Com. v. Wells, E.

• Court: Superior Court of Pennsylvania
• Decided: December 14, 2017
• Docket: 518 WDA 2017
• Status: Unpublished

Opinion

J-A24039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ERIC WELLS, : : Appellant : No. 518 WDA 2017

Appeal from the PCRA Order March 10, 2017 in the Court of Common Pleas of Washington County, Criminal Division, No(s): CP-63-CR-0001922-2013

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 14, 2017

Eric Wells (“Wells”) appeals from the Order dismissing his first Petition

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

In its Order and Pa.R.Crim.P. 907 Notice (hereinafter “PCRA Court

Order and Rule 907 Notice”), the PCRA court set forth the relevant factual

and procedural history, which we adopt for the purpose of this appeal. See

PCRA Court Order and Rule 907 Notice, 1/18/17, at 1-5.

Wells filed a Response to the PCRA court’s Order and Rule 907 Notice.

On March 10, the PCRA court entered an Order dismissing the Petition.

Wells filed a timely Notice of Appeal. Thereafter, the PCRA court filed an

1 See 42 Pa.C.S.A. §§ 9541-9546. J-A24039-17

Opinion pursuant to Pa.R.A.P. 1925(a).2

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

1. Was plea counsel ineffective in permitting the trial court to participate in plea negotiations, a violation of due process, by meeting with the trial court and the prosecution in chambers to discuss issues of guilt, innocence, level of guilt, and an appropriate period of incarceration before the proposed plea agreement was entered?

2. Was [] Wells unlawfully induced into pleading guilty to homicide generally based on the ineffective assistance of plea counsel[,] who failed to adequately investigate or advise [] Wells regarding potential defenses[,] and erroneously advised [] Wells that there were no available defenses when [] Wells was intoxicated at the time of the incident and struck the victim only one time?

3. Did plea counsel render ineffective assistance by neglecting to adequately discuss with [] Wells his appellate rights in conjunction with his right to withdraw his plea?

4. Whether plea counsel was ineffective in advising [] Wells to plead guilty to robbery as either principal or an accomplice[,] where [] Wells lacked the requisite specific intent to commit or facilitate a robbery of either [Zach] DeCicco or [Timothy] McNerney, which plea counsel actually argued?

Brief for Appellant at 4 (issues renumbered for ease of disposition).

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions.

2 The PCRA court did not order Wells to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)

-2- J-A24039-17

Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

In his first issue, Wells contends that his plea counsel was ineffective

for permitting the trial court to participate in plea negotiations. Brief for

Appellant at 16-17. Wells asserts that, “absent the trial court’s involvement

and agreement in this case, it would be absurd on its face to urge a client to

enter a plea to homicide[,] generally[,] and robbery arising out of the same

criminal episode.” Id. at 17-18. Wells claims that “it only makes sense for

an attorney to urge his client to enter such a plea if he had been made a

promise by the trial court.” Id. at 18. Wells argues that “[s]ince the trial

court ensured [sic] [plea counsel] that it would not find [] Wells guilty of

felony murder if he entered the plea proposed by the trial court, [] Wells[’s]

due process rights were violated.” Id. Wells contends that his plea counsel

“was ineffective for failing to raise this issue and, in light of

[Commonwealth v.] Evans, [252 A.2d 689 (Pa. 1969),] could have no

reasonable basis for not doing so.” Brief for Appellant at 18. Wells claims

that he suffered prejudice because, absent the trial court’s interference, his

plea counsel would not have advised him to plead guilty to both murder and

robbery, and would have instead advised Wells to plead guilty to involuntary

manslaughter or proceed to trial. Id. at 19. Wells argues that, pursuant to

Evans, a plea entered on the basis of a sentencing agreement in which the

-3- J-A24039-17

judge participates cannot be considered a voluntary plea. Id. at 19-20.

Wells asserts that the PCRA court incorrectly relied on Commonwealth v.

Vealey, 581 A.2d 217 (Pa. Super. 1990), in reaching its determination that

Wells suffered no prejudice relative to his Evans claim. Brief for Appellant

at 20.

