Commonwealth v. McClelland

• Decision Date: 30 March 2023
• Docket Number: 1191 WDA 2021,J-S42005-22
• Parties: COMMONWEALTH OF PENNSYLVANIA v. DAVID JAMES MCCLELLAND APPELLANT
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. DAVID JAMES MCCLELLAND APPELLANT

No. 1191 WDA 2021

No. J-S42005-22

Superior Court of Pennsylvania

March 30, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered September 8, 2021 In the Court of Common Pleas of Washington County Criminal Division at No(s) CP-63-CR-0001884-2011

BEFORE: BOWES, J., OLSON, J., and COLINS, J. ^[*]

MEMORANDUM

BOWES J.

David James McClelland appeals from the order dismissing his petition pursuant to the Post Conviction Relief Act ("PCRA"). We affirm the PCRA court's order. However, because Appellant's conduct was the result of a single, continuous conspiratorial relationship to commit burglary, we vacate Appellant's sentences for conspiracy and his convictions for conspiracy to commit the crimes of criminal homicide, dealing in proceeds of unlawful activity, robbery, and theft by unlawful taking. We hereby remand for resentencing on the charge of conspiracy to commit burglary. Our decision here today does not disturb Appellant's convictions and sentences for second- degree murder, dealing in proceeds of unlawful activities, or receiving stolen property.^[1]

This Court previously detailed the underlying factual and procedural history of this case. See Commonwealth v. McClelland, 133 A.3d 76 (Pa.Super. 2015) (unpublished memorandum) ("McClelland I"). Briefly, Appellant, along with his father, David A. McClelland, and his step-mother, Diane McClelland, "engaged in numerous burglaries and thefts of cash from the home of Evelyn Stepko, their elderly neighbor, who lived alone, beginning in August 2009 and continuing through July 18, 2011, when [Ms.] Stepko was found murdered in her home." Id. (unpublished memorandum at 1-2). Appellant, a municipal police officer at the time, received large amounts of cash from his father that he knew had been stolen from Ms. Stepko. Appellant asked for additional money, which he used at the casino and to purchase various items. He also received gifts of a vehicle and a house that were purchased with funds stolen from Ms. Stepko. See id. The McClellands were tried separately.

Prior to Appellant's jury trial, the Commonwealth tendered three plea offers: (1) ten to twenty years of incarceration in exchange for also testifying against Mrs. McClelland; (2) twenty to forty years of incarceration; and (3) twenty-five to fifty years of incarceration. See N.T. PCRA Hearing, 7/22/21, at 9, 15, 30. All three plea offers required Appellant to plead guilty to third-degree murder, which he refused to do. Following the trial, the jury convicted Appellant of second-degree murder, dealing in proceeds of unlawful activity, receiving stolen property, and conspiracy to commit the crimes of criminal homicide, dealing in proceeds of unlawful activity, robbery, burglary, and theft by unlawful taking.

Appellant was sentenced to the following terms of incarceration: life imprisonment without the possibility of parole ("LWOP") for second-degree murder, two to four years for dealing in proceeds of unlawful activity, ten to forty years for the conspiracy charges,^[2] and two to four years for receiving stolen property. All sentences were set to run consecutively to each other, for an aggregate sentence of life imprisonment plus fourteen to forty-eight years of incarceration. This Court affirmed Appellant's judgment of sentence and our Supreme Court denied his petition for allowance of appeal. See id., appeal denied, 138 A.3d 3 (Pa. 2016). Of relevance to the instant appeal, Joshua Camson, Esquire, represented Appellant throughout the trial and direct appeal proceedings.^[3]

In 2017, Appellant retained new counsel and timely filed the present PCRA petition, his first. Generally, Appellant argued that Attorney Camson provided ineffective assistance during three separate phases, namely: (1) pretrial, by providing deficient advice with regard to plea negotiations and for not requesting a change of venue or questioning of potential jurors; (2) trial, by failing to object to the court's definition of conspiracy as part of its second-degree murder jury instruction;^[4] and (3) appeal, by failing to preserve in Appellant's Rule 1925(b) statement his challenge to the sufficiency of the evidence to support his convictions for conspiracy and second-degree murder. After filing notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed Appellant's petition.

