J-S33016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERRY RICHARD GARLOCK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 1⁄2 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,1the certified record 

and relevant law, we conclude the PCRA court erred in failing to find trial 

____________________________________________

* 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”5in response to 

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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 twopronged 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