Com. v. McCreery, T.
Com. v. McCreery, T. No. 769 EDA 2015
| Pa. Super. Ct. | Apr 18, 2017Background
- Appellant Thomas McCreery and victim Lauren Felsing were in a relationship and shared an apartment; a drug-related dispute occurred in April 2013.
- McCreery allegedly struck Felsing in the back of the head with a blood-coated baseball bat, choked her, and left her unconscious; she later collapsed outside, was hospitalized, and diagnosed with a subdural hematoma, fractured eye socket and arm, bruising, memory loss, and ongoing neurologic care.
- Police recovered the blood-coated bat in McCreery’s apartment; McCreery had cuts on his knuckles and a leg wound he later admitted was from his dog biting him during the incident.
- At bench trial McCreery and his brother claimed self-defense, alleging Felsing attacked with a knife; Felsing had memory gaps about the moment she was struck.
- The trial court convicted McCreery of aggravated assault, simple assault, and recklessly endangering another person and sentenced him to an aggregate 3–6 years’ imprisonment plus 10 years’ probation; McCreery appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for convictions | Commonwealth: evidence (injuries, bat, letter, physical signs) supports convictions | McCreery: evidence was speculative; no proof he did anything specific; memory gaps undermine proof | Waived by McCreery for vague Pa.R.A.P. 1925(b) statement; court affirmed convictions |
| Weight of the evidence / witness credibility | Commonwealth: trial court reasonably credited victim; verdict not shocking | McCreery: testimony contradictory, non‑existent, victim not credible; self‑defense proved | Waived for inadequate briefing; trial court’s credibility findings sustained if considered |
| Discretionary aspects of sentence | Commonwealth: sentence within court’s discretion | McCreery: sentence excessive, emotional | Not preserved—McCreery failed Pa.R.A.P. 2119(f) showing a substantial question |
| Right to counsel of choice at sentencing | Commonwealth: counsel of record represented defendant; no timely substitution | McCreery: denied chosen counsel at sentencing | Waived/undeveloped; no record of new counsel entering before sentencing; claim rejected |
Key Cases Cited
- Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super. 2008) (Pa.R.A.P. 1925(b) specificity required when multiple-element convictions challenged)
- Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (issues omitted from a concise statement are waived)
- Commonwealth v. Dowling, 778 A.2d 683 (Pa. Super. 2001) (Rule 1925(b) must be specific enough to permit meaningful review)
- Commonwealth v. Houser, 18 A.3d 1128 (Pa. 2011) (weight-of-the-evidence standard; appellate review limited to trial court’s discretion)
- Commonwealth v. Lemon, 804 A.2d 34 (Pa. Super. 2002) (vague Pa.R.A.P. 1925(b) statements result in waiver even if trial court addresses the issue)
- Commonwealth v. Hakala, 900 A.2d 404 (Pa. Super. 2006) (appellate courts are not advocate for inadequately briefed claims)
- Commonwealth v. Allen, 24 A.3d 1058 (Pa. Super. 2011) (procedural requirements for appellate review of discretionary sentencing claims)
- Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013) (four-part test for preservation and review of discretionary sentencing claims)
- Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012) (appellate briefs must develop arguments with pertinent authority)