J-S94030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                     v.

ISAAC HINERMAN

                          Appellant                  No. 1258 MDA 2016


               Appeal from the PCRA Order entered July 12, 2016,
                in the Court of Common Pleas of Lebanon County,
              Criminal Division, at No(s): CP-38-CR-0000930-2013
                           & CP-38-CR-0000965-2012.


BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY RANSOM, J.:                            FILED MARCH 01, 2017

      Appellant, Isaac Hinerman, appeals from the July 12, 2016 order

denying his petition for relief filed pursuant to the Post Conviction Relief Act

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

      The PCRA court summarized the pertinent facts and procedural history

as follows:

      Under docket number CP-38-CR-965-2012, [Appellant] was
      charged on August 1, 2012[,] with one count of Indecent
      Assault, two counts of Simple Assault, and the summary offense
      of Harassment. Around the end of December, 2012, [Appellant]
      was struck by a motor vehicle as he was walking alongside a
      road. [He] experienced serious injuries as a result of being
      struck by the vehicle and was in a coma for some time.
      [Appellant’s]  original,  privately    retained  counsel   had
      contemplated requesting a mental health evaluation of
      [Appellant] before proceeding with [Appellant’s] criminal case,



*Former Justice specially assigned to the Superior Court.
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      due to [Appellant’s] injuries. Thereafter, [Appellant’s] privately-
      retained counsel withdrew his appearance and [Appellant]
      sought court[-]appointed counsel.

      The court appointed [trial counsel]. Trial counsel determined
      through his interactions with [Appellant] to forgo a mental health
      evaluation. A jury trial was held on July 8, 2013[,] on action CR-
      956-2012, where the Jury found [Appellant] guilty of Indecent
      Assault. On July 10, 2012, [Appellant] [pleaded] guilty to both
      Simple Assault charges and the summary offense.

      Under docket number CP-38-CR-930-2013, [Appellant] was
      charged on July 19, 2013, with one count of Robbery. [He]
      [pleaded] guilty to the Robbery charge on September 26, 2013.
      [Appellant] was sentenced on all charges, under both [docket]
      numbers, on October 30, 2013. On [docket] number CR-965-
      2012, [Appellant] was sentenced to 1-2 years in the state
      correctional institution and on [docket] number CR-930-2013,
      [Appellant] was sentenced to [a consecutive] 8-20 years in the
      state correctional institution.   [Appellant] appealed to the
      Superior Court, where the Superior Court affirmed [Appellant’s]
      sentence on February 24, 2015.

PCRA Court Opinion, 7/12/16, at 1-2 (citations and footnotes omitted).

      On January 26, 2016, Appellant pro se timely filed a PCRA petition in

which he claimed that trial counsel was ineffective for failing to order a

mental evaluation for him.      The Commonwealth filed its response on

February 16, 2016. The PCRA court appointed counsel, and PCRA counsel

filed an amended petition on April 27, 2016.        The PCRA court held an

evidentiary hearing on May 20, 2016, at which both Appellant and trial

counsel testified, and it took the matter under advisement. By opinion and

order entered July 12, 2016, the PCRA court denied Appellant’s PCRA

petition.




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      Appellant timely appealed.    Both Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues:

      1. Whether Trial/Plea Counsel was ineffective for failing to
         request a mental health evaluation despite Appellant having
         suffered brain trauma, resulting from a serious vehicle
         accident, which left Appellant comatose for months, and
         ultimately left Appellant with a significantly impaired ability to
         assist in his own defense?

      2. Whether Appellant was denied his constitutionally guaranteed
         right to due process when Appellant avers that his plea was
         involuntarily, unknowingly, and/or unintelligently made
         because Appellant suffered brain trauma, which ultimately left
         Appellant with a significantly impaired ability to appreciate
         the terms and ramifications of pleading guilty; and there was
         no factual basis established for Appellant to plead guilty to
         Robbery as no items were taken, where “theft” is the first
         element of Robbery to be proven?

Appellant’s Brief at 4.

      This Court has recently reiterated:

      On appeal from the denial of PCRA relief, our standard and scope
      of review is limited to determining whether the PCRA court’s
      findings are supported by the record and without legal error.
      Our scope of review is limited to the findings of the PCRA court
      and the evidence of record, viewed in the light most favorable to
      the prevailing party at the PCRA court level. The PCRA court’s
      credibility determinations, when supported by the record, are
      binding on this Court. However, this Court applies a de novo
      standard of review to the PCRA court’s legal conclusions.


Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014)

(citations omitted).

      Because Appellant’s claim challenges the stewardship of prior counsel,

we apply the following principles. The law presumes counsel has rendered


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effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.

Super. 2010).     The burden of demonstrating in effectiveness rests on

Appellant. Id. To satisfy this burden, Appellant must plead and prove by a

preponderance of the evidence that: “(1) his underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonably probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

      “Because a plea of guilty effectively waives all non-jurisdictional

defects and defenses, after sentencing, allegations of ineffectiveness in this

context provide a basis for withdraw of the plea only where there is a causal

nexus between counsel’s ineffectiveness, if any, and an unknowing or

involuntary plea.”   Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa.

Super. 1993) (citations omitted). Stated differently, when asserting a claim

of ineffectiveness of counsel in the context of a guilty plea, a defendant must

show that plea counsel’s ineffectiveness caused him to enter the plea.

Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa. Super. 2005).

      Appellant first claims that trial counsel was ineffective for failing to

have his mental state evaluated prior to his trial and/or plea. According to

Appellant, as a result of the injuries he suffered in the car accident, he was



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unable to adequately aid in his defense, and, as a result, his guilty plea was

not valid.

      Following a review of Appellant’s PCRA petition, in conjunction with the

testimony presented at the evidentiary hearing, the PCRA court concluded

that Appellant had failed to prove his ineffectiveness claim. The PCRA court

reasoned:
            Under the first prong of the three-prong test, the petitioner
      must show that the underlying claim would have arguable merit.
      [Appellant] here has failed to prove by a preponderance of the
      evidence that his underlying claims would have arguable merit.
      In fact, at the PCRA hearing, [Appellant] and trial counsel stated
      that [Appellant] admitted to committing both Simple Assault
      charges. Furthermore, trial counsel testified that [Appellant]
      intended/wanted to commit the Robbery so that [he] would be
      incarcerated, in order to provide him with food and shelter,
      [testimony] which [Appellant] did not contest at the hearing.

                                    ***

            There is no evidence presented at the PCRA hearing that
      [Appellant’s] underlying claims have arguable merit.       If
      anything, the elicited testimony indicates the opposite.

            In addition, even assuming that [Appellant] could prove
      the first two prongs of the test for ineffective assistance of
      counsel, [he] has not proven by a preponderance of the evidence
      that he has suffered prejudice[.] [Appellant] alleges that trial
      counsel’s failure to order a mental health evaluation was
      ineffective assistance[,] but [he] has not proven that there is a
      reasonable probability that there would be a different result had
      the mental health evaluation been ordered.

PCRA Court Opinion, 7/12/16, at 9-10 (citations omitted).

      The PCRA court then cited the pertinent statutory authority regarding

the competency of a criminal defendant:

      § 7402. Incompetence to proceed on criminal charges
      and lack of criminal responsibility as a defense


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         (a)   Definition of Incompetency.—Whenever a person
               who has been charged with a crime is found to be
               substantially unable to understand the nature or
               object of the proceedings against him or to
               participate and assist in his defense, he shall be
               deemed incompetent to be tried, convicted or
               sentenced so long as such incapacity continues.

50 P.S. § 7402. The PCRA court concluded:

      There was testimony at the hearing stating that [Appellant]
      knew and [understood] the charges he was facing at the time of
      representation, and that his responses to questions being asked
      of him during trial preparation and at trial were on point.
      Furthermore, ample testimony was provided that trial counsel
      and [Appellant] met numerous times in preparation for trial and
      entering the guilty pleas. It cannot be said that trial counsel’s
      decision to forgo a mental health evaluation where [Appellant]
      received some brain trauma from an accident, but was able to
      assist in his own defense and understand his actions, was
      ineffective assistance of counsel.

PCRA Court Opinion, 7/12/16, at 10.

      The PCRA court credited the testimony of counsel over the testimony

and other allegations made by Appellant at the PCRA hearing. Our review of

the record supports the PCRA court’s conclusions, which we will not disturb

on appeal. Medina, supra. In particular, we note that counsel’s testimony

established that Appellant was able to consult with counsel and exhibited a

rational and factual understanding of the proceedings.             See, e.g.,

Commonwealth v. Watkins, 108 A.3d 692, 703 (Pa. 2014) (explaining

that the relevant question when determining whether a defendant is

competent to stand trial is whether he or she has sufficient ability to consult

with counsel with a reasonable degree of rational understanding and to have


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a rational as well as a factual understanding of the proceedings).

Accordingly, Appellant failed to establish that his underlying claim had

arguable merit. See Fulton, 830 A.2d at 572; see also Commonwealth

v. Rainey, 928 A.2d 215, 236-37 (Pa. 2007) (concluding that the defendant

failed to present sufficient evidence to establish counsel was ineffective for

failing to pursue a competency hearing).      Thus, he is entitled to no relief.

Loner, 836 A.2d at 132.

      In his remaining claim, Appellant directly challenges the validity of his

guilty pleas. According to Appellant, his pleas were invalid, as the trauma

he suffered ultimately left him significantly impaired and unable to knowingly

and intelligently enter a plea.   Appellant further suggests that his plea to

robbery lacked a proper factual predicate.

      This claim is waived, as it could have been presented on direct appeal.

See 42 Pa.C.S. § 9544(b). Absent waiver, we reiterate that Appellant failed

to establish the need for a mental evaluation. To the extent he asserts that

his guilty plea to robbery is invalid because he did not steal anything, see

Appellant’s Brief at 21-22, his position is contradicted by the plain language

of the robbery statute. See 18 Pa.C.S. § 3701(a)(2) (providing that “[a]n

act shall be deemed ‘in the course of committing a theft’ if it occurs in an

attempt to commit theft or in flight after the attempt or commission.”); see

also Commonwealth v. Sanchez, 36 A.3d 24, 41-42 (Pa. 2011) (holding

that proof of an attempted theft is sufficient to establish the “in the course of

committing a theft” element of robbery).

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      In sum, because the PCRA court correctly determined that Appellant

failed to establish his ineffectiveness of counsel claim, we affirm its order

denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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