J-S42002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE SMOOT :
:
Appellant : No. 2176 EDA 2019
Appeal from the PCRA Order Entered July 11, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005867-2013,
CP-09-CR-0005868-2013, CP-09-CR-0005869-2013,
CP-09-CR-0005875-2013, CP-09-CR-0005876-2013,
CP-09-CR-0005879-2013, CP-09-CR-0005882-2013,
CP-09-CR-0005883-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE SMOOT :
:
Appellant : No. 2259 EDA 2019
Appeal from the PCRA Order Entered July 11, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005868-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE SMOOT :
:
Appellant : No. 2260 EDA 2019
J-S42002-20
Appeal from the PCRA Order Entered July 11, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005869-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE SMOOT :
:
Appellant : No. 2261 EDA 2019
Appeal from the PCRA Order Entered July 11, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005875-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE SMOOT :
:
Appellant : No. 2262 EDA 2019
Appeal from the PCRA Order Entered July 11, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005876-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE SMOOT :
:
Appellant : No. 2263 EDA 2019
Appeal from the PCRA Order Entered July 11, 2019
In the Court of Common Pleas of Bucks County
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J-S42002-20
Criminal Division at No(s): CP-09-CR-0005879-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE SMOOT :
:
Appellant : No. 2264 EDA 2019
Appeal from the PCRA Order Entered July 11, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005882-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JESSE SMOOT :
:
Appellant : No. 2265 EDA 2019
Appeal from the PCRA Order Entered July 11, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005883-2013
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 15, 2020
Jesse Smoot appeals from the order denying his first and timely petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), see 42
Pa.C.S.A. §§ 9541-9546, following a hearing. On appeal, Smoot principally
asserts that he was deprived of his right to counsel prior to trial and
additionally raises several ineffective assistance of counsel claims. However,
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based on our thorough review of the record as well as the submissions made
to this Court, we find that the PCRA court did not commit legal error nor abuse
its discretion in denying Smoot’s petition. Accordingly, we affirm.
Preliminarily, we note that the factual history of this case is laid out
extensively in this Court’s decision affirming Smoot’s judgment of sentence
on direct appeal. See Commonwealth v. Smoot, 3154 EDA 2014, 2016 WL
2349091 (Pa. Super., filed May 4, 2016) (unpublished memorandum). Briefly,
a jury convicted Smoot of ten robberies and various related offenses that were
all derived from a series of armed robberies in both Bucks and Montgomery
Counties. As a result, the trial court sentenced Smoot to an aggregate term
of twenty-eight to seventy years of incarceration, to be followed thereafter by
a lengthy probation period.
After this Court’s decision affirming his judgment of sentence, our
Supreme Court denied his petition for allowance of appeal. Smoot then timely
filed his first PCRA petition, and after being granted a hearing, his petition was
denied. Smoot timely appealed the PCRA court’s decision to our Court, and
both he and the PCRA court have complied with the dictates of Pa.R.A.P. 1925.
On appeal, Smoot presents three issues for our review:
1. Was Smoot deprived of his right to counsel and/or given
ineffective assistance of counsel when he did not have counsel
for a large portion of his pre-trial period, the trial court created
conditions that constructively deprived him of counsel, and his
trial counsel did not present this issue to the court?
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2. Was trial counsel ineffective for failing to object to the trial court’s
acceptance of a defense witness’s invocation of the right to remain
silent?
3. Was trial counsel ineffective for failing to introduce the defense
witness’s suppression hearing testimony after she became
unavailable by invoking her right to remain silent?
See Appellant’s Brief, at 1-2.1
We review the denial of a PCRA petition to ascertain whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. See Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
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1
Smoot presents a fourth issue in his brief, asking whether the appeal at 2176
EDA 2019 should be quashed. See Appellant’s Brief, at 2.
