J-S21018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM BERRIOZ

                            Appellant                No. 1747 EDA 2014


                   Appeal from the PCRA Order May 15, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001043-2011


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                            FILED APRIL 21, 2015

        Appellant William Berrioz appeals from the dismissal of his petition

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

et seq.     Appellant’s counsel filed a Turner/Finley1 letter with this Court

and a motion seeking permission to withdraw as counsel.       We affirm and

grant counsel’s motion.

        The trial court summarized the factual and procedural history as

follows:

           [Appellant] was arrested on January 6, 2011, after he
           stabbed a stranger in a public restroom. He stabbed the
           victim several times in the chest, back, neck, face and
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Commonwealth v. Turner, 544 A.2d 927 (Pa.1988)                         and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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           head with a large 8 1/2” blade, puncturing and collapsing
           the victim’s lung. A security guard tried to restrain
           [Appellant] but he escaped onto the street. The security
           guard waved down police, who arrested [Appellant] and
           recovered the large knife from his person. On April 14,
           2011, [Appellant] appeared before the Honorable Harold
           Kane and, after a full on-the-record colloquy, pled guilty to
           attempted murder, robbery, possessing an instrument of
           crime and simple assault.[2] The matter was continued for
           sentencing so that a presentence investigation report and
           mental health evaluation could be completed. On July 7,
           2011, Judge Kane sentenced [Appellant] to an aggregate
           sentence of 13 to 26 years[’] state incarceration.
           [Appellant] did not file a direct appeal.

           On February 1, 2012, [Appellant] filed a timely pro se
           PCRA petition.1 On August 20, 2012, appointed PCRA
           counsel    filed  an    Amended     PCRA    petition.  The
           Commonwealth filed a Motion to Dismiss on January 16,
           2014. On April 21, 2014, this [c]ourt sent [Appellant] a
           Notice Pursuant to Rule of Criminal Procedure 907,
           informing him that his petition would be dismissed without
           further proceedings because the issues raised were without
           merit. On May 7, 2014, [Appellant] replied to the 907
           Notice; his attorney replied on May 12, 2014. On May 16,
           2014, this [c]ourt dismissed [Appellant’s] PCRA petition
           based upon lack of merit. On June 16, 2014, [Appellant]
           appealed this dismissal to Superior Court.
              1
                The matter was reassigned to [the Honorable
              Genece E. Brinkley] on March 18, 2014.

Trial Court Opinion, 10/9/2014, at 1-2.

        The trial court granted PCRA counsel’s motion to withdraw3 and

appointed new counsel on appeal.               Appointed counsel and the trial court
____________________________________________


2
    18 P.S. §§ 901(a), 3701(a)(1), 907(a), and 2701(a), respectively.
3
   Counsel sought leave to withdraw as counsel after the PCRA court
dismissed Appellant’s PCRA petition.




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complied with Pennsylvania Rule of Appellate Procedure 1925.               On

November 12, 2014, counsel filed a Turner/Finley letter with this Court

and a motion seeking permission to withdraw.

      Before we may address the merits of Appellant’s claim, “we must

determine if counsel has satisfied the requirements to be permitted to

withdraw from further representation.” Commonwealth v. Freeland, 106

A.3d 768, 774 (Pa.Super.2014). Competent PCRA counsel must conduct an

independent review of the record before we can authorize counsel’s

withdrawal. Id. The independent review

         requires counsel to file a ‘no-merit’ letter detailing the
         nature and extent of his review and list[ing] each issue the
         petitioner wishes to have examined, explaining why those
         issues are meritless. The PCRA court, or an appellate court
         if the no-merit letter is filed before it, then must conduct
         its own independent evaluation of the record and agree
         with counsel that the petition is without merit.

Id. (internal citation omitted).

