J-S05019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TERRY WALKER                               :
                                               :
                       Appellant               :   No. 951 WDA 2018

               Appeal from the PCRA Order Entered June 8, 2018
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0000359-2015


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 25, 2019

        Appellant Terry Walker appeals pro se from the order denying his first

timely Post Conviction Relief Act1 (PCRA) petition without a hearing. Appellant

challenges the validity of his negotiated no-contest plea to one count of third-

degree murder.2       Specifically, Appellant claims that his plea counsel was

ineffective and that the factual basis was inadequate to support his conviction.

We affirm.

        The Commonwealth recited the following factual background to

Appellant’s plea:

        On February 21, 2015 at approximately 8:00 in the morning Mya
        Grady [(the victim)] and Brandon Harris were staying at the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. § 2502(c).
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     residence of [the victim]. They came out of . . . her home, it was
     snowing, turned on their vehicles to warm them up, and then [the
     victim] went back inside the house. Brandon stayed outside and
     cleaned the cars off. At that time, approximately a few minutes
     later, [the victim] came out. [The victim] was to go to work at
     Lady Luck at Nemacolin Woodlands and she was scheduled to
     work that morning. Furthermore, at that time then [the victim]
     left from her residence to go to work followed by Brandon Harris
     in his vehicle, in his truck, followed then by a white Pacifica in
     which the Commonwealth can prove that [Appellant] was driving,
     and then followed by another vehicle driven by Erica Harris. They
     drove down to Fayette Street and [the victim] turned left to go up
     toward Nemacolin Woodlands in Farmington followed by Brandon
     Harris who went straight across and then [Appellant] turned and
     followed the victim . . . . Erica [Harris] then followed Brandon
     Harris. At that time then Mr. Harris and Erica Harris are out of the
     picture at that point in time. Throughout the trip up the mountain
     on Route 40 there were several video cameras on businesses, the
     first of which was Koval’s Plumbing and at that time that tape
     shows [the victim]’s car going by with a white Pacifica and
     [Appellant] following her.

                                  *    *    *

     Brandon Harris would testify that he was talking on the phone with
     [the victim] the whole way up the mountain . . . . Brandon would
     testify that Erica Harris was in her father’s car, which is a Mercury
     Marquis, and pulled up in back, or basically, across from Brandon
     in back of him at the time he was talking to [the victim]. He would
     testify that he had told [the victim] that he was not going to get
     out of the car because he did not want to have a confrontation
     with Erica Harris. At the time, Erica Harris and Brandon Harris
     were estranged from being married. There had been a divorce
     filed approximately four years before, and they had been
     estranged and on and off at certain times, but mostly estranged.
     What then happened was Brandon Harris would testify that Erica
     Harris drove up, pulled out, and started to drive, and he’s out
     driving around the block, so Brandon told [the victim], I’m gonna
     put the phone in my pocket, grab my stuff and get in the house
     because I don’t want a confrontation with Erica Harris. Brandon
     puts the phone in his pocket and it’s at approximately 8:28, or
     between 8:25 and 8:30, and Brandon gets in the house, takes the
     phone out of his pocket, it’s still connected to [the victim]’s phone.
     At that time Brandon would testify that he’s trying to talk to [the
     victim] and [the victims]’s not answering. He then hangs up and

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      calls back, cannot get her to answer, and then he sends her a text
      message later on. He just thought that she didn’t want to talk
      because of the weather, and at the time, at approximately that
      time Erica Harris had been in Uniontown.

N.T. Guilty Plea Hr’g, 6/6/16, at 11, 13-14.

      The victim’s car was found by a snowplow driver along Route 40 at

approximately 8:30 a.m.     The victim was found inside her car with two

gunshot wounds to the head.

      Appellant was interviewed by police from the afternoon of February 21,

2015, into February 22, 2015. According to the Commonwealth,

      [t]here are four statements that [Appellant] made, one of which
      was that he didn’t have anything do with it, then it started
      gradually developing, and I can read the synopsis by Trooper
      [D.M.] Leonard who was one of the interviewers and Trooper
      [George] Mrosko who was involved in the interview, also. That
      would clearly show the progression of going from and lying on
      several occasions to where [Appellant] puts himself in the car [at
      the time of the shooting], behind [Erica Harris] and then next to
      her and the shots are fired, [Appellant’s] clothing and the inside
      of the white Pacifica is covered in gunshot residue, we can prove
      that, we have an expert from R.J. Lee that would testify that the
      gunshot residue was on his clothes and in the car.

