J-S39019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

MATTHEW JAMES MURPHY

                             Appellant               No. 1690 WDA 2013


              Appeal from the PCRA Order of September 20, 2013
                In the Court of Common Pleas of Butler County
               Criminal Division at No.: CP-10-CR-0001660-2010


BEFORE: BENDER, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                            FILED AUGUST 11, 2014

       Matthew James Murphy challenges the order denying him relief under

the Post-                                                       9541, et seq.

Specifically, he contends that his guilty plea counsel was ineffective for



matter. We affirm.

       The PCRA court has provided the following factual and procedural

history of this case:

       By information filed on November 10, 2010, [Murphy] was
       charged at C.A. No. 1660 of 2010 with three counts each of theft
       by deception, in violation of 18 Pa.C.S. § 3922(a)(1), receiving
       stolen property, in violation of 18 Pa.C.S. § 3925(a), access
       device fraud, in violation of 18 Pa.C.S. § 4106(a)(1)(i), access
       device fraud, in violation of 18 Pa.C.S. § 4106(a)(1)(ii), identity
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       theft, in violation of 18 Pa.C.S. § 4120(a), and access device
       fraud, in violation of 18 Pa.C.S. § 4106(a)(3). The crimes were
       alleged to have been committed in Franklin Township, Butler
       County. Represented by Attorney Patrick J. Thomassey, on
       July 8,   2011,     pursuant   to   an   agreement    with  the
       Commonwealth, [Murphy] pleaded guilty to three counts of theft
       by deception.      The parties did not agree to a sentence
       recommendation.        The sentencing guidelines called for a
       standard range minimum sentence of between six and sixteen
       months based on a prior record score of three. On October 25,
       2011, [Murphy] was sentenced by [the trial court] to, among
       other things, undergo imprisonment of twelve to thirty-six
       months on each of the three counts, concurrently with each
       other, in the custody of the Department of Corrections. [The
       trial court] imposed a recidivism risk reduction incentive
                                                               mitment
       was deferred until November 10, 2011. No direct appeal was
       filed from the judgment of sentence.[1]

                                         ****

       On August 16, 2012, [Murphy] filed a pro se [PCRA] Petition at
       No. 1660 of 2010. . . .      Following [this] filing, Attorney
       Hernandez-Cuebas was appointed to represent [Murphy] and [an
       amended PCRA petition was filed on January 9, 2013. [The
       PCRA court] scheduled a . . . hearing on the Amended
       Petition[]. . . . At the . .
       petition], three witnesses testified: Attorney Owen Seman,
       Attorney Patrick Thomassey, and [Murphy].

       Attorney Seman testified that he has been practicing law in this
       Commonwealth for more than ten years and that his office was
       retained to represent [Murphy] with respect to [this case].
       Attorney Seman is . . . an associate for Attorney Patrick

       [Murphy], he testified that he personally represented [Murphy]
       only with respect to sentencing.
____________________________________________


1
     Murphy filed simultaneous PCRA petitions at two separate criminal
dockets. Although the PCRA court addressed them together, the instant

Accordingly, in the interest of clarity, we have omitted references to the
                                            t.



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                                   ****

     According to Attorney Seman, the negotiated plea agreement did
     not include an agreed upon recommended sentence. Instead,
     the agreement called for the dismissal of certain charges.
     Attorney Seman did not look to the factual basis of the agreed-
     upon charges to which [Murphy] pleaded guilty, he testified.

                                   ****

     Attorney Patrick Thomassey testified that he has been practicing
     law for thirty-eight years and he represented [Murphy] on cases
     in both Allegheny and Butler Counties in 2010 or 2011. C.A. No.
     1660 of 2010, Attorney Thomassey testified, was an access
                                                                ....
     Attorney Thomassey did not recall handling the preliminary
     hearing on either case. He did not recall when he first met
     [Murphy] or whether that occurred at his office[] or at the
     Allegheny County Jail.

