J-S36013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER ROBIN MCCAWLEY
Appellant
No. 891 MDA 2015
Appeal from the Judgment of Sentence April 15, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005264-2013
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.:
FILED JULY 08, 2016
Appellant, Christopher Robin McCawley, appeals from the April 15,
2015 judgment of sentence of 90 days to 23 months’ incarceration followed
by three years’ probation, imposed after he entered a negotiated guilty plea
to two counts of driving under the influence of alcohol. 1
After careful
consideration, we affirm on the basis of the trial court’s September 23, 2015
opinion.
The trial court fully and aptly summarized the factual and procedural
history of this case, and we need not reiterate that summary here. See Trial
Court Opinion, 9/23/15, at 1-7.
Pertinent to this appeal, we recount the
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(a)(1), and 3802(c), respectively.
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following procedural posture of this case. After entering the aforementioned
negotiated guilty plea and receiving a sentence of 90 days to 23 months’
incarceration, Appellant retained new counsel and on April 27, 2015, filed a
timely2 post-sentence motion to withdraw his guilty plea, alleging the
ineffectiveness of his plea counsel led to an unknowing and involuntary plea.
The trial court denied the motion on April 28, 2015. Appellant filed a timely
notice of appeal on May 26, 2015. In consideration of a joint motion from
Appellant and the Commonwealth filed on June 4, 2015, this Court retained
jurisdiction but remanded the matter to the trial court to “hold an
evidentiary hearing to address its denial of Appellant’s post-sentence motion
to withdraw guilty plea.” Per Curiam Order, 7/10/15, at 1.
On remand, the trial court held an evidentiary hearing on September
3, 2015. At the outset of the hearing, Appellant executed an on-the-record
waiver of his right to pursue a claim under the Post Conviction Relief Act
(PCRA), §§ 9541-9546, in order to pursue his ineffectiveness of counsel
claim before the trial court.
Following the hearing, the trial court again
denied Appellant’s motion. Appellant resumed this appeal.3
____________________________________________
2
April 25, 2015, the 10th day following the date of sentencing, was a
Saturday. When computing a filing period, “[if] the last day of any such
period shall fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, Appellant’s filing of his postsentence motion on Monday, April 27, 2015 was timely.
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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On appeal, Appellant raises the following issues for our review.
1.
[] Given [the alleged] error, [and] exceptional
circumstances, should this Court allow an ineffective
assistance claim on direct review?
2.
[] [Where Appellant] entered his plea
unintelligently,
unknowingly,
and
involuntarily
because of ineffective assistance of counsel[, did he]
suffer[] manifest injustice, [and] should he be
permitted to withdraw his plea?
Appellant’s Brief at 4.4
Appellant first urges this Court to permit adjudication of his ineffective
assistance of counsel claim on direct appeal. Id. at 12. In Commonwealth
v. Grant, 813 A.2d 726 (Pa. 2002), our Supreme Court held that claims of
ineffective assistance of counsel should be deferred to post-conviction
collateral
proceedings.
This
holding
was
recently
confirmed
in
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding, “claims
of ineffective assistance of counsel are to be deferred to PCRA review; trial
courts should not entertain claims of ineffectiveness upon post-verdict
motions; and such claims should not be reviewed upon direct appeal”).
However, the Holmes Court described two limited exceptions to the general
rule where there are “extraordinary circumstances.” Id. at 577. This may
occur “where the trial court, in the exercise of its discretion, determines that
a claim (or claims) of ineffective assistance is both meritorious and apparent
from the record so that immediate consideration and relief is warranted.”
____________________________________________
4
The Commonwealth elected not to file a brief in this appeal.
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Id. at 577–578. Alternatively, it may occur for “good cause,” such as the
shortness
of
a
sentence,
or
“multiple,
and
indeed
comprehensive,
ineffectiveness claims if such review is accomplished by a waiver of PCRA
rights.”
Id.
“Ultimately, we trust in the discretion of the trial courts to
determine which cases present appropriate circumstances to warrant postverdict unitary review of prolix claims, contingent upon a waiver of PCRA
review.” Id. at 580.
Instantly, upon remand, the trial court noted the shortness of
Appellant’s sentence.5
The trial court conducted full written and oral
colloquies in which Appellant waived his right to file a subsequent PCRA
petition.
See N.T., 9/3/15, at 9-10, ct. ex. 1.
The trial court then
conducted a full hearing, allowing Appellant to develop a full record
pertaining to his claim. Under these circumstances, and given our remand in
response to the joint motion of the parties, we deem the present case
qualifies as an exception to Grant recognized in Holmes.
supra.
See Holmes,
Accordingly, we proceed to consider the merits of Appellant’s
appeal.
Appellant’s sole issue is whether the trial court erred in refusing his
post sentence motion to withdraw his guilty plea, based on his assertion that
____________________________________________
5
The trial court extended Appellant’s bail pending this appeal. Trial Court
Order, 5/4/15, at 1.
-4-
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ineffectiveness of plea counsel resulted in an unknowing, unintelligent, and
involuntary plea. Our consideration of this issue is guided by the following.
“A trial court’s decision regarding whether to permit a guilty plea to be
withdrawn
should
not
be
upset
absent
an
abuse
of
discretion.”
Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa. Super. 2011) (citation
omitted), appeal denied, 50 A.3d 125 (Pa. 2012).
