Commonwealth of Pennsylvania v. Gearhart COMMWEALTH OF PENNSYLVANIA v. TIMOTHY R. GEARHART

Transcription

1 COMMWEALTH OF PENNSYLVANIA v. TIMOTHY R. GEARHART 367 Criminal Law: Post Conviction Relief Act ( PCRA ); Ineffective assistance of counsel; Pa.R.A.P. 1925(b) Concise Statement; voluntariness of guilty plea. 1. To succeed on a claim of ineffective assistance of counsel, the petitioner must demonstrate: (1) that the claim is of arguable merit; (2) that counsel s course of conduct was without a reasonable basis designed to effectuate his interest; and (3) that he was prejudiced by counsel s ineffectiveness. 2. A PCRA hearing may be denied if a petitioner s claim is patently frivolous and is without a trace of support either in the record or from other evidence. However, a petition for post-conviction relief may not be summarily dismissed as patently frivolous if there are facts alleged which, if proven, would entitle the petitioner to the relief sought. 3. A 1925(b) statement must be sufficiently concise and coherent such that the trial judge may be able to identify the issues being raised on appeal. 4. A concise statement that is too general or too vague is the functional equivalent of no concise statement whatsoever and results in waiver of the issues for the purposes of appellant review. 5. Here, in support of its denial of the Defendant s petition for Post Conviction Relief without an evidentiary hearing, the court cites to the record from the guilty plea hearing, as well as the Defendant s failure to establish the ineffective assistance of trial counsel. COMMONWEALTH OF PENNSYLVANIA v. TIMOTHY R. GEARHART, Appellant, IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA, CRIMINAL DIVISION No. CP-06-CR Glenn D. Welsh, Esq., Chief Public Defender Timothy A. Biltcliff, Esq., Assistant Public Defender John T. Adams, Esq., District Attorney Johnathan H. Kurland, Esq., Assistant District Attorney 1925(a) Opinion PAUL M. YATRON, J. August 24, 2012 On August 6, 2008, Timothy R. Gearhart ( Appellant ) pleaded guilty to murder in the third degree, 18 Pa.C.S. 2502(c), and conspiracy to commit aggravated assault, 18 Pa.C.S. 903(a). On August 25, 2008, Appellant was sentenced to 20 to 40 years imprisonment for the murder conviction, followed by 20 years of special probation for the conspiracy conviction. Following sentencing, on motion of the District Attorney, the remaining charges against Appellant, which included first-degree murder and aggravated assault, were dismissed. Appellant filed a timely appeal, which was denied by the Superior Court on October 9, On August 9, 2010, Appellant filed a pro se petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S et seq., and this Court appointed counsel to represent Appellant in the matter. After reviewing the case, counsel filed a No- Merit Letter pursuant to Commonwealth v. Finley, 55 A.2d 213 (Pa. Super. 1988) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) on October 26, After conducting an independent review of the record, this Court agreed with PCRA counsel

