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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DEANDRE PENNINGTON

                          Appellant                No. 1746 EDA 2015


                Appeal from the PCRA Order May 15, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014597-2009


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 22, 2016

     Deandre Pennington appeals from the May 15, 2015 order denying him

PCRA relief. We affirm.

     The pertinent facts follow.      On the evening of August 17, 2009,

Appellant and four other men chased Jerome Church into a store located at

329 East Somerset Street, Philadelphia.     Once inside the store, the five

assailants began to attack the victim.   They punched him, and struck him

with a glass bottle and a bedrail. Appellant and his cohorts then dragged the

man into the street, where Appellant stomped on him with his foot.       The

entire assault was captured on videotape from surveillance cameras.      Mr.

Church was severely injured during the attack. He was in a coma for nearly
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two months, and, when he awoke, his cognitive functioning was significantly

impaired.

      As a result of this incident, Appellant was charged with attempted

murder, aggravated assault, conspiracy, possession of an instrument of

crime, simple assault, and reckless endangerment.          On August 9, 2010,

Appellant tendered an open guilty plea to one count each of aggravated

assault and conspiracy, and, in exchange, all the other charges were

withdrawn. Appellant had been on house arrest with electronic monitoring,

and, after entry of the guilty plea, that arrangement continued. At the time,

Appellant was warned that he would be sentenced to twenty to forty years in

jail if he did not appear to be sentenced.

      Appellant nevertheless removed his monitoring system and absconded.

Despite this affront, the sentencing court did not automatically sentence

Appellant to the proposed term.     It examined the presentence report and

asked for corrections, of which there was none. The sentencing court also

watched the videotape of the crime.          The court reported that, inside the

store, Appellant appeared to be the “lead attacker [who was] punching and

stomping and kicking” Mr. Church.      N.T. Sentencing 9/17/10, at 15.       The

court also delineated that, outside the store, Appellant continued to “stomp

him and [Mr. Church] goes unconscious at that point.”           Id. at 16.   The

victim’s sister had told the district attorney that, after the beating, Mr.

Church could no longer engage in a cogent conversation. Id. at 20.           The

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district attorney confirmed that he was not able to converse with the victim

due to Mr. Church’s mental incapacity. The prosecutor reported to the court

that Mr. Church had “severely disabled . . . cognitive function.” Id. at 21.

      The Commonwealth asked that Appellant be sentenced to the statutory

maximum. After considering the presentence report, the evidence presented

at the hearing, and all the statutory factors outlined in the Sentencing Code,

the court imposed a sentence of twenty to forty years imprisonment. Id. at

25-27.    Appellant did not file a timely post-sentence motion or a direct

appeal.

      The docket establishes that, on September 30, 2011, Appellant filed a

timely pro se PCRA petition. A counseled petition was filed on November 13,

2014. Therein, Appellant averred that trial counsel was ineffective for failing

to obtain the victim’s medical records to establish the degree of injury

suffered by him. Appellant claimed that it was unclear whether Mr. Church

suffered serious bodily injury, which was necessary to support the elements

of aggravated assault.    Appellant also averred that the elements of each

offense were not explained to him; this averment was refuted by the

transcript of the guilty plea colloquy, wherein the elements of both

aggravated assault and conspiracy were fully set forth.       In the petition,

Appellant reserved the right to raise additional claims. Thereafter, counsel

filed an amended PCRA petition and raised the position that, due to mental

disabilities suffered by Appellant, he was not capable of understanding the

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nature and consequences of his plea. Specifically, Appellant purportedly had

the mental acuity of a second grader. Appellant argued that trial counsel

rendered ineffective assistance by not identifying Appellant’s mental issues.

         After considering the three issues raised in the two petitions, the PCRA

court denied relief.      This appeal followed.   Appellant raises the following

issue:

         1. Did the trial court make an error of law and thereby violate
         Appellant’s rights of federal due process and equal protection of
         the laws, when the [PCRA court] denied Appellant’s post-
         conviction relief act petition, seeking relief for trial counsel’s
         aggregate ineffectiveness which prejudiced the outcome of his
         proceeding and would have substantially differed, when the
         attorney failed to obtain all pre-trial discovery, investigate the
         matter, develop any mitigating evidence, misrepresented the
         quality and nature of plea bargaining, and never ascertained the
         Appellant’s lack of mental capacity?

Appellant’s brief at 2.

         Initially, we outline our standard of review of a PCRA order.

             Under the applicable standard of review, we must determine
         whether the ruling of the PCRA court is supported by the record
         and is free of legal error. Commonwealth v. Marshall, 596 Pa.
         587, 947 A.2d 714, 719 (2008). The PCRA court's credibility
         determinations, when supported by the record, are binding on
         this Court. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d
         523, 532, 539 (2009). However, this Court applies a de novo
         standard of review to the PCRA court's legal conclusions.
         Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810
         (2007).

