J-S55012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JACK OLIVER EDMUNDSON, JR.                 :
                                               :
                       Appellant               :   No. 163 WDA 2019

            Appeal from the PCRA Order Entered December 24, 2018
      In the Court of Common Pleas of Indiana County Criminal Division at
                        No(s): CP-32-CR-0000211-2014

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

MEMORANDUM BY MURRAY, J.:                           FILED NOVEMBER 14, 2019

        Jack Oliver Edmundson, Jr. (Appellant) appeals from the order denying

his timely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        Appellant and Frank Petro (the victim) were involved in an illegal “Brown

Bag Lottery.”1 On December 31, 2013, Appellant went to the victim’s place

of business, a gun store, in Conemaugh Township, Indiana County.

Surveillance video cameras located on the exterior and interior of the gun

store recorded Appellant’s actions. The PCRA court summarized:

        Upon entering the gun shop, [Appellant] removed a hand gun
        from behind the counter and waited until [the victim emerged]
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1“A Brown Bag Lottery is based on the State Daily Number Lottery. Tickets
would be sold to individuals for specific amounts for fictitious fundraisers.”
PCRA Court Opinion, 2/26/19, at 2-3.
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        from a back room. An argument between the men occurred and
        [Appellant] pointed the gun at [the victim] and fired two shots[,]
        both of which struck [the victim] in the torso. [The victim]
        collapses and falls to the floor. [Appellant] then spreads an
        accelerant around the inside of the premises. During this time,
        [the victim] is able to get to his feet and a struggle between [the
        victim] and [Appellant] takes place.         [Appellant] is still in
        possession of the hand gun and [the victim] is shot an additional
        two times. [Appellant] also suffers a gunshot wound to his leg,
        which renders him unable to flee the scene. [Appellant] contacted
        911 for emergency assistance due to his wound.

PCRA Court Opinion, 2/26/19, at 3.2              The victim died as a result of the

gunshots. Forensic pathologist, Daniel Brown, M.D., testified that any of the

victim’s four gunshot wounds would have been fatal without treatment. N.T.,

2/18/15, at 13-18 (hearing on Appellant’s pre-trial motion).

        Appellant was charged with criminal homicide and other offenses, and

the Commonwealth filed a notice of aggravating circumstances seeking the

death penalty. The PCRA court summarized the procedural history:

              On September 21, 2015, pursuant to a plea bargain,
        [Appellant] entered a guilty plea to the offense of First-Degree
        Murder.[3] In return, the Commonwealth agreed to not seek the
        death penalty and dismissed all other charges. [Appellant was
        represented by Gary Knaresboro, Esquire, and Michael Marshall,
        Esquire (collectively, Plea Counsel). Appellant] completed a written
        plea colloquy and the [c]ourt conducted an oral plea colloquy with
        [Appellant]. The court sentenced [Appellant] to life in prison
        without the possibility of parole.

              [Appellant] did not file any Post-Sentence Motions with this
        court, or a direct appeal to the Superior Court pursuant to
____________________________________________


2The PCRA court’s Rule 1925(a) opinion adopts and attaches the PCRA court’s
December 24, 2018 opinion.

3   18 Pa.C.S.A. § 2502(b).

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      Pa.R.Crim.P. 720.

            On April 1, 2016, [Appellant] filed a timely pro se Petition for
      Post Conviction Collateral Relief.        On November 4, 2016,
      [Appellant] filed a pro se Amended Petition for Post Conviction
      Collateral Relief. Andrew Skala, Esquire was appointed to represent
      [Appellant]. On August 21, 2017, [Attorney] Skala filed a Post
      Conviction Collateral Relief Petition on behalf of [Appellant]. The
      [PCRA c]ourt took testimony on the Petitions on April 2, 2018 and
      June 12, 2018. [Appellant, Attorney Knaresboro, and Attorney
      Marshall testified.]

PCRA Court Opinion, 2/26/19, at 2.

      The PCRA court denied relief by order dated December 24, 2018. On

January 23, 2019, Appellant filed this timely appeal. On January 24, 2019,

the PCRA court ordered Appellant to file a concise statement pursuant to

Pennsylvania Rule of Appellate Procedure 1925. Although the PCRA court’s

order directed that Appellant file his statement within 21 days of the January

24, 2019 order, Appellant’s counsel filed the statement approximately one

week late, on February 22, 2019. Under Pa.R.A.P. 1925(c)(3), counsel’s late

filing constitutes per se ineffectiveness. However, the PCRA court reviewed

the issues raised in Appellant’s statement and issued an opinion consistent

with Pa.R.A.P. 1925(a).    Accordingly, the late filing does not impede our

review. See Commonwealth v. Boniella, 158 A.3d 162, 164 (Pa. Super.

