Com. v. Murphy, G. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GINA A. MURPHY, :
:
Appellant : No. 246 MDA 2016
Appeal from the PCRA Order December 9, 2015,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0000907-2013
BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 16, 2016
Gina A. Murphy (Appellant) appeals pro se from the order that
dismissed her petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
On July 17, 2014, Appellant pled guilty to third-degree murder,
tampering with physical evidence, false swearing, and unsworn falsification
to authorities stemming from the shooting death of her ex-husband. She
was sentenced on January 23, 2015, to an aggregate term of imprisonment
of 12½ to 25 years. Appellant did not file post-sentence motions or a direct
appeal.
On May 6, 2015, Appellant pro se timely filed a PCRA petition.
Counsel was appointed and, on August 4, 2015, counsel filed a petition to
withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544
*Retired Senior Judge assigned to the Superior Court.
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A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). On November 10, 2015, the PCRA court sent notice
of its intent to dismiss the petition without a hearing pursuant to
Pa.R.Crim.P. 907. On December 9, 2015, the PCRA court, without ruling on
counsel’s petition to withdraw, dismissed the petition.
On December 30, 2015, Appellant pro se timely filed a notice of appeal
to this Court.1 On February 11, 2016, the PCRA court issued an order
granting counsel’s petition to withdraw. By order dated March 1, 2016, the
PCRA court directed Appellant to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On April 12, 2016,
1
Generally, our courts will not entertain pro se filings while an appellant
remains represented, and such filings have been described as legal nullities.
See Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). However, pro se
notices of appeal present a special case. In Commonwealth v. Cooper, 27
A.3d 994 (Pa. 2011), our Supreme Court held that a pro se notice of appeal,
filed while Cooper was represented by counsel, was not automatically a legal
nullity, but was simply “premature.” Id. at 1007. Moreover, this Court and
our Supreme Court have faced pro se notices of appeal filed by represented
appellants both before and after Cooper, and we have not considered this
defect to be fatal. See, e.g., Commonwealth v. Wilson, 67 A.3d 736, 738
(Pa. 2013) (explaining that “[Wilson] filed a pro se notice of appeal; it is not
clear why his court-appointed counsel did not file the notice,” and
proceeding to review the merits of Wilson’s case without further discussion);
Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009)
(remanding for a Grazier hearing where, after the denial of Robinson’s
counseled petition pursuant to the Post Conviction Relief Act, Robinson filed
a timely pro se appeal and a petition requesting that he be allowed to
proceed pro se, and the PCRA court entered an order permitting counsel to
withdraw without conducting a proper colloquy on Robinson’s request and
without the proper procedure for counsel’s withdrawal having been
followed). Thus, we will not treat Appellant’s pro se notice of appeal as a
nullity, particularly given the PCRA court’s subsequent order permitting
Appellant’s counsel to withdraw.
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Appellant filed a “Petition to Order Production of [PCRA] Petition and
Extension of Time,” wherein she requested the PCRA court order that a copy
of her PCRA petition be provided to her; stated that she filed a motion with
the PCRA court on March 8, 2016, requesting an extension of time to file her
concise statement; and requested that the court grant the March 8, 2016
motion, as she could not prepare a concise statement without a copy of her
PCRA petition. Petition to Order Production of [PCRA] Petition and Extension
of Time, 4/12/2016, at 1-2 (unnumbered).
On April 21, 2016, the PCRA court issued a statement in lieu of a
memorandum opinion stating that, for purposes of appellate review, the
reasons for dismissing Appellant’s PCRA petition were discussed in its Rule
907 notice. The PCRA court also noted that Appellant did not file, “of
record,” a concise statement as ordered, but that Appellant did send a
“courtesy” copy of the “‘Motion to Extend Time to Perfect Appeal’ requesting
additional time to file a concise statement.” Statement in Lieu of
Memorandum Opinion, 4/21/2016 at page 1 (unnumbered) n.1. The PCRA
court further explained that “said Motion was never filed of record.”2 Id.2
In her reply brief to this Court, Appellant attached a “Motion to Extend
Time to Perfect Appeal Concise Statement,” which she claims was mailed to
the PCRA court on March 8, 2016. We presume this is the document the
PCRA court refers to above. There is no entry in the PCRA court docket that
relates to this document, and the document is not in the certified record.
We further note that the PCRA court made no mention of Appellant’s April
12, 2016 filing.
