Com. v. Chestnut, C. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CODY LEE CHESTNUT :
:
Appellant : No. 640 MDA 2021
Appeal from the PCRA Order Entered May 18, 2021
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000994-2017
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 25, 2022
Appellant Cody Lee Chestnut appeals from the order denying relief for
his timely first Post Conviction Relief Act1 (PCRA) petition. Appellant contends
that his trial counsel was ineffective for failing to call certain character
witnesses. We affirm.
A previous panel of this Court summarized the underlying facts of this
matter as follows:
On March 22, 2017, Appellant went to the home of Dennis
Chestnut [(the victim)], Appellant’s father, to get high. The two
went to the barn on the property and took a hit of crack cocaine,
which [the victim] described as being of “garbage” quality. The
two then “rode out on [a] skid-steer” to access some logs.[fn1]
They loaded logs into the bucket and returned to the barn. Both
Appellant and [the victim] took another hit of the crack cocaine,
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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and Appellant told [the victim] that Appellant needed money.
[The victim] called a log buyer, but that individual was not
available to buy logs at that time, and according to [the victim],
Appellant became upset. At that point, while [the victim] had his
back turned to Appellant, Appellant struck [the victim], who “went
flying.” According to [the victim], it was the “[h]ardest punch he
ever took.” [The victim] then “staggered out of the barn door,”
and Appellant “drug [sic] [the victim] back [inside the barn] by
[his] hooded sweatshirt.” At that point, [the victim] felt injuries
to his “face and eye.” Appellant then attacked [the victim] again
and “grabbed [him] by the throat and started choking [him].”
[The victim] recalled being on his hands and knees and feeling
Appellant punch his spine and stomp on his back. Eventually,
Appellant permitted [the victim] to call his girlfriend, Patti, for
help. [The victim] also “agreed to lie” to both Patti and police
about what happened to help Appellant avoid criminal charges.
[The victim] testified that he was a tree trimmer by
[fn1]
trade.
Patti arrived at the barn, and while Appellant was helping [the
victim] into her vehicle, Appellant requested that Patti “stop at the
[MAC] machine and get him 300 [dollars].” By the time [the
victim] arrived at a local hospital, his eye was swollen shut and
bleeding, and he had “a lot of pain in [his back] where [Appellant]
broke [his] ribs.” Hospital personnel were concerned that [the
victim] was “going to lose that eye,” and [the victim] was
transferred by ambulance to a larger hospital in Danville,
Pennsylvania.
According to Dr. DiAnne Leonard, a trauma surgeon who treated
[the victim] in Danville, [the victim] arrived at the hospital with
“evidence of traumatic injuries around the face.” After some
imaging studies, it was revealed that [the victim] had “multiple
facial fractures around the left eye,” “nasal bone fractures,” two
rib fractures, a “grade three liver laceration,” and “an intimal tear
in his aorta.” [The victim] was admitted to the hospital for close
monitoring of his internal injuries.
Trooper Jonathan Thompson of the Pennsylvania State Police
made contact with [the victim] the following morning while [the
victim] was still hospitalized in the intensive care unit. Trooper
Thompson photographed [the victim’s] injuries. [The victim] also
provided a three-minute video statement to Trooper Thompson
implicating Appellant as his attacker. Trooper Thompson also
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went to [the victim’s] property to process the crime scene. Then,
Trooper Thompson procured a warrant for Appellant’s arrest, and
Appellant was apprehended at the home of his girlfriend later that
evening.
Police interviewed Appellant, who admitted that he and [the
victim] had a fight the day before. Appellant explained to police
that he had seen [the victim] earlier that day, and [the victim]
“could provide [Appellant] with an opportunity to make some
money to help him out.” The two smoked crack together, then
“they got into a fight.” Appellant admitted to hitting [the victim]
once, then stated that [the victim] hit Appellant, then Appellant
hit [the victim] two or three more times. Appellant also told police
that he “put [the victim] in a guillotine choke.”[fn6]
[fn6]At trial, [Appellant asserted he acted in self-defense.]
Appellant testified that he “snapped [his] hand offensively”
at [the victim] to push [the victim] away after [the victim]
became combative and agitated after smoking the crack
cocaine. According to Appellant, the two began to “tussle”
and they “ended up on the ground.” Appellant testified that
things calmed down until it appeared to Appellant that [the
victim] was going to hit Appellant with a brick. At that point,
according to Appellant, [the victim] tackled Appellant, and
Appellant tried to calm [the victim] down by hitting him in
the back and side.
As a result of this incident, Appellant was charged with aggravated
assault, simple assault, strangulation, and unlawful restraint.
