J-S65014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                               Appellee

                        v.

KAREEN GLASS

                               Appellant                    No. 3142 EDA 2013


                    Appeal from the PCRA Order October 4, 2013
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0502891-2005


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                                FILED JANUARY 30, 2015

        Appellant, Kareen Glass, appeals from the order entered October 4,

2013, by the Honorable M. Teresa Sarmina, Court of Common Pleas of

Philadelphia County, which denied Glass’s Post Conviction Relief Act 1

(“PCRA”) petition. We affirm.

        Following a jury trial on October 21, 2008, Glass was convicted of

murder     in    the   first   degree,     attempted   murder,   aggravated   assault,

possessing an instrument of crime, and recklessly endangering another

person.2 The following day Glass appeared at a penalty phase hearing. At

the hearing, Glass’s attorney, Jack McMahon, Esquire, indicated to the court

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
2
    18 Pa.C.S.A. §§ 2502(a), 901, 2702(a)(1), 907(a) and 2705.
J-S65014-14



that he had reached an agreement with the Commonwealth whereby Glass

agreed to waive his appellate rights in return for withdrawal of the death

penalty. See N.T., Penalty Hearing, 10/22/08 at 5-6. After much discussion

and an extensive colloquy, the trial court accepted the agreement and

sentenced Glass to life imprisonment.

       Glass filed a pro se PCRA petition. The PCRA court appointed Janice

Smarro, Esquire, as counsel and Attorney Smarro filed an amended PCRA

petition seeking reinstatement of Glass’s appellate rights nunc pro tunc.

Following a hearing, the PCRA court announced notice of its intent to dismiss

Glass’s petition pursuant to Pa.R.Crim.P. 907.     Thereafter, the PCRA court

removed Attorney Smarro and appointed David Rudenstein, Esquire, as

PCRA counsel. Attorney Rudenstein filed a second amended PCRA petition,

in which he alleged that trial counsel’s lack of preparation for the penalty

hearing caused Glass to waive his appellate rights.      Following evidentiary

hearings, the trial court denied Glass’s PCRA petition. See Order, 10/04/13.

This timely appeal followed.3

       On appeal, Glass raises the following issue for our review:

       Was [Glass] denied the effective assistance of capital sentencing
       counsel who, as a matter of adjudicated fact, was not prepared
____________________________________________


3
 Glass filed a pro se notice of appeal on October 23, 2014. The PCRA court
conducted a Grazier hearing, at the conclusion of which the court accepted
Glass’s pro se notice of appeal and removed Attorney Rudenstein as counsel.
See Order, 11/21/13. Todd Michael Mosser, Esquire, then entered his
appearance for the purposes of this appeal.



                                           -2-
J-S65014-14


      to proceed to sentencing, and in turn, caused [Glass] to waive all
      of his appellate rights, which included waiving viable issues for
      direct appeal as well as a colorable ineffective assistance of trial
      counsel claim under the PCRA?

Appellant’s Brief at 4.

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)

(citation and internal quotation marks omitted). “The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”     Id. (citation omitted).      The PCRA court’s credibility

determinations are binding on this Court, where there is record support for

those determinations. See Commonwealth v. Timchak, 69 A.3d 765, 769

(Pa. Super. 2013).

      To establish ineffectiveness of counsel, “a PCRA petitioner must show

the underlying claim has arguable merit, counsel’s actions lacked any

reasonable    basis,   and   counsel's    actions   prejudiced   the    petitioner.”

Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citation

omitted), appeal denied, 84 A.3d 1062 (Pa. 2014). “Prejudice means that,

absent counsel’s conduct, there is a reasonable probability the outcome of

the proceedings would have been different.”          Id.   If a reasonable basis

exists for the particular course chosen by counsel, the inquiry ends and

counsel’s     performance       is       deemed      constitutionally     effective.

Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003) (citations

                                         -3-
J-S65014-14



omitted).    Failure to satisfy any prong of the test requires that the claim be

dismissed.      See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.

Super. 2004).

      Glass’s     waiver     of   appellate   review   in   exchange     for   the

Commonwealth’s agreement to a sentence of life imprisonment was

undoubtedly the functional equivalent to the entry of a guilty plea. Accord

Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. Super. 1996),

appeal denied, 693 A.2d 585 (Pa. 1997) (waiver of post-trial review

functional equivalent of plea of guilty). “A criminal defendant has the right

to effective counsel during a plea process as well as during trial.”

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006)

(quotation omitted).       “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)

(citation omitted).   “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. (citations and internal quotation marks omitted). “A person who

elects to plead guilty is bound by the statements he makes in open court

while under oath and he may not later assert grounds for withdrawing the

plea which contradict the statements he made at his plea colloquy.”




                                        -4-
J-S65014-14



Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citation

omitted).

       Instantly, the PCRA court agreed with Glass that defense counsel was

unprepared to present mitigation evidence at the penalty phase hearing. 4

However, the court determined that counsel’s lack of preparedness for the

penalty hearing did not render the waiver of Glass’s appellate rights

unknowing or involuntary. The PCRA court concluded, among other things,

that Glass “failed to demonstrate that, but for counsel’s lacking penalty

phase preparation, petitioner would have elected not to waive his appellate

rights and would have instead proceeded to the penalty phase hearing.”

PCRA Court Opinion, 2/6/14 at 13.

