J-E03006-14

2015 PA Super 47

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALFREDO REYES-RODRIGUEZ

Appellant No. 2121 EDA 2013

Appeal from the PCRA Order of June 28, 2013

In the Court of Common Pleas of Northampton County

Criminal Division at Nos: CP-48-CR-0001684-2006, 

CP-48-CR-0003501-2006, CP-48-CR-0001683-2006

BEFORE: BENDER, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, ALLEN, 

LAZARUS, WECHT, and STABILE, JJ.

OPINION BY STABILE, J.: FILED MARCH 11, 2015

Appellant, Alfredo Reyes-Rodriguez, is serving a prison sentence for 

his convictions of sex abuse crimes against three minor girls. The Court of 

Common Pleas of Northampton County denied Appellant’s PCRA1 petition. 

We granted reargument to determine, among other things, whether 

Appellant’s trial counsel rendered ineffective assistance in failing to request 

an adequate jury instruction on character evidence. We now affirm the 

denial of PCRA relief, as Appellant failed to meet his burden of establishing 

that trial counsel had no reasonable basis for failing to request the jury 

instruction. 

____________________________________________

1

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
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Appellant was charged with sexually abusing three minor half-sisters, 

M.A. (born in 1990), S.C. (born in 1991), and Y.R. (born in 1995). Appellant 

was the paramour of the girls’ mother while the abuse occurred, and the 

victims called him their “stepfather.” According to M.A., Appellant began 

abusing her when she was eight years old, shortly after she first met him, 

and while her family was living in Philadelphia. When M.A. was ten, the 

family moved to New York City, and Appellant continued to abuse her, two 

to three times per week. Appellant further continued to abuse M.A., then 

twelve, when the family moved to Bethlehem, Pennsylvania. M.A. testified 

that the abuse stopped in March 2006.

S.C. met Appellant when she was eight or nine years old. She testified 

that he began abusing her when she was ten years old and living in 

Philadelphia. Appellant continued to abuse her after the family moved to 

Bethlehem.

Y.R., who was nine years old when she went into foster care, testified 

that Appellant abused her while they lived in Bethlehem. On March 17, 

2006, S.C.’s boyfriend anonymously reported S.C.’s abuse to Child 

Protective Services. His report led to the removal of the sisters from their 

home and placement in foster care, and Appellant’s arrest. 

Appellant pled guilty to various charges, but later withdrew his plea. 

At trial, the Commonwealth established that Appellant groomed his victims, 

and began to abuse them before their thirteenth birthdays. Although the 

abuse followed a common scheme, the nature of the assaults varied as to 
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each individual victim. Testifying in his own defense, Appellant denied 

abusing the victims. Also, three of Appellant’s neighbors testified he had a 

reputation of being a “good father.” The jury found Appellant guilty of the 

following charges:

- For M.A.: attempted rape, aggravated indecent assault, indecent

assault, endangering the welfare of children (EWOC), and 

corruption of minors;2

- For S.C.: indecent assault, EWOC, and corruption of minors; 

and

- For Y.M.: attempted aggravated indecent assault, indecent 

assault, EWOC, and corruption of minors. 

On May 14, 2007, Appellant was sentenced to an aggregate of 141⁄2 to 

29 years in prison. Appellant appealed to this Court. We affirmed the 

judgment of sentence on July 25, 2011.3 Commonwealth v. ReyesRodriguez, 32 A.3d 280 (Pa. Super. 2011) (unpublished memorandum).

Appellant timely filed a pro se PCRA petition. The PCRA court 

appointed counsel, and held a hearing on the petition. At the hearing, 

Appellant questioned his trial counsel on his trial strategy—but only 

regarding his use of the three character witnesses. Appellant did not call 

any witness to corroborate his claims that (1) the three character witnesses 

would have testified further that he was nonviolent, peaceable, and chaste; 

or (2) various uncalled witnesses would have testified that Appellant had the 

____________________________________________

2 18 Pa.C.S.A. §§ 901(a), 3125(a)(8), 3126(a)(7) 4304, and 6301(a)(1).

