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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SPENCER SPIKER

                         Appellant                   No. 242 WDA 2013


                Appeal from the PCRA Order January 3, 2013
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0012509-2008


BEFORE: PANELLA, J., DONOHUE, J., and ALLEN, J.

MEMORANDUM BY PANELLA, J.:                          FILED AUGUST 5, 2014

      Appellant, Spencer Spiker, appeals from the order dismissing his

petition pursuant to the Post Conviction Relief Act (“PCRA”), entered by the

Honorable Edward J. Borkowski, Court of Common Pleas of Allegheny

County. After careful review, we affirm.

      On May 27, 2009, Spiker pled guilty to indecent assault and

endangering the welfare of a child. The basis of the guilty pleas, as set forth

by the Commonwealth during the guilty plea hearing, was as follows:

      If this case would have proceeded to trial, the primary witnesses
      would have been the defendant’s wife and biological daughter.
      It would have been the testimony of his wife, Elizabeth Spiker,
      on the 20th of June, 2008, the defendant came home from being
      at some sort of function. She heard him come into the house.
      Some time later she woke up and found him in the bed of their
      fiver-year old daughter. When she pulled back the covers, she
      discovered there was KY Gel on the night stand table and the
      defendant was naked from the waist down. His daughter’s
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      pajama bottoms that she had been put to bed in were removed.
      The daughter looked up at her mother and said, “Get him out of
      here, he is bothering me.” She took the daughter to another
      room and asked her did daddy hurt you, and eventually came to
      find that the defendant had moved her underwear to the side
      and rubbed his penis against her vagina and anus.

      The defendant was questioned by the police and made a
      statement to the police that he was intoxicated and remembered
      rubbing his penis against his daughter’s anus.

N.T., Guilty Plea Hearing, 5/27/09, at 7-8.       Spiker did not object to or

amend this factual predicate in any manner before admitting his guilt to the

two charges. See id., at 8. Immediately thereafter, the trial court imposed

the negotiated sentence of five years’ probation. No post-sentence motions

were filed, and Spiker did not file a direct appeal.

      On May 25, 2010, Spiker filed a pro se PCRA petition. The PCRA court

appointed counsel to Spiker, and counsel filed an amended PCRA petition.

After a hearing on the amended petition, the PCRA court entered an order on

January 3, 2013, dismissing Spiker’s amended PCRA petition.       This timely

appeal followed.

      On appeal, Spiker raises the following issues for our review:

      I.    Whether the PCRA court erroneously dismissed Appellant’s
            claim that trial counsel was ineffective, 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.
      II.   Whether the PCRA court erroneously dismissed Appellant’s
            claim that there was a violation of the Constitution of this
            Commonwealth or the Constitution of the United States,
            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.

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      III.   Whether the PCRA court erroneously dismissed Appellant’s
             claim that Appellant’s plea of guilty was unlawfully induced
             where the circumstances made it unlikely that the
             inducement caused the Appellant to plead guilty and the
             Appellant is innocent.

Appellant’s Brief, at 5.    However, a review of the argument section of

Spiker’s brief reveals that all of his arguments are premised upon the claim

that trial counsel’s ineffectiveness caused Spiker’s guilty plea to be

unknowing and involuntary. See Appellant’s Brief, at 15 (“As a result of trial

counsel’s ineffectiveness, Appellant did not enter into a knowing, intelligent,

and voluntary plea); 16 (“As such, the above-mentioned ineffectiveness of

trial counsel violated Appellant’s right afforded to him by the Sixth

Amendment of the United State Constitution.”); (“It is clear that trial

counsel’s ineffectiveness induced the Appellant to plead guilty in the present

matter, as Appellant would never had pled guilty to the present case had he

been counseled effectively.”)    Therefore, we will address all three issues

under one analysis.

      Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well-settled.   We must examine whether the record

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

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed

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

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).                Our


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scope of review is limited by the parameters of the PCRA.                        See

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).

