Com. v. Kemberling, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY LEE KEMBERLING :
:
Appellant : No. 1898 MDA 2019
Appeal from the PCRA Order Entered October 16, 2019
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000263-2015
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED: APRIL 13, 2020
Appellant, Anthony Lee Kemberling, appeals from the Order entered
October 16, 2019, denying his Petition for collateral relief filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In February 2016, a jury convicted Appellant of Rape of a child less than
thirteen years of age, as well as several related crimes.1 Thereafter, the trial
court imposed a sentence of thirty to sixty years of incarceration. Appellant
timely appealed from the Judgment of Sentence; this Court affirmed, and the
Pennsylvania Supreme Court denied further review. See Commonwealth v.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. § 3121(c). The jury also convicted Appellant of Involuntary
Deviate Sexual Intercourse, Aggravated Indecent Assault, Indecent Assault,
Endangering Welfare of Children, and Corruption of Minors. See 18 Pa.C.S.
§§ 3123(b), 3125(a)(7), 3126(a)(7), 4304(a)(1), and 6301(a)(1)(i),
respectively.
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Kemberling, 2087 MDA 2016, unpublished memorandum, (Pa. Super. filed
Oct. 26, 2017), appeal denied, 184 A.3d 940 (Pa. 2018).
In March 2019, Appellant timely and pro se filed a Petition seeking
collateral relief. The PCRA court appointed counsel, who thereafter filed an
Amended Petition and a Supplemental Amended Petition. Appellant claimed
that trial counsel was ineffective because he had failed to request and
interview any character witnesses to testify on Appellant’s behalf.
Supplemental Amended Petition, 5/9/19.
In July 2019, the PCRA court held an evidentiary hearing. Appellant
testified that trial counsel never discussed the possibility of securing character
witness testimony for his trial but that numerous people would have been
willing to testify on his behalf, if only counsel had sought their testimony. N.T.
PCRA, 7/29/19, at 6-8.
In support of this assertion, Appellant presented testimony from three
family members, who confirmed their willingness to testify on Appellant’s
behalf. Id. at 13, 17, 21. Appellant’s younger brother, Alan Kemberling,
testified that Appellant was “stable”, had lived in Lebanon most of his adult
life, and worked long hours. Id. at 13-15. Alan Kemberling testified further
that he had never observed Appellant behave inappropriately around children.
Id. at 14-15.
Appellant’s older brother, Edward Kemberling, testified that he did not
see Appellant often and rarely spoke to Appellant on the phone. Id. at 16-
17. When asked regarding Appellant’s reputation in the community, Edward
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Kemberling responded that Appellant was a chef and was “cool.” Id. at 18.
He also testified that he had never observed Appellant act inappropriately
around children. Id.
Appellant’s aunt, Barbara Ney, testified that she would see Appellant
only “every couple months” because she did not live in the same town. Id.
at 21. Nevertheless, she suggested that Appellant was a good role model for
young people in the community because Appellant enjoyed karate. Id. at 21-
22. She, too, testified to her personal observations of Appellant’s interactions
with children, asserting that she never saw cause for concern. Id. at 22.
Appellant’s trial counsel, Nicholas Sidelnick, Esq., disputed Appellant’s
account, testifying that he had secured a list of potential witnesses from
Appellant for trial. Id. at 24. According to trial counsel, no non-family
members were willing to testify for Appellant. Id. at 30. Further, counsel
testified that he interviewed Appellant’s older brother just prior to trial but
determined that his testimony would not prove useful. Id. at 25-26.
The PCRA court denied relief. Trial Ct. Order, 10/16/19. In an Opinion
explaining its decision, the court reasoned that Appellant’s relatives did not
present admissible character evidence. Trial Ct. Op., 10/16/19, at 7-8. Thus,
the PCRA court concluded, their absence from trial did not prejudice Appellant.
Id. at 8.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
Statement. Upon review, the PCRA court determined that its prior Opinion
addressed Appellant’s asserted claim of error. Trial Ct. Order, 12/9/19.
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Appellant raises the following issue on appeal:
Whether . . . Appellant was denied his constitutionally guaranteed
right to effective representation when [t]rial [c]ounsel failed to
request and interview any character witnesses to testify on
Appellant’s behalf regarding his character and positive reputation
in the community[.]
