Com. v. Wadlington, O.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ORIN L. WADLINGTON, SR. :
:
Appellant : No. 2567 EDA 2022
Appeal from the PCRA Order Entered September 13, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0002665-2020
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED JULY 27, 2023
Appellant, Orin L. Wadlington, Sr., appeals from the September 13,
2022 order dismissing his petition pursuant to the Post Conviction Relief Act
(“PCRA”) 42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
Appellant was arrested on June 18, 2020, and the resulting
changes included aggravated assault, robbery of a motor vehicle,
simple assault, unauthorized use of a motor vehicle, and reckless
endangerment of another person. On August 2, 2021, Appellant
entered into a negotiated guilty plea to a single count of robbery
of a motor vehicle and the Commonwealth withdrew the remaining
charges as part of a negotiation. On the same day, this Court
sentenced Appellant to a term of imprisonment of five to fifteen
years in state custody.
The uncontroverted facts presented at the plea establish
that Appellant had borrowed the vehicle in question a few days
before June 18, 2020. While Appellant originally had permission
to borrow the car, it had not been returned as expected. The
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owner of the car confronted the Appellant, who was sitting in the
driver’s side of the vehicle, in a Kohl’s Department Store parking
lot in Bensalem Township, Bucks County, Pennsylvania. When
confronted and asked to return the vehicle by the owner,
Appellant attempted to push the owner from the vehicle and drove
away in the vehicle, dragging the car owner who had been
grabbing the driver’s side door handle. The car owner sustained
injuries to her face, hand, and leg as a result of the Appellant’s
actions.
PCRA Court Opinion, 12/4/22, at 1-2 (record citations omitted).
On October 20, 2021, the trial court denied Appellant’s motion for
reconsideration of his sentence. Appellant did not file a direct appeal.
Proceeding pro se, Appellant filed a timely first PCRA petition on December
16, 2021. Appointed counsel filed an amended petition on April 22, 2022,
challenging the effectiveness of plea counsel and the voluntariness of
Appellant’s plea. The PCRA court conducted a hearing on June 6, 2022. After
receiving post-hearing briefs, the PCRA court dismissed the petition on
September 13, 2022. This timely appeal followed.
Appellant presents one question:
Did the PCRA court err in denying post-conviction relief with
respect to Appellant’s claim that he received ineffective assistance
of counsel in the guilty plea proceedings where defense counsel
did not properly investigate the facts of the case, the information
provided by Appellant with respect to the allegations, did not
obtain surveillance video necessary to the defense, failed to speak
with witnesses, and failed to gather exculpatory evidence, all of
which forced and coerced Appellant to enter a guilty plea?
Appellant’s Brief at vi.
On review, we must determine whether the record supports the PCRA
court’s findings of fact; findings of fact supported in the record are binding on
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this Court. Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa.
Super. 2015) (en banc), appeal denied, 123 A.3d 331 (Pa. 2015). We also
must discern whether the PCRA court committed an error of law. For
questions of law, our standard of review is de novo and the scope of our review
is plenary. Id. Counsel is presumed effective; to succeed on a claim alleging
otherwise, a PCRA petitioner must plead and prove by a preponderance of the
evidence that (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis in support of the disputed action or inaction; and
(3) counsel’s error was prejudicial, such that the outcome of the proceeding
would have been different but for the error. Id. at 780.
A criminal defendant enjoys the right to effective counsel in connection
with the entry of a guilty plea.1 Commonwealth v. Rathfon, 899 A.2d 365,
369 (Pa. Super. 2006) Commonwealth v. Kelly, 136 A.3d 1007, 1013 (Pa.
Super. 2016). “Where the defendant enters his plea on the advice of counsel,
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1 The PCRA provides relief for, among other things:
ii) 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.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.
42 Pa.C.S.A. § 9543(a)(2)(ii, iii). Appellant is proceeding under
§ 9543(a)(2)(ii). Appellant’s Brief at 13. We therefore analyze this case
under the law applicable to ineffective assistance of counsel.
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the voluntariness of the plea depends on whether counsel’s advice was within
the range of competence demanded of attorneys in criminal cases.” Id.
(quoting Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007)).
To establish that plea counsel’s ineffectiveness was prejudicial, the petitioner
must establish that but for counsel’s mistakes, the petitioner would not have
pled guilty and instead would have proceeded to trial. Rathfon, 899 A.2d at
370.