Following the denial of PCRA relief, Smoot initially filed only one notice
of appeal, docketed by our Court at 2176 EDA 2019, which listed eight trial
court docket numbers. Correspondingly, this Court issued a rule to show cause
as to why his appeal should not be quashed in accordance with
Commonwealth v. Walker, 185 A.3d 969 (Pa. Super. 2018) (establishing
that separate notices of appeal must be filed for each court of common pleas
docket number). In response and still within thirty days of the order denying
PCRA relief, Smoot filed seven additional notices of appeal, with each listing
one trial court docket number. However, Smoot did not refile an additional
notice for the case docketed at 2176 EDA 2019. Eventually, this Court sua
sponte consolidated all eight appeals in this case at docket number 2176 EDA
2019.
We conclude that Smoot has sufficiently complied with the dictates of
Walker through his curative action of filing seven additional notices of appeal
and decline to quash his appeal. See Commonwealth v. Johnson, 236 A.3d
1141, 1148 (Pa. Super. 2020) (en banc) (indicating that as long as the
numerical amount of notices of appeal corresponds to the number of court of
common pleas docket numbers and that listing multiple docket numbers on
the same notice of appeal does not invalidate any of said appeals); see also
Pa.R.A.P. 903(a) (providing a thirty-day period for a party to file an appeal).
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2014). Moreover, the PCRA court’s findings and evidence of record are viewed
in a light most favorable to the prevailing party. See Commonwealth v.
Mason, 130 A.3d 601, 617 (Pa. 2015). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court’s legal
conclusions.” Id.
With little exception, all three of Smoot’s claims focus on trial counsel’s
alleged inaction at various points prior to and during trial. Our case law
establishing what constitutes ineffective assistance of counsel is well-settled.
First, counsel is presumed to have rendered effective assistance. See
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). Second,
Pennsylvania courts are guided by the test espoused by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See
Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987). That test, as
adopted by our courts, means that in order to demonstrate ineffectiveness,
Smoot must plead to prove by a preponderance of the evidence that: “(1) his
underlying claim is of arguable merit; (2) the particular course of conduct
pursued by counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable
probability that the outcome of the challenged proceeding would have been
different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
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Third, Smoot’s failure to satisfy any one prong of that three-part test
renders an ineffective assistance of counsel claim fatally defective. See
Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Accordingly, we,
as an appellate court, “need not analyze the prongs of an ineffectiveness claim
in any particular order.” Commonwealth v. Johnson, 139 A.3d 1257, 1272
(Pa. 2016). Fourth, “counsel cannot be deemed ineffective for failing to raise
a meritless claim.” Id.
Smoot first asserts that he was without counsel for roughly three out of
the four months between his arraignment and trial. See Appellant’s Brief, at
6. In other words, Smoot stresses that because he neither received assistance
from the public defender’s office nor obtained any private counsel that was,
at that point, willing to enter an appearance on his behalf and provide full
representation, he was without counsel for approximately sixty-two percent
of the time that he was in pre-trial status. See id., at 26.
Smoot emphasizes that trial counsel inherently prejudiced him by failing
to raise an objection over the time he spent uncounseled and was therefore
ineffective. See Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2009).
The Reed decision discussed United States v. Cronic, 466 U.S. 648 (1984),
and reinforced the principle that there is a “presumption of prejudice” when a
defendant is constructively denied counsel. See Reed, 971 A.2d at 1221.
The United States Supreme Court in Cronic indicated that actual or
constructive denial of counsel can be found “without any showing of prejudice
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when counsel was either totally absent, or prevented from assisting the
accused during a critical stage of the proceeding.” 466 U.S. at 659 n. 25
(finding the right to counsel to be broader than simply representation during
trial). Our Court has interpreted “critical stage” to mean “any stage of the
prosecution, formal or informal, in or out of court, where counsel’s absence
might derogate from the accused’s right to a fair trial.” Commonwealth v.
McCoy, 895 A.2d 18, 29 (Pa. Super. 2006) (citation omitted). However,
“Cronic is limited to situations where counsel’s failure is complete, i.e., where
counsel has entirely failed to function as the client’s advocate.”
