J-S43008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA

                         Appellee

                    v.

CHARLES FEY

                         Appellant                 No. 1440 WDA 2017


              Appeal from the PCRA Order September 26, 2017
            In the Court of Common Pleas of Washington County
              Criminal Division at No: CP-63-CR-0000966-2013




COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA

                         Appellee

                    v.

CHARLES FEY

                         Appellant                 No. 1441 WDA 2017


              Appeal from the PCRA Order September 26, 2017
            In the Court of Common Pleas of Washington County
              Criminal Division at No: CP-63-CR-0000968-2013


BEFORE: STABILE, DUBOW, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                      FILED JANUARY 22, 2019

     In these consolidated appeals, Appellant Charles Fey challenges an

order denying his petition for relief under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends, inter alia, that his
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attorney negligently permitted him to plead guilty to first-degree burglary1

even though his offenses constituted only second-degree burglary under the

Crimes Code. We affirm.

        The PCRA court summarized the factual history of this case as follows:

        On January 21, 2013, South Strabane Police received a call in
        regard to suspicious activity in the 1500 block of Lombard Circle.
        The caller stated that he observed two individuals walking around
        the home at 1530 Lombard Circle. The home at this address was
        newly constructed and was not, at that time, inhabited by anyone.
        The caller indicated that a dark colored truck was parked in the
        driveway and that he saw the two individuals enter the garage of
        the home. When police responded, they observed a dark green
        Dodge Ram 2500 pickup truck in the driveway at 1530 Lombard
        Circle. [Appellant] was seated inside the truck along with another
        individual, Jason Moore. When police entered the garage, they
        discovered three brand new appliances sitting near the garage
        door . . .

        On March 20, 2013, Cecil Township Police received a call from
        Heartland Homes regarding the theft of appliances from a new
        residence in their housing development.        The residence in
        question was 1088 Woodlawn Drive and it was uninhabited at the
        time. Police were advised by 911 that a tan or light brown GMC
        extended cab pickup truck was being used to transport two stolen
        stoves in the bed. Officer Brian Hart responded to the call and
        observed a truck matching the description given. Officer Hart saw
        several appliances still in their packing boxes in the bed of the
        truck as it drove past his cruiser. Officer Hart proceeded to
        conduct a traffic stop where he found [Appellant] to be driving the
        truck. There was a passenger in the car by the name of Thomas
        Ashbaugh. [Appellant] indicated to Officer Hart that he was a
        subcontractor for Heartland Homes and was moving the
        appliances to a different site in Bridgeville. Police contacted
        Heartland Homes and were informed that the appliances in
        question had been stolen from the property at 1088 Woodlawn
        Drive.

____________________________________________


1   18 Pa.C.S.A. § 3502.

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Opinion, 3/6/18, at 1-2. At another point in 2013, Appellant was arrested for

a third burglary that is not at issue in this appeal.

      Appellant was charged in three informations with burglary and other

offenses. On November 10, 2014, pursuant to a negotiated guilty plea, the

trial court sentenced Appellant to (1) 15-30 months’ imprisonment for first-

degree burglary (structure adapted for overnight use, no person present) at

CP-63-CR-0000968-2013;        (2)   a   consecutive     term   of   15-30   months’

imprisonment for first-degree burglary (structure adapted for overnight use,

no person present) at CP-63-CR-0000966-2013; and (3) a consecutive term

of three years’ probation for second-degree burglary (structure not adapted

for overnight accommodations) at CP-63-CR-0000213-2013.

      Appellant did not file a direct appeal. In 2015, he filed a timely pro se

PCRA petition alleging ineffective assistance of guilty plea counsel. Through

counsel, Appellant filed an amended PCRA petition alleging ineffective

assistance and other claims.     On August 4, 2017, following an evidentiary

hearing, the PCRA court denied Appellant’s ineffectiveness claim but left the

record open with regard to his request for credit for time served.              On

September 19, 2017, the court denied credit for time served. Appellant filed

a timely appeal to this Court, and both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      1. Did the PCRA court err in finding [guilty] plea counsel had a
      reasonable basis for advising his client to plead guilty to two felony

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      of the first-degree burglary counts pursuant to 18 Pa.C.S.A.
      § 3502(a)(2), where: (1) counsel acknowledged being unaware
      of governing case law; (2) admitted that he did not discuss the
      distinction between the aforementioned burglary offense and
      burglary    of  a    structure   not    suitable  for    overnight
      accommodations; (3) was aware that the homes were under
      various stages of construction; (4) did not speak with the officers
      regarding the homes that counsel knew were under construction;
      and (5) there are no facts in the evidentiary record to support
      [Appellant] having entered into a residence that was suitable for
      overnight accommodations?