      PCRA counsel must also “serve a copy on the petitioner of counsel’s

application to withdraw as counsel, and must supply to the petitioner both a

copy of the ‘no-merit’ letter and a statement advising the petitioner that, in

the event that the court grants the application of counsel to withdraw, he or

she has the right to proceed pro se or with the assistance of privately

retained counsel.”     Commonwealth v. Widgins, 29 A.3d 816, 818

(Pa.Super.2011) (quoting Commonwealth v. Friend, 896 A.2d 607

(Pa.Super.2006), abrogated in part by Commonwealth v. Pitts, 981 A.2d

875, 876 (Pa.2009)).

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      PCRA appellate counsel filed a Turner/Finley letter.                Counsel

reviewed the record and the applicable law, listed the issues Appellant

wished to have examined, and explained why the issues are meritless.

Counsel also mailed a copy of the no-merit letter and a copy of his motion

seeking permission to withdraw as counsel to Appellant and informed

Appellant of his right to proceed pro se or with privately-retained counsel to

raise any points he deemed worthy of consideration.            Motion Seeking

Permission to Withdraw as Counsel at Exh. 2, Letter from John Belli, Esq. to

William Berrioz dated Nov. 4, 2014. Counsel has substantially complied with

the dictates of Turner/Finley.

      We will now address the merits of the claim raised. Appellant did not

file a pro se brief or a brief by privately-retained counsel and we will

therefore review the merits of the claim raised in his 1925(a) statement and

the Turner/Finley letter.

      Appellant raises the following issue in his 1925(b) statement:

         The PCRA court committed an abuse of discretion in
         dismissing Appellant’s PCRA petition without a hearing by
         finding that his claims that trial counsel was ineffective for
         failing to pursue a possible insanity defense or plea of
         guilty but mentally ill and for failing to file a motion to
         suppress Appellant’s statement to police lacked merit did
         [sic] not warrant an evidentiary hearing.




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Matters Complained of on Appeal (unnecessary capitalization omitted). 4 This

claim alleges two underlying issues: (1) trial counsel ineffectiveness for

failing to pursue an insanity defense or a plea of guilty but mentally ill; and

(2) trial counsel ineffectiveness for failing to file a motion to suppress

Appellant’s statement to police. The issues lack merit.

        Our standard of review from the denial of post-conviction relief “is

limited to examining whether the 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     (Pa.Super.2011)   (citing   Commonwealth   v.

Morales, 701 A.2d 516, 520 (Pa.1997)).

        A petitioner’s right to an evidentiary hearing on PCRA

           is not absolute. It is within the PCRA court’s discretion to
           decline to hold a hearing if the petitioner’s claim is patently
           frivolous and has no support either in the record or other
           evidence. It is the responsibility of the reviewing court on
           appeal to examine each issue raised in the PCRA petition in
           light of the record certified before it in order to determine
           if the PCRA court erred in its determination that there were
____________________________________________


4
    The Turner/Finley letter states the claim as follows:

           The PCRA court committed an abuse of discretion in
           denying [Appellant] relief without a PCRA hearing.

Letter from John M. Belli, Esq. to Joseph D. Setelyn, Esq. dated Oct. 28,
2014, at 4 (unnecessary capitalization omitted). The letter discusses the
two underlying issues from the question presented in the matters
complained of on appeal, i.e., trial counsel was ineffective for failing to
pursue a possible insanity defense or plea of guilty but mentally ill and trial
counsel was ineffective for failing to file a motion to suppress Appellant’s
statement to police. Id. at 4-13.



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          no genuine issues of material fact in controversy and in
          denying relief without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super.2012) (internal

citations omitted).

       For ineffective assistance of counsel claims, the petitioner must

establish:   “(1) that the underlying claim has merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) but for

the errors or omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.” Ousley, 21 A.3d at

1244    (quoting   Commonwealth        v.   Rivera,   10   A.3d   1276,   1279

(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove

any one of the three [ineffectiveness] prongs results in the failure of

petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

       Appellant first alleges the PCRA court should have conducted a hearing

to determine whether trial counsel was ineffective for not pursuing an

insanity defense or a plea of guilty but mentally ill. Turner/Finley Letter at

5. This claim lacks merit.

       “Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v.

