J-S23012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RYAN MCMUNUS                              :
                                           :
                    Appellant              :   No. 2432 EDA 2017

                  Appeal from the PCRA Order July 6, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0001735-2012



BEFORE:    SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                               FILED JUNE 08, 2018

      Appellant, Ryan McMunus, appeals from the order denying his first

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546, following an evidentiary hearing. We affirm.

      The Commonwealth summarized the facts of the crimes at the guilty

plea hearing, as follows:

            The facts and circumstances surrounding the plea this
      afternoon involve the shooting death of a 27 year-old male by the
      name of Shane Kelly, 27 years of age.

            The incident that is before the [c]ourt this afternoon that is
      the subject [of] the plea occurred back [in the] early morning
      hours of the 13th of November 2011, it was a Sunday,
      approximately12:30 a.m. in the vicinity of Berks and Thompson
      Street[s] in the [C]ity and [C]ounty of Philadelphia, Fishtown
      section of Philadelphia, 26th district.

            On the evening in question, the decedent in this case, Mr.
      Kelly, was with his girlfriend, Ms. Mary Elise Doyne. They were
____________________________________
* Former Justice specially assigned to the Superior Court.
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     walking down Berks Street towards Thompson.          Ms. Doyne is,
     likewise, 27 years [of] age.

           Mr. Kelly and Ms. Doyne were walking down Berks towards
     Thompson. They observed two individuals who would be identified
     as the defendants at the bar of the [c]ourt, [Appellant] and
     Richard Smith, walk[] past them. Immediately after walking past
     them, the two defendants turned, yelled, “This is a robbery” or,
     “Give up everything you have.”

           At that point the decedent turned around and was
     confronted by the two defendants. [Appellant] was in possession
     of what we believe definitely was a .25 caliber semi-automatic
     handgun, probably a Colt. He demanded everything in the
     possession of Ms. Doyne as well as Mr. Kelly.

          During the course of the robbery, your Honor, a vehicle
     occupied by [a man named] Mr. Loftus was approaching the
     corner of Berks and Thompson.

            At that time, during this robbery, Ms. Doyne stated that, “If
     this is a robbery, I am going to call 911.” She had her phone in
     her hand, your Honor, because she just ordered a pizza; to wit,
     the decedent and his girlfriend were going to pick it up.

           At that time, Ms. Doyne alerted the front seat passenger of
     the robbery. It was Mr. Loftus. All the while, your Honor, the
     decedent in the case refused to turn over any items and began to
     walk towards the two defendants, who began to flee.

            The decedent, Mr. Kelly, began to chase both defendants
     down the street.      Mr. Smith proceeded down Thompson.
     [Appellant], again, who possessed the gun, proceeded--made a
     left and proceeded down Hewson Street, 1300 block.

           The decedent, Mr. Kelly, pursued [Appellant]. At that point
     Mr. Loftus, likewise, pursued. While giving chase, [Appellant]
     fired several shots, more specifically eight shots while running
     down the 1300 block of Hewson Street.

          Decedent was struck three times: Once in the chest, leg
     and abdomen. Decedent went down, collapsed in the middle of
     Hewson.


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          Mr. Loftus pursued. Chased [Appellant] down Hewson,
     around a short block and back onto Belgrade Street and actually
     around that little area again before [Appellant] fled into a house
     on Belgrade Street.

           The home was identified as his aunt’s, who is Barbara Gill.
     Also in that house was his cousin, Eric Bernatovich, as well as a
     grandmother and young female.

          [Appellant] fled up the steps, out the third floor to the
     second floor roof and out through the alley.

           At that point police arrived. Mr. Loftus provided information
     to the authorities, as well as Ms. Doyne provided information to
     authorities.

            Mr. Kelly was subsequently transported to Temple
     University Hospital on North Broad Street where emergency
     efforts were taken. Despite those efforts by emergency room
     personnel, your Honor, Mr. Kelly was pronounced [dead] at 4:48
     a.m. His remains were transported to the Office of the Medical
     Examiner where Dr. Gary Collins conducted a postmortem on Mr.
     Kelly’s remains.

