Com. v. Smith, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARY JO SMITH :
:
Appellant : No. 329 WDA 2020
Appeal from the PCRA Order Entered January 31, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000428-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 14, 2020
Appellant Mary Jo Smith appeals from the Order entered in the Court of
Common Pleas of Fayette County on January 31, 2020, denying her petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
On direct appeal, a panel of this Court previously reiterated the trial
court’s recitation of the relevant facts and set forth the procedural history
herein as follows:
On December 5, 2016, at approximately 5:00 to 5:30 p.m.,
Mr. Alan K. McCutcheon was at his Dunbar Township home [in]
Connellsville, Fayette County, Pennsylvania[,] in his front yard
decorating for Christmas. [A] Jeep pulled up in front of the house.
Mr. McCutcheon did not recognize the vehicle and he could not see
who was driving the vehicle. Music was blaring from the Jeep and
an individual inside yelled “Merry Fucking Christmas” from the
open window of the vehicle. Mr. McCutcheon then yelled back
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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asking “who is that?” to which no answer was given. Mr.
McCutcheon, beginning to fear imminent harm, continued to try
to establish the identity of the individual in the Jeep. Mr.
McCutcheon informed the occupant that he [had a gun in the
house. N.T. Trial, 5/7/18, at 16.] A female voice responded from
the vehicle. The Jeep then began to move toward Mr. McCutcheon
. . . entering the yard. The driver of the Jeep turned . . . in the
direction of Mr. McCutcheon. Mr. McCutcheon took cover behind a
tree. The Jeep proceeded to circle through the yard three times
coming at Mr. McCutcheon. . . . As the vehicle circled through the
yard, Mr. McCutcheon was able to identify the driver, by her voice
and by sight. Mr. McCutcheon identified the driver as the
Appellant. Mr. McCutcheon knew the Appellant from a prior
relationship which had existed 29 years prior to the events of
December 5, 2016. [Mr. McCutcheon had not seen or talked to
Appellant for 8 or 10 years. Id. at 21.]
All of Mr. McCutcheon’s outdoor Christmas decorations were
destroyed by the Jeep driving through his yard. After driving
through the yard three times, the Jeep drove off down the road.
Mr. McCutcheon then got into his truck and drove off. He initially
intended to drive to the Connellsville Police station, but realizing
his home was located in Dunbar Township, instead called the State
Police from the truck. He then called his wife, Mrs. Donna
McCutcheon, who was on her way home from work and instructed
her not to go to the house until he returned. Mr. and Mrs.
McCutcheon arrived back at their home at the same time.
Shortly after the McCutcheon’s returned to the house, and
approximately fifteen (15) to twenty (20) minutes after the white
Jeep had left, the same vehicle returned to the property. The
vehicle entered the yard and began coming toward Mrs.
McCutcheon who was able to get inside the front door of the home.
Appellant missed hitting Mrs. McCutcheon by approximately three
(3) feet. Appellant impacted the flower plant and paver stones in
front of the house just as Mrs. McCutcheon jumped inside the
door. Appellant then drove around the house taking out five (5)
shrubs, hit the foundation of the house, entered the back yard,
and drove the vehicle into the swimming pool, hitting the pool four
(4) or five (5) times. This is where Appellant got the vehicle stuck.
However, Appellant got the Jeep out. At this time, Mr.
McCutcheon’s step-daughter, Hillary, arrived in her car. Appellant
ran into the front of Hillary’s car in the driveway with Hillary inside
the car. Appellant then backed up and hit Hillary’s car again, albeit
at a low rate of speed. Appellant exited the Jeep. Hillary exited
her vehicle. Appellant came at Hillary with her fists raised. [Hillary
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recognized Appellant as Mr. McCutcheon’s ex-girlfriend. N.T.,
5/7/18, at 68.] Hillary then pinned Appellant to the ground.
Approximately ten (10) minutes later, the State Police arrived at
the scene. Trial Court Opinion, 7/16/18, at 2-4 (some citations to
notes of testimony omitted). A blood alcohol test taken around
7:38 that evening indicated that Appellant had a blood alcohol rate
of 0.127%. N.T., 5/7/18, at 102, 114. Further, Mr. McCutcheon
testified that the “insurance came to $13,000 worth of damages”
to the pool, yard, and front of the house. Id. at 32-33.
