J-S22034-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    Appellee              :
                                          :
                    v.                    :
                                          :
SHAWN JAMES HAMILTON,                     :
                                          :
                     Appellant            :     No. 1072 MDA 2015

                  Appeal from the PCRA Order May 18, 2015
              in the Court of Common Pleas of Luzerne County,
            Criminal Division, at No(s): CP-40-CR-0003751-2012
                           CP-40-CR-0000099-2013

BEFORE:     MUNDY, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 17, 2016

      Shawn James Hamilton (Appellant) appeals from an order which

denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. In addition, Appellant’s counsel seeks to withdraw

his representation of Appellant pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). We affirm the order and grant counsel’s application

to withdraw.

      On October 24, 2012, Appellant was charged at CP-40-CR-0003751-

2012 (3751-2012) with three counts of criminal homicide, one count of

criminal attempt homicide, and four counts of robbery for his involvement in

an incident that occurred on July 7, 2012.      On December 10, 2012, the

Commonwealth fled notice of its intent to seek the death penalty against

*Retired Senior Judge assigned to the Superior Court.
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Appellant, and this case was consolidated with that of Appellant’s brother

and co-defendant, Sawud Davis.

       Subsequently, on December 13, 2012, Appellant was charged at CP-

40-CR-0000099-2013 (99-2013) with one count of criminal homicide in

connection with a shooting that occurred on July 6, 2012.

       Allyson Kacmarski, Esquire, and Robert Buttner, Esquire, were court-

appointed to handle the guilt phase of 3751-2012.1 Mark Bufalino, Esquire,

was later appointed to handle the penalty phase of trial. Appellant’s defense

team    also   included   a   private   investigator   (hired   before   Appellant’s

preliminary hearing) and Louise Luck, a mitigation specialist.

       On December 20, 2013, Appellant entered into a plea agreement with

respect to both cases. Specifically, at 3751-2012, Appellant pled guilty to

three counts of criminal homicide and one count of criminal attempt

homicide and, at 99-2013, he pled guilty to one count of criminal homicide.

In exchange, the Commonwealth agreed to withdraw the remaining charges

at both criminal informations and indicated it would not seek the death

penalty in either case. Appellant waived his right to a pre-sentence

investigation and proceeded immediately to sentencing.             The trial court

imposed four consecutive life sentences at each criminal homicide count, and



1
 Because she was already handling Appellant’s death penalty case, Attorney
Kacmarski volunteered to be court-appointed to represent Appellant on 99-
2013.


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a consecutive term of twenty to forty years’ imprisonment at the criminal

attempt homicide charge.

      Appellant did not file a direct appeal. On April 24, 2014, Appellant pro

se filed a PCRA petition. Counsel was appointed and an amended petition

was filed. On May 1, 2015, the PCRA court held a hearing. At the hearing,

Appellant argued only claims of trial counsel ineffectiveness, alleging that he

was left with no choice but to plead guilty due to his attorneys’ poor case

preparation, failure to investigate and failure to provide him with discovery,

as well as the mitigation specialist’s alleged statement that she was not

going to work for him because Luzerne County was not paying her. N.T.,

7/17/2015, at 3-44.

      On May 18, 2015, the PCRA court issued an order denying Appellant’s

petition. This timely appeal followed. Thereafter, PCRA counsel sought from

this Court leave to withdraw his representation of Appellant pursuant to

Turner/Finley.     On January 14, 2016, Appellant filed pro se a response to

counsel’s petition to withdraw raising issues of trial and PCRA counsel

ineffectiveness.

      Before we may address the potential merit of Appellant’s claims, we

must determine if counsel has complied with the technical requirements of

Turner and Finley.

            … Turner/Finley counsel must review the case zealously.
      Turner/Finley counsel must then submit a “no-merit” letter to
      the trial court, or brief on appeal to this Court, detailing the



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      nature and extent of counsel’s diligent review of the case, listing
      the issues which the petitioner wants to have reviewed,
      explaining why and how those issues lack merit, and requesting
      permission to withdraw.

            Counsel must also send to the petitioner: (1) a copy of
      the “no-merit” letter/brief; (2) a copy of counsel’s petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

            If counsel fails to satisfy the foregoing technical
      prerequisites of Turner/Finley, the court will not reach the
      merits of the underlying claims but, rather, will merely deny
      counsel’s request to withdraw. Upon doing so, the court will
      then take appropriate steps, such as directing counsel to file a
      proper Turner/Finley request or an advocate’s brief.

             However, where counsel submits a petition and no-merit
      letter that do satisfy the technical demands of Turner/Finley,
      the court—trial court or this Court—must then conduct its own
      review of the merits of the case. If the court agrees with
      counsel that the claims are without merit, the court will permit
      counsel to withdraw and deny relief. By contrast, if the claims
      appear to have merit, the court will deny counsel’s request and
      grant relief, or at least instruct counsel to file an advocate’s
      brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)

(citations omitted).

