Com. v. McClelland, D.

J-S26002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID JAMES MCCLELLAND :
:
Appellant : No. 386 WDA 2019
Appeal from the PCRA Order Entered February 5, 2019
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0001884-2011
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED JULY 29, 2020
David James McClelland (Appellant) appeals from the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. After careful consideration, we vacate the order
dismissing Appellant’s PCRA petition and remand this matter to the PCRA court
for proceedings consistent with this decision.
The PCRA court detailed the facts and procedural history of this case as
follows:
Factual History
On August 4, 2009, Chief Rick Encapera of the California
Borough Police Department responded to the home of Evelyn
Stepko (hereinafter [] “Victim”) located on Pike Run Road in Coal
Center, Washington County to investigate her complaint that her
home had been burglarized and that an envelope containing
$2,000 in cash was missing. On June 15, 2010, Chief Encapera
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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again responded to the Victim’s home to investigate her complaint
that her home had been burglarized again and her lifesavings had
been stolen. During this second investigation, Chief Encapera
discovered a lock on the closet that had been tampered with, a
basement door with a lock that had been tampered with, and a
screen window that was unsecured. On February 2, 2011,
Patrolman Timothy Sheehan of the California Borough Police
Department responded to [] Victim’s home to investigate her
complaint that her home was burglarized and $600 was stolen.
On March 10, 2011, Patrolman Sheehan again responded to the
Victim’s home to investigate her complaint of another burglary.
During this investigation, Patrolman Sheehan discovered
splintering in the door frame to the basement which was not there
when he investigated in February. On May 22, 2011, Officer Curtis
Rice of the California Borough Police Department responded to []
Victim’s home to investigate the report that the telephone wires
to [] Victim’s home had been cut and severed.
On July 18, 2011, first responders were dispatched to the
residence of [] Victim because she had not been seen in a few
days. Upon entering the residence, first responders discovered []
Victim’s body at the bottom of the stairs to the basement, lying
face down in a pool of blood. An autopsy conducted by the
Washington County Coroner, S. Timothy Warco, revealed that []
Victim died as a result of stab wounds to her neck. The death was
ruled a homicide. As part of the investigation, [Appellant]’s father
was arrested and charged with multiple offenses including
homicide, robbery, burglary, and conspiracy. [Appellant]’s
stepmother was also arrested and charged with multiple offenses
including conspiracy to commit homicide and conspiracy to
commit burglary.
On July 22, 2011, as part of the investigation into [] Victim’s
death, [Appellant] was brought into the California Borough Police
Department to be interviewed by the Pennsylvania State Police.
During the interview, [Appellant] made various admissions tying
him to the criminal activity in question.
* * *
Procedural History
On October 3, 2011, the Washington County District Attorney’s
Office filed a criminal information charging [Appellant] as follows:
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Count 1: Criminal Homicide – 18 Pa.C.S.[A.] § 2501(a) - Felony
of the 1st Degree
Count 2: Dealing in Proceeds of Unlawful Activities – 18
Pa.C.S.[A.] § 5111(a)(1 and 2) – Felony of the 1st Degree
Count 3: Criminal Conspiracy – 18 Pa.C.S.[A.] § 903 – Felony of
the 1st Degree
Count 4: Receiving Stolen Property – 18 Pa.C.S.[A.] § 3925(a)-
Felony of the 3rd Degree.
On October 19, 2011, Daniel Chunko, Esquire entered his
appearance on behalf of [Appellant]. On June 13, 2012, an order
was entered transferring the case from the Honorable Judge Paul
Pozonsky to the undersigned.
* * *
On November 5, 2012, the trial court granted defense counsel’s
request to withdraw and appointed Joshua Camson, Esquire [(Trial
Counsel)] to represent [Appellant]. . . . On April 9, 2013, following
a jury trial, [Appellant] was convicted of Criminal Homicide-
Second Degree Murder, Dealing in Proceeds of Unlawful Activities,
Criminal Conspiracy, and Receiving Stolen Property. . . .On June
16, 2013, the trial court sentenced [Appellant] . . . [to] life in
prison without the possibility of parole plus 14 years to 48 years.