The record reflects that the owner of the vehicle, Jennifer Culver-Gross,
was Appellant’s ex-girlfriend. Appellant testified at the PCRA hearing that he
had permission to use the car on the day in question, and that Culver-Gross
and others were the assailants and Appellant the victim. N.T. 6/6/22, at 15-
19. He claimed he turned the vehicle on and fled from the scene after
somebody pointed a gun at him. Id. Appellant asserts, based on his own
account of events, that plea counsel’s inadequate investigation led him to
advise a guilty plea.
First, and most generally, Appellant claims plea counsel was ineffective
for failing to investigate all facts set forth in the Commonwealth’s affidavit of
probable cause. This argument fails. First, we observe that Appellant
admitted the pertinent facts at his plea colloquy. A defendant who pleads
guilty is bound by statements made under oath in court and cannot later
contradict them. Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (“The longstanding rule of Pennsylvania law is that a defendant may
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not challenge his guilty plea by asserting that he lied while under oath, even
if he avers that counsel induced the lies.”). Second, plea counsel testified at
the PCRA hearing that Appellant provided counsel with a version of events
that implicated him in the crime of robbery of a motor vehicle.2 According to
plea counsel, Appellant admitted that Culver-Gross was the lawful owner of
the vehicle, that he did not have permission to use it on the day in question,
that he refused Culver-Gross’s demand to get out of the vehicle, and that he
drove away while Culver-Gross was still holding a door handle and thus
dragged her part way through the parking lot. N.T., 6/6/22, at 39. Appellant
never told counsel that anyone pointed a gun at him before he drove away.
Id. Thus, counsel advised Appellant that he was mistaken in believing that
his version of events, if believed by a finder of fact, would result in his acquittal
on all charges. Id. The PCRA court found plea counsel’s testimony to be
credible, and we are bound by that determination.
Next, Appellant claims counsel was ineffective for failing to investigate
a witness who would have corroborated Appellant’s version of events. The
witness in question, Suresh Patel, was managing a 7-Eleven convenience store
near the location of the crime scene during the relevant time. Appellant
testified at the PCRA hearing that he fled to the 7-Eleven after he escaped
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2 Robbery of a motor vehicle occurs where a person “steals or takes a motor
vehicle from another person in the presence of that person or any other person
in lawful possession of the motor vehicle.” 18 Pa. C.S.A. § 3702(a).
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from Culver-Gross and the other alleged assailants, that Patel locked the doors
behind Appellant until police arrived, and that Patel could have provided
testimony in support of Appellant’s claim that he was a victim and not the
assailant. Id. at 17.
Appellant cites Commonwealth v. Pander, 100 A.3d 626 (Pa. Super.
2014) (en banc), appeal denied, 109 A.3d 679 (Pa. 2015), wherein this Court
wrote as follows:
Neglecting to call a witness differs from failing to investigate
a witness in a subtle but important way. The failure to investigate
presents an issue of arguable merit where the record
demonstrates that counsel did not perform an investigation. It
can be unreasonable per se to conduct no investigation into known
witnesses. Importantly, a petitioner still must demonstrate
prejudice. To demonstrate prejudice where the allegation is the
failure to interview a witness, the petitioner must show that there
is a reasonable probability that the testimony the witness would
have provided would have led to a different outcome at trial.
Id. at 638–39 (internal citations and quotation marks omitted).
Appellant’s argument fails for several reasons. First, as we have already
explained, the PCRA court credited plea counsel’s account of the version of
events provided to him by Appellant. Appellant’s self-serving PCRA hearing
testimony, which was deemed not credible by the PCRA court, cannot by itself
create an issue of arguable merit. Further, counsel’s investigation revealed
that the 7-Eleven in question was 200 yards away from the scene of the crime,
with shrubbery and a slight incline obscuring the view of the crime scene from
the 7-Eleven. Counsel determined that anyone inside the 7-Eleven could not
have observed the events at issue. N.T. 6/6/22, at 38. Thus, counsel’s
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investigation revealed that Patel could not have provided an eyewitness
account to support Appellant’s claim that he was the victim rather than the
assailant. Appellant has failed to establish that the absence of Patel’s
testimony was prejudicial, as required under Pander.
Finally, Appellant claims counsel’s investigation was inadequate because
counsel did not obtain surveillance footage from several nearby places of
business. The record does not support this contention, as counsel testified
that his investigation revealed that the places of business nearest the scene
of the crime either had no exterior security cameras or had cameras that were
not pointed in the right direction. Id. at 37-38. Thus, no relevant surveillance
footage was obtainable. The PCRA court credited counsel’s testimony, and we
are bound by that determination.
Based on the foregoing, we conclude that Appellant failed to plead and
prove that plea counsel rendered ineffective assistance. We therefore affirm
the order dismissing his PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2023
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