[A]fter the court has imposed a sentence, a
defendant can withdraw his guilty plea only where
necessary to correct a manifest injustice. [P]ostsentence motions for withdrawal are subject to
higher scrutiny since courts strive to discourage the
entry of guilty pleas as sentencing-testing devices.
… To be valid, a guilty plea must be knowingly,
voluntarily and intelligently entered. [A] manifest
injustice occurs when a plea is not tendered
knowingly,
intelligently,
voluntarily,
and
understandingly.
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (internal
quotation marks and citations omitted), appeal denied, 105 A.3d 736 (Pa.
2014). “In determining whether a plea is valid, the court must examine the
totality of circumstances surrounding the plea.” Commonwealth v. Kelly,
5 A.3d 370, 377 (Pa. Super. 2010) (citations omitted), appeal denied, 32
A.3d 1276 (Pa. 2011).
To be entitled to relief on an ineffectiveness claim, [a
claimant] must prove the underlying claim is of
arguable merit, counsel’s performance lacked a
reasonable basis, and counsel’s ineffectiveness
caused him prejudice. Commonwealth v. Pierce,
567 Pa. 186, 786 A.2d 203, 213 (2001); see also
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
973 (1987). Prejudice in the context of ineffective
-5-
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assistance of counsel means demonstrating there is
a reasonable probability that, but for counsel’s error,
the outcome of the proceeding would have been
different. This standard is the same in the PCRA
context as when ineffectiveness claims are raised on
direct review. Failure to establish any prong of the
test will defeat an ineffectiveness claim.
Commonwealth v. Solano, 129 A.3d 1156, 1162-1163 (Pa. 2015), quoting
Commonwealth v. Keaton, 45 A.3d 1050, 1060-1061 (Pa. 2012) (some
citations and footnote omitted). “Trial counsel is presumed to be effective,
and a PCRA petitioner bears the burden of pleading and proving each of the
three factors by a preponderance of the evidence.”
Commonwealth v.
Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015) (citation omitted). “When
evaluating ineffectiveness claims, judicial scrutiny of counsel’s performance
must be highly deferential.
Counsel will not be deemed ineffective where
the strategy employed had some reasonable basis designed to effectuate his
or her client’s interests.” Id. at 1290.
Allegations 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. Kelley, --- A.3d ---, 2016 WL 1072107, at *3 (Pa.
Super. 2016) (internal quotation marks and citations omitted).
The standard for post-sentence withdrawal of guilty
pleas dovetails with the arguable merit/prejudice
requirements for relief based on a claim of ineffective
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assistance of plea counsel, … under which the
defendant must show that counsel’s deficient
stewardship resulted in a manifest injustice, for
example, by facilitating entry of an unknowing,
involuntary, or unintelligent plea. This standard is
equivalent to the “manifest injustice” standard
applicable to all post-sentence motions to withdraw a
guilty plea.
Id. at *4, quoting Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa.
Super. 2005) (en banc), appeal denied, 887 A.2d 1241 (Pa. 2005) (internal
citations omitted).
Appellant’s specific claim is that plea counsel “did not perform an
adequate investigation, under the rules of professional conduct or the
Constitution” of the forensic procedures and results of Appellant’s blood
alcohol content (BAC) testing.
Appellant’s Brief at 22.
Appellant asserts
there is no reasonable basis for plea counsel to have failed to make a more
thorough investigation.
Id. at 26.
Additionally, Appellant claims he was
prejudiced because “it was impossible for [Appellant] to enter a knowing,
voluntary, and intelligent plea where his counsel failed to conduct a prompt
and thorough investigation.” Id. at 30. Thus, Appellant contends it is not
his burden, in showing prejudice, to demonstrate that the BAC results are
unreliable or that the results of the investigation would have changed plea
counsel’s recommendation or Appellant’s decision to enter a guilty plea. Id.
After careful review, we conclude that the trial court’s September 23,
2015 Rule 1925(a) memorandum opinion fully sets forth Appellant’s claims,
identifies the proper standards of review, discusses the relevant law, and
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J-S36013-16
explains the bases for its conclusion that Appellant has failed to establish
manifest injustice on the basis of ineffective assistance of counsel to permit
post-sentence withdrawal of his guilty plea. We have carefully reviewed the
entire record and Appellant’s arguments, and we conclude that the thorough
and well-reasoned opinion of Judge David L. Ashworth is in concert with our
own views.
Specifically, we agree that the record supports the trial court’s finding
that plea counsel did investigate the “‘package of materials’ [Appellant]
contends are essential to defeat a claim of ineffectiveness.”
Opinion, 9/23/15, at 14.
Trial Court
Although Appellant claims the testimony of his
initial direct appeal counsel contradicted that finding, we note “[i]n terms of
the salient facts, we defer to factual findings and credibility determinations
made by courts of original jurisdiction, so long as they are supported by the
record.” Commonwealth v. Hanson, 82 A.3d 1023, 1035 (Pa. 2013). We
also agree Appellant failed to demonstrate prejudice because he did not
demonstrate what further investigation would have revealed and how it
would have altered his decision to plea. See Trial Court Opinion, 9/23/15,
at 11; see also Commonwealth v. Timchak, 69 A.3d 765, 773-774 (Pa.
Super. 2013) (holding, bald suggestions plea counsel failed to investigate or
advise of potential defenses are insufficient to show prejudice where
appellant failed to allege any beneficial information that would have been
discovered).
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Accordingly, we adopt the September 23, 2015 opinion of the
Honorable David L. Ashworth as our own for the purposes of our disposition
of this appeal. We conclude the trial court committed no abuse of discretion
in denying Appellant’s post-sentence motion to withdraw his guilty plea. We
therefore affirm Appellant’s April 15, 2015 judgment of sentence.
