J. A15043/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                     v.                        :
                                               :
NEIL PAL,                                      :        No. 1986 MDA 2017
                                               :
                            Appellant          :


                Appeal from the PCRA Order, December 1, 2017,
              in the Court of Common Pleas of Lackawanna County
                Criminal Division at No. CP-35-CR-0002269-2013


BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: NOVEMBER 9, 2018

        Neil Pal appeals the order of December 1, 2017 issued by the Court of

Common Pleas of Lackawanna County that denied his first petition filed

pursuant to the PCRA.1 After careful review, we affirm.2

        The relevant facts and procedural history, as gleaned from the PCRA

court opinion, are as follows:          Appellant and Jason Dominick (“Dominick”)

were best friends.        (PCRA court opinion, 12/1/17, at 5.)    Dominick had a

long-time volatile relationship with Keri Tucker (“Tucker”).         From March

through May 2013, Tucker and Frank Bonacci (“Bonacci”) were involved

romantically, while Tucker and Dominick were not seeing each other.           On


1   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

2On April 12, 2018, this court granted appellant’s application to exceed the
word limit on his brief.
J. A15043/18

May 5, 2013, Dominick sent a text message to appellant, which stated, “just

so you know, [appellant], I’m cool with your boy [Bonacci], but if he ever gets

cocky around me I will just snuff him.” Bonacci and Tucker stopped dating in

May 2013 as Tucker and Dominick resumed their relationship. (Id. at 6-7.)

      On June 8, 2013, Dominick challenged Bonacci to meet him at Roaring

Brook Step Falls (“Step Falls”) and fight following the receipt of a text message

from Bonacci concerning Tucker and an incident in which Bonacci bumped

Tucker at a bar. Bonacci alerted appellant by text that Dominick wanted to

fight him.      Appellant went to Step Falls and met Dominick and Tucker.

Appellant spoke to Bonacci by telephone and encouraged him to come and

fight Dominick. Bonacci did not come to Step Falls. (Id. at 7.)

      At approximately 2:30 a.m. on July 20, 2013, Bonacci arrived at a party

hosted by appellant. By 6:00 a.m., all of the partygoers had either left or

retired   for   the   night   except   for   appellant,   Dominick,   Bonacci,   and

Brandon Emily (“Emily”).       Appellant told Emily that he was going to drive

Dominick and Bonacci to their respective apartments in Bonacci’s Jeep. At

approximately 6:50 a.m., Emily heard the Jeep start. A University of Scranton

surveillance camera that was located a few blocks from appellant’s residence

videotaped Bonacci’s Jeep as it crossed railroad tracks and approached an

access road for Step Falls at 6:51 a.m. (Id. at 11-12.)

      On July 27, 2013, police located Bonacci’s decomposing body in the front

passenger seat of his Jeep at the bottom of a steep embankment in a wooded



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area near Step Falls less than one mile from appellant’s residence. The police

deduced that Bonacci had not been operating the Jeep when it went down the

embankment and 72-foot ravine. As part of the autopsy, Gary Ross, M.D.,

determined that Bonacci’s cause of death was a single gunshot wound to the

head and manner of death was termed a homicide.            (Id. at 3-4.)   Police

arrested appellant on August 1, 2013. (Id. at 21.)

        Following a jury trial, appellant was convicted of first-degree murder

(accomplice) and criminal conspiracy on June 12, 2014, and was sentenced to

an aggregate term of life imprisonment on September 5, 2014.3 (Id. at 23.)

        On September 11, 2014, appellant’s trial attorneys withdrew their

appearances.      Also on September 11, 2014, appellant’s new counsel,

William C. Costopoulos, Esq., entered his appearance and filed post-trial

motions. On January 9, 2015, the trial court denied the post-trial motions.

Appellant timely appealed to this court. (Id. at 23-24.) This court affirmed

on November 17, 2015, and the Pennsylvania Supreme Court denied

appellant’s    petition   for   allowance   of   appeal   on   May   11,   2016.

Commonwealth v. Pal, 134 A.3d 496 (Pa.Super. 2015) (memorandum

decision), appeal denied, 138 A.3d 3 (Pa. 2016).

        On March 7, 2017, appellant filed a timely, counseled PCRA petition and

requested a new trial because of the ineffective assistance of counsel,

Paul Walker, Esq.     (“Attorney Walker”) and       Matthew    Comerford, Esq.


