J-S84043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH EUGENE MCCLOSKEY                    :
                                               :
                       Appellant               :   No. 1110 MDA 2017

                   Appeal from the PCRA Order June 19, 2017
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000627-2005


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 09, 2018

        Joseph Eugene McCloskey appeals from the order entered June 19,

2017, in the Lycoming County Court of Common Pleas, dismissing his first

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1     McCloskey seeks relief from the judgment of sentence of life

imprisonment imposed on August 15, 2006, after a jury convicted him of first-

degree murder2 for the March 2005 shooting death of his paramour, Christine

Montgomery.          On appeal, McCloskey contends trial counsel rendered

ineffective assistance when he interfered with McCloskey’s right to testify at

trial, resulting in McCloskey’s involuntary and unknowing waiver of that right.

For the reasons below, we affirm.
____________________________________________


1   42 Pa.C.S. §§ 9451-9546.

2   See 18 Pa.C.S. § 2502(a).
J-S84043-17




     The facts underlying McCloskey’s conviction were summarized by a

panel of this Court in the memorandum decision affirming his judgment of

sentence of direct appeal:

     [S]hortly after 4:00 p.m., on March 23, 2005, [McCloskey] shot
     and killed the victim, his girlfriend, Christine Montgomery, out in
     front of the victim’s home. [McCloskey’s] friend, Jeffrey English,
     witnessed the shooting.        Mr. English testified at trial that
     [McCloskey] had called him sometime before 4:00 p.m. on March
     23, 2005, and asked him to “come up and get the guns out of the
     house before he shot [the victim].” Sensing the seriousness of
     [McCloskey’s] request, Mr. English drove to the victim’s house. A
     short time after arriving, Mr. English proceeded to the front door
     of the victim’s residence and was greeted by [McCloskey] before
     he (Mr. English) ever made his way to the front door. [McCloseky]
     approached Mr. English carrying two firearms, one of which, the
     shotgun, he handed to Mr. English. While Mr. English was
     checking the shotgun to determine if it was loaded, the victim
     exited the residence, told Mr. English to “take care of him
     [meaning McCloskey],” and proceeded to the driveway. Before
     reaching the driveway, the victim said something to [McCloskey]
     which Mr. English could not make out, and then [McCloskey] “took
     the gun down, cocked it, said ‘I have fucking bullets in it[,’] and
     brought it up, pointed it, and shot[.]” Mr. English further testified
     that he grabbed the firearm from [McCloskey] and would have
     immediately left the property but for [McCloskey,] who followed
     Mr. English and asked for the firearm so that he could shoot
     himself; Mr. English refused and then left the property. After
     pulling out of the driveway, Mr. English testified that, in his
     rearview mirror, he saw [McCloskey] dragging the victim’s body
     back on the driveway towards the garage. Mr. English proceeded
     directly to the Old Lycoming Police Department, where he related
     the aforementioned events to Chief R. Mark Lusk and Corporal
     William C. Solomon. Almost immediately, Chief Lusk and Mr.
     English returned to the victim’s residence where it was determined
     that [McCloskey] had fled the scene on foot. At that time, police
     began a search for [McCloskey], and at 9:00 p.m., after two local
     residents notified officers that they had seen tracks in the snow,
     Agent Stephen J. Sorage of the Willamsport Bureau of Police


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        apprehended [McCloskey] in a trailer less than one mile away from
        the scene of the crime.

Commonwealth v. McCloskey, 954 A.2d 39 [2216 MDA 2006] (Pa. Super.

2006) (unpublished memorandum at 4) (citation omitted).