Appellant was charged with, inter alia, two counts each of
aggravated assault, simple assault, and recklessly endangering
another person (REAP), and one count each of criminal mischief,2
DUI, and reckless driving. The case proceeded to a two-day jury
trial on May 7, 2018. The Commonwealth presented the testimony
of Mr. and Mrs. McCutcheon, Hillary, responding police officers,
and a neighbor, who is the Connellsville Chief of Police and
witnessed Appellant’s car “doing donuts and spinning” in the
McCutcheons’ yard. See N.T., 5/7/18, at 72.
Appellant testified in her defense, stating that on the day of
the incident, she drank two Long Island iced teas at a “club” and
subsequently vodka at another person’s home. N.T., 5/7/18, at
127, 137-138. Appellant did not remember leaving that home or
driving to the McCutcheons’ house. Id. at 133, 136, 138. Appellant
recalled, however, sitting in her vehicle on the McCutcheons’
property, and Mr. McCutcheon talking to her. Id. at 134, 136.
Appellant did not hear well and thus “pulled up a little bit” to hear
him. Id at 134, 136. Appellant did not remember what happened
next, but testified that she did not intend to hurt anyone. Id. at
134, 143. Appellant recalled “waking up and [Hillary] pounding
[her] in the face.” Id. at 134, 139. Appellant also did not remember
signing consent for a blood alcohol test. Id. at 135. Finally,
Appellant testified that the McCutcheons “ha[d her] children beat,”
“physically assaulted,” and “severely traumatized” for 20 years,
that there were “medical records” evidencing such abuse, and that
the McCutcheons “had [her] neck almost broke in the middle of
Connellsville.” Id. at 141-142. Appellant also acknowledged that
she posted messages on Facebook about the McCutcheons. Id. at
141, 143.
The jury found Appellant guilty of two counts each of
aggravated assault, simple assault, and recklessly endangering
another person (REAP) —all with respect to Mr. and Mrs.
McCutcheon — and one count each of criminal mischief and DUI.
The jury found Appellant not guilty of simple assault against
Hillary. On the same day, the trial court found Appellant guilty of
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reckless driving. On May 15, 2018, the trial court sentenced
Appellant to consecutive sentences of 15 to 30 months of
imprisonment for the two aggravated assault convictions; a
mandatory 48 hours to 6 months of imprisonment for DUI; and
four years of probation for criminal mischief.
Appellant did not file a post-sentence motion, but took this
timely appeal.
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2 18 Pa.C.S.A. §§ 2701(a)(1), 2705, 3304(a)(5).
Commonwealth v. Smith, 769 WDA 2018, at 1-5 (Pa.Super. 2018)
(unpublished memorandum).
First finding Appellant had waived her challenge to the sufficiency of the
evidence to sustain her aggravated assault convictions and later, in the
alternative, that such a challenge lacked merit, this Court affirmed Appellant’s
judgment of sentence, and the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on June 25, 2019.
Commonwealth v. Smith, 215 A.3d 969 (Table).
On June 6, 2019, Appellant filed the instant PCRA petition, her first.
Following a hearing, the PCRA court denied Appellant’s petition in its Order
entered on January 31, 2020. Appellant timely appealed, and in her brief she
presents the following questions for our review:
1. WHETHER THE FAYETTE COUNTY PUBLIC DEFENDER'S
OFFICE WAS INEFFECTIVE FOR FAILING TO CHALLENGE ON
APPEAL THE BLOOD TEST PERFORMED ON APPELLANT?
2. WHETHER THE FAYETTE COUNTY PUBLIC DEFENDER'S OFFICE
WAS INEFFECTIVE FOR FAILING TO FULLY DISCUSS THE CASE
WITH APPELLANT PRIOR TO TRIAL?
Brief for Appellant at 3.
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Our standard of review of Appellant’s challenges to trial counsel’s
advocacy is well-settled. In reviewing claims of ineffective assistance of
counsel, counsel is presumed to be effective, and the petitioner bears the
burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112
(Pa.Super. 2018). In order to prove ineffective assistance of counsel, a
petitioner must plead and prove (1) the legal claim underlying the
ineffectiveness claim has arguable merit; (2) counsel’s action or inaction
lacked any reasonable basis designed to effectuate petitioner’s interest; and
(3) counsel’s action or inaction resulted in prejudice to petitioner. Id. (citation
omitted). The petitioner must plead and prove all three prongs, and the failure
to establish any one prong warrants denial of petitioner’s ineffectiveness
claim. Id. Counsel cannot be found to be ineffective for failing to raise a claim
that is devoid of merit. Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa.
2009).
