Com. v. Atwell, J.

Opinion

J-S65039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSEPH WILLIAM ATWELL,

Appellant No. 960 EDA 2014

Appeal from the PCRA Order March 14, 2014 in the Court of Common Pleas of Pike County Criminal Division at No.: 284-2008-Criminal

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED FEBRUARY 13, 2015

Appellant, Joseph William Atwell, appeals from the order denying and

dismissing his petition for collateral relief pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. Appellant claims ineffective

assistance of counsel. We affirm on the basis of the PCRA court’s opinion.

A jury convicted Appellant of murder of the first degree, kidnapping,

conspiracy, firearms not to be carried without a license and possession of an

instrument of crime in connection with the shooting death of Norman

Domenech, related to Appellant’s drug operation. After the jury deadlocked

on the death penalty, the trial court sentenced him to life imprisonment plus

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* Retired Senior Judge assigned to the Superior Court. J-S65039-14

not less than forty-one years’ and not more than one hundred and four

years’ incarceration in a state correctional institution. This Court affirmed

judgment of sentence and our Supreme Court denied allowance of appeal.

Commonwealth v. Atwell, 34 A.3d 224 (Pa. Super. 2011) (unpublished

memorandum), appeal denied, 37 A.3d 1195 (Pa. 2012).

Appellant filed a pro se PCRA petition on October 25, 2012. The PCRA

court appointed counsel, who filed an amended petition. Notably, Appellant

alleged his trial counsel did not inform him of multiple plea offers, and

rejected a plea offer without consulting him. After a hearing, the court

denied the petition on March 14, 2014, in an extended order which included

its reasoning. Appellant timely appealed.1

In its May 6, 2014 opinion, the PCRA court fully and correctly sets

forth the relevant facts and procedural history of this case. Therefore, we

have no reason to restate them at length here.2

1 Appellant also filed a statement of errors on April 25, 2014. See Pa.R.A.P. 1925(b). The trial court filed a supplementary opinion on May 6, 2014. See Pa.R.A.P. 1925(a). 2 For ease of reference, we note that Appellant’s co-conspirator in this murder, and the victim’s replacement in Appellant’s drug operation, was Jesus Rosario Torres, the shooter. At trial, the Commonwealth introduced into evidence a “White Resistance Manual.” The manual, found among Appellant’s possessions, was a white supremacist tract which included information on firearms and provided instructions on how to commit certain crimes. Also at trial, Magaly Echevarria testified that she was the translator for Rosario Torres and Appellant in the planning and commission of the murder.

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Appellant raises the following four issues for our review:

[1.] Did the PCRA court err in denying Appellant’s PCRA petition when his trial counsel rejected guilty plea offers from the Commonwealth prior to and during Appellant’s trial without first consulting Appellant?

[2.] Did the PCRA court err in denying Appellant’s PCRA petition when his trial counsel failed to advise Appellant of certain plea offers prior to and during trial?

[3.] Did the PCRA court err in denying Appellant’s PCRA petition when his trial counsel failed to object to the Commonwealth’s introduction into evidence of a “White Resistance Manual,” allegedly belonging to Appellant, which had little probative value, if any, and was highly prejudicial against Appellant?

[4.] Did the PCRA court err in denying Appellant’s PCRA petition when his trial counsel failed to call Magaly Echevarria’s treating psychiatric doctors to testify at Appellant’s trial, despite Ms. Echevarria being a key witness for the Commonwealth and her questionable psychiatric history?

(Appellant’s Brief, at 4).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the PCRA court, we

conclude that there is no merit to the issues Appellant has raised on appeal.

The PCRA court opinion properly disposes of the questions presented. (See

PCRA Court Opinion, 5/06/14, at 4-7) (finding: (1) the only credible

testimony concerning plea offers was from Appellant’s trial attorneys, who

testified that there was a single plea offer of fifteen to thirty years which

counsel presented to Appellant on multiple occasions, and Appellant

rejected; (2) Appellant presented no evidence to support his claim of

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additional plea offers or unilateral rejection of them by counsel; (3) defense

counsel chose a reasonable strategy of having the White Resistance Manual

read at length to the jury to attempt to minimize the effect of specific

sections, after the trial court denied counsel’s original objection to its

admission of selected portions of the manual; and (4) the matter of Ms.

Echevarria’s competence to testify was previously litigated both at trial and

on direct appeal, and counsel raised appropriate motions throughout the

proceedings).

Accordingly, we affirm on the basis of the PCRA court’s opinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/13/2015

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