In its Opinion, the PCRA court addressed Wells’s first issue, set forth

the relevant law, and determined that the issue lacks merit. See PCRA

Court Order and Rule 907 Notice, 1/18/17, at 5-6, 14-17 (wherein the PCRA

court concluded that there is no evidence of record that the trial judge was

involved in the plea negotiations between Wells, his plea counsel, and the

Commonwealth); see also id. at 17-18 (wherein the PCRA court determined

that, even if Wells had presented evidence that the trial judge was involved

in the plea negotiations, Wells suffered no prejudice, as the trial judge

declined to find Wells guilty of second-degree murder or to impose the

felony murder rule, despite evidence supporting those charges). As Wells

failed to present any evidence that the trial judge was involved in his plea

negotiations, plea counsel cannot be faulted for failing to object to the trial

judge’s participation. See Commonwealth v. Poplawski, 852 A.2d 323,

327 (Pa. Super. 2004) (holding that counsel cannot be found ineffective for

failing to pursue a baseless or meritless claim). As we agree with the

reasoning of the PCRA court, which is supported by the record and free of

-4- J-A24039-17

legal error, we affirm on this basis as to Wells’s first issue. See PCRA Court

Order and Rule 907 Notice, 1/18/17, at 14-17.

As Wells’s second and third issues are related, we will address them

together. In his second issue, Wells contends that he did not possess the

requisite malice to support a conviction of third-degree murder. Brief for

Appellant at 23. Wells asserts that “[n]o reasonable person, who weighs

155 pounds, and strikes a person weighing thirty pounds more than him,

reasonably expects that one punch would kill the person he struck.” Id.

Citing to Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1987), Wells

claims that none of the circumstances deemed sufficiently egregious to

warrant a finding of aggravated assault in a “one-punch aggravated assault”

case were present in this case.3 Brief for Appellant at 25. Based on his

assertion that there was no evidence of malice, Wells argues that “there was

a valid defense to homicide, i.e., that the crime[,] at most[,] rose to the

level of involuntary manslaughter ….” Id. Wells contends that his plea

counsel’s advice that Wells had no viable defense was erroneous, and plea

counsel had no reasonable basis for not informing Wells that he “had a

3 In Alexander, the Court announced that the following factors can be utilized in ascertaining whether the defendant intended to inflict serious bodily injury by one blow: (1) if the defendant “was disproportionately larger or stronger than the victim;” (2) whether the defendant would have escalated his attack but was restrained from doing so; (3) whether the defendant was in possession of a weapon; and (4) “statements before, during, or after the attack which might indicate [defendant’s] intent to inflict further injury upon the victim.” Alexander, 383 A.2d at 889.

-5- J-A24039-17

strong[,] legally valid defense to the homicide charge.” Id. at 25-26. Wells

asserts that he would not have entered his plea if plea counsel had properly

advised him. Id. at 26.

Wells further claims that the PCRA court erred by determining that

plea counsel had a reasonable basis to advise Wells to plead guilty to

homicide, generally, and robbery without the benefit of any testimony from

plea counsel. Id. at 28. Wells argues that the PCRA court also erred by

failing to make the appropriate inquiry of whether plea counsel’s advice

caused Wells to enter an unknowing and involuntary plea. Id. Wells

contends that the only explanation for plea counsel’s advice to plead guilty

to homicide, generally, and robbery based on the same set of facts is that

the trial judge promised that he would not find Wells guilty of felony murder.

Id. at 29-30. Wells asserts that the PCRA court improperly relied on

aggravated assault cases when determining the level of malice necessary for

homicide. Id. at 30.

In his third issue, Wells contends that an evidentiary hearing was

required to determine whether plea counsel had advised Wells of his right to

file a direct appeal. Id. at 33. Wells asserts that, “had counsel adequately

advised [Wells] regarding his defense to homicide[,] and that [Wells] could

have pursued an involuntary manslaughter defense, [] Wells would have

moved to withdraw his plea or never entered the plea.” Id. Wells claims

that he suffered actual prejudice because his plea counsel had no reasonable

-6- J-A24039-17

basis not to discuss with Wells his appellate rights, and there would have

been grounds for an appeal based on his defense to homicide. Id. at 35.

[T]o convict a defendant of the offense of third[ ]degree murder, the Commonwealth need only prove that the defendant killed another person with malice aforethought. This Court has long held that malice comprehends not only a particular ill-will, but [also a] wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (citations

This Court has further noted:

[T]hird[-]degree murder is not a homicide that the Commonwealth must prove was committed with malice and without a specific intent to kill. Instead, it is a homicide that the Commonwealth must prove was committed with malice, but one with respect to which the Commonwealth need not prove, nor even address, the presence or absence of a specific intent to kill. Indeed, to convict a defendant for third[-]degree murder, the jury need not consider whether the defendant had a specific intent to kill, nor make any finding with respect thereto.

