J-S70025-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
           v.                            :
                                         :
MUSTAFA T. MOODY,                        :
                                         :
                   Appellant             :   No. 1534 EDA 2015

                   Appeal from the PCRA Order April 24, 2015,
                    Court of Common Pleas, Delaware County,
                Criminal Division at No. CP-23-CR-0001920-2013

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED NOVEMBER 30, 2015

     Appellant, Mustafa T. Moody (“Moody”), appeals from the order

denying his petition for relief pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-46 (“PCRA”). In his PCRA petition, Moody alleged that

his guilty plea was involuntarily and unlawfully induced by the ineffective

assistance of his plea counsel.   For the reasons that follow, we affirm the

PCRA court’s order.

     In its written opinion pursuant to Rule 1925(a) of the Pennsylvania

Rules of Appellate Procedure, the PCRA court summarized the relevant

procedural background of this case as follows:

           On February 12, 2013, [Moody] was arrested and
           charged with multiple counts of Delivery of a
           Controlled Substance (Heroin)2, and Conspiracy to
           Deliver a Controlled Substance (Heroin)3. At the
           [p]reliminary [h]earing on March 14, 2013, [Moody]
           was given an offer by the Commonwealth. The offer



*Retired Senior Judge assigned to the Superior Court.
J-S70025-15


           promised the Commonwealth would extend a plea
           offer below any applicable mandatory minimum
           sentence in exchange for [Moody] waiving his
           [p]reliminary [h]earing, filing no omnibus pre-trial
           motions, and pleading [g]uilty. Both parties signed
           the agreement.

           Prior    to    the   [p]retrial    [c]onference,      the
           Commonwealth offered [Moody] a negotiated
           sentence of 3-6 years [of] incarceration.           After
           receiving the offer from the Commonwealth,
           [Moody’s]     attorney,   Trevan     Borum,      Esquire
           [(“Attorney Borum”)], filed a Motion to Enforce Guilty
           Plea Agreement. It was [Moody’s] position that the
           [g]uilty [p]lea [o]ffer that was tendered failed to
           comport with their agreement.          Specifically, the
           Commonwealth’s offer of 3-6 years imprisonment
           violated the agreement[,] as [Moody] believed the
           offer was above the mandatory minimum. However,
           the Commonwealth reasoned that the five-year
           mandatory minimum sentence pursuant to [42]
           Pa.C.S. § 9712.1 applied because the BB rifle
           recovered at the [c]o-[d]efendant’s house was a
           firearm for purposes of section 9712 and was found
           “in close proximity to the controlled substance.” The
           Commonwealth maintained that their offer of 3-6
           years [of] incarceration comported with the
           agreement because it was lower than the mandatory
           minimum sentence. A hearing on the Motion to
           Enforce the Negotiated Guilty Plea Agreement was
           held on July 22, 2013, and the Motion was denied.1


1
  At the PCRA hearing, Attorney Borum testified that at the argument on his
motion to enforce the plea agreement, the trial court advised him that it
would not “specifically enforce” the plea agreement, but would be willing to
withdraw it (based upon a lack of a “meeting of the minds” on the length of
the sentence). N.T., 4/24/2015, at 29-30. This left Moody with a choice
between accepting the Commonwealth’s plea offer or proceeding with the
previously scheduled preliminary hearing and defending himself against all
charges. Attorney Borum indicated that he and Moody discussed this
decision at length, during which he advised Moody that his chances of
successfully litigating the probable cause issues were not good (because it
would be his word against the testimony of the police), and thus the safer


