J-S03044-24
2024 PA Super 92
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FAUSLET ALCEUS :
:
Appellant : No. 534 MDA 2023
Appeal from the PCRA Order Entered March 22, 2023
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005177-2017
BEFORE: OLSON, J., NICHOLS, J., and BECK, J.
OPINION BY BECK, J.: FILED: MAY 8, 2024
Fauslet Alceus (“Alceus”) appeals from the order entered by the Dauphin
County Court of Common Pleas denying his first petition filed pursuant to the
Post Conviction Relief Act (“PCRA”)1 after an evidentiary hearing. Alceus
claims that trial counsel was ineffective for failing to investigate or call
character witnesses in support of his defense. Upon review, we apply
longstanding precedent to conclude that trial counsel provided ineffective
assistance by failing to investigate or call character witnesses in support of
Alceus’ defense because (1) there were only two direct witnesses providing
conflicting accounts of what occurred (the classic “he said/she said” case); (2)
character evidence would have bolstered counsel’s strategy of establishing the
alleged victim was lying; and (3) Alceus was prejudiced by trial counsel’s
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
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omissions. We therefore reverse the order of the PCRA court and remand for
proceedings consistent with this decision.
In a prior decision, this Court summarized the facts underlying Alceus’
convictions as follows:
On the night of September 8, 2017[,] and into the early
morning of September 9, 2017, Angelica Fernandez Rodriguez
[(“Rodriguez”)] was staying at her mother’s home in Harrisburg
with her five children. Rodriguez, also five months pregnant, was
planning on leaving her husband, [Alceus]. While sleeping in the
early morning of September 9, 2017, Rodriguez was awoken by
[Alceus] physically beating her. [Alceus] was able to gain access
to the apartment building because the entrance to the apartment
building was broken at the time. Rodriguez’s 8-year-old son
opened the apartment door for [Alceus] after he knocked.
[Alceus] was screaming at her while the children watched him
physically punch her body with closed fists. At one point, [Alceus]
put both hands around her neck. Rodriguez attempted to get her
crying [] twins, [who were about thirteen months old,] but ended
up falling with them due to what she believed to be a broken leg.
Rodriguez attempted to leave the situation[;] however[,] she had
a hurt leg and was holding one twin in each arm. While [Rodriguez
was] sitting against a wall with her twins, [Alceus] used both
hands around her neck until Rodriguez had difficulty breathing,
became lightheaded, and had blurred vision. Rodriguez was not
able to get to a cell phone to call for help because it was broken
during the fight. [Alceus], knowing that [Rodriguez] was
pregnant, continued to kick her along her stomach area.
Still angry, [Alceus] left Rodriguez’[s] mother’s home as the
sun came up. [Rodriguez’s mother] came home later in the day
and took Rodriguez and her children to Harrisburg Hospital.
On September 9, 2017, Officer Matthew Gallup was …
dispatched to Harrisburg Hospital for a report of an assault [and
was then] directed to Rodriguez’[s] hospital room. Rodriguez
indicated that she had been assaulted. Officer Gallup observed
physical injuries on her face, including a swollen right eye, redness
down her cheek, and scratches on her left eye, cheek area, and
neck. She also complained of knee and side pain. [Rodriguez]
also indicated to Officer Gallup that she had been kicked or
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assaulted in her stomach area. [She] completed a domestic
violence statement form[, as well as] a strangulation
questionnaire. [Both forms were] in the victim’s own handwriting
and in [her] own words. Rodriguez told Officer Gallup that
[Alceus] was the one who assaulted her and her children.
Officer Gallup observed Rodriguez’[s] twins at the hospital.
The male twin had a large lump on his forehead with an abrasion
as well as a cut on the other side of his face and on his eyebrow.
The female twin had a small cut or laceration on the top of her
head towards the back of her head and side of her hair. [A]
forensics officer[] came to the [hospital] to take photos of the
twins and Rodriguez in the presence of Officer Gallup.
…
… [N]urse Faith Dreibelbis was working as a triage nurse
[when Rodriguez and her children arrived] at the hospital at
approximately 6:45 in the evening [on September 9, 2017.]
Rodriguez told [Nurse] Dreibelbis that she had been assaulted.
Rodriguez received an X-ray of her knee[ and] her spine, as well
as an ultrasound. [Nurse] Dreibelbis observed a laceration above
the eyebrow and alon[g] the right hairline of the male twin, and a
laceration on the scalp of the female twin. [Nurse] Dreibelbis also
observed redness and scratches along the male twin’s back that
were not depicted in photographs.
[Nurse] Dreibelbis contacted [the] YWCA upon request of
Rodriguez and a representative came to be with her when she was
in the emergency department. She also contacted Harrisburg
Police Department, which is typical practice when patients report
that they have been assaulted. [Rodriguez] was discharged from
the hospital around 1:00 a.m. on September 10, 2017. The
children were discharged at 10:46 p.m. on September 9, 2017.
Commonwealth v. Alceus, 623 MDA 2020, 2021 WL 37460 at *1-2 (Pa.
Super. Jan. 5, 2021) (non-precedential decision) (citation omitted; ellipses
and some brackets in original).
