J-S84043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH EUGENE MCCLOSKEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1110 MDA 2017

Appeal from the PCRA Order June 19, 2017

In the Court of Common Pleas of Lycoming County 

Criminal Division at No(s): CP-41-CR-0000627-2005

BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED MAY 09, 2018

Joseph Eugene McCloskey appeals from the order entered June 19, 

2017, in the Lycoming County Court of Common Pleas, dismissing his first 

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 McCloskey seeks relief from the judgment of sentence of life 

imprisonment imposed on August 15, 2006, after a jury convicted him of firstdegree murder2

for the March 2005 shooting death of his paramour, Christine 

Montgomery. On appeal, McCloskey contends trial counsel rendered 

ineffective assistance when he interfered with McCloskey’s right to testify at 

trial, resulting in McCloskey’s involuntary and unknowing waiver of that right. 

For the reasons below, we affirm.

____________________________________________

1 42 Pa.C.S. §§ 9451-9546.

2 See 18 Pa.C.S. § 2502(a).
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The facts underlying McCloskey’s conviction were summarized by a 

panel of this Court in the memorandum decision affirming his judgment of 

sentence of direct appeal: 

[S]hortly after 4:00 p.m., on March 23, 2005, [McCloskey] shot 

and killed the victim, his girlfriend, Christine Montgomery, out in

front of the victim’s home. [McCloskey’s] friend, Jeffrey English, 

witnessed the shooting. Mr. English testified at trial that 

[McCloskey] had called him sometime before 4:00 p.m. on March 

23, 2005, and asked him to “come up and get the guns out of the 

house before he shot [the victim].” Sensing the seriousness of 

[McCloskey’s] request, Mr. English drove to the victim’s house. A 

short time after arriving, Mr. English proceeded to the front door 

of the victim’s residence and was greeted by [McCloskey] before 

he (Mr. English) ever made his way to the front door. [McCloseky] 

approached Mr. English carrying two firearms, one of which, the 

shotgun, he handed to Mr. English. While Mr. English was 

checking the shotgun to determine if it was loaded, the victim 

exited the residence, told Mr. English to “take care of him 

[meaning McCloskey],” and proceeded to the driveway. Before 

reaching the driveway, the victim said something to [McCloskey] 

which Mr. English could not make out, and then [McCloskey] “took 

the gun down, cocked it, said ‘I have fucking bullets in it[,’] and 

brought it up, pointed it, and shot[.]” Mr. English further testified 

that he grabbed the firearm from [McCloskey] and would have 

immediately left the property but for [McCloskey,] who followed 

Mr. English and asked for the firearm so that he could shoot 

himself; Mr. English refused and then left the property. After 

pulling out of the driveway, Mr. English testified that, in his 

rearview mirror, he saw [McCloskey] dragging the victim’s body 

back on the driveway towards the garage. Mr. English proceeded 

directly to the Old Lycoming Police Department, where he related 

the aforementioned events to Chief R. Mark Lusk and Corporal 

William C. Solomon. Almost immediately, Chief Lusk and Mr. 

English returned to the victim’s residence where it was determined 

that [McCloskey] had fled the scene on foot. At that time, police 

began a search for [McCloskey], and at 9:00 p.m., after two local 

residents notified officers that they had seen tracks in the snow, 

Agent Stephen J. Sorage of the Willamsport Bureau of Police 
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apprehended [McCloskey] in a trailer less than one mile away from 

the scene of the crime. 

Commonwealth v. McCloskey, 954 A.2d 39 [2216 MDA 2006] (Pa. Super. 

2006) (unpublished memorandum at 4) (citation omitted).

