COMMONWEALTH OF PENNSYLVANIA v. PHILIP REID MCCREADY
No. 447 WDA 2022
IN THE SUPERIOR COURT OF PENNSYLVANIA
May 17, 2023
2023 PA Super 86
J-S05029-23; NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37; Aрpeal from the PCRA Order Entered August 10, 2018 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001616-2013
OPINION BY LAZARUS, J.:
Philip Reid McCready appeals from the order, entered in the Court of Common Pleas of Blair County, dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),
McCready was convicted of various charges arising from his repeated sexual abuse of his niece, S.L.H. This Court previously adopted the following factual history:
S.L.H., who was 11 at [the time of] trial in January 2014, testified that in the summers of 2009 and 2010[, McCready], who was approximately [thirty years old], stuck his penis in her bottom and made her hold his penis. She also said he put his penis in her bottom and in her vagina a little bit, and that he stuck his penis in her mouth and peed a little in her mouth, which felt really nasty and gross. S.L.H. testified further that
[McCready] trapped her in the bedroom and physically restrained her from leaving. The jury found this testimony credible and convicted [McCready] of all charges levied against him.4
Commonwealth v. McCready, 1445 WDA 2015, *2 (Pa. Super. filed Oct. 20, 2015) (unpublished memorandum decision), quoting Trial Court Opinion, 9/24/14, at 2.
S.L.H. told police that these “bad things” happened a total of ten times over the summers of 2009 and 2010 at her grandparents’ home. N.T. Jury Trial, 1/22/14, at 73, 92. Her grandparents lived two blocks away from S.L.H. Id. at 58. McCready would call S.L.H.‘s mother and ask if S.L.H. would help clean out his car. Id. at 62 (S.L.H. stating, “I always volunteered [to clean McCready‘s car] because I was trying to be nice.“); id., 1/23/14, at 59 (S.L.H.‘s mother testifying that during summer of 2009 and 2010, McCready would call her to schedule day outings with McCready‘s son and for either S.L.H. or S.L.H.‘s sibling to help clean McCready‘s car). S.L.H. also testified that before she cleaned the car, she went into the kitchen and then followed McCready into the back bedroom or middle bedroom, which is where the abuse would occur. Id., 1/22/14 at 63, 93-94. These incidents happened in the afternoon when neither grandparent was home. Id. at 78-79. S.L.H.‘s parents learned about the abuse from her aunt and another uncle. Id. at 81-82.
Grandmother testified that McCready lived approximately 25 minutes away by car but would come to her house to do his laundry and mow the neighbor‘s yard.1 Id., 1/23/14, at 27-28; id. at 30 (Grandmother testifying she recalled occasions where she was not home or had left house when McCready and his wife did laundry). She also testified that although either she or Grandfather was usually home while McCready assisted their neighbor, they generally did not lock their front door and she was unaware if there were times McCready came to her house without her knowledge. Id. at 28-29. Additionally, Grandmother testified that McCready rented a car at some point during the summers of 2009 and 2010. Id. at 31.
On January 22, 2014, MсCready proceeded to jury trial, where he was found guilty of various sexual offenses.2 On May 6, 2014, McCready was sentenced to an aggregate term of 25 to 50 years’ incarceration and designated as a sexually violent predator (SVP). McCready‘s judgement of sentence was affirmed by this Court on October 20, 2015. See McCready, supra. McCready did not seek allowance of appeal in the Pennsylvania Supreme Court. See
On October 14, 2016, McCready filed a timely pro se PCRA petition, his first,
On October 18, 2016, the court appointed Paul Puskar, Esquire, as PCRA counsel. On October 13, 2017, Attorney Puskar filed an amended petition incorporating McCready‘s claims and adding, inter alia, a claim that McCready‘s SVP designation was unconstitutional and should be vacated.5 On March 6, 2018, the court held a hearing on McCready‘s PCRA petition, at which S.M. and Attorney Ferguson testified. Following the hearing, the court held the matter under advisement and, on August 8, 2018, dismissed the petition. McCready was not apprised of his right to appeal within 30 days of the dismissal of his petition. See
On February 15, 2019, McCready filed a pro se motion for change of appointed PCRA counsel wherein McCready alleged that Attorney Puskar was ineffective for failing to call M.S. and A.S. to testify at the PCRA evidentiary hearing.6 McCready claims that M.S. and A.S. have “firsthand and contemporaneous accounts of what actually took place during the period of time” he allegedly committed these crimes. Motion for Change of Appointed Counsel, 2/15/2019, at 2 (unpaginated).7 On May 16, 2019, Attorney Puskar filed a motion in support of McCready‘s request for change of counsel, wherein he explained his failure to call M.S. and A.S. to testify. Brief in Support of Motion for Change of Appointed
On May 5, 2020, the PCRA court issued an order relieving Attorney Puskar of his representation and appointing Richard Corcoran, Esquire, as counsel for McCready. Attorney Corcoran filed an amended PCRA petition requesting that McCready‘s appellate rights be reinstated, nunc pro tunc, due to the PCRA court‘s failure to apprise McCready of his appeal rights.9 McCready also requested a hearing to allow him to present additional evidence on the issue of whether Attorney Ferguson was ineffective for failing to properly investigate and call witnesses. Amended PCRA Petition, 8/10/20, at 2-3 (unpaginated).
