J-S30045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
      ___
      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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