Opinion
1325 WDA 2023 J-S34028-24
12-19-2024
COMMONWEALTH OF PENNSYLVANIA v. JOSHUA JOHN MCGIRR Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered October 17, 2023 In the Court of Common Pleas of Mercer County Criminal Division at No(s): CP-43-CR-0001793-2020
BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E. [*]
MEMORANDUM
LANE, J.
Joshua John McGirr ("McGirr") appeals from the order denying his first petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA").We affirm.
See Pa.C.S.A. §§ 9541-9546.
In 2020, McGirr broke into the home of his ex-girlfriend ("the victim") while she was out, and waited for her return. When the victim returned, McGirr attacked her from behind, wrapped his arm around her throat, and strangled her until she lost consciousness. When the victim regained consciousness, she found that McGirr had restrained her hands behind her back with duct tape and placed duct tape over her mouth. McGirr stated that they needed to leave her home before police arrived, and warned the victim that if she ran or screamed, he would kill her. McGirr then placed the victim in her vehicle, which he drove to his house. McGirr kept the victim at his house for approximately two hours, during which time she threw up blood and asked McGirr to call 911. McGirr eventually agreed to bring the victim back to her home, but instead took her to a parking lot where his vehicle was located. McGirr got into his vehicle and drove away. The victim drove herself to the hospital for treatment and immediately reported the incident to police. The victim was diagnosed with, inter alia, physical abuse, a contusion on her neck, and an injury to her head. A police officer met with the victim at the hospital and observed her injuries, including redness and scratches on her face and neck, bruising, and swelling on her lip, and a bruise on her arm.
Police arrested McGrirr and charged him with numerous offenses, including aggravated assault, strangulation (former sexual or intimate partner), false imprisonment, and recklessly endangering another person. In early 2022, the matter proceeded to a jury trial at which the Commonwealth presented the testimony of the victim, the police officer, and other witnesses, including Pamela Crouser. The Commonwealth also introduced medical evidence of the victim's injuries, as well as photographs of the victim's injuries, and physical evidence taken from the victim's home which corroborated the victim's testimony regarding the attack (duct tape used in the incident). McGirr did not testify at his trial. Ultimately, the jury convicted McGirr of the above-referenced offenses. On May 6, 2022, the trial court sentenced him to an aggregate term of six to twelve years in prison. During the sentencing hearing, the trial court thoroughly advised McGirr regarding his post-sentence and appellate right, and advised McGirr that he had a right to file a post-sentence motion within ten days, and to file an appeal from his judgment of sentence within thirty days. See N.T., 5/6/22, at 16-18. McGirr, who had been represented by privately retained counsel, did not file a post-sentence motion or a direct appeal.
On November 14, 2022, McGirr filed a timely pro se PCRA petition.Therein, he raised numerous issues, including a claim that trial counsel was ineffective for failing to file a direct appeal. The PCRA court appointed counsel to represent McGirr. The PCRA court then ordered that the issues raised by McGirr would be bifurcated such that the court would initially address the issue of whether McGirr waived his direct appeal rights, and after this issue was decided, the remaining issues raised by McGirr would be addressed. On February 17, 2023, the PCRA court conducted an initial evidentiary hearing on the discrete question of whether McGirr had requested trial counsel to file a direct appeal. Both McGirr and trial counsel testified at the hearing. Later that same day, the PCRA court entered an order in which it ruled that McGirr had waived his direct appeal rights because he took no affirmative action to contact trial counsel to request him to file an appeal, nor had McGirr asked any other attorney to file a direct appeal. See Order, 2/17/23, at 1. The order also permitted PCRA counsel to file an amended petition. See id.
Under the PCRA, any petition must be filed within one year of the date on which the judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania and the United States Supreme Court, or at the expiration of time for seeking such review. See 42 Pa.C.S.A. § 9545(b)(3). As indicated above, on May 6, 2022, the trial court imposed McGirr's judgment of sentence. As McGirr did not file a post-sentence motion or a notice of appeal, his judgment of sentence became final thirty days later, on June 6, 2022. See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 903(a) (providing thirty days from the entry of an order in which to file a notice of appeal). As a result, McGirr had one year from that date, until June 6, 2023, to timely file a PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). As the instant petition was filed on November 14, 2022, it is timely.
