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[U] Commonwealth v. Clark

Superior Court of Pennsylvania

February 11, 2014

SCOTT CLARK, Appellant


Appeal from the PCRA Order July 8, 2013, Court of Common Pleas, Allegheny County, Criminal Division at No. CP-02-CR-0012794-2007

Joseph D. Seletyn, Esq.




Appellant, Scott Clark ("Clark"), appeals from the order dated July 8, 2013, dismissing his petition for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 ("PCRA"), following his convictions for murder in the first degree, 18 Pa.C.S.A. § 2502(a), and carrying a firearm without a license, 18 Pa.C.S.A. § 6106. Clark contends that trial counsel was ineffective for failing to call two witnesses at his non-jury trial. For the reasons that follow, we affirm .

On February 6, 2009, the trial court, per the Honorable Judge John Reilly, found Clark guilty of the above-reference crimes. On April 30, 2009, Judge Reilly sentenced Clark to a term of life imprisonment on the first-degree murder conviction and a concurrent three to six year term of imprisonment on the firearm s conviction. I n a written opinion, Judge Reilly sum marized the evidence at trial as follows:

At trial Raymond Gray testified that he and [ Clark] were driving around and ended up on Perrysville Avenue. He stated that they had seen three men that [ Clark] had stated he had a problem with. [ Clark] then asked the driver, Gray, to turn onto an oncoming street and asked the driver to let him out. As [ Clark] exits the vehicle, Gray observes him pulling out something, which he believes to be a silky hat or mask, and also notices the handle of a gun protruding from [ Clark's] pocket. He sees three individuals running with [ Clark] running behind them. Shortly thereafter there are various gunshots heard. [ Clark] returns to the vehicle and is out of breath, and as he enters the car he says 'go-go'. Subsequently, [ Clark] stated 'that's how it's supposed to be done, ' referring to what had occurred. The court as fact finder further concluded that corroborative testimony of other eyewitnesses aided in dispelling any reasonable doubt that it was [ Clark] who was the shooter in this incident. The eyewitnesses to the shooting testified that after the victim had been initially shot the shooter stood over the victim and fired additional shots. As such, [ Clark] was found guilty of first-degree murder.

Trial Court Opinion, 10/ 26/ 2009, at 3.

On May 11, 2009, Clark filed two post-sentence motions, the first challenging the weight of the evidence and the second contending that trial counsel, Attorney Thom as N. Farrell ("Attorney Farrell"), was ineffective for failing to call two witnesses, Lonnie Bivins ("Bivins") and Kellin McBryde ("McBryde"), who would have testified that Clark was not the shooter on the night in question. On June 18, 2009, Judge Reilly conducted an evidentiary hearing, at which Attorney Farrell, Bivins, and McBryde, among others, testified. By a written opinion dated October 26, 2009, Judge Reilly denied relief on the post-trial motions.

On October 3, 2011, this Court affirmed Clark's judgment of sentence without prejudice to raise the ineffective assistance of counsel claim s at a later date. Clark then filed a pro se PCRA petition and counsel was appointed to represent him. Counsel then filed an amended PCRA petition, alleging Attorney Farrell's ineffectiveness for failing to call Bivins and McBryde to testify at trial.[1] As a result of Judge Reilly's unfortunate death, the case was assigned to the Honorable Judge Donald E. Machen. Because Judge Reilly had already conducted an evidentiary hearing and made credibility determinations, Judge Machen relied upon Judge Reilly's factual findings in dismissing Clark's PCRA petition by order dated July 8, 2013.

On appeal, Clark raises two issues for our consideration and determination:

1. Whether the lower court erred in finding trial counsel effective when he failed to present testimony from two available witnesses who would have testified that [ Clark] was not the shooter?
2. Whether the trial court's credibility determinations were supported by the record when the testimony established counsel knew that Lonnie Bivins and Kellin McBryde were available and willing to testify that [ Clark] was not the shooter?

Clark's Brief at 3.

Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's findings of fact, and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa.Super. 2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005)), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012). A PCRA petitioner must establish the claim by a preponderance of the evidence. Commonwealth v. Gibson, 592 Pa. 411, 415, 925 A.2d 167, 169 (2007).

The essence of a claim of ineffective assistance of counsel is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect. Commonwealth v. Collins, 585 Pa. 45, 59, 888 A.2d 564, 572 (2005). Counsel is presumed to have provided effective representation unless a PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome at trial if not for counsel's error. See, e.g., Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008); Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008); Commonwealth v. Natividad, 595 Pa. 188, 207, 938 A.2d 310, 321 (2007); Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). To satisfy the performance and prejudice prongs of this test when raising a claim of ineffectiveness for the failure to call a potential witness at trial, our Supreme Court has instructed that the PCRA petitioner must establish that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew, or should have known, of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial. Commonwealth v. Sneed, 616 Pa. 1, 22-23, 45 A.3d 1096, 1108–09 (2012) (citing Commonwealth v. Johnson, 600 Pa. 329, 351, 966 A.2d 523, 536 (2009) and Commonwealth v. Clark, 599 Pa. 204, 222, 961 A.2d 80, 90 (2008)).

