J-S60010-14




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                    v.

JAMES JERALD PATTERSON

                          Appellant                    No. 180 MDA 2014


                Appeal from the PCRA Order June 27, 2013
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0000319-2011
                          CP-67-CR-0007400-2010
                          CP-67-CR-0007454-2010


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 13, 2015

      James Jerald Patterson appeals from the order entered on June 27

2013, in the Court of Common Pleas of York County, denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et

seq. In 2012, a jury convicted Patterson of three counts of robbery and one

count of criminal conspiracy. The trial court sentenced Patterson to 23 to 46

years’ incarceration.    Patterson’s direct appeal afforded him no relief.    He

filed a timely PCRA petition which was denied after a hearing. In this timely

appeal, Patterson claims the PCRA court erred in: (1) not finding trial

counsel ineffective in representing him in plea negotiations, (2) not finding

trial counsel ineffective for failing to call witnesses at trial, (3) not finding
J-S60010-14



trial court ineffective for failing to have him evaluated to determine

competency for trial, and (4) not finding PCRA counsel ineffective for failing

to call witnesses to the PCRA hearing and for failing to obtain a competency

evaluation.1 Issues two and four are partially related in that the witnesses

would have purportedly supported Patterson’s claim of duress.          After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm based on the sound reasoning and analysis of the

PCRA court.2

        Because we are relying upon the PCRA court’s opinion, and the facts

and circumstances are known to the parties, we will not restate that which

the PCRA court has already related.

        However, we note,

        [o]ur standard of review of a trial court order granting or
        denying relief under the PCRA calls upon us to determine
        whether the determination of the PCRA court is supported by the
        evidence of record and is free of legal error. The PCRA court's
        findings will not be disturbed unless there is no support for the
        findings in the certified record.


____________________________________________


1
    We have reworded Patterson’s claims.
2
  We note that there is no question that the instant PCRA petition was timely
under the statute. Therefore, we will not reiterate the statutory provisions
regarding the timely filing of a PCRA petition. Patterson’s judgment became
final on October 11, 2012 when time expired to seek Pennsylvania Supreme
Court review of his direct appeal. The instant PCRA petition was filed on
March 8, 2013, well within the one-year limit to file a PCRA petition.




                                           -2-
J-S60010-14



Commonwealth v. Heredia, 97 A.3d 392, 394 (Pa. Super. 2014) (citation

omitted).

       Our comprehensive review of this matter leads us to the inescapable

conclusion that the PCRA court’s ruling is supported by the record and is free

of legal error.

       We write additionally to address Patterson’s claim that PCRA counsel

was ineffective for failing to interview and present at the PCRA hearing, the

witnesses trial counsel failed to call.          We note that Patterson never

complained to the PCRA court, during the hearing, that counsel had failed to

call the same witnesses trial counsel had failed to call.      PCRA counsel’s

ineffectiveness was never raised before the PCRA court in a timely manner.

See Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014)

(petitioner cannot raise claim of PCRA counsel ineffectiveness for the first

time in a Pa.R.A.P. 1925(b) statement), citing Commonwealth v. Ford, 44

A.3d 1190 (Pa. Super. 2012). Therefore, the issue has been waived. 3




____________________________________________


3
   However, we note that the claim of PCRA counsel’s ineffectiveness could
not succeed here where the PCRA court determined there was no prejudice
to Patterson for the failure to call those same witnesses at trial.
Additionally, to the extent Patterson’s claim regarding his competency
extends to the PCRA proceedings, he has failed to articulate any prejudice in
light of his active participation in the PCRA proceedings.




                                           -3-
J-S60010-14



       Order affirmed.      Parties are directed to attach a copy of the PCRA

court’s Order and Opinion dated June 27, 20134 and Pa.R.A.P. 1925(a)

Opinion dated March 26, 2014.

       Judge Stabile joins in this memorandum.

       Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2015




____________________________________________


4
  The Order and Opinion of June 27, 2013, found at number 34 in the
certified record, is essentially the transcript of Judge Richard K. Renn’s order
from the bench following the PCRA hearing. See N.T. PCRA Hearing,
6/27/2013, at 43-50.



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,    '




<: '
                         IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
                                         PENNSYLVANIA


                                           'CP-67-CR-0007400-2010'
-:   '




                                           'CP-67-CR-0007454-2010'

I.


