J-S01006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL PUGH                               :
                                               :
                       Appellant               :   No. 748 EDA 2018

                 Appeal from the PCRA Order February 16, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0002911-2015,
                            CP-51-CR-0002934-2015


BEFORE:      BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                                   FILED MAY 12, 2020

        Michael Pugh appeals from the February 16, 2018 order denying him

relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq.

We affirm.

        On March 22, 2016, Appellant entered a negotiated guilty plea to forgery

and conspiracy at docket number CP-51-CR-0002911-2015 (“No. 2911-

2015”), and forgery and conspiracy at CP-51-CR-0002934-2015 (“No. 2934-

2015”). The remaining charges at those dockets, as well as similar charges

at six other docket numbers, were nolle prossed by the Commonwealth.1 The


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*   Retired Senior Judge assigned to the Superior Court.

1Appellant was charged with multiple counts of access device used to obtain
property, theft by unlawful taking, theft by deception, and receiving stolen
property.
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charges stemmed from a crime spree in which Appellant and two co-

defendants stole credit cards and used them to purchase retail goods.

        In advance of the guilty plea hearing, Appellant reviewed the written

guilty plea colloquy with his attorney. At the guilty plea hearing, the trial court

gave Appellant additional time to review and sign the written colloquy with his

attorney. Thereafter, the court conducted an oral colloquy of Appellant, and

the Commonwealth’s attorney placed the factual basis for the plea on the

record. This included a description of the offenses, the dates and locations

where they were committed, and Appellant’s role in the crimes.

        In exchange for Appellant’s guilty plea to forgery and conspiracy to

commit forgery, the Commonwealth nolle prossed seventeen charges and

recommended an aggregate sentence of two to four years imprisonment

followed by three years of probation, and $605 in restitution. The sentence

was to run concurrent to other sentences imposed in other counties. The court

sentenced Appellant in conformity with the negotiated plea.

        Appellant did not seek to withdraw his plea, nor did he file a direct appeal

challenging its validity. Instead, Appellant filed a timely pro se PCRA petition

on July 11, 2018. Counsel was appointed, and he filed an amended petition

on Appellant’s behalf on April 30, 2017. The amended petition alleged that

plea counsel was ineffective in inducing Appellant to plead guilty at No. 2911-

2015.      He maintained that, had counsel investigated, he would have

ascertained that Appellant was in state custody on March 17, 2014, the date


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when the crimes docketed at No. 2911-2015 were committed. He also claimed

that plea counsel was ineffective for failing to object to the allegedly defective

colloquy regarding the crimes docketed at No. 2934-2015.

        The Commonwealth moved to dismiss Appellant’s petition, citing the

lack of proof that Appellant was in custody when the offenses at No. 2911-

2015 were committed. Furthermore, it pointed to the record of the guilty plea

hearing as establishing that Appellant was apprised of the factual basis for his

plea at No. 2934-2015. Finally, the Commonwealth relied upon Appellant’s

admission on the record that he committed the offenses.

        The PCRA court issued Rule 907 notice of its intent to dismiss the

petition without a hearing as the issues lacked merit.         Appellant filed a

response to the Rule 907 notice to which he attached two psychiatric

evaluations as alleged proof that he was in a mental health facility on March

17, 2014.2 The PCRA petition was dismissed without a hearing on February

16, 2018.

        Appellant filed a timely pro se notice of appeal, and the court appointed

new counsel as Appellant’s PCRA counsel had retired. On May 9, 2018, the

court ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), Appellant complied, and the PCRA court




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2   Appellant had attached the same evaluations to his pro se PCRA petition.

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penned its Rule 1925(a) opinion.               Appellant presents two issues for our

review:

       I.     Did the trial court err by dismissing the PCRA petition?

       II.    Was [Appellant] able to knowingly, intelligently, and
              voluntarily plead guilty? [Appellant] has a significant
              psychiatric history.

Appellant’s brief at 3 (unnecessary capitalization omitted).3

       On appeal from the denial of PCRA relief,

       our standard of review calls for us to determine whether the ruling
       of the PCRA court is supported by the record and free of legal
       error.   The PCRA court's credibility determinations, when
       supported by the record, are binding on this Court; however, we
       apply a de novo standard of review to the PCRA court's legal
       conclusions.

