she never did.” Id. at 25. He stated that when he asked
    Attorney Allman why she had not called him as a character witness, “she never
    gave me a response.” Id.
    Appellant also testified at the hearing. When asked if Attorney Allman
    discussed the use of character witnesses with him, he replied, “To my
    knowledge, not that I can recall. All she discussed with me was the defense
    witnesses.” Id. at 29. After PCRA counsel clarified that character witnesses
    would be defense witnesses, Appellant stated that he gave Attorney Allman
    the names of Chalcy, Shamica, and Christian, along with two others. When
    asked if he told Attorney Allman that he wanted her to call character
    witnesses, Appellant testified that they “talked about it, and she told me it
    probably wouldn’t matter if we called the character witnesses, . . . [h]er whole
    thing was she didn’t think they would help me. That was her whole thing.”
    Id. at 30.
    The following exchange then took place with the PCRA judge:
    THE COURT: There was a point in the proceeding when it became
    the defense case, and we brought you forward, and one of the
    questions I asked you was whether you had the opportunity to
    talk to Ms. Allman about calling witnesses, and I explained to you
    that there were three types of witnesses. Do you recall that
    conversation?
    APPELLANT: Yes.
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    THE COURT: One of the things I talked to you about and asked
    you about was if you had an opportunity to discuss with Ms.
    Allman character witnesses, and I routinely go through the same
    conversation about the impact of character witnesses. Do you
    remember that?
    APPELLANT: Yes.
    THE COURT: What was your statement?
    APPELLANT: I don’t even remember my statement.
    Id. at 31.
    By order entered December 17, 2019, the PCRA court dismissed
    Appellant’s petition.   This timely appeal followed.    The PCRA court did not
    order the filing of a Rule 1925(b) statement but instead issued a statement in
    lieu of a Rule 1925(a) opinion on January 24, 2020, indicating that the reasons
    for dismissing Appellant’s petition were set forth in a December 17, 2019
    opinion issued in conjunction with its dismissal order.
    Appellant presents one issue for our consideration:
    I.     The PCRA court erred in denying relief because trial counsel
    was ineffective for failing to call character witnesses during
    [Appellant’s] jury trial to testify to his peaceable, non-
    violent reputation within the community, where evidence of
    good care would have established reasonable doubt for the
    jury[.]
    Appellant’s Brief at 4 (some capitalization omitted).
    As our Supreme Court recently reiterated:
    Our standard of review in a PCRA appeal requires us to determine
    whether the PCRA court’s findings of fact are supported by the
    record, and whether its conclusions of law are free from legal
    error. Commonwealth v. Mason, 
    634 Pa. 359
    , 
    130 A.3d 601
    ,
    617 (2015). The scope of our review is limited to the findings of
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    the PCRA court and the evidence of record, which we view in the
    light most favorable to the party who prevailed before that court.
    Commonwealth v. Hanible, 
    612 Pa. 183
    , 
    30 A.3d 426
    , 438
    (2011). . . . The PCRA court’s factual findings and credibility
    determinations, when supported by the record, are binding upon
    this Court. Mason, 130 A.3d at 617. However, we review the
    PCRA court's legal conclusions de novo. Id.
    Commonwealth v. Small, --- A.3d ----, 
    2020 WL 5833781
    , at *8 (Pa.
    October 1, 2020).
    The PCRA court recognized that “[i]n the right circumstance, the failure
    to present available character witness testimony may constitute ineffective
    assistance of counsel.”      PCRA Court Opinion, 12/17/19, at 5 (citing
    Commonwealth v. Weiss, 
    606 A.2d 439
     (Pa. 1992)). However, the failure
    to call character witnesses is not per se ineffectiveness.          
    Id.
     (citing
    Commonwealth v. Treiber, 
    121 A.3d 435
     (Pa. 2015)).
    In establishing whether defense counsel was ineffective for failing
    to call witnesses, appellant must prove:
    (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.
    Treiber, 121 A.3d at 463-64 (quoting Commonwealth v. Puksar, 
    951 A.2d 267
    , 277 (Pa. 2008)).
    The PCRA court first acknowledged that each of three proposed
    character witnesses presented testimony at the evidentiary hearing satisfying
    the legal requirement that Appellant had a reputation for non-violent behavior.
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    PCRA Court Opinion, 12/17/19, at 5 (quoting N.T., Evidentiary Hearing,
    11/29/17, at 18 (Chalcy: “he wasn’t known to be violent in the community”),
    at 23 (Shamica: “he was known for nonviolence”), and at 27 (Christian: “he
    was peaceful and nonviolent”). However, as reflected in the quoted excerpt
    from Treiber, to prove ineffectiveness for failing to call a character witness,
    Appellant must prove that “counsel knew of, or should have known of, the
    existence of the witness[.]” Treiber, 121 A.3d at 464. Here, the PCRA court
    found the testimony of Attorney Allman “enlightening” and stated he
    “believe[d] Ms. Allman that she was not aware of these possible character
    witnesses.” PCRA Court Opinion, 12/17/19, at 6.
    Specifically, the court observed that Attorney Allman’s notes from her
    meetings with Appellant “did not reveal the names of the three proposed
    character witnesses. She was asked point blank by PCRA counsel about each
    name. Ms. Allman responded after checking her notes.” Id.5 “The existence
    of those notes and the information it contains, or, in this case, does not
    contain, is very helpful when questioned about events that took place several
    years ago.” Id. The court continued:
    ____________________________________________
    5 We acknowledge the PCRA court’s misstatement reflecting that the court
    “noticed” Attorney Allman looking at her notes from “a few feet away.” PCRA
    Court Opinion, 12/17/19, at 6. As noted above, Attorney Allman participated
    in the hearing by audio conference. We find the misstatement by the court in
    an opinion issued more than two years after the hearing to be insignificant.
    The transcript clearly reflects that she was reviewing her notes in the course
    of her testimony.
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    The court notes Ms. Allman was not a neophyte when it came to
    this case. She handled [Appellant’s] appeal and achieved a rare
    result—a reversal for prosecutorial misconduct. She then handled
    the second trial. That is not the norm. As such, her knowledge
    of this case and all its nuances, was far superior than that
    possessed by the prosecutor. So, with that background, it is very
    believable that Ms. Allman recognized early in the game the
    importance of character witnesses. The court believes her when
    she testified that the topic was raised with [Appellant] – once in
    writing and twice in face-to-face conferences. Despite three
    attempts to make his case that much better, [Appellant] failed to
    identify any potential character witnesses to his lawyer.
    Id. (footnote, some capitalization, and citation to evidentiary hearing
    transcript omitted).
    Based on our review, we have determined that the PCRA court’s findings
    of fact, viewed in the light most favorable to the Commonwealth as the
    prevailing party, as well as the court’s credibility determinations, are
    supported by the record. Further, we find that its conclusions of law are free
    from legal error. Therefore, we shall not disturb the court’s order dismissing
    Appellant’s petition.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/17/2020
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Document Info

Docket Number: 59 WDA 2020

Filed Date: 12/17/2020

Precedential Status: Precedential

Modified Date: 12/17/2020