Com. v. Wells, E. ( 2017 )

J-A24039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIC WELLS, :
:
Appellant : No. 518 WDA 2017
Appeal from the PCRA Order March 10, 2017
in the Court of Common Pleas of Washington County,
Criminal Division, No(s): CP-63-CR-0001922-2013
BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 14, 2017
Eric Wells (“Wells”) appeals from the Order dismissing his first Petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its Order and Pa.R.Crim.P. 907 Notice (hereinafter “PCRA Court
Order and Rule 907 Notice”), the PCRA court set forth the relevant factual
and procedural history, which we adopt for the purpose of this appeal. See
PCRA Court Order and Rule 907 Notice, 1/18/17, at 1-5.
Wells filed a Response to the PCRA court’s Order and Rule 907 Notice.
On March 10, the PCRA court entered an Order dismissing the Petition.
Wells filed a timely Notice of Appeal. Thereafter, the PCRA court filed an
1
See 42 Pa.C.S.A. §§ 9541-9546.
J-A24039-17
Opinion pursuant to Pa.R.A.P. 1925(a).2
On appeal, Wells raises the following issues for our review:
1. Was plea counsel ineffective in permitting the trial court to
participate in plea negotiations, a violation of due process, by
meeting with the trial court and the prosecution in chambers
to discuss issues of guilt, innocence, level of guilt, and an
appropriate period of incarceration before the proposed plea
agreement was entered?
2. Was [] Wells unlawfully induced into pleading guilty to
homicide generally based on the ineffective assistance of plea
counsel[,] who failed to adequately investigate or advise []
Wells regarding potential defenses[,] and erroneously advised
[] Wells that there were no available defenses when [] Wells
was intoxicated at the time of the incident and struck the
victim only one time?
3. Did plea counsel render ineffective assistance by neglecting to
adequately discuss with [] Wells his appellate rights in
conjunction with his right to withdraw his plea?
4. Whether plea counsel was ineffective in advising [] Wells to
plead guilty to robbery as either principal or an accomplice[,]
where [] Wells lacked the requisite specific intent to commit
or facilitate a robbery of either [Zach] DeCicco or [Timothy]
McNerney, which plea counsel actually argued?
Brief for Appellant at 4 (issues renumbered for ease of disposition).
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. Further, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
2
The PCRA court did not order Wells to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b)
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Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
In his first issue, Wells contends that his plea counsel was ineffective
for permitting the trial court to participate in plea negotiations. Brief for
Appellant at 16-17. Wells asserts that, “absent the trial court’s involvement
and agreement in this case, it would be absurd on its face to urge a client to
enter a plea to homicide[,] generally[,] and robbery arising out of the same
criminal episode.” Id. at 17-18. Wells claims that “it only makes sense for
an attorney to urge his client to enter such a plea if he had been made a
promise by the trial court.” Id. at 18. Wells argues that “[s]ince the trial
court ensured [sic] [plea counsel] that it would not find [] Wells guilty of
felony murder if he entered the plea proposed by the trial court, [] Wells[’s]
due process rights were violated.” Id. Wells contends that his plea counsel
“was ineffective for failing to raise this issue and, in light of
[Commonwealth v.] Evans, [252 A.2d 689 (Pa. 1969),] could have no
reasonable basis for not doing so.” Brief for Appellant at 18. Wells claims
that he suffered prejudice because, absent the trial court’s interference, his
plea counsel would not have advised him to plead guilty to both murder and
robbery, and would have instead advised Wells to plead guilty to involuntary
manslaughter or proceed to trial. Id. at 19. Wells argues that, pursuant to
Evans, a plea entered on the basis of a sentencing agreement in which the
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judge participates cannot be considered a voluntary plea. Id. at 19-20.
Wells asserts that the PCRA court incorrectly relied on Commonwealth v.
Vealey, 581 A.2d 217 (Pa. Super. 1990), in reaching its determination that
Wells suffered no prejudice relative to his Evans claim. Brief for Appellant
at 20.
In its Opinion, the PCRA court addressed Wells’s first issue, set forth
the relevant law, and determined that the issue lacks merit. See PCRA
Court Order and Rule 907 Notice, 1/18/17, at 5-6, 14-17 (wherein the PCRA
court concluded that there is no evidence of record that the trial judge was
involved in the plea negotiations between Wells, his plea counsel, and the
Commonwealth); see also id. at 17-18 (wherein the PCRA court determined
that, even if Wells had presented evidence that the trial judge was involved
in the plea negotiations, Wells suffered no prejudice, as the trial judge
declined to find Wells guilty of second-degree murder or to impose the
felony murder rule, despite evidence supporting those charges). As Wells
failed to present any evidence that the trial judge was involved in his plea
negotiations, plea counsel cannot be faulted for failing to object to the trial
judge’s participation. See Commonwealth v. Poplawski, 852 A.2d 323,
327 (Pa. Super. 2004) (holding that counsel cannot be found ineffective for
failing to pursue a baseless or meritless claim). As we agree with the
reasoning of the PCRA court, which is supported by the record and free of
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legal error, we affirm on this basis as to Wells’s first issue. See PCRA Court
Order and Rule 907 Notice, 1/18/17, at 14-17.
As Wells’s second and third issues are related, we will address them
together. In his second issue, Wells contends that he did not possess the
requisite malice to support a conviction of third-degree murder. Brief for
Appellant at 23. Wells asserts that “[n]o reasonable person, who weighs
155 pounds, and strikes a person weighing thirty pounds more than him,
reasonably expects that one punch would kill the person he struck.” Id.Citing to Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1987), Wells
claims that none of the circumstances deemed sufficiently egregious to
warrant a finding of aggravated assault in a “one-punch aggravated assault”
case were present in this case.3 Brief for Appellant at 25. Based on his
assertion that there was no evidence of malice, Wells argues that “there was
a valid defense to homicide, i.e., that the crime[,] at most[,] rose to the
level of involuntary manslaughter ….” Id. Wells contends that his plea
counsel’s advice that Wells had no viable defense was erroneous, and plea
counsel had no reasonable basis for not informing Wells that he “had a
3
In Alexander, the Court announced that the following factors can be
utilized in ascertaining whether the defendant intended to inflict serious
bodily injury by one blow: (1) if the defendant “was disproportionately
larger or stronger than the victim;” (2) whether the defendant would have
escalated his attack but was restrained from doing so; (3) whether the
defendant was in possession of a weapon; and (4) “statements before,
during, or after the attack which might indicate [defendant’s] intent to inflict
further injury upon the victim.” Alexander, 383 A.2d at 889.
