J-S16022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 EDWIN ROY SHOWALTER                       :
                                           :
                    Appellant              :    No. 1457 MDA 2018

            Appeal from the PCRA Order Entered July 31, 2018
  In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0003661-2015

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED APRIL 09, 2019

      Edwin Roy Showalter (Appellant) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      A prior panel of this Court summarized the relevant facts and procedural

history of this case as follows:

          On April 19, 2015, [Appellant] entered Harbor Freight in York
      County to return an item he had purchased. A dispute arose as
      to the amount of the refund. Stephany Nicholson, a cashier at the
      store, testified that [Appellant] then left the store, but he returned
      shortly after that dispute to make a purchase. This time, however,
      [Appellant] was shouting, and Nicholson noticed he was agitated
      and invading her “personal space.” N.T. Jury Trial, 7/12/16, at
      93. [Appellant] left the store again, and returned a third time,
      just before closing time. Nicholson testified that [Appellant] was
      “trying to come behind the registers with his fists balled and made
      [the employees] feel threatened[.]” Id. at 83-84. Nicholson
      testified [Appellant] was acting combative, and this time he lifted
      his shirt and exposed a handgun, which was tucked inside his
      waistband. Another store clerk, Elizabeth Spells, testified that at
      the time [Appellant] lifted up his shirt he said something to the
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     effect of, “[T]this is what I can do to you.” Id. at 94. [Appellant]
     then left the store.

                                *     *     *

         [Appellant] was charged with two counts each of simple assault
     and harassment, and one count of disorderly conduct. At a
     pretrial conference, represented by [an] Assistant Public Defender
     . . ., [Appellant] indicated he wished to represent himself. The
     court was not satisfied that [Appellant] was willing to waive his
     right to counsel. Thereafter, at [Appellant]’s request, the public
     defender filed a motion to withdraw. On February 2, 2016, the
     court held a hearing on the motion to withdraw and conducted a
     full waiver colloquy. See Pa.R.Crim.P. 121. The court permitted
     the public defender to withdraw, allowed [Appellant] to represent
     himself, and appointed [the public defender] as standby counsel.

        Following trial, . . . [t]he jury convicted [Appellant] of two
     counts of simple assault, and the court found him guilty of the
     summary offense of disorderly conduct. [Appellate Counsel]
     entered his appearance. The court sentenced [Appellant] to an
     aggregate term of 9 to 23 months [of] imprisonment, followed by
     12 months [of] probation. Post-sentence motions were filed and
     denied.

Commonwealth v. Showalter, 1805 MDA 2016 at 1-4 (Pa. Super. Aug. 29,

2017) (unpublished memorandum; footnotes omitted).

     The PCRA court set forth the remaining procedural history:

        On October 27, 2016, [Appellant], through counsel, filed a
     notice of appeal to the Superior Court. On August 27, 2017, the
     Superior Court affirmed [Appellant]’s judgment of sentence at
     1805 MDA 2016. On October 2, 2017, [Appellant] filed a petition
     for allowance of appeal to the Pennsylvania Supreme Court. On
     March 29, 2018, the Pennsylvania Supreme Court denied
     [Appellant]’s appeal.

        On May 21, 2018, [Appellant], through counsel, . . . filed a
     [PCRA petition]. On June 20, 2018, [Appellant] filed an amended
     petition for [PCRA] relief. On July 31, 2018, [the PCRA court] held
     a hearing on [Appellant]’s petition and issued an order denying
     post-conviction relief to [Appellant].

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         On August 29, 2018, [Appellant] filed a notice of appeal to the
      Superior Court. On th[e] same date, [the PCRA court] issued an
      order directing the [Appellant] to file a Concise Statement of
      Matters Complained of on Appeal pursuant to Pennsylvania Rule
      of Appellate Procedure 1925(b).       On September 19, 2018,
      [Appellant] filed the 1925(b) Statement.

PCRA Court Opinion, 11/7/18, at 2-3.

