J-S48027-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
RALPH M. DUNCAN,                        :
                                        :
                  Appellant             :   No. 167 WDA 2015

               Appeal from the PCRA Order December 22, 2014,
                   Court of Common Pleas, Indiana County,
               Criminal Division at No. CP-32-CR-0000978-2012


COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
RALPH M. DUNCAN,                        :
                                        :
                  Appellant             :   No. 168 WDA 2015

               Appeal from the PCRA Order December 22, 2014,
                   Court of Common Pleas, Indiana County,
               Criminal Division at No. CP-32-CR-0000827-2012


COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
RALPH M. DUNCAN,                        :
                                        :
                  Appellant             :   No. 169 WDA 2015

               Appeal from the PCRA Order December 22, 2014,
                   Court of Common Pleas, Indiana County,
               Criminal Division at No. CP-32-CR-0000822-2012
J-S48027-15


BEFORE: PANELLA, DONOHUE and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED AUGUST 18, 2015

     Ralph M. Duncan (“Duncan”) appeals from the December 22, 2014

order entered by the Indiana County Court of Common Pleas denying his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546 (“PCRA”). Upon review, we affirm.

     On December 7, 2012, Duncan pled guilty to crimes charged at three

separate dockets in a single proceeding. The first related to sexual assaults

perpetrated by Duncan upon his stepdaughter, A.H., from the time she was

thirteen until she was sixteen. He was charged with rape, endangering the

welfare of children, corruption of minors, indecent assault, sexual assault

and involuntary deviate sexual intercourse (“IDSI”).1 The IDSI charge was

dismissed following testimony at the preliminary hearing. Duncan ultimately

pled guilty only to sexual assault, and the Commonwealth nol prossed the

remaining charges pursuant to the plea agreement.

     The second set of charges, for witness intimidation, grew out of the

first, as Duncan threatened his wife, A.H.’s mother, who allegedly knew that

Duncan was sexually assaulting A.H., in an attempt to stop her from




1
  18 Pa.C.S.A. §§ 3121(a)(2), 4304(a)(1), 6301(a)(1), 3126(a)(8), 4124.1,
3123(a)(7).


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testifying against him. Duncan pled guilty to one count of intimidation of a

witness.2

       The third set of charges, also for witness intimidation, related to a

sexual assault allegedly perpetrated by Duncan’s son against his stepson in

or around 2009. Duncan threatened his stepson not to tell anyone about the

assault, causing his stepson to recant.     Duncan again pled guilty to one

count of intimidation of a witness.

       The sentencing hearing occurred on March 25, 2013.       In accordance

with the plea agreement, the Commonwealth recommended that Duncan’s

sentences for each of the crimes run concurrently with one another.        The

trial court rejected this recommendation, sentencing Duncan to four and a

half to ten years of incarceration for sexual assault and to two to ten years

of incarceration for each of the witness intimidation convictions, ordering all

of the sentences to run consecutively. Duncan’s aggregate sentence totaled

eight and a half to thirty years of imprisonment.

       Duncan filed a timely post-sentence motion to modify his sentence,

which the trial court denied. At Duncan’s request, the trial court reinstated

his direct appeal rights nunc pro tunc on May 13, 2013. On direct appeal,

counsel filed an Anders brief and requested permission to withdraw as

counsel. On February 10, 2014, this Court affirmed Duncan’s judgment of

sentence and granted counsel’s petition to withdraw.


2
    18 Pa.C.S.A. § 4952(a)(2).


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      On May 13, 2014, Duncan filed a timely pro se PCRA petition.        The

PCRA court appointed counsel, who filed an amended petition on Duncan’s

behalf on September 25, 2014.         The PCRA court held a hearing on the

amended petition on December 3, 2014, following which it entered an order

and opinion denying relief.

      Duncan filed a timely notice of appeal and complied with the PCRA

court’s order for the filing of a concise statement of errors complained of on

appeal.      The PCRA court entered a responsive order indicating that it was

relying upon its December 23, 2014 opinion denying Duncan’s PCRA petition.

      On appeal, Duncan raises the following issues for our review:

      I.       Whether the PC[]RA court erred when it made a
               finding that defense counsel was effective counsel,
               even though counsel knew about [Duncan]’s hearing
               disability and informed him how to respond during
               his   guilty   plea  hearing,  making    his  plea
               unknowing[]?

      II.      Whether the PC[]RA court erred when it made a
               finding that defense counsel was effective counsel,
               even though counsel told [Duncan] that he would
               face no more than a three[] and[] one[] half to
               seven year prison sentence?

