Com. v. McCrommon, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHANE LENELL MCCROMMON :
:
Appellant : No. 1479 WDA 2018
Appeal from the PCRA Order Entered September 10, 2018
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0004830-2013,
CP-65-CR-0005377-2014
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*1, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 1, 2020
Shane Lenell McCrommon appeals the denial of his request for relief
under the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-
9546. The PCRA court denied the petition, concluding that there were no
meritorious issues raised in the petition. We affirm.
The facts relevant to this appeal are as follows. We do not include facts
pertaining to the docket number ending in 5377, as they are unrelated to this
appeal. McCrommon’s issues challenge his judgment under the docket number
ending in 4830.
[O]n the evening of June 26, 2012, Jeffrey Edwards (hereinafter
“Victim”) travelled with Lisa Schreckengost to her residence after
purchasing and smoking crack at a “trap house” known as
“Larry’s.” Victim and Schreckengost went inside of the residence
upon arrival. [McCrommon] was present inside the “large
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* Retired Senior Judge assigned to the Superior Court.
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bedroom” of the residence with “Big Jay” and Takayla Witcher.
[McCrommon] was allegedly upset with Victim because he felt
Victim was “stepping on his toes when it came to selling drugs.”
[McCrommon] requested that Victim speak with him.
Schreckengost remained in the “back bedroom” of the residence
with Michelle Monfredi. Victim proceeded into the “front bedroom”
with [McCrommon]. [McCrommon] then allegedly asked Victim if
he was “back-dooring” him. [McCrommon] subsequently punched
Victim in the face and repeatedly struck him. Witcher testified that
[McCrommon] was “beating” and kicking Victim. She also claimed
that [McCrommon] “ran over” Victim’s head with a vacuum.
Witcher alleged that she told [McCrommon] to stop and he looked
at her “as if [she] said something wrong.” Additionally, she
testified that “Big Jay” did not say or do anything while
[McCrommon] was striking Victim.
Schreckengost testified that she heard yelling and a “big thump,
like something hitting the wall” coming from the “big bedroom.”
At one point, she exited a small room and observed [McCrommon]
kicking Victim in his side and face. She estimated that this
occurred for seven (7) to ten (10) minutes. Monfredi testified that
she heard “grunting and moaning” coming from the bedroom “like,
somebody was getting beat up.” She estimated that these sounds
continuously occurred for about five (5) to ten (10) minutes.
Witcher testified that, after this incident occurred, [McCrommon]
paced the room while speaking out loud to himself. She recalled
[McCrommon] making statements regarding “Green Eyes back-
dooring him.” She also claimed that [McCrommon] told them not
to leave and he warned that they “better not say nothing.”
Schreckengost testified that Victim’s body was “propped up” once
the incident had ended and Jay and Monfredi began to pour water
on him. She further alleged that [McCrommon] offered Victim a
gram of crack to “wake him up.” Schreckengost testified that
Victim was gasping for air. Witcher described Victim’s body as
“lifeless” and she recalled seeing blood on Victim’s head and lip.
[McCrommon] subsequently left and allegedly instructed Monfredi
to “take care of it.” “Big Jay” and Witcher also left the residence.
Schreckengost testified that both her and Monfredi changed
Victim’s clothes. None of the individuals who were present at the
household contacted 911.
On the following day, Raymond Nelson testified that he received
a call to report to Schreckengost’s residence and drive an
individual named Katrina to the hospital. Once he had arrived at
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the residence, however, he discovered that Victim was actually
the individual who needed to be transported to the hospital.
Katrina directed Nelson to Victim. Nelson testified that Victim was
unconscious and not moving. He described Victim’s hands as
“stiff,” Victim appeared to have a “hole” in his lip, his eyes were
“rolling,” and he had defecated and urinated on himself. Nelson
placed Victim inside of his vehicle and drove him to the hospital.
Shortly after Victim arrived at the hospital, he appeared to be
“shaking” and “convulsing.” Registered nurse, Leighanne Saliba,
testified that Victim had bruising on his face, a small laceration on
his lip, his lips were swollen, and he was unconscious. She stated
that Victim only responded to painful stimuli by “posturing.” Saliba
defined “posturing” as a “physical response of the body to painful
stimuli when there’s a brain injury.” Victim was later transported
by Life Flight to Allegheny General Hospital. Neurosurgeon, James
Burgess, testified that an MRI was performed on Victim and it
revealed a spinal cord injury and trauma to the brain. Surgery was
performed on Victim. Victim was ultimately transferred to the
Forbes Nursing Facility and he later died on November 9, 2012.
