IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L

Transcription

1 COMMONWEALTH OF PENNSYLVANIA v. McCAWLEY No Ashworth, J. September 23, 2015 Opinion Sur Pa.R.A.P. 1925(a) Criminal DUI Guilty Plea Motion to Withdraw Ineffective Assistance of Counsel Failure to Investigate BAC Test Reliability IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : : v. : No : CHRISTOPHER R. McCAWLEY : OPINION SUR PA.R.A.P. 1925(a) BY: ASHWORTH, J., SEPTEMBER 23, 2015 Christopher R. McCawley has filed a direct appeal to the Superior Court of Pennsylvania from the judgment of sentence imposed on April 15, 2015, as finalized by the denial of his post-sentence motion to withdraw his guilty plea by Order dated September 3, This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, and, for the following reasons, this Court requests that this appeal be dismissed. I. Background The relevant facts, as set forth in the Criminal Complaint, and the procedural history may be summarized as follows. On July 3, 2013, at approximately 10:30 p.m., Trooper Nicholas D. Long was on duty in full uniform in a marked Pennsylvania State Police (PSP) patrol unit.

2 While traveling south on Route 222, Trooper Long observed a black Volkswagen Jetta in his lane of travel speed up to pass a vehicle. Trooper Long followed the vehicle for more than 3/10's of a mile and clocked the vehicle traveling at 79 mph in a 65 mph zone. Trooper Long observed the vehicle weaving in its lane crossing over the center dividing line and fog line numerous times. Trooper Long activated the emergency warning lights and siren to initiate a vehicle stop. The vehicle stopped in the southbound shoulder of Route 222 just north of Eden Road in Manheim Township. Trooper Long exited his vehicle and made a driver s side approach. Upon coming in contact with the driver, Christopher McCawley, Trooper Long made the following observations: (1) McCawley had bloodshot/glassy eyes; (2) McCawley had slurred speech; (3) the strong smell of alcohol was coming from McCawley s person and breath as he talked; and (4) McCawley admitted that he had consumed four beers. Trooper Long also observed an open container of Miller Light Beer in the center dash cup holder. As a result of these observations, Trooper Long requested McCawley exit his vehicle to perform standard field sobriety tests. Prior to administering each test, Trooper Long demonstrated and explained each test to McCawley. McCawley attempted two standard field tests and showed signs of impairment during the tests. Trooper Long s opinion as an experienced police officer was that McCawley was under the influence of alcohol to the extent that rendered him incapable of safe driving. McCawley was placed under arrest for suspicion of driving under the influence and transported to Lancaster General Hospital for blood testing. Trooper Long advised McCawley of the blood testing warnings and report of refusal, and obtained McCawley s signature on the PennDOT DL-26 form. 2

3 On July 3, 2013, at approximately 11:52 p.m., McCawley provided whole blood samples which were sent to the PSP Harrisburg Regional Laboratory for testing. On July 17, 2013, PSP Forensic Scientist Christina M. Fialkowski issued a report indicating a blood alcohol content (BAC) of.211%. (See Commonwealth s Exhibit No. 8.) As a result of the above-recited facts, McCawley was charged with DUI Highest Rate of Alcohol (BAC.16+) (second offense), DUI General Impairment/Incapable of Driving Safely (second offense), and the summary offenses of disregarding traffic lanes, exceeding 65 mph by 14 mph, depositing waste on a highway, 1 and restrictions on alcoholic beverages. 2 In November 2013, McCawley appeared before a magisterial district judge for a preliminary hearing on the charges. At that time, the Commonwealth withdrew the summary offenses and McCawley waived the DUI offenses to the Court of Common Pleas. The case was originally scheduled for a guilty plea on March 12, On that date, McCawley appeared and asked that the plea be rescheduled to April 16, At the scheduled date and time for the plea, McCawley appeared and indicated his desire to go to trial on the charges. As a result, the plea was pulled and his privately-retained counsel, Richard B. MacDonald, Esquire, orally moved to withdraw as counsel. The Court granted the motion upon consent of McCawley. (See Order of April 17, 2014.) Following the withdrawal of counsel, McCawley chose to proceed pro se and the case was ultimately scheduled for trial the week of 1 While Trooper Long was in his patrol car, McCawley removed the open Miller Light container from the cup holder and tossed it out the passenger window onto the ground Pa. C.S.A. 3802(c), 75 Pa. C.S.A. 3802(a)(1), 75 Pa.C.S.A. 3309(1), 75 Pa. C.S.A. 3362(a)(1.1-14), 75 Pa. C.S.A. 3709(a), and 75 Pa. C.S.A. 3809(a), respectively. 3

