J-S07012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

BRANDON MICHAEL APOSTOLEC,

                            Appellant              No. 1308 MDA 2014


                   Appeal from the PCRA Order July 14, 2014
               In the Court of Common Pleas of Lancaster County
                           Criminal Division at No(s):
                            CP-36-CR-0001446-2010
                            CP-36-CR-0002726-2010
                            CP-36-CR-0003464-2010
                            CP-36-CR-0004794-2010
                            CP-36-CR-0004806-2010


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED FEBRUARY 25, 2015

       Brandon Michael Apostolec (Appellant) appeals from the July 14, 2014

order denying his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

       In August 2011, Appellant entered an open guilty plea to all charges

against him. Of note, the charges at docket Nos. 2726-2010 and 3464-2010

consisted of one count each of burglary and theft of a handgun.1 In October

____________________________________________


1
  Respectively, 18 Pa.C.S. §§ 3502(a) and 3921(a), the latter graded as a
felony of the second degree. See 18 Pa.C.S. § 3903(a)(2). Other charges
against Appellant included two counts of terroristic threats, three counts of
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2011, the lower court imposed a sentence of eleven to twenty-seven years’

incarceration. The sentences imposed for the theft of handgun crimes run

concurrently with the corresponding burglary convictions.2

      Appellant timely filed a motion to modify sentence, which was denied

by the trial court. Appellant timely appealed, and this Court affirmed in part

and vacated in part.         Commonwealth v. Apostolec, 62 A.3d 455 (Pa.

Super. 2012) (unpublished memorandum).3

      In September 2013, Appellant timely filed pro se a PCRA petition, and

counsel was appointed. Thereafter, Appellant filed an amended, counseled

petition, alleging ineffective assistance of plea counsel. In April 2014, the

PCRA court held a hearing, at which Appellant and plea counsel testified.

      According to Appellant, he had authorized plea counsel to disclose the

location of one of the stolen handguns, provided the Commonwealth offered

a deal or in order to “gain some kind of leverage with the DA.”             Notes of

Testimony (N.T.), 4/1/2014, at 5.                However, plea counsel disputed this


                       _______________________
(Footnote Continued)

burglary, and three counts of theft by unlawful taking.             Respectively, 18
Pa.C.S. §§ 2706(a)(2) and (3), 3502(a), and 3921(a).
2
  In contrast, the sentences for the remaining theft charges merged with
their respective burglary charges. See 18 Pa.C.S. § 3502(d).
3
  On appeal, this Court vacated a portion of Appellant’s sentence, but as it
did not disrupt the overall sentencing scheme, no further action was
required by the sentencing court. Id. That error has no bearing on the
disposition of this appeal.



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testimony, suggesting that he had advised Appellant of the benefits of

surrendering the stolen handgun. He testified as follows:

         Q.    And what did you do with that information [re: the location
         of the gun]?

         A.     Well, I know Brandon, you know, wanted me to have a tit
         for tat, you know, if they give me a number, you know, I’ll give
         them the gun. But I also discussed that it still looks good – most
         judges – it looks good, you know, to turn a handgun in, even at
         an open plea. I mean, it shows that you don’t want a gun out
         there.

         …

         Q.    This idea of using the gun to sort of curry or gain leniency
         or curry favor with the [c]ourt, was that your idea?

         A.    It was my idea and we did discuss it.

         Q.    Were you authorized to surrender the gun to the police for
         that purpose by your client?

         A.    I believe so.

Id. at 14-15.      Thereafter, the PCRA court observed that plea counsel had

argued before the sentencing court that Appellant had cooperated with

police, insofar as he returned a stolen handgun. Id. at 22-23. Further, the

PCRA court noted that, despite consecutive sentences for each burglary, the

sentencing court imposed concurrent sentences for the handgun thefts. Id.

at 22.

         In July 2014, the PCRA court denied Appellant’s petition and issued an

opinion.      Appellant timely appealed and filed a court-ordered Pa.R.A.P.




