J-S55037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                      v.                     :
                                             :
    TARENCE MICHAEL MOSEY                    :
                                             :
                           Appellant         :    No. 571 WDA 2019

               Appeal from the PCRA Order Entered April 8, 2019
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                           CP-07-CR-0001854-2016

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

CONCURRING & DISSENTING MEMORANDUM BY MURRAY, J.:

FILED: January 10, 2020

       I agree with the majority that the PCRA court properly denied

Appellant’s motion for recusal. However, I respectfully disagree that Appellant

is entitled to relief on his claim that Trial Counsel, Robert Donaldson, Esquire,

was ineffective for failing to explain all the elements of homicide by vehicle

while driving under influence (homicide by DUI). 1 Accordingly, I concur and

dissent.

       I incorporate the relevant law set forth in the Majority’s memorandum.

See Maj. Memo. at 7-9. I further emphasize:



* Retired   Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. § 3735 (“A person who unintentionally causes the death of
another person as the result of a violation of section 3802 (relating to driving
under influence of alcohol or controlled substance) and who is convicted of
violating section 3802 . . . is guilty” of homicide by vehicle while driving under
influence.).
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      We view the findings of the PCRA court and the evidence of record
      in a light most favorable to the prevailing party. . . . “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. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations omitted).

      Our Supreme Court has repeatedly stressed that where the
      totality of the circumstances establishes that a defendant was
      aware of the nature of the charges, the plea court’s failure to
      delineate the elements of the crimes at the oral colloquy, standing
      alone, will not invalidate an otherwise knowing and voluntary
      guilty plea. “Whether notice [of the nature of the charges] has
      been adequately imparted may be determined from the totality of
      the circumstances attendant upon the plea[.]”

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (en banc)

(citations omitted).

      First, I disagree with the Majority’s assessment that Trial Counsel’s

testimony at the PCRA hearing demonstrated a misunderstanding of the

causation element of homicide by DUI. See Maj. Memo. at 14-15 (quoting

N.T., 4/2/19, at 84) (Trial Counsel stating, “I believe [the causation element]

was self evident. I’m not sure that we actually had a discussion about that,”

and replying “No,” when asked if “causation [was] ever an issue”). To the

contrary, Trial Counsel stated that he understood the elements of homicide by

DUI and, specifically, that he discussed the causation element with Appellant:

            [Appellant:] Under homicide by vehicle while DUI the
      [elements are:] Violation of DUI, Section 3802[;] death of another
      person[;] and death is a direct and substantial result of the DUI.
      Are you aware of those elements?

            [Trial Counsel:] Yes.



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           Q. Are you aware that you only made me aware of two of
     those elements?

           A. I don’t think so. We had many discussions about
     the elements and that sort of thing.

N.T., 4/2/19, at 73 (emphasis added).

     The credibility of Trial Counsel’s testimony was for the PCRA court to

determine. See Mason, 130 A.3d at 617. The Majority, however, overlooks

the PCRA court’s findings of fact. The PCRA court opined:

     During his testimony, [Trial Counsel] stated that he had many
     discussions with [Appellant] relative to the elements of the most
     serious offenses.     [Trial Counsel] indicated that the alleged
     “missing” element, i.e., causation of death, was “self-evident”, as
     there was no dispute that [Appellant] was operating a motor
     vehicle on the date in question that came into contact with [the
     victim], resulting in her death and the death of her unborn child.
     [Appellant] has never disputed the fact that his vehicle came into
     contact with [the victim] on the night in question.

     Quite simply, [Appellant’s] claim is refuted by the written guilty
     plea colloquy that he completed; the testimony of [Trial
     Counsel], which we find to be credible; and the underlying
     factual circumstances of the incident itself.

PCRA Court Opinion, 4/8/19, at 17 (emphasis added).

     Trial Counsel testified that in this particular case and with respect to the

offense of homicide by DUI, the question of causation was “self evident” and

did not present an issue to the defense ahead of trial. N.T., 4/2/19, at 84.

The PCRA court credited this testimony, finding Appellant was aware that

causing someone’s death while DUI was an element of the offense. PCRA

Court Opinion, 4/8/19, at 17; see also 75 Pa.C.S.A. § 3735.

     Viewing the evidence in the light most favorable to the Commonwealth


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as the prevailing party, and deferring to the PCRA court’s credibility findings,

see Mason, 130 A.3d at 617, I disagree with the Majority’s conclusion that

Trial Counsel failed to properly advise Appellant of all the elements of homicide

by DUI. I would affirm the PCRA court’s denial of relief on this issue. See

Morrison, 878 A.2d at 107. In light of this disposition, I would address the

merits of Appellant’s remaining issues, but conclude no relief is due.

      Appellant presents five additional claims for our review:

      1. Was . . . Appellant’s rights under Birchfield violated, and was
      counsel ineffective in failing to file suppression motions, or to
      appeal the issue? Where there was a clear violation under
      Birchfield?[2]

      2. Was counsel ineffective in failing to file motions for change of
      venue, where the community was inundated by the media
      concerning . . . Appellant and it would have been impossible for . . .
      Appellant to have received a fair trial?

      3. Was Appellant denied an opportunity to a fair trial, where
      counsel failed to object to jury selection process which excluded
      African Americans from the jury pool?

                                  *    *    *

      6. Was Counsel ineffective in failing to file post-sentence motions?
      And did the court fail to set forth on the record that Appellant was
      never told about his need to file post sentence motions within ten
      (10) days, and that he had a right of direct appeal, that had to be
      filed within 30 days, and his right to counsel? And regardless of
      counsel if the record fails to disclose the time frame, etc. . . .
      Appellant should be granted nunc-pro-tunc relief?


