J. S23006/14

NON-PRECEDENTIAL DECISION                 SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA      :                 IN THE SUPERIOR COURT OF
                                  :                       PENNSYLVANIA
               v.                 :
                                  :
DERRICK CROSS A/K/A JARED AUSTIN, :                    No. 3280 EDA 2012
                                  :
                   Appellant      :


                Appeal from the PCRA Order, November 5, 2012,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0306931-2004


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 08, 2014

        Derrick   Cross   a/k/a   Jared   Austin1   appeals   from   the   order   of

November 5, 2012, dismissing his PCRA2 petition. We affirm.

        On October 4, 2006, appellant pled guilty to third degree murder, a



instrument o



approximately five times by appellant, including in the back, buttocks, and

genitals. Appellant was sentenced to 20 t




1

real name is Derrick Cross. (Notes of testimony, 10/26/04 at 19.)
2
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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degree murder, and consecutive sentences of 2½ to 5 years for VUFA and

PIC, for an aggregate sentence of 25 to 50 years.

      A post-sentence motion to withdraw his guilty plea was denied;

however, the trial court did modi

by reducing his minimum sentences on the charges of VUFA and PIC to one

year. On October 4, 2006, appellant was granted limited PCRA relief, and

was permitted to file a nunc pro tunc appeal from the judgment of

sentence. In an unpublished memorandum filed September 10, 2007, this

court affirmed judgment of sentence, and on May 20, 2008, our supreme

court denied allowance of appeal.     Commonwealth v. Austin, 938 A.2d

1107 (Pa.Super. 2007) (unpublished memorandum), appeal denied, 953

A.2d 539 (Pa. 2008).

      On July 30, 2008, appellant filed a timely pro se PCRA petition,

alleging that trial counsel, Jay Gottlieb, Esq., was ineffective for failing to

investigate a self-defense claim; for advising appellant that he could receive

the death penalty if he went to trial; and for waiving his right to a

pre-sentence investigation. Barbara A. McDermott, Esq., was appointed to

represent appellant, and filed a Turner/Finley      -

to withdraw.3     Subsequently, Attorney McDermott was elected to the

Philadelphia   County   Court   of   Common   Pleas,    and   current   counsel,



3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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Robert M. Gamburg, Esq., entered his appearance.4        On August 27, 2012,

Attorney Gamburg      filed    a   petition   to     withdraw,      incorporating

Attorney McDermott             -merit letter. On October 1, 2012, the PCRA

court issued notice pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its



proceedings. The PCRA court indicated that it acc

Turner/Finley no-merit letter and found that the                claims raised in



not specifically resolve the petition to withdraw.       (Docket #D23.)       On

November 5, 2012, ap

     On     December      4,   2012,    appellant,    still     represented   by

Attorney Gamburg, filed a timely notice of appeal.            On June 11, 2013,

appellant was ordered to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., by July 2, 2013,

and appellant timely complied. The PCRA court filed a Rule 1925(a) opinion

on October 2, 2013.




4
  There appears to be some confusion as to whether Attorney Gamburg was
court-appointed or privately retained. The PCRA court opinion indicates that
Attorney Gamburg was retained; however, the November 5, 2012 order

                       pro se basis or with retained counsel.         In Forma
Pauperis
at 2.) In his petition for leave to withdraw filed with this court and in his
brief on appeal, Attorney Gamburg states that he was retained. There is a
docket


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       On November 19, 2013, Attorney Gamburg filed a petition to withdraw
                                                       5
as counsel and accompan             Anders                 On January 16, 2014,

appellant filed a pro se                                        Anders brief and

petition to withdraw, essentially alleging ineffectiveness of PCRA counsel for

failing to conduct a thorough, diligent review of the record, and instead

                                     -merit letter.6

       Initially, we recite our standard of review:



5
   Attorney Gamburg has filed an Anders brief rather than a Turner/Finley
no-merit letter. Anders v. California, 386 U.S. 738 (1967). On an appeal
from the denial of a PCRA petition, a Turner/Finley letter is the appropriate
filing.   However, we may accept an Anders brief instead.                See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004), appeal denied                                                 Anders
brief provides greater protection to the defendant, we may accept an
Anders brief in lieu of a Turner/Finley                           See also
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (guiding
                                     Anders
find that he has complied substantially with the Turner/Finley
requirements. Hence, we overlook his procedural misstep.
6
    We note that Attorney Gamburg failed to attach a copy of the letter to

going forward.      See Commonwealth v. Friend, 896 A.2d 607, 615

petitioner a copy of the application to withdraw, which must include (i) a
                       -                                  t advising the PCRA
petitioner that, in the event the [] court grants the application of counsel to
withdraw, the petitioner has the right to proceed pro se, or with the

court-appointed counsel, now Judge, McDermott, did advise appellant of his
right to proceed pro se or with privately retained counsel. In addition, this
court issued a corrective order advising appellant that he had 30 days to file
a response pro se or through privately retained counsel; and, in fact,
appellant did file a pro se
petition.


