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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY RICHARD GARLOCK :
:
Appellant : No. 1575 MDA 2016
Appeal from the PCRA Order August 18, 2016
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001393-2010
BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 19, 2017
Terry Richard Garlock appeals from the order entered August 18,
2016, in the Court of Common Pleas of Franklin County, denying his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S § 9541 et
seq. Garlock seeks relief from the judgment of sentence to serve 22 ½ to 45
years’ incarceration after he was found guilty by a jury of various sexual
offenses. In this timely appeal, Garlock raises one issue, with a variety of
subparts. After a thorough review of Garlock’s brief,1 the certified record
and relevant law, we conclude the PCRA court erred in failing to find trial
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*
Retired Senior Judge assigned to the Superior Court.
1
The Commonwealth did not file a brief.
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counsel was ineffective in not filing a notice of alibi defense. Therefore, we
reverse and remand for a new trial.
Our standard of review is well settled.
“[A]s a general proposition, we review a denial of PCRA relief to
determine whether the findings of the PCRA court are supported
by the record and free of legal error.” Commonwealth v.
Dennis, 609 Pa. 442, 17 A.3d 297, 301 (2011) (citation
omitted). A PCRA court's credibility findings are to be accorded
great deference, and where supported by the record, such
determinations are binding on a reviewing court. Id., at 305
(citations omitted). To obtain PCRA relief, appellant must plead
and prove by a preponderance of the evidence: (1) his
conviction or sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not
been previously litigated or waived, id., § 9543(a)(3); and (3)
“the failure to litigate the issue prior to or during trial ... or on
direct appeal could not have been the result of any rational,
strategic or tactical decision by counsel[,]” id., at § 9543(a)(4).
An issue is previously litigated if “the highest appellate court in
which [appellant] could have had review as a matter of right has
ruled on the merits of the issue [.]” Id., § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but failed to do
so before trial, at trial, ... on appeal or in a prior state
postconviction proceeding.” Id., § 9544(b).
To be entitled to relief on an ineffectiveness claim, a PCRA
petitioner must establish: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel's action or
failure to act; and (3) he suffered prejudice as a result of
counsel's error, with prejudice measured by whether there is a
reasonable probability the result of the proceeding would have
been different. Commonwealth v. Chmiel, 612 Pa. 333, 30
A.3d 1111, 1127 (2011) (employing ineffective assistance of
counsel test from Commonwealth v. Pierce, 515 Pa. 153, 527
A.2d 973, 975-76 (1987)). Counsel is presumed to have
rendered effective assistance. Commonwealth v. Ali, 608 Pa.
71, 10 A.3d 282, 291 (2010). Additionally, counsel cannot be
deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268, 278
(2006). Finally, because a PCRA petitioner must establish all the
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Pierce prongs to be entitled to relief, we are not required to
analyze the elements of an ineffectiveness claim in any specific
order; thus, if a claim fails under any required element, we may
dismiss the claim on that basis. Ali, at 291.
Commonwealth v. Treiber, 121 A.3d 435, 465 (Pa. 2015) (footnote
omitted).
We preface this decision with the necessary observation that Garlock
was tried pursuant to a bill of information that provided a specific timeframe
for the charged offenses, for which Garlock had an alibi defense, which was
known to trial counsel and which was known or should have been known by
the Commonwealth.
On June 26, 2012, a jury found Garlock guilty of attempted involuntary
deviate sexual intercourse, aggravated indecent assault, and indecent
assault.2 These charges arose from two incidents in which Garlock touched
the victim’s breasts and genitals; during one of those incidents, Garlock also
requested the victim perform oral sex on him. The victim, J.M., was nine or
ten years old at the time. She was also the daughter of Garlock’s paramour,
with whom he lived.
Following a hearing, Garlock was determined to be a sexually violent
predator and was sentenced as stated above. Garlock filed a timely direct
appeal that afforded him no relief.3 See Commonwealth v. Garlock, 104
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2
18 Pa.C.S. §§ 901(a), 3125(b), and 3126(a)(7), respectively.
3
Garlock challenged the discretionary aspect of his sentence.
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A.3d 58 (Pa. Super. May 23, 2014) (unpublished memorandum). On June
23, 2015, the last available day, Garlock filed this timely PCRA petition,
raising various claims of ineffective assistance of trial counsel.
Before we address these specific claims, a review of the testimony
from the trial is necessary. The notes of testimony reveal that in April,
2004, Garlock met S.M. over the internet. After a brief period, Garlock
moved in with S.M. J.M., S.M.’s daughter,F also lived in the home; she was
approximately nine or ten years old at the time. A.M., J.M.’s half-sister,
lived in the home as well, although she had dropped out of high school and
was spending some of her time, including nights, with her boyfriend, in his
parent’s home. Pursuant to J.M.’s testimony, at some point, apparently
while Garlock lived in the home, he came into her room while S.M. was at
work, and,
…laid down next to her, and began touching her breast. He
proceeded to then touch her over clothes, and eventually began
to digitally penetrate her. At the same time he was touching
J.M., [Garlock] exposed and fondled himself in front of her.
