J-S59011-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

TAEVON TERRELL DIXON,

                          Appellant                  No. 1787 WDA 2014


              Appeal from the PCRA Order September 30, 2014
              In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0001596-2010


BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 09, 2015

       Taevon Terrell Dixon appeals from the September 30, 2014 order

denying PCRA relief. After thorough review, we affirm.

       On January 9, 2012, Appellant pled guilty to third-degree murder and

person not to possess a firearm. We glean the following facts that formed

the basis for Appellant’s convictions from the Commonwealth’s proffer at the

plea and sentencing hearing. Detective Sergeant Thomas Owens of the City

of Johnstown Bureau of Police testified under oath that he was called to a

shooting incident on July 11, 2010, on Church Avenue. Patrol officers, who

were the first on the scene, found James Pelham in a small parking area

across from Appellant’s residence.      Mr. Pelham had suffered a gunshot

wound to the chest and subsequently died of that injury. Examination of the


*
    Former Justice specially assigned to the Superior Court.
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scene yielded two .38 caliber casings near the victim’s body. Investigation

revealed that the victim had gone to a Church Avenue address believing

there was to be a party there.            Upon arriving, he remained in his car.

Appellant    approached     the   vehicle    and   a   verbal   altercation   ensued.

Appellant’s brother Jharon joined him and the altercation turned physical.

Appellant pulled out a handgun and fired two shots, one of which was fired

directly at Mr. Pelham and struck him in the chest.                 Sergeant Owens

subsequently learned that Appellant had a prior record that precluded him

from owning a firearm.

        The preliminary hearing transcript was admitted as an exhibit at the

plea hearing and it provides additional details.           Officer Eric Gelles and

another officer were dispatched to the area of 1031 Church Avenue at

approximately 2:30 a.m. due to shots fired.            Upon reaching that location,

they observed a silver vehicle parked on Church Avenue with the passenger

door open. As the officers walked toward the vehicle, they saw a male lying

face down in a pool of blood in a driveway next to 1038 Church Avenue.

EMS     transported   the   victim   to   Conemaugh      Hospital   where     he   was

pronounced dead upon arrival.

        The police officers secured and searched the scene and located two

shell casings, one in the middle of the street and the other one next to the

curb.    Additional investigation revealed a number of eyewitnesses to the

shooting.    A friend of the victim, Corey Porter, testified at the preliminary

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hearing that he, Shawn Stephens and the victim had been at the Pony

Lounge celebrating the victim’s promotion.       When the bar closed, they

headed to a party.     The victim was driving a silver Monte Carlo.    None of

them was armed.        They pulled up in front of a house in Old Conemaugh

Borough, which had its lights on, and waited for other people to arrive at the

party.

         After a short while, Appellant and his brother came out on the porch.

Appellant approached the car and asked why they were there.           After Mr.

Stephens told Appellant that they were there for a party, Appellant returned

to the porch.     A few moments later, a car containing a group of women

arrived.     Within the hearing of the victim and his two friends, Appellant

instructed the women to tell the people in the silver Monte Carlo to get away

from his house.      The victim exited his car and stood in front of it in the

street. He asked Appellant what the problem was. In response, Appellant

screamed that there was no after party. When the victim asked Appellant

not to be so loud, Appellant said he did not have to be quiet in front of his

own home, pulled out a gun, and shot it into the air.       After some verbal

bickering, Appellant and his brother Jharon approached the victim and

Jharon punched him several times. Appellant hit the victim in the face with

a silver automatic handgun.       When the victim responded with a punch,

Appellant shot him from several steps away. Porter and Stephens fled on




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foot.   An autopsy on the victim confirmed that the cause of Mr. Pelham’s

death was a gunshot wound to the chest at close range.

        Appellant was charged with conspiracy to commit murder, criminal

homicide, aggravated assault, and person not to possess a firearm.         The

conspiracy charge was dismissed after the preliminary hearing.       Following

discovery and disposition of pre-trial motions, Appellant pled guilty to third-

degree murder and person not to possess a firearm in exchange for a

sentence of seventeen and one-half years to forty years imprisonment and

withdrawal of the remaining charges.       He executed a written guilty plea

colloquy and was orally colloquied at his plea and sentencing hearing on

January 9, 2012.

        Appellant did not appeal. On October 4, 2012, he filed a timely pro se

PCRA petition alleging that his sentence was illegal, his plea involuntary and

unknowing, that plea counsel was ineffective in failing to conduct an

independent investigation, and charging prosecutorial misconduct.          The

court appointed Attorney Gregory Neugebauer as PCRA counsel on October

11, 2012. No amended PCRA petition was filed.        Following an evidentiary

hearing, the PCRA court denied relief on March 22, 2013.            The court

concluded that Appellant understood the nature of the charges to which he

pled guilty and agreed to the negotiated plea and sentence, and that the

plea was neither involuntary nor unknowing.         The court also found no




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evidence of any failure on the part of plea counsel to conduct a reasonable

investigation of the facts or potential defenses or prosecutorial misconduct.

