J-S19029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TRAVIS TRUSEDALE                           :
                                               :
                       Appellant               :   No. 1893 EDA 2017

                    Appeal from the PCRA Order May 25, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0014556-2011,
                             CP-51-CR-0014665-2011

BEFORE:       SHOGAN, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 12, 2018

        Appellant Travis Trusedale appeals from the order dismissing his first

timely petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Appellant claims that plea counsel was ineffective and that

the PCRA court should have held a hearing on his PCRA petition. We affirm.

        The PCRA court set forth the history of this case as follows:

        FACTUAL HISTORY

        On October 15, 2011, [Appellant] approached a thirteen (13) year
        old girl ([]First Victim[]) at a bus stop. [Appellant] groped her,
        pulled her into a nearby alleyway, knocked her to the ground,
        grabbed different parts of her [body], and penetrated her vaginal
        area. First Victim fought off [Appellant], but [Appellant] stole her
        cell phone and access cards before she ran away. [Appellant] then
        went back to the same bus stop and, using the cell phone he stole
        from First Victim, caught a sixteen (16) year old (Second Victim’s)
        attention.     [Appellant] attacked Second Victim and forcibly
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S19029-18


       penetrated her vagina and mouth with his penis. Furthermore,
       [Appellant] bit Second Victim’s stomach. Good Samaritans nearby
       heard Second Victim’s screams and cries and intervened. When
       the police arrived, [Appellant] took off on foot. However, police
       were able to apprehend [Appellant], who then gave the police a
       fake name. Both girls later identified [Appellant] as their attacker.

       [Appellant] was arrested and charged with Rape by Forcible
       Compulsion (18 Pa.C.S.[] § 3121(a)(1)); Unlawful Contact with a
       Minor (18 Pa.C.S.[] § 6318(a)(1)); Unlawful Restraint Exposing to
       Risk of Serious Bodily Injury (18 Pa.C.S.[] § 2902(a)(1)); Sexual
       Assault (18 Pa.C.S.[] § 3124.1); False Imprisonment (18
       Pa.C.S.[] § 2903(a)); Indecent Exposure (18 Pa.C.S.[] §
       3127(a)); Indecent Assault Without Consent of Other (18
       Pa.C.S.[] § 3126(a)(1)); Simple Assault (18 Pa.C.S.[] § 2701(a));
       Recklessly Endangering Another Person (18 Pa.C.S.[] § 2705);
       Involuntary Deviate Sexual Intercourse by Threat of Forcible
       Compulsion (18 Pa.C.S.[] § 3123(a)(2)); Aggravated Assault (18
       Pa.C.S.[] § 2702(a)); and Corruption of Minors (18 Pa.C.S.[] §
       6301(a)(1)(i)).

       PROCEDURAL HISTORY

       On July 20, 2012, [Appellant] entered a non-negotiated guilty
       plea[1] to one (1) count of Rape by Forcible Compulsion (18
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1On July 20, 2012, the trial conducted an oral guilty plea colloquy. In relevant
part, the following exchange occurred:

       The Court: Are you under the influence of drugs or alcohol today?

       [Appellant]:         No.

       The Court: Suffering from any mental illness today?

       [Appellant]:         No.

       The Court: Satisfied with your attorney today?

       [Appellant]:         Yes.

N.T., 7/20/2012, at 4-5.

      In the written guilty plea colloquy, Appellant stated: “I have never seen
a doctor or been in a hospital for any mental problems—I can understand what



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       Pa.C.S.[] § 3121(a)(1)); one(1) count of Unlawful Contact with a
       Minor (18 Pa.C.S.[] § 6318(a)(1)); one (1) count of Unlawful
       Restraint Exposing to Risk of Serious Bodily Injury (18 Pa.C.S.[]
       § 2902(a)(1)); and one (1) count of Involuntary Deviate Sexual
       Intercourse by Threat of Forcible Compulsion (18 Pa.C.S.[] §
       3123(a)(2)). The Sexual Assault (18 Pa.C.S.[] § 3124.1); False
       Imprisonment (18 Pa.C.S.[] § 2903(a)); Indecent Exposure (18
       Pa.C.S.[] § 3127(a)); Indecent Assault Without Consent of Other
       (18 Pa.C.S.[] § 3126(a)(1)); Simple Assault (18 Pa.C.S.[] §
       2701(a)); Recklessly Endangering Another Person (18 Pa.C.S.[] §
       2705) charges were dismissed. The Aggravated Assault (18
       Pa.C.S.[] § 2702(a)) charge was disposed at lower court.