Commonwealth v. Mallory, 941 A.2d 686, 701 (Pa. 2008) (citation and
quotation marks omitted).
Smoot reinforces his averment of presumed ineffectiveness by citing our
Supreme Court’s recent decision in Commonwealth v. Diaz, 226 A.3d 995
(Pa. 2020). There, the Court found that the defendant’s Sixth Amendment
right to counsel was constructively infringed when he was unable to consult
with his attorney about the substance of his trial due to the absence of an
interpreter for the first day of his multi-day trial. See id., at 1010-11.
Accordingly, no finding of prejudice was necessary because the defendant was
unable to confer with his attorney and further had an inability to understand
critical portions of his trial. Our Supreme Court considered this denial of
effective assistance of counsel to be presumed prejudicial in accordance with
Cronic. See id., at 1010.
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Here, after Smoot’s arrest, a Bucks County public defender represented
Smoot prior to his preliminary hearing. At the preliminary hearing, Smoot’s
public defender observed that Smoot had sought and retained private counsel.
While admitting to the public defender that he was unlikely to take the case
to trial, private counsel entered a limited appearance to represent Smoot at
the preliminary hearing.
Private counsel again represented Smoot at his arraignment, but
because a fee agreement was still being worked out, private counsel was not
retained for trial. Furthermore, private counsel did not enter an appearance in
the Bucks County Court of Common Pleas on Smoot’s behalf. See N.T.
11/26/18, at 72-73. However, private counsel did file, inter alia, a motion for
pretrial release in the interim period between arraignment and trial, but that
motion expressly stated that private counsel was not technically retained at
the time.2
Eventually, with little time prior to his trial, Smoot retained different
private counsel than the one who entered those previous limited appearances
on his behalf. Smoot’s new counsel attempted to obtain a continuance,
seeking to postpone Smoot’s trial date, but was ultimately unsuccessful.
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2
It is disputed whether more than one motion was filed. See Appellant’s Brief,
at 32-33 (indicating that Smoot’s private counsel only filed a single motion
instead of the three cited by the PCRA court, with the other two motions being
“merely administrative notations and not filings[.]”)
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The PCRA court, in denying Smoot relief, found that: 1) Smoot
voluntarily declined to be represented by the public defender; and 2) Smoot’s
initial private counsel, in fact, represented him during the so-called
uncounseled period of time. See Trial Court Opinion, 11/25/19, at 24-25. We
agree with Smoot’s assertion that, in accordance with Pennsylvania Rule of
Criminal Procedure 121, “[a] waiver of counsel requires a rigorous colloquy
and cannot be accomplished through inaction and the passage of time.”
Appellant’s Brief, at 31. We also believe that, in the interest of clarity, Smoot
should have been brought before the court earlier in the pre-trial process for
an explicit determination of how Smoot intended to proceed by a specific date.
We will even assume that Smoot was not actually represented by private
counsel when Smoot’s private counsel, without having entered an appearance,
filed at least one motion on Smoot’s behalf.
However, other than the conclusory statement indicating that Smoot
“could not know of the investigation that needed to be done; the motion
practice that was required; or that the trial court would not necessarily be
willing to grant additional continuances required by unprepared counsel once
the trial date approached,” id., at 32, Smoot never identifies any particular
critical stage of the proceedings where he was actually or constructively
denied counsel. While Smoot heavily draws upon the Diaz decision, its holding
is materially distinguishable because it dealt with the absence of an interpreter
for an entire day of trial. More specifically, the appellant in that case “could
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not understand anything that occurred during voir dire or opening statements
or much of the potentially outcome determinative testimony of the
complaining witness.” Diaz, 226 A.3d at 1010-11. These circumstances led
our Supreme Court to conclude that his right to counsel had been violated
because the appellant “could not have communicated with his attorney about
the substance of the proceedings. Such communications encompass
discussions about witness testimony, lines of inquiry to pursue and tactical
decisions, all of which are constitutionally protected.” Id. Similarly, Appel v.