Id. at 17.   Although Appellant implicated Erica Harris as the shooter, the

Commonwealth asserted that

      based on the testimony of Brandon Harris and the cell phone
      records that we would have AT&T testify about that Erica Harris
      was in Uniontown near Brandon Harris’ residence. Additionally,
      we can prove that Erica Harris drove by the VFW in East End,
      which is in Uniontown on Main Street, at 8:23 a.m. when this
      incident -- when [the victim] . . . was driving up on Route 40,
      approximately somewhere near Lick Hollow Park at 8:20. At the
      same time the roadways are covered with snow, it was snowing
      pretty heavily, so it would be impossible to traverse from Brandon
      Harris’ house up there in a matter of two or three minutes and

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      meet up with [Appellant], get in his car, shoot [the victim] and
      get back downtown at the time that the homicide occurred . . . .

Id. at 15.

      On June 6, 2016, Appellant, who was represented by plea counsel,

entered a negotiated no-contest plea to one count of third-degree murder.

The parties agreed to a sentence of twenty to forty years’ imprisonment. Id.

at 2. The trial court accepted Appellant’s plea, but deferred sentencing for

the preparation of a presentence investigation report.

      On July 11, 2016, Appellant appeared for sentencing. Before the trial

court imposed sentence, the following exchange occurred:

      THE COURT: I have also reviewed the presentence report, and the
      disturbing thing that I see is that [Appellant]’s version states that:
      [Appellant] debating whether or not to take this to trial, after the
      plea was entered. Is there any indication, whatsoever, [to plea
      counsel] that he does not want to take this plea bargain? Because
      I do not want a PCRA coming back to me to state that [Appellant]
      did not knowingly, intelligently or voluntarily enter his plea and
      wish to do so.

      [Plea Counsel]: I can respect that, Your Honor.

      THE COURT: We need to establish the record now whether the
      defendant wishes to withdraw this plea and go to trial. I’m going
      to give you a few minutes to discuss that with him right now.

      [Plea Counsel]: We have discussed it at length numerous times,
      including with his family, and . . . we have over and over again
      discussed the matter. We’ve looked at guidelines, we’ve looked at
      all of the possibilities. Literally, there are 80 to 90 hours of review
      of this case at the minimum that I can really tell you that I’ve
      reviewed in order to make a recommendation to my client so he
      could make an informed decision of whether to plead no contest
      or not.




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     THE COURT: Well, . . . why don’t we have your client sworn and
     you can question him for purposes of the record and I may
     question him, also, in regard to the voluntariness of his plea.

     [Plea Counsel]: I think that’s a great idea. Thank you.

      [Appellant] WAS DULY SWORN AT THIS TIME AND WAS
                   QUESTIONED AS FOLLOWS:

                                 *    *    *

     [Plea Counsel]: And you understand the nature of the proceedings
     before the [c]ourt today, correct?

     [Appellant]: Correct.

     [Plea Counsel]: You would agree we’re here today for a sentencing
     regarding a no contest plea―

     [Appellant]: Correct.

     [Plea Counsel]: ―in reference to [the victim], correct?

     [Appellant]: Correct.

     [Plea Counsel]: And is it fair to say that you and I have spent
     many, many moments or times at the jail reviewing your case
     over the past months?

     [Appellant]: Correct.

     [Plea Counsel]: And would you agree that I have basically, to say
     an analogy, turned over basically every rock? I’ve went to the
     casinos, got all the videotapes, I have all the videotapes of every
     place that allegedly Ms. Harris was, where you were, where [the
     victim] was, and I’ve reviewed all of that with you?

     [Appellant]: Correct.

     [Plea Counsel]: I’ve employed out of my own pocket a gun residue
     expert on your behalf, correct?

     [Appellant]: Correct.

     [Plea Counsel]: I’ve employed out of my own pocket a physician’s
     assistant who would have found what she would believe your
     mental condition was during the approximately 12 hours of what
     I would call interrogation?


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     [Appellant]: Correct.

     [Plea Counsel]: And based upon our discussions and reviewing
     this matter over and over again with you and your family is it your
     decision to voluntarily, knowingly and intelligently waive your
     right to a trial and after weighing the factors of what the result
     may be, which could be the electric chair, but not reality anymore,
     but could be life in prison, and life in Pennsylvania means life, you
     understand that, correct?

     [Appellant]: Correct.

     [Plea Counsel]: And do you wish to enter—well, you did enter a
     no contest plea and that’s for Third Degree Murder, do you
     understand all of that?

     [Appellant]: Correct.

     [Plea Counsel]: And that would give you at some point the hope
     of being a free man again if you’re under good behavior for twenty
     (20) to forty (40) years, we’ve reviewed all of that, correct?

