J-S13010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    FREDERICK SMITH,

                             Appellant                No. 552 WDA 2018


              Appeal from the PCRA Order Entered March 22, 2018
               In the Court of Common Pleas of Allegheny County
                           Criminal Division at No(s):
                            CP-02-CR-0002180-2013
                            CP-02-CR-0002182-2013


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED MAY 10, 2019

        Appellant, Frederick Smith, appeals from the post-conviction court’s

March 22, 2018 order denying his petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant claims that the PCRA court erred

by denying his claim that his trial counsel acted ineffectively by permitting him

to plead guilty to the offense of conspiracy to commit intimidation of a witness,

where the Commonwealth’s factual summary was inadequate to support that

charge. After careful review, we affirm.

        On April 28, 2014, Appellant entered a negotiated guilty plea (in two

separate, but related, cases) to one count of statutory sexual assault, 18


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Pa.C.S. § 3122.1(a)(2) (defendant eight years older but less than 11 years

older than the complainant), and one count of conspiracy to commit

intimidation of a witness (hereinafter, “conspiracy to intimidate”), 18 Pa.C.S.

§§ 903 and 4952. That same day, Appellant was sentenced to two, concurrent

terms of 18 to 36 months’ incarceration, a consecutive period of 4 years’

probation, and a 25-year registration requirement under the Sex Offender

Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41.

Appellant did not file a direct appeal from his judgment of sentence.

      On June 23, 2014, Appellant filed a timely, pro se PCRA petition and

counsel was appointed.     Counsel filed an amended petition on Appellant’s

behalf in December of 2014.      After the Commonwealth filed an answer to

Appellant’s petition, the PCRA court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss the petition without a hearing.       Appellant did not file a

response, and the court issued an order on April 14, 2015, dismissing his

petition.

      Appellant filed a timely notice of appeal, raising three claims alleging

plea counsel’s ineffectiveness. After rejecting the first two issues as meritless,

this Court issued a memorandum decision concluding that Appellant’s third

ineffectiveness claim warranted an evidentiary hearing. Commonwealth v.

Smith, No. 729 WDA 2015, unpublished memorandum at 15-16 (Pa. Super.

filed May 24, 2016) (hereinafter, “Smith I”). More specifically, the Smith I

panel agreed with Appellant that there was arguable merit to his claim that




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the following factual basis, offered by the Commonwealth at Appellant’s plea

proceeding, was insufficient to support the charge of conspiracy to intimidate:

      [The Commonwealth:] With regard to CC 201302180, the
      testimony would have been substantially that [Appellant,] while in
      the intake at the Allegheny County jail, placed a call to a witness
      the Commonwealth would have presented to testify by the name
      of Sabrina Malloy.

            She would testify that she received that call and we would
      put those recordings into evidence but that [Appellant]
      substantially asked her to head up to the Spring Street area giving
      her the address, make contact with the victim’s mother and ask
      [the mother] if they would drop the charges saying that
      [Appellant] was -- and asked [Malloy] to relay that [the victim]
      told [Appellant] that she was older than 1[8]. That would be the
      sum of the Commonwealth’s testimony, Your Honor.

N.T. Plea Hearing, 4/28/14, at 36-37.

      In Smith I, we accepted Appellant’s position that “the elements of the

offense [of intimidation of a witness] require a person to intimidate or attempt

to intimidate a person.”      Smith I, No. 729 WDA 2015, unpublished

memorandum at 15 (quoting Appellant’s Brief in Smith I at 17; citing

Commonwealth v. Doughty, 126 A.3d 951, 957 (Pa. 2015)).               We then

explained:

            The factual summary provided by the Commonwealth in this
      case established that Appellant called Ms. Malloy and asked her to
      go to the victim’s house to request that the victim’s mother ‘drop
      the charges,’ and explain to the victim’s mother that the victim
      told Appellant she was older than 18. Nothing on the face of [the
      above-quoted] factual summary demonstrates that Appellant
      intended that Ms. Malloy intimidate the victim’s mother when
      making these requests. Moreover, the victim’s mother clearly was
      not intimidated by Ms. Malloy, as she assaulted Ms. Malloy on her
      doorstep. Accordingly, we find arguable merit in Appellant’s



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     contention that the factual summary was inadequate to prove the
     intimidation element of the crime of conspiracy to intimidate.

         We recognize that at the plea proceeding, defense counsel
     remarked that he “believe[d] … the intimidation could be that a
     jury could find … that merely sending someone to the house is
     truly intimidation.” N.T. Plea Hearing at 19. However, we can
     find no case law addressing the question of whether ‘sending
     someone’ to a witness’ home would alone be sufficient to prove
     intimidation. Moreover, because the PCRA court did not conduct
     a hearing, we do not have any explanation for counsel’s belief, nor
     the ability to assess the reasonableness thereof.4 We also point
     out that in its opinion, the PCRA court did not address Appellant’s
     claim that the Commonwealth’s factual summary failed to
     establish intimidation, despite that Appellant raised that argument
     in his [Pa.R.A.P.] 1925(b) statement. For these reasons, we
     cannot assess the reasonable basis or prejudice prongs of
     Appellant’s ineffectiveness claim on the record as it currently
     stands.
          4 For
              instance, counsel may have reviewed the discovery and
          had knowledge of facts bolstering a conclusion that
          Appellant intended to intimidate the victim’s mother by
          sending Ms. Malloy to her home.