2 368 that the Appellant s petition failed to raise an issue of arguable merit. Accordingly, we granted PCRA counsel s motion to withdraw and gave Appellant notice that his petition would be dismissed on November 3, On December 5, 2011, we formally dismissed Appellant s PCRA petition, which dismissal is the subject of the instant appeal. Appellant filed a pro se Concise Statement of Errors pursuant to Pa.R.A.P. 1925(b) on June 14, Before addressing the merits of the matters complained of on appeal, we note that Appellant s eight-page 1925(b) statement does not identify in a concise manner the issues sought to be pursued on appeal. A 1925(b) statement must be sufficiently concise and coherent such that the trial judge may be able to identify the issues being raised on appeal.... Jiricko v. Geico Insurance Co., 947 A.2d 206, 210 (Pa. Super. 2008). When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues. Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002). When the trial court has to guess what issues an appellant is appealing, that is not enough for meaningful review. Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) The courts have, therefore, held a concise statement that is too general or too vague is the functional equivalent of no concise statement whatsoever and results in waiver of the issues for the purposes of appellant review. Lemon, 804 A.2d at 37. Even if the trial court correctly guesses the issues Appellants raise on appeal and writes an opinion pursuant to that supposition the issues [are] still waived. Jiricko, 947 A.2d at 211 (quoting Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002)). In his 1925(b) statement, which due to its length is not reprinted here but is attached hereto as Exhibit A, Appellant alleges that this Court erred in denying his request to hold an evidentiary hearing on his PCRA petition, that the hearing on the matter of Appellant s request for new counsel was improperly conducted in the presence of the district attorney, and that Appellant s constitutional right to counsel was violated through ineffective assistance of counsel. (See Concise Statement of Errors, June 14, 2012.) Conclusions of Law I. No Evidentiary Hearing Was Warranted for Appellant s PCRA Petition In his 1925(b) statement, Appellant alleges that this Court abused its discretion by failing to hold an on the record PCRA evidentiary hearing concerning the claim(s)/issue(s) presented. (See Concise Statement at 3.) The right to an evidentiary hearing is not absolute. Commonwealth v. Granberry, 644 A.2d 204, 208 (Pa. Super. 1994). A hearing may be denied if a petitioner s claim is patently frivolous and is without a trace of support either in the record or from other evidence. Id. However, a petition for post-conviction relief may not be summarily dismissed as patently frivolous if there are facts alleged which, if proven, would entitle the petitioner to the relief sought. Id.

3 In his pro se PCRA petition, Appellant argued that his case was prejudiced by ineffective assistance of counsel; that his guilty plea was not knowing, intelligent, and voluntary; and that the Court abused its discretion in not appointing alternate counsel pursuant to his pro se motion for change of counsel. a. Petitioner s ineffective assistance claims lack merit. Ineffective assistance of counsel may constitute grounds for post-conviction relief only if the ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S. 9543(a)(2)(ii). The test for determining whether counsel was ineffective is composed of three prongs. Commonwealth v. Childress, 799 A.2d 805 (Pa. Super. 2002). The petitioner must demonstrate: (1) that the claim is of arguable merit; (2) that counsel s course of conduct was without a reasonable basis designed to effectuate his interest; and (3) that he was prejudiced by counsel s ineffectiveness, i.e., if not for counsel s ineffectiveness, there is a reasonable probability that the outcome would have been different. Id. at In the context of a guilty plea, a petitioner must prove that the plea was unlawfully induced because counsel s ineffectiveness caused him to enter the guilty plea. Commonwealth v. Lutz, 424 A.2d 1302, 1305 (Pa. 1981). A plea is not unlawfully induced if it does not question the reliability of the manner in which [a petitioner s] guilt was determined. Commonwealth v. Laszczynski, 715 A.2d 1185, 1187 (Pa. Super. 1987). As with other claims of ineffectiveness, a petitioner must establish that he was prejudiced by counsel s act or omission. Commonwealth v. Chazin, 873 A.2d 932 (Pa.Super. 2005). Here, Appellant does not set forth any facts that, if proven true, would establish that he was prejudiced by counsel s actions. In his pro se PCRA petition, Appellant alleged that his guilty plea was involuntary because his counsel obtained it through Threats and Coercion by repeatedly pressuring Appellant to take any plea ; and that counsel failed to consider or pursue certain potentially exculpatory evidence. (Mem. Supp. PCRA Pet. 6 8, Aug. 11, 2010.) Specifically, Appellant alleges that counsel failed to investigate the alleged weapon for DNA TRACE EVIDENCE and to review the coroner s report. (Id.) Appellant alleges that this evidence would have proven exculpatory and that failure to review it in further detail was prejudicial. (Id.) We find that counsel s decision not to pursue DNA testing had a clear reasonable basis. In Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006), the Pennsylvania Supreme Court held that an attorney s decision not to seek potentially exculpatory DNA testing did not necessarily meet the reasonable basis of ineffective assistance. The court reasoned: It is easy to say that failing to pursue exculpatory evidence is ineffectiveness, but this presumes the evidence will be exculpatory. If counsel were sure the accused s DNA would not be revealed in any relevant samples from the victim or scene, certainly testing would give exculpatory results and should be sought. 369

