Com. v. Smithson, W.

J-S74022-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM FRANCIS SMITHSON, :
:
Appellant : No. 578 EDA 2014
Appeal from the PCRA Order January 15, 2014,
Court of Common Pleas, Delaware County,
Criminal Division at No. CP-23-CR-0006454-2006
BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 22, 2014
William Francis Smithson (“Smithson”) appeals from the order entered
on January 15, 2014 by the Court of Common Pleas of Delaware County,
Criminal Division, dismissing his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Appointed counsel
has filed a “no-merit” letter and requested leave to withdraw from
representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). After careful review, we affirm the PCRA court’s order and grant
counsel’s petition to withdraw.
Because Smithson seeks to raise only ineffective assistance of counsel
claims in this appeal, a detailed recitation of the facts underlying his
*Retired Senior Judge assigned to the Superior Court.
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convictions is unnecessary. The PCRA court provided the following brief
overview of the factual history of this case:
Jason Shephard [(“Shephard”)], a young [23-year-
old] from Cavalier, North Dakota, and a student at
Northern State University in Aberdeen, South Dakota
… was in the middle of a [six]-month internship at
Daktronics and as a part of this internship, he was
required to travel to Pennsylvania. It was in
Pennsylvania where the tragic events of his death
occurred. In August and again in September of
2006, [Shephard] drove from South Dakota to the
suburbs of Philadelphia with a trailer, carrying
Daktronics equipment for prospective sales and
service at the Daktronics, Edgmont, Delaware
County, Pennsylvania office. Daktronics is a South
Dakota based sports scoreboard manufacturer, with
a sales office in Edgmont, Delaware County.
On a September night in 2006, following a business
dinner and a co-worker’s invitation to his house, …
[Shephard] was lured to [a] party by [Smithson,]
who drugged, kidnapped, assaulted, nearly raped
and strangled him to death … . After [Shephard]
was tragically cut down in the prime of his life,
[Smithson] tampered with physical evidence, abused
[Shephard]’s corpse and spent nearly three days
lying to his coworkers, hotel staff, and the police.
PCRA Court Opinion, 3/25/14, at 7.
On September 21, 2006, police arrested Smithson in connection with
Shephard’s murder. On November 17, 2008, Smithson’s jury trial began.
G. Guy Smith, Esquire (“Trial Counsel”) represented Smithson at his trial.
Following the four-day trial, the jury found Smithson guilty of murder of the
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first degree,1 aggravated assault,2 attempted rape,3 kidnapping,4
unauthorized administration of intoxicant,5 tampering with or fabricating
physical evidence,6 abuse of corpse,7 knowingly or intentionally possessing a
controlled substance,8 and the use of, or possession with intent to use, drug
paraphernalia.9 On January 30, 2009, the trial court sentenced Smithson to
life in prison without parole. The PCRA court summarized the remaining
procedural history of this case as follows:
Following the [s]entencing, [Smithson] informed this
[c]ourt that he was without resources to retain an
attorney for the purposes of filing and litigating
[post-sentence] [m]otions and/or an [a]ppeal;
therefore, on February 4, 2009, this [c]ourt
[o]rdered the Office of the Public Defender of
Delaware County to represent [Smithson] for his
[post-trial] [m]otions and/or [a]ppeal. On February
27, 2009, [Smithson] filed a timely Notice of Appeal
to the Superior Court. On March 3, 2009, this
[c]ourt sent to Appellate Counsel an Order to file a
1
18 Pa.C.S.A. § 2502(a).
2
18 Pa.C.S.A. § 2702(a)(1).
3
18 Pa.C.S.A. §§ 901, 3121(a)(1).
4
18 Pa.C.S.A. § 2901.
5
18 Pa.C.S.A. § 2714.
6
18 Pa.C.S.A. § 4910.
7
18 Pa.C.S.A. § 5510.
8
35 P.S. § 780-113(16).
9
35 P.S. § 780-113(32).
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“Concise Statement of the Matters Complained of on
Appeal,” pursuant to Pa.R.A.P. 1925(b).
