J-S26002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID JAMES MCCLELLAND                     :
                                               :
                       Appellant               :   No. 386 WDA 2019

             Appeal from the PCRA Order Entered February 5, 2019
    In the Court of Common Pleas of Washington County Criminal Division at
                       No(s): CP-63-CR-0001884-2011

BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 29, 2020

        David James McClelland (Appellant) appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.         After careful consideration, we vacate the order

dismissing Appellant’s PCRA petition and remand this matter to the PCRA court

for proceedings consistent with this decision.

        The PCRA court detailed the facts and procedural history of this case as

follows:

                                   Factual History

           On August 4, 2009, Chief Rick Encapera of the California
        Borough Police Department responded to the home of Evelyn
        Stepko (hereinafter [] “Victim”) located on Pike Run Road in Coal
        Center, Washington County to investigate her complaint that her
        home had been burglarized and that an envelope containing
        $2,000 in cash was missing. On June 15, 2010, Chief Encapera
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     again responded to the Victim’s home to investigate her complaint
     that her home had been burglarized again and her lifesavings had
     been stolen. During this second investigation, Chief Encapera
     discovered a lock on the closet that had been tampered with, a
     basement door with a lock that had been tampered with, and a
     screen window that was unsecured. On February 2, 2011,
     Patrolman Timothy Sheehan of the California Borough Police
     Department responded to [] Victim’s home to investigate her
     complaint that her home was burglarized and $600 was stolen.
     On March 10, 2011, Patrolman Sheehan again responded to the
     Victim’s home to investigate her complaint of another burglary.
     During this investigation, Patrolman Sheehan discovered
     splintering in the door frame to the basement which was not there
     when he investigated in February. On May 22, 2011, Officer Curtis
     Rice of the California Borough Police Department responded to []
     Victim’s home to investigate the report that the telephone wires
     to [] Victim’s home had been cut and severed.

        On July 18, 2011, first responders were dispatched to the
     residence of [] Victim because she had not been seen in a few
     days. Upon entering the residence, first responders discovered []
     Victim’s body at the bottom of the stairs to the basement, lying
     face down in a pool of blood. An autopsy conducted by the
     Washington County Coroner, S. Timothy Warco, revealed that []
     Victim died as a result of stab wounds to her neck. The death was
     ruled a homicide. As part of the investigation, [Appellant]’s father
     was arrested and charged with multiple offenses including
     homicide, robbery, burglary, and conspiracy.          [Appellant]’s
     stepmother was also arrested and charged with multiple offenses
     including conspiracy to commit homicide and conspiracy to
     commit burglary.

        On July 22, 2011, as part of the investigation into [] Victim’s
     death, [Appellant] was brought into the California Borough Police
     Department to be interviewed by the Pennsylvania State Police.
     During the interview, [Appellant] made various admissions tying
     him to the criminal activity in question.

                                *     *     *

                            Procedural History

        On October 3, 2011, the Washington County District Attorney’s
     Office filed a criminal information charging [Appellant] as follows:

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     Count 1: Criminal Homicide – 18 Pa.C.S.[A.] § 2501(a) - Felony
     of the 1st Degree

     Count 2:     Dealing in Proceeds of Unlawful Activities – 18
     Pa.C.S.[A.] § 5111(a)(1 and 2) – Felony of the 1st Degree

     Count 3: Criminal Conspiracy – 18 Pa.C.S.[A.] § 903 – Felony of
     the 1st Degree

     Count 4: Receiving Stolen Property – 18 Pa.C.S.[A.] § 3925(a)-
     Felony of the 3rd Degree.

        On October 19, 2011, Daniel Chunko, Esquire entered his
     appearance on behalf of [Appellant]. On June 13, 2012, an order
     was entered transferring the case from the Honorable Judge Paul
     Pozonsky to the undersigned.

