Com. v. Blystone, J.

• Court: Superior Court of Pennsylvania
• Decided: September 26, 2019
• Docket: 1345 WDA 2018
• Status: Unpublished

Opinion

J-S31016-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JEREMY JONATHAN BLYSTONE

Appellant No. 1345 WDA 2018

Appeal from the PCRA Order Dated September 4, 2018 In the Court of Common Pleas of Armstrong County Criminal Division at No.: CP-03-CR-0000354-2015

BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 26, 2019

Appellant Jeremy Jonathan Blystone appeals from the September 4,

2018 order entered in the Court of Common Pleas of Armstrong County (“PCRA

court”), which denied his request for collateral relief under the Post Conviction

Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

The facts and procedural history of this case are uncontested. 1 On

February 13, 2015, at approximately 1:34 p.m., Appellant was driving his

vehicle on State Route 56. He turned left into the driveway of the residence

of his passenger Lisa Culp (“Ms. Culp”). This turn placed him in front of

another vehicle traveling the opposite direction on State Route 56 driven by

Thomas Pater (“Pater”), with Joseph Keibler (“Keibler”) as passenger. The

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1 Unless otherwise noted, these facts are taken, largely verbatim, from the PCRA court’s September 4, 2018 opinion. See PCRA Court’s Opinion, 9/4/18 at 1-9. J-S31016-19

two vehicles collided nearly head-on. Eyewitness Donna Casale testified that

she observed Appellant exit the vehicle after the collision. Ms. Culp told

Patrolman Ponteri, the officer who arrived on the scene, that Appellant was

the driver of the vehicle and that he “ha[d] been drinking all day.” Patrolman

Ponteri determined that Appellant had fled the scene of the accident on foot.

Pater and Keibler were extricated from their vehicle; Pater was transported to

Forbes Regional Hospital in Monroeville and was pronounced dead on arrival

from injuries sustained during the accident. Keibler was transported to UPMC

Presbyterian Hospital in Pittsburgh for his injuries. Ms. Culp was sent to

Forbes Regional Hospital for her injuries.

Later that same day, at 4:11 p.m., police apprehended Appellant after

he was observed leaving the Central Restaurant and Bar in Apollo Borough.

He was seen getting into a vehicle and was apprehended during a routine

traffic stop; police observed a “strong odor of [a]lcoholic [b]everages coming

from his person, red bloodshot and glassy eyes and slurred speech.”

Following his arrest, Appellant was transported to Allegheny Valley

Hospital in Natrona Heights, Pennsylvania. Officers read Appellant the

PennDot DL-26 form, which he refused to sign. He also refused to submit to

chemical testing. Shortly after his initial refusal, Appellant “advised that he

was willing to submit to a blood test.” Corporal Robbins of the Pennsylvania

State Police read the PennDot DL-26 again and the first blood draw took place

at 6:20 p.m. A second blood draw, pursuant to a search warrant, was

performed at Armstrong County Memorial Hospital at 7:36 p.m. Through

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chemical testing, it was determined that Appellant had a blood alcohol content

(“BAC”) of 0.213%. As a result, Appellant was charged with multiple motor

vehicle code offenses, including homicide by vehicle while driving under the

influence, aggravated assault with vehicle while driving under the influence,

driving under the influence of alcohol, and vehicle turning left.2

A preliminary hearing was held on April 25, 2015 before Magisterial

District Judge Andring, at which Donna Casale, an eyewitness, Ms. Culp, and

Sergeant Christian Disciscio testified. Appellant was represented by counsel,

attorney Michael Worgul (“Attorney Worgul”) of the Worgul Law Firm. Ms.

Casale testified that she observed Appellant exit the vehicle after the crash.

She also testified that she was unable to remain at the scene because she

would be late for work and that Officer Ponteri would obtain her statement

later.

Ms. Culp testified that she received a telephone call from Appellant

between 10:00 a.m. and 11:00 a.m. on the day of the accident. He told her

that he was very upset because of an issue he was having with his girlfriend.

Appellant told Ms. Culp that he was then in a vehicle parked in the parking lot

of the Six Pack bar, drinking a beer. Appellant asked Ms. Culp for permission

to come to her house to “clear his head,” to which she acceded.

Ms. Culp further testified that Appellant arrived at her house about 10

or 15 minutes later, driving his girlfriend’s SUV. Ms. Culp stated that he was

2 75 Pa.C.S.A. §§ 3735(a), 3735.1(a), 3802(c) and 3322, respectively.

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very upset upon his arrival. She testified that between 11:30 a.m. and 1:00

p.m. “he did have a couple of drinks at my house, like two and a half that I'm

aware of . . . [i]t was spiced rum.”

Sergeant Disciscio testified that Appellant was not at the scene when he

arrived, but soon after, information was received that he was minutes away

in the Central Bar & Grill in Apollo Borough. He further testified that the

bartender at the Central Bar gave him a statement about Appellant’s

consumption of alcohol while there. According to the bartender’s statement,

Appellant consumed “a large Coors draft, a shot of tequila, and then ordered

a second shot, which was Jack Daniels.” The bartender further stated that “at

that point they had seen sufficient outward signs that [Appellant] was an

intoxicated person, and that they actually shut him off, and told him they

would no longer serve him alcohol.” Sergeant Disciscio went on to recount

the events of Appellant’s arrest and the two blood draws that took place after

that. All charges were held for court.

