J-S52039-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
               Appellee                   :
                                          :
                   v.                     :
                                          :
LAGENZA JUNIOUS,                          :
                                          :
               Appellant                  :   No. 284 MDA 2018

               Appeal from the PCRA Order January 18, 2018
             in the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0000639-2013

BEFORE:    BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER,J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED NOVEMBER 30, 2018

      Lagenza Junious (Appellant) appeals pro se from the January 18, 2018

order, which denied his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      We provide the following background. On February 17, 2015, Appellant

entered into a negotiated guilty plea to a series of charges stemming from his

actions on December 20, 2012. Early that morning, Appellant forcibly entered

the home of his former romantic partner, Adreanne Evans, shot her twice, and

killed her. In addition, Appellant shot and injured Sterling Brown, Adreanne’s

then romantic partner. Also present were Sage Evans, Adreanne’s mother,

and the infant child of Appellant and Adreanne. Appellant was charged with

murder, attempted murder, aggravated assault, burglary, persons not to

possess firearms, and three counts of recklessly endangering another person




* Retired Senior Judge assigned to the Superior Court.
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(REAP).    The Commonwealth filed notice of its intent to seek the death

penalty.

      Pursuant to a negotiated plea agreement, Appellant pleaded guilty to a

sentence of life in prison without parole (LWOP) in exchange for the

Commonwealth no longer seeking the death penalty.          Sentencing on the

remaining charges would be left to the trial court’s discretion. On February

17, 2015, the trial court accepted Appellant’s guilty plea and imposed an

aggregate term of 20 to 40 years of incarceration on the remaining charges

to be served consecutively to the LWOP sentence.

      Appellant timely filed a post-sentence motion seeking reconsideration of

the non-negotiated portion of his sentence.     That motion was denied, and

Appellant appealed to this Court. On appeal, this Court affirmed Appellant’s

judgment of sentence, and our Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Junious, 141 A.3d 593 (Pa. Super.

2016) (unpublished memorandum), appeal denied, 141 A.3d 479 (Pa. 2016).

      On April 19, 2017, Appellant pro se timely filed a PCRA petition. In that

petition, Appellant claimed that his guilty plea was entered involuntarily and

unknowingly due to the ineffective assistance of trial counsel. See PCRA

Petition, 4/19/2017, at ¶ 5. The PCRA court appointed Attorney Jennifer E.

Tobias to represent Appellant.    On July 11, 2017, Attorney Tobias filed a

petition to withdraw as counsel, after concluding that the allegations of

ineffective assistance of counsel set forth by Appellant in his petition lacked


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merit.1   On October 30, 2017, the PCRA court entered an order granting

counsel’s petition to withdraw after agreeing with counsel that Appellant’s

issues lacked merit. The PCRA court provided notice pursuant to Pa.R.Crim.P.

907 of its intention to dismiss Appellant’s petition within 20 days. Appellant

pro se filed a response, which included a claim that Attorney Tobias was

ineffective in her PCRA representation. On January 18, 2018, the PCRA court

entered an order dismissing Appellant’s petition.      Appellant timely filed a

notice of appeal, and both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

       On appeal, Appellant sets forth a number of issues for review. See

Appellant’s Brief at 4-5. As all of the issues involve review from the denial of

a PCRA petition, the alleged ineffective assistance of counsel, and Appellant’s

guilty plea, we set forth the following principles.

       In reviewing an appeal from the denial of PCRA relief, “[w]e must

examine whether the record supports the PCRA court’s determination, and

whether the PCRA court’s determination is free of legal error. The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Mikell, 968 A.2d 779, 780 (Pa. Super.




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1  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the procedures and requirements for withdrawing as counsel at
the post-conviction stage).

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2009) (quoting Commonwealth v. Lawrence, 960 A.2d 473, 476 (Pa.

Super. 2008) (citations omitted)).