                                *     *      *

        On November 5, 2012, the trial court granted defense counsel’s
     request to withdraw and appointed Joshua Camson, Esquire [(Trial
     Counsel)] to represent [Appellant]. . . . On April 9, 2013, following
     a jury trial, [Appellant] was convicted of Criminal Homicide-
     Second Degree Murder, Dealing in Proceeds of Unlawful Activities,
     Criminal Conspiracy, and Receiving Stolen Property. . . .On June
     16, 2013, the trial court sentenced [Appellant] . . . [to] life in
     prison without the possibility of parole plus 14 years to 48 years.

        . . . On November 1, 2013, [Trial Counsel] filed a direct appeal
     on behalf of [Appellant], appealing the judgment of sentence
     entered June 6, 2013. On September 21, 2015, the Superior
     Court entered an opinion affirming [Appellant]’s judgment of
     sentence. On May 18, 2016, the Supreme Court of Pennsylvania
     denied [Appellant]’s Petition for Allowance of Appeal.

         On August 1, 2017, Suzanne Swan, Esquire filed a [PCRA
     petition] on behalf of [Appellant]. . . . On December 19, 2017, the
     Commonwealth filed their response to [Appellant]’s PCRA petition.
     On January 11, 2019, the [PCRA] court filed notice of its intent to
     dismiss [Appellant]’s PCRA petition [without a hearing]. On
     February 5, 2019, the [PCRA] court issued an order dismissing
     [Appellant]’s PCRA petition. On March 7, 2019, [PCRA Counsel]
     filed notice of appeal to the Superior Court appealing the [PCRA]

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     court’s dismissal of [Appellant]’s PCRA petition. On March 20,
     2019, the [PCRA] court ordered [Appellant] to file his Concise
     Statement of Matters Complained of on Appeal within twenty-one
     (21) days of the order.

       On April 1, 2019, Attorney Swan filed a concise statement on
     behalf of [Appellant.]

PCRA Court Opinion, 7/18/19, at 1-7 (footnotes omitted).

     On appeal, Appellant presents five issues for review:

     I.     Did the [PCRA] court abuse its discretion in finding no merit
     to the claims raised in the PCRA petition, and denying the petition
     without a hearing, where [Appellant] set forth an offer to prove
     sufficient facts upon which a reviewing court can conclude that
     [T]rial [C]ounsel was ineffective for failing to object to the
     deficient jury instructions on conspiracy as it related to the felony
     murder charge?

     II.    Did the [PCRA] court abuse its discretion in finding no merit
     to the claims raised in the PCRA petition, and denying the petition
     without a hearing, where [Appellant] set forth an offer to prove
     sufficient facts upon which a reviewing court can conclude that
     [Appellant] was denied the effective assistance of counsel during
     the plea bargaining stage of his criminal prosecution, specifically,
     his trial counsel failed to give him adequate, accurate and
     competent advice about whether to accept or reject a plea offer?

     III. Did the [PCRA] court abuse its discretion in finding no merit
     to the claims raised in the PCRA petition, and denying the petition
     without a hearing, where [Appellant] set forth an offer to prove
     sufficient facts upon which a reviewing court can conclude that
     [T]rial [C]ounsel was ineffective for not requesting a change of
     venue based on pretrial publicity, and for not requesting that the
     prospective jurors be questioned regarding their impartiality after
     hearing a potential juror express his belief that [Appellant] was
     guilty; alternatively, that [Appellant] set forth an offer to prove
     sufficient facts that [Trial Counsel] was ineffective for not raising
     the issue on appeal that the court abused its discretion in denying
     a motion for change of venue?

     IV.   Did the [PCRA] court abuse its discretion in finding no merit
     to the claims raised in the PCRA petition, and denying the petition

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      without a hearing, where [Appellant] set forth an offer to prove
      sufficient facts upon which a reviewing court can conclude that
      [Trial Counsel] was ineffective for failing to preserve the issue for
      appeal that the evidence was insufficient as a matter of law to
      sustain the convictions of Criminal Conspiracy to Commit Burglary
      or Robbery, Conspiracy to Commit Homicide – Second[-]Degree
      Murder, and Second[-]Degree Murder?