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strong[,] legally valid defense to the homicide charge.” Id. at 25-26. Wells
asserts that he would not have entered his plea if plea counsel had properly
advised him. Id. at 26.
Wells further claims that the PCRA court erred by determining that
plea counsel had a reasonable basis to advise Wells to plead guilty to
homicide, generally, and robbery without the benefit of any testimony from
plea counsel. Id. at 28. Wells argues that the PCRA court also erred by
failing to make the appropriate inquiry of whether plea counsel’s advice
caused Wells to enter an unknowing and involuntary plea. Id. Wells
contends that the only explanation for plea counsel’s advice to plead guilty
to homicide, generally, and robbery based on the same set of facts is that
the trial judge promised that he would not find Wells guilty of felony murder.
Id. at 29-30. Wells asserts that the PCRA court improperly relied on
aggravated assault cases when determining the level of malice necessary for
homicide. Id. at 30.
In his third issue, Wells contends that an evidentiary hearing was
required to determine whether plea counsel had advised Wells of his right to
file a direct appeal. Id. at 33. Wells asserts that, “had counsel adequately
advised [Wells] regarding his defense to homicide[,] and that [Wells] could
have pursued an involuntary manslaughter defense, [] Wells would have
moved to withdraw his plea or never entered the plea.” Id. Wells claims
that he suffered actual prejudice because his plea counsel had no reasonable
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J-A24039-17
basis not to discuss with Wells his appellate rights, and there would have
been grounds for an appeal based on his defense to homicide. Id. at 35.
[T]o convict a defendant of the offense of third[ ]degree
murder, the Commonwealth need only prove that the defendant
killed another person with malice aforethought. This Court has
long held that malice comprehends not only a particular ill-will,
but [also a] wickedness of disposition, hardness of heart,
recklessness of consequences, and a mind regardless of social
duty, although a particular person may not be intended to be
injured.
Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (citations
omitted).
This Court has further noted:
[T]hird[-]degree murder is not a homicide that the
Commonwealth must prove was committed with malice and
without a specific intent to kill. Instead, it is a homicide that the
Commonwealth must prove was committed with malice, but one
with respect to which the Commonwealth need not prove, nor
even address, the presence or absence of a specific intent to kill.
Indeed, to convict a defendant for third[-]degree murder, the
jury need not consider whether the defendant had a specific
intent to kill, nor make any finding with respect thereto.
Id. As with other elements of crime, the trier of fact may infer criminal
intent, knowledge and recklessness from circumstantial evidence. See
Commonwealth v. Moore, 395 A.2d 1328, 1332 (Pa. Super. 1978)
In its Opinion, the PCRA court addressed Wells’s second and third
issues, set forth the relevant law, and determined that the issues lack merit.
See PCRA Court Order and Rule 907 Notice, 1/18/17, at 5-10 (determining
that “[s]pecific intent is not a required element of third[-]degree murder”
and that “the facts establish [Wells’s] intention to cause serious bodily harm
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during the confrontation.”); see also PCRA Court’s Pa.R.A.P. 1925(a)
Opinion, 3/9/17, at 2-5 (wherein the PCRA court further explained its
determination that Wells’s ineffectiveness claims regarding a defense to
third-degree murder are meritless).
Here, the evidence of record reveals that, during the course of a
robbery, Wells delivered a single punch to the victim with such force that the
victim immediately fell to the ground and struck his head. Indeed, Wells
admitted to police that he had punched the victim with such force that he
“knocked him out.” N.T., 8/14/13, at 60. We conclude that these facts
support a determination that Wells acted with a “wickedness of disposition,
hardness of heart, recklessness of consequences, and a mind regardless of
social duty” so as to satisfy the malice element of third-degree murder. See
Fisher, 80 A.3d at 1191. The fact that Wells did not intend to kill the victim
is of no consequence. Id. We therefore agree with the PCRA court’s
determination that plea counsel was not ineffective for failing to advise Wells
that he had a defense to third-degree murder, and affirm as to Wells’s
second and third issues. See PCRA Court Order and Rule 907 Notice,
1/18/17, at 5-10; see also PCRA Court’s Pa.R.A.P. 1925(a) Opinion, 3/9/17,
at 2-5.
In his fourth issue, Wells contends that, based on his plea counsel’s
statement to the trial court during sentencing that Wells had no criminal
intent to commit robbery, counsel could have no reasonable basis to advise
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Wells to plead guilty to robbery as a principal. Brief for Appellant at 32.
Wells asserts that, although plea counsel had indicated that his advice was
based on the Commonwealth’s charge of accomplice liability, an intent
element is also required for accomplice liability. Id. Wells claims that,
because he denied that he intended to commit the robbery, a valid defense
to the robbery charge existed. Id. at 33. Wells argues that, had plea
counsel explained that Wells had a defense to robbery, Wells would not have
pleaded guilty to that charge. Id.
In its Opinion, the PCRA court addressed Wells’s fourth issue, set forth
the relevant law, and determined that the issue lacks merit. See PCRA
Court Order and Rule 907 Notice, 1/18/17, at 10-13 (wherein the PCRA
court determined that the record supports Wells’s conviction of conspiracy to
commit robbery). We agree with the reasoning of the PCRA court, which is
supported by the record and free of legal error, and affirm on this basis as to
Wells’s fourth issue. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2017
-9-
Mar, 29, 2017 3: 29PM ell ed 111/16/2017 10:37 AM
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
4
v. No. CR 1922 2013
ERIC WELLS
Defendant.
ORDER
AND NOW, this 9" day of MARCH, 2017, after reviewing the Defendant's Response to
Pa,R.Crim. 907 Notice of Intent to Dismiss, it is hereby ORDERED, ADJUDGED, and
DECREED that the Defendant's. .PCRA is DISMISSED. Pursuant to Rule 910 of the
Pennsylvania Rules of Criminal Procedure, the Defendant has the right to file an appeal to the
Superior Court within thirty (30) days of this date of this order. The appeal must be flied with the
Washington County Clerk of Courts. PURSUANT TO RULE 908(E), THE DEFENDANT
SHALL BE SERVED WITH NOTICE OF THIS ORDER Bit CERTIFIED MAIL, RETURN
RECEIPT REQUESTED.