     . . . Attorney Thomassey testified [that Murphy], via computer,

     knowledge or permission. He paid the bills for a time but
     eventually stopped.        At one point, [Murphy] signed an
     agreement with her in which he admitted that his conduct was
     criminal. [Murphy], Attorney Thomassey testified, lived in Mars
     while his girlfriend lived in Prospect. Those places of residence,
     he testified, are listed in the agreement. The agreement is
     dated December of 2009. There was no indication, however,
     where the debts were, in fact, incurred. [Murphy], Attorney
     Thomassey noted, represented to him that he lived in Mars, then
     on and off with his girlfriend, before he moved to Sewickley,
     where he resided when he met with Attorney Thomassey.
     According to Attorney Thomassey, the criminal conduct occurred
     in Butler County. Jurisdiction, he testified, was not an issue and
     [Murphy] signed a document in which he admitted committing
     the crime.

                                   ****

     [Murphy] was the final witness to testify at the . . . hearing. . . .
     C. A. No. 1660 of 2010, [Murphy] testified, was an access device
     fraud case where he signed a document in which he admitted to
     opening the credit cards illegally. According to [Murphy], the
     document was signed in 2009. One of the addresses listed on


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                                                -]address in Seven
     Fields.   The document, [Murphy] testified, was provided to
     Attorney Thomassey in discovery. According to [Murphy], the
     body of the document was correct in that it recited that he
     unlawfully opened a credit card in Ms.
     [Murphy] testified, however, that the document did not set forth
     where the credit cards were opened or where purchases were
     made using the credit cards. According to [Murphy], both he
     and Ms. Warheit were living at a home in Moon Township,
     Allegheny County when the credit card accounts were opened.

                               9/20/2013, at 1-6 (citations modified).

     Following the PCRA hearing, the PCRA court issued a memorandum




file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Murphy timely complied. Thereafter, the PCRA court

issued a short Rule 1925(a) opinion indicating that its September 20, 2013

                                                 assertions of error.



below incorrect[ly] rule that Murphy failed to show that his claim of lack of

subject matter jurisdiction had arguable merit and that Murphy carried his

burden a

     Our standard of review regarding an order denying a PCRA petition



evidence of record and is free of legal error. Commonwealth v.

Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009). With regard to claims

of ineffective assistance of counsel, Pennsylvania has recast the two-factor


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inquiry set forth by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984), as a three-factor inquiry:

       [I]n order to obtain relief based on [an IAC] claim, a petitioner
       must establish: (1) the underlying claim has arguable merit; (2)

       act; and (3) p
       error such that there is a reasonable probability that the result of
       the proceeding would have been different absent such error.

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is

presumed to be effective, and Appellant bears the burden of pleading and

proving each of the three factors by a preponderance of the evidence.

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006); see

also Commonwealth v. Meadows, 787 A.2d 312, 319-20 (Pa. 2001).



the Common Pleas Court of Butler County had no subject matter jurisdiction

over, as the predicate crime had been hatched and completely committed in



that effect at his PCRA hearing.

       In support of his contention that his claim has arguable merit, Murphy

cites Mr.

[Mr.                                            . . . This case was going to be

                        id.

at 25), and argues that Mr.                                                   tted




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effective assistance of guilty plea counsel.     Id.   Upon this basis, Murphy

argues that his claim has arguable merit.

       Regarding whether Mr. Thomassey had a reasonable basis for not

pressing a jurisdictional issue, Murphy relies upon the same testimony,




                Id. at 20. He continues:

       Counsel seems to claim through his own testimony that because
       the case was going to be a plea from day one, and that [Murphy]
       had in fact admitted to the crime[,] that there was no reason to
       consider where in fact the crimes had occurred. Counsel rather
       mistakenly assumed that all crimes happened in Butler County.

Id.

       Regarding prejudice, Murphy argues that Mr.



subject matter jurisdiction over th

instructs that a [guilty] plea does not waive [objections to] subject matter

jurisdiction,[2] Mr.

forever lost to [Murphy] a right which these [c]ourts have said is not

             Id. at 21.



lacked arguable merit:
____________________________________________


2
      See Commonwealth v. Diaz, 340 A.2d 559, 561 (Pa. Super. 1975),
reversed on other grounds, 383 A.2d 852 (Pa. 1978).