* * *
The Pennsylvania Superior Court affirmed this
[c]ourt’s judgment of sentence by Order and
memorandum dated December 17, 2009. (Pa.
Super. Ct. Dkt. No. 696 EDA 2009). Thereafter,
[Smithson] sought a grant of Allowance of Appeal
from the Pennsylvania Supreme Court, which was
denied by per curiam order dated January 13, 2011.
(Pa. Supreme Ct. Dkt. No. 37 MAL 2010).
On November 3, 2011, [Smithson] filed a timely pro
se PCRA petition and memorandum of law. On
November 17, 2011, this [c]ourt appointed Stephen
Molineux, Esquire to assist [Smithson] with respect
to his pending PCRA litigation. After reviewing the
case, Mr. Molineux determined that [Smithson]’s
claims were meritless and on March 5, 2012, Mr.
Molineux filed a no-merit letter in which he
articulated why [Smithson]’s claims lacked arguable
merit. [Smithson] then requested permission to
proceed pro se but subsequently sought new court
appointed counsel. This [c]ourt subsequently
appointed Henry DiBenedetto-Forrest, Esquire, to
serve as PCRA counsel. Mr. Forrest was granted
multiple continuances prior to the evidentiary
hearing in order to file an amended PCRA petition.
On September 10, 2013, this [c]ourt held the PCRA
Hearing.
* * *
Following the Hearing on the PCRA, wherein [Trial
Counsel] was the sole witness, this [c]ourt requested
Memoranda of Law and Proposed Findings of Fact
and Conclusions of Law from both [c]ounsels. On
January 14, 2014, this [c]ourt issued an Order
[d]enying the PCRA Petition. On February 12, 2014,
[Smithson] filed his timely [a]ppeal and on the same
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day[,] this [c]ourt requested a Concise Statement of
Matters Complained of on Appeal. [Smithson] filed a
timely Concise Statement of Matters Complained of
on Appeal on March 5, 2014. [Smithson]’s Concise
Statement raises the same six issues that [he] raised
in [his] PCRA Petition and at the PCRA Hearing.
Id. at 3-7.
On appeal, Smithson seeks to raise the following six issues for our
review and determination:
1. Whether [Trial Counsel] rendered ineffective
assistance of counsel, as guaranteed by the
United States and Pennsylvania Constitutions,
by virtue of counsel’s alleged failure to conduct
any serious investigation of Fen Bruce
Covington, the other person who was present
at [Smithson]’s residence when the victim was
killed, relative to his role in the homicide,
which ineffectiveness on the part of counsel
“so undermined the truth determining process
such that no reliable adjudication of guilt or
innocence could have taken place?”
2. Whether [Trial Counsel] rendered ineffective
assistance of counsel, as guaranteed by the
United States and Pennsylvania Constitutions,
by virtue of counsel’s alleged failure to object
to the testimony of Dr. Cohn, whose hearsay
testimony allowed the improper admission of
Exhibit C-20 at trial, the lab report from Drug
Scan which indicated the presence of GHB in
the victim’s blood, which ineffectiveness on the
part of counsel “so undermined the truth
determining process such that no reliable
adjudication of guilt or innocence could have
taken place?”
3. Whether [Trial Counsel] rendered ineffective
assistance of counsel, as guaranteed by the
United States and Pennsylvania Constitutions,
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by virtue of counsel’s alleged failure to object
to the testimony of John Picciano, a forensic
scientist, as to the findings, examination and
conclusions presented by Jennifer Badger, a
serologist, whose report [Exhibit C-26 at trial]
was admitted without her being available for
cross-examination, which ineffectiveness on
the part of counsel “so undermined the truth
determining process such that no reliable
adjudication of guilt or innocence could have
taken place?”