      On appeal, Appellant presents a single issue for our review:

      A.   WHETHER THE TRIAL COURT ERRED IN DENYING POST-
      CONVICTION RELIEF BASED UPON PREVIOUS APPELLATE
      COUNSEL FAILING TO ADEQUATELY LITIGATE VIOLATIONS OF
      THE   SIXTH  AMENDEMENT     TO   THE   UNITED   STATES
      CONSTITUTION, ARTICLE I, SECTION 9 OF THE PENNSYLVANIA
      CONSTITUTION, AND PENNSYLVANIA RULE OF CRIMINAL
      PROCEDURE 121 FOR FAILING TO ARGUE THAT THE TRIAL
      COURT, OR COUNSEL, DID NOT ESTABLISH ON THE RECORD
      THAT APPELLANT UNDERSTOOD PROVISIONS OF PENNSYLVANIA
      RULE OF CRIMINAL PROCEDURE 121 AND THEREFORE,
      KNOWLINGLY, INTELLEGENTLY AND VOLUNTARILY WAIVE[D] HIS
      RIGHT TO COUNSEL?

Appellant’s Brief at 7.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      We begin by recognizing:

      To be eligible for relief under the PCRA, [a pcra petitioner] must
      prove by a preponderance of the evidence that his conviction or
      sentence resulted from one or more of the enumerated

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      circumstances found in Section 9543(a)(2) (establishing the bases
      for relief). These circumstances include . . . ineffective assistance
      of counsel that “so undermined the truth-determining process that
      no reliable adjudication of guilt or innocence could have taken
      place.”     42 Pa.C.S. § 9543(a)(2)[(ii)]; Commonwealth v.
      Blakeney, 108 A.3d 739, 749 ([Pa.] 2014). [A pcra petitioner]
      also must demonstrate that the issues included in his PCRA
      petition have not been previously litigated or waived. 42 Pa.C.S.
      §§ 9543(a)(3), 9544(a)-(b) (defining circumstances that lead to
      waiver and a finding that a claim is previously litigated).

Commonwealth v. Crispell, 193 A.3d 919, 927–28 (Pa. 2018).

      Appellant’s sole issue on appeal challenges the effectiveness of

Appellate Counsel. In deciding ineffective assistance of counsel claims, we

begin with the presumption that counsel rendered effective assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

that presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,

with prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.” Id. (citation omitted).

To demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.




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      Appellant argues that Appellate Counsel was ineffective for failing to

properly litigate, on appeal, his claim that Appellant did not knowingly,

voluntarily, and intelligently waive his right to counsel at trial.   Appellant

asserts that Appellate Counsel failed to argue “that Appellant gave no

responses to the pertinent inquiries of the trial court from which a conclusion

could be drawn that he understood any of the [t]rial [c]ourt’s questions and

any of the information that must be elicited from him before [trial] counsel

could be given permission to withdraw.” Appellant’s Brief at 18. Appellant

contends that Appellate Counsel improperly limited his argument on direct

appeal to “the context of the Appellant not being properly advised of the

sentencing issues in the case.” Id. at 19. Appellant further asserts that the

record demonstrates that he “did not understand” any of the necessary criteria

for waiving his right to counsel under Pennsylvania Rule of Criminal Procedure

121(A)(2). Id. at 18. Appellant maintains that “it was readily apparent that

Appellant was not mentally capable of defending himself at trial.” Id.

      Upon review, we conclude that this issue does not merit relief. Appellant

purports to challenge Appellate Counsel’s ineffectiveness with respect to

Appellant’s claim on direct appeal regarding whether he properly waived his

right to counsel before the trial court.    Appellant’s arguments, however,

amount to nothing more than an attempt to re-litigate the waiver of counsel

claim he previously raised before this Court.