Victim’s sister, Cheryl Edwards, testified that she often visited
Victim while he was at the hospital and nursing facility. During
these visits, Victim did not talk, he was unable to do anything on
his own, and he remained curled in a “fetal-type position.” Dr.
Kawita Vichare testified that, while at the Forbes Nursing Facility,
Victim developed a bladder infection and pneumonia. Victim had
to be placed on a ventilator, he was fed through a feeding tube,
and he required “complete care” from staff. Victim also showed
signs of encephalopathy and quadriplegia. Dr. Cyril Wecht opined
that Victim’s immediate cause of death was the development of
pneumonia. Additionally, he found that Victim’s underlying cause
of death was posttraumatic encephalopathy. Dr. Wecht testified
that this is a term given to “brain injury, as a result of some kind
of trauma.”
Amended Notice of Intention to Dismiss Motion for [PCRA] (“Amended 907
Notice”), filed 7/10/18, at 2-4.
The jury convicted McCrommon of third-degree murder and aggravated
assault. The trial court sentenced McCrommon to 20 to 40 years’ incarceration
and we affirmed the judgment of sentence. See Commonwealth v.
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McCrommon, 156 A.3d 333 (Pa.Super. filed Aug. 10, 2016) (unpublished
memorandum).
McCrommon then filed the instant, timely, pro se PCRA petition
challenging the judgment under the docket number ending in 4830. His PCRA
petition did not address the judgment under the other docket number, ending
in 5377. The PCRA court appointed counsel, who filed a Turner/Finley letter
and a motion to withdraw as counsel.2 The PCRA court issued a notice of intent
to dismiss McCrommon’s petition without a hearing, and McCrommon
responded, raising claims of ineffective assistance of PCRA counsel. 3 See
Pa.R.Crim.P. 907. The PCRA court then denied the PCRA petition and granted
counsel’s motion to withdraw. This timely appeal followed.
McCrommon raises the following issues:
I. Whether the PCRA court abused its discretion when it did a
wholesale adoption of PCRA counsel’s Turner/Finley no
merit letter?
II. Whether the PCRA court abused its discretion when it
declared that [McCrommon] did not act under a sudden and
intense passion resulting from serious provocation without
citing any standard of review?
III. Whether the PCRA court abused its discretion when it
declared that the facts set forth during trial do not support
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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3 The PCRA court filed an amended Rule 907 notice on July 10, 2018. However,
it was filed to “reflect the proper date in which the Opinion was signed, which
was actually July 6, 2018. The rest of the Opinion remains unchanged.” See
Amended Rule 907 Notice, at 1 n.1.
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a voluntary manslaughter instruction regarding the heat of
passion defense?
IV. Whether trial counsel was ineffective for failing to request a
voluntary manslaughter instruction; which violated
[McCrommon’s] due process, fair trial, jury trial and right to
counsel rights under federal and state provisions?
V. Whether PCRA counsel was ineffective for failing to raise
trial counsel’s ineffectiveness for failing to request a
voluntary manslaughter jury instruction.[sic] Which violated
[McCrommon’s] right to counsel under federal and state
provision and Pa.R.C.P.-904?
VI. Whether PCRA counsel was ineffective for failing to raise
trial counsel’s ineffectiveness for failing to request a corrupt
and polluted source charge regarding Commonwealth
witnesses Lisa Schreckengost and Michelle Monfredi’s
testimony; which violated [McCrommon’s] due process, jury
trial, and right to counsel rights guaranteed him under
federal and state provisions and Pa.R.C.P. 904?
VII. Whether PCRA counsel was ineffective for failing to raise
trial counsel’s constructive abandonment of [McCrommon]
during critical stage of the proceedings; which deprived
[McCrommon] of representation, violated [McCrommon’s]
right to due process, right to counsel rights guaranteed him
under federal and state provisions and Pa.R.C.P.-904?
VIII. Whether the PCRA court abused its discretion in failing to
hold an evidentiary hearing on claims where [McCrommon]
had raised genuine issues of material fact that entitle him
to relief?
