Com. v. Cross, D.

Opinion

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. :

:

DERRICK CROSS A/K/A JARED AUSTIN, : No. 3280 EDA 2012 :

Appellant :

Appeal from the PCRA Order, November 5, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0306931-2004

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND WECHT, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 08, 2014 Derrick Cross a/k/a Jared Austin1 appeals from the order of November 5, 2012, dismissing his PCRA2 petition. We affirm.

On October 4, 2006, appellant pled guilty to third degree murder, a

instrument o

approximately five times by appellant, including in the back, buttocks, and genitals. Appellant was sentenced to 20 t

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real name is Derrick Cross. (Notes of testimony, 10/26/04 at 19.) 2 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

degree murder, and consecutive sentences of 2½ to 5 years for VUFA and PIC, for an aggregate sentence of 25 to 50 years.

A post-sentence motion to withdraw his guilty plea was denied;

however, the trial court did modi by reducing his minimum sentences on the charges of VUFA and PIC to one year. On October 4, 2006, appellant was granted limited PCRA relief, and was permitted to file a nunc pro tunc appeal from the judgment of sentence. In an unpublished memorandum filed September 10, 2007, this court affirmed judgment of sentence, and on May 20, 2008, our supreme court denied allowance of appeal. Commonwealth v. Austin, 938 A.2d 1107 (Pa.Super. 2007) (unpublished memorandum), appeal denied, 953 A.2d 539 (Pa. 2008).

On July 30, 2008, appellant filed a timely pro se PCRA petition, alleging that trial counsel, Jay Gottlieb, Esq., was ineffective for failing to investigate a self-defense claim; for advising appellant that he could receive the death penalty if he went to trial; and for waiving his right to a pre-sentence investigation. Barbara A. McDermott, Esq., was appointed to represent appellant, and filed a Turner/Finley - to withdraw.3 Subsequently, Attorney McDermott was elected to the Philadelphia County Court of Common Pleas, and current counsel,

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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Robert M. Gamburg, Esq., entered his appearance.4 On August 27, 2012, Attorney Gamburg filed a petition to withdraw, incorporating Attorney McDermott -merit letter. On October 1, 2012, the PCRA court issued notice pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its

proceedings. The PCRA court indicated that it acc Turner/Finley no-merit letter and found that the claims raised in

not specifically resolve the petition to withdraw. (Docket #D23.) On November 5, 2012, ap On December 4, 2012, appellant, still represented by Attorney Gamburg, filed a timely notice of appeal. On June 11, 2013, appellant was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., by July 2, 2013, and appellant timely complied. The PCRA court filed a Rule 1925(a) opinion on October 2, 2013.

4 There appears to be some confusion as to whether Attorney Gamburg was court-appointed or privately retained. The PCRA court opinion indicates that Attorney Gamburg was retained; however, the November 5, 2012 order

pro se basis or with retained counsel. In Forma Pauperis at 2.) In his petition for leave to withdraw filed with this court and in his brief on appeal, Attorney Gamburg states that he was retained. There is a docket

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On November 19, 2013, Attorney Gamburg filed a petition to withdraw

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as counsel and accompan Anders On January 16, 2014,

appellant filed a pro se Anders brief and petition to withdraw, essentially alleging ineffectiveness of PCRA counsel for failing to conduct a thorough, diligent review of the record, and instead -merit letter.6

Initially, we recite our standard of review:

5 Attorney Gamburg has filed an Anders brief rather than a Turner/Finley no-merit letter. Anders v. California, 386 U.S. 738 (1967). On an appeal from the denial of a PCRA petition, a Turner/Finley letter is the appropriate filing. However, we may accept an Anders brief instead. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied Anders brief provides greater protection to the defendant, we may accept an Anders brief in lieu of a Turner/Finley See also Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (guiding Anders

find that he has complied substantially with the Turner/Finley requirements. Hence, we overlook his procedural misstep. 6 We note that Attorney Gamburg failed to attach a copy of the letter to

going forward. See Commonwealth v. Friend, 896 A.2d 607, 615

petitioner a copy of the application to withdraw, which must include (i) a - t advising the PCRA petitioner that, in the event the [] court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the

court-appointed counsel, now Judge, McDermott, did advise appellant of his right to proceed pro se or with privately retained counsel. In addition, this court issued a corrective order advising appellant that he had 30 days to file a response pro se or through privately retained counsel; and, in fact, appellant did file a pro se petition.

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denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error.

Commonwealth v. Halley, 582 Pa. 164, 870 A.2d

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).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), appeal denied, 940 A.2d 365 (Pa. 2007).

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute.

Commonwealth v. Jordan, 772 A.2d 1011, 1014

discretion to decline to hold a hearing if the

support either in the record or other evidence. Id.

It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.

Commonwealth v. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238, 1239-1240 (Pa.Super. 2004).

[W]e begin with the presumption that counsel was effective. A claimant establishes ineffective assistance of counsel when he demonstrates that [1] the underlying claim is of arguable merit;

[2]

grounded on any reasonable basis designed to effe

[3]

to the client. For an action (or inaction) by counsel

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to be considered prejudicial to the client, there must be a reasonable probability that the outcome of the proceedings would have been different. All three prongs of this test must be satisfied. If an appellant fails to meet even one prong of the test, his conviction will not be reversed on the basis of ineffective assistance of counsel.

Commonwealth , 849 A.2d 243, 249 (Pa.Super. 2004), appeal denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks omitted).

effective counsel extends to the plea process, as well as during trial

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. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether

Commonwealth v. Allen, 833 A.2d 800, 802 (Pa.Super. 2003), quoting Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002) (internal citations omitted).