Appellant also took J.M.'s hand and put it on his penis. He asked
J.M. to kiss his penis, to which she refused. After the incident,
Appellant told J.M. not to tell anyone because no one would
believe her. A second, similar incident, occurred about one
month later, at which point [Garlock] proceeded to try to climb
on top of J.M. J.M. was able to move away and Appellant again
told her not to tell anyone, that no one would believe her. J.M.
did not tell anyone about the incidents for several years until she
was about 15 years old, when she eventually relayed the
information to her sister, A.M., and inevitably the authorities.
Commonwealth v. Garlock, supra, at *1 (record citations omitted). We
note for clarity that J.M told her sister of the incidents in 2009,
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approximately five years after the fact. Garlock was interviewed by the
police on September 17, 2009.4 Subsequently, the police interviewed J.M.
on December 9, 2009 and February 20, 2010. Relevant to the instant
issue, Garlock informed the police that he met S.M. on the internet in April,
2004, and had moved in with her by the end of that month. The police also
spoke with Leann Briggs of the Franklin County CYS, which had already
conducted its own investigation.
The criminal complaint provided the time of the incidents as having
occurred between February 14, 2003 and February 14, 2005. See Criminal
Complaint; N.T. Trial, 6/25/2012, at 183. The complaint, therefore, includes
the time during which Garlock lived with S.M. and her daughters. However,
on September 1, 2010, the Commonwealth filed bills of information charging
Garlock with the above-mentioned crimes, and alleging those crimes took
place between February 14, 2003 and February 14, 2004. The only
explanation the Commonwealth provided for changing the dates from the
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4
Garlock also met with the police on two or three other occasions.
However, those dates are not in the notes of testimony. These subsequent
meetings involved attempts to perform voluntary polygraph tests on
Garlock, and therefore are not relevant to this discussion.
The police also spoke with J.M.’s mother, S.M., but the details of that
interview were not related at trial other than to note that S.M., at the time,
had no idea of the incidents at issue herein. At trial, S.M. confirmed that she
met Garlock on the internet in 2004 and that he moved in a couple of
months later.
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complaint to the bills of information was, “…Your Honor, after I met with the
victim and we further discussed it we narrowed it down to 2/14/03 to
2/14/04.” N.T. Trial, 6/25/2012, at 183.
At trial, neither J.M., A.M. (J.M.’s half-sister), nor S.M. testified to a
specific time that Garlock lived in their household. Only Corporal Mark
Grove, a Pennsylvania State Police trooper, provided the specific date,
testifying to the April, 2004 date Garlock had told him in the September
2009 interview. At the close of the Commonwealth’s case, there was
testimony showing Garlock had sexually assaulted J.M. twice, with a strong
inference that the two incidents took place post-April, 2004.
A conference was held between counsel and the trial judge before the
defense presented any evidence. Defense counsel demurred, claiming there
was no evidence that Garlock had committed any crime between the dates
listed on the bills of information. The trial court denied the motion
explaining the evidence was vague and the jury would determine when the
crimes took place. At that time, defense counsel revealed that he intended
to present evidence that Garlock had been deployed away from the local
area, in Georgia, U.S.A., and Kosovo, Europe, for the entire time covered by
the bill of information. The Commonwealth objected to this potential
evidence, arguing Garlock had not provided the Commonwealth with a notice
of alibi. Defense counsel admitted he had known that Garlock was not in
Pennsylvania during the time covered by the bill of information, but the
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defense was prepared addressing the entire time period covered by the
complaint. Trial counsel did not believe the deployment information was as
much an alibi as it was impeachment material. The trial court excluded the
proposed evidence.
In response to Garlock’s attempt to present evidence of his
deployment, the Commonwealth sought to amend the bills of information to
include the year from February 14, 2004 to February 15, 2005, as originally
listed in the criminal complaint. No objection was raised. Although Garlock
was not allowed to provide the details, including the location, of his military
service, he was allowed to testify he was on active duty from March, 2003 to
April, 2004.
At the PCRA hearing, held January 7, 2016, trial counsel for Garlock
testified his general approach to attack the Commonwealth’s case was to
highlight the many inconsistencies in the case. Trial counsel believed that
the lengthier the period of time charged by the Commonwealth, the less
credible the allegations became. Nevertheless, trial counsel was aware that
Garlock was out of the jurisdiction for the time listed in the bill of
information and that it would have been very difficult for the Commonwealth
had they been forced, prior to trial, to “change their story”5 in response to
____________________________________________
5
N.T. PCRA Hearing, 1/7/2016, at 13.
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Garlock’s alibi. Trial counsel agreed that such an attempt “would have been
an even larger knock to their credibility.” Id.
We turn now to examine Garlock’s specific allegations of ineffective
assistance of counsel. Garlock’s first claim raises three subsections. He
argues trial counsel was ineffective for,
Failing to make a motion for judgment of acquittal, failing to
provide a notice of alibi and allowing the Commonwealth to
amend the criminal information to include additional year in
which the alleged crimes could have occurred.
Appellant’s Brief at 16.