Allen, 732 A.2d 582 (Pa.1999)). Whether a plea was voluntary “depends on



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

attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733

(Pa.Super.2003) (quoting Hickman, 799 A.2d at 141).

      “[T]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

made.”   Commonwealth v. Willis, 68 A.3d 997, 1001 (Pa.Super.2013)

(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.

2010) (alterations in original)).   A guilty plea colloquy must “affirmatively

demonstrate the defendant understood what the plea connoted and its

consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d

497, 501 (Pa.Super.1998)). After a defendant enters a guilty plea, “it is

presumed that he was aware of what he was doing, and the burden of

proving involuntariness is upon him.”      Id. (quoting Commonwealth v.

Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).

      Whether a defendant is competent to plead guilty “requires a finding

that the defendant comprehends the crime for which he stands accused, is

able to cooperate with his counsel in forming a rational defense, and has a

rational and factual understanding of the proceedings against him.” Willis,

68 A.3d at 1002 (citing Commonwealth v. Turetsky, 925 A.2d 876

(Pa.Super.2007)).

      To establish an insanity defense, a defendant must prove “by the

preponderance of the evidence that the actor was legally insane at the time

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of the commission of the offense.” 18 Pa.C.S. § 315(a). “Legally insane” is

defined as “at the time of the commission of the offense, the actor was

laboring under such a defect of reason, from disease of the mind, as not to

know the nature and quality of the act he was doing or, if the actor did know

the quality of the act, that he did not know that what he was doing was

wrong.”   18 Pa.C.S. § 315(b).

     A defendant who is mentally ill may waive his right to trial and plead

guilty but mentally ill. A court may not accept a plea of guilty but mentally

ill until it “has examined all reports prepared pursuant to the Rules of

Criminal Procedure, has held a hearing on the sole issue of the defendant’s

mental illness at which either party may present evidence and is satisfied

that the defendant was mentally ill at the time of the offense to which the

plea is entered. . . .”   18 Pa.C.S. § 314(b).   A mentally ill individual is

defined as “[o]ne who as a result of mental disease or defect, lacks

substantial capacity either to appreciate the wrongfulness of his conduct or

to conform his conduct to the requirements of the law.”        18 Pa.C.S. §

314(c)(1).

     At Appellant’s guilty plea hearing, the following exchange occurred:

          THE COURT:      You have been diagnosed with bipolar
          disorder and you are suffering from schizophrenia?

          THE DEFENDANT: Yes.

          THE COURT: Do you take medication for that?

          THE DEFENDANT: No, Your Honor.

          THE COURT: Pardon me?

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         THE DEFENDANT: No, Your Honor.

         THE COURT: You don’t now?

         THE DEFENDANT: No.

         THE COURT: Do you understand the proceedings and
         what’s going on here today?

         THE DEFENDANT: Yes.

         THE COURT:      Are you able to communicate with your
         lawyer?

         THE DEFENDANT: Yes.

         THE COURT: You are not under the influence of any drugs
         or alcohol, are you?

         THE DEFENDANT: No.

         THE COURT: Your lawyer went over this form with you?

         THE DEFENDANT: Yes, Your Honor.

         THE COURT: Did she explain it to you?

         THE DEFENDANT: Yes.

         THE COURT: Do you understand it?

         THE DEFENDANT: Yes.

N.T., 4/14/2014, at 3-4. Appellant also signed a written guilty plea colloquy,

detailing, inter alia, the rights he waived if he pled guilty. Commonwealth’s

Motion to Dismiss at Exh. B, Written Guilty Plea Colloquy (“Written

Colloquy”).   On the Written Colloquy Appellant wrote “prior diagnosis of

schizophrenia and bipolar” under the pre-printed phrase “I have never seen

a doctor or been in a hospital for any mental problems – I can understand

what is going on.” Id. He placed a check mark next to the phrase. Id.




