J-S18043-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILIP BAZZLEY                             :
                                               :
                       Appellant               :   No. 1553 MDA 2019

              Appeal from the PCRA Order Entered August 20, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0000831-2010



BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED: MAY 18, 2020

        Appellant, Philip Bazzley, appeals from the order entered in the Court of

Common Pleas of Berks County denying his first petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, following an

evidentiary hearing. After a careful review, we affirm.

        The relevant facts and procedural history are as follows: In October of

2001, H.C., who was six years old, and V.C., who was four years old, were

placed in a foster home in Douglassville, Berks County. Commonwealth v.

Bazzley, No 1014 MDA 2012, at 1 (Pa.Super. filed 6/7/13) (unpublished

memorandum). Before and after school, the foster mother dropped off the




____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S18043-20


children at the home of Bazzley, who lived with his mother, brother, and

grandmother. Id. at 1-2.

       Over the course of several months, Bazzley repeatedly and regularly

engaged in sexual conduct with the children until Bazzley’s mother became

aware of the inappropriate sexual contact.1 Id. at 2. Although the sexual

contact then ended, no further action was taken at this time, and in June of

2003, the children were removed from the foster family and placed elsewhere.

Id. at 3.

              On April 1, 2008, the allegations of sexual abuse were
       reported to the Berks County District Attorney’s Office. Bazzley
       admitted to some of the…sexual conduct and provided Detective
       Donna Tothero with a statement on June 24, 2009. N.T.,
       8/23/2011, at 24-33. On January 13, 2010, the Commonwealth
       filed a criminal complaint against Bazzley. On March 10, 2010,
       Bazzley filed a motion to transfer the case to juvenile court.
       Bazzley also filed an omnibus pretrial motion along with notice of
       his intent to present an insanity defense and an infancy defense.
       In his omnibus pretrial motion, Bazzley included, inter alia, a
       motion to permit the infancy defense, a motion to dismiss because
       of a violation of his due process rights, and a motion to dismiss
       based on his insanity defense.
             In response to Bazzley’s intent to present an insanity
       defense, the trial court ordered Bazzley to participate in a mental
       health evaluation with the Commonwealth’s expert[, Dr. Jerome
       Gottlieb]. On July 7, 2010, Bazzley filed a supplemental omnibus
       pretrial motion in which he alleged a violation of his Sixth
       Amendment right to counsel. The trial court denied Bazzley’s
       request for a transfer to juvenile court and subsequently disposed
       of Bazzley[’s] omnibus pretrial motion on December 8, 2010, by
       issuing an order and opinion denying Bazzley’s claim.


____________________________________________


1 As this Court noted on direct appeal, the trial court found Bazzley was over
the age of fourteen when he committed the sexual abuse. Id. at 20.

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              Following a non-jury trial, the trial court found Bazzley guilty
       of [involuntary deviate sexual intercourse, indecent assault,
       indecent exposure, and open lewdness]. On April 20, 2012, the
       trial court imposed an aggregate sentence of 19½ to 60 years of
       incarceration followed by 11 years of probation. Bazzley filed a
       post-sentence motion on April 30, 2012, which the trial court
       denied on May 2, 2012.

Bazzley, No. 1014 MDA 2012, at 4-5.

       Bazzley filed a timely notice of appeal, and this Court affirmed his

judgment of sentence.2         See id.    Bazzley filed a petition for allowance of

appeal, which our Supreme Court denied on January 21, 2014.

       On or about April 11, 2014, Bazzley filed a timely, pro se PCRA petition,

and the PCRA court appointed counsel to assist Bazzley. On December 7,

2018, counsel filed an amended PCRA petition on behalf of Bazzley, and the

matter proceeded to an evidentiary hearing.

       The PCRA court has summarized the relevant testimony offered at the

PCRA evidentiary hearing as follows:


____________________________________________


2 On direct appeal, Bazzley averred the following: the trial court erred in failing
to transfer his case to juvenile court; the trial court erred in refusing to dismiss
his case, which was brought in violation of Bazzley’s due process rights, due
to the delay in the Commonwealth filing charges against Bazzley; the trial
court erred in prohibiting Bazzley from relying upon the infancy defense; the
trial court erred in considering the statements Bazzley made to Adult Probation
Officer Brown; the trial court erred in concluding Bazzley did not present
sufficient evidence to sustain a mental health defense, as well as erred in
finding Dr. Jerome Gottlieb’s testimony to be more credible than Dr.
Rotenberg’s testimony; the trial court’s verdict was against the weight of the
evidence, particularly as it related to the trial court’s rejection of the mental
health defense; and Bazzley’s sentence was excessive and an abuse of
discretion.

