Com. v. McGrath, J. ( 2017 )


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  • J. S02003/17
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    v.                    :
    :
    JOSEPH McGRATH,                            :         No. 1354 EDA 2016
    :
    Appellant       :
    Appeal from the PCRA Order, April 15, 2016,
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at Nos. CP-51-CR-0000658-2011,
    CP-51-CR-0000698-2011, CP-51-CR-0006929-2010
    BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 22, 2017
    Joseph McGrath appeals from the April 15, 2016 order dismissing his
    petition for relief filed pursuant to the Post-Conviction Relief Act (“PCRA”),
    42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1
    The PCRA court summarized the relevant facts and procedural history
    of this case as follows:
    In separate proceedings on March 3, 2011 and
    April 29, 2011, [a]ppellant appeared before th[e trial
    c]ourt and entered an open guilty plea to aggravated
    assault, criminal conspiracy to commit aggravated
    assault, criminal solicitation of murder, witness
    intimidation, and criminal conspiracy to commit
    witness intimidation.
    Prior to accepting [a]ppellant’s plea, th[e trial
    c]ourt conducted a proper and thorough colloquy in
    1
    The Commonwealth has not filed a brief in this matter.
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    accordance with [Pa.R.Crim.P.] 590. During each
    colloquy, [a]ppellant testified that he understood all
    of the rights he was waiving and that he was acting
    on his own free will.       Appellant was shown his
    written, guilty plea colloquy form and [a]ppellant
    confirmed his signature. Appellant affirmed that he
    was making a voluntary, knowing, and intelligent
    guilty plea by his oral responses and his signature on
    the written colloquy form.
    Having      knowingly   and understandingly
    completed the colloquy, [a]ppellant then pleaded
    guilty to the following facts:
    A.    Aggravated Assault and Related Criminal
    Conspiracy.
    On March 9, 2010, [a]ppellant attacked his
    neighbor Neil Lawn around 5:15 p.m. on the
    1800 block of East Airdrie Street in Philadelphia,
    Pennsylvania. Appellant walked over to Mr. Lawn,
    grabbed him, punched him in the face, and knocked
    him to the ground. Appellant started kicking and
    stomping at Mr. Lawn, repeating the word, “[g]ive
    me the money,” in reference to a $50 drug debt.
    Appellant     also     engaged      an    unidentified
    co-conspirator in stomping and kicking Mr. Lawn.
    Mr. Lawn’s neighbor Amber Pratt yelled at the
    perpetrators to stop and said that she was calling the
    police. Appellant threatened to kill Ms. Pratt if she
    called the cops.     Thereafter, [a]ppellant and the
    unidentified co-conspirator departed the scene in a
    vehicle. Mr. Lawn was admitted to the ICU at Erie
    Torresdale Hospital in critical condition. Mr. Lawn
    suffered from two broken ribs, four broken vertebrae
    in his back, a broken right orbital bone, a broken
    jaw, multiple facial fractures, and a punctured lung.
    Mr. Lawn was placed on a ventilator due to
    respiratory failure. Additionally, a doctor informed
    Mr. Lawn that had he sustained one more punch, he
    would have died.
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    B.    Criminal Solicitation of Murder.
    On May 1, 2010, Nicole Rosa assisted the First
    Judicial District Warrant Unit officers in setting up a
    drug purchase with [a]ppellant in order for the
    officers to apprehend him. Ms. Rosa sent [a]ppellant
    several text messages stating that she wished to
    purchase Xanax at his residence. After an exchange
    of text messages, two officers knocked on
    [a]ppellant’s door, came in the house, and arrested
    [a]ppellant.
    Appellant made several phone calls from
    prison. The calls were recorded and authenticated
    by the Philadelphia Prisons and Public Call,
    Incorporated. On May 3, 2010, [a]ppellant called his
    nephew and informed him that “Nicky set me up”
    and that he wanted her dead.        He directed his
    nephew to mix battery acid with a batch of heroin.