3   18 Pa.C.S.A. §§ 2502(a) and 903(a), respectively.


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(“Attorney Comerford”). Appellant asserted that trial counsel was ineffective

for failing to raise objections to his sequestration barring him from speaking

with counsel until his cross-examination had concluded, to testimony offered

by Detective Michael Schultz (“Detective Schultz”), and to alleged hearsay

statements of Dominick.4 (Id. at 24.) Appellant also asserted that his counsel

was   ineffective    because   they   recommended     that   he   decline   the

Commonwealth’s offer of a guilty plea to third-degree murder. (Id.)

      On June 29, 2017, the PCRA court conducted a hearing. At the hearing,

appellant withdrew his claim for ineffectiveness with respect to Dominick’s

testimony. (Id. at 25.) On December 1, 2017, the PCRA court denied the

petition. The PCRA court completed an extensive opinion that accompanied

the December 1, 2017 order. On December 18, 2017, appellant filed a notice

of appeal. The trial court did not direct appellant to file a concise statement

of errors complained of on appeal.

      On appeal, appellant raises the following issues for this court’s review:

            A.      Whether defense trial counsel were ineffective
                    for failing to know the law and object to the
                    sequestration of appellant from counsel during
                    the overnight break in his testimony and prior
                    to closing arguments, which violated his state
                    and federal constitutional right to counsel?

4 Dominick was tried separately. Dominick was convicted of third-degree
murder, 18 Pa.C.S.A. § 2502(c), and criminal conspiracy to commit
third-degree murder, 18 Pa.C.S.A. § 903(a). He was sentenced to an
aggregate term of 40 to 80 years’ imprisonment. He appealed to this court
which affirmed. Dominick appealed to the Pennsylvania Supreme Court which
denied his appeal. Commonwealth v. Dominick, 136 A.3d 1025 (Pa.Super.
2016) (memorandum decision), appeal denied, 141 A.3d 478 (Pa. 2016).


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            B.     Whether defense counsel were ineffective for
                   failing to object to Detective Schultz’s extensive
                   testimony regarding his “interpretations” of the
                   text messages, emails, phone calls and
                   Facebook entries by appellant, [Dominick] and
                   other witnesses in this case which were beyond
                   his competence, inadmissible, prejudicial, they
                   spoke for themselves, and counsel compounded
                   the error by then eliciting on cross the
                   detective’s opinions on appellant’s intent,
                   credibility and actual guilt?

            C.     Whether defense trial counsel rendered
                   appellant ineffective assistance of counsel by
                   failing to affirmatively recommend to him that
                   he accept the third-degree murder plea bargain
                   offered by the prosecution, especially in light of
                   the overwhelming evidence against him and
                   given the fact that according to his own
                   testimony, as prepared by counsel, he could be
                   convicted of third-degree murder as skillfully
                   argued to the jury in closing by the prosecutor?

Appellant’s brief at 6.

      We limit our review of a PCRA court’s decision to examining whether the

record supports the PCRA court’s findings of fact and whether its conclusions

of law are free from legal error. Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015) (citations omitted). We view the PCRA court’s findings and

the evidence of record in a light most favorable to the prevailing party. Id.

      To be entitled to PCRA relief, the defendant bears the burden of

establishing, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so



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undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i) and

(ii); see also Mason, 130 A.3d at 618 (citations omitted).

      Instantly, appellant first complains that trial counsel were ineffective for

failing to object to appellant’s sequestration from counsel during the overnight

break in his testimony and prior to closing arguments which violated his state

and federal constitutional right to counsel. (Appellant’s brief at 13.)

            Counsel is presumed effective, and in order to
            overcome that presumption a PCRA petitioner must
            plead and prove that: (1) the legal claim underlying
            the ineffectiveness claim has arguable merit;
            (2) counsel’s action or inaction lacked any reasonable
            basis designed to effectuate petitioner’s interest; and
            (3) counsel’s action or inaction resulted in prejudice
            to petitioner. With regard to reasonable basis, the
            PCRA court does not question whether there were
            other more logical courses of action which counsel
            could have pursued; rather, [the court] must examine
            whether counsel’s decisions had any reasonable basis.
            Where matters of strategy and tactics are concerned,
            [a] finding that a chosen strategy lacked a reasonable
            basis is not warranted unless it can be concluded that
            an alternative not chosen offered a potential for
            success substantially greater than the course actually
            pursued. To demonstrate prejudice, a petitioner must
            show that there is a reasonable probability that, but
            for counsel’s actions or inactions, the result of the
            proceeding would have been different. Failure to
            establish any prong of the . . . test will defeat an
            ineffectiveness claim.

