J-S65018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    PRINCEL V. SUMMERS

                             Appellant               No. 1582 MDA 2017


           Appeal from the PCRA Order entered September 26, 2017
                In the Court of Common Pleas of York County
              Criminal Division at No: CP-67-CR-0001041-2015


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 14, 2019

        Appellant, Princel V. Summers,1 appeals from the September 26, 2017

order entered in the Court of Common Pleas of York County, denying his

petition for collateral relief under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. While Appellant asserts the trial court erred in

failing to correct his pre-sentencing credit, he claimed ineffectiveness of

counsel in his PCRA petition for failing to seek retroactive revocation of his

bail. For the reasons that follows, we reject Appellant’s claims and affirm the

order dismissing his petition.

        As the PCRA court explained:


____________________________________________


1We note that the docket identifies Appellant as Princel V. Summers, while he
writes and signs his name as Prince’l V. Summers. For purposes of this
Memorandum, we adopt the spelling as it appears on the docket.
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        On May 5, 2016, the Appellant pleaded guilty [to robbery at docket
        at No. 1041-2015], along with a number of other dockets, for an
        agreed upon sentence of three-to-six years in a state correctional
        facility with concurrent probationary sentences for some lesser
        actions. On August 22, 2016, the Appellant caused a pro se letter
        to be docketed that requested his credit for time already served
        to be addressed.

PCRA Court Opinion, 4/30/18, at 1. The court explained that a senior judge

presided over a hearing on October 27, 2016 and entered time-credit orders

on each docket, including No. 1041-2015, for which Appellant received credit

for time served from December 8, 2015 until May 5, 2016. However, due to

an apparent oversight, Appellant was not given credit for a period of time from

January 24, 2015 to May 19, 2015. That oversight was remedied by an order

entered on April 6, 2017 by the trial judge, who was also the PCRA judge. Id.

at 1-2.2


        With respect to No. 1041-2015, it is important to note Appellant was

released on bail on May 19, 2015. He was arrested on unrelated charges on

May 29, 2015 and returned to prison at that time. However, he remained out

on bail with regard to No. 1041-2015.             Therefore, although he was

incarcerated, that confinement was unrelated to No. 1041-2015 and was

correctly excluded from time-served credit calculations.         As this Court

reiterated in Commonwealth v. Infante, 63 A.3d 358 (Pa. Super. 2013),

“[A] defendant shall be given credit for any days spent in custody prior to the


____________________________________________


2   Appellant did not file a direct appeal from his judgment of sentence.

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imposition of sentence, but only if such commitment is on the offense

for which sentence is imposed.” Id. at 367 (quoting Commonwealth v.

Clark, 885 A.2d 1030, 1034 (Pa. Super. 2005) (additional citation omitted)

(emphasis added)).

       In his PCRA petition, Appellant asserted that trial counsel was ineffective

for failing to secure credit for time served, including time served from May 29,

2015, when he was arrested on the unrelated charges, through December 8,

2015. Following a hearing, the PCRA court denied Appellant’s petition. This

timely appeal followed.       Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

       Appellant asks us to consider a single issue in this appeal:

       I.     Whether the honorable trial court erred in not granting
              Appellant pre-sentencing credit from May 29, 2015 to
              December 8, 2015 or 193 days.

Appellant’s Brief at 4.3


____________________________________________


3  Appellant’s issue, as framed, raises a claim of trial court error for failing to
grant pre-sentencing credit. As explained in Commonwealth v. Reyes-
Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc), the PCRA
procedurally bars claims of trial court error by requiring a petitioner to
demonstrate that the allegation of error has not been previously litigated or
waived. “At the PCRA stage, claims of trial court error are either previously
litigated (if raised on direct appeal) or waived (if not).” Id. (citation omitted).
“Trial court error may constitute the arguable merit prong of an [ineffective
assistance of counsel] claim, but the issue must be framed properly for a
petition to be entitled to relief.” Id. (citation omitted). Here, the issue was
properly raised in Appellant’s petition. Therefore, we shall consider it, despite
the improper phrasing of the issue presented on appeal, which we could
consider waived for failure to raise it on direct appeal.