       After careful review of the briefs submitted by counsel and the record

in this matter, we find that the Honorable M. Teresa Sarmina has so

thoroughly addressed and properly rejected the issue raised by Glass that

further discussion of the issue would be purposeless. Accordingly, we adopt

the opinion of the PCRA court as fully dispositive of the issue raised on

appeal. Id. at 7-16. Therefore, we affirm the order denying PCRA relief.

       Order affirmed.




____________________________________________


4
  The PCRA court thoroughly details the facts and reasoning behind this
conclusion in its 1925(a) opinion. See PCRA Court Opinion, 2/6/14 at 5
n.12.



                                           -5-
J-S65014-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2015




                          -6-
                                                                                            Circulated 01/07/2015 10:25 AM




                             PHILADELPHIA COURT OF COMMON PLEAS
                                   CRIMINAL TRIAL DIVISION

    COMMONWEALTH
                                                                                  CP-S1-CR-OS02891-2005

                     v.                                                           Superior Court No.
                                                                                  3142 EDA 2013

    KAREEN GLASS

    Sarmina, J.
    February 6, 2014                                                              F~lED
                                                                                   FEB 062014
                                                       OPINION
                                                                              Criminal Appeals Unit
PROCEDURAL HISTORY                                                          First Judicial District 01 PA
            On October 21,2008, following a jury trial t before this Court, Kareen Glass (hereafter,

petitioner) was ,convicted of murder of the first degree (H-1) for the death of Tyreke Gaymon

(fyreke), attempted murder (F-l) of Tyreese Allen (Tyreese), aggtavated assault (F-l) of Tyreese,

possessing an instrument of crime (PIC) (M-l), and recklessly endangering another person (REAP)

(lvf-2),2 The next day, petitioner appeared before this Court to begin a penalty phase hearing.

Instead, on that date, after consultation with counsel, petitioner agreed to waive all appellate and

post-conviction rights 3 in exchange for teceiving a life sentence without the possibility of parole; this

Court conducted a colloquy with petitioner regarding that waiver and found it to be knowing,

intelligent and voluntmy, Notes of Testimony (N.T.) 10/22/2008 at 42. This Court then sentenced




1   Petitioner was reprc5cntcd at trial by Jack McMahon, Esquire.

218 Pa.C.S. §§ 2502(a), 901, 2702(a)(1), 907 (n), and 2705, respectively.

3 Petitioner agreed to waive his rights to file a direct appelll, a peRA petition, an application for commutation of
sentence, ns well as an application for pardon. Notes of Testimony (NT.) 10/22/2008 at 42. This Court refers to the
rights forfeited by petitioner, collectively, as his "appellate rights."
                                                                                               Circulated 01/07/2015 10:25 AM




petitioner to the mandatoty term 4 of life imprisonment.s

            On July 10, 2009, petitioner filed a timely pro se petition pursuant to the PostHConviction

Relief Act (pCRA).6 On October 21, 2011, David Rudenstein, Esquire, filed an amended petition.7

Mr. Rudenstein supplemented his amended petition with an additional filing on July 12, 2012. On

September 14, 2012, the Commonwealth filed its answer; Mr, Rudenstein responded on November

19,2012 and again on FebrualY 19,2013. On April 26, 2013 and Aptil 29, 2013, this Court held an

evidentiary hearing pursuant to Pa.R.Crim,P, 908 (908 Hearing) to address petitioner's claim that

trial counsel was ineffective for coercing petitioner to waive his appellate rights. At the conclusion

of the 908 Hearing, Mr. Rudenstein requested an opportunity to review the notes of testimony from

the hearing and to present oral argument at a later date. N.T. 4/29/2013 at 130, On July 9, 2013,

this Court heard argument. After considering the pleadings, the evidence presented at the 908

Hearing, the oral argument, and conducting an independent review, this Court found that

petitioner's claims lacked merit and, on September 11, 2013, sent petitioner notice pursuant to

Pa.R.Crim.P. 907 (907 Notice) of its intent to deny and dismiss his petition. On October 4, 2013,

this Court denied and dismissed petitioner's petition. s Petitioner filed a timely notice of appeaL9


4   18 Pa.C.S. § 1102(a).

5 As to the conviction for attempted murder, petitioner was sentenced to a consecutive term of not less than 20 years
nor more than 40 years confinement. N.T. 10/22/2008 at 48. As to the conviction for PIC, this Court imposed a
concurrent sentence of not less than nine months nor more than five years confinement. Petitioner's convictions for
aggravated assault and REAP merged for pw:poses of sentencing.

642 Pa.C.S. §§ 9541.9546.

7 On October 5, 2009.James Lammendola, Esquire, had been appointed to represent petitioner. However, this Court
found that he had not lIealously represented his client. On April 8,2010, this Court removed Mr. Ll1ffimendola and
appointed Janis Smarro, Esquhe. In June 2011, Ms. Smarro informed this Court that she was no longer taking
appointments in capital cases. As petitioner sought to challenge his appellate waiver, thus potentially subjecting him to
the death penalty, Ms. Smarro requested to ·withdraw. OnJune 17,2011, this Court permitted Ms. Smarto to withdraw.

