J-S58025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

EDWARD STEPTOE ANDREWS

                          Appellant                   No. 660 MDA 2015


                 Appeal from the PCRA Order March 19, 2015
               In the Court of Common Pleas of Clinton County
             Criminal Division at No(s): CP-18-CR-0000266-2013


BEFORE: GANTMAN, P.J., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 07, 2015

      Appellant, Edward Steptoe Andrews, appeals from the order entered

on March 19, 2015, dismissing his petition filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9141-9146. After careful review, we

affirm.

      The PCRA court briefly summarized the facts and procedural history of

this case as follows:

          On April 26, 2013 in South Renovo Borough, Clinton
          County, Pennsylvania, [Appellant] discharged a firearm nine
          (9) times through a door that [Appellant] knew Alma
          Antram was behind. Alma Antram was struck four (4) times
          and required medical treatment. At the same time and
          place, [Appellant] threw a twelve (12) inch fixed blade knife
          that struck Douglas Antram in the foot, causing him to
          receive medical treatment. [Appellant] had a blood alcohol
          content of .249 at the time of the aforementioned events.

          [Appellant] entered pleas of nolo contendere to [c]riminal
          [a]ttempt/[h]omicide and [a]ggravated [a]ssault for [his]

* Retired Senior Judge assigned to the Superior Court.
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         actions against Alma Antram. [Appellant also] entered a
         plea of nolo contendere for [his] actions against Douglas
         Antram.

                                *          *         *

         [Appellant] was sentenced [to an aggregate term of 21 to
         42 years of imprisonment] on the aforementioned counts on
         November 25, 2013. On December 12, 2014, [Appellant]
         filed a PCRA petition []. [Appellant’s] petition allege[d]
         ineffective assistance of counsel in connection with the plea
         negotiations and ineffective assistance of counsel during the
         plea colloquy. […] A hearing on this matter was held on
         March 11, 2015 [wherein trial counsel and Appellant
         testified].

PCRA Court Opinion, 3/19/2015, at 1-2.           The PCRA court denied relief by

order and opinion entered on March 19, 2015. This timely appeal resulted.1

       On appeal, Appellant presents the following issues for our review:

         1. Whether defense counsel’s performance was deficient
            when he did not ensure that [Appellant] understood the
            elements of the offenses to which he was pleading nolo
            contendere and whether the deficient performance
            caused prejudice because there was a reasonable
            probability that, but for the attorney incompetence,
            [Appellant] would not have pled nol[o] contendere but
            instead would have insisted on a jury trial?

         2. Whether defense counsel’s performance was deficient for
            failing to advise [Appellant] that he had a defense of
            voluntary intoxication and whether there was a

____________________________________________


1
   On April 14, 2015, Appellant filed a notice of appeal. On April 15, 2015,
the PCRA court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely on May 4, 2015. On May 5, 2015, the PCRA court
filed an opinion pursuant to Pa.R.A.P. 1925(a), relying upon its earlier
decision entered on March 19, 2015.



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             reasonable probability that [Appellant] would have
             insisted on a jury trial had he known of the defense?

Appellant’s Brief at 1-2 (complete capitalization omitted).2

       In his first issue presented, Appellant claims that defense counsel

provided ineffective assistance of counsel for failing to ensure Appellant

understood the elements of the offense of attempted murder prior to

entering a nolo contendere plea to that crime.                 Id. at 15-24.     More

specifically, Appellant contends that defense counsel was ineffective for

failing to inform Appellant “that the charge of attempt to commit criminal

homicide requires the element of specific intent to kill.” Id. at 13. Appellant

avers that although he admitted to firing through a door in the direction of

Alma Antram’s feet, a non-vital part of her body, he did not admit to

intending her death.        Id. at 19.         He alleges “neither the [g]uilty [p]lea

[s]tatement, nor the trial judge, nor defense counsel informed [Appellant]

that the mens rea required for attempted [] murder was the same as for

first[-]degree murder.”         Id.    Appellant maintains, “[d]efense counsel’s

testimony [at the PCRA hearing] revealed that [defense counsel] was not

aware that specific intent to kill was required to enter a nolo plea to the

charge of attempted murder[]” and, instead, “misadvised [Appellant] that he

could be guilty of attempted murder if he acted negligently or recklessly.”
____________________________________________


2
   On August 21, 2015, Appellant filed a motion for enlargement of time to
file his reply brief. As we received Appellant’s reply brief in time to review it
before rendering this decision, we grant Appellant’s motion and consider his
reply brief to be timely filed.