3 Reyes-Rodriguez’s appellate lawyers twice abandoned him, requiring 

reinstatement of his direct appeal rights. 
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same character traits. In particular, PCRA counsel did not ask any questions 

of trial counsel regarding the trial court’s instructions to the jury on 

character evidence. On June 28, 2013, the PCRA court denied postconviction relief, and Appellant appealed. A divided panel of this Court 

initially reversed, determining that Appellant was entitled to a new trial. We 

granted reargument en banc, and now instead affirm the PCRA court’s denial 

of relief.

On reargument, Appellant raises the following issues, which we have 

reordered for ease of discussion:

1. Whether trial counsel was ineffective in failing to raise 

contemporaneous objections to the testimony of [M.A.]?

2. Whether trial counsel was ineffective in failing to present 

evidence of the character of [Appellant] concerning his 

general reputation in the community with regard to traits as 

to non-violence, peaceableness, quietness, good moral 

character, chastity, and disposition to observe good order?

3. Whether trial counsel was ineffective in failing to object or 

request a character evidence instruction that included the 

charge that “character evidence alone may raise a 

reasonable doubt and thus justify an acquittal of the 

charges?”

4. Whether trial counsel was ineffective in failing to challenge 

the consecutive nature of sentencing at the sentencing 

hearing and/or in post-sentence motions?

Appellant’s Brief at 3-4 (capitalization and citation of case law and notes of 

testimony omitted).4

____________________________________________

4 Appellant raises four additional issues, but states they are meritless. See

Appellant’s Brief at 22-25. Accordingly, we will not address those issues.
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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.

All of Appellant’s issues assert ineffective assistance of trial counsel 

(IAC). “It is well-established that counsel is presumed effective, and [a 

PCRA petitioner] bears the burden of proving ineffectiveness.” 

Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009); see also 

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (“We . . . 

presume that counsel is acting effectively.”); accord Strickland v. 

Washington, 466 U.S. 668, 687 (1984) (establishing the elements a 

defendant must prove to show IAC). As the Supreme Court of the United 

States has stated, “counsel should be ‘strongly presumed to have rendered 

adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment,’ and . . . the burden to ‘show that 

counsel’s performance was deficient’ rests squarely on the defendant.” Burt 
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v. Titlow, 134 S. Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 687, 

690).

To prevail on an IAC claim, a PCRA petitioner must plead and prove by 

a preponderance of the evidence that (1) the underlying legal claim has 

arguable merit; (2) counsel had no reasonable basis for acting or failing to 

act; and (3) the petitioner suffered resulting prejudice. Commonwealth v. 

Baumhammers, 92 A.3d 708, 719 (Pa. 2014) (citing Pierce, 527 A.2d at 

975-76). A petitioner must prove all three factors of the “Pierce test,” or 

the claim fails. Id. In addition, on appeal, a petitioner must adequately 

discuss all three factors of the “Pierce test,” or the appellate court will reject 

the claim. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

Appellant’s first issue concerns trial counsel’s failure to object to the 

victims’ testimony regarding alleged abuse that occurred outside of 

Northampton County, i.e., extraterritorial abuse. Except for his recitation of 

the procedural history and the standard of review, Appellant’s argument on 

this issue is as follows:

Your [Appellant] argues that allowing the victims to testify 

regarding the alleged sexual assaults in question was a 

misapplication of the law and was manifestly unreasonable. The 

evidence presented was not probative and [sic] the issue at 

question in the instant matter. The evidence permitted was 

highly prejudicial to [Appellant] and outweighed its prejudicial 

value [sic].

Appellant’s Brief at 16.