Horn also dealt with a specific and critical phase of pre-trial proceedings: the
ten-day time period between attorney appointment and that appellant’s
waiver of counsel competency hearing. See 250 F.3d 203, 213, 215 (3d Cir.
2001) (finding a competency hearing to be a critical stage of trial and that the
appellant’s appointed attorneys should have conducted some level of
investigation in preparation for that hearing).
Here, Smoot makes no such claim that his alleged deprivation of counsel
occurred during any critical pre-trial phase. Cronic ineffectiveness is
predicated on “omissions of counsel … that are virtually certain to undermine
confidence that the defendant received a fair trial or that the outcome of the
proceedings is reliable[.]” Diaz, 226 A.3d at 1008 (citation omitted). As Smoot
has not identified any discrete pre-trial proceeding where he was without
counsel or that by being uncounseled, it handicapped him in a subsequent
critical phase of pre-trial or trial, we see no reason to believe that, on this
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issue, Smoot did not ultimately receive a fair trial. Furthermore, as this Court
found during his direct appeal, Smoot had been granted two continuances at
his request and effectively clogged the machine of justice through his actions.3
See Commonwealth v. Smoot, 3154 EDA 2014, at *4 (Pa. Super, May 4,
2016). Accordingly, Smoot is due no relief on this claim.
In his next issue, Smoot contends that trial counsel was ineffective in
failing to object when the trial court accepted Alicia Cook's invocation of her
Fifth Amendment privilege against self-incrimination. He complains that the
trial court granted Cook a blanket privilege without first determining the
validity of her claim for itself. As a result, Smoot argues, he was deprived of
his right to compel witnesses to testify, and counsel failed to object to this
deprivation.
We begin by analyzing the arguable merit of Smoot’s claim. A defendant
is deprived of his right of compulsory process when a trial court accepts a
witness’s unsupported claim of privilege against self-incrimination. See
Commonwealth v. Rolon, 406 A.2d 1039, 1040 (Pa. 1979). A trial court
may not merely acquiesce to a witness’s desire not to answer any questions.
See id., at 1041. However, it is always within the purview of the trial court to
ascertain whether silence is justified. See Hoffman v. United States, 341
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3
While this determination dealt exclusively with Smoot’s dropping of his initial
private counsel for the counsel he actually employed at trial, we find it relevant
to Smoot’s modus operandi during the prior period of ambiguous
representation.
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U.S. 479, 487 (1951) (“The trial judge in appraising the claim must be
governed as much by his personal perception of the peculiarities of the case
as by the facts actually in evidence.”). It is only when the answers demanded
cannot have a tendency to incriminate may the court overrule a witness’s Fifth
Amendment privilege. See Rolon, 406 A.2d at 1041. But, as Rolon suggests,
if there is any evidence linking the witness to criminality, then witness silence
could be respected as justified. See id.; see also Commonwealth v.
McGrogan, 568 A.2d 924, 929 (Pa. 1990) (“Where other evidence tends to
implicate the witness in criminal activity, the witness may have justification
for invoking his Fifth Amendment privilege to prevent being harmed by his
own words.”).
Where the record contains evidence suggesting a witness’s complicity in
the crime, a specific factual inquiry is unnecessary. See Commonwealth v.
Allen, 462 A.2d 624, 627-628 (Pa. 1983). Further, a certainty of prosecution
is not necessary; the witness must simply possess “reasonable cause to
apprehend danger of prosecution.” Id., at 627.
Here, trial counsel filed a pretrial motion to suppress Smoot’s alleged
oral confession made at the police station after being arrested. In his motion,
Smoot claimed that the confession was coerced and involuntary because he
was upset with the police officers’ apparent treatment of Cook. According to
Smoot, he only answered the officers’ questions after signing away his
Miranda rights because he wanted to stop his pregnant girlfriend, Cook, from
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crying and allow her to be freed from police control. See N.T., 1/29/14, at
120-26. Cook, too, testified at the suppression hearing and largely
corroborated Smoot’s testimony regarding her condition on the day Smoot
was arrested. See id., at 80-86. Ultimately, the trial court denied Smoot’s
motion to suppress, finding that the interactions between Cook and police
officers did not play a role in Smoot’s confession.
