J-S58029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

LEON CHARLES TADYCH,

                            Appellant               No. 90 MDA 2015


                Appeal from the PCRA Order of January 5, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000471-2013,
                            CP-36-CR-0001604-2013


BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED NOVEMBER 25, 2015

       Appellant, Leon Charles Tadych, appeals from the order entered on

January 5, 2015, denying him relief under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       The Commonwealth charged Appellant with a number of offenses,

including three counts of involuntary deviate sexual intercourse, three

counts of corruption of minors, and one count each of statutory sexual

assault, unlawful contact with a minor, indecent assault, and intimidation of

a witness.1 The affidavit of probable cause that was attached to the criminal

complaint was sworn to by Sergeant Jeffrey Margevich of the Millersville

____________________________________________


1
  18 Pa.C.S.A. §§ 3123(a)(7), 6301(a)(1)(ii),       3122.1(b),    6318(a)(1),
3126(a)(8), and 4952(a)(3), respectively.



* Retired Senior Judge assigned to the Superior Court.
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Borough Police Department and, within the affidavit, the following was

averred:

       1.) On July 24, 2012, at approximately [11:27 p.m.,
       Officer] Burkholder of [the] Millersville Borough Police
       Dep[artment] was on duty in a marked cruiser . . . when
       [he was] approached . . . by a male. . . . [The male]
       requested [Officer Burkholder’s] assistance . . . and
       explained that he and his roommate just came across two
       young girls at the Turkey Hill . . . and the girls told them
       that they were being chased by a male in a truck who was
       the father of one of the young females.

       2.) [Officer] Burkholder . . . located the young girls inside
       [the male’s] apartment. . . . The young girls were identified
       to be [A.D., who was born in 1997,] and L.T. (age 14 or
       15).   L.T.’s father [was Appellant, and Appellant was]
       reportedly chasing the girls. . . .

       3.) L.T. further explained that A.D. was to be spending the
       night at her house but she and A.D. had left L.T.’s house
       after an argument occurred between [L.T.’s] parents.
       [Officer] Burkholder questioned the girls further about what
       was going on with [Appellant] and was told that [Appellant]
       was driving around looking for them and they did not want
       to go back to the house.           Furthermore, [Appellant]
       reportedly had a crush on the juvenile female A.D.

                                     ...

       5.) [Officer] Burkholder took A.D. home to her house and
       spoke to her father about the incident.

                                     ...

       8.) On October 23, 2012, [D.T.,] the wife of [Appellant,]
       came to the police station. She was extremely distraught
       and upset and crying and having a hard time explaining
       things to [Sergeant Margevich]. She stated that [Appellant]
       did tell her he was in love with the juvenile female A.D.
       [Appellant’s wife] stated that A.D. is practically living at her
       house.     To date [she] had not been able to catch

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         [Appellant] and A.D. doing anything sexual, but that she
         knew that A.D. had been sleeping at the Tadych residence .
         . . almost every night.        [Appellant’s wife] informed
         [Sergeant Margevich] that she and [Appellant] no longer
         sleep together and that [Appellant] has been sleeping in the
         living room with A.D., and that he is alone there, with A.D.,
         when A.D. sleeps over[.] When [Appellant’s wife] awakens
         in the morning in her room, and goes into the living room,
         she finds A.D. sleeping there. [Appellant’s wife] asked if
         there was anything that could be done about this situation.

         9.) On November 20, 2012, [Sergeant Margevich] placed a
         hidden video camera for video recording only (no audio) in
         the living room of the Tadych residence. . . .[2] On that
         same date [Sergeant Margevich] also obtained access to a
         location near the residence to set up receiving equipment to
         monitor and record the video transmission from the
         residence.

         10.) [Sergeant Margevich] periodically monitored/checked
         the recorded videos and observed numerous incidents of
         indecent contact where [Appellant] touched the buttocks of
         the juvenile female A.D., between 11/20/12 and 12/04/12,
         at the Tadych residence. . . .

