Com. v. Metcalf, J. ( 2019 )

J-S51034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMIAH LEE METCALF, :
:
Appellant : No. 642 MDA 2019
Appeal from the PCRA Order Entered April 16, 2019
in the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0004073-2016
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 29, 2019
Jeremiah Lee Metcalf (“Metcalf”) appeals, pro se, from the Order
denying his Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court previously set forth the relevant factual background as
follows:
On December 9, 2019, the owner of a Shippensburg
lumberyard alerted officers to a suspicious vehicle. The vehicle
was parked in his storage lot with the engine running. He
estimated that it had been sitting there for an hour or more before
he decided to call the police.
Officer [Kimberly] Wolfe [(“Officer Wolfe”)] of the
Shippensburg Police Department was the first officer to arrive on
scene. [Officer Wolfe] met with the owner in the alley adjacent to
the lot. The owner directed [Officer Wolfe] to where the vehicle
was parked. By that time, Officer [Andrew] Cramer [(“Officer
Cramer”)] had also arrived. Both officers drove their cruisers into
the storage lot. The lot itself contained rows of lumber[,] which
created three separate lanes of travel within the yard. All three
lanes met so as to form a circle around the entire lot with a center
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lane dividing it. Officer Wolfe pulled into the lane furthest to the
right and parked behind the white vehicle. Officer Cramer parked
his cruiser in the center lane.
Both officers approached the vehicle. They found [Metcalf]
in the passenger seat. He appeared to be passed-out in the
vehicle with the engine still running. One officer opened the
driver-side door to wake up [Metcalf]. They noticed that [Metcalf]
was only dressed from the waist down and did not have on any
shoes. The other officer opened the passenger door to directly
engage with [Metcalf]. [Metcalf] acted confused and his
responses to police questioning did not make sense. Officer
Cramer then asked [Metcalf] to step out of the vehicle. After
putting on a hoodie and his shoes, [Metcalf] complied. [Metcalf]
consented to a search of his vehicle, at which time the officers
asked him to wait off to the side.
The police dash-cam recorder showed the officers as they
performed their search of [Metcalf’s] vehicle. As they searched,
[Metcalf] sprinted toward Officer Cramer’s police cruiser. Before
the officers were able to stop him, [Metcalf] took off in the cruiser.
As the cruiser headed down the left lane toward the exit, Officer
Wolfe jumped in her cruiser. Officer Cramer ran down the center
lane, parallel to [Metcalf] in the left lane. [Metcalf], in the cruiser,
and Officer Cramer, on foot, neared the front of the lot at the same
time. Officer Cramer raised his firearm and directed [Metcalf] to
stop. [Metcalf] failed to stop[,] and drove the cruiser in Officer
Cramer’s direction. Fearing that [Metcalf] might strike him,
Officer Cramer fired shots at the cruiser. [Metcalf] quickly veered
away from him and off toward the exit. Unbeknownst to the
officers, [Metcalf] had been struck by one of the shots.
Officer Wolfe followed [Metcalf] through Shippensburg. At
times, [Metcalf] was clocked in excess of sixty-five miles per hour
(65 MPH) in areas where the posted speed limit was thirty-five
miles per hour (35 MPH). In addition, the chase took place in the
afternoon while numerous pedestrians and vehicles were out and
about. During the chase, [Metcalf] had stopped the cruiser on at
least two occasions. Each time[,] as Officer Wolfe exited her
cruiser to approach [Metcalf], he took off again. [Metcalf] was
finally stopped as other law enforcement units arrived. Upon
seeing that [Metcalf] was in need of medical assistance, the
officers administered first-aid and called for paramedics.
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Trial Court Opinion, 5/10/18, at 1-3.
A jury found Metcalf guilty of fleeing or attempting to elude a police
officer, unauthorized use of an automobile, and recklessly endangering
another person (“REAP”).1 Additionally, the trial court found Metcalf guilty of
the summary offense of driving under suspension (relating to driving under
the influence).2 Following the preparation of a pre-sentence investigation
report, the trial court sentenced Metcalf to an aggregate prison term of 27 to
108 months, plus the costs of prosecution.3
Metcalf, pro se, filed the instant timely PCRA Petition on September 13,
2018, his second.4 The PCRA court appointed Metcalf counsel, after which
Metcalf filed a Motion to Proceed Pro Se. Following a Grazier5 hearing, the
PCRA court granted Metcalf leave to proceed pro se, vacated PCRA counsel’s
appointment, and appointed standby counsel. The PCRA court conducted an
____________________________________________
1 75 Pa.C.S.A. §§ 3733, 3928; 18 Pa.C.S.A. § 2705.
