Com. v. McAnulty, R. ( 2018 )

J-S38033-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD A. MCANULTY, :
:
Appellant : No. 2 WDA 2018
Appeal from the PCRA Order November 28, 2017
in the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003108-2010
CP-65-CR-0003147-2010
BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 27, 2018
Richard A. McAnulty (Appellant) appeals from the November 28, 20171
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm, albeit on a different basis
than the PCRA court.2
The facts underlying Appellant’s convictions were detailed at length by
a prior panel of this Court. See Commonwealth v. McAnulty, 81 A.3d
1004 (Pa. Super. 2013) (unpublished memorandum at 2-9). Briefly,
1The PCRA court’s opinion and order dismissing Appellant’s PCRA petition
was dated November 22, 2017, but was not filed until November 28, 2017.
We have updated the caption accordingly.
2 See Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super.
2010) (“It is well-settled that this Court may affirm on any basis.”).
*Retired Senior Judge assigned to the Superior Court.
J-S38033-18
Appellant was tried by a jury for the murder of his wife’s ex-paramour (the
victim). As part of his provocation defense, Appellant introduced into
evidence four e-mails that the victim had sent to Appellant’s wife, which
Appellant allegedly read the morning of the murder. The Commonwealth’s
computer expert, Glen Bard, was not available during trial to testify to their
authenticity, so Appellant called his wife as a witness in his case-in-chief to
authenticate the e-mails.3 She authenticated the e-mails and they were
introduced into evidence. At the conclusion of the trial, Appellant was
convicted of, inter alia, first-degree murder. On August 9, 2011, Appellant
was sentenced to life imprisonment without the possibility of parole, and a
consecutive term of five to ten years of incarceration for person not to
possess a firearm.
Following the denial of post-sentence motions, Appellant filed a notice
of appeal to this Court. Relevant to the instant appeal, in affirming
Appellant’s judgment of sentence, we found, inter alia, that the trial court
did not err in denying a missing witness jury instruction for Bard, and that
“Bard’s absence did not cause any prejudice to [Appellant] as [his wife]
authenticated the e-mail in question… and the court subsequently admitted
it into evidence. Bard’s testimony, therefore, would have been ‘merely
cumulative,’ of [Appellant’s wife’s] testimony.” McAnulty, 81 A.3d 10043 The Commonwealth did not call Appellant’s wife in its case-in-chief.
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(unpublished memorandum at 13-14) (citation omitted). On December 19,
2013, our Supreme Court denied Appellant’s petition for allowance of appeal.
See Commonwealth v. McAnulty, 83 A.3d 168 (Pa. 2013).
Appellant timely filed pro se his first PCRA petition on March 21, 2014.
The PCRA court appointed counsel, who filed an amended PCRA petition on
February 25, 2015, alleging that trial counsel was ineffective for, inter alia,
failing to call Bard to authenticate the e-mails. Specifically, Appellant
argued that this failure forced Appellant to call his wife to authenticate the e-
mails, and her testimony undermined the credibility of his expert witness
regarding his provocation defense. Amended PCRA Petition, 2/25/2015, at
10. Following a hearing at which Appellant’s trial counsel testified, the PCRA
court dismissed Appellant’s PCRA petition because “the prejudice element of
[Appellant’s] claim of ineffective assistance of counsel in failing to call []
Bard to authenticate the e-mails has been finally litigated[.]”4 PCRA Court
Opinion, 11/28/2017, at 9 (internal quotation marks omitted). Alternatively,
the PCRA court found that Appellant was not prejudiced by his wife’s
testimony. Id.4 We disagree with the trial court that Appellant’s claim was previously
litigated. This Court’s holding only considered whether Appellant was
prejudiced by counsel’s failure to call Bard. See McAnulty, 81 A.3d 1004(unpublished memorandum at 13-14). Appellant asserted in his PCRA
petition that because Bard was unavailable he was forced to call his wife as a
witness to authenticate the e-mails, and that he was prejudiced by her
testimony. Amended PCRA Petition, 2/25/2015, at 10. That claim has not
been previously litigated, and thus we address it on the merits.
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Appellant timely filed a notice of appeal to this Court.5 On appeal,
Appellant presents one claim for our consideration.
