Com. v. Gary, R.

• Court: Superior Court of Pennsylvania
• Decided: April 24, 2017
• Docket: Com. v. Gary, R. No. 1629 EDA 2015
• Status: Unpublished

Opinion

J-S06022-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RUDOLPH GARY : : Appellant : No. 1629 EDA 2015

Appeal from the PCRA Order May 15, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006515-2010

BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.: FILED APRIL 24, 2017

Appellant Rudolph Gary pro se appeals from the order entered May 15,

2015, denying his petition for collateral relief filed under the Post Conviction

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

The relevant facts and procedural history are as follows. Appellant, a

former police officer, personally engaged in a domestic dispute outside of his

ex-wife’s abode; his gun fired multiple bullets, killing Howard Williams and

injuring Indira Johnson in her leg. On April 25, 2012, Appellant entered a

negotiated guilty plea to third-degree murder and aggravated assault.1

Appellant was sentenced to an aggregate term of twenty-five to sixty years

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* Former Justice specially assigned to the Superior Court. 1 Respectively, 18 Pa.C.S. §§ 2502(c), 2702(a). J-S06022-17

of incarceration in accordance with the plea bargain. See Order, 4/25/2012.

Appellant filed no post-sentence motion or direct appeal from the judgment

of sentence. Appellant’s judgment of sentence became final thirty days

thereafter on May 25, 2012. See 42 Pa.C.S. § 9545(b)(3).

Appellant timely filed pro se his first PCRA petition on May 21, 2013,

and the PCRA court appointed counsel. In December 2014, appointed

counsel filed a “no merit” letter and a petition to withdraw.2 In January

2015, the court issued notice of intent to dismiss without an evidentiary

hearing pursuant to Pa.R.Crim.P. 907. In February 2015, Appellant filed a

response objecting to counsel’s “no merit” letter. In May 2015, the PCRA

court dismissed the petition as without merit and granted counsel’s petition

to withdraw. In June 2015, Appellant timely filed pro se a notice of appeal

and subsequent court-ordered 1925(b) statement. In February 2016, the

PCRA court issued a responsive opinion.

On appeal, Appellant pro se raises the following issues:

I. Whether [plea] counsel for [Appellant] exhibited [i]neffective [a]ssistance of counsel which in the circumstances of the particular case so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place?

II. Whether the PCRA [c]ourt erred in accepting the petition without an evidentiary hearing, where [Appellant] provided exculpatory evidence of a key prosecution witness admitting that ____________________________________________

2 See Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213, 215 (Pa. Super. 1988).

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she provided false testimony at the preliminary hearing and is now recanting that testimony. [sic] Testimony that was instrumental in [Appellant] accepting a plea to crimes of which he is legally innocent?

III. Whether the PCRA [c]ourt erre[d] in accepting the petition without an evidentiary hearing where [Appellant’s] plea was rendered unknowing, involuntary and unintelligent as a result of [plea] counsel’s ineffectiveness?

IV. Whether [plea] counsel erroneously informed [Appellant] during plea negotiations of a mandatory sentence for [t]hird [d]egree [m]urder?

V. Whether [plea] [c]ounsel’s failure to interview Commonwealth and/or [d]efense witnesses, failure to investigate possible defenses, and defense favorable evidence, left counsel unprepared for trial. Leading to erroneous advice and animosity towards the defendant’s illegally induced plea?

Appellant's Br. at 3.

Our standard of review is as follows:

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. Rainey, 928 A.2d 215, 223 (Pa. 2007). To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2)[.]

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal citations

and quotation marks omitted).

“[A]fter a defendant has entered a plea of guilty, the only cognizable

issues in a post-conviction proceeding are the validity of the plea of guilty

and the legality of the sentence.” Commonwealth v. Rounsley, 717 A.2d

537, 538 (Pa. Super. 1998) (citing Commonwealth v. Martinez, 539 A.2d

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399 (Pa. Super. 1988)). However, an ineffective assistance of counsel claim

in connection with advice rendered regarding whether to plead guilty is

cognizable under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii). See

Commonwealth v. Barndt, 74 A.3d 185, 191 (Pa. Super. 2013).

