J-S58012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 EUGENE JAMES MCCARTHY                     :
                                           :
                    Appellant              :    No. 145 WDA 2018

                Appeal from the PCRA Order January 8, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0011401-2012


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                         FILED NOVEMBER 05, 2018

      Appellant, Eugene James McCarthy, appeals from the order entered on

January 8, 2018, dismissing his first petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On direct appeal, we briefly summarized the facts and procedural history

of this case as follows:

      On August 7, 2012, Appellant, Quintelle Rankin, and Rankin's
      nephew, Corey Estes, were driving around in Appellant's car
      looking for a marijuana source. While they were in the car,
      Appellant, who was driving near the Brinton Manor Apartment
      area said that it looked “like there was licks up there.” Estes
      testified that “licks” is street slang for “robbery.” Appellant parked
      the car and the trio began to walk around looking for people with
      marijuana.

      Appellant and his comrades encountered two males sitting on the
      steps of one of the apartment buildings. One of the males,
      Brandon Johns (“Victim”), said that he had marijuana and the trio
      followed him to a nearby building. When the four of them were in
      the building hallway, Victim sat on the steps, pulled out a bag of
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       marijuana and a scale, and began to weigh out some marijuana
       for $20.00 per gram, as they had discussed. Appellant proceeded
       to grab the entire bag of marijuana and said: “You might as well
       give me all the shit.” Rankin and Victim then produced guns and
       exchanged gunfire. While he was shooting, Rankin closed his eyes
       while firing his gun at Victim's chest and shoulder area. Victim
       died from multiple gunshot wounds to the neck and chest.

       On August 19, 2013, a jury convicted Appellant of [robbery
       (inflicts serious bodily injury), conspiracy to commit robbery
       (inflicts serious bodily injury), and third-degree murder1] and
       acquitted Appellant of second-degree murder and tampering with
       evidence. [The same jury convicted Rankin of second-degree
       murder, robbery (serious bodily injury), criminal conspiracy
       (robbery), and carrying a firearm without a license and acquitted
       Rankin of first-degree murder.] On November 18, 2013, the trial
       court sentenced Appellant to thirteen (13) to twenty-six (26)
       years' incarceration. [This Court affirmed Appellant’s judgment of
       sentence in an unpublished memorandum on January 15, 2016
       and our Supreme Court denied further review. Commonwealth
       v. McCarthy, 2016 WL 193402 (Pa. Super. 2016), appeal denied,
       141 A.3d 479 (Pa. 2016).]

Commonwealth v. McCarthy, 2016 WL 193402, at *1 (Pa. Super. 2016)

(unpublished memorandum) (record citations and some footnotes omitted).

       On November 9, 2016, Appellant filed a pro se PCRA petition. The PCRA

court appointed PCRA counsel, who ultimately withdrew after obtaining leave

of court. Thereafter, Appellant retained private counsel who filed an amended

PCRA petition on June 22, 2017. After granting several extensions, the PCRA

court entered notice of its intent to dismiss the amended PCRA petition

pursuant to Pa.R.Crim.P. 907 on September 12, 2017.          After receiving a

response from Appellant, the PCRA court ultimately held an evidentiary

____________________________________________


1   18 Pa.C.S.A. §§ 3701(a)(i), 903, and 2502(c), respectively.



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hearing on January 8, 2018.          The PCRA court dismissed Appellant’s PCRA

petition by order entered on January 8, 2018. This timely appeal resulted. 2

       On appeal, Appellant presents the following issues for our review:

       [2.]   Was [t]rial [c]ounsel ineffective, causing a conflict of
              interest for acting as both a witness and an advocate at
              trial?

       [1.]   Was [t]rial [c]ounsel ineffective for failing to request an
              accomplice charge at trial?

Appellant’s Brief at 4.3

       Appellant challenges the denial of his ineffective assistance of counsel

claims under the PCRA. We previously determined:

       Our standard of review of a PCRA court order granting or denying
       relief under the PCRA calls upon us to determine whether the
       determination of the PCRA court is supported by the evidence of
       record and is free of legal error.

