Com. v. Bragg, G.

J-S36026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
GREGORY BRAGG :
:
Appellee : No. 1128 EDA 2021
Appeal from the PCRA Order Entered May 17, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000310-2013,
CP-51-CR-0010289-2012, CP-51-CR-0010290-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
GREGORY BRAGG :
:
Appellee : No. 1129 EDA 2021
Appeal from the PCRA Order Entered May 17, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000310-2013,
CP-51-CR-0010289-2012, CP-51-CR-0010290-2012
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
GREGORY BRAGG :
:
Appellee : No. 1130 EDA 2021
J-S36026-21
Appeal from the PCRA Order Entered May 17, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000310-2013,
CP-51-CR-0010289-2012, CP-51-CR-0010290-2012
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED JANUARY 28, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, which granted the
petition filed by Appellee, Gregory Bragg, pursuant to the Post Conviction
Relief Act (“PCRA”).1 For the following reasons, we reverse the order granting
PCRA relief.
This Court has previously set forth the relevant facts of this case as
follows:
[Appellee] was charged [at three dockets] with [various]
offenses in connection with two bank robberies in
Philadelphia. On May 12, 2012, [Appellee] held up the
Citizens Bank at 7327 Frankford Avenue by demanding
money from the bank teller. Once the teller placed
approximately $2,300 in [Appellee]’s bag, [Appellee]
noticed a dye pack attached to the money. [Appellee]
removed the dye pack, threw it on the floor, and fled.
Witnesses saw [Appellee] change his clothes in a nearby
alley and burn the clothes he wore in the robbery.
Several months later, on August 11, 2012, [Appellee]
entered the PNC Bank at 6855 Frankford Avenue, wearing a
red Phillies shirt, a baseball hat, sunglasses, blue surgical
gloves, and jeans. [Appellee] approached the teller,
growled “What are you looking at?,” banged on the counter,
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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and demanded money from the teller, who placed $3,700 in
[Appellee]’s bag. [Appellee] fled the bank and ran towards
a residential driveway where a wooden fence separated the
driveway from the backyard of a row home. [Appellee]
changed his clothes, poured gasoline on the clothes he wore
in the robbery, and lit them on fire.
Philadelphia Police Sergeant Dennis Johnson received a
radio dispatch to the robbery at the PNC Bank and observed
[Appellee] attempting to flee down Knorr Street. After
Sergeant Johnson began pursuing [Appellee] on foot,
[Appellee] threw the stolen money in a trashcan. When
Sergeant Johnson saw [Appellee] had a knife, he pulled out
his firearm and ordered [Appellee] to drop his weapon.
Backup officers arrived to help Sergeant Johnson place
[Appellee] in custody.
Several eyewitnesses identified [Appellee] as the
perpetrator of the robbery at PNC Bank. Later that evening,
[Appellee] gave a formal written confession, admitting he
had robbed PNC Bank. On September 7, 2012, [Appellee]
gave a similar written confession to admit he had also
committed the May 2012 robbery of Citizens Bank.
[Appellee] waived his right to a jury trial and proceeded to
a bench trial, where the trial court convicted him of [arson,
possessing instruments of crime, criminal mischief, resisting
arrest, robbery, theft, and receiving stolen property]. On
June 19, 2014, the trial court imposed an aggregate term of
ten to twenty years’ imprisonment[, which included a
mandatory minimum ten year term per 42 Pa.C.S.A. § 9714
(governing second strike offenses for crimes of violence)].
Commonwealth v. Bragg, 133 A.3d 328, 329-30 (Pa.Super. 2016), aff’d,
642 Pa. 13, 169 A.3d 1024 (2017). This Court affirmed Appellee’s judgment
of sentence on February 5, 2016, and our Supreme Court affirmed this Court’s
ruling on August 22, 2017. See id.On November 6, 2017, Appellee timely filed the current PCRA petition
pro se. The court appointed counsel, who filed an amended petition on August
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9, 2018. In the petitions, Appellee alleged, inter alia, trial counsel was
ineffective for failing to communicate a plea offer to Appellee of 7½ to 15
years’ imprisonment. In support of his claim, Appellee cited to a portion of
the sentencing transcript, during which the prosecutor referenced that
Appellee had rejected an offer of 7½ to 15 years’ imprisonment around the
time of his preliminary hearing.