    That mixture was to be given to [a]ppellant’s
    accomplice in drug dealing, who would then sell it to
    Ms. Rosa. On May 11, 2010, [a]ppellant followed up
    with his nephew and the accomplice to check if the
    order was carried out. On May 19, 2010, [a]ppellant
    further communicated to his sister on how he wanted
    Ms. Rosa dead: “I want her dead—to die.”
    In August 2010, [a]ppellant realized the calls
    were recorded and declared to Lieutenant Knight, “I
    told somebody I wanted to have someone killed and
    I just found out that the telephone conversations are
    monitored. I got to see how I can get out of this.”
    Afterwards, [a]ppellant was taken to the Psych Unit.
    C.    Witness Intimidation and Related Criminal
    Conspiracy.
    On May 10, 2010, [a]ppellant met with two
    co-conspirators in prison and instructed them to
    “take care of the victim” in the aggravated assault
    case, Mr. Lawn. Appellant instructed his nephew to
    pay Mr. Lawn $500 every time he did not appear in
    court, until three times when [a]ppellant’s case
    would be thrown out per the Three Strikes Rule.
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    Mr. Lawn gave a statement to the District Attorney’s
    Office    corroborating     the    recorded     phone
    conversations and confirmed that he was physically
    approached by the nephew on three separate
    occasions and was offered $500 not to appear in
    court. Mr. Lawn also stated that on one occasion, a
    second co-conspirator pulled up his shirt, exposed
    bullet holes on his body, and told Mr. Lawn, “[t]his is
    what can happen.”
    Trial court opinion, 6/29/16 at 2-4 (citations and footnotes omitted).
    At the March 3 and April 29, 2011 guilty plea hearings, the trial court
    informed appellant of his right to withdraw his guilty plea, but he failed to
    invoke this right.2 Thereafter, on August 26, 2011, the trial court sentenced
    appellant to an aggregate term of 20 to 40 years’ imprisonment, followed by
    10 years’ probation.         On September 1, 2011, appellant filed timely
    post-sentence motions to withdraw his guilty plea and for reconsideration of
    his sentence. The trial court denied both motions that same day.
    On May 10, 2013, a panel of this court affirmed appellant’s judgment
    of sentence.    See Commonwealth v. McGrath, 
    81 A.3d 993
    (Pa.Super.
    2013) (unpublished memorandum).              Appellant did not file a petition for
    allowance of appeal with our supreme court.           On May 21, 2013, appellant
    filed   a   timely   pro    se   PCRA   petition,    and   Sharon      Meisler,   Esq.
    (“Attorney Meisler”)       was   appointed    to    represent   him.        Following
    Attorney Meisler’s removal, Sandjai Weaver, Esq. (“Attorney Weaver”) was
    2
    Appellant was represented during his guilty plea hearings and on direct
    appeal by Robert Trimble, Esq. (hereinafter, “plea counsel”).
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    appointed on January 14, 2015. On June 23, 2015, Attorney Weaver filed
    an   amended     PCRA     petition   on   appellant’s   behalf.   Thereafter,   on
    November 9, 2015, the PCRA court provided appellant with notice, pursuant
    to Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a
    hearing. Appellant did not respond, and on April 15, 2016, the PCRA court
    dismissed appellant’s petition without a hearing.            On April 28, 2016,
    appellant filed a timely notice of appeal.3
    Appellant raises the following issue for our review:
    Whether the [PCRA] court abused its discretion by
    failing to grant an evidentiary hearing, and for failing
    to permit [a]ppellant to withdraw his guilty plea
    where [plea] counsel inaccurately advised him he
    would receive a ten (10) year sentence if he entered
    a guilty plea, and where such advice caused
    [a]ppellant to enter involuntary, unknowing, and
    unintelligent guilty pleas in violation of his
    constitutional rights under the U.S. Const. Amend.,
    V, VI, and XIV and see, PA.Const. art. I, sec. 9?
    Appellant’s brief at 4.