McCloskey was charged with criminal homicide and persons not to 

possess firearms.3 He proceeded to a jury trial on the homicide charge, and, 

on May 18, 2006, the jury returned a verdict of guilty on the charge of firstdegree murder.4

 On August 15, 2006, McCloskey entered a guilty plea to the 

firearms offense. That same day, the trial court sentenced him to a mandatory 

term of life imprisonment for his conviction of first-degree murder, and a 

concurrent term of two to four years’ imprisonment for the firearms 

conviction. McCloskey filed a timely post-sentence motion challenging the 

weight and sufficiency of the evidence, the court’s jury instructions, and 

various evidentiary and pre-trial rulings. The trial court denied the motion in 

December of 2006. As noted above, McCloskey’s judgment of sentence was 

affirmed by this Court on direct appeal, and the Pennsylvania Supreme Court 

subsequently denied his petition for allowance of appeal. See 

Commonwealth v. McCloskey, 964 A.2d 1 (Pa. 2009).

____________________________________________

3 See 18 Pa.C.S. §§ 2501 and 6105(a)(1), respectively.

4 The jury was instructed on the offenses of first-degree murder, third-degree 

murder, and involuntary manslaughter. See N.T., 5/15/2006, 5/17/2006, and 

5/18/2006, at 312-317. 
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On February 19, 2010, McCloskey filed a timely, pro se PCRA petition, 

followed shortly thereafter by two amendments. Although PCRA counsel was 

appointed on June 21, 2010, counsel took no action on McCloskey’s behalf. 

The case sat dormant for almost six years until McCloskey filed another pro 

se amended petition on February 29, 2016.5 New counsel was appointed in 

March of 2016, and filed an amended petition on August 4, 2016, asserting 

trial counsel’s ineffectiveness for interfering with McCloskey’s right to testify 

on his own behalf, thereby resulting in an unknowing and involuntary waiver 

of that right. The PCRA court conducted evidentiary hearings on January 10,

2017, and February 24, 2017. Thereafter, on June 19, 2017, the court denied 

McCloskey relief. This timely appeal followed.6

Our review of an order denying PCRA relief is well-settled:

This Court reviews a PCRA court’s decision in the light most 

favorable to the prevailing party. Commonwealth v. Hanible, 

612 Pa. 183, 30 A.3d 426, 438 (2011). Our review is limited to a 

determination of whether the record supports the PCRA court’s 

factual findings and whether its legal conclusions are free from 

error. Id. “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.” 

Commonwealth v. Treiber, ___ Pa. ___, 121 A.3d 435, 444 

____________________________________________

5 The record provides no explanation for the delay.

6 On June 23, 2017, the PCRA court ordered McCloskey to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

McCloskey complied with the court’s directive, and filed a concise statement 

on July 5, 2017.
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(2015) (citing Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 

297, 301 (2011)). We review the PCRA court’s legal conclusions 

de novo. Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 

603 (2013). 

Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016). Furthermore, 

where, as here, the defendant alleges counsel rendered ineffective assistance, 

we note:

“In order to obtain relief under the PCRA premised upon a 

claim that counsel was ineffective, a petitioner must establish 

beyond a preponderance of the evidence that counsel’s 

ineffectiveness ‘so undermined the truth-determining process that 

no reliable adjudication of guilt or innocence could have taken 

place.’” Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. 

Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When 

considering such a claim, courts presume that counsel was 

effective, and place upon the appellant the burden of proving 

otherwise. Id. at 906. “Counsel cannot be found ineffective for 

failure to assert a baseless claim.” Id. 

To succeed on a claim that counsel was ineffective, 

Appellant must demonstrate that: (1) the claim is of arguable 

merit; (2) counsel had no reasonable strategic basis for his or her 

action or inaction; and (3) counsel’s ineffectiveness prejudiced 

him. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 

2003).

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013). “To 

demonstrate prejudice, a petitioner must show that there is a reasonable 

probability that, but for counsel’s actions or inactions, the result of the 

proceeding would have been different.” Commonwealth v. Mason, 130 A.3d 

601, 618 (Pa. 2015).

In the present case, McCloskey asserts trial counsel rendered ineffective 

assistance by interfering with his right to testify in his own defense. 
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Preliminarily, we acknowledge “[t]he right of an accused to testify on his own 

behalf is a fundamental tenet of American jurisprudence and is explicitly 

guaranteed by Article I, Section 9 of the Pennsylvania Constitution.” 