4 370 However, the client s mere claim of innocence or alibi does not always settle the question; effectiveness of counsel is not dependent on accepting the candor of the client. Testing that shows the DNA matches suddenly makes a conviction one that might have been avoided or less than certain a sure thing. 899 A.2d at Accordingly, [n]ot seeking testing that has the potential to convict a client may be a very reasonable strategy;.... Id. In the instant case, counsel was aware of three particularly inculpating documents which were admitted into evidence at an omnibus pretrial hearing held on April 15, The first of these was a statement Appellant gave to police on September 7, 2007, the night of his arrest. (Omnibus Pretrial Hr g Tr , April 15, 2008.) In his statement to police, Appellant gave the following account: Kyle came out of somewhere & saw Kenny urinating on the sidewalk. When he said something to Kenny he took his phone & threw it across the street. Kenny turned around & walked on the other side of the car not paying Kyle any mind. It looked to me like Kyle was going to hit Kenny. I hollered, You, picked up a stick & hit him with it & he just dropped. I jumped in the car & the next thing I remember the cops were there.... Q: What did you do with the object you hit Kyle with? A: I don t remember. Q: What size was the object you used to hit Kyle with? A: I just smacked him in his face. It was about this long (indicating with his hand a length of approx. 18 inches). (Id. at ) A second piece of evidence was a statement given by Mr. Terry Kline, one of the other individuals present with Appellant the night of the event in question. (Id. at ) In this statement, which Kline gave to police the day after the victim was slain, he alleged that Appellant picked up an object and hit the gentleman with it and the gentleman fell to the sidewalk. After that we got in the vehicle to run. (Id. at 257.) A third piece of evidence was a letter Appellant wrote to Ms. Desiree Harper, who had previously been his teacher at Pennsylvania School of Business. (Id. at ) In this letter, Appellant gave Harper an account, which he described as a play by play, of the night s events: We came out of the bar [and] a friend got into an argument with some random person in the parking lot, so we calmed him down [and] got into the car. While driving down Main Street in Kutztown, we realized that we should gone to the bathroom before we left. So we stop right on Main St. to get out to take a leak. This Kyle kid makes a comment to my friend about this, so he said who you talking to, (the kid was on the phone)[.] Kyle said not you [and] my friend