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

      On June 11, 2014, appellant was testifying on direct examination when

the trial court called for a mid-afternoon break at 3:30 p.m.          (Notes of



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testimony, 6/11/14 at 249.)            Cross-examination commenced shortly

thereafter. (Id. at 259.) At approximately 4:45 p.m., the trial court called

for a recess until the next morning. (Id. at 302.)

      After the jury exited the courtroom, the trial court, appellant,

Attorney Walker, appellant’s counsel, Curt Parkins, Esq. (“Attorney Parkins”),

the Commonwealth’s attorneys, William Fisher, Esq. (“Attorney Fisher”), and

Brian Gallagher, Esq. (“Attorney Gallagher”), engaged in the following

discussion:

              THE COURT: Because of the fact that you are under
              examination nobody, including your lawyers, can talk
              to you. Do you understand?

              [Appellant]: Yeah.

              THE COURT: Counsel, I instructed him about being
              under examination and not being able to speak to you.

              [Attorney Walker]: It’s difficult to prepare our closing
              without consulting with the client.

              THE COURT: What was that?

              [Attorney Walker]: It’s difficult to prepare a closing
              without consulting with your client.

              THE COURT: What else would you have to --

              [Attorney Walker]: I don’t know, Judge. The Schultz
              examination was timed by the District Attorney’s
              Office so it wasn’t broken, that’s all I can say.

              THE COURT: I’m sorry?

              [Attorney Walker]: That’s all I can say. Schultz’s
              examination was timed by the District Attorney’s
              Office so it would not be broken. They decided to put


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           filler witnesses on and take him the next day and now
           -- and their reasoning was that they didn’t want his
           examination broken, and the inability to consult with
           him as a prosecutor.

           THE COURT: Are you planning on going out to the jail
           tonight?

           [Attorney Walker]: I was going to consult with him
           on the preparation of my closings.

           THE COURT: Going out to the jail tonight?

           [Attorney Fisher]: My position would be, Judge, is the
           case law says that counsel cannot discuss any matters
           in the trial with the witness while he is on the stand
           and that’s a defendant case.

           THE COURT: Yeah.

           [Attorney Walker]: I’m well aware of the case law.
           I’m just saying --

           THE COURT: Do you want us to disregard the case
           law?

           [Attorney Walker]: No, I just wanted a point for the
           record to say that the Commonwealth timed the
           questioning of Schultz based on their [sic] didn’t want
           to break the questioning and wanted him available so
           they put two filler witnesses in.

           ....

           [Attorney Fisher]: What’s the alternative? What are
           your suggestions

           [Attorney Walker]: I don’t have a suggestion. I made
           one of him staying up on the stand, but --

Notes of testimony, 6/11/14 at 303-306.




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        At the PCRA hearing with respect to the sequestration order,

Attorney Walker testified on cross-examination that he did object to the trial

court’s directive that appellant not speak with his counsel until after his

testimony was complete: “I think that record is abundantly clear that I was,

in fact, objecting.   I may have not used the term objection.       But I said

something to the effect of that I couldn’t talk to him that I was upset about

that and that the Commonwealth did something with Schultz.”          (Notes of

testimony, 6/29/17 at 23-24.)

        Attorney Walker further testified that appellant was “perfectly okay”

with the trial court’s sequestration order. (Id. at 25.) Attorney Walker stated

that he did not plan to see appellant that night. (Id. at 26.) Attorney Walker

also testified that after the conclusion of cross-examination the next day, he

had the opportunity to speak with appellant, and appellant did not express

any concerns over his inability to speak with Attorney Walker the night before.

(Id. at 27.) When Attorney Walker talked with appellant at the break after

his cross-examination, appellant had no input into the closing argument. (Id.

at 28.)

        Appellant testified that his only opportunity to speak with his counsel

was during the brief mid-morning recess.            (Id. at 147-148.)       On

cross-examination, when asked whether Attorney Walker objected to the

sequestration order, appellant answered, “He questioned it, yes.”      (Id. at

156.)



