Com. v. Enderle, L.

J-S43030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEE ENDERLE :
:
Appellant : No. 1684 EDA 2022
Appeal from the PCRA Order Entered February 3, 2022,
in the Court of Common Pleas of Chester County,
Criminal Division at No(s): CP-15-CR-0002900-2013.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 14, 2023
Lee Enderle appeals the order denying his first petition filed pursuant to
the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: Enderle was
charged with multiple sexual offenses following an incident with his seven-
year-old neighbor. Following a four-day trial, a jury convicted him on all of
the charges. On March 6, 2015, the trial court sentenced him to an aggregate
term of nine to eighteen years of imprisonment and a consecutive ten-year
probationary term. The trial court denied Enderle’s timely post-sentence
motion. Although Enderle originally filed a notice of appeal to this Court, he
later discontinued it by motion and an order entered August 5, 2016.
On April 20, 2017, Enderle filed a timely pro se PCRA petition.
Thereafter, the court appointed counsel who was later permitted to withdraw.
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On October 18, 2019, the PCRA court appointed new counsel. On February
19, 2020, new counsel filed a motion to withdraw and “no-merit” letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Enderle filed a pro se response. On November 5, 2018, the PCRA court issued
a Pa.R.A.P. 907 notice of its intent to dismiss Enderle’s PCRA petition without
a hearing. The court also granted new counsel’s motion to withdraw. By order
entered March 5, 2020, the PCRA court denied the petition.
Enderle filed a pro se appeal to this Court in which he raised five issues,
including a claim that trial counsel was ineffective for conceding Enderle’s guilt
to some of the charges during her closing argument. Although we found no
merit to four of Enderle’s claims, we concluded that Enderle raised a material
issue of fact—whether he consented to trial counsel’s concession of guilt to
some of the charges the Commonwealth filed against him. See
Commonwealth v. Enderle, 256 A.3d 33 (Pa. Super. 2021), (non-
precedential decision at *20). We further stated that, because resolution of
this fact involved a credibility assessment, and the PCRA court dismissed the
claim without a hearing, we remanded the matter so the PCRA court could
hold an evidentiary hearing, as to only this issue, after which it could make
the required factual and credibility determinations and grant post-conviction
relief if appropriate. Id. We also directed the PCRA court to appoint new
counsel for Enderle.
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Following remand, the PCRA court appointed new counsel and scheduled
an evidentiary hearing for October 12, 2021. On that date, Enderle and trial
counsel presented testimony regarding trial counsel’s decision to concede guilt
as to certain charges during her closing argument. By order entered February
3, 2022, the PCRA court denied Enderle’s petition. This appeal followed.1 Both
Enderle and the PCRA court have complied with Pa.R.A.P. 1925.
Enderle raises the following issue on appeal:
I. Whether the PCRA court judge erred in holding that
trial counsel was effective in her representation of
[Enderle] when [she] did not consult with [Enderle]
prior to closing arguments where trial counsel
conceded on some of the charges.
Enderle’s Brief at 5 (excess capitalization omitted).
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
Following the evidentiary hearing, the PCRA court filed an opinion in
which it made detailed findings of fact based on hearing testimony. See PCRA
____________________________________________
1Although Enderle did not file a timely appeal, by agreement of the parties
he was later granted the right to file an appeal nunc pro tunc.
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Court Opinion, 2/3/22, at 1-1. The court then provided the following
discussion:
The court examined the testimony from the hearing, the
PCRA pleadings, the transcript of the trial closing argument,
and the record to determine if [Enderle’s] claim that trial
counsel did not discuss conceding guilty to some of the
charges prior to closing argument was credible. It is clear
to this court that [Enderle’s] testimony that [trial counsel]
never discussed conceding to some of the charges is not
credible.
[Trial counsel] has been a criminal defense attorney for
over sixteen years and has handled at least one thousand
cases. Her lack of specific memory of her conversation with
[Enderle] is not dispositive of this issue. It is her standard
practice to never concede guilt without a client’s approval,
as that would be legally inappropriate.
The testimony of [trial counsel] was extremely credible
in that she admitted to not remembering the specific
conversations with [Enderle] but was emphatic about the
fact she would not have conceded guilt without [Enderle’s]
permission to do so. Her testimony also rings true in that
due to the generic nature of the concession, she believes
that they went back and forth in their discussions. Since
[Enderle] did not want to concede to specific named
charges, the plan to concede generally was conceived.
This court finds that [trial counsel] and [Enderle]
discussed the strategy of conceding to some of the charges.
This court further finds that [Enderle] agreed and gave [trial
counsel] his approval to concede generally to some of the
charges during closing argument. Therefore, [Enderle’s]
final PCRA issue is found to be without merit and must be
dismissed.
PCRA Court’s Opinion, 2/3/22, at 7 (excess capitalization omitted).
As a matter of credibility, the PCRA court believed trial counsel’s version
of the contested facts. We cannot disturb this determination. See
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Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999)
(explaining that when a PCRA court’s determination of credibility is supported
by the record, it cannot be disturbed on appeal).
In arguing to the contrary, Enderle asserts that the PCRA court “found
incorrectly that [trial counsel] discussed the strategy of conceding some of the
charges with [him] prior to her Closing Argument and that the strategy of
concession was agreed upon by [Enderle].” Enderle’s Brief at 12. He then
asserts that facts regarding his discussions with was not “contested,” because
he presented “very credible” testimony and trial counsel could not remember
any specific conversations she had with him. Id. at 14-16.
Enderle is essentially asking this Court to substitute our judgment for
that of the PCRA court. This we cannot do. See Commonwealth v. Battle,
883 A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility
determinations are solely within the province of the PCRA court);
Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003)(explaining
that this Court “must defer to the credibility determinations made by the
[PCRA] court that observed a witness’s demeanor first hand).”
In sum, this Court previously found four of Enderle’s appellate issues to
be without merit. Enderle, supra. After an evidentiary hearing, the PCRA
court found Enderle’s final issue to be without merit. Because our review of
the record supports the PCRA court’s conclusion, we affirm the order denying
Enderle post-conviction relief.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2023
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