5 took his phone [and] threw it across the street. Kyle did not go after his phone he went after my friend. Upon seeing this [and] knowing when someone is about to attack I bent down [and] picked up a table leg or something [and] swung. thinking the kid would stumble holding his head never thinking he would die. Scared out of my mind when I saw him hit the ground I jumped in the car. My friend got in behind me [and] we went to leave [and] the cops showed up. 371 (Id. at 266.) In light of this and other evidence introduced at the pretrial hearing, counsel had reason to believe that seeking DNA testing would strengthen, rather than weaken, the Commonwealth s case against Appellant; and counsel declined to seek testing. We find that this approach by counsel was not without a reasonable basis; consequently, it does not demonstrate ineffective assistance of counsel. Appellant also alleges that counsel improperly induced his guilty plea through Threats and Coercion, with the result that Appellant did not understand the consequences of his plea. (Mem. Supp. PCRA Pet. 6.) He claims counsel rendered deficient performance, in erroneously threatening Petitione[r] then Defendant that it is guaranteed you will lose and guaranteed you will receive a life sentence. (Id. at 7.) It must be remembered that Appellant was initially charged with first-degree murder and aggravated assault, among other charges. (See Information, Jan. 14, 2008.) In exchange for Appellant s plea of guilty to the third-degree murder and conspiracy counts, the remaining charges were dismissed on motion of the District Attorney. (See Disposition of Charges, Aug. 25, 2008.) Counsel s urging that Appellant accept such a bargain clearly did not lack a reasonable basis designed to effectuate Appellant s interest. In Commonwealth v. Higgins, 424 A.2d 1222 (Pa. 1980), an appellant charged with first-degree murder entered a guilty plea in which the degree of murder was reduced from first degree to third degree. The appellant challenged his conviction, arguing that counsel improperly advised him to accept the plea agreement because evidence existed to support a defense of insanity. 424 A.2d at The court held that although such evidence unquestionably existed, the absence of criminal responsibility under the proposed defense was not certain as a matter of law. Id. More importantly, there was evidence which, if believed, would have sustained a verdict of murder in the first degree. Id. at Under these circumstances, the court refused to find that counsel lacked a reasonable basis for recommending the plea agreement. Id. Here, as in Higgins, the absence of Appellant s criminal responsibility is not established by the record; to the contrary, there is ample evidence which, if believed, would have the potential to sustain convictions for the more serious crimes with which Appellant was initially charged. As in Higgins, Appellant now claims that his plea was improperly recommended by counsel. However, under the circumstances in the instant case, this recommendation cannot be said to lack a reasonable basis. In exchange for Appellant s guilty plea to third-degree murder and conspiracy, the charges of first-degree murder and aggravated assault were dismissed. Instead of

6 372 facing a sentence of life imprisonment, Appellant was sentenced to years followed by special probation. The law presumes that counsel was effective, and it is the petitioner s burden to prove otherwise. 42 Pa.C.S. 9543(a)(2)(ii); Commonwealth v. Loner, 836 A.2d 125 (Pa. Super. 2003). We concluded that this burden could not be met under the facts alleged. Rather, in light of the evidence available to the Commonwealth in its prosecution of Appellant, these allegations, if true, demonstrate that counsel reasonably weighed the available evidence, correctly advised Appellant of the potential penalty for the charges, and concluded that a trial was likely to result in a conviction and life sentence. We therefore concluded that these allegations, if proven true, would not demonstrate prejudice to Appellant. b. Appellant s guilty plea was knowing and voluntary. On August 8, 2008, Appellant entered a plea of guilty to third-degree murder and conspiracy to commit aggravated assault. As required in this Commonwealth, both written and oral colloquies were conducted in which Appellant acknowledged that a factual basis existed for his plea and that he understood his right to a trial by jury, his presumption of innocence, and the maximum penalties for the offenses charged. Commonwealth v. Pollard, 832 A.2d 517, (Pa.Super. 2003). Appellant also signed a written statement accompanying his guilty plea, in which he specifically averred: No one has forced me to plead guilty or threatened me to do so. I am pleading guilty on my own free will to the offenses listed on page one because I committed them. ( Statement Accompanying Defendant s Request to Enter a Guilty Plea, Aug. 6, 2008, 15.) Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise. Pollard, 832 A.2d at 523 (internal citations omitted). Consequently, a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. Id. A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy. Id. at Based on Appellant s statements in his written and oral colloquies, we found that Appellant s tendered plea of guilty was both knowing and voluntary and that there was a factual basis for it. (Guilty Plea Hr g Tr. 5, Aug. 6, 2008.) In his written colloquy, Appellant specifically denied that anyone had forced him or threatened him to induce his plea of guilty. He cannot now seek to withdraw his plea by asserting he lied under oath about having been threatened or induced into entering the plea, even if he avers that his counsel induced such lies. See Pollard, 832 A.2d at Accordingly, the facts alleged in Appellant s PCRA petition, if true, would not entitle him to withdraw his guilty plea. c. When Petitioner entered his guilty plea, he waived his right to challenge the court s denial of his request for appointed counsel.

