Com. v. Nelson, A.

J-S23008-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARNOLD P. NELSON :
:
Appellant : No. 1243 EDA 2017
Appeal from the PCRA Order March 24, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0015742-2009
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED JULY 18, 2018
Appellant, Arnold P. Nelson, appeals pro se from the order denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the factual and procedural history of this
case as follows:
On October 18, 2013, [Appellant] appeared before this court
and entered a negotiated guilty plea to third-degree murder, 18
Pa.C.S. §2502(c), and possession of an instrument of crime, 18
Pa.C.S. §907. The deceased was Jeffrey Jackson. Pursuant to the
plea agreement, [Appellant] was sentenced to 20 to 40 years in
prison for third-degree murder to be followed by two and one-half
to five years in prison for possession of an instrument of crime.
[Appellant] did not file a direct appeal.
On November 7, 2014 [Appellant] filed a pro-se PCRA
Petition. New counsel was appointed to represent [Appellant].
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* Former Justice specially assigned to the Superior Court.
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New counsel filed a Finley[1] letter concluding that there were no
meritorious issues. On March 24, 201[7] this [c]ourt dismissed
the PCRA Petition as lacking merit. Counsel was permitted to
withdraw. [Appellant] filed a timely pro-se notice of appeal to the
Superior Court.
PCRA Court Opinion, 6/26/17, at 1-2. Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for our review, which we repeat
verbatim:
I. Did the P.C.R.A. Court err when it held that Plea Counsel
was not ineffective and Appellant’s plea was not entered
knowingly, intelligently, and voluntarily where:
(a) Counsel failed to move for a dismissal of the charges
based upon a Rule 600 speedy trial violation where
Appellant was not brought to trial prior to January 1, 2011.”
(b) Counsel misled Appellant to believe he was precluded
from moving to dismiss the charges based upon Rule 600
because he was charged with homicide.
(c) Counsel failed to consult with Appellant and discuss
the evidence in the case thereby rendering Appellant unable
to make a knowing and intelligent decision to plead guilty.
(d) Counsel failed to advise Appellant of the grounds and
his rights to suppress exculpatory evidence namely
Appellant’s statements.
(e) Counsel erroneously advised Appellant that he would
be guaranteed parole at his minimum sentence a condition
the court nor prosecutor had authority to grant.
(f) Counsel failed to investigate Appellant’s history of
black outs; Appellant’s claim of self defense and Appellant’s
claim that his wife orchestrated an assault of the victim after
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1 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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his initial altercation with Appellant when Appellant was not
present at the scene.
Appellant’s Brief at 4.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA court’s
determination is free of legal error. Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed
unless there is no support for them in the certified record. Id.Appellant’s claims include allegations of ineffective assistance of
counsel:
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975–76 (1987): (1) the underlying legal claim has arguable
merit; (2) counsel had no reasonable basis for his or her action or
inaction; and (3) the petitioner suffered prejudice because of
counsel’s ineffectiveness.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). With regard to the
second, reasonable-basis prong, “we do not question whether there were
other more logical courses of action which counsel could have pursued; rather,
we must examine whether counsel’s decisions had any reasonable basis.”
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). We will
conclude that counsel’s chosen strategy lacked a reasonable basis only if
Appellant proves that “an alternative not chosen offered a potential for success
substantially greater than the course actually pursued.” Commonwealth v.
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Williams, 899 A.2d 1060, 1064 (Pa. 2006). “In order to meet the prejudice
prong of the ineffectiveness standard, a defendant must show that there is a
‘reasonable probability that but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Commonwealth v. Reed, 42
A.3d 314, 319 (Pa. Super. 2012). A claim of ineffective assistance of counsel
will fail if the petitioner does not meet any of the three prongs.