4. Whether [Trial Counsel] rendered ineffective
assistance of counsel, as guaranteed by the
United States and Pennsylvania Constitutions,
by virtue of counsel’s alleged error to allow the
hearsay statements of Covington to be read
into the record by the [Commonwealth]’s lead
investigator, Detective McCunney, resulting in
alleged improper hearsay, which
ineffectiveness on the part of counsel “so
undermined the truth determining process
such that no reliable adjudication of guilt or
innocence could have taken place?”
5. Whether [Trial Counsel] rendered ineffective
assistance of counsel, as guaranteed by the
United States and Pennsylvania Constitutions,
by virtue of counsel’s alleged error to allow the
hearsay statements of Jennifer Smithson to be
read into the record, resulting in alleged
improper hearsay, which ineffectiveness on the
part of counsel “so undermined the truth
determining process such that no reliable
adjudication of guilt or innocence could have
taken place?”
6. Whether [Trial Counsel] rendered ineffective
assistance of counsel, as guaranteed by the
United States and Pennsylvania Constitutions,
by virtue of counsel’s alleged failure to
investigate and cross-examine Daniel Hall, a
material witness for [the] Commonwealth, to
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demonstrate that his statements to law
enforcement were incorrect because of his
excessive use of crystal meth at or around the
time of his observations and communications
with [Smithson], which ineffectiveness on the
part of counsel “so undermined the truth
determining process such that no reliable
adjudication of guilt or innocence could have
taken place?”
Turner/Finley Brief at 5-6.
Before we address the merits of this appeal, we must determine
whether counsel’s filing meets the requirements of Turner/Finley.
Compliance with Turner/Finley procedure requires the following:
[PCRA] counsel must … submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, [1]
detailing the nature and extent of counsel’s diligent
review of the case, [2] listing the issues which the
petitioner wants to have reviewed, [3] explaining
why and how those issues lack merit, and [4]
requesting permission to withdraw.
Counsel must also send 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.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not
reach the merits of the underlying claims but, rather,
will merely deny counsel’s request to withdraw.
Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper
Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-
merit letter that do satisfy the technical demands of
Turner/Finley, the [court] must then conduct its
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own review of the merits of the case. If the court
agrees with counsel that the claims are without
merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (internal
citations omitted).
Here, PCRA counsel filed a “no-merit” letter with this Court that
detailed the nature and extent of his diligent review of the case,
Turner/Finley Brief at 1-4, listed the issues that Smithson wants to have
reviewed, Id. at 5-6, explained why and how those issues lack merit, Id. at
6-19, and requested permission to withdraw, Application to Withdraw
Appearance, 8/26/14, at 1-2. PCRA counsel also sent Smithson a copy of
the “no-merit” letter, a copy of PCRA counsel’s petition to withdraw, and a
statement advising Smithson of the right to proceed pro se or by new
counsel. Thus, the record reflects that PCRA counsel has submitted a
petition and “no-merit” letter that satisfy the technical demands of
Turner/Finley. We will therefore conduct our own review of the merits of
the case.10
10
On September 3, 2014, Smithson filed a response to PCRA counsel’s
Turner/Finley letter wherein he lambastes PCRA counsel’s decision to file a
Turner/Finley letter and PCRA counsel’s stewardship of the case. See
Objection by Appellant to Counsel Filing an Application to Withdraw
Appearance and No Merit Letter, 9/3/14, at 1-3. Smithson asserts that
PCRA counsel is ineffective for filing a “no-merit” letter and that if he desired
to withdraw, he should have done so before the PCRA court. Id. at 2-3.
Smithson also contends that there are meritorious Confrontation Clause
issues present in this case. Id. at 3. We will address the Confrontation
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We review the denial of PCRA relief by “examining whether the PCRA
court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most
favorable to the party who prevailed in the PCRA court proceeding.” Id.“Further, we afford great deference to the factual findings of the PCRA court
and will not disturb those findings unless they have no support in the
record.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013)
(quotations omitted), appeal denied, 93 A.3d 463 (Pa. 2014). Likewise, “the
PCRA court’s credibility determinations are binding on this Court, where
there is record support for those determinations.” Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
In reviewing an allegation of ineffective assistance of counsel, we
begin with the assumption that counsel was effective. Commonwealth v.