        McCloskey was charged with criminal homicide and persons not to

possess firearms.3 He proceeded to a jury trial on the homicide charge, and,

on May 18, 2006, the jury returned a verdict of guilty on the charge of first-

degree murder.4 On August 15, 2006, McCloskey entered a guilty plea to the

firearms offense. That same day, the trial court sentenced him to a mandatory

term of life imprisonment for his conviction of first-degree murder, and a

concurrent term of two to four years’ imprisonment for the firearms

conviction.    McCloskey filed a timely post-sentence motion challenging the

weight and sufficiency of the evidence, the court’s jury instructions, and

various evidentiary and pre-trial rulings. The trial court denied the motion in

December of 2006. As noted above, McCloskey’s judgment of sentence was

affirmed by this Court on direct appeal, and the Pennsylvania Supreme Court

subsequently      denied     his   petition    for   allowance   of   appeal.   See

Commonwealth v. McCloskey, 964 A.2d 1 (Pa. 2009).


____________________________________________


3   See 18 Pa.C.S. §§ 2501 and 6105(a)(1), respectively.

4The jury was instructed on the offenses of first-degree murder, third-degree
murder, and involuntary manslaughter. See N.T., 5/15/2006, 5/17/2006, and
5/18/2006, at 312-317.



                                           -3-
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        On February 19, 2010, McCloskey filed a timely, pro se PCRA petition,

followed shortly thereafter by two amendments. Although PCRA counsel was

appointed on June 21, 2010, counsel took no action on McCloskey’s behalf.

The case sat dormant for almost six years until McCloskey filed another pro

se amended petition on February 29, 2016.5 New counsel was appointed in

March of 2016, and filed an amended petition on August 4, 2016, asserting

trial counsel’s ineffectiveness for interfering with McCloskey’s right to testify

on his own behalf, thereby resulting in an unknowing and involuntary waiver

of that right. The PCRA court conducted evidentiary hearings on January 10,

2017, and February 24, 2017. Thereafter, on June 19, 2017, the court denied

McCloskey relief. This timely appeal followed.6

        Our review of an order denying PCRA relief is well-settled:

        This Court reviews a PCRA court’s decision in the light most
        favorable to the prevailing party. Commonwealth v. Hanible,
        612 Pa. 183, 30 A.3d 426, 438 (2011). Our review is limited to a
        determination of whether the record supports the PCRA court’s
        factual findings and whether its legal conclusions are free from
        error. Id. “A PCRA court’s credibility findings are to be accorded
        great deference, and where supported by the record, such
        determinations     are   binding    on    a    reviewing    court.”
        Commonwealth v. Treiber, ___ Pa. ___, 121 A.3d 435, 444
____________________________________________


5   The record provides no explanation for the delay.

6 On June 23, 2017, the PCRA court ordered McCloskey to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
McCloskey complied with the court’s directive, and filed a concise statement
on July 5, 2017.


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     (2015) (citing Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d
     297, 301 (2011)). We review the PCRA court’s legal conclusions
     de novo. Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595,
     603 (2013).

Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016). Furthermore,

where, as here, the defendant alleges counsel rendered ineffective assistance,

we note:

             “In order to obtain relief under the PCRA premised upon a
     claim that counsel was ineffective, a petitioner must establish
     beyond a preponderance of the evidence that counsel’s
     ineffectiveness ‘so undermined the truth-determining process that
     no reliable adjudication of guilt or innocence could have taken
     place.’” Commonwealth v. Payne, 794 A.2d 902, 905 (Pa.
     Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When
     considering such a claim, courts presume that counsel was
     effective, and place upon the appellant the burden of proving
     otherwise. Id. at 906. “Counsel cannot be found ineffective for
     failure to assert a baseless claim.” Id.

           To succeed on a claim that counsel was ineffective,
     Appellant must demonstrate that: (1) the claim is of arguable
     merit; (2) counsel had no reasonable strategic basis for his or her
     action or inaction; and (3) counsel’s ineffectiveness prejudiced
     him. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.
     2003).

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).               “To

demonstrate prejudice, a petitioner must show that there is a reasonable

probability that, but for counsel’s actions or inactions, the result of the

proceeding would have been different.” Commonwealth v. Mason, 130 A.3d

601, 618 (Pa. 2015).

     In the present case, McCloskey asserts trial counsel rendered ineffective

assistance by interfering with his right to testify in his own defense.

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Preliminarily, we acknowledge “[t]he right of an accused to testify on his own

behalf is a fundamental tenet of American jurisprudence and is explicitly

guaranteed by Article I, Section 9 of the Pennsylvania Constitution.”