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On or about May 2, 2016, Appellant filed with both this Court and the
PCRA court another “Motion to Extend Time to Perfect Appeal.” She also
filed with both courts a “Motion to Compel Lower Court to Provide
Documents,” which requested that this Court compel the PCRA court to
provide her with her PCRA petition and “any documents that would pertain
to her perfecting her appeal.” In response, this Court granted Appellant
another extension of time to file her brief and provided Appellant with a copy
of her PCRA petition. Appellant ultimately filed a concise statement with the
PCRA court and her brief with this Court.3
On appeal, Appellant presents the following issues for our
consideration:
1. Whether the attorney erred in not properly advising and
preparing [Appellant] regarding her plea agreement.
Attorney did not show [Appellant] one piece of paper
pertaining to her case to include discovery, police interviews,
list of charges or plea offer at any time leading up to her
incarceration, during her 25 months incarcerated at Dauphin
County Prison or after her sentencing.
Additionally, on March 11, 2016, Appellant filed with this Court a
“Motion to Extend Time to Perfect Appeal,” wherein Appellant requested that
this Court “grant an extension of time in which to file the points and the case
on appeal.” Motion to Extend Time to Perfect Appeal, 3/11/2016. The
accompanying certificate of service states that Appellant served the filing on
the PCRA court on March 8, 2016. Treating Appellant’s request as an
application for an extension of time to file a brief, this Court granted the
request on March 14, 2016.
3
On August 5, 2016, Appellant filed a “Request to Motion Dauphin County
Courthouse to Obtain Prisoners Record of Legal Mail Log, Legal Visit Log and
List of Any Paperwork Exchanged at Legal Visits from Dauphin County
Prison,” which was denied. Order, 8/11/2016.
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2. Whether the attorney erred in not recognizing that
[Appellant] was not knowing and intelligent to make decisions
based on her own case as to what her best options are for
trial vs. plea because she was trusting and compliant in never
asking questions regarding her case due to her inability to
speak for herself caused by extreme Post Traumatic Stress
Disorder [(PTSD)] stemming from her being a “battered
spouse” as well as living a life of sexual, emotional and verbal
abuse.
3. Whether the attorney erred in not using witnesses given,
family, friends and co-workers to establish the relationship
between [Appellant] and the victim to show his abusive and
drunken past as well as to establish [Appellant’s] PTSD and a
life of abuse to use as mitigating circumstances for sentencing
purposes in order to aid the judge.
Appellant’s Brief at 4-5 (unnecessary capitalization omitted).
Before we address Appellant’s issues, we must determine if they are
preserved properly. Here, Appellant did not file timely a Rule 1925(b)
statement, as she filed it with the PCRA court in June. In general, issues
raised in an untimely-filed Pa.R.A.P. 1925(b) statement are waived. See
Commonwealth v. Gravely, 970 A.2d 1137, 1142 (Pa. 2009) (“[I]t is clear
that an untimely Statement results in waiver of appellate review, regardless
of the treatment the trial court affords the matter.”). Nevertheless,
Appellant did file with the PCRA court a request for an extension of time to
file a concise statement on April 12, 2016. In this regard, our Supreme
Court observed as follows in Gravely:
From this date forward, an appellant who seeks an extension of
time to file a Statement must do so by filing a written application
with the trial court, setting out good cause for such extension,
and requesting an order granting the extension. The failure to
file such an application within the 21-day time limit set forth in
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Rule 1925(b)(2) will result in waiver of all issues not raised by
that date.
Id. at 1145 (emphasis omitted).
Appellant did not file of record her request for an extension of time to
file a statement with the PCRA court until April 12, 2016, which was well
beyond the 21-day time limit set in the court’s March 1, 2016 order.4
Moreover, because the “Motion to Extend Time to Perfect Appeal Concise
Statement” attached to her Reply Brief to this Court is not in the certified
record, we may not consider it. See Commonwealth v. Preston, 904 A.2d
1, 6 (Pa. Super. 2006) (explaining that “matters which are not of record
cannot be considered on appeal” and that “an appellate court is limited to
4
The PCRA court ordered Appellant to file her Rule 1925(b) statement
“within twenty-one (21) days after entry of this order.” Order, 3/1/2016. “In
a criminal case, the date of entry of an order is the date the clerk of courts
enters the order on the docket, furnishes a copy of the order to the parties,
and records the time ... of notice on the docket.” Commonwealth v.
Parks, 768 A.2d 1168, 1171 (Pa. Super. 2001) (emphasis omitted) (quoting
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000); see
also Pa.R.Crim.P. 114. Thus, the PCRA court’s order was entered on March
2, 2016, giving Appellant until March 23, 2016, to file timely her concise
statement.
