Com. v. McCollum, S., Jr.
288 MDA 2017
| Pa. Super. Ct. | Jan 9, 2018Background
- In Oct. 2011 a man was shot after a parking-space dispute; police pursued a white Cadillac matching the description and detained occupants; a handgun was recovered and a witness (Ahmed) identified Steven McCollum as the shooter.
- McCollum was tried in Dec. 2012, asserted a suppression motion (denied), was convicted of attempted murder, aggravated assault, and related gun offenses, and sentenced to 20–40 years; direct appeal and PA Supreme Court review were unsuccessful.
- McCollum filed a timely pro se PCRA petition in June 2015; counsel was appointed and later filed a Turner/Finley no-merit letter and moved to withdraw.
- The PCRA court permitted counsel to withdraw, issued a Pa.R.Crim.P. 907 notice on Dec. 7, 2016, giving McCollum 20 days to respond, but McCollum did not receive the notice until Dec. 29, 2016 and requested an extension on Jan. 1, 2017.
- The PCRA court dismissed the petition without a hearing on Jan. 11, 2017 and denied the extension request; McCollum appealed pro se, raising ineffective assistance claims (notably advice to waive testifying) and procedural due-process issues regarding the Rule 907 response period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel’s advice not to testify rendered counsel ineffective | McCollum: counsel advised him not to testify based on erroneous belief that non-crimen falsi convictions would be used to impeach him, vitiating a knowing waiver | PCRA court/Commonwealth: counsel reasonably advised against testifying because impeachment by prior convictions was possible and advice was strategic | Reversed and remanded for an evidentiary hearing to resolve factual dispute about counsel’s advice and reasonableness; if counsel was ineffective, order new trial |
| Whether dismissal without a hearing was proper | McCollum: factual dispute about counsel’s advice required a hearing; also did not get adequate time to respond to Rule 907 | PCRA court: dismissed because no response within 20 days; counsel permitted to withdraw | Court held dismissal without a hearing was erroneous; remanded for appointment of counsel and hearing; also found denial of opportunity to respond to Rule 907 improper |
| Whether Turner/Finley withdrawal procedure was properly followed | McCollum: procedure was improper given lack of meaningful notice and factual dispute | PCRA court: allowed withdrawal after no-merit letter | Court found permitting counsel to withdraw under these circumstances was improper and remanded for counsel appointment |
| Other ineffective-assistance claims (failure to impeach witness, poll jury, investigate) | McCollum: trial counsel failed to cross-examine/ impeach the key witness adequately, failed to request jury poll, failed to interview potential witnesses | Commonwealth: trial record shows cross-examination occurred; no evidence jurors did not agree; no showing what additional witnesses would prove | Court rejected these remaining claims as meritless on appeal |
Key Cases Cited
- Commonwealth v. Walker, 110 A.3d 1000 (Pa. Super. 2015) (standard for prejudice from counsel’s advice re: waiver of right to testify)
- Commonwealth v. Nieves, 746 A.2d 1102 (Pa. 2000) (counsel’s unreasonable advice about non-crimen falsi convictions can vitiate knowing waiver to testify)
- Commonwealth v. Uderra, 706 A.2d 334 (Pa. 1998) (defendant’s decision to testify must be made after full consultation; counsel may not improperly interfere)
- Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012) (elements required to establish ineffectiveness under PCRA)
- Commonwealth v. Koehler, 36 A.3d 121 (Pa. 2012) (presumption of counsel effectiveness and burden to show deficient performance)