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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 Super. 2013) (unpublished memorandum at 2-9).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 1004


3   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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