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Id. at 19-20.     Thus, he contends his plea was not made knowingly,

intelligently or voluntarily. Id. at 23-24.

      Our standard of review is well-settled. “As a general proposition, we

review a denial of PCRA relief to determine whether the findings of the PCRA

court are supported by the record and free of legal error.” Commonwealth

v. Eichinger, 108 A.3d 821, 830 (Pa. 2014).            “Counsel is presumed

effective, and to rebut that presumption, the PCRA petitioner must

demonstrate that counsel's performance was deficient and that such

deficiency prejudiced him.” Commonwealth v. Perzel, 116 A.3d 670, 671

(Pa. Super. 2015) (internal citation omitted).    “Accordingly, to prove plea

counsel ineffective, the petitioner must demonstrate that: (1) the underlying

legal issue has arguable merit; (2) counsel's actions lacked an objective

reasonable basis; and (3) the petitioner was prejudiced by counsel's act or

omission.” Id. at 671-672. “A claim of ineffectiveness will be denied if the

petitioner's evidence fails to satisfy any one of these prongs.” Id. at 672.

      A valid plea colloquy must delve into six areas: 1) the nature of the

charges, 2) the factual basis for the plea, 3) the right to a jury trial, 4) the

presumption of innocence, 5) the sentencing ranges, and 6) the plea court's

power to deviate from any recommended sentence.           Commonwealth v.

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

omitted).

      “Our Supreme Court has repeatedly stressed that where the totality of

the circumstances establishes that a defendant was aware of the nature of

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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.”     Id. (citations omitted).    Moreover, this Court

recently determined, “the trial court's failure to explain the elements of the

offense     on   the   record   does   not   constitute    per   se   prejudice[].”

Commonwealth v. Molina, 2015 WL 6164878, at *4 (Pa. Super. 2015). In

Molina, we determined when an appellant “acknowledged in the written

[plea] colloquy that he discussed with plea counsel the elements of each

charged offense, the factual basis for each charged offense, and how the

facts in his case prove the elements of each charged offense[,]” the plea was

knowing, intelligent and voluntary.     Id. (internal quotations and brackets

omitted).    Finally, we note, “[d]efendants are obligated to respond truthfully

to the court's inquiries during a guilty plea colloquy.” Commonwealth v.

Rogers, 483 A.2d 990, 993 (Pa. Super. 1984).          “A guilty plea will not be

withdrawn where the defendant lies during the colloquy and subsequently

alleges that his lies were improperly induced by counsel.” Id.

      Here, Appellant signed a written colloquy prior to entering his plea,

which stated, in pertinent part:

                 Admission of Guilt or No Contest and Penalties

          I understand and agree that I am pleading guilty or nolo
          contendere to the crimes listed below. I understand, and
          my lawyer has explained to me, the elements of these
          crimes and the possible penalties for them. By pleading
          guilty, I agree and admit that I committed each element of
          these crimes, or by pleading nolo contendere. I do not


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        contest that I committed each element of these crimes. I
        agree that the Commonwealth can prove that I committed
        each element of these crimes beyond a reasonable doubt. I
        am pleading nolo contendere to the following crimes:

            A.)   Count 1: Criminal Attempt-Homicide, felony of
                  the first-degree, and the maximum penalty for
                  this crime is 40 years in jail and a $25,000.00
                  fine.

Guilty Plea Statement, 10/30/2013, at 6. In addition to signing the written

colloquy, Appellant initialed this paragraph twice.

      Moreover, Appellant initialed paragraph 32 of the written colloquy,

which states:

        I have had enough time to fully discuss my case and my
        decision to plead guilty or nolo contendere and everything
        contained in this Guilty Plea Statement with my lawyer, and
        by placing my initials on all of the lines provided, I am
        saying that I understand, agree with, and answered
        truthfully, everything contained in this Guilty Plea
        Statement.

Id. at 8.

      Upon review of the notes of testimony from the plea hearing, there is

no dispute that neither defense counsel nor the trial court set forth the

specific elements of attempted homicide on the record.       The trial court,

however, engaged in the following exchange at the plea hearing:

        The Court:     I’ve been told you’re going to plead no
        contest to three different charges.     Those charges are
        attempted homicide of Alma Antram, aggravated assault of
        Alma Antram, and aggravated assault of Douglas Antram.
        Is that what your understanding is going on here today?

