J-S08013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    VICTOR THOMAS, JR.,

                             Appellant                   No. 939 EDA 2018


              Appeal from the PCRA Order Entered March 8, 2018
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003966-2014


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED APRIL 22, 2019

        Appellant, Victor Thomas, Jr., appeals pro se from the post-conviction

court’s March 8, 2018 order denying his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we affirm.

        A detailed recitation of the facts underlying Appellant’s convictions is not

necessary to our disposition of his appeal. We need only note that on April

26, 2014, Appellant and his brother committed an armed robbery of Rodney

Jacks. See N.T. Plea/Sentencing Hearing, 8/31/15, at 4. For this act,

              Appellant was charged with [r]obbery and related offenses.
        On August 31, 2015[,] while represented by defense counsel,
        Melissa A. McCafferty, Esquire, Appellant entered into a
        negotiated guilty plea agreement to three of the nine counts
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       charged: (1) [r]obbery (18 Pa.C.S.[] §[] 3701(a)(1)(ii)); (2)
       [c]onspiracy to [commit r]obbery (18 Pa.C.S.[] § 903(3)…); and
       (3) [p]ersons [n]ot to [p]ossess a [f]irearm (18 Pa.C.S.[] §
       6105(a)(1)). As agreed, Appellant was sentenced to 5½ to 16
       years of state incarceration plus 5 years of consecutive probation.
       Subsequently, Appellant filed a Pro Se Habeas Corpus Motion for
       Sentence Reconsideration on September 10, 2015. Before the
       court could address this [m]otion, Appellant filed a Pro Se Motion
       to Withdraw on September 22, 2015.

             Appellant filed this present PCRA [p]etition on September 1,
       2016. The PCRA [p]etition was assigned to PCRA counsel, Robert
       Brendza, Esquire[,] on September 29, 2016[,] and [was]
       reassigned to new PCRA [c]ounsel, C. Curtis Norcini, Esquire[,] on
       February 6, 2017. The court subsequently granted [Attorney]
       Norcini’s request for additional time to investigate Appellant’s
       claims and to review the record. [Attorney] Norcini filed a Motion
       to Withdraw as PCRA Counsel on August 18, 2017[,] and attached
       a copy of his [Turner/]Finley[1] letter.

              A 20[-]day notice pursuant to Pa.R.Crim.P. 907 was
       forwarded to Appellant on September 12, 2017. Thereafter, [he]
       filed a pro se [a]mended PCRA [p]etition titled[,] “Motion for 2nd
       Post Conviction Relief Act” on November 3, 2017. After reviewing
       [Appellant’s] pro se submission, this court continued to find that
       there were no genuine issues concerning any material fact, that
       Appellant was not entitled to [PCRA] relief, and that no purpose
       would be served by any further proceedings in this matter.

             Appellant filed this present appeal on March 27, 2018. A
       Pa.R.A.P. 1925(b) [o]rder was issued on April 4, 2018. On April
       30, 2018, Appellant filed a “Motion For Appointment of Counsel,
       Concerning Appellate Procedures and Further PCRA Procedures in
       The Superior Court[.”] In his [m]otion, Appellant also requested
       an extension of time to file his [c]oncise [s]tatement of [e]rrors
       [c]omplained of on [a]ppeal. Appellant’s [m]otion was granted in
       part and denied in part. Appellant’s request for counsel was
       denied. His request for an extension was granted. The filing date
       was extended to May 23, 2018. Appellant filed his [c]oncise

____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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      [s]tatement on May 30, 201[8,] with proof of mailing on May 23,
      2018.

PCRA Court Opinion (PCO), 6/28/18, at 1-3 (footnotes and citation omitted).

      On appeal, Appellant presents three issues for our review:

      I.      Whether [t]he PCRA [c]ourt erred and failed to find a conflict
              of interest giving rise to ineffective assistance of counsel?

      II.     Whether [t]he PCRA [c]ourt erred and failed to find that
              [t]rial [c]ounsel was ineffective for giving false legal advice
              and inducing Appellant to plead guilty?

      III.    Whether [PCRA] [c]ounsel was ineffective for failing to raise
              [t]rial [c]ounsel’s ineffectiveness on all the above issues?

Appellant’s Brief at 3.

      We begin by recognizing the following legal principles, which guide our

review of Appellant’s issues:

            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. 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 [the] [a]ppellant to prevail on a claim of
            ineffective assistance of counsel, he must show, by a
            preponderance of the evidence, ineffective assistance of


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         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.     [The] [a]ppellant 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.

Commonwealth v. Patterson, 143 A.3d 394, 397-98 (Pa. Super. 2016)

(internal citations and quotation marks omitted).

