295 A.3d 292
Pa. Super. Ct.2023Background:
- McCready was convicted after a 2014 jury trial of multiple sexual offenses against his then-niece based primarily on the victim’s testimony and a recorded forensic interview.
- He was sentenced to 25–50 years and designated an SVP; direct appeal was denied. Trial/appellate counsel was Edward Ferguson.
- In 2016 McCready filed a timely PCRA petition claiming trial counsel was ineffective for not calling five potential alibi/credibility witnesses; Paul Puskar was appointed as PCRA counsel.
- An evidentiary hearing was held in March 2018 (S.M. and Attorney Ferguson testified); McCready submitted signed witness certifications from the five alleged witnesses asserting alibi/credibility testimony.
- The PCRA court dismissed relief in August 2018; McCready later claimed PCRA counsel Puskar was ineffective for failing to develop the record/call certain witnesses at the PCRA hearing and sought reinstatement of appellate rights.
- On appeal the Superior Court held McCready could raise prior-PCRA-counsel ineffectiveness under Bradley but denied remand/evidentiary development because the witness certifications did not provide a complete alibi or show prejudice from counsel’s omissions.
Issues:
| Issue | Plaintiff's Argument (McCready) | Defendant's Argument (PCRA/Commonwealth) | Held |
|---|---|---|---|
| Whether a claim that prior PCRA counsel was ineffective may be raised for first time on appeal | Bradley permits raising PCRA-counsel ineffectiveness on collateral appeal | PCRA court had treated claims as time-barred/previously litigated | Court: Allowed under Bradley; claim not waived or time-barred |
| Whether remand for further evidentiary development is required to evaluate layered ineffectiveness (trial counsel failed to call witnesses; PCRA counsel failed to develop the record) | Remand necessary to develop record and hold hearings to test availability, substance, and prejudice from uncalled witnesses | Witness certifications and hearing record show no complete alibi or material disputed facts; trial counsel had reasonable strategic basis; no prejudice shown | Court: No remand; first-layer claim lacks arguable merit and no prejudice, so PCRA court did not abuse discretion |
Key Cases Cited
- Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021) (permits raising prior PCRA counsel ineffectiveness on first opportunity to do so, including on appeal)
- Commonwealth v. Parrish, 273 A.3d 989 (Pa. 2022) (remand appropriate where factual development is necessary to resolve layered ineffectiveness)
- Commonwealth v. Riley, 285 A.3d 901 (Pa. Super. 2022) (remanded for evidentiary development in layered ineffective-assistance context)
- Commonwealth v. Reid, 99 A.3d 427 (Pa. 2014) (requirements for proving counsel ineffective for failing to call a witness include witness certifications and proof of availability and prejudice)
- Commonwealth v. Burkett, 5 A.3d 1260 (Pa. Super. 2010) (in layered claims, focus on whether the first attorney rendered ineffective assistance)