        [Appellant:]    Yes, sir.



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          The Court:     The first thing I need to tell you is a no
          contest plea, what you’re telling me to do is to accept the
          facts that are alleged in the charging documents as true,
          that you are not contesting them, that they suffice to find
          you guilty of the charges and that I should go ahead and
          sentence you as if you pled guilty or were found guilty. Do
          you understand that?

          [Appellant:]        Yes, sir.

          The Court:       I also have to tell you that the information
          that you’re telling me to accept as true concerning Count 1,
          criminal attempt/homicide is that – the facts would be that
          you’re telling me to accept as true is that on Friday,
          April 26, 2013, in South Renovo Borough, Clinton
          County, Pennsylvania, you attempted to cause the
          death of Alma Antram by discharging a firearm nine
          times through the door of Antram’s residence striking
          her four times causing her to receive medical treatment.
          Do you understand they’re the facts you’re telling me to
          accept by pleading no contest?

          [Appellant]:        Yes, sir.

                                 *           *           *

          The Court:          Do you have any questions about these
          facts?

          [Appellant]:        No, sir.


N.T.,    10/28/2013,     at     5-7      (emphasis   added).   Moreover,   Appellant

acknowledged that defense counsel explained the contents of the written

colloquy to him and Appellant had no further questions. Id. at 9.

        Finally, the bill of criminal information filed by the Clinton County

District Attorney, which is contained in the certified record, specifies:

          Count 1: CRIMINAL ATTEMPT-HOMICIDE – (FELONY 1)



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        Defendant did, with intent to commit a specific crime,
        namely Title 18 Section 2501(a), Homicide, commit any act
        which constitutes a substantial step toward the commission
        of that crime, namely defendant did attempt to cause the
        death of Alma Antram by discharging a firearm 9 times
        through the door of Antram’s residence striking Antram 4
        times causing Antram to receive medical treatment, in
        violation of 18 Pa.C.S. Section 901(a) of the Pennsylvania
        Crimes Code [].

Criminal Information, 7/2/2013, at 1.

      Based upon all of the foregoing, we conclude there is no merit to

Appellant’s claim that defense counsel was ineffective for failing to inform

Appellant of the elements of attempted homicide.          Both the criminal

information and the trial court’s oral colloquy established that Appellant was

aware of the nature of the charges against him, despite the trial court's

failure to delineate the elements of the crimes on the record.      Appellant

agreed to the facts of the case as recited to him and agreed that he

attempted to cause the death of the victim. Moreover, Appellant signed a

written colloquy in which he acknowledged that trial counsel explained the

elements of the offense to him and he was satisfied with counsel’s

explanation.   Appellant had no further questions for the trial court before

entering his plea. Like the defendant in Molina, Appellant acknowledged in

the written colloquy that he discussed with counsel the elements of

attempted homicide, the factual basis for the charge, and how those facts

proved the elements of that offense. See Molina. Appellant clearly stated

in the written colloquy and at the plea hearing that counsel apprised him of


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the elements of attempted homicide. To find otherwise, we would have to

conclude that Appellant lied at the plea hearing and counsel induced those

lies. Appellant cannot rely upon such argument. See Rogers. Based upon

a    totality     of   the     circumstances,     including   Appellant’s   written

acknowledgment that defense counsel explained the elements of the offense

to him and our review of the plea proceeding as a whole,3 we agree there is

no merit to Appellant’s first ineffective assistance of counsel claim. Hence,

we discern no abuse of discretion or error of law in denying Appellant relief.

       Next, Appellant claims defense counsel was ineffective for failing to

advise him that he had a defense of voluntary intoxication. Appellant’s Brief

at 24. We disagree.

       This Court’s decision in Commonwealth v. Williams, 730 A.2d 507

(Pa. Super. 1999) is directly on point.        Therein, we concluded:

         Our legislature has declared that a voluntarily inflicted
         drugged or intoxicated condition will not serve to exonerate
         or excuse criminal conduct. This declaration is embodied in
         18 Pa.C.S.A. § 308, which provides:

                § 308. Intoxication or drugged condition
                Neither voluntary intoxication nor voluntary drugged
                condition is a defense to a criminal charge, nor may
                evidence of such conditions be introduced to negate
____________________________________________


3
  At the hearing on Appellant’s PCRA petition, defense counsel testified he
explained to Appellant the Commonwealth’s evidence could prove specific
intent because Appellant left the scene to retrieve the weapons before using
them, the bullet hole trajectories showed the shots were fired higher than
leg level, and Appellant fled the scene thereafter. N.T., 4/11/2015, at 19-
20. For this additional reason, we find no merit to Appellant’s first claim.