Two deficiencies in Appellant’s argument preclude relief. First, 

Appellant incorrectly frames the issue as trial court error in admitting the 
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testimony. The PCRA, however, procedurally bars claims of trial court error, 

by requiring a petitioner to show the allegation of error is not previously 

litigated or waived. 42 Pa.C.S.A. §§ 9543(a)(3), 9544. At the PCRA stage, 

claims of trial court error are either previously litigated (if raised on direct 

appeal) or waived (if not). See Commonwealth v. Spotz, 18 A.3d 244, 

260-61, 270 (Pa. 2011) (rejecting claims of trial court error as either 

previously litigated where raised on direct appeal or waived where not raised 

direct appeal). Trial court error may constitute the arguable merit prong of 

an IAC claim, but the issue must be framed properly for a petitioner to be 

entitled to relief. See Commonwealth v. Paddy, 15 A.3d 431, 449 n.11 

(Pa. 2011) (admonishing against conflating claims of IAC with claims of trial 

court error). As stated before, “[w]hen an appellant fails to meaningfully 

discuss each of the three [IAC] prongs, he is not entitled to relief . . . .” 

Fears, 86 A.3d at 804 (internal quotation omitted). Here, Appellant has not 

discussed at all the reasonable-basis or prejudice prongs of the Pierce test 

on this IAC claim. 

Second, Appellant inartfully categorizes the extraterritorial abuse 

testimony as not probative and also more prejudicial than probative. 

Compare Pa.R.E. 402, with Pa.R.E. 403. He fails to cite supporting 

authority for either proposition. Appellant also fails to explain how the 

evidence was irrelevant or, if relevant, how it was prejudicial. When an 

appellant cites no authority supporting an argument, this Court is inclined to 

believe there is none. See Pa.R.A.P. 2119(a) and (b) (requiring an appellant 
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to discuss and cite pertinent authorities); Commonwealth v. Antidormi, 

84 A.3d 736, 754 (Pa. Super. 2014) (finding issue waived because the 

appellant “cited no legal authorities nor developed any meaningful 

analysis”). Because Appellant has failed to develop his argument or cite 

authority, he is not entitled to relief on his first claim.

We next turn to Appellant’s IAC claim regarding character evidence. 

Appellant contends trial counsel was ineffective for asking the three 

character witnesses only about his reputation for being a good father. He 

argues trial counsel should have additionally asked the witnesses about 

Appellant’s reputation for nonviolence, peaceableness, quietness, good 

moral character, chastity, and disposition to observe good order. 

Under 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.”5 Pa.R.E. 404(a)(1). 

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

“pertinent” character trait. “Pertinent” means relevant to the crimes 

charged. Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa. Super. 

2010). In rebuttal, the Commonwealth may offer evidence of the 

defendant’s bad character. Pa.R.E. 404(a)(2)(A). Pennsylvania law 

____________________________________________

5 Effective March 18, 2013, the Pennsylvania Rules of Evidence were 

rescinded and replaced. The changes, however, are stylistic—and not 

substantive. See Commonwealth v. Huggins, 68 A.3d 962, 966 n.2 (Pa. 

Super. 2013).
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generally limits proof of character evidence to a person’s reputation, and 

opinion evidence cannot be used to prove character. Pa.R.E. 405(a). 

At trial, counsel called three of Appellant’s neighbors, Nancy Swartz, 

Rebecca Wasler, and Virginia Serbia to testify on his behalf. Swartz testified 

that she lived “right across the way” from Appellant, and that she had known 

him and his family since he moved next door, about five or six years in all. 

N.T. Trial, 4/11/07, at 7. As to Appellant’s reputation, she testified:

Q. Now, in the community, what is the reputation for [Appellant] 

as to fatherhood?

A. To me?

Q. The type of father he is known to be?

A. A very good father. He was strict, but he was a good father.

Id. at 78. 

Wasler, Swartz’s granddaughter who lived with Swartz, testified as 

follows:

Q. Did you talk to your neighbors about [Appellant’s] family?

A. Just our neighbor, Virginia [Serbia].

Q. Well did you get to know the reputation in their community 

and in your little apartment complex?