We further note that although the date on her April 12, 2016 filing is
March 22, 2016, she has not provided any documentation establishing that
she would benefit from application of the prisoner mailbox rule. See
Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006)
(“Pursuant to the ‘prisoner mailbox rule,” a document is deemed filed when
placed in the hands of prison authorities for mailing.”); see also
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (setting forth
various types of evidence a prisoner can present to avail himself or herself of
the prisoner mailbox rule, including a postal form, cash slip, affidavit, or
“any reasonably verifiable evidence of the date that the prisoner deposits the
[filing] with the prison authorities”).
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considering only the materials in the certified record when resolving an
issue”). Finally, although Appellant filed a “Motion to Extend Time to Perfect
Appeal” with this Court, which was apparently served on the PCRA court on
March 8, 2016, we conclude that this is insufficient to constitute a proper
request for an extension of time to file a concise statement with the PCRA
court. Indeed, such request was not filed of record with the PCRA court, nor
did Appellant set out good cause for the extension therein. Thus, we
conclude that Appellant has waived her issues for failing to comply with
Pa.R.A.P. 1925.
Even assuming arguendo that Appellant had not waived her issues on
appeal for failure to comply with Rule 1925(b), she would not be entitled to
relief. This Court’s standard of review regarding an order dismissing a PCRA
petition is whether the determination of the PCRA court is supported by
evidence of record and is free of legal error. Commonwealth v. Donaghy,
33 A.3d 12, 15 (Pa. Super. 2011).
With respect to Appellant’s first issue, relating to counsel’s alleged
ineffectiveness in advising her with respect to the entry of her guilty plea,
we note that counsel is presumed to be effective. Commonwealth v.
Simpson, 112 A.3d 1194, 1197 (Pa. 2015). To prevail on a claim of
ineffective assistance of counsel, a PCRA petitioner must prove each of the
following: “(1) the underlying legal claim was of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and (3) the
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petitioner was prejudiced—that is, but for counsel’s deficient stewardship,
there is a reasonable likelihood the outcome of the proceedings would have
been different.” Id.Ineffective assistance of counsel claims arising from the plea-
bargaining process are eligible for PCRA review. Allegations of
ineffectiveness in connection with the entry of a guilty plea will
serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea. Where the
defendant enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in
criminal cases.
The 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. This
standard is equivalent to the manifest injustice standard
applicable to all post-sentence motions to withdraw a
guilty plea.
A valid guilty plea must be knowingly, voluntarily and
intelligently entered. The Pennsylvania Rules of Criminal
Procedure mandate that pleas be taken in open court, and
require the court to conduct an on-the-record colloquy to
ascertain whether a defendant is aware of his rights and the
consequences of his plea. Specifically, the court must
affirmatively demonstrate the defendant understands: (1) the
nature of the charges to which he is pleading guilty; (2) the
factual basis for the plea; (3) his right to trial by jury; (4) the
presumption of innocence; (5) the permissible ranges of
sentences and fines possible; and (6) that the court is not bound
by the terms of the agreement unless the court accepts the
agreement. This Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining
the totality of the circumstances surrounding the entry of that
plea.
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Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(internal quotation marks and citations omitted).
In support of her first issue, Appellant argues that her plea counsel
was ineffective in failing to show her any paperwork pertaining to her case
and to discuss all information, challenges, and issues with her prior to the
entry of her plea. Appellant’s Brief at 13-14. Appellant argues that, being a
victim of a lifetime of abuse, she was unable to assert herself and trusted
counsel to represent her best interests. Id. at 13. Although included in the
argument supporting her second issue on appeal, Appellant further contends
that (1) neither counsel nor “anyone else” informed her “as to what the
actual charge of [m]urder in the … third degree meant” and that she was not
informed properly of the elements of the crimes to which she was pleading
guilty, (2) counsel led her to believe that she would receive a sentence
significantly less than the one she received, (3) counsel did not tell her “that
there would have to be a Presentence Report written or that there w[as] any
sort of minimum time guidelines” and at no time mentioned the term “open
plea,” (4) she never saw or discussed any information about her case with
counsel other than the day he came to present the plea agreement, and (5)
counsel did not explain to her that she had 10 days from the date of her
guilty plea to withdraw the plea and for what reasons she could do so. Id.
at 15-16.