Commonwealth v. Nieves, 746 A.2d 1102, 1105 (Pa. 2000). Accordingly,

       [t]he decision of whether or not to testify on one’s own behalf is
       ultimately to be made by the defendant after full consultation with
       counsel. Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334
       (1998); Commonwealth v. Bazabe, 404 Pa.Super. 408, 590
       A.2d 1298, alloc. denied, 528 Pa. 635, 598 A.2d 992 (1991);
       Commonwealth v. Fowler, 362 Pa.Super. 81, 523 A.2d 784,
       alloc. denied, 517 Pa. 598, 535 A.2d 1056 (1987). In order to
       sustain a claim that counsel was ineffective for failing to advise
       the appellant of his rights in this regard, the appellant must
       demonstrate either that counsel interfered with his right to testify,
       or that counsel gave specific advice so unreasonable as to vitiate
       a knowing and intelligent decision to testify on his own behalf. Id.

Id. at 1104.       See also Michaud, supra.        Furthermore, this Court has

recognized that “a defendant who made a knowing, voluntary, intelligent

waiver of testimony may not later claim ineffective assistance of counsel for

failure to testify.” Commonwealth v. Lawson, 762 A.2d 753 (Pa. Super.

2000), appeal denied, 781 A.2d 141 (Pa. 2001).

       Here, McCloskey insists he wanted to testify in his own defense, and

repeatedly informed his attorneys7 of this numerous times both before and

during trial. See McCloskey’s Brief at 13-14. Nevertheless, he claims counsel


____________________________________________


7 At trial, McCloskey was represented by two attorneys from the Lycoming
County Public Defender’s Office, lead counsel William Miele (“Attorney Miele”),
and co-counsel Nicole Spring (“Attorney Spring”).

                                           -6-
J-S84043-17




did not want him to testify and employed his siblings to help convince him not

to do so. See id. at 22-25.

      McCloskey’s claim is based upon the following factual allegations

developed during the PCRA hearing. McCloskey contends that on the third

day of trial, he met with Attorney Miele in his holding cell to discuss whether

or not he was going to testify. See N.T., 1/10/2017, at 109. Attorney Miele

arranged for McCloskey’s sister, Karen Neylon, to be there to help convince

McCloskey not to testify. See id. at 109-110. McCloskey claims that when

he told Attorney Miele he wanted to testify, counsel “reacted physically and

verbally in a manner which took away [McCloskey’s] right to make a voluntary,

knowing and intelligent decision based in part on the reasonable advice of

counsel on whether or not to testify in his own defense.” McCloskey’s Brief at

14.   Specifically, McCloskey asserted Attorney Miele “became heated and

engraged,” threw papers at him, kicked a register, and called him “pig

headed,” “bullheaded,” and a “fucking idiot.” N.T., 1/10/2017, at 110-111.

Ms. Neylon corroborated McCloskey’s account of the incident. See id. at 12-

13.

      Based upon Attorney Miele’s behavior, McCloskey contends he was

“confused and felt betrayed.” McCloskey’s Brief at 15.      Therefore, he told

Attorney Miele he “would like more time to decide to take the stand,” and

asked counsel to request the trial court allow him to make the decision the

next morning. N.T., 1/10/2017, at 111. McCloskey testified counsel never

                                     -7-
J-S84043-17




told him the decision of whether or not to testify was his and his alone. See

id. at 112.

      The trial transcript reveals that Attorney Miele did, in fact, inform the

trial court that McCloskey wanted a continuance until the next morning to

decide whether or not to testify, although counsel stated to the court, “I told

him I didn’t think the Court would probably do that[.]” See N.T., 5/15/2006,

5/17/2006, and 5/18/2006, at 263-264. The trial court denied the request,

and Attorney Miele asked if McCloskey’s colloquy could be held in chambers,

which the court allowed.     See id. at 264-265.     Thereafter, the following

colloquy took place:

      [The Court:]      Sir, you are the Defendant in this case, Joseph
      McCloskey?