Commonwealth v. Nieves, 746 A.2d 1102, 1105 (Pa. 2000). Accordingly,

[t]he decision of whether or not to testify on one’s own behalf is 

ultimately to be made by the defendant after full consultation with 

counsel. Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334 

(1998); Commonwealth v. Bazabe, 404 Pa.Super. 408, 590 

A.2d 1298, alloc. denied, 528 Pa. 635, 598 A.2d 992 (1991); 

Commonwealth v. Fowler, 362 Pa.Super. 81, 523 A.2d 784, 

alloc. denied, 517 Pa. 598, 535 A.2d 1056 (1987). In order to 

sustain a claim that counsel was ineffective for failing to advise 

the appellant of his rights in this regard, the appellant must 

demonstrate either that counsel interfered with his right to testify, 

or that counsel gave specific advice so unreasonable as to vitiate 

a knowing and intelligent decision to testify on his own behalf. Id.

Id. at 1104. See also Michaud, supra. Furthermore, this Court has 

recognized that “a defendant who made a knowing, voluntary, intelligent 

waiver of testimony may not later claim ineffective assistance of counsel for 

failure to testify.” Commonwealth v. Lawson, 762 A.2d 753 (Pa. Super. 

2000), appeal denied, 781 A.2d 141 (Pa. 2001).

Here, McCloskey insists he wanted to testify in his own defense, and 

repeatedly informed his attorneys7 of this numerous times both before and 

during trial. See McCloskey’s Brief at 13-14. Nevertheless, he claims counsel 

____________________________________________

7 At trial, McCloskey was represented by two attorneys from the Lycoming 

County Public Defender’s Office, lead counsel William Miele (“Attorney Miele”), 

and co-counsel Nicole Spring (“Attorney Spring”).
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did not want him to testify and employed his siblings to help convince him not 

to do so. See id. at 22-25. 

McCloskey’s claim is based upon the following factual allegations 

developed during the PCRA hearing. McCloskey contends that on the third 

day of trial, he met with Attorney Miele in his holding cell to discuss whether 

or not he was going to testify. See N.T., 1/10/2017, at 109. Attorney Miele 

arranged for McCloskey’s sister, Karen Neylon, to be there to help convince 

McCloskey not to testify. See id. at 109-110. McCloskey claims that when 

he told Attorney Miele he wanted to testify, counsel “reacted physically and 

verbally in a manner which took away [McCloskey’s] right to make a voluntary, 

knowing and intelligent decision based in part on the reasonable advice of 

counsel on whether or not to testify in his own defense.” McCloskey’s Brief at 

14. Specifically, McCloskey asserted Attorney Miele “became heated and 

engraged,” threw papers at him, kicked a register, and called him “pig 

headed,” “bullheaded,” and a “fucking idiot.” N.T., 1/10/2017, at 110-111. 

Ms. Neylon corroborated McCloskey’s account of the incident. See id. at 12-

13.

Based upon Attorney Miele’s behavior, McCloskey contends he was 

“confused and felt betrayed.” McCloskey’s Brief at 15. Therefore, he told 

Attorney Miele he “would like more time to decide to take the stand,” and 

asked counsel to request the trial court allow him to make the decision the 

next morning. N.T., 1/10/2017, at 111. McCloskey testified counsel never 
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told him the decision of whether or not to testify was his and his alone. See 

id. at 112. 

The trial transcript reveals that Attorney Miele did, in fact, inform the 

trial court that McCloskey wanted a continuance until the next morning to 

decide whether or not to testify, although counsel stated to the court, “I told 

him I didn’t think the Court would probably do that[.]” See N.T., 5/15/2006, 

5/17/2006, and 5/18/2006, at 263-264. The trial court denied the request, 

and Attorney Miele asked if McCloskey’s colloquy could be held in chambers, 

which the court allowed. See id. at 264-265. Thereafter, the following 

colloquy took place:

[The Court:] Sir, you are the Defendant in this case, Joseph 

McCloskey?

