J-S74007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYREEK TORRENCE                            :
                                               :
                       Appellant               :   No. 1906 EDA 2018

                  Appeal from the Order Entered June 12, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009952-2013


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          Filed: February 7, 2020



        Appellant, Tyreek Torrence, appeals from the order denying his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

        On April 7, 2015, Appellant entered an open guilty plea to the crimes of

robbery, robbery of a motor vehicle, conspiracy to commit robbery, and two

firearm offenses.      At Appellant’s guilty plea hearing, the Commonwealth

summarized the factual basis for the plea as follows:

        [I]f the Commonwealth w[ere] to go to trial, it would present the
        live testimony of Ronald Brown, who was 44 at the time of the
        incident. [H]e would indicate that he was working at Carnival Four
        Pizza back on July 17th of 2013, around 10 o’clock or so in the
        evening, when he received a phone call for a delivery of pizza to

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     the address of 1139 Union Street in West Philadelphia. The phone
     number that called him was (702) 540-[…].

     [W]hen Mr. Brown got to th[at] address…, he went up the stairs,
     rang the doorbell and was waiting for individuals to come to the
     door. At the same time, … Mr. Brown saw [Appellant], as well as
     Marvin Alsbrook, … both of whom were known to him in the area.
     He [had] seen them on five to six occasions in the area of 1123
     North 41st Street. He saw them approaching him while he was
     standing on those steps.

     []Marvin Alsbrook was armed with a .38 revolver and approached
     Mr. Brown and asked him what was up. At that time[,] Mr. Brown
     [dropped] his keys, and [Appellant grabbed him] by his shirt collar
     and led him down the steps. At that time, Marvin Alsbrook went
     up the steps [and] picked up Mr. Brown’s keys. [Appellant] then
     took Mr. Brown to the ground and went into his pockets and took
     his money and … his wallet.

     [Subsequently,] Marvin Alsbrook went into the victim’s vehicle,
     and [Appellant] followed in after. Marvin Alsbrook drove the
     vehicle away.

     [T]he Commonwealth would also present the live testimony of
     Police Officer Robinson…. He would indicate that he was on duty
     as a 39th District police officer four days after the carjacking on
     July 21st of 2013, around 6:17 or so in the evening.

     [Officer Robinson] was working in the area of the 3400 block of
     Sydenham Street … when he came into contact with the vehicle
     that was taken during the carjacking. It was a 2003 gray Chrysler
     Town and Country minivan.

     []Officer Robinson conducted a[] check of that vehicle, and …
     confirmed that the vehicle was in stolen status and was taken at
     a point of gun, in a carjacking, four days before.

     Officer Robinson followed the vehicle, at which time he noticed
     that [it] picked up speed, and he lost sight of [it] due to the rate
     of speed that [it] was traveling. When he finally caught up to the
     vehicle, he noticed [Appellant and Appellant’s] girlfriend[] exiting
     [it] rather quickly. [Officer Robinson ordered] them to stop.

     [S]ubsequently, Mr. Brown made an identification of [Appellant]
     as being the individual [who] went into his pockets and led him
     down the steps during the carjacking.


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      Additionally, it should be noted that[, on the night of the incident,]
      Mr. Brown … positively identified Marvin Alsbrook … in the
      computer system.

      Mr. Brown would testify that he did not give [Appellant] or Marvin
      Alsbrook permission to take his money, his cell phone[,] or his car
      keys, and the car keys were recovered from [Appellant] when he
      was arrested.

      [Appellant] is not licensed to carry a firearm in the Commonwealth
      of Pennsylvania. And[,] if we were to go to trial, for purposes of
      [18 Pa.C.S. §] 6105, … I would mark [Appellant]’s criminal extract
      out of CP-90498-2009, which indicates a prior felony adjudication
      for robbery, gunpoint robbery, which makes him … ineligible to
      possess a firearm [pursuant to Section 6105], and I would move
      those items into evidence and rest.

N.T., 4/7/15, at 17-21.

      The trial court accepted Appellant’s plea, and the case immediately

proceeded to sentencing. “The Commonwealth requested a sentence of 20 to

40 years[’]” incarceration, while the “defense made no recommendation as to

the term of the sentence, but did request a downward departure from the

sentencing guidelines.” PCRA Court Opinion (“PCO”), 5/16/19, at 2. When

afforded his right to allocution, Appellant apologized to Mr. Brown for his

crimes. Id. at 3. Subsequently, the trial court sentenced Appellant to an

aggregate term of 6½-33 years’ incarceration, followed by a 20-year term of

probation. Appellant did not file post-sentence motions, nor did he file a direct

appeal, despite the trial court’s advising him of his rights to do so following

sentencing. Id. at 3-4.