      [McCloskey:]      Yes, ma’am.

      [The Court:]     And, Mr. Miele has indicated to me at the break
      that you – that the Defense was going to rest, which ultimately
      means you would not be testifying in this case, is that correct?

      [McCloskey:]      That’s correct.

      [The Court:]       Now, you understand as part of the reason why
      we’re in here is I have a responsibility to on the record ask you
      questions about [] the decision [] whether or not to testify in a
      trial, you understand that?

      [McCloskye:]      Yes, ma’am.

      [The Court:]       And you understand that if you need it, it seems
      like you’ve had plenty of time to talk to Mr. Miele, we gave a break
      if Mr. Miele or Miss Spring needed more time to speak with you
      about this that you’ve had the opportunity today to explore those
      issues with Mr. Miele, is that correct?


                                      -8-
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     [McCloskey:]      Yes.

     [The Court:]      And whose – and was it your decision not to
     testify?

     [McCloskey:]      Pretty much all of ours.

     [The Court:]     All of ours meaning your defense team, the
     people that have been sitting in court with you?

     [McCloskey:]      Yeah.

     [The Court:]    In terms of Mr. Miele and Miss Spring and
     perhaps even Ms. Holmes [their paralegal] to a certain degree?

     [McCloskey:]      Correct.

     [The Court:]     Okay.       Is that something you want to do
     meaning not testify?

     [McCloskey:]      Yes, ma’am.

     [The Court:]        Okay.   Now you understand you have an
     absolute right to remain silent. You also have a right to testify in
     this criminal trial?

     [McCloskey:]      Yes, ma’am.

     [The Court:]      And knowing that you have chosen to remain
     silent?

     [McCloskey:]      Yes, ma’am.

     [The Court:]       Now, under the---let me just go on this issue
     first. Mr. Miele, were there any questions you wanted to follow up
     with on this issue? I’m going to talk about the other thing in just
     a second.
                                      …

        [Attorney Miele:]    Just point out to the Court that we did
        advise him it was our opinion not to testify and I think it was
        unanimous as a [d]efense team and we also discussed it
        with family members who had an opportunity to discuss it
        themselves with Mr. McCloskey and they informed him and
        all of that had an impact or influenced his decision.

     [The Court:]      That’s correct, Mr. McCloskey?

                                     -9-
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        [McCloskey:]        Yes, ma’am.

Id. at 267-269.

        The court then discussed whether or not McCloskey wanted a jury

instruction regarding his decision not to testify,8 before the following exchange

occurred:

        [The Court:]         … I should also probably put on the record that
        a request was made on your behalf by your attorney, Mr. Miele,
        to allow us to stop for today and allow you to have over night (sic)
        to make the decision as to whether or not you should proceed with
        testifying. I denied that request and my concern is just from
        purely a time constraint in that with the nature of the trial, the
        fact that you’ve been a part of the proceedings and have had the
        opportunity to speak with your defense team all throughout this
        trial as well as all throughout the course of preparing for the trial.
        So that I did not see any benefit to be served by allowing you the
        additional time so I denied that request, but I wanted to tell you
        that face to face that it wasn’t entertained by the Court, but I
        denied it.

        [McCloskey:]        Can I say something?

        [The Court:]        You’re under oath.

        [McCloskey:]      It’s just that I didn’t have all the evidence. I
        mean – I mean I wasn’t getting stuff all the way up until the end,
        you know what I mean, I didn’t have as much time to review as
        long as I would have liked to just, you know that.

        [The Court:]       My understanding you were probably, through
        your attorneys, [] handed an enormous amount of information
        much of which was not presented through the trial. You were
        present in the courtroom though the entire case so that if Mr. Miele
        and Miss Spring would have talked about whether or not you
        should testify I imagine it’s not based upon the voluminous reports
        it’s based upon purely what was discussed in the courtroom and

____________________________________________


8   See N.T., 5/15/2006, 5/17/2006, and 5/18/2006, at 269-271.

                                          - 10 -
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       their perception of the strength of the – relative strength of your
       case whether you testify or if you don’t testify.

