Com. v. Garlock, T.
1575 MDA 2016
| Pa. Super. Ct. | Sep 19, 2017Background
- Appellant Terry Garlock was convicted by a jury in 2012 of attempted involuntary deviate sexual intercourse, aggravated indecent assault, and indecent assault against a child and sentenced to 22½ to 45 years; direct appeal unsuccessful.
- The criminal complaint originally alleged offenses between Feb 14, 2003 and Feb 14, 2005; the bills of information charged a narrowed period between Feb 14, 2003 and Feb 14, 2004.
- Garlock’s trial counsel knew Garlock moved into the victim’s household in or after April 2004 and that Garlock was on active military duty (March 2003–April 2004), which would provide an alibi for the bill’s timeframe.
- Trial counsel did not file a formal notice of alibi and sought to use the deployment mainly for impeachment rather than as an affirmative alibi; the trial court excluded detailed deployment evidence and the Commonwealth successfully amended the bill of information mid-trial to extend the charged period.
- Garlock filed a timely PCRA petition alleging trial counsel was ineffective for failing to provide notice of alibi and for allowing the Commonwealth to amend the information; the PCRA court denied relief.
- The Superior Court reversed, holding trial counsel was ineffective for failing to give notice of alibi and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument (Garlock) | Defendant's Argument (Commonwealth/Trial Counsel) | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to file notice of alibi | Failure to give alibi notice deprived Garlock of an absolute defense for the dates charged and a credibility attack on the Commonwealth | Counsel reasonably pursued impeachment strategy and believed impeachment would be more effective than formal alibi notice | Held for Garlock: counsel ineffective; no reasonable strategic basis to withhold alibi notice |
| Whether counsel was ineffective for allowing Commonwealth to amend the information mid-trial | Amendment eliminated period covered by Garlock’s alibi and prejudiced him; counsel should have objected | Commonwealth argued amendment permissible and no prejudice shown; trial counsel treated amendment as strategic | Held for Garlock: amendment tied to alibi failure; counsel should have opposed or provided notice of alibi precluding need for amendment |
| Prejudice requirement for ineffective assistance | Garlock: had counsel given notice, Commonwealth would have to amend pretrial or case credibility would be damaged; reasonable probability of different outcome | Commonwealth: no showing of prejudice; dates were generally known and testimony vague | Held for Garlock: prejudice established because alibi would have supplied an absolute defense for charged dates and a stronger credibility attack |
| Procedural permissibility of amending information during trial | Garlock: Rule 564 contemplates pretrial amendments; mid-trial amendment is improper and prejudicial | Commonwealth: Rule 564 allows amendments and precedent permits late amendments if no prejudice | Held: Court found no supplied authority allowing mid-trial amendment here and treated amendment as intertwined with counsel’s failure to assert alibi; remand ordered (counsel error dispositive) |
Key Cases Cited
- Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011) (standard of review for PCRA and deference to PCRA court credibility findings)
- Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) (Pierce test elements for ineffective assistance of counsel)
- Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) (established three-part ineffectiveness test)
- Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (presumption counsel effective; failure to satisfy any Pierce prong disposes of claim)
- Commonwealth v. Jones, 912 A.2d 268 (Pa. 2006) (counsel not ineffective for failing to raise meritless claims)
- Commonwealth v. Treiber, 121 A.3d 435 (Pa. 2015) (PCRA principles and procedural framework)
- Commonwealth v. Picchianti, 600 A.2d 597 (Pa. Super. 1991) (amendment of information on day of trial permissible if no prejudice shown)
- Commonwealth v. Womack, 453 A.2d 642 (Pa. Super. 1982) (similar proposition on amendment of information)