                               *               *     *

       [Under the PCRA, c]ounsel is presumed to be effective. To prevail
       on a claim of ineffective assistance of counsel, a PCRA petitioner
       must prove each of the following: (1) the underlying legal claim
       was of arguable merit; (2) counsel had no reasonable strategic
       basis for his action or inaction; and (3) the petitioner was
       prejudiced—that is, but for counsel's deficient stewardship, there
       is a reasonable likelihood the outcome of the proceedings would
       have been different.

____________________________________________


2  On January 22, 2018, Appellant filed a notice of appeal. On January 23,
2018, the PCRA court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
May 10, 2018.

3   We reordered the issues presented for east of disposition.

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Commonwealth v. Pier, 182 A.3d 476, 478 (Pa. Super. 2018) (internal

citations and quotations omitted).

      In his first issue presented, Appellant claims that trial counsel “was

ineffective and had a conflict of interest where she acted as both an advocate

and a witness in defense of her own credibility.” Appellant’s Brief at 9. At

trial, “Commonwealth witness Corey Estes [testified that] defense counsel

visited him alone in the Allegheny County Jail on two occasions to try and get

him to suborn perjury and change his testimony against [Appellant].”             Id.

Appellant claims that the jury was diverted from the facts of this case and

more focused on his attorney defending herself.          Id. at 10-11.         Citing

Pennsylvania Rule of Professional Conduct 3.7, Appellant argues that an

attorney should not act as both an advocate and a necessary witness. Id. at

12.   Appellant claims that once trial counsel’s credibility was questioned, she

should have withdrawn from the case. Id. at 14.

      On this issue, the PCRA court opined:

      The record establishes that trial counsel visited Corey Estes two
      times (once with an investigator) in the Allegheny County Jail to
      interview him about his trial testimony. Just before trial, trial
      counsel learned that Estes was falsely claiming that [during a visit]
      trial counsel attempted to convince him to alter his statements
      and testify favorably for [Appellant] at trial. [At trial,] counsel []
      cross-examined Estes on these allegations [] and essentially
      attempted to argue to the jury that Estes’ lies about her attempts
      to suborn perjury should cause the jury to have doubts about the
      remainder of his trial testimony that incriminated [Appellant].
      [Appellant] claims that trial counsel’s efforts to link Estes’ lack of
      credibility about [Appellant’s] involvement in the crimes charged
      in this case to [the lack of credibility to be inferred from Estes’
      allegations] against trial counsel created a conflict of interest

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      because trial counsel was acting as both a witness and an
      advocate in this case. The record belies such conclusion.

      Trial counsel’s efforts on cross-examination to establish that Estes
      had lied when he accused her of exhorting him to alter his previous
      statements to the authorities and provide exculpatory testimony
      for [Appellant] was based on a sound trial strategy. Trial counsel
      was attempting to convince the jury that if Estes was lying about
      her, he was lying about [Appellant’s] involvement in the
      robbery/homicide.       Trial counsel was cleverly attempting to
      discredit Estes by arguing that he had lied to the District
      Attorney’s Office about her actions. Trial counsel testified [at the
      PCRA evidentiary hearing] that the efforts to buttress her integrity
      by arguing that Estes was a liar were designed to benefit her client
      in the trial. [The PCRA c]ourt [found] no fault with such a tactic
      or strategy and believe[d] it was consistent with the effective
      representation of [Appellant].

PCRA Court Opinion, 5/10/2018, at 5-6.

      We agree with the PCRA court’s assessment.           Trial counsel had a

reasonable basis that supported her attempt to impeach a key Commonwealth

witness’ credibility at trial. The Commonwealth elicited testimony from Estes

that Appellant’s counsel visited him in jail to question him without his attorney

present. N.T., 8/6/2013, at 273-277. Estes testified on cross-examination

that he told police that trial counsel asked him to perjure himself. Id. at 302.