4 January 19, Subpoenas were issued by the Commonwealth on December 30, 2014, for PSP Forensic Scientist Christina Fialkowski and for the prosecuting officer, PSP Trooper Long. Just four days before McCawley s scheduled trial date of January 19, 2015, Assistant Public Defender Melissa Lee Norton, Esquire, entered her appearance on McCawley s behalf. The trial date was continued first to March 9, 2015, and then to April 13, During this time, Attorney Norton received discovery from the Commonwealth that included, inter alia, the PSP laboratory report dated July 17, 2013, which concluded that McCawley s BAC based on a headspace gas chromatographic analysis was.211% at the time of the blood draw. 3 (See Commonwealth s Exhibit No. 8.) McCawley ultimately decided to resolve the DUI charges by a negotiated guilty plea which he tendered to the Court on April 15, (See Commonwealth s Exhibit No. 9.) At that time, I accepted the plea as voluntary, knowing and intelligent, and sentenced McCawley to a Tier 3 mandatory term of incarceration of 90 days to 23 months on Count 1, DUI Highest Rate of Alcohol, followed by a term of three years probation. 4 Count 2, DUI General Impairment, merged with Count 1 for sentencing purposes. A fine of $1, and costs were also imposed and McCawley s license was suspended for 18 months. McCawley was further ordered to complete 100 hours of community service. 3 As will be discussed further, trial counsel also received the DVD of the Motor Vehicle Recording, the Blood Alcohol Worksheet, laboratory documents including the chromatographic analysis, the Blood Alcohol Calibration Sheet, and the Blood Alcohol Equipment Maintenance/ Repair Log Sheet. (See Commonwealth Exhibit Nos. 1, 4, 5, & 7.) 4 McCawley s prior DUI offenses occurred on September 9, 1999, and November 1,

5 Following his sentencing, McCawley retained private counsel, Theodore C. Tanski, Esquire. 5 (See April 27, 2015, Praecipe for Appearance.) On April 27, 2015, McCawley filed a motion for post-sentence relief seeking to withdraw his guilty plea on the grounds that ineffective assistance of counsel resulted in an invalid plea. (See McCawley s Post-Sentence Motion at 1.6.) Specifically, McCawley contends that plea counsel did not investigate into the BAC test s reliability. (See Memorandum of Law in Support of Post-Sentence Motion at 2.) 5 Attorney Tanski was then an employee of The McShane Firm, LLC. (Notes of Testimony, Evidentiary Hearing (N.T.) at 42.) His appearance was withdrawn, however, on July 27, 2015, and another lawyer at the firm, Richard S. Roberts, Esquire, entered his appearance on behalf of McCawley. (See July 27, 2015, Praecipe for Appearance.) 5

6 By Order dated April 28, 2015, I denied McCawley s post-sentence motion. McCawley filed a timely appeal to the Superior Court of Pennsylvania on May 26, See No. 891 MDA On June 4, 2015, McCawley and the Commonwealth filed with the Superior Court a joint application for remand citing an insufficient record for appellate review. 7 By Order of June 25, 2015, the Superior Court issued a rule to show cause on the Court as to why the joint application should not be granted. On July 6, 2015, I notified the Superior Court that I was unopposed to a remand for purposes of holding an evidentiary hearing. By Order of July 10, 2015, the Superior Court remanded the case for purposes of hold[ing] an evidentiary hearing to address [my] denial of Appellant s post-sentence motion to withdraw guilty plea. The evidentiary hearing, originally scheduled for August 6, 2015, was held on September 3, McCawley testified (N.T ), and further presented the testimony of his court-appointed plea counsel, Melissa Norton (Id. at 11-42), and his first privately-retained post-sentence counsel, Theodore Tanski. (Id. at ) The Commonwealth presented no 6 By Order dated May 4, 2015, I granted McCawley s petition for bail pending appeal as his report date to the Lancaster County Prison was May 4, Generally, courts reserve ineffective assistance of counsel claims until collateral review. See Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562, 575 (2013). However, where a defendant will serve a sentence too short as to be unlikely to avail themselves of PCRA review, a trial court may exercise its discretion to consider a claim of ineffectiveness where the claim is both meritorious and apparent from the record. Id. at I did not find the claim of ineffective assistance of counsel to be meritorious and so did not conduct an evidentiary hearing on the issue of whether it was reasonable for counsel to rely upon the accuracy of the BAC test conducted by the PSP laboratory. See Commonwealth v. Denmark, 800 A.2d 947, 952 (Pa. Super. 2002) (BAC tests are basic and routine and, therefore, highly reliable). 8 The hearing proceeded only after McCawley made an express, knowing and voluntary waiver of further PCRA review in this case. (N.T. at 7-10; see also Court s Exhibit No. 1.) See Holmes, 621 Pa. at 626, 79 A.3d at 580 (ineffectiveness claims cannot be addressed on direct appeal absent a waiver of PCRA rights). 6