Appellant’s Brief at 4-5.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      Each of Appellant’s issues raise claims of ineffective assistance of

counsel. With respect to such claims, our Supreme Court has stated:

          It is well-settled that counsel is presumed to have been
      effective and that the petitioner bears the burden of proving
      counsel’s alleged ineffectiveness. Commonwealth v. Cooper,
      941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a
      petitioner must establish that: (1) the underlying substantive
      claim has arguable merit; (2) counsel did not have a reasonable
      basis for his or her act or omission; and (3) the petitioner suffered
      prejudice as a result of counsel’s deficient performance, “that is,
      a reasonable probability that but for counsel’s act or omission, the
      outcome of the proceeding would have been different.” Id. A
      PCRA petitioner must address each of these prongs on appeal.
      See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
      2007) (explaining that “appellants continue to bear the burden of
      pleading and proving each of the Pierce elements on appeal to
      this Court”). A petitioner’s failure to satisfy any prong of this test
      is fatal to the claim. Cooper, 941 A.2d at 664.




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Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations

modified).

      We address Appellant’s second issue first, as it is dispositive of the

appeal. Appellant argues that the PCRA court erred in dismissing his claim

that Trial Counsel was ineffective during plea negotiations. Appellant contends

that Trial Counsel wrongly informed him that to be convicted of murder in this

case, “the Commonwealth was required to prove that the death of [Victim]

was a natural and probable consequence of any conspiracy.” See Appellant’s

Brief at 24. Appellant asserts that Trial Counsel should have advised him:

      if the Commonwealth proved that [Appellant] conspired with his
      father to commit burglary or robbery, then it was immaterial
      whether the homicide was a natural and probable consequence of
      the burglary. The fact that the murder was committed during the
      perpetration of the burglary was sufficient to prove Second Degree
      Murder.

Id.

      Appellant further asserts that Trial Counsel wrongly informed him that

the Commonwealth could not establish a conspiracy to commit burglary and

robbery. Appellant claims that Trial Counsel told him that the evidence only

demonstrated that Appellant knew about each of the burglaries and robberies

after they occurred, and that he received and spent some of the proceeds of

those crimes. Appellant maintains that Trial Counsel advised him that this

evidence could not establish a conspiracy to commit burglary and robbery

because the Commonwealth could not demonstrate that he knew about or

helped plan each of the burglaries and robberies before they occurred.

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Appellant argues that Trial Counsel “failed to recognize prior to trial that the

Commonwealth was proceeding under the theory that a single, continuing

conspiracy existed between Appellant and his father[.]” Appellant’s Brief at

25.

        Additionally, Appellant faults Trial Counsel for failing to inform him of a

substantial amount of inculpatory evidence against Appellant. For example,

Appellant asserts that Trial Counsel failed to properly investigate prior to trial

the testimony of T.J. Stover, who testified at trial that he observed an

individual who resembled Appellant at Victim’s home at a time during which

Victim was robbed. Appellant’s Brief at 30-31. Appellant argues that each of

Trial   Counsel’s   alleged   deficiencies   resulted   in   his   rejection   of   the

Commonwealth’s plea offers because Trial Counsel convinced him that, at

worst, he was guilty of multiple counts of receiving stolen property.

        With respect to this type of claim, we have stated:

        [A] post-conviction petitioner seeking relief on the basis that
        ineffective assistance of counsel caused him or her to reject a
        guilty plea must demonstrate the following circumstance:

           [B]ut for the ineffective advice of counsel there is a
           reasonable probability that the plea offer would have been
           presented to the court (i.e., that the defendant would have
           accepted the plea and the prosecution would not have
           withdrawn it in light of intervening circumstances), that the
           court would have accepted its terms, and that the conviction
           or sentence, or both, under the offer’s terms would have
           been less severe than under the judgment and sentence
           that in fact were imposed.