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).




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      Appellant’s averments all relate to his insistence that he received

ineffective assistance from trial counsel prior to entry of his guilty plea. In

this respect, we observe:

             Counsel is presumed effective, and 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. With regard to reasonable basis, the PCRA court does
      not question whether there were other more logical courses of
      action which counsel could have pursued; rather, the court must
      examine whether counsel's decisions had any reasonable basis. .
      . . 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.
      Failure to establish any prong of [this test, which is known as
      the] Strickland/Pierce test will defeat an ineffectiveness claim.

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations,

quotation marks and footnote omitted).             Additionally, “[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.” Commonwealth v. Moser, 921 A.2d 526,

531 (Pa.Super. 2007) (citation omitted).

      Appellant’s   specific   allegations   are   that   plea   counsel   rendered

ineffective assistance in: 1) failing to investigate Appellant’s claims of

innocence and evidence offered in his defense; 2) neglecting to obtain all the

victim’s medical records to refute that Mr. Church suffered serious bodily

injury; 3) not developing any mitigation evidence to establish that Appellant

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had mental disabilities or malfunctions; and 4) misrepresenting the nature of

the plea bargain. Appellant’s brief at 13-14.      In connection with the third

position, Appellant suggests that he had a “second grade reading level,

attention [deficit] hyperactivity disorder, oppositional defiance disorder,

attachment, and choice making disorders,” which rendered him unable “to

comprehend the complex language contained within his plea agreement.”

Id. at 17.    We note that Appellant has waived his assertions that plea

counsel was ineffective for not investigating his position that he was innocent

and misrepresenting the terms of the plea arrangement to him as they were

not raised at any point in the PCRA proceedings. Pa.R.A.P. 302(a).

      We thus first address the issue regarding the victim’s medical records.

Simply put, Appellant never established prejudice due to counsel’s failure to

obtain these documents.       The record establishes that the victim was

severely beaten, was rendered unconscious, was in a coma for two months,

and suffered brain injury that was so severe that he was unable to

communicate effectively.    As noted, a PCRA petitioner has the burden of

pleading and proving ineffectiveness.       Appellant failed to produce any

medical records that would have refuted this proof. Hence, there is no basis

upon which to find counsel ineffective in this respect.

      On appeal, Appellant’s second preserved position is that counsel was

ineffective for failing to explore his learning disabilities and his mental

problems, which interfered with his ability to tender a knowing and voluntary

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guilty plea.    The law is clear that a defendant has an affirmative duty to

truthfully respond to a judge’s questions during a guilty plea colloquy. As

we have stated:

            The longstanding rule of Pennsylvania law is that a
      defendant may not challenge his guilty plea by asserting that he
      lied while under oath, even if he avers that counsel induced the
      lies. A person who elects to plead guilty is bound by the
      statements he makes in open court while under oath and he
      may not later assert grounds for withdrawing the plea which
      contradict the statements he made at his plea colloquy.

            A criminal defendant who elects to plead guilty has a duty
      to answer questions truthfully. We [cannot] permit a defendant
      to postpone the final disposition of his case by lying to the court
      and later alleging that his lies were induced by the prompting of
      counsel.

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007)

(citations omitted).

      The plea court asked whether Appellant read, wrote, and understood

English, and Appellant responded affirmatively and reported that he had

completed the tenth grade. He stated that he was not under the influence of

anything that would impair his ability to understanding what was transpiring.

The following exchange also occurred:

             THE COURT: Have you ever been treated for a mental
      illness?

               THE DEFENDANT: Say that again.

             THE COURT: Have you ever been treated for a mental
      illness?

               THE DEFENDANT: Yes.

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           THE COURT: What have you been treated for?

           THE DEFENDANTS: ADHD.

           THE COURT: Are you taking any medication for that?

           THE DEFENDANT: No, not anymore.

            THE COURT: Anything about that condition or medication
     you may have ever taken before that would in any way interfere
     with your ability to either to understand what’s going on here or
     to interfere with your ability to communicate with you attorney?

           THE DEFENDANT: No.

N.T. Guilty Plea, 8/9/10, at 6.    Additionally, during the entire colloquy,

Appellant answered all questions posed of him cogently and appropriately.

     Appellant is bound by the statements that he made at the plea

hearing, which were that he completed tenth grade, that he understood the

proceedings, and that he did not suffer from a mental defect that affected

his ability to understand the written and oral plea colloquies.      Appellant

cannot now claim that he suffered from any condition that prevented him

from understanding the plea proceedings, as that claim would contradict his

statements at the plea proceeding. Hence, we reject this position.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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