       [McCloskey:]      Well, the thing – my thing is like with [my
       firearms expert] Kapelsohn[9] and that certain points weren’t
       allowed to be put in I didn’t know what would be, you know, what
       I mean until today actually, you know.

       [The Court:]         Right.

       [McCloskey:]         You know, I don’t know, just –

       [The Court:]       I agree with you there because we weren’t sure.
       I didn’t know about Sergeant Wolfgang until yesterday and then
       as a result it changed the rulings that I had previously made with
       regard to Mr. Kapelsohn’s report absolutely, but in the grand
       scheme of the trial again it’s my valued judgment and it’s always
       subject to review, but based upon that short time that Mr.
       Kapelsohn was on the stand I don’t believe that justifies a
       continuance until tomorrow to decide whether or not you should
       testify or not, okay, but you’ve expressed your opinion on the
       record or your concerns on the record and your record is
       protected. Okay. But you have had—but you’ve had enough time
       to speak with your attorneys all along because I had always gotten
       an impression that your attorney visited over at the county prison
       even when we were in trial, right, didn’t they visit you Tuesday
       when we didn’t have court in the morning? My understanding they
       came over and visited you.

       [McCloskey:] Yes, ma’am.

       [The Court:] There’s been quite an open dialog with your
       attorneys more so than maybe in some cases I think you’ve –
       they’ve gone above and beyond to make sure that you were aware
       of everything. I can only tell what I [have] seen out front. Was
       there anything else or any other concern that you wanted to
       express to me?

____________________________________________


9 Emanuel Kapelsohn and Pennsylvania State Police Sergeant Eric Wolfgang
were the parties’ firearms experts. After Sergeant Wolfgang testified for the
Commonwealth, the trial court modified a prior ruling it made restricting the
testimony of McCloskey’s expert, Kapelsohn. See id. at 178-189.

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      [McCloskey:]      No, ma’am.

Id. at 271-273.

      With this factual background in mind, we consider McCloskey’s

argument on appeal. He maintains that counsel – in particular, Attorney Miele

– interfered with his right to testify in his own defense. McCloskey insists

counsel’s berating of him when he expressed his desire to testify “took away”

his ability to make a voluntary and informed decision. See McCloskey’s Brief

at 14. He contends the transcript supports his claim, arguing:

      At this point, the trial court is presented with a defendant who has
      asked for more time to decide whether or not to testify before the
      colloquy, who during the colloquy repeatedly references the
      decision being everyone’s, not specifically his, who is never told
      during the colloquy that the decision is his and his alone and who
      immediately following the colloquy expresses concerns about
      being confused and needing more time. Even in isolation these
      facts would suggest [McCloskey’s] decision may not be knowing,
      intelligent and voluntary.         When trial counsel’s ineffective
      assistance in directly interfering with [his] right to testify in the
      holding cell is factored in, the conclusion is simple. [McCloskey]
      was denied his right to make a knowing, intelligent and voluntary
      decision on whether or not to testify on his own behalf.

McCloskey’s Brief at 19. Moreover, he points to the PCRA hearing testimony

of both his sister and brother, who corroborated his account of Attorney Miele’s

combative manner, as well as counsel’s own testimony, in which Attorney




                                     - 12 -
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Miele claimed he had no independent recollection of the meeting in

McCloskey’s holding cell.10 See id. at 22-27.

       McCloskey further insists counsel’s ineffectiveness prejudiced him

because he was the only other witness to the shooting besides English, and

the only person who “could explain an alternate theory and articulate his

defense to the jury.” McCloskey’s Brief at 20. Indeed, he claims he would

have testified that he did not intend to shoot the victim, let alone kill her, but

the gun discharged as he was attempting to “safety [it] down.” Id.

       The PCRA court, however, concluded McCloskey was entitled to no relief.