A. Yes.

* * *

Q. Do you have a perception as to what [Appellant’s] reputation

was as to being a good father?

A. I don’t really understand what you’re saying.

Q. I’ll rephrase it. Did he have a good reputation as a father?
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A. Yes.

Id. at 100-01.

Serbia, another neighbor, testified as follows:

Q. Have you spoken to any of your neighbors about [Appellant] 

and what type of father he was?

A. Yeah, we used to go back and forth. We thought he was a 

good father. He is a good father.

Q. Did he have a reputation among your group?

A. Among the neighborhood, yes.

Q. Other than Nancy and her family, Nancy Swartz and her 

family, were there any other people in the neighborhood that 

shared that?

A. Well, our apartments are right next to each other, that’s nine 

apartments, and everybody knew [Appellant].

Id. at 112.

Responding to Appellant’s IAC claim, the PCRA court concluded trial 

counsel was not ineffective. PCRA Court Opinion, 6/28/13, at 6-7. The 

PCRA court noted trial counsel testified he discussed character witnesses 

with Appellant before trial, and Appellant was able to place good-character 

evidence in the record. Id. The PCRA court concluded further that any 

additional character evidence would have been cumulative. Id.

We find no error in the PCRA court’s ruling. Also, Appellant did not 

present any witnesses at the PCRA hearing other than himself and trial 

counsel. Thus, no witness testified to the other aspects of Appellant’s 

character that he claims trial counsel should have elicited at trial. Among 

other things, a PCRA petitioner must show the proposed testimony would 
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have been beneficial, i.e., the absence of other good-character evidence 

“was so prejudicial as to have denied the [petitioner] a fair trial.” See 

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (quotation 

omitted). Without evidence of what Appellant’s three witnesses would have 

said if asked about his reputation for peaceableness, quietness, good moral 

character, chastity, and the disposition to observe good order, he cannot 

prove prejudice. 

We now turn to Appellant’s third IAC claim regarding counsel’s failure 

to request an appropriate jury instruction on character evidence. 

Specifically, Appellant argues the instruction given failed to apprise the jury 

that character evidence alone may be sufficient to raise a reasonable doubt 

and justify an acquittal. Appellant’s Brief at 13. Commonwealth v. Neely, 

561 A.2d 1, 3 (Pa. 1989), requires such a charge if a defendant introduces 

evidence of his or her good character. In this case, three witnesses testified 

to Appellant’s reputation as a good father.6

____________________________________________

6 The Commonwealth argues Appellant’s reputation as a “good father” was 

not pertinent under Rule 404(a). We reject this argument. Appellant was 

charged with EWOC, which requires proof of endangering a child to whom a 

person owes a duty of care, protection, or support. Clearly, a person’s 

reputation as a good father may be pertinent to rebut a charge that the 

person abused children under his care. Furthermore, nothing in our case 

law constrains character evidence in sex crimes cases to the trait of 

“chastity.” Rather, Rule 404(a) requires only that the character trait be 

“pertinent,” i.e., relevant. A person’s reputation as a good father or 

caretaker may be pertinent to rebut a charge that a person sexually abused 

children under his care.
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The trial court gave the following charge to the jury on character 

evidence:

Now, during this trial, you have also heard the defense offer 

evidence asserting that the defendant’s reputation is held by 

some residents in the apartment building that he is a good 

father. The law recognizes that a person of good character is 

not likely to commit a crime that is contrary to that person’s 

nature. You must weigh and consider the evidence presented by 

the defense with regard to the defendant[’]s reputation as a 

good father along with other evidence in this case.

N.T. Trial, 4/12/07, at 55. Noticeably absent is that part of the suggested 

standard jury instruction that states, “[e]vidence of a good character may by 

itself raise a reasonable doubt of guilt and require a verdict of not guilty.” 

Pa. Sugg. Stand. Jury Instr. (Crim.) § 3.06. Also absent is a request by trial 

counsel for a charge under Neely.

