Com. v. Carmichael, S.
1254 MDA 2016
| Pa. Super. Ct. | Sep 20, 2017Background
- Shawn Carmichael was charged after a shooting with multiple offenses including attempted murder, aggravated assault, prohibited possession of a firearm (18 Pa.C.S. § 6105), recklessly endangering another person, and resisting arrest. A jury acquitted him of attempted homicide and a higher-graded aggravated assault but convicted him of prohibited possession, aggravated assault (lesser), REAP, and resisting arrest.
- Trial court sentenced Carmichael to an aggregate term of 93 to 186 months; direct appeal was affirmed by this Court and no Supreme Court review was sought.
- Carmichael filed a pro se PCRA petition; counsel was appointed, filed a Turner/Finley no-merit letter and moved to withdraw. The PCRA court found one arguable issue, appointed new counsel, then denied relief on the remaining claim(s).
- This appeal followed; the Superior Court previously remanded to ensure the PCRA court complied with Pa.R.A.P. 1925; after supplemental opinions the Court considered Carmichael’s claims.
- Carmichael raised (1) timeliness/quash issue about failure to appeal an earlier partial dismissal, and (2) multiple ineffective-assistance claims: (a) failure to move to sever/stipulate re: §6105 predicate, (b) failure to investigate/present Type II diabetes evidence, (c) failure to cure juror bias in voir dire, and (d) appellate counsel’s failure to properly brief sufficiency/weight issues.
Issues
| Issue | Plaintiff's Argument (Carmichael) | Defendant's Argument (Commonwealth / PCRA court) | Held |
|---|---|---|---|
| 1. Appeal timeliness / quash | Appeal should not be quashed for failure to appeal the Jan. 20, 2016 order | PCRA court suggested untimeliness but Court of Appeals previously resolved this | Appeal is properly before the Court (not quashed) |
| 2. Trial counsel ineffective for failing to sever §6105 and stipulating to prohibited-person status | Counsel should have moved to sever and not stipulate; stipulation prejudiced remaining charges | Stipulation was strategic to avoid jurors learning of extensive felony record; acquittals on major charges show lack of prejudice | Claim fails — counsel’s strategy had a reasonable basis and no prejudice shown |
| 3. Trial counsel ineffective for not investigating/presenting diabetes evidence | Diabetes could explain memory loss/erratic behavior and support defense | Presenting diabetes evidence would have contradicted defendant’s testimony denying involvement; counsel had reasonable basis to avoid it | Claim fails — reasonable strategic decision; no prejudice established |
| 4. Trial counsel ineffective for voir dire handling of juror who mentioned silence implies guilt | Juror’s comment forced Carmichael to testify; counsel failed to cure prejudice | Counsel moved to strike that juror, questioned the venire, and court instructed jury on burden and defendant’s silence | Claim fails — curative measures taken, juror removed, no prejudice |
| 5. Appellate counsel ineffective for failing to brief sufficiency/weight claims | Appellate counsel (who was trial counsel) waived sufficiency/weight claims on appeal | Petitioner provided no developed argument on prejudice or on merits; the underlying sufficiency/weight claims lack merit | Claim fails — undeveloped ineffective-assistance argument and underlying claims lack merit |
Key Cases Cited
- Commonwealth v. Pierce, 786 A.2d 203 (Pa. 2001) (three-prong ineffective-assistance-of-counsel test)
- Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (counsel’s strategy is effective if it has any reasonable basis)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (procedures governing counsel withdrawal / no-merit letters)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedures governing counsel withdrawal / no-merit letters)
- Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) (standard for sufficiency review)
- Commonwealth v. Wharton, 811 A.2d 978 (Pa. 2002) (ineffective-assistance claims are not self-proving; petitioner must develop all prongs)