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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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