2 75 Pa.C.S.A. § 1543(b)(1).
3 For his driving under suspension conviction, the trial court also sentenced
Metcalf to a 60-day prison term, to be served in county prison, and imposed
a $500.00 fine. The trial court granted Metcalf 60 days of time credit on this
conviction.
4 Metcalf had previously filed a PCRA Petition while his direct appeal was
pending. The PCRA court dismissed Metcalf’s first Petition for lack of
jurisdiction, and Metcalf subsequently withdrew his direct appeal in order to
pursue post-conviction relief.
5 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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evidentiary hearing on January 3, 2019, and subsequently denied Metcalf’s
Petition. Metcalf filed a timely, pro se Notice of Appeal and a Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
Metcalf now raises the following issues for our review:
I. Did the PCRA court err in determining ineffective assistance of
counsel was not demonstrated in relation to counsel failing to
investigate and subsequently present the insanity defense[?]
II. Did the PCRA court err in not finding prejudice on [Metcalf’s]
claim of prosecutorial misconduct concerning inflammatory
remarks in concluding the jury could have found [Metcalf] guilty
during trial based on a sole finding that a high-speed chase had
occurred[?]
III. Did the PCRA court err in denying additional claims [Metcalf]
raised in his Petition[,] without allowing [Metcalf] to fully develop
those claims on direct examination[?]
Brief for Appellant at 4.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Reid, 99 A.3d 470, 481 (Pa. 2014) (citation and
quotation marks omitted). “The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. The PCRA
court’s factual determinations are entitled to deference, but its legal
determinations are subject to our plenary review.” Commonwealth v. Nero,
58 A.3d 802, 805 (Pa. Super. 2012) (internal citations and quotation marks
omitted).
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In his first claim, Metcalf argues that trial counsel was ineffective for
failing to investigate and present an insanity defense. See Brief for Appellant
at 10-20. Metcalf claims that trial counsel decided not to pursue an insanity
defense based on his belief that any discussion about mental health could be
detrimental to Metcalf’s case. Id. at 13, 15. Regarding whether he suffered
prejudice as a result of trial counsel’s failure, Metcalf asserts that “it is
reasonable that the jury would not have found [Metcalf] mentally culpable….”
Id. at 19.
The PCRA permits relief when a conviction is the result of “[i]neffective
assistance of counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations
omitted). “A PCRA petitioner must address each of these prongs on appeal.”
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
In order to prevail on an insanity defense, [an a]ppellant
must prove by a preponderance of the evidence that, at the time
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he committed the offense, due to a defect of reason or disease of
mind, he either did not know the nature and quality of the act or
did not know that the act was wrong.
Commonwealth v. Smith, 17 A.3d 873, 901 (Pa. 2011); see also
Commonwealth v. Hughes, 865 A.2d 761, 788 (Pa. 2004) (stating that “[a]
defense of insanity acknowledges commission of the act by the defendant,
while maintaining the absence of legal culpability.”).
Metcalf states generally that, at the time of the incident, he had been
“suspended from his psychiatric medications” and “suffers from mental
abnormalities.” Brief for Appellant at 17, 20. However, the PCRA court stated
in its Opinion that “at the evidentiary hearing, [Metcalf] failed to demonstrate
that such a defense existed. [Metcalf] did not present medical evidence, nor
did he present testimony of an expert who trial counsel could have used during
trial to support such a defense.” PCRA Court Opinion, 5/10/19, at 2. Metcalf
similarly failed to identify any specific medical evidence that would support his
claim in his appellate brief. Additionally, Metcalf fails to assert that he “did
not know the nature and quality of the act or did not know that the act was
wrong.” Smith, 17 A.3d at 901. Because Metcalf has failed to establish that
his underlying claim is of arguable merit, we conclude that trial counsel was
not ineffective for failing to raise an insanity defense.
In his second claim, Metcalf contends that trial counsel improperly failed
to object to the following statements, made by the Assistant District Attorney
during opening and closing arguments:
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 “You have a job to do, and it really boils down to deciding the
credibility of [Metcalf] versus the police officer in this case….”