     [Appellant]: Correct.

     [Plea Counsel]: And would you agree that we’ve reviewed your
     presentence investigation report?

     [Appellant]: Correct.

                                  *    *    *

     [Plea Counsel]: Your Honor?

     THE COURT: [to Appellant] Are you satisfied                 with   the
     representation that [plea counsel] has provided you?

     [Appellant]: Yes, ma’am.

     THE COURT: And why is it that you told the Adult Probation Office
     that you were debating whether or not to take this case to trial?

     THE DEFENDANT: I was thinking about it but since I know so much
     about it, I mean, all fingers point at me, so I’ll just take the twenty
     (20) to forty (40), I know about it.

     THE COURT: Okay. Well, did you make that statement after you
     pled pursuant to this interview?

     [Appellant]: No. He came to me earlier.

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     THE COURT: Okay. He came to you earlier?

     [Appellant]: About two weeks ago.

     THE COURT: The plea bargain date was June 6th.

     [Appellant]: I think he came like a day or two after that.

     [Appellant]: And Your Honor, if I may politely interrupt for the
     record, I did go to speak with [Appellant] after that to clarify
     whether or not he wished to take the no contest plea or go to trial.
     He wished to take the no contest plea.

     THE COURT: So a day or two after the plea you were still debating
     whether to go forward with your sentencing or request the [c]ourt
     to withdraw your plea?

     [Appellant]: No, I didn’t request the [c]ourt—

     THE COURT: But you were thinking about it?

     [Appellant]: I was talking to my family about it.

     THE COURT: And you were thinking about it a day or two after the
     plea?

     [Appellant]: No, I just mentioned it to them.

     THE COURT: Well, that’s a very serious thing to mention and that’s
     giving me pause because you’re telling the Probation Office you’re
     debating whether or not to take this case to trial. I have to be
     absolutely sure that you want to accept the no contest plea to
     Third Degree Murder.

     [Appellant]: Yes.

     THE COURT: Do you want to accept it?

     [Appellant]: Yes.

     THE COURT: And after you spoke with the Probation Office did you
     have the opportunity again to speak with counsel?

     [Appellant]: Yes, I talked to him about it, yes.

     THE COURT: Okay. What you did on the 6th of June and still want
     to be sentenced to today, is that knowingly done by you?

     [Appellant]: Yes.


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       THE COURT: You’ve weighed all of the alternatives?

       [Appellant]: Yes.

       THE COURT: Is it intelligently done by you?

       [Appellant]: Yes, Your Honor.

       THE COURT: And is it voluntarily done? There’s no coercion or
       duress upon you to enter into this plea?

       [Appellant]: Correct.

       THE COURT: And you are doing this of your own free will?

       [Appellant]: Yes.

N.T. Sentencing H’rg, 7/11/16, at 6-8, 9-11. At the conclusion of the hearing,

the trial court imposed the agreed-upon sentence of twenty to forty years’

imprisonment.       Appellant did not file a post-sentence motion or a direct

appeal.

       Appellant timely filed a pro se PCRA petition that was docketed July 12,

2017. Appellant asserted, in relevant part, that plea counsel “was well aware

that all evidence pointed toward Eri[c]a Harris being the prime suspect in this

case,” but failed to present any argument on Appellant’s behalf. PCRA Pet.,

7/12/17, at 3.

       The PCRA court appointed counsel, who filed a motion to withdraw from

representation and a Turner/Finley3 brief on September 13, 2017.            On




____________________________________________


3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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September 18, 2017, the PCRA court granted PCRA counsel’s motion to

withdraw.4

       On May 1, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s petition. Appellant filed a pro se “statement of

matters complained on appeal” that was docketed May 25, 2018. Appellant

alleged:

       Ineffectiveness of counsel for failing to bring up PCRA claims that
       were unaddressed and asked to do.

       Representation coerced [Appellant] into a guilty plea due to [plea
       counsel]’s failure to adequately represent him.

Statement of Matters Complained of on Appeal, 5/25/18.           The PCRA court

dismissed Appellant’s petition on June 8, 2018.5

       Appellant timely appealed and complied with the PCRA court’s order to

file and serve a Pa.R.A.P. 1925(b) statement.         Appellant’s Rule 1925(b)

statement was identical to the one Appellant prematurely filed in May 2018.

This appeal followed.

       Appellant, in his pro se brief, raises two issues. See Appellant’s Brief at

14 (unpaginated).        In sum, Appellant first argues that plea counsel was

ineffective for failing to (1) meet and consult with him, (2) adequately prepare,

(3) investigate witnesses and evidence, and (4) adopt a viable trial strategy.