         11.) On December [6], 2012, . . . [Appellant] was
         interviewed by Chief Rochat of [the Millersville Borough
         Police Department] and [Sergeant Margevich]. [Appellant]
         during this interview confessed to committing anal
         intercourse, oral intercourse[,] and vaginal intercourse upon
         the victim between October 2012 and December 2012.

____________________________________________


2
   Within Appellant’s later-filed amended PCRA petition, Appellant
acknowledged that, on or about November 20, 2012, his then-wife executed
a “Consent for Video Transmission or Recording Within a Private Residence,”
wherein she gave her “consent to law enforcement authorities to allow them
to place a video camera device within the living room of [her] residence, to
transmit and/or record a video depiction of events that take place within that
area.”    Appellant’s Amended PCRA Petition, 6/20/14, at 2; Consent for
Video Transmission or Recording Within a Private Residence, 11/20/12, at 1.




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          12.) Based on the facts and circumstances set forth above,
          your Affiant respectfully requests that a warrant be issued
          for [Appellant]. . . .

Affidavit of Probable Cause, 12/11/12, at 1-2.

      Following Appellant’s arrest, assistant public defender Dennis C.

Dougherty, Esquire, (“Attorney Dougherty”) was appointed to represent

Appellant.

      On April 17, 2013, Appellant filed a pre-trial motion wherein he

claimed that “the police recording taken from inside his home, of his person,

and of his actions, constitute[s] an unlawful search of his property and

person.”     Appellant’s Pre-Trial Motion, 4/17/13, at 6.     Further, Appellant

claimed that his later confession to the police and consent to search his

property were the “result of [him] being confronted with [the] illegally

obtained [video] evidence.” Id. at 6-7. Appellant thus requested that the

trial court suppress both the illegally obtained video evidence and all

evidence that was derived from the illegal search, including his later

confession and the evidence obtained as a result of his invalid consent. Id.

at 5-8.

      However, prior to the pre-trial motion hearing, Appellant and the

Commonwealth       entered   into   an   agreement   where,   in   exchange   for

Appellant’s plea of guilty to all charges, the Commonwealth would agree to

recommend that Appellant serve an aggregate term of 12 to 24 years in

prison.    See N.T. Guilty Plea and Sentencing, 6/6/13, at 2.        On June 6,

2013, Appellant pleaded guilty to all charges and, on that same day, the trial


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court sentenced Appellant to serve the negotiated, aggregate term of 12 to

24 years in prison. Id. at 2-17.

       On February 4, 2014, Appellant filed a timely, pro se PCRA petition

and the PCRA court appointed new counsel to represent Appellant.

Appointed counsel then filed an amended PCRA petition on Appellant’s

behalf.   Within the amended petition, Appellant claimed that plea counsel

was ineffective when he advised Appellant to abandon the meritorious

suppression motion and enter a negotiated guilty plea in the case.

Appellant’s Amended PCRA Petition, 6/20/14, at 1-7.

       On September 24, 2014, the PCRA court held a hearing on Appellant’s

petition, during which time Appellant’s plea counsel – Attorney Dougherty

and Appellant testified.3      Attorney Dougherty testified that he discussed the

suppression issue with Appellant “about three or four times” and, during

these discussions, he advised Appellant:

          that it was actually a very interesting suppression issue.
          Very rarely do I come across a case where the case law’s
          relatively gray and, you know, you have the opportunity to
          have a legal precedent set.

          So I did tell him that the suppression issue basically had
          some validity, or at least an argument to be made, but
____________________________________________


3
  At the beginning of the PCRA hearing, the Commonwealth entered a limited
concession. In particular, the Commonwealth conceded that Appellant’s pre-
trial suppression motion “[wa]s not a frivolous motion.” N.T. PCRA Hearing,
9/24/14, at 9-10. However, the Commonwealth specifically did not concede
that the trial court “would have [] granted” the motion, if the motion had
been presented to the trial court. Id.



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        essentially I wasn’t exactly sure how the [trial c]ourt was
        going to rule on that motion and that motion was a
        bargaining chip, to some extent.

