J-S05027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
            v.                            :
                                          :
MICHAEL KENNETH EDGAR,                    :
                                          :
                        Appellant         :     No. 1053 WDA 2014


            Appeal from the PCRA Order Entered June 11, 2014,
              In the Court of Common Pleas of Indiana County,
             Criminal Division, at No. CP-32-CR-0001265-2011.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 18, 2015

      Michael Kenneth Edgar (“Appellant”) appeals from the order entered

on June 11, 2014, that denied his petition for relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      According to the PCRA court’s summary in its opinion to this Court:

      [Appellant’s] conviction stems from events occurring on July 16,
      2011, that led to accusations of sexual assault by his teenage
      daughter.[1]   On April 3, 2012, he entered a plea of nolo
      contendere to Corruption of Minors and on June 13, 2012, was
      sentenced to incarceration of not less than one (1) year less one
      (1) day nor more than two (2) years less one (1) day with credit
      for time served. He was also ordered to pay the costs of
      prosecution of $410.25 and a fine of $500.00. Following his


1
    The Commonwealth offered the following factual basis: “On July 16,
2011, at approximately 2100 hours in Indiana Borough at specifically 477
Oak Street, [Appellant] . . . had taken his daughter’s foot and was rubbing
his penis with his daughter’s foot. At that time his daughter then woke up
and then left the couch area.” N.T. (Plea), 4/3/12, at 5.
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     release from the Indiana County Jail on January 23, 2013, he
     was placed on probation for three (3) years and ordered to have
     no contact with the victim or her mother. [Appellant] was
     represented at trial by court-appointed counsel . . . and now
     alleges that he was provided with ineffective assistance of
     counsel.

PCRA Court Opinion, 6/11/14, at 1.

     After serving his term of incarceration and while on probation,

Appellant filed a pro se PCRA petition on June 13, 2013, asserting his

innocence and claiming that trial counsel induced him to plead nolo

contendere.     The PCRA court appointed counsel, who moved for a private

investigator on September 23, 2013, and filed an amended PCRA petition on

January 15, 2014. The PCRA court conducted a hearing on May 28, 2014,

and denied Appellant’s petition on June 11, 2014.        This appeal followed.

Appellant and the trial court complied with Pa.R.A.P. 1925.

     Appellant presents the following questions for our consideration:

     I.       Whether the PCCRA [sic] [court] abused its discretion
              when it made a finding that defense counsel did not induce
              [Appellant] to plead nolo contendere, even though the
              evidence   showed    that    defense   counsel   informed
              [Appellant] that he would likely receive credit for time
              served and be released.

     II.      Whether the PCCRA [sic] court abused its discretion when
              it made [a] finding that defense counsel was effective
              counsel, even though defense counsel failed to subpoena
              two material witnesses at trial who observed [Appellant]
              and his daughter in good spirits after the alleged criminal
              incident.




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      III.    Whether the PCCRA [sic] court abused its discretion when
              it made a finding that defense counsel was effective
              counsel, even though defense counsel could have
              presented prescription medication evidence at trial that
              caused [Appellant’s] impotency, rendering the statements
              of the minor child (victim) that [Appellant] had an erection
              to be baseless, showing [Appellant] is innocent.

      IV.     Whether the PCCRA [sic] court abused its discretion when
              it made a finding that defense counsel was effective
              counsel, even though [Appellant] was not made aware by
              defense counsel that his nolo contendre [sic] plea would
              result in a “no contact” order with his daughter.

Appellant’s Brief at 4 (full capitalization omitted).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).           The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      When considering an allegation of ineffective assistance of counsel,

counsel is presumed to have provided effective representation unless the

PCRA petitioner pleads and proves that:           (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her conduct;

and   (3)    Appellant   was   prejudiced    by   counsel’s   action   or   omission.




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Commonwealth v. Pierce, 527 A.2d 973, 975-976 (Pa. 1987). “In order

to meet the prejudice prong of the ineffectiveness standard, a defendant

must show that there is a ‘reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

A claim of ineffective assistance of counsel will fail if the petitioner does not

meet any of the three prongs.       Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004).      “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

            It is clear that a criminal defendant’s right to effective
      counsel extends to the plea process, as well as during trial.
      However, [a]llegations of ineffectiveness in connection with the
      entry of a guilty plea will serve as a basis for relief only if the
      ineffectiveness caused the defendant to enter an involuntary or
      unknowing plea. Where the defendant enters his plea on the
      advice of counsel, the voluntariness of the plea depends on
      whether counsel’s advice was within the range of competence
      demanded of attorneys in criminal cases.