At the hearing, the PCRA court stated to McGirr: "I determined you waived your direct appeal rights. Now, [PCRA counsel] can probably file an appeal of that decision within 30 days of today's date, but I will defer to you and her on that, but rather than reinstitute your direct appeal rights, you can proceed on your PCRA rights." N.T., 2/17/23, at 28-29.
PCRA counsel thereafter filed an amended petition raising several claims of trial counsel's ineffectiveness. On July 14, 2023, the PCRA court conducted another hearing based on the claims raised in the amended petition. At this hearing, trial counsel and McGirr's stepmother, Susan McGirr, testified. On October 17, 2023, the PCRA court entered an order denying PCRA relief. PCRA counsel filed a motion to withdraw, which the PCRA court granted. McGirr filed a timely pro se notice of appeal, and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The PCRA court authored a Rule 1925(a) opinion. In this Court, McGirr filed a pro se appellate brief. This Court remanded for the appointment of counsel. The PCRA court appointed counsel who thereafter filed an appellate brief on McGirr's behalf.
A first time PCRA petitioner has a rule-based right to counsel throughout the entirety of the first PCRA proceedings, including during the appeal process. See Pa.R.Crim.P. 904; see also Commonwealth v. Jackson, 965 A.2d 280, 283 (Pa. Super. 2009) (explaining that the rule-based right to counsel and to effective assistance of counsel extends throughout the post-conviction proceedings, including any appeal from the disposition of the PCRA petition).
McGirr raises the following issues for our review:
1. Whether PCRA counsel was ineffective for failure to file an appeal of the PCRA court's decision that trial counsel was not ineffective for his failure to file a direct appeal of [McGirr's] conviction?
2. Whether the PCRA court erred and abused its discretion when it ruled that trial counsel was not ineffective for failure to file a direct appeal, interview/investigate potential witnesses, and for his stipulation to evidence which was later found to be lost or missing?McGirr's Brief at 14 (unnecessary capitalization and duplication omitted).
Our standard of review of an order denying a PCRA petition is well-settled:
We review an order [denying] a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
In his first issue, McGirr presents a new claim raised for the first time on appeal that PCRA counsel was ineffective for failing to file a notice of appeal from the PCRA court's February 17, 2023 order in which it ruled that McGirr had waived his direct appeal rights. Pursuant to Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), a defendant may raise claims of ineffective assistance of PCRA counsel for the first time during an appeal from the dismissal of a timely filed first PCRA petition where the PCRA counsel in question represented the defendant until the appeal. See id. at 401-05. The Bradley Court recognized that, in such cases, remand may sometimes be necessary:
In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter. Consistent with our prior case law, to advance a request for remand, a petition would be required to provide more than mere boilerplate assertions of PCRA counsel's ineffectiveness; however, where there are material facts at issue concerning claims challenging counsel's stewardship and relief is not plainly unavailable as a matter of law, the remand should be afforded.Id. at 402 (citations and quotation marks omitted). Thus, appellate courts have the ability to grant or deny relief on straightforward claims, as well as the power to remand to the PCRA court for the development of the record. See id. at 403.
Here, McGirr adequately raised and preserved his present claim regarding the ineffective assistance of PCRA counsel by raising the claim at the first opportunity to do so; specifically, in his counseled brief filed in this Court. For this reason, we conclude that McGirr raised this claim at the first opportunity to do so, and that, pursuant to Bradley, it has not been waived.
The Commonwealth contends that this Court should find the issue waived, given that McGirr failed to raise it in his pro se concise statement. However, in light of the fact that this is McGirr's first PCRA petition and he was entitled to court-appointed counsel from the inception of this appeal, including in the preparation of his concise statement, we decline to find waiver on this basis. See Pa.R.Crim.P. 904; see also Jackson, 965 A.2d at 283.
Our standard of review of an ineffectiveness claim is well-settled:
To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must satisfy the performance and prejudice test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687. . . (1984). . . . Accordingly, to prove that counsel was ineffective, the petitioner must demonstrate: (1) that the underlying claim has arguable merit; (2) that no reasonable basis existed for counsel's actions or failure to act; and (3) that the petitioner suffered prejudice as a result of counsel's error. To prove that counsel's chosen strategy lacked a reasonable basis, a petitioner must prove that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. Regarding the prejudice prong, a petitioner must demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Counsel is presumed to be effective; accordingly, to succeed on a claim of ineffectiveness the petitioner must advance sufficient evidence to overcome this presumption.