       Appellant filed a pro se notice of appeal to this Court and was directed

to file a Pa.R.A.P. 1925(b) statement. We determined that the appeal was

untimely and quashed it on August 30, 2013. One year later, on August 21,

2014, Appellant filed a second PCRA petition seeking nunc pro tunc

restoration of his PCRA appeal rights, which he maintained were lost due to

abandonment of counsel. There being no objection by the Commonwealth,

the court reinstated Appellant’s right to pursue his appeal of the denial of his

first PCRA petition within thirty days and appointed new counsel.1

____________________________________________


1
  Appellant’s second PCRA petition was facially untimely. However, since the
Commonwealth did not object to the PCRA court’s lack of jurisdiction, there
was no factual inquiry into Appellant’s ability to meet the timeliness
exception for facts “unknown to the petitioner” and that “could not have
been ascertained by the exercise of due diligence,” and the record is
undeveloped on this issue. 42 Pa.C.S. § 9545(b)(1)(ii). In Commonwealth
v. Bennett, 930 A.2d 1264 (Pa. 2007), our High Court vacated this Court’s
order, which quashed petitioner’s reinstated nunc pro tunc PCRA appellate
rights based on an untimely second petition, and remanded for an
evidentiary hearing to determine whether petitioner could prove the factual
predicate to surmount the time-bar. We do not believe remand is necessary
to determine whether Appellant can meet the timeliness exception as we
view the Commonwealth’s acquiescence in his abandonment claim to be
tantamount to a stipulation.        Similar reasoning was espoused by our
Supreme Court in Commonwealth v. Walter, 119 A.3d 255, 260 n.5 (Pa.
2015). Therein, the Court relied upon the Commonwealth’s stipulation that
appellant was abandoned by counsel, which was not appealed, to support a
judicial finding of deprivation of a right to appellate counsel “so severe as to
be tantamount to a complete denial of counsel” that necessitated
reinstatement of appellate rights nunc pro tunc. Furthermore, our High
(Footnote Continued Next Page)


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      Newly-appointed counsel timely appealed, and after an extension to

permit transcription of the record, complied with the court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The

court penned its Rule 1925(a) opinion and this matter is ready for our

review. Appellant raises four issues for our review:

      I.     Whether the trial court erred by denying [Appellant’s]
             post-conviction relief act petition when trial counsel was
             ineffective for failing to investigate possible defenses, e.g.,
             the “Castle Doctrine” (18 Pa.C.S. § 505), and failing to
             advise the Appellant of those defenses?

      II.    Whether the trial court erred by denying [Appellant’s]
             post-conviction relief act petition when Appellant’s guilty
             plea was unlawfully induced thus entitling him to relief
             under the Post-Conviction Relief Act pursuant to 42 Pa.C.S.
             § 9543(a)(2)(ii)?

      III.   Whether the trial court erred by denying [Appellant’s]
             post-conviction relief act petition when trial counsel was
             ineffective for failing to adequately advise the Appellant of
             the nature and effect of Appellant’s guilty plea, thus
             rendering Appellant’s guilty plea involuntary?

                       _______________________
(Footnote Continued)

Court reasoned that the PCRA court’s order became final thirty days later, no
appeal by the Commonwealth having been filed, and that it did not have
jurisdiction to “tinker with that final judgment.”      Id. at 1162.      See
Commonwealth v. Robinson, 834 A.2d 1157 (Pa. 2003) (a PCRA court’s
order granting relief, left unchallenged, becomes final thirty days after
entry); 42 Pa.C.S. § 5505. The Walter Court reasoned that, otherwise, the
Commonwealth would have “endless opportunities to collaterally attack a
PCRA court's order it declined to appeal, and would provide this Court a right
(and perhaps an obligation) to examine the propriety of already final orders
granting nunc pro tunc relief at all subsequent stages of post-conviction
litigation.” Walter, supra at 260 n.5. Id. We find that rationale applicable
herein.



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      IV.        Whether the Commonwealth displayed prosecutorial
                 vindictiveness, in contravention of the United States and
                 Pennsylvania constitutions, in the circumstances leading to
                 the entry of the guilty plea of Appellant that 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)(i)?

Appellant’s brief at 2.