N.T., 9/14/17, at 155.
 “Think about that for a second if you were walking along the street
and you see this coming. Think about that if your children or your
family members are out along that street and you see this
coming.” Id. at 157.
 “Unfortunately, from our common experience in the terrorist
incidents that have happened over in France, and even here in our
country, where an individual was mowed down and killed by a
vehicle, we all know that a vehicle can be a deadly weapon.” N.T.,
9/13/17, at 16.
Brief for Appellant at 21-22.
“[I]neffectiveness claims stemming from a failure to object to a
prosecutor’s conduct may succeed when the petitioner demonstrates that the
prosecutor’s actions violated a constitutionally or statutorily protected right….”
Commonwealth v. Tedford, 960 A.2d 1, 29 (Pa. 2008). Additionally,
[c]omments by a prosecutor constitute reversible error only where
their unavoidable effect is to prejudice the jury, forming in their
minds a fixed bias and hostility toward the defendant such that
they could not weigh the evidence objectively and render a fair
verdict. The prosecution’s statements are unobjectionable if they
are based on the evidence or proper inferences therefrom, or
represent mere oratorical flair.
Id. at 33 (citations and quotation marks omitted).
The PCRA court concluded, and we agree, that Metcalf failed to establish
that he was prejudiced as a result of trial counsel’s failure to object to each of
the above statements. See PCRA Court Opinion, 5/10/19, at 2-3. Metcalf
fails to explain how he believes the outcome of the proceedings would have
been different if not for the cited statements made by the prosecutor. See
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Franklin, supra. Instead, Metcalf baldly states that it is “logical” to conclude
that the comments prevented the jury from rendering a “true verdict.” Brief
for Appellant at 25. Additionally, the PCRA court correctly noted that the jury
found Metcalf not guilty of the most serious charges he faced (i.e., aggravated
assault and aggravated assault of a police officer). See id. at 2; see also
Order, 4/16/19, n.1 (stating that “[t]he compelling fact is that the jury
acquitted [Metcalf] of the most egregious offenses alleged to have been
perpetrated against the officer.” (emphasis added)). Because Metcalf failed
to establish that he was prejudiced by trial counsel’s purported failure, he is
not entitled to relief on this claim.
In his third claim, Metcalf asserts that the PCRA court erred in denying
certain claims he raised in his Petition, without allowing him to develop those
claims during the PCRA hearing. Brief for Appellant at 27. Metcalf argues that
he attempted to raise a claim of ineffectiveness regarding trial counsel’s failure
to object to the trial court’s jury instruction regarding REAP, which Metcalf
believes broadened the scope of the REAP charge. Id. Additionally, Metcalf
points to statements made by the magisterial district judge, and claims that
the REAP charge was bound over for trial only as to Officer Cramer. Id. at
28. According to Metcalf, “there is no way of knowing whether the jury found
[Metcalf] guilty of the [REAP] charge as linked to Officer Cramer or the general
public….” Id. at 29.
Upon review, we conclude that Metcalf’s underlying claim is belied by
the record. The PCRA court stated during the PCRA hearing that Metcalf would
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be afforded the opportunity to present each of his arguments concerning his
ineffectiveness claims. N.T., 1/3/19, at 4-5 (wherein the PCRA court stated,
“[y]ou can present all of the evidence you have. … We’re talking about
ineffective assistance of counsel, and you can present anything you want with
regard to that claim….”). Metcalf also questioned trial counsel regarding the
argument against the REAP charge that counsel had made during the
preliminary hearing. See id. at 20-23. Metcalf twice attempted to refer to
the magisterial district judge’s stated reason for binding the REAP charge over
for trial, and the PCRA court explained that such evidence was not relevant.
See id. Nevertheless, the PCRA court permitted Metcalf to present a portion
of the preliminary hearing transcript, wherein the magisterial district judge
indicated he would bind over the REAP charge. Id. at 23; see also id.
(admitting into evidence Petitioner’s Exhibit No. 2). Metcalf thereafter
restated his argument, and the PCRA court indicated its understanding. Id.
at 23-24. Because the PCRA court did, in fact, permit Metcalf to develop his
claim during the PCRA hearing, Metcalf is not entitled to relief on this claim.
Based upon the foregoing, we affirm the PCRA court’s Order denying
Metcalf’s PCRA Petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2019
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