On appeal to this Court, Appellant challenged the PCRA court's decision to dismiss, without a hearing, his PCRA petition. Finding it dispositive, we first considered whether the PCRA court erred in dismissing without a hearing Appellant's claim that Attorney Camson provided deficient advice during the plea negotiations. In this regard, Appellant had argued that Attorney Camson misadvised him as to what the Commonwealth needed to prove for a jury to convict Appellant of murder, misunderstood the Commonwealth's continuing-conspiracy theory of the case, and failed to inform Appellant of inculpatory evidence. See Commonwealth v. McClelland, 239 A.3d 109 (Pa.Super. 2020) (non-precedential decision at 6-7) ("McClelland II"). We agreed with Appellant's legal arguments and concluded that if the facts as alleged were true, counsel would arguably have rendered ineffective assistance. See id. (non-precedential decision at 8-10). However, because the PCRA court did not conduct a hearing, we could "not discern from the record before us evidence of what trial counsel advised Appellant during plea negotiations, and the relationship, if any, of trial counsel's actions and advice to Appellant's assertions of ineffectiveness." Id. (non-precedential decision at 11). Finding our review hindered, we vacated the PCRA court's order and remanded for an evidentiary hearing. See id. (non-precedential decision at 12); see also id. (non-precedential decision at 11) ("Issues of fact exist because we do not have a record of trial counsel's actions and advice during plea negotiations, [nor do we have] the basis for the PCRA court's conclusion that Appellant would never have accepted a plea." (cleaned up)).

On remand, the PCRA court held an evidentiary hearing, at which Appellant and Attorney Camson testified. Although not so limited by our remand directive, the evidentiary hearing solely related to Attorney Camson's representation during the plea proceedings; no testimony was elicited nor evidence offered with respect to Appellant's ineffectiveness claims as to the court's jury instructions, change of venue or questioning of potential jurors, or issue preservation on appeal. The PCRA court ultimately dismissed Appellant's PCRA petition.

This timely filed appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925. With the matter before this Court once again, Appellant presents the following issues for our consideration:^[5]

I. Did the [PCRA] court abuse its discretion in denying the PCRA petition where trial counsel was ineffective for failing to object to the deficient jury instructions on conspiracy as it related to the [second-degree] murder charge?

II. Did the [PCRA] court abuse its discretion in denying the PCRA petition where [Appellant] established that he was denied the effective assistance of counsel during the plea bargaining stage of his criminal prosecution, specifically, his trial counsel failed to give him adequate, accurate and competent advice about whether to accept or reject a plea offer?

III. Did the [PCRA] court abuse its discretion in denying the PCRA petition where trial counsel was ineffective for not requesting a change of venue based on pretrial publicity, and for not requesting that the prospective juror be questioned regarding their impartiality after hearing a potential juror express his belief that [Appellant] was guilty; alternatively, was counsel ineffective for not raising the issue on appeal that the court abused its discretion in denying a motion for change of venire?

IV. Did the [PCRA] court abuse its discretion in denying the PCRA petition where counsel was ineffective for failing to preserve the issue for appeal that the evidence was insufficient as a matter of law to sustain the convictions of criminal conspiracy to commit burglary or robbery, conspiracy to commit homicide - second degree murder, and second degree murder?

Appellant's brief at 4 (cleaned up).

We begin with our well-settled standard of review.^[6]

When reviewing the propriety of an order pertaining to PCRA relief, we consider the record in the light most favorable to the prevailing party at the PCRA level. This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record. However, we afford no such deference to the post-conviction court's legal conclusions. We thus apply a de novo standard of review to the PCRA court's legal conclusions.

Commonwealth v. Mojica, 242 A.3d 949, 953 (Pa.Super. 2020) (cleaned up).

Appellant's PCRA claims all implicate the effective assistance of counsel. Thus, our review is also guided by the following principles. "When reviewing claims of ineffective assistance of counsel, courts must presume that counsel provided effective assistance." Id. at 955 (cleaned up). In order to overcome this presumption, a petitioner must "plead and prove that (1) the claim has arguable merit; (2) counsel lacked any reasonable basis for the action or inaction; and (3) the petitioner suffered prejudice as a result." Id. (cleaned up)....