      III.     Whether the PC[]RA court erred when it made a
               finding that defense counsel was effective counsel,
               even though counsel scared [Duncan] into taking
               [sic] a guilty plea?

Duncan’s Brief at 4.

      Our review of a PCRA decision “is limited to the findings of the PCRA

court and the evidence on the record of the PCRA court’s hearing, viewed in



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the light most favorable to the prevailing party.”       Commonwealth v.

Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015) (en banc) (citation

omitted).   “Because most PCRA appeals involve questions of fact and law,

we employ a mixed standard of review. We defer to the PCRA court’s factual

findings and credibility determinations supported by the record. In contrast,

we review the PCRA court’s legal conclusions de novo.”           Id. (internal

citations and italicization omitted).

      In all three arguments raised, Duncan contends that his plea was

unlawfully induced by plea counsel’s erroneous and/or improper advice and

that he is actually innocent of the charges to which he pled guilty.     Thus,

Duncan couches all three issues in terms of plea counsel’s ineffectiveness.

In resolving a question of counsel’s effectiveness, we begin with the

presumption that counsel rendered effective assistance.      Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014).                 To overcome that

presumption, the petitioner must establish:    “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable probability

that the result of the proceeding would have been different.” Id. (citation

omitted). If the petitioner fails to prove any of these prongs, the claim is

subject to dismissal. Id.




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      Claims of ineffective assistance of counsel in connection with the

appellant’s entry     of a guilty plea are      cognizable   under    the   PCRA.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014), appeal

denied, 95 A.3d 277 (Pa. 2014).

                 Allegations of ineffectiveness in connection with
             the entry of a guilty plea will serve as a basis for
             relief only if the ineffectiveness caused [the
             a]ppellant to enter an involuntary or unknowing
             plea. In determining whether a guilty plea was
             entered knowingly and intelligently, a reviewing
             court must review all of the circumstances
             surrounding the entry of that plea.

Commonwealth v. Mitchell, 105 A.3d 1257, 1272 (Pa. 2014) (citation

omitted). To prove that he was prejudiced by counsel’s ineffectiveness, “the

defendant must demonstrate a reasonable probability that the result of the

waiver     proceeding     would   have   been    different   absent     counsel’s

ineffectiveness[.]”     Commonwealth v. Mallory, 941 A.2d 686, 702 (Pa.

2008), cert. denied, 555 U.S. 884 (2008).

      As his first issue on appeal, Duncan asserts that he was unable to hear

“certain points” of the plea colloquy conducted by the trial court, but

answered “yes” to the questions posed by the trial court on the advice of

counsel.   Duncan’s Brief at 26.   Duncan asserts that this renders his plea

“unknowingly and involuntarily” entered.    Id. at 26-27.     He further states

that “[d]efense [c]ounsel’s act in giving [Duncan] erroneous advice in

inducing [Duncan] to plead guilty deeply prejudiced [Duncan].” Id. at 27.




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      Nowhere in this argument does Duncan indicate what portions of the

plea colloquy he was allegedly unable to hear or that he would not have

entered his plea but for the advice of counsel. We therefore have no basis

to conclude that he was prejudiced by counsel’s alleged ineffectiveness.

Mitchell, 105 A.3d at 1272; Mallory, 941 A.2d at 702.

      Moreover, the PCRA court found that plea counsel did not advise

Duncan to answer “yes” to every question posed during the plea colloquy if

he was unable to hear the questions. PCRA Court Opinion, 12/23/14, at 6.

This finding has ample record support.      Although Duncan testified at the

PCRA hearing that plea counsel instructed him to “say yes” if the plea court

asked him a question he could not hear, N.T., 12/3/14, at 29, plea counsel

testified that he never so instructed Duncan. Id. at 56. As the PCRA court

correctly notes, there were numerous questions presented during the plea

colloquy to which Duncan provided more than a simple “yes” as an answer.

PCRA Court Opinion, 12/23/14, at 6; see, e.g., N.T., 12/7/12, at 5, 8, 9, 12,

13, 15.   Furthermore, as the PCRA court observed, plea counsel informed

the plea court of Duncan’s hearing impairment and the plea court instructed

Duncan to inform the plea court if he could not hear what was being said,

which Duncan did on several occasions throughout the colloquy. PCRA Court

Opinion, 12/23/14, at 6; N.T., 12/7/12, at 2, 6, 10, 12, 13. As the record

supports the PCRA court’s conclusion that this claim is meritless, no relief is

due. See Reyes-Rodriguez, 111 A.3d at 779.