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            At the PCRA hearing, [PCRA] counsel first called Dr. Larry
     Rotenberg who testified that he first met with [Bazzley] in 2010
     prior to his trial and then again in 2017. (Notes of Testimony of
     PCRA Hearing on May 2, 2019 “PCRA Hearing N.T.” at 7). During
     the interviews, [Bazzley] was very honest, cooperative and
     forthcoming. (PCRA Hearing N.T. 8). Dr. Rotenberg testified that
     [Bazzley] is very suggestable[,] and at the time of his trial, [he]
     was under the influence of a religious group, and in particular, of
     one individual who purportedly assured [Bazzley] that he would
     be acquitted of all charges at trial through divine intervention. Id.
     Dr. Rotenberg continued that at the time that a generous plea
     offer was proffered by the district attorney’s office, [Bazzley’s]
     mental capacity to appropriately weigh the benefits and
     advantages of the plea offer were compromised by his intense
     religious belief, which was delusional. (PCRA Hearing N.T. 9). [Dr.
     Rotenberg defined “delusional” as meaning “a fixed, false,
     unshared belief.” Id.]
            Dr. Rotenberg also interviewed [Bazzley’s] mother, sister[,]
     and his first cousin. (PCRA Hearing N.T. 10). Interviews with
     [Bazzley’s] family members indicated that at the time of the plea
     offer and trial, [Bazzley] was in a “weakened state of mind and
     was not really in a position to make a decision about the plea
     offer.” Id. Further, Dr. Rotenberg opined that [Bazzley’s]
     heightened vulnerability made him especially susceptible to the
     sway of individuals in [Bazzley’s] church whom [Bazzley] referred
     to as “prophets.” (PCRA Hearing N.T. 11).
            After interviewing [Bazzley] in 2017, Dr. Rotenberg
     diagnosed [Bazzley] with schizoid personality disorder and with a
     learning disability noting [Bazzley’s] verbal I.Q. of 74. (PCRA
     Hearing N.T. 14). [Bazzley’s] religious preoccupation, which Dr.
     Rotenberg equivocated to delusion, coupled with the nature of the
     charges[,] caused [Bazzley] to isolate himself and rendered
     [Bazzley] “incapable of seeking other and more constructive
     advice.”    Id. Dr. Rotenberg testified his opinion was that
     [Bazzley] was not competent to make a decision as to the plea
     bargain because of his low I.Q. and his delusional state at the
     time.     (PCRA Hearing N.T. 12). A significant basis of Dr.
     Rotenberg’s opinion was that the plea offer was so generous that
     no adult would decline such an offer and that [Bazzley’s] decision
     to reject the offer was so contrary to his own interest that it should
     have triggered a supplemental psychiatric evaluation to determine
     whether [Bazzley] was competent to refuse the offer. (PCRA
     Hearing N.T. 12-13).

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            On cross-examination, Dr. Rotenberg indicated that he had
     not earlier discussed the issue of the plea agreement with
     [Bazzley] and that all [of] the information garnered regarding the
     current issue was gleaned from his conversations with [Bazzley]
     in 2017. (PCRA Hearing N.T. 17-19). Further, Dr. Rotenberg
     opined that the issue of [Bazzley’s] competency to stand trial and
     [Bazzley’s] competency to accept or reject a plea offer were
     different standards. (PCRA Hearing N.T. 19).
            Tiffany Bazzley, [who is Bazzley’s] sister, testified that she
     spoke with [Bazzley’s] Trial Counsel numerous times leading up
     to and during the trial. (PCRA Hearing N.T. 22). Tiffany explained
     that she told Trial Counsel that [Bazzley made statements] to her
     on several occasions regarding the “prophets” and having visions
     of being delivered from the case. Id. This, Tiffany believed,
     indicated that [Bazzley] was not competent to stand trial. Id.
     According to Tiffany, Trial Counsel responded that “if he would
     have knew [sic] that then, then he would not had [sic] him stand
     trial.” Id. Tiffany further testified that she and [Bazzley] normally
     have a good relationship, but that at the time of the trial,
     [Bazzley] was distant and that when she would talk to [Bazzley],
     he seemed like he didn’t understand. (PCRA Hearing NT. 24).
            Tiffany observed Trial Counsel explain to [Bazzley] that he
     believed a bench trial [as opposed to a jury trial] would be a better
     option for [Bazzley] to avoid further embarrassment. (PCRA
     Hearing N.T. 23). Tiffany stated that Trial Counsel was not
     expecting [Bazzley] to receive the sentence imposed. (PCRA
     Hearing N.T. 24). While she asserted that she was available to
     testify at trial that [Bazzley] was not competent enough to testify
     on his own behalf, Trial Counsel indicated to her that he didn’t
     believe that Tiffany’s [testimony] would be helpful.           (PCRA
     [Hearing] N.T. 24-25).
            Valerie Bazzley, [who is Bazzley’s] mother, testified that she
     was present during discussions between [Bazzley] and Trial
     Counsel in which Trial Counsel advised that a bench trial would be
     more advantageous to [Bazzley] regarding [Bazzley’s]
     performance before the jury and his understanding of the medical
     terms involved. (PCRA Hearing N.T. 29). Valerie did not observe
     Trial Counsel discussing the plea agreement with [Bazzley], but
     [she] stated that Trial Counsel informed [Bazzley] that the
     decision had to be made immediately. (PCRA Hearing N.T. 30).
          Valerie indicated that at the time of the trial, [Bazzley] was
     unresponsive to her efforts to communicate with him and that


