J-S67018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

FRANK DUANE SWARTZ

                          Appellant                   No. 1078 EDA 2016


        Appeal from the PCRA Order entered on November 30, 2015
     In the Court of Common Pleas of Carbon County Criminal Division
                     at No(s): CP-13-CR-0000104-2009


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                       FILED NOVEMBER 01, 2016

      Frank Duane Swartz appeals from the order entered on November 30,

2015, denying his Amended Petition filed pursuant to the Post-Conviction

Relief Act (PCRA), 42 Pa. C.S. §§ 9541-9546. We affirm.

      During a 2008 investigation into a series of bush fires in Carbon

County,   police   recovered   approximately   thirty-one   incendiary   devices

consisting of a lit cigarette inserted in a matchbook, held together with a

rubber band. Police identified Appellant as a suspect based on DNA evidence

collected from a cigarette filter and a fingerprint left on one of the devices.

See PCRA Ct. Op., 11/30/2015, at 1-2.          Appellant met with police and

confessed in oral and written statements to having set sixteen bush fires in

Carbon County. The Commonwealth charged Appellant “with four different




*Former Justice specially assigned to the Superior Court.
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counts for each fire and, with respect to two of the fires, an additional

charge of endangering property.” Trial Ct. Mem. Op., 06/11/2012, at 1.

       In January 2010, Appellant pleaded guilty to all charges in exchange

for four to eight years’ incarceration.          On February 25, 2010, Appellant

withdrew his guilty plea pro se.         Consequently, Appellant’s “plea counsel,”

Paul Levy, Esq., filed a motion to withdraw from representing Appellant due

to irreconcilable differences in the attorney-client relationship.       The trial

court granted this motion on March 19, 2010.             See Notes of Testimony

(N.T.), 11/7/2014, at 14-15, 28.

       In March 2010, newly-appointed trial counsel filed a motion to

suppress the oral and written confessions Appellant made at the police

station in 2008. See Mot. to Suppress, 01/04/2011. Following a hearing,

the trial court denied the motion to suppress by a memorandum opinion and

order. See Trial Ct. Order Denying Mot. to Suppress, 06/22/2011.

       Following a six-day jury trial in December 2011, Appellant was found

guilty for multiple counts of arson-related crimes.1 The trial court imposed



____________________________________________


1
  Sixteen counts of arson creating a danger of death or bodily injury; one
count of arson reckless endangerment of inhabited buildings; fifteen counts
of possession of explosive or incendiary material; fifteen counts of risking
catastrophe; and fifteen counts of maliciously setting fire to forest.
Respectively, see 18 Pa.C.S. §§ 3301(a)(1)(i), 3301(c)(2), 3301(f), and
3302(b), and 32 Pa.C.S. § 344(b).




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an aggregate sentence of two hundred sixteen to four hundred thirty-two

months’ incarceration. See PCRA Court Opinion, 11/30/2015, at 4.

     Appellant filed a motion for reconsideration of sentence, which the trial

court denied as “wholly without merit.”         See Trial Ct. Mem. Op.,

06/11/2012, at 34. Appellate timely filed a direct appeal. In May 2013, this

Court affirmed the judgment of sentence entered by the trial court.      See

Commonwealth v. Swartz, 81 A.3d 1004 (Pa. Super. 2013) (unpublished

memorandum).

     In May 2014, Appellant timely filed a pro se PCRA petition and was

appointed counsel.    Thereafter, Appellant filed an amended, counseled

petition, alleging ineffective assistance of trial counsel. In November 2015,

the PCRA court held a hearing, at which Appellant, plea counsel, and trial

counsel testified. Following the hearing, the trial court denied the amended

PCRA petition.   Appellant submitted a pro se letter of intent to appeal the

denial of his PCRA petition on January 5, 2016.     The PCRA court granted

Appellant nunc pro tunc relief and extended the deadline for Appellant to

perfect an appeal. See PCRA Ct. Order, 02/12/2016. Appellant appealed,

timely filed a court-ordered Pa.R.A.P. 1925(b) statement, and the PCRA

court issued a responsive opinion.




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      On appeal, Appellant claims trial counsel was ineffective for three

reasons:

      (1)         Trial counsel failed to object to police testimony describing the
                  Automated Fingerprint Identification System (AFIS) as a criminal
                  record fingerprint database, in light of the possible inference
                  about Appellant’s criminal history;

      (2)         Trial counsel failed to investigate whether internet evidence
                  would have corroborated Appellant’s Miranda v. Arizona, 384
                  U.S. 436 (1969) challenge to the admissibility of his oral and
                  written confessions;

      (3)         Trial counsel failed to effectively advise Appellant that it was in
                  his best interest to accept a plea, which caused Appellant to go
                  to trial and receive a lengthier sentence.

See Appellant’s Brief at 5.

      “Our standard of review in an appeal from the grant or denial of PCRA

relief requires us to determine whether the ruling of the PCRA court is

supported by the record and is free from legal error.” Commonwealth v.