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     As this Court explained in Reyes-Rodriguez:

     In PCRA appeals, our scope of review “is limited to the findings of
     the PCRA court and the evidence on the record of the PCRA court’s
     hearing, viewed in the light most favorable to the prevailing
     party.” Commonwealth v. Sam, 597 Pa. 523, 952 A.2d 565,
     573 (2008) (internal quotation omitted). Because most PCRA
     appeals involve questions of fact and law, we employ a mixed
     standard of review. Commonwealth v. Pitts, 603 Pa. 1, 981
     A.2d 875, 878 (2009). We defer to the PCRA court’s factual
     findings and credibility determinations supported by the record.
     Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
     (en banc). In contrast, we review the PCRA court’s legal
     conclusions de novo. Id.

Id., 111 A.3d at 779.     Further, “[i]t is well-established that counsel is

presumed effective and a PCRA petitioner bears the burden of proving

ineffectiveness.” Id. at 779-80 (citations and brackets omitted).

     To prevail on an [ineffectiveness assistance of counsel] claim, a
     PCRA petitioner must plead and prove by a preponderance of the
     evidence that (1) the underlying legal claim has arguable merit;
     (2) counsel had no reasonable basis for acting or failing to act;
     and    (3)    the   petitioner   suffered   resulting    prejudice.
     Commonwealth v. Baumhammers, [625 Pa. 354], 92 A.3d
     708, 719 (2014) (citing [Commonwealth v. Pierce, 527 A.2d
     973, 975–76 (Pa. 1987)]). A petitioner must prove all three
     factors of the “Pierce test,” or the claim fails. Id. In addition,
     on appeal, a petitioner must adequately discuss all three factors
     of the “Pierce test,” or the appellate court will reject the claim.
     Commonwealth v. Fears, 624 Pa. 446, 86 A.3d 795, 804
     (2014).

Id. at 780.

     Appellant asserts that trial counsel was ineffective for failing to request

revocation of his bail on No. 1041-2015 so he would receive credit while

incarcerated on charges relating to his May 29, 2015 arrest. He contends

counsel had no reasonable basis for failing to request bail revocation, and

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argues he did not receive credit from May 29, 2015 to December 8, 2015 as

a result. Appellant’s Brief at 9. He suggests the PCRA court acknowledged

Appellant did not receive credit because his bail was not revoked. Id.

      In its opinion, the PCRA court conceded that Appellant’s claim had

arguable merit. “Where no credit was awarded at the time of the plea, it is

axiomatic that there is arguable merit to a claim that a defendant was misled

about how the defendant’s credit would flesh out.”        PCRA Court Opinion,

4/30/18, at 11. We agree. Therefore, we conclude Appellant satisfied the

first prong of the Pierce test.

      However, Appellant cannot satisfy the second prong, i.e., that counsel

had no reasonable basis for acting or failing to act.       As the PCRA court

explained, “A chosen strategy will not be found to have lacked a reasonable

basis unless it is proven ‘that an alternative not chosen offered a potential for

success substantially greater than the course actually pursued.’” Id. (quoting

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009)). The PCRA court

observed:

      As it was this court that presided over the plea and sentencing,
      we can assure the Appellant that this strategy[, i.e., asking for
      bail to be revoked retroactively,] would not have succeeded. To
      be blunt, the Appellant received a minimal sentence for a good
      amount of crime. Had [trial counsel] been aware of and pursued
      a strategy of retroactively revoking bail, we would have rejected
      it. We explained all of this at the September 26, 2017 hearing on
      the PCRA petition.

PCRA Court Opinion, 4/30/18, at 11 (citing Notes of Testimony, PCRA Hearing,

9/26/17, at 20) (some capitalization omitted).

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       Because Appellant has not satisfied the second prong of the Pierce test,

he cannot succeed on his PCRA claim. “A failure to satisfy any of the three

prongs of the Pierce test requires rejection of a claim of ineffective assistance

of trial counsel[.]”    Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa.

2011) (additional citations omitted).4

       Order affirmed.

       Judge Shogan joins the memorandum.

       Judge McLaughlin concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/14/2019




____________________________________________


4  The PCRA court briefly addressed the third prong of the Pierce test to
illustrate that Appellant failed to satisfy that prong as well, i.e., that counsel’s
actions resulted in prejudice to Appellant. The court considered whether
absent counsel’s error, “[W]ould the outcome have been any different? Again,
knowing how we would have ruled upon a request to engage in the fiction of
revoking credit retroactively, the answer is no.” PCRA Court Opinion, 4/30/18,
at 11-12. Moreover, as the PCRA court observed, there was nothing in the
record to suggest that Appellant did not enter his pleas unknowingly. Id. at
12.

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