      Where Appellant is claiming trial and PCRA counsel were ineffective, we

observe that

         [i]t is well-established that counsel is presumed to have
         provided effective representation unless the PCRA petitioner
         pleads and proves all of the following: (1) the underlying
         legal claim is of arguable merit; (2) counsel’s action or
         inaction lacked any objectively reasonable basis designed to
         effectuate his client’s interest; and (3) prejudice, to the
         effect that there was a reasonable probability of a different
         outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal

citations omitted). In addition, because Appellant entered into a guilty plea,

we keep in mind the following.

      The right to the constitutionally effective assistance of counsel
      extends to counsel’s role in guiding his client with regard to the
      consequences of entering into a guilty plea.

      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 defendant to enter an involuntary or unknowing plea.
      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.

      Thus, to establish prejudice, the defendant must show that there
      is a reasonable probability that, but for counsel’s errors, he would
      not have pleaded guilty and would have insisted on going to trial.
      The reasonable probability test is not a stringent one; it merely


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      refers to a probability sufficient to undermine confidence in the
      outcome.

      Our Supreme Court also has held as follows:

            Central to the question of whether [a] defendant’s
            plea was entered voluntarily and knowingly is the fact
            that the defendant know and understand the nature
            of the offenses charged in as plain a fashion as
            possible…. [A] guilty plea is not a ceremony of
            innocence, it is an occasion where one offers a
            confession of guilt. Thus, … a trial judge [and, by
            extension, plea counsel] is not required to go to
            unnecessary lengths to discuss every nuance of the
            law regarding a defendant’s waiver of his right to a
            jury trial in order to render a guilty plea voluntary and
            knowing.

Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013)

(citations and quotation marks omitted).

      We now turn to the issues Appellant sets forth for our review, beginning

with Appellant’s contention that trial counsel was ineffective because counsel

allegedly threatened to “withdraw from the case if [Appellant] continued to

insist on going to trial.” Appellant’s Brief at 18. According to Appellant, it was

these threats that caused him to enter into an involuntary guilty plea because

counsel would not prepare for trial. Id. at 19.

      Our review of the record reveals that the trial court appointed the Office

of the Public Defender to represent Appellant, and two attorneys, Paul Muller,

Esquire, and Jessica Bush, Esquire, acted as co-counsel on Appellant’s behalf.

On May 6, 2014, Attorneys Muller and Bush filed a motion to withdraw.

According to counsel, Appellant had filed a complaint with the Disciplinary


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Board of the Supreme Court of Pennsylvania asserting that both counsel were

ineffective. Thus, counsel requested that they be permitted to withdraw.2

        The trial court held a hearing on the petition on November 14, 2014.

Appellant had the opportunity to explain to the trial court why he was

dissatisfied with the representation,3 and counsel had the opportunity to

explain to the trial court what they had done to prepare the case.4 In the end,

the trial court denied the motion to withdraw as counsel, concluding it was

“satisfied with the representation that has occurred to this point in time.” N.T.,

11/14/2014, at 15.       At no point during that hearing did Appellant ever claim

that counsel had threatened him in any respect.

        Subsequently, at Appellant’s plea hearing, he was asked whether

“anyone made any threats or promises to [him] in order to get [him] to accept

this plea and plead guilty[.]” N.T., 2/17/2015, at 13. Appellant responded,

“No.” Id. at 14. Based upon the foregoing, the record does not support any


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2   At this point, the Commonwealth was still seeking the death penalty.

3 Appellant set forth a litany of complaints about counsels’ representation,
including their failing to hire a private investigator, failing to prepare a
defense, and trying to convince Appellant to take a plea deal instead of going
to trial. See N.T., 11/14/2014, at 3-8.

4 Counsel explained to the trial court that they used staff investigators from
the Office of the Public Defender, had hired a mitigation specialist at extra
expense, and hired a clinical psychologist, Dr. Frank Dattilo, to perform an
evaluation. In addition, the mitigation specialist prepared “a voluminous
mitigation report, [which included] interviews with dozens and dozens of
witnesses and file folders full of supplementary material.” N.T., 11/14/2014,
at 11.