[McCloskey:] Yes, ma’am.

[The Court:] And, Mr. Miele has indicated to me at the break 

that you – that the Defense was going to rest, which ultimately 

means you would not be testifying in this case, is that correct?

[McCloskey:] That’s correct.

[The Court:] Now, you understand as part of the reason why 

we’re in here is I have a responsibility to on the record ask you 

questions about [] the decision [] whether or not to testify in a 

trial, you understand that?

[McCloskye:] Yes, ma’am.

[The Court:] And you understand that if you need it, it seems 

like you’ve had plenty of time to talk to Mr. Miele, we gave a break 

if Mr. Miele or Miss Spring needed more time to speak with you 

about this that you’ve had the opportunity today to explore those 

issues with Mr. Miele, is that correct?
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[McCloskey:] Yes.

[The Court:] And whose – and was it your decision not to 

testify?

[McCloskey:] Pretty much all of ours.

[The Court:] All of ours meaning your defense team, the 

people that have been sitting in court with you?

[McCloskey:] Yeah.

[The Court:] In terms of Mr. Miele and Miss Spring and 

perhaps even Ms. Holmes [their paralegal] to a certain degree?

[McCloskey:] Correct.

[The Court:] Okay. Is that something you want to do 

meaning not testify?

[McCloskey:] Yes, ma’am.

[The Court:] Okay. Now you understand you have an 

absolute right to remain silent. You also have a right to testify in 

this criminal trial?

[McCloskey:] Yes, ma’am.

[The Court:] And knowing that you have chosen to remain 

silent?

[McCloskey:] Yes, ma’am.

[The Court:] Now, under the---let me just go on this issue 

first. Mr. Miele, were there any questions you wanted to follow up 

with on this issue? I’m going to talk about the other thing in just 

a second.

...

[Attorney Miele:] Just point out to the Court that we did 

advise him it was our opinion not to testify and I think it was 

unanimous as a [d]efense team and we also discussed it 

with family members who had an opportunity to discuss it 

themselves with Mr. McCloskey and they informed him and 

all of that had an impact or influenced his decision.

[The Court:] That’s correct, Mr. McCloskey?
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[McCloskey:] Yes, ma’am.

Id. at 267-269. 

The court then discussed whether or not McCloskey wanted a jury 

instruction regarding his decision not to testify,8 before the following exchange

occurred: 

[The Court:] ... I should also probably put on the record that 

a request was made on your behalf by your attorney, Mr. Miele, 

to allow us to stop for today and allow you to have over night (sic)

to make the decision as to whether or not you should proceed with 

testifying. I denied that request and my concern is just from 

purely a time constraint in that with the nature of the trial, the 

fact that you’ve been a part of the proceedings and have had the 

opportunity to speak with your defense team all throughout this 

trial as well as all throughout the course of preparing for the trial. 

So that I did not see any benefit to be served by allowing you the 

additional time so I denied that request, but I wanted to tell you 

that face to face that it wasn’t entertained by the Court, but I

denied it.

[McCloskey:] Can I say something?

[The Court:] You’re under oath.

[McCloskey:] It’s just that I didn’t have all the evidence. I

mean – I mean I wasn’t getting stuff all the way up until the end, 

you know what I mean, I didn’t have as much time to review as 

long as I would have liked to just, you know that.

[The Court:] My understanding you were probably, through 

your attorneys, [] handed an enormous amount of information 

much of which was not presented through the trial. You were 

present in the courtroom though the entire case so that if Mr. Miele 

and Miss Spring would have talked about whether or not you 

should testify I imagine it’s not based upon the voluminous reports 

it’s based upon purely what was discussed in the courtroom and 

____________________________________________

8 See N.T., 5/15/2006, 5/17/2006, and 5/18/2006, at 269-271.
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their perception of the strength of the – relative strength of your 

case whether you testify or if you don’t testify.