           He identified gunshot wounds to the chest, abdominal area
     and thigh. Dr. Collins would testify that as a result of his
     performing a postmortem examination, it would be his opinion, to
     a reasonable degree of medical certainty, that the decedent died
     as a result of multiple gunshot wounds. Manner of death was
     homicide. Both opinions are to a reasonable degree of medical
     certainty.

           As the investigation progressed, Ms. Doyne was shown
     photo arrays and positively identified defendant Smith at the bar
     of the [c]ourt as the individual who participated in the robbery at
     Berks and Thompson Street.

          The Commonwealth would also call Mr. Bernatovich, who
     would testify that he had a chance to see Smith shortly after the
     robbery and [he] admitted his involvement in the robbery. He
     would also testify, Mr. Bernatovich, to admissions made by the
     defendant at the bar of the [c]ourt, [Appellant].




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             Commonwealth would call Barbara Gill.            She would,
       likewise, testify that she observed [Appellant] run into her home.

              Warrants were approved, defendants arrested.

             [Appellant], after being advised of his Constitutional rights
       by Detective [James] Pitts and Robert Hesser, admitted his
       involvement in this robbery and shooting.

            Commonwealth would also call firearms investigator Welsh,
       who would testify that he positively identified all the casings as
       coming from the same firearm.

N.T. (Guilty Plea), 9/9/13, at 59–63.

       Appellant entered a negotiated guilty plea on September 9, 2013, to one

count each of third-degree murder, conspiracy, aggravated assault, and

possession of an instrument of crime, and two counts of robbery.1 The trial

court sentenced Appellant in accordance with the plea agreement to thirty-

two and one-half to seventy years of imprisonment. Appellant did not file a

direct appeal.

       On September 26, 2014, Appellant filed a timely pro se PCRA petition.

On April 27, 2015, the PCRA court appointed counsel, who filed an amended

petition on February 16, 2017. The PCRA court held an evidentiary hearing

on July 6, 2017, where Appellant, his mother, and guilty-plea counsel testified.

The sole issue at the hearing was whether Appellant timely requested counsel

to file an appeal. Appellant’s Brief at 7. Following the hearing, the PCRA court

dismissed Appellant’s petition. Appellant filed a timely notice of appeal to this


____________________________________________


1   18 Pa.C.S. §§ 2502, 903, 2702, 907, and 3701, respectively.

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Court.   Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant raises one issue on appeal:            “Whether the appellant timely

requested his trial counsel to file an appeal.” Appellant’s Brief at 4.2

       When reviewing the propriety of an order denying PCRA relief, we

consider the record in the light most favorable to the prevailing party at the

PCRA level.     Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015);

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc).

This Court is limited to determining whether the evidence of record supports

the conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). These errors

include a constitutional violation or ineffectiveness of counsel, which “so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Cousar, 154

A.3d 287, 296 (Pa. 2017); 42 Pa.C.S. § 9543(a)(2). The PCRA court’s findings

will not be disturbed unless there is no support for them in the certified record.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014).

       While inartfully stated, and despite the manner in which Appellant has

described his issue, reference to Appellant’s PCRA petition makes clear that

Appellant is asserting plea counsel’s ineffective assistance for failing to file a


____________________________________________


2  The PCRA court addressed two additional issues raised in Appellant’s
Pa.R.A.P. 1925(b) statement. PCRA Court Opinion, 9/1/17, at 4–7. Because
Appellant has not presented those issues in his appellate brief, they are
abandoned, and we will not address them. Pa.R.A.P. 2116(a).

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direct appeal.   PCRA Petition, 9/26/14; Amended PCRA Petition, 2/16/17.