       On January 4, 2013, this [c]ourt sentenced [Appellant] to [a]
       thirty-five (35) to seventy (70) year aggregate maximum
       sentence. On January 13, 2013, [Appellant] filed a Motion for
       Reconsideration of Sentence[.] On January 31, 2013, this [c]ourt
       denied [Appellant]’s Motion for Reconsideration, and affirmed
       Judgment of Sentence. On May 24, 2014, [Appellant] filed a
       Notice of Appeal with the Superior Court of Pennsylvania. On May
       22, 2014, Judgment of Sentence was affirmed by the Superior
       Court of Pennsylvania. On March 6, 201[5], [Appellant] filed a
       pro se [PCRA] Petition.[2] On April 26, 2015, counsel filed an
       Amended PCRA Petition.[3] On July 20, 2016, counsel filed another



____________________________________________


is going on. I am not under the influence of drugs or alcohol.” Written Guilty
Plea Colloquy, 7/20/12, at 1. The written colloquy explained Appellant’s pre-
trial, trial, and appellate rights, and that by pleading guilty, he was waiving
his right to a trial and to most of his appellate rights. Id. at 2-3. Further, the
written colloquy stated that Appellant was giving up his defenses at trial. Id.
at 3. Appellant signed and stated that he understood the contents of the
colloquy and that he was responding truthfully. Id.
2In his pro se PCRA petition, Appellant claimed ineffectiveness of counsel and
challenged the legality of his sentence. Mot. for PCRA, 3/6/15, at 3.

3 In the first amended PCRA petition, counsel for Appellant argued that trial
counsel was ineffective by failing to seek a mental health evaluation to pursue
an insanity defense. Amended PCRA Pet., 4/26/15, at ¶ 12.




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       Amended PCRA Petition.[4]       On December 13, 2016, the
       Commonwealth of Pennsylvania filed a Motion to Dismiss the
       Amended PCRA Petition. On May 25, 2017, an order was filed
       denying the PCRA Petition.[5] On June 9, 2017, a Notice of Appeal
       to the Superior Court of Pennsylvania was filed. On June 26,
____________________________________________


4 Prior counsel filed the first amended PCRA petition, but was later removed
as he had represented Appellant on direct appeal. Current counsel was then
appointed and filed the second amended PCRA petition. See Appellant’s Brief
at 15.

      In the second amended PCRA petition, counsel for Appellant argued
three additional grounds for relief: (1) the guilty plea was unlawfully induced;
(2) ineffectiveness of counsel in allowing Appellant to enter an unknowing or
involuntary guilty plea; and (3) ineffectiveness of trial counsel in failing to
seek recusal of the court in which Appellant was on probation. Amended Pet.
Under PCRA, 7/20/16, at ¶ 23.

5A review of the record does not show that the PCRA court sent a Pa.R.Crim.P.
907 notice of intent to dismiss without a hearing to Appellant. Rule 907
states:

       Except as provided in Rule 909 for death penalty cases,

       (1) the judge shall promptly review the petition, any answer by
       the attorney for the Commonwealth, and other matters of record
       relating to the defendant’s claim(s). If the judge is satisfied from
       this review that there are no genuine issues concerning any
       material fact and that the defendant is not entitled to post-
       conviction collateral relief, and no purpose would be served by any
       further proceedings, the judge shall give notice to the parties of
       the intention to dismiss the petition and shall state in the notice
       the reasons for the dismissal. The defendant may respond to the
       proposed dismissal within 20 days of the date of the notice. The
       judge thereafter shall order the petition dismissed, grant leave to
       file an amended petition, or direct that the proceedings continue.

Pa.R.Crim.P. 907(1). However, Appellant does not raise this issue on appeal.
Therefore, he has waived this issue. See Commonwealth v. Taylor, 65 A.3d
462, 468 (Pa. Super. 2013) (“The failure to challenge the absence of a Rule
907 notice constitutes waiver.” (citation omitted)).




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       2017, this [c]ourt issued an order requiring [Appellant] to file a
       Concise Statement of Matters Complained of on Appeal within
       twenty-one days. That order was subsequently returned to this
       [c]ourt as undeliverable, and this [c]ourt issued a second order
       on July 20, 2017. On August 9, 2017, [Appellant] filed a Concise
       Statement with this Court.

PCRA Op. at 1-3 (unpaginated) (citations omitted).

       Appellant raises two issues on appeal, which we have reordered as

follows:

       1. Whether the court erred in not granting relief on the PCRA
          petition alleging [t]rial [c]ounsel was ineffective.