. . . On November 1, 2013, [Trial Counsel] filed a direct appeal
on behalf of [Appellant], appealing the judgment of sentence
entered June 6, 2013. On September 21, 2015, the Superior
Court entered an opinion affirming [Appellant]’s judgment of
sentence. On May 18, 2016, the Supreme Court of Pennsylvania
denied [Appellant]’s Petition for Allowance of Appeal.
On August 1, 2017, Suzanne Swan, Esquire filed a [PCRA
petition] on behalf of [Appellant]. . . . On December 19, 2017, the
Commonwealth filed their response to [Appellant]’s PCRA petition.
On January 11, 2019, the [PCRA] court filed notice of its intent to
dismiss [Appellant]’s PCRA petition [without a hearing]. On
February 5, 2019, the [PCRA] court issued an order dismissing
[Appellant]’s PCRA petition. On March 7, 2019, [PCRA Counsel]
filed notice of appeal to the Superior Court appealing the [PCRA]
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court’s dismissal of [Appellant]’s PCRA petition. On March 20,
2019, the [PCRA] court ordered [Appellant] to file his Concise
Statement of Matters Complained of on Appeal within twenty-one
(21) days of the order.
On April 1, 2019, Attorney Swan filed a concise statement on
behalf of [Appellant.]
PCRA Court Opinion, 7/18/19, at 1-7 (footnotes omitted).
On appeal, Appellant presents five issues for review:
I. Did the [PCRA] court abuse its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the petition
without a hearing, where [Appellant] set forth an offer to prove
sufficient facts upon which a reviewing court can conclude that
[T]rial [C]ounsel was ineffective for failing to object to the
deficient jury instructions on conspiracy as it related to the felony
murder charge?
II. Did the [PCRA] court abuse its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the petition
without a hearing, where [Appellant] set forth an offer to prove
sufficient facts upon which a reviewing court can conclude that
[Appellant] was denied the effective assistance of counsel during
the plea bargaining stage of his criminal prosecution, specifically,
his trial counsel failed to give him adequate, accurate and
competent advice about whether to accept or reject a plea offer?
III. Did the [PCRA] court abuse its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the petition
without a hearing, where [Appellant] set forth an offer to prove
sufficient facts upon which a reviewing court can conclude that
[T]rial [C]ounsel was ineffective for not requesting a change of
venue based on pretrial publicity, and for not requesting that the
prospective jurors be questioned regarding their impartiality after
hearing a potential juror express his belief that [Appellant] was
guilty; alternatively, that [Appellant] set forth an offer to prove
sufficient facts that [Trial Counsel] was ineffective for not raising
the issue on appeal that the court abused its discretion in denying
a motion for change of venue?
IV. Did the [PCRA] court abuse its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the petition
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without a hearing, where [Appellant] set forth an offer to prove
sufficient facts upon which a reviewing court can conclude that
[Trial Counsel] was ineffective for failing to preserve the issue for
appeal that the evidence was insufficient as a matter of law to
sustain the convictions of Criminal Conspiracy to Commit Burglary
or Robbery, Conspiracy to Commit Homicide – Second[-]Degree
Murder, and Second[-]Degree Murder?
Appellant’s Brief at 4-5.
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.Each of Appellant’s issues raise claims of ineffective assistance of
counsel. With respect to such claims, our Supreme Court has stated:
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.
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.
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Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified).
We address Appellant’s second issue first, as it is dispositive of the
appeal. Appellant argues that the PCRA court erred in dismissing his claim
that Trial Counsel was ineffective during plea negotiations. Appellant contends
that Trial Counsel wrongly informed him that to be convicted of murder in this
case, “the Commonwealth was required to prove that the death of [Victim]
was a natural and probable consequence of any conspiracy.” See Appellant’s
Brief at 24. Appellant asserts that Trial Counsel should have advised him:
if the Commonwealth proved that [Appellant] conspired with his
father to commit burglary or robbery, then it was immaterial
whether the homicide was a natural and probable consequence of
the burglary. The fact that the murder was committed during the
perpetration of the burglary was sufficient to prove Second Degree
Murder.
Id.Appellant further asserts that Trial Counsel wrongly informed him that
the Commonwealth could not establish a conspiracy to commit burglary and
robbery. Appellant claims that Trial Counsel told him that the evidence only
demonstrated that Appellant knew about each of the burglaries and robberies
after they occurred, and that he received and spent some of the proceeds of
those crimes. Appellant maintains that Trial Counsel advised him that this
evidence could not establish a conspiracy to commit burglary and robbery
because the Commonwealth could not demonstrate that he knew about or
helped plan each of the burglaries and robberies before they occurred.
