J-S53030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT
                                     :       OF PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 BARRY ROBERT BAKER, JR.             :
                                     :
                   Appellant         :        No. 900 EDA 2019

           Appeal from the PCRA Order Entered March 7, 2019
             In the Court of Common Pleas of Chester County
            Criminal Division at No: CP-15-CR-0000130-2009

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT
                                     :       OF PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 BARRY ROBERT BAKER, JR.             :
                                     :
                   Appellant         :        No. 901 EDA 2019

           Appeal from the PCRA Order Entered March 7, 2019
             In the Court of Common Pleas of Chester County
            Criminal Division at No: CP-15-CR-0002940-2017

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT
                                     :       OF PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
 BARRY ROBERT BAKER, JR.             :
                                     :
                   Appellant         :        No. 902 EDA 2019

           Appeal from the PCRA Order Entered March 7, 2019
             In the Court of Common Pleas of Chester County
            Criminal Division at No: CP-15-CR-0002467-2017


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
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MEMORANDUM BY STABILE, J. :                        FILED DECEMBER 24, 2019

       Appellant, Barry Robert Baker, Jr., appeals from the March 7, 2019 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. We affirm.

       In this collateral proceeding, Appellant claims plea counsel was

ineffective for advising Appellant to plead guilty to flight to avoid apprehension

because the Commonwealth could not have proven all elements of that

offense. The relevant procedural history is as follows.

       On May 17, 2017, Appellant was charged with simple assault,

harassment, and disorderly conduct1 for his unprovoked punching and

mocking of a victim who suffered from cystic fibrosis. Appellant posted bail

and was released, but a bench warrant was issued for his violation of probation

on a prior conviction.        N.T. Guilty Plea, 9/25/17, at 17-18.    Appellant’s

subsequent flight led to a manhunt involving, among others, the United States

Marshals, the Chester County Sheriff Fugitive Task Force, the Delaware State

Police, the     Pennsylvania State        Police, and the West Chester Police

Department.      Id.    Appellant’s ten-day flight took him through “Maryland,

Pennsylvania, and Delaware, driving long hours and camping in the woods,

making sure to keep on the move. He told his girlfriend, Denise Schmidt, that




____________________________________________


1   18 Pa.C.S.A. §§ 2701, 2709, and 5503.

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he was in the mountains in Tennessee, Canada, and various other places.”

Id. at 19.

      Other pertinent facts from the guilty plea hearing are as follows:

            A forensic search of [Appellant’s] cell phone showed that he
      was Googling Florida, Mexico, South Carolina, Kentucky, and
      Virginia. He was continually looking up Greyhound Bus schedules
      and text messaging his friends about finding a place to lay low
      down south. He acknowledged that the District Attorney’s Office
      was seeking one to two years on the assault case, and stated that
      he was not going back to prison, that the cops would never find
      him, that he could go to Canada and wait seven years to come
      back.

            He searched on his cell phone for things like how to change
      your name, how to stop police from pinging your phone, and then
      eventually turned his phone onto airplane mode.            Despite
      numerous pleas from his friends and his fiancée that are visible
      on his cell phone, he did not turn himself in.

            On June 4th of 2017, [Appellant] directed Denise Schmidt to
      obtain a hotel room for them using cash in a different person’s
      name. After obtaining the hotel room his fiancée hid a key near
      the door so [Appellant] would be able to access the room without
      anyone seeing him.

            On June 5th of 2017, members of the United States Marshal’s
      Fugitive Task Force was [sic] finally able to apprehend [Appellant]
      at the Clairton Hotel in Exton, where he was found hiding in the
      bathroom.

Id. at 19-20.   Prior to his flight, Appellant’s attorney advised him, in the

presence of Appellant’s fiancée, that warrants were out for his arrest. Id. at

18. Because of his flight with an outstanding bench warrant against him, the

Commonwealth charged Appellant with flight to avoid apprehension, 18

Pa.C.S.A. § 5126.




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       Appellant pled guilty to the assault and flight to avoid prosecution

charges on September 25, 2017.             On November 29, 2017, the trial court

imposed an aggregate three to six years of incarceration for assault, flight to

avoid prosecution, and violation of probation. Appellant did not file a direct

appeal. On August 10, 2018, Appellant, proceeding pro se, filed a motion to

modify his sentence. The trial court treated the motion as a timely first PCRA

petition and appointed counsel. Counsel filed an amended petition on October

11, 2018. The PCRA court filed a notice of intent to dismiss on February 6,

2019, and entered the order on appeal on March 7, 2019. This timely appeal

followed.2

       Presently, Appellant argues that the PCRA court erred in dismissing his

petition without a hearing because plea counsel was ineffective in advising

him to plead guilty to flight. On review, we must determine whether the facts

support the PCRA court’s order, and whether the PCRA court committed an

error of law. Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

             To be entitled to PCRA relief, a petitioner bears the burden
       of establishing, by a preponderance of the evidence, that his
       conviction or sentence resulted from one or more of the
       circumstances enumerated in 42 Pa.C.S. § 9543(a)(2), which
       include a violation of the Pennsylvania or United States
____________________________________________


2 This matter involves three separate trial court dockets, stemming from the
November 29, 2017 sentencing proceeding at which the trial court imposed
sentence for assault, flight to avoid prosecution, and the prior probation
violation. Appellant filed three separate notices of appeal in accord with our
Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018). We observe that Appellant’s PCRA petition addresses only the flight to
avoid prosecution charge filed at docket number 2940 of 2017.