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      The Superior Court rejected Appellant’s waiver of counsel claim on direct

appeal, stating:

         Pennsylvania Rule of Criminal Procedure 121 provides the
      framework and minimum guidelines for the waiver colloquy to
      ensure that the defendant’s waiver is knowing, voluntary and
      intelligent.  See Pa.R.Crim.P. 121(A)(1), (2); see also
      Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
      Pursuant to Rule 121, the court must ensure:

         a) that the defendant understands that he or she has the
         right to be represented by counsel, and the right to have
         free counsel appointed if the defendant is indigent;

         b) that the defendant understands the nature of the charges
         against the defendant and the elements of each of those
         charges;

         c) that the defendant is aware of the permissible range of
         sentences and/or fines for the offenses charged;

         d) that the defendant understands that if he or she waives
         the right to counsel, the defendant will still be bound by all
         the normal rules of procedure that counsel would be familiar
         with these rules;

         e) that the defendant understands that there are possible
         defenses to these charges that counsel might be aware of,
         and if those defenses are not raised at trial, they may be
         lost permanently, and

         f) that the defendant understands that, in addition to
         defenses, the defendant has many rights that, if not timely
         asserted, may be lost permanently; and that if errors occur
         and are not timely objected to, or otherwise timely raised
         by the defendant, these errors may be lost permanently.

      Pa.R.Crim.P. 121(A)(2).

                                 *     *     *

         The court advised [Appellant] that he could hire private
      counsel, be appointed counsel if he were indigent, or represent

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      himself. [N.T., 2/23/16, at 5]. The court advised [Appellant] of
      the fact that if he chose to represent himself he would be bound
      by the same rules of law as an attorney. Id. at 12. The court
      also determined that [Appellant] was not under the influence of
      anything that would interfere with his ability to understand the
      waiver proceeding, and that [Appellant] was not forced,
      threatened or promised anything in return for giving up his right
      to an attorney. Id. at 12, 17-18. [Appellant] ultimately agreed
      to have the assistance of the public defender as standby counsel,
      and he indicated that he understood that standby counsel would
      only give advice if he asked for it. Id. at 10.

         Additionally, we find that [Appellant]’s statements during the
      colloquy, that the charges were “false charges,” id. at 4, or that
      he did not “understand these charges at all[,]” id. at 10, does not
      establish that he did not understand the nature of the charges
      against him. . . . [A]t the pretrial conference, the court had read
      [Appellant] the charges against him, and explained to him that he
      could request a Bill of Particulars if he needed additional
      information about the nature of the charges. N.T., Pretrial
      Conference, 12/17/15, at 4-5. The trial court did acknowledge
      that it did not state the permissible range of sentences and/or
      fines for the offenses charged verbatim, see Pa.R.Crim.P.
      121(A)(2)(c), but the court ensured that [Appellant] had access
      to the guidelines ranges and the maximum sentences applicable
      to the offenses charged. N.T. Post-Sentence Hearing, 10/24/16,
      at 5; N.T. Hearing on Motion to Withdraw/Waiver Colloquy,
      2/23/16, at 18.

          After our review, we find the court’s conclusion that [Appellant]
      knowingly, intelligently and voluntarily waived his right to counsel
      is supported in the record. See Commonwealth v. Starr, 664
      A.2d 1326 (Pa. 1995); see also Commonwealth v. El, 977 A.2d
      1158 (Pa. 2009) (where defendant knowingly, voluntarily, and
      intelligently seeks to waive Sixth Amendment right to counsel,
      trial court must allow individual to proceed pro se). We agree with
      the trial court’s assessment that [Appellant] understood the
      implications of his decision to represent himself.

Showalter, 1805 MDA 2016 at 5-9 (footnote omitted).

      Our review of the record, law and the previous decision of this Court

demonstrates that Appellant previously litigated his issue relating to waiver of

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his right to counsel. Not only did this Court conclude that Appellant knowingly,

voluntarily, and intelligently waived his right to counsel, but it did so while

taking into consideration all of the criteria under Rule 121(A)(2) that Appellant

now claims on collateral review that this Court and the trial court did not

consider. Even if Appellant were correct that Appellate Counsel improperly

limited his arguments relating to Appellant’s waiver of counsel claim, Appellant

cannot establish that he was prejudiced by Appellate Counsel’s tactics, as the

Superior Court’s decision on direct appeal reflects that it reviewed all of the

necessary criteria under Rule 121(A)(2), and determined that Appellant

knowingly, voluntarily, and intelligently waived his right to counsel. See id.

Because Appellant previously litigated the issue he raises before this Court,

we conclude that the PCRA court did not abuse its discretion in dismissing his

PCRA petition. See 42 Pa.C.S.A. §§ 9543(a)(3), 9544(a)(2).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/09/2019




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