    Proper appellate review of a PCRA court’s dismissal of a PCRA petition
    is limited to the examination of “whether the PCRA court’s determination is
    supported by the record and free of legal error.” Commonwealth v. Miller,
    
    102 A.3d 988
    , 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
    findings will not be disturbed unless there is no support for the findings in
    3
    The record reflects that appellant was not directed to file a concise
    statement of errors complained of on appeal, in accordance with
    Pa.R.A.P. 1925(b).   Nonetheless, the PCRA court filed an opinion that
    comports with the requirements of Rule 1925(a) on June 29, 2016.
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    the certified record.” Commonwealth v. Lawson, 
    90 A.3d 1
    , 4 (Pa.Super.
    2014) (citations omitted). “This Court grants great deference to the findings
    of the PCRA court, and we will not disturb those findings merely because the
    record could support a contrary holding.”            Commonwealth v. Hickman,
    
    799 A.2d 136
    , 140 (Pa.Super. 2002) (citation omitted).               In order to be
    eligible   for    PCRA    relief,   a   defendant   must   plead   and   prove   by   a
    preponderance of the evidence that his conviction or sentence arose from
    one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).               Further,
    these issues must be neither previously litigated nor waived. 42 Pa.C.S.A.
    § 9543(a)(3).
    Where the PCRA court has dismissed a petitioner’s petition without an
    evidentiary hearing, as was the case here, we review the PCRA court’s
    decision for an abuse of discretion.          See Commonwealth v. Roney, 
    79 A.3d 595
    , 604 (Pa. 2013), cert. denied, 
    135 S. Ct. 56
    (2014) (citation
    omitted). Moreover,
    the right to an evidentiary hearing on a
    post-conviction petition is not absolute. It is within
    the PCRA court’s discretion to decline to hold a
    hearing if the petitioner’s claim is patently frivolous
    and has no support either in the record or other
    evidence. 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.
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    Commonwealth v. Wah, 
    42 A.3d 335
    , 338 (Pa.Super. 2012) (internal
    citations omitted).
    Appellant contends that his guilty plea was unlawfully induced due to
    plea counsel’s ineffectiveness in “advis[ing] him he would receive a ten (10)
    year sentence if he entered a guilty plea[.]” (Appellant’s brief at 10.) We
    disagree.
    In Commonwealth v. Willis, 
    68 A.3d 997
    (Pa.Super. 2013), a panel
    of this court explained that the PCRA will provide relief to an appellant if
    ineffective assistance of counsel caused him to enter an involuntary guilty
    plea.    
    Id. at 1001-1002.
               We conduct our review of such a claim in
    accordance        with        the    three-pronged     ineffectiveness    test   under
    Section 9543(a)(2)(ii) of the PCRA.             To prevail on a claim of ineffective
    assistance of counsel under the PCRA, a petitioner must plead and prove by
    a   preponderance        of    the   evidence   that   counsel’s   ineffectiveness    “so
    undermined the truth-determining process that no reliable adjudication of
    guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
    Specifically, a petitioner must establish that “the underlying claim has
    arguable merit; second, that counsel had no reasonable basis for his action
    or inaction; and third, that [a]ppellant was prejudiced.” Commonwealth v.
    Charleston, 
    94 A.3d 1012
    , 1020 (Pa.Super. 2014), appeal denied, 
    104 A.3d 523
    (Pa. 2014) (citation omitted).                “[C]ounsel is presumed to be
    effective   and    the    burden      of   demonstrating    ineffectiveness   rests   on
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    [a]ppellant.” Commonwealth v. Ousley, 
    21 A.3d 1238
    , 1242 (Pa.Super.
    2011), appeal denied, 
    30 A.3d 487
    (Pa. 2011) (citation omitted).
    Additionally, we note that “counsel cannot be held ineffective for failing to
    pursue a meritless claim[.]” Commonwealth v. Hall, 
    867 A.2d 619
    , 632
    (Pa.Super. 2005), appeal denied, 
    895 A.2d 549
    (Pa. 2006).