Commonwealth v. Williams, 196 A.3d 1021, 1026-27 (Pa. 2018) (internal

citations and quotations omitted).

       Appellant frames his claims regarding his guilty plea in terms of

ineffective assistance of counsel.         The law is well settled that a criminal

defendant has the right to effective counsel during the plea process.

Commonwealth v. Kehr, 180 A.3d 754, 760 (Pa.Super. 2018) (citing Hill v.

Lockhart, 474 U.S. 52 (1985)). However, allegations of ineffective assistance

of plea counsel serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea. Id. The voluntariness

of the plea depends on whether counsel’s advice to plead guilty “was within


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3   The Commonwealth did not file a brief on appeal.

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the range of competence demanded of attorneys in criminal cases.” Id. (citing

Hill, supra at 56).

      The law is well settled in Pennsylvania that counsel is presumed to be

effective.    See Commonwealth v. Washington, 927 A.2d 586, 594 (Pa.

2007). In order to overcome that presumption, “a PCRA petitioner must plead

and prove that: (1) the legal claim underlying the ineffectiveness claim has

arguable merit; (2) counsel’s action or inaction lacked any reasonable basis

designed to effectuate petitioner’s interest; and, (3) counsel’s action or

inaction resulted in prejudice to petitioner.” Commonwealth v. Mason, 130

A.3d 601, 618 (Pa. 2015).

      In determining whether counsel’s action or inaction had a reasonable

basis, the issue is not “whether there were other more logical courses of action

which counsel could have pursued[,]” but “whether counsel’s decisions had

any reasonable basis.” Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa.

2014) (citations omitted). If it is a matter of strategy, we will not find a lack

of reasonable basis unless “an alternative not chosen offered a potential for

success      substantially   greater   than   the   course   actually    pursued.”

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).                  In order to

demonstrate prejudice, “a petitioner must show that there is a reasonable

probability that, but for counsel’s actions or inactions, the result of the

proceeding would have been different.”        Mason, supra at 389.        All three




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prongs of the test must be satisfied in order for a petitioner to be entitled to

relief. Id.

      Appellant alleges first that the PCRA court erred in dismissing his petition

because his guilty plea was unlawfully induced due to plea counsel’s

ineffectiveness. He maintains that plea counsel was ineffective by failing to

investigate Appellant’s claim that he was in state custody and could not have

committed the crimes on March 17, 2014, which were the subject of the

criminal information at No. 2911-2015.         He relies upon two psychiatric

evaluations, one dated March 5, 2014, and the other March 18, 2014, as his

proof that he was an inpatient at a mental health facility on March 17, 2014,

when the offenses at No. 2911-15 were committed.

      The PCRA court rejected Appellant’s claim because he admitted under

oath that he committed these crimes, and he was bound by those statements.

Appellant acknowledged that he knew what he did was wrong, and stated,

“Your Honor, I just wanted to take responsibility for what I’ve done.         You

know, I turned myself in. It wasn’t like you all came looking for me. I’m not

trying to get rewarded for that. I’m just trying to straighten my life out.”

PCRA Court Opinion, 6/18/19, at 5 (quoting N.T. Guilty Plea/Sentencing

Hearing, 3/22/16, at 20). Furthermore, the PCRA court noted that Appellant

had not provided records that substantiated that he was in custody or

elsewhere when the offenses occurred. See PCRA Court Opinion, 6/18/18, at

5.


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       Appellant continues to argue on appeal that counsel was ineffective

because he did not investigate and learn that Appellant was an inpatient in a

psychiatric facility when the crimes charged at No. 2911-2015 were

committed. Consequently, he claims that he pled guilty to crimes that he did

not commit.

       Preliminarily, we agree with the PCRA court that Appellant did not offer

proof that he was in custody on March 17, 2014, when the crimes charged at

No. 2911-2015 were committed.        The psychiatric evaluations he provided

merely established that he was admitted to Keenan House on March 2, 2014,

evaluated on March 5, 2014, and that he had another appointment scheduled

in four weeks. Records from Gaudenzia DRC Inc. (“Gaudenzia”) indicate that

Appellant was evaluated at that facility on March 18, 2014. That evaluation

recited that Appellant was at Keenan House for three days, not thirty days as

Appellant maintains, and then transferred to Gaudenzia after he was charged

with robbery. There is no indication that he was hospitalized at the latter

facility.