      On March 7, 2016, Appellant filed a pro se PCRA petition, and appointed

counsel filed an amended petition on his behalf on November 1, 2017. In

essence, Appellant argued, inter alia, that his guilty plea was involuntarily and

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unlawfully induced by pressure from his trial counsel. The PCRA court held an

evidentiary hearing on June 12, 2018, where both Appellant and his trial

counsel, Attorney Jason C. Kadish, testified. As recounted by the PCRA court,

Appellant

     testified that he took an open plea and that he was “okay” with
     the minimum sentence of 6½ years[’ incarceration], but was
     under the impression that his maximum sentence would be 13
     years[’ incarceration]. N.T., [6/12/18], [at] 10…. He also testified
     that [Attorney] Kadish had advised him afterwards that he would
     file a Motion for Reconsideration of Sentence. [Id. at 11.] This
     conversation allegedly occurred in the “basement” [of the Criminal
     Justice Center]. [Id.]

     On cross-examination, [Appellant] acknowledged signing the
     written guilty plea colloquy and understood that he could have
     been sentenced up to 72 years in prison. [Id. at 18]. [Appellant]
     also testified that afterwards he asked trial counsel only for
     reconsideration, but not an appeal. [Id. at 19].

     The Commonwealth called [Attorney] Kadish … who testified
     that[,] prior to the start of the underlying trial[,] he had filed a
     motion to suppress evidence[,] which was denied, but that he was
     successful in arguing against the Commonwealth’s motion to
     admit prior bad acts of his client. [Id. at 22]. To the best of his
     recall at the time, he believed the minimum aspect of the sentence
     was negotiated at 6½ years, but the “top end” was not. [Id. at
     23]. He also recalled

        []discussing the case with [Appellant]. I remember talking
        about the strength of the case against him and Mr. Alsbrook.
        Because I do believe that Mr. Alsbrook subsequently went
        to trial. But I think I talked about if we went to trial[,] the
        case was going to proceed against the both of them
        together. It was going to be a joint trial. I t[ol]d … him that
        I did not think that there was a likely chance that we would
        prevail in a significant way at the time of trial. I told him
        that, based upon the charges in the case, that if we did not
        prevail in a significant manner, meaning that the serious
        charges you were acquitted of, that he would be facing a
        very severe sentence from the [c]ourt after a jury trial. And


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       I discussed with him that the customary things that I would
       -- that if we did enter into a non-trial the standard rights he
       would be giving up. But the fact is that we had already
       litigated a pretrial motion to suppress, so the difference
       [was] what [we] would … be able to appeal would be limited
       afterwards.

     [Id.]

     [Attorney] Kadish had no recollection of speaking with [Appellant]
     once the matter concluded in the courtroom. [Id. at 30]. He
     further had no recall of speaking to his client “downstairs”
     afterwards. [Id. at 30-31]. He also stated that in [a] case
     involving a plea, if a client asked to file an appeal, his general
     practice would be to file a post-sentence motion in light of the
     appellate rights waived when the plea is entered. [Id. at 31-32].
     If counsel believed the sentence imposed was illegal, he would
     himself file a motion for post-trial relief. [Id. at 32].

     When asked on cross-examination as t[o] whether he was taken
     aback by the sentence imposed, [Attorney] Kadish stated:

       []I am not taken aback. I mean, I would have hoped -- I
       mean, I am always trying to get the lowest possible
       sentence for my client. I think it’s worth discussion if you’re
       asking me to evaluate the sentence, was that this case was
       ready to proceed to trial before Judge Wogan and it was my
       impression that after trial, which I did not feel that we would
       prevail in any significant way after he testified, that Judge
       Wogan, after a jury trial, in both my experience from 2005
       to 2011 as a prosecutor and that following from 2011 up
       until the time of [Appellant]’s plea, that in both cases I
       prosecuted and in cases I’ve defended in front of Judge
       Wogan, that after a jury trial in many cases he had a
       practice of imposing consecutive sentences on charges for
       which somebody was convicted….

       And given that I believe that the guidelines were somewhat
       significant in this case, the Commonwealth had presented
       through other[-]acts evidence that they weren’t going to be
       able to introduce at trial, but I believe that through my
       discussions with [the prosecutor], [she] felt that there were
       a number of aggravating circumstances in this case, which
       would be emphasized if we went to sentencing. And I don’t
       know what exactly was read onto the record, without


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          reviewing it, at the time of the plea and then subsequent
          sentencing.

       [Id. at 33-34.]

       Upon conclusion of the testimony, this [c]ourt found [Attorney]
       Kadish’s testimony to be credible and also determined that
       [Appellant]’s open guilty plea was made in a[] knowing, intelligent
       and voluntary manner, and was not in any way coerced, resulting
       in a denial of PCRA relief.

