J. S55040/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
EDWARD WILLIAM PETTERSEN, JR.,          :          No. 710 EDA 2018
                                        :
                        Appellant       :


                Appeal from the PCRA Order, February 7, 2018,
                 in the Court of Common Pleas of Pike County
               Criminal Division at No. CP-52-CR-0000425-2009


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 11, 2019

      Edward William Pettersen, Jr., appeals from the February 7, 2018

order entered by the Court of Common Pleas of Pike County denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      The PCRA court provided the following synopsis of the pertinent

procedural history:

            Appellant was convicted of three (3) counts of
            Aggravated Assault (F-1), Burglary (F-1), Criminal
            Trespass (F-2), three (3) counts of Simple Assault
            (M-2), and Reckless[ly] Endangering Another
            Person[1] following a jury trial held in May of 2011.
            Appellant was subsequently sentenced on July 7,
            2011. Appellant was sentenced to an aggregate
            period of incarceration of not less than 21½ years

1  18 Pa.C.S.A. §§ 2702(a), 3502(a), 3503(a), 2701(a), and 2705,
respectively.
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           nor more than 70 years in a State Correctional
           Facility.

           After [a]ppellant’s appeal of the July 7, 2011
           Sentencing Order to the Pennsylvania Superior
           Court, said Court issued an Order dated July 16,
           2012 affirming [the trial court’s judgment of
           sentence.[2] Pertinent to the procedural history of
           this matter, the Superior Court issued another Order
           dated June 27, 2016 remanding this matter to the
           [PCRA]    court    on    [a]ppellant’s  claims   for
           post-conviction relief and directed that the [PCRA]
           court appoint counsel for [a]ppellant and to hold a
           new hearing on his post-conviction claims.[3]

           [The PCRA court] appointed James P. Baron, Esquire
           to represent [a]ppellant with regard to his
           post-conviction claims.    Attorney Baron filed an
           Amended Petition for Post-Conviction Relief on
           June 7, 2017.     [The PCRA court] held a PCRA
           evidentiary hearing on October 6, 2017. [The PCRA
           court] denied [a]ppellant’s PCRA Petition by Order
           dated February 7, 2018, and this appeal followed.

           On March 8, 2018, [the PCRA court] ordered that
           [appellant] file a Concise Statement of Matters
           Complained      of  on     Appeal   [pursuant     to
           Pa.R.A.P. 1925(b)] within twenty-one (21) days from
           the date of the Order. Appellant filed a Concise
           Statement of Matters Complained of on Appeal on
           March 29, 2018.

PCRA court opinion, 5/2/18 at 1-2. The PCRA court filed an opinion pursuant

to Pa.R.A.P. 1925(a) on May 2, 2018.

     Appellant raises the following issues for our review:


2Commonwealth v. Pettersen, 49 A.3d 903 (Pa.Super. 2012), appeal
denied, 63 A.3d 776 (Pa. 2013).

3  Commonwealth v. Pettersen, 153 A.3d 1119 (Pa.Super. 2016)
(unpublished memorandum).


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            1.     Whether the PCRA court erred in failing to find
                   trial counsel ineffective for failing to file
                   pre-trial motions regarding the search of
                   [appellant’s] vehicle and cellular phone?

            2.     Whether the PCRA court erred in failing to find
                   trial counsel ineffective for failing to convey
                   and discuss plea offers to [appellant]?

            3.     Whether the PCRA court erred in failing to find
                   trial counsel ineffective for failing to discuss or
                   seek the consent of [appellant] before filing
                   trial continuances[?]

Appellant’s brief at 14 (full capitalization omitted).

