J-S75020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RANDY FLYNN ANDERSON                       :
                                               :
                       Appellant               :   No. 716 WDA 2019


              Appeal from the PCRA Order Entered April 25, 2019,
                in the Court of Common Pleas of Greene County,
             Criminal Division at No(s): CP-30-CR-0000191-2014.


BEFORE:      STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                               FILED MAY 6, 2020

        Randy Flynn Anderson appeals pro se from the order denying his first

timely petition for relief filed pursuant to the Post Conviction Relief Act. 42

Pa.C.S.A. §§ 9541-46. We affirm.

        This Court previously summarized the pertinent facts and procedural

history as follows:

              On March 10, 2015, [Anderson] entered a negotiated
           guilty plea to [involuntary manslaughter and related]
           charges in the shooting death of Terry Weyrick. The court
           proceeded immediately to sentencing, and [Anderson]
           received an aggregate sentence of fourteen to twenty-eight
           years of incarceration. The sentencing transcript did not
           reflect that [Anderson] requested plea counsel to file post-
           sentence motions or a direct appeal on his behalf.

              On March 26, 2015, while represented by counsel,
           [Anderson] pro se filed a motion seeking to withdraw his
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S75020-19


        guilty plea and averring that counsel “falsely represented
        him” by informing an unnamed witness to “stay home” on
        the day of the guilty plea. Subsequently, plea counsel filed
        a petition to withdraw her representation, which the trial
        court granted. New counsel was appointed, and [Anderson]
        subsequently filed motions seeking the removal of new
        counsel, permission to proceed pro se, and for the
        appointment of standby counsel.

           On March 21, 2016, the court held [a hearing pursuant
        to Commonwealth v. Grazier, 713 A.3d 81 (Pa. 1998)].
        At the conclusion of the hearing, the court permitted
        [Anderson] to represent himself, denied [his] request for
        standby counsel, and ordered [Anderson] to file a brief
        arguing the timeliness of his post-sentence motion. On May
        25, 2016, the court denied [Anderson’s] post-sentence
        motion.

Commonwealth v. Anderson,           170   A.3d   1237   (Pa.   Super.   2017),

unpublished memorandum at 1-2 (citations to record and footnote omitted).

Anderson filed a pro se appeal to this Court. On May 19, 2017, we quashed

his appeal as untimely.

     On February 14, 2018, Anderson filed a pro se PCRA petition.

Thereafter, the PCRA court appointed counsel, but following Anderson’s

written request to proceed pro se, the court held another Grazier hearing.

Thereafter, the PCRA court granted Anderson leave to proceed pro se.

Anderson filed an amended PCRA petition on December 20, 2018.

     On March 5, 2019, the PCRA court held an evidentiary hearing at which

Anderson, his witness, Michael Matthews, and plea counsel testified. By order

entered April 25, 2019, the PCRA court denied Anderson’s PCRA petition. This

timely appeal followed.   Both Anderson and the PCRA court complied with

Pa.R.A.P. 1925.

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      Anderson now raises the following two issues:

         1. Did the [PCRA court] place far-too-much [sic] reliance on
            the letter [Anderson] asserted that he received on
            February 17, 2015 from [plea counsel]; a letter [which]
            she [categorically] denied composing, that the court, in-
            turn, negated the substantial weight of [Anderson’s]
            numerous other meritorious claims?

         2. Did [Anderson’s] numerous averments before the court
            in his petition(s), filing(s), exhibit(s) and evidentiary
            hearing establish enough merit that [the] plea entered,
            (in-fact & in law) was compounded by the ineffective
            assistance of counsel; abandoning [Anderson’s]
            constitutional right to prove his innocence before the
            court in a judicial trial, in such a way that, withdraw of
            such plea should have been afforded?

Appellant’s Brief at 3 (excess capitalization omitted).

      The Superior Court’s standard of review of the denial of a PCRA petition

is limited to examining whether the court’s rulings are supported by the

evidence of record and free of legal error. Commonwealth v. Volk, 138 A.3d

659, 661 (Pa. Super. 2016).