By way of Au-tiler explanation, this Court provided notice to the Defendant by way of an
Order dated January 17, 2017 that it intended to dismiss the Defendant's amended PCRA
petition without a hearing. The Court found no genuine issues of material fact based upon the
reasons act forth 14 the Order. Through his counsel, the Defendant filed a timely response to the
Court's notice of intent to dismiss. The Court finds that its January 17th Order addieises the
issues raised in both the Defendant's amended PCRA petition and response. Consequently, the
Mar. 29.2017 3:29PM
No. 1527 P. 2Cdurt need not reiterate ib reasoning in detail and will address the Defendant's response in
abridged fashion below,
The Defendant argues in his response that the Court erred in not affording him an
evidentiary hearing, The Defe:ndaraaverstthat the Court has flashioned a reasonable basis for trial
counsel's strategy, which was not clear and obvious from the record. The Defendant quotes from
Commonwealth v. McGill to support his position that "the court is not to glean, surmise, or
speculate with regard to the strategy of Counsel except In those rare instances where his strategy
is clear and obvious from the record under review," 832 A.24 1014, 1023 (Pa. 2003).
"There is no absolate right to an evidentiary hearing on a PCRA petition, and if the
PCRA court can determine from the record that no genuine issues of material fac exist, then a
hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. Ct. 2008)
(quoting Commonwealth v. Barbosa, 819 A.2d 81 (Po. Super. Ct. 2003)). "[S]uch a decision is
within the discretion of the PCRA court and. will not be overturned absent an abuse of
discretion" Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). This Court finds that trial
counsel's strategy Is clear and obvious from the record under review and that he understood the
circumstance in which the Defendant found himself.'
Trial counsel argued zealously on his client's behalf. Trial counsel pointed to Troy
Simmons as the "catalyst" of the October 14, 2013 confrontation that killed Timothy McNerney
("McNerney"). Transcript of Proceedings Held on. May 27, 2014 at p. 17: LL. 19-22. Ho
explained to Judge Borkowski that "[a]s Mr. McNerney attempted to aid his friend [Zech
DeCicco], Mr. Wells delivered, for a lack. of a better term, a sucker punch to Mr. McNerney,
causing Mr. McNerney to fall back and strike his head and die." Id. Tor these reasons, trial
The Delbudant entered into a general homicide plea on May 27, 2014 before Judge Edward Borkowski, as well as
one count of Robbery. The Commonwealth and the Defendant agreed that the Court would determine the degree of
guilt. Transcript of Proceedings Held on May21, 2014 up, 2, LL. 3445; p. 3, L. 3.
2
Mar. 29.2017 3:29PM
No, 1527 P. 3counsel argued that the Defendant should not be subject first degree murder
because the
Defendant's single punch evidenced no intention to kill.
Trial counsel also argued that the pcfendalli should not be subject to the Felony
Murder..
Rule because his client had no intention to commit a robbery? As trial counsel emphasized,
"[There, certainly, was no inept on Mr. Wells to rob anybody. ... The argument is that
this is a
one punch case, which through accomplice liability, may be a robbery, but that intent was
not
utilized until after the aggravated assauliimartalaughter. That's the argument." Id. at g, 17, IL...
,
23-24; p. 1,1. 9-13. I
In its January 17, 2017 order, the Court emphasized that the October 14, 2013 incident
started as robbery? This incident happened when Adam Hankins ("Hankins"), Simmons and the
Defendant confronted DeCicco and McNerney, The Court stated;
To reiterate, the testimony of record makes clear that the confrontation started as a
robbery when the Defendants and DcCicco and McNerney met on Maiden Street;
When. DeCicco would not give Simmons his cell phone, Simmons punched
DeCicco, who then fell to the ground and continued to get beaten by multiple
persons for 20 seconds until there was a sudden break that allowed him to escape.
See Order dated January 17, 2017, p. 13.
The entire incident began as a robbery. The intent to commit the felony had already been
formulated before any assault. took place. "When an actor engages in one of the statutorily
enumerated felonies and a killing occurs, the law, via the felony-murder rule, allows the finder of
fact to infer the killing was malicious from the fact that the actor engaged in a felony of such a
dangerous nature to human life because the actor, as held to a standard of a reasonable man,
knew or should have known that death might result from the felony," Commonwealth v. Legg,
MeNerney'a wallet and cellular phone were taken as a result of the confrontation, The Dcfendam wound up
with
Mclklatney's phone and trial counsel made that acknowledgment, Transcript of Proceedings Held on May 27, 2014
at p. 18, LL. 7-8,
3S. Transcript of Preliminary hearing Held on August 14, 2013 at pp. 18-19 (testimony of victim, Zech DeCicco).
3
Mar, 29, 2017 3:29PM
No. 1527 P. 4417 A,2d 1152, 1154 (Pa, 1980). By committing an unlawfhl
act (sucker punching McNerney) to '
assist the robbery,4 the Defendant was subject to the Felony Murder
Rule (second degree murder
'and carrying a se:ntence of life in pris*n).. See 18 Pa.P.S.A. §. 1102(b); Commonwealth 1*
A;fi,ddlOcm; 467 Aid 841, 845 (Pa. Super, Ct. 1983). A robbery that harm
is defined as a crime of violence and considered a felony of the
first degree, thereby subjecting a
L,.
perpetrator to the Felony Murder Rule. 18 Pa. C.S.A. § 2592; 42 Pa.. C,S.A. § 9714(g);
Commonwealth v, Greene, 25 A.34 359, 362 (Pa. Super. Ct. 2011);
Commonwealth v, Lambert,
795 Aid i 010, 1022 (Pa. Super. Ct. 2002),5
For the above -mentioned reasons, this Court finds PCRA counsel's
central argument-
that the facts support, at best, an involuntary manslaughter charge and that
trial counsel was
ineffective for advising the Defendant that he had no available defense-to be wide of the
mark.6
Thither, even if trial counsel did not explain involuntary manslaughter to
the Defendant, there
was no ineffectiveness because the record is clear and obvious thatthe facts do rick
support such
conviction. See Commonwealth' v, Davis, 652 Aid 885, 887 (Pa. Super, Ct, 1995) ("Vidal
counsel cannot be held. Ineffective for falling to take bile actions or to raise a meritless claim.");
see also Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001) ("Prejudice la the context of
ineffective assistance of counsel means demonstrating that there Is a reasonable
probability that,
but for counsel's error, the outcome of the proceeding would have been
different"). The
a
The Defendant became an accomplice to the robbery and accomplices are legally aeommtable
for another person's
conduct involved In the commission of crimes. 18 Pa.C.8.A. § 306(b)(3).
Thu Defendant's PCRA counsel cited Commomvealth v. Alexander,
383 Aid 887 (Pa. 1978) and Connomveulth
v. Burton, 2 A.3d 598, 604 (Pa. Super. Ct. 2010). In his
Amended PCRA. Petition to distinguish the facts therein
from those Involving his client Thervlbro, this Court addressed said cases in its
January 17. 2017 order. Therein,
this Covrt cited Barran concerning its conclusion that the Defendent's one
punch supported a finding of malice.