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      As his second issue on appeal, Duncan asserts that plea counsel was

ineffective for advising him that he would receive only three and a half to

seven years of incarceration if he entered a guilty plea. Duncan’s Brief at

29-31.   The PCRA court found that this claim had no merit.      PCRA Court

Opinion, 12/23/14, at 5.

      The record reflects that Duncan testified at the PCRA hearing that

pursuant to discussions with plea counsel, he understood that by pleading

guilty, he “would probably get like three and a half years to seven.” N.T.,

12/3/14, at 27. Duncan denied that plea counsel ever informed him that he

could receive a longer term of incarceration. Id. at 28. He admitted that he

signed the plea colloquy, which states that the maximum possible

punishments for the crimes to which he pled guilty was thirty years of

incarceration, but Duncan testified that he did not understand those portions

of the colloquy and “just went along with what I did because I trusted [plea

counsel].” Id. at 31-32. Duncan further denied that he received any letters

from plea counsel explaining the maximum possible punishments for the

crimes or that he understood the maximum possible punishments as stated

by the plea court during his oral colloquy. Id. at 35-36.

      Plea counsel, on the other hand, testified that he spoke with Duncan

on several occasions regarding the maximum possible sentence he could

receive for the crimes to which Duncan pled guilty and that Duncan

expressed an understanding of what the maximum sentences were. Id. at



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60-61.     Plea counsel further testified that he wrote a detailed letter to

Duncan on September 18, 2012, wherein he, inter alia, “provided the range

of sentences, the maximum and the mandatories,” and explained in

reference to a prior plea deal offered by the Commonwealth, “that a

recommendation is not something the [plea court] has to accept.”        Id. at

53-54.    Furthermore, plea counsel testified that a representative from the

Office of the Public Defender reviewed the written plea colloquy with

Duncan, as was the practice of that office, and plea counsel followed up with

Duncan afterwards to ensure he had no questions about the colloquy. Id. at

58-59. According to plea counsel, Duncan expressed no confusion about the

possible term of incarceration to which he was exposed by virtue of his guilty

plea.    Id. at 59.   Furthermore, the record reflects that during the oral

colloquy, the plea court informed Duncan that his “maximum exposure on

the three cases would be thirty [] years [of] imprisonment,” and Duncan

indicated that he understood. N.T., 12/7/12, at 10.

        The PCRA court found plea counsel’s testimony to be credible and

concluded that plea counsel did not advise Duncan that he would only

receive three and a half to seven years of incarceration if he pled guilty, and

as stated, we defer to the PCRA court’s credibility determinations. Reyes-

Rodriguez, 111 A.3d at 779. Moreover, “[t]he law does not require that

[the defendant] be pleased with the outcome of his decision to enter a plea

of guilty: All that is required is that [his] decision to plead guilty be



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knowingly, voluntarily, and intelligently made.” Commonwealth v. Willis,

68 A.3d 997, 1002 (Pa. Super. 2013) (citation omitted).         As the record

reflects that Duncan’s guilty plea was knowingly, voluntarily and intelligently

entered, no relief is due.

      In his final issue raised on appeal, Duncan contends that plea counsel

“scared” him into pleading guilty by telling him he had little chance of

winning at trial and that Duncan would be sentenced to ten to thirty years of

incarceration if he lost at trial. Duncan’s Brief at 33-35. Duncan suggests

that because he asserted his innocence and there were defenses that could

have been presented, i.e., that his stepdaughter had run away to be with

her boyfriend a week prior to making the allegations of sexual assault

against Duncan, that counsel’s statements induced him to plead guilty when

he should not have. Id. at 34-35.

      “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.”

Lippert, 85 A.3d at 1100. Relying upon Duncan’s answers during his plea

colloquy and plea counsel’s testimony regarding why he recommended that

Duncan enter a guilty plea, the PCRA court found that the issue was

meritless, as “[t]here is no indication that [plea counsel]’s advice was

outside the range of competence for a criminal attorney[.]”       PCRA Court

Opinion, 12/23/14, at 4.



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     The record reflects that plea counsel represented Duncan at both of his

preliminary hearings.   At that time, he zealously questioned the witnesses

presented and advocated on behalf of his client.      See generally N.T.,

1/27/12, at 3-4, 18-37, 39-40, 41, 44, 48-49, 51, 53-58, 60-61, 62-64, 72-

74, 75; N.T., 7/30/12, at 5, 7-14, 16-21, 24-27. The record from the first

preliminary hearing (pertaining to Duncan’s sexual assault of A.H. and

intimidation of A.H.’s mother as a witness) reflects that A.H. testified

regarding the sexual acts perpetrated against her by Duncan. She testified

that he began by touching her vagina and breasts over her clothes and

ultimately began raping her when she was fifteen years old, and that her

mother was complicit in the assaults, purchasing condoms for Duncan to use

to have sex with her daughter. N.T., 1/27/12, at 11-16. A.H.’s mother had

given a statement to the police confirming her knowledge of the assaults and

that she bought condoms at Duncan’s direction so that he could have sex

with A.H.   Id. at 50-52.     A.H.’s mother further testified that Duncan

threatened that he would throw her out of the house if she did not recant.