Lesko, 15 A.3d 345, 358 (Pa. 2011) (citation omitted).

      Under the PCRA, ineffective assistance of counsel is a discrete legal

ground      for    a   collateral   appeal.    See 42   Pa.C.S.   §   9543(a)(2)(ii);

Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005).                  To establish

ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) counsel’s actions lacked an objective reasonable basis; and (3)

actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citing


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Commonwealth v. Pierce, 786 A.2d 973, 976 (Pa. 1987)). To establish

prejudice, a petitioner must show that “there is a reasonable probability

that, but for counsel's error, the outcome of the proceeding would have been

different.”   Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015)

(citation omitted).   The PCRA court may deny an ineffectiveness claim by

showing that the claim fails any part of the three-part Pierce test.       See

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citing

Commonwealth v. Natividad, 938 A.2d 310, 321–22 (Pa. 2007)).

      We begin by addressing Appellant’s assertion that trial counsel was

ineffective for failing to raise a timely objection to Trooper Corrigan’s

testimony. In support of his argument, Appellant cites Commonwealth v.

Montalvo, 641 A.2d 1176, 1184-85 (Pa. Super. 1994), which held counsel

must make a timely and specific objection at trial and move for a mistrial at

the time a prejudicial event is disclosed.   Appellant contends that Trooper

Corrigan’s testimony describing AFIS as a criminal records database gave

rise to an impermissible inference that Appellant had a prior criminal record.

See Appellant’s Brief at 10-11.     Appellant claims the court would have

declared a mistrial if counsel had raised a timely and specific objection to

this testimony. See id. at 11 (citing Trial Ct. Op., 07/25/2012, at 14).

      We have previously decided the merits of the issue underlying

Appellant’s claim. On direct appeal, Appellant challenged “whether the trial

court should have declared a mistrial sua sponte when an investigating


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officer testified that he submitted a fingerprint taken from an incendiary

device into a criminal database and it was a match with Appellant.” Swartz,

81 A.3d 1004, at *15. In addressing the merits of this issue, we considered

the following:

             [T]he trial court noted that Appellant did not object to the
      testifying police officer’s reference to any match between the
      latent fingerprint recovered from one of the crime scenes and an
      image of Appellant’s fingerprints maintained in a criminal
      database. Trial Court Opinion, 6/6/2012, at 12. Further, the
      trial court concluded that mere mention of Appellant’s fingerprint
      in a criminal database was indirect and that any ensuing
      prejudice was lessened by evidence that Appellant’s fingerprints
      taken at the time of Appellant’s eventual arrest matched the
      latent crime scene fingerprint. Id. at 14.

Swartz, 81 A.3d 1004, at *16-17.            In addition, we considered the

cautionary instructions that the trial judge gave the jury. The instructions

cured any undue implications about Appellant’s criminal history. This Court

held Trooper Corrigan’s testimony did not affect the jury’s deliberation and

that Appellant was not entitled to a mistrial. See id. Accordingly, this Court

held that Appellant’s claim lacked merit.

      The PCRA court properly analyzed the merits of this claim, as it is

required to evaluate the merits of each ineffectiveness claim to assess

whether any underlying legal issue has arguable merit.      See Collins, 888

A.2d at 572. The PCRA court did not address this Court’s prior decision on

the merits of the issue presented. However, it should have, considering “a

distinct claim of ineffectiveness that is based on the underlying issue that

was litigated on direct appeal, in many cases . . . will fail for the same

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reasons as they failed on direct appeal.” Collins, 888 A.2d at 574-75. Our

previous decision in this matter eliminates any arguable merit to Appellant’s

ineffectiveness claim. See Montalvo, 641 A.2d at 1189 (“Counsel will not

be deemed ineffective for failing to assert a baseless claim.”). Accordingly,

Appellant is not entitled to relief.

      Second, Appellant contends that trial counsel failed to investigate

whether evidence available on the Internet would support his testimony that

he was improperly interrogated at the police station. According to Appellant,

the police did not properly Mirandize him prior to obtaining his confession.

See Miranda v. Arizona, 384 U.S. 436 (1969).         In order to prove this,

Appellant wanted trial counsel to use MapQuest to show that he could not

have arrived at the police station by the time noted on his Miranda waiver.

Appellant maintains ineffective assistance of counsel caused his oral and

written confessions to have a negative impact on the outcome of his trial.

Appellant’s Brief at 13.

      Counsel has “a general duty to undertake reasonable investigations”

and make “reasonable decisions that render particular investigations

unnecessary.” Commonwealth v. Johnson, 966 A.2d 523, 535 (Pa. 2009)

(citations omitted). “[W]e only inquire whether counsel had any reasonable

basis for his actions, not if counsel pursued the best available option.”

Commonwealth v. Philistin, 53 A.3d 1, 9-10 (Pa. 2012) (citations and

internal quotation marks omitted).