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          the element of intent of the offense, except that
          evidence of such intoxication or drugged condition of
          the defendant may be offered by the defendant
          whenever it is relevant to reduce murder from
          a higher degree to a lower degree of murder.

       18 Pa.C.S.A. § 308 (emphasis added). Mr. Williams argues
       that since evidence of voluntary intoxication may be offered
       to negate the specific intent to kill in a first-degree murder
       prosecution it may likewise be offered in an attempted
       murder in the first-degree prosecution. We disagree.

       While this novel argument has a certain logical appeal it is
       nonetheless misplaced. As § 308 clearly dictates the only
       legal significance of the voluntary consumption of alcohol is
       when it “is relevant to reduce murder from a higher degree
       to a lower degree of murder.” Id. In an attempted murder
       case the lowering of the degree is logically impossible.
       There simply is no such crime as attempted second or third
       degree murder.

       In Commonwealth v. Griffin, 456 A.2d 171 (Pa. Super.
       1983) we ordered a new trial because the trial court
       improperly instructed the jury that it could find Mr. Griffin
       guilty of attempted first degree murder if it found an
       intention to commit murder of any degree. We explained
       why such crimes are impossible as follows:

          The question squarely presented to us is whether
          someone can attempt to commit murder of the
          second or third degree. We think not. A person
          commits an attempt when, with intent to commit a
          specific crime, he does any act which constitutes a
          substantial step toward the commission of that
          crime. 18 Pa.C.S.A. § 901. Murder of the second or
          third degree occurs where the killing of the victim is
          the unintentional result of a criminal act. Thus, an
          attempt to commit second or third degree murder
          would seem to require proof that a defendant
          intended to perpetrate an unintentional killing which
          is logically impossible. While a person who only
          intends to commit a felony may be guilty of second
          degree murder if a killing results, and a person who
          only intends to inflict bodily harm may be guilty of

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          third degree murder if a killing results; it does not
          follow that those persons would be guilty of
          attempted murder if a killing did not occur. They
          would not be guilty of attempted murder because
          they did not intend to commit murder they only
          intended to commit a felony or to commit bodily
          harm.

       Id. at 177.

       The Griffin panel then cites to an example from the
       Handbook on Criminal Law, by LaFave and Scott, to further
       illustrate why it is necessary to prove an intent to kill in
       order to sustain the charge of attempted murder:

          Some crimes, such as murder, are defined in terms
          of acts causing a particular result plus some mental
          state which need not be an intent to bring about that
          result. Thus, if A, B, and C have each taken the life
          of another, A acting with intent to kill, B with an
          intent to do serious bodily injury, and C with a
          reckless disregard of human life, all three are guilty
          of murder because the crime of murder is defined in
          such a way that any one of these mental states will
          suffice. However, if the victims do not die from their
          injuries, then only A is guilty of attempted murder;
          on a charge of attempted murder it is not sufficient
          to show that the defendant intended to do serious
          bodily harm or that he acted in reckless disregard of
          human life. Again, this is because intent is needed
          for the crime of attempt, so that attempted murder
          requires an intent to bring about that result
          described by the crime of murder (i.e., the death of
          another).

       Griffin, 456 A.2d at 177; LaFave and Scott, Handbook on
       Criminal Law, § 59 at 428-29 (1972) (footnotes omitted).

                     *            *          *
       If we were to accept Mr. Williams' position that voluntary
       intoxication can serve to negate the specific intent to kill
       element of attempted murder we would be condoning the
       accused's voluntarily self-induced intoxication as a complete
       defense to a charge of attempted murder. Such a conclusion

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        is contrary to the prohibition of such defense expressed in
        § 308. Therefore, we agree with the PCRA court that Mr.
        Williams' underlying claim has no arguable merit.
        Accordingly, trial counsel cannot be deemed ineffective for
        failing to pursue a meritless claim.

Williams, 730 A.2d at 511-512.

      Here, the same holds true. Voluntary intoxication was not an available

defense to attempted homicide.     Thus, there is no merit to Appellant’s

second ineffective assistance claim and we discern no error of law in the

PCRA court’s denial of relief.

      Order affirmed. Motion for enlargement of time for filing Appellant’s

reply brief granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2015




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