Pierce, 527 A.2d 973, 975 (Pa. 1987). Our Supreme Court has stated that
in order “[t]o merit relief based on an ineffectiveness claim under the PCRA,
a petitioner must show that such ineffectiveness ‘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.’”
Clause issues in our review of the case as they are part of the issues PCRA
counsel lists as those Smithson wants our Court to review. See
Turner/Finley Brief at 5-6.
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Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008) (quoting
42 Pa.C.S.A. § 9543(a)(2)(ii)). This standard requires “a petitioner to prove
that: (1) the underlying claim is of arguable merit; (2) counsel’s
performance lacked a reasonable basis; and (3) the ineffectiveness of
counsel caused the petitioner prejudice.” Id. Regarding the second prong
of the ineffective assistance of counsel test, this Court has stated the
following:
As a general rule, matters of trial strategy are left to
the determination of counsel, and a defendant is not
entitled to appellate relief simply because a chosen
strategy is unsuccessful. Strategic choices made
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. … Accordingly, before a
claim of ineffectiveness can be sustained, it must be
determined that, in light of all the alternatives
available to counsel, the strategy actually employed
was so unreasonable that no competent lawyer
would have chosen it. We inquire whether counsel
made an informed choice, which at the time the
decision was made reasonably could have been
considered to advance and protect defendant’s
interests. Thus, counsel’s assistance is deemed
constitutionally effective once we are able to
conclude the particular course chosen by counsel had
some reasonable basis designated to effectuate his
client’s interests. The test is not whether other
alternatives were more reasonable, employing a
hindsight evaluation of the record.
Commonwealth v. Buska, 655 A.2d 576, 582-83 (Pa. Super. 1995)
(quotations and citations omitted). Our Supreme Court has held that to
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demonstrate prejudice in an ineffective assistance of counsel claim, “the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).
The failure by the petitioner “to satisfy any one of the three prongs of the
test for ineffectiveness requires rejection of the claim.” Collins, 957 A.2d at
244.
The first issue Smithson raises on appeal is that the PCRA court erred
in not concluding “that [Trial Counsel] was ineffective for failing to conduct
any serious investigation of Fen Bruce Covington (“Covington”), who was
present at [Smithson]’s home when Shephard died.” Turner/Finley Brief at
14. The PCRA court determined that this claim was without merit, finding
that Trial Counsel “went over and above what a [trial counsel] is required to
do when investigating and mounting a defense.” PCRA Court Opinion,
3/25/14, at 27. We agree.
The certified record on appeal supports the trial court’s determination.
Our Supreme Court has held that “[c]ounsel has a general duty to undertake
reasonable investigations or make reasonable decisions that render
particular investigations unnecessary.” Commonwealth v. Johnson,
966 A.2d 523, 535 (Pa. 2009). Here, Trial Counsel’s defense theory was
that Covington was the actual perpetrator of Shephard’s murder.
Turner/Finley Brief at 14. The transcript of Trial Counsel’s testimony at
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Smithson’s PCRA hearing reveals that he conducted a detailed and thorough
investigation into Covington. Trial Counsel hired Donald Fredericks
(“Fredericks”), a licensed private investigator, to assist him in finding out
everything he could about Covington. N.T., 9/10/13, at 82-83. Fredericks
investigated where Covington lived, where his wife and family lived and
worked, his former affiliations with the Mormon Church, his possible ties to
the homicide of an intern where he formerly worked, and his sexual activity.