                                 *      *     *


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         [N]othing prevents a PCRA petitioner from meeting his burden
      under Lafler with “his own self-serving statement” that he would
      have entered a guilty plea but for counsel’s ineffectiveness. As
      long as the PCRA court finds the petitioner’s testimony to be
      credible, there is no coherent justification for characterizing such
      evidence as inherently deficient as a matter of law. In cases such
      as the one sub judice, where a petitioner’s testimony is credible
      and uncontradicted, it may suffice to establish a reasonable
      probability that the petitioner would have accepted the
      prosecution's plea offer.

Commonwealth v. Steckley, 128 A.3d 826, 832-33 (Pa. Super. 2015)

(quoting Lafler v. Cooper, 566 U.S. 156, 164 (2012)).

      Appellant has raised several claims that he received deficient advice

from Trial Counsel during plea negotiations. First, as Appellant points out,

“[o]nce there is evidence of the presence of a conspiracy, conspirators are

liable for acts of co-conspirators committed in furtherance of the conspiracy.”

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). “Even

if the conspirator did not act as a principal in committing the underlying crime,

he is still criminally liable for the actions of his co-conspirators taken in

furtherance of the conspiracy.” Thus, if Trial Counsel advised Appellant that

the Commonwealth had to prove that the Victim’s death was a natural and

probable consequence of the conspiracy to commit burglary and robbery, in

order for Appellant to be convicted of murder, such advice was deficient, as it

does not comport with Lambert. As Appellant recognizes, if he was guilty of

conspiracy to commit burglary and robbery, he could also be convicted of

murder, provided that it was an act committed in furtherance of the conspiracy

to commit burglary and robbery. See Lambert, 795 A.2d at 1016.

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      Second, Appellant presents a correct understanding of the evidence

required to establish a conspiracy to commit burglary and robbery. We have

explained:

      A single, continuing conspiracy is demonstrated where the
      evidence proves that the essential feature of the existing
      conspiracy was a common plan or scheme to achieve a common,
      single, comprehensive goal. . . . A single, continuing conspiracy
      may contemplate a series of offenses, or be comprised of a series
      of steps in the formation of a larger, general conspiracy. . . .
      Therefore, where the evidence at trial is sufficient for the jury to
      infer that the essential features of the existing conspiracy were a
      common plan or scheme to achieve a common, single,
      comprehensive goal or end, then the conclusion that the
      conspiracy was a single, continuing conspiracy is justified.

Commonwealth v. Troop, 571 A.2d 1084, 1089-90 (Pa. Super. 1990).

Thus, if Trial Counsel told Appellant that the Commonwealth could not

establish conspiracy to commit burglary and robbery without evidence that

Appellant knew about and helped planned each burglary and robbery, this

advice was deficient.

      Third, Trial Counsel was arguably ineffective if, as Appellant claims, he

did not investigate and advise Appellant about the testimony of T.J. Stover,

who stated that he observed an individual resembling Appellant at Victim’s

home on a date when one of the burglaries and robberies occurred. N.T.,

4/5/13, at 744-52. Our Supreme Court has explained:

      Counsel has a general duty to undertake reasonable investigations
      or make reasonable decisions that render particular investigations
      unnecessary. Counsel’s unreasonable failure to prepare for trial
      is an abdication of the minimum performance required of defense
      counsel. The duty to investigate, of course, may include a duty
      to interview certain potential witnesses; and a prejudicial failure

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      to fulfill this duty, unless pursuant to a reasonable strategic
      decision, may lead to a finding of ineffective assistance.

Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009).                If Trial

Counsel, as Appellant asserts, did not investigate or interview T.J. Stover,

whose testimony was adverse to Appellant, then Trial Counsel was arguably

ineffective.