We need not analyze the prongs of an ineffectiveness claim in any particular order. Rather, we may discuss first any prong that an appellant cannot satisfy under the prevailing law and the applicable facts and circumstances of the case. Finally, counsel cannot be deemed ineffective for failing to raise a meritless claim.Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (some citations and quotation marks omitted).
McGirr contends that PCRA counsel was per se ineffective for failing to file a notice of appeal from the PCRA court's February 17, 2023 order in which it ruled that he had waived his direct appeal rights. According to McGirr, "because of PCRA [c]ounsel['s] ineffectiveness," he "lost the right to appeal the PCRA [c]ourt's denial of relief, concerning his direct appeal rights." McGirr's Brief at 16. McGirr contends that, as a result of PCRA counsel's failure to file a notice of appeal from the February 17, 2023 order, he suffered a "complete deprivation" of appellate review of that ruling. Id. at 20. McGirr maintains that "this right of direct appeal review was lost forever." Id. at 20. McGirr asserts that his ineffectiveness claim has arguable merit, and that PCRA counsel had no rational or strategic basis not to file a notice of appeal, and he consequently suffered prejudice.
Based on the record before us, we conclude that McGirr cannot satisfy the prejudice prong of the test for ineffectiveness. See Johnson, 139 A.3d at 1272 (holding that this Court may discuss first any prong that an appellant cannot satisfy under the prevailing law and the applicable facts and circumstances of the case). This Court lacks jurisdiction over a case if the order before us is not appealable. See Commonwealth v. Scarborough, 9 A.3d 206, 210 (Pa. Super. 2010). An order is appealable if it is: (1) a final order, see Pa.R.A.P. 341-342; (2) an interlocutory order appealable by right or permission, see 42 Pa.C.S.A. § 702(b); Pa.R.A.P. 311-312, 1311-1312; or (3) a collateral order, see Pa.R.A.P. 313. See Scarborough, 9 A.3d at 210. A final order is any order that: (1) disposes of all claims and of all parties; (2) is expressly defined as a final order by statute; or (3) is entered as a final order. Pa.R.A.P. 341(b). Rule 910 of the Pennsylvania Rules of Criminal Procedure provides the following regarding an appeal of a PCRA petition: "An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal." Pa.R.Crim.P. 910. Additionally, under our Appellate Rules of Procedure, a final order is one that finally disposes of a PCRA petition, or grants sentencing relief on a PCRA petition and otherwise disposes of the petition. See Pa.R.A.P. 341(f).
Here, the February 17, 2023 order was not a final order, as it did not dispose of McGirr's PCRA petition. See Pa.R.Crim.P. 910; see also Pa.R.A.P. 341(f). Instead, the order merely ruled on one discrete issue raised in McGirr's pro se petition and specifically permitted PCRA counsel to file an amended petition on McGirr's behalf raising additional issues to be considered by the PCRA court, which counsel thereafter did.
Moreover, because the February 17, 2023 order was an interlocutory, the PCRA court's ruling therein could still be challenged on appeal when a final appealable order was entered in the matter fully disposing of McGirr's PCRA petition. See K.H. v. J.R., 826 A.2d 863 (Pa. 2003) (holding that once a final, appealable order has been appealed, any prior interlocutory order can be called into question). Thus, contrary to McGirr's assertion otherwise, he did not lose the right to appeal the February 17, 2023 order based on PCRA counsel's decision not to immediately attempt to appeal that interlocutory order. Instead, McGirr retained the right to challenge that interlocutory order throughout the PCRA proceedings until the entry of the final and appealable October 17, 2023 order denying his PCRA petition. Accordingly, as McGirr was not prejudiced by PCRA counsel's decision not to immediately attempt to appeal the interlocutory February 17, 2023 order, his first issue merits no relief.
In his second issue, McGirr challenges the PCRA court's ruling that trial counsel was not ineffective for (1) failing to preserve McGirr's direct appeal rights by filing an appeal from his judgment of sentence; (2) failing to interview/investigate potential witnesses; and (3) for his stipulation to evidence which was later found to be lost or missing.