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     In ruling on this issue, the PCRA court acknowledged that if appellant

had been deprived of his right to counsel under the Sixth Amendment to the

United States Constitution and trial counsel had not objected to the

deprivation of constitutional rights, then review of the issue was properly a

matter of collateral review.   (PCRA court opinion, 12/1/17, at 32.)     See

Commonwealth v. Kennedy, 959 A.2d 916, 922 (Pa. 2008), cert. denied,

556 U.S. 1258 (2009).

     However, the PCRA court determined that appellant’s argument failed

because his counsel, Attorney Walker, did object to the sequestration order.

(PCRA court opinion, 12/1/17, at 32.) The PCRA court reasoned that while

Attorney Walker did not say the words, “I object,” his comments to the court

were sufficient to constitute an objection and to preserve the issue for

post-trial and appellate review. (Id. at 32-33.)

     A review of the trial record confirms that Attorney Walker vigorously

protested the trial court’s sequestration order and engaged in argument with

the trial court and opposing counsel.        (Notes of testimony, 6/11/14 at

303-306.) Further, when he testified at the PCRA hearing, Attorney Walker

unequivocally testified that he did object. (Notes of testimony, 6/29/17 at

23-24.) Also at the PCRA hearing, appellant conceded that Attorney Walker

verbally questioned the order. (Id. at 156.)

     In Commonwealth v. Turner, 450 A.2d 9, 11 (Pa.Super. 1982), this

court held that defense counsel, in effect, made an objection to the



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admissibility of a witness’s testimony, even though the defense counsel did

not utter the magic words, “I object.” Therefore, Attorney Walker’s comments

were sufficient to constitute an objection. Consequently, appellant’s argument

that his counsel failed to object is without merit.        Counsel cannot be

considered ineffective for failing to assert an objection when counsel did raise

the objection at trial.   See Commonwealth v. Johnson, 828 A.2d 1009,

1015 (Pa. 2003).    This court concludes that the record supports the PCRA

court’s factual findings on this issue and that the PCRA court did not err in

making its legal conclusion. Appellant did not meet the first prong of the test

for ineffective assistance of counsel as he did not raise a claim that has

arguable merit.

      Appellant next contends that his trial counsel were ineffective because

they failed to object to Detective Schultz’s testimony regarding his

interpretations of the text messages, emails, phone calls, and Facebook

entries by appellant, Dominick, and other witnesses which were beyond his

competence and were extremely prejudicial to appellant. Because appellant’s

counsel did not object to this testimony, appellant argues that counsel was

ineffective. (Appellant’s brief at 30.) He asserts that this testimony violated

Rule 602 of the Pennsylvania Rules of Evidence that permits a witness to

testify only if he had personal knowledge of the matter.       (Id. at 33-35.)

Appellant asserts that Detective Schultz did not testify as to matters of his

own personal knowledge and did not qualify as an expert witness under



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Rule 702 of the Pennsylvania Rules of Evidence. (Id. at 35-36.) He could not

give an opinion as a lay witness because his opinion was not “rationally based

on his perception.” (Id. at 37.) See Pa.R.E. 701. Appellant also asserts that

his counsel compounded the error by eliciting on cross-examination

Detective Schultz’s opinions on appellant’s credibility, intent, and actual guilt.

(Appellant’s brief at 44-51.)

      Appellant asserts that his defense was that he was unaware Dominick

had a gun and was unaware that Dominick intended to shoot Bonacci. He

further asserts that the Commonwealth’s theory was that appellant was guilty

of third-degree murder based on appellant’s statement, that appellant gave

his gun to Dominick for Dominick to shoot Bonacci, and that appellant

conspired with Dominick in a plot to kill Bonacci. As a result, appellant argues

that the interpretation of the evidence as it applied to his specific intent and

state of mind was the critical determination to be made by the jury.

(Appellant’s brief at 29.)

      At the PCRA hearing, Attorney Comerford testified that he did not care

if Detective Schultz testified as to what he thought was appellant’s motive.