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Police subsequently arrested Alceus and the Commonwealth charged
him with aggravated assault; aggravated assault of a victim less than 6 and
defendant 18 or older (two counts); aggravated assault of an unborn child;
strangulation – applying pressure to throat or neck; endangering the welfare
of a child (two counts); and corruption of minors.2 The matter proceeded to
a jury trial in October 2019. The Commonwealth presented the testimony of
Rodriguez, Officer Gallup and Nurse Dreibelbis; the medical records of
Rodriguez and the twins documenting their injuries; Rodriguez’s statements
at the hospital; and photographs of their injuries. Alceus testified in his own
defense, which this Court previously summarized:
[Alceus] … denied he committed the assault on Rodriguez
and the twins. He claimed he was not at Rodriguez’s mother’s
apartment on the night of the incident, and that his relationship
with Rodriquez had ended in early July 2017. [Alceus] claimed
that on the evening of September 8, 2017, he was at the
Hollywood Casino with a friend[, Paulin Thiombiano
(“Thiombiano”),] until midnight. They then returned to
[Thiombiano’s] apartment, where he had been staying. [fn]
[Alceus] testified they talked for “a couple hours,” and went to
sleep around 2:00 a.m. on September 9th. He claimed that
Rodriguez’s mother called him around 2:00 p.m. that afternoon,
which was the first time he learned of the allegations. [Alceus]
denied ever harming Rodriguez or their children, and testified he
had last seen Rodriguez on September 2, 2017.
[fn][Alceus] also stated his car was “broken” at the time, so
[Thiombiano] drove them to the casino and back home.
N.T., 10/21/[20]19, at 128-29.
____________________________________________
2 18 Pa.C.S. §§ 2702(a)(1), (8), 2606(a), 2718(a)(1), 4304(a)(1),
6301(a)(1)(i).
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Alceus, 623 MDA 2020, 2021 WL 37460 at *2 (record citations omitted;
footnote in original). After Alceus’ testimony, the jury was shown a video of
a Child Resource Center (“CRC”) interview with one of Rodriguez’s minor
children, T.R., who was present at the time of the incident.
Id. (citing N.T.,
10/21/2019, at 141).
Following trial, a jury convicted Alceus of all charges. On January 29,
2020, the trial court sentenced Alceus to an aggregate term of seven to
fourteen years of incarceration, followed by six years of probation. This Court
affirmed his judgment of sentence and on June 28, 2021, our Supreme Court
denied his petition for allowance of appeal. See Alceus, 623 MDA 2020, 2021
WL 37460, appeal denied,
257 A.3d 1212 (Pa. 2021).
On August 15, 2022, Alceus timely filed a counseled PCRA petition, his
first. After the Commonwealth filed a response to the petition, Alceus filed an
amended PCRA petition. Alceus contended that he was entitled to relief
because trial counsel was ineffective in failing to call an alibi witness and failing
to discuss, investigate, or call any character witnesses in Alceus’ defense.
The PCRA court held an evidentiary hearing on January 17, 2023, at
which the court heard testimony from trial counsel, Alceus, and several
character witnesses for Alceus. Wesley Laroque (“Laroque”) testified that he
had known Alceus for many years, dating back to when the two were younger
and living in Haiti. N.T., 1/17/2023, at 12-13. He stated he was willing to
testify at Alceus’ trial and would have testified that Alceus has a good
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reputation for being peaceful in the small community of Haitians living near
Central Dauphin High School. Id. at 14-15.
Thiombiano, who stated he was also willing and available to testify at
Alceus’ trial, testified that he had known Alceus for seven years and met him
while working at a warehouse. Id. at 18. He likewise would have testified to
Alceus’ good reputation in the Harrisburg Haitian community for being
peaceful. Id. at 29-30. Thiombiano further testified in support of Alceus’
alibi, stating that he was with Alceus the night Rodriguez was injured. Id. at
24, 31.
Alceus was prepared to present the testimony of a third potential
character witness, Jean Coulange (“Coulange”). Because of time constraints,
however, the parties stipulated that Coulange would have provided the same
character-related testimony as the prior two witnesses—that Alceus had a
good reputation in the community for peacefulness and that he would have
been willing and available to testify at trial. Id. at 37.
Alceus also testified at the PCRA hearing. He stated that he asked trial
counsel to call Thiombiano as a witness and that he was surprised when
Thiombiano was never called to testify. Id. at 38. Trial counsel confirmed
this in his testimony at the PCRA hearing and stated that he interviewed
Thiombiano as a potential alibi witness. Id. at 6. Referring to notes he had
prepared contemporaneously with his interview of Thiombiano, trial counsel
stated that Thiombiano did not remember being with Alceus the night of the
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incident; instead, Thiombiano told trial counsel he was with Alceus the
following afternoon and night.3 Id. at 6-7, 41. Trial counsel also testified,
based on his conversation with Thiombiano, that even if he was with Alceus
that night, the assault on Rodriguez occurred after the time Thiombiano
indicated he had gone to bed. Id. at 41. In addition, Thiombiano told trial
counsel during their pretrial interview that Alceus sometimes took his keys
and used his car. Id. Trial counsel testified that he decided not to call
Thiombiano as an alibi witness because “the risk was too high that he could
have gotten confused with the dates on the stand” and the jury would hear
that Thiombiano was not actually with Alceus during the time of the assault,
contradicting Alceus’ alibi testimony. Id. at 42; see also id. at 7.
Trial counsel admitted, however, that he never discussed the potential
to call character witnesses with Alceus:
BY [PCRA COUNSEL]:
Q. … Did you discuss with [Alceus] the issue of character
witnesses?