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           On August 5, 2013, a [p]lea [h]earing was held and
           [Moody] entered into a [n]egotiated [g]uilty [p]lea to
           the charges of Possession with Intent to Deliver, and
           to Conspiracy to Deliver.         On the same date,
           [Moody] was sentenced as follows: (1) Count 1—
           Possession with Intent to Deliver (Heroin) – 36-72
           months SCI, no RRRI eligibility, no boot camp
           eligibility, credit-time for the period from 2/13/13 to
           8/5/13, and payment of court costs; (2) Count 2 –
           Delivery of a Controlled Substance (Heroin) – 1 year
           State Probation consecutive to Count 1; (3) Count 3
           – Delivery of a Controlled Substance (Heroin) – 1
           year State Probation consecutive to Count 2; (4)
           Delivery of a Controlled Substance (Heroin) – 1 year
           State Probation consecutive to Count 3; (5) Count 5
           – Delivery of a Controlled Substance (Heroin) – 1
           year State Probation consecutive to Count 4; (6)
           Count 21 – Conspiracy to Delivery of a Controlled
           Substance (Heroin) -- 1 year State Probation
           consecutive to Count 5. (N.T. 8/5/13 pp. 26-27).

           [Moody] filed a timely, pro se, [PCRA] Petition on
           July 18, 2014. [Moody’s] appointed counsel Scott
           Galloway, Esquire, filed an Amended [PCRA] Petition
           on February 9, 2015. A [PCRA] [h]earing was held
           on April 24, 2015, and the request for [PCRA] [r]elief
           was denied. On April 27, 2015, the Court entered an
           Order denying [Moody’s] request for [PCRA] [r]elief.
           On May 20, 2015, [Moody] filed a timely [n]otice of
           [a]ppeal to the Pennsylvania Superior Court
           appealing the Order Denying [Moody’s] [PCRA]
           Petition.


           2
               [35] P.S. § 780-113(30)
           3
               18 Pa.C.S.A. § 903(c)

Trial Court Opinion, 7/7/2015, at 2-4.



course was to “minimize your exposure” and take the plea offer of 3-6 years
of imprisonment. Id. at 29-32.


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      On appeal, Moody raises a single question for our review and

consideration, namely whether the PCRA court erred in denying his PCRA

petition alleging that ineffective assistance of counsel resulted in a guilty

plea that was not knowing, voluntary and intelligent. Moody’s Brief at 4.

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the court's determination is supported by evidence of

record and free of legal error. Commonwealth v. Turetsky, 925 A.2d 876,

880 (Pa. Super. 2007). This Court accords great deference to the findings of

the PCRA court if the record contains any support for those findings.          Id.

Further, the PCRA court's credibility determinations are binding on this Court

if there is record support for its determinations.           Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

      In reviewing a claim of ineffective assistance of counsel, the petitioner

must show, by a preponderance of the evidence, that counsel’s deficient

performance so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Kimball, 724 A.2d 326, 333 (Pa. 1999). To prevail, the petitioner must

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

course of conduct was without a reasonable basis designed to effectuate the

client's   interest;   and   (3)   the   client   was   prejudiced   by   counsel's

ineffectiveness, i.e. there is a reasonable probability that but for the act or

omission in question the outcome of the proceedings would have been



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different. Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super.

2005), appeal denied, 877 A.2d 460 (Pa. 2005). The petitioner bears the

burden of proving all three prongs of the test.           Commonwealth v.

Meadows, 787 A.2d 312, 319–20 (Pa. 2001); Commonwealth v.

Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005), appeal denied, 877 A.2d

460 (Pa. 2005). Moreover, trial counsel is presumed to have been effective.

Commonwealth v. Basemore, 744 A.2d 717, 728 n. 10 (Pa. 2000).

      With respect to a claim of ineffective assistance of counsel in

connection with a guilty plea, this Court has explained the applicable law in

this area as follows:

            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. Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2013)

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

“[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.” Anderson, 995 A.2d at 1192.



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      In his counseled amended PCRA petition, Moody based his claim for

relief on two grounds.    First, Moody alleged that his counsel (Attorney

Borum) failed to advise him that he was pleading guilty to conspiracy to

deliver heroin, and that when he heard this for the first time during the plea

hearing, it was too late for him to renege on the plea agreement. Amended

PCRA Petition, 2/9/2015, ¶ 4-5. As such, Moody alleged that he was forced

into pleading guilty to the conspiracy charge without the opportunity to

discuss it first with counsel. Id. Second, Moody averred that the transcript

of the plea hearing reflects that he did not even know the name of his

alleged co-conspirator, demonstrating his surprise at the inclusion of the

conspiracy charge in the plea agreement. Id.

