Com. v. Seay, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRADLEY MATTHEW SEAY :
:
Appellant : No. 704 WDA 2021
Appeal from the PCRA Order Entered June 8, 2021
In the Court of Common Pleas of Crawford County
Criminal Division at CP-20-CR-0000702-2019
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: NOVEMBER 19, 2021
Bradley Matthew Seay (Appellant) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
On March 15, 2019, the Commonwealth charged Appellant with criminal
homicide and abuse of a corpse.1 On January 24, 2020, Appellant entered a
negotiated guilty plea to one count of murder of the third degree.2 In return,
the Commonwealth did not proceed on the charges of murder of the first or
second degree, and agreed to nolle pros the abuse of a corpse charge. That
same day, the court sentenced Appellant to 20 - 40 years of incarceration.
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1 18 Pa.C.S.A. §§ 2501(a) and 5510.
2 18 Pa.C.S.A. § 2502.
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Appellant never sought to withdraw his guilty plea, and did not file a post-
sentence motion or direct appeal.
On November 30, 2020, Appellant filed a pro se PCRA petition. The
PCRA court appointed Edward J. Hatheway, Esquire to represent Appellant.
On March 18, 2021, Attorney Hatheway filed an amended PCRA petition
claiming Appellant received ineffective assistance of plea counsel. On April 9,
2021, the PCRA court issued notice of intent to dismiss Appellant’s petition
without a hearing pursuant to Pa.R.Crim.P. 907. Attorney Hatheway filed a
response, and the PCRA court scheduled oral argument for May 25, 2021 on
the issue of whether Appellant was entitled to an evidentiary hearing. After
taking the matter under advisement, the PCRA court, on June 8, 2021, issued
a memorandum and order dismissing Appellant’s PCRA petition without a
hearing. This timely appeal followed.3
Appellant presents the following issue for review:
Whether the PCRA court erred in denying Appellant’s
amended PCRA petition without a hearing where Appellant
presented claims of ineffective assistance of counsel that raised
material issues of fact not contained in the record requiring a
hearing pursuant to Pennsylvania Rule of Criminal Procedure 908?
Appellant’s Brief at 7.
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3 Appellant and the PCRA court have complied with Pa.R.A.P. 1925. The court
stated its “reasons for declining to hold an evidentiary hearing are stated in
the Memorandum accompanying the Order appealed from, a copy of which is
attached hereto as Exhibit B.” Pa.R.A.P. 1925 Opinion, 6/22/21, at 2.
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We review the denial of PCRA relief by “examining whether the PCRA
court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.Moreover,
the PCRA court has the discretion to dismiss a petition without a
hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings.” Pa.R.Crim.P.
909(B)(2). “[T]o obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Commonwealth v.
D’Amato, 856 A.2d 806, 820 (Pa. 2004).
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
In reviewing ineffective assistance of counsel claims, we begin with the
presumption that counsel was effective. See, e.g., Commonwealth v.
Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome the presumption, the
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) the
petitioner suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability that the result of the
proceeding would have been different.” Id. To demonstrate prejudice, “the
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petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
With respect to a guilty plea, “[a]llegations 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.” Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007)
(citation omitted). “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.”