7 Appellant filed a Pretrial Motion for: Appointment of Court Appointed Counsel on July 18, The Court held a hearing on the motion on July 28, 2008, and at the conclusion of the hearing we issued an order denying the motion for appointment of counsel. Appellant alleged in his pro se PCRA petition that the Court erred by not appointing counsel to represent him during the hearing on his motion for courtappointed counsel, and that the Court erred in its denial of said motion. (Mem. 3 5.) However, these claims of error were waived upon Appellant s entry of a guilty plea on August 8, During the oral colloquy that took place pursuant to Appellant s plea, the following question was asked by the district attorney and answered by Appellant: 373 MR. KURLAND: Do you understand that if you plead guilty, you give up any rights you have at trial and any right to contest the judge s decision in your pretrial motion? THE DEFENDANT: Yes, sir. (Guilty Plea Hr g Tr. 2.) In addition, Appellant signed a written statement accompanying his guilty plea, in which he indicated his understanding that he was waiving his pre-trial rights. ( Statement Accompanying Defendant s Request to Enter a Guilty Plea, 13.) Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. Pollard, 832 A.2d at 523 (internal citations omitted). Based on Appellant s statements in his written and oral colloquies, we found that Appellant s tendered plea of guilty was both knowing and voluntary and that there was a factual basis for it. (Tr. 5.) Accordingly, Appellant has waived the right to challenge anything but the legality of his sentence and the validity of his plea. See Commonwealth v. Montgomery, 401 A.2d 318, 319 (Pa. 1979). Therefore, any challenge to our order of July 28, 2008, denying his motion for appointment of counsel, is waived, and therefore Appellant is ineligible for relief under the Post Conviction Relief Act. 42 Pa.C.S. 9543(3). Furthermore, even if such claims were not waived, Appellant s contention that he should be appointed counsel to represent him during the hearing on his motion for court-appointed counsel is meritless. Appellant points to no authority, and our research uncovers none, in support of this proposition. If a criminal defendant were entitled to court-appointed counsel at every hearing held for the purpose of determining whether or not he was entitled to court-appointed counsel, our courts would be perpetually locked in an infinite loop. We submit that this contention is unsupported by the law of our Commonwealth and is, indeed, absurd. Because we concluded that the facts alleged in Appellant s PCRA petition, even if proven true, would not entitle him to the relief sought, we denied Appellant s request for an evidentiary PCRA hearing.

8 374 II. Hearing on Motion to Appoint New Counsel was Conducted Appropriately In Appellant s 1925(b) statement, he contends that the hearing held on July 28, 2008, pursuant to his Pretrial Motion for: Appointment of Court Appointed Counsel was improperly conducted in the presence of the district attorney: Trial court erred in the confrontation that it caused at the pretrial Motion For Change of Counsel dated July 28, 2008, wherein Judge Yatron conducted an on the record colloquy, and during said colloquy, pitted attorney and client against one another. Also causing the defense to relinquish particular stratogies in the presence of the District Attorney, causing severe prejudice to the defendant. (Concise Statement at 4.) In general, upon the filing of a pretrial motion, if the court determines the motion requires a hearing or argument, it is required to schedule a date and time for the hearing and to notify all parties. Pa.R.Crim.P. 577(A)(2); id In this case, after Appellant filed a motion seeking court-appointed counsel, we scheduled a hearing for July 28, 2008, and notified counsel for Appellant and for the Commonwealth of the hearing. Both parties were present at the hearing. At the hearing on Appellant s motion, we specifically warned Appellant that there was a risk of revealing to the attorneys for the Commonwealth any theories or strategies which they would not otherwise be entitled to hear, or that his counsel might also be required to reveal such theories or strategies. (Hr g Tr. 4, Jul. 28, 2008.) Appellant responded that he understood. (Id.) Appellant then proceeded to describe his alleged problems with his counsel, while speaking in general terms. Specifically, Appellant testified that he had written his counsel a letter requesting that certain witnesses be asked certain questions (Id. at 4 5); that he had requested that his trial be conducted a certain way (Id. at 5); that he had requested that certain people be investigated, and that counsel had delayed such investigation (Id. at 8); and that he and counsel had disagreed regarding the interpretation of Pa.R.E. 701 as applied to proposed testimony by one of Appellant s relatives (Id. at 9 10). Appellant did not at any time reveal the names of witnesses, the contents of the proposed testimony, or the contents of any confidential communication between himself and counsel. 1 Nor did counsel at any time reveal such information or disclose defensive strategy during the course of this hearing. 2 1 Appellant fails to provide specific examples in his 1925(b) statement of any such revelation. Appellant contends, generally, that defense counsel was compelled to relinquish particular strat[e]gies in the presence of the District Attorney, causing severe prejudice to the defendant. (Concise Statement at 4.) When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. Commonwealth v. Rolan, 964 A.2d 398, (Pa.Super. 2008) Where the trial court orders an Appellant to file a concise statement of matters complained of on appeal under Pa.R.A.P.1925, any issue not contained in that statement is waived on appeal. Id. at Even if such strategies had been revealed, counsel is not prohibited from disclosing elements of defensive strategy in this context. It is true that in general, counsel in a criminal proceeding is prohibited from testifying to or disclosing confidential communications, including litigation strategy.