In his first issue on appeal, appellant argues that trial counsel was ineffective for failing to investigate a self-defense claim prior to advising him to plead guilty. Appellant gave a statement to police in which he claimed that the victim, Gay, was reaching for something. (Notes of testimony, 10/26/04 at 13.) According to appellant, he thought Gay was reaching for a gun and that is why he shot him. (Id. at 14.)

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The underlying issue, that appellant had a viable self-defense claim, lacks arguable merit. The police recovered six cartridge casings from the scene, and the victim was shot five times, including in the back and buttocks. (Id. at 10-11.) The victim was unarmed. In fact, the victim and appellant had been friends prior to this incident. In addition, the victim was shot in the middle of the street, and appellant clearly violated his duty to retreat. See 18 Pa.C.S.A. § 505(b)(2)(ii) (use of deadly force not justifiable if the actor knows that he can avoid the necessity of using such force with complete safety by retreating). Furthermore, appellant agreed to waive all available defenses when he pled guilty to third degree murder. See Commonwealth v. Montgomery, 401 A.2d 31 of guilty constitutes a waiver of all nonjurisdictional defects and defenses. When a defendant pleads guilty, he waives the right to challenge anything

omitted).

The second issue raised is that trial counsel was ineffective for erroneously advising appellant that he could receive the death penalty if he insisted on going to trial. There is nothing in the record to support such an allegation. The Commonwealth never filed notice of intent to seek the death penalty in this case. At the guilty plea hearing, appellant testified that he was entering the plea of his own free will and that no one had made any threats or promises to force him to plead guilty. (Notes of testimony,

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10/26/04 at 7.) Appellant is bound by the statements he made, under oath, at his guilty plea hearing. Commonwealth v. Stork, 737 A.2d 789, 790- 791 (Pa.Super. 1999), appeal denied, 764 A.2d 1068 (Pa. 2000), citing Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super. 1998). In addition, at the December 2, 2004 hearing on post-sentence motions, including -sentence motion to withdraw his guilty plea, appellant never alleged that his attorney told him he faced the death penalty unless he pled guilty. It is clear that appellant was simply disappointed with his sentence, which is not a basis for withdrawal. (Notes of testimony, 12/2/04 at 3.) The trial court asked appellant if he had anything to say and he said no. (Id. at 5.)

Most importantly, in addition to the counseled motion to withdraw his guilty plea, appellant filed a pro se motion and memorandum of law, in

pro se motion to

modify sentence nunc pro tunc

his

Commonwealth actually supported a charge of first degree murder, which Austin, supra at 2. By entering a

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guilty plea to third degree murder, appellant avoided a very possible life sentence. Id.

claims trial counsel was ineffective for waiving his right to a pre-sentence id waive his right

to a PSI report and mental health evaluation. (Notes of testimony, 10/26/04 at 17.) However, appellant cannot show how he was prejudiced where the trial court had sufficient information to render an appropriate sentence. Attorney Gott good character. (Id. at 17-18.) It was established that appellant had no prior record, and no other open cases. (Id. at 18-19.) Attorney Gottlieb tory. (Id. at 18.) Appellant also exercised his right of allocution and expressed his remorse for killing the victim. (Id. for their forgiveness, which the trial court described as a good first step. (Id. at 24-25.) In sentencing appellant, the trial court mentioned his remorse and lack of a prior record as mitigating factors. (Id. at 25-26.)

lack of employment history. (Id.)

It is clear that despite the lack of a PSI report, the trial court was given sufficient evidence to determine an appropriate sentence. See Commonwealth v. Wilkerson

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is not per se ineffectiveness for counsel to fail to request a presentence report where, as here, the court is familiar with the defendant and heard

standard range sentence. There is no indication that a PSI report would have resulted in a more lenient sentence. This claim fails.

In his pro se appellant argues Attorney Gamburg is ineffective for failing to thoroughly review the record. However, it is well established that allegations of PCRA

appeal. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc) (citations omitted). Furthermore, for the reasons discussed supra, we hav ineffectiveness raised in his PCRA petition are without merit.

Appellant raises several additional issues of trial counsel ineffectiveness in his pro se response. Appellant claims that Attorney Gottlieb was ineffective for failing to file a pre-sentence motion to Anders brief and

asked counsel to file a pre-sentence motion to withdraw guilty plea. In addition, as stated above, appellant waived his right to a PSI and proceeded immediately to sentencing.

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Appellant also claims that the trial court failed to give an adequate definition of malice during the guilty plea colloquy. (Id. at 5-6.) This claim is waived, as it could have been brought on direct appeal. 42 Pa.C.S.A. § 9544(b). Furthermore, the facts as related by the Commonwealth obviously established malice, where appellant shot the decedent five times including in the back.

Finally, appellant argues that the written guilty plea colloquy, which

plead guilty, I am giving up the right to defend my case. I cannot come back to court later and say that I was not guilty. Once I plead guilty, I can

According to appellant, this statement is in conflict with the case law holding that a pre-sentence motion for withdrawal of a guilty plea should be liberally allowed and granted for any fair and just reason. Commonwealth v. Elia, 83 A.3d 254, 261-262 (Pa.Super. 2013) (citations omitted).

This claim is both waived and patently meritless. This claim could have been raised on direct appeal and is not cognizable in a PCRA proceeding. By pleading guilty, appellant waived all non-jurisdictional defects and defenses. In addition, appellant did not file a pre-sentence motion to withdraw his plea, so the line of cases discussing the liberal standard for pre-sentence withdrawal of a guilty plea is inapplicable. At any

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rate, the written guilty plea colloquy form is simply trying to impress upon defendants the rights they are giving up by pleading guilty and the finality of the plea. It is not an inaccurate statement of the law.

PCRA petition, as well as those raised in his pro se response to PCRA

our own independent review of the record in this case, we can discern no

petition to withdraw petition.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/8/2014