Appellant asserts ineffective assistance of plea counsel on several

grounds.

[C]ounsel is presumed effective, and [appellant] bears the burden of proving otherwise. To prevail on an ineffectiveness claim, appellant must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) [appellant] suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error. Failure to prove any prong of this test will defeat an ineffectiveness claim. [I]f a claim fails under any necessary element of the Strickland test, the court may proceed to that element first. When an appellant fails to meaningfully discuss each of the three ineffectiveness prongs, he is not entitled to relief, and we are constrained to find such claims waived for lack of development. Further, counsel cannot be deemed ineffective for failing to raise a meritless claim.

Fears, 86 A.3d at 804 (internal citations and quotation marks omitted); see

also Commonwealth v. Flanagan, 854 A.2d 489, 502 (Pa. 2004) (noting

that appellate review of an allegation that counsel was ineffective in

connection with a guilty plea “dovetails with the arguable merit/prejudice

requirements”). In addition,

Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea. In determining whether a guilty plea was entered knowingly and intelligently, a reviewing court must

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review all of the circumstances surrounding the entry of that plea.

Fears, 86 A.3d at 806–07 (quoting Commonwealth v. Allen, 557 Pa. 135,

732 A.2d 582, 587 (1999) (internal citations omitted)). Thus, we will

proceed by addressing the PCRA court’s findings with respect to Appellant’s

claims of ineffective assistance of counsel.

First, Appellant contends that counsel’s failure to advise him of the

possibility of a “self-defense instruction” rendered his plea involuntary or

unintelligent. Appellant's Br. at 6. Second, Appellant contends that

unspecified “erroneous legal advice” provided by counsel caused him to

enter an involuntary or unknowing plea. See id. at 8. Third, Appellant

contends that counsel’s unpreparedness, failure to investigate, and incorrect

guidance on the applicable sentence range for third-degree murder, induced

him to enter an involuntary guilty plea. See id. at 9. Fourth, Appellant

contends that but for plea counsel’s failure to interview Ms. Johnson and

discover her civil suit statement, he would not have pleaded guilty and

would have demanded a trial. See id. at 10.

While this Court is willing to construe liberally materials filed by a pro

se litigant, we note that Appellant is not entitled to any particular advantage

because he lacks legal training. Commonwealth v. Rivera, 685 A.2d

1011, 1013 (Pa. Super. 1996). Indeed, “[c]laims of ineffective assistance of

counsel are not self-proving.” Commonwealth v. Wharton, 811 A.2d 978,

986–87 (Pa. 2002). Mere abstract or boilerplate allegations of

ineffectiveness do not discharge Appellant’s burden of proving

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ineffectiveness. Commonwealth v. Bond, 819 A.2d 33, 40 (Pa. 2002). A

petitioner who fails to develop a claim of ineffective assistance of counsel will

not prevail in the face of the presumption that counsel was competent.

Commonwealth v. Pierce, 786 A.2d 203, 221 (Pa. 2001). “Such an

undeveloped argument, which fails to meaningfully discuss and apply the

standard governing the review of ineffectiveness claims, simply does not

satisfy Appellant's burden of establishing that he is entitled to any relief.”

Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001).

Appellant’s brief fails to develop any meaningful argument regarding

his claim of ineffective assistance of counsel or cite relevant authority to

support his claims of ineffective assistance of counsel. See Pa.R.A.P. 2119.

Accordingly, we could suppress his appeal on that basis. See In re Ullman,

995 A.2d 1207, 1211–12 (Pa. Super. 2010) (noting that this Court may

quash or dismiss an appeal if the appellant fails to conform to the

requirements set forth in the Pennsylvania Rules of Appellate Procedure);

Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa. Super. 2005)

(laying out the standard forms that appellate briefs shall follow); see also

Pa.R.A.P. 2111(a)(1)-(11); Pa.R.A.P. 2114-2119 (specifying in greater detail

the material to be included in briefs on appeal).