Id. “Thus, to establish prejudice, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Commonwealth
v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations omitted). “The
reasonable probability test is not a stringent one; it merely refers to a
probability sufficient to undermine confidence in the outcome.” Id.Instantly, Appellant argues “the pcra court should have scheduled an
evidentiary hearing and heard testimony from appellant to aid the pcra court
with its decision in resolving appellant’s amended petition for post-conviction
collateral relief as it raises numerous issues of material fact that are not
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contained in the record.” Appellant’s Brief at 14. Appellant then recites the
“material facts not previously contained in the record.” Id. However — and
importantly — Appellant fails to articulate how the PCRA court erred in its
analysis of the viability of Appellant’s underlying ineffective assistance of plea
counsel claim, and does not develop his argument with citation to pertinent
legal authority. It is well-settled that the argument portion of an appellate
brief must be developed with pertinent discussion of the issue,
including citation to relevant authority. See Pa.R.A.P. 2119(a) (requiring
appellant to develop an argument with citation to and analysis of
relevant legal authority); see also Commonwealth v. Genovese, 675 A.2d
331, 334 (Pa. Super. 1996) (“The argument portion of an appellate brief must
be developed with a pertinent discussion of the point which
includes citations to the relevant authority”). As Appellant has failed to
develop a legal argument in this regard, we could “not consider this issue
further” and find waiver. See id.However, waiver notwithstanding, our review of the record comports
with the PCRA court’s analysis. The PCRA court detailed its rationale for
declining to hold an evidentiary hearing as follows:
The sole ground for relief asserted in the Petition is the
ineffective assistance of counsel (“IAC”) in advising [Appellant] to
enter his plea. [Appellant] asserts that defense counsel did not
have a reasonable basis for so advising him, in light of facts to
which he would testify at an evidentiary hearing.6 Some of his
“facts”—such as no premeditation and lack of malice—are instead
legal conclusions. No issue of fact arises as to whether the killing
occurred during the course of a felony (as required for second
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degree murder). All of the facts seemingly necessary to raise the
defense of self-defense are already provided by [Appellant’s] self-
serving notarized affidavit attached to the Petition, e.g., that “[a]t
the time of the subject incident [the victim] was pointing a loaded
firearm at me” and “I thought that [the victim] was going to shoot
the firearm he was holding at me and kill me.”
6 Neither in the Petition nor subsequently has
[Appellant] offered the testimony of any Intended
witnesses. See 42 Pa.C.S. § 9545(d); Pa.R.Crim.P.
902(A)(15).
Contrast these “facts” to the account provided by the
District Attorney at [Appellant’s] plea colloquy.7 Briefly, the killing
occurred in Oil Creek Township near a camper located on a
campground belonging to [Appellant’s] grandparents, at which he
and the victim had been staying. Both are believed to have been
involved in selling and using methamphetamine. The victim had
at times had a relationship with Marjorie Wagner, for whom
[Appellant] is believed to have had romantic feelings, and she had
been at the camper earlier in the day. To the victim’s apparent
displeasure, [Appellant] had escorted her to his grandparents’
cabin to take a shower. Later that day, Marjorie had spotted
[Appellant] at his friend Don Vroman’s residence, and been given
the key to the camper to retrieve some belongings. She was
inside the camper when [Appellant] and the victim returned, and
spoke with the latter (who had a shotgun) through the window
about their relationship. She later said they did not argue or fight.
He walked away, and while gathering her belongings, she heard a
single gunshot, as did others on and near the property. She ran
out and saw [Appellant] “lift his hands in the air like, ‘Oh well.’”
The others who were present did not see or cannot testify to
seeing the shooting, perhaps due to drug use. Marjorie left with
them, and went to the home of her uncle, who advised them to
report the homicide. They then drove to the Titusville police
station.
7 [Appellant] pleaded guilty “In conformity with the
[District Attorney’s] rendition of facts,” and stated
that he had “[n]othing else” to add. N.T., [1/24/20,]
at 14, 19.
[Appellant], following the shooting, was seen by a neighbor
speeding away in his grandfather’s pickup truck. He picked up
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Don Vroman and another friend, and they returned to the
campground, wrapped the body in a tarp, shoveled the victim’s
blood into a bucket, and placed the body and bucket in the bed of
the pickup. They drove around; and at some point went through
the drive-thru at the Titusville McDonald’s, on S. Franklin Street.
[Appellant] may have seen Marjorie’s vehicle at the police station,
on N. Franklin Street, for at about 8:45 that evening, after
dropping his friends off, he telephoned the Titusville police. He
reported that someone who came out of a camper had fired a shot
at the homeowner with a single shot shotgun, and then reloaded
it, so that the homeowner had been forced to shoot the intruder
in self-defense. [Appellant] eventually admitted to being the
“homeowner,” and was talked into turning himself in.
At the police station, [Appellant] stated that he had returned
to the campground to find his belongings scattered about the
camper. He had tried to deescalate an argument there between
Marjorie and the victim, who pushed him and then ran into the
trailer. Marjorie came running out of the trailer, followed by the
victim, who fired a shot in the opposite direction she was running.
[Appellant], thinking the victim had fired at him, retrieved his
pistol from his car. The victim ran towards him, trying to reload,
and [Appellant], in attempting to disarm him, had to shoot him to
keep from being killed.