IX. Whether there are genuine issues of material fact which
preclude quashal of the appeal?
McCrommon’s Br. at 2 (unnecessary capitalization omitted).
We address McCrommon’s last issue first, as it goes to whether this case
is properly before this Court. McCrommon filed a timely notice of appeal, but
put both lower court docket numbers on it, i.e., CP-65-CR-0004830-2013 and
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CP-65-CR-0005377-2014. This Court issued a rule on November 5, 2018,
directing McCrommon to show cause why his appeal should not be quashed
pursuant to Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018).
There, the Pennsylvania Supreme Court announced a bright-line rule that
“when a single order resolves issues arising on more than one lower court
docket,” an appellant must file separate notices of appeal, and the failure to
do so requires us to quash the appeal. Id. McCrommon responded that
Walker did not apply because “the substantive arguments that will be raised
are related to a single docket number[,] i.e.[,] the controlling criminal case
number namely No. 4830 C 2013[.]” See Response to Rule to Show Cause,
filed 11/29/18, at 3.
We entered an order discharging the rule to show cause, but later placed
the case on hold pending our en banc consideration of several cases
implicating the Walker rule and the holding of Commonwealth v. Creese,
216 A.3d 1142 (Pa.Super. 2019). Those cases have now resolved and we have
overruled Creese insofar as Creese held that “a notice of appeal may contain
only one docket number.” See Commonwealth v. Johnson, -- A.3d --,
2020 WL 3869723, at *5 (Pa.Super. 2020) (en banc) (emphasis in original).
As the order from which McCrommon appealed only resolved issues arising at
one docket number, and we have overruled Creese, we will not quash the
instant appeal. We now address the merits of McCrommon’s appeal.
McCrommon maintains that the PCRA court “abused its discretion by
doing a wholesale adoption of PCRA counsel’s Turner/Finley [n]o [m]erit
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[l]etter.” McCrommon’s Br. at 13. He cites to Commonwealth v. Glover, 738
A.2d 460, 466 (Pa. 1999), noting that the Glover Court held “that the PCRA
court cannot adopt counsel’s Turner/Finley [n]o [m]erit [l]etter in lieu of a
1925—(a) Opinion.” McCrommon’s Br. at 13.
We review the denial of PCRA relief to determine “whether the findings
of the PCRA court are supported by the record and free of legal error.”
Commonwealth v. Abu-Jamal, 833 A.2d 719, 723 (Pa. 2003).
This claim is meritless as Glover is inapplicable to the instant case. After
counsel filed his Turner/Finley letter, the PCRA court issued an opinion
pursuant to Rule 907. In this opinion, the court thoroughly discussed each of
the issues presented in McCrommon’s PCRA petition and explained that each
issue was meritless. See Amended Rule 907 Notice. In lieu of a Pa.R.A.P.
1925(a) opinion, the court relied on “the Amended Notice of Intention to
Dismiss dated July 10, 2018; and the Opinion and Order dated September 10,
2018[.]” See Decree Pursuant to Rule 1925(a), filed 10/24/18. Thus, the
PCRA court did not adopt counsel’s Turner/Finley letter in lieu of its 1925(a)
opinion.
Next, McCrommon claims that the PCRA court erred in concluding that
the facts of the case did not support that he acted under “a sudden and intense
passion,” as would have warranted a jury instruction for voluntary
manslaughter, such that trial counsel was not ineffective for failing to request
such an instruction. McCrommon’s Br. at 14. He argues that “[i]t is common
knowledge that individuals under the influence of cocaine exhibit erratic and
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violent behavior[,]” and “the facts of this case indicate that [McCrommon] had
a temper and came in contact with a Mr.[] Edwards who was under the
influence of cocaine, had a quarrel which ignited a fight.” Id. at 15.
A petitioner raising claims of ineffectiveness must overcome the
presumption that counsel is effective by demonstrating the following:
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;
3. counsel’s action or inaction resulted in prejudice to petitioner.
Commonwealth v. Becker, 192 A.3d 106, 112-13 (Pa.Super. 2018). “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).