8 Priorto dismissing petitioner's petition, this Court received a pro Ie response to the 907 Notice from petitioner,
postmarked September 27, 2013. As petitioner was still represented by 'tvfr. Rudenstein at the cime of his response, this
Court immecliately had petitioner's response hand-delivered to Mr. Rudenstein, so he could formulate a 907 Response
(FN conCd ... )


                                                            2
                                                                                                   Circulated 01/07/2015 10:25 AM




 FACTS

          On September 27, 2004, petitioner confronted Maurice Gaymon (Ivlaurice) on the 1300

 block of North 15th Street in Philadelphia about an incident in which petitioner's coworkers had

 been robbed. NT. 10/8/2008 at 179. Petitioner asked Maurice whether he had heard about the

 robbery; when Maurice said that he was unaware, petitioner told Maurice, ('If I can't get at the

 [people] who did it, I'm going to get at the people they be with (sic]." Id. On September 28, 2004,

Maw;ice, Tyreke, Tyreese and Stanley Battle (Battle) wcre selling crack cocaine in front of the satne

house where petitioner had approachcd Mauxice the day before. rd. at 182. Battle left the front

steps to get a snack from a local market. N.T. 10/9/2008 at 219. Maurice retreated into the house

to make a phone cali. Id. at 65. Shortly thereafter, petitioner and a friend walked up to the curb,

eight or nine feet in front ofTyreke and Tyreese. 1O rd. at 65-66. Petitioner accused Tyreke and

Tyrecse of knowing who robbed his friend. Id. Both Tyreke and Tyreese denied involvement. rd.

at 67. Petitioner then pulled a gun from his waist, and opened fIre. Tyreese survived five gunshot

wounds to his legs and abdomen. Id. at 69.

          As he pulled the gun out, I stood up. And as soon as I stood up, he shot me in my leg.
          Then he shot me again on the same leg. So I spin and I tty to go in the hallway. He started
          shooting at Tyreke. Then as I go in the hallways, he shoot [sic], he shoot [sic] at me again.


(FN cont'd ... )
for thls Court's consideration, if appropriate. ~ CQmmonwealth v. Glgckcn, 32 A.3d 750, 752 (pa.Super. 2011)
(''Pursuant to our Rules of Appellate Procedure and deci~ionallaw, thls Court will not review the pro Je filings of a
counseled appellant.").

 9 On October 21,2013, while still represented by iYIr. Rudenstein, petitioner filed a pro Ie notice of appeal. On that same
 date, petitioner wrote to tllls Court, ex,pressing his desire to proceed pro te. This Court scheduled a hearing. pu.tsunnt to
 Commonwealth y. Grazier, 713 A.2d 81 (pa. 1998), for November 1,2013 -less than 30 days after petitioner's PCRA
 petition had been dismissed and, tllUS, within the time frame to file a notice of a,ppeal. However, due to extenuating
 circumstances involving oral argument in a separate capital PCRA litigation, thls Court was unable to hold the Gmzier
hearing as scheduled. This Court rescheduled the~ hearing for November 19,2013, on which date this Court
accepted petitioner's October 21, 2013 notice of appeal as controlling, removed MJ:. Rudenstein, and appointed new
counsel on petitioner's behalf. On November 22,2013, Todd Michael Mosser, Esquire, entered his appearance. On
January 6, 2014, N11:. Mosser filed a Statement ofMattcI:s Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b)
(1925(b) Statement).

10 Tyreese Allen testified at a preliminary hearing on April 26, 2005. As Allen had died prior to petitioner's trial and thus
was unavailable, IllS preliminary hearing testimony was admitted at trial pursuant to Pa.R.E. 804(b)(1).

                                                              3
                                                                                            Circulated 01/07/2015 10:25 AM




            Then when he had hit me in this leg, as he hit me in this leg, my whole - I lost all feeling in
            my leg. So I collapsed to the ground - as I collapsed to the ground, I started crawling. This
            guy still shooting.

            So the next thing you know, he finally stops shooting. I call for my aunt and everybody to
            come outside. I see him running down the street or whatever, but I turned around and told
            Tyreke to hold on. I'm like hold on, everybody, because they called on - they called the
            cops and the cops on they way [sic]. Tyreke lift his head up, laid his head back down, and
            ain't move again.

N.T. 10/9/2008 at 68.

            On Battle's walk back from the store, as he was four or five houses away from his friends, he

saw petitioner pull a gtm from his waist band and begin shooting. Id. at 226. As petitioner lifted his

gun and shot Tyreke, Battle froze. Id. "I'm still looking at him. Then he start [sic] looking rapidly,

boom, boom. I took off running. I didn't want him to cut his eye on me, start shooting at me. I

took off running." Id. After running around the block, Battle returned to the front porch to find

Tyreke "dead" with a "big hole in his head," and Tyreese yelling for help in pain. Id. at 232.

           Tyreke was pronounced dead at tlle scene of the shooting at 10:25 AM. rd. at 124. He

suffered a perforating gunshot wound to the left side of his head, passing through his brain before

exiting the tight backside of his head. 11 N.T. 10/9/2008 at 127.

LEGAL ANALYSIS

           Petitioner raised three claims in his 1925(b) Statement. As the facts underlying claims two

and three are closely related, this Court will address those two issues together.

(1) The PCRA Court erred by finding that sentencing counsel's unpreparedness did not
"cause" petitioner to waive his appellate rights.

           Petitioner contends that sentencing counsel was ineffective, as he was ill-prepared to

represent petitioner at a penalty phase hearing and, therefore, petitioner's waiver of his appellate

rights was not knowing, intelligent and voluntary. Supplemental Amended PetitiQn, 7/12/2012 at 2-

3. "Having been unprepared to proceed, counsel was in no position to offet any competent,

11   Tyrekc also suffered gunshot wounds to his left shoulder and abdomen. N.T. 10/9/2008 at 130-32.

                                                           4
                                                                                                 Circulated 01/07/2015 10:25 AM




 objective advice about [petitioner's] chances at [a penalty phase} hearing/' 1925(b) Statement,

 1/6/2014 at 2. Petitionet argues that counsel's lack of preparedness vitiated the voluntariness of his

 waiver. rd.