Now, PCRA counsel claims that Burton is nor applicable because the victim in
Swim did not die, but merely
sustained serious bodily injury.
"A potion is guilty of involuntary manslaughter when as a direct result of the
doing of an unlawful action in a
reckless or grossly nogligetu manner, or the doing of a lawilti act ion a reckless or
grossly negligent manner, he
causes the death of another person." 18 § 2504(a).
4
Mar. 29. 2017 3:30PM
No, 1527 F. 5Defendant was not convicted of either first or second degree murder and the facts as
discussed
above belles a finding that the Defendant was guilty of involuntary manslaughter.
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IN THE COURT OF COMMON PLEAS OF WASHINGTON
COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
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v. ) No. CR 1922 - 2013
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AND NOW, this 17th day of JANUARY, 2017, it is hereby ORDERED,
ADJUlTGED
and DECREED that the Defendant, Eric Wells, is served
notice of the Court's intention to
dismiss his Amended Post-Conviction Relief Act Petition without
a hearing inasmuch as the
Court finds that there are no genuine issues of material fact
based upon the reasons set forth
below.
It is further ORDERED that the Defendant's petition
will be dismissed on February 16,
2017 (no less than 30 days from the date of this order
and notice), in accordance with
Pennsylvania Rule of Criminal Procedure 907 unless the Defendant,
either representing himself
or through counsel, responds to this Order and Notice
demonstrating why the Court should not
dismiss the Defendant's petition for relief under the Post
-Conviction Relief Act ("PCRA").
PROCEDURAL HISTORY
On August 6, 2013, the Defendant was charged with
one count of Criminal Homicide (F-
1), two counts of Robbery-Inflicting Serious Bodily Injury (F-1), one
count of Criminal
Conspiracy to Promote or Facilitate Criminal Homicide and/or
Robbery (F-1), and one count of
Theft by
Unlawful Taking,
Movable Property
against two other (M-1). Identical
persons, Adam criminal charges
Hankins were filed
charges stemmed ("Hankins") and Troy
from a Simmons
confrontation occurring ("Simmons"). The
on or about
Washington wherein October 14, 2012
Timothy McNerney in the City
("McNerney") was killed
of
were taken.
and his cell
phone and wallet
The three
co-defendants and the
27, 2014 Commonwealth entered
before the into plea
Honorable Judge agreements on May
Edward
Commonwealth agreed that Borkowski. The
each defendant respective defendant
would and the
robbery. Transcript enter a general
of Proceedings plea of guilty to
Held on May homicide and
the Court 27, 2014 at pp.
would then 2-3. Further,
determine the degree as a finder of
p. 3, LL. of guilt fact,
3-5. After regarding the general
reviewing the pleas of
"pleadings, pretrial homicide. Id. at
Defendant, the pleadings, , the
Affidavits of statements of each
Probable Cause,
after hearing and the
transcript of the
arguments by the preliminary hearing"
attorneys, the Court and
guilty of third concluded that it
degree murder, as would find the
well as one defendants
13-20. In count of
addition, the Court robbery. Id. at p. 3,
set a LL. 19-24; p.
sentencing date of 23, LL.
investigation reports. Id. August 25, 2014
at p. 23, LL. and ordered
21-23. pre -sentence
At the
August 25, 2014
sentencing hearing,
25 years of the Court
incarceration for third sentenced the
degree murder Defendant to 10 to
incarceration for and a
robbery, with a 5 consecutive period
year period of of 3 to 6 years
of
Proceedings Held on probation to follow.
August 25, 2014 Transcript of
at p. 52, Sentencing
restitution as noted in LL. 3-8. In
the pre addition, the
-sentence Court imposed
of investigation report,
McNemey../d. at p. 52, travel expenses,
LL. 8-10. and funeral
expenses
2
The
Defendant did not
the file any
Superior Court. post
He did, -sentencing
motions, nor
Court however, file a did he file
appointed timely a direct
Stephen Paul, PCRA. appeal to
2016, the Esq. as petition on
case was PCRA August 31,
counsel on 2015. The
to reassigned to September
Andrew Timothy Lyon, 11, 2015.
Salemme, Esq. Esq. On On
June 30, February 23,
2016. Attorney 2016, the case
Salemme filed was
an reassigned
Amended PCRA
In his Petition on
amended October 20,
petition, the
should be Defendant claims
granted: the
following four
1. Mr. reasons for
Wells was why relief
based upon unlawfully
the induced into
investigate or ineffective
advised Mr. advise Mr. Wells assistance of pleading guilty to
plea counsel homicide
Wells that regarding who failed
intoxicated at the there were
time of the no potential to generally
2. available defenses and adequately
Attorney incident and defenses when
Mr. WellsDeRisoj, the struck the Mr.erroneously
Wells was
to plead Defendant's victim only one
where Mr. guilty to trial time.
either Mr. Wells lacked the robbery as counsel,] was
DeCicco or Mr. requisite either a ineffective in
3. specific principal or an advising
Attorney McNerney, which intent to accomplice
plea DeRiso was Mr. commit a
DeRiso robbery of
and thenegotiations, a ineffective in actually
argued.
of guilt,prosecution inviolation of duepermitting the trial
court to
an chambers to process, by
agreement was appropriate discuss meeting participate in
with the
period of issues of trial court
entered. guilt,
4. incarceration innocence, the level
Attorney before the
discuss with DeRiso proposed plea
rendered
Mr. Wells
his ineffective
assistance by
appellate rights.
Amended neglecting to
Petition for
Post adequately
-Conviction Relief,
The relief 1111.
requested by the
the Defendant is that
alternative, his he be
direct appeal permitted to
motion to rights be withdraw his
withdraw his reinstated guilty plea
guiltyplea. along with and, in
Id. 118. his right to file
a post
-sentence
3
FACTS
Three persons
testified at the
Defendant's preliminary
Warco ("Coroner hearing, Coroner S.
Warco"), Detective Timothy
Daniel Stanek
("DeCicco"). The only ("Detective Stanek"), and Zach
witness to the DeCicco
crimes committed
Hankins was DeCicco. by the
Defendant, Simmons,
According to DeCicco, and
he and
and Jefferson McNerney, two students
College, were leaving from Washington
a bar called the
Brew House at
October 4, 2012. approximately 2 a.m. on
Transcript of Preliminary
Hearing Held on
The two were August 14, 2013 at p.
walking back to 15, LL. 3-15.
Washington and Jefferson
were confronted by College on Maiden
the Defendant, Street when they
Simmons, and Hankins
Id. at p. 17, LL. near Lombardi's,
5-21. One of the an automotive
three co-defendants store.