At trial, Smoot’s counsel sought to call Cook as a witness. At the
Commonwealth’s suggestion, the trial court appointed counsel to Cook for
advise her regarding her right against self-incrimination. See Trial Court
Opinion, 11/25/19, at 20. After consulting with counsel, Cook invoked her Fifth
Amendment right to any question that would be asked of her. See N.T.,
2/7/14, at 226-227. Trial counsel did not object to Cook’s assertion of privilege
or otherwise seek to challenge the assertion. See id., at 227.
It is undisputed that “Cook never took the stand at trial.” Appellant’s
Brief, at 41. Smoot contends that the Commonwealth procured Cook’s
unavailability as a witness through illusory threats of criminal liability. He
notes that Cook was never charged with any crime related to this case.
Further, he highlights that the Commonwealth’s description of her possible
criminal liability was equivocal: “I don’t know that [it is] a complete
impossibility” that Cook could be charged as Smoot’s accomplice. See N.T.,
2/7/14, at 8.
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As noted previously, actual charges, either pending or subsequent, were
not a necessary prerequisite for Cook to properly assert her privilege. See
Commonwealth v. Treat, 848 A.2d 147, 148 (Pa. Super. 2015) (observing
that there is no set formula required for the successful invocation of a
witness’s right against self-incrimination). Further, while the Commonwealth’s
warning was certainly equivocal, it just as certainly indicated that the
Commonwealth was considering the possibility of charges.
Nevertheless, Smoot argues that counsel should have objected to the
court’s acceptance of Cook’s blanket assertion of privilege without
independently evaluating the basis of her assertion. Smoot contends that the
court merely accepted that Cook’s assertion was counseled and did not engage
in any independent legal analysis.
It is true that the court did not explore the nexus between Smoot’s
proposed questions and any the risk that Cook’s answers would lead to any
risk of prosecution. However, we conclude that the trial court had sufficient
information to intelligently rule upon Cook’s privilege claim without any further
interrogation.
The trial court had recently heard Cook’s testimony at the suppression
hearing, so it was well aware of the scope and specifics of her testimony.
Further, the court was aware that neither Cook nor Smoot were employed,
but that Smoot nonetheless managed to provide money to pay rent for their
apartment. See N.T., 1/29/14, at 98-99. Finally, the court had heard the
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testimony of Smoot’s co-conspirator, Bruce Epp. Epp testified that after each
robbery he participated in, Smoot and Cook would sit in their apartment and
count the money. See N.T., 2/6/14, at 119, 130-31.
The trial court was clearly aware of circumstances that could reasonably
cause Cook to fear that her testimony at Smoot’s trial would expose her to
criminal liability. Even if her direct testimony was strictly limited to the
testimony she provided at the suppression hearing, the Commonwealth could
be expected to cross-examine her regarding the reasonableness of her
professed belief that Smoot had legally obtained the money they used to pay
the rent. This cross-examination could have produced further evidence that
exposed her to a receiving stolen property charge. See 18 Pa.C.S.A. § 3925
(requiring, at a minimum, a belief that the property has probably been stolen).
Accordingly, we conclude that Smoot’s underlying claim does not have
arguable merit. The PCRA court did not err in denying Smoot relief on this
claim.
In his final, related, argument, Smoot claims trial counsel was
ineffective for not introducing Cook’s suppression hearing testimony when she
became unavailable due to her assertion of privilege. Smoot believes that such
testimony could have been admitted as an exception to the hearsay rule.
Since Cook successfully invoked her privilege against self-incrimination,
she was therefore considered to be unavailable as a witness. See Pa.R.E.
804(a)(1). Given that she was unavailable as a witness for Smoot, he could
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present her former testimony from the suppression hearing if the
Commonwealth had an opportunity and similar motive to develop that
testimony by cross-examination. See Pa.R.E. 804(b)(1).