Whether the [PCRA] court erred in finding Appellant’s claim for
ineffective assistance of counsel, based on trial counsel’s failure
to call computer expert, Glen Bard, as a witness, is without merit
when the failure to call Mr. Bard as a witness to authenticate
emails favorable to Appellant’s defense theory forced Appellant
to call his [w]ife to authenticate the emails and while [she] did
authenticate the emails, she provided testimony that
undermined the credibility of [Appellant’s] forensic psychiatric
expert[] and [Appellant’s] defense strategy[.]
Appellant’s Brief at 4 (PCRA court answer omitted).
We begin with our standard of review.
This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review
is limited to the findings of the PCRA court and the evidence of
record and we do not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Similarly, we grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference
to its legal conclusions. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review is
plenary. Finally, we may affirm a PCRA court’s decision on any
grounds if the record supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
“To establish ineffectiveness of counsel, a PCRA petitioner must show
the underlying claim has arguable merit, counsel’s actions lacked any
5Appellant complied with Pa.R.A.P. 1925(b). The PCRA court complied with
Pa.R.A.P. 1925(a) by issuing a statement directing this Court to its opinion
and order dated November 22, 2017. PCRA Court Decree, 1/16/2018.
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reasonable basis, and counsel’s actions prejudiced the petitioner.”
Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations
omitted). “A failure to satisfy any prong of the ineffectiveness test requires
rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963
A.2d 409, 419 (Pa. 2009).
To be entitled to relief on a claim of ineffectiveness for failure to
call a witness, [an] appellant must demonstrate [that]: [1.] the
witness existed, [2.] was available, and [3.] willing to cooperate;
[4.] counsel knew or should have known of the witness; and [5.]
the absence of the witness’s testimony prejudiced [the]
appellant. A PCRA petitioner cannot succeed on such a claim if
the proposed witness’[s] testimony would not have materially
aided him. In such a case, the underlying-merit and prejudice
prongs of the [ineffective assistance of counsel] test logically
overlap. To show prejudice, the petitioner must demonstrate
that there is a reasonable probability that, but for counsel’s
allegedly unprofessional conduct, the result of the proceedings
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
Commonwealth v. Johnson, 139 A.3d 1257, 1284 (Pa. 2016) (internal
quotation marks and citations omitted).
Appellant asserted in his PCRA petition that because Bard was
unavailable he was forced to call his wife as a witness to authenticate the e-
mails, and that he was prejudiced by her testimony. Amended PCRA
Petition, 2/25/2015, at 10. During Appellant’s case-in-chief, Appellant’s wife
testified on cross-examination that she was aware that Appellant had read
the first three e-mails, but was unaware whether he had read the fourth and
most recent e-mail, dated June 21, 2010. N.T., 7/7/2011-7/18/2011, at
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660-61. According to Appellant, this testimony “undermined the credibility
of defense expert Dr. Bernstein who wrote his report and testified based on
the fact that [Appellant] had viewed the e[-]mail dated June 21, 2010, along
with the other three emails … [before he] went into an extended period of
rage for hours[.]” Appellant’s Brief at 16.
We agree with the PCRA court that Appellant’s wife’s “testimony that
she was unaware whether [Appellant] had read the fourth e-mail of June 21,
2010, most certainly does not contradict his defense that he had read it, and
her testimony which accompanied her authentication of the four e-mails was
in no way prejudicial.” PCRA Court Opinion, 11/28/2017, at 9. Appellant’s
wife did not testify that Appellant had not read the e-mail, she merely
stated that she was unaware personally whether he had or had not read the
e-mail. This in no way contradicts Dr. Bernstein’s testimony that Appellant
had read all four e-mails the morning of the murder. Moreover, upon review
of her testimony in its entirety, we can discern no statement that was
prejudicial to Appellant. In fact, her testimony bolstered his defense by
affirming that he was aware of the first three e-mails and had access to her
personal e-mail account. N.T., 7/7/2011, 7/11-14/2011, & 7/18/2011, at
658-62.
Accordingly, we conclude that Appellant was not prejudiced by his
wife’s testimony. Because Appellant has not proven the prejudice prong, the
PCRA court did not err in dismissing Appellant’s PCRA petition. See
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Daniels, supra (“A failure to satisfy any prong of the ineffectiveness test
requires rejection of the claim of ineffectiveness.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2018
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