J-S38020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ABRAHAM JACOB GREGOR

                            Appellant                No. 1888 MDA 2014


                Appeal from the Order Entered October 10, 2014
                In the Court of Common Pleas of Dauphin County
                Criminal Division at No: CP-22-CR-0002134-2012


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                     FILED SEPTEMBER 11, 2015

       Appellant, Abraham Jacob Gregor, appeals from the October 10, 2014

order dismissing his petition pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-46. Counsel has filed a petition to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We grant the petition

to withdraw and affirm the order.

       On January 7, 2013, Appellant pled guilty but mentally ill to one count

each of aggravated assault, possession of an instrument of crime, and

criminal mischief.1 The trial court imposed an aggregate 10 to 23 months of

incarceration followed by eight years of probation, in accord with the parties’
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1
    18 Pa.C.S.A. §§ 2702(a)(6), 907(a) and 3304(a)(1), respectively.
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plea agreement.     The trial court immediately discharged Appellant from

prison based on time served.      Appellant did not file a direct appeal.     On

February 11, 2014, Appellant filed a timely first PCRA petition alleging

ineffective assistance of plea counsel.      Appellant alleged counsel failed to

discuss the facts with him and failed to discuss the potential advantages of

going to trial rather than accepting the plea agreement.        The PCRA court

conducted a hearing on August 25, 2014, at which counsel and Appellant

testified.   Following the hearing, counsel submitted briefs at the court’s

request. On October 10, 2014, the PCRA court entered the order denying

relief. This timely appeal followed.

      On review, we determine whether the record supports the PCRA

court’s factual findings and whether the court’s decision is free of legal error.

Commonwealth v. Brooks, 875 A.2d 1141, 1144 (Pa. Super. 2005)

(quoting Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super.

2005)). We may affirm the PCRA court’s order on any valid basis. Id.

      Before we address the merits, we will consider whether counsel has

complied with the strictures of Turner and Finley.

             The Turner/Finley decisions provide the manner for post-
      conviction counsel to withdraw from representation.           The
      holdings of those cases mandate an independent review of the
      record by competent counsel before a PCRA court or appellate
      court can authorize an attorney’s withdrawal. The necessary
      independent review requires counsel to file a ‘no-merit’ letter
      detailing the nature and extent of his review and list 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

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       own independent evaluation of the record and agree with
       counsel that the petition is without merit.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).2

       Counsel’s no-merit letter details his review of the record and analysis

of each assertion of error Appellant wanted to raise.        We further observe

that counsel notified Appellant of his intentions in a letter, and advised

Appellant of his right to proceed pro se.        See Rykard, 55 A.3d at 1184.

Under these circumstances, we deem counsel’s Turner/Finley filings

sufficient.

       On March 10, 2015, Appellant filed with this Court an application for

extension of time to file a response to counsel’s no-merit letter. On March

16, 2015, this Court granted the extension and directed Appellant to file his

response by April 13, 2015.         Appellant never filed a response to counsel’s

no-merit letter. Therefore, we will grant counsel’s petition to withdraw and

proceed to conduct our independent review of the merits.

       A petitioner can obtain relief under the PCRA if he pleads and proves

ineffective assistance of counsel. 42 Pa.C.S.A. §§ 9543(a)(2)(ii).
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2
   Counsel does not cite Turner and Finley in his no-merit letter, and in
some respects the no-merit letter resembles a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). We remind counsel that Anders applies
to direct appeals and not to collateral review. This Court has made clear
that a Turner/Finley no-merit letter is the appropriate filing where counsel
seeks to withdraw on collateral review. Commonwealth v. Reed, 107 A.3d
137, 139 n.5 (Pa. Super. 2014). Nonetheless, “[b]ecause an Anders brief
provides greater protection to a defendant, this Court may accept an
Anders brief in lieu of a Turner/Finley letter.” Id. (citations omitted).



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             The petitioner 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 could have taken place. This requires the petitioner to
      show: (1) that the claim is of arguable merit; (2) that counsel
      had no reasonable strategic basis for his or her action or
      inaction; and, (3) that, but for the errors and omissions of
      counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different.

Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).

      Counsel has an obligation to provide effective assistance during a plea

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

“However, 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.” Id. (citations and

brackets 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.” Id. at 338-39 (citations omitted).

      The no-merit letter sets forth Appellant’s argument that counsel failed

to discuss with Appellant the possibility of going to trial and obtaining an

acquittal. To assess this argument, we must review the underlying facts, as

culled from the district attorney’s recitation at the guilty plea hearing:

             On the evening of February 15, 2012, [Appellant], who
      was in the throes of mental illness at the time, was slashing the
      tires of a police vehicle behind the police station in Harrisburg at
      123 Walnut Street when he was observed by Officer Scott
      Johnsen, who was returning from getting a meal, I believe. He

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     caused—[Appellant] caused $877.80 in damage to the tires,
     which he slashed with a knife.

            When observed by Officer Johnsen [. . . ] [Appellant] fled
     and Officer Johnsen gave chase. During the chase in the 200
     block of Strawberry Alley, Officer Johnsen fell and his handcuffs
     came out of the holder. [Appellant] turned and started walking
     back towards Officer Johnsen with the knife that he had used to
     slash the tires in his hand. Officer Johnsen gave several orders
     for [Appellant] to stop, but [Appellant] continued moving
     towards the officer. Officer Johnsen then fired several shots,
     hitting [Appellant] and causing substantial injury.

N.T. Hearing, 1/7/13, at 6.

