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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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unpublished memorandum at 2 (Pa.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 

____________________________________________

3 Chalcy and Christian are Appellant’s siblings. Shamica is his sister-in-law. 

N.T., Evidentiary Hearing, 11/29/17, at 17-24. 

4 The 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, nonviolent 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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