18, LL. 19-21. asked DeCicco for his cell
DeCicco did not phone. Id. at p.
comply with the
19, LL. 9-15. demand and was then hit
DeCicco testified that in the nose. Id.
after being struck, at p.
and kicked by he went to the
what felt like more ground and was
than one person punched
for around twenty
23; p. 20, LL. 2-9. seconds. Id. at p. 19,
During the beating, LL. 8-
DeCicco was unable to
turned on determine if any of the
McNerney. Id. at p. 20, Defendants
LL. 5-7. DeCicco
testified that when he
moment," he "got up and felt "them stop
ran away." Id. at for a
p. 20, L.
was unaware of 13-14. DeCicco never
where McNerney looked back, so he
was or of his
circumstances. Id. at p. 20,
Detective Stanek of the LL. 15-20.
City of
Washington Police
the three Department interviewed
co-defendants. According DeCicco and
to Detective
Stanek, Simmons
DeCicco and confessed to
demanding his cell phone. confronting
Id. at p. 59, LL.
14-19. Further,
Simmons
acknowledged
4
that he was the
first to strike
DeCicco and that once
and Hankins DeCicco fell to the
joined the assault. Id. ground, the
Defendant
at p. 61, LL.
5-9.1
Sadly, McNerney
was killed
during the
McNerney died from confrontation-Coroner Warco
blunt force trauma testified that
to the head
homicide. Id. at p. 8, and ruled the manner
LL. 5-6. of death to be a
During the
investigation, Detective
Defendant. As recounted Stanek interviewed
by Detective the
Stanek, the
that punched Defendant admitted that he had
McNerney and been the one
"knocked him out." Id.
at p. 60, LL.
Detective Stanek that he 1-2. Further, the
got McNerney's Defendant told
cell phone from
Simmons. Id. at p.
60, LL. 9-13.
DISCUSSION OF LAW
The four grounds AND CLAIMS
for relief raised
by the
counsel. The PCRA Defendant all concern
provides relief to ineffective assistance
those individuals of
from whose convictions
"[ijneffective assistance of or sentences
counsel which, in resulted
the
undermined the truth circumstances of the
-determining process that particular case, so
no reliable
could have taken adjudication of guilt
place." 42 Pa.C.S. or innocence
§
9543(a)(2)(ii). The
interpreted this to mean Pennsylvania Supreme
that in order to Court "has
obtain relief on a
counsel, a petitioner claim alleging
must prove that ineffective assistance
(1) the claim of
arguable merit; (2) underlying the
counsel's actions ineffectiveness claim has
lacked any
resulted in prejudice reasonable basis; and
to petitioner." (3) counsel's
actions
Commonwealth v. Cox,
(citations omitted). 983 A.2d 666,
"Where it is clear 678 (Pa. 2009)
that a petitioner
has failed to
prongs... the claim meet any of the
may be disposed three, distinct
of on that basis
the other two alone, without a
prongs have been determination of whether
met."
"A chosen Commonwealth v. Steele, 961 A.2d
strategy will not be 786, 797 (Pa.
found to have 2008).
lacked a
reasonable basis
1
According to Detective unless it is proven
when hewas on the Stanek, the 'that an
ground and that Defendant told him that
August 14, 2013 at the Defendant Simmons and
p. 60, LL. did not Hankins
22-23. participate. Transcript continued to
of Preliminary beat DeCicco
Hearing Held on
5
alternative not chosen offered
a potential for
success substantially
greater than the course
actually pursued.'"
Commonwealth v. Williams, 899
A.2d 1060, 1064 (Pa.
2006) (quoting
Commonwealth v. Howard, 719
A.2d 233, 237 (Pa.
1998)). "Prejudice in the
ineffective assistance of counsel context of
means demonstrating that
there is a reasonable
but for counsel's error, probability that,
the outcome of the
proceeding would have been
Commonwealth v. Pierce, 786 A.2d different."
203, 213 (Pa. 2001).
"Finally, the law presumes
was effective and the that counsel
burden of proving that this
presumption is false rests with
Cox, 983 A.2d at 678. the petitioner."
Claims one, two, and four
in the Defendant's
amended PCRA petition are
While the Court will address interrelated.
each in turn, the Court
notes that its analysis of
the other. one claim informs
Section 2502 of the Crimes
Code defines the three
degrees of murder. With
third degree murder, the regard to
statute does not set forth
the requisite mens rea,
"[alit other kinds of murder providing only that
[that are not first degree
or second degree]
shall be murder of the
third degree." 18 Pa.C.S.
§ 2502(c). Case
law has further defined
the elements of third
murder. As explained by the degree
Pennsylvania Supreme Court:
[T]o convict a
defendant of the
Commonwealth need only prove that offense of third[ ]degree murder, the
malice aforethought. This the defendant killed
Court has long held that another person with
particular ill-will, but ... [also malice comprehends not
a] wickedness of only a
recklessness of consequences, disposition, hardness of
and a mind regardless heart,
particular person may not be of social duty,
intended to be injured. although a
Commonwealth v. Santos, 876 A.2d
360, 363 (Pa. 2005)
(alteration in original)
quotation, and emphasis (internal citation,
omitted); see also
Commonwealth v. Drum, 58 Pa.
9, 15 (1868)
(defining malice as quoted
above). The Pennsylvania
Supreme Court has further
noted:
6
[T]hird degree murder is not a homicide
that the Commonwealth must prove
committed with malice and without a was
specific intent to kill. Instead, it is
homicide that the Commonwealth must a
prove was committed with malice,
one with respect to which the but
Commonwealth need not prove, nor even address,
the presence or absence of a specific
intent to kill. Indeed, to convict a
for third degree murder, the jury defendant
need not consider whether the
specific intent to kill, nor make any finding defendant had a
with respect thereto.
Commonwealth v. Meadows, 787 A.2d 312, 317
(Pa. 2001) (quoting
Young, 748 A.2d 166, 174-75 (Pa.
1999)). Commonwealth v.
To summarize, third degree murder
is an intentional act that is
characterized by malice and
results in death, intended or not.
Commonwealth v. Fisher, 80 A.3d 1186,
1193 (Pa. 2013).
The Defendant acknowledged that he
punched the decedent, but argues that
he merely
punched him one time and that case law
demonstrates that one punch cannot support
a charge of
homicide. At the May 27, 2014 hearing
when the Court entered its verdict,
Attorney DeRiso
(plea counsel) stated on behalf of the
Defendant, "Mr. Wells is the individual
who threw that
fatal punch to that young man that
evening." Transcript of Proceedings Held
on May 27, 2014 at
p. 16, LL. 24-25. Further,
Attorney DeRiso emphasized that
"after Mr. McNerney fell to the
ground, he was not touched. He was not
struck thereafter." Id. at p. 17, L.