Commonwealth v. Willis, 68 A.3d 997, 1001–1002 (Pa. Super. 2013)

(quoting Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)).

“[T]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

made.”    Id. at 1002 (quoting Commonwealth v. Anderson, 995 A.2d

1184, 1192 (Pa. Super. 2010)).




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      Appellant first avers that trial counsel was ineffective at trial for

inducing Appellant to plead nolo contendere with a statement that Appellant

could be released from custody for time served. Appellant’s Brief at 21–22.

In response, the Commonwealth asserts that Appellant has failed to

“acknowledge     or    address   the   necessary    three-prong    showing      for

ineffectiveness.”     Commonwealths’ Brief at 10.         We acknowledge the

Commonwealth’s complaint; however, given the fact that the structural

deficiency of Appellant’s argument does not hamper our review, we choose

to address the first issue in the interest of judicial economy.           Accord

Commonwealth v. Long, 532 A.2d 853 (Pa. Super. 1987) (considering

merits of appellant’s claims despite briefing deficiencies in interest of judicial

economy).

      In its opinion to this Court, the PCRA court opined that trial counsel:

      fully explained to [Appellant] what a nolo contendere plea
      entailed and while he informed [Appellant] that there was a
      possibility of his release at sentencing, he did not promise that
      this would be the outcome. The [PCRA c]ourt [found trial
      counsel’s] testimony credible as to the information he relayed to
      [Appellant] about his possible sentence.              Additionally,
      [Appellant] signed a plea colloquy listing the maximum sentence
      on April 3, 2012, that states[:] “I am aware of the permissible
      range of sentences and/or fines for the offenses(s) [sic] with
      which I am charged.” At the plea hearing on the same day the
      [PCRA c]ourt explained the meaning and consequences of the
      nolo contendere plea including the possible range of the
      sentence to [Appellant] and he indicated that he understood.
      The [PCRA c]ourt also informed him of his right to the alternative
      of going to trial and [Appellant] again indicated that he
      understood. The Court then specifically asked [Appellant] if


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      [trial counsel] had discussed these consequences and
      alternatives with him and [Appellant] indicated that he had.

            At all times through the plea hearing, [Appellant] indicated
      that he understood the consequences of his plea and that his
      decision was voluntary.        Accepting Counsel’s testimony as
      credible, the [PCRA c]ourt [did] not find any indication that he
      was ineffective in explaining the consequences of the plea to
      [Appellant]. [Defense counsel] explained the possible scenarios
      that could result from [Appellant’s] charges including
      incarceration in a state penitentiary for a felony conviction as
      well as his possible release at sentencing. As defense counsel
      for [Appellant], [trial counsel] had a responsibility to explain
      these possibilities in order to fully inform his client.

PCRA Court Opinion, 6/11/14, at 5–6.

      Our review of the record reveals support for the PCRA court’s findings

and conclusion.   Trial counsel testified that he did not induce Appellant’s

decision to plead nolo contendere. N.T. (PCRA), 5/28/14, at 64–65. On the

contrary, trial counsel continued:

      I did and in absolute certain terms explained to [Appellant] what
      nolo meant including the sentencing options were the same as if
      it was [sic] a guilty plea. . . . I am certain, a hundred percent
      certain I told him he would get credit for time served . . . . As
      far as he asked me probably 20 or 50 times whether he would
      be getting out on that day and each time I told him I cannot tell
      you that. It is a possibility and I told him it is a possibility but
      there is no way I can tell him that because there is no sentence
      bargain and sentencing is up to the sentencing judge and
      without knowing what is in the judge’s mind I cannot tell him
      that he will be getting out.

Id. 65–66; see also id. at 77–78 (“I am sure I would have told him that it

is possible that the Judge would find time served sufficient but I told him

that there was no way I could predict it.”). Notably, when asked on cross-


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examination if trial counsel promised or guaranteed Appellant that he was

getting out of jail, Appellant admitted: “No guarantees . . . the mind set at

the time was that I just wanted out of jail.” Id. at 55. Additionally, at the

plea hearing Appellant informed the trial court that he was entering the plea

“just to avoid the trauma of [his daughter] having to come in here.” N.T.

(Plea), 4/3/12, at 24. Moreover, the trial court conducted a plea colloquy on

the record, Appellant completed a written plea colloquy, and Appellant

stated in open court that he understood the nature of the plea, the

consequences of the plea, the alternative of a trial, and that his plea was

knowing and voluntary. Id. at 3–9, 11–24; Colloquy for Plea of Guilty/Nolo

Contendere, 4/3/12.