Id. at 82-84. Trial Counsel testified that both he and Fredericks staked out
Covington’s apartment. Id. at 83. Trial Counsel reported that he was able
to prove that Covington had lied about not being at Smithson’s home the
night Shephard died. Id. at 88-90. Trial Counsel went so far as to state
that “… I chased Covington harder than anybody I’ve chased … in my life.”
Id. at 85. Trial Counsel further testified that he investigated everything
Smithson told him about Covington. Id. at 114. Based on Trial Counsel’s
testimony, we find no error with the PCRA court’s determination that Trial
Counsel conducted a reasonable investigation of Covington. Accordingly, the
PCRA court correctly determined Smithson’s first issue is without merit.
The second issue Smithson raises on appeal is that the PCRA court
erred by failing to conclude that Trial Counsel was ineffective for not
objecting to the Commonwealth’s introduction of the Drug Scan Toxicology
Report (“the Toxicology Report”). Turner/Finley Brief at 15. Smithson
contends that Trial Counsel should have objected to permitting Dr. Richard
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Cohn (“Dr. Cohn”) to testify about the Toxicology Report instead of Dr. Mark
Lichtenwalner (“Dr. Lichtenwalner”). Id. Dr. Lichtenwalner is the forensic
toxicologist who actually performed the testing and Dr. Cohn is the
Laboratory Director at Drug Scan, Inc., and Dr. Lichtenwalner’s supervisor.
N.T., 11/19/08, at 35, 37, 63. Smithson argues that Dr. Cohn’s testimony
violated his Sixth Amendment right to confront the witnesses against him
under Crawford v. Washington, 541 U.S. 36 (2004). Turner/Finley Brief
at 15.
In Crawford, the United States Supreme Court held that
“[t]estimonial statements of witnesses absent from trial have been admitted
only where the declarant is unavailable, and only where the defendant has
had a prior opportunity to cross-examine.” Crawford, 541 U.S.at 59. In
2009, the Supreme Court relied on Crawford in concluding that lab results
admitted into evidence to prove an element of a crime are testimonial
statements and thus subject to confrontation. Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 310-11 (2009). Our Court, applying
Melendez-Diaz, held, in a driving under the influence case, that it was error
for the trial court to admit BAC results without a showing that the lab
technician was unavailable or that the defendant had an opportunity to
cross-examine her. Commonwealth v. Barton-Martin, 5 A.3d 363, 369
(Pa. Super. 2010). Thus, Smithson argues that Trial Counsel was ineffective
for not insisting that Dr. Lichtenwalner testify, as the failure to do so
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precluded confrontation (i.e., cross-examination) of the forensic toxicologist
who performed the testing for Shephard’s toxicology report. Turner/Finley
Brief at 15.
To the extent that Smithson’s claim is of arguable merit, we conclude
the PCRA court did not err in finding that allowing Dr. Cohn to testify to the
Toxicology Report had no prejudicial effect on Smithson’s case. The
Toxicology Report revealed that Shephard had a lethal amount of Gamma
Hydroxybutyrate (“GHB”), a date rape drug, in his system. N.T., 9/10/13, at
100. Trial Counsel testified that, based on his review of the evidence in the
case and his discussions with Smithson, he had no reason to believe that the
results of the Toxicology Report were inaccurate. Id. at 98-100. Thus,
cross-examination of Dr. Lichtenwalner would not have mattered. See id.
Trial Counsel testified to the following about his decision not to insist on Dr.
Lichtenwalner’s testimony:
Q: How would have requiring Dr. [Lichtenwalner]
to testify benefited your client?
A: I don’t know. It -- I was satisfied to have [Dr.
Cohn] get the information in …
Q: Okay.
A: … because I knew what the information was.
It wasn’t going to be different if [Dr.
Lichtenwalner] said it compared to [Dr. Cohn]
saying it. [Dr. Cohn] actually was able to give
me some very -- fortuitously, he was a guy
who could give me the information I wanted
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about this -- these drugs and what it means so
that part was helpful.