       2. Whether the [c]ourt erred in denying the Appellant’s PCRA
          petition without an evidentiary hearing on the issues raised in
          the amended PCRA petition regarding [t]rial [c]ounsel’s
          ineffectiveness.

Appellant’s Brief at 8.6


____________________________________________


6 While Appellant appears to have abandoned the issue of whether trial counsel
should have requested that the trial court recuse itself by failing to include it
in the statement of questions presented pursuant to Pa.R.A.P. 2116(a), he
includes an argument that appears to be aimed at that issue. Specifically,
Appellant states that the increased sentence in this case “was possibly given
due to the facts that [Appellant] violated the [c]ourt’s probation.” Appellant’s
Brief at 25. He further states that the trial judge imposed this sentence
because he felt somewhat responsible for what happened “as he kept
repeatedly saying this was all my fault that this happened.” Id. (citation
omitted).

      To the extent that Appellant has properly raised this issue, we find it to
be meritless. As the PCRA court stated, “[Appellant] provides no case law or
other authority for the notion that a court is obligated to recuse itself if the
defendant is also on its probation.”         PCRA Ct. Op., 8/18/17, at 7
(unpaginated). The court further stated that “[n]othing about the fact that
[Appellant] was on this [c]ourt’s probation impacted this [c]ourt’s ability to be



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       Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

       In his first issue, Appellant argues that trial counsel was ineffective for

failing to object to the trial court’s guilty plea colloquy. Appellant, in support

of his argument, asserts that although he has had a “clearly visible history of

drug abuse” in conjunction with “his long-standing struggle with bi-polar

disorder,” trial counsel failed to ensure that the trial court properly accounted

for his mental illness.7 Id. at 22. He claims that he did not understand the

rights he was giving up at the guilty plea colloquy and, thus, counsel should

have objected to the lack of a full colloquy. Id. at 23. Appellant contends

____________________________________________


impartial, created the appearance of impropriety, or would undermine public
confidence in the judiciary.” Id.

7 In his brief, Appellant further suggests that “the [t]rial [c]ourt . . . did not
consider the rehabilitative needs of the Appellant because it imposed a
manifestly excessive sentence, going beyond even the recommendation of the
Commonwealth of twenty-three and a half (23.5) to forty-seven (47) years.”
Appellant’s Brief at 22. To the extent Appellant attempts to claim the trial
court imposed an excessive sentence, Appellant has previously litigated this
issue. See Commonwealth v. Trusedale, 1593 EDA 2013, 2014 WL
10936943 (Pa. Super. May 22, 2014); see also 42 Pa.C.S. § 9543(a)(3) (“To
be eligible for relief . . . the petitioner must plead and prove by a
preponderance of the evidence . . . [t]hat the allegation of error has not been
previously litigated[.]”). Moreover, a claim challenging the discretionary
aspects of a sentence is not cognizable under the PCRA unless it is couched
as ineffectiveness assistance of counsel. See Commonwealth v. Fowler,
930 A.2d 586, 593 (Pa. Super. 2007). In any event, Appellant also waived
this claim for failure to include it in his Rule 1925(b) statement. See Pa.R.A.P.
1925(b)(3)(iv).

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that “[t]here was no [m]ental [h]ealth evaluation conducted geared to the

very specific insanity defense.” Id.

      Appellant further contends that trial counsel had no reasonable basis

justifying the course of action taken. He claims that because of his mental

health issues, “a reasonable basis existed to alternatively take this matter

before a jury instead of forcing a guilty plea upon the Appellant.” Id. at 25.

He claims “the defense of temporary insanity was clearly available.” Id.

      Regarding the prejudice prong, Appellant argues that he was clearly

prejudiced as he was given a sentence fifteen years greater than that

recommended by the Commonwealth at sentencing. He claims that but for

counsel’s ineffectiveness, “a trial before a jury may have yielded a more

favorable result.” Id.

      “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Rathfon, 899 A.2d 365,

369 (Pa. Super. 2006) (citations omitted). Where the defendant enters his

plea on the advice of counsel, “the voluntariness of the plea depends on

whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases.” Commonwealth v. Hickman, 799 A.2d 136,

141 (Pa. Super. 2002) (internal quotation marks omitted).

      To establish a claim of ineffective assistance of counsel, a defendant

“must show, by a preponderance of the evidence, ineffective assistance of

counsel which, in the circumstances of the particular case, so undermined the

truth-determining process that no reliable adjudication of guilt or innocence

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could have taken place.” Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa. Super. 2007) (citation omitted). The burden is on the defendant to prove

all three of the following prongs:     “(1) the underlying claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for his or her action

or inaction; and (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different.” Id. (citation omitted); see Commonwealth v. Daniels, 963 A.2d

409, 419 (Pa. 2009).     Moreover, trial counsel is presumed to be effective.

