Opinion
J-S78033-16 No. 462 WDA 2016
10-31-2016
COMMONWEALTH OF PENNSYLVANIA v. SHAWN ECKLUND Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 2, 2016 in the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000852-2011 BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Shawn Ecklund, appeals from the order entered in the Venango County Court of Common Pleas denying his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
We adopt the facts and procedural history as set forth by the PCRA court's opinion. Following a hearing, Appellant's PCRA petition was denied and this timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and the PCRA court filed a responsive opinion incorporating its February 29, 2016 opinion.
PCRA Ct. Op., 3/2/16, at 1-4. We note a typographical error in the PCRA court opinion on page 3. The PCRA court received a pro se letter from Appellant on June 26, 2015.
We note that this Court's memorandum affirming the judgment of sentence was docketed on September 18, 2014. We adopt the PCRA court's analysis of the timeliness of the PCRA petition. See Trial Ct. Op. at 5-7; Commonwealth v. Ecklund , 1665 WDA 2012 (unpublished memorandum) (Pa. Super. Aug. 5, 2014).
Appellant raises the following issues for our review:
The PCRA [c]ourt erred in denying [Appellant's] PCRA petition when his trial counsel was ineffective in failing to object to the trial testimony of Dr. Adams, who, in effect, testified as an expert witness.Appellant's Brief at 3-4.
The PCRA [c]ourt erred in denying [Appellant's] PCRA petition when he argued that he should have been given the opportunity to explore his plea options.
The PCRA [c]ourt erred in denying [Appellant's] PCRA petition when he argued that trial counsel was ineffective in failing to object when the District Attorney implied to the jury that the victim could have stated that more crimes had occurred.
The PCRA [c]ourt erred in denying [Appellant's] PCRA petition when he argued that his trial counsel was ineffective in failing to have a psychological evaluation conducted to determine whether or not [Appellant] appreciated his actions and that they were wrong.
Appellant contends counsel was ineffective for failing to object to the testimony of Dr. Adams regarding concussions because Appellant did not have the opportunity to obtain a rebuttal witness. Id. at 8. Appellant "argues that in hindsight, he would have taken the plea had he knowns [sic] that there was a possibility that he would have received the sentence that he ultimately received." Id. at 9. Appellant avers counsel was ineffective for failing to object when the District Attorney inferred he "could have been charged with more crimes [which] means that he was guilty of more crimes." Id. at 12. Lastly, Appellant claims counsel was ineffective for failing to have a psychological evaluation conducted to prove that his post traumatic stress following his service in Iraq "affected his thinking." Id. at 12.
We note that the totality of Appellant's argument in support of this claim is that he "testified at the time of the PCRA hearing that he had spoken to his attorney about post traumatic stress following serving six years in Iraq and that he specifically asked his attorney to get him a mental health evaluation to prove these issues affected his thinking." Appellant's Brief at 12. "We have repeatedly held that failure to develop an argument with citation to, and analysis of, relevant authority waives the issue on review." Commonwealth v. Plante , 914 A.2d 916, 924 (Pa. Super. 2006). Given the trial court's analysis of the claim and the record before this Court, we decline to find the issue waived.
Our review of appeals from the denial of relief under the PCRA is well-settled:
[A]n appellate court reviews the PCRA court's findings to see if they are supported by the record and free from legal error. This Court's scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party . . . . In addition, [t]he level of deference to the hearing judge may vary depending upon whether the decision involved matters of credibility or matters of applying the governing law to the facts as so determined.Commonwealth v. Fahy , 959 A.2d 312, 316 (Pa. 2008) (quotation marks and citations omitted).
A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts. Indeed, one
of the primary reasons PCRA hearings are held in the first place is so that credibility determinations can be made[.]Commonwealth v. Johnson , 966 A.2d 523, 539 (Pa. 2009) (citation omitted).