Id. at 46-47. During A.H.’s mother’s testimony at the preliminary hearing,

the record reflects that Duncan had to be instructed by the lower court not

to make “gestures” at the witness. Id. at 58.

     The record from the second preliminary hearing, pertaining to

Duncan’s intimidation of T.H., reveals that T.H. reported to police in 2009

that Duncan’s adult son had touched him on his “bad spot,” but



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subsequently recanted. N.T., 6/30/12, at 5, 26-27. T.H. testified that he

recanted because Duncan told him that if he did not recant, T.H. would be

removed from his mother’s care. Id. at 6. T.H. testified that he was alone

with Duncan when Duncan threatened him.        Id. at 13. A.H. testified that

she was present on several occasions when Duncan threatened T.H. and told

him to recant his allegations against Duncan’s son. Id. at 16-17.

     In his brief on appeal, Duncan’s claims of innocence are all based upon

his perception that the witnesses did not provide credible testimony at the

preliminary hearings. Duncan’s Brief at 35-37. At the PCRA hearing, plea

counsel testified that he believed A.H. was a very credible witness.    N.T.,

12/3/14, at 67.    Plea counsel observed “[w]hen watching her testifying,

seeing her demeanor, she had an apparent blatantly outright fear of looking

at [Duncan].”     Id.   Plea counsel stated that he considered all possible

defenses and did not believe any would be successful at trial:

              Much of what [Duncan] was saying was relying
           upon [A.H.] having sex with [her] boyfriend.        I
           considered that as problematic at trial, evidentiary
           reasons why. The issue of anger between the two of
           them[,] I considered that. I read through the diaries
           that were spoken about. To me[,] it would have
           been the only defense that I could have come up
           with but it did not seem to be a strong defense
           simply because everything that was written in the
           diary that I saw could easily be written because she
           wanted out of the house, not necessarily [to be] with
           the boyfriend.




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N.T., 12/3/14, at 52-53. Plea counsel specifically considered the fact that

A.H. ran away a week before disclosing the alleged assaults to police, but

counsel did not think this information helped Duncan’s defense. Id. at 64.

Although Duncan thought this was clear proof that A.H. had a motive to lie –

that A.H. made up the allegations so that she could be with her boyfriend, of

whom Duncan did not approve, see id. at 13-15, Duncan’s Brief at 35-36 –

the record reflects that A.H. testified at the preliminary hearing that Duncan

did not approve of her boyfriend because he found her dating to be

comparable to her “cheating” on Duncan. N.T., 6/27/12, at 17. If believed,

this testimony would be detrimental to his case.

      Plea counsel testified that he recommended Duncan accept the

Commonwealth’s plea offer “based on the facts,” and his observation of

A.H.’s “testimony and her demeanor during her testimony,” which he

categorized as “quite telling.”   N.T., 12/3/14, at 63-64.   Plea counsel also

noted that Duncan was facing a mandatory minimum sentence of ten years

upon conviction of rape, making the plea deal, which did not include the

rape charge, a “good deal” from plea counsel’s point of view. Id. at 57; see

42 Pa.C.S.A. § 9718(a)(1).3

      Viewing the record in the light most favorable to the Commonwealth

as we are required, we see no error in the PCRA court’s determination that


3
   Section 9718 was deemed unconstitutional in Commonwealth v. Wolfe,
106 A.3d 800, 805 (Pa. Super. 2014). At the time Duncan entered his guilty
plea, however, it was still good law.


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counsel was not ineffective for recommending that Duncan plead guilty. See

Reyes-Rodriguez, 111 A.3d at 779.     We agree with the PCRA court that

plea counsel did not “scare” Duncan into pleading guilty, but provided him

with information about the criminal process and counsel’s opinion based

upon his observations and knowledge as a criminal attorney. Like the PCRA

court, we discern nothing in the record that leads us to conclude that

counsel’s advice was outside the range of competence required for an

attorney in a criminal case.   See Lippert, 85 A.3d at 1100.     As such,

Duncan is due no relief.

      Order affirmed..



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2015




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