Com. v. McCollum, S., Jr. ( 2018 )

J-S77019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
STEVE RICHARD MCCOLLUM, JR. :
: No. 288 MDA 2017
Appellant
Appeal from the PCRA Order January 11, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005177-2011
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.
DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 09, 2018
Appellant, Steve Richard McCollum, Jr., has not met his burden of
pleading and proving that the PCRA1 court erred in failing to hold an
evidentiary hearing as to his claim that trial counsel was ineffective in advising
Appellant not to testify on his own behalf at trial. Appellant neither attached
an affidavit in support of his allegations nor explained why such an affidavit
was not attached. See Pa.R.Crim.P. 902(A)(12)(b). Thus, as I would affirm
the PCRA court’s order in its entirety,2 I respectfully dissent.
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1 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
2 To the extent the Majority suggests there is merit in Appellant’s claim that
his due process rights were violated when the PCRA court denied his motion
for an extension of time to respond to the Pa.R.Crim.P. 907 notice, I disagree.
See Commonwealth v. Bond, 630 A.2d 1281 (Pa.Super. 1993). However,
I agree with the Majority that Appellant’s remaining claims are meritless.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S77019-17
It is well-settled that “[t]here is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008)
(citation omitted). In the case sub judice, the claim at issue pertains to the
ineffective assistance of counsel. Since such a claim must meet all three
prongs of the test for ineffectiveness,3 if the PCRA court can determine without
an evidentiary hearing that one of the prongs cannot be met, then no purpose
would be advanced by holding an evidentiary hearing. See id.
As the Majority indicates, in Commonwealth v. Nieves, 560 Pa. 529,
746 A.2d 1102 (2000), our Supreme Court delineated the following standard
to apply to claims that counsel was ineffective in advising a defendant not to
testify on his own behalf:
The decision of whether or not to testify on one’s own behalf is
ultimately to be made by the defendant after full consultation with
counsel. In order to sustain a claim that counsel was ineffective
for failing to advise the appellant of his rights in this regard, the
appellant must demonstrate either that counsel interfered with his
right to testify, or that counsel gave specific advice so
unreasonable as to vitiate a knowing and intelligent decision to
testify on his own behalf.
____________________________________________
3 As the Majority has cogently indicated, to prevail on a claim of
ineffectiveness, a petitioner has the burden of pleading and proving that “(1)
the underlying substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis for his or
her actions or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel’s deficient performance.” Commonwealth v. Sneed, 616
Pa. 1, 45 A.3d 1096, 1106 (2012) (citation omitted).
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Nieves, 746 A.2d at 1104 (internal citations omitted).
In the instant case, the following colloquy occurred in open court at
Appellant’s jury trial:
[TRIAL COUNSEL]: Your Honor, next to me is [Appellant].
[Appellant], you have sat through the entire trial; is that correct?
[APPELLANT]: Yes.
[TRIAL COUNSEL]: And we are about to rest our defense case,
which means that we are not going to call any additional
witnesses. However, prior to doing that, you have the opportunity
and you have the right to testify. Do you understand that?
[APPELLANT]: Yes.
[TRIAL COUNSEL]: And do you understand that the right to
testify is your right and your right alone?
[APPELLANT]: Yes.
[TRIAL COUNSEL]: And that if you wanted to testify, that I could
not stop you; [the district attorney] could not stop you; and [the
trial judge] could not prevent you from testifying, if that is what
your choice ultimately is.
[APPELLANT]: Yes.
[TRIAL COUNSEL]: Now, you and I just had a very brief
discussion; is that correct?
[APPELLANT]: Yes.
[TRIAL COUNSEL]: And during our discussion I gave you—I’m
not going to say what my advice was, but I gave you certain
advice; is that correct?
[APPELLANT]: Yes.
[TRIAL COUNSEL]: Are you under the influence of any drugs or
alcohol?
[APPELLANT]: No, I’m not.
[TRIAL COUNSEL]: Have there been any threats or promises
made to you prior to you deciding whether you wish to remain
silent or you wish to testify?
[APPELLANT]: No.
[TRIAL COUNSEL]: What—do you wish to testify?
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[APPELLANT]: No, I do not.
THE COURT: [District attorney], any questions on this colloquy?
[DISTRIC ATTORNEY]: I don’t think there’s anything else to
cover.
THE COURT: [Appellant], how far did you go in school?
[APPELLANT]: GED.
THE COURT: Okay. Do you---
[APPELLANT]: ’98.
THE COURT: Do you understand, read, and write the English
language?
[APPELLANT]: Yes, I do.
THE COURT: Is there anything about what [trial counsel] said to
you or that I’m saying to you now that you don’t understand?
[APPELLANT]: No, there isn’t.
N.T., 10/17/12, at 529-32.
In the case sub judice, Appellant does not allege interference with his
right to testify under the first prong of the test set forth in Nieves, and indeed,
based on the aforementioned, there would be no arguable merit to such a
claim. However, Appellant claims that trial counsel’s specific advice was so
unreasonable as to vitiate a knowing and intelligent decision not to testify on
his own behalf. In this vein, he avers that trial counsel told him that, if he
testified, the Commonwealth could impeach him with his prior firearms and
aggravated assault convictions.
Assuming, arguendo, that pursuant to Nieves, such advice, in certain
circumstances, may be erroneous, in this case there is no evidence of such
advice on the record. Simply put, although there is a reference on the record
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to trial counsel providing advice to Appellant, there is no indication on the
record as to the substance of that advice. Further, Appellant failed to provide
an affidavit from trial counsel to support his allegation as to the substance of
the advice or explain the reason for the affidavit’s absence. See Pa.R.Crim.P.
902(A)(12)(b) (PCRA petition shall contain facts supporting each ground for
relief; if supporting facts do not appear of record “affidavits, documents and
other evidence showing such facts” to be identified). See also
Commonwealth v. Cousar, --- Pa. ---, 154 A.3d 287, 300 (2017) (“[T]his
Court has dismissed claims of ineffectiveness where [the] appellant has not
provided counsel’s affidavit; [however,] we have indicated we may overlook
the failure where [the] appellant adequately explains why he did not submit
it.”) (citation omitted)).
Thus, here the PCRA court did not abuse its discretion in dismissing
Appellant’s claim without an evidentiary hearing. Accordingly, as I would
affirm the PCRA court’s order in its entirety, I respectfully dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2018
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