February 20, 2014
COMMONWEALTH OF PENNSYLVANIA
WILLIAM OLIVER McFARLAND, Appellant
Appeal from the PCRA Order, December 3, 2012, in the Court of Common Pleas of Beaver County Criminal Division at No. CP-04-CR-0000040-2010
BEFORE: FORD ELLIOTT, P.J.E., OTT AND WECHT, JJ.
FORD ELLIOTT, P.J.E.
Appellant appeals the order dismissing his first petition brought pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Finding no error, we affirm.
On July 15, 2010, a jury found appellant guilty of theft by unlawful taking, receiving stolen property, and criminal conspiracy. The charges against appellant arose from the theft of a safe from the victim's residence in Beaver Falls on July 12, 2009. Appellant's co-conspirators were Joseph Beaver and Thomas Zdrahal. Beaver testified against appellant and Zdrahal at their joint trial. During his testimony, Beaver was examined as to a prior statement he made to police in which he identified the third co-conspirator as his uncle, Jeffrey McCaughtry, rather than Zdrahal. Beaver testified that he was intoxicated by heroin at the time of the statement and identified Zdrahal from the stand as the third co-conspirator. Beaver also explained that McCaughtry knew about the crime before it happened and shared in its proceeds. McCaughtry also testified at trial. McCaughtry admitted selling a gold coin found in the safe on behalf of Beaver, but denied any other involvement in the crime. Importantly, Beaver and McCaughtry's testimonies did not differ as to appellant's involvement as both men identified appellant as one of the co-conspirators. (Notes of testimony, 7/14/10 at 94-97 (Beaver); 153-156 (McCaughtry).)
On September 8, 2010, appellant was sentenced to 2½ to 5 years' imprisonment followed by 2 years' probation. On September 17, 2010, appellant filed post-sentence motions. Among those motions was one in which appellant argued that his conviction was against the weight of the evidence. The basis for this claim was Beaver's conflicting statement to the police and his testimony at trial, as well as conflicts between the testimonies of Beaver and McCaughtry as to McCaughtry's involvement. These motions were denied on June 6, 2011.
Appellant timely filed a direct appeal raising his weight of the evidence and two additional issues. On March 1, 2012, a prior panel of this court affirmed the judgment of sentence, finding that the weight of the evidence issue was waived as inadequately briefed, and rejecting the remaining issues on their merits. Commonwealth v. McFarland, 47 A.3d 1233 (Pa.Super. 2012) (unpublished memorandum).
Appellant filed the instant PCRA petition pro se on May 16, 2012. Counsel was appointed and on September 12, 2012, an amended petition was filed raising a claim of ineffective assistance of direct appeal counsel for failing to adequately brief the weight of the evidence issue. On October 16, 2012, the PCRA court issued notice pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., that it would deny appellant's petition without an evidentiary hearing. As noted, the court dismissed the petition on December 3, 2012, and appellant brings this timely appeal.
Appellant raises the following issues on appeal:
1. Prior trial counsel was ineffective for failing to fully and adequately brief the weight of the evidence issue raised on direct appeal, which caused the Superior Court of Pennsylvania to deem the defendant's issue waived; therefore, never addressing the merits of the issue.
2. The P.C.R.A. Court erred in finding that there was no genuine issue of material fact when prior trial counsel's procedurally defective brief resulted in a waiver of said issue because the Superior Court was unable to review the argument on its merits. Further, an evidentiary hearing was necessary to determine that the defendant's appellate rights were lost due to prior trial counsel's ineffectiveness.
Appellant's brief at 10.
Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.
Moreover, as one of the issues on appeal is stated in terms of ineffective assistance of counsel, we also note that appellant was required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
We first note that we do not believe that the underlying fact situation presents a true weight of the evidence issue. While conflicting evidence can go to the weight of the evidence underlying a conviction, we note that none of the conflicting evidence pertains to appellant's role in the underlying crime. Both Beaver and McCaughtry testified consistently as to appellant's part in the theft of the safe; rather, their conflicting testimonies pertained solely to the roles of Zdrahal and McCaughtry. Nevertheless, to the extent that the issue suggests that the conflicting testimonies somehow impugn the veracity of the non-conflicting testimonies, we will review the issue.