First, the court determined the claim had no arguable merit. The court opined:

       In the present case, testimony reflects that [McCloskey] was
       made aware of his right to testify on his own behalf. Trial counsel
       neither interfered with [McCloskey’s] freedom to testify nor did he
       give unreasonable advice that vitiated a knowing and intelligent
       decision by [McCloskey] on whether to testify.

PCRA Court Opinion, 6/19/2017, at 6. The PCRA court noted Attorney Miele

recalled discussing with McCloskey whether or not he intended to testify at

trial, and testified that his general practice would have been to tell McCloskey

“on multiple occasions it’s [McCloskey’s] decision, it’s not ours.” Id. at 7;

N.T., 1/10/2017, at 51, 87.            Furthermore, the PCRA court pointed to

McCloskey’s waiver colloquy, in which he acknowledged to the trial court that

____________________________________________


10It merits emphasis that the PCRA hearings were conducted in early 2017,
nearly 11 years after trial.


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he was aware of his right to testify in his own defense, and that it was his

choice to waive that right. See PCRA Court Opinion, 6/19/2017, at 8.

      Next, the PCRA court found trial counsel had a reasonable basis for

advising McCloskey not to take the stand.      The court stated that Attorney

Miele’s defense strategy was to establish the elements of manslaughter

through the cross-examination of the Commonwealth’s witnesses. See id. at

10-11. Moreover, the PCRA court emphasized counsel’s justified concern that

if McCloskey took the stand, he could be cross-examined with an inculpatory,

taped statement, which he made following his arrest.         See id. at 11-12.

Because McCloskey had rejected a pretrial offer to plead guilty to third degree

murder, the trial court found counsel’s trial strategy to attempt to demonstrate

involuntary manslaughter reasonable. See id. at 12.

      Lastly, the PCRA court concluded McCloskey suffered no prejudice.

Specifically, the court found McCloskey’s “testifying did not have a strong

likelihood of changing the result of the proceeding, given the taped interviews

between   [McCloskey]    and   investigators   in   which   [McCloskey]   made

inculpatory statements, which would have been included as evidence if [he]

took the stand.” Id. at 13.

      After a thorough review of the record, the parties’ briefs, and the

relevant statutory and case law, we agree McCloskey is entitled to no relief.

We recognize McCloskey insists he wanted to testify at trial, but claims

Attorney Miele’s aggressive behavior and name-calling during their meeting in

                                     - 14 -
J-S84043-17




his holding cell confused and intimidated him. We note that although Attorney

Miele could not specifically recall this meeting with McCloskey, he categorically

denied the allegation that he berated and intimidated his client.        Counsel

testified:

        I know how I react and I know how I deal with things and whatever
        his witnesses testified that are in your affidavits about how I
        allegedly reacted in the holding cell is a lie.

                                       ****
        It makes no sense. [T]hey say I kick things around in the holding
        cell. There is nothing to kick around back there if you’ve been
        back there and they don’t allow us in the holding cell. Next, I
        don’t call clients names and I don’t swear at them and I don’t yell.
        I don’t do those things with clients. So whatever him and your
        other witnesses want to say, I’m sorry, that’s not what happened.
        …

N.T., 1/10/2017, at 71-72.           The PCRA court, faced with this conflicting

testimony, was free to find the testimony of McCloskey and his sister not

credible. See Williams, supra.

        Furthermore, McCloskey cannot escape the fact that, shortly after this

meeting occurred, he participated a colloquy with the trial court in which he

acknowledged: (1) he had the opportunity to discuss the decision with his

attorney; (2) the decision not to testify was “[p]retty much all of ours[;]”11

(3) he did not want to testify; and (4) he understood he had both a right to

testify and a right to remain silent. See N.T., 5/15/2006, 5/17/2006, and

5/18/2006, at 267-269. By indicating the decision not to testify was “all of
____________________________________________


11   N.T., 5/15/2006, 5/17/2006, and 5/18/2006, at 268.

                                          - 15 -
J-S84043-17




ours,” McCloskey confirmed he agreed with that decision.       Id. at 268. As

noted supra, this Court has specifically held: “A defendant will not be afforded

relief where he voluntarily waives the right to take the stand during a colloquy

with the court, but later claims that he was prompted by counsel to lie or give

certain answers.” Lawson, supra, 762 A.2d at 756.