Id. As with other elements of crime, the trier of fact may infer criminal

intent, knowledge and recklessness from circumstantial evidence. See

Commonwealth v. Moore, 395 A.2d 1328, 1332 (Pa. Super. 1978)

In its Opinion, the PCRA court addressed Wells’s second and third

issues, set forth the relevant law, and determined that the issues lack merit.

See PCRA Court Order and Rule 907 Notice, 1/18/17, at 5-10 (determining

that “[s]pecific intent is not a required element of third[-]degree murder”

and that “the facts establish [Wells’s] intention to cause serious bodily harm

-7- J-A24039-17

during the confrontation.”); see also PCRA Court’s Pa.R.A.P. 1925(a)

Opinion, 3/9/17, at 2-5 (wherein the PCRA court further explained its

determination that Wells’s ineffectiveness claims regarding a defense to

third-degree murder are meritless).

Here, the evidence of record reveals that, during the course of a

robbery, Wells delivered a single punch to the victim with such force that the

victim immediately fell to the ground and struck his head. Indeed, Wells

admitted to police that he had punched the victim with such force that he

“knocked him out.” N.T., 8/14/13, at 60. We conclude that these facts

support a determination that Wells acted with a “wickedness of disposition,

hardness of heart, recklessness of consequences, and a mind regardless of

social duty” so as to satisfy the malice element of third-degree murder. See

Fisher, 80 A.3d at 1191. The fact that Wells did not intend to kill the victim

is of no consequence. Id. We therefore agree with the PCRA court’s

determination that plea counsel was not ineffective for failing to advise Wells

that he had a defense to third-degree murder, and affirm as to Wells’s

second and third issues. See PCRA Court Order and Rule 907 Notice,

1/18/17, at 5-10; see also PCRA Court’s Pa.R.A.P. 1925(a) Opinion, 3/9/17,

at 2-5.

In his fourth issue, Wells contends that, based on his plea counsel’s

statement to the trial court during sentencing that Wells had no criminal

intent to commit robbery, counsel could have no reasonable basis to advise

-8- J-A24039-17

Wells to plead guilty to robbery as a principal. Brief for Appellant at 32.

Wells asserts that, although plea counsel had indicated that his advice was

based on the Commonwealth’s charge of accomplice liability, an intent

element is also required for accomplice liability. Id. Wells claims that,

because he denied that he intended to commit the robbery, a valid defense

to the robbery charge existed. Id. at 33. Wells argues that, had plea

counsel explained that Wells had a defense to robbery, Wells would not have

pleaded guilty to that charge. Id.

In its Opinion, the PCRA court addressed Wells’s fourth issue, set forth

the relevant law, and determined that the issue lacks merit. See PCRA

Court Order and Rule 907 Notice, 1/18/17, at 10-13 (wherein the PCRA

court determined that the record supports Wells’s conviction of conspiracy to

commit robbery). We agree with the reasoning of the PCRA court, which is

supported by the record and free of legal error, and affirm on this basis as to

Wells’s fourth issue. See id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/14/2017

-9- Mar, 29, 2017 3: 29PM ell ed 111/16/2017 10:37 AM

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA 4

v. No. CR 1922 2013

ERIC WELLS Defendant.

ORDER

AND NOW, this 9" day of MARCH, 2017, after reviewing the Defendant's Response to

Pa,R.Crim. 907 Notice of Intent to Dismiss, it is hereby ORDERED, ADJUDGED, and

DECREED that the Defendant's. .PCRA is DISMISSED. Pursuant to Rule 910 of the

Pennsylvania Rules of Criminal Procedure, the Defendant has the right to file an appeal to the

Superior Court within thirty (30) days of this date of this order. The appeal must be flied with the

Washington County Clerk of Courts. PURSUANT TO RULE 908(E), THE DEFENDANT

SHALL BE SERVED WITH NOTICE OF THIS ORDER Bit CERTIFIED MAIL, RETURN

RECEIPT REQUESTED.