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     [Bazzley] was not eating or sleeping. (PCRA Hearing N.T. 31).
     [Bazzley] informed Valerie about two individuals who told him that
     he would go free and not have to serve any time; however, Valerie
     did not discuss these revelations with Trial Counsel. (PCRA
     Hearing N.T. 31-32). Valerie was able to testify at [Bazzley’s] trial
     and spoke to Trial Counsel about testifying. (PCRA Hearing N.T.
     32). Valerie testified that she repeatedly informed Trial Counsel
     of [Bazzley’s] mental condition and stressed that [Bazzley] was
     not competent. (PCRA Hearing N.T. 33).
            [Bazzley] took the stand and testified that Trial Counsel
     presented three different plea offers from the Commonwealth
     regarding his case.       (PCRA Hearing N.T. 35).        [Bazzley]
     understood the first offer to be “very, very high,” and he did not
     remember the second offer. Id. Upon receipt of the third offer,
     which [Bazzley] remembered being six to twenty-three months of
     county incarceration, Trial counsel gathered [Bazzley] and his
     family to discuss the plea, but that [Bazzley] eventually rejected
     the offer. Id. [Bazzley] stated that he rejected the third offer
     based on his encounter with two individuals, whom [Bazzley]
     referred to as “prophets.” Id. The first individual told [Bazzley]
     that he had seen court papers ripped up on his behalf. Id. The
     other individual, whom [Bazzley] identified as “Jarvis,” stat[ed]
     that “he was the head…of the band [he] was playing for,” [and]
     told [Bazzley] to continue the fight because “God has you.” (PCRA
     Hearing N.T. 36).
           [Bazzley] acknowledged that Trial Counsel did discuss the
     plea offers with him, but that he didn’t remember everything that
     Trial Counsel told him and that he did not understand. Id.
     [Bazzley] stated that Trial Counsel was “kind of like rushing” him
     to make a decision as to the plea offers and that [Bazzley] made
     his decision to reject the offer base don [sic] what the “prophets”
     had told him. (PCRA Hearing N.T. 36-37). [Bazzley] denied that
     Trial Counsel attempted to persuade him to accept the offer or
     that Trial Counsel explained the advantages and disadvantages of
     going to trial versus accepting the plea agreement. (PCRA Hearing
     N.T. 37).
            When asked if he could describe a bench trial, [Bazzley]
     answered that “A bench—a Bench Trial is I [sic] sitting in front of
     the, I guess, Judge or something, yeah like, that’s what I thought
     it was.” Id. [Bazzley] testified that he did not know what a finder
     of fact, waiver[,] or a jury trial waiver colloquy was. (PCRA
     Hearing N.T. 37-38).


                                     -6-
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           On cross-examination, [Bazzley] admitted that Trial Counsel
     was also representing him in another matter in Montgomery
     County, Pennsylvania, around the same time, in which he entered
     a guilty plea. (PCRA Hearing N.T. 39-40). [Bazzley] admitted
     that Trial Counsel explained various legal terms to [him] and to
     his family at the time of the trial, [al]though he claims that he did
     not understand them. (PCRA Hearing N.T. 40).
            The Commonwealth called Trial Counsel, who testified that
     he was initially retained to represent [Bazzley] in the Montgomery
     County matter that resulted in [Bazzley] entering a plea in return
     for a favorable sentence. (PCRA Hearing N.T. 44). Upon initiation
     of the instant case, Trial Counsel became involved and
     represented [Bazzley] beginning with accompanying [Bazzley]
     when he turned himself in to law enforcement. (PCRA Hearing
     N.T. 45-46). Trial Counsel testified that he attempted to have the
     matter transferred to juvenile court and to have the matter
     dismissed for delay in prosecution, but both motions were denied.
     (PCRA Hearing N.T. 47).
           During [Bazzley’s] trial, Trial Counsel observed [Bazzley]
     and stated that he believed [Bazzley] to be limited, but not
     incompetent. Id. In his dealings with [Bazzley], Trial Counsel
     found that [Bazzley] understood the role of the attorneys and that
     of the judge, as well as [had] an understanding of the charges he
     was facing and the potential penalties that he faced, with no
     suggestion that [Bazzley] was so limited that he was prevented
     from understanding the court system. Id.
            [Bazzley’s] family indicated to Trial Counsel that [Bazzley]
     had a limited understanding of things, which prompted Trial
     Counsel to have [Bazzley] evaluated by Dr. Rotenberg. Id.
     Specifically, [Bazzley’s] family told Trial Counsel that [Bazzley]
     had severe learning disabilities that were manifest at the time the
     crimes occurred. (PCRA Hearing N.T. 48). This information
     prompted Trial Counsel to have the evaluation performed to
     determine whether [Bazzley] could even form the criminal intent
     at that earlier age, providing what may possible [sic] be an
     insanity defense. Id. While Trial Counsel did not indicate that he
     questions [Bazzley’s] competency to stand trial, competency was
     part of the standard evaluation performed by Dr. Rotenberg, as
     well as for M’Naughten Rule defense and for guilty but mentally
     ill. (PCRA Hearing N.T. 49).
          Trial Counsel further explained that there was never a time
     when he believed that [Bazzley] misunderstood his words, but