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suggestion that trial counsel made any threats to Appellant as he claimed. In

fact, the record fully supports a conclusion that counsel had prepared

extensively for trial, but Appellant decided to plead guilty. See id. at 19

(explaining that he is “taking this plea of life so [he doesn’t] take [the victim’s

mother] through the trial herself”). Thus, we agree with the PCRA court that

there is no arguable merit to Appellant’s claim of ineffective assistance of

counsel on this basis.       Therefore, the PCRA court did not err in denying

Appellant relief.

       Appellant next claims that trial counsel was ineffective for failing to

investigate and prepare defenses.5 Appellant’s Brief at 21-24. According to


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5 To the extent Appellant is claiming that counsel did not prepare any
defenses, the record does not support that claim. During Appellant’s plea
hearing, counsel presented the following information to the trial court about
the defenses that could have been presented on Appellant’s behalf.

             Just briefly, on behalf of [Appellant]. Had we been prepared
       to go to trial on this matter – and he does understand that we
       were going to be picking a jury today – that we would have been
       presenting a defense that he was intoxicated at the time of the
       murder. There was evidence that he had been drinking heavily
       for days before the incident including the day before the incident.

             He does understand that there were some problems with
       that defense, especially since you heard the suppression hearing,
       Your Honor, that they did test his alcohol at the hospital, which
       did not reveal any alcohol at the time of the testing.

            However, it wouldn’t have revealed that he could have been
       under the influence of some kind of alcohol at the time of the
       murder. Whether it was to justify it to third[-]degree murder, it



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Appellant, counsel did not investigate a “heat of passion defense theory.” Id.

at 21. Appellant argues that he was so impassioned when he found Adreanne

“in bed with her lover” that “he had no time to reflect and acted out of rage.”

Id. at 22.

             A heat of passion defense is a partial defense that addresses
       the element of intent and, if successfully argued, mitigates first-
       degree murder to third-degree murder.[6] See [Commonwealth]
       v. Hutchinson, [] 25 A.3d 722, 314 ([Pa.] 2011). It seeks to
       show that the defendant is guilty of voluntary manslaughter, not
       murder, by proving that at the time of the killing he or she was
       acting under a sudden and intense passion resulting from serious
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       would have been up to the jury, and he recognizes the problem
       with that.

             He did want me to reiterate to the [c]ourt, to the victims’
       family, that he was not in his right mind at the time of the crime;
       that he was intoxicated; but that he is willing to accept the
       negotiated plea agreement in order to avoid the death penalty,
       and willing to plead to first[-]degree murder.

               It was further explained to him that the Commonwealth
       would have presented [] a jury instruction to the jury that if a
       firearm was used on a vital part of the body, that you can infer
       specific intent. And I did explain that to him, being the nature of
       the injuries for Adreanne, that it could have been specific intent
       to kill.

N.T., 2/17/2015, at 17-18.

6 We point out that this sentence is legally incorrect, is dictum, and it is the
only Supreme Court case that sets forth this proposition. As evidenced both
by Hutchinson, 25 A.3d at 314 (stating that “[a] defendant accused of
murder may establish that he or she is guilty, not of murder, but rather of
voluntary manslaughter, by proving that, at the time of the killing, he or she
was acting under a sudden and intense passion resulting from serious
provocation by the victim”), and the sentence and statute that follows, it is
clear that a heat of passion defense mitigates first-degree murder to voluntary
manslaughter.

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       provocation by the victim. See 18 Pa.C.S. § 2503(a) (“[a] person
       who kills an individual without lawful justification commits
       voluntary manslaughter if at the time of the killing he is acting
       under a sudden and intense passion resulting from serious
       provocation by ... the individual killed.”).

             In order to successfully argue heat of passion, a defendant
       must prove (1) provocation on the part of the victim, (2) that a
       reasonable man [or woman] who was confronted with the
       provoking events would become impassioned to the extent that
       his [or her] mind was incapable of cool reflection, and (3) that the
       defendant did not have sufficient cooling off time between the
       provocation and the killing.