      Moreover, we do not agree with McCloskey’s claim that his exchange

with the trial court after the colloquy confirmed his indecision.          See

McCloskey’s Brief at 8. While McCloskey attempted to explain to the trial court

why he requested a continuance, the court stood firm on its ruling that a

continuance would not be granted. See id. at 271-273. McCloskey did not

indicate to the court that he wanted to change his decision.           Further,

McCloskey has not challenged the court’s denial of his continuance request on

appeal.

      We also note that to the extent McCloskey insinuates counsel had no

reasonable basis for advising him not to testify at trial, we again disagree.

Attorney Miele provided ample reasons for counseling McCloskey to remain

silent, including his opinion that McCloskey would “be a horrible witness.”

N.T., 1/10/2017, at 95. He explained:

      Well, first of all, he gave a statement to the police and that
      statement we felt was probably equivalent to an admission of third




                                     - 16 -
J-S84043-17




       degree murder.[12] So you had that issue. Second of all,
       McCloskey’s position had been throughout that this was an
       accident and he had taken to attacking everyone who was
       testifying against him, which is not uncommon at all, attacking
       also included attacking his children where he called his children
       liars, he called his children mentally ill and that they were not
       credible and, again, [Attorney] Spring has notes on that and can
       give you dates of that on when that occurred. So overall we feared
       that because of the statement and because of his attitude and the
       way Mr. McCloskey approached the case he viewed himself as the
       victim. We did not feel he would garner any sympathy from the
       jury, in fact, I think we were of the opinion that the jury would not
       like Mr. McCloskey.

Id. at 54-55. Indeed, some of McCloskey’s children had given statements to

police that Attorney Miele believed “were not helpful to the case.” Id. at 88.

Attorney Spring specified that “[o]ne of the kids made a statement that

[McCloskey] threatened to shoot [the victim] in the head or something[.]”

N.T., 2/24/2017, at 84.           She elaborated that based on the children’s

statements, she “did not expect there would be an accidental shooting, but

that what we kind of hoped for was an involuntary” manslaughter conviction.

Id. Therefore, based on the numerous reasons outlined above, counsel had

a reasonable basis for advising McCloskey not to take the stand.




____________________________________________


12  McCloskey’s statement to police is not included in the certified record.
However, Attorney Miele indicated McCloskey told police the gun “had been
cocked” and he was handing it to the victim with the barrel facing her when it
fired. N.T., 1/20/2017, at 79. However, there was testimony at trial that the
gun would not have fired absent someone pulling the trigger. See id.



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       Because we agree with the PCRA court’s conclusion that McCloskey’s

ineffectiveness claim has no arguable merit, we affirm the order denying

relief.13

       Order affirmed.




____________________________________________


13 Because we find McCloskey failed to establish the first prong of the
ineffectiveness test, we need not determine whether he suffered prejudice.
See Commonwealth v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012) (“Failure to
establish any prong of the test will defeat an ineffectiveness claim.”).
Nevertheless, we note that both the PCRA court and McCloskey misinterpreted
the prejudice prong of the ineffectiveness claim in the present case. Indeed,
in Commonwealth v. Walker, 110 A.3d 1000 (Pa. Super. 2015), appeal
denied, 125 A.3d 777 (Pa. 2015), this Court held:

       [T]he appropriate standard for assessing whether a defendant was
       prejudiced by trial counsel’s ineffectiveness regarding the waiver
       of his right to testify is whether the result of the waiver
       proceeding would have been different absent counsel’s
       ineffectiveness, not whether the outcome of the trial itself would
       have been more favorable had the defendant taken the stand.

Id. at 1005. Accordingly, in order to demonstrate prejudice, McCloskey was
required to prove that absent counsel’s purported interference, he would not
have waived his right to testify. McCloskey’s PCRA hearing testimony arguably
demonstrates this prong. See N.T., 1/10/2017, at 123-124.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2018




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