J-S19022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUSTIN HEARD

                            Appellant                No. 2154 EDA 2014


                   Appeal from the PCRA Order July 11, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003926-2010


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                            FILED APRIL 07, 2015

        Appellant Justin Heard appeals from the dismissal of his petition filed

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

seq. We affirm.

        On May 7, 2012, Appellant pled guilty to third degree murder,1

aggravated assault,2 and possession of a firearm prohibited.3       The parties

agreed to, and the trial court imposed, an aggregate sentence of thirty to

sixty years’ incarceration, to run concurrent to a sentence imposed at a



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1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 2702(a).
3
    18 Pa.C.S. § 6106(a)(1).
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separate docket for 17 ½ to 35 years’ incarceration. N.T., 5/7/2012, at 32,

34. Appellant did not file post-sentence motions or a direct appeal.

       On March 31, 2013, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel. On April 29, 2014, counsel filed a no-merit

letter pursuant to Turner4 and Finley5 and filed a motion to withdraw as

counsel.    On May 23, 2014, the PCRA court issued notice of its intent to

dismiss the PCRA petition pursuant to Pennsylvania Rule of Criminal

Procedure 907. On June 9, 2014, Appellant filed a timely response to the

notice of intent to dismiss.6         On July 9, 2014, the PCRA court granted

counsel’s motion to withdraw and dismissed Appellant’s PCRA petition. On

July 25, 2014, Appellant filed a timely notice of appeal. Both Appellant and

the trial court complied with Pennsylvania Rule of Appellant Procedure 1925.

       Appellant raises the following issues on appeal:

           1. Did the trial court err in dismissing Appellant’s PCRA
           petition where it is clear that counsel of record (James A.
           Lammendola) failed to adequately review Appellant’s
           record and investigate pursuant to the requirements in
           [Finley] and Commonwealth v. Mosteller, 633 A.2d 615
           ([Pa.Super.]1993)?


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4
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
5
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1987).
6
  Appellant titled his response “Motion to Deny PCRA Counsel’s Motion to
Withdraw and Petitioner’s Response to the Court’s Notice Pursuant to
Pa.R.Crim.P. 907 Filed May 23, 2014.”



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          2. Did the trial court err in dismissing Appellant’s PCRA
          petition  since    trial counsel    was     ineffective  for
          advising/coercing Appellant to plead guilty to the charge of
          third degree murder when the nature of the charges and
          the lack of communication with counsel pursuant to
          [Pa.R.Crim.P.] 590?

          3. Did the trial court err in dismissing Appellant’s PCRA
          petition since based upon the totality of the circumstances
          test, Appellant did not plead guilty to the charge of third
          degree murder in a knowingly, voluntarily, or intelligent
          manner?

Appellant’s Brief at 7.7

       Appellant’s first issue challenges the effectiveness of PCRA counsel.

Because Appellant alleged PCRA counsel ineffectiveness in his response to

the PCRA court’s notice of intent to dismiss the petition, we will review the

PCRA court’s determination that counsel complied with Turner/Finley and

review whether the PCRA court properly granted counsel’s petition to

withdraw. See Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super.2012)

(reviewing PCRA Court’s grant of withdrawal and Turner/Finley analysis

where appellant challenged it in opposition to notice of intent to dismiss).

       Turner/Finley provides a mechanism for post-conviction counsel to

withdraw.     Rykard, 55 A.3d at 1184.           Competent PCRA counsel must

conduct an independent review of the record before a PCRA or appellate

court can authorize counsel’s withdrawal. Id. This independent review:



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7
  Appellant’s Brief does not contain page numbers.       All page numbers are
supplied by this Court.



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          [R]equires counsel to file a “no-merit” letter detailing the
          nature and extent of his review[,] [listing] each issue the
          petitioner wishes to have examined, [and] 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.

        Here, PCRA counsel submitted a no-merit letter which states that he

“reviewed the quarter sessions filed, attempted to correspond with the

petitioner,[8] reviewed all relevant notes of testimony, and reviewed the

applicable law.” Letter from James A. Lammendola, Esq. to the Honorable

Lillian H. Ransom docketed April 29, 2014, at 1 (“No-Merit Letter”). Counsel

then provides the case’s background, lists the issues the petitioner would

like examined, explains why those issues are meritless, and states there are

no additional issues of arguable merit.          Id. at 2-11.   In addition, PCRA

counsel sent the No-Merit Letter to Appellant, along with a copy of the

motion to withdraw, and informed Appellant he had the right to retain

private counsel or proceed pro se to raise any issues he believed have merit.

Letter from James A. Lammendola, Esq. to Justin Heard dated April 24,

2014.    Although the PCRA court merely adopted the No-Merit Letter in its

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8
  Appellant maintains counsel did not consult or communicate with him.
Appellant’s Brief at 12-13. PCRA counsel does not clarify how he “attempted
to correspond” with Appellant. Regardless, PCRA counsel conducted a
review of the record and, because the issues Appellant raised could be found
in the record, he was not required to communicate with Appellant.