On March 16, 2022, the PCRA court reinstated McCready‘s rights to appeal, nunc pro tunc, from the August 8, 2018 order dismissing his PCRA petition. This timely, nunc pro tunc, appeal followed.10 Both McCready and the PCRA court have complied with
Our scope and standard of review of the denial of a PCRA рetition are well-settled:
[O]ur scope of review is limited by the parameters of the [PCRA]. Our standard of review permits us to consider only whether the PCRA court‘s determination is supported by the evidence of record and whether it is free from legal error. Moreover, in general we may affirm the decision of the [PCRA] court if there is any basis on the record to support the [PCRA] court‘s action; this is so even if we rely on a different basis in our decision to affirm.
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005) (quotations and citations omitted).
The PCRA court‘s prеvious order and opinion does not address Attorney Puskar‘s alleged ineffectiveness, but rather discusses Attorney Ferguson‘s purported ineffectiveness and his decision not to call S.M., one of the five alleged alibi witnesses, as a witness at trial. We find that pursuant to Bradley, supra, McCready‘s claim is neither time-barred nor waived.12
In Bradley, the defendant appealed from the denial of a timely-filed PCRA petition and was represented on collateral appeal by new counsel, who raised a claim of prior PCRA counsel‘s ineffectiveness. In concluding that the ineffеctiveness claim was not waived, the Supreme Court determined that “a petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel‘s ineffectiveness at the first opportunity to do so, even if on appeal.” Id. at 401. Instantly, as in Bradley, McCready raises an ineffective assistance of PCRA counsel claim on collateral appeal from the denial of a timely-filed PCRA petition. As this is McCready‘s first opportunity to do so, his claim is permitted.
We now turn to whether McCready is entitled to an evidentiary hearing on his ineffective assistance of counsel claim. In Bradley, our Supreme Court determined that in some cases, “an appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter.” Id. at 402. However,
[t]here is no absolute right to an evidentiary hearing on a [PCRA] petition, and if the PCRA court can determine from the record that no genuinе issues of material fact exist, then a hearing is not necessary. To obtain reversal of a PCRA court‘s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019); see Commonwealth v. Bennett, 462 A.2d 772, 773 (Pa. Super. 1983) (“[U]nless the PC[R]A court is certain of the total lack of merit of an issue raised in a PC[R]A petition, a hearing should be held on the issue.“) (citation omitted, emphasis in original). See also Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) (evidentiary hearings held for purposе of credibility determinations; issue of material fact can be decided on pleadings/affidavits alone).
Further, in addressing a petitioner‘s layered claim of ineffectiveness, we presume counsel is effective and determine whether the petitioner rebutted that presumption by establishing: “[(1)] the underlying claim of ineffectiveness has arguable merit[; (2)] counsel‘s act or omission was
Moreover, to demonstrate the failure to investigate a potential witness, the defendant satisfies the reasonable basis and arguable merit prongs of the ineffectiveness test by pleading and proving that cоunsel did not investigate and interview a known witness. Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013). As for the prejudice prong, the defendant must demonstrate that, but for counsel‘s error, the outcome of the proceeding would have been different. Id.