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      Constitution or ineffectiveness of counsel, any one of which “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) and (ii).

Id. at 617-18. The PCRA court can dismiss a petition without a hearing when

it is “satisfied that there are no genuine issues concerning any material fact

and that the defendant is not entitled to post-conviction collateral relief, and

no purpose would be satisfied by any further proceedings[.]” Pa.R.Crim.P.

907(1).   The decision whether to conduct a hearing rests within the PCRA

court’s discretion. Mason, 130 A.3d at 618.

      To prevail on a claim of ineffective assistance of counsel, a petitioner

must plead and prove that (1) the underlying claim is of arguable merit; (2)

counsel had no reasonable strategic basis for the disputed action or inaction;

and (3) counsel’s error prejudiced the petitioner such that the outcome of the

underlying procedure would have been different but for the error. Id. 618.

“Allegations 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. Hickman, 799

A.2d 136, 141 (Pa. Super. 2002). “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.”   Id.   A petitioner alleging ineffective assistance of plea

counsel satisfies the prejudice probing by demonstrating a reasonable




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probability that the petitioner would not have pled guilty but for counsel’s

error. Id.

       Appellant claims counsel was ineffective because the Commonwealth did

not have sufficient evidence to prove flight to avoid apprehension. Section

5126 applies where the defendant flees knowing that a criminal charge is

pending against him. Appellant posted bail and was at liberty on the assault

charge,3 and he claims the potential probation violation arising from the

assault charge was not a proper basis for charging him with flight under

§ 5106. We begin with the statutory language:

             A person who willfully conceals himself or moves or travels
       within or outside this Commonwealth with the intent to avoid
       apprehension, trial or punishment commits a felony of the third
       degree when the crime which he has been charged with or has
       been convicted of is a felony and commits a misdemeanor of the
       second degree when the crime which he has been charged with or
       has been convicted of is a misdemeanor.

18 Pa.C.S.A. § 5126(a).        By its plain language, § 5126 applies only if the

defendant has been charged with a crime. Commonwealth v. Phillips, 129

A.3d 513, 518 (Pa. Super. 2015). The Phillips Court vacated a conviction

under § 5126 where there was no evidence of a previous charge or conviction.

Id. at 519.



____________________________________________


3  Section 5126(b) provides that no offense occurs where “a person set at
liberty by court order […] fails to appear at the time or place specified in the
order.” 18 Pa.C.S.A. § 5126(b). Appellant posted bail and was at liberty on
the assault charge. The Commonwealth relied on the probation violation, not
the assault charge, as the basis for charging Appellant under § 5126.

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      In Commonwealth v. Steffy, 36 A.3d 1109 (Pa. Super. 2012), police

stopped the defendant for speeding and then learned of his outstanding arrest

warrant for violation of probation.    Police informed the defendant of the

warrant and asked him to get out of his car. The defendant did so, and then

fled when a police officer tried to handcuff him.        Id. at 1110.     The

Commonwealth charged the defendant with a felony violation of § 5126

because the outstanding warrant was for violation of probation on a felony

charge. The defendant challenged the sufficiency of the evidence, claiming

he did not know that the outstanding bench warrant was related to a felony.

Id. at 1111. This Court rejected the defendant’s argument, noting that the

statute does not require knowledge of the grade of offense for which he is

attempting to avoid apprehension.       Id. at 1111-12.     Furthermore, we

concluded that Appellant had imputed knowledge of his underlying felony

conviction and of the conditions of his probation.    Id. at 1112.    Steffy,

establishes that a defendant’s knowledge of an outstanding warrant supports

a conviction under § 5126.

      Appellant, relying upon In re P.S., 158 A.3d 643 (Pa. Super. 2017),

appeal denied, 174 A.3d 1029 (Pa. 2017), claims Steffy is distinguishable

here. In P.S., the juvenile was on the equivalent of probation when police

attempted to stop him while he was driving a stolen vehicle. Appellant fled in

the vehicle instead of pulling over. On those facts, he was found delinquent

under § 5126.    We noted that § 5126 “‘requires that a person has been


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charged with a crime’ at the time he or she flees from law enforcement.” Id.

at 652 (quoting Phillips, 129 A.3d at 518). The P.S. panel concluded as

follows:

             Here, at the time Appellant fled he was on the juvenile
      equivalency of probation. However, he had not been charged with
      a crime nor adjudicated delinquent and awaiting sentencing. The
      plain language of the statute says nothing about fleeing to avoid
      apprehension for potential probation violations. Hence, there was
      insufficient evidence to support Appellant’s adjudication of
      delinquency for flight to avoid apprehension and we vacate that
      adjudication.

Id. at 652. In other words, Appellant’s flight from police in a stolen vehicle

created the potential for a probation violation, but no such violation was

pending as of Appellant’s flight.

      P.S. is easily distinguishable from this case because a bench warrant for

violation of his probation was pending against Appellant before he fled. As

explained above, defense counsel notified Appellant of the pending bench

warrant prior to Appellant’s flight.     A search of Appellant’s cell phone

established that he was aware of the pending charge and hoped to avoid

apprehension.   Furthermore, Steffy teaches that a defendant has imputed

knowledge of his prior conviction and the terms of his probation. Pursuant to

Phillips and Steffy, the bench warrant for Appellant’s probation violation,

and his knowledge thereof, was sufficient to support a conviction under

§ 5126.    As a result, there is no arguable merit to the issue underlying

Appellant’s ineffective assistance of counsel claim and the claim fails.    We

discern no error in the order dismissing Appellant’s petition without a hearing.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/19




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