Judgment of sentence affirmed.
Judge Dubow joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
-9-
Circulated 06/29/2016 02:43 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
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Christopher R. Mccawley has filed a direct appeal to the Superior Court of
Pennsylvania from the judgment of sentence imposed on April 15, 2015, as finalized by
the denial of his post-sentence motion to withdraw his guilty plea by Order dated
September 3, 2015. This Opinion is written pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure, and, for the following reasons, this Court
requests that this appeal be dismissed.
I.
Background
The relevant facts, as set forth in the Criminal Complaint, and the procedural
history may be summarized as follows. On July 3, 2013, at approximately 10:30 p.m.,
Trooper Nicholas D. Long was on duty in full uniform in a marked Pennsylvania State
Police (PSP) patrol unit. While traveling south on Route 222, Trooper Long observed a
black Volkswagen Jetta in his lane of travel speed up to pass a vehicle. Trooper Long
followed the vehicle for more than 3/1 O's of a mile and clocked the vehicle traveling at
79 mph in a 65 mph zone. Trooper Long observed the vehicle weaving in its lane
crossing over the center dividing line and fog line numerous times.
Trooper Long activated the emergency warning lights and siren to initiate a
vehicle stop. The vehicle stopped in the southbound shoulder of Route 222 just north
of Eden Road in Manheim Township.
driver's side approach.
Trooper Long exited his vehicle and made a
Upon coming in contact with the driver, Christopher Mccawley,
Trooper Long made the following observations: (1) Mccawley had bloodshoUglassy
eyes; (2) Mccawley had slurred speech; (3) the strong smell of alcohol was coming
from McCawley's person and breath as he talked; and (4) Mccawley admitted that he
had consumed four beers. Trooper Long also observed an open container of Miller
Light Beer in the center dash cup holder.
As a result of these observations, Trooper Long requested Mccawley exit his
vehicle to perform standard field sobriety tests. Prior to administering each test,
Trooper Long demonstrated and explained each test to Mccawley.
Mccawley
attempted two standard field tests and showed signs of impairment during the tests.
Trooper Long's opinion as an experienced police officer was that Mccawley
was under the influence of alcohol to the extent that rendered him incapable of safe
driving. Mccawley was placed under arrest for suspicion of driving under the influence
and transported to Lancaster General Hospital for blood testing.
Trooper Long advised
Mccawley of the blood testing warnings and report of refusal, and obtained McCawley's
signature on the PennDOT DL-26 form.
On July 3, 2013, at approximately 11 :52 p.m., Mccawley provided whole blood
samples which were sent to the PSP Harrisburg Regional Laboratory for testing.
2
On
July 17, 2013, PSP Forensic Scientist Christina M. Fialkowski issued a report indicating
a blood alcohol content (SAC) of .211 %. (See Commonwealth's Exhibit No. 8.) As a
result of the above-recited facts, Mccawley was charged with DUI - Highest Rate of
Alcohol (SAC .16+) (second offense), DUI - General Impairment/Incapable of Driving
Safely (second offense), and the summary offenses of disregarding traffic lanes,
exceeding 65 mph by 14 mph, depositing waste on a highway,1 and restrictions on
alcoholic beverages.2 In November 2013, Mccawley appeared before a magisterial
district judge for a preliminary hearing on the charges. At that time, the Commonwealth
withdrew the summary offenses and Mccawley waived the DUI offenses to the Court of
Common Pleas.
The case was originally scheduled for a guilty plea on March 12, 2014. On that
date, Mccawley appeared and asked that the plea be rescheduled to April 16, 2014. At
the scheduled date and time for the plea, Mccawley appeared and indicated his desire
to go to trial on the charges. As a result, the plea was pulled and his privately-retained
counsel, Richard 8. MacDonald, Esquire, orally moved to withdraw as counsel. The
Court granted the motion upon consent of Mccawley. (See Order of April 17, 2014.)
Following the withdrawal of counsel, Mccawley chose to proceed prose and the case
was ultimately scheduled for trial the week of January 19, 2015. Subpoenas were
issued by the Commonwealth on December 30, 2014, for PSP Forensic Scientist
Christina Fialkowski and for the prosecuting officer, PSP Trooper Long.
1While
Trooper Long was in his patrol car, Mccawley removed the open Miller Light
container from the cup holder and tossed it out the passenger window onto the ground.
275
Pa. C.S.A. § 3802(c), 75 Pa. C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 3309(1), 75 Pa.
C.S.A. § 3362(a)(1.1-14), 75 Pa. C.S.A. § 3709(a), and 75 Pa. C.S.A. § 3809(a), respectively.
3
Just four days before McCawley's scheduled trial date of January 19, 2015,
Assistant Public Defender Melissa Lee Norton, Esquire, entered her appearance on
•
McCawley's behalf. The trial date was continued first to March 9, 2015, and then to
April 13, 2015. During this time, Attorney Norton received discovery from the
Commonwealth that included, inter alia, the PSP laboratory report dated July 17, 2013,
which concluded that McCawley's BAC - based on a headspace gas chromatographic
analysis - was .211 % at the time of the blood draw.3 (See Commonwealth's Exhibit No.
8.)
