Com. v. McClucas

• Decision Date: 30 September 1988
• Parties: COMMONWEALTH of Pennsylvania v. Elmer C. McCLUCAS, Sr., Appellant.
• Court: Pennsylvania Superior Court

Page 573

548 A.2d 573

378 Pa.Super. 202

COMMONWEALTH of Pennsylvania v. Elmer C. McCLUCAS, Sr., Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 1, 1988.

Filed Sept. 30, 1988.

Patricia A. Wenger, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy Dist. Atty., Harrisburg, for Com., appellee.

Before OLSZEWSKI, MONTGOMERY and HOFFMAN, JJ.

OLSZEWSKI, Judge:

This is an appeal from an order dismissing appellant's Post Conviction Hearing Act (PCHA) petition without an evidentiary hearing. Appellant asserts that the trial court erred in dismissing the petition when it raised: (1) the subsequent availability of exculpatory evidence that would have affected the outcome of the trial, and (2) the ineffectiveness of trial counsel for failure to appeal. We affirm.

In February, 1985, as the result of numerous incidents that occurred between appellant and his daughter, L.M., appellant was charged with corruption of minors, endangering the welfare of children, incest, indecent assault, two counts of simple assault, and three counts each of rape and statutory rape. On June 28, 1985, after a waiver trial, the court found appellant guilty of corruption of minors, incest, two counts of simple assault and three counts each of rape and statutory rape. After denying post-trial motions, the trial court sentenced appellant to concurrent terms of five-to-ten years for the three rapes, one-to-two years for the incest charge, and six-to-twelve months for simple assault. This Court affirmed the judgment of sentence on October 14, 1986. Commonwealth v. McClucas, 357 Pa.Super. 449, 516 A.2d 68 (1986).

On December 7, 1987, appellant filed a pro se petition under PCHA. Appointed counsel filed a supplemental petition on January 6, 1988. The petition was denied without a hearing on February 22, 1988, and this appeal followed.

Appellant first contends that the PCHA court erred in denying appellant's petition when it alleged that evidence had become available after trial that would have affected the outcome of the trial. Preliminarily, we note that:

The standard for determining whether the petition warrants a hearing is statutorily prescribed.

(a) When required.--If a petition alleges facts that, if proven, would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer.

(b) When not required.--The court may deny a hearing if the petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The court may also deny a hearing on a specific question of fact when a full and fair evidentiary hearing upon that question was held at the original trial or at any later proceeding.

42 Pa.C.S. § 9549(a), (b).

The controlling factor in determining whether a petition may be dismissed without a hearing is the status of the substantive assertions in the petition. A petition may be denied with no hearing whatsoever when the petition asserts allegations which are frivolous; have already been adjudicated; or have been waived.

Commonwealth v. Weddington, 514 Pa. 46, 50, 522 A.2d 1050, 1052 (1987) (footnotes omitted).

When examining a PCHA court's grant or denial of relief, our scope of review is limited to determining whether the court's findings were supported by the record and its order otherwise free of legal error. Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173 (1985), citing Commonwealth v. Broadwater, 330 Pa.Super 234, 241, 479 A.2d 526, 530 (1984); Commonwealth v. Bellamy, 321 Pa.Super. 471, 475, 468 A.2d 806, 808 (1983). We will not disturb the findings of the PCHA court unless they have no support in the record. Id. Further, with respect to issues of credibility we must defer to determinations made by the PCHA court. Id., citing Commonwealth v. Jones, 324 Pa.Super. 359, 363, 471 A.2d 879, 881 (1984).

Therefore, we proceed to evaluate appellant's claims under this established standard. Our review of appellant's supplemental PCHA petition reveals that appellant asserted as follows:

9. The petitioner is eligible for relief because of the unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have affected the outcome of the trial if it had been introduced, as follows:

(a) [L.M.] was a material witness for the prosecution. [L.M.] was the purported victim of the alleged criminal acts.

(b) Without [L.M.'s] testimony at trial, it is likely that the finder of fact would not have found the petitioner guilty of the above-captioned charges.

(c) [L.M.] has told her mother that her testimony at trial was untrue. Specifically, [L.M.] falsified stories regarding the actions of petitioner thereby providing false evidence that led to the conviction of petitioner in the above-captioned charges.

