Com. v. Andrews, E.

J-S58025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD STEPTOE ANDREWS
Appellant No. 660 MDA 2015
Appeal from the PCRA Order March 19, 2015
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000266-2013
BEFORE: GANTMAN, P.J., OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 07, 2015
Appellant, Edward Steptoe Andrews, appeals from the order entered
on March 19, 2015, dismissing his petition filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9141-9146. After careful review, we
affirm.
The PCRA court briefly summarized the facts and procedural history of
this case as follows:
On April 26, 2013 in South Renovo Borough, Clinton
County, Pennsylvania, [Appellant] discharged a firearm nine
(9) times through a door that [Appellant] knew Alma
Antram was behind. Alma Antram was struck four (4) times
and required medical treatment. At the same time and
place, [Appellant] threw a twelve (12) inch fixed blade knife
that struck Douglas Antram in the foot, causing him to
receive medical treatment. [Appellant] had a blood alcohol
content of .249 at the time of the aforementioned events.
[Appellant] entered pleas of nolo contendere to [c]riminal
[a]ttempt/[h]omicide and [a]ggravated [a]ssault for [his]
* Retired Senior Judge assigned to the Superior Court.
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actions against Alma Antram. [Appellant also] entered a
plea of nolo contendere for [his] actions against Douglas
Antram.
* * *
[Appellant] was sentenced [to an aggregate term of 21 to
42 years of imprisonment] on the aforementioned counts on
November 25, 2013. On December 12, 2014, [Appellant]
filed a PCRA petition []. [Appellant’s] petition allege[d]
ineffective assistance of counsel in connection with the plea
negotiations and ineffective assistance of counsel during the
plea colloquy. […] A hearing on this matter was held on
March 11, 2015 [wherein trial counsel and Appellant
testified].
PCRA Court Opinion, 3/19/2015, at 1-2. The PCRA court denied relief by
order and opinion entered on March 19, 2015. This timely appeal resulted.1
On appeal, Appellant presents the following issues for our review:
1. Whether defense counsel’s performance was deficient
when he did not ensure that [Appellant] understood the
elements of the offenses to which he was pleading nolo
contendere and whether the deficient performance
caused prejudice because there was a reasonable
probability that, but for the attorney incompetence,
[Appellant] would not have pled nol[o] contendere but
instead would have insisted on a jury trial?
2. Whether defense counsel’s performance was deficient for
failing to advise [Appellant] that he had a defense of
voluntary intoxication and whether there was a
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1
On April 14, 2015, Appellant filed a notice of appeal. On April 15, 2015,
the PCRA court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely on May 4, 2015. On May 5, 2015, the PCRA court
filed an opinion pursuant to Pa.R.A.P. 1925(a), relying upon its earlier
decision entered on March 19, 2015.
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reasonable probability that [Appellant] would have
insisted on a jury trial had he known of the defense?
Appellant’s Brief at 1-2 (complete capitalization omitted).2
In his first issue presented, Appellant claims that defense counsel
provided ineffective assistance of counsel for failing to ensure Appellant
understood the elements of the offense of attempted murder prior to
entering a nolo contendere plea to that crime. Id. at 15-24. More
specifically, Appellant contends that defense counsel was ineffective for
failing to inform Appellant “that the charge of attempt to commit criminal
homicide requires the element of specific intent to kill.” Id. at 13. Appellant
avers that although he admitted to firing through a door in the direction of
Alma Antram’s feet, a non-vital part of her body, he did not admit to
intending her death. Id. at 19. He alleges “neither the [g]uilty [p]lea
[s]tatement, nor the trial judge, nor defense counsel informed [Appellant]
that the mens rea required for attempted [] murder was the same as for
first[-]degree murder.” Id. Appellant maintains, “[d]efense counsel’s
testimony [at the PCRA hearing] revealed that [defense counsel] was not
aware that specific intent to kill was required to enter a nolo plea to the
charge of attempted murder[]” and, instead, “misadvised [Appellant] that he
could be guilty of attempted murder if he acted negligently or recklessly.”
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2
On August 21, 2015, Appellant filed a motion for enlargement of time to
file his reply brief. As we received Appellant’s reply brief in time to review it
before rendering this decision, we grant Appellant’s motion and consider his
reply brief to be timely filed.
