Com. v. Murphy, D.

• Court: Superior Court of Pennsylvania
• Decided: June 15, 2021
• Docket: 1199 MDA 2020
• Status: Unpublished

Opinion

J-S10011-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID NORMAN MURPHY : : Appellant : No. 1199 MDA 2020

Appeal from the PCRA Order Entered August 21, 2020 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001437-2018, CP-54-CR-0001884-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID NORMAN MURPHY : : Appellant : No. 1200 MDA 2020

Appeal from the PCRA Order Entered August 21, 2020 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001437-2018, CP-54-CR-0001884-2017

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.: FILED JUNE 15, 2021

David Norman Murphy (Appellant) appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S10011-21

On October 14, 2019, Appellant entered negotiated guilty pleas at

multiple docket numbers. At docket CR-1884-2017 (1884-2017), Appellant

pled guilty to one count of theft of services,1 relating to the tampering of a

gas meter owned by UGI Gas Utilities (UGI). At docket CR-1437-2018

(1437-2018), Appellant pled guilty to one count of possession of drug

paraphernalia and four counts of possession with intent to deliver. 2 That

same day, the court sentenced Appellant at both docket numbers to the

negotiated aggregate sentence of 4½ to 10 years of incarceration. Appellant

did not seek direct review of his sentence.

On November 4, 2019, Appellant filed, pro se, his first PCRA petition

alleging ineffective assistance of counsel. The trial court denied Appellant’s

petition as premature, noting that a PCRA petition can only be filed after the

petitioner’s judgment of sentence becomes final. PCRA Court Order,

11/8/19; see also 42 Pa.C.S.A. § 9545(b)(1) (PCRA petitions “shall be filed

within one year of the date the judgment becomes final” (emphasis

added)); Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (“A

PCRA court lacks jurisdiction to consider a PCRA petition when a petitioner’s

judgment is not final.”).

1 18 Pa.C.S.A. § 3926(a)(1).

2 35 P.S. §§ 780-113(a)(30), (32).

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On December 19, 2019, Appellant filed his second pro se PCRA

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

on February 21, 2020. Included in Appellant’s petitions were requests for

discovery. Specifically, at docket 1884-2017, Appellant argued the

Commonwealth “never had any evidence of the value of the services

[Appellant] was alleged to have stolen [from UGI],” and sought permission

to conduct discovery to determine the specific value of gas stolen. Amended

PCRA Petition, 2/24/20, at 3 ¶21.

At docket 1437-2018, Appellant requested leave to conduct discovery

because “the Commonwealth failed to properly execute the search warrant

rendering the evidence inadmissible.” Amended PCRA Petition (1437-2018),

2/24/20, at 3 ¶19. Appellant sought body camera (body cam) footage from

the Pennsylvania State Police (PSP) to support his claim that the PSP

violated the knock-and-announce rule.3 The PCRA court denied Appellant’s

requests for discovery on April 8, 2020. That same day, the court issued

notice of its intent to dismiss Appellant’s petitions pursuant to Rule 907 of

the Pennsylvania Rules of Criminal Procedure. Appellant filed a response to

the court’s notice, and, upon consideration of his response, the court

3 The knock-and-announce rule “requires that police officers announce their

identity, purpose and authority and then wait a reasonable amount of time for the occupants to respond prior to entering any private premises” to execute a search warrant. Commonwealth v. Frederick, 124 A.3d 748, 754 (Pa. Super. 2015); see also Pa.R.C.P. 207.

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scheduled an evidentiary hearing for both petitions on July 31, 2020. On

August 21, 2020, the PCRA court denied Appellant’s petitions in a single

order listing both docket numbers. This timely appeal followed.4

On appeal, Appellant raises the following issues for our review:

1. THE [PCRA] COURT ERRED IN DENYING [APPELLANT’S] PCRA PETITION BY FINDING THAT [APPELLANT’S] COUNSEL WAS EFFECTIVE IN CASE 1884-2017.

2. THE [PCRA] COURT ERRED IN DENYING [APPELLANT] LEAVE TO CONDUCT DISCOVERY IN CASE 1884-2017.

3. THE [PCRA] COURT ERRED IN DENYING [APPELLANT’S] PCRA PETITION BY FINDING THAT [APPELLANT’S] COUNSEL WAS EFFECTIVE IN CASE 1437-2018.

4. THE [PCRA] COURT ERRED IN DENYING [APPELLANT] LEAVE TO CONDUCT DISCOVERY IN CASE 1437-2018.

Appellant’s Brief at 13, 17, 19, 25.

We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most

favorable to the party who prevailed in the PCRA court proceeding.” Id.

4 Because Appellant filed separate notices of appeal at each underlying docket, he complied with the requirements of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). On November 19, 2020, this Court sua sponte consolidated Appellant’s appeals for our review and consideration. Order, 11/19/20.

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In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome the presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.” Id. (citation omitted). If the

petitioner fails to prove any of these prongs, the claim is subject to

dismissal. Id.

The right to constitutionally effective assistance of counsel extends to

counsel’s role in guiding his client with regard to the consequences of

entering into a guilty plea. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.

Super. 2012). “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. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and 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. (quotations and citations omitted). “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted

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on going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.

Super. 2013) (quotations and citations omitted). “The reasonable

probability test is not a stringent one; it merely refers to a probability

sufficient to undermine confidence in the outcome.” Id. (quotations and

citations omitted).

Appellant’s first and third issues challenge trial counsel’s effectiveness;

thus, we address them together. First, Appellant contends trial counsel

rendered ineffective assistance by failing to “compel the production of or

challenging the existence thereof of any evidence which would establish the

amount of gas stolen from U.G.I.” Appellant’s Brief at 14. Appellant

suggests that trial counsel’s ineffectiveness caused him to “possibly ha[ve]

to waive a complete defense” to the charge of theft of services. Id. at 17.