      2. Whether the undersigned was ineffective in failing to object to
      the PCRA court’s erroneous consideration of hearsay evidence
      from the affidavits of probable cause, i.e., that electricity was
      present at one home and a garage door was present at another
      home, in both its questioning of the witnesses and ruling against
      [Appellant]?

      3. Is [Appellant] entitled to credit for time served of twenty-seven
      days where he did not receive that credit for any other charges?

Appellant’s Brief at 4.

      When reviewing the denial of PCRA relief, “we examine whether the

PCRA court’s determinations are supported by the record and are free of legal

error. The PCRA court’s credibility determinations, when supported by the

record, are binding on this Court; however, we apply a de novo standard of

review to the PCRA court’s legal conclusions.” Commonwealth v. Roney,

79 A.3d 595, 603 (Pa. 2013).

      Appellant first claims that guilty plea counsel provided ineffective

assistance by directing him to plead guilty to two counts of first-degree

burglary even though his offenses constituted only second-degree burglary.

We presume that counsel was effective, and Appellant has the burden of



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proving otherwise.   Commonwealth v. Brown, 767 A.2d 576, 581 (Pa.

Super. 2001). To prevail on a claim of ineffective assistance, Appellant must

plead and prove that (1) the underlying issue is of arguable merit; (2) counsel

had no reasonable strategic basis for the action or inaction; and (3) counsel’s

mistake prejudiced the petitioner.    Commonwealth v. Chmiel, 30 A.3d

1111, 1127 (Pa. 2011). The failure to satisfy any one of the prongs will cause

the entire claim to fail. Commonwealth v. Smith, 181 A.3d 1168, 1175 (Pa.

Super. 2018). “We need not analyze the prongs of an ineffectiveness claim

in any particular order.   Rather, we may discuss first any prong that an

appellant cannot satisfy under the prevailing law and the applicable facts and

circumstances of the case.” Id.

      Since Appellant challenges the adequacy of guilty plea counsel’s

representation, we must be mindful 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, 338–39 (Pa. Super. 2012).

      Burglary is generally a first degree felony.         See 18 Pa.C.S.A.

§ 3502(c)(1). However, if the building, structure, or portion entered is not

adapted for overnight accommodation, and no individual is present at the time


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of entry, burglary is a felony of the second degree. 18 Pa.C.S.A. § 3502(c)(2);

Commonwealth v. Graham, 9 A.3d 196, 203-04 (Pa. 2010) (home entered

by defendant while it was under construction was not adapted for overnight

accommodation for purposes of burglary statute; running water was available

in planned living space solely via attachment of garden hose to spigots in

garage or on the exterior, no toilet facilities were present, there were no

furnishings available for sleeping, and all working utility services were

configured for construction purposes only).         Appellant argues that the

buildings he entered were not adapted for overnight accommodation, because

(1) his testimony during the PCRA hearing establishes that neither building

had electricity, running water or toilets; (2) the affidavit of probable cause

underlying his arrest for the January 21, 2013 burglary states that a gas

range, microwave, and dishwasher remained in their original packing in the

garage; and (3) the affidavit of probable cause underlying his arrest for the

March 20, 2013 burglary states that items taken from the residence were still

in their packaging. According to Appellant, had guilty plea counsel informed

him that his offenses were only second-degree felonies, he would have refused

to plead guilty to the two counts of first-degree burglary and proceeded to

trial.

         Appellant’s argument fails because he cannot satisfy the third prong of

the ineffectiveness test: prejudice. Thus, we need not analyze the first two

prongs of this test. Smith, 181 A.3d at 1175.


