Com. v. Neff, T

J-S28044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TIMOTHY ALVA NEFF :
:
Appellant : No. 549 MDA 2022
Appeal from the PCRA Order Entered March 7, 2022
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000397-2019
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: FEBRUARY 22, 2023
Appellant, Timothy Alva Neff, appeals from the order entered in the
Clinton County Court of Common Pleas, which denied his first petition brought
under the Post-Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. On
May 11, 2019, the Commonwealth charged Appellant with first degree murder
and related offenses in connection with the stabbing of Appellant’s sister,
Agnes Neff (“Victim”). At the time, Appellant was serving a probationary
sentence for a prior aggravated assault conviction. Appellant entered a guilty
plea to third-degree murder on September 10, 2020. On November 12, 2020,
the court sentenced Appellant to 20 to 40 years’ incarceration on the third-
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1 42 Pa.C.S.A. §§ 9541-9546
J-S28044-22
degree murder conviction. The court also revoked Appellant’s probation and
sentenced him to 5 to 10 years’ incarceration on the aggravated assault
conviction, to run concurrent to his third-degree murder sentence. Appellant
did not appeal his judgment of sentence. On May 13, 2021, Appellant timely
filed a pro se PCRA petition, alleging ineffective assistance of counsel. The
court appointed PCRA counsel, who filed an amended petition on October 28,
2021.
The PCRA court held an evidentiary hearing on December 8, 2021.
Appellant testified that in 2019, he was living in the same residence as Victim
and their brother, William Neff. Appellant stated that on the day in question,
Victim appeared intoxicated, and Appellant asked her when she was going to
“sober up.” In response, Victim kicked Appellant in the back of his knee,
injuring him and limiting his movement. Appellant testified that Victim
grabbed a paring knife and began advancing toward Appellant to attack him.
Appellant also grabbed a knife and a scuffle ensued between Appellant, Victim,
and their brother, resulting in all three falling on the floor. Appellant testified
that Victim was behind him, and Appellant went to hit her with his elbow and
accidentally stabbed her with the knife. Appellant stated that he explained
the circumstances to plea counsel, and counsel advised Appellant to plead
guilty to third-degree murder instead of pursuing a claim of self-defense.
On cross-examination, Appellant admitted that he left the house
immediately after stabbing Victim and did not pause to render aid.
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Additionally, Appellant acknowledged that plea counsel discussed the contents
of discovery with him and explained the risks of taking the case to trial,
including the possibility of receiving a sentence of life imprisonment.
Appellant agreed that prior to entering his guilty plea he signed a written plea
colloquy and affirmed under oath that he had the opportunity to fully discuss
his case with plea counsel, was satisfied with counsel’s representation, and
was not pressured or forced in any way to plead guilty to any charges.
Plea counsel testified that Appellant suggested to him that Victim had a
knife during the altercation, but there was no evidence of a second knife used
in the altercation to corroborate Appellant’s version of events. Plea counsel
engaged the services of a forensic pathologist, who determined that there was
no scientific evidence to support a self-defense claim. Additionally, when plea
counsel discussed the matter with Appellant, Appellant did not state that he
acted in self-defense but maintained that he accidentally stabbed Victim.
Accordingly, plea counsel determined that self-defense was not a viable
defense. Plea counsel explained to Appellant that if he was convicted of first-
degree murder, he could face a sentence of life imprisonment and a
consecutive sentence for his probation violation. Plea counsel negotiated a
plea agreement for Appellant which resulted in a sentence of 20 to 40 years’
incarceration. Plea counsel also secured an agreement that Appellant’s
probation violation sentence would run concurrently to his third-degree
murder sentence. Further, plea counsel testified that he reviewed every
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paragraph of the plea agreement with Appellant, and he had no doubt that
Appellant entered his plea knowingly, voluntarily, and intelligently.
On March 7, 2022, the court denied PCRA relief. Appellant filed a timely
notice of appeal on April 4, 2022. On April 5, 2022, the court ordered
Appellant to file a concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(b), and Appellant timely complied on April 25, 2022.
Appellant raises the following issue for our review:
Whether [Appellant] was provided with ineffective
assistance of counsel such that his denial of post conviction
collateral relief should be reversed.
(Appellant’s Brief at 4).
On appeal, Appellant argues that plea counsel failed to properly evaluate
and pursue a viable self-defense where Appellant informed counsel that Victim
had a knife. Appellant contends that he told plea counsel that he was
attempting to defend himself from Victim when he inadvertently stabbed her
and caused her death. Appellant claims that plea counsel’s failure to pursue
a self-defense theory after hearing Appellant’s explanation of the
circumstances constituted ineffective assistance of counsel. Appellant
concludes the PCRA court erred denying PCRA relief, and this Court should
grant relief. We disagree.
As a preliminary matter, we note that Appellant’s entire argument
section is merely one and a half pages and consists of little to no citations to
the record or relevant authority. Rather, Appellant’s argument section is
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nothing more than a brief summary of Appellant’s testimony at the PCRA
hearing, and conclusory statements that plea counsel was ineffective.
Significantly, Appellant does not reference or make any arguments regarding
the three prongs that must be established to prove an ineffective assistance
of counsel claim. Therefore, Appellant has waived his only argument on
appeal. See Commonwealth v. Plante, 914 A.2d 916, 924 (Pa.Super.
2006), appeal denied, 593 Pa. 748, 931 A.2d 657 (2007) (reiterating: “We
have repeatedly held that failure to develop an argument with citation to, and
analysis of, relevant authority waives the issue on review”).
Moreover, even if Appellant had preserved his issue for our review, it
would not merit relief. “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. 428, 218 A.3d 850 (2019). This Court grants great deference
to the findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court.”
Commonwealth v. Medina, 92 A.3d 1210, 2014 (Pa.Super. 2014), appeal
dismissed as improvidently granted, 636 Pa. 77, 140 A.3d 675 (2016).
To prevail on a claim of ineffective assistance of counsel:
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[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 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).
Instantly, the court credited plea counsel’s testimony that he discussed
the facts of the case with Appellant, evaluated the viability of a self-defense
claim based on Appellant’s statements, and determined that there was no
evidence to support a theory of self-defense after consultation with a forensic
pathologist. The record supports the court’s credibility determinations in favor
of plea counsel. See Medina, supra. Notably, Appellant’s testimony at the
PCRA hearing was that he accidentally stabbed Victim, not that he used deadly
force because he reasonably believed such force was needed to defend himself
from harm. See 18 Pa.C.S.A. § 505(a) (defining use of force justifiable for
protection as when actor believes such force is immediately necessary for
purpose of protecting himself against use of unlawful force by such other
person on present occasion). On this record, we agree with the PCRA court
that Appellant failed to establish arguable merit to succeed on his claim of
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ineffectiveness. See Sandusky, supra. Therefore, even if Appellant’s claim
on appeal was not waived, it would merit no relief. Accordingly, we affirm the
court’s order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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