Com. v. Cross, D. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DERRICK CROSS A/K/A JARED AUSTIN, : No. 3280 EDA 2012
:
Appellant :
Appeal from the PCRA Order, November 5, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0306931-2004
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 08, 2014
Derrick Cross a/k/a Jared Austin1 appeals from the order of
November 5, 2012, dismissing his PCRA2 petition. We affirm.
On October 4, 2006, appellant pled guilty to third degree murder, a
instrument o
approximately five times by appellant, including in the back, buttocks, and
genitals. Appellant was sentenced to 20 t
1
real name is Derrick Cross. (Notes of testimony, 10/26/04 at 19.)
2
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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degree murder, and consecutive sentences of 2½ to 5 years for VUFA and
PIC, for an aggregate sentence of 25 to 50 years.
A post-sentence motion to withdraw his guilty plea was denied;
however, the trial court did modi
by reducing his minimum sentences on the charges of VUFA and PIC to one
year. On October 4, 2006, appellant was granted limited PCRA relief, and
was permitted to file a nunc pro tunc appeal from the judgment of
sentence. In an unpublished memorandum filed September 10, 2007, this
court affirmed judgment of sentence, and on May 20, 2008, our supreme
court denied allowance of appeal. Commonwealth v. Austin, 938 A.2d
1107 (Pa.Super. 2007) (unpublished memorandum), appeal denied, 953
A.2d 539 (Pa. 2008).
On July 30, 2008, appellant filed a timely pro se PCRA petition,
alleging that trial counsel, Jay Gottlieb, Esq., was ineffective for failing to
investigate a self-defense claim; for advising appellant that he could receive
the death penalty if he went to trial; and for waiving his right to a
pre-sentence investigation. Barbara A. McDermott, Esq., was appointed to
represent appellant, and filed a Turner/Finley -
to withdraw.3 Subsequently, Attorney McDermott was elected to the
Philadelphia County Court of Common Pleas, and current counsel,
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Robert M. Gamburg, Esq., entered his appearance.4 On August 27, 2012,
Attorney Gamburg filed a petition to withdraw, incorporating
Attorney McDermott -merit letter. On October 1, 2012, the PCRA
court issued notice pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its
proceedings. The PCRA court indicated that it acc
Turner/Finley no-merit letter and found that the claims raised in
not specifically resolve the petition to withdraw. (Docket #D23.) On
November 5, 2012, ap
On December 4, 2012, appellant, still represented by
Attorney Gamburg, filed a timely notice of appeal. On June 11, 2013,
appellant was ordered to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., by July 2, 2013,
and appellant timely complied. The PCRA court filed a Rule 1925(a) opinion
on October 2, 2013.
4
There appears to be some confusion as to whether Attorney Gamburg was
court-appointed or privately retained. The PCRA court opinion indicates that
Attorney Gamburg was retained; however, the November 5, 2012 order
pro se basis or with retained counsel. In Forma
Pauperis
at 2.) In his petition for leave to withdraw filed with this court and in his
brief on appeal, Attorney Gamburg states that he was retained. There is a
docket
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On November 19, 2013, Attorney Gamburg filed a petition to withdraw
5
as counsel and accompan Anders On January 16, 2014,
appellant filed a pro se Anders brief and
petition to withdraw, essentially alleging ineffectiveness of PCRA counsel for
failing to conduct a thorough, diligent review of the record, and instead
-merit letter.6
Initially, we recite our standard of review:
5
Attorney Gamburg has filed an Anders brief rather than a Turner/Finley
no-merit letter. Anders v. California, 386 U.S. 738 (1967). On an appeal
from the denial of a PCRA petition, a Turner/Finley letter is the appropriate
filing. However, we may accept an Anders brief instead. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004), appeal denied Anders
brief provides greater protection to the defendant, we may accept an
Anders brief in lieu of a Turner/Finley See also
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (guiding
Anders
find that he has complied substantially with the Turner/Finley
requirements. Hence, we overlook his procedural misstep.