             This Court found that sentencing counsel was, in fact, unprepared to present a penalty phase
                12
heru:ing.            However, claims of ineffective assistance of counsel in the context of entering a waiver of


12 This Court found that Mr. McMahon was not prepared to represent petitioner adequately at the penalty phase
pwceeding. Mr. McMahon was aware that petitioner had suffered significant cognitive damage as the result of a beating
by police officers. N.T. 4/26/2013 at 59-60. However, Mr. McMahon did not secure a witness who could have
explained, to a reasonable degree of scientific certrunty, the cognitive impainnents that petitioner suffered. Mr.
McMahon stated that he planned to introduc;e evidence that petitioner's capacity to appreciate the criminality of his
conduct was substantially impaired - pursuant to 42 Pa.C.S. § 9711(e)(3) - in two ways: (1) through the testimony of
Neil Jokelson, Esquire, one of the attorneys who had represented petitioner in his federal civil trial ag<tinst the City of
Philadelphia for that beating by the police, und (2) through medicfLl records, which had been introduced at that trial:

             And, again, to me, it was going to make a very fine presentation because it was going to be a - they [the
             Jokelsons] were going to humanize them [the recordsJ. And at the same time they Were going to put in the
             necessary scientific doctor reports that would meet the mitigating circumstances.

Id. at 106.

             We would have cleady, without a doubt, been able to explain that both through the testimony of the Jokelsons
             and the expert reports and the testimony that came from the trial. And if you don't think that, you're a fool.

Id. at 112.

         iYlr. McMahon's two-pronged approach was flawed. First, Mr. McMahon conceded, and this Court found, that
he never actually read the transcripts of the civil trial:

             MR. RUDENSTEIN; Did you read the transcripts of the civil trial?
             MR.. MdvlAHON: Probably not in totality, no. I don't think I did. I mean, I - I can't remember, but I would
             probably say no.

Id. at 53.

          And second, Neil Jokelson readily admitted that he was not qualified to explain petitioner's cognitive
deficiencies to a jury;

             iYffi... RUDENSTEIN: Did you ever advise Mr. McMahon that you didn't feel that you were the one that was
             qualified to testify as to Mr. Glass' medical conditions?
             iYffi... JOl<ELSON: Oh, I think that was obvious. And I considered myself, in a sense, a secondary source.
             And I had [a] real question in my mind as to whether I could even be qualified to testify to read in the
             testimony or read reports I had received from medical providers or had been offered before the federal court.

lrl,. at 186.

          Mr. McMahon was so unprepared as to be unaware mat Neil J okelson could not have illustrated me scientific
details necess:lry to understand the bruin injuries that petitioner suffered. Therefore, an e"'Planation as to how petitioner
(FN conI' d... )


                                                               5
                                                                                               Circulated 01/07/2015 10:25 AM




appellate rights must still pass through the three-pronged Stdckland/Pierce ineffectiveness test. As

petitioner failed to demonstrate (a) that his claim has arguable merit, as he entered into a valid

waiver, and (b) that there was a reasonable probability that, but for counsel's lack of preparation, he

would have elected to proceed to a penalty phase hearing, this Court was constrained to deny

petitioner relief.

         A waiver of appellate rights is the "functional equivalent of a plea of guilt." Commonwealth

v. Bames, 687 A.2d 1163, 1167 (Fa.Super. 1996). A criminal defendant's right to effective counsel

extends to the plea/waivet process. Commonwealth v. Willis, 68 A.3d 997, 1001 (pa.Super.2013).

An individual challenging counsel's representation during that cdtical stage bears the burden to

establish that (1) his underlying claim is of arguable merit, (2) counsel lacked any reasonable basis for

the act or omission alleged, and (3) that there is a reasonable probability that, but for the act or

omission challenged, the outcome of the proceeding would have been different. Commonwealth v.

Fowler, 893 A.2d 758, 765 (Fa. Super. 2006).

         In order for a guilty plea/waiver of appellate tights (waiver) to be constitutionally valid, "[a]ll

that is requited is that [a defendant'S] decision to [waive those rights] be Imowingly, voluntarily and

intelligently made." Commonwealth v. Brown, 48 AJd 1275, 1277 (pa.Super. 2012), quoting

Commonwealth v. Moser, 921 A.2d 526, 528-29 (pa.Super. 2007). If the totality of the

circumstances surrounding the plea or waiver shows that the defendant "understood what dle plea

[or waiver] connoted and its consequences," the plea or waiver will be deemed knowing, voluntary


(FN cont'd ... )
lacked the capacity to appreciate the criminality of his conduct couId only have corne from the records of petitioner's
civil case. As Mr. McMahon had not reviewed those records, he WaS not prepared to represent petitioner at his penalty
phase proceeding, which was imminent.

           In petitioner's civil cases, multiple New York University docrors were used to establish that petitioner had
endured significant brain injuries from the beating that he had suffered. Id. at 176. Mr. McMahon failed to secure
expert witnesses who could have explained, to thiJ jury, the science behind petitioner's cognitive damage. In fllct, !vir.
Mdvfahon was largely unaware of what those doctors had stated in the civil proceedings. N.T. 4/26/2013 at 65-67.
Although a persuasive case of mitigation could have bem presented, Mr. McMahon failed to take the steps to ensure that it
WQuld have bem presented.