Smith I, No. 729 WDA 2015, unpublished memorandum at 15-16.

     The Smith I panel thus vacated the PCRA court’s order denying

Appellant’s petition and remanded for the court to conduct an evidentiary

hearing, which the court convened on March 2, 2018. At that proceeding,

both plea counsel and Appellant testified. On March 22, 2018, the PCRA court

issued an order denying Appellant relief on this ineffectiveness claim for the

second time.      Appellant filed a timely notice of appeal, and he also timely

complied with the PCRA court’s order to file a Rule 1925(b) concise statement

of errors complained of on appeal. Herein, Appellant states one issue for our

review:



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      1. Did the PCRA [c]ourt err in concluding that [p]lea [c]ounsel
         was not ineffective in permitting Appellant to enter a guilty plea
         to an offense where the factual basis offered at the time of the
         plea was inadequate to support the charge?

Appellant’s Brief at 3.

      Initially, we recognize the following:

      Our standard in reviewing a PCRA court order is abuse of
      discretion. We determine only whether the court’s order is
      supported by the record and free of legal error. This Court grants
      great deference to the findings of the PCRA court, and we will not
      disturb those findings merely because the record could support a
      contrary holding. We will not disturb the PCRA court’s findings
      unless the record fails to support those findings.

         A criminal defendant has the right to effective counsel during a
      plea process as well as during trial. A defendant is permitted to
      withdraw his guilty plea under the PCRA if ineffective assistance
      of counsel caused the defendant to enter an involuntary plea of
      guilty.

         We conduct our review of such a claim in accordance with the
      three-pronged ineffectiveness test under section 9543(a)(2)(ii) of
      the PCRA, 42 Pa.C.S.[] § 9543(a)(2)(ii). The voluntariness of the
      plea depends on whether counsel’s advice was within the range of
      competence demanded of attorneys in criminal cases.

          In order for [an] [a]ppellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective assistance 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. Appellant must demonstrate:
      (1) the underlying claim is of arguable merit; (2) that counsel had
      no reasonable strategic basis for his or her action or inaction; and
      (3) but for the errors and omissions of counsel, there is a
      reasonable probability that the outcome of the proceedings would
      have been different. The petitioner bears the burden of proving
      all three prongs of the test.

      Moreover, trial counsel is presumed to be effective.




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Commonwealth v. Rathfon, 899 A.2d 365, 368–69 (Pa. Super. 2006)

(internal citations, quotation marks, and certain formatting omitted).

      In   the   case   sub   judice,   the   PCRA   court   rejected   Appellant’s

ineffectiveness claim, first concluding that his underlying issue lacked

arguable merit because the Commonwealth’s factual summary - set forth

supra - was sufficient, if believed by the fact-finder, to prove the charge of

conspiracy to intimidate.     See PCO at 5.      In this regard, we agree with

Appellant that the court erred. In Smith I, we explicitly stated that there was

“arguable merit in Appellant’s contention that the factual summary was

inadequate to prove the intimidation element of the crime of conspiracy to

intimidate.” Smith I at 15. No evidence produced at the hearing on remand

altered our decision in this regard.

      However, the PCRA court alternatively concluded that plea counsel had

a reasonable basis for allowing Appellant to plead guilty.       Id. at 5-6.   We

agree. At the evidentiary hearing, plea counsel testified that he believed the

plea deal offered to Appellant was good because the Commonwealth was

agreeing to withdraw six serious charges in exchange for Appellant’s pleading

guilty to two offenses, and the sentences offered by the Commonwealth were

in the low-end of the standard guideline range for Appellant’s statutory sexual

assault crime, and one year below the mitigated guideline range for his

conspiracy to intimidate charge. See N.T. Hearing, 3/2/18, at 12-15. Counsel

testified that he communicated to Appellant that this was “a good deal[,]”




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even though the Commonwealth’s case was weak on the conspiracy to

intimidate charge. When asked to elaborate, counsel explained:

      [Plea Counsel:] … [W]ell, regarding the case which held all the
      sexual charges, as I informed [Appellant], it would largely boil
      down to his word against hers, and so, whether or not his defense
      was successful could depend largely upon whether or not a jury
      would believe him. And for the charge of conspiracy to intimidate
      a witness, I told him I thought it was not the strongest intimidation
      case I’d ever seen in my life, but my gut instinct was that most
      Judges in the Courthouse would probably find him guilty based on
      the facts that were alleged in the Complaint, and if those facts
      came out at trial, I think they would find him guilty.

             As far as a jury goes, I said he might have more luck in
      alleging that he didn’t actually attempt to intimidate or threaten a
      witness, but I could still find it conceivable that they could convict
      him.