N.T. PCRA Hearing, 9/24/14, at 15.

     Attorney Dougherty also testified that, after the Commonwealth

tendered its plea offer, Attorney Dougherty advised Appellant of the risks

associated with litigating the suppression motion:

        I told him that it was quite possible that you – you could
        win the battle and lose the war, if you will; that I wasn’t
        sure how the [c]ourt was going to rule on the suppression
        motion but there was also a possibility that if he . . . won
        the suppression motion . . . that a jury could still convict
        him, potentially, based on the [victim’s] testimony as well
        as other letters that he had written to, I guess, his
        daughter.

                                      ...

        I thought, you know, when I looked at the suppression
        issue [in] this case, I thought he had a very decent
        suppression issue regarding his statement, you know. But
        given other letters that he had written, I guess, to his
        daughter about his relationship with this young lady[,] and
        the [victim’s] testimony that had occurred, I thought that it
        would be possible for him to win the suppression and still
        lose at trial.

                                      ...

        I [told] him . . . that, if the suppression motion was denied,
        we’d likely lose our deal or any leverage we had for a deal.
        If it was granted, we’d still go to trial, and it would be up to
        a jury to decide what had occurred.

Id. at 16-17 and 21.

     Further, Attorney Dougherty testified during the PCRA hearing that,

regardless of the merits of the suppression issue, other potential witnesses


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against Appellant included Appellant’s former wife and Appellant’s children.

Id. at 24.

      Attorney Dougherty testified that, after providing Appellant with the

above advice, Appellant ultimately decided to accept the Commonwealth’s

offer and enter a negotiated guilty plea to the charges. Id. at 21.

      Appellant also testified during the PCRA hearing.      Appellant testified

that, prior to his plea, Attorney Dougherty advised him that “even if

[Appellant] won [the suppression issue, Appellant] could still lose at trial”

and that, because of the letters Appellant wrote to his daughter and the

testimony of the victim, Appellant had “no chance” if the case went to trial.

Id. at 35-36.   Appellant testified that he pleaded guilty because Attorney

Dougherty “told [him] that [he] didn’t have a chance at trial.” Id. at 36.

      The PCRA court denied Appellant post-conviction collateral relief on

January 5, 2015 and Appellant filed a timely notice of appeal.        Appellant

raises one claim on appeal:

        Whether the [PCRA] court erred in denying [Appellant’s]
        amended PCRA petition when [Appellant] was denied his
        right to the effective assistance of counsel during the guilty
        plea process?

Appellant’s Brief at 4 (some internal capitalization omitted).

      As we have stated:

        [t]his Court’s standard of review regarding an order
        dismissing a petition under the PCRA is whether the
        determination of the PCRA court is supported by evidence of
        record and is free of legal error. In evaluating a PCRA
        court’s decision, our scope of review is limited to the


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        findings of the PCRA court and the evidence of record,
        viewed in the light most favorable to the prevailing party at
        the trial level. We may affirm a PCRA court’s decision on
        any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”      Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).         To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not
        have some reasonable basis designed to effectuate his
        interests; and, (3) but for counsel’s ineffectiveness, there is
        a reasonable probability that the outcome of the challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).             “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id. Further, with respect to the second ineffectiveness prong, we


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note that an attorney’s “chosen strategy will not be found to have lacked a

reasonable basis unless it is proven that an alternative not chosen offered a

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

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (internal quotations

omitted).

      We also note that “[a] criminal defendant has the right to effective

counsel during a plea process as well as during trial.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).                 Yet, where the

ineffectiveness of counsel is claimed in connection with the entry of a guilty

plea, a petitioner may only obtain relief where “counsel’s deficient

stewardship resulted in a manifest injustice, for example, by facilitating [the]

entry of an unknowing, involuntary, or unintelligent plea.” Commonwealth

v. Moser, 921 A.2d 526, 530 n.3 (Pa. Super. 2007) (en banc) (internal

citations and quotations omitted). As we have explained:

        once a defendant has entered a plea of guilty, it is
        presumed that he was aware of what he was doing, and the
        burden of proving involuntariness is upon him. Therefore,
        where the record clearly demonstrates that a guilty plea
        colloquy was conducted, during which it became evident
        that the defendant understood the nature of the charges
        against him, the voluntariness of the plea is established.

Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal

quotations, citations, and corrections omitted), quoting Commonwealth v.

Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an]

appellant must prove he would not have [pleaded] guilty and would have



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achieved a better outcome at trial.”   Commonwealth v. Fears, 86 A.3d

795 (Pa. 2014) (internal quotations and citations omitted).

      Within Appellant’s brief to this Court, Appellant claims that he is

entitled to relief because:

        [Appellant] would not have pleaded guilty but for the fact
        that [Attorney Dougherty] advised him that he had no
        chance at trial even if the suppression issue was successful.
        If the issue had been litigated then the great deal of the
        Commonwealth’s evidence would have been suppressed and
        the Commonwealth ultimately would have not been able to
        meet its burden of proof.

Appellant’s Brief at 10.

      As the PCRA court ably explained, Appellant’s    claim   fails    because

Attorney Dougherty had a reasonable basis for advising Appellant to take the

Commonwealth’s offer:

        [Attorney Dougherty] consistently testified at the PCRA []
        hearing that he discussed the suppression issue with
        [Appellant] on three or four occasions.          In addition,
        [Attorney Dougherty testified] “I did tell him that the
        suppression issue basically had some validity, or at least an
        argument to be made, but essentially I wasn’t exactly sure
        how the [trial c]ourt was going to rule on that motion and
        that motion was a bargaining chip, to some extent.” [N.T.
        PCRA Hearing, 9/24/14, at 15.]            Further, [Attorney
        Dougherty] [] testified that he advised [Appellant] that:

            you could win the battle and lose the war . . . that I
            wasn’t sure how the court was going to rule on the
            suppression motion but there was also a possibility that
            if he . . . won the suppression motion . . . that a jury
            could still convict him, potentially, based on the
            [victim’s] testimony as well as other letters that he had
            written to, I guess, his daughter.

        [Id. at 16-17.]

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        [Attorney Dougherty] further explained that he discussed
        with [Appellant] that “if the suppression motion was denied,
        we’d likely lose our deal or any leverage we had for a deal.
        If granted, we’d still go to trial, and it would be up to a jury
        to decide what had occurred.” [Id. at 21.] Therefore,
        [Attorney Dougherty] stated that if the suppression motion
        was denied, [Appellant] would lose his offer of 12 to 24
        years’ incarceration and any leverage that he had for an
        offer at all. Additionally, based on the fact that there was
        other evidence [that would not have been suppressed in this
        case – such as Appellant’s inculpatory letters to his
        daughter and the incriminating testimony from the victim,
        Appellant’s ex-wife, and Appellant’s children – Attorney
        Dougherty reasonably] believed that the Commonwealth
        could potentially still prove its case [even if the suppression
        motion were granted].

                                      ...

        The [PCRA] court finds that [Attorney Dougherty] had a
        reasonable strategic basis regarding his decision to not
        pursue the motion to suppress [and to advise Appellant to
        plead guilty. Attorney Dougherty] stated that the motion to
        suppress provided a bargaining chip to a negotiated plea
        agreement with the Commonwealth, which would be
        revoked if the suppression motion was litigated.         In
        addition, [Attorney Dougherty] understood that the
        Commonwealth had additional evidence and testimony from
        [Appellant’s] ex-wife, children, and the victim. So, even if
        [Appellant] would have won the suppression motion, the
        jury could have found [Appellant] guilty based on the other
        unsuppressed evidence.

PCRA Court Opinion, 1/5/15, at 4-5 and 6 (internal emphasis omitted)

(some internal citations and capitalization omitted).

      We agree with the PCRA court’s cogent analysis and conclude that the

court did not err when it denied Appellant’s PCRA petition, as Attorney




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Dougherty’s advice to Appellant and proposed strategy in this case was

valid, reasonable, and true. Appellant’s claim of error thus fails.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2015




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