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1925(b) statement.        The PCRA court issued a responsive memorandum

incorporating its prior opinion.

      Appellant presents the following question for our review:

      Whether the [PCRA court] erred in denying post-conviction relief
      where [plea] counsel disclosed confidential information relating
      to the representation of [Appellant] to the Commonwealth to the
      disadvantage of the client?

Appellant’s Brief at 4.

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007).     The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record. Commonwealth

v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      Appellant asserts that plea counsel was ineffective for disclosing

confidential information to the Commonwealth. According to Appellant, plea

counsel was authorized only to reveal the location of the handgun, or to

surrender the stolen handgun to the Commonwealth, in exchange for a

favorable plea offer. As plea counsel was unable to secure an offer from the

Commonwealth, his disclosure created an actual conflict of interest, which

presumptively prejudiced Appellant. Appellant’s claim is without merit.

      To establish ineffective assistance of counsel, a PCRA petitioner must

prove, by a preponderance of the evidence: “(1) the underlying legal issue

has arguable merit; (2) counsel’s actions lacked an objective reasonable

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basis; and (3) actual prejudice befell the petitioner from counsel’s act or

omission.”     Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009)

(citations   omitted).   “A   petitioner   establishes   prejudice   when   he

demonstrates that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Id. A claim will be denied if the petitioner fails to meet any one

of these requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267

(Pa. Super. 2008) (citing Commonwealth v. Natividad, 938 A.2d 310, 322

(Pa. 2007)).

      Here, the PCRA court determined that plea counsel “testified credibly …

that he believed he was authorized by [Appellant] to surrender the stolen

handgun.” See PCRA Court Opinion, 7/14/2014, at 5. We may not disturb

this finding, as it is supported by the record.    See N.T., at 15; Johnson,

966 A.2d at 539 (noting that the credibility determinations of the PCRA court

are “provided great deference”); Carr, 768 A.2d at 1166.         Further, this

finding is dispositive, as it eliminates from our consideration the very

premise of Appellant’s legal argument to this Court.

      Nevertheless, we will proceed to examine briefly whether plea

counsel’s disclosure was objectively reasonable.

      The test for deciding whether counsel had a reasonable basis for
      his action or inaction is whether no competent counsel would
      have chosen that action or inaction, or, the alternative, not
      chosen, offered a significantly greater potential chance of
      success. Counsel's decisions will be considered reasonable if
      they effectuated his client's interests. We do not employ a

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       hindsight analysis in comparing trial counsel's actions with other
       efforts he may have taken.

Commonwealth v. Pander, 100 A.3d 626, 631 (Pa. Super. 2014) (en

banc) (citations omitted).

       The PCRA court concluded as follows:

       [I]t is very clear that the gun was turned over in order to make
       a good impression on the [c]ourt since [Appellant] was entering
       an open guilty plea and the [c]ourt would be deciding
       [Appellant’s] sentence. Attempting to obtain a better sentence
       by showing the [c]ourt that [Appellant] was cooperative and
       surrendered the stolen handgun is certainly a reasonable basis
       for [plea counsel’s] actions.

PCRA Court Opinion, at 5.            We agree with this analysis.       Indeed, as

recognized by the PCRA court, Appellant received a concurrent term of

incarceration for the handgun thefts – suggestive, at least, that plea

counsel’s strategy was successful. In light of Appellant’s authorization, the

decision    of   plea   counsel    to   surrender   the   stolen   handgun   to   the

Commonwealth was objectively reasonable, in that it reflected counsel’s

efforts to minimize the term of incarceration imposed upon Appellant. 4

       Order affirmed.




____________________________________________


4
  In light of the foregoing, we need not consider Appellant’s argument that
plea    counsel’s   disclosure  was   presumptively    prejudicial.    See
Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007) (recognizing
the presumption of prejudice where counsel had an actual conflict of
interest); Springer, 961 A.2d at 1267.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2015




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