[McCloskey:] Well, the thing – my thing is like with [my 

firearms expert] Kapelsohn[9] and that certain points weren’t 

allowed to be put in I didn’t know what would be, you know, what 

I mean until today actually, you know.

[The Court:] Right.

[McCloskey:] You know, I don’t know, just –

[The Court:] I agree with you there because we weren’t sure. 

I didn’t know about Sergeant Wolfgang until yesterday and then 

as a result it changed the rulings that I had previously made with 

regard to Mr. Kapelsohn’s report absolutely, but in the grand

scheme of the trial again it’s my valued judgment and it’s always 

subject to review, but based upon that short time that Mr. 

Kapelsohn was on the stand I don’t believe that justifies a 

continuance until tomorrow to decide whether or not you should 

testify or not, okay, but you’ve expressed your opinion on the 

record or your concerns on the record and your record is 

protected. Okay. But you have had—but you’ve had enough time 

to speak with your attorneys all along because I had always gotten 

an impression that your attorney visited over at the county prison 

even when we were in trial, right, didn’t they visit you Tuesday 

when we didn’t have court in the morning? My understanding they 

came over and visited you.

[McCloskey:] Yes, ma’am.

[The Court:] There’s been quite an open dialog with your 

attorneys more so than maybe in some cases I think you’ve –

they’ve gone above and beyond to make sure that you were aware 

of everything. I can only tell what I [have] seen out front. Was 

there anything else or any other concern that you wanted to 

express to me?

____________________________________________

9 Emanuel Kapelsohn and Pennsylvania State Police Sergeant Eric Wolfgang 

were the parties’ firearms experts. After Sergeant Wolfgang testified for the 

Commonwealth, the trial court modified a prior ruling it made restricting the 

testimony of McCloskey’s expert, Kapelsohn. See id. at 178-189. 
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[McCloskey:] No, ma’am.

Id. at 271-273.

With this factual background in mind, we consider McCloskey’s 

argument on appeal. He maintains that counsel – in particular, Attorney Miele

– interfered with his right to testify in his own defense. McCloskey insists 

counsel’s berating of him when he expressed his desire to testify “took away” 

his ability to make a voluntary and informed decision. See McCloskey’s Brief 

at 14. He contends the transcript supports his claim, arguing: 

At this point, the trial court is presented with a defendant who has 

asked for more time to decide whether or not to testify before the 

colloquy, who during the colloquy repeatedly references the 

decision being everyone’s, not specifically his, who is never told 

during the colloquy that the decision is his and his alone and who 

immediately following the colloquy expresses concerns about 

being confused and needing more time. Even in isolation these 

facts would suggest [McCloskey’s] decision may not be knowing, 

intelligent and voluntary. When trial counsel’s ineffective 

assistance in directly interfering with [his] right to testify in the 

holding cell is factored in, the conclusion is simple. [McCloskey] 

was denied his right to make a knowing, intelligent and voluntary 

decision on whether or not to testify on his own behalf.

McCloskey’s Brief at 19. Moreover, he points to the PCRA hearing testimony 

of both his sister and brother, who corroborated his account of Attorney Miele’s 

combative manner, as well as counsel’s own testimony, in which Attorney 
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Miele claimed he had no independent recollection of the meeting in 

McCloskey’s holding cell.10 See id. at 22-27.

McCloskey further insists counsel’s ineffectiveness prejudiced him 

because he was the only other witness to the shooting besides English, and 

the only person who “could explain an alternate theory and articulate his 

defense to the jury.” McCloskey’s Brief at 20. Indeed, he claims he would 

have testified that he did not intend to shoot the victim, let alone kill her, but 

the gun discharged as he was attempting to “safety [it] down.” Id. 

The PCRA court, however, concluded McCloskey was entitled to no relief. 

First, the court determined the claim had no arguable merit. The court opined:

In the present case, testimony reflects that [McCloskey] was 

made aware of his right to testify on his own behalf. Trial counsel 

neither interfered with [McCloskey’s] freedom to testify nor did he 

give unreasonable advice that vitiated a knowing and intelligent 

decision by [McCloskey] on whether to testify. 