Notwithstanding, we note briefly that Appellant’s arguments are

without merit. Here, the PCRA court conducted a full colloquy. Appellant

accepted the facts presented by the Commonwealth. See Notes of

Testimony (N.T.), 4/25/2017, at 12-15. The court informed Appellant that

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“when you enter into a guilty plea, you waive, you give up, the right to

present any defense.” Id. at 11. Appellant acknowledged that he

understood his plea bargain enabled him to secure a lower sentence and

forfeited the right to a trial or defense. See id. at 12. Here, Appellant

intelligently waived his right to assert any defense, such as self-defense, by

pleading guilty since he was giving up his rights to a trial. See id. at 9.

Moreover, plea counsel had an objectively reasonable basis for not

raising self-defense. The Commonwealth was prepared to call numerous

witnesses in support of its case against Appellant for first-degree murder.

See PCRA Ct. Op., 2/22/2016, at 3-4. These witnesses would have testified

that when people asked Appellant to put the gun down, he replied “I don’t

care,” pointed the gun at the victim and fired at him repeatedly. See id. at

3. Plea counsel, an experienced trial lawyer, negotiated a strategic plea on

Appellant’s behalf to a third degree murder charge, and Appellant received a

reduced sentence for a term of years, which given the circumstances was

preferable to a possible life or death sentence. Id. at 4. By pleading guilty

to third degree murder, Appellant avoided a trial for first degree murder and

potential life sentence.

Appellant was informed of the applicable sentencing guidelines on the

record. See N.T., 4/25/2012, at at 5-9. Appellant acknowledged having

discussed his options with his family and indicated that his plea was “totally

voluntary.” Id. at 10. He stated he was satisfied with plea counsel’s

representation. See id. at 11. He also understood that the facts presented

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by the Commonwealth at his guilty plea could result in a lifetime sentence or

even the death penalty if found guilty of first degree murder. See id. at 12-

15. Because Appellant was aware of the facts underlying his offense and the

nature of his plea, the trial court did not err in accepting his plea. See

Fears, 86 A.3d at 810. Therefore, Appellant fails to establish counsel’s

actions or inactions prejudiced him and caused him to enter a plea that was

unknowing or manifestly unjust.

Here, the PCRA court determined that Appellant’s claims of

ineffectiveness were vague and belied by the guilty plea colloquy. See PCRA

Ct. Op. at 3. Its findings are supported by the record. As noted by the

PCRA court, “[t]he desire of an accused to benefit from a plea bargain which

he requests his counsel to arrange has been viewed as a ‘strong indicator’ of

the voluntariness of the plea.” Id. (quoting Commonwealth v. Myers,

642 A.2d 1103, 1106 (Pa. Super. 1994) (citations omitted)). We agree.

Accordingly, we discern no abuse of discretion.

Appellant also contends that the civil complaint filed by Indira Johnson

against Appellant and the City of Philadelphia constitutes “newly discovered

evidence.” Appellant's Br. at 7; see also Johnson v. Gary, EDF No. 1, No.

12-cv-02224 (E.D. Pa. 4/24/2012) (“Pl. Compl.”). According to Appellant,

the discrepancies between Indira Johnson’s statements to the police

compared with her civil complaint against Appellant would support a

potential defense.

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Here, Appellant waived the right to present evidence at trial by

pleading guilty to the facts as stated during his colloquy. We reiterate that

the only cognizable issues in a post-conviction proceeding are the validity of

the plea of guilty and the legality of the sentence. See Rounsley, 717 A.2d

at 538.3 Accordingly, Appellant cannot claim collateral relief on this basis.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/24/2017

3 Further, Appellant’s claim is without merit, as the evidence would only be admissible to impeach Ms. Johnson’s statements. See Commonwealth v. Bonaccurso, 625 A.2d 1197, 1199 (Pa. Super. 1993) (rejecting after- discovered evidence that would “merely impeach credibility” of a witness) (quoting Commonwealth v. Schuck, 164 A.2d 13, 17 (Pa. 1960), cert. denied, 368 U.S. 884 (1961)).

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