Mccawley ultimately decided to resolve the DUI charges by a negotiated guilty
plea which he tendered to the Court on April 15, 2015. (See Commonwealth's Exhibit
No. 9.) At that time, I accepted the plea as voluntary, knowing and intelligent, and
sentenced Mccawley to a Tier 3 mandatory term of incarceration of 90 days to 23
months on Count 1, DUI - Highest Rate of Alcohol, followed by a term of three years'
probation.4 Count 2, DUI - General Impairment, merged with Count 1 for sentencing
purposes. A fine of $1,500.00 and costs were also imposed and McCawley's license
was suspended for 18 months. Mccawley was further ordered to complete 100 hours
of community service.
3As
will be discussed further, trial counsel also received the DVD of the Motor Vehicle
Recording, the Blood Alcohol Worksheet, laboratory documents including the chromatographic
analysis, the Blood Alcohol Calibration Sheet, and the Blood Alcohol Equipment Maintenance/
Repair Log Sheet. (See Commonwealth Exhibit Nos. 1, 4, 5, & 7.)
4McCawley's
prior DUI offenses occurred on September 9, 1999, and November 1,
2007.
4
Following his sentencing, Mccawley retained private counsel, Theodore C.
Tanski, Esquire.5
(See April 27, 2015, Praecipe for Appearance.) On April 27, 2015,
Mccawley filed a motion for post-sentence relief seeking to withdraw his guilty plea on
the grounds that ineffective assistance of counsel resulted in an invalid plea. ( See
McCawley's Post-Sentence Motion at ,I1 .6.) Specifically, Mccawley contends that "plea
counsel did not investigate into the BAC test's reliability." (See Memorandum of Law in
Support of Post-Sentence Motion at 2.)
By Order dated April 28, 2015, I denied McCawley's post-sentence motion.
Mccawley filed a timely appeal to the Superior Court of Pennsylvania on May 26,
2015.6 See No. 891 MDA 2015. On June 4, 2015, Mccawley and the Commonwealth
filed with the Superior Court a joint application for remand citing an insufficient record
for appellate review.7 By Order of June 25, 2015, the Superior Court issued a rule to
show cause on the Court as to why the joint application should not be granted. On July
6, 2015, I notified the Superior Court that I was unopposed to a remand for purposes of
5Attorney
Tanski was then an employee of The Mcshane Firm, LLC. (Notes of
Testimony, Evidentiary Hearing (N.T.) at 42.) His appearance was withdrawn, however, on July
27, 2015, and another lawyer at the firm, Richard S. Roberts, Esquire, entered his appearance
on behalf of Mccawley. (See July 27, 2015, Praecipe for Appearance.)
6By
Order dated May 4, 2015, I granted McCawley's petition for bail pending appeal as
his report date to the Lancaster County Prison was May 4, 2015.
Generally, courts reserve ineffective assistance of counsel claims until collateral review.
See Commonwealthv. Holmes, 621 Pa. 595, 79 A.3d 562, 575 (2013). However, where a
defendant will serve a sentence "too short as to be unlikely to avail themselves of PCRA
review," a trial court may exercise its discretion to consider a claim of ineffectiveness where the
claim "is both meritorious and apparent from the record." Id. at 577-78. I did not find the claim of
ineffective assistance of counsel to be meritorious and so did not conduct an evidentiary
hearing on the issue of whether it was reasonable for counsel to rely upon the accuracy of the
BAC test conducted by the PSP laboratory. See Commonwealth v. Denmark, 800 A.2d 947,
952 (Pa. Super. 2002) (BAC tests are basic and routine and, therefore, highly reliable).
7
5
holding an evidentiary hearing. By Order of July 10, 2015, the Superior Court
remanded the case for purposes of "hold[ing] an evidentiary hearing to address [my]
denial of Appellant's post-sentence motion to withdraw guilty plea."
The evidentiary hearing, originally scheduled for August 6, 2015, was held on
September 3, 2015.8 Mccawley testified (N.T. 61-75), and further presented the
testimony of his court-appointed plea counsel, Melissa Norton (Id. at 11-42), and his
first privately-retained post-sentence counsel, Theodore Tanski. (Id. at 42-61.) The
Commonwealth presented no witnesses, although it did introduce documentary
evidence. (See Commonwealth Exhibit Nos. 1-9.)
At the conclusion of the hearing, I denied, on the record, McCawley's motion to
withdraw his guilty plea. (N.T. at 87.) I further amended my Order of May 4, 2015,
continuing McCawley's release on his own recognizance pending appeal but requiring
that he submit to the Lancaster County DUI Repeat Offender program conditions. (See
Order of September 3, 2015; see also Id. at 87-88.)
Mccawley notified the Court at the conclusion of the hearing that he would be
appealing the denial of his post-sentence motion.9 Pursuant to this Court's directive,
McCawley's counsel furnished a concise statement of errors complained of on appeal"
8The
hearing proceeded only after Mccawley made an express, knowing and voluntary
waiver of further PCRA review in this case. (N.T. at 7-10; see also Court's Exhibit No. 1.) See
Holmes, 621 Pa. at 626, 79 A.3d at 580 (ineffectiveness claims cannot be addressed on direct
appeal absent a waiver of PCRA rights).
As of the date of this Opinion, the docket does not indicate that a written notice of
appeal to the Superior Court has been filed by Mccawley.
