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[U] Commonwealth v. McKaveney

Superior Court of Pennsylvania

February 25, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
KIMBERLY S. McKAVENEY

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order, April 12, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0000119-2006

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND OTT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

The Commonwealth appeals the order granting appellee a new trial pursuant to her first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Finding that the PCRA court erred in granting a new trial, we reverse.

On December 1, 2006, a jury convicted appellee of first degree murder in connection with the stabbing/slashing death of her daughter, Jennifer McKaveney ("Jennifer"), in Monroeville on September 16, 2005. On March 7, 2007, appellee was sentenced to life imprisonment. On appeal, appellee challenged the sufficiency of the evidence, and on October 20, 2009, this court affirmed the judgment of sentence. Commonwealth v. McKaveny [sic], 987 A.2d 820 (Pa.Super. 2009).

On September 9, 2010, appellee filed a counseled, first PCRA petition. Among the issues appellee raised was a claim of trial counsel's ineffectiveness in failing to obtain expert psychiatric testimony to explain appellee's flat emotional affect regarding Jennifer's death.[1] The Commonwealth called attention to appellee's lack of emotion in the closing argument. At the PCRA hearing, appellee presented the expert psychiatric testimony of Dr. Robert Wettstein ("Wettstein"). Wettstein testified that appellee had a psychiatric history of depression and had been treated for the disorder. (Notes of testimony, 1/10/11 at 11.) Wettstein went on to explain that appellee suffers from a social anxiety disorder and that such disorder would cause a flat emotional affect upon hearing the news about her daughter. (Id. at 15-17.) Wettstein stated that if he had been called as a witness, he could have explained appellee's behavior. (Id. at 17.)

Another issue pertained to counsel's ineffectiveness for failing to investigate Jennifer's cellular telephone records. According to appellee at the PCRA hearing, Jennifer was having an argument with someone on her cellular telephone immediately prior to appellee and Jennifer leaving their house to go to Beechwood Park in Monroeville where Jennifer was murdered. (Id. at 68-69.) Appellee stated that she informed trial counsel of this incident, but counsel never investigated telephone records to determine who the caller may have been. (Id. at 69.)

The PCRA court awarded appellee a new trial on the bases of the aforesaid two issues. We are constrained to find that this was error, and we begin our analysis with our standard of review.

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 the issues upon which relief was granted were stated in terms of ineffective assistance of counsel, we also note that appellee 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 find that appellee cannot satisfy the third prong of the test for ineffectiveness. Simply stated, even if appellee was able to introduce expert psychiatric evidence to explain her flat emotional affect in response to Jennifer's murder, it would not have changed the outcome of the trial. While mostly circumstantial in nature, the evidence adduced at trial against appellee was overwhelming.

On the evening of September 16, 2005, the body of 20-year-old Jennifer was discovered on a path in some woods in Beechwood Park in Monroeville. (Notes of testimony, 11/27-12/1/06 at 38-48.) There were two lethal stab wounds to the chest, and the victim's throat had been slit, severing the Adam's apple and major blood vessels, resulting in a third fatal wound. (Id. at 263-265; 268-274.) The victim was wearing a tie-dyed shirt. (Id. at 175-176.)

Thirteen-year-old Zachary Kazmier testified that prior to 6:30 p.m., he had seen an older and a younger woman walking near the pathways into the woods. (Id. at 59-60; 62-63.) He stated that the older woman was carrying a box and walking a small dog. (Id. at 63.) Kazmier's companion, 11-year-old Michael Painter, also testified and confirmed Kazmier's account, stating that the ...


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