            We begin by noting the following standard of review,
            guiding our consideration of this appeal. “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.” Commonwealth v. Calhoun, 52
            A.3d 281, 284 (Pa.Super. 2012) (citation omitted).
            “The PCRA court’s findings will not be disturbed
            unless there is no support for the findings in the
            certified record.” Commonwealth v. Garcia, 23
            A.3d 1059, 1061 (Pa.Super. 2011) (internal
            quotation marks and citation omitted), appeal
            denied, [] 38 A.3d 823 ([Pa.] 2012). “The PCRA
            court's factual determinations are entitled to
            deference, but its legal determinations are subject to
            our plenary review.” Commonwealth v. Johnson,
            [] 966 A.2d 523, 532 ([Pa.] 2009) (internal
            quotation marks and citations omitted).

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012), appeal

denied, 72 A.3d 602 (Pa. 2013).

      In all three issues raised on appeal, appellant alleges separate

allegations of ineffective assistance on the part of his trial counsel,

Thomas Mincer, Esq.


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           The governing legal standard of review of ineffective
           assistance of counsel claims is well-settled:

                [C]ounsel 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.
                Strickland v. Washington, 466 U.S.
                668, [] (1984). This Court has described
                the Strickland standard as tripartite by
                dividing the performance element into
                two          distinct         components.
                Commonwealth v. Pierce, [] 527 A.2d
                973, 975 ([Pa.] 1987). Accordingly, to
                prove counsel ineffective, the petitioner
                must     demonstrate     that   (1)     the
                underlying legal issue has arguable
                merit; (2) counsel's actions lacked an
                objective reasonable basis; and (3) the
                petitioner was prejudiced by counsel's
                act or omission.       Id.    A claim of
                ineffectiveness will be denied if the
                petitioner's evidence fails to satisfy any
                one of these prongs.

           Commonwealth v. Busanet, [] 54 A.3d 34 [35],
           45 ([Pa.] 2012) (citations formatted). Furthermore,
           “[i]n accord with these well-established criteria for
           review, [an appellant] must set forth and individually
           discuss substantively each prong of the Pierce test.”
           Commonwealth v. Fitzgerald, 979 A.2d 908, 910
           (Pa.Super. 2009).

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa.Super. 2016), quoting

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),

order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

     In his first issue on appeal, appellant avers that Attorney Mincer was

ineffective for failing to file a pretrial omnibus suppression motion to



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suppress a New Jersey speeding ticket that appellant contends was

recovered from his vehicle, which police allegedly searched without a search

warrant and the contents of appellant’s cell phone, which appellant argues

were obtained without a search warrant. (Appellant’s brief at 23.) Appellant

further alleges that the Commonwealth then used the evidence improperly

seized to establish a timeline at trial of appellant’s whereabouts at the

approximate time of his crimes. (Id.)

      Appellant provides very little discussion as to the arguable merit of his

claim; rather, appellant baldly asserts that the “evidence obtained from

[appellant’s] vehicle and cellular phone was obtained without first obtaining

a search warrant, in violation of [appellant’s] Constitutional guarantees as

set forth in the Pennsylvania Constitution.”      (Id. at 24-25.)      Appellant

provides no facts as to the nature of the search of appellant’s vehicle and no

argument as to whether any exceptions to the warrant requirement did or

did not apply.      Moreover, the PCRA court noted that Attorney Mincer

“specifically testified that he discussed the possibility of pre-trial motions

with [a]ppellant and that [a]ppellant did not wish to file any.” (PCRA court

opinion, 5/2/18 at 4.) Throughout its Rule 1925(a) opinion, the PCRA court

notes multiple times that it found Attorney Mincer’s testimony to be credible.

(See id. at 6-7.)

      Accordingly, we find that the PCRA court’s findings are supported by

the record. Therefore, appellant’s first issue lacks arguable merit.



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      In his second issue on appeal, appellant contends that Attorney Mincer

rendered ineffective assistance because he failed to convey and discuss plea

offers with appellant.   (Appellant’s brief at 28-29.)   In the context of plea

offers, in order to be entitled to relief for ineffective assistance of counsel, a

petitioner must establish that “(1) an offer for a plea was made; (2) trial

counsel failed to inform him of such offer; (3) trial counsel had no

reasonable basis for failing to inform him of the plea offer; and (4) he was

prejudiced thereby.”     Commonwealth v. Chazin, 873 A.2d 732, 735

(Pa.Super. 2005), appeal denied, 887 A.2d 1239 (Pa. 2005), quoting

Commonwealth v. Copeland, 554 A.2d 54, 61 (Pa.Super. 1988), appeal

denied, 565 A.2d 1165 (Pa. 1989).

