Com. v. McCowin, S. ( 2017 )

J-S30020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SHAMAR ALMAR MCCOWIN
Appellant No. 1809 MDA 2016
Appeal from the PCRA Order October 4, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003715-2013
BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JUNE 27, 2017
Appellant, Shamar Almar McCowin, appeals from the order entered
October 4, 2016, denying his petition for collateral relief filed under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. Additionally, Appellant’s
appointed counsel, Heather A. Reiner, Esquire, has filed a petition to
withdraw and accompanying no-merit letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). We grant counsel’s petition to
withdraw and affirm.
In February 2014, a jury convicted Appellant of second degree murder,
robbery, and criminal conspiracy.1 In March 2014, Appellant was sentenced
____________________________________________
1
See 18 Pa.C.S. §§ 2502(b), 3701, and 907, respectively.
J-S30020-17
to life imprisonment. Appellant filed a post-sentence motion, which the
court denied.
Appellant timely appealed, but the appeal was dismissed by this Court
for failure to comply with Pa.R.A.P. 3517. See Order, 9/25/14, 1318 EDA
2014. The trial court reinstated Appellant’s direct appeal rights, as the
failure to comply with Pa.R.A.P. 3517 was due to a miscommunication
between the trial court and appointed counsel. See PCRA Court Opinion
(PCO), 11/30/16, at 1-2. Appellant timely appealed, and his judgment of
sentence was affirmed by this Court. See Commonwealth v. McCowin,
134 A.3d 489 (Pa. Super. 2015). Appellant did not pursue review in the
Pennsylvania Supreme Court.
In March 2016, Appellant timely filed a petition seeking post-conviction
relief. Counsel was appointed and filed an amended petition on Appellant’s
behalf. Following a hearing at which Appellant and trial counsel Marc Semke
testified, the court dismissed Appellant’s petition.2
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The PCRA court issued a
responsive opinion.
____________________________________________
2
The trial court notes that the hearing was held on October 4, 2016, despite
the fact that the transcript erroneously lists the date of the hearing as
November 3, 2016. See PCO at 2.
-2-
J-S30020-17
Counsel notes the following issues were raised in the petition and
preserved for appellate review:
1. The PCRA court committed an error of law when it denied
relief on the basis that Appellant’s trial counsel [failed] to call
Albert McCowin as an alibi witness at trial.
2. The PCRA court committed an error of law when it denied
relief on the basis that appellate counsel was ineffective for
failing to raise the lower court’s denial of the suppression motion
in its direct appeal.
See Turner/Finley Letter, 2/1/17, at 5-6.
Prior to the consideration of Appellant’s issues, we must consider
Attorney Reiner’s request to withdraw from representation. Pursuant to
Turner/Finley, independent review of the record by competent counsel is
required before withdrawal on collateral appeal is permitted.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).
Counsel is required to submit a “no merit” letter (1) detailing the
nature and extent of his or her review; (2) listing each issue the petitioner
wished to have reviewed; and (3) providing an explanation of why the
petitioner's issues were meritless. Id. This Court then conducts its own
independent review of the record to determine whether the petition is
meritless. Id. Additionally, counsel must sent to the petitioner “(1) a copy
of the ‘no-merit’ letter/brief; (2) a copy of counsel's petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro se or by
new counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007) (citation omitted).
-3-
J-S30020-17
Our review of the record reveals that Attorney Reiner has complied
with the requirements of Pitts. She sent Appellant copies of the no-merit
letter and her petition to withdraw, and she advised him of his right to
proceed pro se or with new counsel in the event her petition was granted.
See Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). As
Attorney Reiner has complied with these requirements, we proceed to our
independent review of the record and the merits of Appellant’s claims.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) that counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “A petitioner establishes prejudice when he demonstrates that
there is a reasonable probability that, but for counsel’s unprofessional
-4-
J-S30020-17
errors, the result of the proceeding would have been different. Id. A claim
will be denied if the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
First, Appellant contends that counsel was ineffective for failure to call
alibi witnesses on his behalf, namely, Appellant’s father. See
Turner/Finley Letter at 4; see also Amended PCRA Petition, 8/4/16, at 1-
3.
The test for deciding whether counsel had a reasonable basis for
his action or inaction is whether no competent counsel would
have chosen that action or inaction, or, the alternative, not
chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client’s interests. We do not employ a
hindsight analysis in comparing trial counsel’s actions with other
efforts he may have taken.