      Anderson’s issues essentially involve his claim that plea counsel’s

alleged ineffectiveness caused him enter his guilty plea. To obtain relief under

the PCRA premised on a claim that counsel was ineffective, a petitioner must

establish by a preponderance of the evidence that counsel's ineffectiveness so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place. Commonwealth v. Johnson, 966

A.2d 523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to

be constitutionally adequate, and counsel will only be deemed ineffective upon


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a sufficient showing by the petitioner.” Id. This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his or her action or inaction; and (3)

petitioner was prejudiced by counsel's act or omission. Id. at 533.

      Ineffective assistance of counsel claims arising from the plea bargaining-

process are eligible for PCRA review. Commonwealth v. Kelley, 136 A.3d

1007, 1012 (Pa. Super. 2016). 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 into an involuntary or

unknowing plea. Id. at 1013. When 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.

      As noted above, Anderson, his one witness, and plea counsel testified

at the PCRA evidentiary hearing. First, Anderson claimed multiple instances

when plea counsel was ineffective in representing him, which purportedly

induced him to plead guilty. As part of these claims, Anderson testified about

a letter he said plea counsel sent to him. Our reading of the hearing transcript

supports the Commonwealth’s summary of Anderson’s testimony in this

regard:

             [Anderson] then read a letter he purportedly received
          from [plea counsel] encouraging him to plead guilty despite
          his assertions of innocence; cautioning at trial “you would
          lose and embarrass both of us”; asserting that “being

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         blacked out drunk is no excuse nor a criminal defense for
         taking a life in cold blood” although the incident occurred
         when “you were very drunk” and “the victim was harassing
         you”; opining that “the fact finder would have no issue
         reaching a verdict of guilty and then you could face the
         death penalty” adding “I would benefit [sic] about 10 years
         on death row or a sentence of life imprisonment, you’d
         regret not taking a plea that I’m willing to take my time
         getting for you”; and disparaging the value of “good
         character” witnesses.

Commonwealth’s Brief at 7-8 (citation to record omitted). The Commonwealth

cross-examined    Anderson    concerning    each      ineffectiveness   claim   and

challenged the authenticity of the letter at issue.

      Anderson next called Michael Matthews, a person who was going to

provide character testimony on his behalf at trial.         Matthews claimed he

received a message from plea counsel the day before the plea hearing advising

him that he need not appear. See N.T., 3/5/19, at 50.

      Plea counsel then testified on behalf of the Commonwealth.                The

Commonwealth summarized her testimony as follows:

             [Plea counsel] testified that she received discovery, to
         include the “GSR” (gunshot residue) report and reviewed
         the discovery with [Anderson]. She produced a December
         16, 2014 letter whereby she sent additional discovery to
         [Anderson]. She compared this letter to the letter produced
         by [Anderson] noting the differences to include the
         letterhead, e-mail address, spelling of “Greene”, font, paper
         stock, and initials at the end. Referring to the letter
         submitted by [Anderson], she stated: “This is not my letter,
         I did not write this letter.” She submitted a letter that she
         sent to [Anderson] following his guilty plea. This letter
         referenced his post-sentence and appellate deadlines. She
         testified that [Anderson] never asked her to file a request
         to withdraw his plea. As his pro se request [to withdraw his



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         plea] alleged her ineffectiveness, she filed a motion to
         withdraw.

            [Plea counsel] testified that, during the course of her
         representation of [Anderson] she reviewed “at length” the
         evidence as well as potential defenses, to include
         [Anderson’s] [initial] assertion [to police] that the gun had
         accidently discharged. She stated that [Anderson] never
         denied recollection or claimed he had “blacked out” during
         the incident or while providing statements to the police. She
         knew of no legal basis for filing a motion to suppress “based
         on my reading of the evidence at the time.” She prepared
         for trial while disclosing potential plea offers. She had
         “advised [Anderson] from the very beginning that the
         Commonwealth was not seeking the death penalty[.]” If the
         case had proceed to sentencing following a trial or open
         plea, she would have presented the testimony of character
         witnesses.