With respect to the first subpart of this issue, McGirr points out that trial counsel did not immediately withdraw from representation and remained counsel of record through the period in which to file a direct appeal. McGirr insists that trial counsel "had a duty to file a notice of appeal or, in the alternative, plan for [McGirr] to request the Office of the Public Defender to file an appeal on his behalf." McGirr's Brief at 32 (unnecessary capitalization omitted). McGirr points to his testimony at the evidentiary hearing wherein he stated that "he was told that if [he] lost at trial, a direct appeal would be filed." McGirr's Brief at 34. McGirr claims that, while it is unknown whether his direct appeal issues would have found merit by this Court, trial counsel's failure to file an appeal on his behalf fell below an objective standard of reasonableness and caused McGirr prejudice.
The PCRA court determined that trial counsel was not ineffective for failing to file a direct appeal because "[McGirr] took no affirmative action to contact his trial attorney." Order, 2/17/23, at 1.
Based on our review, we conclude that the PCRA court's denial of relief on this issue is supported by the record and free of legal error. McGirr concedes that trial counsel denied that he ever promised to file an appeal in McGirr's case and further stated that, if he had, he would have placed such an agreement in writing. See McGirr's Brief at 38 (citing N.T., 2/17/24, at 14-27). McGirr further concedes that trial counsel testified that he did not speak to McGirr after the sentencing hearing, did not discuss filing any post-sentence motion on his behalf, and never received any correspondence from McGirr. See id. McGirr additionally concedes that trial counsel indicated his belief that there were no meritorious issues that could be raised by McGirr on appeal. See id. Finally, McGirr concedes that, upon direct questioning from the PCRA court, trial counsel stated that "he was 100% confident that he was only retained [f]or the trial and not for an appeal." See id. at 40 (citing N.T., 2/17/24, at 26).
As explained above, this Court grants great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. See Ford, 44 A.3d at 1194; see also Commonwealth v. Jones, 912 A.2d 268, 293 (Pa. 2006) (holding that "[t]he findings of a postconviction court, which hears evidence and passes on the credibility of witnesses, should be given great deference"); Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999) (holding that an appellate court is bound by credibility determinations of the PCRA court where determinations are supported by record). Here, the PCRA court had the opportunity to hear the testimony of both McGirr and trial counsel, and to assess their respective credibility. In this regard, the PCRA court credited the testimony of trial counsel, and determined that he was not ineffective for failing to file a direct appeal because McGirr had waived his direct appeal rights by taking no affirmative action to contact trial counsel or asking him any other attorney to file a direct appeal on his behalf. See N.T., 2/17/23, at 27; see also Order, 2/17/23, at 1. As the PCRA court's ruling is supported by the record and free from legal error, McGirr is not entitled to relief on the first subpart of his second issue.
McGirr next challenges the PCRA court's ruling that trial counsel was not ineffective for failing to call potential witnesses. To prevail on a claim that counsel was ineffective for failing to call a witness, the petitioner must prove: (1) the witness existed; (2) the witness was available to testify; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify; and (5) the absence of the testimony was so prejudicial as to have denied the defendant a fair trial. Commonwealth v. Chmiel, 889 A.2d 501, 545-46 (Pa. 2005).
The failure to interview or investigate a witness is distinct from the failure to call a witness to testify. See Commonwealth v. Dennis, 950 A.2d 945, 960 (Pa. 2008). Although McGirr has attempted to reframe his ineffectiveness issue on appeal as trial counsel's failure to interview/investigate potential witnesses, our review of the record reflects that the specific claim he raised in his amended PCRA petition is that "trial counsel was ineffective for failing to call . . . witnesses." Amended Petition, 5/18/23, at unnumbered 1 (emphasis added). Thus, we confine our analysis to the failure to call a witness.
The failure to call a witness is not per se ineffective assistance of counsel, as such a decision usually involves matters of trial strategy. See Commonwealth v. Matias, 63 A.3d 807, 811 (Pa. Super. 2013). To establish prejudice, the petitioner must show how the potential witness's testimony would have been beneficial under the circumstances of the case and helpful to the defense such that the absence of the testimony denied the petitioner a fair trial. See id. at 811; see also Chmiel, 889 A.2d at 546 (holding that trial counsel's failure to call a potential witness does not constitute ineffective assistance without some showing that the potential witness's testimony would have been beneficial or helpful in establishing the asserted defense).
