J-S32041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                   Appellee                 :
                                            :
             v.                             :
                                            :
GLENN PINER,                                :
                                            :
                   Appellant                :           No. 87 WDA 2015

          Appeal from the PCRA Order entered on December 12, 2014
                 in the Court of Common Pleas of Blair County,
             Criminal Division, No(s): CP-07-CR-0000125-2012;
             CP-07-CR-0000162-2012; CP-07-CR-0000164-2012;
                           CP-07-CR-0000679-2012

BEFORE: SHOGAN, OLSON and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED JULY 07, 2015

        Glenn Piner (“Piner”) appeals from the Order denying his Petition for

relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its December 12, 2014 Opinion, the PCRA court set forth a

comprehensive summary of the history underlying the instant appeal, which

we incorporate herein by reference. See PCRA Court Opinion, 12/12/14, at

1-10 (unnumbered).

        On appeal, Piner presents the following issues for our review:

        A. Whether the PCRA [c]ourt erred/abused its discretion by
           failing to find [that] the trial court erred by refusing to
           appoint new defense counsel for [Piner], as the record
           demonstrates [that Piner] repeatedly requested new counsel
           because of his counsel’s ineffectiveness?



1
    42 Pa.C.S.A. §§ 9541-9546.
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      B. Whether the       PCRA [c]ourt erred/abused its discretion by
         failing to find   [Piner’s] prior counsel ineffective for falling to
         send [Piner]       the discovery in his case, as the record
         demonstrates      [that] the failure hampered his defense?

      C. Whether the PCRA [c]ourt erred/abused its discretion by
         failing to find [Piner’s] prior counsel ineffective because she
         did not adequately review the discovery?

      D. Whether the PCRA [c]ourt erred/abused its discretion by
         failing to find [Piner’s] prior counsel ineffective for failing to
         file any motions in the case, as the record demonstrates
         [that] there were potential motions that would have been
         meritorious and potentially changed the outcome of the case,
         had they been filed?

      E. Whether the PCRA [c]ourt erred/abused its discretion by
         failing to find [Piner’s] prior counsel ineffective for failing to
         timely communicate plea offers[,] or miscommunicate plea
         offers to [Piner], as the record demonstrates [that] such
         failure prejudiced [Piner]?

      F. Whether the PCRA [c]ourt erred/abused its discretion by
         failing to find [Piner’s] prior counsel ineffective for failing to
         withdraw [Piner’s] guilty plea, as the record demonstrates
         [that Piner] indicated it was his desire to do so?

      G. Whether the PCRA [c]ourt erred/abused its discretion by
         failing to find [Piner’s] prior counsel ineffective for failing to
         consult with [Piner] regarding an appeal[,] or file what would
         have been a meritorious direct appeal, as the record indicates
         … [that] he wished to appeal?

      H. Whether the PCRA [c]ourt erred/abused its discretion by
         failing to find [Piner’s] prior counsel ineffective for her alcohol
         use during her representation of [Piner], as the record
         demonstrates her intoxication at several of [Piner’s] hearings?

      I. Whether the PCRA [c]ourt erred/abused its discretion by
         failing to find that [Piner] entered an involuntary plea due to
         his counsel’s ineffectiveness and the court’s failure to appoint
         new counsel?

Brief for Appellant at 4-5.


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      Piner’s first three claims are related, so we will address them together.

Piner claims that his trial/plea counsel, Tami Fees, Esquire (“Attorney Fees”),

rendered constitutionally deficient representation.   First, Piner argues that

the trial court improperly refused to replace Attorney Fees, as Piner had

expressed his dissatisfaction with her representation to the trial court. Id.

at 10, 12. Piner points out that Attorney Fees was, at one point during her

representation, suspended from the practice of law. Id. Piner asserts that

Attorney Fees visited him in jail on only two occasions, and did not provide

him with updates on his case. Id.

      In his appellate brief, Piner combines his second and third issues. In

his second issue, Piner argues that Attorney Fees’s failure to send him copies

of the discovery received from the Commonwealth hampered his ability to

assist in his own defense.    Id. at 13.   Piner asserts that he reviewed the

Commonwealth’s discovery on only one occasion, at the office of the

prosecutor.   Id.   According to Piner, during Attorney Fees’s jail visits, she

failed to bring documentation to the meeting and did not have command of

the facts of the case. Id. Instead, Piner asserts, Attorney Fees “only tried

to talk [] Piner into taking a plea and possible sentences.” Id. Piner asserts

that, by failing to adequately review discovery, and depriving him of the

opportunity to review the discovery, she caused prejudice to Piner. Id. at

14. Piner further argues that Attorney Fees rendered ineffective assistance

by not adequately reviewing the discovery materials. Id. at 13.



