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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

SAMUEL HENRY FUNK, JR.

                        Appellant                      No. 843 EDA 2016


              Appeal from the PCRA Order February 24, 2016
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0003668-2007



BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 21, 2016

     Samuel Henry Funk, Jr. appeals from the February 24, 2016 order

denying his PCRA petition. We affirm.

     The relevant factual and procedural history is as follows. Following a

dispute on February 10, 2007, Appellant beat and stabbed Jaqueline

Goulding in her apartment in Falls Township, Bucks County.        The victim –

who suffered injuries to her head and face, numerous defensive injuries, and

several puncture wounds – perished from the attack.          Appellant removed

items from the home and left the scene in the victim’s vehicle.      The next

day, an officer located the vehicle parked at the Edgley Inn. Appellant was

apprehended returning to the car shortly thereafter.



* Former Justice specially assigned to the Superior Court.
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        Upon   his   arrest,    Appellant      relayed   information   regarding   the

circumstances surrounding the victim’s death to Fall Township police officers.

As his initial interview with detectives commenced, Appellant offered further

inculpatory statements. The detectives informed Appellant of his Miranda1

rights.    He then signed a form acknowledging his understanding of those

rights and indicating his desire to speak with the detectives without a lawyer

present.    Appellant proceeded to offer the officers varying versions of the

events leading to the victim’s death.

        Based on the foregoing, Appellant was charged with murder in the first

degree, possession of an instrument of crime, two counts of theft by

unlawful taking, and two counts of receiving stolen property.             Following a

jury trial, Appellant was convicted on all counts.             The court imposed a

sentence of life imprisonment without parole for murder in the first degree,

and an aggregate sentence of sixteen and one-half to thirty-three years

incarceration to run consecutively.2

        Appellant filed a timely post-trial motion, alleging, inter alia, ineffective

assistance of counsel. A hearing was held on May 19, 2008, and, the motion

was subsequently denied by operation of law.                   The court thereafter
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1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
  During the hearing on Appellant’s post-trial motion, the court vacated the
sentence on one count of receiving stolen property, and resentenced him to
no further penalty.



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permitted Appellant to file an appeal from his judgment of sentence nunc pro

tunc. Appellant challenged certain evidentiary rulings by the trial court and,

again, contended he received ineffective assistance of counsel. This Court

affirmed Appellant’s judgment of sentence.    Commonwealth v. Funk, 29

A.3d 28 (Pa.Super. 2011) (en banc).         We also found that Appellant’s

ineffectiveness claims could not be considered on direct review, and

dismissed those claims without prejudice to be raised in a timely PCRA

petition.   Id. at 34-35.   On March 13, 2012, the Supreme Court denied

Appellant’s petition for allowance of appeal. Commonwealth v. Funk, 40

A.3d 1234 (Pa. 2012).

      Appellant filed a timely pro se PCRA petition.    The court appointed

counsel, and counsel filed a motion to amend Appellant’s PCRA petition

asserting he was denied effective assistance of counsel when trial counsel

prevented him from testifying at trial and by failing to move to suppress the

post-arrest statements made by Appellant.       A hearing was held on the

petition on May 29, 2014, in which the Commonwealth incorporated the

testimony presented during Appellant’s post-sentence hearing on May 19,

2008. By agreement with the court, Appellant filed a second amended PCRA

petition to clarify the arguments raised during the May 29, 2014 hearing,

and the court entertained memoranda from the parties.       The court denied

Appellant’s PCRA petition, and this timely appeal followed.         Appellant

complied with the court’s order to file a Rule 1925(b) concise statement of

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matters complained of on appeal. The court then authored its Rule 1925(a)

opinion. This matter is now ready for our review.

      Appellant presents two questions for our consideration:

      1. Did trial counsel provide ineffective assistance of counsel
         where trial counsel denied [Appellant] his right to testify and
         failed to prepare him to testify because she misapprehended
         the nature of the defense?

      2. Did [Appellant] receive ineffective assistance of counsel when
         counsel failed to move to suppress his statements following
         his arrest?

Appellant’s brief at 3.

      Our standard of review regarding an order denying a PCRA petition is

whether the determination of the PCRA court is supported by the evidence of

record and is free from legal error. Commonwealth v. Wah, 42 A.3d 335,

335 (Pa.Super. 2012).      The PCRA court’s findings will not be disturbed

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

Moreover, “a PCRA court’s credibility findings are to be accorded great

deference, and where supported by the record, such determinations are

binding on the reviewing court.”   Commonwealth v. Williams, 141 A.3d

440, 452 (Pa. 2016) (citation omitted).    We review the PCRA court’s legal

conclusions de novo. Id.

      As each of Appellant’s claimed errors allege he received ineffective

assistance of counsel, we conduct our analysis in light of the following

standards:



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       Success on a claim of ineffective assistance of counsel requires
       the petitioner to rebut the presumption that counsel rendered
       effective assistance and prove, by a preponderance of the
       evidence, that (1) the claim has arguable merit, (2) counsel’s
       action or inaction was not based upon a reasonable trial strategy
       and (3) petitioner suffered prejudice because of counsel’s act or
       omission.

Id. at 454.      Furthermore, “the failure to satisfy any one of the prongs

requires rejection of the petitioner’s claims.” Id.

       Appellant first asserts that trial counsel interfered with his right to

testify by convincing him not to testify prior to trial, and ignoring an attempt

to invoke that right during trial.3        In order to prevail on a claim alleging

counsel ineffectiveness for counsel’s interference with a defendant’s right to

testify, the defendant must prove either that “counsel interfered with his

right to testify, or that counsel gave specific advice so unreasonable as to

vitiate a knowing and intelligent decision to testify on his own behalf.”