On the other hand, to demonstrate counsel‘s ineffectiveness in his failure to present witness testimony, there are two components, one procedural and one substantive. First, a defendant must attach to his PCRA petition “a signed certification as to each intended witness stating the witness‘s name, address, date of birth and substanсe of testimony.”
In Commonwealth v. Riley, 285 A.3d 901 (Pa. Super. 2022) (Table),13 following a layered ineffective assistance of counsel claim permitted on appeal by Bradley, supra, this Court remanded for an evidentiary hearing. Riley, at *2. There, original PCRA counsel had filed a certification for one of the three witnesses whom the defendant wished to have testify at his trial, but later revoked the one certification. The PCRA court subsequently denied the defendant‘s PCRA petition because there were no witnesses who could testify. Id. On appeal, with regard to the first layer of ineffectiveness, appellant alleged that trial counsel failed to investigate and/or call three alibi witnesses
who would corroborate the defendant‘s claim that he was nоt present at the location of the shooting. The appellant averred that he provided trial counsel with the names and contact information of these alibi witnesses. Id. at *5. Regarding the second layer of ineffectiveness, appellant alleged that original PCRA counsel failed to properly plead trial counsel‘s ineffectiveness. Id. at *6. Specifically, the appellant claimed that original PCRA counsel did not assert that the witnesses were available at the time of trial, willing to testify on defendant‘s behalf, or that the absence of their testimony was prejudicial. Id. In ordering remand, this Court stated:
This case presents a unique circumstance in which this Court, in order to review the dismissal of [defendant‘s] ineffectiveness of original PCRA counsel claim, must examine whether the underlying claim—the ineffectiveness of trial counsel for failure to investigate and call two potential alibi witnesses ([defendant‘s] brother and [defendant‘s] uncle)
—satisfied the three-part ineffectiveness test. Based on the current record, and specifically in the absence of an evidentiary hearing, we are unable to review [defendant‘s] claim.
Id. at *8 (emphasis added).
Similarly, in Commonwealth v. Parrish, 273 A.3d 989 (Pa. 2022), following a layered ineffectiveness claim permitted on appeal by Bradley, supra, our Supreme Court remanded for an evidentiary hearing. There, the first layer of alleged ineffectiveness involved trial/appellate counsel‘s purported failure to consult with the defendant regarding his appeal rights. The second layer of alleged ineffectiveness concerned original PCRA counsel‘s purported failure to present available evidenсe to substantiate the underlying ineffectiveness claim and that, if defendant had been consulted, he would have instructed trial/appellate counsel to file a notice of appeal. Id. at 1004. Defendant alleged that the evidence would show that appellate counsel believed defendant was able to rely on the Supreme Court‘s automatic review of direct appeals from the imposition of death sentences pursuant to
Instantly, the first layer of McCready‘s ineffectiveness claim is based on Attorney Ferguson‘s failure to investigate/call Grandfather, S.M., L.T., M.S., and A.S. at trial. The second layer is based on Attorney Puskar‘s failure to appropriately and adequately develop the record on the issue (i.e., failure to call all of the witnesses and/or present evidence regarding their availability at his PCRA hearing). See Apрellant‘s Brief, at 11. McCready purports that he “has submitted material facts relative to prior counsel‘s handling of the petition for [PCRA relief that] would warrant [remand] to develop the record.” Id. at 12.
Upon review of the record, we conclude that remand is not necessary to determine whether Attorney Ferguson was ineffective in his failure to call any of the witnesses. See Burkett, supra at 1270 (critical inquiry is whether first attorney was ineffective). Unlike in Riley, where no evidentiary hearings were held due to the absence of witness certifications, McCready attached to his PCRA petition signed certifications from the five witnesses, which include the substance of their purported trial testimony.14 See
In an effort to show that McCready was not present during the times the S.L.H. says the abuse happened, McCready presented certifications from each of the witnesses. L.T.‘s statement described her friendshiр with McCready, including information that they spent almost every day together during the years that the alleged abuse took place. L.T. also explained that McCready had a brown car that would constantly breakdown, sometimes leased a car, and also relied on his parents for rides. See Certification of L.T., 9/15/16. M.S.‘s statement explained that she spent “every other weekend” with S.L.H‘s parents and they “always went as a group” to her grandparents’ house, where the alleged abusе took place. Certification of M.S., 8/17/16. M.S. also stated that
At the March 6, 2018 evidentiary hearing, S.M. testified that in the summers of 2009 and 2010, she was 10 and 11 years old and lived with her mother. S.M. testified that she would decide when she wanted to visit McCready and that her mother would drive her. N.T. Evidentiary Hearing, 3/6/18, at 3-4. Regarding McCready‘s access to a car, S.M. stated, “[McCready‘s] car was pretty much broke[n] down most of [the time] when [she] was young” and that McCrеady “didn‘t drive, not when he didn‘t have a car” but that “gram was always driving or my pap was driving.” Id. at 4-6. S.M. responded, “I do not” when asked, “Do you remember why you told Attorney Ferguson that [McCready] had access to a car?” Id. at 7. She also testified she would not be at her grandparents’ house with just McCready and S.L.H. and that S.L.H.‘s grandfather15 worked at night and slept during the day. Id. at 5.