The court held a PCRA hearing on March 12, 2021. Appellee testified at
the hearing that he waived his preliminary hearing in exchange for a plea
offer, but the Commonwealth later rescinded the offer when it learned that
Appellee had been charged in the second robbery case. (N.T. PCRA Hearing,
3/12/21, at 11). Appellee maintained that had trial counsel conveyed an offer
to him of 7½ to 15 years’ imprisonment, Appellee would have accepted it.
(Id. at 13). Appellee insisted he would have accepted anything less than a
mandatory sentence. (Id.) On cross-examination, however, Appellee
admitted that he rejected a plea offer of 8 to 20 years’ imprisonment. (Id. at
14-15). After Appellee’s testimony, Appellee rested.
The Commonwealth first called Alisa Shver, who was the prosecutor
assigned to Appellee’s cases. Upon reviewing her notes from the file, Attorney
Shver testified that on October 10, 2012, the Commonwealth had made a
global offer of 10 to 20 years’ imprisonment for both robbery cases. Attorney
Shver also stated that her notes showed an entry dated November 5, 2012,
stating: “O: 8-20 or 8-16 plus 4.” (Id. at 27). Attorney Shver indicated that
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“O” stood for “offer” and said that the notation signified the offer was either 8
to 20 years’ imprisonment or 8 to 16 years’ imprisonment, plus 4 years of
reporting probation. Attorney Shver reviewed another notation from
December 4, 2012, stating: “Offer to remain open.” (Id. at 28). Attorney
Shver confirmed that the offer to remain open was the offer of 8 to 20 years’
imprisonment or 8 to 16 years’ imprisonment, plus 4 years’ probation.
Attorney Shver also reviewed e-mail communication between herself and
Peter Moss from the Defender Association.2 In an e-mail dated December 4,
2012, Attorney Shver memorialized the terms of a global offer across all cases
for either 8 to 20 years’ imprisonment or 8 to 16 years’ imprisonment, plus 4
years’ probation. (Id. at 30).
Attorney Shver further reviewed an e-mail communication between
herself and Renee Sihvola from the Defender Association, dated April 16,
2013. In the e-mail, Attorney Shver explained to Attorney Sihvola (who had
just been assigned to Appellee’s case), that initially Attorney Shver and
Appellee’s prior counsel Gerald Stein had agreed to a 6-to-15-year plea
bargain, but that offer was withdrawn once Appellee was charged with the
second robbery. Attorney Shver explained that the new global offer the
Commonwealth was willing to make was 8 to 20 years’ imprisonment. (Id. at
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2 Attorney Moss was one of multiple attorneys who represented Appellee up
until the time of trial. The record indicates Appellee was initially represented
by Gerald Stein, then by Attorney Moss, then by Attorney Renee Sihvola, and
then by Attorney Paul DiMaio.
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33). Attorney Shver then reviewed a letter dated July 22, 2013 that she sent
to Appellee’s trial counsel, Paul DiMaio, which also reflected the global offer of
8 to 20 years’ imprisonment. (Id. at 35).
Attorney Shver next reviewed a portion of the sentencing transcript from
June 19, 2014, during which Attorney Shver stated: “When this case went to
a preliminary hearing, the offer was 7 and-a-half to 15.” (Id. at 36) (citing
N.T. Sentencing, 6/19/14, at 11). Attorney Shver made clear that her
statement at sentencing was a misstatement, or possibly a stenographer
error. Attorney Shver confirmed that there was never a formal offer of 7½ to
15 years’ imprisonment in this case; had there been any such offer, Attorney
Shver would have memorialized it in some type of document to defense
counsel. (Id. at 37).