For his first issue on appeal, Clark contends that the PCRA court erred in not finding that Attorney Farrell rendered ineffective assistance of counsel for failing to call Bivins and McBryde as witnesses at trial. We will address each proposed witness in turn. With respect to Bivins, the certified record on appeal supports the PCRA court's finding that he was unavailable to testify at trial. Attorney Farrell testified that he knew of Bivins' existence and his possible exculpatory testimony, but that he had been unable to interview him because he could not be found. N.T., 6/ 18/ 2009, at 16-17. Attorney Farrell also indicated that the Commonwealth had attempted to serve Bivins with a subpoena to testify, but could not locate him to serve it. Id. Deputy District Attorney Chris Avetta, who prosecuted Clark at trial, supported Attorney Farrell's testimony, indicating that despite the efforts of the lead homicide detective in the case (Detective George Satler) to serve Bivins with the subpoena, he could not be found. Id. at 53-55. Avetta further testified that the trial court delayed closing arguments for a week in efforts to procure Bivins' testimony, but to no avail. Id. at 53.

Bivins testified on direct examination that he was aware of Clark's trial and that he was available to testify. Id. at 31. On cross-examination, however, Bivins indicated that he was "going through my own legal stuff" and thus did not appear to testify at Clark's trial. Id. at 35. When asked directly, " So you weren't really available on the day of trial, were you?", Bivins responded, "I guess not, if that's what you are saying." Id. at 37.

With regard to McBryde, the PCRA court found that Attorney Farrell had a reasonable strategic basis for not calling him to testify at trial. Attorney Farrell testified that he interviewed McBryde[2] before trial and that McBryde indicated that he was a close and long-time friend of Clark. Id. at 11-15. Attorney Farrell further testified that McBryde appeared to be extremely nervous during the interview, which began with McBryde asking him what the penalty was for perjury (a question he repeated several times). Id. at 11. McBryde also told Attorney Farrell that he had been shot in the chest and since that time he had difficulty remembering things. Id. at 13. For these reasons, Attorney Farrell indicated that he seriously doubted McBryde's credibility and thought he would not have fared well at all under cross-examination by the prosecutor. Id. For these reasons, Attorney Farrell concluded that it would be counterproductive to Clark's case to have McBryde testify. Id. at 24.

McBryde testified that Clark was not anywhere near the area of the shooting on the night in question and that he witnessed a different, darker-skinned person shoot the victim. Id. at 43-44. He stated that he was available to testify, but that Clark's lawyer " sent m e away, he wouldn't use m e." Id. at 45. McBryde indicated that Attorney Farrell had interviewed him, and at the conclusion of that interview Attorney Farrell told him that he would not call him as a witness because "I don't think you are telling the truth." Id. at 46. McBryde confirmed that he discussed being shot in the chest with Attorney Farrell, but denied that they had discussed the penalty for perjury. Id.

This testimony of record supports the PCRA court's finding that Attorney Farrell had a reasonable strategic basis for declining to call McBryde as a witness at trial. The PCRA court found that Attorney Farrell genuinely believed that McBryde's testimony was false and offered merely to help a friend, which are points that could have been established during cross- examination, to the detriment of Clark's case. As a result, counsel was not ineffective for the failure to call McBryde as a witness at trial.

For his second issue on appeal, Clark contends that the certified record on appeal does not support the credibility determinations of the PCRA court, indicating that the testimony of Bivins provided a "detailed description of the shooter that did not match the physical characteristics of [ Clark] ." Clark's Brief at 15. As this Court recently reiterated in Commonwealth v. Timchak, 69 A.3d 765 (Pa.Super. 2013), however, "the PCRA court's credibility determinations are binding on this Court, where there is record support for those determinations." Id . at 769; see also Commonwealth v. Hanson, __ A.3d __, 2013 WL 6822833 at * 9 n.18 (Pa. December 27, 2013) ("[ W] e defer to factual findings and credibility determinations made by courts of original jurisdiction, so long as they are supported by the record."). As set forth hereinabove, the certified record on appeal amply supports the credibility determinations of Judge Reilly. Judge Reilly, who saw the witnesses testify at the evidentiary hearing, was, as a result of his ability to observe their manner and demeanor, in the best position to judge their credibility. See, e.g., Commonwealth v. Gaddy, 492 Pa. 434, 438, 424 A.2d 1268, 1270 (1981). Because Judge Reilly's credibility determinations were supported by evidence of record, Judge Machen in turn appropriately relied on them in dismissing Clark's PCRA petition.

Order affirmed.

Judgment Entered.

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