J-S36010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

KEVIN LEEMON HARRIS

                            Appellant                 No. 1814 MDA 2015


                Appeal from the PCRA Order September 24, 2015
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0000150-2014



BEFORE: DUBOW, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 23, 2016

        Appellant, Kevin Leemon Harris, appeals from the order dismissing his

initial petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court, which also presided over the underlying proceedings

in this matter, summarized the pertinent factual and procedural history of

this case as follows:

           On August 25, 2014, [Appellant] entered a guilty plea to
           one count of the following offenses: Aggravated Assault
           with a Deadly Weapon (18 Pa.C.S.A. § 2702(a)(4)),
           Persons Not to Possess/Use Firearms (18 Pa.C.S.A. §
           6105(a)(1),  Terroristic  Threats    (18  Pa.C.S.A.    §
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       2706(a)(1)), Simple Assault by Physical Menace (18
       Pa.C.S.A. § 2701(a)(3)) and Recklessly Endangering
       Another Person (18 Pa.C.S.A. § 2705)). [Appellant] was
       sentenced to 5 to 10 years[‘] incarceration on Count 2
       Person Not to Possess/Use Firearms. [Appellant] received
       concurrent sentences on all the remaining counts. The
       sentence imposed was concurrent to a sentence of 27 to
       54 months that [Appellant] received on June 18, 2014 on a
       charge of aggravated assault in Case 1491-2013.

          On June 16, 2015, [Appellant] filed the within petition
       for post-conviction collateral relief asserting that he had
       been denied constitutional protections resulting in the
       impossibility of a reliable adjudication of guilt,
       ineffectiveness of counsel, that he had been unlawfully
       induced to enter a guilty plea and the imposition of a
       sentence greater than the lawful maximum. . . .

          This Court appointed counsel, other than trial counsel,
       to represent [Appellant] on his post-conviction proceeding
       and gave appointed counsel an opportunity to amend the
       pro se petition of [Appellant].      On July 9, 2015, the
       Commonwealth filed a response to [the] motion for post-
       conviction collateral relief requesting that the petition be
       dismissed because [Appellant] was not sentenced to a
       mandatory minimum sentence. On August 13, 2015, this
       Court issued a notice pursuant to Pa. R. Crim. P. 907 and
       proposed order that the petition was going to be
       dismissed.

          On August 14, 2015, [the PCRA] court appointed
       counsel for [Appellant, who] filed an amended petition for
       post-conviction collateral relief where [Appellant] alleges
       facts to support his claim that he is entitled to relief
       because his guilty plea was both unlawfully induced and
       the guilty plea was the result of ineffective assistance of
       counsel leading to an unknowing guilty plea. . . . By Order
       of Court dated August 17, 2015, this Court scheduled an
       evidentiary hearing for September 10, 2015. . . .

                                   ***
       At the evidentiary hearing conducted before this Court the
       testimony presented by [Appellant] and the testimony
       presented by the Commonwealth, through guilty plea

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       counsel Andrea Thompson, was not reconcilable as to
       significant issues in the case. [Appellant] testified that he
       did not want to enter a plea and he wanted to go to trial.
       [Appellant] testified that he picked a jury and was set to
       go to trial but on the day of the trial he decided to plead
       guilty because he did not feel his trial counsel was
       prepared because she did not have any witnesses.
       [Appellant] testified that his brother, Kashif Harris, and his
       mother, Beverly Edwards, would have testified at trial that
       the gun that he was convicted of possessing on the day of
       the incident was possessed by someone else.

       [Appellant] also presented the testimony of his brother,
       Kashif Harris. Kashif Harris testified that he would have
       been a witness for his brother but he was never contacted
       by the Public Defender's Office. Kashif Harris testified that
       he would have testified at trial that someone else was in
       possession of the firearm in question on the day of the
       incident. Kashif Harris testified that he took clothing to the
       Public Defender's Office but he never spoke to Attorney
       Andrea Thompson about his brother's case.

       The     Commonwealth      presented      the    testimony   of
       [Appellant’s] plea counsel, Attorney Andrea Thompson.
       The testimony of Attorney Thompson painted a completely
       different picture of the day of the trial when [Appellant]
       decided to plead guilty. Attorney Thompson stated that
       the reason that [Appellant] wanted to go to trial was that
       he did not believe that the victim in the case, who was his
       Aunt, was going to show up for trial. On the day of the
       trial, the victim was present and Attorney Thompson
       discussed with [Appellant] whether he was interested in
       pleading guilty. Attorney Thompson testified that she was
       able to get the District Attorney’s Office to agree to the
       original plea deal where [Appellant] would receive the
       minimum sentence of 5 to 10 years on the charge of
       persons not to possess a firearm and to have all the other
       charges run concurrent. The plea agreement negotiated
       with the District Attorney also called for this sentence to be
       concurrent to another aggravated assault case where
       [Appellant] pleaded guilty two months prior and was
       sentenced to 27 to 54 months.




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         Attorney Thompson also testified that she was prepared to
         go to trial on the day in question. She testified that the
         defense was hoping the victim would not show up but
         when the victim showed up she advised [Appellant] he
         may want to consider entering a guilty plea. Attorney
         Thompson testified that [Appellant] was in agreement to
         enter a guilty plea on the day of the trial and that she went
         over with [Appellant] the guilty plea colloquy and
         [Appellant] answered all of the questions and was in
         agreement that he wanted to enter the guilty plea.

         Attorney Thompson also testified to refute [Appellant’s]
         testimony that she did not speak to [Appellant’s] witnesses
         prior to trial. Attorney Thompson testified that she did
         speak, several weeks prior to trial, with [Appellant’s]
         brother and mother to see if they had any information that
         would be helpful to [Appellant].