Commonwealth v. Williams, 863 A.2d 505, 513 (Pa. 2004). “The burden
of proving ineffectiveness rests with Appellant.” Commonwealth v. Rega,
933 A.2d 997, 1018 (Pa. 2007).
Moreover, allegations of ineffective assistance of counsel in connection
with the entry of a guilty plea will serve as a basis for PCRA relief only if the
ineffectiveness caused the defendant to enter an involuntary or unknowing
plea. Commonwealth v. Willis, 68 A.3d 997, 1001–1002 (Pa. Super. 2013)
(citation omitted). “Where the defendant enters his plea on the advice of
counsel, the voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in criminal cases.”
Id. at 1002 (citation omitted). The law does not require that the defendant
be pleased with the outcome of his decision to enter a guilty plea; all that is
required is that his decision to plead guilty be knowingly, voluntarily, and
intelligently made. Id. (citation omitted). Finally, we point out that
defendants are bound by statements made under oath at the guilty plea
colloquy and may not assert grounds for withdrawing the plea that contradict
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those sworn statements. Commonwealth v. Timchak, 69 A.3d 765, 774
(Pa. Super. 2013) (citations omitted).
Appellant presents argument on issues I(a) and (b) together. Appellant
asserts that “while typically he would not have a meritorious claim on a [sic]
Article 1 § 9 (Pa. Const)/Sixth Amendment (U.S. Const.)/Pa.R.Crim.P.
Rule 600 speedy trial challenge due to amount of defense continuances, said
claim is meritorious based upon Trial Counsel’s clear ineffectiveness in failing
to give a concise reason, or strategy for said continuances.” Appellant’s Brief
at 9. Appellant maintains that the trial court violated Appellant’s right to a
speedy trial by 1,069 days. Id. at 9-10. Appellant contends that the violation
resulted from the trial court’s error, as well as counsel’s mistake. Id. at 10.
Specifically, Appellant argues that counsel had no reasonable basis for not
filing a motion, requesting correction, or advocating for a speedy disposition
to the matter. Id. Moreover, Appellant posits that he was prejudiced by
counsel’s “inaction due to Appellant’s inability to come to trial within the
allotted time of three-hundred sixty-five (365) days, and the inability to
dismiss the information in its entirety based upon said inability.” Id.
Appellant asserts that due to counsel’s ineffectiveness, “Appellant is entitled
to a full vacation of his conviction, sentence, and judgment, and should be
slated for immediate release.” Id.
We first note that Appellant fails to present any evidence supporting his
claims that counsel failed to move for a dismissal on the basis of a Rule 600
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violation or that counsel misled Appellant to believe that he was precluded
from moving to dismiss charges on the basis of a Rule 600 violation because
Appellant was charged with homicide. In fact, Appellant presents a vague
calculation under Pa.R.Crim.P. 600, and goes so far as to acknowledge that a
certain period that he included in the calculation “typically … does not count
toward the calculation of Pa.R.Crim.P. Rule 600, [but] it has been included to
support the overall conclusion.” Appellant’s Brief at 9 n.1. Further, Appellant
concedes that “[t]he record will show that most continuances were charged to
the defense.” Id. at 9 n.2. Thus, Appellant’s bald assertions are insufficient
to prove counsel’s ineffectiveness as it relates to Rule 600. Rega, 933 A.2d
at 1018.
Moreover, there is no arguable merit to Appellant’s claim. The
Commonwealth filed Appellant’s criminal information on January 5, 2010.
Thus, Appellant’s mechanical run date was January 5, 2011. This mechanical
run date was adjusted2 due to multiple defense-requested continuances that
resulted in excludable time, including the following: 1) a ninety-two-day
period of defense-requested continuance for further investigation between
March 4, 2010, and June 4, 2010; 2) a sixty-nine-day period of defense-
requested continuances for further investigation between July 7, 2010, and
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2 “The adjusted run date is calculated by adding to the mechanical run date,
i.e., the date 365 days from the complaint, both excludable and excusable
delay.” Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super. 2015).