A jury instruction for voluntary manslaughter with respect to a “heat of
passion” is appropriate where the evidence suggests “that, at the time of the
killing, [a]ppellant acted under a sudden and intense passion resulting from
serious provocation by the victim.” Commonwealth v. Sanchez, 82 A.3d
943, 979 (Pa. 2013) (quoting Commonwealth v. Montalvo, 986 A.2d 84,
100 (Pa. 2009)) (alteration in original). “If any of these be wanting – if there
be provocation without passion, or passion without a sufficient cause of
provocation, or there be time to cool, and reason has resumed its sway, the
killing will be murder.” Id. at 980 (quoting Commonwealth v. Hutchinson,
25 A.3d 277, 315 (Pa. 2011)).
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McCrommon’s recitation of the facts is inaccurate and unsupported by
the record, and the evidence here did not warrant a voluntary manslaughter
instruction. There was no testimony of a triggering event that could qualify as
adequate provocation. The testimony was clear that after McCrommon asked
the victim if he was “back-dooring” him, McCrommon beat, punched, struck,
and kicked the victim, and then proceeded to ram the victim’s head with a
vacuum cleaner. Thus, there was evidence of “passion” on McCrommon’s part
but no provocation by the victim. Therefore, as the PCRA concluded
McCrommon was not entitled to a voluntary manslaughter instruction. See
Sanchez, 82 A.3d at 979; see also Hutchinson, 25 A.3d at 315. To the
extent McCrommon appears to raise a direct challenge to the trial court’s
refusal to give such an instruction, such a claim is not cognizable under the
PCRA. See 42 Pa.C.S.A. § 9543.
McCrommon next argues that PCRA counsel was ineffective for failing to
raise a claim of trial counsel’s alleged ineffectiveness “for failing to request a
corrupt and polluted source charge to the jury” for Commonwealth witnesses
Schreckengost and Monfredi. McCrommon’s Br. at 23. He maintains that they
were his accomplices, and trial counsel should therefore have asked for such
an instruction.
A corrupt source instruction “is warranted only in cases in which there
is sufficient evidence to present a jury question with respect to whether the
witness is an accomplice.” Commonwealth v. Collins, 957 A.2d 237, 262
(Pa. 2008). “One merely present at the crime scene is not an accomplice . . .
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nor is one who merely helps an offender try to escape arrest or punishment
an accomplice.” Id. at 263 (citation omitted). Rather, an accomplice is defined
as follows:
(c) Accomplice defined. – A person is an accomplice of another
person in the commission of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
(i) solicits such other person to commit it;
or
(ii) aids or agrees or attempts to aid such
other person in planning or committing
it; or
(2) his conduct is expressly declared by law to establish his
complicity.
18 Pa.C.S.A. § 306(c).
Here, the PCRA court denied this claim, concluding that the instruction
was not warranted because “[t]he facts that were presented during trial do
not permit an inference that Schreckengost and Monfredi were accomplices.”
See Opinion and Order of Court, filed 9/11/18, at 6. It also concluded that
“the facts do not indicate that they had any intent of promoting or facilitating
the commission of the offense” or that they “participated in the commission
or planning of the crime.” Id.
We agree. Neither witness testified to promoting or facilitating
McCrommon’s violent assault of the victim. Both testified that they were in
another room at the time of the assault and that it was McCrommon who alone
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assaulted the victim, causing injuries that ultimately led to the victim’s death.
While there was testimony that they changed the victim’s clothing and also
poured water on the victim in an effort to clean him up, this evidence was
insufficient “to present a jury question with respect to whether the witness[es]
[were] accomplice[s].” Collins, 957 A.2d at 262. Neither action amounted to
soliciting or aiding McCrommon, or agreeing or attempting to aid him, in
planning or committing the attack. Rather, these acts occurred afterward.
Therefore, the PCRA court did not err in denying this meritless claim. See
Daniels, 963 A.2d at 419; see also Commonwealth v. Spotz, 896 A.2d
1191, 1210 (Pa. 2006) (“Counsel will not be deemed ineffective for failing to
raise a meritless claim”).
Next, McCrommon claims that PCRA counsel was ineffective for not
raising trial counsel’s alleged abandonment of McCrommon at the pretrial
conference. He maintains this claim is of arguable merit because “[h]ere as in
Powell [v. Alabama, 287 U.S. 45 (1932),] [trial counsel] had virtually no
opportunity to investigate the facts and prepare a defense which could satisfy
[McCrommon’s] right to effective assistance of counsel.” McCrommon’s Br. at
35. At the pretrial conference, McCrommon stated that he was requesting a
continuance because the day before the conference he had given trial counsel
a new list of witnesses to investigate. See N.T., Pretrial Conference, at 6.
