J-S59037-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JULIAN FRISBY, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3522 EDA 2017

Appeal from the PCRA Order September 28, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0008244-2011

BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 31, 2018

Julian Frisby appeals from the order entered September 28, 2017, in the 

Philadelphia County Court of Common Pleas, dismissing his first petition for 

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 

Frisby seeks relief from a term of life imprisonment without parole for firstdegree murder, and concurrent sentences of ten to 20 years for criminal 

conspiracy and one to two years for firearms not to be carried without a 

license.

2

 On appeal, Frisby contends trial counsel was ineffective for failing to 

call a character witness. For the reasons below, we affirm.

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1

 See 42 Pa.C.S. §§ 9541-9546.

2

 See 18 Pa.C.S. §§ 2502(a), 903(c), and 6106(a)(1). Frisby was also 

convicted of possession of an instrument of crime, 18 Pa.C.S. § 907(a), but 

the court did not impose a further penalty regarding the crime.
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The facts underlying Frisby’s convictions are well-known to the parties 

and we need not reiterate them in detail herein. See Commonwealth v.

Frisby, 120 A.3d 388 [1148 EDA 2014] (Pa. Super. 2015) (unpublished 

memorandum), appeal denied, 119 A.3d 350 (Pa. 2015). To summarize the 

procedural history, on May 5, 2011, Frisby was arrested and charged with the 

shooting death of Jarell Seay. On July 29, 2013, Frisby elected to be tried by 

a jury, but his first trial ended in a mistrial after the jury failed to reach a 

unanimous decision. On March 20, 2014, after a retrial, the jury convicted 

Frisby of the above-mentioned crimes. On March 21, 2014, the court imposed 

an aggregate sentence of life imprisonment without the possibility of parole.

Frisby filed a direct appeal, challenging the sufficiency of evidence with

respect to his convictions. On February 23, 2015, a panel of this Court 

affirmed the judgment of sentence, and on August 4, 2015, the Pennsylvania 

Supreme Court denied his petition for allowance of appeal. See id. 

Thereafter, on March 4, 2016, Frisby filed a pro se PCRA petition. Counsel 

was appointed who filed an amended petition on April 12, 2017. On July 6, 

2017, the PCRA court issued a notice of intention to dismiss Frisby’s petition 

without a hearing pursuant to Rule 907. Frisby filed pro se a response on July 
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13, 2017.3 On September 28, 2017, the PCRA court dismissed the petition. 

This appeal followed.4, 5

In his sole issue on appeal, Frisby claims trial counsel was ineffective for 

failing to call his grandfather, Henry Frisby, as a character witness to testify 

to Frisby’s reputation for being a nonviolent individual. See Frisby’s Brief at 

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3

 The PCRA court noted that in his response, Frisby did not raise any new 

issues, 

but instead aver[red] that he had not communicated with his 

attorney since December 12, 2016 and was unaware of the issues 

PCRA counsel had raised on his behalf. On July 19, 2017, [the 

PCRA c]ourt forwarded [Frisby]’s letter to PCRA counsel 

requesting assurance that counsel was in contact with his client. 

On August 10, 2017, after counsel indicated that he had not 

communicated with his client, [the PCRA c]ourt continued the 

matter so counsel could contact [Frisby].

PCRA Court Order and Opinion, 9/28/2017, at 2 n.2. On August 23, 2017, 

PCRA counsel filed a letter-in-brief indicating Frisby wished to raise an 

additional issue concerning whether a juryperson was forced to remain on the 

panel despite alleging she could not hear the case for religious or moral 

reasons. Id. at 2, n.3. The PCRA court continued the matter so that notes of 

testimony from the voir dire could be completed and reviewed. On September 

27, 2017, PCRA counsel submitted a second letter-in-brief, indicating: (1) he 

had reviewed the testimony wherein the potential juror in question was 

excused for cause by agreement, and (2) he no longer wished to raise that 

issue. Id.

4

 The PCRA court did not order Frisby to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

5

 On April 6, 2018, by per curiam order, this Court found counsel failed to file 

an appellate brief and remanded the matter to determine whether counsel had 

abandoned Frisby and to take further action as required to protect his right to 

appeal. See Order, 4/6/2018. The PCRA court removed prior counsel from 

the matter and appointed new PCRA counsel on May 1, 2018.
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9. Frisby states that while his mother, Alexis Frisby, testified as to Frisby’s 

good character for being law-abiding, she “did not testify as to [her son]’s 

character for being peaceful and nonviolent.” Id. at 12-13. Therefore, Frisby 

contends his grandfather’s testimony would have been of most importance

because:

First, [Henry] Frisby’s testimony would not have been 

cumulative because [Alexis] Frisby did not discuss [Frisby]’s 

reputation for being peaceful.