25; p. 18, L. 3.
Moreover, "Where was no intent on the part of
Mr. Wells to kill Mr.
McNerney." Id. at p. 17,
LL. 22-23. The Defendant argues that
a solitary punch is not sufficient
to sustain a conviction for
third degree murder based on the absence
of any intent to cause serious bodily
harm. Rather, the
Defendant believes that there is only
sufficient evidence for a plea to
an involuntary
manslaughter charge, and therefore Attorney
DeRiso's advice that the Defendant
had no viable
defenses was erroneous.2
2 A person is guilty
of involuntary manslaughter when as a
or grossly negligent manner, or the direct result of the doing of an
doing of a lawful act in a reckless unlawful act in a reckless
death ofanother person. 18 Pa.C.S. or grossly negligent manner, he causes the
§ 2504(a).
7
To support his argument, the Defendant points to Commonwealth v. Alexander. In
Alexander, the defendant walked up to the victim on a street corner and punched the
victim once
in the face, breaking his nose. 383 A.2d 887 (Pa. 1978). The defendant
was convicted of
aggravated assault. On appeal, the Supreme Court reversed the judgment of sentence,
holding:
"While there can be no dispute about the physiological significance of the head, where the
victim
did not actually sustain the requisite serious bodily injury, we cannot say that the
mere fact that a
punch was delivered to that portion of the body is sufficient, without more, to support
a finding
that appellant intended to inflict serious bodily injury." Id. at 889.The Defendant in
the present
case analogizes to the facts in Alexander to contend that delivering a single
punch and then
walking away cannot evince the malice necessary to establish third degree murder.
This Court
finds that Alexander is not dispositive because the case does not address the
facts at bar-
namely, unlike the victim in Alexander, McNerney sustained serious bodily injury
as a result of
the punch to the point of death.
In "one punch" cases involving victims that did sustain serious bodily injury,
the Superior
Court has found the requisite intent to support the charge of aggravated
assault. In
Commonwealth v. Patrick, two witnesses saw the accused approach the victim from the
side as
the victim walked along the street with his hands in his pockets. 933 A.2d
1043, 1044 (Pa. Super.
Ct. 2007). The victim did not see the accused approach him. Without
warning, the accused
punched the victim one time in the side of his head with enough force to knock the
victim off of
his feet. The victim spent about two days in a coma due to severe brain
trauma. The Superior
Court found that the "Commonwealth's evidence at the preliminary hearing
demonstrated [the
defendant] inflicted an assault on the victim with reckless indifference under
circumstances
which virtually assured serious bodily injury." Id. at 1047. In making this
finding, the Superior
8
Court pointed to the fact that the punch was a surprise attack that "knocked the defenseless and
unsuspecting victim off of his feet without reflexive protection, causing the victim to strike his
head on the concrete." Id.Similarly, Commonwealth v. Burton involved a victim that sustained serious bodily injury
as a result of being caught unawares by a single punch. 2 A.3d 598 (Pa. Super. CL 2010). There,
the Superior Court found sufficient evidence of intent to cause serious bodily injury,
emphasizing the fact that the victim was unprepared when he was struck. As explained by the
Burton court:
The fact that the victim was caught unaware is further supported by the severity of
Mr. Price's injuries. As stated above, the victim suffered brain trauma as well as
two facial and two spinal fractures. Indeed, throughout his brief, Appellant insists
that the fall, rather than his punch, caused [the victim's] life-threatening damages.
Patrick, supports the conclusion that such evidence was sufficient to establish that
Appellant had the requisite mens rea to sustain a conviction for aggravated
assault.
Id. at 604.
After a thorough review of the record and considering the above case law, this Court
concludes that the facts support the trial court's verdict of third degree murder. The one punch
delivered by the Defendant to McNerney did not take place in a vacuum. As Attorney DeRiso
said, "Mr. Wells delivered, for a lack of a better term, a sucker punch to Mr. McNerney, causing
Mr. McNerney to fall back and strike his head and die." Transcript of Proceedings Held
on May
27, 2014 at p. 17, LL. 19-22. Like the victims in Patrick and Burton, McNerney sustained
serious bodily injury as a result of being punched without warning rendering him unconscious
and unable to protect his head from striking the ground. Echoing the Superior Court in Burton,
the fact that McNerney was caught unawares is supported by the severity of his injuries, which
were ultimately fatal. That the Defendant did not intend to kill McNerney when he punched him
9
does not alter this Court's conclusions. Specific intent is not a required element of third degree
murder; the facts establish the Defendant's intention to cause serious bodily harm during the
confrontation. Accordingly, the Court finds that the Defendant's PCRA claim that Attorney
DeRiso's advice with respect to the plea had no reasonable basis is without merit.
With respect to the Defendant's alleged intoxication supporting a plea or conviction of
involuntary manslaughter, this Courtfinds that the law is not on his side.
Where the question of intoxication is introduced into a murder case its only effect
could be to negate the specific intent to kill which is required for a finding of
murder of the first degree.... If intoxication does render an accused incapable of
forming the necessary intent the result is to reduce the crime to a lesser degree of
murder. In no event does the reduction change the character of the crime from
murder to manslaughter.
Commonwealth v. Breakiron, 571 A.2d 1035, 1041 (Pa. 1990) (quoting
Commonwealth v. England, 375 A.2d 1292, 1301 (Pa. 1977)).
For the above reasons, the Court finds that the Defendant's first claim in his amended
PCRA
petition lacks merit.
Even if the Commonwealth were unable to prove the requisite intent to convict the
Defendant of third degree murder based upon the aforementioned, this Court finds that the record
supports a conviction of second degree murder. "A criminal homicide constitutes murder
of the
second degree when it is committed while defendant was engaged as a principal or
an
accomplice in the perpetration of a felony." 18 Pa. C.S.A. § 2502(b); see Commonwealth v.
Miller, 35 A.3d 1206, 1212 (Pa. 2012). "Perpetration of a felony" is statutorily
defined, inter
alia, as "[t]he act of the defendant in engaging in ... the commission of, or an attempt to commit,
... robbery...." 18 Pa.C.S. § 2502(d).
Based upon the testimony of record, it is clear that the confrontation started as a robbery.
This was according to DeCicco's testimony and Simmons confession to Detective
Stanek.
