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March 13, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Clary, D.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 1211 EDA 2025
• Precedential Status: Non-Precedential

• Judges: King

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (617)

• PDF

Combined Opinion

                        by King

J-S05016-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL KHALIL CLARY :
:
Appellant : No. 1211 EDA 2025

Appeal from the PCRA Order Entered August 2, 2024
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003961-2017

BEFORE: PANELLA, P.J.E., KING, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY KING, J.: FILED MARCH 13, 2026

Appellant, Daniel Khalil Clary, appeals from the order entered in the

Northampton County Court of Common Pleas, denying his timely first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We affirm.

In its opinion dismissing Appellant’s PCRA petition, the PCRA court

accurately set forth the relevant facts and procedural history of this case.

(See PCRA Court Opinion, filed 8/2/24, at 1-18). Therefore, we have no

reason to restate them at length. Briefly, on November 7, 2017, during a

traffic stop initiated by Pennsylvania state troopers, and while undergoing field

sobriety testing, Appellant attempted to grab the handle of one officer’s gun.

After he was tased, Appellant continued to resist arrest and to grab for the

---

• Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.
J-S05016-26

officer’s weapon; he ultimately dislodged the magazine from the firearm.

Appellant then ran to his own vehicle, retrieved his own firearm, and shot at

both officers, hitting one of them. Appellant, who had been hit with return

fire, fled the scene in his vehicle. The entire incident was captured on body

worn camera footage.

During closing argument, Appellant’s trial counsel contended that

Appellant was in fear for his life after being repeatedly tased by state troopers.

On June 29, 2018, a jury convicted Appellant of two counts each of attempted

murder of a law enforcement officer, aggravated assault of a law enforcement

officer, and disarming a law enforcement officer without lawful authorization,

and one count each of resisting arrest, escape, and carrying a firearm without

a license.

On August 31, 2018, the court sentenced Appellant to an aggregate

term of 42 to 84 years’ incarceration. Appellant timely filed post-sentence

motions, which the court denied on January 18, 2019. This Court affirmed

Appellant’s judgment of sentence on December 15, 2020, and the

Pennsylvania Supreme Court denied allowance of appeal on December 15,

1. See Commonwealth v. Clary, No. 463 EDA 2019 (Pa.Super. filed

Dec. 15, 2020) (unpublished memorandum), appeal denied, 672 Pa. 61, 269

A.3d 529 (2021).

On August 22, 2022, Appellant timely filed a pro se PCRA petition and

the court appointed counsel. On October 4, 2023, Appellant filed an amended

petition alleging that trial counsel was ineffective for advising Appellant not to

-2-
J-S05016-26

testify at trial.

On November 17, 2023, the court held an evidentiary hearing on

Appellant’s PCRA petition. At the hearing, Appellant testified regarding his

version of the events of November 7, 2017, essentially claiming that he feared

for his life after police officers tased and shot him, and that he only returned

fire after officers had fired first. However, Appellant also admitted that had

he taken the witness stand, he had nothing more to tell the jury than what

was shown in the video. (See N.T. Hearing, 11/17/23, at 27-29, 51-52).

Trial counsel also testified and explained that she had discussed at

length with Appellant her reasoning for advising Appellant not to testify in his

defense, namely, that Appellant’s claims were not consistent with what

counsel had viewed on video; Appellant’s documented history of paranoia;

and her fears that Appellant would not be a sympathetic or reliable witness

and would not hold up on cross examination. Appellant also admitted that he

had discussed the decision not to testify with trial counsel.

On August 2, 2024, the court issued an opinion and order denying PCRA

relief. On August 29, 2024, Appellant timely filed a notice of appeal. On

August 30, 2024, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. On September 20, 2024,

Appellant timely complied.

On appeal, Appellant raises the following issue for review:

Did the PCRA court err and/or abuse its discretion when it
held that trial counsel was not ineffective for advising
Appellant not to testify at trial given that the defense was

-3-
J-S05016-26

presenting a justification defense?

(Appellant’s Brief at 4).

“Our standard of review of [an] order granting or denying relief under

the PCRA calls upon us to determine whether the determination of the PCRA

court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The

PCRA court’s factual findings are binding if the record supports them, and we

review the court’s legal conclusions de novo.” Commonwealth v. Prater,

256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, 672 Pa. 30, 268 A.3d

386 (2021). Further, where the PCRA court makes credibility determinations,

we are bound by them if they are supported by the record. Commonwealth

v. Mojica, 242 A.3d 949 (Pa.Super. 2020), appeal denied, 666 Pa. 290, 252

A.3d 595 (2021).

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

applicable law, and the well-reasoned opinion of the Honorable Michael J.

Koury, Jr., we conclude Appellant’s claim merits no relief. The PCRA court

opinion comprehensively discusses and properly disposes of the claim raised.

(See PCRA Court Opinion at 19-32) (finding: court found trial counsel’s

testimony at PCRA hearing was credible and Appellant’s testimony at PCRA

hearing was not credible; record demonstrates that trial counsel had

reasonable basis for her advice to Appellant not to testify; specifically, trial

counsel testified that Appellant’s version of events differed from the events

-4-
J-S05016-26

captured on body worn camera footage; trial counsel also expressed concerns

about Appellant’s ability to testify calmly given his documented history of

paranoia; further, Appellant failed to show there was reasonable probability

that outcome of trial would have been different had Appellant testified;

Appellant failed to articulate offer of proof of testimony he would have given

had he testified at trial; Appellant even admitted that testifying would not

have “helped” jury, as Appellant stated that he had nothing more to tell jury

than what was on video; on this record, Appellant cannot establish that trial

counsel interfered with his right to testify or provided advice so unreasonable

that it hindered his ability to make a knowing and intelligent decision regarding

whether to testify; trial counsel testified that she advised Appellant not to

testify but informed him he had right to testify if he chose to do so; trial

counsel’s testimony was credible; Appellant’s ineffectiveness claim fails).

Accordingly, we affirm based on the PCRA court’s opinion.

Order affirmed.

Date: 3/13/2026

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