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notice of intent to dismiss the PCRA petition, it provided a 1925(a) opinion

discussing the issues raised and explaining why they lacked merit. 9              PCRA

counsel followed the dictates of Turner/Finley in filing his No-Merit Letter

and motion to withdraw, and the PCRA court properly dismissed the PCRA

petition and granted counsel’s motion to withdraw. Appellant’s first claim is

meritless.

       Appellant’s second and third issues allege ineffective assistance of trial

counsel. The claims 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)).

       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
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9
  We note the PCRA court failed to certify that it conducted an independent
review of the record to ensure no claims of arguable merit existed. We,
however, have conducted such a review, and find there are no issues of
arguable merit.



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(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).

      “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

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.

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Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)). Further, “where the totality

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

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.”        Commonwealth v. Morrison, 878 A.2d 102,

107 (Pa.Super.2005) (citing Commonwealth v. Schultz, 477 A.2d 1328

(Pa.1984)).

       Appellant’s second issue maintains his trial counsel was ineffective

because counsel coerced Appellant to plead guilty.        He claims counsel did

not provide Appellant with sufficient time to consider the guilty plea.

       Based on the totality of the circumstances, Appellant entered a

knowing, intelligent, and voluntary guilty plea. He informed the trial court

that no one forced him to plead guilty.          N.T., 5/7/2012, at 9, 13.   He

completed the written guilty plea colloquy form, which included an

explanation of the proceedings and detailed the rights he waived by pleading

guilty. Id., Written Guilty Plea Colloquy.10 Further, contrary to Appellant’s

contention, he had sufficient time to consider the guilty plea.       Appellant

spoke with counsel on the morning of the guilty plea and the guilty plea

hearing was suspended to permit Appellant additional time to discuss the
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10
  Appellant is bound by the statements made at the time of the guilty plea.
See Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa.Super.2013)
(appellant bound by statements made in open court under oath).




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plea with his sister and counsel.              N.T., 5/7/2012, 9-12.   Several hours

passed before the guilty plea hearing resumed.11             Id. at 12.   Appellant’s

second claim, therefore, lacks merit.

       Appellant’s third claim alleges his counsel was ineffective for failing to

adequately define the elements of third-degree murder during the guilty plea

colloquy. This claim is meritless.

       During the guilty plea colloquy, trial counsel stated that the elements

of third-degree murder are “a purposeful, knowing killing of another

human.” N.T., 5/7/2012, at 21. This definition was inaccurate; third-degree

murder is defined as a “killing done with malice,” which does not require an

intent to kill. Commonwealth v. Kimbrough, 872 A.2d 1244, 1252, 1263

(Pa.Super.2005).      This misstatement, however, did not cause Appellant to

enter an unknowing, unintelligent, or involuntary plea. The facts to which he

agreed established third-degree murder.                 N.T., 5/7/2012, at 25-27.

Further, the totality of the circumstances establish the plea was knowing,

intelligent, and voluntary. Appellant understood that the trial court would be

required to sentence him to life imprisonment if the jury convicted him of




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11
  The court stated it would commence jury selection, take a break for lunch,
and, when court reconvened after lunch, it would determine whether
Appellant wished to plead guilty. N.T., 5/7/2012, at 11.




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first-degree murder or third-degree murder,12 and the elements as stated

included an additional element, intent, that a third-degree murder conviction

does not require. N.T., 5/7/2012, at 7. See Commonwealth v. Morrison,

878 A.2d 102, 109 (Pa.Super.2005) (plea valid where oral colloquy did not

outline the elements of the crimes, but it was apparent appellant was aware

of the nature of the offenses because he executed a document admitting

that he was advised of the offenses outlined in the information, which

detailed the elements of those offenses); Commonwealth v. Schultz, 477

A.2d 1328 (Pa.1984) (plea valid even though defendant not told theft was

element of robbery and he had not completed the armed robbery where

evidence presented at colloquy established armed robbery, he agreed the

government alleged he entered the store and put the employees in threat of

immediate bodily injury, knew he was accused of trying to hold up the store,

and had three prior robbery convictions). This claim is meritless.

       Order affirmed and motion for stay and abeyance denied.13


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12
  Because Appellant had a prior third-degree murder conviction, he faced a
mandatory sentence of life imprisonment if convicted of third-degree
murder. 42 Pa.C.S. § 9715(a).
13
   On March 9, 2015, Appellant filed a motion for stay and abeyance
requesting that this Court stay the appellate proceedings to permit him to
exhaust a new ineffective assistance of counsel claim, i.e., that counsel was
ineffective for failing to investigate whether a pre-sentence investigation
should have been conducted to determine if Appellant had any psychiatric
history. Motion for Stay and Abeyance at ¶¶ 7, 11. We deny this motion.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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