J-S15005-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

DENNIS JUBILEE

                            Appellant                 No. 219 EDA 2016


                 Appeal from the PCRA Order December 7, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014300-2011


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 07, 2017

       Dennis Jubilee appeals pro se from the December 7, 2015 order1

denying him PCRA relief. We affirm.

____________________________________________


1
    Appellant mailed his notice of appeal from prison, but mistakenly sent it to
the trial court, which indicated that it received the pro se notice of appeal on
January 4, 2016, within thirty days of the order’s issuance. That trial court
should have forwarded the timely notice of appeal to the Office of Judicial
Records of the Court of Common Pleas of Philadelphia County, which now
serves the criminal court. Pursuant to Pa.R.A.P. 905(a)(1), a notice of
appeal “shall be filed with the clerk of the trial court.” However, “If a notice
of appeal is mistakenly filed in an appellate court, or is otherwise filed in an
incorrect office within the unified judicial system, the clerk shall immediately
stamp it with the date of receipt and transmit it to the clerk of the court
which entered the order appealed from, and upon payment of an additional
filing fee the notice of appeal shall be deemed filed in the trial court on the
date originally filed.” Pa.R.A.P. 905(a)(4).        The notice of appeal was
mistakenly sent by this pro se litigant to the trial court, which is part of the
unified judicial system, and that court should have transmitted it to the
(Footnote Continued Next Page)
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        On November 25, 2011, Appellant was charged with aggravated

assault, possession of an instrument of crime, simple assault, and reckless

endangerment, based upon the following. At around 10:00 p.m. on October

9, 2011, the victim, Jerald Matthews, was on the steps of a vacant house in

the 4500 block of Wayne Avenue, Philadelphia, and was drinking a can of

beer.    Appellant, whom Mr. Matthews had known for about twenty years,

approached him, said he wanted a can of beer, and stated that he planned

to buy one.

        Mr. Matthews nodded off to sleep, awaking about one minute later. At

that time, Appellant was drinking a can of beer, and Mr. Matthews’ can was

missing.    Mr. Matthews demanded that Appellant return the beer, and the

two men argued.         Appellant then placed the can down on the ground and

told Mr. Matthews to touch it. When Mr. Matthews reached for that object,

Appellant swung a knife at Mr. Matthews, inflicting a cut on the victim’s jaw

and neck that was about six-inches long. Mr. Matthews applied his shirt to

the wound to stem the bleeding, quickly returned home, and called for an

ambulance.      He was transported to a hospital and underwent surgery.

Appellant was on probation at the time of the crime.

                       _______________________
(Footnote Continued)

appropriate filing office in Philadelphia County.        Since Appellant is
proceeding in forma pauperis, he was not required to file a fee, and we
consider the notice of appeal as filed on the day it was received by the trial
court.



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      On August 20, 2013, Appellant tendered a guilty plea to aggravated

assault and possession of an instrument of crime.            In return, the

Commonwealth nol prossed the remaining charges and recommended a

sentence of twelve and one-half to twenty-five years imprisonment, to be

served currently with the sentence imposed on the violation of probation

sentence.    During the colloquy, the plea court noted that this crime was

Appellant’s third crime of violence and that he would have faced a twenty-

five year minimum term, had the Commonwealth sought to apply 42 Pa.C.S.

§ 9714. See 42 Pa.C.S. § 9714(a)(2) (“Where the person had at the time of

the commission of the current offense previously been convicted of two or

more such crimes of violence arising from separate criminal transactions, the

person shall be sentenced to a minimum sentence of at least 25 years of

total confinement[.]”).   After accepting Appellant’s guilty plea, the court

imposed the recommended sentence of twelve and one-half to twenty-five

years in jail.

      On July 9, 2014, Appellant filed a timely PCRA petition, counsel was

appointed, and counsel filed a no-merit letter and petition to withdraw

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

After sending notice of its intent to dismiss the petition without a hearing,

the PCRA court concluded that there was no merit to any issue raised in the

pro se petition, Appellant was not entitled to PCRA relief, granted counsel’s

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request to withdraw, and denied the pro se PCRA petition.            This appeal,

which we will consider timely, see footnote 1, supra, followed.         Appellant

presents these issues for our review:

       I. Ineffective assistance of counsel for counsel's failure to
       properly investigate the mental health history of Appellant, to
       file a motion to suppress the statement of the "victim", and
       PCRA Counsel's failure to challenge the Guilty plea colloquy.

       II. Appellant was prejudiced by the failure of plea counsel to
       secure all of the evidence and statements of the parties
       involved.

Appellant’s brief at 5.2

       Initially, we note that this Court reviews the “denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444

(Pa. 2015)). “This Court grants great deference to the findings of the PCRA

court, and we will not disturb those findings merely because the record could

support a contrary holding.         We will not disturb the PCRA court's findings

unless the record fails to support those findings.” Commonwealth v.

Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation omitted).


____________________________________________


2
  These issues were presented in Appellant’s PCRA petition. In his brief,
these two issues appear under the heading “Summary of the Argument.”
However, since the page in the brief actually mimics the “Statement of
Questions Involved,” we will treat it as such.



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      The first position that Appellant advances in his brief is an assertion

that plea counsel ineffectively induced his plea by neglecting to investigate

his mental history of schizophrenia and bi-polar disorder.           Appellant

suggests that plea counsel’s ineffectiveness in this respect induced his guilty

plea since his mental state presented a defense to the mens rea elements of

the crimes.