2 Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). Generally, the
Birchfield Court held that a search warrant was required for a blood alcohol
test and that a state cannot “impose criminal penalties on the refusal to submit
to such a test.” Commonwealth v. Olson, 218 A.3d 863, 866 (Pa. 2019).



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      7. Was Appellant denied effective assistance of counsel where
      Appellant was under medication at the time of the plea, which sets
      forth mitigation, as such was counsel ineffective?

Appellant’s Brief at 2.

      First, Appellant avers that Trial Counsel was ineffective for not filing a

motion to suppress the blood alcohol test results.        He contends that his

consent to a blood alcohol test, given at the time of his arrest, was invalid

pursuant to Birchfield. The PCRA court aptly pointed out, however, that while

Trial Counsel did not file a suppression motion, he orally moved to suppress

the blood alcohol test evidence, citing Birchfield, at a pre-trial hearing on the

Commonwealth’s motion in limine to introduce that same evidence.            PCRA

Court Opinion, 4/8/19, at 8 n.1. I would thus affirm the PCRA court’s denial

of relief on this issue. Furthermore, I note that in pleading guilty, Appellant

waived any issue pertaining to the suppression or admission of evidence. See

Commonwealth v. Andrews, 158 A.3d 1260, 1265 (Pa. Super. 2017) (“‘A

plea of guilty constitutes a waiver of all nonjurisdictional defects and defenses’

and ‘waives the right to challenge anything but the legality of [the] sentence

and the validity of [the] plea.’”).

      In his next two issues, Appellant assails Trial Counsel’s ineffectiveness

on the basis that: 1) Trial Counsel was ineffective for failing to file a motion

to change venue; and 2) Trial Counsel failed to object to the jury selection,

where no African Americans were included in the potential jury pool. I would

affirm the denial of relief on these two claims because they arise from the



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alleged denial of a fair trial, where, here, Appellant pled guilty. Andrews,

158 A.3d at 1265.

        Appellant’s next claim is that Trial Counsel was ineffective for not filing

a motion to withdraw his guilty plea, a post-sentence motion, or a direct

appeal. We have stated: “[B]efore a court will find ineffectiveness of counsel

for failing to file a direct appeal, the petitioner must prove that he requested

a direct appeal and the counsel disregarded the request.” Commonwealth

v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011).

        Here, the PCRA court credited Trial Counsel’s testimony that Appellant

did not communicate, either directly or otherwise, a desire to withdraw his

plea.    PCRA Court Opinion, 4/8/19, at 15; see N.T., 4/2/19, at 90-91.

Furthermore, the court found Appellant’s testimony that he wanted Trial

Counsel to file a post-sentence motion or appeal not credible. PCRA Court

Opinion, 4/8/19, at 15; see N.T., 4/2/19, at 18. Again, deferring to the PCRA

court’s credibility determinations, I would affirm the denial of relief.      See

Mason, 130 A.3d at 617; Ousley, 21 A.3d at 1244.              I further note that

Appellant does not identify any post-sentence or appellate issue that he

wished to litigate — or upon which he was entitled to relief.

        In his final issue, Appellant argues Trial Counsel was ineffective for not

investigating the effects of the medications he was taking at the time of his

guilty plea. Appellant’s Brief at 29. Appellant further claims that he “was

coerced” by Trial Counsel to plead guilty. Id.



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      This Court has stated:

      With regard to an attorney’s duty to investigate, the Supreme
      Court has noted that the reasonableness of a particular
      investigation depends upon evidence known to counsel, as well as
      evidence that would cause a reasonable attorney to conduct a
      further investigation. With regard to the voluntariness of a plea,
      a guilty plea colloquy must “affirmatively demonstrate the
      defendant understood what the plea connoted and its
      consequences.” Once the defendant has entered a guilty plea, “it
      is presumed that he was aware of what he was doing, and the
      burden of proving involuntariness is upon him.”

Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (citations

omitted).   In Willis, the defendant asserted that “his guilty plea was

involuntarily and unlawfully induced by the ineffective assistance of guilty plea

counsel,” who allegedly failed to investigate the defendant’s mental health

issues. Id. at 1001. The defendant also asserted that at the time of the plea,

he was under the influence of prescribed psychotropic medication. Id. This

Court affirmed the denial of PCRA relief, concluding that the defendant was

bound by the statements he had made, under oath in his plea colloquy, that

he was not under the influence of medication and that he understood the

proceedings. Id. at 1008-09.

      Likewise, Appellant, in this case, executed a written plea colloquy in

which he stated that he was currently treated for PTSD and depression, and

had taken “sleeping medication and depression meds.” Guilty Plea Colloquy

Form, 10/10/17, at 2, 3.       Nevertheless, Appellant responded “yes” to the

question “[D]o you still feel that you have sufficient mental capacity to

understand this questionnaire and the answers that you are giving?” Id. at


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3. Appellant also responded “no” to the query, “Has any force or threat been

used against you by anyone to have you plead guilty?” Id. at 8. Additionally,

during the oral colloquy, Appellant stated “No, sir,” to the trial court’s question,

“Are you in any way under the influence of any drug, alcohol or medication

here this morning?” N.T., 10/10/17, at 22. Appellant was bound by these

statements and cannot now claim that Trial Counsel failed to investigate

whether his medications caused him to enter an involuntary plea. See Willis,

68 A.3d at 1002, 1008-09. Accordingly, no relief would be due.

      For the foregoing reasons, I would affirm the orders of the PCRA court

denying Appellant’s motion to recuse and PCRA petition.




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