On cross-examination, Attorney Shver explained that the initial offer of
6 to 15 years’ imprisonment was in exchange for Appellee waiving the
preliminary hearing and pleading guilty, but that offer was rescinded when
Appellee was arrested on the second robbery case. (Id. at 38). Attorney
Shver discussed her statement at the sentencing hearing and explained that
she made the statement when trying to inform the judge that Appellee had
not accepted responsibility and declined the Commonwealth’s earlier plea
offer. Attorney Shver contended that she meant to state at sentencing that
Appellee did not accept the earlier plea offer of 8 to 16 years’ imprisonment
plus 4 years’ probation, or 8 to 20 years’ imprisonment. (Id. at 41). Attorney
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Shver confirmed that she received an e-mail from Attorney Sihvola stating:
“Unfortunately, we won’t be able to do the 8 to 20.” (Id.) Attorney Shver
made clear: “[T]here was never for both cases an offer of less than 8 and it
was not going to be more than 20, whatever that combination could be.” (Id.
at 43-44).
The Commonwealth next called Attorney Sihvola. Attorney Sihvola
testified that the Commonwealth offered 8 to 20 years’ imprisonment for both
robbery cases, which Appellee rejected. (Id. at 49). Attorney Sihvola
asserted: “Any time I have ever received an offer as a criminal defense
attorney, I have always conveyed it to my client.” (Id.)
Paul DiMaio testified that he represented Appellee pre-trial and at trial.
Attorney DiMaio recalled the Commonwealth’s offer of 8 to 20 years’
imprisonment in this case, and that Appellee really wanted to go to trial. (Id.
at 56). Attorney DiMaio said Appellee was “very adamant” about going to
trial. (Id. at 57). Attorney DiMaio did not recall ever receiving an offer of 7½
to 15 years’ imprisonment in this case. (Id.) Attorney DiMaio said his practice
is to always go over any offers with a defendant. After Attorney DiMaio’s
testimony, the Commonwealth rested. Following argument, the court held the
matter under advisement pending the submission of post-hearing briefs.
On May 17, 2021, the court granted PCRA relief, vacated Appellee’s
judgment of sentence, and remanded for resentencing. The PCRA court also
directed the Commonwealth to re-offer Appellee the 7½ to 15-year plea
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bargain. The Commonwealth timely filed a notice of appeal at each underlying
docket on June 1, 2021. On June 3, 2021, the court ordered the
Commonwealth to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b); the Commonwealth timely complied on June
10, 2021. This Court subsequently consolidated the appeals sua sponte.
The Commonwealth raises one issue for our review:
Did the PCRA court err by ordering a new sentencing hearing
and requiring the Commonwealth to “re-offer” an alleged
plea deal for 7.5 to 15 years’ incarceration, where [Appellee]
failed to prove, and the hearing evidence in fact
contradicted, that such an offer had ever been made or that
counsel received and failed to convey it to [Appellee]; the
evidence showed that counsel did convey to [Appellee] a
plea offer of 8 to 20 years’ incarceration, which [Appellee]
rejected; and the [PCRA] court had no authority to order the
prosecutor to “re-offer” a plea?
(Commonwealth’s Brief at 4).
“Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error.” Commonwealth v. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 482, 218
A.3d 850 (2019). This Court grants great deference to the factual findings of
the PCRA court if the record contains any support for those findings.
Commonwealth v. Howard, 249 A.3d 1229 (Pa.Super. 2021). “[W]e review
the court’s legal conclusions de novo.” Commonwealth v. Prater, 256 A.3d
1274, 1282 (Pa.Super. 2021).