7 witnesses, although it did introduce documentary evidence. (See Commonwealth Exhibit Nos. 1-9.) At the conclusion of the hearing, I denied, on the record, McCawley s motion to withdraw his guilty plea. (N.T. at 87.) I further amended my Order of May 4, 2015, continuing McCawley s release on his own recognizance pending appeal but requiring that he submit to the Lancaster County DUI Repeat Offender program conditions. (See Order of September 3, 2015; see also Id. at ) McCawley notified the Court at the conclusion of the hearing that he would be appealing the denial of his post-sentence motion. 9 Pursuant to this Court s directive, McCawley s counsel furnished a concise statement of errors complained of on appeal 10 on September 17, 2015, which sets forth two bases for this appeal: (1) The court abused its discretion in not permitting McCawley to withdraw his guilty plea where his plea was made unknowingly, involuntarily, and unintelligently because of his counsel ineffectiveness ; and (2) The trial court erred in not finding McCawley s prior counsel ineffective, and allowing him to withdraw his guilty plea, when she at most gave a cursory review into the accuracy and reliability of McCawley s BAC results. (See Statement of Errors at 5.1, 5.2.) II. Standard of Review 9 As of the date of this Opinion, the docket does not indicate that a written notice of appeal to the Superior Court has been filed by McCawley. 10 By Order dated September 8, 2015, I directed Appellant to file of record and concurrently serve on the Court a concise statement of the errors complained of on appeal no later than 21 days from the date of th[e] Order. Appellant, in his 1925(b) Statement, admonishes me that, contrary to this Court s insistence, an individual s failure to provide all statutory and case law that he relies on for his 1925(b) statement[] does not waive all potential appellate issues. (See 1925(b) Statement at 1 (emphasis added).) I did not require in this case, nor have I ever required an appellant to provide, all statutory and case law that [an appellant] relies on for [a] 1925(b) statement. This chastisement by counsel is neither warranted nor appropriate, but is representative of the sometimes condescending, imperious, and arrogant tone of the attorneys associated with The McShane Law Firm. (See, for example, McCawley Memorandum of Law in Support of Post-Sentence Motion at 15 ( We trust this Court to reason well. And when it does, it should reach the conclusion that McCawley may withdraw his plea. ); N.T. at 86 (Attorney Norton is not simply charged with ineffective assistance of counsel for her alleged failure to adequately investigate the reliability of the BAC test results, but is also accused of breaching the Rules of Professional Conduct)). 7

8 Initially, I note that [t]he entry of a guilty plea constitutes a waiver of all defenses and defects except claims of lack of jurisdiction, invalid guilty plea, and illegal sentence. Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005). McCawley has not challenged the jurisdiction of this Court. Neither does he dispute that the sentence imposed was legislatively permitted. 11 Rather, the focus of McCawley s post-sentence motion is the validity of his negotiated guilty plea. Our Supreme Court has concluded that [t]he standard for post-sentence withdrawal of guilty pleas dovetails with the arguable merit/prejudice requirements for relief based on a claim of ineffective assistance of plea counsel under which the defendant must show that counsel s deficient stewardship resulted in a manifest injustice, for example, by facilitating entry of an unknowing, involuntary, or unintelligent plea. Commonwealth v. Mallory, 596 Pa. 172, 200, 941 A.2d 686, 703 (2008) (quoting Commonwealth v. Flanagan, 578 Pa. 587, 854 A.2d 489, 502 (2004)). See also Commonwealth v. Mitchell, - Pa., 105 A.3d 1257, 1272 (2014) (quoting Commonwealth v. Allen, 557 Pa. 135, 144, 732 A.2d 582, 587 (1999) ( Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea. )). The law does not require that [the defendant] be pleased with the outcome of [his] decision to enter a plea of guilty; rather [a]ll that is required is that [the defendant s] decision to plead guilty be knowingly, voluntarily and intelligently made. Commonwealth v. Brown, 48 A.3d 1275, 11 The sentences imposed on McCawley were within the permissible statutory maximums and, therefore, clearly were legal sentences. 8