He explained, “I didn’t think it was credible. So call it strategy or what. I

didn’t care if he said that 25 times on the stand.”        (Notes of testimony,

6/29/17 at 65.) When asked why he did not object more often on hearsay

grounds to Detective Schultz’s testimony, Attorney Comerford explained, “You

got [sic] to pick your battles. . . . I objected twice in . . . in four pages of



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testimony. I mean, I think the objection was noted. And I respected the

Judge’s ruling.” (Id. at 74.) Attorney Comerford also explained why he did

not object to Detective Schultz’s explanation of the significance of Dominick’s

text message that he would “snuff” Bonacci if he ever got “cocky around” him:

             I didn’t think that was a credible assertion by Schultz
             two months before that they started planning this
             conspiracy to murder [Bonacci]. Is that what Schultz
             was saying? I thought it was confusing. I thought it
             was a stretch. And I wanted the ability on cross
             examination to give the jury my own interpretation.

Id. at 77.

      Attorney Comerford further explained his overall strategy with respect

to Detective Schultz:

             I thought his interpretations were unreasonable. I
             thought he would come across to the jury as dishonest
             because he only interpreted things that were
             favorable to him in a light favorable to the
             Commonwealth. And when there was [sic] obvious
             facts presented to him that were favorable to the
             defense, he refused to interpret them that way.

Id. at 78.

      Attorney Comerford      testified   that   when     he    cross-examined

Detective Schultz, that he really did not care what his answers were because

the questions supported the conclusions that he was ultimately looking to put

forth to the jury. (Id. at 86.) According to Attorney Comerford, he did not

object when Detective Schultz was asked for the significance of a particular

text message or Facebook post because of 1) trial strategy, as he could then




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ask a leading question on cross-examination, and 2) the vast majority of the

questions related to facts that the defense conceded. (Id. at 90-91.)

      On cross-examination, Attorney Comerford further explained that it was

his strategy to concede that appellant participated in a cover-up of the crime

after it happened. (Id. at 112.) In addition, he added that many of the text

messages between Dominick and Bonacci indicated a problem between the

two, which could indicate motive, and some text messages before the crime

from Dominick indicated that he was having some sort of emotional

breakdown unbeknownst to appellant.           (Id. at 113.)   Attorney Comerford

stated that he asked Detective Schultz questions on cross-examination

knowing that his answer would favor the Commonwealth in an effort to have

him lose credibility in the eyes of the jury. (Id. at 128.)

      The PCRA court determined that Detective Schultz was permitted to

interpret the text message from Dominick to appellant that stated Dominick

would “snuff” Bonacci if he got cocky as Dominick was stating he would kill

him because he was testifying based on his own perception of the electronic

communication under Rule 701 of the Pennsylvania Rules of Evidence. (PCRA

court opinion, 12/1/17 at 47.)     Even if Detective Schultz’s testimony was

objectionable, the PCRA court concluded that Attorney Comerford articulated

a reasonable strategic reason for not objecting because he believed that

Detective Schultz’s claim that this text message placed appellant on notice

that Dominick might kill Bonacci “was a stretch” and had a negative effect on



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Detective Schultz’s credibility.          (Id. at 47-48.)     The PCRA court further

determined that appellant’s counsel had a reasonable strategic basis not to

object as often as appellant believes he should have. (Id. at 48.)

      Appellant     also        asserts   that    after   Attorney    Comerford    had

Detective Schultz identify text messages between Bonacci and appellant that

reflected a friendly relationship, Attorney Comerford asked Detective Schultz

if he believed that appellant engaged in a conspiracy to kill Bonacci within

five days after the last of these messages.               Detective Schultz answered,

“Absolutely.” Appellant does not believe that was reasonable trial strategy.

(Appellant’s brief at 49.)

      With   respect       to    this   issue,   the   PCRA   court   determined   that

Attorney Comerford’s strategy to damage Detective Schultz’s credibility by

showing his unwillingness to concede any point favorable to appellant was

reasonable and designed to promote appellant’s interests.                 (PCRA court

opinion, 12/1/17, at 52.)

      With regard to the reasonable basis prong, a court will conclude that a

strategy is not reasonable if an appellant proves that an alternative strategy

offered a potential for success substantially greater than the course that was

actually pursued.    See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa.

2011).   Counsel is not constitutionally required to put forth all possible

objections at trial, and the reasonableness of counsel’s performance is “not

measured by an exercise in ‘spot the objection,’ as might occur in a law school



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evidence examination.” Commonwealth v. Spotz, 870 A.2d 822, 832 (Pa.

2005).     Here, the PCRA court did not err when it concluded that

Attorney Comerford’s strategy was reasonable because appellant did not

prove that an alternative course had the potential of providing a substantially

greater chance of success than the route chosen by counsel.