      We are satisfied that counsel has complied with the technical

requirements of Turner and Finley.          Therefore, we will consider the

substantive issues contained in counsel’s brief.

      Appellant’s overarching claim on appeal is that the ineffective

assistance of his trial counsel rendered his guilty plea involuntary and

unknowing.     Specifically, Appellant claims that counsel was ineffective




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alleging: (1) two attorneys on his defense team, Attorneys Bufalino and

Buttner, were not death penalty certified at the time of his plea, (2) counsel

was aware of Appellant’s mental health issues, but nonetheless allowed him

to plead guilty, and (3) counsel failed to provide Appellant with discovery,

failed to investigate properly and were unprepared for trial; thus, Appellant

had no choice but to plead guilty. Turner/Finley Brief at 11.

      Our standard and scope of review is well-settled:

             [A]n appellate court reviews the PCRA court’s findings of
      fact to determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

             To establish trial counsel’s ineffectiveness, a petitioner
      must demonstrate: (1) the underlying claim has arguable merit;
      (2) counsel had no reasonable basis for the course of action or
      inaction chosen; and (3) counsel’s action or inaction prejudiced
      the petitioner.

            Furthermore,

            [A] PCRA petitioner will be granted relief only when
            he proves, by a preponderance of the evidence, that
            his conviction or sentence resulted from the
            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. 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is
            presumed effective, and to rebut that presumption,
            the PCRA petitioner must demonstrate that counsel’s
            performance was deficient and that such deficiency
            prejudiced him.




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     Counsel’s assistance is deemed constitutionally effective once
     this Court determines that the defendant has not established any
     one of the prongs of the ineffectiveness test.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(internal quotation marks and citations omitted).

     Additionally,

           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.

     [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.

     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. With regard to the voluntariness of a plea,
     a guilty plea colloquy must affirmatively demonstrate the
     defendant understood what the plea connoted and its
     consequences. Once the defendant has entered a guilty plea, it
     is presumed that he was aware of what he was doing, and the
     burden of proving involuntariness is upon him. Competence to
     plead guilty requires a finding that the defendant comprehends
     the crime for which he stands accused, is able to cooperate with
     his counsel in forming a rational defense, and has a rational and
     factual understanding of the proceedings against him.




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Commonwealth v. Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2013)

(citations and quotation marks omitted).

      With respect to Appellant’s first allegation of ineffectiveness, Rule of

Criminal Procedure 801 sets forth the qualifications for defense counsel in

capital cases and mandates that “[i]n all cases in which the district attorney

has filed a Notice of Aggravating Circumstances pursuant to Rule 802, before

an attorney may participate in any stage of the case either as retained or

appointed counsel, the attorney must meet the educational and experiential

criteria set forth in this rule.” Pa.R.Crim.P. 801. However, the Comment to

the Rule provides that

      [a]n attorney may serve as “second chair” in a capital case
      without meeting the educational or experience requirements of
      this rule. “Second chair” attorneys may not have primary
      responsibility for the presentation of significant evidence or
      argument, but may present minor or perfunctory evidence or
      argument, if deemed appropriate in the discretion of the court.
      Service as a “second chair” in a homicide case will count as a
      trial for purposes of evaluating that attorney’s experience under
      paragraph (1)(c) of this rule.

Pa.R.Crim.P. 801, Comment.

      Appellant’s bald allegation that Attorneys Bufalino and Buttner were

non-compliant with Rule 801 is not supported by the record.           Neither

attorney about whom Appellant complained was called to testify at the PCRA

hearing.   However, Appellant’s lead defense attorney, Allyson Kacmarski,

testified that she was certified properly under Rule 801 during her

representation of Appellant, that she was counsel of record, and that she



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handled all record matters in the case. N.T., 7/17/2015, at 40. Moreover,

Attorney Kacmarski testified that she reached out to Attorney Bufalino for

advice about mitigation experts soon after being appointed to represent

Appellant because she was aware Attorney Bufalino had recently tried a

death penalty case. Id. The PCRA court found this testimony credible. PCRA

Court Opinion, 5/18/2015, at 4 (unpaginated). “A claim has arguable merit

where the factual averments, if accurate, could establish cause for relief.”

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013).

Because the record establishes that Appellant’s lead counsel was Rule 801

compliant,2 and because the Comment to the Rule permits non-complaint

attorneys to serve as second chair, we agree with counsel that Appellant’s

claim of ineffectiveness in this regard is without merit. See Freeland, 106

A.3d at 775.

      Appellant next contends that his attorneys were ineffective because

they permitted him to plead guilty despite his alleged “mental health issues.”

Turner/Finley Brief at 20-21; Appellant’s Response at 3-4.3

           A defendant is presumed to be competent to stand trial.
      Thus, the burden is on Appellant to prove, by a preponderance

2
   Indeed, Attorney Kacmarski’s testimony, and Attorney Bufalino’s
appointment to Appellant’s defense team specifically to handle the penalty
portion of trial, suggests that Attorney Bufalino was properly certified.
3
 As counsel points out, the issue of Appellant’s mental health and its effect
on the voluntariness of his plea was not addressed during Appellant’s PCRA
hearing, although this claim was included in his PCRA petition.
Turner/Finley Brief at 20-21.


