Com. v. Crawford, H. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HOLLY ANN CRAWFORD :
:
Appellant : No. 903 MDA 2020
Appeal from the PCRA Order Entered June 24, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002431-2014
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: JUNE 3, 2021
Holly Ann Crawford (Appellant) appeals from the order denying her first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
Appellant and her boyfriend, James Roche, were convicted of murdering
Appellant’s former boyfriend, Ronald “Barney” Evans, and his son, Jeffrey
Evans. In a prior decision, we summarized the factual and procedural
background of this case as follows:
Appellant admitted that on April 21, 2014, after a night of drinking
and arguing [with Roche] about Appellant’s previous relationship
with Ronald Evans, Roche stated his intention to kill Ronald Evans.
Appellant agreed to join Roche, and added that they should kill
Jeffrey Evans as well. Roche and Appellant left their home with
two firearms and returned approximately one hour later.
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* Retired Senior Judge assigned to the Superior Court.
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Police later found Ronald Evans and Jeffrey Evans in their home
shot to death. A broken portion of the trigger guard police
recovered from the Evans’ home belonged to one of the firearms
Appellant and Roche had taken from their own home, a .22 caliber
rifle. When police attempted to arrest Appellant and Roche, they
both fled into the woods near their home with seven knives and a
wooden display case taken from the Evans’ residence, as well as
a loaded .44 caliber revolver.
After initially denying any involvement in the shooting and
denying knowing Ronald and Jeffrey Evans, Appellant eventually
admitted to being present at the time of the shooting. Appellant
told police that she acted as a decoy when Ronald Evans initially
refused to answer the door for Roche.
In addition, witnesses described Appellant’s suspicious behaviors
indicating her consciousness of guilt, including plans to flee to
Philadelphia using her mother’s vehicle and bank card, fleeing into
the woods with Roche after Appellant’s mother called the police,
and statements to family members to watch the news because
she “did something real bad.” Trial Court Opinion, filed 3/1/16,
at 15. Appellant admitted to her daughter that she shot Ronald
and Jeffrey Evans in the head and that she had no remorse,
stating “[i]t was just like shooting a deer.” Id. at 16.
* * *
A jury trial ensued, at which numerous witnesses testified. . . .
On September 23, 2015, the jury convicted Appellant of two
counts each of First–Degree Murder and Criminal Conspiracy. On
December 4, 2015, the trial court imposed a term of life
imprisonment.
Commonwealth v. Crawford, 159 A.3d 1003, 2016 WL 7239827 at *1-2
(Pa. Super. Dec. 14, 2016) (unpublished memorandum).
Appellant filed a direct appeal, and the Superior Court affirmed her
judgment of sentence on December 14, 2016; the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on May 23, 2017.
Commonwealth v. Crawford, 169 A.3d 545 (Pa. 2017) (Table).
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On June 12, 2017, Appellant filed the underlying timely pro se PCRA
petition. The PCRA court appointed counsel, who filed an amended petition
on March 2, 2018. On April 30, 2018, Appellant, through counsel, filed a
motion for a Grazier1 hearing. The PCRA court held a Grazier hearing on
May 10, 2018, and issued an order that same day finding Appellant competent
to waive counsel and permitting her to proceed pro se with appointed counsel
serving as standby counsel. On June 15, 2018, Appellant filed a pro se brief
in support of her PCRA petition. The Commonwealth filed a reply brief on
October 10, 2018. On April 16, 2019, Appellant retained private counsel
(PCRA Counsel). On November 7, 2019, PCRA Counsel filed a motion
requesting permission to file an amended petition. The PCRA court granted
the motion and PCRA Counsel filed an amended petition on December 3, 2019.
The Commonwealth filed a reply in opposition.
On February 24, 2020, the PCRA court held an evidentiary hearing to
address Appellant’s claims of ineffective assistance of trial counsel. On June
24, 2020, the PCRA court entered an order denying relief. Appellant filed this
timely appeal. The PCRA court did not order a Rule 1925(b) statement of
questions presented. See Pa.R.A.P. 1925.
On appeal, Appellant presents the following two issues for review:
1. Did the PCRA [c]ourt err by denying [Appellant’s] claim of
ineffective assistance of trial counsel for failing to call her
alleged co-conspirator to testify on her behalf and thus
abandoning [Appellant’s] chosen defense?
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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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2. Did the PCRA [c]ourt err by denying [Appellant’s] claim of
ineffective assistance of trial counsel where her defense team
failed to move for a mistrial after the prosecutor said during
opening and closing arguments that [Appellant] fabricated her
defense after she met with her lawyers, particularly where such
an assertion was not supported by any evidence in the record?
Appellant’s Brief at 2 (issues transposed for ease of discussion).
Preliminarily, we recognize:
This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
In both of her issues, Appellant assails the effectiveness of trial counsel.