9 1277 (Pa. Super. 2012) (quoting Commonwealth v. Moser, 921 A.2d 526, (Pa. Super. 2007). Where the defendant enters his plea on the advice of counsel, [t]he voluntariness of [the] plea depends on whether counsel s advice was within the range of competence demanded of attorneys in criminal cases. Commonwealth v. Lynch, 820 A.2d 728, 732 (Pa. Super. 2003) (citation omitted). III. Discussion In this case, McCawley alleges that trial counsel caused him to enter an unknowing, unintelligent, and involuntary plea because (1) she failed to adequately investigate the reliability of the BAC test results (see 1925(b) Statement at 5.2), and (2) she failed to subpoena the PSP forensic scientist who conducted the BAC test. 12 (See N.T. at 63, ) I will address the latter basis for the invalid plea first. McCawley testified at the evidentiary hearing that he ended up pleading guilty... [b]ecause [he] saw there was no lab technician on the premises whatsoever on the morning of his scheduled trial. (N.T. at 63; see also Id. at 72.) He further stated that Attorney Norton 12 Appellant testified at the evidentiary hearing that he insisted his attorney do two things in his defense: (1) file a motion to suppress because of this McNeely law about... refuting the breath machine at the state lab ; and (2) subpoena the PSP lab technician for trial. In Missouri v. McNeely, U.S., 133 S.Ct. 1552, 1568 (2013), the United States Supreme Court refused to adopt a per se exigency exception to the warrant requirement of the Fourth Amendment for a nonconsensual blood test of a drunk-driving suspect. McNeely is inapplicable to this case because Appellant consented to the blood test and signed the necessary PennDOT DL-26 form. It appears that Appellant has perhaps confused the ruling of McNeely with some other case regarding challenges to breathalyzer machines or blood alcohol equipment. Because Appellant has raised trial counsel s failure to investigate the reliability of the BAC test results, I need not decipher this McNeely claim. 9

10 told him, two days prior to trial, that she did... subpoena the lab technician (Id. at 63) but, on the day of trial, that no one had subpoened the lab tech. (Id. at ) I find Appellant s testimony on this issue not credible. Not only had the Commonwealth subpoened the PSP laboratory scientist, Christina Fialkowski, to the trial scheduled to begin on April 15, 2015, but it had also issued a subpoena on December 30, 2014, for her appearance at the original trial date of January 19, 2015, and on March 2, 2015, for her appearance at the rescheduled trial date of March 9, A trial court may take judicial notice of documents contained in the official file maintained by the Clerk of Courts Office, which in this case include copies of the subpoenas issued to Christina Fialkowski. (N.T. at ) See Conchado v. Department of Transportation, Bureau of Driver Licensing, 941 A.2d 792, 794 (Pa. Cmwlth. 2008) ( [A] court in appropriate circumstances may take judicial notice of court records. ) See also Germantown Cab Company v. Philadelphia Parking Authority, 27 A.3d 280, 283 n.8 (Pa. Cmwlth. 2011) (taking judicial notice of a Supreme Court docket); Pa. R.E. 201(b)(2) (permitting courts to take judicial notice of facts that may be determined from sources whose accuracy cannot reasonably be questioned ). Here, the evidence establishes that the PSP laboratory scientist was subpoenaed for trial and, although she might not have been there on the morning the trial was scheduled to begin with jury selection and opening arguments, she was available to testify at trial. For Appellant to suggest that he was forced to plead guilty because the lab tech was not present in the courtroom that morning is absurd. Equally ludicrous is McCawley s assertion that his trial counsel would deliberately misrepresent the fact that the PSP laboratory scientist would not be appearing for trial. 10