Commonwealth v. Chestnut, 1800 MDA 2018, 2019 WL 3916647, at *1-2
(Pa. Super. filed Aug. 19, 2019) (unpublished mem.) (citations and some
footnotes omitted), appeal denied, 223 A.3d 1288 (Pa. 2020).
At trial, Appellant was represented by Ryan Gardner, Esq. (trial
counsel). The defense called two character witnesses, both of whom knew
Appellant and the victim. Jamie Moore testified that the victim had a
reputation in the community for untruthfulness. N.T. Trial, 4/11/18, at 6, 8.
Moore also testified that she knew the victim had a reputation for being
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violent. Id. at 9, 12. Tiffany Sellers testified that the victim had a reputation
in the community for being untruthful, describing him as a “known liar.” Id.
at 15. Both Moore and Sellers testified that they knew Appellant to be a non-
violent person. Id. at 7, 15-16.
After a two-day jury trial, Appellant was convicted of aggravated assault
and simple assault.2 On June 18, 2018, the trial court sentenced Appellant to
an aggregate term of five to twelve years’ incarceration. After the trial court
denied Appellant’s post-sentence motion, Appellant filed a direct appeal. This
Court affirmed Appellant’s judgment of sentence on August 19, 2019, and our
Supreme Court declined further review on February 26, 2020. Chestnut,
2019 WL 3916647 at *5, appeal denied, 223 A.3d 1288 (Pa. 2020).
Appellant filed a timely pro se PCRA petition on March 11, 2020. The
PCRA court appointed Trisha Hoover Jasper, Esq. as counsel for Appellant, and
she filed an amended PCRA petition on Appellant’s behalf. Therein, Appellant
argued that trial counsel was ineffective for failing to call certain character
witnesses who had been subpoenaed for the trial, but ultimately did not
testify. Am. PCRA Pet., 9/25/20, at 3-5.
The PCRA court held an evidentiary hearing on December 22, 2020. At
the hearing, Appellant presented the testimony of six witnesses: Danielle
Giardano, Shane Nearhoof, Demsey Long, Deborah Parks, Ruth King, and
____________________________________________
2 The jury acquitted Appellant of strangulation and unlawful restraint. N.T.
Trial, 4/11/18, at 89.
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Alexandra Reese. N.T. PCRA Hr’g, 12/22/20, at 3, 11, 21, 29, 33, 38. Each
of these witnesses stated that they had received a subpoena to testify at
Appellant’s trial and were available to testify, but that trial counsel did not call
them as witnesses. Id. at 4, 12, 22, 29, 33, 38-39. The witnesses also stated
that if they had been called at Appellant’s trial, they would have testified that
they knew Appellant to be a truthful and/or a non-violent person. Id. at 5,
13-14, 23-24, 30, 34-35, 39. The witnesses further testified that the victim
was a dishonest and violent person. Id. at 6-8, 15-17, 25-26, 30-31, 35-36,
39. Nearhoof, King, and Reese specifically testified that the victim had a
reputation in the community for being violent. Id. at 17, 36, 40-42. Appellant
did not call trial counsel as a witness; therefore, trial counsel did not testify at
the evidentiary hearing.
On May 18, 2021, the PCRA court issued an opinion and order denying
Appellant’s petition. See PCRA Ct. Op. & Order, 5/18/21, at 12. Appellant
filed a timely notice of appeal. The PCRA court did not order Appellant to
comply with Pa.R.A.P. 1925(b), but filed a Rule 1925(a) opinion adopting its
May 18, 2021 opinion and order. See PCRA Ct. Op., 8/13/21, at 1.
Appellant raises the following issue on appeal: “Whether the [PCRA]
court erred in determining trial counsel was not ineffective for failing to call
additional character witnesses at trial?” Appellant’s Brief at 6 (formatting
altered).
Specifically, Appellant reiterates that trial counsel should have called the
six individuals who testified at the PCRA evidentiary hearing as character
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witnesses during his trial. Id. at 16-23. Appellant contends that these
witnesses would have provided non-cumulative testimony concerning the
victim’s violent character. Id. at 21-22. Appellant also claims that although
Moore and Sellers testified at trial, their testimony was insufficient to establish
the victim’s reputation for dishonesty or violence. Id. Further, Appellant
argues that trial counsel’s “testimony was not necessary to show he had no
reasonable basis not to call the witnesses when each witness testified they
were subpoenaed and appeared to trial to testify.” Id. at 22. Appellant
concludes that the testimony of these witnesses could have changed the
outcome of the trial because each witness had different information to present
to the jury. Id.
This Court has explained that
our standard of review from the denial of a PCRA petition is limited
to examining whether the PCRA court’s determination is supported
by the evidence of record and whether it is free of legal error. The
PCRA court’s credibility determinations, when supported by the
record, are binding on this Court; however, we apply a de novo
standard of review to the PCRA court’s legal conclusions.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(citations omitted and formatting altered).