We commence our analysis with the failure to file a notice of alibi, and
allowing the Commonwealth to amend the bills of information after the
Commonwealth’s case had closed, which are intertwined.
Initially, regarding the failure to file a notice of alibi, Garlock’s counsel
testified at the PCRA hearing he was not concerned about the alibi because
the criminal complaint included dates that Garlock admitted he had lived in
the same household as J.M. Accordingly, he felt he could use the
information that Garlock was not in the jurisdiction to impeach J.M.’s
credibility. The PCRA court found this to be a reasonable strategy and
denied this aspect of Garlock’s claim. However, this result ignores the fact
that the only times listed on the bills of information were times for which
Garlock had an absolute alibi. The Commonwealth, despite knowing that
Garlock did not move into the S.M. household until on or after April, 2004,
changed the dates from the criminal complaint to the bill of information’s
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timeframe that excluded the time Garlock lived with J.M. As noted above,
according to the Assistant District Attorney, this change was made knowingly
after discussions with J.M. In addition, during the PCRA hearing, defense
counsel admitted that it would have been very damaging to the credibility of
the Commonwealth’s case to change its version of the events in response to
Garlock’s alibi. See N.T. PCRA Hearing, 1/7/2016, at 12-13.
Accordingly, filing an alibi would have provided the defense a two-
pronged attack on the Commonwealth’s case. One, providing an absolute
alibi for the times listed on the bills of information and, two, providing the
defense with an additional avenue to attack the credibility of the
Commonwealth’s case. The second prong is consistent with the defense’s
stated trial strategy.
Counsel is not ineffective when the chosen course of action fits a
reasonable strategy. However, the PCRA court erred in determining
counsel’s ignoring of the alibi constituted a reasonable strategy.
The second aspect of the claim is counsel’s failure to object to the
Commonwealth re-opening its case and amending the bills of information to
include a year for which Garlock did not have an alibi. The PCRA court
determined the amendment was allowable as no prejudice to Garlock
occurred. The PCRA court reasoned that Garlock had been aware of the
extended dates and Garlock, in fact, admitted to having lived in the S.M.
household during those dates. Garlock has argued that is immaterial
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because the Rules of Criminal Procedure do not contemplate the amendment
of a bill of information after the trial has begun.
Pennsylvania Rule of Criminal Procedure 564 addresses Amendment of
Information, and states, in toto:
The court may allow an information to be amended when there
is a defect in form, the description of the offense(s), the
description of any person or any property, or the date charged,
provided the information as amended does not charge an
additional or different offense. Upon amendment, the court may
grant such postponement of trial or other relief as is necessary
in the interests of justice.
Pa.R.Crim.P. 564.
The rule itself provides no limitation of time for the amendment of a
bill of information, which tends to support the PCRA court’s interpretation.
However, Rule 564 is located in Chapter 5 addressing “Pretrial Procedures in
Court Cases”. This context clearly indicates amendment of a bill of
information is intended to occur pretrial. See also Commonwealth v.
Picchianti, 600 A.2d 597, 599 (Pa. Super. 1991) (if there is no showing of
prejudice, amendment of information to add an additional charge is proper
even on the day of trial) (emphasis added); Commonwealth v. Womack,
453 A.2d 642 (Pa. Super. 1982) (same). Although at trial, the
Commonwealth indicated it had case law allowing amendment of bills of
information in the middle of trial, see N.T. Trial, 6/25/2012, at 184-85, the
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Commonwealth has not supplied those cases,6 nor have we been able to
locate any case law specifically allowing such late amendment.
In any event, the late amendment is intertwined with the alibi issue.
Our reading of the certified record reveals the defense decision to allow the
Commonwealth to amend the bill of information without objection was part
of the same strategy of ignoring the alibi. If Garlock had provided timely
notice of his alibi to the Commonwealth, the Commonwealth either would
have been forced to amend the bills prior to trial or would have seen the
case fail upon the showing that Garlock was out of the jurisdiction during the
timeframe of the bill of information. At the PCRA hearing, trial counsel
admitted that amendment of the bills in response to the alibi would have
benefitted the defense, and certainly a successful alibi defense would have
been in Garlock’s interest.7
In sum, we conclude the PCRA court erred in finding that trial counsel
was effective where counsel failed to provide the Commonwealth with notice
of alibi for the timeframe covered by the bill of information. Filing said notice
of alibi would not have adversely affected Garlock’s challenge to the
credibility of the Commonwealth’s case. Furthermore, the alibi would have
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6
Case names are not included in the certified record and the Commonwealth
did not file a brief with this Court.
7
Because of our resolution of this matter, we need not address Garlock’s
other claims.
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added an absolute defense, if the Commonwealth failed to amend the bills of
information, or an additional platform from which to defend the case against
him. Therefore, there was no reasonable strategic reason for failing to
provide the Commonwealth with the notice of alibi.
In light of the foregoing, we reverse the PCRA court order denying
Garlock relief on his petition filed pursuant to the Post Conviction Relief Act,
and remand for a new trial.
Order reversed. Judgment of sentence is vacated. This matter is
remanded for a new trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
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