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      To demonstrate prejudice, Appellant must show a reasonable probability

that, but for counsel’s lack of understanding of the degrees of burglary, the

petitioner   would   not   have   pleaded   guilty   to   first-degree   burglary.

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (“to

succeed in showing prejudice, for purposes of claim of ineffective assistance

of counsel in connection with guilty plea, defendant must show that it is

reasonably probable that, but for counsel’s errors, he would not have pled

guilty and would have gone to trial”).

      Appellant argues that he suffered prejudice because if he knew that he

should have pled guilty to Second Degree Burglary, he would not have pled

guilty and would have demanded a jury trial. The PCRA court rejected this

claim because it did not find Appellant’s testimony on this subject credible.

The record supports the PCRA court’s finding. The PCRA court observed:

      [Appellant] testified at the PCRA hearing and responded to the
      court's questions as follows:

             THE COURT: Mr. Fey . . . at the time you entered the
             plea in front of me, you were on probation for two
             burglaries, weren’t you? From Allegheny County?

             [APPELLANT]: Yes.

             THE COURT: One was an F1 burglary of a place
             adapted for overnight accommodation and one was a
             felony two, not adapted for overnight accommodation.
             Isn’t that true?

             [APPELLANT]: Correct. Yes.

                                    .....


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      Although not an attorney, [Appellant] had been charged
      previously with first-degree felony burglary and second-degree
      felony burglary so it is difficult to infer that he did not understand
      the difference.

PCRA Ct. Op., 3/5/18, at 14-15 (quoting N.T., PCRA Hearing, 8/4/17, at 45-

46). In addition, the record demonstrates that counsel reviewed the charges

with Appellant multiple times. During Appellant’s preliminary hearing, counsel

informed him that he was charged with entering structures adapted for

overnight accommodation. PCRA Ct. Op., at 12-13 (citing N.T., 8/4/17, at 17-

18) (defense counsel’s testimony)). Appellant did not correct counsel or state

that the structures were not adapted for overnight accommodation. Id. On

April 30, 2014, Appellant executed a form acknowledging that his guilty pleas

to burglary were entered “knowingly, voluntarily and intelligently.” Guilty Plea

Form, 4/30/14. On the same date, Appellant executed a written guilty plea

colloquy that explained, “By pleading guilty to any charge, you are admitting

that you committed that offense.” Guilty Plea Colloquy, 4/30/14, at 1. And

in his Guilty Plea Colloquy, Appellant responded affirmatively to a series of

questions showing that he was guilty as charged, and that counsel discussed

the facts and the law of burglary with him:

      6. Have you discussed with your attorney the elements of each
      charged offense? Yes.

      7. Have you discussed with your attorney the factual basis of each
      charged offense? Yes.

      8. Have you discussed with your attorney how the facts in your
      case prove the elements of each charged offense? Yes.


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                                    .....

      47. Have you had ample opportunity to consult with your attorney
      before entering your plea, and are you satisfied that your attorney
      knows all of the facts of your case and has had enough time within
      which to check any questions of fact or law which either you or
      your attorney may have about the case? Yes.

                                    .....

      52. If you are entering a plea of guilty, you admit that you
      committed the crime(s) with which you are charged and to which
      you are pleading guilty. Do you fully understand this? Yes.

Id. at 2, 7, 8.

      As stated above, we are bound by the PCRA court’s credibility

determinations when they find support in the record. Roney, 79 A.3d at 603.

The foregoing evidence supports the PCRA court’s finding that Appellant’s

claim of prejudice was not credible. We must defer to this finding, and in

doing so, we reject Appellant’s claim of prejudice.

      In his second argument, Appellant claims that PCRA counsel was

ineffective in failing to object to the PCRA court's consideration of hearsay

evidence from the affidavits of probable cause, i.e., that electricity was

present at one home and a garage door was present at another home, both

while the court questioned the witnesses during the PCRA hearing and in ruling

against Appellant.

      We are precluded from reviewing the merits of this issue, as it is now

settled that the issue of PCRA counsel ineffectiveness cannot be raised for the

first time on appeal, but rather, must be raised in a serial PCRA petition or in


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response to a notice of dismissal before the PCRA court. Commonwealth v.

