Com. v. Cimino, W.

• Court: Superior Court of Pennsylvania
• Decided: January 21, 2021
• Docket: 1807 WDA 2019
• Status: Unpublished

Opinion

J-S43034-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : WAYNE MICHAEL CIMINO : : Appellant : No. 1807 WDA 2019

Appeal from the PCRA Order Entered November 13, 2019 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0001697-2018

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

MEMORANDUM BY KING, J.: FILED JANUARY 21, 2021

Appellant, Wayne Michael Cimino, appeals from the order entered in the

Washington County Court of Common Pleas, which denied his first petition

filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

The relevant facts and procedural history of this case are as follows.

According to the affidavit of probable cause:

On July 1, 2018 at approximately 2110 hours…[Patrolman] Broda along with [Sergeant] Popeck were dispatched to 809 West Pike St. for a male/female domestic. Prior to arrival Control advised that the male is armed with a firearm and is said to still be inside the residence. Officers arrived on scene at approximately 2114 hours and met the victim in a parking lot at the corner of West Pike St. and N. Shady located in Chartiers Twp. The victim and [Appellant] are husband and wife.

The victim, [Appellant’s wife,] was visibly upset as she was ____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. J-S43034-20

seen to be hysterical and crying. The victim stated that she and [Appellant] had engaged in a verbal argument in their residence at 809 West Pike St. While arguing [Appellant] pushed [the victim] down the steps. [The victim] was able to catch herself and confronted [Appellant] as to why he pushed her. The two began smacking each other back and forth as stated by the victim. [Appellant] then smacked the victim in the back of the head so hard that she stated she saw light and fell to the ground.

The victim then called for her 14 [year old] daughter to call 911 and they went outside with [Appellant] following behind. After a few moments of arguing outside [Appellant] and the victim went back inside. While inside [Appellant] allegedly stopped at his gun safe and retrieved his assault rifle and put it in the face of the victim. The two exchanged words and [Appellant] then pulled out a handgun and also stuck it in the face of the victim. The handgun was described as a small semi-automatic with a silver slide. At one point [Appellant] grabbed a gold in color rifle bullet and placed it in his mouth and said to the victim “Let’s all eat bullets today.”

After speaking with both parties the victim was brought inside the residence and was able to verify the black in color assault rifle that was located inside the safe to be the one that was pointed at her. At this time the handgun was not located inside the gun safe. When the victim later returned home she called the police back and advised that she located the handgun that she stated was the handgun that was also pointed at her. Both firearms were confiscated by police, packaged and placed into evidence.

The victim stated to officers that she feared for her life when [Appellant] had pointed two firearms at her. The victim also stated that [Appellant] had been drinking all day which also made her fearful for what he may do being he was under the influence. The victim[’]s juvenile daughter and son were present at the time of the occurrence of the incident. The daughter witnessed [Appellant] smack the victim in the back of the head. Neither children were present at the time when the firearms were brought out.

(Affidavit of Probable Cause, 7/2/18, at 1).

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On October 12, 2018, Appellant entered a guilty plea to aggravated

assault, simple assault, and recklessly endangering another person. In

exchange for Appellant’s plea, the Commonwealth withdrew a charge of

harassment and agreed to offer a house arrest and probationary sentence

instead of incarceration. The court conducted an oral colloquy to confirm

Appellant’s plea was knowing, intelligent, and voluntary. (See N.T. Guilty

Plea, 10/12/18, at 6). Appellant stipulated to the factual basis in the affidavit

of probable cause, and he acknowledged that sufficient facts existed to

warrant his guilty plea. (Id. at 7). In addition to the oral colloquy, Appellant

signed and initialed a written guilty plea agreement.

The court accepted the guilty plea and sentenced Appellant to twenty-

three (23) months in the Intermediate Punishment Program with the first

twelve (12) months to be served on electronic home monitoring. The court

also imposed a consecutive term of two (2) years of probation. Appellant did

not pursue a direct appeal.

On December 10, 2018, Appellant timely filed through counsel his first

PCRA petition, alleging plea counsel’s ineffectiveness in connection with the

entry of his guilty plea. The PCRA court held an evidentiary hearing on August

20, 2019. On November 13, 2019, the court denied PCRA relief. Appellant

timely filed a notice of appeal on December 6, 2019. That same day, the

PCRA court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his Rule

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1925(b) statement on December 20, 2019.

Appellant raises one issue on appeal:

Whether the PCRA court erred in dismissing Appellant’s petition for post-conviction relief where plea counsel provided ineffective assistance by failing to give Appellant adequate information which [led] Appellant to unknowingly and unintelligently enter a guilty plea?