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Id. at 19-20. Thus, he contends his plea was not made knowingly,
intelligently or voluntarily. Id. at 23-24.
Our standard of review is well-settled. “As a general proposition, we
review a denial of PCRA relief to determine whether the findings of the PCRA
court are supported by the record and free of legal error.” Commonwealth
v. Eichinger, 108 A.3d 821, 830 (Pa. 2014). “Counsel is presumed
effective, and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel's performance was deficient and that such
deficiency prejudiced him.” Commonwealth v. Perzel, 116 A.3d 670, 671
(Pa. Super. 2015) (internal citation omitted). “Accordingly, to prove plea
counsel ineffective, the petitioner must demonstrate that: (1) the underlying
legal issue has arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) the petitioner was prejudiced by counsel's act or
omission.” Id. at 671-672. “A claim of ineffectiveness will be denied if the
petitioner's evidence fails to satisfy any one of these prongs.” Id. at 672.
A valid plea colloquy must delve into six areas: 1) the nature of the
charges, 2) the factual basis for the plea, 3) the right to a jury trial, 4) the
presumption of innocence, 5) the sentencing ranges, and 6) the plea court's
power to deviate from any recommended sentence. Commonwealth v.
Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (en banc) (citation
omitted).
“Our Supreme Court has repeatedly stressed that where the totality of
the circumstances establishes that a defendant was aware of the nature of
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the charges, the plea court's failure to delineate the elements of the crimes
at the oral colloquy, standing alone, will not invalidate an otherwise knowing
and voluntary guilty plea.” Id. (citations omitted). Moreover, this Court
recently determined, “the trial court's failure to explain the elements of the
offense on the record does not constitute per se prejudice[].”
Commonwealth v. Molina, 2015 WL 6164878, at *4 (Pa. Super. 2015). In
Molina, we determined when an appellant “acknowledged in the written
[plea] colloquy that he discussed with plea counsel the elements of each
charged offense, the factual basis for each charged offense, and how the
facts in his case prove the elements of each charged offense[,]” the plea was
knowing, intelligent and voluntary. Id. (internal quotations and brackets
omitted). Finally, we note, “[d]efendants are obligated to respond truthfully
to the court's inquiries during a guilty plea colloquy.” Commonwealth v.
Rogers, 483 A.2d 990, 993 (Pa. Super. 1984). “A guilty plea will not be
withdrawn where the defendant lies during the colloquy and subsequently
alleges that his lies were improperly induced by counsel.” Id.Here, Appellant signed a written colloquy prior to entering his plea,
which stated, in pertinent part:
Admission of Guilt or No Contest and Penalties
I understand and agree that I am pleading guilty or nolo
contendere to the crimes listed below. I understand, and
my lawyer has explained to me, the elements of these
crimes and the possible penalties for them. By pleading
guilty, I agree and admit that I committed each element of
these crimes, or by pleading nolo contendere. I do not
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contest that I committed each element of these crimes. I
agree that the Commonwealth can prove that I committed
each element of these crimes beyond a reasonable doubt. I
am pleading nolo contendere to the following crimes:
A.) Count 1: Criminal Attempt-Homicide, felony of
the first-degree, and the maximum penalty for
this crime is 40 years in jail and a $25,000.00
fine.
Guilty Plea Statement, 10/30/2013, at 6. In addition to signing the written
colloquy, Appellant initialed this paragraph twice.
Moreover, Appellant initialed paragraph 32 of the written colloquy,
which states:
I have had enough time to fully discuss my case and my
decision to plead guilty or nolo contendere and everything
contained in this Guilty Plea Statement with my lawyer, and
by placing my initials on all of the lines provided, I am
saying that I understand, agree with, and answered
truthfully, everything contained in this Guilty Plea
Statement.
Id. at 8.
Upon review of the notes of testimony from the plea hearing, there is
no dispute that neither defense counsel nor the trial court set forth the
specific elements of attempted homicide on the record. The trial court,
however, engaged in the following exchange at the plea hearing:
The Court: I’ve been told you’re going to plead no
contest to three different charges. Those charges are
attempted homicide of Alma Antram, aggravated assault of
Alma Antram, and aggravated assault of Douglas Antram.
