J-S39031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

SETH THOMAS GRIFFITH, :

:

Appellant : No. 64 EDA 2015

Appeal from the PCRA Order entered on December 8, 2014

in the Court of Common Pleas of Montgomery County,

Criminal Division, No. CP-46-CR-0007121-2009

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 17, 2015

Seth Thomas Griffith (“Griffith”) appeals from the denial of his first 

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 

See 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

On July 27, 2009, Eileen Bai (“Bai”) visited Wal-Mart to drop off a 

prescription. While Bai waited for her prescription to be filled, she browsed 

around the store and inadvertently caught the attention of Griffith. Griffith 

followed Bai around the store for approximately forty minutes until Bai 

picked up her prescription. Subsequently, Griffith followed Bai into the 

parking lot, and both individuals got into their vehicles. Griffith followed Bai 

to her house, parked his vehicle on the street, and watched Bai enter her 

home through the garage door. Thereafter, Griffith entered Bai’s home, 

without permission, through the open garage door. 
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Once he entered her home, Griffith walked into Bai’s bedroom and 

attempted to forcibly have sex with her. Griffith ripped Bai’s panties off her 

body, and proceeded to rub his fingers on her vagina. Griffith tied a black 

belt around Bai’s neck in an attempt to muffle her cries for help. Bai 

continued to struggle, and, after twenty to thirty minutes, Griffith left the 

home and Bai called the police. 

On May 28, 2010, a jury convicted Griffith of numerous crimes, 

including criminal attempt rape and burglary. On December 3, 2010, the 

trial court imposed a sentence of five and one-half to twenty years in prison 

on the criminal attempt rape conviction, and a consecutive prison term of 

three to ten years for the burglary conviction. On November 16, 2011, this 

Court affirmed the judgment of sentence. See Commonwealth v. Griffith, 

38 A.3d 921 (Pa. Super. 2011) (unpublished memorandum). 

Griffith filed a timely pro se PCRA Petition on December 14, 2012. The 

PCRA court appointed Griffith counsel, who filed an amended PCRA Petition. 

Following evidentiary hearings, the PCRA court denied the Petition. Griffith 

filed a timely Notice of Appeal, and a court-ordered Pennsylvania Rule of 

Appellate Procedure 1925(b) Concise Statement. Thereafter, the PCRA court 

issued an Opinion. 

On appeal, Griffith raises the following questions for our review:

1. Whether trial counsel rendered ineffective assistance by 

failing to object to the prosecutor’s cross[-]examination of 

[Griffith’s] character witness, Joshua Pendergast 
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[(“Pendergast”)], as it denied [Griffith] the right to present 

evidence of good character, and constituted prejudicial error?

2. Whether trial counsel rendered ineffective assistance by 

failing to investigate and present good character evidence of 

Cynthia Perrotta [(“Perrotta”)], and additional testimony from 

[Pendergast] and Karen Drabick [(“Drabick”)] regarding 

[Griffith’s] reputation in the community for being a law-abiding, 

non-violent and peaceful person?

Brief for Appellant at 6-7.

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is 

supported by the evidence of record and is 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.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. 2011) (citations and 

quotation marks omitted). 

To succeed on his ineffectiveness claims, Griffith must demonstrate by 

the preponderance of evidence that:

(1) [the] underlying claim is of arguable merit; (2) the particular 

course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate his interests; and (3) but 

for counsel’s ineffectiveness, there is a reasonable probability 

that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy 

any prong of the test for ineffectiveness will require rejection of the claim. 

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is 

presumed to be effective and the burden is on the appellant to prove 

otherwise. Commonwealth v. Hannible, 30 A.3d 426, 439 (Pa. 2011). 
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In his first claim, Griffith argues that his trial counsel, John Kravitz, 

Esquire (“Attorney Kravitz”), was ineffective because he failed to object to 

the cross examination of a character witness, Pendergast, who testified on 

behalf of Griffith. Brief for Appellant at 15-16. Griffith contends that 

Attorney Kravitz should have objected during the cross-examination of 

Pendergast when he was questioned about Griffith’s criminal acts. Id. at 

16-20. Griffith claims that, contrary to the PCRA court’s reasoning, 

Pendergast did not open the door to the improper cross-examination. Id. at 

19-20. Griffith contends that Attorney Kravitz’s inaction denied him the right 

to present evidence of good character, and constituted prejudicial error. Id. 

at 16, 21.

In a criminal case, the defendant may offer character witnesses 

to testify as to that defendant’s reputation in the community 

regarding a relevant character trait. Of course, the 

Commonwealth may attempt to impeach those witnesses. For 

example, when cross-examining character witnesses offered by 

the accused, the Commonwealth may test the witnesses’ 

knowledge about specific instances of conduct of the accused 

where those instances are probative of the traits in question. 