A. We did not discuss character witnesses. I know he had
indicated that the victim was a liar several times. He had told me
– that came to me from him, [Thiombiano], and then Junior who
I believe is a cousin. But character witnesses for him, no, we did
not discuss that.
____________________________________________
3 Trial counsel also investigated Alceus’ claim he had been at the casino with
Thiombiano on the night of the assault. N.T., 1/17/2023, at 40. Alceus’ casino
player card was not used that night and the casino could not provide trial
counsel with any information to indicate Alceus had been there at that time.
Id. Trial counsel also tried unsuccessfully to obtain Alceus’ cellular phone
records to show his location on the night of the incident. Id. at 40-41.
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THE COURT: Character witnesses for what?
THE WITNESS: For [Alceus] we did not discuss.
BY [PCRA COUNSEL]:
Q. So you said you did not discuss. Fair to say you did not
know whether he had character witnesses for being peaceful?
A. I wouldn’t know either way.
Id. at 8.
Trial counsel explained that his strategy was to show that Rodriguez was
not telling the truth. Id. at 4-5. He did not discuss character witnesses with
Alceus because he wanted to focus “on the child being the only one that didn’t
have a reason to lie” and “the lack of investigation by the police”; he didn’t
want to “confuse the jury” by calling character witnesses. Id. at 8. He
therefore relied on the video evidence of the CRC interview with T.R., who was
present the night of the incident, as the child did not “make any disclosures
about the violence” in the video, and highlighted the lack of police
investigation at the scene of the assault despite Rodriguez’s statements that
Alceus had inflicted damage to the inside of the residence. Id. at 4, 8. Trial
counsel was aware of the contentious relationship between Rodriguez and
Alceus and decided that T.R. was the only person who did not have a reason
to lie. Id. at 4, 9. He admitted, though, that he “couldn’t say” whether
character testimony regarding Alceus’ reputation as a peaceful person would
have impacted the jury. Id. at 9.
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Following the hearing, the parties complied with the PCRA court’s order
to file briefs and thereafter, the PCRA court denied relief. This timely appeal
followed.
On appeal, Alceus presents one issue for our consideration: “Did the
PCRA court err when it denied [Alceus]’ claim that trial counsel was ineffective
for failing to call favorable character witnesses?” Alceus’ Brief at 4.
Our review of an order denying a PCRA petition “is limited to the findings
of the PCRA court and the evidence of record. We will not disturb a PCRA
court’s ruling if it is supported by evidence of record and is free of legal error.”
Commonwealth v. Smith, 194 A.3d 126, 132 (Pa. Super. 2018) (citation
omitted). We review the record in the light most favorable to the prevailing
party below and are bound by the PCRA court’s findings of fact and credibility
determinations; we cannot disturb either unless they are unsupported by the
record. Commonwealth v. Flor,
259 A.3d 891, 902 (Pa. 2021); see also
Smith, 194 A.2d at 132. We are not bound by the PCRA court’s legal
conclusions, which we review de novo. Commonwealth v. Johnson,
289
A.3d 959, 979 (Pa. 2023).
Alceus’ claim on appeal sounds in ineffective assistance of counsel for
failing to call character witnesses in his defense. In conducting our review,
we are mindful that of the well-settled law
… that counsel is presumed to have been effective and that
the petitioner bears the burden of proving counsel’s alleged
ineffectiveness. To overcome this presumption, a petitioner must
establish that: (1) the underlying substantive claim has arguable
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merit; (2) counsel did not have a reasonable basis for his or her
act or omission; and (3) the petitioner suffered prejudice as a
result of counsel’s deficient performance, that is, [there is] a
reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different. A PCRA
petitioner must address each of these prongs on appeal. A
petitioner’s failure to satisfy any prong of this test is fatal to the
claim.
Commonwealth v. Reid, 259 A.3d 395, 405 (Pa. 2021) (citations and
quotation marks omitted).
In establishing whether defense counsel was ineffective for
failing to call witnesses, [an] 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.
Commonwealth v. Treiber, 121 A.3d 435, 463-64 (Pa. 2015) (citation
omitted).
Counsel may be deemed ineffective for failing to call character
witnesses. See, e.g., Commonwealth v. Harris, 785 A.2d 998, 1000 (Pa.
Super. 2001); Commonwealth v. Gillespie,
620 A.2d 1143, 1145 (Pa.
Super. 1993). Although evidence of a person’s character is not admissible to
show the person acted in conformity with such character on a particular
occasion, Pa.R.E. 404(a)(1), in a criminal case, “a defendant may offer
evidence of the defendant’s pertinent trait, and if the evidence is admitted,
the prosecutor may offer evidence to rebut it[.]” Pa.R.E. 404(a)(2)(A).
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
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commission of the crime charged. 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. Medina, 209 A.3d 992, 997 (Pa. Super. 2019) (citation
omitted); see also Pa.R.E 405(a) (stating that admissible character evidence
may be proved with testimony regarding the person’s reputation in the
community, not by the witness’ opinion about the person’s character or
character trait). On cross-examination, the Commonwealth may inquire into
relevant specific instances of the person’s conduct that are probative of the
character trait in question. Pa.R.E. 405(a)(1). The Commonwealth may not,
however, inquire into allegations of other criminal conduct by the defendant
that did not result in conviction. Pa.R.E. 405(a)(2).