When considering an allegation of ineffective assistance of counsel, we

presume that counsel provided effective representation unless the PCRA

petitioner pleads and proves that: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable basis for his action or inaction; and (3)

petitioner was prejudiced by counsel’s action or omission. Commonwealth

v. Johnson, 179 A.3d 1105, 1114 (Pa. Super. 2018) (citing Commonwealth

v. Pierce, 527 A.2d 973, 975–976 (Pa. 1987)). “An [ineffective-assistance-

of-counsel] claim will fail if the petitioner’s evidence fails to meet any one of

the three prongs.    Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). Because courts must presume that counsel was effective, the burden

of proving ineffectiveness rests with the petitioner.      Commonwealth v.

Montalvo, 114 A.3d 401, 410 (Pa. 2015).

      In his brief, Appellant posits a three-paragraph argument in which he

asserts that he wrote multiple letters requesting plea counsel to file a direct

appeal, but counsel never responded.        Appellant’s Brief at 12.   Appellant

maintains that he did not retain copies of the letters through no fault of his

own. Id. Appellant also alleges that he sent his mother to meet with plea

counsel. Id. However, contrary to our appellate rules, Appellant fails to cite

any case law in support of his claim. See Pa.R.A.P. 2119(a) (providing that

appellate briefs must contain “such discussion and citation of authorities as

are deemed pertinent”).


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      As noted supra, Appellant testified at the evidentiary hearing. He stated

that he wrote to plea counsel multiple times within thirty days of his

sentencing, requesting “everything under the sun, specifically direct appeal

and reconsideration.” N.T. (PCRA), 7/6/17, at 7, 9. Despite acknowledging

that he was able to make copies of letters, he stated that he did not do so due

to time constraints. Id. at 8. Appellant testified that he wrote to counsel

“months afterwards” and asked for his case file, “when he finally sent . . . a

copy of everything he had on my case. . . .” Id. at 9. Appellant was unable

to state the address where he mailed his letters. Id. at 10.

      Debra McMunus, Appellant’s mother, also testified. When asked if she

visited her son within thirty days after he was sentenced, she stated, “I believe

so.” N.T. (PCRA), 7/6/17, at 21. She testified she received a letter from

Appellant asking her to contact plea counsel and request an appeal and to ask

him to address a “separation order” regarding his co-defendant because its

effect was to keep Appellant in the “hole.” Id. at 22. Ms. McManus testified

that counsel returned her telephone call “the next day.” Id. at 24. She told

counsel that Appellant wanted an appeal and that he would need to get court-

appointed counsel because she “couldn’t pay any more money.” Id. at 23.

Appellant’s mother did not have a copy of the alleged letter from Appellant;

she stated she “did not bring a copy.” Id. at 26.

      Plea counsel testified at the evidentiary hearing.      He did not recall

receiving any letters from Appellant until one year after Appellant entered his


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plea, “way post appellate times.” N.T. (PCRA), 7/6/17, at 33–34. The letters

“didn’t deal with the appeal”; rather, they concerned “problems with one of

the detectives.”   Id. at 34.    Plea counsel admitted to speaking on the

telephone with Appellant’s mother “after the 30 day period after the guilty

plea.” Id. at 36. Counsel testified that he did not recall if Ms. McMunus had

told him she could not afford to hire him, as it was “[w]ell after” the thirty-

day appeal period when counsel spoke with her. Id. at 38.

      In Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011), our

Supreme Court reiterated that the “PCRA court’s credibility determinations,

when supported by the record, are binding. . . .” Indeed, the Spotz Court

explained the significance of credibility determinations in the PCRA setting as

follows:

             A PCRA court passes on witness credibility at PCRA hearings,
      and its credibility determinations should be provided great
      deference by reviewing courts. See, e.g., Commonwealth v.
      (Damon) Jones, 590 Pa. 202, 912 A.2d 268, 293 (2006);
      Commonwealth v. Santiago, 579 Pa. 46, 855 A.2d 682, 694
      (2004) (Opinion Announcing the Judgment of the Court) (“We are
      bound by the PCRA court’s credibility determinations where there
      is record support for those determinations.”); Commonwealth v.
      Abu–Jamal, 553 Pa. 485, 720 A.2d 79, 99 (1998) (“Just as with
      any other credibility determination, where the record supports the
      PCRA court’s credibility determinations, those determinations are
      binding on this Court.”). Indeed, one of the primary reasons
      PCRA hearings are held in the first place is so that
      credibility determinations can be made; otherwise, issues of
      material fact could be decided on pleadings and affidavits alone.

Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (emphasis

added).


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     The PCRA court stated on the record that both PCRA counsel and the

Commonwealth were in agreement concerning one of the issues; “that is, this

matter comes down to one of credibility.” N.T. (PCRA), 7/6/17, at 47–48. The

court explained on the record:

     [A] fact-finder is always pleased when there is some documentary
     evidence to support one side or the other. We don’t have that
     here. It isn’t essential, it is not dispositive, but the fact is there is
     nothing except the witness’s testimony to support the position
     that a letter or letters were sent to [plea counsel].

            Even if a fact-finder was inclined to accept, in whole or in
     part, the notion regarding timeliness and the difficulty of copying
     a letter when time was of the essence, one has to apply that
     rational not once but six times.

           Of some concern to this [c]ourt is the fact that Ms. McMunus
     doesn’t have the original of any of the letters [Appellant] sent to
     her asking that she intervene on his behalf with [plea counsel].

           There is either by a statement or by reference to the docket
     entries, or otherwise, evidence that [Appellant] may have been
     out of the hole as early as 10/2/13.

           Let’s say the order was signed on the 2nd of October, 2013
     and didn’t get to the prison until the next day or the day after. It
     was still within the time period for filing an appeal.

            The credible testimony, to my mind, is that Ms. McMunus
     did, in fact, speak to [plea counsel] after the period in which a
     post[-]sentence motion and/or notice of appeal could have been
     filed.

           On the balance, considering the evidence I heard, the
     [c]ourt having been asked to make a credibility determination, I
     cannot credit either [Appellant’s] or Ms. McMunus’[s] testimony
     as truthful.

          I accept [plea counsel’s] testimony, and find that no such
     request was made in a timely manner for either a post[-]sentence
     motion or for direct appeal.

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Id. at 48–49.

      Before an attorney may be determined to be ineffective, a PCRA petition

has the burden of proving that he in fact asked counsel to file a direct appeal

and that counsel ignored this request. Commonwealth v. Markowitz, 32

A.3d 706, 715 (Pa. Super. 2011); see also Commonwealth v. Harmon,

738 A.2d 1023, 1024 (Pa. Super. 1999) (stating that a mere allegation will

not suffice to prove that counsel ignored a defendant’s request to file an

appeal). Appellant did not carry his burden.

      In dismissing the instant PCRA petition, the PCRA court “found the

testimony of [Appellant] and his mother to be wholly lacking in credibility.”

PCRA Court Opinion, 9/1/17, at 8. There is ample support in the record for

the PCRA court’s findings. The PCRA court properly considered the testimony

of both Appellant and his mother and noted that neither witness had copies of

the letters they claimed to have written to counsel or, in the case of Ms.

McMunus, received from Appellant. The PCRA court found instead, that plea

counsel was believable, in that any contacts from Appellant or his mother

concerning the filing of an appeal occurred well beyond the thirty-day appeal

period.

      Credibility determinations are solely within the province of the PCRA

court. Johnson, 966 A.2d at 539. After review, we agree with the sound

reasoning of the PCRA court, which is supported by the record, and affirm on

this basis in concluding that the PCRA court did not err in dismissing

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Appellant’s PCRA petition.   PCRA Court Opinion, 9/1/17, at 7–8; see also

Commonwealth v. Dennis, 17 A.3d 297 305 (Pa. 2011) (stating that where

the record supports the PCRA court’s credibility determinations, such

determinations are binding on a reviewing court).   Accordingly, we do not

disturb the PCRA court’s findings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/18




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