      To be eligible for relief under the PCRA, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted   from   one     of   the   errors   listed   in   42   PA.CONS.STAT.ANN.   §

9543(a)(2)(i)-(viii).     Commonwealth v. Albrecht, 554 Pa. 31, 41, 720

A.2d 693, 698 (1998). Section 9543(a)(2) requires, inter alia,

           (2) That the conviction or sentence resulted from one or
           more of the following:

           (i) A violation of the Constitution of this Commonwealth
           or the Constitution or laws of the United States 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.

           (ii) 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.

           (iii) A plea of guilty unlawfully induced where the
           circumstances make it likely that the inducement caused
           the petitioner to plead guilty and the petitioner is
           innocent.

           (iv) The improper obstruction by government officials of
           the petitioner's right of appeal where a meritorious
           appealable issue existed and was properly preserved in
           the trial court.

           (v) Deleted.

           (vi) The unavailability at the time of trial of exculpatory
           evidence that has subsequently become available and
           would have changed the outcome of the trial if it had
           been introduced.



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          (vii) The imposition of a sentence greater than the lawful
          maximum.

          (viii) A proceeding in a tribunal without jurisdiction.

42 PA.CONS.STAT.ANN. § 9543(a)(2)(i)-(viii).

      Spiker argues that trial counsel was ineffective in advising him to

accept the negotiated plea agreement.          In addressing Spiker’s claim of

counsel’s ineffectiveness, we turn to the following principles of law:

      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.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).

Moreover, “[w]e presume counsel is effective and place upon Appellant the

burden of proving otherwise.”       Commonwealth v. Springer, 961 A.2d

1262, 1267-1268 (Pa. Super. 2008).          “This Court will grant relief only if

Appellant satisfies each of the three prongs necessary to prove counsel

ineffective.”   Commonwealth v. Natividad, 595 Pa. 188, 208, 938 A.2d

310, 322 (2007).      Thus, we may deny any ineffectiveness claim if “the

evidence fails to meet a single one of these prongs.” Id., 595 Pa. at 207-

208, 938 A.2d at 321.




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        A claim of ineffectiveness in the context of a guilty plea may provide

relief only if the alleged ineffectiveness caused an involuntary or unknowing

plea.    See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa. Super.

1999) (citation omitted). “[A] defendant is bound by the statements which

he makes during his plea colloquy.” Commonwealth v. Barnes, 687 A.2d

1163, 1167 (Pa. 1997) (citations omitted). As a result, a defendant “may

not assert grounds for withdrawing the plea that contradict statements made

when he pled guilty.” Id.; Commonwealth v. Yeomans, 24 A.3d 1044

(Pa. Super. 2011).

        Spiker’s assertion of trial counsel ineffectiveness has varied bases.

First, he claims that trial counsel was ineffective for “ignor[ing] evidence

provided to him that established a viable defense in this matter.”

Appellant’s Brief, at 11.      This evidence was allegedly provided to trial

counsel in the form of letters dated approximately one year before the guilty

plea was entered.

        These letters called into question the credibility and possible bias
        of   witnesses,     specifically,  Appellant’s    wife   and     the
        Commonwealth’s primary witness, []. Additionally, these letters
        provided information regarding Appellant’s military background
        and issues with alcohol, which would have aided counsel in
        attempting to establish a defense to the charges.

Appellant’s Brief, at 12.         One letter additionally set forth Spiker’s

participation in therapy and rehabilitation programs.

        However, at the PCRA hearing, trial counsel provided the following

testimony:

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     We talked about a lot of his background information and I’m
     sure that that [Spiker’s sweating and tremors due to PTSD] was
     part of the conversation, …, sure.

     …

     Honestly, we talked a lot about his military background. I don’t
     remember      that     [Spiker’s   military  training   regarding
     interrogation] specifically. Could he have? Absolutely.