      Appellant first contends that his trial counsel, Attorney McCafferty, was

ineffective because she had a conflict of interest that she did not disclose to

Appellant, and which compelled her to induce him into pleading guilty rather

than going to trial. Before addressing Appellant’s specific arguments, we note

that our Supreme Court,

      has held that an appellant cannot prevail on a preserved conflict
      of interest claim absent a showing of actual prejudice. We
      presume prejudice when the appellant shows that trial counsel
      was burdened by an “actual” — rather than mere “potential” —
      conflict of interest. To show an actual conflict of interest, the
      appellant must demonstrate that: (1) counsel “actively
      represented conflicting interests”; and (2) those conflicting
      interests “adversely affected his lawyer’s performance.”
      Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 251
      (2008). Clients’ interests actually conflict when “during the course
      of representation” they “diverge with respect to a material factual
      or legal issue or to a course of action.” Id.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa. 2012).

      In this case, Appellant claims that Attorney McCafferty had a conflict of

interest because at the time she was representing him, she was also


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representing a man named Elliot McDonald, who is friends with Rodney Jacks,

the victim of Appellant’s armed robbery. Appellant further explains that, on

April 25, 2014, Jacks and McDonald had shot at Appellant’s house (and

Appellant apparently returned fire), which was Appellant’s motive for robbing

Jacks the following day. Appellant claims that Attorney McCafferty induced

him to plead guilty in this case because, had Appellant gone to trial, he would

have testified that McDonald and Jacks had shot at his home, thus implicating

McDonald in that criminal activity. Appellant insists that Attorney McCafferty

advised him to plead guilty because his doing so would benefit McDonald by

keeping the shooting a secret, thus constituting a conflict of interest

amounting to ineffective representation.

      The PCRA court offered several sound reasons for rejecting this

ineffectiveness claim.   First, the PCRA court stressed that, according to

documents attached to Appellant’s amended petition, it was clear that the

police knew about the shooting between McDonald, Jacks, and Appellant. See

PCO at 5 (citing Amended Petition, 11/3/17, at Exhibit 2 (Coatesville Police

Department Incident Report)). Thus, the PCRA court concluded that “defense

counsel had no motive to hide facts that were already known to the

Commonwealth.” Id.

      Second, the court also found that Appellant had failed to show an ‘actual

conflict’ in counsel’s concurrently representing McDonald and Appellant. The

court recognized that Attorney McCafferty had represented McDonald on a

criminal matter filed against him on May 17, 2015. Rule 907 Notice, 3/8/18,

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at 1 n.1. Attorney McCafferty’s representation of McDonald had commenced

“26 days prior to [Appellant’s] guilty plea.”           Id.     However, Appellant

“admit[ted] that [] McDonald’s 2015 criminal case [was] unrelated to the

underlying criminal matter in [Appellant’s] case.”            Id.   (citing Amended

Petition at 2). Thus, the PCRA court concluded that there was “no conflict of

interest in a Chester County criminal attorney … representing two Coatesville

residents who know each other[,]” as “[Appellant’s] present case and []

McDonald’s 2015 case [were] entirely unrelated.” Id.

        Third, the PCRA court concluded that Attorney McCafferty’s dual

representation of Appellant and McDonald did not adversely affect her

representation of Appellant. The court stressed that,

        [Attorney] McCafferty took great pains to conduct discovery and
        file pre-trial motions. In the end, she obtained a very favorable
        outcome, a mitigated sentence for serious charges.[2] Under the
        facts presented, [Appellant] cannot meet his burden to show that
        [Attorney] McCafferty’s representation of him created a[n actual]
        conflict of interest or that she was ineffective in her legal
        representation of [Appellant].

____________________________________________


2   The court notes in its Rule 1925(a) opinion that,
        Appellant had a prior record score of 5 as a result of two prior F-
        3 juvenile adjudications, two F-3 convictions for [c]arrying [a
        firearm] [w]ithout a [l]icense, and one conviction for [p]ossession
        [w]ith [i]ntent to [d]eliver. If convicted on the charges in this
        matter, Appellant was facing a minimum aggregate sentence of
        15 years (180 months) +/- three years of incarceration. Appellant
        reduced his sentence by 63% in accepting the negotiated plea
        agreement of 66 months. This is a sentence at the bottom of the
        mitigated range of the sentencing guidelines.

PCO at 5 n.3.

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Rule 907 Notice at 1 n.1. We discern no error in the PCRA court’s rationale

for denying Appellant’s first ineffectiveness claim.

      Next, Appellant contends that Attorney McCafferty ineffectively induced

him to plead guilty by promising him that if he did, the Commonwealth would

not charge him with offenses relating to the April 25, 2014 shooting between

him and McDonald, yet Appellant was charged in that incident several months

after he entered his plea.    Appellant also claims that Attorney McCafferty

promised him a sentence of 5 to 10 years’ incarceration if he pled guilty, but

he received a sentence of 5½ to 16 years’ imprisonment instead.