PCRA Court Opinion, 6/19/2017, at 6. The PCRA court noted Attorney Miele 

recalled discussing with McCloskey whether or not he intended to testify at 

trial, and testified that his general practice would have been to tell McCloskey

“on multiple occasions it’s [McCloskey’s] decision, it’s not ours.” Id. at 7; 

N.T., 1/10/2017, at 51, 87. Furthermore, the PCRA court pointed to 

McCloskey’s waiver colloquy, in which he acknowledged to the trial court that 

____________________________________________

10 It merits emphasis that the PCRA hearings were conducted in early 2017, 

nearly 11 years after trial.
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he was aware of his right to testify in his own defense, and that it was his 

choice to waive that right. See PCRA Court Opinion, 6/19/2017, at 8.

Next, the PCRA court found trial counsel had a reasonable basis for 

advising McCloskey not to take the stand. The court stated that Attorney 

Miele’s defense strategy was to establish the elements of manslaughter 

through the cross-examination of the Commonwealth’s witnesses. See id. at 

10-11. Moreover, the PCRA court emphasized counsel’s justified concern that 

if McCloskey took the stand, he could be cross-examined with an inculpatory, 

taped statement, which he made following his arrest. See id. at 11-12. 

Because McCloskey had rejected a pretrial offer to plead guilty to third degree 

murder, the trial court found counsel’s trial strategy to attempt to demonstrate 

involuntary manslaughter reasonable. See id. at 12.

Lastly, the PCRA court concluded McCloskey suffered no prejudice. 

Specifically, the court found McCloskey’s “testifying did not have a strong 

likelihood of changing the result of the proceeding, given the taped interviews 

between [McCloskey] and investigators in which [McCloskey] made 

inculpatory statements, which would have been included as evidence if [he] 

took the stand.” Id. at 13.

After a thorough review of the record, the parties’ briefs, and the 

relevant statutory and case law, we agree McCloskey is entitled to no relief. 

We recognize McCloskey insists he wanted to testify at trial, but claims

Attorney Miele’s aggressive behavior and name-calling during their meeting in 
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his holding cell confused and intimidated him. We note that although Attorney 

Miele could not specifically recall this meeting with McCloskey, he categorically 

denied the allegation that he berated and intimidated his client. Counsel 

testified:

I know how I react and I know how I deal with things and whatever 

his witnesses testified that are in your affidavits about how I 

allegedly reacted in the holding cell is a lie. 

* * * *

It makes no sense. [T]hey say I kick things around in the holding 

cell. There is nothing to kick around back there if you’ve been 

back there and they don’t allow us in the holding cell. Next, I 

don’t call clients names and I don’t swear at them and I don’t yell. 

I don’t do those things with clients. So whatever him and your 

other witnesses want to say, I’m sorry, that’s not what happened. 

...

N.T., 1/10/2017, at 71-72. The PCRA court, faced with this conflicting 

testimony, was free to find the testimony of McCloskey and his sister not 

credible. See Williams, supra. 

 Furthermore, McCloskey cannot escape the fact that, shortly after this 

meeting occurred, he participated a colloquy with the trial court in which he 

acknowledged: (1) he had the opportunity to discuss the decision with his 

attorney; (2) the decision not to testify was “[p]retty much all of ours[;]”

11

(3) he did not want to testify; and (4) he understood he had both a right to 

testify and a right to remain silent. See N.T., 5/15/2006, 5/17/2006, and 

5/18/2006, at 267-269. By indicating the decision not to testify was “all of 

____________________________________________

11 N.T., 5/15/2006, 5/17/2006, and 5/18/2006, at 268.
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ours,” McCloskey confirmed he agreed with that decision. Id. at 268. As 

noted supra, this Court has specifically held: “A defendant will not be afforded 

relief where he voluntarily waives the right to take the stand during a colloquy 

with the court, but later claims that he was prompted by counsel to lie or give 

certain answers.” Lawson, supra, 762 A.2d at 756.