Our Supreme Court has explained:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d
655, 664 (Pa. 2007). To overcome this presumption, a petitioner
must establish that: (1) the underlying substantive claim has
arguable 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,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on appeal.
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See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
2007) (explaining that “appellants continue to bear the burden of
pleading and proving each of the Pierce elements on appeal to this
Court”). A petitioner’s failure to satisfy any prong of this test is
fatal to the claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified).
In her first issue, Appellant argues trial counsel was ineffective for failing
to call her co-defendant and boyfriend, James Roche, as a defense witness.
Appellant asserts that Roche’s testimony “would have confirmed that
[Appellant] had no role in the homicides; that [Roche’s] actions were taken of
his own volition; and that [Appellant] never had or evinced the intent to kill
either of the Evans’.” Appellant’s Brief at 19.
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements [ ] by establishing 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.
Prejudice in this respect requires the petitioner to “show how the
uncalled witnesses’ testimony would have been beneficial under
the circumstances of the case.” Therefore, the petitioner’s burden
is to show that testimony provided by the uncalled witnesses
“would have been helpful to the defense.”
Commonwealth v. Selenski, 228 A.3d 8, 16 (Pa. Super. 2020) (citations
omitted).
Upon review, we find no merit to this issue. Appellant has met the first,
third and fourth prongs stated above; Roche existed, trial counsel knew of his
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existence, and Roche expressed a willingness to testify.2 However, Appellant
cannot satisfy the second and fifth prongs. Regarding the second prong – the
witness’s availability to testify – Attorney Paul Galante, Roche’s trial counsel,
testified at the PCRA hearing that prior to trial, Appellant’s trial counsel
contacted him seeking permission to interview Roche for Appellant’s defense.
N.T., 2/24/20, at 79. Attorney Galante denied the request after explaining to
Roche it was a “bad idea,” because Roche testifying at Appellant’s trial would
be “tantamount to pleading guilty to the charge . . . .” Id. Further, Attorney
Galante testified that had trial counsel subpoenaed Roche to testify at
Appellant’s trial, he would have advised Roche to assert his Fifth Amendment
right against self-incrimination. Id. at 80. Attorney Galante confirmed that
Roche agreed with his legal advice and trial strategies. Id.
Likewise, Appellant cannot satisfy the fifth prong – that the absence of
testimony was prejudicial. In addition to finding Roche’s testimony lacking in
credibility, see PCRA Court Opinion, 6/24/20, at 5 (unnumbered), the court
determined Roche’s testimony “would have been repetitive of [Appellant’s]
own testimony and could only have been used to corroborate [Appellant’s]
own testimony.” Id.
Finally, Appellant’s trial counsel testified that he strategically did not call
Roche as a witness at trial, stating “there were a number of interrelated
charges involving criminal conspiracy that made me scared to call Mr. Roche.”
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2 Roche testified at the PCRA hearing that he would have testified on behalf of
Appellant at trial. See N.T., 2/24/20, at 10, 14.
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N.T., 2/24/20, at 33. Appellant’s trial counsel employed a defense strategy
he reasoned would put Appellant in the best position to defend the criminal
charges. In fact, the theory Appellant attempted to advance at trial was that
Roche “was an abusive, domineering boyfriend.” Id. at 48. To advance this
theory, trial counsel testified that he tried “to distance [Appellant and Roche]
from each other and [her] involvement in the crime.” Id. Accordingly, a
reasonable basis existed for trial counsel’s defense strategy in not calling
Roche as a witness. Thus, the PCRA court did not abuse its discretion in
rejecting this claim of ineffectiveness.
In her second issue, Appellant argues trial counsel was ineffective for
failing to object to three remarks made by the prosecutor during opening
statements and closing arguments. Appellant contends the “prosecutor’s
thrice uttered remarks cannot be viewed in a vacuum. Any chance [Appellant]
had at a fair evaluation of her testimony was destroyed by the prosecutor’s
explicit allegation that she fabricated her testimony after she met with her
lawyers.” Appellant’s Brief at 16.
Two of the remarks Appellant challenges were made by the prosecutor
during the prosecutor’s opening statement. He said:
You’re going to hear from [Appellant’s] friend Margaret Moran,
Maggie, her cell mate, somebody who she had enrolled [sic] as a
confidant while at the jail. They became friendly with each other;
and they told things about their lives, personal things; and,
[Appellant] tells her three versions of what happened that night.
* * *
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The second version, you’ll hear from Margaret Moran that this is
after [Appellant] has an attorney. Barney has a gun, but he
didn’t point it at anybody. [Appellant] lures Barney out of the
house. Barney then threatens to kill either [Appellant] or [Roche].
So, [Roche] shoots him, and they went there to retrieve
[Appellant’s] medication. Again self defense? Justification? She
has an attorney.
N.T., 9/15/15, at 34-35 (emphasis added).
The third remark occurred during closing arguments. The prosecutor
stated:
Soon after, the son, Jeff, appears and does something. He, either,
turns further into the house, and they’re concerned he’s either
going for a phone or a weapon, and Roche shoots Jeff. He falls.