2017) (where trial court addresses issues raised in an untimely Rule 1925(b)

statement, we need not remand but may address the issues on the merits);

see also Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009)

(en banc) (“if there is an untimely filing, this Court may decide the appeal on


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the merits if the trial court had adequate opportunity to prepare an opinion

addressing the issues being raised on appeal”).

      On appeal, Appellant presents five issues for review, which we have

reordered for ease of disposition:

      I. Whether the [PCRA] Court erred when it made a finding that
      [Plea] Counsel was effective counsel, even though counsel never
      hired a ballistics expert to formulate a defense strategy that the
      handgun misfired, which would nullify a conviction for First Degree
      Murder?

      II. Whether the [PCRA] Court erred when it made a finding that
      [Plea] Counsel was effective counsel, even though Counsel
      induced [Appellant] to plead guilty due to counsel failing to
      establish any kind of strategy prior to trial?

      III. Whether the [PCRA] Court erred when it made a finding that
      [Plea] Counsel was effective counsel, even though [Plea] Counsel
      did not pursue a diminished capacity due to [Appellant] taking the
      prescription drug, Ambien?

      IV. Whether the [PCRA] Court erred when it made a finding that
      [Plea] Counsel was effective counsel, even though [Appellant] did
      not understand that he was receiving a life sentence without the
      possibility of parole for a plea of First Degree Murder?

      V. Whether the [PCRA] Court erred when it made a finding that
      [Plea] Counsel was effective counsel, even though the
      [Appellant’s] guilty plea was involuntary and unknowingly due to
      he being [sic] under the influence of prescription medication at
      the time of his plea?

Appellant’s Brief at 7.

      We begin our review of 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

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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. “Because the

PCRA court was afforded the opportunity to assess and weigh the credibility

of [witnesses] at the PCRA hearing, we should refrain from disturbing its

credibility determinations.” Commonwealth v. Spotz, 896 A.2d 1191, 1227

(Pa. 2006).

      Instantly, all of Appellant’s issues challenge the PCRA court’s denial of

Appellant’s ineffective assistance of counsel claims. 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). If the petitioner fails to

prove any of these prongs, the claim is subject to dismissal. Id. “Counsel

will not be deemed ineffective for failing to raise a meritless claim.” Spotz,

896 A.2d at 1210.

      We address Appellant’s first and second issues together. First, Appellant

argues that the trial court erred in not finding Plea Counsel ineffective for

failing to obtain a ballistics expert to develop a defense strategy that the gun


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misfired.   Appellant posits that an “expert could have explained that the

trigger was impacted by [Appellant] holding the gun tightly and using [2] pairs

of gloves.” Appellant’s Brief at 23. Appellant reasons that such a defense

would have “nullif[ied] a first degree murder conviction.”            Id. at 21.

Additionally, Appellant maintains that the killing was not willful, deliberate, or

premeditated, but rather accidental. Id. at 23.

      Next, Appellant alleges that the PCRA court erred in not finding Plea

Counsel ineffective for failing to establish, generally, any defense strategy,

which in turn caused Appellant to plead guilty.        Appellant claims that he

informed Plea Counsel that the gun misfired, but Plea Counsel did not employ

a ballistics expert.   Appellant further contends that at the PCRA hearing,

neither Plea Counsel “was able to testify that [Plea Counsel] possessed any

strategy.” Appellant’s Brief at 29. Instead, Appellant maintains, Plea Counsel

“informed him that he did not have a fighting chance at trial.” Id. at 30. For

these reasons, Appellant claims he was induced to plead guilty.

      This Court has stated:

      It is well settled that, where a guilty plea has been entered, all
      grounds of appeal are waived other than challenges to the
      voluntariness of the plea and the jurisdiction of the sentencing
      court. Thus allegations of ineffective assistance of counsel in
      connection with entry of the guilty plea will serve as a basis for
      relief only if the ineffectiveness caused [the petitioner] to enter an
      involuntary or unknowing plea.

Commonwealth v. Boyd, 835 A.2d 812, 815 (Pa. Super 2003) (citation

omitted).


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      At the PCRA hearing, Appellant testified that he did not intend to shoot

the victim and instead, he accidentally discharged the gun when the victim

lunged at him; Appellant also asserted he did not know “how much [he was]

actually pulling the trigger” because he was wearing two pairs of gloves. N.T.

PCRA Hearing, 4/2/18, at 33-35. Appellant further testified that he told Plea

Counsel that he wished to proceed to trial, but Plea Counsel never discussed

with him any defense strategy, or the ballistics of the gun discharging. Id. at

46, 49.