For matters of trial strategy, a PCRA petition must provide an 

evidentiary basis on which to find trial counsel’s actions unreasonable. 

Commonwealth v. Weiss, 81 A.3d 767, 782, 801-02 (Pa. 2013). To 

prevail on his IAC claim, Appellant therefore bore the burden of showing that 

trial counsel had no reasonable basis for his inaction. As noted above 

Appellant did not question trial counsel regarding his failure to request a 

charge under Neely. In fact, there is no evidence of record as to trial 

counsel’s strategy in this regard. Appellant’s failure to support his IAC claim 

with any evidence requires rejection of the claim. 

In Weiss, for example, the petitioner claimed IAC because his trial 

counsel did not ask for a cautionary instruction regarding prior bad acts 
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evidence. Our Supreme Court rejected his claim because, though given a 

hearing, the petitioner failed to question trial counsel regarding his decision 

not to do so:

Because Appellant was given an evidentiary hearing and yet did 

not elicit from trial counsel his reasons for failing to request the 

cautionary charge, and because the decision whether to seek a 

jury instruction implicates a matter of trial strategy, 

[Commonwealth v. Lesko, 15 A.3d 345, 401 (Pa. 2011)], the 

record before us provides no grounds for deeming counsel 

ineffective for failing to request an instruction. See

[Commonwealth v. Koehler, 36 A.3d 121, 147 (Pa. 2012)] 

(rejecting an ineffectiveness claim premised on counsel’s failure 

to request cautionary instructions because the petitioner did not 

ask trial counsel about his strategy at the PCRA hearing); 

Commonwealth v. Puksar, [951 A.2d 267, 278 (Pa. 2008)] 

(rejecting an ineffectiveness claim because, inter alia, PCRA 

counsel failed to question trial counsel during the PCRA hearing 

regarding his trial strategy for not calling a particular witness); 

Commonwealth v. Ervin, 766 A.2d 859 (Pa. Super. 2000) 

(rejecting claim challenging trial counsel’s failure to object to the 

prosecutor’s questioning and argument on the reasonable basis 

prong of the ineffectiveness test because the PCRA petitioner 

was afforded an evidentiary hearing, but failed to question trial 

counsel regarding his trial strategy as it related to the claim of 

ineffectiveness).

Id. (emphasis added).

Moreover, “a lawyer should not be held ineffective without first having 

an opportunity to address the accusation in some fashion.”7 

____________________________________________

7

In some cases, the lack of a reasonable basis may be apparent from the 

face of the record, for example where counsel affirmatively misinforms his 

client on the law. See Commonwealth v. Barndt, 74 A.3d 185, 199 & 

n.16 (Pa. Super. 2013) (holding PCRA petitioner proved IAC where trial 

counsel affirmatively misinformed him about collateral consequence, even 

(Footnote Continued Next Page)
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Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010). In fact, our 

Supreme Court has cautioned against finding no reasonable basis for trial 

counsel’s actions in the absence of supporting evidence. “The fact that an 

appellate court, reviewing a cold trial record, cannot prognosticate a 

reasonable basis for a particular failure to raise a plausible objection does 

not necessarily prove that an objectively reasonable basis was lacking.” Id.

at 896 (quoting Commonwealth v. Spotz, 870 A.2d 822, 832 (Pa. 2005)).

Here, there was no evidence to support a conclusion that trial counsel 

had no reasonable basis for his action. It may seem that trial counsel, 

having introduced character evidence, had no reasonable basis for not 

requesting a jury instruction under Neely. However, this Court does not sit 

as a fact-finder. With no supporting evidence in the record, we cannot 

resolve a factual dispute in favor of Appellant who bears the burden of proof 

on this issue.

In addition to presenting no evidence on whether or not trial counsel 

had a reasonable basis not to request a Neely instruction, Appellant again 

presents no argument on the prongs of the Pierce test regarding the lack of 

a reasonable basis and prejudice.8 Our appellate courts have repeatedly 

(Footnote Continued) _______________________

though trial counsel did not testify at PCRA hearing). These circumstances 

are not present in this case, because the issue here is one of trial strategy.