He checks to see if they’re dead. He said, “Holy fuck. They’re
dead.”
He takes things from around the house to make it look like a
robbery, which they then abandoned this theory once they
get lawyers. Now they’re going for a mental deficit; drinking,
drugs. They need a reason why they were there, the Klonopin,
justification.
N.T., 9/21/15, at 1076 (emphasis added).
Following the above remark, Appellant’s trial counsel objected, stating,
inter alia, “It’s about a Defendant’s right to Counsel.” Id. at 1077. The trial
court did not expressly rule on the objection; however, the court told the
prosecutor, “I believe[] you were commenting on what [Moran] is alleged to
have said, but tone it down. Stay away from that area,” to which the
prosecutor responded, “Okay.” Id. Trial counsel subsequently moved for a
mistrial, and the court directed the stenographer to transcribe the relevant
statements and distribute copies to trial counsel and the prosecutor. Id. at
1085-86. After reviewing the prosecutor’s statements, trial counsel withdrew
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his motion for a mistrial, but asked the court to issue a cautionary instruction3
during the jury charge. The trial court issued the following instruction to the
jury:
I’m instructing you that the Assistant District Attorney did not
suggest, and you may not infer, that Defense Counsel acted
unethically or inappropriately or were requested to engage in any
misconduct by the [Appellant].
The reference to lawyers, was allegedly made by the [Appellant]
to Margaret Moran, and you may not infer anything adverse about
[Appellant] obtaining lawyers, as it is her Constitutional Right to
present a defense.
N.T., 9/22/15, at 1097-98.
Pertinently, our Supreme Court has explained:
Comments by a prosecutor constitute reversible error only where
their unavoidable effect is to prejudice the jury, forming in their
minds a fixed bias and hostility toward the defendant such that
they could not weigh the evidence objectively and render a fair
verdict.
Commonwealth v. Tedford, 960 A.2d 1, 33 (Pa. 2008) (citation omitted).
A “prosecutor must be free to present his or her arguments with logical
force and vigor,” and, as such, this Court has permitted prosecutorial
advocacy “as long as there is a reasonable basis in the record for the
[prosecutor’s] comments.” Commonwealth v. Robinson, 864 A.2d 460,
516–17 (Pa. 2004). Prosecutorial comments based on the evidence or
reasonable inferences therefrom are not objectionable, nor are comments that
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3 The Commonwealth drafted the cautionary instruction, which was edited by
Appellant’s trial counsel. Trial counsel indicated on the record that he was
satisfied with the agreed-upon instruction. N.T., 9/21/15, at 1088.
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merely constitute oratorical flair. Tedford, 960 A.2d at 33. Further, the
prosecution must be permitted to respond to defense counsel’s arguments.
Id. Any challenged prosecutorial comment must not be viewed in isolation,
but must be considered in the context in which it was offered. Robinson, 864
A.2d at 517. It is improper for a prosecutor to offer his or her personal opinion
as to the guilt of the accused or the credibility of any testimony.
Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa. 2004). However, it is
well within the bounds of proper advocacy for the prosecutor to summarize
the facts of the case and ask the jury to find the accused guilty based on those
facts. See id.Upon review, we find no merit to Appellant’s second issue. The trial
court instructed the jury that opening statements and argument of counsel do
not constitute evidence. N.T., 9/15/15, at 13-14. “The jury is presumed to
have followed the court’s instructions.” Commonwealth v. Flor, 998 A.2d
606, 632 (Pa. 2010). In addition, we agree with the PCRA court that the
prosecutor’s references to “lawyers” was used to attack Appellant’s credibility,
not to claim that trial counsel collaborated with Appellant in fabricating a
defense or to imply guilt because Appellant retained counsel. See PCRA Court
Opinion, 6/24/20, at 13 (“The Prosecutor’s alleged misstatements were
permissible attacks on the [Appellant’s] credibility, based on Ms. Moran’s
testimony. At no point did Ms. Moran or the Prosecutor claim that trial counsel
collaborated with [Appellant] in fabricating a defense, nor was it the
Prosecutor’s intention.”).
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Further, Appellant’s trial counsel advocated and advised as to curative
instructions to avoid any adverse inference or prejudice to Appellant. See
Commonwealth v. Harris, 884 A.2d 920, 931 (Pa. Super. 2005) (citing
Commonwealth v. Baez, 720 A.2d 711, 729 (Pa. 1998) (a cautionary
instruction can cure a claim of prosecutorial misconduct). Under these
circumstances, trial counsel’s actions in response to the prosecutor’s remarks
were appropriate and reasonable. Thus, this claim of trial counsel’s
ineffectiveness does not merit relief.
For the above reasons, the PCRA court did not abuse its discretion in
rejecting Appellant’s claims of trial counsel’s ineffectiveness and denying
relief. Accordingly, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/03/2021
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