Here, trial counsel sought to present Cook’s testimony during the trial
in an attempt to establish that Smoot had been coerced into confessing to the
burglaries. See N.T., 11/26/18, at 122-123. Attempted utilization of this
testimony featured the same motive as when trial counsel used her testimony
at the suppression hearing. See id. It is undisputed that the Commonwealth
had an opportunity to cross-examine Cook at the suppression hearing. And,
under these circumstances, we conclude that the Commonwealth had a similar
motive for developing her testimony as to whether Smoot’s confession was
coerced. See Commonwealth v. Strong, 825 A.2d 658, 663-664 (Pa. Super.
2003) (holding that a since-deceased witness’s testimony at a prior trial, as
well as from a PCRA hearing, would be admissible at appellant’s retrial, since
the subject matter of his testimony at all three proceedings was similar); see
also Commonwealth v. Mitchell, 152 A.3d 355, 358 (Pa. Super. 2016)
(concluding that appellant had full and fair opportunity to cross-examine
witness at preliminary hearing). As the PCRA court properly concluded, Smoot
has established arguable merit to this claim.
Nonetheless, the Commonwealth urges us to find that counsel had a
reasonable strategy for this decision, arguing that “[a] finding that a chosen
strategy lacked a reasonable basis is not warranted unless it can be concluded
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that an alternative not chosen offered a potential for success substantially
greater than the course actually pursued.” Commonwealth’s Brief, at 53-54
(citation omitted). However, the Commonwealth’s argument presumes trial
counsel chose not to present Cook’s suppression testimony as a matter of
strategy. Contrary to that assumption, trial counsel admitted that he did not
have any strategy or tactical reason for not offering Cook’s prior testimony.
See N.T., 11/26/18, at 132-34. Instead, he testified that his failure to present
Cook’s suppression testimony was an “oversight.” See id., at 134. As such,
we cannot accept the Commonwealth’s suggestion to weigh counsel’s
“strategy” against another possible strategy, as we must avoid “post hoc
rationalization of counsel’s conduct.” See Commonwealth v. Gibson, 951
A.2d 1110, 1124 (Pa. 2008) (citation omitted).
We therefore turn to whether Smoot has established that the outcome
of his trial would have been different had counsel entered Cook’s suppression
testimony into evidence at Smoot’s trial. As noted previously, trial counsel
sought to use this evidence to challenge the credibility of Smoot’s confession
to the burglaries. Smoot highlights counsel’s belief that discrediting the
confession was central to his defense strategy and argues that his confession
was “probably the most probative and damaging evidence” that was admitted
against him. See Appellant’s Brief, at 44-45 (citation omitted).
While Cook’s testimony would undoubtedly have assisted Smoot in his
defense against the charges, we cannot conclude the PCRA court erred in
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finding that Smoot failed to establish that there is a reasonable possibility the
testimony would have affected the outcome of his trial. Cook, as Smoot’s
roommate, paramour, and the mother of his child, was clearly a biased
witness. Her testimony as to her condition and observations concerning the
circumstances of her questioning by detectives was directly contradicted by
Detective Fuhrmann. See N.T., 2/6/14, at 293-94, 299, 304-9. Epp, Smoot’s
co-conspirator, implicated her as a possible conspirator or accomplice to the
burglaries. See id., at 119, 130-31. And the Commonwealth was prepared to
present evidence that she had admitted to detectives that she was at the very
least aware of the illegal source of Smoot’s money. See N.T., 1/16/19, at 76.
The Commonwealth had ample evidence to contradict and discredit
Cook’s testimony that she had been used to coerce Smoot into confessing.
Under these circumstances, we cannot conclude that the PCRA court erred in
finding that there is no reasonable probability that Cook’s testimony would
have caused a different result. Smoot’s third and final issue on appeal does
not merit relief.
As Smoot has failed to establish that the PCRA court erred, we affirm
the order dismissing his PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2020
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