However, the Commonwealth’s right to cross-examine character 

witnesses is not unlimited: the Commonwealth may not crossexamine a character witness about a defendant’s uncharged 

criminal allegations, or a defendant’s arrests that did not lead to 

convictions.

Commonwealth v. Kruder, 62 A.3d 1038, 1057 (Pa. Super. 2013) 

(citations omitted). 

Our review of the record shows that Griffith introduced Pendergast as 

a character witness at trial. N.T., 2/18/14, at 27. Pendergast stated that 
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Griffith had a good reputation, and that he would personally trust Griffith 

with anything. N.T., 5/27/10, at 169. On cross-examination, the prosecutor 

asked Pendergast questions concerning Griffith’s criminal acts at issue. Id. 

at 170 (wherein the prosecution asked Pendergast if he would trust Griffith, 

knowing that he entered Bai’s home without permission and tried to rape 

her). Griffith elicited testimony from Pendergast regarding personal opinions 

of Griffith, which opened the door for the Commonwealth to cross-examine 

on what might change these opinions. See Kruder, 62 A.3d at 1057.

Contrary to Griffith’s claim, the cross-examination questions concerning 

Pendergast’s personal opinion of Griffith, in light of the charges against him, 

were not improper. See Id. (stating that where a witness gives his or her 

personal opinion about the defendant on direct examination, it is not 

improper for the prosecution to ask that witness if his or her opinion of the 

defendant might change given the allegations at issue in that case). Thus, 

the underlying claim is without arguable merit. 

Further, Griffith has failed to demonstrate that the outcome of the 

case would have been different if Attorney Kravitz had objected during the 

Commonwealth’s cross-examination of Pendergast, given Griffith’s 

incriminating statement to police. See N.T., 5/27/10, at 47-48 (wherein 

Griffith admitted that he followed Bai home, entered her home without 

permission, grabbed a belt and intended to have sex with her with or 
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without her permission);1see also Commonwealth v. Sepulveda, 55 

A.3d 1108, 1151 (Pa. 2012) (stating that the outcome of the trial 

proceedings would have been the same given the overwhelming evidence of 

appellant’s guilt revealed through police confessions); Commonwealth v. 

Steele, 961 A.2d 786, 801 (Pa. 2008) (holding that where the evidence 

overwhelmingly demonstrates appellant’s guilt, appellant cannot 

demonstrate prejudice). Thus, the outcome of the trial proceedings would 

not have been different even if Attorney Kravitz had objected to the 

Commonwealth’s cross-examination, and Griffith is not entitled to relief. 

In his second claim, Griffith argues that Attorney Kravitz was 

ineffective because he failed to present good character testimony from 

Perrotta. Brief for Appellant at 22. Griffith asserts that Attorney Kravitz 

spoke with Perrotta prior to trial, and then failed to call her as a witness. 

Id. at 25. Also, Griffith argues that Attorney Kravitz was ineffective because 

he failed to ask witnesses Karen Drabick (“Drabick”) and Pendergast 

questions about Griffith’s good character in the community as a law-abiding, 

peaceful person. Id. at 23. Griffith contends that the jury could have 

believed his theory, that the encounter between Bai and himself was 

consensual, if Attorney Kravitz had asked these questions. Id. at 24-25. 

 

1

Previously, this Court concluded that Griffith’s confession constituted 

overwhelming evidence of his guilt, rendering harmless any error regarding 

the failure to give a jury instruction for character witnesses. See Griffith, 

38 A.3d 921 (unpublished memorandum at 12-14).
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Griffith states that he was prejudiced at trial based on the overall lack of 

good character evidence. Id. at 25-26. 

Our review of the record shows that Attorney Kravitz obtained 

testimony from Drabick and Pendergast related to Griffith’s truthfulness. 

N.T., 2/18/14, at 31. Attorney Kravitz stated that he sought witness 

testimony that highlighted Griffith’s truthfulness, as opposed to his 

reputation as a law-abiding citizen, in light of Griffith’s incriminating 

statement to police. Id. Griffith has failed to show that this trial strategy, 

given the overwhelming evidence of guilt, was unreasonable. See 

Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa. Super. 2013) (holding 

that trial counsel was not ineffective for choosing a strategy that did not 

include good character testimony where the appellant made an incriminating 

statement, and appellant’s “character was likely beyond repair within the 

fact finder’s eyes.”).2 

With regard to Perrotta, we note that when raising a failure to call a 

potential witness claim, the PCRA petitioner must establish 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. Johnson, 966 A.2d 523, 536 (Pa. 2009). 

 

2 As noted above, because Griffith confessed to his crimes, there is no 

prejudice. See 5/27/10, at 47-48; see also Steele, 961 A.2d at 801. 
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Griffith has failed to demonstrate that he was prejudiced by the 

absence of Perrotta’s good character testimony, given the overwhelming 

evidence of his guilt. See N.T., 5/27/10, at 47-48; see also Sepulveda, 55 

A.3d at 1151. Thus, Griffith’s second claim is without merit.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015