                                                            6
                                                                                   Circulated 01/07/2015 10:25 AM




and intelligent. Commonwealth v. Fluharty, 632 A.2d 312, 314 (pa.Super. 1993). Even where an

omission or defect exists in a guilty plea colloquy, the plea will be valid as long as "the cttCU1Tlstances

surrounding the entry of the plea disclose that the defendant had a full understanding of the

nature and consequences of his plea and that he knowingly and voluntarily decided to enter the

plea." rd. (emphasis added).

        To demonstrate "arguable merit" when challenging an attorney's ineffectiveness in the

context of a plea, a petitioner must show that counsel's act or omission caused the defendant to

enter an involuntary or unknowing plea. Commonwealth v. Rathfon, 899 A.2d 36\ 369 (pa.Super.

2006). For an attorney to cause a defendant to enter into an involuntary or unknowing plea, the

attorney must negatively impact his client's understanding of the "nature and consequences of his

plea." Fluharty, 632 A.2d at 314; see also C01n1l1onwealth v. Hickman, 799 A.2d 136, 141 (pa.Super.

2002) (finding plea counsel ineffective where he advised the defendant to plead guilty based on the

e.xpectation that he could be released from prison in two yeats and eligible for parole in si.'{ months

when, in fact, the defendant was ineligible for patole until after serving at least four years in prison);

Rathfon, 899 A.2d at 371 (holding that plea counsel was ineffective for advising the defendant to

accept a plea which precluded the possibility of serving time in county jail, which was the sentence

that the defendant had bargained for); Commonwealth v. Barndt, 74 A.3d 185, 196 (pa.Super. 2013)

(finding plea counsel ineffective where he provided inaccurate information "regatding the maximum

setback time Appellant would receive as a consequence of his guilty plea"). In each situation, an

attorney's deficient performance was rooted in the fact that he had inaccurately advised his client

concerning a cOIJSeqNellce of pleading guilty.

        In the case mb jl/dice, petitioner's plea colloquy and the evidence introduced at the 908

HeMing demonstrated that petitioner understood "the natw:e and consequences" of his appellate

walver. After the juty found petitioner guilty of murder of the first degree and a host of other


                                                     7
                                                                                Circulated 01/07/2015 10:25 AM




crimes on October 21, 2008, the Case was ready to proceed to a penalty-phase hearing the next

morning. At that time, Mr. McMahon informed this Court that petitioner intended to waive his

appellate rights in. exchange for a guaranteed life sentence. N.T. 10/22/2008 at 5-6. Both £VIr.

McMahon and this Court questioned petitioner extensively about his decision to enter into the

waiver; petitioner testified under oath that he understood the consequences of waiving his right to a

penalty-phase hearing:

       MR. MdvfAHON: And what it is my understanding based on everybody's discussions, but
       most lmportantly you, that you're agreeing today to waive yoU! right to appeal both direct
       appeal to the Superior Court and/ or the Supreme Court and any Post-Conviction Relief Act
       action alleging either ineffective assistance of counselor any other cognizable PCRA hearing.
       Do you understand that?
       PETITIONER: Yes.
       MR. McMAHON: Okay. And you're giving up these rights today and to take any action in
       a Federal courthouse, that is to file a Federal habeas petition saying that the constitutional
       rights were deprived of you [sic] in this case. Do you understand that?
       PETITIONER: Yes.
       THE COURT: You mean that he was deprived of his constitutional rights?
       MR. McMAHON: Deprived of his constitutional rights, federal constitutional rights. Do
       you understand that?
       PETITIONER: Yes.
       MR. MclvIAHON: These are all options you would have at a later point in time, but you are
       agreeing to give those up and in return for that agreement to give those up -
       THE COURT: In addition, there's also no seeking of commutation [sic] sentence.
       MR. MclvfAHON: I will get to that, I'm sorry.
       THE COURT: Okay.
       MR. MdvfAHON: - agreement to give those up, those rights to appeal federally, post-
       conviction or direct appeals to the state court, in return for that for your agreeing [sic] to do
       that, the Commonwealth will not seek the death penalty against you and the sentence of life
       in prison will be imposed, the jury will not be asked to find the death penalty and they will
       be excused. Do you understand that?
       PETITIONER: Yes.
       lvlR. McMAHON: And you understand that also in addition to that there's going to be a
       sentence, agreed upon sentence of 20 to 40 years on the shooting of Tyreese in this case, but
       as I spoke to you in the back, a life sentence is a life sentence, so that really won't add any
       more time to your case. Do you understand that?
       PETITIONER: Yes.
       MR. McMAHON: Okay. And you understand that you are also pursuant to this agreement
       giving up yow: right to ask a governor at some point in time to commute your sentence or a
       parole board to pardon you or the governor to pardon you at a later point in time. Do you
       understand that?
       PETITIONER: Yes.


                                                   8
                                                                                 Circulated 01/07/2015 10:25 AM




        MR. McMAHON: So in essence then what you're giving up is the right to take any further
        action on this case after today legally and in return for that you will be sentenced to what we
        just said is life in prison with the 20 to 40 years, but you will not subject yourself to any
        possible death sentence or being on death row or anything of the sort. Do you understand
        that?
        PETITIONER: Yes.
        MR. Mdv1AHON: You've had an opportunity to talk this over with me; correct?
        PETITIONER: Yes.
        MR. Mdv1AHON: Talk it over with your family; correct?
        PETITIONER: Yes.
        MR. Mdv1AHON: Okay. And is this your - and you understand that Pennsylvania means
        life without the possibility of parole? Do you understand that; correct?
        PETITIONER: Yes.
        THE COURT: A life sentence means you will be in prison for the rest of your life.
        MR. McMAHON: Okay. Do you understand that? Right?
        PETITIONER: Yes.
        MR. MdvLAHON: But you also understand that as a result of this that you will not be in
        prison on death row because of your agreement here today? Do you understand that?
        PETITIONER: Yes.



