Com. v. McCollum, S., Jr.
288 MDA 2017
| Pa. Super. Ct. | Jan 9, 2018Background
- Appellant Steve R. McCollum, Jr. filed a PCRA petition claiming trial counsel was ineffective by advising him not to testify at trial.
- At trial, counsel asked McCollum on the record whether he understood his right to testify and whether he wished to testify; McCollum declined and confirmed understanding, education, and sobriety.
- McCollum contends counsel told him that if he testified the Commonwealth could impeach him with prior firearms and aggravated assault convictions.
- The PCRA court denied an evidentiary hearing and dismissed the claim; McCollum appealed the denial of a hearing on the ineffective-assistance claim.
- The dissenting memorandum (Stevens, P.J.E.) would affirm the PCRA court, reasoning McCollum failed to plead/support his allegation (no affidavits detailing counsel’s alleged advice) and the record shows no interference with the right to testify.
Issues
| Issue | McCollum's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective in advising McCollum not to testify | Counsel’s advice was so unreasonable (warning about impeachment by prior convictions) that it vitiated a knowing and intelligent decision not to testify | The record contains no substance of counsel’s advice; McCollum offered no affidavits to support his allegation; there was no interference with the right to testify | PCRA court did not err in denying an evidentiary hearing or relief; claim fails for lack of record support and evidentiary showing |
Key Cases Cited
- Commonwealth v. Nieves, 746 A.2d 1102 (Pa. 2000) (standard for claims that counsel’s advice not to testify was so unreasonable as to vitiate defendant’s decision)
- Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012) (three-prong ineffective assistance test: merit, reasonable basis, prejudice)
- Commonwealth v. Jones, 942 A.2d 903 (Pa. Super. 2008) (no absolute right to PCRA evidentiary hearing where record dispels genuine material factual disputes)
- Commonwealth v. Cousar, 154 A.3d 287 (Pa. 2017) (ineffectiveness claims may be dismissed where appellant fails to produce counsel affidavit unless adequately explained)