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September, 29, 2010; and 3) an 886-day period of defense-requested
continuances based on plea counsel’s schedule between April 26, 2011, and
September 27, 2013. Those 1,047 days, when added to the mechanical run
date resulted in an adjusted run date of November 17, 2013.3 Appellant pled
guilty on October 18, 2013. Thus, no Rule 600 violation existed at the time
of Appellant’s plea. Accordingly, counsel could not have been ineffective for
raising a meritless claim. Paddy, 15 A.3d at 442. See Commonwealth v.
Washington, 927 A.2d 586, 603 (Pa. 2007) (“Counsel will not be deemed
ineffective for failing to raise a meritless claim.”). Appellant is entitled to no
relief on his first two claims.
Next, Appellant argues that counsel failed to consult with Appellant and
discuss the evidence in the case, thereby rendering Appellant unable to make
a knowing and intelligent decision to plead guilty. Appellant’s Brief at 11.
Despite listing this issue in his statement of questions involved and placing
this statement in a heading above a section of his argument, the discussion
provided in support does not pertain to that issue. Id. at 11. Instead,
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3 This calculation does not include periods of excusable time due to the trial
court’s schedule. See Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.
Super. 2004) (judicial delay may be counted as excusable time if the
Commonwealth is ready to proceed).
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Appellant’s argument asserts PCRA counsel’s ineffectiveness for filing a
Turner/Finley4 letter. Id. at 11-12.
Claims not raised before the trial court cannot be considered for the first
time on appeal. Appellant did not raise issues of PCRA counsel’s
ineffectiveness in his PCRA petition. “[A] claim not raised in a PCRA petition
cannot be raised for the first time on appeal.” Commonwealth v. Santiago,
855 A.2d 682, 691 (Pa. 2004). Because Appellant did not raise issues of PCRA
counsel’s ineffectiveness in his PCRA petition, this claim is waived.
Furthermore, because Appellant failed to develop any argument in
support of his claim that counsel failed to consult with Appellant and discuss
the evidence in the case, that issue is also waived. See Commonwealth v.
Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015) (“The failure to develop
an adequate argument in an appellate brief may result in waiver of the claim
under Pa.R.A.P. 2119.”). While this Court may overlook minor defects or
omissions in a pro se appellant’s brief, we will not act as his appellate counsel.
Id. Here, Appellant’s failure to develop a coherent legal argument in support
of his claim results in waiver of this issue.
Appellant next argues that counsel failed to advise him “of the grounds
and his rights to suppress exculpatory evidence namely Appellant’s
statements.” Appellant’s Brief at 13. Appellant further asserts:
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4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Finley, 550 A.2d
213.
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Appellant was not advised of his “right” to suppress the statement,
and/or test the admissibility thereof in a suppression hearing, nor
did Counsel explain that exculpatory evidence was utilized to
“clear” an individual, if the statement suppression had occurred,
said suppression would have been of an exculpatory nature.
Id. at 13 (footnote omitted).
Despite Appellant’s references to suppression of his statements, he fails
to identify the statement or statements he would have sought to suppress.
We shall not assume the burden of searching the record in an attempt to guess
at the statement or statements to which Appellant is referring. “[T]his Court
will not become counsel for an appellant and develop arguments on an
appellant’s behalf.” Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa.
Super. 2014). It is not this Court’s responsibility to comb through the record
seeking the factual underpinnings of a claim. Id. When deficiencies in a brief
hinder our ability to conduct meaningful appellate review, we may dismiss the
appeal entirely or find certain issues to be waived. Id.; Pa.R.A.P. 2101.
Because Appellant failed to clarify the specifics of this claim, we find the issue
waived. Pa.R.A.P. 2101.
Appellant next asserts that counsel erroneously advised him that he
would be guaranteed parole. Appellant’s Brief at 15. Appellant maintains that
counsel informed him that “his liberty on parole was guaranteed upon the
completion of his minimum date.” Id. Appellant argues that not only was
this information false, but it was a legal impossibility, thus calling into question
counsel’s competency. Id. Appellant contends that counsel was ineffective
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for giving him false information and allowing him to plead guilty based on that
false information. Id. at 16. Appellant maintains that had he known the facts,
“he may never had accepted a plea bargain to begin with, allowing the
outcome of the matter to have been dramatically different.” Id.