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     that he may have had to repeat some things two or three times
     before he felt that [Bazzley] understood. (PCRA Hearing N.T. 49-
     50). Trial Counsel believed that [Bazzley] acknowledged what
     was being said and that Trial Counsel would hold meetings in the
     presence of family members, including [Bazzley’s] sister and
     mother, so that they understood the issues[,] and if [Bazzley]
     wished, he could discuss with them as well. (PCRA Hearing N.T.
     50). Whether in meetings alone with [Bazzley] or during those
     including [Bazzley’s] family, Trial Counsel always believed that
     [Bazzley] understood what was happening. (PCRA Hearing N.T.
     51). On the day of the plea deal, [Bazzley] told Trial Counsel that
     he would reject the offer based upon his faith, without indicating
     anything about visions or prophets, and therefore, the matter
     proceeded to trial. (PCRA Hearing N.T. 52).
           Trial Counsel indicated that [Bazzley’s] family did not
     mention anything as to the supposed prophets until after
     sentencing in the matter. Id. While Trial Counsel and [Bazzley]
     discussed [Bazzley’s] religious beliefs on several occasions, those
     conversations did not pertain to [Bazzley] having visions himself
     or of the “prophets.” Id. It wasn’t until a few days after
     sentencing, [sic] that Trial Counsel stated he received a call from
     Tiffany indicating that [Bazzley] needed to speak with him about
     something important. Id. When Trial counsel went to visit
     [Bazzley,] [it] was the first time that [Bazzley] told Trial Counsel
     that the reason he had rejected the plea offer was due to the
     visions of prophets and to the statements that the prophets made.
     (PCRA Hearing N.T. 53).
            Trial Counsel recounted his efforts in conducting discussions
     with the district attorney’s office in attempting to find a non-trial
     resolution to the matter and that there were several plea offers
     presented. (PCRA Hearing N.T. 54). Trial Counsel communicated
     the plea offer to [Bazzley] and his family, and likewise to Dr [sic]
     Rotenberg, who agreed that the plea would provide a good
     outcome. (PCRA Hearing N.T. 55). In communicating the plea
     offer to [Bazzley], Trial Counsel remembered telling [Bazzley] that
     the offer was for only six months of county incarceration whereas
     [Bazzley] faced the possibility of years in jail due to the several
     counts that carried mandatory minimum sentences.              (PCRA
     Hearing N.T. 56). The offer had to be accepted prior to the time
     of trial, which is not uncommon. Id.
            Trial Counsel further explained that he suggested a bench
     trial [as opposed to a jury trial] for several reasons. (PCRA
     Hearing N.T. 58). First, the victims in the case were children[.]