9 After taking into account Appellant s motion, as well as evidence presented at the hearing, we concluded that Appellant s counsel was thoroughly and fully qualified to defend cases of this nature. (Tr. 6.) There is no authority to suggest that a defendant who is dissatisfied with the services of the public defender should automatically be entitled to court-appointed counsel. To the contrary, the courts of our Commonwealth have held that a defendant is not entitled to appointed counsel of his choice. Commonwealth v. Burkett, 5 A.3d 1260, 1277 (Pa.Super. 2010); see also Commonwealth v. Abu-Jamal, 720 A.2d 79, 109 (Pa. 1998) ( While an accused is constitutionally guaranteed the right to the assistance of counsel, that right gives to a defendant only the right to choose, at his or her own cost, any attorney desired. Where... an accused is indigent, the right involves counsel, but not free counsel of choice. ); Commonwealth v. Johnson, 236 A.2d 805, 807 (Pa. 1968) ( [A]n indigent, while entitled to free counsel, is not entitled to free counsel of his choice. ). Having concluded that counsel s representation of Appellant was satisfactory, we denied Appellant s motion for appointment of counsel at the conclusion of the hearing on July 28, (Tr. 11.) III. Ineffective Assistance of Appellate Counsel and PCRA Counsel Claims Lack Merit Appellant makes several allegations that his counsel was ineffective at each stage in essentially every proceeding that has taken place to date, including his 2009 appeal and the PCRA petition that is the subject of this appeal. The merits of these allegations as to trial counsel have been addressed in Part I of this Opinion. Appellant s claims of ineffective assistance on his 2009 appeal and the PCRA petition itself were not raised in his PCRA petition and are therefore beyond the scope this appeal. See Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010) ( The scope of review [in a PCRA appeal] is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level. ). Accordingly, for the foregoing reasons, we respectfully submit that Appellant s appeal be DENIED and his sentence AFFIRMED Pa.C.S. 5916; Commonwealth v. Chmiel, 738 A.2d 406, 414 (Pa. 1999). However, [w]hen a claim for relief is based on an allegation of ineffective assistance of counsel as a ground for relief, any privilege concerning counsel s representation as to that issue shall be automatically terminated. 42 Pa.C.S. 9545(d)(3); Chmeil, 738 A.2d at 414 n.2. When Appellant challenged the competence of his counsel based on counsel s defensive strategy, this challenge served as a waiver of the privilege regarding that strategy.

10 376 Exhibit A

11 377

12 378

13 379

14 380

15 381

16 382

17 383

18 384