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Appellant argues that Trial Counsel “failed to recognize prior to trial that the
Commonwealth was proceeding under the theory that a single, continuing
conspiracy existed between Appellant and his father[.]” Appellant’s Brief at
25.
Additionally, Appellant faults Trial Counsel for failing to inform him of a
substantial amount of inculpatory evidence against Appellant. For example,
Appellant asserts that Trial Counsel failed to properly investigate prior to trial
the testimony of T.J. Stover, who testified at trial that he observed an
individual who resembled Appellant at Victim’s home at a time during which
Victim was robbed. Appellant’s Brief at 30-31. Appellant argues that each of
Trial Counsel’s alleged deficiencies resulted in his rejection of the
Commonwealth’s plea offers because Trial Counsel convinced him that, at
worst, he was guilty of multiple counts of receiving stolen property.
With respect to this type of claim, we have stated:
[A] post-conviction petitioner seeking relief on the basis that
ineffective assistance of counsel caused him or her to reject a
guilty plea must demonstrate the following circumstance:
[B]ut for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have
accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that the
court would have accepted its terms, and that the conviction
or sentence, or both, under the offer’s terms would have
been less severe than under the judgment and sentence
that in fact were imposed.
* * *
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[N]othing prevents a PCRA petitioner from meeting his burden
under Lafler with “his own self-serving statement” that he would
have entered a guilty plea but for counsel’s ineffectiveness. As
long as the PCRA court finds the petitioner’s testimony to be
credible, there is no coherent justification for characterizing such
evidence as inherently deficient as a matter of law. In cases such
as the one sub judice, where a petitioner’s testimony is credible
and uncontradicted, it may suffice to establish a reasonable
probability that the petitioner would have accepted the
prosecution's plea offer.
Commonwealth v. Steckley, 128 A.3d 826, 832-33 (Pa. Super. 2015)
(quoting Lafler v. Cooper, 566 U.S. 156, 164 (2012)).
Appellant has raised several claims that he received deficient advice
from Trial Counsel during plea negotiations. First, as Appellant points out,
“[o]nce there is evidence of the presence of a conspiracy, conspirators are
liable for acts of co-conspirators committed in furtherance of the conspiracy.”
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). “Even
if the conspirator did not act as a principal in committing the underlying crime,
he is still criminally liable for the actions of his co-conspirators taken in
furtherance of the conspiracy.” Thus, if Trial Counsel advised Appellant that
the Commonwealth had to prove that the Victim’s death was a natural and
probable consequence of the conspiracy to commit burglary and robbery, in
order for Appellant to be convicted of murder, such advice was deficient, as it
does not comport with Lambert. As Appellant recognizes, if he was guilty of
conspiracy to commit burglary and robbery, he could also be convicted of
murder, provided that it was an act committed in furtherance of the conspiracy
to commit burglary and robbery. See Lambert, 795 A.2d at 1016.
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Second, Appellant presents a correct understanding of the evidence
required to establish a conspiracy to commit burglary and robbery. We have
explained:
A single, continuing conspiracy is demonstrated where the
evidence proves that the essential feature of the existing
conspiracy was a common plan or scheme to achieve a common,
single, comprehensive goal. . . . A single, continuing conspiracy
may contemplate a series of offenses, or be comprised of a series
of steps in the formation of a larger, general conspiracy. . . .
Therefore, where the evidence at trial is sufficient for the jury to
infer that the essential features of the existing conspiracy were a
common plan or scheme to achieve a common, single,
comprehensive goal or end, then the conclusion that the
conspiracy was a single, continuing conspiracy is justified.
Commonwealth v. Troop, 571 A.2d 1084, 1089-90 (Pa. Super. 1990).
Thus, if Trial Counsel told Appellant that the Commonwealth could not
establish conspiracy to commit burglary and robbery without evidence that
Appellant knew about and helped planned each burglary and robbery, this
advice was deficient.