      To the contrary, Attorney Knaresboro testified that he met with

Appellant 30 to 40 times prior to the plea hearing.        N.T. PCRA Hearing,

6/12/18, at 144. Both Attorney Knaresboro and Attorney Marshall testified

that Appellant consistently told them that he could not remember the

shooting, and never claimed that the shooting was accidental; Plea Counsel

also testified that the surveillance video would not support any defense of an

accidental shooting or self-defense.        Id. at 99-101, 146-147, 157.

Specifically, Attorney Knaresboro stated that the video showed after the victim

was first shot, Appellant continued to point the gun at the victim for 40

seconds, fired a second shot, did not attempt to render aid or call 911, and

took the victim’s wallet and poured accelerant on the victim.       Id. at 157.

Attorney Knaresboro further testified that he did not believe a ballistics report

was appropriate, where Appellant never mentioned “a hair-trigger,” a problem

with the gun, or an accidental shooting. Id. at 156-158.


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      Additionally, Attorney Marshall testified that Appellant never indicated

that he wanted to go to trial, while Attorney Knaresboro testified that

Appellant consistently stated that he did not want to go to trial. N.T. PCRA

Hearing, 6/12/18, at 97-98, 150-151. Finally, Attorney Knaresboro stated

that when he twice offered to show the surveillance video to Appellant — when

Counsel first received the video and in advance of Appellant entering his guilty

plea — Appellant refused to watch it. Id. at 168.

      In considering the above testimony, the PCRA court was free to weigh

the witnesses’ credibility and resolve inconsistencies. See Spotz, 896 A.2d

at 1227. We further note that regardless of the circumstances of the first

gunshot, Appellant does not dispute Plea Counsel’s testimony that the video

showed that after the victim was shot, Appellant pointed the gun at the victim

for 40 seconds before firing a second shot. On this record, the PCRA court did

not err in concluding that Plea Counsel was not ineffective for failing to pursue

a ballistics defense. See Spotz, 896 A.2d at 1210. As the PCRA court stated:

      Faced with [the Commonwealth’s] overwhelming evidence,
      counsel’s advice to [Appellant] to plead to First Degree Murder in
      return for the Commonwealth withdrawing the death penalty was
      reasonable and rational. [Appellant] received a clear benefit from
      the plea bargain; there was a good chance that [he] could receive
      the death penalty.

PCRA Court Opinion, 2/26/19, at 10. Upon review, we agree. See Spotz,

896 A.2d at 1231.

      In his third issue, Appellant argues that Plea Counsel was ineffective for

not pursuing a defense of diminished capacity due to Appellant taking the

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prescription drug Ambien.          Appellant asserts that Plea Counsel failed to

provide to Dr. Christine Martone — the psychiatrist retained by Plea Counsel

to examine Appellant — documentation showing that Appellant was prescribed

Ambien. Appellant claims that when he took Ambien, his moods were altered,

he sometimes experienced confusion, and he suffered memory loss. Appellant

cites Plea Counsel’s testimony that Appellant “consistently did not remember

the details of [the] homicide.”4 Appellant’s Brief at 35.

       In rejecting this claim, the PCRA court credited the testimony of both

Plea Counsel “that at no time did [Appellant] inform them that he was taking

Ambien and that it was affecting his ability to understand what he was doing.”

PCRA Court Opinion, 2/26/19, at 7; see also N.T. PCRA Hearing, 6/12/18, at

103-104, 163. Upon review, we discern no basis upon which to disturb this

credibility finding. See Spotz, 896 A.2d at 1227. Furthermore, Appellant

ignores that both Plea Counsel testified that they engaged Dr. Martone to

conduct a psychological examination of Appellant, but Dr. Martone opined that

Appellant did not evidence a diminished capacity.             N.T. PCRA Hearing,

6/12/18, at 103-104, 161, 164. Attorney Knaresboro further testified that he

conveyed Dr. Martone’s opinion to Appellant, and Appellant did not express

any disagreement or dissatisfaction.           Id. at 165.   Where Plea Counsels’

testimony established a reasonable basis for not pursing a diminished capacity


____________________________________________


4We note Appellant advances inconsistent arguments: that the shooting was
accidental and that he did not remember the shooting.

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defense, no relief is due. Bomar, 104 A.3d 1179, 1188.

      In his fourth issue, Appellant contends that the PCRA court erred in not

finding Plea Counsel ineffective where, allegedly, Appellant did not understand

that his plea would result in a life sentence without parole. Appellant cites his

own PCRA hearing testimony, that on the day of the plea, Plea Counsel “was

pressed for time . . . as to whether to . . . accept [sic]” the Commonwealth’s

plea offer of “life in prison.” Appellant’s Brief at 26. Appellant avers that when

he completed the written colloquy, Plea Counsel simply told him to “answer

‘yes’ or ‘no’” but did not provide any guidance. Id. at 27. Appellant further

maintains that at the subsequent plea hearing, although it was stated “that

the sentence was life in prison,” neither Plea Counsel nor the trial court

specified that Appellant would not be eligible for parole. Instead, Appellant

claims — without further explanation — that he believed a “life sentence”

meant 20 to 25 years of imprisonment with the possibility of parole. Id. at

17.