9
10By
Order dated September 8, 2015, I directed Appellant to "file of record and
concurrently serve on the Court a concise statement of the errors complained of on appeal no
later than 21 days from the date of th[e] Order." Appellant, in his "1925(b) Statement",
6
on September 17, 2015, which sets forth two bases for this appeal: (1) "The court
abused its discretion in not permitting Mccawley to withdraw his guilty plea where his
plea was made unknowingly, involuntarily, and unintelligently because of his counsel
ineffectiveness"; and (2) "The trial court erred in not finding McCawley's prior counsel
ineffective, and allowing him to withdraw his guilty plea, when she at most gave a
cursory review into the accuracy and reliability of McCawley's BAC results." (See
Statement of Errors at
II.
,m 5.1,
5.2.)
Standard of Review
Initially, I note that "[t]he entry of a guilty plea constitutes a waiver of all defenses
and defects except claims of lack of jurisdiction, invalid guilty plea, and illegal
sentence." Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005).
Mccawley has not challenged the jurisdiction of this Court. Neither does he dispute
that the sentence imposed was legislatively permitted.11 Rather, the focus of
McCawley's post-sentence motion is the validity of his negotiated guilty plea.
admonishes me that, "contrary to this Court's insistence, an individual's failure to provide all
statutory and case law that he relies on for his 1925(b) statement[] does not waive all potential
appellate issues." (See 1925(b) Statement at ,r 1 (emphasis added).) I did not require in this
case, nor have I ever required an appellant to provide, "all statutory and case law that [an
appellant] relies on for [a] 1925(b) statement." This chastisement by counsel is neither
warranted nor appropriate, but is representative of the sometimes condescending, imperious,
and arrogant tone of the attorneys associated with The McShane Law Firm. ( See, for example,
Mccawley Memorandum of Law in Support of Post-Sentence Motion at 15 ("We trust this Court
to reason well. And when it does, it should reach the conclusion that Mccawley may withdraw
his plea."); N.T. at 86 (Attorney Norton is not simply charged with ineffective assistance of
counsel for her alleged failure to adequately investigate the reliability of the BAC test results,
but is also accused of breaching the Rules of Professional Conduct)).
The sentences imposed on Mccawley were within the permissible statutory maximums
and, therefore, clearly were legal sentences.
11
7
Our Supreme Court has concluded that "[t]he standard for post-sentence
withdrawal of guilty pleas dovetails with the arguable merit/prejudice requirements for
relief based on a claim of ineffective assistance of plea counsel under which the
defendant must show that counsel's deficient stewardship resulted in a manifest
injustice, for example, by facilitating entry of an unknowing, involuntary, or unintelligent
plea." Commonwealth v. Mallory, 596 Pa. 172, 200, 941 A.2d 686, 703 (2008)
(quoting Commonwealth v. Flanagan, 578 Pa. 587, 854 A.2d 489, 502 (2004)).
See also Commonwealth v. Mitchell, -- Pa.-, 105 A.3d 1257, 1272 (2014) (quoting
Commonwealth v. Allen, 557 Pa. 135, 144, 732 A.2d 582, 587 (1999) ("Allegations of
ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief
only if the ineffectiveness caused appellant to enter an involuntary or unknowing
plea.")). "The law does not require that [the defendant] be pleased with the outcome of
[his] decision to enter a plea of guilty; rather '[a]II that is required is that [the
defendant's] decision to plead guilty be knowingly, voluntarily and intelligently made."'
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (quoting
Commonwealth v. Moser, 921 A.2d 526, 528-29 (Pa. Super. 2007). Where the
defendant enters his plea on the advice of counsel, "[t]he voluntariness of [the] plea
depends on whether counsel's advice was within the range of competence demanded
of attorneys in criminal cases." Commonwealth v. Lynch, 820 A.2d 728, 732 (Pa.
Super. 2003) (citation omitted).
8
Ill.
Discussion
In this case, Mccawley alleges that trial counsel caused him to enter an
unknowing, unintelligent, and involuntary plea because (1) she failed to adequately
investigate the reliability of the SAC test results (see 1925(b) Statement at,I 5.2), and
(2) she failed to subpoena the PSP forensic scientist who conducted the SAC test.12
(See N.T. at 63, 72-74.) I will address the latter basis for the invalid plea first.
Mccawley testified at the evidentiary hearing that he "ended up pleading guilty
...
[b]ecause [he] saw there was no lab technician on the premises whatsoever" on the
morning of his scheduled trial. (N.T. at 63; see also Id. at 72.) He further stated that
Attorney Norton told him, two days prior to trial, that she "did ... subpoena the lab
technician" (Id. at 63) but, on the day of trial, that "no one had subpoened the lab tech."
(Id. at 73-74.) I find Appellant's testimony on this issue not credible.
Not only had the Commonwealth subpoened the PSP laboratory scientist,
Christina Fialkowski, to the trial scheduled to begin on April 15, 2015, but it had also
issued a subpoena on December 30, 2014, for her appearance at the original trial date
of January 19, 2015, and on March 2, 2015, for her appearance at the rescheduled trial
"Appellant testified at the evidentiary hearing that he insisted his attorney do two things
in his defense: (1) "file a motion to suppress because of this McNeely law about ... refuting the
breath machine at the state lab"; and (2) subpoena the PSP lab technician for trial. In Missouri
v. McNeely, - U.S. -, 133 S.Ct. 1552, 1568 (2013), the United States Supreme Court refused
to adopt a per se exigency exception to the warrant requirement of the Fourth Amendment for a
nonconsensual blood test of a drunk-driving suspect. McNeely is inapplicable to this case
because Appellant consented to the blood test and signed the necessary PennDOT DL-26
form. It appears that Appellant has perhaps confused the ruling of McNeely with some other
case regarding challenges to breathalyzer machines or blood alcohol equipment. Because
Appellant has raised trial counsel's failure to investigate the reliability of the BAC test results, I
need not decipher this McNeely claim.