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     Trial Counsel had witnessed prior jury trials where child victims
     were involved and believed that once a jury heard the testimony
     of the children, they are often unreceptive to further testimony or
     evidence, especially as to defenses. Id. Trial Counsel also
     believed that the complexity of the case, specifically as to the not
     guilty by reason of insanity defense, would cause issues as to the
     jury’s understanding. Id. Trial Counsel believed that having a
     fact-finder that was experienced in the law and who would
     understand the complexity of an insanity defense would serve
     [Bazzley] better. (PCRA Hearing N.T. 58-59). Trial Counsel
     discussed the options and his recommendations with [Bazzley,]
     and [he] reviewed the jury trial waiver finding no indication that
     [Bazzley] did not understand the contents thereof. (PCRA Hearing
     N.T. 59).
           Trial Counsel also addressed the reasons for not calling
     [Bazzley’s] family as witnesses at trial. First, Trial Counsel
     believed that the family’s testimony would be cumulative to Dr.
     Rotenberg’s testimony and would not bode favorably in the
     courtroom. (PCRA Hearing N.T. 61). Next, given the narrow
     scope of allowable testimony, he felt that there was a strong
     possibility that the family might testify beyond that scope and
     confuse[,] or even worse, contradict Dr. Rotenberg’s testimony.
     Id. Additionally, Trial Counsel wanted to ensure that testimony
     regarding [Bazzley’s] Montgomery County case [and] the
     circumstances surrounding the case would not enter the record in
     the matter at trial. (PCRA Hearing N.T. 61-62). Trial Counsel was
     concerned about the possibility that prior accusations of
     inappropriate sexual conduct towards minors might enter the
     record. (PCRA Hearing N.T. 62). Specifically, there were prior
     accusations of sexual misconduct that weren’t formally charged,
     but for which [Bazzley] was referred to treatment and his mother
     was heavily involved. Id. Trial Counsel did not want to risk
     exposure of the earlier accusations and wanted to limit the scope
     of evidence and testimony to the period during which the crimes
     occurred. (PCRA Hearing N.T. 63).
           Trial Counsel testified that he has significant experience in
     dealing with clients with developmental issues, including those
     with learning disabilities, as well as clients who have been
     diagnosed with schizoid personality disorder. (PCRA Hearing N.T.
     65-66). Trial Counsel admitted to encountering some problems
     communicating with [Bazzley]. (PCRA Hearing 66-67). Trial
     Counsel testified that [Bazzley’s] family was very involved during
     the proceedings.…[T]hey were often present when he was

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      communicating with [Bazzley], and [he] would also separately
      provide information to the family as to the case status. Id. Trial
      Counsel believed that [Bazzley] clearly understood their
      discussions because      [Bazzley] would acknowledge          the
      conversations, would respond appropriately[,] or would ask
      follow-up questions. (PCRA Hearing N.T. 67).

PCRA Court Opinion, filed 8/20/19, at 4-10 (footnotes omitted).

      By order and opinion entered on August 20, 2019, the PCRA court denied

Bazzley’s PCRA petition. This timely, counseled appeal followed. The PCRA

court directed Bazzley to file a Pa.R.A.P. 1925(b) statement, Bazzley timely

complied, and the PCRA court filed a brief opinion pursuant to Pa.R.A.P.

1925(a).

      On appeal, Bazzley sets forth the following issues in his “Statement of

the Questions Involved”:

      1. Did the PCRA Court err in denying post-conviction relief by
         giving little or no regard to the unrebutted testimony of Dr.
         Rotenberg?
      2. Did the PCRA Court violate the standard set forth in
         Commonwealth v. Napper, 254 Pa.Super. 54, 60-61, 385
         A.2d 521, 524 (1978) [(en banc),] by finding that [Trial
         Counsel’s] explanation of a plea offer to [Bazzley] was
         adequate?
      3. Did the PCRA Court err in denying the post-conviction relief
         given that the Constitutional rights of [Bazzley] were violated
         as regards [to] his right to a jury trial as there was an
         inadequate verbal colloquy on the waiver of his jury trial given
         his mental weaknesses and deficiencies and given that the pre-
         printed “Jury Trial Waiver Colloquy” fill in the blank form [was
         inadequate]?

Bazzley’s Brief at 4.

      Initially, we note the following:


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            This Court analyzes PCRA appeals in the light most favorable
     to the prevailing party at the PCRA level. Our review is limited to
     the findings of the PCRA court and the evidence of record and we
     do not disturb a PCRA court’s ruling if it is supported by evidence
     of record and is free of legal error. Similarly, [w]e grant great
     deference to the factual findings of the PCRA court and will not
     disturb those findings unless they have no support in the record.
     However, we afford no such deference to its legal conclusions.
     [W]here the petitioner raises questions of law, our standard of
     review is de novo and our scope of review is plenary. Finally, we
     may affirm a PCRA court’s decision on any grounds if the record
     supports it.

Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa.Super. 2015)

(quotation marks and quotations omitted).

     Furthermore,

           In order to be eligible for PCRA relief, the petitioner must
     prove by a preponderance of the evidence that his conviction or
     sentence resulted from one or more of the enumerated
     circumstances found in Section 9543(a)(2), which includes the
     ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
            It is well-established that counsel is presumed effective, and
     to rebut that presumption, the PCRA petitioner must demonstrate
     that counsel’s performance was deficient and that such deficiency
     prejudiced him. To prevail on an ineffectiveness claim, the
     petitioner has the burden to prove that (1) the underlying
     substantive claim has arguable merit; (2) counsel whose
     effectiveness is being challenged did not have a reasonable basis
     for his or her actions or failure to act; and (3) the petitioner
     suffered prejudice as a result of counsel’s deficient performance.
     The failure to satisfy any one of the prongs will cause the entire
     claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

           We need not analyze the prongs of an ineffectiveness claim
     in any particular order. Rather, we may discuss first any prong
     that an appellant cannot satisfy under the prevailing law and the


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      applicable facts and circumstances of the case. Finally, counsel
      cannot be deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(citations omitted).

