J-S78033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SHAWN ECKLUND
Appellant No. 462 WDA 2016
Appeal from the PCRA Order March 2, 2016
in the Court of Common Pleas of Venango County Criminal Division
at No(s): CP-61-CR-0000852-2011
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 31, 2016
Appellant, Shawn Ecklund, appeals from the order entered in the
Venango County Court of Common Pleas denying his petition for relief filed
pursuant to the Post Conviction Relief Act1 (“PCRA”). We affirm.
We adopt the facts and procedural history as set forth by the PCRA
court’s opinion.2 Following a hearing, Appellant’s PCRA petition 3 was denied
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
PCRA Ct. Op., 3/2/16, at 1-4. We note a typographical error in the PCRA
court opinion on page 3. The PCRA court received a pro se letter from
Appellant on June 26, 2015.
3
We note that this Court’s memorandum affirming the judgment of sentence
was docketed on September 18, 2014. We adopt the PCRA court’s analysis
of the timeliness of the PCRA petition. See Trial Ct. Op. at 5-7;
Commonwealth v. Ecklund, 1665 WDA 2012 (unpublished memorandum)
(Pa. Super. Aug. 5, 2014).
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and this timely appeal followed. Appellant filed a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal, and the PCRA court
filed a responsive opinion incorporating its February 29, 2016 opinion.
Appellant raises the following issues for our review:
The PCRA [c]ourt erred in denying [Appellant’s] PCRA
petition when his trial counsel was ineffective in failing to
object to the trial testimony of Dr. Adams, who, in effect,
testified as an expert witness.
The PCRA [c]ourt erred in denying [Appellant’s] PCRA
petition when he argued that he should have been given
the opportunity to explore his plea options.
The PCRA [c]ourt erred in denying [Appellant’s] PCRA
petition when he argued that trial counsel was ineffective
in failing to object when the District Attorney implied to
the jury that the victim could have stated that more crimes
had occurred.
The PCRA [c]ourt erred in denying [Appellant’s] PCRA
petition when he argued that his trial counsel was
ineffective in failing to have a psychological evaluation
conducted to determine whether or not [Appellant]
appreciated his actions and that they were wrong.
Appellant’s Brief at 3-4.
Appellant contends counsel was ineffective for failing to object to the
testimony of Dr. Adams regarding concussions because Appellant did not
have the opportunity to obtain a rebuttal witness. Id. at 8. Appellant
“argues that in hindsight, he would have taken the plea had he knowns [sic]
that there was a possibility that he would have received the sentence that he
ultimately received.” Id. at 9. Appellant avers counsel was ineffective for
failing to object when the District Attorney inferred he “could have been
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charged with more crimes [which] means that he was guilty of more
crimes.” Id. at 12. Lastly, Appellant claims counsel was ineffective for
failing to have a psychological evaluation conducted to prove that his post
traumatic stress following his service in Iraq “affected his thinking.” Id. at
12.4
Our review of appeals from the denial of relief under the PCRA is well-
settled:
[A]n appellate court reviews the PCRA court’s findings to
see if they are supported by the record and free from legal
error. This Court’s scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court’s hearing, viewed in the light most
favorable to the prevailing party . . . . In addition, [t]he
level of deference to the hearing judge may vary
depending upon whether the decision involved matters of
credibility or matters of applying the governing law to the
facts as so determined.
Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008) (quotation marks
and citations omitted).
A PCRA court passes on witness credibility at PCRA
hearings, and its credibility determinations should be
provided great deference by reviewing courts. Indeed, one
4
We note that the totality of Appellant’s argument in support of this claim is
that he “testified at the time of the PCRA hearing that he had spoken to his
attorney about post traumatic stress following serving six years in Iraq and
that he specifically asked his attorney to get him a mental health evaluation
to prove these issues affected his thinking.” Appellant’s Brief at 12. “We
have repeatedly held that failure to develop an argument with citation to,
and analysis of, relevant authority waives the issue on review.”
Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super. 2006). Given
the trial court’s analysis of the claim and the record before this Court, we
decline to find the issue waived.
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of the primary reasons PCRA hearings are held in the first
place is so that credibility determinations can be made[.]
Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (citation
omitted).
To be eligible for PCRA relief, [a]ppellant must prove by
a preponderance of the evidence that his conviction or
sentence resulted from one or more of the enumerated
circumstances found at 42 Pa.C.S. § 9543(a)(2) (listing,
inter alia, the ineffective assistance of counsel and the
unavailability at the time of trial of exculpatory evidence,
which would have changed the outcome of the trial had it
been introduced). Further, [a]ppellant must demonstrate
that the issues raised in his PCRA petition have not been
previously litigated or waived. Id. § 9543(a)(3). . . . A
PCRA claim is waived “if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state post[-]conviction
proceeding.” Id. § 9544(b). . . .
It is well-established that counsel is presumed effective,
and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel’s performance was deficient and
that such deficiency prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687–91, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). This Court has characterized the
Strickland standard as tripartite, by dividing the
performance element into two distinct parts.
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975 (1987). Thus, to prove counsel ineffective,
[a]ppellant must demonstrate that: (1) the underlying
legal issue has arguable merit; (2) counsel’s actions lacked
an objective reasonable basis; and (3) [a]ppellant was
prejudiced by counsel’s act or omission. Id. at 975.