On April 11, 2016, the day of trial, Appellant pleaded guilty to homicide

by vehicle while DUI, aggravated assault with vehicle while DUI, DUI (alcohol),

and vehicle turning left. On June 28, 2016, Petitioner was sentenced to the

following: (1) on the charge of homicide by vehicle DUI to incarceration for a

term of not less than five years and no more than ten years; (2) on the charge

of aggravated assault with vehicle while DUI to incarceration of not less than

four years and not more than eight years; to run consecutively to the homicide

by vehicle while DUI charge; (3) on the charge of DUI (alcohol) to

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incarceration of not less than seventy-two hours and not more than six

months, to run consecutively to the homicide by vehicle while DUI charge; (4)

on the charge of vehicle turning Left, no further penalty was assessed.

Appellant did not file a direct appeal.

On April 17, 2017, Appellant pro se filed a petition for PCRA relief, raising

a claim for ineffective assistance of counsel with respect to his guilty plea.

The PCRA court appointed counsel, who filed an amended petition on

December 15, 2017, asserting that Appellant’s trial counsel was ineffective for

failing to file an omnibus pretrial motion for purposes of suppressing or

excluding the results of Appellant’s BAC test.3

On March 15, 2018, the PCRA court conducted a hearing, at which

Attorney Worgul, Attorney Matthew Ness and Appellant offered testimony.

Appellant testified that every time he met with Attorney Worgul, he would

make a request for a pretrial motion and would receive a response indicating

that “they are working on it, or you know, it was in the works, basically, is

how he would speak of it.” N.T. PCRA Hearing, 3/15/2018, at 30-31. While

Attorney Ness, Worgul’s partner, was unable to recall specifically whether

Appellant requested that counsel file pretrial motions, Attorney Worgul and

Attorney Ness both testified that any pretrial motion regarding Appellant’s BAC

would not be successful.

3 In particular, Appellant claimed that he wanted trial counsel to file a motion to suppress, motion in limine and a habeas motion to exclude the BAC test results.

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Attorney Worgul testified that, to the best of his recollection, he and

Ness did not believe Appellant had a valid motion to suppress due to

Appellant’s consent to the initial blood draw. See N.T. PCRA Hearing,

3/15/2018, at 71. Attorney Worgul further testified that he did not consider

filing a motion in limine on the BAC level because it was relevant evidence,

and his argument would instead question the weight of the evidence rather

than the admissibility. Id. at 73. Attorney Ness testified that because

Appellant would testify that he started drinking only after the accident, and

because their defense strategy centered on this argument, they believed

suppression of the BAC evidence was unnecessary.

Following the hearing, on September 4, 2018, the PCRA court denied

Appellant relief, because his ineffectiveness claim lacked merit. Appellant

timely appealed.4

On appeal, 5 Appellant raises a single issue for our review:

I. Where counsel failed to file a pretrial motion seeking the exclusion of certain evidence of [Appellant’s] intoxication, despite the existence of meritorious grounds therefor, and where intoxication was a key element of the most serious charged offenses, was [Appellant’s] right to effective assistance of counsel violated:

Appellant’s Brief at 8.

4The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. 5“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination ‘is supported by the record and free of legal error.’” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).

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Appellant’s sole claim before us involves ineffective assistance of

counsel. Appellant argues that his trial counsel was ineffective because he

failed to file a motion in limine or a motion to suppress for purposes of

excluding results of his BAC test. Appellant’s Brief at 17-22. Appellant asserts

that “[h]ad this evidence been excluded there would have been scant evidence

of [Appellant’s] intoxication at the time of the accident. . . . [and Appellant]

would have then been in an informed position to enter into a plea agreement

or to decide to go to trial.” Id. at 28. Appellant claims that his guilty plea

was not knowing, voluntary and intelligent because of his counsel

ineffectiveness.

A PCRA petitioner is entitled to relief if he pleads and proves that prior

counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A.

§ 9543(a)(2)(ii). “It is well-established that counsel is presumed effective,

and to rebut that presumption, the PCRA petitioner must demonstrate that

counsel’s performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citation omitted).

“To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and

prove by a preponderance of the evidence that (1) the underlying legal claim

has arguable merit; (2) counsel had no reasonable basis for acting or failing

to act; and (3) the petitioner suffered resulting prejudice.” Commonwealth

v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). “A

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petitioner must prove all three factors of the “Pierce[6] test,” or the claim

fails.” Id. Put differently, “[t]he burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).

“In the context of a plea, a claim of ineffectiveness may provide relief

only if the alleged ineffectiveness caused an involuntary or unknowing plea.”

Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017)

(citations omitted); see Commonwealth v. Johnson, 875 A.2d 328, 331

(Pa. Super. 2005) (explaining that when asserting a claim of ineffectiveness

of counsel in the context of a guilty plea, a defendant must show that plea

counsel’s ineffectiveness induced him to enter the plea), appeal denied, 892

A.2d 822 (Pa. 2015). Thus, we preliminarily must determine whether

Appellant’s guilty plea was valid.7

To be valid, a plea must be voluntary, knowing, and intelligent.

Commonwealth v. Persinger, 615 A.2d 1305, 1307 (Pa. 1992). To ensure

these requirements are met, Rule 590 of the Pennsylvania Rules of Criminal

Procedure requires that a trial court conduct a separate inquiry of the

defendant before accepting a guilty plea. It first requires that a guilty plea be

offered in open court. The rule then provides a procedure to determine

whether the plea is voluntarily, knowingly, and intelligently entered. As the

6 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). 7 When a defendant enters a guilty plea, he waives his “right to challenge on appeal all non-jurisdictional defects except the legality of [his] sentence and the validity of [his] plea.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super.2008).

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Comment to Rule 590 provides, at a minimum, the trial court should ask

questions to elicit the following information:

(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the right to trial by jury?

(4) Does the defendant understand that he or she is presumed innocent until found guilty? (5) Is the defendant aware of the permissible range or sentences and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Pa.R.Crim.P. 590, Comment.8 In Commonwealth. v. Yeomans, 24 A.3d

1044 (Pa. Super. 2011), this Court explained:

In order for a guilty plea to be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted and its consequences. This determination is to be made by examining the totality of the circumstances surrounding the entry of the plea. Thus, even though there is an omission or defect in the guilty plea colloquy, a plea of guilty will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had a full understanding of the nature and consequences of his plea and that he knowingly and voluntarily decided to enter the plea.

Yeomans, 24 A.3d at 1047 (Pa. Super. 2011) (citation omitted).

The longstanding rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. A person who elects to plead guilty is bound by the statements he makes in open court while under oath and may not later assert grounds for withdrawing the plea which contradict the statements he made at ____________________________________________

8The Comment also includes a seventh question, which is applicable only when a defendant pleads guilty to murder generally.

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his plea colloquy. . . . [A] defendant who elects to plead guilty has a duty to answer questions truthfully.

Id. “The 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. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc)

(citations and internal quotation marks omitted).

Instantly, our review of the written questionnaire and oral (on-the-

record) colloquy, both quite extensive, does not reveal any grounds for

challenging the validity of Appellant’s plea agreement. See Guilty Plea

Questionnaire, 4/11/16, at 1-10; N.T. Guilty Plea, 4/11/16, at 3-12. At the

time of the colloquy, Appellant was 35 years old, had obtained a GED, and

affirmed that he was able to read, write and understand English. Appellant

denied being under the influence of drugs or alcohol or taking any medication

in the last 24 hours. Appellant agreed to the Commonwealth’s facts

supporting the listed charges as contained in the affidavit of probable cause

attached to the criminal complaint. N.T. Guilty Plea, 4/11/16, at 9-11. With

respect to his BAC relevant for the various DUI offenses, Appellant stated that

it was 0.213%. Id. at 9 (affirming that his BAC was 0.213%). Appellant

agreed that his counsel told him the elements of each crime listed and that

the Commonwealth had to prove each of them. Appellant further stated that

no one promised or threatened him to plead guilty. He affirmed that he was

pleading guilty on his own volition and that he understood the terms and

consequences of doing so. In particular, Appellant agreed that he understood

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the consequences of relinquishing his right to a trial by a judge or a jury.

Appellant agreed that by pleading guilty he also was giving up his pretrial

rights. See Guilty Plea Questionnaire, 4/11/16, at 5-6 (consenting to

sacrificing his right to file pretrial motions, including a motion to suppress).

Further, Appellant agreed that at trial he would be presumed innocent until

proven guilty by the Commonwealth beyond a reasonable doubt. Critically,

Appellant also agreed that he was “satisfied with the advice and service” of

his counsel. Id. at 8. He agreed that his counsel left “the final decision to

[him]” and that he decided for himself to plead guilty. Id. He agreed that he

did not have any complaints about how his counsel represented him. Id.

Finally, Appellant once again affirmed that he committed each crime for which

he was pleading guilty and that his decision to plead guilty was final. Id.

Based upon our review of the record, Appellant’s claim that his guilty

plea was involuntary, unintelligent, or unknowing lacks merit, as it was belied

by his written questionnaire and oral colloquy. As stated, Appellant is bound

by the statements he made at the time of his guilty plea. Commonwealth

v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (A defendant is bound by

the statements made during the plea colloquy, and a defendant may not later

offer reasons for withdrawing the plea that contradict statements made when

he pleaded guilty). Accordingly, Appellant is not entitled to relief.9

9This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

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Order affirmed.

Judge Olson joins the memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2019

Given our conclusion that Appellant’s guilty plea was valid, we need not address whether counsel was ineffective for failing to file pretrial motions to exclude evidence of his BAC level.

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