6
We note that Attorney Gamburg failed to attach a copy of the letter to
going forward. See Commonwealth v. Friend, 896 A.2d 607, 615
petitioner a copy of the application to withdraw, which must include (i) a
- t advising the PCRA
petitioner that, in the event the [] court grants the application of counsel to
withdraw, the petitioner has the right to proceed pro se, or with the
court-appointed counsel, now Judge, McDermott, did advise appellant of his
right to proceed pro se or with privately retained counsel. In addition, this
court issued a corrective order advising appellant that he had 30 days to file
a response pro se or through privately retained counsel; and, in fact,
appellant did file a pro se
petition.
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denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
discretion to decline to hold a hearing if the
support either in the record or other evidence. Id.It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,
1239-1240 (Pa.Super. 2004).
[W]e begin with the presumption that counsel was
effective. A claimant establishes ineffective
assistance of counsel when he demonstrates that
[1] the underlying claim is of arguable merit;
[2]
grounded on any reasonable basis designed to
effe
[3]
to the client. For an action (or inaction) by counsel
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to be considered prejudicial to the client, there must
be a reasonable probability that the outcome of the
proceedings would have been different. All three
prongs of this test must be satisfied. If an appellant
fails to meet even one prong of the test, his
conviction will not be reversed on the basis of
ineffective assistance of counsel.
Commonwealth , 849 A.2d 243, 249 (Pa.Super. 2004), appeal
denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks
omitted).
effective counsel extends to the plea process, as well
as during trial
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
Commonwealth v. Allen, 833 A.2d 800, 802 (Pa.Super. 2003), quoting
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)
(internal citations omitted).
In his first issue on appeal, appellant argues that trial counsel was
ineffective for failing to investigate a self-defense claim prior to advising him
to plead guilty. Appellant gave a statement to police in which he claimed
that the victim, Gay, was reaching for something. (Notes of testimony,
10/26/04 at 13.) According to appellant, he thought Gay was reaching for a
gun and that is why he shot him. (Id. at 14.)
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The underlying issue, that appellant had a viable self-defense claim,
lacks arguable merit. The police recovered six cartridge casings from the
scene, and the victim was shot five times, including in the back and
buttocks. (Id. at 10-11.) The victim was unarmed. In fact, the victim and
appellant had been friends prior to this incident. In addition, the victim was
shot in the middle of the street, and appellant clearly violated his duty to
retreat. See 18 Pa.C.S.A. § 505(b)(2)(ii) (use of deadly force not justifiable
if the actor knows that he can avoid the necessity of using such force with
complete safety by retreating). Furthermore, appellant agreed to waive all
available defenses when he pled guilty to third degree murder. See
Commonwealth v. Montgomery, 401 A.2d 31of guilty constitutes a waiver of all nonjurisdictional defects and defenses.
When a defendant pleads guilty, he waives the right to challenge anything
omitted).
The second issue raised is that trial counsel was ineffective for
erroneously advising appellant that he could receive the death penalty if he
insisted on going to trial. There is nothing in the record to support such an
allegation. The Commonwealth never filed notice of intent to seek the death
penalty in this case. At the guilty plea hearing, appellant testified that he
was entering the plea of his own free will and that no one had made any
threats or promises to force him to plead guilty. (Notes of testimony,
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10/26/04 at 7.) Appellant is bound by the statements he made, under oath,
at his guilty plea hearing. Commonwealth v. Stork, 737 A.2d 789, 790-
791 (Pa.Super. 1999), appeal denied, 764 A.2d 1068 (Pa. 2000), citing
Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super. 1998). In addition, at
the December 2, 2004 hearing on post-sentence motions, including
-sentence motion to withdraw his guilty plea, appellant never
alleged that his attorney told him he faced the death penalty unless he pled
guilty. It is clear that appellant was simply disappointed with his sentence,
which is not a basis for withdrawal. (Notes of testimony, 12/2/04 at 3.) The
trial court asked appellant if he had anything to say and he said no. (Id. at
5.)