Commonwealth’s Brief at 10-12 (citations to record omitted).

      Following Anderson’s brief cross-examination of plea counsel, the PCRA

court asked plea counsel additional questions about the authenticity of the

letter presented by Anderson. She reiterated, “I’m categorically saying I did

not write that.” N.T., 3/5/19, at 75.

      In its concluding comments, the PCRA court stated, “I really think that

everything kind of turns on this letter - - that you’re saying, that you - - and

lots of other things you’re saying, that your attorney was ineffective, that as

a result of her ineffectiveness it forced you to enter a plea of guilty, and that

you believe that you were potentially facing the death penalty if you didn’t

enter a plea to the charges[.]” N.T., 3/5/19, at 85. When the court asked

Anderson if it understood his claims correctly, Anderson responded, “That’s

true.” Id.


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      By order entered April 25, 2019, the PCRA court denied Anderson’s PCRA

petition.     After recognizing that the gravamen of Anderson’s claim of

ineffective assistance “is a plea of guilty unlawfully induced,” Order, 4/25/19,

at 1, the court stated:

               The Court as finder of fact believes the determination of
            facts with regard to the authenticity of [the letter produced
            by Anderson] is critical to the Court’s decision as to whether
            [plea counsel] was effective in her representation.

Id. at 4. The PCRA court then discussed the conflicting testimony regarding

the author of the letter and its contents, and ultimately concluded that the

letter “is not authentic, and therefore, will not be considered by the Court.”

Id. at 6.

      In his first appellate issue, Anderson claims that the PCRA court placed

too much emphasis on the authenticity of the letter to the detriment of his

other ineffectiveness claims.       As a matter of credibility, the PCRA court

believed plea counsel’s version of the contested facts. We cannot disturb this

determination. See Commonwealth v. Harmon, 738 A.2d 1023, 1025 (Pa.

Super. 1999) (explaining that when a PCRA court’s determination of credibility

is supported by the record, it cannot be disturbed on appeal).           See also

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (explaining that,

because the record supports the PCRA court’s credibility determination, the

determinations are binding on an appellate court).           Notwithstanding our

inability to disturb the PCRA court’s credibility determinations, the PCRA court



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specifically stated that it did not consider the letter when it otherwise

determined whether Anderson’s plea counsel was ineffective. As such, this

issue warrants no relief.

      In his second issue, Anderson essentially claims that his numerous

ineffectiveness claims, as a whole or individually, establish his claim that

counsel’s ineffectiveness caused him to enter a guilty plea.     In its order

denying Anderson’s PCRA petition, the PCRA court explained in detail why it

found no merit to Anderson’s multiple ineffectiveness claims:

            The Court will now take up the remaining PCRA issues
         raised by [Anderson]. In hearing the testimony of [plea
         counsel], the Court is convinced that [she] is, and was, an
         experienced criminal defense attorney. The Court now
         determines that Anderson was never advised that he could
         be subject to the death penalty, without proper notice
         pursuant to the Rule of Procedure.

            The Court determines that [plea counsel] was prepared
         for trial. The Court recognizes that the charge was one of
         general homicide and that [Anderson’s] plea of guilty to the
         voluntary manslaughter charge presented significant benefit
         when he avoided exposure to the higher graded offenses of
         homicide.

            [Anderson] indicates in his PCRA Petition that [plea
         counsel] was ineffective because he was never advised that
         voluntary intoxication is a defense to a first degree murder
         charge. The Court now determines that [plea counsel] was
         an experienced criminal defense attorney and the Court
         determines that proper advice was given as to the use of
         voluntary intoxication as a defense.