11 Attorney Norton testified at the evidentiary hearing that she was prepared to proceed to a jury trial the morning the case was called. (N.T. at 22.) She stated that, when McCawley expressed an interest in pleading guilty, she sat with her client outside the courtroom and highlighted areas of concern or irregularities on the BAC worksheets about which she intended to cross-examine the laboratory scientist. (Id. at 23-24; see also Id. at 28-29; Commonwealth Exhibit No. 3.) Although she concluded there was no fatal error on the analysis of the blood, [she] thought that these were items that might lead the jury to question whether or not they could find [McCawley] guilty. (Id.) Clearly, the PSP laboratory scientist was scheduled to testify at trial and Attorney Norton intended to specifically cross examine her about the BAC worksheets. I accepted as credible Ms. Norton s testimony regarding the availability of the laboratory scientist, and rejected the testimony of McCawley on this issue as not credible. 13 McCawley further alleges that trial counsel caused him to enter an unknowing, unintelligent, and involuntary plea because she failed to adequately investigate the reliability of the BAC test results. (See 1925(b) Statement at 5.2.) For a failure-to-investigate claim to rise to ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome. Commonwealth v. Clayton, 572 Pa. 395, , 816 A.2d 217, (2002). See also Commonwealth v. 13 A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts.... Indeed, one of the primary reasons PCRA hearings are held in the first place is so that credibility determinations can be made; otherwise, issues of material fact could be decided on pleadings and affidavits alone. Commonwealth v. Johnson, 600 Pa. 329, , 966 A.2d 523, 539 (2009). 11

12 Elliott, 622 Pa. 236, 80 A.3d 415, (2013) (claim of ineffectiveness for failure to raise trial counsel s failure to investigate must demonstrate that appellant was prejudiced such that outcome of proceedings would have been different). Furthermore, the reasonableness of a particular investigation depends upon whether there was any evidence known to counsel which would have caused a reasonable attorney to conduct a further investigation. Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. Super. 2013). Our Superior Court has determined that BAC tests are basic and routine and, therefore, highly reliable. Denmark, 800 A.2d at 952. The Pennsylvania Department of Health approves laboratories to perform BAC tests. 75 Pa.C.S.A. 1547(c)(2). The Department s careful and thorough methods serve to [e]nsure that test results from an approved facility are valid and reliable. Denmark, supra (quoting Commonwealth v. Brown, 428 Pa. Super. 587, 631 A.2d 1014, 1018 (1993)). As a general rule, if a BAC test was performed at a laboratory that is licensed and approved by the Department of Health or at a PSP criminal laboratory, on a device approved by the Department of Health, using procedures prescribed by regulations of the Department of Health and Transportation, then the trial court may take judicial notice that the facility satisfies the requirements of 75 Pa. C.S.A. 1547(c). 14 Commonwealth v. Hilliar, Section 1547 provides in relevant part: (c) Test results admissible in evidence. In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3802 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant's blood, as shown by chemical testing of the person's breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.... (2) (i) Chemical tests of blood or urine, if conducted by a facility located in this Commonwealth, shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health or by a Pennsylvania State Police criminal laboratory. For purposes of 12

13 A.2d 984, 993 (Pa. Super. 2008). The defendant may then present his or her own evidence in an attempt to rebut the inference created by judicial notice. Id. (citing Commonwealth v. Brown, 428 Pa. Super. 587, 631 A.2d 1014, 1017 (1993)). In the instant case, it is uncontested that the PSP criminal laboratory is an approved BAC testing facility. McCawley notes that [i]t is not our contention that the Pennsylvania State Police lab in Harrisburg is incorrect or is a bad lab. (N.T. at 6.) Rather, McCawley asserts that it is the duty of a defense attorney... to investigate [the validity of the BAC test results] and protect his client s best interests (Id.) that is, to attempt to show that the presumptively valid BAC test results were not reliable. Specifically, post-sentence counsel argued at the evidentiary hearing in this case that trial counsel needed to get what is referred to sometimes as a litigation support package, which is the data behind that [BAC] number, to overcome the hurdle of ineffective assistance of counsel. (N.T. at 5-6.) This package of material goes through the calibration table, what calibrations were used, what levels were used to calibrate the machine, when it was calibrated, the refrigeration laws,... also the chromatograms that reflect the data behind that number. (Id. at 6.) It also shows you what procedure was used, what the analyst did, any notes, any issues with blood and urine testing, qualified person means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as The Clinical Laboratory Act. (ii) For purposes of blood and urine testing to determine blood alcohol or controlled substance content levels, the procedures and equipment prescribed by the Department of Health shall be reviewed within 120 days of the effective date of this subparagraph and at least every two years thereafter to ensure that consideration is given to scientific and technological advances so that testing conducted in accordance with the prescribed procedures utilizing the prescribed equipment will be as accurate and reliable as science and technology permit. 75 Pa. C.S.A. 1547(c)(2)(i)-(ii) (footnote omitted). 13