      Our review of the record reveals that Appellant waived these claims.

Initially, in his amended petition, Appellant did not assert that counsel

promised him a sentence of 5 to 10 years. Thus, that claim is waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”).     Additionally, while Appellant did

mention, in his amended petition, that counsel purportedly told him that no

charges would be filed against him if he pled guilty, he embedded that claim

within his argument pertaining to counsel’s purported conflict of interest.

Appellant also did not separately or specifically set forth this claim in his Rule

1925(b) statement. See Rule 1925(b) Statement, 5/30/18, at 1 (“Whether

private counsel [Attorney] McCafferty … was ineffective, giving false legal

advice in contemplation of guilty plea.”). Thus, the PCRA court presumed that

Appellant’s vague statement of this issue in his Rule 1925(b) statement was

referring only to an ineffectiveness claim (which Appellant has abandoned on

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appeal) that was set forth in a section of his amended petition entitled, “Advice

relating to plea agreement.” See Amended Petition at 7 (arguing that counsel

misinformed him about certain consequences of his probationary sentence).

The court did not address Appellant’s allegation that counsel misinformed him

that he would not be charged with crimes stemming from the April 25, 2014

shooting because Appellant did not clearly delineate that as a separate

ineffectiveness claim in his amended petition, nor in his Rule 1925(b)

statement. Given this record, we deem this claim waived.3

       Next, Appellant avers that Attorney McCafferty ineffectively ignored his

request to obtain video evidence that would have shown McDonald and Jacks

shooting at Appellant’s house on March 27, 2014. Appellant claims that this

video “would have contradicted [t]he Commonwealth’s case, and prove[n

that] Rodney Jacks and Elliot[] McDonald [were] perpetrator’s [sic] and not

victims.” Appellant’s Brief at 16. Appellant’s argument is unconvincing. We
____________________________________________


3 Notwithstanding waiver, we would deem meritless Appellant’s two waived
ineffectiveness claims. At the plea proceeding, Appellant stated that “no
promises or threats were made” to compel him to plead guilty, thus belying
his current argument that Attorney McCafferty had promised him that he
would not be charged based on the April 25, 2014 shooting.              N.T.
Plea/Sentencing, 8/31/15, at 8. Additionally, at the outset of the plea
proceeding, the Commonwealth stated that the agreed-upon sentence was
“66 months to 16 years” with “two probationary tails running concurrent with
each other of five years … that would be consecutive to the 66 months to 16
years” of incarceration. Id. at 4. Appellant did not indicate that he was
promised a lesser sentence by Attorney McCafferty, nor express any
reservation or confusion about the sentence he would receive. Accordingly,
the record does not support his waived claims that he was induced to plead
guilty based on promises erroneously made to him by Attorney McCafferty.



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fail to see how a video of an unrelated shooting would have demonstrated

Appellant’s innocence in the subsequent armed robbery of Jacks. At best, the

video might have demonstrated Appellant’s motive for committing the

subsequent armed robbery of Jacks. However, possessing a motive to commit

a criminal act does not exonerate one from criminal liability therefore. Thus,

Appellant has not proven that he was prejudiced by counsel’s failure to obtain

this alleged video evidence.

      We also reject Appellant’s bald assertion that Attorney McCafferty acted

ineffectively by failing to interview witnesses. Appellant does not name any

individual(s) that counsel failed to contact, nor discuss what they would have

told her if she had.   Thus, he has failed to establish that these ostensible

witnesses existed, or that Attorney McCafferty’s failure to contact them caused

him prejudice. See Commonwealth v. Brown, 767 A.2d 576, 581-82 (Pa.

Super. 2001) (“To prevail on a claim of trial counsel’s ineffectiveness for failure

to call a witness, the [appellant] must show: (1) that the witness existed; (2)

that the witness was available; (3) that counsel was informed of the existence

of the witness or should have known of the witness’s existence; (4) that the

witness was prepared to cooperate and would have testified on appellant’s

behalf; and (5) that the absence of the testimony prejudiced appellant.”).

      Lastly, within his third issue, Appellant argues that his PCRA counsel

(whom he incorrectly refers to as ‘appellate counsel’) acted ineffectively by

filing a petition to withdraw and no-merit letter.      In Appellant’s amended

petition, he preserved this claim for our review. See Amended Petition at 8

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(“PCRA counsel … failed to investigate these facts [that Appellant] provided

him with, which led … PCRA [c]ounsel to prepare a no[-]merit/Finley letter.”).

However, given our conclusion that Appellant’s issues are either waived and/or

meritless, he has not demonstrated that his PCRA counsel acted ineffectively

by seeking to withdraw.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/19




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