         Attorney Thompson testified that she spoke to Kashif
         Harris several times. Attorney Thompson testified that
         Kashif Harris informed her that he did not know who
         possessed the firearm on the day of the incident. She
         testified that Kashif Harris’ testimony would not be
         favorable to [Appellant] but that she kept his phone
         number in case something came up in trial that she
         thought Kashif Harris’ testimony would be beneficial.
         Attorney Thompson also testified that she spoke to
         [Appellant’s] mother and that she was adamant that she
         did not want to be involved in the trial and did not want to
         testify in the case.

PCRA Court Opinion, 9/24/15, at 1-6.

      The PCRA court denied Appellant’s petition on September 24, 2015. In

doing so, the court explained that “[s]imply stated the Court did not find the

testimony of [Appellant] or his brother credible,” whereas the “events

testified to by Attorney Thompson” were “believable.” Id. at 9, 7. The court

did not find counsel’s representation of Appellant ineffective in any manner.

      On appeal, Appellant raises the following issue:

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         Whether the [PCRA] Court committed reversible error
         when it concluded that the Appellant’s guilty plea was
         knowingly, voluntarily and intelligently entered, when in
         fact, the Appellant was effectively coerced into pleading
         guilty due to the fact that his attorney was not prepared to
         effectively represent him at trial[?]

Appellant’s Brief at 19.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

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

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (internal citations omitted).

      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. Payne, 794 A.2d 902, 905 (Pa. Super. 2002).              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 905-06. In this context, a finding of “prejudice” requires

the petitioner to show “there is a reasonable probability that, but for the

error of counsel, the outcome of the proceeding would have been different.”


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Commonwealth v. Stevens, 739 A.2d 507, 512 (Pa. 1999).                      The law

presumes that counsel was effective, and it is the petitioner’s burden to

prove the contrary. Payne, 794 A.2d at 906.

         It is clear that a criminal defendant’s right to effective
         counsel extends to the plea process, as well as during trial.
         However, [a]llegations 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. 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.

Commonwealth v. Wah, 42 A.3d 335, 338-339 (Pa. Super. 2012)

(citations, quotation, and quotation marks omitted).

      “[T]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

made.” Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa. Super.

2010).   Moreover, with 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.”      Commonwealth v. Timchak, 69 A.3d 765,

769–70 (Pa. Super. 2013).

      Here, Appellant claims he entered his plea of guilty because he did not

believe his counsel was adequately prepared for trial.        When asserting a

claim of ineffectiveness of counsel in the context of a guilty plea, a


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defendant must show that plea counsel’s ineffectiveness induced him to

enter the plea.   Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa.

Super. 2005). On the question of ineffectiveness, this Court “must defer to

the credibility determinations made by the [PCRA] court that observed a

witness’s demeanor first hand.” Commonwealth v. Todd, 820 A.2d, 707

712 (Pa. Super. 2003). If the PCRA court credits the testimony of counsel

over that of the defendant at an evidentiary hearing, this determination

cannot be disturbed on appeal. See Commonwealth v. Battle, 883 A.2d

641, 648 (Pa. Super. 2005) (credibility determinations are solely within the

province of the PCRA court).

      Appellant contends that his trial counsel was ineffective because she

did not provide him with discovery while he was incarcerated so that he

could assist in the preparation of his defense; did not contact his brother,

Kashif Harris, or his mother, Beverly Edwards, to testify on his behalf; and

was generally unprepared for his trial. All of the foregoing, he maintains, led

him to feel he “had no choice but to plead guilty.” Appellant’s Brief at 23-

24. He therefore seeks to withdraw his plea and proceed to trial.

      Upon review, we find Appellant’s claims to be meritless.      The PCRA

court’s in-person credibility determinations are dispositive, particularly in

light of the fact that the PCRA judge presided over Appellant’s guilty plea, as

well as the evidentiary PCRA hearing.      See N.T., 8/25/14; 9/10/15.     The

PCRA court twice observed both Appellant and counsel, and ultimately found


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the testimony of trial counsel to be credible. Cf. Todd; Battle. As noted,

the court credited Appellant’s trial counsel and did not credit Appellant and

Appellant’s witnesses:

            Simply stated, we afford no credibility to the testimony of
            the defendant and find the events testified to by Attorney
            Thompson to be believable. We do not believe that at any
            time Attorney Thompson induced the defendant to plead
            guilty. To the contrary, the written guilty plea colloquy and
            the oral colloquy before this Court suggests otherwise. The
            defendant acknowledged his guilt in the written colloquy
            and before this Court; and now wants to refute the
            assertion of guilt. A defendant is bound by his statements
            given during a plea colloquy and record evidence rebutting
            claims concerning a plea agreement's voluntariness will
            cause the petition to be dismissed. Commonwealth v.
            Cappelli, 340 Pa. Super. 9, 489 A.2d 813 (1985). In light
            of the defendant's admissions to this Court directly, as well
            as the admissions and acknowledgements within the
            written guilty plea, one thing is clear: the defendant lied at
            some point in time. Thus, he either lied to the Court at the
            time of the guilty plea or is lying now.

PCRA Court Opinion, 12/9/15, at 7-8.

          In sum, we discern no legal error relative to the PCRA court’s

determinations as to Appellant’s guilty plea and assertion of trial counsel’s

ineffectiveness, and we are bound by the PCRA court’s findings.              We

therefore affirm the PCRA court’s order denying Appellant post-conviction

relief.

          Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2016




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