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             “As a general proposition, an appellate court reviews the
      PCRA court’s findings to see if they are supported by the record
      and free from legal error.” Commonwealth v. Reyes, 582 Pa.
      317, 870 A.2d 888, 893 n. 2 (Pa. 2005). This Court’s scope of
      review is limited to the findings of the PCRA court and the
      evidence on the record of the PCRA court’s hearing, viewed in
      the light most favorable to the prevailing party, in this case, the
      Commonwealth. See, e.g., Commonwealth v. Duffey, 585
      Pa. 493, 889 A.2d 56, 61 (Pa. 2005); Commonwealth v.
      Meadius, 582 Pa. 174, 870 A.2d 802 (Pa. 2005). In addition,
      “[t]he level of deference to the hearing judge may vary
      depending upon whether the decision involved matters of
      credibility or matters of applying the governing law to the facts
      as so determined.” Commonwealth v. Reaves, 592 Pa. 134,
      923 A.2d 1119, 1124 (Pa. 2007) (citations omitted).

Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008).

      To be eligible for relief based on a claim of ineffective assistance of

counsel, a PCRA petitioner must demonstrate, by a preponderance of the

evidence, that (1) the underlying claim is of arguable merit; (2) no

reasonable basis existed for counsel’s action or omission; and (3) there is a

reasonable probability that the result of the proceeding would have been

different absent such error. Commonwealth v. Steele, 961 A.2d 786, 796

(Pa. 2008). With regard to the second, i.e., the “reasonable basis” prong,

this Court will conclude that counsel’s chosen strategy lacked a reasonable

basis only if the appellant proves that “an alternative not chosen offered a

potential for success substantially greater than the course actually pursued.”

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation

omitted).   To establish the third prong, i.e., prejudice, the appellant must

show that there is a reasonable probability that the outcome of the



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proceedings would have been different but for counsel’s action or inaction.

Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).

      In its Opinion, the PCRA court addressed Piner’s claims of ineffective

assistance by Attorney Fees, and concluded that they lack merit.            PCRA

Court Opinion, 12/12/14, at 10 (unnumbered) (discussing Piner’s issue

related to the suspension of Attorney Fees for failing to comply with

continuing legal education requirements), 11 (determining that Piner’s

discovery issues lack merit). The findings of the PCRA court are supported

by the evidence of record, and its legal conclusions are sound. Accordingly

we affirm on the basis of the PCRA court’s Opinion with regard to these

claims. See id.

      In his fourth issue, Piner claims that Attorney Fees rendered ineffective

assistance by failing to file a motion to suppress evidence.2           Brief for

Appellant at 14. Piner asserts that he had requested that Attorney Fees file

a suppression motion to challenge the wiretap evidence against him. Id.

      In its Opinion, the PCRA court addressed this claim, and concluded

that it lacks merit.   PCRA Court Opinion, 12/12/14, at 12 (unnumbered).




2
  In his appellate brief, Piner also asserts that his counsel rendered
ineffective assistance by failing to file a motion to sever his trial from that of
his co-defendants. Piner provides no supporting argument or citation to
pertinent legal authority. Accordingly, this claim is waived. See Pa.R.A.P.
2119 (requiring an appellant to support his or her argument with pertinent
analysis, including citation to and discussion of relevant authority and facts
of record).



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We agree with the reasoning of the PCRA Court, and affirm on the basis of

its Opinion. See id.

      In his fifth issue, Piner claims that Attorney Fees rendered ineffective

assistance by failing to communicate plea offers from the Commonwealth,

on a timely basis.     Brief for Appellant at 15.   Piner further claims that

Attorney Fees miscommunicated the plea offers.       Id.   According to Piner,

Attorney Fees “mistakenly led him to believe it would be to one count,

whereas he ended up pleading to eleven.”        Id. at 16.    However, Piner

appears to concede that he “may have (eventually) received all plea

offers[.]”   Id.   Piner asserts that the failure to timely communicate plea

offers resulted in prejudice, “because he was essentially forced into taking a

plea at a later stage, without proper consideration beforehand.” Id.

      In its Opinion, the PCRA court states that Piner failed to produce

evidence suggesting that there were plea offers that were not communicated

to him. PCRA Court Opinion, 12/12/14, at 12 (unnumbered). The testimony

of Attorney Fees at the PCRA hearing supports the PCRA court’s finding.