9
date of March 9, 2015. A trial court may take judicial notice of documents contained in
the official file maintained by the Clerk of Courts Office, which in this case include
copies of the subpoenas issued to Christina Fialkowski.
(N.T. at 75-76.) See
Conchado v. Department of Transportation,Bureau of DriverLicensing,941 A.2d
792, 794 (Pa. Cmwlth. 2008) ("[A] court in appropriate circumstances may take judicial
notice of court records.") See also Germantown Cab Company v. Philadelphia
Parking Authority
, 27 A.3d 280, 283 n.8 (Pa. Cmwlth. 2011) (taking judicial notice of a
Supreme Court docket); Pa. R.E. 201(b)(2) (permitting courts to take judicial notice of
facts that may be "determined from sources whose accuracy cannot reasonably be
questioned").
Here, the evidence establishes that the PSP laboratory scientist was
subpoenaed for trial and, although she might not have been there on the morning the
trial was scheduled to begin with jury selection and opening arguments, she was
available to testify at trial. For Appellant to suggest that he was forced to plead guilty
because the "lab tech" was not present in the courtroom that morning is absurd.
Equally ludicrous is McCawley's assertion that his trial counsel would deliberately
misrepresent the fact that the PSP laboratory scientist would not be appearing for trial.
Attorney Norton testified at the evidentiary hearing that she was prepared to
proceed to a jury trial the morning the case was called. (N.T. at 22.) She stated that,
when Mccawley expressed an interest in pleading guilty, she sat with her client outside
the courtroom and highlighted "areas of concern" or irregularities on the BAC
worksheets about which she intended to cross-examine the laboratory scientist. (Id. at
10
23-24; see also Id. at 28-29; Commonwealth Exhibit No. 3.) Although she concluded
there was "no fatal error on the analysis of the blood, [she] thought that these were
items that might lead the jury to question whether or not they could find [Mccawley]
guilty." (Id.)
Clearly, the PSP laboratory scientist was scheduled to testify at trial and Attorney
Norton intended to specifically cross examine her about the BAC worksheets. I
accepted as credible Ms. Norton's testimony regarding the availability of the laboratory
scientist, and rejected the testimony of Mccawley on this issue as not credible.13
Mccawley further alleges that trial counsel caused him to enter an unknowing,
unintelligent, and involuntary plea because she failed to adequately investigate the
reliability of the BAC test results. (See 1925(b) Statement at 1J 5.2.) For a failure-toinvestigate claim to rise to ineffective assistance of counsel, the defendant must state
with particularity what the investigation would have revealed and how it would have
altered the outcome. Commonwealth v. Clayton, 572 Pa. 395, 401-02, 816 A.2d 217,
220-21 (2002). See also Commonwealth v. Elliott, 622 Pa. 236, 80 A.3d 415, 431-32
(2013) (claim of ineffectiveness for failure to raise trial counsel's failure to investigate
must demonstrate that appellant was prejudiced such that outcome of proceedings
would have been different). Furthermore, the reasonableness of a particular
investigation depends upon whether there was any evidence known to counsel which
13"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; otherwise, issues of material fact could be decided on pleadings and affidavits
alone." Commonwealthv. Johnson,600 Pa. 329, 356-57, 966 A.2d 523, 539 (2009).
11
would have caused a reasonable attorney to conduct a further investigation.
Commonwealth v. Willis,68 A.3d 997, 1009 (Pa. Super. 2013).
Our Superior Court has determined that BAC tests are basic and routine and,
therefore, highly reliable. Denmark, 800 A.2d at 952. The Pennsylvania Department of
Health approves laboratories to perform BAC tests. 75 Pa.C.S.A. § 1547(c)(2). "The
Department's careful and thorough methods serve to [e]nsure that test results from an
approved facility are valid and reliable." Denmark, supra (quoting Commonwealth v.
Brown, 428 Pa. Super. 587, 631 A.2d 1014, 1018 (1993)). As a general rule, if a BAC
test was performed at a laboratory that is licensed and approved by the Department of
Health or at a PSP criminal laboratory, on a device approved by the Department of
Health, using procedures prescribed by regulations of the Department of Health and
Transportation, then the trial court may take judicial notice that the facility satisfies the
requirements of 75 Pa. C.S.A. § 1547(c).14 Commonwealth v. Hilliar, 943 A.2d 984,
14Section
1547 provides in relevant part:
(c) Test results admissible in evidence.- In any summary proceeding or criminal
proceeding in which the defendant is charged with a violation of section 3802
or any other violation of this title arising out of the same action, the amount of
alcohol or controlled substance in the defendant's blood, as shown by chemical
testing of the person's breath, blood or urine, which tests were conducted by
qualified persons using approved equipment, shall be admissible in evidence ....
(2) (i) Chemical tests of blood or urine, if conducted by a facility located
in this Commonwealth, shall be performed by a clinical laboratory
licensed and approved by the Department of Health for this purpose
using procedures and equipment prescribed by the Department of Health
or by a Pennsylvania State Police criminal laboratory. For purposes of
blood and urine testing, qualified person means an individual who is
authorized to perform those chemical tests under the act of September
26, 1951 (P.L. 1539, No. 389), known as The Clinical Laboratory Act.