Third, Trial Counsel was arguably ineffective if, as Appellant claims, he
did not investigate and advise Appellant about the testimony of T.J. Stover,
who stated that he observed an individual resembling Appellant at Victim’s
home on a date when one of the burglaries and robberies occurred. N.T.,
4/5/13, at 744-52. Our Supreme Court has explained:
Counsel has a general duty to undertake reasonable investigations
or make reasonable decisions that render particular investigations
unnecessary. Counsel’s unreasonable failure to prepare for trial
is an abdication of the minimum performance required of defense
counsel. The duty to investigate, of course, may include a duty
to interview certain potential witnesses; and a prejudicial failure
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to fulfill this duty, unless pursuant to a reasonable strategic
decision, may lead to a finding of ineffective assistance.
Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009). If Trial
Counsel, as Appellant asserts, did not investigate or interview T.J. Stover,
whose testimony was adverse to Appellant, then Trial Counsel was arguably
ineffective.
In rejecting each of Appellant’s arguments, the PCRA court explained:
Even if PCRA counsel can show that [T]rial [C]ounsel’s legal advice
was unsound, the PCRA court does not find that there is sufficient
evidence to meet the prejudice prong to prove ineffectiveness.
PCRA [C]ounsel maintains that [T]rial [C]ounsel provided
[Appellant] with the improper legal standard regarding conspiracy
and that counsel did not properly analyze the evidence of the case.
This deficiency allegedly resulted in [Appellant] choosing to reject
the Commonwealth’s plea offers. However, PCRA [C]ounsel
seemingly glosses over the fact that [Appellant] rejected a
generous plea offer previously extended of ten (10) to twenty (20)
years while he was being represented by prior counsel, Daniel
Lucian Chunko, Esquire. When presented with this plea offer,
[Appellant] maintained his innocence and expressed his desire to
proceed to trial. [Appellant]’s conduct under all of the
circumstances demonstrated that he was not willing to accept any
plea offer regardless of [T]rial [C]ounsel’s legal advice. Even after
his co-conspirator father pled guilty to 1st degree murder and
burglary, and his co-conspirator step-mother was convicted of
burglary and conspiracy, [Appellant] chose to proceed to trial.
[Appellant] now seeks to turn back the clock and blame the advice
of counsel for his decision to reject the plea offers, after having
been found guilty at trial. As noted, [Appellant] rejected a
generous plea offer before being represented by [T]rial [C]ounsel.
The PCRA court is not persuaded by [Appellant]’s claim that he
would have accepted the plea offer under any circumstances.
PCRA Court Opinion, 7/18/19, at 17-18 (footnotes omitted).
The PCRA court is correct that Appellant rejected multiple plea offers.
See PCRA Court Opinion, 7/18/19, at 17-18; see also N.T., 10/8/13, at 235-
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41. However, the PCRA court denied relief without a hearing. We cannot
discern from the record before us evidence of what Trial Counsel advised
Appellant during plea negotiations, and the relationship, if any, of Trial
Counsel’s actions and advice to Appellant’s assertions of ineffectiveness. Our
review reveals no clear basis for the PCRA court’s general conclusion that
Appellant’s “conduct under all of the circumstances” demonstrated that he was
not willing to accept any plea offer regardless of Trial Counsel’s advice. PCRA
Court Opinion, 7/18/19, at 18.
We recognize:
[T]he right to an evidentiary hearing on a post-conviction petition
is not absolute. Commonwealth v. Jordan, 772 A.2d 1011,
1014 (Pa. Super. 2001). It is within the PCRA court’s discretion
to decline to hold a hearing if the petitioner’s claim is patently
frivolous and has no support either in the record or other evidence.
Id. It is the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in light of the
record certified before it in order to determine if the PCRA court
erred in its determination that there were no genuine issues of
material fact in controversy and in denying relief without
conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations
omitted).
Instantly, issues of fact exist because we do not have a record of Trial
Counsel’s actions and advice during plea negotiations, and the basis for the
PCRA court’s conclusion that Appellant would never have accepted a plea.
Thus, our review of Appellant’s claims of ineffectiveness is hindered. Our
Supreme Court has made “clear [its] strong preference that counsel be heard
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from before being found ineffective[.]” Commonwealth v. Colavita, 993
A.2d 874, 895 (Pa. 2010). Also, we may not “employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may have taken.”
Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015). Mindful
of the foregoing, we are compelled to vacate the order dismissing Appellant’s
petition and remand to the PCRA court for a hearing.
Order vacated. Case remanded. Jurisdiction relinquished.
Judge Pellegrini joins the memorandum.
Judge McLaughlin notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2020
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