      In rejecting each of Appellant’s arguments, the PCRA court explained:

      Even if PCRA counsel can show that [T]rial [C]ounsel’s legal advice
      was unsound, the PCRA court does not find that there is sufficient
      evidence to meet the prejudice prong to prove ineffectiveness.
      PCRA [C]ounsel maintains that [T]rial [C]ounsel provided
      [Appellant] with the improper legal standard regarding conspiracy
      and that counsel did not properly analyze the evidence of the case.
      This deficiency allegedly resulted in [Appellant] choosing to reject
      the Commonwealth’s plea offers. However, PCRA [C]ounsel
      seemingly glosses over the fact that [Appellant] rejected a
      generous plea offer previously extended of ten (10) to twenty (20)
      years while he was being represented by prior counsel, Daniel
      Lucian Chunko, Esquire. When presented with this plea offer,
      [Appellant] maintained his innocence and expressed his desire to
      proceed to trial.      [Appellant]’s conduct under all of the
      circumstances demonstrated that he was not willing to accept any
      plea offer regardless of [T]rial [C]ounsel’s legal advice. Even after
      his co-conspirator father pled guilty to 1st degree murder and
      burglary, and his co-conspirator step-mother was convicted of
      burglary and conspiracy, [Appellant] chose to proceed to trial.
      [Appellant] now seeks to turn back the clock and blame the advice
      of counsel for his decision to reject the plea offers, after having
      been found guilty at trial. As noted, [Appellant] rejected a
      generous plea offer before being represented by [T]rial [C]ounsel.
      The PCRA court is not persuaded by [Appellant]’s claim that he
      would have accepted the plea offer under any circumstances.

PCRA Court Opinion, 7/18/19, at 17-18 (footnotes omitted).

      The PCRA court is correct that Appellant rejected multiple plea offers.

See PCRA Court Opinion, 7/18/19, at 17-18; see also N.T., 10/8/13, at 235-

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41. However, the PCRA court denied relief without a hearing. We cannot

discern from the record before us evidence of what Trial Counsel advised

Appellant during plea negotiations, and the relationship, if any, of Trial

Counsel’s actions and advice to Appellant’s assertions of ineffectiveness. Our

review reveals no clear basis for the PCRA court’s general conclusion that

Appellant’s “conduct under all of the circumstances” demonstrated that he was

not willing to accept any plea offer regardless of Trial Counsel’s advice. PCRA

Court Opinion, 7/18/19, at 18.

      We recognize:

      [T]he right to an evidentiary hearing on a post-conviction petition
      is not absolute. Commonwealth v. Jordan, 772 A.2d 1011,
      1014 (Pa. Super. 2001). It is within the PCRA court’s discretion
      to decline to hold a hearing if the petitioner’s claim is patently
      frivolous and has no support either in the record or other evidence.
      Id. It is the responsibility of the reviewing court on appeal to
      examine each issue raised in the PCRA petition in light of the
      record certified before it in order to determine if the PCRA court
      erred in its determination that there were no genuine issues of
      material fact in controversy and in denying relief without
      conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).

      Instantly, issues of fact exist because we do not have a record of Trial

Counsel’s actions and advice during plea negotiations, and the basis for the

PCRA court’s conclusion that Appellant would never have accepted a plea.

Thus, our review of Appellant’s claims of ineffectiveness is hindered.       Our

Supreme Court has made “clear [its] strong preference that counsel be heard


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from before being found ineffective[.]”     Commonwealth v. Colavita, 993

A.2d 874, 895 (Pa. 2010). Also, we may not “employ a hindsight analysis in

comparing trial counsel’s actions with other efforts he may have taken.”

Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015). Mindful

of the foregoing, we are compelled to vacate the order dismissing Appellant’s

petition and remand to the PCRA court for a hearing.

     Order vacated. Case remanded. Jurisdiction relinquished.

      Judge Pellegrini joins the memorandum.

     Judge McLaughlin notes dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




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