      In rejecting this claim, the PCRA court explained:

      The Court, in the oral plea colloquy, informed [Appellant] that
      there were two possible penalties for First Degree Murder[:] death
      or life imprisonment. [N.T. Plea & Sentencing Hearing, 9/21/15,
      at 13.]

             In the written plea colloquy on page 2 . . . it clearly states
      that the plea was to First Degree Murder and that the penalty was
      “life without the possibility of parole”. [Appellant’s] initials appear
      on the page, and on page 9 [Appellant] signed an affirmation that
      he had read the document and understood its full meaning. In
      addition, [Attorney] Knaresboro testified that when he and
      [Attorney] Marshall reviewed the written plea colloquy with

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       [Appellant], he specifically explained the penalty to [Appellant]
       and pointed to the language on Page 2 with his pen.

             [Appellant’s] claim that he believed or was told that a life -
       sentence was 20 years to life or 25 years to life is not supported
       by the record.

PCRA Court Opinion, 2/26/19, at 11.

       The PCRA court’s explanation is supported by the record. See Busanet,

54 A.3d at 45. We additionally note that at the plea hearing, the court asked

whether the parties had “an agreement as to the death penalty.” N.T. Plea &

Sentencing Hearing, 9/21/15, at 3.      The Commonwealth responded that it

would not seek the death penalty and stated, “We believe that it is a

mandatory life without possibility of parole.” Id. at 4. Finally, Appellant does

not discuss or explain why he believed the multiple references to a “life

sentence” meant a sentence of 20 to 25 years of imprisonment. No relief is

due.

       In his final issue, Appellant argues that the PCRA court erred in not

finding Plea Counsel ineffective where Appellant’s guilty plea was not

voluntary or knowing because he was under the influence of prescription

medication. Appellant states he “was prescribed Seroquel the night before his

plea,” which caused him to be “groggy and somewhat confused” at the plea

hearing. Appellant’s Brief at 31-32. Appellant further claims that he took

Neurontin, whose side effects include drowsiness and memory loss, as well as

Klonopin. Id.

       This Court has stated:

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           Our law presumes that a defendant who enters a guilty plea
      was aware of what he was doing. He bears the burden of proving
      otherwise.
                               *    *   *

             The longstanding rule of Pennsylvania law is that a
      defendant may not challenge his guilty plea by asserting that he
      lied while under oath, even if he avers that counsel induced the
      lies. A person who elects to plead guilty is bound by the
      statements he makes in open court while under oath and may not
      later assert grounds for withdrawing the plea which contradict the
      statements he made at his plea colloquy.

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)

(citation omitted).

      In denying relief, the PCRA court explained:

             Both [Attorney] Marshall and [Attorney] Knaresboro met
      with [Appellant] immediately prior to the entry of the plea. Both
      testified that [Appellant] was coherent and able to discuss the
      case. . . .

            [Appellant], also with the assistance of [Attorney]
      Knaresboro and [Attorney] Marshall, completed a written plea
      colloquy. The colloquy is a part of the Court Record. In the written
      colloquy, [Appellant] indicated that he understood his rights, was
      voluntarily entering his plea, and he was not taking any
      medications that would affect his ability to think or his free will.

             In addition to the written colloquy, the Court conducted an
      oral colloquy with [Appellant]. During the colloquy, the Court
      asked [Appellant] if he was under the influence of any drugs,
      alcohol, or intoxicating substances, had ever been in a Mental
      Hospital or Institution, had ever received treatment for a mental
      disease or disability or was suffering from any physical or mental
      disability that would prevent him from fully understanding what
      was being said to him. To all these questions, [Appellant]
      responded “no.” [N.T. Plea & Sentencing Hearing, 9/21/15, at 6.]
      At no time did [Appellant] indicate to counsel or the court that he
      was under the influence of drugs that affected his ability to
      understand and make decisions. A person who elects to plead
      guilty is bound by the statements he makes in open Court while

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     under oath and he may not assert grounds to set aside the plea
     that contradicts the statements made in his plea colloquy.

PCRA Court Opinion, 2/26/19, at 7-8.

     Consistent with the foregoing, the PCRA court was free to credit the

testimony of Attorneys Knaresboro and Marshall, and in light of Appellant’s

responses in both his oral and written plea colloquies, we reject Appellant’s

claim that he was impaired by medication and had a “diminished capacity”

when he entered his guilty plea. See Spotz, 896 A.2d at 1227; Yeomans,

24 A.3d at 1047. Accordingly, we find no merit to this claim.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2019




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