“Evidence of good character is substantive, not mere makeweight
evidence, and may, in and of itself, create a reasonable doubt of guilt and,
thus, require a verdict of not guilty.” Commonwealth v. Hull, 982 A.2d
1020, 1025-26 (Pa. Super. 2009) (quoting Commonwealth v. Weiss,
606
A.2d 439, 442 (Pa. 1992)). When character evidence is offered, the jury must
be instructed that evidence of the defendant’s good character alone may
create a reasonable doubt as to his or her guilt, resulting in acquittal.
Commonwealth v. Neely,
561 A.2d 1, 3 (Pa. 1989).
The Pennsylvania Supreme Court has recognized the critical nature of
character witnesses in cases where there are only two direct witnesses who
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testify—one telling the story for the Commonwealth, the other telling a
completely different story for the defense—colloquially referred to as “he
said/she said” cases. See Weiss, 606 A.2d at 442. In Commonwealth v.
Weiss, a jury convicted the defendant of statutory rape and related offenses
for crimes committed against his four-year-old daughter.
Id. at 440-41.
Weiss was accused of inserting his finger and penis in his daughter’s vagina,
putting Cheerios in her vagina, cutting her vaginal area with a plastic knife,
and pointing a gun at her when she screamed.
Id. at 441. The child’s parents
were involved in a bitter custody battle, and this incident was alleged to have
occurred during an overnight visit with Weiss.
Id. at 441 & n.6. According to
the mother’s testimony, the child acted abnormally upon return from the visit,
and she observed evidence of Weiss’ alleged assaults while bathing the child.
Id. at 441. The mother took her to the hospital, where a doctor’s examination
revealed “a one inch cut on the child’s genital area consistent with having
been cut by a plastic knife” and “a torn hymen.”
Id.
At Weiss’ trial, the child, the mother, the doctor, and two nurses testified
to the allegations against Weiss, and although Weiss called several witnesses
(including one witness who testified that the child recanted), he was the only
direct witness to testify in his defense. Id. Trial counsel called no character
witnesses to testify on Weiss’ behalf.
Id. Following his conviction, Weiss filed
a PCRA petition asserting that trial counsel’s failure to call character witnesses
constituted ineffective assistance.
Id.
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At the evidentiary hearing on his PCRA petition, Weiss offered the
testimony of character witnesses, including his estranged wife’s parents and
brother, all of whom would have testified “to [Weiss’] good character
reputation and his wife’s lack thereof.” Id. at 442. Trial counsel testified he
was not sure whether he contacted every potential character witness given to
him by Weiss and admitted that he did not reach out to those he did contact
until the day before trial.
Id. at 442-43. Weiss’ trial counsel further testified
that he was of the view that familial character witnesses, such as those
advanced by Weiss, were thought of as “garbage” by the jury and he did not
recall ever calling them to testify in any of his cases.
Id. at 443.
The case reached our Supreme Court, which held that trial counsel’s
failure to call character witness in Weiss’ defense constituted ineffective
assistance of counsel. Id. Recognizing that the credibility of the witnesses
was of “paramount importance” because the case involved only two direct
witnesses, and further that character evidence is critical to the jury’s
determination of credibility, the Court found Weiss’ claim had arguable merit.
Id. at 442.
The Court further found no reasonable basis for trial counsel’s decision.
Id. at 442-43. Counsel’s strategy had been to establish that the mother was
lying and that she, in fact, was likely responsible for the child’s injuries.
Id.
at 443. The Supreme Court found:
In light of the overwhelming need for character evidence in a case
such as this, counsel’s limited investigation into the quantity
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and/or quality of potential character witnesses on behalf of
[Weiss], and counsel’s prejudice toward familial witnesses, we find
no reasonable basis to support trial counsel’s decision not to call
any character witnesses.
Id. at 443 (emphasis in original).
Turning to the prejudice prong, the Weiss Court recognized that a
finding of prejudice required a demonstration “that the alternative not selected
by counsel offered a substantially greater chance of success than the tactic
chosen” and that its determination of prejudice required the Court to “focus
on counsel’s overall trial strategy and view his performance as a whole.” Id.
(citations omitted). Applying this standard to the case before it, and
ultimately concluding that Weiss was prejudiced by trial counsel’s failure to
call character witnesses, the Court explained:
Counsel’s stated strategy was not to contest the physical
findings of sexual abuse, but to focus on the fact that it may have
been [Weiss’] wife, not [Weiss] who “set the whole thing up.” It
would have been entirely consistent as well as highly beneficial,
in light of this strategy, to present character witnesses, who not
only would vouch for [Weiss’] good character, but would have
impeached his wife’s character at the same time.
Whereas the defense did not attempt to refute the physical
findings, the evidence regarding the perpetrator boiled down to
[Weiss’] word against the word of his wife and daughter. The only
issue then, was whether [Weiss] or someone else was responsible
for what happened. Considering there was no overwhelming
evidence of guilt in this case, credibility of the witnesses was of
paramount importance, and counsel’s error not to employ
character witnesses, familial or otherwise, undermined [Weiss’]
chances of instilling reasonable doubt in the minds of the jury and
resulted in prejudice to [Weiss].
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We find, therefore, that even with the presumption of
adequate performance, trial counsel’s defense was the result of
unreasonable professional judgment, and there is a reasonable
probability that, absent trial counsel’s error, the jury would have
had a reasonable doubt respecting [Weiss’] guilt. Hence, the
fundamental fairness of the proceeding has been undermined by
the ineffective assistance of [Weiss’] trial counsel.