     In his PCRA petition, Appellant argued the Commonwealth’s recitation

of facts was flawed because medical records indicate Appellant sustained

three gunshot wounds to the back.      Thus, Appellant could not have been

moving toward the officer when the officer opened fire.       On that basis,

Appellant believes counsel was ineffective in advising him to plead guilty to

aggravated assault by physical menace.       The Crimes Code defines that

offense as “attempts by physical menace” to put certain personnel, including

on-duty police officers, “in fear of imminent serious bodily injury.”

18 Pa.C.S.A. § 2702(a)(6).

     Appellant testified that counsel met with him only twice, once in the

hospital and once in prison.   N.T. Hearing, 8/25/14, at 7.    Appellant had

limited recollection of what he and counsel discussed.       Id. at 11.    He

attributed his lack of recollection to his significant injuries and his

medication. Id. At any rate, Appellant did not recall discussing the facts of

the case with counsel.   Id. at 24.    Appellant believes counsel’s failure to


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discuss the facts with him—in particular the fact that the police officer shot

him in the back—rendered his guilty plea involuntary.         Concerning the

underlying incident, Appellant testified the officer shot him when he was

ready to surrender. Id. at 19. Appellant denied walking toward the officer.

Id.

      Counsel testified that he met with Appellant twice while Appellant was

hospitalized.   Id. at 30-31.    Given the severity of Appellant’s injuries,

counsel was not able to engage in detailed conversations with Appellant at

that time. Id. Counsel also met with Appellant several times in prison prior

to the preliminary hearing. Id. at 32-33. Counsel also met with Appellant

two or three times after the preliminary hearing.        Id. at 34.   Counsel

discussed with Appellant the inconsistency between the medical records and

the police office’s account of the incident.   Id. at 33.   At the preliminary

hearing, the officer testified that Appellant was facing him when the officer

fired. Id. Counsel explained to Appellant that the medical records indicated

Appellant was shot in the back. Id.

      Counsel testified that Appellant was never able to give him an account

of the incident, other than his slashing tires of police cars. Id. at 35-36. No

one else witnessed the shooting.      Id. at 36.   The police report indicated

Appellant approached the police officer and was within a few feet of the

officer when Appellant threatened the officer with a knife.     Id. at 36-37.

Counsel described his theory of the case as follows: “[W]e potentially had a


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theory of the case that would have involved [Appellant] dropping his bag,

going back to get his bag, potentially still having the knife in his hand, and

the officer seeing that and reacting to that and then firing upon him.” Id. at

39. The knife was a pocketknife, large enough to cause significant injury but

not as large as a hunting knife. Id. at 46. The knife was large enough to

inflict a fatal wound.      Id.    Counsel was unaware of any gunshot residue

found on Appellant’s clothes. Id. at 47-48.

       Counsel believed the best possible outcome of a jury trial was simple

assault by physical menace.3 Id. at 39. The police officer’s justification, or

lack thereof, for shooting Appellant would not have been an issue for the

jury to decide and would not have been relevant to Appellant’s guilt or

innocence of the various charges against him.          Id. at 41-42.   Counsel

acknowledged that evidence of gunshot wounds to the back could have

undermined the officer’s credibility. Id. at 50.

       The standard guideline range applicable to Appellant’s aggravated

assault offense was 39 to 52 months, whereas Appellant received 10 to 23

months—below the mitigated range—pursuant to the plea agreement.           Id.

at 40-43. Counsel also took into account Appellant’s desire for immediate

release from prison, which he obtained as part of the plea agreement

because he had already served the ten-month minimum.           Id. at 40, 43.

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3
    See 18 Pa.C.S.A. § 2701(a)(3).



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Counsel believed Appellant understood the agreement and would have been

competent to stand trial even though he had some ongoing mental health

issues. Id. at 44.

      “Generally, where matters of strategy and tactics are concerned,

counsel’s assistance is deemed constitutionally effective if he chose a

particular course that had some reasonable basis designed to effectuate his

client’s interests.”   Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa.

2010). “A finding that a chosen strategy lacked a reasonable basis is not

warranted unless it can be concluded that an alternative not chosen offered

a potential for success substantially greater than the course actually

pursued.” Id. As we explained above, Appellant can obtain relief here only

if counsel’s alleged ineffective assistance rendered Appellant unable to enter

a knowing, voluntary and intelligent plea. Counsel testified that he met with

Appellant on at least five occasions, and that he apprised Appellant of the

inconsistency between the police officer’s testimony and the medical

evidence. Counsel was also aware of Appellant’s desire to obtain immediate

release from prison. Counsel believed a trial could lead to a conviction on a

lesser offense than aggravated assault, but the plea bargain resulted in a

sentence below the mitigated guideline range for that offense. Further, the

plea bargain allowed Appellant to be released immediately based on time

served.   By going to trial, Appellant would have risked a much harsher

sentence than the one he received.      Counsel believed the facts indicated


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that, at a minimum, Appellant fled from the officer and then stopped and

faced the officer while still brandishing the knife he used to slash tires.

      The terms of the agreed upon sentence were very favorable, given the

charges Appellant was facing and the potential sentence he could have

received if the jury found him guilty of aggravated assault. In addition, the

plea agreement satisfied Appellant’s desire for immediate release from

prison. The record supports the PCRA court’s finding that counsel informed

Appellant of the pertinent facts.             The PCRA court was free to believe

counsel’s testimony and disbelieve Appellant’s. Counsel did not believe a full

acquittal   was   likely,   and   a   trial    would   have   prolonged   Appellant’s

incarceration for at least the duration of the trial.         An aggravated assault

conviction could have prolonged the incarceration considerably.                  We

therefore cannot conclude that a trial offered the potential for a substantially

better outcome than the one counsel obtained.

      In summary, we conclude that the record supports the PCRA court’s

factual findings and we discern no legal error in the PCRA court’s decision.

We therefore affirm the order.




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     Petition to withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2015




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