Id. at 16-17.    The Commonwealth then asked whether it was counsel’s

understanding, after giving Appellant this advice, that “he still wanted to plead

guilty even knowing that he might have a defense to [the] charge [of

conspiracy to intimidate,]” to which counsel replied, “Yes.” Id. at 17.

      The PCRA court found this testimony by counsel credible, and

determined that counsel had expressed a reasonable basis for his decision to

advise Appellant to plead guilty. See PCO at 6. In reaching this conclusion,

the court was guided by the following portion of Commonwealth v.

Fluharty, 632 A.2d 312 (Pa. Super. 1993):

            Where counsel is able to negotiate a favorable plea bargain,
      and where the defendant understands the bargain and is satisfied
      with and accepts it rather than go to trial, the decision by counsel
      not to object to a defective guilty plea colloquy will be deemed a
      reasonable one. Under such circumstances, counsel will not be
      found to have been ineffective.        See[] Commonwealth v.


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     Johnson, 355 Pa. Super. 123, 137-139, 512 A.2d 1242, 1249-
     1250 (1986); Commonwealth v. Burno, 310 Pa. Super. 564,
     456 A.2d 1080 (1983); Commonwealth v. Weiss, 289 Pa.
     Super. 1, 432 A.2d 1020 (1981). See also[] Commonwealth v.
     Newell, 486 Pa. 474, 406 A.2d 733 (1979).

            Instantly, in exchange for pleas of guilty to charges of
     aggravated assault and carrying a firearm without a license, it was
     agreed that [the] appellant would receive concurrent sentences
     for his crimes.4 It was also agreed that the Commonwealth would
     nolle pros additional charges of recklessly endangering another
     person, making terroristic threats, possessing an instrument of
     crime, former convict not to own a firearm, resisting arrest and
     criminal conspiracy. Had [the] appellant elected to go to trial
     under these circumstances, he faced a substantially longer term
     of imprisonment, if convicted, than he received as a result of the
     guilty pleas which he entered. Indeed, even [the] appellant
     conceded at the [PCRA] hearing that his principal reason for
     pleading guilty was because he was worried about receiving a
     longer sentence if he went to trial and was found guilty. The
     record of the guilty plea colloquy establishes that [the] appellant
     fully understood the bargain which counsel negotiated with the
     Commonwealth and that he was satisfied to accept it. Under these
     circumstances, we agree with the [PCRA] court that counsel was
     not ineffective for advising [the] appellant to enter the guilty plea.
     [The a]ppellant received the benefit of a favorable plea bargain
     negotiated by counsel and knowingly and voluntarily decided to
     accept that bargain.
        4 In fact, the sentences received by [the] appellant were at
        the low end of the mitigated range of the Sentencing
        Guidelines.

Id. at 318-19.

     Here, as in Fluharty, Appellant clearly received the benefit of a

favorable plea bargain. Had he elected to go to trial, he would have been

exposed to a much lengthier term of incarceration. Plea counsel recognized -

and communicated to Appellant - that the facts supporting the conspiracy to

intimidate charge were weak, but that, in counsel’s opinion, Appellant could



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still be convicted of that offense if he proceeded to trial. Counsel advised

Appellant that the Commonwealth’s plea offer was good, and that Appellant

should accept it, despite his potential defense to the conspiracy to intimidate

charge. Counsel believed that Appellant understood all of this in deciding to

plead guilty.

      We also note that, on appeal, Appellant admits that “there is no doubt

that plea counsel believed he had secured a good plea deal for Appellant and

that it was in Appellant’s best interests to take the plea.” Appellant’s

Brief at 10 (emphasis added).      Appellant further acknowledges that “an

individual is permitted to make an informed decision to accept a guilty plea,

even when one believes he is innocent, rather than accept the risk of an

adverse jury verdict and that entering a plea under those circumstances does

not render the plea unknowing.” Id. (citing Fluharty, 632 A.2d at 315). He

insists, however, that he “made clear” in his testimony at the PCRA hearing

“that he did not enter a plea even though he believed he was innocent because

the deal was too good to pass up[,] and his efforts to void the plea bear this

out.” Id. at 11. In other words, Appellant seemingly contends that he did

not have a strategic reason for pleading guilty to conspiracy to intimidate,

despite the inadequacy of the Commonwealth’s factual summary, and,

therefore, counsel should not have permitted him to do so.

      Appellant’s argument is unconvincing. While he did testify at the PCRA

hearing that he did not “feel motivated to take this plea because it was such

a great deal[,]” he also stated on cross-examination that he pled guilty to

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resolve the case, and because it “appeal[ed] to [him] that the Commonwealth

had offered [him] a minimum sentence of 18 months based on all the time

that [he] previously had in jail[.]” N.T. Hearing at 45, 47. Thus, Appellant

did state strategic reasons for pleading guilty to the at-issue offense.

      In sum, in light of the testimony admitted at the PCRA hearing, we

conclude that the record supports the PCRA court’s determination that counsel

had a reasonable basis for advising Appellant to plead guilty to conspiracy to

intimidate, as doing so was in Appellant’s best interest. Further, Appellant

understood his potential defenses to that charge, and entered a knowing and

voluntary plea. Therefore, the court did not err in denying his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2019




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