J-S38004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SHAINE ARCH MCCARTY

                        Appellant                    No. 117 MDA 2015


         Appeal from the PCRA Order entered December 19, 2014
              In the Court of Common Pleas of York County
            Criminal Division at No: CP-67-CR-0007566-2010


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                           FILED APRIL 14, 2016

      Appellant, Shaine Arch McCarty, appeals from the December 19, 2014

order dismissing his petition for collateral relief under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       This matter is before us

after we remanded with directions to Appellant’s counsel to file an advocate

brief. See Commonwealth v. McCarthy, No. 117 MDA 2015, unpublished

memorandum at 19 (Pa. Super. filed November 17, 2015) (PCRA appeal).

Counsel having complied, this matter is now ripe for decision.      Appellant

argues his trial counsel was ineffective for failure to call four witnesses at

trial who could have testified that he acted in self-defense. We disagree.

      We summarized the factual background and procedural history of this

matter in our previous memorandum, which we incorporate here by
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reference.     Id. at 2-5.1       Briefly, following some derogatory comments

Appellant made to victim Samantha Bowling and her friends, victim along

with one of her friends, Amanda Rozas,             confronted Appellant. The

confrontation, which took place in the yard outside the apartment where the

initial comments were made, quickly escalated once Appellant spit on Rozas’

face. Appellant’s and victim’s versions of the facts differ on what happened

next. According to the victim, victim merely intended to approach Appellant

to complain about his conduct. As Appellant turned his back to her, victim

touched his shoulder to get his attention. Upon doing so, Appellant grabbed

her by the hair and slammed her face into a nearby pole several times

inflicting a large gash to her forehead, and causing a broken nose and

swollen lip. Appellant, on the other hand, argues that after he turned his

back to victim, victim jumped on Appellant’s back, struck him, and bit him

several times on the head. Appellant then threw victim off, slamming her

face into the pole. Photographs taken by responding officers confirmed that

Appellant had sustained wounds to his head consistent with bite wounds.

       Following the altercation, Appellant was charged and convicted of

aggravated assault, simple assault, and harassment.           The trial court

sentenced Appellant to seven to fourteen years’ imprisonment for the

aggravated assault conviction, no penalty for the simple assault conviction,

____________________________________________


1
 See also Commonwealth v. McCarty, 1626 MDA 2012, unpublished
memorandum at 1-2 (Pa. Super. filed April 25, 2013) (direct appeal).



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and 90 days’ imprisonment to run concurrently on the harassment

conviction. In connection with the same incident, victim was charged with

and pled guilty to harassment.          She maintained she did so as a matter of

convenience, denying she ever struck or bit Appellant.

       In this appeal, Appellant argues that trial counsel was ineffective for

failure to call four witnesses to testify at trial.2    In addressing ineffective

assistance of counsel claims, we are guided by the following authorities:

       [A] PCRA petitioner will be granted relief [for ineffective
       assistance of counsel] only when he proves, by a preponderance
       of the evidence, that his conviction or sentence resulted from the
       “[i]neffective assistance of counsel which, in the circumstances
       of the particular case, so undermined the truth-determining
       process that no reliable adjudication of guilt or innocence could
       have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is
       presumed effective, and to rebut that presumption, the PCRA
       petitioner must demonstrate that counsel’s performance was
       deficient    and    that   such    deficiency  prejudiced     him.”
       Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010)
       (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
       In Pennsylvania, we have refined the Strickland performance
       and prejudice test into a three-part inquiry.                  See
       Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).
       Thus, to prove counsel ineffective, the petitioner must show
       that: (1) his underlying claim is of arguable merit; (2) counsel
       had no reasonable basis for his action or inaction; and (3) the
       petitioner    suffered    actual    prejudice    as    a     result.
       Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).




____________________________________________


2
  In his original brief to the instant panel, Appellant raised three issues for
our consideration. See McCarthy, 117 EDA 2015, at 7. In his brief after
remand, Appellant raises only the instant issue.



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Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (citations

modified).       To demonstrate prejudice, the petitioner must establish “that

there is a reasonable probability that, but for counsel’s unprofessional

errors,    the    result   of   the   proceeding   would   have   been   different.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009). A petitioner’s

failure to satisfy any one element of the test will result in the rejection of his

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Thus, if

an appellant is unable to demonstrate prejudice, we need not demonstrate

the other two elements. Commonwealth v. Albrecht, 720 A.2d 693, 701

(Pa. 1998).       Regarding the specific issue here, it is worth noting that the

decision whether to call a particular witness implicates matters of trial

strategy. See Commonwealth v. Washington, 927 A.2d 586, 599 (Pa.

2007). Thus, Appellant must “demonstrate that trial counsel had no

reasonable basis for declining to call” said witnesses. Id.

      Appellant claims that trial counsel was ineffective for failing to call four

witnesses, namely Brandy Lehr, Terry McCarty, Polytimi Stump, and Justin

Walters.     According to Appellant, consistent with his self-defense claim,

these witnesses would have testified to victim’s alleged attack on Appellant.

In order to demonstrate that trial counsel was ineffective in failing to present

the testimony of a witness, the petitioner must establish the following

factors:

      1) [T]he witness existed; 2) the witness was available to testify
      for the defense; 3) counsel knew of, or should have known of,
      the existence of the witness; 4) the witness was willing to testify

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       for the defense; and 5) the absence of the testimony of the
       witness was so prejudicial as to have denied him a fair trial.

Commonwealth v. Smith, 675 A.2d 1221, 1230 (Pa. 1996).