10
Simmons demanded DeCicco's cell phone. When DeCicco would not provide Simmons with the
phone, Simmons punched DeCicco, who then fell to the ground and continued to get beaten by
multiple persons for 20 seconds. Sometime after the initial punch to DeCicco, the Defendant
punched McNerney who then fell to the ground and subsequently died. According to Detective
Stanek, none of the Defendant's took responsibility for "physically" taking McNerney's cell
phone. Transcript of Preliminary Hearing Held on August 14, 2013 at p. 61, LL. 10-13. The
Defendant, however, did come into possession of McNerney's cell phone. According to the
Defendant, he took the cellphone from Simmons at Hankins' residence. Id. at p. 61, LL. 14-21.
Attorney DeRiso confirmed at the May 27, 2014 hearing that "my client did end up with that cell
phones [sic]." Transcript of Proceedings Held on May 27, 2014 at p. 18, LL. 7-8.
Whether the Defendant picked up McNemey's cell phone at the time of the confrontation
or got it from Simmons at Hankins' house is immaterial to the Court's conclusion regarding
second degree murder. Even if the Defendant were not the person who picked up the cell phone
at the scene, the record supports a charge of conspiracy to commit robbery. A person is guilty of
conspiracy with another person or persons to commit a crime if with the intent of promoting or
facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage
in conduct which constitutes such crime or an attempt or solicitation to commit such
crime; or
(2) agrees to aid such other person or persons in the planning or commission of such
crime or of an attempt or solicitation to commit such crime.
18 Pa.C.S.A. § 903(a).
The Commonwealth must prove that: 1) the defendant entered into an agreement with another
person to commit or aid in the commission of a crime; 2) he shared the criminal intent with that
other person; and 3) an overt act was committed furthering the conspiracy. Commonwealth v.
11
Devine, 26 A.3d 1139, 1147 (Pa. Super. Ct. 2011). "This overt act need not be committed by the
defendant; it need only be committed by a co-conspirator." Commonwealth v. Murphy, 795 A.2d
1025, 1038 (Pa. Super. Ct. 2002) (citation omitted).
The essence of a criminal conspiracy is a common understanding, no matter how
it came into being, that a particular criminal objective be accomplished.
Therefore, a conviction for conspiracy requires proof of the existence of a shared
criminal intent. An explicit or formal agreement to commit crimes can seldom, if
ever, be proved and it need not be, for proof of a criminal partnership is almost
invariably extracted from the circumstances that attend its activities. Thus, a
conspiracy may be inferred where it is demonstrated that the relation, conduct, or
circumstances of the parties, and the overt acts of the co-conspirators sufficiently
prove the formation of a criminal confederation. The conduct of the parties and
the circumstances surrounding their conduct may create a web of evidence linking
the accused to the alleged conspiracy beyond a reasonable doubt. Even if the
conspirator did not act as a principal in committing the underlying crime, he is
still criminally liable for the actions of his co-conspirators in furtherance of the
conspiracy.
Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa. Super. Ct. 2006) (citation omitted).
An accomplice is also legally accountable for another person's conduct involved in the
commission of crimes. 18 Pa.C.S.A. § 306(b)(3). The Crimes Code defines an accomplice as
follows:
A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or
committing it; or
(2) his conduct is expressly declared by law to establish his complicity.
18 Pa.C.S.A. § 306(c).
"Both requirements may be established wholly by circumstantial evidence. Only the least degree
of concert or collusion in the commission of the offense is sufficient to sustain a finding of
responsibility as an accomplice. No agreement is required, only aid." Commonwealth v.
12
Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. Ct. 2005) (en bane) (citations and quotations
omitted). "[Piroof of a criminal partnership is almost invariably extracted from the circumstances
that attend its activities." Id. at 1253-54 (citation omitted).
To establish complicity, mere presence at the scene of a crime and knowledge of
the commission of criminal acts is not sufficient. Nor is flight from the scene of a
crime, without more, enough. However, those factors combined, along with other
direct or circumstantial evidence may provide a sufficient basis for a conviction,
provided the conviction is predicated upon more than mere suspicion or
conjecture.
Commonwealth v. Rosetti, 469 A.2d 1121, 1123 (Pa. Super. Ct. 1983) (citations omitted).
To reiterate, the testimony of record makes clear that the confrontation started as a
robbery when the Defendants and DeCicco and McNerney met on Maiden Street. When DeCicco
would not give Simmons his cell phone, Simmons punched DeCicco, who then fell to the ground
and continued to get beaten by multiple persons for 20 seconds until there was a sudden break
that allowed him to escape. Although Attorney DeRiso pointed to Simmons as the "catalyst" he
explained that "[a]s Mr. McNerney attempted to aid his friend [Zach DeCicco], Mr. Wells
delivered, for a lack of a better term, a sucker punch to Mr. McNerney, causing Mr. McNemey to
fall back and strike his head and die." Transcript of Proceedings Held on May 27, 2014 at p.
17,
LL. 19-22. In addition, the Defendant had McNerney's cell phone after DeCicco and
McNerney
were beaten. Therefore, the record reflects that the Defendant, at the very least, committed
an act
furthering the initial intended crime of robbing a person of their cell phone. Because Mr.
McNerney died as a result of the Defendant's punch, the Defendant was subject to a verdict of
second degree murder. Accordingly, the Court finds that the Defendant's second claim in his
amended PCRA petition lacks merit. Concomitantly, the Court finds that the Defendant has
failed to establish that plea counsel's actions resulted in prejudice-the Defendant received a
13
much lower sentence for third degree murder than he would have if convicted for second degree
murder.
With respect to the Defendant's third claim that Attorney DeRiso was ineffective in
permitting the trial court to participate in plea negotiations by meeting with the trial court and the
prosecution in chambers before the proposed plea agreement was entered, the record does not
reflect a violation of the Defendant's due process rights. The Defendant claims that the trial
judge, Edward Borkowski, was impermissibly involved in plea negotiations and supports his
argument by stating that "it would be absurd on its face to urge a client to enter a plea to
homicide generally and robbery arising out of the same criminal episode. This is because the
defendant would receive no benefit to pleading guilty since he would be subjected to life
imprisonment for felony murder, the same period of incarceration if he went to trial and was
found guilty of first -degree murder." See Defendant's Brief in Support of Amended PCRA
Petition at p. 20. According to the Defendant, Attorney DeRiso's fear that he "would be
convicted of robbery if he went to trial, subjecting him to second degree murder can only be
reconciled with urging him to plead guilty to robbery if the trial court improperly engaged in plea
negotiations and promised it would not find felony murder." Id. at p. 20 n.5.