Id. (footnote and citations omitted). Based on the foregoing, our Supreme
Court held trial counsel was ineffective for failing to call character witnesses
and granted Weiss a new trial.
Id. at 443-44.
In Commonwealth v. Hull, a case factually similar to the one pending
before us, a jury convicted Hull of sex offenses committed against his adopted
daughter. Hull, 982 A.2d at 1022. The only evidence presented by the
Commonwealth to support Hull’s culpability was testimony by the victim and
her brother, and no one other than the victim testified to the acts upon which
the charges were based.
Id. at 1022-23. Trial counsel’s strategy was to show
that the children had a motive to lie—they testified that Hull and his wife struck
them and they wanted to instead live with their mother—and that the crimes
alleged did not occur.
Id. at 1023, 1027.
We affirmed Hull’s judgment of sentence on direct appeal. Id. at 1022.
Hull then filed a PCRA petition alleging trial counsel’s ineffectiveness for failing
to call character witnesses in his defense.
Id. The PCRA court agreed and
granted Hull a new trial.
Id. The Commonwealth appealed and we affirmed.
Relying on Weiss, we agreed with the PCRA court that the case had arguable
merit, as there were only two direct witnesses—one implicating Hull and one
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denying his involvement. Hull, 982 A.2d at 1023. We further agreed with
the PCRA court that counsel did not act reasonably in failing to conduct a
thorough investigation into the availability of character witnesses when
counsel’s “overall strategy was to question the children’s credibility by
formulating in the jurors’ minds a motive for the children to fabricate their
allegations against [Hull] and his wife.”
Id. at 1026. Lastly, the Court found
Hull was prejudiced because “[e]vidence of [Hull’s] good character,
particularly in the absence of any bad-character evidence outside of the
children’s testimony, would have bolstered his defense,” and the character
evidence would have been consistent with trial counsel’s strategy to show the
jury that the children were lying about what they alleged occurred.
Id. The
Court rejected the Commonwealth’s argument that the evidence against Hull
was so overwhelming that the outcome would not have been different, as
character evidence could cast doubt on that evidence, i.e., the brother’s
testimony.
Id. at 1026-27.
Indeed, this Court has long recognized, and more recently reaffirmed in
non-precedential decisions,4 that in he said/she said cases, trial counsel may
be found to have provided ineffective assistance for failing to present
character witnesses. See Harris, 785 A.2d at 1001; Gillespie,
620 A.2d at
1145; Commonwealth v. Luther,
463 A.2d 1073, 1078 (Pa. Super. 1983);
____________________________________________
4 See Pa.R.A.P. 126(b) (stating that non-precedential decisions of the Superior
Court filed after May 1, 2019, may be cited for their persuasive value).
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see also, e.g., Commonwealth v. Raker, 609 MDA 2022, 2022 WL
16754076 at *6 (Pa. Super. Nov. 8, 2022) (non-precedential decision);
Commonwealth v. Soto, 170 MDA 2019,
2019 WL 4390716 at *7-8 (Pa.
Super. Sept. 13, 2019) (non-precedential decision).
Turning to the instant matter, Alceus contends that trial counsel
provided ineffective assistance by failing to investigate and call character
witnesses to testify at trial. Alceus’ Brief at 6, 8-14. Alceus states that trial
counsel failed to inform him that he could present character witnesses, or that
the jury would be instructed that character evidence alone can be the basis
for finding a reasonable doubt. Id. Alceus argues that because the central
issue at trial involved the jury weighing Rodriguez’s credibility against his own,
trial counsel’s decision not to conduct a “limited investigation” into potential
character witnesses or to call them to testify in Alceus’ defense was
unreasonable. Id. at 10-11. Observing the “critical nature” of character
testimony in cases like his, Alceus asserts that he was prejudiced by trial
counsel’s failings. Id. at 12.
The PCRA court found that trial counsel was not ineffective for failing to
call character witnesses in Alceus’ defense:
[Trial counsel] specifically testified that adding character
witnesses would have risked taking the focus away from his trial
strategy. Further, [the PCRA court] did not find the testimony of
the potential character witnesses at the evidentiary hearing
credible. The character witnesses, [] Laroque and [] Thiombiano,
testified that they know [Alceus] from Haiti. [] Laroque,
specifically, could not remember the last year in which he spent
time with [Alceus]. As [trial counsel] testified to [sic] at the
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evidentiary hearing, [Alceus] has a theft in his criminal record.
Additionally, [the PCRA court] notes that the evidence in this case
includes witness testimony by the victim’s mother and children,
hospital records regarding injuries and statements, observations
of the injuries by the police officer, and photographs of the injuries
on the victims by a forensic officer. Thus, [the PCRA court does]
not find that the absence of the witness’ testimony was so
prejudicial as to have denied [Alceus] a fair trial. Further, [the
PCRA court] find[s] that [trial counsel’s] decision to exclude the
character witness testimony in order to strengthen trial strategy
was reasonable.
PCRA Court Opinion, 5/22/2023, at 11 (record citations omitted).
Our review of the record, along with long-standing precedent, requires
us to disagree with the PCRA court’s conclusion. Beginning with the arguable
merit prong, like Weiss and Hull, this is yet another he said/she said case—
it was Alceus’ word against Rodriguez’s—making Alceus’ credibility of
“paramount importance.” See Weiss, 606 A.2d at 442; Hull,
982 A.2d at
1023. Alceus testified at trial that he was not at Rodriguez’s mother’s
apartment on the night in question and did not assault Rodriguez, while she
maintained the opposite. N.T. 10/21/2019, at 50, 124, 127, 129, 131-32.