      The certified record on appeal does not support Moody’s claims. Prior

to the colloquy at the plea hearing, Moody signed a guilty plea statement,

initialing each paragraph therein.      Guilty Plea Statement, 8/5/2013.

Paragraph 23 therein specifically provided that he was pleading guilty to five

counts of delivery of a controlled substance and one count of conspiracy

to deliver a controlled substance.       Id. ¶ 23.   At the PCRA evidentiary

hearing, Moody admitted that Attorney Borum reviewed this guilty plea

statement with him prior to its signing and initializing. N.T., 4/24/2015, at

53-54. Moreover, Moody acknowledged that in advance of the plea hearing,




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Attorney Borum reviewed the plea colloquy with him.2 N.T., 4/24/2015, at

40. During the plea colloquy, Moody agreed that he was entering into the

plea agreement freely and voluntarily, that nobody had threatened or

coerced him in any way, that there was a factual basis for the plea, and that

this factual basis included him engaging in a conspiracy on specific dates.

N.T., 8/5/2013, at 15-21; N.T. 4/24/2015, at 47-56. During the colloquy,

the trial judge described the crime of conspiracy to deliver, including both

the need for an agreement and an overt act, and Moody testified that he

understood. N.T., 8/5/2013, at 12; N.T. 4/24/2015, at 51.

     The longstanding rule of Pennsylvania law is that a defendant may not

challenge his guilty plea by asserting that he lied while under oath, even if

he avers that counsel induced the lies.   Commonwealth v. Pollard, 832

A.2d 517, 524 (Pa. Super. 2003); Commonwealth v. Cappelli, 489 A.2d

813, 819 (Pa. Super. 1985). A person who elects to plead guilty is bound by

the statements he makes in open court while under oath. Commonwealth

v. Stork, 737 A.2d 789, 790–91 (Pa. Super. 1999). A criminal defendant

who elects to plead guilty has a duty to answer questions truthfully.

Cappelli, 489 A.2d at 819.




2
   Moody testified that he could not remember whether Attorney Borum
reviewed the conspiracy count with him. N.T., 4/24/2015, at 41.


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      In addition to Moody’s own testimony, at the PCRA evidentiary hearing

Attorney Borum indicated that it is his practice to review the plea colloquy in

detail with his clients:

      Q.     When was it, if you remember, that you went over
             the guilty plea colloquy with Mr. Moody?

      A.     It would have been before the plea. I don’t have a
             specific recollection of doing it, but I know from the
             cases I’ve done out here in Delaware County, that
             you have to fill out that colloquy, initial it, and it’s
             my practice in every single guilty plea that I do out
             there, to go over each and every question to make
             sure my client understands. After I’m done, I ask
             them, do you have any more questions and if he
             does have any question or he doesn’t understand
             any questions, I make sure that I break it down and
             explain it in plain English, so my client gets it.

N.T., 4/24/2015, at 12-13. Attorney Borum also testified that in his view,

Moody understood that he was pleading guilty to, inter alia, a conspiracy

charge.

      Q.     So is it your testimony, Mr. Borum, that prior to Mr.
             Moody entering his guilty plea … he understood he
             was pleading guilty to conspiracy and to whom he
             was pleading guilty to conspiracy with?

      A.     I certainly believe that to be the case. Like I said, I
             can’t – I’ve represented hundreds of clients since
             then, but I don’t have the specific recollection of
             going over that form, but I just can’t imagine I would
             be, you know, have him plead guilty to a charge that
             I didn’t explain to him. I just – that just doesn’t
             happen. That’s not the way I practice.

Id. at 15.