Relating to the reasonable basis prong, “[g]enerally,
where matters of strategy and tactics are concerned,
counsel’s assistance is deemed constitutionally effective if
he chose a particular course that had some reasonable
basis designed to effectuate his client’s interests.” Courts
should not deem counsel’s strategy or tactic unreasonable
“unless it can be concluded that an alternative not chosen
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offered a potential for success substantially greater than
the course actually pursued.” Id. Also “[a]s a general
rule, a lawyer should not be held ineffective without first
having an opportunity to address the accusation in some
fashion. . . . The ultimate focus of an ineffectiveness
inquiry is always upon counsel, and not upon an alleged
deficiency in the abstract.”
Relating to the prejudice prong of the ineffectiveness
test, the PCRA petitioner must demonstrate “that there is a
reasonable probability that, but for counsel’s error or
omission, the result of the proceeding would have been
different.” Particularly relevant herein, it is well-settled
that “a court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority;
instead, if a claim fails under any necessary element of the
Strickland test, the court may proceed to that element
first.”
Commonwealth v. Koehler, 36 A.3d 121, 131-32 (Pa. 2012) (some
citations omitted).
It is clear that a criminal defendant’s right to
effective counsel extends to the plea process, as well
as during trial. However, [a]llegations 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.
“[T]he law does not require that [the defendant] be
pleased with the outcome of his decision to enter a plea of
guilty: All that is required is that [his] decision to plead
guilty be knowingly, voluntarily, and intelligently made.”
Moreover, with regard to the prejudice prong, where an
appellant has entered a guilty plea, the appellant must
demonstrate “it is reasonably probable that, but for
counsel’s errors, he would not have pleaded guilty and
would have gone to trial.”
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Commonwealth v. Timchak, 69 A.3d 765, 769–70 (Pa. Super. 2013),
(citations omitted).
In closing arguments, a prosecutor may comment on
the evidence and any reasonable inferences arising from
the evidence. . . .
A prosecutor must have reasonable latitude in fairly
presenting a case to the jury and must be free to
present his or her arguments with logical force and
vigor. The prosecutor is also permitted to respond to
defense arguments. Finally, in order to evaluate
whether the comments were improper, we do not
look at the comments in a vacuum; rather we must
look at them in the context in which they were
made.
Furthermore, prosecutorial misconduct will not be found
where comments were based on the evidence or proper
inferences therefrom or were only oratorical flair.
Commonwealth v. Charleston, 94 A.3d 1012, 1024 (Pa. Super.), appeal
denied, 104 A.3d 523 (Pa. 2014) (quotation marks and citations omitted).
“To sustain a claim of ineffectiveness, counsel’s approach must be so
unreasonable that no competent lawyer would have chosen it.”
Commonwealth v. Ervin, 766 A.2d 859, 862-63 (Pa. Super. 2000)
(quotation marks and citation omitted omitted).
After careful consideration of the parties’ briefs, the record, and the
decision of the Honorable H. William White, we affirm on the basis of the
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PCRA court’s decision.5 See PCRA Ct. Op. at 5-16 (holding, inter alia, that
(1) counsel attempted to use Dr. Adams’ testimony to his advantage to
support the defense’s contention that the injuries the victim sustained were
not serious and did not support the aggravated assault charge;6 (2) counsel
discussed the plea agreement and determined Appellant would not admit to
the aggravated assault charge and still have the court accept the plea
agreement;7 (3) the prosecutor attempted to bolster the credibility of the
victim by arguing that if the victim was going to lie she could have accused
Appellant of more serious misconduct;8 (4) the court found counsel’s
strategy competent and his testimony credible and that per Appellant’s
admission regarding the simple assault charge, a defense based upon his
mental condition was unavailable).9 Accordingly, we conclude the PCRA
court’s findings are supported by the record. See Fahy, 959 A.2d at 316.
Order affirmed.
5
We note that the PCRA court inadvertently miscited certain references to
the notes of testimony from the PCRA hearing.
6
See N.T. PCRA Hr’g, 1/26/16, at 48-52.
7
See id. at 15-16, 18, 33-34, 45-46.
8
See id. at 64.
9
See id. at 19, 55-56.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2016
-8-
Circulated 10/07/2016 05:14 PM
lN THE COURT OF CotvfMON PLEAS Of VENANGO COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
v.
SHAWN LOUIS ECKLUND)
Defendant.
OPINION OF COURT
AND NOW, this 7•h day of April, 2016, the Court has before it Defendant's Concise
Statement of Matters Complained of on Appeal, The matters complained of on appeal raised in the
Concise Statement are virtually identical to the issues raised in Defendant's Post-Conviction Relief
Act petition (uPCRA"), dated October 2, 2015. Following a PCRA hearing on January 26, 2016,
this Court issued an Opinion and Order of Court dated February 29, 2016 (entered on the docket
March 2) denying Defendant's PCRA, addressing these issues al length.
Since the Court has previously addressed the identical issues raised on appeal in its
February 29, 20 t 6 Order of Court denying the PCRA, the Court will not issue further opinion on
the matter. The Court would refer the Superior Court to its February 29 Opinion for this Court's
reasoning in denying these issues raised in the Concise Statement.
BY THE COURT.
Specially Presiding
cc: DA
Tinn Fryling, Esq.
. ) ")
;_ -·-< /
fN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANIA
COMMONWEAL TH OF PENNSYLVANJA
v.
SHAWN LOUlS ECKLUND,
Defendant.
ORDER OF COURT
AND NOW, this .)Com. v. Ecklund, S.
Combined Opinion