     Based on the foregoing evidence of record, we conclude that

Appellant’s underlying claim that trial counsel induced his nolo contendere

plea lacks merit.   As the PCRA court observed, “[Trial counsel] cannot be

considered ineffective because of how [Appellant] used [the sentencing]

information in deciding to enter a plea.” PCRA Court Opinion, 6/11/14, at 6.

Thus, the PCRA court did not err in denying Appellant relief on this

challenge.

     Next, Appellant argues that trial counsel was ineffective because he

failed to question “two material witnesses who would have testified that

Appellant and the victim were in good spirits after the alleged sexual




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assault.”   Appellant’s Brief at 23.   In response, the Commonwealth posits

that trial counsel “had a reasonable basis for not investigating them.”

Commonwealth’s Brief at 13.

        We reiterate the axiomatic principle that, “upon entry of a guilty plea,

a defendant waives all claims and defenses other than those sounding in the

jurisdiction of the court, the validity of the plea, and what has been termed

the ‘legality’ of the sentence imposed.” Commonwealth v. Eisenberg, 98

A.3d 1268, 1275 (Pa. 2014).         We liberally interpret Appellant’s second

challenge as suggesting that his plea was involuntary and, therefore, invalid,

because trial counsel suggested the plea without properly investigating

potential defense witnesses.

        “With regard to an attorney’s duty to investigate, the Supreme Court

has noted that the reasonableness of a particular investigation depends upon

evidence known to counsel, as well as evidence that would cause a

reasonable attorney to conduct a further investigation.” Willis, 68 A.3d at

1002.     Furthermore, to satisfy the Pierce test when raising a claim of

ineffectiveness for the failure to call a potential witness:

        our Supreme Court has instructed that the PCRA petitioner must
        establish that: (1) the witness existed; (2) the witness was
        available to testify for the defense; (3) counsel knew, or should
        have known, of the existence of the witness; (4) the witness was
        willing to testify for the defense; and (5) the absence of the
        testimony of the witness was so prejudicial as to have denied the
        defendant a fair trial.




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Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citing

Commonwealth v. Sneed, 45 A.3d 1096, 1108–1109 (Pa. 2012)).

      Upon review, we note the evidence of record suggests that the two

witnesses existed, that they were available to testify, that counsel knew or

should have known of their existence, and that they were willing to testify

for Appellant. At the PCRA hearing, defense counsel and the Commonwealth

stipulated that the two witnesses, Gregory Buggs and Don Straughtman,

observed Appellant and his daughter several days after the alleged incident

and that neither of them saw any concern, fear, or animosity between

Appellant and his daughter.    After entry of the stipulation, the witnesses

were dismissed.   N.T. (PCRA), 5/28/14, at 5–6. Additionally, trial counsel

acknowledged that, although he did not recall Appellant mentioning the

names of the two men, he did recall Appellant saying that Appellant and his

daughter had been seen together amicably after the incident. Id. at 61, 69–

70.

      Nevertheless, the PCRA court concluded that trial counsel had a

reasonable basis for not investigating the two witnesses:

      [Trial counsel] testified that [Appellant] might have mentioned
      these individuals and he would have looked into them had the
      decision been made to proceed to trial. [Trial counsel] testified
      that he did contact someone at the Indiana Playhouse where
      [Appellant] and his daughter were preparing for a play. The
      response he received was not one that he believed would be
      favorable to [Appellant] so he did not continue to pursue that
      angle of the investigation. [Trial counsel] additionally testified


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      that he investigated other claims [Appellant] made about his
      whereabouts and activities he engaged in on various occasions
      and found several inconsistencies in his statements.

                                    * * *

      The [PCRA c]ourt [found] that [trial counsel’s] investigation was
      reasonable and as a result, he cannot be deemed ineffective.

             [Trial counsel] testified that he met with [Appellant] at the
      Indiana County Jail on more than one occasion and at the last
      meeting [Appellant] indicated that he wished to proceed with the
      trial.   As [trial counsel] was leaving the room, [Appellant]
      summoned him back in and said he had changed his mind and
      wanted to enter a nolo contendere plea. At this point, [trial
      counsel] testified that he would have had ample time to prepare
      for a trial should [Appellant] have chosen that route, but
      because he decided to take the plea instead there was no reason
      to continue trial preparation. Here, the [PCRA c]ourt finds [trial
      counsel’s] actions reasonable in not continuing to prepare a
      defense . . . .

PCRA Court Opinion, 6/11/14, at 4–5.