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     In his counseled amended PCRA petition, Moody contended that “he

did not even know the person Michelle Camgemi to which he supposedly

conspired with.”     Amended PCRA Petition, 2/9/2015, ¶ 4.       At the PCRA

evidentiary hearing, Moody amended his position somewhat, stating that he

knew “of” Ms. Camgemi, but did not know her personally. N.T., 4/24/2015,

at 44. Moody nevertheless continues to insist that he did not conspire with

Ms. Camgemi, and that his testimony to the contrary at the plea hearing,

upon close inspection, reflects his surprise at the suggestion that he ever

conspired with her.     Id. at 45; Moody’s Brief at 10.    Specifically, Moody

contends that he “did not know the name of the individual whom he

supposedly conspired with and it is obvious that this criminal charge was not

reviewed with him prior to the plea being entered.” Moody’s Brief at 10. A

review of the transcript of the plea hearing, however, does not support this

contention.

     MR. DENUCCI:

              … Okay, Mr. Moody, I just need to ask you a couple
              of questions. You’re entering a negotiated guilty
              plea to Count XXI which is conspiracy to delivery
              [sic] of a controlled substance. Is that correct?

     MR. MOODY:

              Yes.

     MR. DENUCCI:

              Okay. And the conspiracy with regard to Count XXI
              pertains to three specific dates. So I’m going to ask



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          you on each particular date I’d like you to tell me
          who the person was that you conspired with. So for
          instance, on January 28, 2013, who was the person
          that you conspired with at that time to deliver a
          controlled substance?

     MR. MOODY:

          Michele.

     MR. DENUCCI:

          What’s the last name?

     MR. MOODY:

          I don’t know.

     MR. DENUCCI:

          Well, step back.

     MR. BORUM:

          Sure – I mean – I’m sorry.

     MR. DENUCCI:

          You can ask him another question.

     MR. BORUM:

          Sure.

     MR. DENUCCI:

          Your Honor, I just need a second. I’m sorry.      I
          wasn’t expecting that. 7262 Bradford?

     MR. BORUM:

          Yes. His residence was 2224 South Park. Now her
          residence is 76 – 7262 Bradford Road.



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     MR. DENUCCI:

          In Upper Darby?

     MR. BORUM:

          Correct.

     MR. DENUCCI:

          Mr. Moody, the Michele in question, if I told you her
          name – her last name was Camgemi, would you
          have reason to dispute that?

     MR. MOODY:

          No.

     MR. DENUCCI:

          No? And are you familiar with [Ms.] Camgemi’s
          address?

     MR. MOODY:

          Yeah. Yes.

     MR. DENUCCI:

          The Miss Camgemi that you conspired with, if I
          suggested to you that that was – that her address
          was 7262 Bradford Road in Upper Darby, would that
          be the same Michele that you conspired with,
          Camgemi?

     MR. MOODY:

          Yes.

     MR. DENUCCI:




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            Okay.     And those other dates – so it was a
            conspiracy with Michele Camgemi of 7262 Bradford
            Road in Upper Darby, PA, on the following dates:
            January 28, 2013, 1/31/13 and February 6, 2013. Is
            that correct?

      MR. MOODY:

            Yes.

N.T., 8/5/2013, at 19-22.

      The PCRA court concluded that it was “disingenuous to argue that

[Moody] did not know his co-conspirator, simply because he did not know

her last name.” Trial Court Opinion, 7/7/2015, at 10. We agree. At most

this excerpt from the transcript of the plea hearing reflects that Moody could

not remember Ms. Camgemi’s last name, but that his recollection was

immediately refreshed upon being provided with her full name and address.

It does not, by itself, demonstrate, by a preponderance of the evidence, that

counsel failed to advise him in advance of the plea hearing that he would be

pleading guilty to a count of conspiracy to deliver heroin (with Ms.

Camgemi), or that his plea to that charge was unknowing, involuntary, or

unintelligent.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2015




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