The Commonwealth argues that Appellee failed to meet his threshold
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burden to prove that there was a plea offer of 7½ to 15 years’ imprisonment
in this case. The Commonwealth asserts that Appellee relied entirely on
Attorney Shver’s comment at the sentencing hearing regarding a prior offer
of 7½ to 15 years’ imprisonment. The Commonwealth insists it disproved
Appellee’s claim that any such plea offer existed at the PCRA hearing. The
Commonwealth claims the record shows that the Commonwealth extended
four plea offers to Appellee during the life of this case. The Commonwealth
first offered Appellee a plea bargain of 6½ to 15 years’ imprisonment for only
one of the underlying robbery cases, but that offer was rescinded once the
Commonwealth learned of Appellee’s second robbery case. The second offer,
which encompassed both robbery cases, was for the applicable mandatory
minimum sentence of 10 to 20 years’ imprisonment. The third offer included
an option of 8 to 20 years’ imprisonment, or 8 to 16 years’ imprisonment, plus
4 years’ probation. This offer was communicated in an e-mail to Appellee’s
counsel on December 4, 2012. Finally, the Commonwealth extended an offer
of 8 to 20 years’ imprisonment in e-mails to Attorney Shivola on April 10,
2013, and to Attorney DiMaio on July 22, 2013. Appellee rejected this offer.
With respect to the comments at the sentencing hearing, the
Commonwealth highlights Attorney Shver’s testimony that there was never an
offer of 7½ to 15 years’ imprisonment and that her reference to that plea offer
was either a misstatement or a stenographer error. The Commonwealth
emphasizes Attorney Shver’s testimony that she did not recall any offer of 7½
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to 15 years’ imprisonment in this case, and had such offer been made, she
would have memorialized it in some sort of documentation. Thus, the
Commonwealth stresses that its evidence at the PCRA hearing rebutted, rather
than proved, the existence of a 7½ to 15-year offer.
Further, the Commonwealth claims that even if there was an offer of 7½
to 15 years’ imprisonment, the Commonwealth would have retained discretion
to withdraw that offer at any point before formal acceptance and approval by
the court. The Commonwealth contends the PCRA court’s remedy to
Appellee—to require the Commonwealth to re-offer the 7½ to 15-year plea
offer—overrides the Commonwealth’s prosecutorial discretion. The
Commonwealth submits Appellee was not entitled to specific performance of
an uncommunicated plea offer. The Commonwealth concludes the PCRA court
improperly granted PCRA relief in this case, and this Court must reverse. We
agree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
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a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted).
“Generally, counsel has a duty to communicate plea bargains to his
client, as well as to explain the advantages and disadvantages of the offer.”
Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa.Super. 2001), appeal
denied, 567 Pa. 739, 788 A.2d 374 (2001). “Failure to do so may be
considered ineffectiveness of counsel if the defendant is sentenced to a longer
prison term than the term he would have accepted under the plea bargain.”
Id. To succeed on a claim of ineffectiveness for failing to convey a plea offer,
the petitioner must plead and prove: “(1) an offer for a plea was made; (2)
trial counsel failed to inform him of such offer; (3) trial counsel had no
reasonable basis for failing to inform him of the plea offer; and (4) he was
prejudiced thereby.” Commonwealth v. Chazin, 873 A.2d 732, 735
(Pa.Super. 2005), appeal denied, 585 Pa. 686, 887 A.2d 1239 (2005).
To show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of
counsel’s deficient performance, defendants must
demonstrate a reasonable probability they would have
accepted the earlier plea offer had they been afforded
effective assistance of counsel. Defendants must also
demonstrate a reasonable probability the plea would have
been entered without the prosecution canceling it or the trial
court refusing to accept it, if they had the authority to
exercise that discretion under state law. To establish
prejudice in this instance, it is necessary to show a
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reasonable probability that the end result of the criminal
process would have been more favorable by reason of a plea
to a lesser charge or a sentence of less prison time.