      In reviewing the PCRA court’s denial of post-conviction relief, we must

determine whether the court’s findings are supported by the record and free

of legal error.         Commonwealth v. Treiber, 2015 Pa. LEXIS 1775, *9-10

(Pa. 2015).        In doing so, we accord great deference to the PCRA court’s

credibility determinations, and where supported by the record, they are

binding on this Court. Id.

      Appellant’s first three claims allege trial counsel ineffectiveness. To be

entitled to relief on such a claim, a PCRA petitioner must establish all three

prongs      of    the    ineffective   assistance   of   counsel   test   enunciated   in

Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987).                       He must

demonstrate: “(1) the underlying claim has arguable merit; (2) no

reasonable basis existed for counsel's action or failure to act; and (3) he

suffered prejudice as a result of counsel's error, with prejudice measured by

whether there is a reasonable probability the result of the proceeding would

have been different.” Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.

2011).      We start from the presumption that counsel rendered effective

assistance. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).

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       Ineffective assistance of counsel claims that are founded on the plea-

bargaining process are eligible for review under the PCRA. Commonwealth

ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001). However, where

the underlying ineffectiveness implicates a guilty plea, such a claim will

provide relief only “if the ineffectiveness caused an involuntary or unknowing

plea.” Commonwealth v. Diaz, 913 A.2d 871, 872 (Pa.Super. 2006). This

Court held in Diaz that this test is analogous to “the ‘manifest injustice’

standard applicable to all post-sentence attempts to withdraw a guilty plea.”

Id.

       First, Appellant contends that trial counsel George Bills was ineffective

for failing to investigate and pursue the defense of self-defense based on the

Castle Doctrine, which became effective on August 26, 2011. 18 Pa.C.S. §

505.    Plea counsel testified at the evidentiary hearing that he advised

Appellant after the plea that if he was looking for PCRA issues, he could

consider counsel’s failure to raise self-defense, and specifically, the Castle

Doctrine.   Attorney Bills acknowledged that the defense, if founded, may

have absolved Appellant of criminal liability. However, he maintained that

the Doctrine had only become fashionable after this case and that he did not

believe it would have applied on the facts.     Trial counsel testified that he

viewed the case as one of imperfect self-defense rather than self-defense.

       In support of his ineffectiveness claim, Appellant relies upon trial

counsel’s identification of facts that tended to support self-defense. Counsel

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pointed to the fact that that Appellant knew the victim and, on prior

occasions, the victim carried a gun. Counsel speculated that such evidence

may have supported a reasonable belief on Appellant’s part that the victim

was carrying a gun on the night in question.        There was evidence that

Appellant told the victim to leave and fired a warning shot into the air, but

the victim did not comply. Finally, there was a physical altercation prior to

the shooting.   Thus, Appellant contends, the defense of self-defense had

arguable merit, counsel had no reasonable basis for not pursuing it, and the

outcome could have been different if Appellant had opted to proceed to trial

rather than accept a plea.

      The Commonwealth counters that counsel’s failure to pursue self-

defense was not raised in the PCRA petition nor identified as a basis for

counsel’s ineffectiveness at the commencement of the evidentiary hearing.

Hence, it is waived. If not found to be waived, the Commonwealth argues

that Appellant failed to prove that the issue meets the arguable merit prong

of the Strickland ineffectiveness test as the facts do not support self-

defense. The Commonwealth maintains that the facts proffered at the plea

and sentencing hearing, which were stipulated by the defense to be true,

established that Appellant was the aggressor, he approached the victim’s

vehicle on a public road, and he initiated both the verbal and physical

altercation. Thus, Appellant had a duty to retreat. Instead, Appellant fired

two shots, one of which fatally struck the victim in the chest.

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      We find that the self-defense issue is waived since it was not raised in

the PCRA petition or identified at the PCRA hearing.       Even if it was not

waived, however, Appellant’s self-defense claim lacked arguable merit. 42

Pa.C.S. § 9543(a)(2).    Title 18 Pa.C.S. § 505, is entitled “Use of force in

self-protection.” It provides in pertinent part that the use of deadly force is

not justifiable unless an actor believes deadly force is “necessary to protect

himself against death, serious bodily injury, kidnapping or sexual intercourse

compelled by force or threat[,]” and the actor did not provoke the use of

force against him “with the intent of causing death or serious bodily injury.”

The record is devoid of any evidence that the victim was the aggressor or

that Appellant was protecting himself from serious bodily injury or death. In

fact, the victim did not employ force except when provoked by Appellant and

his brother’s use of force, and then only a punch. In these circumstances,

the record does not support a finding that Appellant believed, correctly or

mistakenly, that such force was “necessary to protect himself against death,

serious bodily injury, kidnapping or sexual intercourse compelled by force or

threat.” Id. at 505(b)(2).