(ii) For purposes of blood and urine testing to determine blood alcohol
or controlled substance content levels, the procedures and equipment
prescribed by the Department of Health shall be reviewed within 120
days of the effective date of this subparagraph and at least every two
12
993 (Pa. Super. 2008).
The defendant may then present his or her own evidence in an
attempt to rebut the inference created by judicial notice. Id. (citing Commonwealth v.
Brown, 428 Pa. Super. 587, 631 A.2d 1014, 1017 (1993)).
In the instant case, it is uncontested that the PSP criminal laboratory is an
approved BAC testing facility. Mccawley notes that "[i]t is not our contention that the
Pennsylvania State Police lab in Harrisburg is incorrect or is a bad lab." (N.T. at 6.)
Rather, Mccawley asserts that it is "the duty of a defense attorney ... to investigate
[the validity of the BAC test results] and protect his client's best interests" (Id.) - that is,
to attempt to show that the presumptively valid BAC test results were not reliable.
Specifically, post-sentence counsel argued at the evidentiary hearing in this case
that trial counsel needed to get "what is referred to sometimes as a litigation support
package, which is the data behind that [BAC] number," to overcome the hurdle of
ineffective assistance of counsel. (N.T. at 5-6.) This package of material "goes through
the calibration table, what calibrations were used, what levels were used to calibrate the
machine, when it was calibrated, the refrigeration laws, ... also the chromatograms
that reflect the data behind that number." (Id. at 6.) "It also shows you what procedure
was used, what the analyst did, any notes, any issues with calibration whatsoever, any
errors that the machine detected." (Id.) Additionally, "[i]f the machine did detect an
error," counsel must ascertain "what ... the analyst who was using that sample use[d]
to correct that error in situations such as that[.]" (Id.)
years thereafter to ensure that consideration is given to scientific and
technological advances so that testing conducted in accordance with
the prescribed procedures utilizing the prescribed equipment will be as
accurate and reliable as science and technology permit.
75 Pa. C.S.A. § 1547(c)(2)(i)-(ii) (footnote omitted).
13
Contrary to McCawley's assertion, Attorney Norton did not simply accept the
laboratory report issued by Christina Fialkowski indicating a BAC for her client of
.211 %. (See Memorandum of Law at 2.) Rather, she collected and reviewed prior to
trial precisely the "package of materials" Mccawley contends are essential to defeat a
claim of ineffectiveness. Attorney Norton reviewed the BAC worksheets, the laboratory
documents including the chromatographic analysis (the chromatogram "graphs related
to the test sample that are used on the instrument"), the Blood Alcohol calibration and
re-calibration forms, and the Blood Alcohol Equipment Maintenance/Repair Log Sheets
for the particular instrument used in this case. (N.T. at 14-15, 18, 19; see also
Commonwealth Exhibit Nos. 1, 4, 5, & 7.) She also reviewed Section V of the
Pennsylvania State Police Bureau of Forensic Services Blood Alcohol Quality
Assurance Manual, entitled "Equipment Maintenance and Monitoring," "to determine
what the laboratory should do to maintain the [BAC] equipment." (Id. at 30.) Attorney
Norton then reviewed these documents and the facts of this case with another assistant
public defender to ensure that she was not missing something. (Id. at 17, 23.) She
further contacted the director of the PSP criminal laboratory to confirm the accuracy of
the BAC spectrometer maintenance/repair logs. (Id. at 18-19.)
Over and above her review of these supporting documents, Attorney Norton
coincidentally read several "transcripts from Mr. McShane's [DUI] trials to see what he
was looking for" and "to get a flow of the type of cross examination that [she] wanted to
do."15 (N.T. at 19, 22.) Finally, trial counsel examined a legal treatise on defending DUI
15The
McShane Firm's website claims that this law firm is "Pennsylvania's premiere DUI
and criminal defense law firm" and that "McShane Firm CEO Justin McShane is the highest
14
cases (Id. at 22), as well as a scientific treatise by a Dr. Lee N. Polite about the
chromatographic
instrument used in this case and the type of testing it does.16
(Id. at
22.) After reviewing all of these documents and treatises and consulting with other
defense counsel, it was Attorney Norton's professional opinion that the Commonwealth
had "a reliable blood alcohol concentration reading" and that "if the jury believed the
evidence, ...
the jury could find [Mccawley] guilty." (Id. at 24, 33-34.)
To dispute the testimony of Attorney Norton, Mccawley presented his first postsentence counsel, Theodore Tanski, as a witness at the evidentiary hearing. Mr.
Tanski testified that, after taking the case, he called Ms. Norton on April 24, 2015, and
asked her "if it was fair to say that she did not investigate the reliability of the blood
test." (N.T. at 43.) Attorney Tanski first stated that Attorney Norton "laughed [and] said
yes" to his inquiry. (Id.) However, later in his testimony, once on direct examination
and twice on cross examination, Attorney Tanksi testified that Attorney Norton's reply to
the inquiry was actually "no". (See Id. at 48 ("[n]o, with a laugh"), 54-55 ("she laughed
and said no"), 55 ("she said no ... [with] a little bit of a chuckle".))17 When I tried to
clarify the inconsistent testimony, Attorney Tanski stated first that Attorney Norton said
rated DUI attorney in PA as rated by Avvo.com." See http://www.themcshanefirm.com/
Attorney Norton could not have known at the time she was reviewing DUI trial transcripts of Mr.
McShane's cross examination that her client would subsequently engage The Mcshane Firm as
post-sentence counsel.