McGirr claims that eight witnesses, if called at trial, would have beneficial to his defense because their testimony would have shown that the victim and other Commonwealth witnesses exaggerated, embellished, or fabricated their testimony. Specifically, McGirr indicates that he wished to call: Jon McGirr, Susan McGirr, Roy McGirr, Kenneth McGirr, Rikki McGirr, Chuck Mansfield, Vickie Mansfield, and "Hannah." McGirr's Brief at 51. McGirr claims that he proved trial counsel's ineffectiveness in this respect at the second evidentiary hearing wherein he identified these witnesses and indicated what each witness would have stated at trial regarding the victim's appearance and demeanor the day after the alleged incident. McGirr also points to his testimony that he provided the names of these witnesses to trial counsel via email, but trial counsel never followed up. McGirr indicates that two emails were admitted at the hearing consisting of one he sent to trial counsel ten days prior to trial and another he sent to trial counsel on the day of trial. McGirr also claims that, because trial counsel had not filed a witness list, he was unable to call any witnesses at trial. McGirr points to the PCRA testimony of his stepmother, Susan McGirr, who: (1) indicated that she saw the victim the day after the incident and observed only a small bruise on her jawline and that her voice was hoarse; (2) testified to the general condition of the victim's residence more than one year prior to the incident; and (3) stated that trial counsel never asked her or any other family member to be a defense witness. McGirr contends that trial counsel had no reasonable basis for failing to call these witnesses and he suffered prejudice as a result of such failure.
The PCRA court considered McGirr's issue and concluded that it lacked merit. The court reasoned:
Regarding the asserted failure to present the testimony of various witnesses and to impeach the Commonwealth's witnesses, [trial counsel] explained that this was motivated by his trial strategy of downplaying the incident and avoiding drawing attention to the alleged victim. The court finds this to have been a reasonable strategic decision, therefore, the claim of ineffective assistance cannot be sustained.PCRA Court Opinion, 10/17/23, at 2 (citations to the record and unnecessary capitalization omitted).
Based on our review, we conclude that the PCRA court's determination is supported by the record and free from legal error. Other than Susan McGirr, none of the proposed witnesses testified at the evidentiary hearing. This is fatal to McGirr's claim regarding those other witnesses. See Dennis, 950 A.2d at 964 (holding that defendant cannot prove claim that counsel was ineffective for failing to call witnesses at trial without having those witnesses testify at PCRA hearing).
The PCRA requires that, to be entitled to an evidentiary hearing on a claim that counsel was ineffective for failing to call a witness, a petitioner must include in his PCRA petition "a signed certification as to each intended witness stating the witness's name, address, date of birth and substance of testimony." 42 Pa.C.S.A. § 9545(d)(1); see also Pa.R.Crim.P. 902(A)(15). McGirr did not attach any certifications to his amended PCRA petition from any of the proposed witnesses, as required by 42 Pa.C.S.A. § 9545(d)(1). However, even if McGirr's amended petition was inadequate on this basis, "it is improper to affirm a PCRA court's decision on the sole basis of inadequate witness certifications where the PCRA court did not provide notice of the alleged defect." Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super. 2014) (en banc) (citations omitted). Because the PCRA court did not provide notice to McGirr of any alleged defect, we instead focus on whether McGirr satisfied the substantive aspects of his ineffectiveness claim.
With respect to Susan McGirr, she stated that if called at trial, she would have testified that she saw the victim the day after the incident and observed only a small bruise on her jawline and that her voice was hoarse. See N.T., 7/14/23, at 46. She additionally commented on the general messiness of the victims' home, but admitted that she had last been there one year prior to the incident. See id. at 46-47. Susan McGirr also stated that trial counsel had not contacted either her or her husband. See id. at 48. McGirr has not explained how Susan McGirr's testimony would have been beneficial under the circumstances of the case and helpful to the defense, or how the absence of this testimony was so prejudicial as to have denied him a fair trial. See Matias, 63 A.3d at 811; see also Chmiel, 889 A.2d at 545-46. Nor has he shown that there is a reasonable probability that such testimony would have led to a different outcome at trial. See Dennis, 950 A.2d at 961.