Appellant makes bald assertions that counsel provided Appellant with
inaccurate information regarding parole. Appellant, however, fails to develop
his argument with any facts or citations to the record. The Rules of Appellate
Procedure require that appellants adequately develop each issue raised with
discussion of pertinent facts and pertinent authority and citation to the record.
Pa.R.A.P. 2119. Again, this Court will not become counsel for an appellant
and develop arguments on an appellant’s behalf. Samuel, 102 A.3d at 1005.
It was Appellant’s responsibility to provide an adequately developed argument
by identifying the factual bases of his claim and providing citation to and
discussion of relevant authority and the record in relation to those facts.
Because he has failed to do so, we find this issue waived. Pa.R.A.P. 2101.
Appellant’s next issue includes multiple claims. Appellant first argues
that counsel failed to investigate Appellant’s history of “black-outs.”
Appellant’s Brief at 17. Appellant further argues that counsel failed to call an
expert medical witness “to explain the nuances of what a clinical diagnosis of
momentary unconsciousness means and what such a diagnosis could have
meant toward the outcome of the case.” Id. Appellant maintains this expert
testimony would have been relevant for the following purposes:
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Appellant informed Counsel about the Black-outs and diagnosis of
momentary unconsciousness, therefore, Counsel could have
compelled Appellant’s physician to testify, even if testimony were
[sic] hostile. The physician’s testimony would have provided a
basis for the black-outs, any lack of time throughout the time-line
of events, mental stability of Appellant to stand trial/enter a plea
bargain, and any other medical information that competent
counsel deemed relevant at the time. Ergo, such testimony would
have not only been beneficial to the defense, yet would have
modified the verdict entirely, which the lack thereof would clearly
be prejudice.
Id. at 18-19. Appellant further asserts that if counsel had called the expert,
other theories or defenses would have been unnecessary, as the physician
could have shown that Appellant did not intelligently, knowingly, and
voluntarily enter into a plea bargain. Id. at 19.
Appellant has failed to present any evidence that he, in fact, suffers from
black-outs or that counsel failed to investigate Appellant’s history of black-
outs. Moreover, Appellant entered a plea in this case, and no trial was held.
Thus, there was no opportunity for a medical expert to be called as a witness
to provide any testimony or opinion regarding Appellant’s alleged history of
black-outs. Accordingly, Appellant has failed to establish that counsel was
ineffective for failing to investigate Appellant’s history of black-outs or for
failing to call an expert to testify regarding this history. Appellant is entitled
to no relief on this claim.
Finally, Appellant asserts that counsel failed to investigate his claim of
self-defense and his assertion that his wife orchestrated an assault of the
victim after his initial altercation with Appellant when Appellant was not
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present at the scene. Appellant’s Brief at 17. In support of this issue,
Appellant provides the following argument:
Assuming these defenses were pursued by Counsel, Appellant
could have provided evidence that he was not present at the scene
of the crime at the critical time of the death which would allow for
an alibi defense to support his innocence. Furthermore, Counsel
also ignored the alternate theory of the crime that Appellant’s
estranged wife committed the murder which would have cast
serious doubts as to Appellant’s alleged guilt.
Id. at 19.
Appellant failed to adequately develop his argument by identifying the
factual bases of his claim and providing citation to and discussion of relevant
authority and the record in relation to those facts. Pa.R.A.P. 2119. Because
he has failed to do so, we find this issue waived. Pa.R.A.P. 2101.
Moreover, Appellant entered a plea. There was no trial in this case at
which defense theories were developed or presented. Additionally, there was
no finding of guilt because Appellant entered his guilty plea. Thus, Appellant
has not established his claim of ineffective assistance of counsel on this basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/18
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