By way of Au-tiler explanation, this Court provided notice to the Defendant by way of an

Order dated January 17, 2017 that it intended to dismiss the Defendant's amended PCRA

petition without a hearing. The Court found no genuine issues of material fact based upon the

reasons act forth 14 the Order. Through his counsel, the Defendant filed a timely response to the

Court's notice of intent to dismiss. The Court finds that its January 17th Order addieises the

issues raised in both the Defendant's amended PCRA petition and response. Consequently, the Mar. 29.2017 3:29PM No. 1527 P. 2

Cdurt need not reiterate ib reasoning in detail and will address the Defendant's response in

abridged fashion below,

The Defendant argues in his response that the Court erred in not affording him an

evidentiary hearing, The Defe:ndaraaverstthat the Court has flashioned a reasonable basis for trial

counsel's strategy, which was not clear and obvious from the record. The Defendant quotes from

Commonwealth v. McGill to support his position that "the court is not to glean, surmise, or

speculate with regard to the strategy of Counsel except In those rare instances where his strategy

is clear and obvious from the record under review," 832 A.24 1014, 1023 (Pa. 2003).

"There is no absolate right to an evidentiary hearing on a PCRA petition, and if the

PCRA court can determine from the record that no genuine issues of material fac exist, then a

hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. Ct. 2008)

(quoting Commonwealth v. Barbosa, 819 A.2d 81 (Po. Super. Ct. 2003)). "[S]uch a decision is

within the discretion of the PCRA court and. will not be overturned absent an abuse of

discretion" Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). This Court finds that trial

counsel's strategy Is clear and obvious from the record under review and that he understood the

circumstance in which the Defendant found himself.'

Trial counsel argued zealously on his client's behalf. Trial counsel pointed to Troy

Simmons as the "catalyst" of the October 14, 2013 confrontation that killed Timothy McNerney

("McNerney"). Transcript of Proceedings Held on. May 27, 2014 at p. 17: LL. 19-22. Ho

explained to Judge Borkowski that "[a]s Mr. McNerney attempted to aid his friend [Zech

DeCicco], Mr. Wells delivered, for a lack. of a better term, a sucker punch to Mr. McNerney,

causing Mr. McNerney to fall back and strike his head and die." Id. Tor these reasons, trial

The Delbudant entered into a general homicide plea on May 27, 2014 before Judge Edward Borkowski, as well as one count of Robbery. The Commonwealth and the Defendant agreed that the Court would determine the degree of guilt. Transcript of Proceedings Held on May21, 2014 up, 2, LL. 3445; p. 3, L. 3.

2 Mar. 29.2017 3:29PM No, 1527 P. 3

counsel argued that the Defendant should not be subject first degree murder because the Defendant's single punch evidenced no intention to kill.

Trial counsel also argued that the pcfendalli should not be subject to the Felony Murder.. Rule because his client had no intention to commit a robbery? As trial counsel emphasized,

"[There, certainly, was no inept on Mr. Wells to rob anybody. ... The argument is that this is a one punch case, which through accomplice liability, may be a robbery, but that intent was not utilized until after the aggravated assauliimartalaughter. That's the argument." Id. at g, 17, IL... ,

23-24; p. 1,1. 9-13. I

In its January 17, 2017 order, the Court emphasized that the October 14, 2013 incident

started as robbery? This incident happened when Adam Hankins ("Hankins"), Simmons and the

Defendant confronted DeCicco and McNerney, The Court stated;

To reiterate, the testimony of record makes clear that the confrontation started as a robbery when the Defendants and DcCicco and McNerney met on Maiden Street; When. DeCicco would not give Simmons his cell phone, Simmons punched DeCicco, who then fell to the ground and continued to get beaten by multiple persons for 20 seconds until there was a sudden break that allowed him to escape.

See Order dated January 17, 2017, p. 13.

The entire incident began as a robbery. The intent to commit the felony had already been

formulated before any assault. took place. "When an actor engages in one of the statutorily

enumerated felonies and a killing occurs, the law, via the felony-murder rule, allows the finder of

fact to infer the killing was malicious from the fact that the actor engaged in a felony of such a

dangerous nature to human life because the actor, as held to a standard of a reasonable man,

knew or should have known that death might result from the felony," Commonwealth v. Legg,

MeNerney'a wallet and cellular phone were taken as a result of the confrontation, The Dcfendam wound up with Mclklatney's phone and trial counsel made that acknowledgment, Transcript of Proceedings Held on May 27, 2014 at p. 18, LL. 7-8, 3S. Transcript of Preliminary hearing Held on August 14, 2013 at pp. 18-19 (testimony of victim, Zech DeCicco).