      Here, the PCRA court noted that Attorney Mincer testified as follows:

            I did discuss with [appellant’s] parents and
            [appellant] — [appellant] specifically whether he
            would accept any type of plea. I discussed potential
            pleas that I thought we could try to get through.
            However, the [Commonwealth] would not discuss a
            specific plea with me unless [appellant] would agree
            that he would take a plea. [Appellant] told me all
            the way through the process that he would not take
            a plea.

PCRA court opinion, 5/2/18 at 5, quoting notes of testimony, 10/6/17 at

13-14. The PCRA court further noted that Attorney Mincer had encouraged

appellant to authorize plea negotiations with the Commonwealth and that

appellant elected not to authorize such negotiations. (PCRA court opinion,

5/2/18 at 6.)



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      The PCRA court also specifically found Attorney Mincer’s testimony to

be credible.     (Id.)   The record before us contains ample basis for such a

determination.      Accordingly, we find that the PCRA court’s findings are

supported by the record and are free of legal error. Therefore, appellant’s

second issue is without merit.

      In his third and final issue on appeal, appellant contends that the PCRA

court erred when it did not find Attorney Mincer to be ineffective for failing to

discuss or seek the consent of appellant before filing trial continuances.

(Appellant’s    brief    at   29-32.)   Appellant    further   argues   that   these

continuances violated his right to a speedy trial. (Id. at 30.)

      As noted above, in order to obtain relief under the PCRA for ineffective

assistance of counsel, a petitioner must plead and prove that counsel lacked

a reasonable basis for his or her action or inaction.

               “Relating to the reasonable basis prong, [g]enerally,
               where matters of strategy and tactics are concerned,
               counsel's assistance is deemed constitutionally
               effective if he chose a particular course that had
               some reasonable basis designed to effectuate his
               client's interests.” Commonwealth v. Koehler, [],
               36 A.3d 121, 132 ([Pa.] 2012) (quotations and
               citation omitted). “Courts should not deem counsel’s
               strategy or tactic unreasonable unless it can be
               concluded that an alternative not chosen offered a
               potential for success substantially greater than the
               course actually pursued.”     Id.    (quotations and
               citation omitted).

Commonwealth v. Durrett King,                 A.3d     , 2018 WL 4102591 at *2

(Pa.Super. 2018).



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         Here, the PCRA court determined that Attorney Mincer had a

reasonable     basis   for    filing    continuances       in     this   case,   summarizing

Attorney Mincer’s testimony as follows:

              [Attorney Mincer] testified that some of the first
              continuances he requested would have been very
              early in the case, and neither the Commonwealth nor
              [appellant] would have been ready to proceed to
              trial.    [(Notes of testimony, 10/6/17 at 26.)]
              Furthermore, [Attorney Mincer] was waiting to
              proceed to trial upon receipt of DNA results as he
              was hoping for the results to show third-party DNA
              . . . which would exonerate [a]ppellant. [(Id. at
              17.)] Finally, [Attorney Mincer] testified that he
              requested at least one trial continuance due to his
              own illness, which was confirmed by the record
              showing a trial continuance was submitted from the
              March 2011 trial term to the May 2011 trial term.
              [(Id.)]

PCRA court opinion, 5/2/18 at 7.

         Upon our review of the record, we find that there is ample evidence to

provide a basis for the PCRA court’s determination. Accordingly, the PCRA

court’s determinations are supported by the record and are free from legal

error.       Therefore,      because        appellant    failed     to   demonstrate      that

Attorney Mincer’s      decisions       to   request     continuances      did    not   have   a

reasonable basis, his third issue must fail.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/11/19




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