             [Anderson] indicates in his PCRA Petition that plea
         counsel was ineffective when she did not coach [him] for
         allocution. The Court recognizes and put great weight on
         the testimony of [plea counsel] when she indicates that a
         negotiated plea agreement generally does not require
         significant allocution by the [defendant]. The Court also

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       recognizes that had there been an open plea and
       discretionary sentencing by the [trial court] that the need
       for [Anderson] to present himself in a favorable light would
       have been addressed by [plea counsel].

          [Anderson] indicates in his PCRA Petition that plea
       counsel was ineffective when she failed to visit the [crime]
       scene. The Court determines that [plea counsel] was not
       ineffective when she failed to visit the scene [because] there
       was no need for her to visit the scene. This was a negotiated
       plea agreement, and the Court is convinced that [plea
       counsel] would be fully prepared had the matter proceeded
       to trial.

          [Anderson] indicates in his PCRA Petition that plea
       counsel was ineffective when she did not call character
       witnesses. The Court determines that there was no need
       for the calling of character witnesses as this was a
       negotiated plea agreement presented to and accepted by
       the [trial court].

          [Anderson] indicates in his PCRA Petition that plea
       counsel was ineffective when she did not share discovery
       with him.    Attorney Harry Cancelmi, the chief public
       defender of Greene County, was original [counsel] for
       Anderson. [Plea counsel] was later hired and retained by
       [Anderson]. [Plea counsel] received discovery materials
       from various sources and provided those to [Anderson].

          In hearing the testimony of Anderson, he indicates that
       [a Commonwealth witness] stated that [the witness]
       handled the .22 rifle. Anderson suggests that the latent
       fingerprint report did not show the fingerprints of [the
       Commonwealth’s witness. [See PCRA Exhibit 1.] Anderson
       posits that [the witness] was untruthful about handling the
       gun, as [the witnesses’] fingerprints were not found.

          [Anderson] also indicates that the gunshot residue
       evidence reveals that gunshot residue was found on both
       [the Commonwealth witness] and Anderson. [See PCRA
       Exhibit 2.] Anderson suggests that exhibits 1 and 2 are
       exculpatory and were not provided to him in discovery. In
       hearing the testimony of Anderson and [plea counsel], the
       Court now determines that all discovery was provided to
       [Anderson] prior to the entry of his plea of guilty.


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            [Anderson] indicates in his PCRA Petition that plea
         counsel was ineffective when she did not seek suppression
         of [Anderson’s] statements made to the State Police.
         Presumably, [Anderson] seeks suppression based on his
         level of intoxication, now suggesting that he was so
         intoxicated at the time of the statements that he was unable
         to consent. [Plea counsel] indicated that she did not believe
         the statements were subject to suppression, but instead
         would go to the trier of fact to determine weight.

PCRA Court Opinion, 4/26/19 at 6-11 (footnotes omitted).

      Again, our review of the record supports the PCRA court’s conclusions.

The PCRA court credited the testimony of counsel over the testimony and

other allegations made by Appellant at the PCRA hearing. We cannot disturb

this determination. See Commonwealth v. Battle, 883 A.2d 641, 648 (Pa.

Super. 2005) (explaining that credibility determinations are solely within the

province of the PCRA court).

      Additionally, we note that Anderson is bound by the statements he made

in his written plea colloquy and his statements made during the oral colloquy.

See generally, Commonwealth v. Pollard, 832 A.2d 517 (Pa. Super.

2003).   In this appeal, Anderson essentially attempts to contradict his

statements by raising multiple claims of plea counsel’s ineffectiveness. This

he cannot do.

      Finally, to the extent Anderson claims “cumulative prejudice” in light of

his many ineffectiveness claims, we note that the aggregation of meritless

claims will not establish counsel’s ineffectiveness—no “cumulative’” prejudicial

effect can be found when each individual claim of ineffectiveness lacks merit.

Commonwealth v. Fisher, 813 A.2d 761, 773 (Pa. 2002)(citation omitted).

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      In sum, because our review of the record supports the PCRA court’s

determination that Anderson’s claims of ineffectiveness lack merit, we affirm

its order denying Anderson post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2020




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