Henkel, 90 A.3d 16, 29 (Pa. Super. 2014).

     Even if we were to address Appellant’s second issue, we would be in

agreement with the PCRA court that the claim lacks merit, since the Appellant

cannot demonstrate prejudice.

     PCRA counsel is alleging his own ineffectiveness because he did
     not object to the PCRA court considering “hearsay evidence” found
     in the affidavit of probable cause, specifically, the statements that
     there was electricity in one home and a garage present at another
     home. Hearsay is defined as “a statement, other than one made
     by the declarant while testifying at the trial or hearing, offered in
     evidence to prove the truth of the matter asserted.” Pa. Rule of
     Evidence 801(c). See Commonwealth v. Smith, 586 A.2d 957,
     963 (Pa. 1991). Hearsay evidence is presumed to be unreliable
     because the original declarant is not before the trier of fact and,
     therefore, cannot be challenged as to the accuracy of the
     information conveyed. Commonwealth v. Smith, 568 A.2d 600,
     608 (Pa. 1989). The main concern when it comes to hearsay
     evidence is that the credibility of the declarant cannot be
     determined by the trier of fact because the statements in question
     were made outside of the presence of the trier of fact.

     However, PCRA counsel’s allegation of his own ineffectiveness for
     failing to object to the alleged hearsay evidence is misguided.
     These are not hearsay statements, as the affidavits of probable
     cause (which were already a part of the record) were not offered
     to prove the truth of the matter asserted. The statements that
     there was electricity in one home and a garage door at another
     home were not offered to prove those statements, but rather to
     determine whether trial counsel should have conducted further
     investigation or pursued a different course of action. Thus, there
     was no reason for PCRA counsel to object to the consideration of
     these statements . . . Additionally, there is a lack of prejudice.
     Prejudice means there must be a reasonable probability that, but
     for counsel’s error, the outcome of the proceeding would have
     been different. Commonwealth v. Cox, 863 A.2d 536, 546 (Pa.
     2004). If these statements could be deemed hearsay and had the
     PCRA court not considered these statements, it would not have
     altered the outcome of the proceedings. [Appellant]’s PCRA

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     petition would still have been dismissed because [Appellant] failed
     to prove that his trial counsel was ineffective.

PCRA Court Opinion, 3/5/18, at 22-23.

     Third, and finally, Appellant argues that he is entitled to credit for time

served due to his incarceration in an unrelated Allegheny County case from

March 21, 2013 until April 16, 2013. Appellant states that he did not receive

credit for time served in Allegheny County because the charges in that county

were dismissed or withdrawn. In so many words, he claims that the time he

served in Allegheny County should be credited against the instant Washington

County sentence.

     The PCRA court reasoned:

     The Pennsylvania Sentencing Code is quite clear in this regard:

           Credit against the maximum term and any minimum
           term shall be given to the defendant for all time spent
           in custody as a result of the criminal charge for which
           a prison sentence is imposed or as a result of the
           conduct on which such a charge is based. Credit shall
           include credit for time spent in custody prior to trial,
           during trial, pending sentence, and pending the
           resolution of an appeal.

     42 Pa.C.S.A. Section 9760(1). Credit shall be given for any days
     spent in custody prior to the imposition of sentence, but only if
     such commitment is on the offense for which sentence is imposed.
     Credit is not given, however, for a commitment by reason of a
     separate and distinct offense. Commonwealth ex rel. Bleecher
     v. Rundle, 217 A.2d 772, 774 (Pa. 1966). In the two cases at
     issue, the Pre-Sentence Investigation indicates that [Appellant]
     was granted a $20,000 unsecured bond. The fact that [Appellant]
     was ultimately incarcerated in the Allegheny County Jail on
     unrelated burglaries and could not post bond there does not entitle
     him to have that jail time credited to his sentences in Washington
     County.

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PCRA Court Opinion, 3/5/18, at 26-27. Once again, we agree with the PCRA

court’s cogent analysis and hold that Appellant is not entitled to relief.

      Order affirmed.

      Judge Nichols joins the memorandum.

      Judge Dubow files a dissenting statement.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2019




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