Missouri v. Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379(2012).3 See also Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182
L.Ed.2d 398 (2012) (holding that proper remedy where defendant establishes
counsel’s ineffectiveness for advising defendant to reject more favorable plea
offer is to order state to re-offer plea agreement; presuming defendant
accepts offer, state trial court can then exercise its discretion in determining
whether to vacate convictions and resentence defendant pursuant to plea
agreement, to vacate only some of convictions and resentence defendant
accordingly, or to leave convictions and sentence from trial undisturbed;
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3 Our High Court further explained:
The prosecution and the trial courts may adopt some
measures to help ensure against late, frivolous, or
fabricated claims after a later, less advantageous plea offer
has been accepted or after a trial leading to conviction with
resulting harsh consequences. First, the fact of a formal
offer means that its terms and its processing can be
documented so that what took place in the negotiation
process becomes more clear if some later inquiry turns on
the conduct of earlier pretrial negotiations. Second, States
may elect to follow rules that all offers must be in writing,
again to ensure against later misunderstandings or
fabricated charges. … Third, formal offers can be made part
of the record at any subsequent plea proceeding or before a
trial on the merits, all to ensure that a defendant has been
fully advised before those further proceedings commence.
…
Id. at 146, 132 S.Ct. at 1408-09.
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Court’s decision leaves open to trial court how best to exercise that discretion
in all circumstances of case).
Instantly, the PCRA court explained its rationale for granting Appellee
relief as follows:
In the instant matter, trial counsel failed to give any advice
or even notify Appellee of the pre-trial offer of seven and a
half (7.5) to fifteen (15) years.
* * *
Instantly, Appellee was unaware of the aforementioned pre-
trial offer until Sentencing when the Commonwealth
revealed, “But we offered the defendant less than the [ten]
10 years. In the very beginning, when this case went to a
preliminary hearing, the offer was seven and a half [7.5] to
fifteen [15]; and knowing this was his second strike and
knowing we could have done all of this. But he rejected
that.” Sentencing N.T. at 11. Had Appellee been aware of
this pre-trial offer, there is a reasonable probability that
would have been presented to the court and accepted by
this court. Moreover, it is indisputable that this pre-trial
offer was less severe than the actual sentence imposed.
(PCRA Court Opinion, filed July 22, 2021, at 6). Our review of the record does
not support the court’s analysis.
Here, nothing in the record supports Appellee’s contention that the
Commonwealth ever made an offer of 7½ to 15 years’ imprisonment, other
than Attorney Shver’s brief mention of such an offer during her argument at
the sentencing hearing. At the PCRA hearing, Attorney Shver expressly denied
that there was an offer of 7½ to 15 years’ imprisonment in this case and
attributed her statement at the sentencing hearing to being a misstatement,
or possibly a stenographer error. Attorney Shver was clear that if there was
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an offer of 7½ to 15 years’ imprisonment in this case, she would have reduced
it to a writing. To be sure, Attorney Shver made detailed notations of the
offers in this case, none of which reflected an offer of 7½ to 15 years’
imprisonment.
Further, Attorney DiMaio testified that he did not recall an offer of 7½
to 15 years’ imprisonment in this case. Attorney DiMaio recalled only the offer
of 8 to 20 years’ imprisonment, which Appellee rejected because he really
wanted to go to trial. Attorney Sihvola also recalled the 8-to-20-year offer,
which she said Appellee rejected. Based on the testimony, attorney notes,
and e-mail correspondence in this case, the record does not support Appellee’s
assertion that the Commonwealth ever extended an offer of 7½ to 15 years’
imprisonment in this case. Therefore, Appellee failed to satisfy his burden of
proving the purported plea offer existed in this case necessary to succeed on
his ineffectiveness claim.4 See Chazin, supra. Accordingly, we reverse the
order of the PCRA court granting Appellee relief.
Order reversed. Jurisdiction is relinquished.
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4 Based on our disposition that the 7½ to 15-year plea offer did not exist in
this case, we need not decide whether the PCRA court’s remedy here was
proper.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2022
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