      Bazzley’s first and second issues are intertwined. Specifically, Bazzley

contends the PCRA court erred in “virtually ignoring the unrebutted testimony

of Dr. Rotenberg” regarding Bazzley’s “mental status” at the time Bazzley

rejected the Commonwealth’s favorable plea offer, particularly the final plea

offer which guaranteed “county jail time.” Bazzley’s Brief at 12, 18. In this

regard, Bazzley contends Dr. Rotenberg’s testimony offered at the PCRA

hearing demonstrates that Bazzley was not competent to reject the plea offer.

      Additionally, Bazzley argues that, while the explanation offered by Trial

Counsel as to the advantages and disadvantages of the Commonwealth’s plea

offers “might have been adequate” for a defendant who is of “normal”

intelligence and competence, it was not adequate for an incompetent

defendant such as Bazzley.     Id. at 18. Thus, Bazzley contends Trial Counsel

was ineffective in failing to “communicate the plea offers to…Bazzley in terms

that he could understand[,]” and/or in permitting Bazzley to reject the plea

offer. Id. at 18, 22.

      In general, a defense attorney has a duty to inform his client of a plea

offer and to meaningfully discuss the offer with the client. Commonwealth

v. Napper, 385 A.2d 521 (Pa.Super. 1978) (en banc). This Court has held

that, in order to prevail on a claim of ineffective assistance of counsel in failing

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to consult regarding accepting or rejecting a plea offer, a petitioner must prove

that counsel either failed to advise him of the offer or failed to discuss

counsel’s professional assessments of the risks, hazards, or prospects of

proceeding to trial. See id.

      In Commonwealth v. Copeland, 554 A.2d 54 (Pa.Super. 1988), the

Court discussed the requirements for trial counsel in advising a client

regarding potential plea agreements versus proceeding to trial as follows:

      The prevailing view among courts which have considered this
      issue is that counsel has a duty to inform his client of tendered
      plea agreements and may be found ineffective for failing to do
      so[.]    [I]n…Napper, [supra], [this] Court determined that
      defense counsel had been ineffective for failing to advise his client
      regarding the merits of accepting a tendered plea bargain vis-a-
      vis the dangers of trial. In Napper, counsel had informed the
      defendant that a plea offer had been made, but counsel had failed
      to give his client professional advice regarding the advantages of
      accepting the offer and the dangers inherent in rejecting it.
      Finding this to constitute ineffective assistance of counsel, [this]
      Court reasoned:
            Defense counsel has a duty, to communicate to his
            client, not only the terms of a plea bargain offer, but
            also the relative merits of the offer compared to the
            defendant’s chances at trial.
                                      ***
            The decision whether to plead guilty or contest a
            criminal charge is probably the most important single
            decision in any criminal case. This decision must
            finally be left to the client’s wishes; counsel cannot
            plead a man guilty, or not guilty, against his will. But
            counsel may and must give the client the benefit of
            his professional advice on this crucial decision, and
            often he can protect the client adequately only by
            using a considerable amount of persuasion to
            convince the client that one course or the other is in
            the client’s best interest.


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J-S18043-20



Copeland, 554 A.2d at 60 (quotations, quotation marks, and citations

omitted).

      In the case sub judice, the PCRA court found that Trial Counsel timely

informed Bazzley of the prosecution’s plea offers. See PCRA Court Opinion,

filed 8/20/19, at 6, 8. The PCRA court found credible Trial Counsel’s testimony

that he gave Bazzley (as well as Bazzley’s family) his professional advice that

accepting the Commonwealth’s final plea offer, in particular, would be “a good

outcome” for Bazzley in that the offer was for “only six months of county

incarceration whereas [Bazzley] faced the possibility of years in jail due to the

several counts that carried mandatory minimum sentences [if he was found

guilty at trial].” Id. at 8. Thus, as the PCRA court concluded, there was no

merit to Bazzley’s underlying claim that Trial Counsel failed to communicate

the plea offers to Bazzley or that he failed to give Bazzley his professional

advice regarding the advantages of accepting and the dangers inherent in

rejecting the plea offers. See Napper, supra.