      Furthermore, it is of no consequence that trial counsel did not consider

the Castle Doctrine as it was not applicable on the facts herein.          The

Doctrine, codified in the self-defense statute, provides that deadly force is

justified and that one need not retreat even if he can do so safely if he is in

his dwelling or place of work and he was not the initial aggressor. Id. at

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505(b)(2)(ii).    By all accounts, Appellant was the aggressor.       Even if the

victim had been the aggressor and presented a threat of serious bodily

injury, Appellant was obliged to avoid the use of deadly force by retreating if

he could do so safely since he was not in his home or workplace.2 Id. at §

505(b)(2)(ii).

       Thus, the facts do not support the defense of self-defense, the Castle

Doctrine notwithstanding. Trial counsel considered the possible defense of

imperfect self-defense, but was not optimistic that it could be successfully

employed. He explained further that he entertained a plea bargain because

there was other evidence that undermined self-defense and raised the

specter of a first-degree murder conviction. First, Appellant and his brother

fled to New York after the shooting and were apprehended with a gun in the

car.   Secondly, the Commonwealth possessed recordings of Appellant’s

telephone calls from the jail in which he attempted to influence witnesses

not to testify against him.        Third, Appellant’s brother was going to testify

that he told Appellant not to shoot the victim and report inculpatory

statements made by Appellant.             In light of that evidence, trial counsel

recommended the negotiated plea rather than trial.


____________________________________________


2
  As the Commonwealth points out, Appellant also cannot claim that he had
no duty to retreat from the street based upon 18 Pa.C.S. § 505(b)(2.3),
because he possessed a firearm illegally.



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      Thus, trial counsel was not ineffective in failing to pursue a defense

that lacked merit.   Furthermore, given the fact that there were numerous

eyewitnesses    to   the   shooting,    considerable   evidence   of   Appellant’s

consciousness of guilt, and concern that Appellant’s brother would reveal

Appellant’s inculpatory statements, trial counsel had a reasonable basis for

recommending the plea bargain in lieu of trial. Appellant has not met the

first and second prongs of the ineffectiveness test and this claim fails.

      Next, Appellant contends that he only accepted the plea because trial

counsel promised that he would file a post-sentence motion in three to six

months and get the sentence reduced. He testified that counsel did not do

what he promised and that he accepted the plea in reliance upon counsel’s

promise. Appellant also maintained that counsel did not explain or read to

him the written colloquy but merely directed him to initial and sign it. He

testified that he did not understand the court’s oral questions regarding the

plea, but that counsel had directed him prior to the hearing to answer the

court’s questions in the affirmative.

      Generally, once a defendant enters a plea of guilty, it is presumed that

he understood what he was doing and it is his burden to prove otherwise.

Commonwealth v. Moser, 921 A.2d 526, 529 (Pa.Super. 2007).                  When

there are allegations of ineffectiveness of counsel in connection with a guilty

plea, the defendant can prevail only if he can prove that counsel’s




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ineffectiveness caused him to enter an involuntary or unknowing plea.

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

      At the plea hearing, the trial court conducted a thorough oral colloquy

on the record. See Commonwealth v. Mallory, 941 A.2d 686, 697 (Pa.

2008) (recognizing that an on-the–record colloquy is a useful procedural

tool whenever the waiver of any significant right is at issue, constitutional or

otherwise, e.g., waiver of a trial).         At that time, Appellant denied that

anyone had promised him anything better or hinted at more favorable

treatment.    Critically, trial counsel denied that he ever promised Appellant

that he would file a futile post-sentence motion and the PCRA court credited

that testimony. We must defer to the PCRA court’s credibility determination

where,   as    here,   there   is   record    support   for   that   determination.

Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). This claim fails for

lack of arguable merit.

      In a related argument, Appellant maintains that trial counsel did not

inform him of the finality of his guilty plea, and thus his plea was

involuntary. He claims that counsel did not go over the plea and colloquy

documents with him and that he did not understand the court’s oral

colloquy. Attorney Bills presented contrary testimony. Counsel stated that

he read and explained the written plea and colloquy to Appellant.               He

instructed Appellant to listen to the court’s questions and answer them




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truthfully.   It was his belief that Appellant understood what he was doing

when he entered the plea.

      The PCRA court found, based on the written colloquy and the transcript

of the oral colloquy, that Appellant understood the nature of the charges to

which he was pleading guilty; understood that he had a right to a jury trial;

was aware of the maximum penalties; and agreed to the terms of the

negotiated plea. Trial Court Opinion, 3/25/13, at unnumbered 3. We have

no basis to disturb that finding.    Appellant’s final claim of prosecutorial

vindictiveness is wholly without support in the record and has been

abandoned on appeal.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2015




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