       We note further that Appellant had access to the criminal information

that referenced the date of the offenses. In addition, he was present for the

colloquy when the Commonwealth recited the time and location of the theft of




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a credit card on March 17, 2014.4 Appellant did not proclaim his innocence,

but admitted that he committed the offenses described at No. 2911-2015.

During his allocution, he told the trial court that he had turned himself in, and

that he wanted to take responsibility for what he had done. Appellant has

failed to demonstrate that the underlying claim had arguable merit, and

hence, the PCRA correctly denied PCRA relief.

       Appellant contends next that, despite the PCRA court’s finding to the

contrary, the oral colloquy was deficient because there was no recitation of

the facts underlying No. 2934-2015, and his counsel failed to object.        The

PCRA Court found that the facts of the underlying crimes, including the dates

of their commission, had been placed on the record.

       Our review of the transcript of the guilty plea/sentencing hearing,

however, validates Appellant’s claim that the oral colloquy was defective as to

No. 2934-2015. Although the Commonwealth recited the factual basis for the

crimes charged at the other seven criminal informations, it inadvertently




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4  The Commonwealth’s attorney stated on the record that, “at the docket
ending in 2911-2015, the defendant, along with two co-defendants, I believe
it is Damien Waller and Seleta [phonetic] Miller, were -- that occurred on
March 17th, 2014, were inside of, I believe, a restaurant, at 1701 Locust
Street at around 3:50 p.m. when the individuals took a credit card from the
complainant, Natalia Hantharuk, H-A-R-T-H-A-R-U-K. The individuals then
used that credit card in the amount of $930 in a Target store here in
Philadelphia County without the complainant's permission, and the restitution
in that case is $930.” N.T. Guilty Plea/Sentencing Hearing, 3/22/16, at 14.

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omitted the factual basis for the plea to the offenses at No. 2934-2015. Plea

counsel did not object.

      Nonetheless, Appellant failed to allege or prove that, as a result of

counsel’s defective performance, his guilty plea was involuntary. Moreover,

he failed to establish prejudice, i.e., that but for counsel’s omission or error,

the outcome would have been different.       Appellant has not advanced any

allegation that he would not have pled guilty to forgery and conspiracy at No.

2934-2015, had plea counsel objected to the defective colloquy. Accordingly,

this claim fails.

      Finally, Appellant contends that he was incapable of knowingly,

intelligently, and voluntarily pleading guilty due to his psychiatric history. He

points out that two competency evaluations were scheduled, but neither took

place. He claims plea counsel was ineffective for not insisting that his mental

competency be evaluated prior to entry of his guilty plea.

      We note first that Appellant raised this issue for the first time in his

Pa.R.A.P. 1925(b) statement. “It is well settled that issues not raised below

cannot be advanced for the first time in a 1925(b) statement or on appeal.”

Irwin Union Nat. Bank & Trust Co. v. Famous, 4 A.3d 1099, 1104

(Pa.Super. 2010); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”);

Commonwealth v. Santiago, 855 A.2d 682, 691-692 (Pa. 2004) (citing




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general rule that a claim not raised in a PCRA petition cannot be raised for the

first time on appeal).

      Nonetheless, the PCRA court addressed the issue in its Rule 1925(a)

opinion, and concluded that the underlying issue lacked reasonable merit. The

PCRA court found that even though Appellant had not been psychologically

evaluated prior to entering his guilty plea on these particular offenses, he was

competent to enter a plea, as he understood the nature of the charges against

him, and was able to consult with his attorney and actively participate in his

defense.   Hence, counsel was not ineffective in failing to pursue a mental

evaluation prior to the entry of the guilty plea.

      The record supports the finding of the PCRA court that Appellant was

competent to enter a voluntary, knowing, and intelligent plea. The trial court

conducted an oral colloquy in which it determined that Appellant had spoken

to his attorney that day, that he was satisfied with counsel’s representation,

and that he understood the terms of the negotiated plea. Appellant denied

that he was under the influence of any drugs or alcohol that would impair his

judgment. Defense counsel advised the court that Appellant regularly takes

medication, but that the medication would not hinder his understanding of the

proceedings. No relief is due.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/12/2020




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