      Appellant   next   contends   that   trial   counsel   provided   ineffective

assistance by failing to affirmatively recommend to him that he accept the

third-degree murder plea bargain in light of the overwhelming evidence

against him and given the fact that, based on his own testimony, he could be

convicted of third-degree murder as the Commonwealth argued in its closing.

(Appellant’s brief at 57-58.)

      In order for a petitioner to establish that counsel’s ineffectiveness

caused the petitioner to reject a guilty plea, the petitioner must show that but

for the ineffective advice of counsel, there is a reasonable probability that the

petitioner would have accepted the plea, the prosecution would not have

withdrawn the plea offer, that the court would have accepted its terms, and

that the conviction or sentence, or both, under the terms of the offers, would

have been less severe than the judgment and sentence that were actually

imposed.    Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa.Super.

2015), appeal denied, 140 A.3d 13 (Pa. 2016), citing Lafler v. Cooper, 566

U.S. 156, 163 (2012).




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      At the PCRA hearing, appellant testified that Attorney Comerford

informed him that the Commonwealth made him an open plea offer of

third-degree murder and told him the sentence at the very least would be for

10 years. Appellant testified that Attorney Comerford did not specifically tell

him that 20 to 40 years would be the sentence. (Notes of testimony, 6/29/17

at 148.) Appellant further testified that his counsel did not inform him that

he could be convicted of third-degree murder even if the jury believed his

testimony, but in its closing, the Commonwealth asserted that based upon the

law and appellant’s own testimony, he was guilty of third-degree murder. (Id.

at 150.) When questioned as to whether he would have taken a third-degree

murder plea if his counsel had advised him that the story appellant told them

and told the jury would be sufficient to convict him of third degree murder,

appellant replied, “I definitely would have considered it.”    (Id.)   Appellant

reported that Attorney Comerford did not give appellant a recommendation as

to whether he should accept the plea when Attorney Comerford presented it

to him. (Id. at 151.)

      Attorney Walker testified that early on, appellant told him that he would

not entertain a plea offer. (Id. at 30.) Attorney Walker recalled that the final

plea offer was for third-degree murder with a recommendation of 20 to

40 years. (Id. at 31.)

      Attorney Comerford testified that the Commonwealth would not offer

third-degree murder unless the trial court agreed to a 20 to 40-year sentence.



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(Id. at 57.) Attorney Comerford testified that he did not give appellant an

estimate of the percentage chance of winning but “[appellant] knew there was

a very real chance of being convicted of first degree murder.” (Id. at 106.)

Attorney Comerford recalled how appellant reacted when he was presented

with the plea offer:

            He turned it down. He was angry. And then I
            communicated to him that, you know, [appellant],
            you have to understand as one of your attorneys, I’m
            not trying to come out here and fight with you. I have
            to communicate with you what is on the table because
            it’s ultimately your life. I go home after this no matter
            what.”

Id. at 107-108.

      Attorney Comerford explained when appellant rejected the plea offer,

“he didn’t consider it. And I doubt he would take it as if he sits here today. I

doubt he would take 20 to 40.”        (Id. at 108-109.)     Attorney Comerford

testified that he did not advise appellant to reject the offer. (Id.)

      The PCRA court concluded that, based on the credible evidence of

Attorney Comerford and the applicable case law, appellant failed to prove that

his former attorneys were ineffective in connection with the plea negotiation

process. (PCRA court opinion, 12/1/17, at 60-61.)

      As the PCRA court stated in its comprehensive opinion, appellant failed

to establish that there was a reasonable probability that he would have

accepted the plea offer if his counsel had advised him that the story he told

them and told the jury would be sufficient to convict him of third-degree



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murder. When asked that specific question, appellant replied, “I definitely

would have considered it.” (Id. at 150.) Merely considering an offer is not

the same as a reasonable probability that appellant would have accepted the

plea. For instance, in Steckley, Steward Steckley, Jr., testified at his PCRA

hearing that he would have pleaded guilty had he known about a 25-year

mandatory minimum sentence. Steckley, 128 A.3d at 830. Further, here, in

contrast to Steckley, Attorney Walker and Attorney Comerford did not admit

that they were ineffective in failing to advise appellant to accept a plea offer

as the attorney did in Steckley. Appellant has failed to establish that his

counsel was ineffective with respect to the possible plea agreement.

Furthermore, he has failed to prove that counsel was ineffective in any of the

issues he raises.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2018




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