Furthermore, to establish a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. The burden is on the defendant
to prove all three of the following prongs: (1) the underlying claim
is of arguable merit; (2) that counsel had no reasonable strategic
basis for his or her action or inaction; and (3) but for the errors
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and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
* * *
Moreover, a failure to satisfy any prong of the ineffectiveness test
requires rejection of the claim of ineffectiveness.
Id. at 1043-44 (citations omitted and formatting altered).
To prove that counsel was ineffective for failing to call a particular
witness, the petitioner must establish:
(1) that the witness existed; (2) that the witness was
available; (3) that counsel was informed of the existence of
the witness or should have known of the witness’s
existence; (4) that the witness was prepared to cooperate
and would have testified on [the] appellant’s behalf; and (5)
that the absence of the testimony prejudiced [the]
appellant.
Thus, trial counsel will not be found ineffective for failing to
investigate or call a witness unless there is some showing by the
appellant 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.
Commonwealth v. Michaud, 70 A.3d 862, 867-68 (Pa. Super. 2013)
(citations omitted and formatting altered).
“Whenever an evidentiary hearing on a claim of ineffectiveness is
granted, the burdens of production and persuasion remain on the [PCRA
petitioner].” Commonwealth v. Jones, 596 A.2d 885, 888 (Pa. Super.
1991) (citation omitted). Therefore, in order to prove that counsel lacked a
reasonable basis for his actions, a petitioner must produce trial counsel as a
witness at the PCRA hearing and elicit testimony concerning counsel’s trial
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strategy. See id. at 888-89 (rejecting an ineffectiveness claim where the
petitioner failed to produce trial counsel as a witness at the PCRA hearing);
see also Commonwealth v. Lesko, 15 A.3d 345, 401 (Pa. 2011) (finding
that because the petitioner “did not establish any ground for deeming counsel
per se ineffective,” and did not establish a lack of reasonable basis through
trial counsel’s testimony at the PCRA hearing, he failed to sustain his burden
of proof); Commonwealth v. Koehler, 36 A.3d 121, 146-47 (Pa. 2012)
(same).
Further, this Court has held that “a lawyer should not be held ineffective
without first having an opportunity to address the accusation in some fashion.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 783 (Pa. Super. 2015)
(en banc) (citation and footnote omitted, formatting altered). Additionally,
our Supreme Court has cautioned against finding no reasonable
basis for trial counsel’s actions in the absence of supporting
evidence. The fact that an appellate court, reviewing a cold trial
record, cannot prognosticate a reasonable basis for a particular
failure . . . does not necessarily prove that an objectively
reasonable basis was lacking.
Id. at 783-84 (citations and quotation marks omitted).
Here, the PCRA court addressed the reasonable basis prong as follows:
In this case, there was no testimony whatsoever as to why [trial]
counsel chose not to call the additional character witnesses.
During the trial, [Appellant] called two character witnesses. These
character witnesses were called to bolster the testimony of
[Appellant] that the victim was lying. The testimony also
bolstered [Appellant’s] claim that the incident involving the victim
was in self-defense.
* * *
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The [PCRA] court never heard from trial counsel as to why he did
not call the other witnesses. While they may have been present,
able and willing to testify, [trial] counsel chose not to call them.
Without hearing from trial counsel under the circumstances, the
[PCRA] court cannot conclude that the course of conduct pursued
by counsel did not have some reasonable basis designed to
effectuate [Appellant’s] interests. Accordingly, [Appellant’s] claim
fails in this regard.
PCRA Ct. Op. & Order at 8-9.
Our review of the record confirms that Appellant did not call trial counsel
as a witness at the PCRA hearing to elicit testimony about his trial strategy.
As noted previously, the decision on whether to call witnesses is a matter of
trial strategy, and the failure to call a witness is not per se ineffective
assistance of counsel. See Michaud, 70 A.3d at 868. Therefore, because
Appellant failed to present any evidence with respect to the reasonable basis
prong of the ineffectiveness test, his claim must fail. See Koehler, 36 A.3d
at 146-47; Jones, 596 A.2d at 888-89. Likewise, we discern no error of law
in the PCRA court’s conclusion that in the absence of any evidence, it could
not conclude that trial counsel lacked a reasonable basis for his actions. See
Reyes-Rodriguez, 111 A.3d at 783-84. Therefore, Appellant is not entitled
to relief. See Sandusky, 203 A.3d at 1044 (the failure to prove one prong
of ineffectiveness test requires a rejection of the ineffectiveness claim). For
these reasons, we affirm the trial court’s order denying relief under the PCRA.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2022
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