Is that what your understanding is going on here today?
[Appellant:] Yes, sir.
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The Court: The first thing I need to tell you is a no
contest plea, what you’re telling me to do is to accept the
facts that are alleged in the charging documents as true,
that you are not contesting them, that they suffice to find
you guilty of the charges and that I should go ahead and
sentence you as if you pled guilty or were found guilty. Do
you understand that?
[Appellant:] Yes, sir.
The Court: I also have to tell you that the information
that you’re telling me to accept as true concerning Count 1,
criminal attempt/homicide is that – the facts would be that
you’re telling me to accept as true is that on Friday,
April 26, 2013, in South Renovo Borough, Clinton
County, Pennsylvania, you attempted to cause the
death of Alma Antram by discharging a firearm nine
times through the door of Antram’s residence striking
her four times causing her to receive medical treatment.
Do you understand they’re the facts you’re telling me to
accept by pleading no contest?
[Appellant]: Yes, sir.
* * *
The Court: Do you have any questions about these
facts?
[Appellant]: No, sir.
N.T., 10/28/2013, at 5-7 (emphasis added). Moreover, Appellant
acknowledged that defense counsel explained the contents of the written
colloquy to him and Appellant had no further questions. Id. at 9.
Finally, the bill of criminal information filed by the Clinton County
District Attorney, which is contained in the certified record, specifies:
Count 1: CRIMINAL ATTEMPT-HOMICIDE – (FELONY 1)
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Defendant did, with intent to commit a specific crime,
namely Title 18 Section 2501(a), Homicide, commit any act
which constitutes a substantial step toward the commission
of that crime, namely defendant did attempt to cause the
death of Alma Antram by discharging a firearm 9 times
through the door of Antram’s residence striking Antram 4
times causing Antram to receive medical treatment, in
violation of 18 Pa.C.S. Section 901(a) of the Pennsylvania
Crimes Code [].
Criminal Information, 7/2/2013, at 1.
Based upon all of the foregoing, we conclude there is no merit to
Appellant’s claim that defense counsel was ineffective for failing to inform
Appellant of the elements of attempted homicide. Both the criminal
information and the trial court’s oral colloquy established that Appellant was
aware of the nature of the charges against him, despite the trial court's
failure to delineate the elements of the crimes on the record. Appellant
agreed to the facts of the case as recited to him and agreed that he
attempted to cause the death of the victim. Moreover, Appellant signed a
written colloquy in which he acknowledged that trial counsel explained the
elements of the offense to him and he was satisfied with counsel’s
explanation. Appellant had no further questions for the trial court before
entering his plea. Like the defendant in Molina, Appellant acknowledged in
the written colloquy that he discussed with counsel the elements of
attempted homicide, the factual basis for the charge, and how those facts
proved the elements of that offense. See Molina. Appellant clearly stated
in the written colloquy and at the plea hearing that counsel apprised him of
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the elements of attempted homicide. To find otherwise, we would have to
conclude that Appellant lied at the plea hearing and counsel induced those
lies. Appellant cannot rely upon such argument. See Rogers. Based upon
a totality of the circumstances, including Appellant’s written
acknowledgment that defense counsel explained the elements of the offense
to him and our review of the plea proceeding as a whole,3 we agree there is
no merit to Appellant’s first ineffective assistance of counsel claim. Hence,
we discern no abuse of discretion or error of law in denying Appellant relief.
Next, Appellant claims defense counsel was ineffective for failing to
advise him that he had a defense of voluntary intoxication. Appellant’s Brief
at 24. We disagree.
This Court’s decision in Commonwealth v. Williams, 730 A.2d 507(Pa. Super. 1999) is directly on point. Therein, we concluded:
Our legislature has declared that a voluntarily inflicted
drugged or intoxicated condition will not serve to exonerate
or excuse criminal conduct. This declaration is embodied in
18 Pa.C.S.A. § 308, which provides:
§ 308. Intoxication or drugged condition
Neither voluntary intoxication nor voluntary drugged
condition is a defense to a criminal charge, nor may
evidence of such conditions be introduced to negate
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3
At the hearing on Appellant’s PCRA petition, defense counsel testified he
explained to Appellant the Commonwealth’s evidence could prove specific
intent because Appellant left the scene to retrieve the weapons before using
them, the bullet hole trajectories showed the shots were fired higher than
leg level, and Appellant fled the scene thereafter. N.T., 4/11/2015, at 19-
20. For this additional reason, we find no merit to Appellant’s first claim.
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the element of intent of the offense, except that
evidence of such intoxication or drugged condition of
the defendant may be offered by the defendant
whenever it is relevant to reduce murder from
a higher degree to a lower degree of murder.