       The first four elements of the test are met here: witnesses existed;

witnesses were available to testify for the defense; defense counsel knew

about them; and witnesses were willing to testify for the defense. 3 The only

issue is whether counsel’s decision not to call the witnesses at trial was so

prejudicial to Appellant as to deny him a fair trial. Appellant argues he met

this element. We disagree.

       As noted by the trial court, the testimony about the victim’s attack on

Appellant was cumulative to the other testimony already elicited at trial.

See Trial Court Opinion, 12/19/2014, at 2-7.       Specifically, regarding Ms.

Lehr, the PCRA court noted: “The fact that words were exchanged between

[Appellant] and the victim was testified to at trial, as was the fact that after

[Appellant] left the apartment, the [v]ictim followed after him. In addition,
____________________________________________


3
  At the hearing held on Appellant’s PCRA petition, Brandy Lehr, Polytimi
Stump, and Terry McCarty testified about what they would have said had
defense counsel called them to testify at trial. Justin Walters was not present
at the PCRA hearing because he had passed away between the trial and the
PCRA hearing. Prior to his death, however, Mr. Walters prepared a notarized
statement in which he described the events surrounding the instant matter.
In his statement, Mr. Walters stated that he was prepared and willing to
testify at trial, had counsel called him to do so, and that “he saw the victim
on . . . Appellant’s back, ‘biting his head’ and saw Appellant ‘reach his hands
up, lean down and pull her forward over his head off of him,’ at which time
her head hit the porch beam.” Appellant’s Brief at 14 (quoting Walters’
Statement, 7/23/2013).




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the jury also heard testimony that after the incident [Appellant] had bite

marks on his head.” Id. at 3 (citations to the record omitted).4

       Regarding Ms. Stump, the PCRA court noted that “she saw someone

on [Appellant]’s back and that person was beating him and hitting him in the

head. . . . [S]he also saw [Appellant] flick that person off into a deck pole,

but did not see what happened after [Appellant] removed the person from

his back.” Id. at 4 (citations to the notes of testimony of trial omitted).5

       Regarding Terry McCarthy, the PCRA court noted that “he only saw a

person run past him and jump on [Appellant]’s back, but he did not really

see what happened to the person that was on [Appellant]’s back, as he was

focused on the second person that came running by him, whom he tackled.” 6

____________________________________________


4
  The trial court also noted that Ms. Lehr’s testimony would not have
provided any additional information because Ms. Lehr “did not actually see
the fight in question.” Trial Court Opinion, 12/19/2014, at 3.
5
   The trial court also noted that defense counsel at the PCRA hearing
testified that he did not call Ms. Stump as a defense witnesses because
“when he talked to her prior to trial, she told him that she was very
intoxicated on the night in question, that she did not see anything, and that
she can’t remember because she just wanted to get out of there.” Trial
Court Opinion, 12/19/2014, at 4.
6
  Regarding Justin Walters, the trial court solely considered the admissibility
of the written statement describing the events surrounding the confrontation
between Appellant and victim. The trial court concluded the statement was
not admissible. Regardless of its admissibility, Mr. Walters’ testimony would
have been cumulative to the testimony already in the record. As noted
above, Mr. Walters would have testified that “he saw the victim on . . .
Appellant’s back, ‘biting his head’ and saw Appellant ‘reach his hands up,
lean down and pull her forward over his head off of him,’ at which time her
(Footnote Continued Next Page)


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      Evidence of the attack, however, was already in the record. The first

Commonwealth witness, Rachel Schanberger, testified that she saw: (i) a

woman yelling at Appellant in the yard outside the apartment; (ii) Appellant

spitting on this woman’s face; (iii) another woman fighting Appellant, and

(iv) Appellant slamming two or three times this other woman’s face against

a nearby pole, while holding her by her hair. N.T. Trial, 2/6/2012, at 90-97.

The PCRA also court noted that, at trial, victim acknowledged that she “was

charged with harassment for jumping on [Appellant]’s back and biting him,

and that she pled guilty to that charge.” Trial Court Opinion, 12/19/2014, at

5 (citing N.T. Trial, 2/6/2012, at 149). Furthermore, the PCRA court noted

Officer Michelle Hoover testified that at the time of the incident Appellant

stated that someone jumped on his back, and that he either shrugged it off

or pushed it off. Id. (citing N.T. Trial, 2/6/2012, at 160).

      In light of the foregoing, the PCRA court properly found that the

testimony Appellant could have elicited from these witnesses would not have

been helpful to Appellant’s case and its absence was not so prejudicial to

deprive Appellant of a fair trial.           Accordingly, the PCRA court properly

concluded that trial counsel was not ineffective for not calling Brandy Lehr,
                       _______________________
(Footnote Continued)

head hit the porch beam.”        Appellant’s Brief at 14 (quoting Walters
Statement, 7/23/2013). However, as noted infra, evidence of the
altercation, including the attack of Appellant by victim, had already been
testified to by another witness (Rachel Schanberger), Officer Hoover, and
acknowledged by victim.




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Terry McCarty, Polytimi Stump, and Justin Walters as witnesses as their

testimony   was   cumulative   of   that   of   the   other   witnesses.   See

Commonwealth v. Spencer, 639 A.2d 820, 825 (Pa. Super. 1994) (“As a

general rule, counsel will not be deemed ineffective for failing to call

witnesses whose testimony is merely cumulative of that of other witnesses”)

(citations omitted).

      Order affirmed.

      Judge Wecht did not participate in the consideration of this case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2016




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