Second, [Alexis] Frisby’s testimony was rebutted by police 

and she is [Frisby]’s mother. The presentation of [Henry] Frisby 

could have rebutted Officer [Dionne] Madison’s testimony and 

[Henry] Frisby’s testimony would have provided at least some 

objectivity since he was not [Frisby]’s mother.

Id. at 13. Additionally, Frisby states:

Trial counsel had no reasonable basis for not presenting [Henry] 

Frisby, an available witness, to testify as to [his] character for 

being peaceful/nonviolent. [Henry] Frisby was available and 

willing to testify. [Frisby] suffered prejudice because another 

individual, Alan Berks, had similar tattoos to [Frisby], his DNA was 

recovered from the crime scene, and the trial court noted issues 

associated with the prosecution in relation to [Frisby] and Berks.

Id. (record citations omitted).

We begin with our well-settled standard of review: 

Our standard of review of a PCRA court’s dismissal of a PCRA 

petition is limited to examining whether the PCRA court’s 

determination is supported by the evidence of record and free of 

legal error. Great deference is granted to the findings of the PCRA 

court, and these findings will not be disturbed unless they have 

no support in the certified record.

In order to prevail on a claim of ineffective assistance of counsel, 

an appellant must show three things: that the underlying claim 

has arguable merit, that counsel’s performance was not 
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reasonably designed to effectuate the defendant’s interests, and 

that counsel’s unreasonable performance prejudiced the 

defendant. A defendant is required to show actual prejudice; that 

is, that counsel’s ineffectiveness was of such magnitude that it 

could have reasonably had an adverse effect on the outcome of 

the proceedings.

Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super. 2006) 

(quotations and citations omitted), appeal denied, 907 A.2d 1102 (Pa. 2006). 

As a general rule, evidence of a person’s character may not be 

admitted to show that individual acted in conformity with that

character on a particular occasion. Pa.R.E. 404(a). However, 

Pennsylvania Rule of Evidence 404(a)(1) provides an exception 

which allows a criminal defendant to offer evidence of his or her

character traits which are pertinent to the crimes charged and 

allows the Commonwealth to rebut the same. Pa.R.E. 404(a)(1). 

This Court has further explained the limited purpose for which this 

evidence can be offered:

It has long been the law in Pennsylvania that an individual 

on trial for an offense against the criminal law is permitted 

to introduce evidence of his good reputation in any respect 

which has “proper relation to the subject matter” of the 

charge at issue. Such evidence has been allowed on a 

theory that general reputation reflects the character of the 

individual and a defendant in a criminal case is permitted to 

prove his good character in order to negate his participation 

in the offense charged. The rationale for the admission of

character testimony is that an accused may not be able to 

produce any other evidence to exculpate himself from the 

charge he faces except his own oath and evidence of good

character.

It is clearly established that evidence of good character is to 

be regarded as evidence of substantive fact just as any 

other evidence tending to establish innocence and may be 

considered by the jury in connection with all of the evidence 

presented in the case on the general issue of guilt or 

innocence. Evidence of good character is substantive and 

positive evidence, not a mere make weight to be considered 

in a doubtful case, and, ... is an independent factor which 

may of itself engender reasonable doubt or produce a 
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conclusion of innocence. 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. 

The cross-examination of such witnesses by the

Commonwealth must be limited to the same traits. 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.

Commonwealth v. Johnson, 27 A.3d 244, 247-248 (Pa. Super. 2011), citing

Commonwealth v. Luther, 463 A.2d 1073, 1077-1078 (Pa. Super. 1983)

(citations omitted). See also Commonwealth v. Goodmond, 190 A.3d 

1197, 1201-1202 (Pa. Super. 2018). Moreover,

when raising a claim of ineffectiveness for the failure to call

a potential witness, a petitioner satisfies the performance

and prejudice requirements of the [Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984),] test by establishing that: (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....

Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096, 1108-09

(Pa. 2012). “To demonstrate Strickland prejudice, a petitioner

must show how the uncalled witnesses’ testimony would have

been beneficial under the circumstances of the case.” Sneed, 45

A.3d at 1109. Counsel will not be found ineffective for failing to

call a witness “unless the petitioner can show that the witness’s

testimony would have been helpful to the defense. A failure to

call a witness is not per se ineffective assistance of counsel for

such decision usually involves matters of trial strategy. Id.

