Com. v. Hawes, M.
Com. v. Hawes, M. No. 2101 EDA 2016
| Pa. Super. Ct. | Apr 19, 2017Background
- Police found a warm, running red Jeep Cherokee near multiple April 2011 residential burglaries; items recovered from the Jeep included police scanners, gloves, a crowbar, jewelry, and documents identifying Hawes and others.
- Hawes, on house arrest during the burglaries, was brought to the police station at his probation officer’s direction, gave biographical information and signed answers to questions (later suppressed), and provided a phone number whose records placed the phone near the burglary sites.
- At trial the Commonwealth introduced phone records and DNA from a Red Bull can found in the Jeep; Hawes was convicted on multiple burglary-related charges and sentenced.
- Hawes filed a PCRA petition claiming ineffective assistance of trial counsel (primarily for advising him not to testify and for failing to call several defense witnesses). PCRA counsel filed a Turner/Finley no-merit letter and sought leave to withdraw.
- The PCRA court held hearings, credited trial counsel’s testimony that he advised Hawes repeatedly about the right to testify and strategically advised against it (risk of impeachment), and rejected claims that counsel was ineffective for not calling several proposed witnesses.
- The Superior Court affirmed the PCRA court’s dismissal and granted PCRA counsel’s motion to withdraw.
Issues
| Issue | Hawes' Argument | Commonwealth / Trial Counsel Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for advising Hawes not to testify / failing to secure an on-the-record colloquy about waiver of the right to testify | Hawes says he was not informed and would have testified to an alibi (at work); he expected a court colloquy | Counsel testified he repeatedly advised Hawes and recommended against testifying because prior convictions would open impeachment; no on-the-record colloquy is not required | Counsel was not ineffective; waiver was knowing, intelligent, voluntary and counsel had reasonable strategic basis |
| Whether counsel was ineffective for failing to call Hawes’ mother (Merceline) | Mother would provide exculpatory testimony about the car’s whereabouts and that it was loaned out | Counsel chose stronger, non-cumulative witnesses; mother’s PCRA testimony was inconsistent and possibly biased | No ineffectiveness: testimony would be cumulative/incredible and strategy was reasonable |
| Whether counsel was ineffective for failing to call alleged third-party/phone witnesses (Stevenson, Roscoe Williams, Luvon Poulson, Darryl Dees) | These witnesses would show third-party use of the Jeep/phone or provide an alibi | Trial counsel reasonably declined weak or impeachable witnesses; some proffered testimony would be rebutted by phone-location evidence and would be cumulative | No ineffectiveness: witnesses were impeachable, cumulative, or their testimony would not have overcome Commonwealth evidence |
| Whether sentencing on PIC merged with burglary | Hawes argued PIC should merge under burglary statute or Sentencing Code merger rules | Commonwealth: burglary and PIC have distinct elements and Hawes intended theft, not PIC as separate underlying intent | Merger claim rejected: offenses do not merge for sentencing; convictions and sentence lawful |
Key Cases Cited
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (requirements for counsel withdrawal with a no-merit letter)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedures for PCRA counsel withdrawal paired with Turner)
- Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) (presumption of counsel effectiveness; standards of review)
- Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009) (three-prong test for PCRA ineffectiveness claims)
- Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012) (standards for ineffectiveness claims based on failure to call witnesses)