1- .                                       'CP-67-CR-0000319-2011'

1- ,


                    COMMONWEALTH                         CP-67-CR-0007400-2010

                        VS                               1) Robbery

                    JAMES JERALD PATTERSON               CP-67-CR-0007454-2010

                                                         1) Robbery

I., '
                                                         CP-67-CR-0000319-2011

                                                         1) Robbery

                                                          ( PCRA)
             r--
                               York,   Pa., Thursday, June 27, 2013

                             Before Honorable Richard K. Renn, Judge
         ,
         -


                   APPEARANCES:
                             STEPHANIE LOMBARDO, Esquire
                             Assistqnt District Attorney
                             For the Commonwealth

                             WILLIAM H. GRAFF, JR., Esquire
                             For the Defendant

                                                  * * *
                                              o   R D E R

                                   First of all, I would like to offer
                   three observations about an attorney working with the
                   client.  An attorney is just the client's mouth piece
                   to pursue whatever the client wants to say to the Court
                   or the jury.  The attorney is expected to use his
                   expertise and his good judgment in what to present to
                   the Court and, more importantly, what to present to the
                   jury.


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                          The mere fact that the attorney doesn't
          just say everything that the client wants him to say or
          present every piece of evidence or every witness that
          the client wants, does not in itself mean the attorney
          is ineffective.
( ,


                          Second, the amount of time that an
<.        attorney spends with the client is not indicative of
I         the quality of the representation.   It could be some
          cases require extraordinary time spent with the client
t.        and other cases very little.   So, the fact that an
....
 1- "
          attorney may not spend the time with the client, the
 <:. •    client was not indicative of the quality of
          representation.
1-' ,

.; .
                         Finally, the failure to exhaust all
          arguable remedies or take all actions or courses of
I., '     conduct that the client expects is not of and in itself
          indicative of ineffective representation.

                        Our Courts have been very clear that a
I"   '   person in order to have relief under the Post
('       Conviction Relief Act must prove by preponderance of
         the evidence that a conviction resulted from
         ineffective assistance of counsel.  That the allegation
         has not previously been litigated and has not been
         waived.

                        The Appellate Courts presume that
         counsel's assistance is constitutionally effective if
         the particular course of action chosen by the counsel
         was reasonably designed to effectuate his client's
         interests.

                        In order to show ineffective assistance
         of counsel, a criminal Defendant has to show that the
         underlying planes of arguable merit that counsel's
         performance had no reasonable basis and that his
         ineffectiveness worked to the Defendant's prejudice.

                        The Defendant essentially raises four'
         issues that might afford relief under the Post
         Conviction Relief Act.  First, he raises the issue that
         he would have accepted a plea agreement as it was
         presented to the Court.  Initially, he would have
         presented a plea agreement had he known there was a
         plea proposal.

                        As the evidence unfolded, it is
         abundantly clear that the Defendant knew of the plea


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 ,.
 ,.       proposal.  The plea proposal was, in fact, communicated
          certainly if not verbally then in writing by Mr. Rader
          prior to trial and that plea proposal was 10 to 30
          years.

                         We note that a Defendant does not have a
          constitutional right to a plea proposal.  Does not have
          a constitutional right to plea agreement.
:.   .
                         Notwithstanding what the Supreme Court
I .
r .
          seems to have said once the plea agreement is actually
1- ;      proposed in this case and we would note that to the
          extent that the testimony of the Defendant differs from
          that of Mr. Rader presented by the Commonwealth, it
I·
          resolved issues of credibility in favor of Mr. Rader.
          Mr. Rader was clear the Defendant was offered a plea
          agreement that he was not happy with.
~    .
                         The Defendant negotiated back and forth
\.   .    and managed to get the initial offer down 5 years.  He
          still was not happy with it and he decided to go to
          trial.

                        We can see no ineffective assistance of
         counsel in any of that process.   Mr. Patterson was made
         aware of the proposal.   The fact that it was not in
         accord with his initial expectations, does not make
         counsel ineffective.   It does not implicate the
         constitutional issues raised in the Supreme Court case
         that we cited to counsel.

                        In fact, the only credible evidence that
         we have of the status of plea negotiations comes from
         Mr. Rader, since Mr. Patterson's testimony as to why he
         wanted to go to trial it was hopelessly contradictory
         and ranged anywhere from not being told of the plea
         agreement to wanting the Court to hear everything that
         happened in the case.

                        Accordingly, we cannot conclude that he
         has sustained his burden with regard to the issue of
         the plea agreement.

                        The next issue he raises involves his
         claim of duress.  In that regard he raises two sub
         issues.  The first is that witnesses were not presented
         on his behalf in order to advance the claim of duress.
         Mr. Rader testified that he interviewed one witness who
         would not have been helpful.  Frankly, the Court has to
         agree with that assessment based on what Mr. Rader told


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('
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(        .   us.  That it's even doubtful the testimony would be
             permitted given that it was hearsay at least based on
             hearsay testimony even if the witness had been offered.