(internal quotation marks and citations omitted).
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Commonwealth v. Matias, 63 A.3d 807, 810-811 (Pa. Super. 2013), appeal

denied, 74 A.3d 1030 (Pa. 2013).

Here, the PCRA court found the following:

At trial, [Frisby] called his mother, Alexis Frisby, to testify 

about his reputation for good character in the community, 

specifically his reputation as a quiet man, a law-abiding citizen, 

and that he was not a member of a gang. N.T., 3/17/2014 at 132. 

In the instant petition, [Frisby] claims that trial counsel was 

ineffective for failing to call his grandfather, Henry Frisby, as an 

additional character witness, who would testify that [Frisby] was 

law-abiding, peaceful, and not affiliated with a gang. [Frisby] 

characterizes Henry Frisby as ready, willing and able to testify at 

trial, where he would have countered the Commonwealth’s theory 

of motive that the shooting was gang-related.

The procedure of the instant matter closely resembles that 

of Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997). In Hall, 

the appellant presented character testimony from his mother and 

the mother of his child, each of whom testified to his good 

character. On collateral review, the appellant argued that counsel 

was ineffective for failing to call five witnesses, four of whom were 

unrelated, to testify to the appellant’s good reputation in the 

community. Id. at 204-206. In rejecting this claim, the Supreme 

Court determined that each witness would present cumulative 

testimony, precluding any finding of ineffectiveness. Id. at 205-

206.

Here, trial counsel cannot be held ineffective for failing to 

call Henry Frisby as a character witness because his testimony 

would merely be cumulative of Alexis Frisby’s testimony. 

Assuming that each of [Frisby]’s averments are true, Henry Frisby 

would testify that [Frisby] had a reputation as a peaceful, lawabiding, and non-gang-affiliated individual. Alexis Frisby was 

equally as capable of presenting that testimony, and in fact did 

so. Unlike the proposed witnesses in Hall, Henry Frisby is related 

to [Frisby], and could be considered equally as credible as Alexis 

Frisby given their familial status. Although the proposed 

witnesses in Hall may be considered more credible as unbiased, 

unrelated character witnesses, the Supreme Court nonetheless 

found their proposed testimony cumulative.
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Henry Frisby’s proposed testimony is duplicative of Alexis 

Frisby’s testimony and creates no additional fact basis to sway a 

jury to change the instant verdict. Moreover, his proposed 

testimony was also directly contra[dicted] at trial. In rebuttal to 

Alexis Frisby’s testimony, the Commonwealth presented Officer 

Dionne Madison, who testified that [Frisby] did not have a 

reputation as a peaceful and law-abiding citizen, but was silent 

with respect to his gang membership. [N.T., 3/17/2014 at 135]. 

The jury considered Alexis Frisby’s testimony concerning 

[Frisby]’s reputation and rejected it. Having an additional family 

member reiterate identical testimony at trial would not change the 

outcome of the case, especially after a Commonwealth witness 

directly contradicted the proposed testimony. [Frisby] fails to

demonstrate prejudice. 

PCRA Court Order and Opinion, 9/28/2017, at 6-8.

We agree with the PCRA court that Frisby failed to demonstrate 

prejudice. See Matias, supra. Frisby’s counsel presented his mother as a

character witness for being law-abiding and not a member of a gang, whose

testimony was rebutted by the Commonwealth.

6

 Contrary to Frisby’s

argument, one can reasonably infer the character trait of being law-abiding

also includes being peaceful and non-violent.7 As such, calling Frisby’s

grandfather, Henry Frisby, would have been cumulative, merely repeating the

testimony of Frisby’s mother. Moreover, it is reasonably unlikely that having

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6

 See N.T., 3/17/2014, at 131-135.

7

 See Commonwealth v. Rashid, 160 A.3d 838, 849 (Pa. Super. 2017) 

(concluding convictions for drug dealing and possession of an illegal firearm 

were relevant to determining whether defendant has a reputation for being 

peaceful and nonviolent), appeal denied, 170 A.3d 976 (Pa. 2017).
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the grandfather take the stand at Frisby’s trial would have “been beneficial

under the circumstances of the case.” Sneed, 45 A.3d at 1109.

8

 Accordingly,

trial counsel cannot be deemed ineffective for failing to call Henry Frisby as a

character witness. Therefore, we conclude the trial court did not err in denying

Frisby relief under the PCRA.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/31/18

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8

 Additionally, it merits emphasis that four eyewitnesses, including the 

victim’s father, grandfather, a friend, and neighbor, testified Frisby was at the 

victim’s house at the time of the murder.