Moreover, trial counsel explained that he and McGirr considered the matter of potential defense witnesses, and "tangentially discussed [the nature of their testimony] in an email, but there weren't any specific definitive explanations or evidence provided by any particular witness." N.T., 7/14/23, at 60. Trial counsel explained that he "was never told that [any of the witnesses] provided anything substantive" and, in his opinion, they would not have strategically assisted in McGirr's defense. Id. According to trial counsel, the potential witnesses that McGirr identified were primarily character witnesses and, in relation to his trial strategy, counsel explained that he:
didn't want to run the risk in front of the jury bringing character witnesses up, in particular, understanding the volatility of the relationship that [McGirr and the victim] had over the course of a six-year period of time. God only knows what would have been brought up and how that witness would have reacted to responding to the questioning.Id. at 61.
Furthermore, trial counsel believed that "[d]uring the course of the trial[,] . . . [he] was able to successfully challenge the credibility of several Commonwealth witnesses and impeach one, if not two." Id. at 60-61. Specifically, trial counsel indicated: "we challenged the credibility of the police officer, Pamela Crouser, and the victim during the trial to the extent that I was incredibly comfortable with not risking putting somebody else on the stand that I didn't know where that testimony was going to go." Id. at 67. In trial counsel's view, calling the witnesses McGirr identified would have been "redundant" to counsel's successful cross-examination of Commonwealth witnesses, and "risky . . .[b]ecause [he] didn't know what else those witnesses would testify to." Id. at 68.
Based on our review, we conclude that the record supports the PCRA court's determination that McGirr failed establish trial counsel's ineffectiveness in failing to call witnesses. McGirr did not establish that trial counsel had no reasonable basis for not calling these witnesses, or that the outcome of trial would have been different if those witnesses had been called to testify. Instead, the record reflects that trial counsel opted not to call character witnesses out of concern for what harmful testimony they might provide. See Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (holding that where matters of strategy and tactics are concerned, we deem counsel's assistance constitutionally effective if he chose a particular course that had some reasonable basis to effect the client's interest). Accordingly, the second subpart of McGirr's second issue merits no relief.
In the final subpart of his second issue, McGirr contends that trial counsel was ineffective for failing to contest certain evidence at trial. McGirr claims that a police officer testified to seeing the remnants of duct tape at the victim's home. According to McGirr, the alleged duct tape was lost on day two of the trial and reappeared on day three of trial. McGirr also claims that there was an issue with a photograph of a bowl with blood in it being lost at the time of trial. McGirr contends that trial counsel was ineffective for failing to contest the chain of custody and DNA evidence related to these items. McGirr concedes that trial counsel did raise the matter of the lost duct tape at trial, and the trial court indicated that he could challenge the matter through cross- examination and during his closing arguments. See McGirr's Brief at 60. McGirr further concedes that trial counsel testified that he stipulated to certain DNA evidence because it was favorable to the defense. See id. at 61. Nonetheless, McGirr claims that trial counsel's failure to challenge lost or missing evidence constitutes ineffective assistance of counsel.
The PCRA court considered this issue and determined that McGirr failed to adequately develop the record to support his claim: The court reasoned:
[McGirr] argues that [trial counsel] was ineffective for failing to contest various pieces of physical evidence. This argument was not raised in the testimony of [trial counsel, and McGirr's] exposition of the subject did not make clear why the evidence should have been objected to or why its exclusion would have aided [McGirr's] case, much less altered its outcome. Therefore, this court funds that [McGirr] has not met his burden of demonstrating ineffectiveness on this issue.
With regard to DNA evidence, [trial counsel] testified that he considered that the evidence involved was favorable to [McGirr] and therefore did not challenge it. The court finds that [McGirr's] evidence on this issue does not support a finding that this evidence would have been likely to alter the outcome of the case. Therefore, this argument will not support an ineffective assistance claim.PCRA Court Opinion, 10/17/23, at 2 (citations to the record and unnecessary capitalization omitted).
Based on our review, we conclude that the PCRA court's ruling is supported by the record and free from legal error. The PCRA record does not provide any degree of clarity with respect to this issue. McGirr's vague assertions do not explain how or why trial counsel's performance was deficient with respect to duct tape evidence or the purportedly missing photograph, let alone how the outcome of trial would have been different had counsel performed in a different manner with respect to such evidence. Accordingly, as McGirr failed to meet his burden of establishing trial counsel's ineffectiveness, his final subpart of his second issue merits no relief.
In sum, as McGirr is not entitled to relief on any of his issues, we affirm the PCRA court's order denying his PCRA petition.
Order affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.