In support of her issues raised on appeal, Appellant generally avers that:
During the PCRA Hearing. Appellant testified that prior to
trial she met with: Mary Spegar, Esq. another Assistant Public
Defender for a couple of minutes; with Jeffrey Whiteko, Esq., the
Public Defender, for about fifteen (15) minutes; and she met with
her trial counsel, Attorney Clark, for only about fifteen (15)
minutes. PCRA Proceedings at 10-14. Appellant specifically
testified that Attorney Clark did not give her the time to fully
discuss the case with him. PCRA Proceedings at 11. Attorney Clark
testified that he called Appellant the week before the trial, and
met with her for about an hour on the day her trial began. PCRA
Proceedings at 21-22. In addition, Attorney Clark admitted: that
he objected to the admission of the blood test; that the Court
overruled his objection; that he believed that his objection had
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merit; and that his Office did not raise this issue on appeal. PCRA
proceedings at 24.
Brief for Appellant at 5. Specifically with regard to her first claim, Appellant
reasons as follows:
Appellant's PCRA claim has arguable merit, because the
Commonwealth cannot show that Appellant's consent was the
product of an essentially free and unconstrained choice. To this
end, Appellant's level of intoxication and her psychiatric problems
at the time of the blood draw would have inhibited her ability to
understand her right to refuse to consent. In fact, Attorney Clark
himself acknowledged this fact when he admitted that he believed
that his objection in regards to the voluntariness of Appellant's
blood draw had merit. The Fayette County Public Defender's Office
has no reasonable basis for failing to raise this issue on appeal.
Appellant was prejudiced by the Public Defender's Office's
ineffectiveness, because she was denied the opportunity to raise
this meritorious issue on appeal. Therefore, the PCRA Court erred
by failing to grant Appellant's Petition on this issue, and Appellant
should have her right to appeal reinstated or be granted a new
trial.
Brief for Appellant at 11.
The fact that trial counsel believed he had raised a meritorious objection
at trial does not lead to the conclusion that he was ineffective for choosing not
to challenge the trial court’s overruling of that objection on direct appeal.
Indeed, even assuming this claim has arguable merit, Appellant presented no
testimony at the PCRA hearing to show a challenge to her consent for the
blood draw would have been meritorious on direct appeal. Even if it were,
there was still ample evidence to support Appellant’s DUI conviction. This is
especially so considering Appellant’s admission at trial that she had consumed
various types of alcoholic beverages before she drove her vehicle to the
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victims’ home and that she was “out of her mind” at the time. Accordingly,
Appellant has failed to establish prejudice, and the PCRA court properly denied
this claim. Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super.
2014) (“Counsel's assistance is deemed constitutionally effective once this
Court determines that the defendant has not established any one of the prongs
of the ineffectiveness test”).
Next, Appellant asserts that trial counsel had not spent sufficient time
consulting with her to prepare an adequate defense. However, counsel will
not be deemed per se ineffective merely because of the alleged short amount
of time he or she has met with his or her client, for the time counsel actually
spends with the accused discussing the case is not necessarily related to, and
affords no basis for inferring, the extent of total trial preparation. “[T]he
governing standard requires a defendant to establish that he was prejudiced
by trial counsel's failure to meet with him in order to prepare adequately for
trial. This can be demonstrated by alleging beneficial information or issues
that counsel should have presented had he been prepared adequately, which
would have changed the outcome of the trial.” Commonwealth v. Elliott,
622 Pa. 236, 263, 80 A.3d 415, 432 (2013).
Herein, Appellant baldly claims that a one hour, face-to-face,
conversation could not have provided counsel with enough time in which to
plan a trial strategy for the aggravated assault charges; therefore, he was
unprepared for trial. Brief for Appellant at 13-14. However, this general
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allegation fails to establish that any additional time spent with counsel could
have changed the outcome of Appellant’s trial.
Moreover, the trial court credited counsel’s testimony over that of
Appellant pertaining to the time the pair consulted in preparation of trial. Trial
Court Opinion, 4/14/20, at 4 (unnumbered). Our Supreme Court has held
that “[t]he PCRA court's credibility determinations, when supported by the
record, are binding on this Court.” Commonwealth v. Spotz, 18 A.3d 244,
259 (Pa. 2011) (citation omitted). As Appellant acknowledges, counsel
testified he had contacted Appellant via telephone a week prior to trial and
met with her in person for an hour prior thereto. As such, Appellant had
numerous days in which to prepare Appellants defense, not just a few minutes.
Accordingly, we find no error in the PCRA court's determination that this claim
lacks arguable merit and, therefore, it, too, must fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2020
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