McCrommon argues that the below portion of testimony from the pretrial
conference establishes that trial counsel was unprepared for trial and
therefore “incapable of representing [McCrommon] at trial:”
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[Trial Counsel]: I am going to be asking for a continuance on
[McCrommon’s] behalf. I would like him to address the Court as
well. But I do think it’s necessary for me for the record to indicate
several things.
Mr. McCrommon was originally represented by John Sweeney. He
was permitted to withdraw in November of 2014. I was appointed
to represent him, I believe, November 26th. At that time, the
Commonwealth filed a new charge of solicitation to hinder
prosecution. I think I was appointed the day before the
preliminary hearing at Magistrate Pallone’s in New Kensington. I
met with Mr. McCrommon prior to the preliminary hearing that
day. I did not get a chance or an opportunity to meet with Mr.
Sweeney until sometime in December to obtain the discovery
materials. And then due to some medical reasons, I was out of the
office from the end of December to about the middle of January.
So the reason I want to put this on the record is, I did not get to
– Mr. McCrommon has been housed at SCI-Greene. I did not get
to see him. I did not get to SCI-Greene to meet with him. So the
first time that I really had sat down to kind of discuss this case at
more length was when I went to the Westmoreland County Jail
yesterday for about an hour-and-a-half and met with him.
Id. at 31 (citing N.T., Pretrial, at 2-4); 35.
This claim of ineffective assistance of counsel is meritless for a number
of reasons. First, Powell is inapplicable to the case at hand. In Powell, “until
the very morning of the trial no lawyer had been named or definitely
designated to represent the defendants.” Powell, 287 U.S. at 57. Thus, the
Supreme Court held that “the failure of the trial court to give [the defendants]
reasonable time and opportunity to secure counsel was a clear denial of due
process.” Id. at 65. Here, unlike Powell, counsel was appointed months
before the trial. According to the docket, trial counsel was appointed in
November 2014. The trial was held in the beginning of April 2015. In that
time, counsel despite some medical issues, “reviewed the discovery materials”
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and “felt that [he] had a grasp on what witnesses the Commonwealth would
be calling and what to expect or anticipate.” N.T., PreTrial Conference at 5.
Second, counsel did not ask for a continuance because counsel was
generally unprepared, or had not had an opportunity to investigate, but rather
because McCrommon gave him list of potential witnesses at the 11th hour.
See id. at 11. It was McCrommon himself who told the court that he believed
a continuance was necessary because he felt he did not have “enough” time
to sit down with trial counsel. Id. at 10. He thus in effect conceded that
counsel had already discussed the case with McCrommon, which coincides
with counsel’s statement that he had met with McCrommon the day before for
about an hour and 30 minutes. See id. at 31. McCrommon also admitted on
the record that he had given a new list of witnesses to trial counsel. Id. at 6.
In denying the continuance, the trial court explained that McCrommon had
had plenty of time to let counsel know of any potential witnesses Id. at 13.
Based on the record, the PCRA court did not abuse its discretion in denying
McCrommon’s abandonment claim, as it lacks arguable merit.
Finally, McCrommon claims that the PCRA court abused its discretion by
failing to hold an evidentiary hearing. He maintains that he raised at least
“two substantial questions” warranting an evidentiary hearing. McCrommon’s
Br. at 37. He asserts one such question related to his claim that trial counsel
was ineffective for failing to ask for a voluntary manslaughter jury instruction.
Another allegedly relates to the ineffectiveness claim regarding the corrupt
and polluted source instruction.
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We review the denial of a request for an evidentiary hearing for an abuse
of discretion. Commonwealth v. Maddrey, 205 A.3d 323, 327 (Pa.Super.
2019). “There is no absolute right to an evidentiary hearing on a PCRA petition,
and if the PCRA court can determine from the record that no genuine issues
of material fact exist, then a hearing is not necessary.” Id. at 328 (quoting
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008)).
Here, the existing record establishes that all of McCrommon’s claims
lack merit. There was no genuine issue of material fact, and the PCRA court
did not abuse its discretion by not holding an evidentiary hearing. Jones, 942
A.2d at 906.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2020
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