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J-S39019-14


      [Murphy] has failed to demonstrate that the underlying claim
      that this Court lacked jurisdiction . . . had arguable merit. The
      testimony of Attorney Thomassey was that jurisdiction was not
      an issue. He testified that [Murphy] had signed an agreement in
      which he admitted to opening credit cards illegally in his

      of 2009, . . . included on it addresses in Portersville and Mars,
      both of which are in Butler County.         Attorney Thomassey
      testified that [Murphy] stated to him that he lived in Mars before
      he cohabitated with Ms. Warheit on a non-continual basis, before
      he moved to Sewickley. According to Attorney Thomassey, the
      criminal conduct that formed the basis of the charges . . .

      credible.

P.C.O. at 10.      The PCRA court went on specifically to note that it found

              trary testimony incredible:


      criminal conduct did not occur in Butler County and we instead
      believe the testimony of Attorney Thomassey that the criminal
      conduct did occur in Butler County, the [c]ourt finds that
      [Murphy] has failed to prove that his claim is of arguable merit.

Id. at 11. We agree.

      First, we note that, aside from boilerplate regarding the overarching

legal standards that apply in this context, Murphy has furnished no apposite

case law to support his claims.           Moreover, his challenge plainly depends

upon an attempt to relitigate determinations that rest with the fact-finder:

He   asks   this    Court   to   credit   his   testimony   over   Mr.

notwithstanding that the PCRA court did otherwise. As set forth, supra, we



determinations when they find support in the record.               See Kretchmar,

supra.

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Mr.               s testimony, and indeed provides more support for the PCRA



of Mr.

                                Did you ever inquire of [Murphy] where
         physically, where he opened those accounts?

         [Mr. Thomassey].      He lived in Mars and she lived in Prospect
         so everything happened in Butler County.

         Q.     Okay. And you, in fact, inquired of him about that that he
         lived in Mars and she lived in Prospect?

         A.   Yes, and in the agreement that he signed it says him,
         Mars, Pennsylvania, and I asked him at the time is that where
         you were living and he said, yes.

                                     ****

         Q.    [N]ow this is an agreement that says that he will
         essentially hold her harmless for purchases that he had
         previously made, is that more or less what the agreement says?

         A.     No, this agreement says that Mr. Matthew Murphy admits
         that the credit card accounts illegally opened and fraudulently
         used by Mr. Murphy in the name of Crystal Warheit are
         identified, so he said he illegally opened them.

                                     ****

         Q.    It is, in fact, dated, from a Butler County jurisdiction,
         correct?

         A.

         Q.   Yes. But Mars and

         A.   Right.

         Q.     and Prospect. Those are Butler County?

         A.   Right.



                                       -8-
J-S39019-14


      Q.    Is there any indication on there where those debts were
      incurred or where the debts, any indication where he applied for
      those credit cards? On that form?

      A.    No, not on this form, no.

      Q.    He simply admits that he illegally applied for the credit
      cards, ran up bills which swore that he paid for

      A.    Yes.

      Q.   And that he was living in Butler County at the time that he
      admitted to those things, correct?

      A.    Correct.

      Q.   Okay, did he ever indicate to you that he was living in
      Moon Township when all of those activities occurred?

      A.    No, because when he came in[ ]to see me, he was living in
      Sewickley, and I said, well, when did you move to Sewickley[?]
      He said I lived in Mars and Butler and I lived on and off with her,
      meaning Miss Warheit, and they were on and off and that he did
      this over the computer.

      Q.     So, you took from the conversation that this criminal
      activity happened in or some portion of it happened in Butler
      County then?

      A.    It did.

N.T. at 21-24; cf. id. at 30-32 (Murphy authenticating under oath the Butler



possession admitting responsibility for the debts incurred illegally in

Ms.



cribbed and self-serving description thereof, provided an ample basis for the

                                        Thomassey had good reason to believe

that a challenge to the subject matter jurisdiction of the Butler County Court


                                     -9-
J-S39019-14



of Common Pleas was not worth pursuing under the circumstances of this

case. Given the testimony and evidence, we agree with the trial court that

the claim of ineffective assistance simply lacks arguable merit.   Moreover,

even were we to allow that there might be arguable merit, the evidence

presented certainly established a reasonable basis for Mr. Thomassey not to



especially when negotiating a plea that reduced eighteen counts of access

device fraud and related charges to just three counts of access device fraud.



     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




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