The   Commonwealth raised       the   issue, thereby    opening the     door   to

cross-examining Estes regarding his interactions with trial counsel. Moreover,

Appellant has not explained how there was an actual conflict of interest. Trial

counsel was not a material witness to the crimes at issue.         Instead, trial

counsel was solely advocating for Appellant. Cross-examining Commonwealth

witness Estes regarding his history for truthfully describing the events related

to this case aligned completely with Appellant’s defense. As such, trial counsel


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had a reasonable basis for her actions and we conclude Appellant’s first

ineffective assistance of counsel claim fails.

      Next, Appellant argues that trial counsel was ineffective for not

requesting a “corrupt and polluted source” jury charge regarding Estes’

testimony as an accomplice. Appellant’s Brief at 15-18. Appellant argues that

the PCRA court erred by determining trial counsel had a reasonable strategy

because “counsel herself testified [at the PCRA hearing] that there was no trial

strategy in objecting to the charge.” Id. at 16.

      The PCRA court determined:

      During the PCRA hearing, trial counsel explained that her trial
      strategy was that [Appellant] was not an accomplice with anyone
      to a robbery or a homicide. [Appellant’s] trial strategy was that
      he planned to purchase marijuana and he had no knowledge that
      a robbery or homicide was going to occur. It is illogical […] for
      trial counsel to pursue a theory that [Appellant] had no
      involvement in or knowledge about a robbery and/or a homicide
      and then ask for a jury instruction informing the jury that the
      central Commonwealth witness was an accomplice with
      [Appellant] in those crimes. Keeping such an instruction from the
      jury was rationally related to [Appellant’s] trial strategy.
      Therefore, the record reflects that trial counsel had a sound
      strategy for not requesting (and even objecting to) an instruction
      concerning the credibility of accomplices.

PCRA Court Opinion, 5/10/2018, at 6-7.

      Upon review, we agree. Initially we note that at the PCRA hearing, trial

counsel testified that she did not remember objecting to the corrupt source

instruction and, therefore, could not remember her strategy regarding it.

N.T., 1/8/2018, at 25. However, trial counsel further testified as follows:




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      The theory of the case was that [Appellant] went with his two
      friends to buy marijuana and whatever happened in that stairwell,
      he had no foreknowledge and was not in any kind of conspiracy to
      shoot anybody or rob anybody. He just went with his friends to
      buy weed. That was the theory of the case.

Id. at 26.

      The “corrupt and polluted source” instruction informs the jury that an

accomplice's trial testimony, which implicates the defendant, should be viewed

with great caution. See Commonwealth v. Wholaver, 177 A.3d 136, 165

(Pa. 2018) (original quotations and citation omitted).       “Our courts have

regularly recognized a reasonable strategy in trial counsel's decision to forego

a discretionary corrupt source charge where the charge is inconsistent with a

defendant's assertion that he has not committed the crime in question.”

Commonwealth v. Lawrence, 165 A.3d 34, 45 (Pa. Super. 2017), citing

Commonwealth v. Karabin, 426 A.2d 91 (Pa. 1981) (deeming reasonable

tactic to forego corrupt source instruction against girlfriend witness, who

allegedly rode in car with defendant during shootings; defendant advanced

innocence defense and alleged jealousy motivated girlfriend to testify falsely)

and Commonwealth v. Johnson, 437 A.2d 1175 (Pa. 1981) (holding

decision to forego instruction was within realm of reasonable defense strategy

to accuse witness, a leader of street gang splinter group, of framing gang-

member defendant who asserted complete innocence).             Here, Appellant

claimed he was innocent of the robbery and homicide. Thus, it was a

reasonable strategy for counsel to weigh the cautionary judicial instruction

against the downside of tacitly admitting to the jury that Estes was an


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accomplice of Appellant in the commission of the instant offenses.   As such,

Appellant’s second issue fails.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2018




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