In his third issue, Appellant argues that trial counsel was ineffective

“for failing to challenge the admissibility of the evidence obtained from the

search warrant.” Appellant’s Brief at 20. Appellant contends the PSP

violated the knock-and-announce rule by entering the residence within “a

matter of seconds” after announcing their identity – an unreasonable

amount of time. Id. at 22. Appellant asserts that trial counsel’s failure to

challenge the admissibility of the evidence obtained from the illegal search

prohibited him from raising a meritorious defense – though he fails to

specify what his meritorious defense would have been – and amounted to

ineffective assistance of counsel. Id. at 23-24.

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Generally, “upon entry of a guilty plea, a defendant waives all claims

and defenses other than those sounding in the jurisdiction of the court, the

validity of the plea, and what has been termed the ‘legality’ of the sentence

imposed.” Commonwealth v. Prieto, 206 A.3d 529, 533-34 (Pa. Super.

2019). Accordingly, in a post-conviction proceeding, the only cognizable

issues a petitioner may raise 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). Accordingly, Appellant’s guilty plea significantly

narrowed his array of available arguments.

We emphasize that Appellant’s first and third issues do not challenge

the validity or voluntariness of Appellant’s plea and are thus subsumed by

the preclusive effect of Appellant’s plea. Accordingly, counsel cannot be

deemed ineffective for failing to pursue them. See, e.g., Commonwealth

v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (“[C]ounsel cannot be deemed

ineffective for failing to raise a meritless claim.”).

Appellant’s second and fourth issues challenge the PCRA court’s denial

of his discovery requests. Regarding discovery in PCRA proceedings, Rule

902(E) of the Pennsylvania Rules of Criminal Procedure provides:

(E) Requests for Discovery

(1) Except as provided in paragraph (E)(2), no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of exceptional circumstances.

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(2) On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.

Pa.R.Crim.P. 902(E). As this is not a death penalty case, Appellant was

required to demonstrate exceptional circumstances in support of his

discovery request. The PCRA and the applicable rules do not define

“exceptional circumstances” that would support discovery on collateral

review. Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012).

“Rather, it is for the trial court, in its discretion, to determine whether a case

is exceptional and discovery warranted.” Id. (citing Commonwealth v.

Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006)). We will not reverse the

PCRA court’s determination absent an abuse of discretion. Id. “Mere

speculation” that exculpatory evidence may exist does not establish that

exceptional circumstances exist. Dickerson, 900 A.2d at 412; see also

Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011) (holding that a

showing of good cause under Rule 902(E)(2) “requires more than just a

generic demand for potentially exculpatory evidence[.]”)). In light of this

authority, we turn to Appellant’s discovery requests.

Valuation of Services Stolen from UGI

Appellant’s discovery request for an exact value of services stolen from

UGI is based on his contention that he is “unsure if there was any

evidence showing the actual gas amount taken from U.G.I.,” and had trial

counsel requested this discovery, Appellant “could have had a meritorious

defense to this case.” Appellant’s Brief at 15 (emphasis added). Appellant’s

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request is based on his speculation that the valuation would likely contain

something useful in defending the charges brought against him, but he does

not articulate what his meritorious defense would be. Without explaining

with specificity what meritorious defense he would raise, Appellant’s

supposition is not evidence, and mere speculation cannot constitute good

cause to compel discovery. Dickerson, 900 A.2d at 412.

Body Cam Surveillance Video

Appellant requested body cam footage of PSP entering his residence to

execute the search warrant. Appellant “believes that the discovery would

have provided additional support for suppressing evidence obtained from

improperly executing the search warrant.” Appellant’s Brief at 26. As

Appellant acknowledges, the body cam surveillance he seeks to obtain in

discovery would not have revealed any new evidence. Appellant is merely

speculating that further evidence of the PSP’s execution of the search

warrant existed and could have provided additional support for a

suppression motion. However, Appellant again offers no support for his

supposition. Commonwealth v. Spotz, 18 A.3d 244, 322 (Pa. 2011)

(“Bald assertions, unaccompanied by any supporting evidence, do not

constitute a showing of good cause . . . .”). Further, the body cam

surveillance would not have been new evidence unknown to Appellant at the

time he pled guilty. We therefore agree with the PCRA court that

exceptional circumstances did not exist to compel discovery, and Appellant’s

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request was properly denied. See PCRA Court Order, 4/8/20; Dickerson,

900 A.2d at 412; Hanible, 30 A.3d at 452.

In the argument section of his brief, Appellant raises a fifth claim

challenging the voluntariness of his plea. Our review of the record, including

Appellant’s pro se PCRA petition, amended petition and Rule 1925(b)

statement, reveals that Appellant has raised this argument for the first time

in his appellate brief. Thus, Appellant has not preserved this issue for

appellate review. See Pa.R.A.P. 302(a) (“Issues not raised in the [lower]

court are waived and cannot be raised for the first time on appeal.”); see

also Citizens Nat. Bank of Evans City v. Gold, 653 A.2d 1245, 1248 (Pa.

Super. 1995) (“It is well-settled that a new theory of relief cannot be

advanced for the first time on appeal.”).5

Based on the foregoing, the PCRA court did not err in denying

Appellant’s petition for post-conviction relief.

Order affirmed.

5 Even if Appellant had not waived this claim, we would find his plea was knowing and voluntary. Appellant submitted to the trial court a comprehensive written guilty plea, indicating he had fully read the criminal complaint, the affidavit of probable cause, and the information. Appellant admitted the facts as stated against him were true. Also, the trial court conducted an oral colloquy prior to accepting the guilty plea, where Appellant represented that he was guilty of the aforementioned crimes.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/15/2021

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