3 Mar, 29, 2017 3:29PM No. 1527 P. 4

417 A,2d 1152, 1154 (Pa, 1980). By committing an unlawfhl act (sucker punching McNerney) to '

assist the robbery,4 the Defendant was subject to the Felony Murder Rule (second degree murder 'and carrying a se:ntence of life in pris*n).. See 18 Pa.P.S.A. §. 1102(b); Commonwealth 1*

A;fi,ddlOcm; 467 Aid 841, 845 (Pa. Super, Ct. 1983). A robbery that harm is defined as a crime of violence and considered a felony of the first degree, thereby subjecting a L,.

perpetrator to the Felony Murder Rule. 18 Pa. C.S.A. § 2592; 42 Pa.. C,S.A. § 9714(g); Commonwealth v, Greene, 25 A.34 359, 362 (Pa. Super. Ct. 2011); Commonwealth v, Lambert, 795 Aid i 010, 1022 (Pa. Super. Ct. 2002),5 For the above -mentioned reasons, this Court finds PCRA counsel's central argument- that the facts support, at best, an involuntary manslaughter charge and that trial counsel was ineffective for advising the Defendant that he had no available defense-to be wide of the mark.6 Thither, even if trial counsel did not explain involuntary manslaughter to the Defendant, there was no ineffectiveness because the record is clear and obvious thatthe facts do rick support such conviction. See Commonwealth' v, Davis, 652 Aid 885, 887 (Pa. Super, Ct, 1995) ("Vidal

counsel cannot be held. Ineffective for falling to take bile actions or to raise a meritless claim."); see also Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001) ("Prejudice la the context of

ineffective assistance of counsel means demonstrating that there Is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different"). The

a The Defendant became an accomplice to the robbery and accomplices are legally aeommtable for another person's conduct involved In the commission of crimes. 18 Pa.C.8.A. § 306(b)(3). Thu Defendant's PCRA counsel cited Commomvealth v. Alexander, 383 Aid 887 (Pa. 1978) and Connomveulth v. Burton, 2 A.3d 598, 604 (Pa. Super. Ct. 2010). In his Amended PCRA. Petition to distinguish the facts therein from those Involving his client Thervlbro, this Court addressed said cases in its January 17. 2017 order. Therein, this Covrt cited Barran concerning its conclusion that the Defendent's one punch supported a finding of malice. Now, PCRA counsel claims that Burton is nor applicable because the victim in Swim did not die, but merely sustained serious bodily injury. "A potion is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful action in a reckless or grossly nogligetu manner, or the doing of a lawilti act ion a reckless or grossly negligent manner, he causes the death of another person." 18 § 2504(a).

4 Mar. 29. 2017 3:30PM No, 1527 F. 5

Defendant was not convicted of either first or second degree murder and the facts as discussed above belles a finding that the Defendant was guilty of involuntary manslaughter.

, - . - - - .1 a . c z 1. .."°. ,. I

1 " I . .

THEAourer;

4 Gary Gilman, I

S Circulated 11/16/2017 10:37

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA )

v. ) No. CR 1922 - 2013

ERIC WELLS ) ) , __...r-- ---1

Defendant, t ,Irn ) ......,4 =.,..

i,( ) --. -4 = P-c, (-) --, .-... rn ORDER and NOTICE ( --,:.A.} N) -4 V. (al CZ. AND NOW, this 17th day of JANUARY, 2017, it is hereby ORDERED, ADJUlTGED and DECREED that the Defendant, Eric Wells, is served notice of the Court's intention to dismiss his Amended Post-Conviction Relief Act Petition without a hearing inasmuch as the Court finds that there are no genuine issues of material fact based upon the reasons set forth below.

It is further ORDERED that the Defendant's petition will be dismissed on February 16, 2017 (no less than 30 days from the date of this order and notice), in accordance with Pennsylvania Rule of Criminal Procedure 907 unless the Defendant, either representing himself or through counsel, responds to this Order and Notice demonstrating why the Court should not dismiss the Defendant's petition for relief under the Post -Conviction Relief Act ("PCRA").