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      At the conclusion of the guilty plea, the trial court ordered a pre-

sentence report and a mental health evaluation.     Id. at 7.   The mental

health evaluation described Appellant as “calm and cooperative,” and stated

he was “awake, alert, and oriented to person, place and time,” and he

denied “auditory or visual hallucinations” and “suicidal and homicidal

ideations.” Opinion, 10/9/2014, at 5; Commonwealth’s Motion to Dismiss at

Exh. C, Mental Health Evaluation at 2, (“Mental Health Evaluation”).      It

further stated that Appellant’s “insight and judgment was fair.”      Mental

Health Evaluation at 2. The report recommended dual diagnosis treatment

for Appellant’s mental health and substance abuse problems and anger

management therapy. Opinion, 10/9/2014, at 5; Mental Health Evaluation

at 2. It did not suggest Appellant was incompetent or severely mentally ill.

Id.   At the sentencing, defense counsel noted that in the pre-sentence

report and the mental health report “there is a large indication of

[Appellant’s] mental illness, which will probably be life-long, of being bi-

polar, and all the other matters that are mentioned in here.”          N.T.,

7/7/2011, at 10.

      Appellant entered a knowing, intelligent, and voluntary plea.   At the

guilty plea, he testified that he understood the proceedings and was able to

communicate with counsel.      See Willis, 68 A.3d at 1008-09 (denying

ineffective assistance of counsel claim alleging counsel should have

investigated defendant’s competence where defendant made statements at

colloquy indicating he was not under the influence of drugs, alcohol, or

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medication and understood the proceedings).            He is bound by these

statements.       See id. (defendant bound by statements at guilty plea

colloquy). Further, Appellant offered no evidence to establish he was legally

insane or mentally ill at the time he committed the crime or to establish trial

counsel should have suspected he was legally insane or mentally ill at the

time he committed the crime. See id. (counsel not ineffective for failing to

investigate defendant’s competence where there was no evidence known to

counsel that would have caused a reasonable attorney to conduct a further

investigation).

        Because Appellant’s claim lacked merit, the PCRA court acted within its

discretion when it denied a hearing. See Wah, 42 A.3d at 338.

        Appellant next claims the PCRA court should have granted a hearing

on his claim that trial counsel was ineffective for not filing a motion to

suppress the statement he made following his arrest. Turner/Finley Letter

at 11.     He claims the police officers failed to provide him Miranda5

warnings. Appellant’s written statement to police lists his Miranda rights.

Appellant answered that he understood each right, did not wish to remain

silent, and did not want to talk to a lawyer.      He also initialed under each

right. Statement of William J. Berrioz, dated 1/6/2011 at 1-2. Therefore,

his claim that police did not provide him with the Miranda warnings is


____________________________________________


5
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).



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meritless.     Because     the   underlying     claim   lacks   merit,     Appellant’s

ineffectiveness of counsel claim also lacks merit and the PCRA court did not

err in not conducting a hearing. Wah, 42 A.3d 335, 338 (Pa.Super.2012);

Ousley, 21 A.3d at 1244.

      PCRA appellate counsel also notes in the Turner/Finley letter that

Appellant asserted PCRA counsel was ineffective for failing to present

evidence to support his claim that trial counsel was ineffective for failing to

pursue an insanity defense or plea of guilty but mentally ill. Turner/Finley

Letter at 12 n.3. Appellant waived this claim because he failed to raise it in

his 1925(b) statement.      Regardless, the claim lacks merit.           As discussed

above, trial counsel was not ineffective for failing to pursue an insanity

defense or a plea of guilty but mentally ill. Therefore, because trial counsel

was not ineffective, PCRA counsel also was not ineffective. Commonwealth

v. Paddy, 15 A.3d 431, 445 (Pa.2011) (because claims of trial counsel

ineffectiveness lack merit, appellant’s derivative claims of appellate counsel

ineffectiveness for failing to raise trial counsel ineffectiveness fail).

      Our independent review of the record has revealed no meritorious

claims that Appellant could have raised, and we agree with counsel that this

appeal lacks merit.    Accordingly, we affirm the order dismissing the PCRA

petition and grant counsel’s motion seeking permission to withdraw.

      Order affirmed and motion to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2015




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