Commonwealth v. Pander, 100 A.3d 626, 631 (Pa. Super. 2014) (en
banc) (citations omitted). To establish a claim that counsel was ineffective
for failing to investigate or call witnesses, an appellant must meet four
prongs: 1) identify the witnesses; 2) demonstrate that defense counsel knew
of the existence of those witnesses prior to trial; 3) demonstrate the
witnesses would have provided material evidence at the time of trial; and 4)
establish the manner in which the witnesses would have been helpful to his
or her case. See Commonwealth v. Poindexter, 646 A.2d 1211, 1216
(Pa. Super. 1994).
-5-
J-S30020-17
At the evidentiary hearing, Appellant testified he requested that trial
counsel present his father and brothers as alibi witnesses. See Notes of
Testimony (N.T.), 10/4/16, at 8-12. Appellant claimed these witnesses
would have testified they were with Appellant at the M&M Lounge at the time
of the crime. Id. Appellant’s father, Albert McCowin, testified that he spoke
with an investigator assisting Attorney Semke and told him that he was with
Appellant the night of the murder. Id. at 19-20. However, Attorney Semke
testified that he spoke many times with Mr. McCowin, and was never
informed of a potential alibi defense. Id. at 29-32. Attorney Semke was
concerned that calling Mr. McCowin to the stand would be detrimental to
Appellant’s defense, and ultimately, he did not call him. Id.
Here, the PCRA court found Attorney Semke’s testimony credible, and
accepted this explanation as a reasonable basis to not present the testimony
of Mr. McCowin. See PCRA Court Opinion, 10/4/16, at 2-3. We defer to the
court’s credibility determination and findings, as they are supported by the
record. See Brown, 48 A.3d at 1277. Based on the above, Appellant
cannot establish that this testimony would have been helpful to his case.
Poindexter, 646 A.2d at 1216. Further, counsel’s decision not to call
Appellant’s father and brothers as alibi witnesses had a reasonable, objective
basis. See Pander, 100 A.3d at 631. Consequently, this Court discerns no
legal error in the PCRA court’s denial of Appellant’s claim of ineffective
-6-
J-S30020-17
assistance of counsel for failure to call Appellant’s parents as alibi witnesses.
See Ragan, 923 A.2d at 1170.
Next, Appellant claims that the PCRA court committed an error of law
when it denied relief on the basis that appellate counsel was ineffective for
failing to raise the lower court’s denial of the suppression motion in its direct
appeal. See Turner/Finley Letter at 6; see also Amended PCRA Petition,
8/4/16, at 1-3. At the hearing, the parties stipulated that appellate counsel,
Korey Leslie, did not appeal the denial of the motion to suppress because he
believed the issue lacked merit. See N.T., 10/4/16, at 3.
Our standard of review when addressing a challenge to the denial of a
suppression motion “is limited to determining whether the suppression
court’s factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.” Commonwealth v.
Jones, 988 A.2d 649, 654 (Pa. 2010) (citations omitted). Where these
findings are supported by the record, we are bound by those findings and
may reverse only if the court’s legal conclusions are erroneous. Id.At the suppression hearing, Detective Travis Sowers testified that a
boot print was recovered from the scene of the crime. See N.T., 10/22/13,
at 27. Detective Sowers then went to the booking station to speak with
Appellant, who was in custody on outstanding summary warrants. Id. at
27-28. Detective Sowers asked Appellant for his boots and informed
Appellant it was in connection with a homicide investigation. Id. Appellant
-7-
J-S30020-17
stated that Detective Sowers could have the boots, and he did not want
them back. Id. Accordingly, the suppression court denied the motion,
finding 1) that Appellant was subject to a valid arrest at the time, and 2)
Detective Sowers had permission from Appellant to take the boots. Id.
Based on the above, the claim lacks arguable merit, as the
suppression court’s findings were supported by the record. See Jones, 988
A.2d at 654. Counsel cannot be ineffective for failure to raise a meritless
claim. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).
The record supports the PCRA court’s findings and its order is
otherwise free of legal error, and we agree with counsel that Appellant’s
claims lack merit. Accordingly, we grant counsel’s application to withdraw
and affirm the order of the PCRA court.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
-8-