Most importantly, in addition to the counseled motion to withdraw his
guilty plea, appellant filed a pro se motion and memorandum of law, in
pro se motion to
modify sentence nunc pro tunc
his
Commonwealth actually supported a charge of first degree murder, which
Austin, supra at 2. By entering a
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guilty plea to third degree murder, appellant avoided a very possible life
sentence. Id.
claims trial counsel was ineffective for waiving his right to a pre-sentence
id waive his right
to a PSI report and mental health evaluation. (Notes of testimony, 10/26/04
at 17.) However, appellant cannot show how he was prejudiced where the
trial court had sufficient information to render an appropriate sentence.
Attorney Gott
good character. (Id. at 17-18.) It was established that appellant had no
prior record, and no other open cases. (Id. at 18-19.) Attorney Gottlieb
tory. (Id. at 18.) Appellant also
exercised his right of allocution and expressed his remorse for killing the
victim. (Id.
for their forgiveness, which the trial court described as a good first step.
(Id. at 24-25.) In sentencing appellant, the trial court mentioned his
remorse and lack of a prior record as mitigating factors. (Id. at 25-26.)
lack of employment history. (Id.)
It is clear that despite the lack of a PSI report, the trial court was
given sufficient evidence to determine an appropriate sentence. See
Commonwealth v. Wilkerson
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is not per se ineffectiveness for counsel to fail to request a presentence
report where, as here, the court is familiar with the defendant and heard
standard range sentence. There is no indication that a PSI report would
have resulted in a more lenient sentence. This claim fails.
In his pro se
appellant argues Attorney Gamburg is ineffective for failing to thoroughly
review the record. However, it is well established that allegations of PCRA
appeal. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)
(en banc) (citations omitted). Furthermore, for the reasons discussed
supra, we hav
ineffectiveness raised in his PCRA petition are without merit.
Appellant raises several additional issues of trial counsel
ineffectiveness in his pro se response. Appellant claims that
Attorney Gottlieb was ineffective for failing to file a pre-sentence motion to
Anders brief and
asked counsel to file a pre-sentence motion to withdraw guilty plea. In
addition, as stated above, appellant waived his right to a PSI and proceeded
immediately to sentencing.
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Appellant also claims that the trial court failed to give an adequate
definition of malice during the guilty plea colloquy. (Id. at 5-6.) This claim
is waived, as it could have been brought on direct appeal. 42 Pa.C.S.A.
§ 9544(b). Furthermore, the facts as related by the Commonwealth
obviously established malice, where appellant shot the decedent five times
including in the back.
Finally, appellant argues that the written guilty plea colloquy, which
plead guilty, I am giving up the right to defend my case. I cannot come
back to court later and say that I was not guilty. Once I plead guilty, I can
According to appellant, this statement is in conflict with the case law holding
that a pre-sentence motion for withdrawal of a guilty plea should be liberally
allowed and granted for any fair and just reason. Commonwealth v. Elia,
83 A.3d 254, 261-262 (Pa.Super. 2013) (citations omitted).
This claim is both waived and patently meritless. This claim could
have been raised on direct appeal and is not cognizable in a PCRA
proceeding. By pleading guilty, appellant waived all non-jurisdictional
defects and defenses. In addition, appellant did not file a pre-sentence
motion to withdraw his plea, so the line of cases discussing the liberal
standard for pre-sentence withdrawal of a guilty plea is inapplicable. At any
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rate, the written guilty plea colloquy form is simply trying to impress upon
defendants the rights they are giving up by pleading guilty and the finality of
the plea. It is not an inaccurate statement of the law.
PCRA petition, as well as those raised in his pro se response to PCRA
our own independent review of the record in this case, we can discern no
petition to withdraw
petition.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2014
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