14 calibration whatsoever, any errors that the machine detected. (Id.) Additionally, [i]f the machine did detect an error, counsel must ascertain what... the analyst who was using that sample use[d] to correct that error in situations such as that[.] (Id.) Contrary to McCawley s assertion, Attorney Norton did not simply accept the laboratory report issued by Christina Fialkowski indicating a BAC for her client of.211%. (See Memorandum of Law at 2.) Rather, she collected and reviewed prior to trial precisely the package of materials McCawley contends are essential to defeat a claim of ineffectiveness. Attorney Norton reviewed the BAC worksheets, the laboratory documents including the chromatographic analysis (the chromatogram graphs related to the test sample that are used on the instrument ), the Blood Alcohol calibration and re-calibration forms, and the Blood Alcohol Equipment Maintenance/Repair Log Sheets for the particular instrument used in this case. (N.T. at 14-15, 18, 19; see also Commonwealth Exhibit Nos. 1, 4, 5, & 7.) She also reviewed Section V of the Pennsylvania State Police Bureau of Forensic Services Blood Alcohol Quality Assurance Manual, entitled Equipment Maintenance and Monitoring, to determine what the laboratory should do to maintain the [BAC] equipment. (Id. at 30.) Attorney Norton then reviewed these documents and the facts of this case with another assistant public defender to ensure that she was not missing something. (Id. at 17, 23.) She further contacted the director of the PSP criminal laboratory to confirm the accuracy of the BAC spectrometer maintenance/repair logs. (Id. at ) Over and above her review of these supporting documents, Attorney Norton coincidentally read several transcripts from Mr. McShane s [DUI] trials to see what he was 14

15 looking for and to get a flow of the type of cross examination that [she] wanted to do. 15 (N.T. at 19, 22.) Finally, trial counsel examined a legal treatise on defending DUI cases (Id. at 22), as well as a scientific treatise by a Dr. Lee N. Polite about the chromatographic instrument used in this case and the type of testing it does. 16 (Id. at 22.) After reviewing all of these documents and treatises and consulting with other defense counsel, it was Attorney Norton s professional opinion that the Commonwealth had a reliable blood alcohol concentration reading and that if the jury believed the evidence,... the jury could find [McCawley] guilty. (Id. at 24, ) 15 The McShane Firm s website claims that this law firm is Pennsylvania s premiere DUI and criminal defense law firm and that McShane Firm CEO Justin McShane is the highest rated DUI attorney in PA as rated by Avvo.com. See Attorney Norton could not have known at the time she was reviewing DUI trial transcripts of Mr. McShane s cross examination that her client would subsequently engage The McShane Firm as post-sentence counsel. 16 Dr. Polite has a Ph.D. in chromatography and 18 years of chromatography teaching and laboratory experience, and is currently lab director for Axion Analytical Laboratories, Inc. See 15

16 To dispute the testimony of Attorney Norton, McCawley presented his first post-sentence counsel, Theodore Tanski, as a witness at the evidentiary hearing. Mr. Tanski testified that, after taking the case, he called Ms. Norton on April 24, 2015, and asked her if it was fair to say that she did not investigate the reliability of the blood test. (N.T. at 43.) Attorney Tanski first stated that Attorney Norton laughed [and] said yes to his inquiry. (Id.) However, later in his testimony, once on direct examination and twice on cross examination, Attorney Tanksi testified that Attorney Norton s reply to the inquiry was actually no. (See Id. at 48 ( [n]o, with a laugh ), ( she laughed and said no ), 55 ( she said no... [with] a little bit of a chuckle.)) 17 When I tried to clarify the inconsistent testimony, Attorney Tanski stated first that Attorney Norton said [y]es, that is fair to say that she did not conduct the investigation, but then noted that [i]f she said no, it was to the fact that she didn t investigate [the reliability of the blood test]. 18 (Id. at ) Perhaps most telling is the fact that Attorney Tanski sent Attorney Norton an affidavit which included the averment that [o]ther than reviewing the laboratory report, I did not investigate the reliability of McCawley s BAC test results, which Attorney Norton refused to sign. (See Post-Sentence Motion, Exhibit B at 10; see also N.T. at 39, 47, 56.) I found the testimony of Mr. Tanski to be less than credible. He spoke more as an overzealous advocate than a witness sworn to recount the facts truthfully. 17 Attorney Norton testified that Attorney Tanski s only question to her was whether she had consulted with or engaged an expert to determine the validity of the blood alcohol results, to which she responded no. (N.T. at 38.) 18 Defense counsel conceded the confusion with Mr. Tanksi s testimony when he reiterated during his closing argument that when [Mr. Tanksi] asked [Ms. Norton] the question, did you investigate the reliability of the BAC results, her response was no or yes. (N.T. at 82.) 16