      However, this does not end our inquiry, as Bazzley suggests that, in

light of the testimony offered by Dr. Rotenberg at the PCRA hearing, which

the PCRA court allegedly “virtually ignored,” Trial Counsel should have realized

that Bazzley was mentally incompetent to refuse the plea offer and/or should

have communicated the offer to Bazzley in different terms.

      Initially, as it pertains to Dr. Rotenberg’s testimony, we note the PCRA

court was free to accept or reject all, part, or none of Dr. Rotenberg’s

                                     - 14 -
J-S18043-20


testimonly and make the relevant credibility determinations based thereon.

See Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998).

Contrary to Bazzley’s assertion, the PCRA court carefully considered Dr.

Rotenberg’s testimony, as well as the testimony offered by Bazzley, Bazzley’s

family members, and Trial Counsel during the PCRA hearing. Thus, we find

no merit to Bazzley’s suggestion that the PCRA court “virtually ignored” Dr.

Rotenberg’s PCRA hearing testimony, and we are bound by the PCRA court’s

credibility determinations, which are supported by the record. See id.

      Further, in rejecting Bazzley’s ineffectiveness claim, the PCRA court

relevantly held the following:

             [The trial] court…found [Bazzley] competent to stand trial
      at that time[.]       [The PCRA court] likewise [finds he was]
      competent to make a determination as to whether to accept a plea
      offer or not. [The PCRA court is] further convinced of this by the
      fact that [Bazzley] had, at a relatively approximate [same] time
      and with Trial Counsel, entered into a guilty plea agreement in a
      sister county. The allegation of [Bazzley] now that he was then
      under the influence of a religious leader who assured him that a
      victory at trial was certain in no way [requires the conclusion] Trial
      Counsel[] [was ineffective]. Moreover, were [the PCRA court] to
      accept such a notion, [the court] would push the very boundaries
      of an attorney’s ethical duties and include an obligation of counsel
      that he or she should seek to impress upon a client, involuntarily,
      to accept a plea offer, for fear that a defendant’s decision might
      be unfounded or illogical.
                                   ***
            Moreover, at the bench trial, [the trial court] questioned
      [Bazzley] regarding the plea offer….Trial Counsel stated that he
      “conveyed to [Bazzley] that [this] is a very, very good offer from
      the Commonwealth,” and that he “recommended [Bazzley]
      seriously consider [the offer].” Again, it is clear that Trial Counsel
      sought to urge Bazzley to accept the plea offer and the fact that
      [Bazzley] chose to put his faith in those who assured him of victory

                                     - 15 -
J-S18043-20


       is not evidence of Trial Counsel’s ineffective assistance, but of
       [Bazzley’s] religious conviction at the time, which is certainly his
       right to hold.

PCRA Court Opinion, filed 8/20/19, at 12.

       We find no error in the PCRA court’s rationale. As the PCRA found, the

evidence reveals Trial Counsel adequately conveyed the Commonwealth’s plea

offers to Bazzley, set forth the advantages and disadvantages of accepting the

plea   offers,   and   in   fact,   zealously   urged   Bazzley   to   accept   the

Commonwealth’s final plea offer in particular. The fact Bazzley decided to

reject the plea offer, and now regrets his decision to do so, does not result in

the conclusion that Trial Counsel was ineffective.

       In his final issue, Bazzley contends his constitutional right to a jury trial

was violated. Specifically, he avers he did not knowingly and voluntarily waive

his right to a jury trial since the oral and written waiver colloquies were

inadequate given Bazzley’s alleged low IQ and mental deficiencies.              See

Bazzley’s Brief at 12, 23-24. Bazzley suggests that, by failing to take into

account Bazzley’s “low IQ and limited capacity to understand,” the trial court

failed to safeguard Bazzley’s constitutional right to a jury trial, and

accordingly, he is entitled to relief under the PCRA. See id. at 24.

       Initially, we note that this claim is waived since there is no indication

Bazzley could not have raised it on direct appeal. In order to be eligible for

relief under the PCRA, the error asserted must not have been previoulsy

litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). The PCRA provides that issues


                                       - 16 -
J-S18043-20


are “waived if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S.A. § 9544(b). See Commonwealth v. Jones, 932

A.2d 179, 182 (Pa.Super. 2007). Thus, since Bazzley has provided this Court

with no reason that this issue could not have been raised on direct appeal,

and yet he failed to do so, the issue is waived.3

       In any event, had this issue not been waived, it provides Bazzley no

basis for relief.