    This court has explained that the entry of a guilty plea constitutes a
    waiver of all defects and defenses except lack of jurisdiction, invalidity of the
    plea, and illegality of the sentence. See Commonwealth v. Zeigler, 
    112 A.3d 656
    , 660 (Pa.Super. 2015) (citation omitted). Before a withdrawal of a
    plea will be permitted after sentencing, the appellant “must make a showing
    of prejudice amounting to manifest injustice.       A plea rises to the level of
    manifest injustice when it was entered into involuntarily, unknowingly, or
    unintelligently.”    Commonwealth v. Bedell, 
    954 A.2d 1209
    , 1212
    (Pa.Super. 2008), appeal denied, 
    964 A.2d 893
    (Pa. 2009) (internal
    quotation marks and citation omitted).        In order to ensure a voluntary,
    knowing, and intelligent plea, the trial court, at a minimum, must ask the
    following questions during the guilty plea colloquy:
    1)      Does the defendant understand the nature of
    the charges to which he or she is pleading
    guilty or nolo contendere?
    2)      Is there a factual basis for the plea?
    3)      Does the defendant understand that he or she
    has the right to a trial by jury?
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    4)    Does the defendant understand that he or she
    is presumed innocent until found guilty?
    5)    Is the defendant aware of the permissible
    ranges of sentences and/or fines for the
    offenses charged?
    6)    Is the defendant aware that the judge is not
    bound by the terms of any plea agreement
    tendered unless the judge accepts such
    agreement?
    
    Zeigler, 112 A.3d at 660
    (citation omitted); see also Pa.R.Crim.P. 590(C).
    Moreover, a defendant is bound by the statements that he makes during his
    plea colloquy.   See Commonwealth v. Yeomans, 
    24 A.3d 1044
    , 1047
    (Pa.Super. 2011).
    Upon review, we find that appellant’s claim that he was induced to
    plead guilty because of counsel’s purported ineffectiveness is belied by the
    record. As noted, a panel of this court on direct appeal found that appellant
    entered into his guilty plea “voluntarily, knowingly, and intelligently.”
    McGrath, 
    81 A.3d 993
    (unpublished memorandum at 9).               This court
    reasoned as follows:
    With respect to the requirements set forth in
    Rule 590, the record indicates the following:
    (1) [appellant] understood the charges against him;
    (2) he agreed to the Commonwealth’s summary of
    the case against him; (3) he understood his right to
    a trial by jury; (4) he understood that he was
    presumed innocent unless the Commonwealth
    proved his [sic] guilty beyond a reasonable doubt;
    (5) the court informed [appellant] that the maximum
    aggregate sentence that could be imposed for the
    crimes he was charged with was 100 years’
    incarceration and a fine of $125,000; and (6) the
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    court informed him that it was not bound by the
    terms of the plea agreement unless it accepted the
    agreement.
    
    Id. (unpublished memorandum
    at 9-10) (citations to notes of testimony
    omitted).
    This court has long recognized that “[t]he law does not require that
    [the defendant] be pleased with the outcome of his decision to enter a plea
    of guilty:   All that is required is that [his] decision to plead guilty be
    knowingly,   voluntarily   and   intelligently   made.”   Commonwealth       v.
    Anderson, 
    995 A.2d 1184
    , 1192 (Pa.Super. 2010), appeal denied, 
    9 A.3d 626
    (Pa. 2010) (citation omitted).      Because appellant’s plea was found to
    have been entered voluntarily, knowingly, and intelligently, and not due to
    any ineffectiveness on the part of plea counsel, allegations of ineffectiveness
    related to his plea may not be raised as a basis for relief. See 
    Willis, 68 A.3d at 1001-1002
    (stating, “[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.” (citation omitted; brackets in original; emphasis added)); see also
    
    Bedell, 954 A.2d at 1212
    (same). Accordingly, we affirm the PCRA court’s
    April 15, 2016 order dismissing his petition.
    Order affirmed.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/22/2017
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