Commonwealth v. Mason, 130 A.3d 601, 627-28 (Pa. 2015) (some citations

omitted).

       In this case, Appellant and Adreanne “lived in adjoining apartments.”

N.T., 2/17/2015, at 14. Appellant forced his way into Adreanne’s apartment

with a gun. Id. Based upon these facts, it is clear that it was Appellant, not

the victim, who provoked the situation.          Accordingly, there is no arguable

merit to the contention that counsel should have pursued a heat of passion

defense. Thus, Appellant is not entitled to relief on this basis.

       In his next claim, Appellant sets forth several arguments surrounding

the trial court’s actions in adducing the factual basis for his guilty plea. 7 See

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7 Appellant also claims that trial counsel was ineffective for not informing him
of various aspects of the law that would have been available to him on appeal
had he been sentenced to death following a trial. See Appellant’s Brief at 26.
Appellant did not present this issue in his PCRA petition; therefore, it is
waived. See Commonwealth v. Paddy, 15 A.3d 431, 446 (Pa. 2011)
(“Failure to raise an issue before the PCRA court results in waiver.”). However,
even if Appellant did not waive this issue, he would not be entitled to relief.



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Appellant’s Brief at 24-26.         Appellant argues that “no contemporaneous

dialogue occurred between the [trial court] and Appellant” and therefore he

“did not have an understanding of the charges against him in the context of

law and relation to the facts.” Id. at 25. He goes onto complain that although

he “understood the facts that he was responsible for the death of a person[,]”

he   was    “unable     to   understand        the   Commonwealth’s   narration   and

characterization that formed a specific intent to kill.” Id. at 25. He further

claims that he “did not receive the Commonwealth’s narrative of events until

the day of [the] plea colloquy.” Id. Moreover, Appellant suggests that the

“Commonwealth presented no admissible evidence on-the-record in support

of the charges” and therefore “a manifest injustice occurred.” Id. In addition,

Appellant argues that direct appeal counsel was ineffective for failing to raise

on appeal this trial court error. Id. at 30-31.

       “The factual basis requisite is among six elements, which … this Court

has maintained are essential to a valid plea colloquy. See Pa.R.Crim.P.

590(A)(2) (comment).” Commonwealth v. Flanagan, 854 A.2d 489, 500

(Pa. 2004).     “Although this Court has stressed its strong preference for a



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At Appellant’s plea and sentencing hearing, he explained that the reason he
was pleading guilty was not due to “a fear of going to death row,” but was
because it was his “way of trying to take responsibility.” N.T., 2/17/2015, at
28. Thus, even if counsel had explained to Appellant his rights available had
he been sentenced to death, Appellant’s own words make clear that it would
not have changed his decision to plead guilty, and therefore the outcome
would not have been different. Thus, he would not be entitled to relief.

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dialogue in colloquies with meaningful participation by the defendant

throughout, there is no set manner, and no fixed terms, by which [a] factual

basis must be adduced.” Id.

      Instantly, at the plea hearing, the Commonwealth set forth the facts

which formed the basis of the plea. See N.T., 2/17/2015, at 14-15. Appellant

was then asked whether he understood the facts as they were presented. Id.

at 15. Appellant responded, “Yes.” Id. Appellant was then asked whether he

admitted those facts.    Appellant responded, “Somewhat.” Id. at 16.         The

Commonwealth then told Appellant he needed to respond either yes or no.

After consulting with Attorney Bush, Appellant responded, “Yes.” Id.        This

exchange, which included Appellant having the opportunity to consult his

attorney, reveals that Appellant did indeed engage in meaningful dialogue.