When asked how much time would have elapsed between her receipt of a

plea offer and her communication of that offer to Piner, Attorney Fees stated

the following:

      It would have been that same day because I would have been
      over here speaking with the Commonwealth [sic] would be up in
      the District Attorney’s Office and [] Piner would have been
      brought over. They would have provided me with an offer at
      that time[,] and I spoke to [] Piner and it was agreed upon that
      it would be accepted.


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N.T., 9/5/14, at 40.    Attorney Fees further testified that whenever she

received a plea offer from the Commonwealth, she communicated that offer

to Piner. Id. Finally, Attorney Fees testified that she did not misrepresent a

plea offer to Piner. Id. at 41-42 (wherein Attorney Fees stated that, while

she discussed with the Commonwealth what the actual plea was going to be,

and to what charges, the offer never changed with regard to the prison

term).

      Because the record supports the PCRA court’s findings, as summarized

above, and the PCRA court’s legal conclusions are sound, we adopt the

reasoning of the PCRA, and affirm on the basis of the PCRA court’s Opinion

with regard to this claim.      PCRA Court Opinion, 12/12/14, at 12-13

(unnumbered).

      In his sixth issue, Piner argues that Attorney Fees rendered ineffective

assistance by misinforming him that he was RRRI-eligible.            Brief for

Appellant at 17.    Piner directs our attention to his testimony that Attorney

Fees had represented to him that he was RRRI eligible.       Id. at 18.   Piner

asserts that “he was basically forced into accepting the plea offer, as he felt

his counsel was not prepared for trial.” Id. Piner further points out that he

had directed Attorney Fees to inquire as to why he was not eligible for RRRI,

but she failed to reply. Id.

      In its Opinion the PCRA court found no merit to Piner’s claim.

Specifically, the PCRA court found that “Piner was advised multiple times


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from multiple sources prior to pleading guilty that he was not RRRI

[e]ligible.” PCRA Court Opinion, 12/12/14, at 13 (unnumbered). The record

supports this finding by the PCRA court. See N.T., 9/5/14, at 42 (wherein

Attorney Fees testified that Piner’s ineligibility for RRRI was brought to

everyone’s attention, “at least in written form[,] in January of 2013.”).

Accordingly, we cannot grant Piner relief on this claim.

      In his seventh and eighth issues, Piner claims that Attorney Fees

rendered ineffective assistance by failing to file a petition to withdraw his

guilty plea. Brief for Appellant at 18. Directing our attention to this Court’s

holding in Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001),

Piner asserts that

      counsel has a constitutionally-imposed duty to consult with the
      defendant about an appeal when there is reason to think either
      (1) that a rational defendant would want to appeal … , or (2)
      that this particular defendant reasonably demonstrated to
      counsel that he was interested in appealing…

Id. at 1254.         Piner contends that, “because of [] Piner’s evident

dissatisfaction, Attorney Fees had a reason to inquire with [] Piner regarding

an appeal or the withdrawal of his plea.” Brief for Appellant at 19. Piner

acknowledges that “[w]hile [he] did not communicate specifically his desire

to appeal or withdraw his plea, this was only because he felt [that Attorney

Fees] did not do anything for him presentencing.” Id.

      In its Opinion, the PCRA court addressed these claims and found them

to   be   without    merit.   PCRA   Court   Opinion,      12/12/14,   at   13-14



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(unnumbered).     As there is support in the record for the PCRA’s findings,

and its legal conclusions are sound, we affirm on the basis of the PCRA

court’s Opinion with regard to these claims. See id.; see also N.T., 9/5/14,

at 43-44 (wherein Attorney Fees testified that she was not asked to file a

motion to withdraw Piner’s guilty plea or a direct appeal, and that there was

nothing at the plea hearing or sentencing that would have led her to believe

that she should file either a motion to withdraw the plea or an appeal).

      In his ninth issue, Piner argues that Attorney Fees’s intoxication and/or

alcohol use established ineffective assistance of counsel. Brief for Appellant

at 20.   Piner directs our attention to testimony that Attorney Fees had an

odor of alcohol on several occasions. Id.

      In its Opinion, the PCRA court addressed this claim and concluded that

it lacks merit.    PCRA Court Opinion, 12/12/14, at 15 (unnumbered).

Because the PCRA court’s findings are supported in the record, and we

discern no abuse of discretion, we affirm on the basis of the PCRA court’s

Opinion with regard to this claim. See id.

      In his final claim, Piner merely restates his ineffectiveness claims.

Brief for Appellant at 21.    In support, Piner states that Attorney Fees’s

“errors are evident throughout the course of her representation of [] Piner.”

Id. at 22.




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      As we have concluded that the PCRA court’s rejection of Piner’s

ineffectiveness claims is supported by evidence of record, and its legal

conclusions are sound, there is no merit to Piner’s last, general claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2015




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