Our standard of review for weight of the evidence claims has been stated as follows:
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer, 560 Pa. at 319-20, 744 A.2d at 752. Rather, "the role of the trial judge is to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.'" Id. at 320, 744 A.2d at 752 (citation omitted). It has often been stated that "a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Brown, 538 Pa. at 435, 648 A.2d at 1189.
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Brown, 648 A.2d at 1189. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa.1976). One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, __ Pa. __, __, 64 A.3d 1049, 1054-1055 (2013) (emphasis in original), quoting, in part, Commonwealth v. Widmer, 560 Pa. 308, 321-322, 744 A.2d 745, 753 (2000).
First, we agree that there is underlying merit to appellant's claim; had appellate counsel properly presented appellant's weight of the evidence claim, this court would have reviewed it. Second, there is no possible strategic reason for counsel not to properly frame the issue. However, we find that even if counsel had properly framed the issue, there was no prejudice to appellant, because this court would not have found the trial court's review of the evidence to be an abuse of discretion.
The trial court's review of the weight of the evidence issue was as follows:
The defendant next asserts that the verdicts were against the weight of the evidence. A true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed. Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa.Super. 2006), citing Commonwealth v. Hunzer, 868 A.2d 498, 506-507 (Pa.Super. 2005). The credibility of witnesses and the weight of evidence are determinations that lie solely with the trier of fact, who is free to believe all, part or none of the evidence. Lewis at 566, citing Commonwealth v. Williams, 854 A.2d 440, 445 (Pa. 2004). A new trial should be awarded only when the verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Commonwealth v. Causey, 833 A.2d 165, 173-174 (Pa.Super. 2003). Concededly, some of the testimony presented by the Commonwealth was inconsistent. The court provided the jury with instructions both as to Beaver's prior inconsistent statement to the police and his involvement as an accomplice. The jury exercised its province in reviewing the testimony of the witnesses and determining that which it found to be believable. The court cannot find error in the jury's decision, because the court concludes that the verdict was sufficient to sustain the convictions and was not so contrary to the evidence as to shock one's sense of justice. The defendant's claim that the verdict was against the weight of the evidence is unfounded.
Trial court opinion, 6/6/11 at 9-10.
The trial court employed the proper standard of review for a trial court reviewing a jury's verdict (verdict is so contrary to the evidence as to shock one's sense of justice). The court noted that some of the testimony was inconsistent, but that it provided the jury with instructions as to how to approach such inconsistency. Thereafter, the court noted that the jury's verdict was not so contrary to the evidence as to shock one's sense of justice. We find no abuse of discretion in this review.
Consequently, even if appellate counsel had adequately framed the weight of the evidence issue, there was no prejudice to appellant because the result on appeal would still have been an affirming of the judgment of sentence. Since there was no prejudice, appellate counsel cannot be found ineffective.
Finally, we review the failure of the PCRA court to hold an evidentiary hearing. We note:
[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. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, 542-543 (1997).
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012), quoting Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).
There was no need whatsoever to hold an evidentiary hearing in this case. Appellant was raising an issue of appellate counsel's effectiveness. Thus, each of the three prongs of the test for ineffectiveness had to be met. The first prong, underlying merit, was obvious where an appellate issue was waived for inadequate briefing; no evidentiary proof was needed. Likewise, the second prong, strategic purpose for the action or inaction, was manifest because there could be no strategic reason for inadequately briefing an issue, and again, no evidentiary proof was needed. The only prong that needed to be analyzed was prejudice. There was no evidence that could be offered on this prong because it merely required a review of the trial court's rationale. Thus, no evidentiary hearing was needed and there is no error here.
Accordingly, having found no error on appeal, we will affirm the order below.