                            The second witness, the Defendant's own
             mother, that Mr. Rader attempted to contact her and \'ias
"        ;
             unsuccessful.  Certainly presumably she was accessible
             to the Defendant as well.  She did not contact Mr.
 <.
 ,.          Rader.

 I.                         We cannot conclude that he was
             ineffective for not interviewing her under the
 ,,          circumstances and not presenting her testimony to the
             Court if he had in some way forced her to come to Court
    ).   ,   to testify.

                            And finally, the probation officer whom
    ,.       Mr. Rader indicated he did not interview would have
             presented its own issues with regard to the nature of
             the relationship between Mr. Patterson and the
             probation officer, given Mr. Patterson's prior record.
             Even if we accept for the sake of argument that the
             probation officer could have testified to anything
             advancing the duress defense and based on the
             information that Mr. Rader had available, there is no
             discussion that would have occurred if a decision was
             made to place Mr. Niehenke on the stand.

                            Under the circumstances then, failure to
             call the witnesses is not ineffective as counsel had a
             reasonable basis for not doing so. That certainly if
             not advance his client's cause, certainly did not hurt
             his client's cause by attempting to present such
             evidence.

                             The related claim which the Defendant
             continually raises is that he was forced to testify
             because there were no witnesses here.   The Court, as we
             were listening to Mr. Rader's testimony about his
             assessment of presenting duress defense and in going
             back and reviewing the trial dynamics, we find it
             difficult to conclude how a duress defense would have
             presented in context.of this trial without the
             Defendant testifying.   I can't imagine that any
             evidence, there was certainly no evidence other than
             the Defendant's own testimony, that would indicate any
             kind of duress being used.

                            As we recall the testimony, the
             Defendant was always alone in the stores.  There was


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(t ,'
             with the exception of perhaps one of the cases someone
             may have come in at the,
                                 the· conclusion of the robbery.  It
             was a codefendant with the Defendant, but we find it
             difficult to conclude that a defense of duress could
             have been presented by other than having the Defendant
<:           testify.
                            There was no testimony by the Defendant
.:' ''
(
             or anyone else that he was forced, threatened, coerced
t, ,•
             into testifying.  Only that he had to testify because
I,
I .          other witnesses weren't present.  That is not
             ineffective counsel.
,.   '



                            Under the circumstances, it was probably
 i;          the only course of action available to Mr. Rader at the
             time to present the defense.

 I., '
                             And finally, with regard to the issue of
             competency.   There were tl'iO
                                      two related issues.  One,
             whether the Defendant was criminally responsible for
             his acts.   The available evidence was that he was.

  .
  ( ',
  (
  t '    .                  The other issue given the benefit to the
             Defendant not directly dealt with in the evaluation was
             whether he was competent to stand trial.  Mr. Rader
             certainly thought he was.

                            The Court recalls the Defendant was
             actively involved in his case throughout the course of
             the trial. He did not appear to be lacking competency
             to understand what was going on.   He testified on his
             own behalf.  He presented his defense.   He was actively
             involved in the plea negotiations.

                            There is no basis on which we would be
             concerned that the Defendant was not competent to
             testify or participate in his defense.

                            In short, we conclude that the evidence
             does not sustain the Defendant's burden of ineffective
             assistance of counselor any other counts grounds for
             relief under the Post Conviction Relief Act, and,
             accordingly, we will deny the petition.

                            We direct that a copy of this statement
             sent to counsel for the parties, also to Mr. Patterson
             at inmate number KM5625 SCI Albion 10745, Route 18,
             Albion, PA 16475.
                                      *   *   *
             cmm   7-1-13


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                IN THE
                IN THE COURT
                       COURT OF
                             OF COMMON
                                COMMON PLEAS
                                       PLEAS OF
                                             OF YORK
                                                YORK COUNTY,
                                                     COUNTY,
                                PENNSYLVANIA
                                PENNSYLVANIA


                                  'CP-67-CR-0007400-2010'
                                   ·CP-67-CR·0007400-2010·



           COMMONWEALTH
           COMMONWEALTH                           CP-67-CR-0007400-2010
                                                  CP-67-CR-0007400-2010
II,,
               VS
{-{- ,,

           JAMES JERALD PATTERSON
II ,I




ii ,,



                              PROOF OF SERVICE


                    On Monday, July 1, 2013, I the undersigned
          served the Order dated Thursday, June 27, 2013, in this
          matter by personal service upon each of the following
 II ,,    offices:



          Yor~ County Cler~ of Courts Office
               a) Original
               b) Copy for private defense counsel/pro se
                  defendant to be served by Clerk

          York County District Attorney's Office

          Judge Richard K. Renn

          York County Adult Probation Office



                                            Christine M. Myers,
                                            Official Court Reporter




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