      Moreover, Appellant has not identified which facts were either incorrect

or misunderstood by him. In addition, the facts match those set forth in the

criminal complaint. See Criminal Complaint, 12/20/2012.          To the extent

Appellant claims that the trial court, not the Commonwealth, was required to

set forth the facts, he is incorrect. See Appellant’s Brief at 25; PCRA Petition,

4/19/2017, at 8.    The rules provide that “[i]t is advisable that the judge

conduct the examination of the defendant. However, paragraph (A) does not

prevent defense counsel or the attorney for the Commonwealth from

conducting part or all of the examination of the defendant, as permitted by

the judge.” Pa.R.Crim.P. 590 (comment).         Additionally, the rules do not


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require that the Commonwealth present admissible evidence during a guilty

plea colloquy.

      Based on the foregoing, there is no arguable merit to Appellant’s

position regarding any error in adducing the factual basis of his plea. Thus,

trial counsel was not ineffective.        In addition, because the trial court

committed no error, direct appeal counsel was not ineffective for failing to

raise this issue on appeal. “Counsel will not be deemed ineffective for failing

to raise a meritless claim.” Commonwealth v. Spotz, 896 A.2d 1191, 1210

(Pa. 2006). Accordingly, Appellant is not entitled to relief on either of these

issues.

      Appellant next contends trial counsel was ineffective for failing to call an

expert to testify to Appellant’s “diminished capacity due to mental

defect/illness, voluntary intoxication, or heat of passion.” Appellant’s Brief at

28.   It is not clear from Appellant’s brief whether he is arguing that trial

counsel was ineffective for failing to call Dr. Dattilo to testify at trial or at the

plea/sentencing    hearing.      However,       at   the   plea   hearing,   Appellant

acknowledged that he understood that he was giving up the right “to present

evidence on [his] own behalf.” N.T., 2/17/2015, at 11. In addition, Attorney

Bush stated the following with respect to mitigation evidence at sentencing.

            Your Honor, I did ask [Appellant] if he wanted me to present
      to the [trial court] or for the record any of the mitigation that we
      were prepared to put forth on his behalf. He does not wish me to
      include that at this point.

             I do believe he does want to address the [trial court].

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Id. at 18-19.

       Appellant then went on to explain to the trial court why he had decided

to plead guilty. Id. at 19-21. Based on the foregoing, it is clear that Appellant

had the option to present additional information at sentencing, but chose not

to do that. We agree with the PCRA court that he cannot now claim that trial

counsel was ineffective for failing to present information he did not wish to

present in the first place. See PCRA Court Opinion, 10/30/2017, at 5. Thus,

Appellant is not entitled to relief.

       Finally, Appellant claims that Attorney Tobias was ineffective in her

representation of Appellant during these PCRA proceedings.          Specifically,

Appellant argues Attorney Tobias was ineffective because she did not contact

him prior to preparing her Turner/Finley no-merit letter.8 Appellant’s Brief at

16.   According to Appellant, “counsel’s failure to communicate” effectively

denied him the right to counsel. Id. Appellant further claims the PCRA court

erred in dismissing his petition without affording him an opportunity to amend

his PCRA petition due to counsel’s failure to communicate. Id. at 32.

       We observe that Appellant had the opportunity to identify additional

issues Attorney Tobias should have included in her no-merit letter in his pro



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8 Appellant has preserved this issue by presenting it both in his response to
the PCRA court’s Pa.R.Crim.P. 907 notice and his concise statement of errors
complained of on appeal. See Commonwealth v. Henkel, 90 A.3d 16, 20
(Pa. Super. 2014) (en banc).

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se response to the PCRA court. However, that response is merely a recap of

the claims he presented in his pro se PCRA petition. See Objections,

11/15/2017. Thus, even if Attorney Tobias had communicated with Appellant

prior to her filing the no-merit letter, the outcome would not be different

because Appellant has not presented any additional issues.

      Moreover, because we have determined that there is no arguable merit

to any issue that was presented, the PCRA court did not err in either granting

Attorney Tobias’s petition to withdraw or dismissing Appellant’s PCRA petition.

Based upon our review of Appellant’s pro se PCRA petition, counsel’s petition

to withdraw and no-merit letter, Appellant’s pro se response, and the PCRA

court’s opinion, we conclude that the PCRA court did not err in denying

Appellant relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




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