PROCEDURAL HISTORY On August 6, 2013, the Defendant was charged with one count of Criminal Homicide (F- 1), two counts of Robbery-Inflicting Serious Bodily Injury (F-1), one count of Criminal Conspiracy to Promote or Facilitate Criminal Homicide and/or Robbery (F-1), and one count of Theft by Unlawful Taking, Movable Property against two other (M-1). Identical persons, Adam criminal charges Hankins were filed charges stemmed ("Hankins") and Troy from a Simmons confrontation occurring ("Simmons"). The on or about Washington wherein October 14, 2012 Timothy McNerney in the City ("McNerney") was killed of were taken. and his cell phone and wallet The three co-defendants and the 27, 2014 Commonwealth entered before the into plea Honorable Judge agreements on May Edward Commonwealth agreed that Borkowski. The each defendant respective defendant would and the robbery. Transcript enter a general of Proceedings plea of guilty to Held on May homicide and the Court 27, 2014 at pp. would then 2-3. Further, determine the degree as a finder of p. 3, LL. of guilt fact, 3-5. After regarding the general reviewing the pleas of "pleadings, pretrial homicide. Id. at Defendant, the pleadings, , the Affidavits of statements of each Probable Cause, after hearing and the transcript of the arguments by the preliminary hearing" attorneys, the Court and guilty of third concluded that it degree murder, as would find the well as one defendants 13-20. In count of addition, the Court robbery. Id. at p. 3, set a LL. 19-24; p. sentencing date of 23, LL. investigation reports. Id. August 25, 2014 at p. 23, LL. and ordered 21-23. pre -sentence At the August 25, 2014 sentencing hearing, 25 years of the Court incarceration for third sentenced the degree murder Defendant to 10 to incarceration for and a robbery, with a 5 consecutive period year period of of 3 to 6 years of Proceedings Held on probation to follow. August 25, 2014 Transcript of at p. 52, Sentencing restitution as noted in LL. 3-8. In the pre addition, the -sentence Court imposed of investigation report, McNemey../d. at p. 52, travel expenses, LL. 8-10. and funeral expenses

2 The Defendant did not the file any Superior Court. post He did, -sentencing motions, nor Court however, file a did he file appointed timely a direct Stephen Paul, PCRA. appeal to 2016, the Esq. as petition on case was PCRA August 31, counsel on 2015. The to reassigned to September Andrew Timothy Lyon, 11, 2015. Salemme, Esq. Esq. On On June 30, February 23, 2016. Attorney 2016, the case Salemme filed was an reassigned Amended PCRA In his Petition on amended October 20, petition, the should be Defendant claims granted: the following four 1. Mr. reasons for Wells was why relief based upon unlawfully the induced into investigate or ineffective advised Mr. advise Mr. Wells assistance of pleading guilty to plea counsel homicide Wells that regarding who failed intoxicated at the there were time of the no potential to generally 2. available defenses and adequately Attorney incident and defenses when Mr. WellsDeRisoj, the struck the Mr.erroneously Wells was to plead Defendant's victim only one where Mr. guilty to trial time. either Mr. Wells lacked the robbery as counsel,] was DeCicco or Mr. requisite either a ineffective in 3. specific principal or an advising Attorney McNerney, which intent to accomplice plea DeRiso was Mr. commit a DeRiso robbery of and thenegotiations, a ineffective in actually argued. of guilt,prosecution inviolation of duepermitting the trial court to an chambers to process, by agreement was appropriate discuss meeting participate in with the period of issues of trial court entered. guilt, 4. incarceration innocence, the level Attorney before the discuss with DeRiso proposed plea rendered Mr. Wells his ineffective assistance by appellate rights. Amended neglecting to Petition for Post adequately -Conviction Relief, The relief 1111. requested by the the Defendant is that alternative, his he be direct appeal permitted to motion to rights be withdraw his withdraw his reinstated guilty plea guiltyplea. along with and, in Id. 118. his right to file a post -sentence