(Appellant’s Brief at 4).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74

(2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). Traditionally,

credibility issues are resolved by the trier of fact who had the opportunity to

observe the witnesses’ demeanor. Commonwealth v. Abu-Jamal, 553 Pa.

485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145

L.Ed.2d 38 (1999). “A PCRA court passes on witness credibility at PCRA

hearings, and its credibility determinations should be provided great deference

by reviewing courts.” Commonwealth v. Johnson, 600 Pa. 329, 356-357,

966 A.2d 523, 539 (2009).

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Appellant argues that plea counsel failed to provide accurate information

regarding the elements of aggravated assault. (See Appellant’s Brief at 13).

Specifically, Appellant avers counsel did not advise him that the specific intent

element for aggravated assault in his case required proof that the gun used

was loaded. (Id. at 23). Appellant insists that a “defendant absolutely cannot

possess the specific intent to cause serious bodily injury to a person by

pointing an unloaded gun at that person.” (Id. at 18). Appellant further

claims that he merely “pointed a potentially unloaded gun at his wife while

making threats.” (Id.) Appellant concludes his guilty plea was unknowing,

unintelligent, and involuntary due to counsel’s improper advice. We disagree.

Pennsylvania law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is required

to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had

no reasonable strategic basis for his action or inaction; and, (3) 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, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong

of the test for ineffectiveness will cause the claim to fail. Williams, supra.

“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.

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Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (internal citation 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.

Pennsylvania law does not require the defendant to “be pleased with the

outcome of his decision to enter a plea of guilty[; a]ll that is required is that

his decision to plead guilty be knowingly, voluntarily and intelligently made.”

Id. at 528-29.

A guilty plea will be deemed valid if the record demonstrates the

defendant had a full understanding of the nature and consequences of his plea

such that he knowingly and intelligently entered the plea of his own accord.

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006). A defendant

is presumed to be aware of what he is doing when he enters a guilty plea, and

the defendant bears the burden to prove otherwise. Commonwealth v.

Pollard, 832 A.2d 517, 523 (Pa.Super. 2003). “A person who elects to plead

guilty is bound by the statements he makes in open court while under oath

and he may not later assert grounds for withdrawing the plea which contradict

the statements he made at his plea colloquy.” Id.

The Pennsylvania Rules of Criminal Procedure mandate that pleas be

taken in open court and require the court to conduct an on-the-record colloquy

to ascertain whether a defendant is aware of his rights and the consequences

of his plea. Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.Super.

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2002) (citing Pa.R.Crim.P. 590). Specifically, the court must affirmatively

demonstrate the defendant understands: (1) the nature of the charges to

which he is pleading guilty; (2) the factual basis for the plea; (3) his right to

trial by jury; (4) the presumption of innocence; (5) the permissible ranges of

sentences and fines possible; and (6) that the judge is not bound by the terms

of the agreement unless he accepts the agreement. Commonwealth v.

Watson, 835 A.2d 786, 796-97 (Pa.Super. 2003). Nevertheless, “nothing in

[Rule 590] would preclude the use of a written colloquy that is read,

completed, signed by the defendant, and made part of the record of the plea

proceedings. This written colloquy would have to be supplemented by some

on-the-record oral examination.” Pa.R.Crim.P. 590 Comment.

The Pennsylvania Crimes Code defines the offense of aggravated

assault, in relevant part, as follows:

§ 2702. Aggravated assault

(a) Offense defined.—A person is guilty of aggravated assault if he:

* * *

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;

18 Pa.C.S.A. § 2702(a)(4).

“When no … bodily injury results from the accused’s actions, the

Commonwealth must prove that he attempted to cause another to suffer such

injuries.” Commonwealth v. Lopez, 654 A.2d 1150, 1154 (Pa.Super. 1995)

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(citations omitted). For aggravated assault purposes, an “attempt” is found

where an “accused who possesses the required, specific intent acts in a

manner which constitutes a substantial step toward perpetrating a serious

bodily injury upon another.” Commonwealth v. Gray, 867 A.2d 560, 567

(Pa.Super. 2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (2005). When

evaluating whether a defendant acted with the requisite intent to sustain an

aggravated assault conviction, our courts employ a totality of the

circumstances test. Commonwealth v. Fortune, 68 A.3d 980 (Pa.Super.

2013) (en banc), appeal denied, 621 Pa. 701, 78 A.3d 1089 (2013) (describing

various factors that courts may consider to decide whether defendant

possessed intent to inflict serious bodily injury). This Court has held sufficient

evidence existed to sustain a defendant’s conviction for aggravated assault

under Section 2702(a)(4), even where a firearm was unloaded. See

Commonwealth v. Smith, 626 A.2d 614 (Pa.Super. 1993) (holding evidence

was sufficient to sustain appellant’s conviction for aggravated assault where

appellant pointed gun at victim with finger on trigger, grabbed her by hair,

and pushed her to floor; even though gun was unloaded, clip of gun was in

appellant’s pocket and he threatened to shoot victim; appellant only stopped

his assault when one of his wife’s co-workers intervened).