PCO at 4-6.

       Appellant filed a timely notice of appeal, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement. The PCRA court issued its Rule 1925(a) opinion

on May 16, 2019.         Appellant now presents the following question for our

review: “Whether the [PCRA] court erred in not granting relief on the PCRA

petition alleging counsel was ineffective[?]”1 Appellant’s Brief at 7.

       As Appellant filed a timely PCRA petition, and because there is no

dispute that his ineffectiveness-of-counsel claim is cognizable under the PCRA

statute, we immediately proceed to the merits of his infectiveness claim.

       Our standard in reviewing a PCRA court order is abuse of
       discretion. We determine only whether the court’s order is
       supported by the record and free of legal error. This Court grants
____________________________________________


1 In Appellant’s Rule 1925(b) statement, he raised two claims. As presented
in his brief, Appellant alleged that counsel was ineffective for “causing
[Appellant] to enter an unknowing or involuntary guilty plea.” Appellant’s
Amended 1925(b) Statement, 8/17/18, at 1 ¶ A. He also asserted that the
“guilty plea was unlawfully induced.” Id. at ¶ B. Appellant abandons the
second claim in his statement of the questions presented, but then raises the
matter as a subpart of his ineffectiveness claim in the Argument section of his
brief. See Appellant’s Brief at 16. We conclude that these claims are, in fact,
identical, as both assert that counsel’s ineffectiveness caused Appellant to
enter his plea involuntarily. Accordingly, we decline to deem Appellant’s
unlawful-inducement claim waived due to his failure to present it separately
in his statement of the questions presented.

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      great deference to the findings of the PCRA court, and we will not
      disturb those findings merely because the record could support a
      contrary holding. We will not disturb the PCRA court’s findings
      unless the record fails to support those findings.

Commonwealth v. Rathfon, 899 A.2d 365, 368–69 (Pa. Super. 2006)

(cleaned up).

      It is axiomatic that criminal defendants have a right to the effective

assistance of counsel when entering a guilty plea. Id. at 369. Additionally, a

“defendant is permitted to withdraw his guilty plea under the PCRA if

ineffective assistance of counsel caused [him] to enter an involuntary plea of

guilty.” Id. (quoting Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa.

Super. 2005)).

      We conduct our review of such a claim in accordance with the
      three-pronged ineffectiveness test under section 9543(a)(2)(ii) of
      the PCRA, 42 Pa.C.S.[] § 9543(a)(2)(ii). The voluntariness of the
      plea depends on whether counsel’s advice was within the range of
      competence demanded of attorneys in criminal cases.

      In order for Appellant to prevail on a claim of ineffective assistance
      of counsel, he must show, by a preponderance of the evidence,
      ineffective assistance of counsel which, in the circumstances of
      the particular case, so undermined the truth-determining process
      that no reliable adjudication of guilt or innocence could have taken
      place. Appellant must demonstrate: (1) the underlying claim is of
      arguable merit; (2) that counsel had no reasonable strategic basis
      for his or her action or inaction; and (3) but for the errors and
      omissions of counsel, there is a reasonable probability that the
      outcome of the proceedings would have been different. The
      petitioner bears the burden of proving all three prongs of the test.

Id. (cleaned up).

      We begin our analysis by determining whether there is arguable merit

to Appellant’s ineffective-assistance-of-counsel claim(s).     Appellant asserts



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that there is arguable merit to his ineffectiveness claim(s) because trial

counsel’s “coercive actions played a large roll in the unlawful inducement of”

his guilty plea. Appellant’s Brief at 17. He alleges that trial counsel never

adequately informed him regarding the maximum sentence he could receive,

nor the fact that he could not appeal the denial of his suppression motion if

he entered a guilty plea. Appellant also claims that he requested, but trial

counsel failed to file, a post-sentence motion for reconsideration of his

sentence.

     As to the first allegation, Appellant asserts that through conversations

with Attorney Kadish, he expected the minimum sentence of 6½ years’

incarceration. Id. at 13. However, “Appellant was under the impression after

speaking to [Attorney Kadish] that the maximum” sentence would be twice

the minimum, or 13 years’ incarceration. Id. Thus, Appellant contends that

his maximum sentence was 20 years longer than he expected based on his

consultation with Attorney Kadish.

     The PCRA court determined that the “only conclusion one can reach

based upon [Appellant]’s PCRA hearing testimony is that he was unhappy with

the maximum sentence that was imposed. Nothing in the record suggests

that Attorney Kadish made representations that his sentence would simply be

double the minimum….” PCO at 10. The trial court informed Appellant of the

maximum penalties for each of the offenses during the guilty plea colloquy.