        Petitioner agreed that he entered into the waiver of his own free will because of his "own

self-interest to avoid the death penalty." Id. at 17. However, towards the end of the colloquy,

Assistant District Attorney (ADA) Michael Batry stated, "He has to admit that he did it." Petitioner

protested, "1 didn't do it." rd. at 18. This Court asked petitioner whether he wished to proceed

with a penalty phase hearing, to which he responded, ''Yes.'' rd. Immediately thereafter, this Court

explained the machinery of a penalty-phase hearing and reminded petitioner that it was his decision

either to go forward with the hearing or to waive his rights. Id. at 25. This Court then took a recess

and permitted petitioner to consider the best course of action with the help of Mr. McMahon, family

members, as well as with Neil Jokelson, Derrick Jokelson and David Jokelson - three attorneys who

had represented petitioner in the civil suit that he had brought against the City of Philadelphia yeats

earlier. N.T. 10/22/2008 at 30-35. Following the recess, Mr. McMahon informed this Court that

petitioner had reversed course and wished to complete the waiver. rd. at 36. This Court asked




                                                   9
                                                                                               Circulated 01/07/2015 10:25 AM




petitioner whether he had been "pressured or threatened in any way in giving any answers that

you've given here to the Court." Petitioner responded, "No." Id. at 41.

         :1n this PCRA litigation, petitioner challenged the voluntatiness of that waiver, contending

that he had, in fact, been pressured to answer as directed by Mr. McMahon and the Jokelson

attorneys. Petitioner testified at the 908 Hearing that Mr. McMahon and the Jokelsons were "an

intellectual influence oYertop of me" and had "coaxed and cajoled" him to waive his rights. N.T.

4/29/2013 at 86. Petitioner described the attorneys' influence as a "spell" which he could not

"break" rd. at 122-23.

         This Court found that a few individuals with whom petitioner spoke prior to concluding his

waiver of appellate rights attempted to persuade hUn that it Was in his best interest to enter into the

nppellate waiver. Although Mr. McMahon, the Jokelson attorneys, petitioner's father, and

petitioner's step-mother 13 tried to convince petitioner to accept the waiver, their pre-waiver

discussions did not adversely impact petitioner's understanding of the "nature and consequences" of

his plea. Petitioner's father, Reuben Glass, advised his son to waive his appellate rights in exchange

for a guaranteed life sentence. N.T. 4/29/2013 at 24. Reuben Glass's significant other, Jane Malloy,

also told petitioner to "take the waiver." Id. at 101. Neil J okelson testified that he encouraged

petitioner to waive his appellate rights, as it seemed to be the best option:

         My only motivation was to get him the best possible life that he could get; that is, and by life,
         r mean existence. And if the choice were between living in a solitary confinement and
         ultimately being exposed to death as opposed to being in general population, I thought that
         the choice was clear. And I did, or I would have told him that.

N.T. 4/26/2013 at 213.

         David Jokelson stated that he shared with petitioner his «opinion as to what I thought would

be in his best interest when I was asked." N.T. 4/26/2013 at 273. He suggested accepting life in


[3 Although Reuben Glass, petitioner's father, and Jane Malloy were not officially married, they lived together as partners
for more than 20 years. Ms. Malloy considers petitioner to be her step-son. N.T. 4/26/2013 at 41.

                                                            10
                                                                                 Circulated 01/07/2015 10:25 AM




pnson. rd. Derrick Jokelson remembered that he and petitioner had a prolonged conversation,

during which both he and petitioner grew emotional as they confronted this difficult decision. Id. at

241-42. "It was a very emotional discussion. And a.t the end of the discussion, I think we were both

in teats, and he decided to take the deal. That's my recollection. I don't know how to answer it

better." Id. at 242. At the conclusion of their conversation, petitioner "had made an affirmative

decision" to accept the waiver. Id.

        If anything, these endeavors to convince petitioner that it was in his best interest to waive his

appellate rights would have helped to illuminate the dire consequences at issue. At the 908 Hearing,

petitioner did not claim that the pre-waiver discussions prevented hlm from understanding the

nature and consequences of his waiver. In fact, petitioner acknowledged that he did, in fact,

understand when this Court explained the cost of receiving a guaranteed life sentence:

        ADA RITIERMAN: And continuing, do you recall her saying: ''You have to make that
        decision, just like you decided you did not wish to plead guilty and wanted to go to trial, just
        like you decided that you did not wish to testify and wished me to tell the jury that you had
        no burden of providing any evidence. So now it's time for you to decide in this case
        whether you wish to be able to take an appeal or not. The only way you're going to preclude
        us going to a penalty-phase hearing is by agreeing to not take an appeal or pursue post-
        conviction collateral rights." Do you recall that?
        PETITIONER: Yes, I do.
        ADA RITIERlvLAN: And did you understand that at d1e time?
        PETITIONER: I understood as she was telling me at the time, yes, I did.

N.T. 4/29/2013 at 94-95.