Evidence of Alceus’ character was therefore critical to the jury’s determination
of credibility and would serve as substantive evidence that, by itself, could
create a reasonable doubt of guilt. See Weiss,
606 A.2d at 442; Hull,
982
A.2d at 1025-26. Alceus’ claim of ineffective assistance of counsel thus has
arguable merit.
We now turn to whether trial counsel had a reasonable basis for failing
to present character witnesses at trial. As our Supreme Court has recognized,
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[s]trategic choices made [by trial counsel] after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other
words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.
Strickland v. Washington, 466 U.S. 668, 690-91 (1984); see
also Commonwealth v. Johnson, [] 966 A.2d 523, 535–36
([Pa.] 2009) (“The duty to investigate, of course, may include a
duty to interview certain potential witnesses; and a prejudicial
failure to fulfill this duty, unless pursuant to a reasonable strategic
decision, may lead to a finding of ineffective assistance.”).
Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016).
By trial counsel’s own admission, he never discussed character evidence
with Alceus or investigated the availability of any such witnesses. N.T.,
1/17/2023, at 7-9. Trial counsel’s stated trial strategy was to show Rodriguez
not telling the truth about Alceus assaulting her. Id. at 4-5. In explaining
why he did not utilize character evidence of Alceus’ reputation for
peacefulness, trial counsel said he believed “there was a risk” that it would
take the focus away from what T.R. did (or, more to the point, did not) say
during his interview with CRC, which he used to support his overall strategy
of showing that Rodriguez was lying. Id. at 9.
The PCRA court included trial counsel’s stated concern in its opinion
denying PCRA relief, but offered no analysis to support its conclusion that this
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constituted a reasonable strategic basis for trial counsel’s failure to investigate
and call character witnesses. It further did not explain how offering positive
character evidence for Alceus would have been inconsistent with trial counsel’s
strategy of showing that Rodriguez was being untruthful. See PCRA Court
Opinion, 5/22/2023, at 11.
As this Court and our Supreme Court have repeatedly held, presenting
character evidence under these precise circumstances is entirely consistent
with—and indeed, bolsters—a strategy of establishing that the
Commonwealth’s direct witness is lying. See, e.g., Weiss, 606 A.2d 439;
Hull,
982 A.2d 1020; Harris,
785 A.2d 998; Gillespie,
620 A.2d 1143;
Luther,
463 A.2d 1073; Raker, 609 MDA 2022,
2022 WL 16754076; Soto,
170 MDA 2019,
2019 WL 4390716. Presenting witnesses who could vouch for
Alceus’ reputation for peacefulness in the community would have aided, not
detracted from, trial counsel’s strategy of challenging the veracity of
Rodriguez’s testimony. Trial counsel’s failure to investigate or discuss
character witnesses with Alceus demonstrates that he failed to recognize the
crucial role character evidence would have played in support of his overall trial
strategy. See, e.g., Luther,
463 A.2d at 1078-79 (“A trial counsel cannot
fault his client for failing to provide names of character witnesses, if witnesses
were available, when the trial counsel has been derelict in not adequately
discussing with his client the importance of such a defense.”).
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Further, trial counsel did not claim, and the record does not indicate,
that his reason for not investigating or calling character witnesses was to
shield the jury from negative character testimony. Although trial counsel was
aware that Alceus had prior convictions for theft and driving under the
influence, he recognized those convictions would not be admissible as bad
character evidence to contradict witness testimony that Alceus has a
reputation for peacefulness.5 N.T., 1/17/2023, at 10.
Based on the foregoing, we conclude that the record does not support
the PCRA court’s conclusion that trial counsel’s failure to conduct any
____________________________________________
5 In its analysis, the PCRA court noted, without expounding, that Alceus’
criminal record included a theft conviction, purportedly as a basis for finding
that trial counsel’s strategy of not calling character witnesses was reasonable.
PCRA Court Opinion, 5/22/2023, at 11. This was error. As discussed supra,
although a criminal conviction can open the door to attacking a defendant’s
character with prior criminal convictions, the convictions must be for crimes
pertinent to the character trait for which the defense provided testimony.
Pa.R.E. 404(a)(2)(A). A theft conviction is pertinent to the trait of
truthfulness, not peacefulness. See Commonwealth v. Fulton, 830 A.2d
567, 572-73 (Pa. 2003) (plurality).
We further observe that Alceus testified in his own defense at trial and
his theft conviction could have been used to impeach his testimony.
Commonwealth v. Hannibal, 156 A.3d 197, 216 (Pa. 2016) (“Because
appellant chose to testify on his own behalf, any of his crimen falsi convictions
over the prior ten years would have been admissible in the Commonwealth’s
rebuttal case regardless of whether appellant presented character
witnesses.”); Commonwealth v. Washington,
269 A.3d 1255, 1264 (Pa.
Super. 2022) (en banc) (“Crimes involving dishonesty or false statement are
commonly referred to as crimen falsi crimes, for purposes of impeaching a
witness’s credibility.”) (citations and brackets omitted); Commonwealth v.
Cole,
227 A.3d 336, 340 (Pa. Super. 2020) (stating theft is a crimen falsi
offense).