      In order to obtain relief based upon ineffective assistance of counsel,

the defendant must demonstrate: “(1) the underlying claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for his or her

action or inaction; and (3) but for the errors and omissions of counsel, there

is a reasonable probability that the outcome of the proceedings would have

been different.” Patterson, supra at 397-98. “A defendant is permitted to

withdraw his guilty plea under the PCRA if ineffective assistance of counsel

caused the defendant to enter an involuntary plea of guilty.” Id. at 397

(citation omitted); accord Commonwealth v. Fears, 86 A.3d 795, 806–07

(Pa. 2014) (citation omitted) (“Allegations of ineffectiveness in connection

with the entry of a guilty plea will serve as a basis for relief only if the

ineffectiveness caused appellant to enter an involuntary or unknowing

plea.”). “The voluntariness of the plea depends on whether counsel's advice

was within the range of competence demanded of attorneys in criminal

cases.” Patterson, supra at 397 (citation omitted).




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       The record belies the assertion that counsel was unaware of

Appellant’s mental health history as well as the fact that Appellant’s mental

health provided a defense herein. Appellant informed the plea court that he

had been diagnosed with, “Schizoid effect.” N.T. Guilty Plea, 8/20/13, at 5.

Appellant then represented that it had been successfully treated with

“therapy and medication.” Id. at 5. Appellant was taking two medications

for the disorder when he entered the plea, but explained that the medicines

did not affect his ability to participate and understand the plea proceeding.

This representation was confirmed by Appellant’s responses which were

cogent and intelligent to the plea court’s inquiries.

       Mental illness, as a defense to a crime, is contained in 18 Pa.C.S. §

314:

              (a) General rule.—A person who timely offers a defense
       of insanity in accordance with the Rules of Criminal Procedure
       may be found “guilty but mentally ill” at trial if the trier of facts
       finds, beyond a reasonable doubt, that the person is guilty of an
       offense, was mentally ill at the time of the commission of the
       offense and was not legally insane at the time of the commission
       of the offense.

18 Pa.C.S. § 314(a). A person is mentally ill if “as a result of mental disease

or defect, lacks substantial capacity either to appreciate the wrongfulness of

his conduct or to conform his conduct to the requirements of the law.” 18

Pa.C.S. § 314(c)(1). Legal insanity is defined as follows: “At the time of the

commission of the act, the defendant was laboring under such a defect of

reason, from disease of the mind, as not to know the nature and quality of

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the act he was doing or, if he did know it, that he did not know he was doing

what was wrong.” 18 Pa.C.S. § 314(c)(2).

      Appellant represented at the plea hearing that his mental illness had

been successfully treated with medication and therapy. His answers to the

questions posed during the plea colloquy confirmed that portrayal of his

mental state.   Thus, Appellant admitted at the plea colloquy that he was

neither mentally ill nor legally insane. As we have repeatedly articulated:

            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.

            The longstanding rule of Pennsylvania law is that 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. A person who elects to plead guilty is bound by the
      statements he makes in open court while under oath and may
      not later assert grounds for withdrawing the plea which
      contradict the statements he made at his plea colloquy.

            A defendant who elects to plead guilty has a duty to
      answer questions truthfully. We [cannot] permit a defendant to
      postpone the final disposition of his case by lying to the court
      and later alleging that his lies were induced by the prompting of
      counsel.

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)

(citation omitted).     Herein, Appellant is bound by his statement that his

mental illness had been successfully treated, and he cannot now charge plea

counsel with ineffectiveness for failing to defend these charges on the basis

of his mental health.




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      As outlined supra, Appellant’s second claim, in the first issue that he

raises in his statement of issues involved in this appeal, is plea counsel was

ineffective for not filing a motion to suppress the statement of the victim.

However, a victim’s statement cannot be suppressed; a defendant can

obtain suppression of his own statement or other evidence if it was obtained

unconstitutionally. In addition, the record indicates that Appellant made no

statement, and there was no other evidence involved herein. The victim’s

statement clearly made out the elements of the crimes in question.

      Appellant’s third position in his first statement of issues involved in this

appeal is that counsel should have challenged the guilty plea colloquy. In

his brief, he fails to specify how the colloquy was defective, and our review

indicates that it was thorough and conformed to the law.           We therefore

cannot grant relief on this basis.

      In his second statement of issues involved in this appeal, Appellant

claims he was prejudiced by plea counsel’s failure to secure all of the

evidence and statements of the parties involved. The evidence of the crime

in this case was premised upon one statement, that of the victim.             Mr.

Matthews’s version of events was clearly articulated in the affidavit of

probable cause and established the elements of the crimes of aggravated

assault and possession of an instrument of crime.

      In his brief, at pages eight through nine, Appellant raises another

contention. He avers that there are missing portions of the record, and, due

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to these purportedly missing items, the government has interfered with his

ability to present claims. Our review of the certified record indicates that it

is complete, and Appellant does not identify what item it is lacking.        The

problem with Appellant’s arguments, as outlined above, is that they are

actually belied by the documents that the record does contain. No evidence

was procured by police interrogation or search, and there was nothing to

suppress.     There was only one witness, whose statement appears in the

affidavit of probable cause. The plea colloquy is contained in the record and

was available to Appellant, and he was able to direct this Court to any deficit

in it.    Hence, we disagree with Appellant’s second position, which is that

legal material is missing, which interfered with his ability to seek PCRA relief.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2017




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