See N.T., 4/7/15, at 7-8. Nothing in the record of the plea/sentencing hearing




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indicates   Appellant’s   expectation   for   a   specific   maximum   sentence.

Furthermore, Attorney Kadish testified he would have discussed with Appellant

      what the parameters of the plea were or what the guidelines were.
      But it was an open guilty plea. I am sure we would have discussed
      that the [c]ourt had the complete discretion to sentence, to
      impose whatever sentence. I think I probably would have
      discussed what I believe that -- I always talk with the client about
      what I believe they would receive for a sentence.

N.T., 6/12/18, at 34.     The PCRA court found Attorney Kadish’s testimony

credible.

      Appellant’s entering an open plea gave the trial court wide discretion in

crafting his sentence, and Attorney Kadish advised him of that fact. Although

it appears that Attorney Kadish may have predicted a lesser maximum in his

discussions with Appellant, that prediction was issued with the caveat that the

sentence imposed was bound only by the statutory maximum sentences for

the pled-to offenses. Appellant was informed of those parameters by the trial

court during his plea colloquy. See N.T., 4/7/15, at 7-8. During the colloquy,

Appellant indicated that his guilty plea was not contingent upon any promises

made to him. Id. at 9. As the PCRA court found Attorney Kadish’s testimony

credible, it necessarily found Appellant’s account not credible to the extent

that he contends that Attorney Kadish promised him a particular maximum

sentence when advising him to enter his guilty plea. Thus, we conclude that

there is no arguable merit to this aspect of Appellant’s ineffectiveness claim.

      Appellant next asserts that Attorney Kadish failed to inform him that he

would surrender his right to appeal from the order denying suppression as a


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result of entering a guilty plea. However, nowhere in Appellant’s brief does

he direct this Court’s attention to where in the record this claim is

substantiated.   Indeed, Appellant testified that he requested that Attorney

Kadish file for reconsideration of his sentence, but that he did not request that

his attorney file a direct appeal on his behalf. N.T., 6/12/18, at 11. This is

simply incongruent with a claim that Appellant wanted or expected to appeal

from the denial of his suppression motion; yet it is consistent with Attorney

Kadish’s testimony that he did advise Appellant that, by entering a guilty plea,

he would forgo certain appellate rights. Id. at 23-24. The fact that Attorney

Kadish did advise Appellant of his forfeiture of such rights is further supported

by Attorney Kadish’s statement to Appellant on the record following

sentencing. Id. at 55 (“You have thirty days to file a petition with the [c]ourt,

with a higher [c]ourt, in regards to appeal on the limited grounds we’ve

discussed prior to entering your guilty plea.”). In any event, at no time during

Appellant’s testimony during the PCRA hearing did he state that he was not

informed by counsel that he gave up his right to appeal on the suppression

issue when he entered a guilty plea. Id. at 6-19.      Moreover, the trial court

informed Appellant during the plea colloquy of the limited grounds for appeal

following a guilty plea, none of which included the right to challenge the denial

of his suppression motion. N.T., 4/7/15, at 12-14. Consequently, due to the

foregoing, we conclude that there is also no arguable merit to this aspect of

Appellant’s ineffectiveness claim.




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      Finally, Appellant asserts that Attorney Kadish provided ineffective

assistance of counsel by failing to file a motion for reconsideration of sentence

on his behalf, despite ostensibly having asked him to do so.           However,

immediately following sentencing, Attorney Kadish asked Appellant, on the

record, if Appellant wanted him to file a motion for reconsideration or an

appeal on Appellant’s behalf. Id. at 55. Appellant answered, “[n]o.” Id. At

the PCRA hearing, Appellant stated that he asked Attorney Kadish to file a

motion for reconsideration of sentence after the hearing in the basement of

the courthouse, and that the attorney responded that he would. See N.T.,

6/12/18, at 11. However, during Attorney Kadish’s testimony, he indicated

that he did not recall speaking with Appellant after the plea/sentencing

hearing. Id. at 30. He also indicated that had Appellant asked him to file the

motion, he would have done so.        Id. at 31.      Based on this conflicting

testimony, the PCRA court resolved the credibility question involved in favor

of Attorney Kadish’s version of events.       As such, the record supports the

court’s conclusion that Appellant did not ask Attorney Kadish to file a motion

for reconsideration of sentence on his behalf, and therefore there is no

arguable merit to this aspect of his ineffective-assistance-of-counsel claim.

      As there are no issues of arguable merit underlying Appellant’s

ineffectiveness-of-counsel claim(s), he is not entitled to relief.   “Failure to

prove any prong of th[e ineffectiveness] test will defeat an ineffectiveness

claim.”    Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).




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Accordingly, we conclude that the PCRA court did not err or abuse its discretion

in denying Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/20




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