Moreover, we do not agree with McCloskey’s claim that his exchange 

with the trial court after the colloquy confirmed his indecision. See 

McCloskey’s Brief at 8. While McCloskey attempted to explain to the trial court 

why he requested a continuance, the court stood firm on its ruling that a 

continuance would not be granted. See id. at 271-273. McCloskey did not 

indicate to the court that he wanted to change his decision. Further, 

McCloskey has not challenged the court’s denial of his continuance request on 

appeal. 

We also note that to the extent McCloskey insinuates counsel had no 

reasonable basis for advising him not to testify at trial, we again disagree. 

Attorney Miele provided ample reasons for counseling McCloskey to remain 

silent, including his opinion that McCloskey would “be a horrible witness.” 

N.T., 1/10/2017, at 95. He explained:

Well, first of all, he gave a statement to the police and that 

statement we felt was probably equivalent to an admission of third 
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degree murder.[12] So you had that issue. Second of all, 

McCloskey’s position had been throughout that this was an 

accident and he had taken to attacking everyone who was 

testifying against him, which is not uncommon at all, attacking 

also included attacking his children where he called his children 

liars, he called his children mentally ill and that they were not 

credible and, again, [Attorney] Spring has notes on that and can 

give you dates of that on when that occurred. So overall we feared 

that because of the statement and because of his attitude and the 

way Mr. McCloskey approached the case he viewed himself as the 

victim. We did not feel he would garner any sympathy from the 

jury, in fact, I think we were of the opinion that the jury would not 

like Mr. McCloskey.

Id. at 54-55. Indeed, some of McCloskey’s children had given statements to 

police that Attorney Miele believed “were not helpful to the case.” Id. at 88. 

Attorney Spring specified that “[o]ne of the kids made a statement that 

[McCloskey] threatened to shoot [the victim] in the head or something[.]” 

N.T., 2/24/2017, at 84. She elaborated that based on the children’s 

statements, she “did not expect there would be an accidental shooting, but 

that what we kind of hoped for was an involuntary” manslaughter conviction. 

Id. Therefore, based on the numerous reasons outlined above, counsel had 

a reasonable basis for advising McCloskey not to take the stand. 

____________________________________________

12 McCloskey’s statement to police is not included in the certified record. 

However, Attorney Miele indicated McCloskey told police the gun “had been 

cocked” and he was handing it to the victim with the barrel facing her when it 

fired. N.T., 1/20/2017, at 79. However, there was testimony at trial that the 

gun would not have fired absent someone pulling the trigger. See id.
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Because we agree with the PCRA court’s conclusion that McCloskey’s 

ineffectiveness claim has no arguable merit, we affirm the order denying 

relief.13 

Order affirmed. 

____________________________________________

13 Because we find McCloskey failed to establish the first prong of the 

ineffectiveness test, we need not determine whether he suffered prejudice. 

See Commonwealth v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012) (“Failure to 

establish any prong of the test will defeat an ineffectiveness claim.”). 

Nevertheless, we note that both the PCRA court and McCloskey misinterpreted 

the prejudice prong of the ineffectiveness claim in the present case. Indeed, 

in Commonwealth v. Walker, 110 A.3d 1000 (Pa. Super. 2015), appeal 

denied, 125 A.3d 777 (Pa. 2015), this Court held:

[T]he appropriate standard for assessing whether a defendant was 

prejudiced by trial counsel’s ineffectiveness regarding the waiver 

of his right to testify is whether the result of the waiver 

proceeding would have been different absent counsel’s 

ineffectiveness, not whether the outcome of the trial itself would 

have been more favorable had the defendant taken the stand.

Id. at 1005. Accordingly, in order to demonstrate prejudice, McCloskey was 

required to prove that absent counsel’s purported interference, he would not 

have waived his right to testify. McCloskey’s PCRA hearing testimony arguably

demonstrates this prong. See N.T., 1/10/2017, at 123-124. 
J-S84043-17

- 19 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/2018