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          Trial counsel testified that he had several reasons for deciding against

using MapQuest evidence.          Trial counsel considered Appellant’s testimony

about the events “strategically a better approach than the use of MapQuest.”

PCRA Ct. Op. at 14 (citing N.T., 11/7/2014, at 59-60).           According to trial

counsel, Appellant’s testimony had a “more powerful and meaningful” effect

on the jury and anything else “would have been superfluous.”                  N.T.,

11/7/2014, at 60.         Moreover, Appellant could have taken “five or six

different roads” to get to the police station. Id.

          Appellant fails to show that trial counsel lacked a reasonable basis for

his actions. The PCRA court ruled that Appellant’s claim was speculative at

best.      See PCRA Ct. Op. at 14-15.          We agree with the PCRA court that

Appellant’s argument is speculative.             In contrast, trial counsel made a

reasonable strategic decision in deciding not to present this evidence at

trial.2     Accordingly, we will not second-guess counsel on this basis, and

Appellant’s claim of ineffectiveness fails.

          Third, Appellant claims that trial counsel failed to advise him whether

to withdraw his plea and whether to accept a plea offered during trial. See

Appellant’s Brief at 13-14.       Appellant contends that he is entitled to relief

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2
  A calculation of distance between two points is not reliable for measuring
the duration of the journey itself, according to our ruling in Commonwealth
v. Brown, 839 A.2d 433, 436-439 (Pa. Super. 2003) (citing Pennsylvania
Rule of Evidence 201(b)(2)).




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because his sentence exceeded the proposed plea by four and one-half

times. Id. at 14. In support of his contentions, Appellant relies on Lafler v.

Cooper, 132 S.Ct. 1376, 1384 (2012) (vacating sentence imposed that

exceeded plea by three and one-half times where lawyers ineffectively

advised defendant to reject the plea).

      We review this claim according to the following standard:

      [A] post-conviction petitioner seeking relief on the basis that
      ineffective assistance of counsel caused him or her to reject a
      guilty plea must demonstrate the following circumstance:
         [B]ut for the ineffective advice of counsel there is a
         reasonable probability that the plea offer would have been
         presented to the court (i.e., that the defendant would have
         accepted the plea and the prosecution would not have
         withdrawn it in light of intervening circumstances), that
         the court would have accepted its terms, and that the
         conviction or sentence, or both, under the offer's terms
         would have been less severe than under the judgment and
         sentence that in fact were imposed.

Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015)

(quoting Lafler, 132 S.Ct. at 1385), appeal denied, 140 A.3d 13 (Pa. 2016).

      Here, “Appellant acknowledged having received a plea offer with a

sentencing recommendation of five to ten years of imprisonment after the

start of trial.”   PCRA Ct. Op. at 19 (citing N.T., 11/07/2014, at 24).

Appellant testified that he knew it was his decision to make.            N.T.,

11/24/2014, at 34.    Appellant testified that counsel failed to convince him

that it was in his best interest not to withdraw the plea. Id. at 36. Once

Appellant did withdraw the plea, he claimed his discussions with counsel only

pertained to the trial. Id. at 40. Appellant contends that it would have been

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in his best interest to discuss a plea and that he expected trial counsel had a

continuing responsibility to pursue a plea in his best interest. Id. at 42.

      Trial counsel met with Appellant on November 3rd, 2011 and

“broached” the possibility of a second plea before trial. Id. at 56. According

to trial counsel, Appellant was advised that he faced several “Felony 1

charges with 20 year maximums, $25,000 fine [for each charge and]

multiplied by 16 fires would be 320 years.” Id. at 53. Trial counsel wrote a

letter to the prosecutor referencing his meeting with Appellant asking to

clarify the proposed plea’s current status “so that [he] could communicate to

[Appellant] whether or not real trial preparation must commence.”        Id. at

54-55 (quoting Letter, 11/7/2011). Thus, trial counsel was making ongoing

efforts to advise Appellant about various plea deals.        According to trial

counsel, Appellant rejected the plea because he already rejected a plea with

a sentence of four to eight years. Id. at 56. Trial counsel “never drew the

impression that [Appellant] wanted to plead guilty.     [His feeling] was that

[Appellant] always wanted to go to trial.” Id. at 58.

      The PCRA court found counsel’s testimony credible to the extent that it

contradicted Appellant’s testimony and the exhibits he submitted into

evidence. See PCRA Ct. Op. at 21-24. We defer to the PCRA court’s finding.

Here, Appellant’s self-serving testimony does not establish his willingness to

accept a plea and lacks corroboration in the record before us.                See

Steckley, 128 A.3d at 832-33 (requiring appellant’s testimony to be credible


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and to show an actual willingness to enter into a plea but for counsel’s

ineffectiveness).   Moreover, there is no evidence that trial counsel’s

approach fell below an objective standard of reasonableness.

      For the reasons above, Appellant is not entitled to relief. Accordingly,

the order of the PCRA court is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2016




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