Id. at 103. Thus, the certified record reflects that Trial Counsel believed
that it was irrelevant to Smithson’s case whether Dr. Cohn or Dr.
Lichtenwalner testified about the Toxicology Report. Id. Therefore, the
record supports the conclusion that there was no reasonable probability that
the result of the proceeding would have been different had Trial Counsel
insisted on Dr. Lichtenwalner’s testimony instead of allowing Dr. Cohn to
testify. See King, 57 A.3d at 613. Accordingly, we find no error with the
PCRA court’s finding that allowing Dr. Cohn to testify to the Toxicology
Report had no prejudicial effect on Smithson’s case.
The third issue Smithson raises on appeal is that the PCRA court
similarly erred by failing to conclude that Trial Counsel was ineffective for
not objecting to the Commonwealth’s introduction of the serology report
through John Picciano (“Picciano”) instead of Jennifer Badger (“Badger”).
Turner/Finley Brief at 15-16. Picciano and Badger are forensic scientists
with the Pennsylvania State Police and Badger was the individual who
generated the serology report. N.T., 11/19/08, at 120, 125. Smithson
argues that this too violated his Sixth Amendment right to confront the
witnesses against him. Turner/Finley Brief at 16. Here, the PCRA court
again found that allowing Picciano to testify to the serology report had no
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prejudicial effect on Smithson’s case. PCRA Court Opinion, 3/25/14, at 29-
30. We agree.
As with the Toxicology Report, Trial Counsel testified that he already
knew the contents of the serology report, that Smithson’s DNA was found on
gloves police recovered from Smithson’s home that also contained
Shephard’s DNA, to be accurate. N.T., 9/10/13, at 104-05; N.T., 11/19/08,
at 128-29. Trial Counsel testified as follows:
Q: Was there any benefit to challenging the DNA
or the blood evidence provided by the
Commonwealth in terms of the methodology,
the forensic analysis that was performed or the
handling of the evidence?
A: I had no expectation that anything was going
to change in light of the facts as I knew them.
Like I knew about the gloves. I knew what
they were used for.
* * *
Q: What did -- when you say you knew about the
gloves, what do you mean?
A: Whose DNA was on the gloves. They were
gloves that I knew my client had worn at some
point. So I knew his DNA was going to be
found on the gloves.
N.T., 9/10/13, at 104-05. Thus, as with the Toxicology Report, the certified
record supports the conclusion that there was no reasonable probability that
the result of the proceeding would have been different had Badger testified
to the serology report instead of Picciano. See King, 57 A.3d at 613.
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Accordingly, we find no error with the PCRA court’s finding that allowing
Picciano to testify to the serology report had no prejudicial effect on
Smithson’s case.
The fourth issue Smithson raises on appeal is that the PCRA court
erred by failing to find Trial Counsel ineffective for permitting Detective
Joseph McCunney (“Detective McCunney”) to read out-of-court statements
made by Covington to the jury. Turner/Finley Brief at 16-18. Smithson
argues that this also violated his Sixth Amendment right to confront the
witnesses against him. Id. at 16.
We agree with the PCRA court that Trial Counsel had a reasonable
strategy for allowing Detective McCunney to read Covington’s out-of-court
statements to the jury. As referenced above, Trial Counsel’s defense theory
was that Covington was the actual perpetrator of Shephard’s murder. See
N.T., 9/10/13, at 85-86. Trial Counsel testified that he had difficulty getting
information about Covington before the jury because Covington exercised his
Fifth Amendment privilege against self-incrimination and therefore did not
testify. Id. at 90. Trial Counsel testified that he still needed a way to show
the jury that Covington had lied about not being at Smithson’s house the
night of Shephard’s murder. See id. at 88-90. Trial Counsel stated that the
Commonwealth agreed to allow him to get this information before the jury
through his cross-examination of Detective McCunney. Id. at 93-94. Trial
Counsel reported that he believed that using Detective McCunney to get this
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information before the jury benefitted the defense because Detective
McCunney was such a trustworthy source. Id. at 95. Thus, here, Trial
Counsel’s decision to permit Detective McCunney to read the out-of-court
statements had a reasonable strategic basis designed to effectuate his
client’s interests. See Buska, 655 A.2d at 582-83.