     …

     We didn’t hire a psychologist during that time. What we had
     talked about, what Spencer and I talked about is – I said, look,
     Spencer, my reputation for trying cases is always the same. I
     work for my clients. If a client says to me rumble, I go to trial.
     I’m proud of the fact that I try cases – in fact, just finished a
     case last week. Never do I make a decision for a client as to
     what they want to do. My job was to evaluate this case. And
     what Spencer and I talked about throughout this case is this is a
     very solid case, very strong case with very bad facts, and with
     the judge that I’ve known for many years and known him
     obviously well before he was judge, known him when he was a
     district attorney, known as a homicide district attorney, one
     thing I know about Judge Borkowski in a case like this on a – let
     me be straight up. Judge Borkowski on a case that is not
     amazing that is not terribly serious is fair. And let me, before I
     finish, I want to make a statement, I’ve been doing this too long
     to try to curry favor with anybody, any judge, any lawyer, I’m
     not that way. But Judge Borkowski on minor cases can be a
     very, very fair judge, but on something serious on a sex case
     with these facts, very dangerous. He’s not afraid to bang
     somebody and give a lot of time on a serious case. He’s not –
     maybe he doesn’t have the same reputation that Judge Donna Jo
     McDaniel has in the courthouse, but I know this Judge on serious
     stuff. He’s not afraid to put the hammer down. And that was
     one of the things I looked at in evaluating this man and what I
     think that man should have done in this case. And did I tell him
     that? You bet I did.

     …

     Absolutely. Absolutely [I would have taken the case to trial if
     Spiker had requested it]. And I would have joined with him and

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      rumbled and fought as hard as I could like I have done on every
      case in the years I’ve been a lawyer. …

      …

      If Mr. Spiker had said, [counsel], I want to pick a jury, I want to
      pick 12, I want to go to trial, it’s my belief that without a
      negotiated plea agreement on these facts of this case, I believe
      that Spencer Spiker would have received a state sentence in
      prison, absolutely if he had been convicted.

N.T., PCRA hearing, 12/19/11, at 21-24.          The PCRA court found trial

counsel’s testimony credible on these issues.

      Furthermore, we conclude that the timing of these letters was such

that if Spiker felt their contents were important, he would have discussed

them with trial counsel during the months leading up to the guilty plea. The

first two letters were dated in July 2008.      These letters set forth various

allegations about Spiker’s wife, Spiker’s military training, and his sleep

issues.   The last of the letters at issue was dated March 16, 2009.        This

letter consisted almost exclusively of a list of rehabilitation and therapy

programs attended by Spiker.      Spiker entered his guilty plea on May 27,

2009. At all relevant times, Spiker was free on bail. Spiker and trial counsel

spoke regularly, throughout the pendency of the case.       See id., at 6.     It

seems unlikely, given the nature of the letters and frequent contact between

the parties, that the issues in the letters went unaddressed before the guilty

plea. Therefore, we conclude that the PCRA court’s findings are supported

by the record, and its conclusions do not constitute an abuse of discretion.




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      Spiker also contends that trial counsel was ineffective for failing to hire

a psychologist prior to the guilty plea.    Spiker hired a psychologist on his

own prior to trial. However, trial counsel reviewed the psychologist’s report

and concluded that it did not present any defenses to the charged conduct:

      I’m going to call your attention to the sixth paragraph from the
      bottom that is the last of the three page paragraphs: Mr. Spiker
      has not failed to accept responsibility for his own actions. He,
      for example, does not refute his daughter’s allegations. …
      Although he reports to have had a blackout during and following
      the commission of his alleged offense, he accepts culpability for
      his behavior. Yes, I reviewed that.

See id., at 29. The PCRA court found trial counsel’s testimony to credible

and concluded that trial counsel’s strategy was reasonable on this issue. We

conclude that the trial court’s findings of fact have a basis in the record, and

that its conclusions do not constitute an abuse of discretion.

      As we conclude that none of Spiker’s issues on appeal merit relief, we

affirm the PCRA court’s order.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014




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