Ineffective Assistance of Counsel; Post Conviction Relief Act

Commonwealth v. DeWeese, 2017 WL 1906106 (unreported)(Pa. Super. 2017), allocatur granted Nov. 7, 2017, appeal docket 69 MAP 2017

Former state representative Bill DeWeese was convicted of conflict of interest, theft of services, theft by deception, theft by failure to make required disposition of funds, and criminal conspiracy and was sentenced to 30-60 months imprisonment and restitution. At issue was DeWeese’s use of staff for campaign work during legislative time.

DeWeese filed a Post Conviction Relief Act (PCRA) Petition claiming ineffective assistance of counsel for his trial counsel’s failure to adequately proffer or preserve testimony from fourteen witnesses who would have testified that DeWeese’s mantra in using their services was that they would need to submit leave slips when engaging in campaign time.  The PCRA court conducted an evidentiary hearing on the Petition. At the hearing, several witnesses testified, including DeWeese’s trial/direct appeal counsel and fourteen of the excluded mantra witnesses, each of whom stated that they would have presented testimony concerning the mantra at trial. The PCRA court dismissed DeWeese’s PCRA Petition. In its Opinion, the PCRA court concluded that DeWeese’s claim of trial counsel’s ineffectiveness does not entitle him to relief because (1) DeWeese failed to establish the prejudice prong; (2) the excluded mantra witnesses’ testimony was cumulative to that already presented by the defense; and (3) even if the trial court erred in precluding the testimony of the excluded mantra witnesses, such error was harmless and caused DeWeese no prejudice.

DeWeese appealed, presenting the following issue for the Superior Court’s consideration:

Did the PCRA court err in [dismissing DeWeese’s] PCRA Petition alleging ineffective assistance where [DeWeese] established that [trial] counsel was ineffective for failing to adequately proffer, or preserve for direct appeal, the testimony of fourteen [] [of the excluded mantra] witnesses[,] whose noncumulative testimony was essential to [DeWeese’s] defense[,] and which undermined the credibility of the Commonwealth’s primary witnesses on factual elements critical to the charges at issue?

Slip Op., at 3.

The Superior Court agreed with the PCRA court’s determination and analysis. Specifically, the court found the testimony of the excluded mantra witnesses as cumulative of testimony presented at trial by several defense witnesses who testified that DeWeese had frequently repeated the mantra, on many separate occasions, over a period of years. Additionally, the excluded witnesses did not work for DeWeese during the relevant period or know whether DeWeese’s staff performed campaign work during the business day.  Finally, the Superior Court noted that the jury considered “considerable incriminatory evidence, including, inter alia, the testimony of several of DeWeese’s staff that DeWeese ordered them to perform campaign work on legislative time at the office, a matter about which the excluded mantra witnesses conceded they have no knowledge.” Id. at n.2.

The Superior Court affirmed the PCRA order as to DeWeese’s ineffectiveness of counsel claim, reasoning:

Given the cumulative nature of the proposed testimony of the excluded mantra witnesses, even if trial counsel had proffered their testimony (or adequately preserved the issue for review on direct appeal), there is no reasonable probability that there would have been a different result (1) if the excluded mantra witnesses had testified at trial; or (2) concerning DeWeese’s claim regarding the excluded mantra witnesses raised on direct appeal.

Id. at 6.

The Pennsylvania Supreme Court granted allocatur on the following issue:

Did the Superior Court err in denying PCRA relief where [Petitioner’s] trial counsel failed to preserve for direct appeal the testimony of 14 witnesses who were prevented by the trial court from offering exculpatory testimony that was crucial to the defense and that would have directly contradicted the Commonwealth’s primary witnesses at trial?

For more information, contact Kevin McKeon or Dennis Whitaker.