The fifth issue Smithson raises on appeal is that the PCRA court erred
by failing to find that Trial Counsel was ineffective for allowing the
Commonwealth to read Jennifer Smithson’s (“Ms. Smithson”) out-of-court
statements into the record instead of having her testify. Turner/Finley
Brief at 16-18. At trial, Trial Counsel and the Commonwealth entered into a
stipulation to permit the Commonwealth to read into the record, in lieu of
her actual testimony, Ms. Smithson’s interview with police regarding a phone
call that she had with Smithson shortly before police arrested him. N.T.,
11/17/08, at 85-88. Smithson again argues that this violated his Sixth
Amendment right to confront the witnesses against him. Turner/Finley
Brief at 16-18. The PCRA court found that Trial Counsel had a sound
strategic basis for allowing the Commonwealth to read Ms. Smithson’s
statements into the record. PCRA Court Opinion, 3/25/14, at 32-33. We
agree.
Trial Counsel testified that the reason he entered into the stipulation
was that he was concerned that Ms. Smithson would reveal damaging
information about Smithson were she to testify as a witness. N.T., 9/10/13,
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at 109-12. Ms. Smithson’s out-of-court statements stem from a phone
conversation that she had with Smithson shortly before his arrest wherein he
admitted to hurting someone. N.T., 11/17/08, at 312-14. Trial Counsel
stated he believed that the emotional nature of Ms. Smithson’s statements
would be more harmful to his client if she testified to them on the stand as a
witness. N.T., 9/10/13, at 109-12. By keeping Ms. Smithson off the witness
stand, Trial Counsel eliminated the possibility that she might, if she became
emotional, reveal other damaging information about Smithson. See id.Furthermore, by reading the statements into the record, Trial Counsel
believed he was limiting the emotional impact of the statements on the jury.
See id. Thus, Trial Counsel’s strategy had a reasonable basis designated to
effectuate his client’s interests. See Buska, 655 A.2d at 582-83.
Accordingly, based on Trial Counsel’s testimony, we conclude that the record
supports the PCRA court’s finding that Trial Counsel had a sound strategic
basis for allowing the Commonwealth to read Ms. Smithson’s out-of-court
statements to the jury.
The final issue that Smithson raises on appeal is that the PCRA court
erred by failing to find Trial Counsel ineffective for not cross-examining
Daniel Hall (“Hall”) “to show that his statements to the police were incorrect
because of his excessive use of crystal meth at the time and shortly
following [Shephard]’s homicide.” Turner/Finley Brief at 18. Hall,
Smithson’s former paramour, testified at Smithson’s trial that he discovered
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Shephard’s body in Smithson’s home and that Smithson admitted to him
that Shephard had been drugged with GHB. N.T., 11/17/08, at 248, 251.
We conclude that the PCRA court did not err in finding that Trial
Counsel had a reasonable strategic basis for not cross-examining Hall. Trial
Counsel believed that it would have been potentially damaging to Smithson’s
case had he attempted to discredit Hall’s testimony. N.T., 9/10/13, at 108.
Trial Counsel reported that Hall, based on his relationship with Smithson and
his involvement in discovering Shephard’s body, was distressed over the
events surrounding Smithson’s case. See id. at 107-09. In fact, Trial
Counsel testified that he met with Hall about Smithson’s case approximately
thirty to fifty times and was concerned that if he impeached Hall’s testimony,
Hall might come “completely apart” on the witness stand and begin revealing
potentially damaging information about Smithson. Id. at 107-09.
For these reasons, we agree with PCRA Counsel that there are no non-
frivolous issues that Smithson could pursue on appeal, and affirm the order
dismissing his PCRA petition.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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