        ADA RITIERlYLAN: And do you recall the Court saying to you - we're on Page 26 - "I
        don't want you to give up your appellate rights and be under any impressions that you'll be
        able to challenge your convictions if you want. It's an important decision. And if you're
        giving up your appellate rights in order to avoid the possibility of getting a death sentence, I
        want you to understand exactly what you're giving up." Do you recall that?
        PETITIONER: Yes.
        ADA RlTTEIUvLAN: And did you understand that?
        PETITIONER: I understood that.

ld. at 95-96.



                                                   11
                                                                                   Circulated 01/07/2015 10:25 AM




        Additionally, as petitioner swore under oath that he had not been pressured into entering

into the appellate waiver, he is bound by that testimony and may not now assert grounds for

withdrawing his waiver which contradict those statements. Commonwealth v. Titnchak, 69 A.3d

765,774 (pa.Super. 2013). Although Mr. McMahon had inadequately prepared to present mitigation

evidence at a penalty phase hearing, a fact this Court did not countenance and struggled with during

the pendency of this litigation) his failure do so did not negate petitioner's understanding of the

"nature and consequences" of entering into the waiver. Not only did petitioner testify during the

waiver colloquy that he was aware of the consequences of the waiver, but he also conceded at the

908 Hearing that he understood this Coures explanation of the results which flowed from entering

into the appellate waiver. Accordingly, petitioner failed to demonstrate that N1r. McMahon's

deficient preparation vitiated his knowing, intelligent and voluntary waiver.

        Even if petitioner's allegation of ineffective assistance had "arguable merit," it still would

have failed, as petitioner did not demonstrate "prejudice." Deficient preparation - even in

anticipation of a penalty phase hearing - does not constitute per se ineffective assistance of counseL

Commonwealth y. Sepulveda, S5 A.3d 1108, 1129 (Fa. 2012) ("[E]ven if the investigation conducted

by counsel was unreasonable, this fact alone will not result in relief if the defendant cannot

demonstrate that he was prejudiced by counsel's conduct."). The "prejudice" prong of the

Strickland/Pierce test applies with equal force whether an individual entered a plea or proceeded to

trial. Timchak, 69 A.3d at 770, qt/otillg Rathfon, 899 A.2d at 370 (('[W]ith regard to the prejudice

prong, where an appellant has entered a guilty plea, the appellant must demonstrate 'it is reasonably

probable that, but for counsel's errors, he would not have pleaded guilty and would have gone to

trial.'''). In Timchak, a PCRA petitioner claimed that plea counsel was ineffective for failing to

sufficiendy investigate and pursue viable defenses; the petitioner claimed that the attorney's failure

to prepare properly deprived the petitioner of the opportunity to engage in an infonned discussion


                                                    12
                                                                                      Circulated 01/07/2015 10:25 AM




about the ptospect of challenging the Commonwealth's ptoof at trial versus pleading guilty. Id. at

770. The Superior Court held that plea counsel was not ineffective because, among other reasons,

petitioner failed to demonstrate that, but for counsel's purportedly inadequate investigation, he

would not have pled guilty and instead would have gone to trial. Id. at 774.

         In this case, petitioner failed to demonstrate that, but for counsel's lacking penalty phase

preparation, petitioner would have elected not to waive his appellate rights and would have instead

proceeded to the penalty phase hearing. Petitio net testified that he wanted go through with a

penalty phase hearing in order to "fight for (his] freedom," but he succumbed to pressure exerted on

him by the Jokelson attorneys. N.T. 4/29/2013 at 7S-82. In fact, petitioner averred that neither Mr.

Mclvlahon's opinion nor his preparation factored into petitioner's decision:

        PETITIONER: Listen, I never really paid Mr. McMahon no tnind from day one. I gave
        him his defense. I gave him his opening statements. I did that. He never did nothing.
        That's why I said when he came to see me, he never even discussed a defense. Anyway, I
        wasn't - I wasn't listening to his opinion. It was Neil- it was the Jokelsons that coaxed me
        into taking that waiver. They shrouded me with two on one side and the other one on the
        other side, and Jack was whispering things, but it was them rubbing my back as I said it.
        "Go thtough with it," you know, and all that kind of stuff. I - no way in the world I would
        have did it.

Id. at 82.

        At the 908 Hearing, petitioner never claimed that he was motivated to enter the waiver

because he had critically examined Mr. McMahon's preparation and felt it to be inadequate. In fact,

during a hearing before this Comt on June 17, 2011, petitioner admitted that, at the time he entered

into the appellate waiver, he did not know that Mr. McMahon was ill-prepared to proceed with a

penalty-phase hearing. N.T. 7/11/2011 at 20-21 ("I -in hindsight I know. I didn't know at the

time."); NT 4/29/2013 at lOS. As petitioner was unaware that Mr. McMahon was not ready for

t.he penalty phase, and generally preferred   to   ignore Mr. McMahon's input, it is clear that petitioner's

motivation to accept a guaranteed life sentence was not based on Mr. McMahon's deficient

performance. Petitioner failed to demonstrate that, but for Mr. McMahon's inadequate preparation,

                                                       13
                                                                                                    Circulated 01/07/2015 10:25 AM




he would have rejected the appellate waiver and would have proceeded to a penalty-phase hearing.

AccordinglYt this Court properly determined that petitioner's claim failed.

(2) PCRA counsel rendered ineffective assistance for failing to argue that trial counsel was
ineffective for allowing the Jokelson attorneys to improperly coerce petitioner into waiving
his appeIIate rights. 14

          Petitioner claims that PCRA counsel was ineffective for failing to allege that trial counsel was

ineffective for allowing the Jokelson atto.r:neys to coerce him to waive his appellate rights.