____________________________________________


4Appellant did not respond to appointed counsel’s motion to withdraw or the
PCRA court’s order permitting PCRA counsel to withdraw.

5Although styled as a Pa.R.A.P. 1925 statement, we regard Appellant’s May
25, 2018 statement as a pro se response to the PCRA court’s Rule 907 notice.

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Id. at 16-18. Appellant also suggests that PCRA counsel failed to raise these

claims. See id. at 14, 16. Second, Appellant asserts that the factual basis

for his conviction was so weak and inconclusive that the Commonwealth could

not have established all elements of third-degree murder. Id. at 19.

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The 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.”   Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012)

(citation omitted).

      To obtain relief on an ineffectiveness claim, a petitioner must establish:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s actions or failure to act; and (3)
      petitioner suffered prejudice as a result of counsel’s error such
      that there is a reasonable probability that the result of the
      proceeding would have been different absent such error.

      [Plea] counsel is presumed to be effective, and [the petitioner]
      bears the burden of pleading and proving each of the three factors
      by a preponderance of the evidence.

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

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 [the



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defendant] to enter an involuntary or unknowing plea.” Commonwealth v.

Allen, 732 A.2d 582, 587 (Pa. 1999) (citation omitted). “In order to make a

knowing and intelligent waiver, the individual must be aware of both the

nature of the right and the risks and consequences of forfeiting it.”

Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (citations

omitted).   Although not constitutionally mandated, a proper plea colloquy

ensures that a defendant’s guilty plea is truly knowing and voluntary.

Commonwealth v. Maddox, 300 A.2d 503, 504 (Pa. 1973) (citation

omitted).

      “To determine a defendant’s actual knowledge of the implications and

rights associated with a guilty plea, a court is free to consider the totality of

the circumstances surrounding the plea.”      Allen, 732 A.2d at 588-89.      “A

person who elects to plead guilty is bound by the statements he makes in

open court while under oath and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003)

(citation omitted).

      At the outset, we note that Appellant’s arguments could be deemed

waived on several bases. First, Appellant failed to preserve any specific claims

in his petition or response to the Rule 907 notice. See Ousley, 21 A.3d at

1245. Second, Appellant’s Rule 1925(b) statement was vague. See Pa.R.A.P.

1925(b)(4)(ii). (vii); Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa.

Super. 2016). Third, Appellant’s appellate arguments were undeveloped. See

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Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (indicating that

“where an appellate brief fails to provide any discussion of a claim with citation

to relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived” (citations omitted)).

        Nevertheless, having reviewed the record, Appellant’s arguments, and

the relevant law, we discern no error in the PCRA court’s decision to deny

relief. The record contradicts Appellant’s assertions that plea counsel failed

to consult, investigate, or prepare resulted in an involuntary or unknowing

plea.    See Pollard, 832 A.2d at 523.         Here, the trial court conducted an

extensive colloquy at the guilty plea hearing, and it supplemented the colloquy

immediately before sentencing.       During the supplemental colloquy, plea

counsel discussed the extent of his consultations with Appellant and

investigation of the evidence. See N.T. Sentencing Hr’g at 6-7. Appellant

stated that he was satisfied with plea counsel’s representation and

acknowledged that “all fingers point to me.” See id. at 9. Appellant also

stated that his decision to plead no contest was not coerced.         Id. at 11.

Therefore, the PCRA court properly rejected Appellant’s claims of ineffective

assistance of plea counsel. See Ousley, 21 A.3d at 1242.

        Regarding Appellant’s assertion that PCRA counsel was ineffective, it is

well settled that a petitioner cannot establish a layered claim of ineffective

assistance of counsel if he fails to demonstrate prior counsel’s ineffectiveness.

See Commonwealth v. Tedford, 960 A.2d 1, 13 (Pa. 2008).                  Because




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Appellant’s claims of plea counsel’s ineffectiveness lack merit, his assertion of

PCRA counsel’s ineffectiveness must also fail. See id.

         Lastly, to the extent Appellant contends that the factual basis of his plea

was inadequate, the Commonwealth’s recitation of the facts established that

Appellant shot the victim and killed the victim, and that Appellant acted with

malice. See 18 Pa.C.S. § 2502(c); Commonwealth v. Santos, 876 A.2d

360, 363 (Pa. 2005) (noting that “to convict a defendant of the offense of

third-degree murder, the Commonwealth need only prove that the defendant

killed    another   person    with   malice   aforethought”   (citation   omitted)).

Therefore, Appellant’s challenge merits no relief.

         Order affirmed.



         President Judge Panella joins the memorandum.

         Judge Strassburger concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2019




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