Com. v. McCallum, K.
Com. v. McCallum, K. No. 675 WDA 2016
| Pa. Super. Ct. | Jul 6, 2017Background
- Kevin McCallum pleaded guilty (open plea) to aggravated assault, simple assault, PIC, and REAP for beating a victim with a baseball bat; plea colloquy included a factual basis implicating McCallum and a co-worker informer.
- Sentenced May 7, 2013: aggravated assault 6–12 years + 20 years probation; concurrent 1–2 year terms for other offenses. Post-sentence motions were filed but not ruled on; no direct appeal was filed.
- McCallum filed a timely pro se PCRA petition (Jan 2014). Appointed counsel raised ineffective-assistance-of-counsel (IAC) claims and challenged the 20-year probation term; evidentiary hearing held May 2015.
- PCRA court (Jan 13, 2016) denied IAC claims but granted relief on sentencing probation (ordered resentencing). Resentenced March 17, 2016 to same incarceration terms and 8 years probation.
- On appeal, PCRA appellate counsel sought withdrawal under Turner/Finley (accepted as Anders here). This Court affirmed denial of IAC claims and granted counsel’s withdrawal, but sua sponte vacated the simple assault sentence as illegal due to merger with aggravated assault.
Issues
| Issue | Appellant's Argument | Commonwealth / Respondent's Argument | Held |
|---|---|---|---|
| 1. Failure to communicate plea offer (4–8 yrs) | McCallum: trial counsel failed to convey plea offer, causing him to lose a favorable deal | Counsel testified offer existed, was communicated multiple times, and McCallum rejected it | Denied — court found offer was communicated and rejected by appellant |
| 2. Failure to investigate alibi (Wal‑Mart receipt/witness) | McCallum: counsel did not fully investigate or preserve alibi evidence | Counsel investigated, obtained receipt, sought video (none), retraced route and concluded alibi implausible; advised client | Denied — counsel had reasonable basis; no prejudice shown |
| 3. Failure to procure/call character witnesses at sentencing | McCallum: counsel failed to discuss or call character witnesses | No evidence at PCRA hearing that counsel failed to consult or that witnesses existed; issue effectively abandoned | Denied — claim undeveloped and unsupported |
| 4. Legality of concurrent simple assault sentence (merger) | McCallum: sentence for simple assault improperly imposed in addition to aggravated assault | Commonwealth implicitly defended sentencing, but statutes require merger where elements overlap and conduct is single act | Granted in part — simple assault sentence vacated sua sponte because it merged into aggravated assault |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (requirements for counsel seeking to withdraw on appeal)
- Turner v. Commonwealth, 544 A.2d 927 (Pa. 1988) (procedures for withdrawal of appointed counsel in collateral appeals)
- Finley v. Pennsylvania, 550 A.2d 213 (Pa. Super. 1988) (no‑merit procedures for PCRA counsel)
- Spotz v. Commonwealth, 84 A.3d 294 (Pa. 2014) (PCRA ineffective assistance standards and appellate review)
- Colavita v. Commonwealth, 993 A.2d 874 (Pa. 2010) (presumption counsel effective; review of strategic choices)
- Pierce v. Commonwealth, 527 A.2d 973 (Pa. 1987) (three‑part ineffectiveness test refinement)
- Pitts v. Commonwealth, 981 A.2d 875 (Pa. 2009) (limits on sua sponte review of no‑merit letters)