(d) [L.M.] did not admit to the falsity of her statements until after the conclusion of petitioner's trial on the above-captioned charges.

Supplemental petition at 3.

The PCHA court determined that appellant's claim failed "for lack of specificity." Opinion at 3. ¹ It is well settled that in order for after-discovered evidence to justify the grant of a new trial, "the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would compel a different result." Commonwealth v. Ryder, 488 Pa. 404, 407, 412 A.2d 572, 573 (1980), quoting Commonwealth v. Schuck, 401 Pa. 222, 229, 164 A.2d 13, 17 (1960), cert. denied 368 U.S. 884, 82 S.Ct. 138, 7 L.Ed.2d 188 (1961) (citations omitted). Moreover, in order for appellant to obtain relief on this basis under the PCHA, appellant's petition "must either include affidavits, records and other supporting evidence or state why they are not included." 42 Pa.C.S.A. § 9545(b)(2). "The burden of establishing the ground upon which post-conviction relief is requested rests upon the person seeking that relief." Commonwealth v. Brown, 313 Pa.Super. 256, 259, 459 A.2d 837, 839 (1983), quoting Commonwealth v. Logan, 468 Pa. 424, 433, 364 A.2d 266, 271 (1976).

Instantly, appellant, in his PCHA petition, failed to support his allegation of after-discovered evidence with any evidence that would render the claim more than a bald allegation. ² Appellant did not attach a sworn affidavit of his daughter's alleged recantation nor did he explain its absence. Furthermore, as the trial court noted, appellant did not specify when the alleged recantation occurred. ³ The trial court was, therefore, entirely correct in dismissing appellant's petition without a hearing on the grounds of lack of specificity. ⁴

Despite the technical flaws in appellant's petition, however, we will proceed to evaluate the merits of his claim because of the grievous nature of the offenses for which appellant now seeks a new trial. As has already been stated, a PCHA petitioner is eligible for relief if he can prove the following:

(3) That his conviction or sentence resulted from one or more of the following reasons:

* * *

* * *

(xiii) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.

42 Pa.C.S.A. § 9543(3)(xiii).

Appellant contends that the alleged recantation of the daughter's testimony falls into the above category. We disagree for the reason that the alleged recantation is not evidence which was unavailable at the time of trial. Evidence which is truly after-discovered evidence is that which comes to light after trial, and about which defendant is unaware. Commonwealth v. Frey, 512 Pa. 557, 517 A.2d 1265 (1986). Had appellant, in fact, not committed the acts upon which his convictions were based and had the daughter, in fact, fabricated the incidents she related at trial, this would have been known by appellant at the time of trial where he was free to elicit this information or attack the witness's credibility as the rules of court allowed. See, Commonwealth v. Frey, supra (alleged recantation of witness/accomplice's testimony was not after discovered evidence for the reason that appellant, as a party to the events, was obviously aware of them at the time of trial).

Furthermore, the nature of the after-discovered evidence upon which appellant bases his claim for relief is inherently unreliable. As a matter of general principle, recantation evidence is extremely unreliable and a new trial should not be granted unless the trial court is satisfied that the recantation is true. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979). Specifically, with respect to the instant case, the daughter's testimony at trial of her father's sexual assaults on her was corroborated by three other prosecution witnesses. ⁵ Additionally, the daughter testified at trial, again with support by other witnesses, of threatening behavior towards her by her parents. ⁶ In view of this evidence, the trial court chose to disbelieve the daughter's alleged recantation. Without reservation, we affirm the trial judge's finding in this regard. ⁷

Appellant's second issue alleges the ineffectiveness of his prior counsel for not appealing three of the issues raised and denied in his post-trial motions, specifically: (1) the evidence was insufficient to establish the corpus delicti; (2) appellant's admissions were improperly admitted into evidence; and (3) communications between appellant and the psychologist and CYS caseworkers were privileged and, therefore, improperly admitted in evidence. We deal with each of these contentions seriatim. ⁸

Preliminarily, we note that when faced with a challenge to the effectiveness of counsel we must first determine whether the underlying claim is of arguable merit. If the...