Rathfon, 899 A.2d at 369 (citation omitted).

      In Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999), the

Pennsylvania Supreme Court stated:

      Allegations of ineffectiveness in connection with the entry of a
      guilty plea will serve as a basis for relief only if the ineffectiveness
      caused appellant to enter an involuntary or unknowing plea. In
      determining whether a guilty plea was entered knowingly and
      intelligently, a reviewing court must review all of the
      circumstances surrounding the entry of that plea.

Id.; accord Commonwealth v. Robinson, ___ A.3d ___, 2018 WL

2041425, *6 (Pa. Super. 2018) (en banc). “Thus, to establish prejudice, the

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

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (internal quotation marks and citation omitted). We add that a “person

who elects to plead guilty is bound by the statements he makes in open court

while under oath and he may not later assert grounds for withdrawing the plea

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which     contradict   the   statements   he   made    at   his   plea   colloquy.”

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citation

omitted).

        Appellant’s claim that trial counsel failed to ensure that the trial court

properly accounted for his mental illness is belied by the record. During the

oral colloquy, the trial court asked Appellant whether he was suffering from

any mental illnesses, to which Appellant responded “No.” N.T., 7/20/12, at 5.

Further, in Appellant’s written guilty plea colloquy, he acknowledged that he

“has never seen a doctor or been in a hospital for any mental problems.”

Written Guilty Plea Colloquy, 7/20/12, at 2. Under oath, Appellant stated that

he was not suffering from any mental illnesses, and thus, he cannot now seek

to invalidate his plea by asserting that he lied during the colloquy.         See

Pollard, 832 A.2d at 523.

        As for Appellant’s claim that he did not understand the rights he was

giving up and that trial counsel was ineffective in failing to object to the lack

of a full colloquy, this claim is also meritless. The written guilty plea colloquy

explains in detail that by pleading guilty, Appellant was waiving the right to a

trial by a jury or a judge. Written Guilty Plea Colloquy, 7/20/12, at 2-3.       It

stated that Appellant was giving up his pre-trial rights as well as most

appellate rights. Id. The colloquy further stated that Appellant was giving up

the right to raise defenses in his case and that he was satisfied with trial

counsel’s representation. Id. at 3. Finally, Appellant signed the written guilty




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plea colloquy acknowledging that he read and understood the contents of the

colloquy and that his answers were true and correct. Id.

      Accordingly, because Appellant has not satisfied his burden of proving

that his claim is of arguable merit, we conclude counsel was not ineffective.

See Daniels, 963 A.2d at 419 (“A failure to satisfy any prong of the

ineffectiveness test requires rejection of the claim of ineffectiveness.” (citation

omitted)).

      For his second issue, Appellant argues that he was entitled to an

evidentiary hearing “to further investigate the ambiguities in this case.”

Appellant’s Brief at 19. Appellant argues that because trial counsel knew that

“Appellant had a long and arduous history with bi-polar disorder, both

struggling with and medically dealing with that condition and abusing non-

prescription drugs,” he “had a duty to ensure that either the [c]ourt or himself

fully explained to the Appellant his rights that he would be giving up by

entering into a non-negotiated, open plea deal.” Id. at 10. Appellant argues

that “this was not done.” Id. He claims that, at a minimum, the PCRA court

should have held an evidentiary hearing based on the merits of his claim to

determine trial counsel’s ineffectiveness. Id.

      This Court has held that “[a] petitioner is not entitled to a PCRA hearing

as a matter of right.” Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.

Super. 2015) (citation omitted). “It is within the PCRA court’s discretion to

decline to hold a hearing.” Turetsky, 925 A.2d at 882 (citation omitted).

“[T]he PCRA court can decline to hold a hearing if there is no genuine issue

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concerning any material fact and the petitioner is not entitled to post-

conviction collateral relief, and no purpose would be served by any further

proceedings.” Smith, 121 A.3d at 1052 (citation omitted); see Pa.R.Crim.P.

907(1). On appeal, we “examine each of the issues raised in the PCRA petition

in light of the record in order to determine whether the PCRA court erred in

concluding that there were no genuine issues of material fact and in denying

relief without an evidentiary hearing.” Id. (citation omitted).

      Here, the trial court found no merit to Appellant’s claims. As explained

above, the record fully supports the court’s finding. Therefore, Appellant’s

claim did not warrant a hearing under Pa.R.Crim.P. 907. See Pa.R.Crim.P.

907; Smith, 121 A.3d at 1052.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




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