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investigation into the availability of character witnesses was reasonable and
strategic. See Weiss, 606 A.2d at 443; Hull,
982 A.2d at 1026; see also
Williams,
141 A.3d at 463; see also, cf., Johnson, 966 A.2d at 535–36.
Under the circumstances present in this case, where there are only two direct
witnesses, each providing contradictory testimony as to what occurred, trial
counsel’s strategy was to show the jury that the Commonwealth’s witness was
lying, and there was no known bad character evidence for the Commonwealth
to present, there is no reasonable strategic basis to support trial counsel’s
failure to investigate potential character witnesses.
Finally, we must determine whether Alceus was prejudiced by trial
counsel’s failure to present character witnesses.6 In determining that Alceus
was not prejudiced by the absence of character evidence, the PCRA court
____________________________________________
6 As noted supra, to establish trial counsel’s ineffectiveness for failing to call
witnesses, Alceus must also satisfy a five-prong test. Treiber, 121 A.3d at
463-64. The record reflects, and neither the PCRA court nor the
Commonwealth contests, that Alceus satisfied the first four prongs of the test.
Alceus presented character witnesses at the PCRA hearing who testified that
they were available and would have testified at trial as to Alceus’ reputation
for peacefulness in the community. Trial counsel should have known about
these witnesses—had he discussed the availability of character testimony with
Alceus, Alceus would have provided him with this information. The only
remaining issue is whether Alceus satisfied the fifth element of the test by
establishing that he was prejudiced by counsel’s conduct. As both the
Supreme Court and this Court have tacitly recognized, establishing prejudice
based upon trial counsel’s failure to call a witness utilizes the same standard
as establishing prejudice generally to prove ineffective assistance of counsel.
See, e.g.,
id. at 445, 464; Weiss,
606 A.2d at 443; Hull,
982 A.2d at 1026;
Raker, 609 MDA 2022,
2022 WL 16754076 at *2, 5; Soto, 170 MDA 2019,
2019 WL 4390716 at *5-6, 8.
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found the proposed character witnesses not credible and generally pointed to
the Commonwealth’s evidence at trial. PCRA Court Opinion, 5/22/2023, at
11. The full extent of the PCRA court’s credibility finding was that it “did not
find the testimony of the potential character witnesses at the evidentiary
hearing credible. The character witnesses, [] Laroque and [] Thiombiano,
testified that they know [Alceus] from Haiti. [] Laroque, specifically, could not
remember the last year in which he spent time with [Alceus].” Id.
With respect to Laroque, the record reflects the following exchange
occurred at the PCRA hearing:
BY [PCRA COUNSEL]:
Q. And how long had you known [] Alceus? How long do you
know him?
A. That’s long time ago, that’s long time ago. I’m 55 now but
he’s less than a year than me.
THE COURT: So you knew him when he was younger in
Haiti?
THE WITNESS: Exactly.
THE COURT: Got it.
BY [PCRA COUNSEL]:
Q. And do you know other people that know [] Alceus?
A. Yes.
Q. And amongst yourself and those other people that know []
Alceus, does [] Alceus have a reputation in the community for
being peaceful?
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THE COURT: Well, before you get there, when’s the last
time you actually had contact with the defendant?
THE WITNESS: Last time, before he go to the jail, he was,
like, sitting with me and (sic) Thanksgiving.
THE COURT: Thanksgiving of what year, sir?
THE WITNESS: Um, I’m not remember. But, you know,
that’s – but he get, like four years in jail now. But before
that.
THE COURT: I missed the last part.
THE WITNESS: I think he got four years in the jail but
before the date.
THE COURT: That’s what I’m asking. When is the last
time you had contact with him before he went to prison?
THE WITNESS: The last time I’m sitting with them and
another friend in my house at the table for the Thanksgiving.
But I’m not remember that year before he go to the jail.
BY [PCRA COUNSEL]:
Q. Was it after he was arrested or before he was arrested?
A. Yeah.
Q. After?
A. No. After – I think he go to the jail first and then he come
back. When he come back, I spending to him and then he back
to the jail again.
THE COURT: And you don’t remember the year?
THE WITNESS: I’m not remember the year. But you got
four years on the jail now? I don’t know.
N.T., 1/17/2023, at 12-13. The PCRA court discounts Laroque’s testimony
because he could not remember the specific year that he last spent time with
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Alceus. Although Laroque could not identify the year, as the above exchange
reflects, he testified that he last saw Alceus the Thanksgiving before Alceus
was incarcerated. Moreover, the date he last saw Alceus has little bearing on
the testimony he provided, which related to his knowledge of Alceus’
reputation for peacefulness in the community. This requires that Laroque
knew what others in the community thought of Alceus’ reputation at or around
the time of the crime. Indeed, pursuant to Rule 405 of the Pennsylvania Rules
of Evidence, Laroque’s personal opinion about Alceus was irrelevant and
inadmissible. Pa.R.E 405(a).
We are very aware that we must defer to the PCRA court’s findings of
fact and credibility determinations, but this deference applies only insofar as
they are supported by the record. See Flor, 259 A.3d at 902; Smith, 194
A.2d at 132; see also Commonwealth v. Hereford, 1162 WDA 2022, 2024
WL 507083, at *8 (Pa. Super. Feb. 9, 2024) (non-precedential decision)
(“[W]e are cognizant that our standard of review is very deferential to the
PCRA court’s credibility assessments. However, the PCRA court’s credibility
assessments are not absolute, and are still subject to review on appeal.