8 Appellant cites Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981), and 

Commonwealth v. Morgan, 739 A.2d 1033 (Pa. 1999), but those cases 

are irrelevant. Scott and Morgan held a defendant’s character witnesses 

(Footnote Continued Next Page)
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rejected IAC claims where the appellant fails to properly address all three 

prongs of the Pierce test. See, e.g., Fears, 86 A.3d at 804 (“When an 

appellant fails to meaningfully discuss each of the three [IAC] prongs, he is 

not entitled to relief . . . .”) (internal quotation omitted); Commonwealth 

v. Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014) (finding IAC claim 

regarding jury instructions waived where appellant baldly asserted prejudice 

and failed to develop argument regarding reasonable basis).

Accordingly, Appellant’s third claim must be rejected, as he has neither 

put forth evidence to support his claim that trial counsel had no reasonable 

basis for his actions, nor argument regarding the lack of a reasonable basis 

or prejudice. Therefore, we are constrained to reject his IAC claim regarding 

the lack of a good character evidence jury instruction under Neely.

In his final claim, Appellant raises IAC for trial counsel’s alleged failure 

to preserve a challenge to the discretionary aspects of his sentence, 

specifically, the consecutive nature of the sentences imposed.

Appellant is not entitled to relief, as his IAC claim regarding the 

discretionary aspects of sentencing lacks arguable merit. On direct appeal, 

we stated in passing that Appellant failed to raise a substantial question that 

the sentence imposed was inconsistent with the Sentencing Code or contrary 

(Footnote Continued) _______________________

cannot be cross-examined about the defendant’s prior arrests that did not 

result in convictions, holdings now embodied in Pa.R.E. 405(a)(2). Neither 

case was a PCRA case, and neither case concerned the propriety of, or 

consequences of failing to request, a Neely charge.
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to the fundamental norms underlying the sentencing process. ReyesRodriguez, 32 A.3d 280, No. 1787 EDA 2011, unpublished memorandum, 

at 14-15 (filed July 25, 2011). Appellant repeats his claim that trial counsel 

should have requested his sentences be made concurrent. “[A] sentencing 

court generally has discretion to impose multiple sentences concurrently or 

consecutively, and a challenge to the exercise of that discretion does not 

ordinarily raise a substantial question.” Commonwealth v. Raven, 97 A.3d 

1244, 1253 (Pa. Super. 2014). A defendant who fails to raise a substantial 

question is not entitled to appellate review of the discretionary aspects of 

sentence, even if raised in a post-sentence motion. See id. at 1252. 

We note three additional bases that preclude relief on Appellant’s final 

claim. First, Appellant never questioned trial counsel regarding sentencing, 

so he cannot show that trial counsel had no reasonable basis for failing to 

preserve a challenge to the sentence. Second, the PCRA court, i.e., the 

same judge who sentenced Appellant, stated it imposed consecutive 

sentences because “there were three independent victims who were abused 

at different times and at different places.” PCRA Court Rule 1925(a) 

Opinion, 7/28/13, at 10. Thus, any challenge to the consecutive nature of 

Appellant’s sentences would have been rejected and therefore, Appellant 

cannot establish prejudice. Third, Appellant again fails to discuss the 

reasonable basis and prejudice prongs of the Pierce test.

In sum, the PCRA court did not err in denying post-conviction relief. 

All of Appellant’s IAC claims fail at least one of the prongs of the Pierce test 
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due to the Appellant’s failure to present evidence and/or argument to 

support his claims. Accordingly, we affirm the order denying PCRA relief.

Order affirmed.

Judge Bowes, Judge Panella, Judge Donohue, Judge Shogan, Judge 

Allen, Judge Lazarus, and Judge Wecht join the opinion.

President Judge Emeritus Bender concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/11/2015