The Defendant cites the case of Commonwealth v. Evans, 252 A.2d 689 (Pa. 1969) to
further his position. Therein, the Pennsylvania Supreme Court stated, "We feel compelled to
forbid any participation by the trial judge in the plea bargaining prior to the offering of a guilty
plea." Id. at 691 (emphasis in original). The High Court came to this conclusion for three
reasons:
First, the defendant can receive the impression from the trial judge's participation
in the plea discussions that he would not receive a fair trial if he went to trial
before the same judge. Second, if the judge takes part in the pre-plea discussions,
he may not be able to judge objectively the voluntariness of the plea when it is
14
I .
entered. Finally, the defendant may feel that the risk of not going along with the
disposition which is apparently desired by the judge is so great that he ought to
plead guilty despite an alternative desire.
Id. at 691-92.
Importantly, the Evans opinion discusses with approval the ABA Minimum Standards
that preclude a judge from participating in the plea bargaining process before a plea bargain or
agreement has been reached between the prosecution and the defense. The Standards state that
the trial judge may be informed of the final bargain once it has been reached by the parties and
before the guilty plea is formally offered. Id. at 691 n.1. There is nothing prohibiting the trial
judge from then indicating to the prosecuting attorney and defense counsel whether he will
concur in the proposed disposition.
Herein, the record of the May 27, 2014 hearing does not reflect any participation by the
trial judge prior to a plea bargain or an agreement being reached by the parties. Specifically, at
the very beginning of the proceeding, Judge Borkowski introduced the parties and their
respective attorneys. Immediately thereafter, the judge states, "The parties, after substantial
preparation and discussion, have reached an agreement." Transcript of Proceedings Held on May
27, 2014 at p. 2, LL. 15-16. The attorneys representing the co-defendants and the
Commonwealth then respond in the affirmative to the Court, which was that the Defendant
would plead to one count of Robbery and one count of Homicide wherein the Court would
determine the degree. Id. at pp. 2-3. Thereafter, the Court tells the attorneys that it "will listen to
argument from counsel as to the proper degree of guilt." Id. at p. 3, LL. 15-17. In sum, the
Defendant argued that he had no "intent" as an accomplice at the May 27, 2014 hearing. As
Attorney DeRiso emphasized, "[T]here, certainly, was no intent on Mr. Wells to rob anybody....
The argument is that this is a one punch case, which through accomplice liability, may be a
15
robbery, but that intent was not utilized until after the aggravated assault/manslaughter. That's
the argument." Id. at p. 17, LL. 23-24; p. 18, LL. 9-13.
In return, the Commonwealth, through First Assistant District Attorney, Chad Schneider,
argued to the Court that DeCicco and McNerney were a "mark for a robbery from these three
Defendants. And that doesn't happen unless all these Defendants were involved." Id. at p. 19,
LL. 21-24. Mr. Schneider goes on to state that "things do not happen in a vacuum. This was all
part of one occurrence. Zachary DeCicco was approached. He was asked for his phone and his
wallet. He did not comply, and he was beaten by the Defendants." Id. at p. 20, LL. 6-10. Then,
Mr. Schneider noted that McNerney was then hit and robbed of his cell phone and wallet. Id. at
p. 20, LL. 11-14. Consequently, Mr. Schneider emphasized that the "natural and probable
consequence of a robbery is a death, and that's actually contemplated in the Felony Murder Rule,
that if somebody dies in the course of a robbery, in the furtherance of a robbery, then it falls
under the Felony Murder Rule." Id. at p. 18-23.
Based upon the aforementioned, the record belies involvement by the trial judge in
fashioning a verdict. Mr. Schneider argued that the Court impose the Felony Murder Rule, which
is second degree murder that carries a sentence of life in prison. 18 Pa.C.S.A. § 1102(b).
Furthermore, the statute governing the Pennsylvania Board of Probation and Parole instructs that
the Parole Board may not parole an inmate serving life imprisonment. 61 Pa.C.S.A. § 6137(a)(1).
And, Judge Borkowski clearly stated that, "The Court has to consider a verdict of 2" Degree
Murder...," acknowledging that the defendants "have exposure" to a 2nd Degree Murder verdict.
Transcript of Proceedings Held on May 17, 2014 at p. 22, LL. 8-9; p. 23, LL. 7-9. The Court,
however, did not accept the Commonwealth's argument for imposing such a sentence. Judge
Borkowski stated,
16
I i P
The Court will enter, consistent with my evaluation in this case, in addition to the
verdict of Robbery on each Defendant, will enter verdict as to Eric Wells, 3"1
Degree Murder; as to Troy Simmons, 3"I Degree Murder; and as to Mr. Hankins,
3"1 Degree Murder. Of course, the remaining charges will be dismissed pursuant
to the agreement of the parties to proceed in this posture.
Id. at p. 23, LL. 13-20.
Nevertheless, even if the trial judge were somehow involved in plea agreement
negotiations, the Defendant did not articulate how he was prejudiced. The Defendant
merely states that he is entitled to withdraw his plea. See Defendant's Brief in Support of
Amended PCRA Petition at p. 21. In the case of Commonwealth v. Vealey, 581 A.2d. 217
(Pa. Super. Ct. 1990), the appellant was sentenced to one term of incarceration of life
imprisonment; he did not file a direct appeal. Eighteen years later, however, the appellant
filed a PCHA (now known as a "PCRA") petition. Among other things, the appellant
argued that he should be allowed to withdraw his plea because his due process rights
were violated. More specifically, he alleged that the trial judge "participated in an ex
parte plea bargaining negotiation with defense counsel, entering a private plea agreement
and failing to advise the defendant of the existence of such agreement until eighteen (18)
years later." Id. at 218.
The Vealey Court discussed Evans, but did not find that the appellant's due
process rights were violated.
[A]ssuming that the agreement in question actually did exist, we have carefully
reviewed the record and the parties' briefs, and find no evidence that appellant
was prejudiced by it in any way, as he was unaware of it, and there is no
suggestion as to how it adversely affected counsel's stewardship. Under these
circumstances, we are satisfied that, although the court may have acted
erroneously in appearing to enter into an arrangement with trial counsel, that error
did not result in prejudice to appellant. Therefore, appellant's argument that he
should be allowed to withdraw his plea because of the alleged agreement between
trial counsel and the court is meritless.
17
1
Id. at 221.
It is clear to this Court, just as it was to Judge Borkowski, that the Defendant herein has
"exposure" to a second degree murder conviction based upon the record. The sentence for
second degree murder is life without parole. The trial court did not impose this sentence. Instead,
the trial court imposed a third degree murder verdict on the Defendant, as well as a single count
of Robbery. As a result, the Defendant was sentenced to 10-25 years of incarceration for the third
degree murder finding and a consecutive period of 3-6 years of incarceration for the robbery
charge, with a 5 year period of probation to follow. Therefore, the Defendant was not prejudiced
and, in turn, the Defendant has failed to satisfy the standard for relief based on ineffective
assistance of counsel.
BY THE COURT,