Importantly, the PCRA court’s credibility determination must be supported by
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the record.”) (emphasis and citations omitted). Simply put, the PCRA court’s
finding that Laroque was not credible is not supported by the record.7
Regardless of whether the PCRA court properly discounted Laroque’s
testimony, though, it made no credibility determination of Coulange, the
character witness who provided stipulated testimony about Alceus’ good
character and did not provide live testimony before the PCRA court. Nor could
it have, as it did not have an opportunity to observe the witness firsthand.
See Commonwealth v. King, 990 A.2d 1172, 1180 (Pa. Super. 2010)
(stating a judge “could not possibly have made fully informed credibility
determinations without observing the demeanor of the witnesses”); see also
Commonwealth v. Perrin,
291 A.3d 337, 348 (Pa. 2023) (Dougherty, J.
concurring) (“in the stipulation context, as on appeal, there is no firsthand
evaluation of the witness’s in-court testimony under oath and subject to the
crucible of questioning, which is indispensable to an informed evaluation of
credibility”) (citing King,
990 A.2d at 1180).
____________________________________________
7 Although the PCRA court did not explain its credibility finding with respect
to Thiombiano, there is ample record support for its determination that he was
not credible as Thiombiano’s testimony before the PCRA court directly
conflicted with the information he provided to trial counsel prior to trial. See
PCRA Court Opinion, 5/22/2023, at 11; compare N.T., 1/17/2023, at 6-7, 41
(trial counsel testifying at PCRA hearing that, during his interview with
Thiombiano before trial, he told trial counsel that he was with Alceus the
afternoon and night following the assault), with id. at 24, 31 (Thiombiano
testifying at PCRA hearing that he was with Alceus the afternoon and night of
the assault).
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The PCRA also cited the Commonwealth’s evidence at trial in its
conclusion that the absence of character evidence was not so prejudicial as to
have denied Alceus a fair trial. PCRA Court Opinion, 5/22/2023, at 11. This
was error for several reasons. First, some of the evidence the PCRA court
cited in its opinion was not presented at trial. Contrary to the PCRA court’s
statement, Rodriguez’s mother and children did not testify at trial.8 Compare
id., with N.T., 10/21-22/2019. Further, the PCRA court’s reliance on evidence
of the physical injuries sustained by Rodriguez and the twins ignores the
longstanding and well-settled precedent that character evidence is substantive
evidence that, in and of itself, is sufficient to raise a reasonable doubt as to a
defendant’s guilt.
Evidence of good character is substantive and positive
evidence, not a mere [makeweight] to be considered in a doubtful
case, and, according to all our authorities, is an independent factor
which may of itself engender a reasonable doubt or produce a
conclusion of innocence. To be sure, it is to be considered with
all the other evidence in the case. But it is not to be measured
with or by other evidence. Its probative value, its power of
persuasion, does not depend upon, and is not to be measured by,
or appraised according to, the might or the infirmity in the
Commonwealth’s case. Even though, under all the other
evi[d]ence a jury could reach a conclusion of guilt, still if the
character evidence creates a reasonable doubt or establishes
innocence a verdict of acquittal must be rendered.
____________________________________________
8 As noted supra, trial counsel offered, and the trial court admitted, a video
of a CRC interview of one of the children. None of the children testified.
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Commonwealth v. Padden, 50 A.2d 722, 725 (Pa. Super. 1947) (en banc)
(emphasis in original; citations omitted).
Because trial counsel’s strategy did not involve an attempt to refute that
Rodriguez and her children sustained physical injuries, evidence as to who
caused the injuries boiled down to Alceus’ word against Rodriguez’s. The only
question was whether Alceus or someone else was responsible for what
happened. As Rodriguez’s testimony was the sole evidence that placed Alceus
at the scene of the crime that night, the credibility of the witnesses was of
paramount importance. Evidence of Alceus’ reputation for peacefulness would
have bolstered his defense and was wholly consistent with trial counsel’s
strategy to show Rodriguez was lying. Trial counsel’s failure to investigate,
let alone call, character witnesses in support of his defense strategy
undermined Alceus’ chances of instilling reasonable doubt in the minds of the
jury. As such, and consistent with our prior case law, we conclude Alceus was
prejudiced by counsel’s omissions. See Weiss, 606 A.2d at 443; Hull,
982
A.2d at 1026.
Based on the foregoing, the PCRA court erred and abused its discretion
by denying Alceus PCRA relief. Accordingly, we reverse the order the PCRA
court, vacate Alceus’ judgment of sentence, and remand for a new trial.9
____________________________________________
9 We are mindful that the Commonwealth now faces the prospect of retrial
for an incident occurring more than six years ago. As we explained in Hull,
however, “the value of the character witnesses lies not in what they witnessed,
(Footnote Continued Next Page)
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Order reversed. Judgment of sentence vacated. Case remanded.
Jurisdiction relinquished.
Judge Olson joins the opinion.
Judge Nichols concurs in the result.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 5/08/2024
____________________________________________
but in directly supporting [Hull’s] defense and indirectly refuting the children’s
allegations. Accordingly, permitting [Hull] the opportunity to assert a
colorable defense properly constitutes the only fair remedy in this case.” Hull,
982 A.2d at 1027 n.3. In the same way, the value of character witnesses lies
in directly supporting Alceus’ defense and indirectly refuting Rodriguez’s
allegations. Permitting him this opportunity is the only fair remedy. See
id.
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