18 Pa.C.S.A. § 308 (emphasis added). Mr. Williams argues
that since evidence of voluntary intoxication may be offered
to negate the specific intent to kill in a first-degree murder
prosecution it may likewise be offered in an attempted
murder in the first-degree prosecution. We disagree.
While this novel argument has a certain logical appeal it is
nonetheless misplaced. As § 308 clearly dictates the only
legal significance of the voluntary consumption of alcohol is
when it “is relevant to reduce murder from a higher degree
to a lower degree of murder.” Id. In an attempted murder
case the lowering of the degree is logically impossible.
There simply is no such crime as attempted second or third
degree murder.
In Commonwealth v. Griffin, 456 A.2d 171 (Pa. Super.
1983) we ordered a new trial because the trial court
improperly instructed the jury that it could find Mr. Griffin
guilty of attempted first degree murder if it found an
intention to commit murder of any degree. We explained
why such crimes are impossible as follows:
The question squarely presented to us is whether
someone can attempt to commit murder of the
second or third degree. We think not. A person
commits an attempt when, with intent to commit a
specific crime, he does any act which constitutes a
substantial step toward the commission of that
crime. 18 Pa.C.S.A. § 901. Murder of the second or
third degree occurs where the killing of the victim is
the unintentional result of a criminal act. Thus, an
attempt to commit second or third degree murder
would seem to require proof that a defendant
intended to perpetrate an unintentional killing which
is logically impossible. While a person who only
intends to commit a felony may be guilty of second
degree murder if a killing results, and a person who
only intends to inflict bodily harm may be guilty of
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third degree murder if a killing results; it does not
follow that those persons would be guilty of
attempted murder if a killing did not occur. They
would not be guilty of attempted murder because
they did not intend to commit murder they only
intended to commit a felony or to commit bodily
harm.
Id. at 177.
The Griffin panel then cites to an example from the
Handbook on Criminal Law, by LaFave and Scott, to further
illustrate why it is necessary to prove an intent to kill in
order to sustain the charge of attempted murder:
Some crimes, such as murder, are defined in terms
of acts causing a particular result plus some mental
state which need not be an intent to bring about that
result. Thus, if A, B, and C have each taken the life
of another, A acting with intent to kill, B with an
intent to do serious bodily injury, and C with a
reckless disregard of human life, all three are guilty
of murder because the crime of murder is defined in
such a way that any one of these mental states will
suffice. However, if the victims do not die from their
injuries, then only A is guilty of attempted murder;
on a charge of attempted murder it is not sufficient
to show that the defendant intended to do serious
bodily harm or that he acted in reckless disregard of
human life. Again, this is because intent is needed
for the crime of attempt, so that attempted murder
requires an intent to bring about that result
described by the crime of murder (i.e., the death of
another).
Griffin, 456 A.2d at 177; LaFave and Scott, Handbook on
Criminal Law, § 59 at 428-29 (1972) (footnotes omitted).
* * *
If we were to accept Mr. Williams' position that voluntary
intoxication can serve to negate the specific intent to kill
element of attempted murder we would be condoning the
accused's voluntarily self-induced intoxication as a complete
defense to a charge of attempted murder. Such a conclusion
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is contrary to the prohibition of such defense expressed in
§ 308. Therefore, we agree with the PCRA court that Mr.
Williams' underlying claim has no arguable merit.
Accordingly, trial counsel cannot be deemed ineffective for
failing to pursue a meritless claim.
Williams, 730 A.2d at 511-512.
Here, the same holds true. Voluntary intoxication was not an available
defense to attempted homicide. Thus, there is no merit to Appellant’s
second ineffective assistance claim and we discern no error of law in the
PCRA court’s denial of relief.
Order affirmed. Motion for enlargement of time for filing Appellant’s
reply brief granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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