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The record belies Appellant’s contention that her plea was induced by
counsel’s ineffectiveness and instead supports a conclusion that her plea was
knowing, intelligent, and voluntary. In this regard, the PCRA court explained
as follows:
The transcripts from the guilty plea hearing indicate that
[Appellant] 1) understood the misdemeanor charges being
brought against her, 2) understood the charge of murder (which
includes first degree murder or third degree murder), 3)
understood the maximum sentence of third degree murder, 4)
understood that the court has the option to run the sentences
either concurrently or consecutively, 5) understood that by
pleading guilty, she is giving up the possibility of a jury trial or a
judge trial, 6) understood that by pleading guilty she is giving up
her rights of the Commonwealth having the burden of proving
her guilty beyond a reasonable doubt, the right to confront
witnesses, the right to present a defense, and to testify on her
behalf, and 7) understood her rights of appeal.
[Appellant] further indicated that she was entering the
guilty plea voluntarily, that no one has threatened her in any
way, that no one has made any promises to her other than the
agreement to setting the degree of homicide at third degree
murder, that the plea agreement is not binding on the court
unless the court accepts it, and that the charges against her are
contained in a document called a criminal information.
[Appellant] understood the nature of the charges brought
against her. [Appellant] understood the factual basis for the
plea as indicated by the grand jury presentment. The court
asked [Appellant] if she had “any questions at all for the DA or
your counsel at all” and whether she understood everything.
[Appellant] responded that she did not have any questions and
that she understood everything. Finally, the court found that the
guilty plea was entered knowingly, intelligently, and voluntarily.
Rule 907 Notice, 11/10/2015, at 4-5 (unnecessary capitalization and
citations omitted).
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The PCRA court’s findings are supported by the record. See N.T.,
7/17/2014, at 2-13. We emphasize that Appellant affirmed that she “read
and understood” the criminal information “in its entirety” and “underst[ood]
the nature and elements of the charges as outlined in th[e] criminal
information.” Id. at 8-9. She further represented that she understood that
the entire grand jury presentment would be the factual basis for her guilty
plea and that she read and understood the document in its entirety. Id. at
9-10. She was informed of and confirmed that she understood the
maximum sentences she could receive for her crimes, and she indicated that
she reviewed the sentencing guidelines with counsel in this case. Id. at 2-3,
11-12. Appellant stated that she understood that the guidelines are not
binding on the court in imposing sentence, that the court had the option of
running her sentences concurrently or consecutively, and that “this is an
open plea of guilty to third degree murder and the three misdemeanors, and
the Judge will decide within the statutory maximums what the sentence will
be.” Id. at 4, 8, 12.
Additionally, Appellant said no when asked if “anybody threatened
[her] in any way to get [her] to plead guilty other than with the continued
prosecution if [she] didn’t plead guilty” and if “anybody made any promises
to [her] other than agreement to setting the degree of homicide at third
degree murder to get [her] to plead guilty.” Id. at 7-8. Moreover, when the
trial court stated, “I’m sure you talked about this with your counsel. Do you
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have any questions at all for the [Commonwealth] or your counsel at all?,”
Appellant said no and offered no comment with respect to counsel’s
discussions with her.5 Id. at 12.
Based on the totality of the circumstances as outlined above, and
mindful that “[a] person who elects to plead guilty is bound by the
statements [s]he makes in open court while under oath and may not later
assert grounds for withdrawing the plea which contradict the statements
[s]he made at his plea colloquy,” Commonwealth v. Yeomans, 24 A.3d
1044, 1047 (Pa. Super. 2011), Appellant has failed to convince us that she
entered her plea as a result of counsel’s ineffectiveness. Commonwealth
v. Miner, 44 A.3d 684, 688 (Pa. Super. 2012) (“It is an appellant’s burden
to persuade us that the PCRA court erred and that relief is due.”). Rather,
5
Regarding Appellant’s claim that counsel did not inform her that she had
10 days to withdraw her plea and the reasons she could assert for
withdrawal, this Court has held that
[k]nowledge of the procedural aspects of the right to withdraw
the plea does not bear upon whether it was voluntary in the first
instance. If the colloquy properly informs the defendant of the
rights he is waiving by virtue of the plea, and the defendant
knows his sentence, the guilty plea is not involuntary or
unknowing simply because the court failed to inform the
defendant beforehand of the standard that would apply to a
petition to withdraw the plea. In other words, the integrity of a
defendant’s plea remains intact even if the court failed to inform
the defendant of how, when, or under what circumstances the
plea could be withdrawn.
Commonwealth v. Prendes, 97 A.3d 337, 352-53 (Pa. Super. 2014)
(internal quotation marks and citations omitted). Thus, Appellant’s claim in
this regard is without merit.