            The right to trial by jury is enshrined in both the U.S. and
       Pennsylvania Constitutions. See U.S. Const. amend. VI; Pa.
       Const. art. I, § 6. The importance of the right is recognized by
       the procedural protections in Rule 620 of th[e]…Criminal
       Procedural Rules, which provides that:
              In all cases, the defendant and the attorney for the
              Commonwealth may waive a jury trial with approval
              by a judge of the court in which the case is pending,
              and elect to have the judge try the case without a jury.
              The judge shall ascertain from the defendant whether
              this is a knowing and intelligent waiver, and such
              colloquy shall appear on the record. The waiver shall
              be in writing, made a part of the record, and signed
              by    the    defendant,    the    attorney    for    the
              Commonwealth, the judge, and the defendant’s
              attorney as a witness.
       Pa.R.Crim.P. 620.
                                        ***
             The essential elements of a jury waiver, though important
       and necessary to an appreciation of the right, are nevertheless
       simple to state and easy to understand. “The…essential
       ingredients, basic to the concept of a jury trial, are the
       requirements that the jury be chosen from members of the
____________________________________________


3We note Bazzley has made no claim that any alleged mental incompetence
prevented him from raising this claim earlier, in a timely manner.

                                          - 17 -
J-S18043-20


      community (a jury of one’s peers), that the verdict be unanimous,
      and that the accused be allowed to participate in the selection of
      the jury panel.” Notwithstanding the Rule’s reference to a
      “colloquy on the record,” the use of a written jury trial waiver form
      has been deemed sufficient in the absence of an oral jury trial
      waiver colloquy.
            A waiver colloquy is a procedural device; it is not a
      constitutional end or a constitutional “right.” Citizens can waive
      their fundamental rights in the absence of a colloquy; indeed,
      waivers can occur by conduct or by implication, as in the case of
      a criminal trial conducted in absentia after the defendant fails to
      appear.

Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 696-97 (2008)

(footnote, citations, and quotation omitted).

      Furthermore, it is the defendant’s burden, and not the Commonwealth’s,

to establish that a jury waiver is invalid. Commonwealth v. Houck, 596 Pa.

683, 948 A.2d 780 (2008). Also, in determining whether a jury waiver was,

in fact, unknowingly or involuntarily entered, the court must look to the

totality of the circumstances. Id. Our Supreme Court has recognized that a

detailed, written waiver signed, presented, and accepted in open court should

be accorded prima facie validity. Mallory, supra.

      Here, in rejecting Bazzley’s claim, the PCRA court relevantly indicated

the following:

            In this instance, we not only have the benefit of the
      executed written jury waiver colloquy, but we also have the oral
      colloquy on the record. When asked by the [trial] court whether
      he understood the potential outcome of a trial, including a
      mandatory ten-year sentence and possibly decades of
      incarceration, [Bazzley] responded that he understood. (Notes of
      Testimony of June 9, 2011 Status Hearing “Colloquy N.T.” at 3-
      4). Likewise, when the court asked [Bazzley] if there was

                                     - 18 -
J-S18043-20


      anything on the written waiver colloquy that he did not understand
      or if he had any further questions, [Bazzley] responded that he
      did not. (Colloquy N.T. 4). Finally, when asked whether anyone
      had promised anything or whether he had been coerced or
      threatened in order to give up his absolute right to a jury trial,
      [Bazzley] responded in the negative. (Colloquy N.T. 4-5).
                                    ***
            [W]e have on record a written waiver of jury trial indicating
      that [Bazzley] knew of the essential elements of the jury trial and
      that he chose to waive his right to a jury trial. As we stated above,
      [the trial] court then chose to hold an oral colloquy on the record
      to demonstrate the voluntariness of [Bazzley’s] waiver and [the
      court was] satisfied with the exchange. [Bazzley] now seeks to
      shed doubt on both the written and oral colloquy through an
      allegation that the same colloquy used for all defendants is
      somehow inadequate for him. [The PCRA court] rejects[s] this
      argument and find[s] no merit in the claim.

PCRA Court Opinion, filed 8/20/19, at 13, 16.

      We find no error in the PCRA court’s sound reasoning.           There is no

dispute that Bazzley signed a detailed written waiver of his right to a jury trial,

and the trial court conducted a lengthy and thorough oral colloquy of Bazzley

regarding his waiver of a jury trial. As the PCRA court concluded, the trial

judge and Bazzley communicated with each other, and Bazzley appropriately

responded to the various questions, indicating his understanding of the trial

judge’s statements. Thus, as the PCRA court concluded, Bazzley has failed to

establish that his jury waiver was invalid. Houck, supra, 948 A.2d at 788.




                                      - 19 -
J-S18043-20


As a result, even assuming, arguendo, this issue was not waived, we would

find Bazzley is not entitled to relief on this claim.4

       For all of the foregoing reasons, we affirm the PCRA court’s order.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/18/2020




____________________________________________


4 Further, since the underlying issue is meritless, to the extent Bazzley
suggests Trial Counsel was ineffective in failing to object to Bazzley’s waiver
of a jury trial, we find he is not entitled to relief. See Johnson, supra.

                                          - 20 -