A jury could well decide that [Appellant’s] actions following
the shooting — speeding off to collect his friends, gathering up the
victim’s blood and wrapping up the body, and driving to a fast food
restaurant with the body still lying in the bed of his grandfather’s
pickup — do not bespeak self-defense. The victim had been shot
in the back of the head, and [Appellant] admitted removing the
shotgun to the trunk of his car, and tossing the pistol out the
window along a dirt road. His account at the police station of the
victim first firing his shotgun is contradicted by eyewitness
accounts of hearing only one gunshot. [Appellant] afterwards
wrote remorsefully, “[i]f there was anything I could do to take it
back, I would without a second thought.”
A jury, moreover, could infer malice (hardness of heart), in
the context of encounters with Marjorie, in gesturing to her “oh,
well,” and premeditation from the act of retrieving a firearm from
his car, instead of driving off.9 Under these circumstances, the
possibility was real of a conviction for murder in the first degree,
and with it, life imprisonment for the 21-year-old [Appellant].
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Defense counsel thus had a reasonable basis in advising him to
plead to murder in the third degree, rather than relying at trial
upon a dubious defense of self-defense, or getting the charges
reduced to voluntary manslaughter, i.e., that [Appellant] had
been somehow provoked into shooting the victim in the back of
head. There are “no genuine issues of material fact” to which he
could testify at a hearing that might alter this conclusion.
9 Counsel noted that “[w]e have met and gone over
the definition of malice.” [N.T., 1/24/20,] at 14.
Memorandum and Order, 6/8/21, at 2-6 (record citations and footnotes 8 and
10 omitted).
Notably, Appellant’s version of events was not corroborated by any of
the other witnesses statements. N.T., 1/24/20, at 8-11. In addition,
Appellant shot the victim in the back of the head; malice may be inferred from
surrounding circumstances and the use of a deadly weapon on a vital part of
a victim’s body. See Commonwealth v. Randall, 758 A.2d 669, 675 (Pa.
Super. 2000).
It bears repeating:
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, 1013 (Pa. Super. 2016) (citations
omitted); see also Pa.R.Crim.P. 590.
Here, the Commonwealth’s detailed recitation of the facts at the plea
hearing spanned eight full pages. See N.T. 1/24/20, at 6-13. The court then
addressed Appellant:
THE COURT: Well, [Appellant], you have heard the facts as
provided by [the Commonwealth]. I am now going to ask you
whether you plead guilty or not guilty to murder of the third
degree and in conformity with the rendition of facts
provided to us by Mr. Schultz, do you plead guilty or not guilty
to Murder of the Third Degree?
APPELLANT: Guilty.
THE COURT: And did you -- did
APPELLANT: Guilty.
THE COURT: And did you -- did you indeed commit the
Murder of the Third Degree of [the victim]?
APPELLANT: Yes, Your Honor.
Id. at 14 (emphasis added).
It is well-settled that a defendant “is bound by the statements made
during the plea colloquy, and a defendant may not later offer reasons for
withdrawing the plea that contradict statements made when he pled.”
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citation
omitted). Nonetheless, Appellant claims “trial counsel was ineffective in
representing him by advising him to accept the plea offer to third-degree
murder.” Appellant’s Brief at 9. As the PCRA court correctly observed,
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“Appellant does not even assert that he was … induced to enter his guilty plea,
or that his plea was involuntary.” See Rule 907 Notice, 4/12/21, at 2 n.4. In
addition, Appellant “indicated under oath that he was satisfied with the
services of his attorney. He reportedly had expressed remorse and said, ‘I
need to be punished for it.’” Id. at 4 n.5 (record citations omitted).
Lastly, Appellant’s claim that the facts he alleged in his PCRA petition
were “not previously contained in the record,” is untrue. Appellant’s Brief at
14. When Appellant entered his guilty plea, the parties were aware Appellant
had alleged self-defense and had claimed to have no malice toward the victim.
See N.T., 1/24/20, at 4-16. As discussed above, Appellant chose to forego
those claims when he entered his guilty plea in exchange for a negotiated
sentence. “The law does not require that appellant be pleased with the
outcome of his decision to enter a plea of guilty: All that is required is that
[the] decision to plead guilty be knowingly, voluntarily and intelligently made.”
Moser, 921 A.2d at 528-29 (citation omitted).
In sum, we are unpersuaded by Appellant’s argument. Both the record
and the law provide ample support for the PCRA court’s decision to dismiss
Appellant’s PCRA petition without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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