Commonwealth v. Miller, 987 A.3d 638, 660 (Pa. 2009) (citation omitted).

       Appellant claims that counsel advised him prior to trial not to take the

stand since his testimony would “necessarily defeat his ‘self-defense’ claim.”

Appellant’s brief at 30. Appellant maintains that his testimony supported the

argument that the victim’s death was accidental, and that such testimony
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3
  Appellant did not present any argument in support of his contention that
counsel failed to properly prepare him to testify. Hence, we find this aspect
of his appeal waived. Commonwealth v. Bullock, 948 A.2d 818, 823
(Pa.Super. 2008) (finding claim raised in Rule 1925(b) statement but not
developed in appellate brief abandoned by appellant).



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would support a self-defense claim.      Id. at 31.    Hence, he concludes that

counsel’s advice was so unreasonable that it directly interfered with his right

to testify. In addition, Appellant contends that counsel ignored his attempt

to invoke his right to testify during trial. Appellant suggests that he penned

a note during trial which stated, “I still have the right to take the stand if I

wish to.” Appellant’s brief at 29. Appellant argues that counsel interfered

with his right to testify by ignoring the note.

       The PCRA court credited testimony by counsel and co-counsel, and did

not credit Appellant’s contrary assertions.        The court noted that counsel

advised Appellant regarding both self-defense and heat-of-passion defenses.

She testified that she had prepared opening statements arguing both

theories and did not settle on presenting her heat-of-passion defense until

Appellant agreed to that theory. Counsel further advised Appellant that his

self-defense testimony would be inconsistent with a heat-of-passion defense,

and thus, warned him against testifying.          Indeed, Appellant concedes he

agreed not to testify prior to trial. Appellant’s brief at 29. The trial court

also   credited counsel’s testimony that, although she          did   not recall

Appellant’s handwritten note, if he had insisted on testifying, she would have

called him to the stand. Based on this evidence, the court found Appellant’s

claim was without merit as the evidence supported the conclusion that

Appellant agreed to pursue a heat-of-passion defense and that he would not

testify.

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      We must accept the PCRA court’s credibility determinations when they

are supported by the record. Counsel advised Appellant as to the dangers of

his self-defense theory given the nature of the evidence against him.          In

addition,   counsel     reported   that    Appellant   performed   poorly   during

preparation for testifying at trial, providing inconsistent statements and

failing to project sympathy for the victim. Hence, counsel concluded that a

heat-of-passion defense was the best trial strategy. Prior to trial, Appellant

agreed to pursue a heat-of-passion defense and declined to testify.

      Furthermore, Appellant’s note to counsel during trial does not invoke

his right to testify.    Rather, his statement “I still have a right to take the

stand if I wish to” suggests either that he wanted to confirm he had a right

to testify at some point in the future, or that he was aware he had a right to

testify, but had not yet decided to do so. In either case, Appellant’s note

does not reflect a clear assertion of his right to testify. Thus, counsel did not

interfere with Appellant’s right to testify, nor did she provide unreasonable

advice in regards to his decision not to testify.         Miller, supra.    Since

Appellant has not presented an issue of arguable merit, nor has he shown

that counsel’s course of conduct was without a reasonable trial strategy, his

challenge fails.

      Appellant next assails counsel’s effectiveness in failing to move to

suppress inculpatory statements made to police following his arrest.           He

alleges that he twice requested an attorney, once prior to the police

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providing him with his Miranda rights, and once afterwards. Nevertheless,

Appellant offered incriminating statements to the police, and responded to

questions regarding the victim’s murder.    Additionally, Appellant contends

that, although he signed a form waiving his right to an attorney, that he did

not have the opportunity to fully review or understand the document.

      The PCRA court credited counsel and co-counsel’s testimony in this

regard and found Appellant’s testimony to the contrary wholly incredible.

Counsel and co-counsel testified that they were unaware of Appellant’s

purported request for an attorney until the hearing on his post-sentence

motion in May, 2008. Nevertheless, both lawyers confirmed that they would

have raised the issue had Appellant informed them of his attempts to invoke

his right to counsel. The court also reviewed the testimony of the detectives

who interrogated Appellant and noted that each stated that Appellant never

requested an attorney.      It observed that the Miranda card, wherein

Appellant waived his right to an attorney, corroborated their account.

      Finally, we observe the following. Appellant filed a pre-trial omnibus

motion which included a motion to suppress the statements he made to the

detectives. In that motion, Appellant alleged that his waiver of his Miranda

rights was not knowing, intelligent, and voluntary due to injuries suffered at

that time, and his level of intoxication. Pretrial Omnibus Motion, 8/13/07, at

¶¶ 19-30. That motion did not assert his alleged request for counsel as a

basis for suppression.   Appellant then filed two amended omnibus pretrial

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motions on October 5, 2007, and December 14, 2007.            Again, Appellant

sought suppression of his statements to police without raising a violation of

his right to counsel.     Appellant’s counsel and co-counsel credibly testified

that if they had been aware of any issue pertaining to Appellant’s purported

invocation of his right to counsel, they would have included it in their

motions to suppress. Nevertheless, no such claim was made. The record

thus supports the PCRA court’s factual finding that Appellant did not ask for

a lawyer. Hence, we find this issue without arguable merit and Appellant is

not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2016




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