Instantly, we initially observe that Appellant testified at the PCRA

hearing and did not assert that the firearms at issue were unloaded. Instead,

Appellant denied ever using any firearm during this assault. (See N.T. PCRA

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Hearing, 8/20/19, at 11-12). Nevertheless, at the guilty plea hearing,

Appellant stipulated to the facts set forth in the affidavit of probable cause,

which expressly detailed his use of two firearms in this case. As well, Appellant

completed and signed an extensive written guilty plea colloquy, containing the

following questions and answers:

6. Have you discussed with your attorney the elements of each charged offense? Yes.

7. Have you discussed with your attorney the factual basis of each charged offense? Yes.

8. Have you discussed with your attorney how the facts in your case prove the elements of each charged offense? Yes.

(Guilty Plea Colloquy, 10/12/18, at 2). Appellant is bound by the statements

he made in the written and oral plea colloquies. See Pollard, supra.

Likewise, Appellant testified at the PCRA hearing that at the time of the

plea he was satisfied with the services of his attorney, and that he discussed

the elements of each offense with his attorney. (See N.T. PCRA Hearing,

8/20/19, at 31). Further, Appellant acknowledged that he discussed the

factual basis of each offense with his attorney, and how the facts in his case

proved the elements of each offense. Id.

Moreover, Appellant fails to acknowledge that sufficient evidence for

aggravated assault can exist in situations where a defendant uses an unloaded

gun, depending on the totality of the circumstances. See Smith, supra. See

also Fortune, supra. The facts as stipulated to in the affidavit of probable

cause showed that Appellant pointed both an assault rifle and a semi-

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automatic handgun at the victim’s face, after he had physically assaulted her

to the point where she fell to the ground so hard that she saw a “light.” (See

Affidavit of Probable Cause, 7/2/18, at 1). After placing two different guns in

the victim’s face, Appellant placed a rifle bullet in his own mouth and said

“Let’s all eat bullets today.” (See id.) Under the totality of the circumstances,

we cannot agree with Appellant that there was an insufficient factual basis to

support his guilty plea, even if the firearms were not loaded. For all of these

reasons, Appellant’s ineffectiveness claim lacks arguable merit. See Kimball,

supra.

Additionally, at the PCRA hearing, Appellant testified to a number of

reasons he entered his plea, including, inter alia, his intent to avoid a jail term

given his physical condition. (See N.T. PCRA Hearing at 41). Specifically,

Appellant stated that one of the reasons he pled guilty was because “[a]t the

time [he] had an immobilizer collar around [his] neck. [Appellant] had neck

surgery. And with the potential of facing, I believe it was 6 to 36 months in a

state penitentiary, if I remember correctly, I certainly would not fare well there

for a day, let alone years.” (Id).

Likewise, counsel explained why he advised Appellant that it would be

in his best interest to enter a plea of guilty, as follows:

I had concerns about [Appellant’s] ability to testify, to testify clearly, and to testify convincingly. His physical ailments also posed a barrier. [Appellant] was in a neck immobilizer. … He walked with the assistance of a cane. He had difficulty sleeping. Probably difficulty performing normal life functions at that time. [...] Walking into the

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courtroom we had an offer of a county jail sentence. After discussions with [the prosecutor], his ability to contact [the victim] with her attorney, they then agreed to reduce the offer and permit [Appellant] to recover at home as part of a house arrest agreement. That seemed to be in [Appellant’s] best interest at the time.

(N.T. PCRA Hearing at 83). Counsel also stated he was “concerned about

[Appellant’s] ability to participate and withstand a trial,” and “about

[Appellant’s] ability to testify credibly in the face of what had been a clear

story asserted by the victim.” (Id. at 85). Counsel made clear that Appellant

was “in support” of the plea agreement because Appellant would be able to

“continue his recovery from his physical injuries.” (Id. at 79). Counsel further

explained that Appellant “would probably be facing jail time in the state

penitentiary” if Appellant chose to proceed to trial, and that Appellant “was

very clear that given his physical condition that he would not look at jail time

under any prospect.” (Id. at 67).

In exchange for his guilty plea, the Commonwealth reduced its initial

offer of eleven and one-half (11½) to twenty-three (23) months’ incarceration

to a probationary sentence with house arrest. (Id. at 66). Under these

circumstances, counsel had a reasonable basis for advising Appellant to plead

guilty. See Kimball, supra. Based upon the foregoing, the record supports

the PCRA court’s denial of relief. See Conway, supra; Boyd, supra.

Accordingly, we affirm.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/21/2021

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