      The record supports the PCRA court’s findings with regard to trial

counsel’s testimony.   N.T. (PCRA), 5/28/14, at 61, 69–70.       Moreover, we

defer to the PCRA court’s credibility determinations, which favored trial

counsel’s version of preparing a defense. PCRA Court Opinion, 6/11/14, at

5. In doing so, we discern no error in the PCRA court’s conclusion that trial

counsel had a reasonable basis for not investigating the two witnesses,

namely, Appellant’s decision not to go to trial.       Thus, Appellant is not

entitled to relief.




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      Appellant’s third issue challenges trial counsel’s failure to investigate a

side effect of one of the prescriptions Appellant was taking at the time of the

incident. Appellant’s Brief at 26. According to Appellant, the Interferon he

was taking caused erectile dysfunction; therefore, his daughter could not

have “felt [his] erect penis while she was sleeping.” Id. at 26, 29. Rather,

Appellant claims, he had a lighter and a cell phone in his jeans pocket, which

is what his daughter felt. N.T. (PCRA), 5/28/14, at 25.

      We   repeat: “[T]he    reasonableness of a particular        investigation

depends upon evidence known to counsel, as well as evidence that would

cause a reasonable attorney to conduct a further investigation.” Willis, 68

A.3d at 1002.    Here, the PCRA court recounted trial counsel’s testimony

“that he did check the Physician’s Desk Reference to verify the claim of

impotence as a side effect.”      PCRA Court Opinion, 6/11/14, at 4; N.T.

(PCRA), 5/28/14, at 62. Trial counsel further explained as follows:

      I didn’t go further into that. I mean, in this particular case had
      we gone to trial I would definitely assume he would have wanted
      to testify and knowing what I know I probably would have
      advised him to. It would have been a claim that he could make
      and there would be no way to refute that.

N.T. (PCRA), 5/28/14, at 62–63, 75–76. Based on trial counsel’s testimony,

the PCRA court concluded that trial counsel did investigate Appellant’s

medicine-based claim and that trial counsel had a reasonable basis for not

pursuing the investigation, namely, entry of the nolo contendere plea. PCRA




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Court Opinion, 6/11/14, at 4. Our review of the record confirms the PCRA

court’s findings, and we discern no error in the PCRA court’s conclusion.

Thus, Appellant’s third claim fails.

      Appellant’s final complaint is that trial counsel failed to inform him that

entering a nolo contendere plea would result in the continuation of a “no

contact” order previously imposed as a condition of bail. Appellant’s Brief at

26. The Commonwealth counters that Appellant “fails to address the Pierce

ineffectiveness analysis” in his brief and that “[t]he ‘no contact’ order was a

collateral matter, and, therefore, irrelevant in determining whether defense

counsel provided ineffective assistance of counsel[.]” Commonwealth’s Brief

at 14, 15. Again, despite the structural deficiency of Appellant’s argument,

we shall address his final ineffectiveness claim, noting that the PCRA did not

address this contention in its opinion to this Court.

      The Commonwealth argues against relief on this issue as follows:

            The “no contact” order was a collateral matter, and,
      therefore, irrelevant in determining whether defense counsel
      provided ineffective assistance of counsel because when
      [Appellant] posted bail he was ordered to not have any contact
      with the victim and that order was still in effect when [Appellant]
      entered the plea.

Commonwealth’s Brief at 15 (citing N.T. (PCRA), 5/28/14, at 77).

      Upon review, we discern no basis in the record for granting the relief

Appellant requests.     Despite trial counsel’s recollection that he did not

discuss the no-contact order with Appellant, Appellant has not established


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that trial counsel’s representation was outside the range of competence

demanded of attorneys in criminal cases.      Willis, 68 A.3d at 1002.   Trial

counsel’s negotiations with the prosecutor resulted in a nolle prosequi of

more serious charges and the case not being designated a Megan’s Law

case. N.T. (Plea), 4/3/12, at 2–3, 11, 21; N.T. (PCRA), 5/28/14, at 65, 76–

77.   Trial counsel investigated Appellant’s claims about witnesses and the

effect of his medication. N.T. (PCRA), 5/28/14, at 60–63. The PCRA court

deemed credible trial counsel’s testimony that he informed Appellant of

possible sentencing results but could not tell Appellant what his sentence

would include because “there is no sentence bargain and sentencing is up to

the sentencing judge.” N.T. (PCRA), 5/28/14, at 66; PCRA Court Opinion,

6/11/14, at 5. We will not disturb that credibility determination. Moreover,

although the no-contact order was still in effect when Appellant entered his

plea, Appellant repeated several times at the plea hearing that he

understood the nature of a nolo contendere plea, that he and counsel

discussed consequences of the plea, and that he did not have any questions.

N.T. (Plea), 4/3/12, at 65–66, 77–78. Based on the foregoing, we conclude

Appellant is not entitled to relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2015




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