Additionally, petitioner contends that trial counsel was ineffective for failing to correct the Jokelson

attorneys when they attempted to influence petitioner to accept the waiver by representing that there

were no worthwhile appellate issues to litigate. As noted .flljJra, petitioner alleged that he was

"coaxed and cajoled into this waiver." N.T. 4/29/2013 at 86. "They cajoled me through the whole

process." rd. at 118. Petitioner stated that he only waived his appellate rights because Mr.

McMahon and the Jokelsons were "an intellectual influence overtop [sic] of me/' rd. at 86.

Petitioner's cIaim fails, as he may not now attack his waivet by asserting grounds which directly

contradict statements that he made in a colloquy, under oath.

          «A defendant is bound by the statements made during the plea colloquy, and a defendant

may not later offet reasons for withdrawing the plea that contradict statements made when he pled."

Brown, 48 A.3d at 1277. In Brown, a PCRA petitioner claimed that he pled guilty because he «felt

coerced, at the time ofms plea hearing, to enter a guilty plea." rd. at 1278. However, as the

petitioner had stated during his guilty plea colloquy that he had decided to plead guilty, and that he


l-I Petitioner claims that allegations ofPCRA counsel's ineffectiveness are reviewable for the first time on appeal.
19251J:1) Statement, 1/6/2014 at 2 n.l. In support of this position, petitioner refers to Commonwealth y. Lauro, 819
A.2d 100,109 (Fa.Sup!:r. 2002), which states that "PCRA counsel's (lssistance may be examined on appeal from the
denial of PCRA relief." In 2012, the Superior Court called LaurQ into doubt, stating that a majority of our Supreme
Court has endorsed the view that claims of PCRA counsel's ineffectiveness, post-iliant, may not be raised in the first
instance with an appelhte court. "Nonetheless, a majority of the Supreme Court agrees that issues ofPCRA counsel
effectiveness must be raised in a serial PCRA petition Or in response to a notice of dismissal before the PCRA court."
Common,£ealth v. Ford, 44 A,3d 1190, 1200 (Fa.Super. 2012). In this case, petitioner alleged that PCRA counsel was
ineffective for failing to argue that trilll counsel was ineffective for permitting the Jokelson attorneys to coerce petitioner
to waive his appellate rights. As this issue was raised to this Court before a notice of appeal was accepted, this Court
had an opportunity to review the issue and it is not being addressed for the first time on appeal.

                                                              14
                                                                                Circulated 01/07/2015 10:25 AM




was satisfied with counsePs representation, the petitioner was prohibited from "offer[ingJ

contradictory reasons for withcL:awing his plea,)) rd. "Appellant may not be pleased with the results

of entering a guilty plea, but he cannot now obtain relief by claiming he felt pressuted by counsel to

plead guilty." rd.

        Likewise, petitioner repeatedly acknowledged that he had not been coerced to waive his

appellate rights. Accordingly, he is precluded from now claiming that either his attorney or the

Jokelsons "coerced and cajoled" him into waiving his rights.

        During a colloquy with this COutt and Mr. McMahon, petitioner testified that he was

satisfied with Mr. McMahon's advice, and that he was choosing to waive his appellate tights of his

"own free will ... to avoid the death penalty." N,T. 10/22/2008 at 16~17. Shortly theteafter,

petitioner equivocated about his decision, rd. at 18-19. After infortning petitioner of the possible

consequences of proceeding to a penalty phase, tllls Court permitted petitioner an opportunity to

discuss his decision further with his attorney and with his family. Id. at 18-35. When petitioner

returned to open court, he teaffirtned that he was the one who elected to waive his appellate rights,

and that he had not been «pressured or threatened in any way." Id. at 41-42.

       THE COURT: As to the answers that you've given here today while we've been having this
        discussion about the waiver of yout appellate and Post-Conviction Relief Act rights, were
        you pressured or threatened in any way in giving any answers that you've given here to the
        Court?
       PETITIONER: No.
       THE COURT: Alldght. You understand as I've indicated to you previously that you will
       be bound by, that means stuck with, the answers that you've given me here today under oath
       in open comt with four attorneys present?
       PETITIONER: Yes.
       THE COURT: And is the decision to give up those appellate rights and FCRA rights,
       commutation and pardon, being able to seek tl1at, et cetera, has that all been your decision?
       Who made that decision for you to give up those rights?
       PETITIONER: I did.
       THE COURT: All right: Then I am - and did you have any questions at all whatsoever for
       me at this point?
       PETITIONER: No.
       THE COURT: All right. Then I am making a fInding that Mr. Glass has knowingly,
       intelligently, and voluntarily given up those appellate rights both for db:ect appeal as well as
                                                  15
                                                                                  Circulated 01/07/2015 10:25 AM




        post-conviction relief collateral right to seek a challenge to his conviction, to seek
        conunutation and pardon in exchange for the penalty phase not taking place and the
        possibility of a death sentence being imposed being taken off the table.



        As petitioner's statements under oath directlY contradict petitioner's current contention that

he had been "cajoled" into waiving his appellate rights, this claim fails.

        For the foregoing reasons, this Court properly denied and dismissed petitioner's PCRA

petition and the dismissal should be affirmed.

                                                         BY THE COURT:




                                                          *.~
                                                         M. TERESA SARlvII A                   J.




                                                    16