Attorney Ferguson also testified at the March 6, 2018 evidentiary hearing. He explained that he did not call S.M. as a witness at trial because one of the main issues at trial was whether McCready had access to a car and S.M.‘s testimony did not provide McCready with a complete alibi. Id. at 9, 11. Attorney Ferguson recalled S.M. telling him that McCready had access to a car. Id. (Attorney Ferguson stating “my notes talk about an old boxy style tan and brown light[-]colored car“). In sum, Attorney Ferguson believed S.M.‘s testimony was a “double edged sword” because it showed McCready had access to a car. Id. at 10.
Upon review of the record, we conclude that McCready has failed to raise a genuine issue of material fact thаt would warrant remand for additional evidentiary hearings because the information within the attached witness certifications fails to show that the absence of such testimony denied him the right to fair trial. Specifically, the purported testimony, as alleged in the witness’ certifications, neither provides a complete alibi nor shows S.L.H. was not credible.
L.T.‘s statement that McCready sometimes leased a car shows that McCready could have driven to the house where the abuse occurred and had a car that S.L.H. could have cleaned. Additionally, M.S.‘s statement that she was at the house every other weekend and A.S.‘s statement that she was at the house every weekend does not provide a complete alibi where Grandmother testified that her front door was often unlocked and that it is possible McCready came to her house to do laundry or assist the neighbor when no one was there. Additionally, Grandfather‘s statement asserts his irrelevant layman‘s opinion as to Attorney Ferguson‘s ineffectiveness and then attempts to name another perpetrator, neither providing McCready an alibi nor showing that S.L.H. was not credible. See also infra, n.5.
Further, with respect to S.L.H.‘s credibility, the jury was aware that S.L.H. had
Finally, S.L.H. clearly identified McCready has the perpetrator:
Prosecutor: Did [your parents suggest to you that [McCready] had to do it; it had to be [McCready]?
S.L.H.: “[My parents] knew [it was McCready] because I told them.”
Id., 1/22/14, at 92. Moreover, the witness certifications do not state facts that show S.L.H. wаs not credible.
Because the purported evidence in the witnesses’ certifications did not provide McCready a complete alibi and furthermore demonstrated that McCready had some access to a car, we conclude that the first layer of McCready‘s ineffective assistance of counsel claim is without merit. Defendant was neither prejudiced nor would the outcome of the trial have been different if these witnesses had been called to testify. Therefore, there is no need to remand to determine whether Attorney Puskar‘s representation was ineffective. Cf. Parrish, supra at 1006 (remand available where petitioner establishes issues of material fact regarding first layer of claim which, if proven, would entitle him to relief); Burkett, supra.
In light of the foregoing, the PCRA court did not abuse its discretion in dismissing McCready‘s PCRA petition. Heilman, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2023
Notes
Brief in Support of Motion for Change of Appointed Counsel, 5/16/19, at 1-2.[a]t the hearing on March 6, 2018, two witnessеs [McCready] claims were necessary to his case were unavailable. [I] had attempted, through [McCready‘s] mother[,] to have said witnesses present. However, both were out of town, enrolled in school[,] and could not attend. [McCready‘s m]other had insisted that they be provided with several dates certain and they would attempt to be present. It was explained to [McCready‘s m]other that it was not possible due to the [c]ourt‘s scheduling procedures. A prior hearing had been continued because the witnesses had told [McCready‘s m]other they would be present but failed to appear.