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      of the evidence, that he was incompetent to stand trial. In order
      to prove that he was incompetent, Appellant must establish that
      he was either unable to understand the nature of the
      proceedings against him or to participate in his own defense.

Commonwealth v. Rainey, 928 A.2d 215, 236 (Pa. 2007).

      The record is devoid of any evidence that Appellant had a mental

health issue that would prevent him from entering a knowing, intelligent or

voluntary guilty plea. Accordingly, we hold that Appellant has failed to meet

his burden and is entitled to no relief.

      Next, Appellant contends that counsel was ineffective for failing to

investigate his case, provide him with discovery, or prepare him adequately

for trial. Turner/Finley Brief at 11; Appellant’s Response at 7.   As stated

above, with regard to an attorney’s duty to investigate, “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.

      At the PCRA hearing, Appellant admitted that Attorney Kacmarski met

with him at the jail to discuss his case approximately 30 times before his

trial date. N.T., 7/17/2015, at 5.          Each of those meetings lasted

approximately one hour; however, Appellant claimed he could not recall

what they discussed. Id. at 5-6. Appellant contended that he never received

his discovery from Attorney Kacmarski and that no one discussed trial

strategy with him prior to his plea. Id. at 7, 10.




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      Attorney Kacmarski agreed that she met with Appellant at the county

jail approximately 30 times and stated that she had an investigator

appointed prior to the preliminary hearing. Id. at 31-32. She testified that,

once the Commonwealth gave notice of its intent to seek the death penalty,

she accepted Attorney Bufalino’s offer to handle the death penalty phase of

trial and petitioned the court to appoint him. Id. at 14.     Additionally, she

received and reviewed the discovery for each of Appellant’s cases and

physically visited both crime scenes. Id. at 36. However, due to the volume

and sensitive nature of information contained in Appellant’s discovery

packets, she did not provide him with a copy, although she did bring

portions of the discovery to the jail to discuss with him. Id. at 35-36, 42.

      Attorney Kacmarski testified that she discussed the possibility of a

guilty plea with Appellant after receiving a letter from him in which he

expressed a desire to plead guilty in an effort to help his co-defendant

brother avoid a life sentence.     Id. at 32-34.    Accordingly, she and the

attorney appointed to represent Appellant’s brother negotiated a deal with

the Commonwealth in which the Commonwealth agreed to recommend a 20-

to-40 year sentence for Appellant’s brother in exchange for Appellant’s guilty

plea. Id. at 33-34.

      Once again, the trial court credited Attorney Kacmarski’s testimony.

Having determined that counsel’s action was reasonable, the court and




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counsel concluded that Appellant’s claim of ineffective assistance of counsel

on this basis did not entitle him to relief. We agree.

      Appellant’s next issue deals with the alleged non-payment of the

mitigation specialist retained for the penalty phase portion of his case.

Turner/Finley Brief at 23. At his PCRA hearing, Appellant testified that the

specialist, Louise Luck, relayed a message to him through his mother that

“she won’t be working anymore because the county isn’t paying her.” N.T.,

7/17/2015, at 26. Appellant did not discuss this issue with his attorneys, id.

at 19-20, nor did they discuss this potential issue with him. Id. at 26. Ms.

Luck was not called to testify at the PCRA hearing.

      When asked about this allegation at the PCRA hearing, Attorney

Kacmarski testified that Ms. Luck had completed a large amount of work for

the penalty phase of Appellant’s trial prior to his decision to plead guilty. Id.

at 37-38.   Attorney Kacmarski was unaware of any issues with Ms. Luck’s

payment as Ms. Luck was working primarily with Attorney Bufalino on the

penalty phase of trial, but she knew there was “no objection” from the court

to keep paying Ms. Luck due to her important role in the case. Id. at 37-38.

      Once more, Appellant is unable to prove that counsel was ineffective

for failing to investigate an issue of which she had no knowledge. Willis, 68

A.3d at 1002. Additionally, the testimony credited by the PCRA court belies

Appellant’s contention.   Accordingly, we agree with counsel that this issue

merits him no relief.



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     Based on the foregoing, we agree with counsel that the issues

Appellant raises in this appeal are meritless.4 Accordingly, the PCRA court

did not abuse its discretion in denying Appellant’s petition. Therefore, we

grant counsel’s petition to withdraw, and affirm the PCRA court’s May 18,

2015 order.

     Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/17/2016




4
  In his pro se response to counsel’s Turner/Finley brief, Appellant raises
the issues addressed above, as well as new claims of PCRA counsel
ineffectiveness. Appellant’s Response at 3-10. “Claims of PCRA counsel's
ineffectiveness may not be raised for the first time on appeal.”
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc).
Instead, such claims must be raised either immediately before the PCRA
court or in a serial petition. Id. Accordingly, we find Appellant’s new
ineffectiveness claims non-cognizable.




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