To be eligible for PCRA relief, [a]ppellant must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2) (listing, inter alia, the ineffective assistance of counsel and the unavailability at the time of trial of exculpatory evidence, which would have changed the outcome of the trial had it been introduced). Further, [a]ppellant must demonstrate that the issues raised in his PCRA petition have not been previously litigated or waived. Id. § 9543(a)(3). . . . A PCRA claim is waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[-]conviction proceeding." Id. § 9544(b). . . .
It is well-established that 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. Strickland v. Washington , 466 U.S. 668, 687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This Court has characterized the Strickland standard as tripartite, by dividing the performance element into two distinct parts. Commonwealth v. Pierce , 515 Pa. 153, 527 A.2d 973, 975 (1987). Thus, to prove counsel ineffective, [a]ppellant must demonstrate that: (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) [a]ppellant was prejudiced by counsel's act or omission. Id. at 975.
Relating to the reasonable basis prong, "[g]enerally, where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests." Courts should not deem counsel's strategy or tactic unreasonable "unless it can be concluded that an alternative not chosen
offered a potential for success substantially greater than the course actually pursued." Id. Also "[a]s a general rule, a lawyer should not be held ineffective without first having an opportunity to address the accusation in some fashion. . . . The ultimate focus of an ineffectiveness inquiry is always upon counsel, and not upon an alleged deficiency in the abstract."Commonwealth v. Koehler , 36 A.3d 121, 131-32 (Pa. 2012) (some citations omitted).
Relating to the prejudice prong of the ineffectiveness test, the PCRA petitioner must demonstrate "that there is a reasonable probability that, but for counsel's error or omission, the result of the proceeding would have been different." Particularly relevant herein, it is well-settled that "a court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; instead, if a claim fails under any necessary element of the Strickland test, the court may proceed to that element first."
It is clear that a criminal defendant's right to effective counsel extends to the plea process, as well as during trial. However, [a]llegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.
Commonwealth v. Timchak , 69 A.3d 765, 769-70 (Pa. Super. 2013), (citations omitted).
"[T]he law does not require that [the defendant] be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily, and intelligently made." Moreover, with regard to the prejudice prong, where an appellant has entered a guilty plea, the appellant must demonstrate "it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would have gone to trial."
In closing arguments, a prosecutor may comment on the evidence and any reasonable inferences arising from the evidence. . . .
A prosecutor must have reasonable latitude in fairly presenting a case to the jury and must be free to present his or her arguments with logical force and vigor. The prosecutor is also permitted to respond to defense arguments. Finally, in order to evaluate whether the comments were improper, we do not look at the comments in a vacuum; rather we must look at them in the context in which they were made.
Commonwealth v. Charleston , 94 A.3d 1012, 1024 (Pa. Super.), appeal denied, 104 A.3d 523 (Pa. 2014) (quotation marks and citations omitted). "To sustain a claim of ineffectiveness, counsel's approach must be so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Ervin , 766 A.2d 859, 862-63 (Pa. Super. 2000) (quotation marks and citation omitted omitted).
Furthermore, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.
After careful consideration of the parties' briefs, the record, and the decision of the Honorable H. William White, we affirm on the basis of the PCRA court's decision. See PCRA Ct. Op. at 5-16 (holding, inter alia, that (1) counsel attempted to use Dr. Adams' testimony to his advantage to support the defense's contention that the injuries the victim sustained were not serious and did not support the aggravated assault charge; (2) counsel discussed the plea agreement and determined Appellant would not admit to the aggravated assault charge and still have the court accept the plea agreement; (3) the prosecutor attempted to bolster the credibility of the victim by arguing that if the victim was going to lie she could have accused Appellant of more serious misconduct; (4) the court found counsel's strategy competent and his testimony credible and that per Appellant's admission regarding the simple assault charge, a defense based upon his mental condition was unavailable). Accordingly, we conclude the PCRA court's findings are supported by the record. See Fahy , 959 A.2d at 316.
We note that the PCRA court inadvertently miscited certain references to the notes of testimony from the PCRA hearing.
See N.T. PCRA Hr'g, 1/26/16, at 48-52.
See id. at 15-16, 18, 33-34, 45-46.
See id. at 64.
See id. at 19, 55-56.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/31/2016
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