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          denying a petition under the PCRA is whether the
          determination of the PCRA court is supported by the
          evidence of record and is free of legal error.
          Commonwealth v. Halley, 582 Pa. 164, 870 A.2d

          not be disturbed unless there is no support for the
          findings in the certified record. Commonwealth v.
          Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

          [T]he right to an evidentiary hearing on a
          post-conviction petition is   not   absolute.
          Commonwealth v. Jordan, 772 A.2d 1011, 1014

          discretion to decline to hold a hearing if the

          support either in the record or other evidence. Id.
          It is the responsibility of the reviewing court on
          appeal to examine each issue raised in the PCRA
          petition in light of the record certified before it in
          order to determine if the PCRA court erred in its
          determination that there were no genuine issues of
          material fact in controversy and in denying relief
          without    conducting    an    evidentiary   hearing.
          Commonwealth v. Hardcastle, 549 Pa. 450, 454,
          701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,

1239-1240 (Pa.Super. 2004).

          [W]e begin with the presumption that counsel was
          effective.     A claimant establishes ineffective
          assistance of counsel when he demonstrates that
          [1] the underlying claim is of arguable merit;
          [2]
          grounded on any reasonable basis designed to
          effe
          [3]
          to the client. For an action (or inaction) by counsel


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            to be considered prejudicial to the client, there must
            be a reasonable probability that the outcome of the
            proceedings would have been different. All three
            prongs of this test must be satisfied. If an appellant
            fails to meet even one prong of the test, his
            conviction will not be reversed on the basis of
            ineffective assistance of counsel.

Commonwealth                    , 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks

omitted).


            effective counsel extends to the plea process, as well
            as during trial
            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



Commonwealth v. Allen, 833 A.2d 800, 802 (Pa.Super. 2003), quoting

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)

(internal citations omitted).

      In his first issue on appeal, appellant argues that trial counsel was

ineffective for failing to investigate a self-defense claim prior to advising him

to plead guilty.   Appellant gave a statement to police in which he claimed

that the victim, Gay, was reaching for something.         (Notes of testimony,

10/26/04 at 13.) According to appellant, he thought Gay was reaching for a

gun and that is why he shot him. (Id. at 14.)



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      The underlying issue, that appellant had a viable self-defense claim,

lacks arguable merit.   The police recovered six cartridge casings from the

scene, and the victim was shot five times, including in the back and

buttocks. (Id. at 10-11.) The victim was unarmed. In fact, the victim and

appellant had been friends prior to this incident. In addition, the victim was

shot in the middle of the street, and appellant clearly violated his duty to

retreat. See 18 Pa.C.S.A. § 505(b)(2)(ii) (use of deadly force not justifiable

if the actor knows that he can avoid the necessity of using such force with

complete safety by retreating). Furthermore, appellant agreed to waive all

available defenses when he pled guilty to third degree murder.            See

Commonwealth v. Montgomery, 401 A.2d 31

of guilty constitutes a waiver of all nonjurisdictional defects and defenses.

When a defendant pleads guilty, he waives the right to challenge anything



omitted).

      The second issue raised is that trial counsel was ineffective for

erroneously advising appellant that he could receive the death penalty if he

insisted on going to trial. There is nothing in the record to support such an

allegation. The Commonwealth never filed notice of intent to seek the death

penalty in this case. At the guilty plea hearing, appellant testified that he

was entering the plea of his own free will and that no one had made any

threats or promises to force him to plead guilty.       (Notes of testimony,



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10/26/04 at 7.) Appellant is bound by the statements he made, under oath,

at his guilty plea hearing. Commonwealth v. Stork, 737 A.2d 789, 790-

791 (Pa.Super. 1999), appeal denied, 764 A.2d 1068 (Pa. 2000), citing

Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super. 1998). In addition, at

the December 2, 2004 hearing on post-sentence motions, including

               -sentence motion to withdraw his guilty plea, appellant never

alleged that his attorney told him he faced the death penalty unless he pled

guilty. It is clear that appellant was simply disappointed with his sentence,

which is not a basis for withdrawal. (Notes of testimony, 12/2/04 at 3.) The

trial court asked appellant if he had anything to say and he said no. (Id. at

5.)