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we agree with the PCRA court that the record establishes that her plea was
knowing, voluntary, and intelligent. As Appellant’s attempt to invoke
allegations of plea counsel’s ineffectiveness in order to withdraw her plea is
unavailing, no relief is due.
Appellant’s second issue states that her counsel was ineffective for
not recognizing that [she] was not knowing and intelligent to
make decisions based on her own case as to what her best
options are for trial vs. plea because she was trusting and
compliant in never asking questions regarding her case due to
her inability to speak for herself caused by extreme [PTSD]
stemming from her being a “battered spouse” as well as living a
life of sexual, emotional, physical and verbal abuse.
Appellant’s Brief at 15. Appellant, however, did not include an
ineffectiveness claim relating to counsel’s failure to recognize her alleged
incompetence to enter a plea in her PCRA petition. Thus, in addition to our
finding Rule 1925(b) waiver, Appellant’s claim is waived on this basis as
well. See Commonwealth v. Williams, 899 A.2d 1060, 1066 n.5 (Pa.
2006) (“Appellant did not raise these issues in his PCRA petition, so they are
waived.”).
In her third issue, Appellant argues that her counsel was ineffective for
failing to use witnesses to establish the relationship between Appellant and
the victim to show the victim’s abusive and drunken past as well as to
establish Appellant’s PTSD and life of abuse to use as mitigating evidence for
sentencing purposes. Appellant claims that counsel failed “to admit
testimony from witnesses, family, friends and co-workers to establish history
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and a basis for proving [Appellant] was a victim of psychological and
physical abuse.” Appellant’s Brief at 17. She further argues that counsel
erred in excluding testimony from those witnesses and expert testimony as
it relates to “battered women’s syndrome” and helping explain her state of
mind and the reasonableness of her fear at the time of the murder. Id. at
17-19.
With respect to ineffectiveness claims regarding the failure to
investigate or call a witness, a petitioner must prove that
(i) the witness existed; (ii) the witness was available to testify;
(iii) counsel knew of, or should have known of, the existence of
the witness; (iv) the witness was willing to testify; and (v) the
absence of the testimony was so prejudicial as to have denied
the defendant a fair trial.
Commonwealth v. Pander, 100 A.3d 626, 639 (Pa. Super. 2014).
Upon review, we conclude that Appellant has failed to establish
prejudice. At sentencing, counsel called Danielle Murphy, one of the
daughters of Appellant and the victim, who testified to the victim’s violence
and alcohol abuse. N.T., 1/23, 2015, at 90. Counsel also called Oren
Kauffman, a friend and former coworker of Appellant, who stated that
Appellant would tell him about the victim’s drinking and the couple’s issues,
and he discussed witnessing one interaction where the victim had been
drinking and became “a little overbearing” and was “getting in people’s
faces.” Id. at 94-96.
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Additionally, counsel offered the testimony and report of Dr. Frank
Dattilio, a clinical and forensic psychologist, as an expert at sentencing. Dr.
Dattilio stated that he had experience dealing with matters that involve
PTSD, “battered woman syndrome,” and alcohol and substance abuse within
families. Id. at 102. In evaluating Appellant, Dr. Dattilio performed various
assessments of Appellant, conducted collateral interviews with family
members, and reviewed background materials and certain materials relating
to the criminal matter herein. Id. at 103-105, 122. Dr. Datillio testified to
Appellant’s history leading up to and including the incident at issue, which
included discussion of the victim’s alcohol abuse, aggression, and his abuse
of Appellant, as well as the abuse Appellant suffered as a child from her
mother and stepfather. Id. at 107-27. Dr. Datillio also testified that
Appellant suffers from PTSD, “that she is a passive dependent type of
individual” with “depression and anxiety, a low self-esteem, [and]
sadomasochistic tendencies,” and that her actions were “characteristic of
battered individuals.” Id. at 127-31.
Appellant has failed to indicate how, in light of the evidence that was
offered, additional testimony relating to the victim’s abusive and drunken
past, Appellant’s PTSD and life of abuse, and the implications of battered
women’s syndrome in this case would have led to a different outcome. See
Commonwealth v. Miner, 44 A.3d 684, 688 (Pa. Super. 2012) (“It is an
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appellant’s burden to persuade us that the PCRA court erred and that relief
is due.”). Thus, her final ineffectiveness claim fails.
Based on the foregoing, Appellant is not entitled to post-conviction
relief. Accordingly, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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