16Dr.
Polite has a Ph.D. in chromatography and 18 years of chromatography teaching
and laboratory experience, and is currently lab director for Axion Analytical Laboratories, Inc.
See http://www.axionlabs.com/instructors.htm
17
Attorney Norton testified that Attorney Tanski's only question to her was whether she
had consulted with or engaged an expert to determine the validity of the blood alcohol results,
to which she responded no. (N.T. at 38.)
15
"[y]es, that is fair to say" that she did not conduct the investigation, but then noted that
"[i]f she said no, it was to the fact that she didn't investigate [the reliability of the blood
test]."18 (Id. at 55-56.) Perhaps most telling is the fact that Attorney Tanski sent
Attorney Norton an affidavit which included the averment that "[o]ther than reviewing the
laboratory report, I did not investigate the reliability of McCawley's BAC test results,"
which Attorney Norton refused to sign. (See Post-Sentence Motion, Exhibit Bat 1J 10;
see also N.T. at 39, 47, 56.) I found the testimony of Mr. Tanski to be less than
credible. He spoke more as an overzealous advocate than a witness sworn to recount
the facts truthfully.
In order to establish ineffectiveness for failure to conduct a proper investigation
into the reliability of the BAC test results Mccawley was required to prove that (1) his
underlying claim was of arguable merit, (2) there was no reasonable strategic basis for
what Ms. Norton did or failed to do, and (3) he suffered prejudice. Commonwealth v.
Spotz, 616 Pa. 164, 187, 47 A.3d 63, 76 (2012) (citing Commonwealth v. Pierce, 515
Pa. 153, 158-59, 527 A.2d 973, 975-76 (1987)). Because Mccawley entered a guilty
plea, prejudice is determined by whether it was reasonably probable that but for
counsel's errors, he would not have pleaded guilty and would have gone to trial.
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). Mccawley has
failed to prove these elements for an ineffective assistance of counsel claim.
"Defense counsel conceded the confusion with Mr. Tanksi's testimony when he
reiterated during his closing argument that "when [Mr. Tanksi] asked [Ms. Norton] the question,
did you investigate the reliability of the SAC results, her response was no or yes." (N.T. at 82.)
16
First, the BAG worksheets, the Blood Alcohol calibration and re-calibration forms,
the laboratory documents including the chromatographic analysis, and the Blood
Alcohol Equipment Maintenance/Repair
Log Sheets for the particular instrument used
in this case all suggested to Attorney Norton that the BAG test results were reliable, and
I found this conclusion credible. (N.T. at 24; see also Id. at 86-87.) Mccawley put forth
no evidence that the BAG test results were unreliable or that Attorney Norton had no
strategic basis for not doing a further investigation into the accuracy of the results given
the information which she reviewed. Moreover, there is simply no showing that
McCawley's decision to plead guilty would have been different if Attorney Norton had
done even more investigation into the reliability of the blood test results.
And yet it is McCawley's position that, even if I credit Attorney Norton's testimony
regarding her investigation as to the accuracy of the BAG test results in its entirety,
"[s]he need[ed] to do some more [investigation]." (N.T. at 85.) I find this position
untenable. Attorney Norton acted well within the range of competency demanded of
criminal defense attorneys and to expect her to do more would essentially require the
engagement of an expert.19
It was Attorney Norton's professional opinion that the Commonwealth had "a
reliable blood alcohol concentration reading" and further "had the elements of the
charges, [such that] if they presented the evidence correctly and if the jury believed
"Defense counsel conceded that "problems with BAC tests" "don't exist in all cases, and
I may even submit that they don't exist in the majority of cases, but they are there." (N.T. at 85.)
For that small minority of cases where the accuracy of a BAC test is, in fact, in question, I am
not inclined to create a per se rule that defense counsel must consult an expert such as Dr.
Polite to evaluate the nature and reliability of the particular test utilized in each and every DUI
case brought to court in order to render effective assistance of counsel to a client.
17
what they presented, then it was going to be a successful case for the Commonwealth."
(N.T. at 24-25.) Attorney Norton shared her opinion with Mccawley and he made a
knowing, intelligent, and voluntary decision to plead guilty in light of this information.
In
fact, I find McCawley's repeated attempts to withdraw his guilty plea and his arguments
regarding ineffective assistance of counsel to be nothing more than a thinly veiled
attempt to game the system and avoid taking responsibility for his
IV.
actions."
Conclusion
Fo~ the reasons set forth above, McCawley's post-sentence motion to withdraw
his guilty plea was denied. It is respectfully requested that McCawley's appeal from his
judgment of sentence imposed on April 15, 2015, as finalized by the denial of his postsentence motion to withdraw his guilty plea be dismissed.
Accordingly, I enter the following:
201
also find it interesting that Mccawley has gone from paying for private counsel, to
qualifying for a public defender, to retaining "Pennsylvania's premier DUI and criminal defense
firm," all of which has resulted in a delay of over two years since his arrest for DUI. Again, it
appears Mccawley has manipulated or exploited the rules to his advantage in this case.
18
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
v.
No. 5264 - 2013
CHRISTOPHER R. McCAWLEY
ORDER
AND NOW, this 23rd day of September, 2015, the Court submits this Opinion
pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.
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Copies to:
Susan E. Moyer, Assistant District Attorney
Richard S. Roberts, Esquire, The McShane Firm, LLC, 3601 Vartan Way,
2nd Floor, Harrisburg, PA 17110