      Most importantly, in addition to the counseled motion to withdraw his

guilty plea, appellant filed a pro se motion and memorandum of law, in



                                                           pro se motion to

modify sentence nunc pro tunc



                                                                          his



Commonwealth actually supported a charge of first degree murder, which

                                      Austin, supra at 2.     By entering a




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guilty plea to third degree murder, appellant avoided a very possible life

sentence. Id.



claims trial counsel was ineffective for waiving his right to a pre-sentence

                                                            id waive his right

to a PSI report and mental health evaluation. (Notes of testimony, 10/26/04

at 17.) However, appellant cannot show how he was prejudiced where the

trial court had sufficient information to render an appropriate sentence.

Attorney Gott

good character. (Id. at 17-18.) It was established that appellant had no

prior record, and no other open cases.    (Id. at 18-19.)   Attorney Gottlieb

                                          tory. (Id. at 18.) Appellant also

exercised his right of allocution and expressed his remorse for killing the

victim. (Id.

for their forgiveness, which the trial court described as a good first step.

(Id. at 24-25.)   In sentencing appellant, the trial court mentioned his

remorse and lack of a prior record as mitigating factors.    (Id. at 25-26.)



lack of employment history. (Id.)

     It is clear that despite the lack of a PSI report, the trial court was

given sufficient evidence to determine an appropriate sentence.          See

Commonwealth v. Wilkerson



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is not per se ineffectiveness for counsel to fail to request a presentence

report where, as here, the court is familiar with the defendant and heard



standard range sentence.      There is no indication that a PSI report would

have resulted in a more lenient sentence. This claim fails.

      In his pro se

appellant argues Attorney Gamburg is ineffective for failing to thoroughly

review the record. However, it is well established that allegations of PCRA



appeal.   Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)

(en banc) (citations omitted).         Furthermore, for the reasons discussed

supra, we hav

ineffectiveness raised in his PCRA petition are without merit.

      Appellant   raises     several     additional   issues   of    trial   counsel

ineffectiveness   in   his   pro   se     response.      Appellant    claims    that

Attorney Gottlieb was ineffective for failing to file a pre-sentence motion to

                                                                Anders brief and



asked counsel to file a pre-sentence motion to withdraw guilty plea.              In

addition, as stated above, appellant waived his right to a PSI and proceeded

immediately to sentencing.




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      Appellant also claims that the trial court failed to give an adequate

definition of malice during the guilty plea colloquy. (Id. at 5-6.) This claim

is waived, as it could have been brought on direct appeal.       42 Pa.C.S.A.

§ 9544(b).     Furthermore, the facts as related by the Commonwealth

obviously established malice, where appellant shot the decedent five times

including in the back.

      Finally, appellant argues that the written guilty plea colloquy, which



plead guilty, I am giving up the right to defend my case.      I cannot come

back to court later and say that I was not guilty. Once I plead guilty, I can




According to appellant, this statement is in conflict with the case law holding

that a pre-sentence motion for withdrawal of a guilty plea should be liberally

allowed and granted for any fair and just reason. Commonwealth v. Elia,

83 A.3d 254, 261-262 (Pa.Super. 2013) (citations omitted).

      This claim is both waived and patently meritless.      This claim could

have been raised on direct appeal and is not cognizable in a PCRA

proceeding.    By pleading guilty, appellant waived all non-jurisdictional

defects and defenses.    In addition, appellant did not file a pre-sentence

motion to withdraw his plea, so the line of cases discussing the liberal

standard for pre-sentence withdrawal of a guilty plea is inapplicable. At any



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rate, the written guilty plea colloquy form is simply trying to impress upon

defendants the rights they are giving up by pleading guilty and the finality of

the plea. It is not an inaccurate statement of the law.



PCRA petition, as well as those raised in his pro se response to PCRA



our own independent review of the record in this case, we can discern no



petition to withdraw

petition.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2014




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