Appellant’s Br. at 4.
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014)).
Appellant contends that trial counsel was ineffective. We presume
counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).
To overcome this presumption, a petitioner must establish that: (1) the
underlying claim has arguable merit; (2) counsel lacked a reasonable basis for
his act or omission; and (3) petitioner suffered actual prejudice.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to
establish prejudice, a petitioner must demonstrate “that there is a reasonable
probability that, but for counsel's error or omission, the result of the
proceeding would have been different.” Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012). A claim will be denied if the petitioner fails to meet
any one of these prongs. See Jarosz, 152 A.3d at 350 (citing
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009)).
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According to Appellant, trial counsel was ineffective because he failed to
secure testimony from character witnesses willing to testify on Appellant’s
behalf. See Appellant’s Br. at 7. In support of this assertion, Appellant points
to the testimony adduced from three family members who appeared at his
PCRA hearing. See id. at 8. Appellant does not discuss their testimony in
detail, but he suggests that these witnesses could have provided the jury with
a more accurate assessment of his “work ethic, role in the community[,] and
mannerisms around minors.” Id. at 10.
We have reviewed the testimony of Appellant’s relatives. For the
following reasons, we agree with the trial court that this testimony did not
constitute proper character evidence and that its absence from Appellant’s
trial, therefore, did not prejudice him. See Trial Ct. Op., 10/16/19, at 7-8.
Generally, evidence of a person’s character is not admissible to prove
that the individual acted in conformity with that character on a particular
occasion. Pa.R.E. 404(a)(1). However, a criminal defendant may offer
evidence of his character traits that are pertinent to the crimes charged.
Pa.R.E. 404(a)(2).
Evidence of good character offered by a defendant in a criminal
prosecution must be limited to his general reputation for the
particular trait or traits of character involved in the commission of
the crime charged. . . . 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.
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Commonwealth v. Goodmond, 190 A.3d 1197, 1201-02 (Pa. Super. 2018)
(citations and emphasis omitted).
Where the crimes charged involve sexual violence, “evidence of the
character of the defendant would be limited to presentation of testimony
concerning his general reputation in the community with regard to such traits
as non-violence or peaceableness, quietness, good moral character, chastity,
and disposition to observe good order.” Commonwealth v. Lauro, 819 A.2d
100, 109 (Pa. Super. 2003) (citation omitted).
There is no rule precluding relatives of a criminal defendant from
providing character evidence. However, evidence of relatives’ personal
observations or experience with the defendant does not constitute proper
character testimony. Commonwealth v. Van Horn, 797 A.2d 983, 988 (Pa.
Super. 2002); see also Commonwealth v. Medina, 209 A.3d 992, 998 (Pa.
Super. 2019) (“[O]nly reputation evidence may be used to prove character,
not the individual's opinion of the [a]ppellant's character.”); Pa.R.E. 405(a).
Appellant faced charges of sexual violence. However, the character
evidence proffered by Appellant did not address his general reputation in the
community for non-violence or chastity, character traits pertinent to the
crimes charged. Rather, for example, Appellant’s brothers both testified to
his strong work ethic. See N.T. PCRA at 13-15, 16-18. Thus, the PCRA court
was correct to reject this testimony. Goodmond, supra; Lauro, supra.
Appellant’s relatives also testified that they never observed Appellant
behave inappropriately around children. See N.T. PCRA at 14-15, 18, 22.
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However, while such evidence may imply the relevant trait of good moral
character, see Lauro, 819 A.2d at 109, his relatives were unable to testify to
his reputation in the community as required. Goodmond, supra. Indeed,
as noted by the PCRA court, Appellant’s aunt did not even reside in Appellant’s
community. See N.T. PCRA at 21, 23. Their personal observations or opinions
of Appellant do not constitute proper character evidence. Van Horn, supra.
Appellant failed to proffer proper character evidence and, therefore,
could not establish that his counsel’s decision to forgo introducing the
testimony of his relatives in any way prejudiced him at trial. Treiber, supra.
Thus, we discern no error in the PCRA court’s decision to deny Appellant
collateral relief. Jarosz, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/13/2020
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