17 In order to establish ineffectiveness for failure to conduct a proper investigation into the reliability of the BAC test results McCawley was required to prove that (1) his underlying claim was of arguable merit, (2) there was no reasonable strategic basis for what Ms. Norton did or failed to do, and (3) he suffered prejudice. Commonwealth v. Spotz, 616 Pa. 164, 187, 47 A.3d 63, 76 (2012) (citing Commonwealth v. Pierce, 515 Pa. 153, , 527 A.2d 973, (1987)). Because McCawley entered a guilty plea, prejudice is determined by whether it was reasonably probable that but for counsel s errors, he would not have pleaded guilty and would have gone to trial. Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). McCawley has failed to prove these elements for an ineffective assistance of counsel claim. First, the BAC worksheets, the Blood Alcohol calibration and re-calibration forms, the laboratory documents including the chromatographic analysis, and the Blood Alcohol Equipment Maintenance/Repair Log Sheets for the particular instrument used in this case all suggested to Attorney Norton that the BAC test results were reliable, and I found this conclusion credible. (N.T. at 24; see also Id. at ) McCawley put forth no evidence that the BAC test results were unreliable or that Attorney Norton had no strategic basis for not doing a further investigation into the accuracy of the results given the information which she reviewed. Moreover, there is simply no showing that McCawley s decision to plead guilty would have been different if Attorney Norton had done even more investigation into the reliability of the blood test results. And yet it is McCawley s position that, even if I credit Attorney Norton s testimony regarding her investigation as to the accuracy of the BAC test results in its entirety, [s]he need[ed] to do some more [investigation]. (N.T. at 85.) I find this position untenable. 17

18 Attorney Norton acted well within the range of competency demanded of criminal defense attorneys and to expect her to do more would essentially require the engagement of an expert Defense counsel conceded that problems with BAC tests don t exist in all cases, and I may even submit that they don t exist in the majority of cases, but they are there. (N.T. at 85.) For that small minority of cases where the accuracy of a BAC test is, in fact, in question, I am not inclined to create a per se rule that defense counsel must consult an expert such as Dr. Polite to evaluate the nature and reliability of the particular test utilized in each and every DUI case brought to court in order to render effective assistance of counsel to a client. 18

19 It was Attorney Norton s professional opinion that the Commonwealth had a reliable blood alcohol concentration reading and further had the elements of the charges, [such that] if they presented the evidence correctly and if the jury believed what they presented, then it was going to be a successful case for the Commonwealth. (N.T. at ) Attorney Norton shared her opinion with McCawley and he made a knowing, intelligent, and voluntary decision to plead guilty in light of this information. In fact, I find McCawley s repeated attempts to withdraw his guilty plea and his arguments regarding ineffective assistance of counsel to be nothing more than a thinly veiled attempt to game the system and avoid taking responsibility for his actions. 20 IV. Conclusion For the reasons set forth above, McCawley s post-sentence motion to withdraw his guilty plea was denied. It is respectfully requested that McCawley s appeal from his judgment of sentence imposed on April 15, 2015, as finalized by the denial of his post-sentence motion to withdraw his guilty plea be dismissed. Accordingly, I enter the following: 20 I also find it interesting that McCawley has gone from paying for private counsel, to qualifying for a public defender, to retaining Pennsylvania s premier DUI and criminal defense firm, all of which has resulted in a delay of over two years since his arrest for DUI. Again, it appears McCawley has manipulated or exploited the rules to his advantage in this case. 19

20 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA : : v. : No : CHRISTOPHER R. McCAWLEY : O R D E R AND NOW, this 23 rd day of September, 2015, the Court submits this Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. BY THE COURT: DAVID L. ASHWORTH JUDGE ATTEST: 20

21 Copies to: Susan E. Moyer, Assistant District Attorney Richard S. Roberts, Esquire, The McShane Firm, LLC, 3601 Vartan Way, 2 nd Floor, Harrisburg, PA 17110