3 FACTS Three persons testified at the Defendant's preliminary Warco ("Coroner hearing, Coroner S. Warco"), Detective Timothy Daniel Stanek ("DeCicco"). The only ("Detective Stanek"), and Zach witness to the DeCicco crimes committed Hankins was DeCicco. by the Defendant, Simmons, According to DeCicco, and he and and Jefferson McNerney, two students College, were leaving from Washington a bar called the Brew House at October 4, 2012. approximately 2 a.m. on Transcript of Preliminary Hearing Held on The two were August 14, 2013 at p. walking back to 15, LL. 3-15. Washington and Jefferson were confronted by College on Maiden the Defendant, Street when they Simmons, and Hankins Id. at p. 17, LL. near Lombardi's, 5-21. One of the an automotive three co-defendants store. 18, LL. 19-21. asked DeCicco for his cell DeCicco did not phone. Id. at p. comply with the 19, LL. 9-15. demand and was then hit DeCicco testified that in the nose. Id. after being struck, at p. and kicked by he went to the what felt like more ground and was than one person punched for around twenty 23; p. 20, LL. 2-9. seconds. Id. at p. 19, During the beating, LL. 8- DeCicco was unable to turned on determine if any of the McNerney. Id. at p. 20, Defendants LL. 5-7. DeCicco testified that when he moment," he "got up and felt "them stop ran away." Id. at for a p. 20, L. was unaware of 13-14. DeCicco never where McNerney looked back, so he was or of his circumstances. Id. at p. 20, Detective Stanek of the LL. 15-20. City of Washington Police the three Department interviewed co-defendants. According DeCicco and to Detective Stanek, Simmons DeCicco and confessed to demanding his cell phone. confronting Id. at p. 59, LL. 14-19. Further, Simmons acknowledged

4 that he was the first to strike DeCicco and that once and Hankins DeCicco fell to the joined the assault. Id. ground, the Defendant at p. 61, LL. 5-9.1 Sadly, McNerney was killed during the McNerney died from confrontation-Coroner Warco blunt force trauma testified that to the head homicide. Id. at p. 8, and ruled the manner LL. 5-6. of death to be a During the investigation, Detective Defendant. As recounted Stanek interviewed by Detective the Stanek, the that punched Defendant admitted that he had McNerney and been the one "knocked him out." Id. at p. 60, LL. Detective Stanek that he 1-2. Further, the got McNerney's Defendant told cell phone from Simmons. Id. at p. 60, LL. 9-13. DISCUSSION OF LAW The four grounds AND CLAIMS for relief raised by the counsel. The PCRA Defendant all concern provides relief to ineffective assistance those individuals of from whose convictions "[ijneffective assistance of or sentences counsel which, in resulted the undermined the truth circumstances of the -determining process that particular case, so no reliable could have taken adjudication of guilt place." 42 Pa.C.S. or innocence § 9543(a)(2)(ii). The interpreted this to mean Pennsylvania Supreme that in order to Court "has obtain relief on a counsel, a petitioner claim alleging must prove that ineffective assistance (1) the claim of arguable merit; (2) underlying the counsel's actions ineffectiveness claim has lacked any resulted in prejudice reasonable basis; and to petitioner." (3) counsel's actions Commonwealth v. Cox, (citations omitted). 983 A.2d 666, "Where it is clear 678 (Pa. 2009) that a petitioner has failed to prongs... the claim meet any of the may be disposed three, distinct of on that basis the other two alone, without a prongs have been determination of whether met." "A chosen Commonwealth v. Steele, 961 A.2d strategy will not be 786, 797 (Pa. found to have 2008). lacked a reasonable basis 1 According to Detective unless it is proven when hewas on the Stanek, the 'that an ground and that Defendant told him that August 14, 2013 at the Defendant Simmons and p. 60, LL. did not Hankins 22-23. participate. Transcript continued to of Preliminary beat DeCicco Hearing Held on

5 alternative not chosen offered a potential for success substantially greater than the course actually pursued.'" Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (quoting Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998)). "Prejudice in the ineffective assistance of counsel context of means demonstrating that there is a reasonable but for counsel's error, probability that, the outcome of the proceeding would have been Commonwealth v. Pierce, 786 A.2d different." 203, 213 (Pa. 2001). "Finally, the law presumes was effective and the that counsel burden of proving that this presumption is false rests with Cox, 983 A.2d at 678. the petitioner."

Claims one, two, and four in the Defendant's amended PCRA petition are While the Court will address interrelated. each in turn, the Court notes that its analysis of the other. one claim informs

Section 2502 of the Crimes Code defines the three degrees of murder. With third degree murder, the regard to statute does not set forth the requisite mens rea, "[alit other kinds of murder providing only that [that are not first degree or second degree] shall be murder of the third degree." 18 Pa.C.S. § 2502(c). Case law has further defined the elements of third murder. As explained by the degree Pennsylvania Supreme Court: [T]o convict a defendant of the Commonwealth need only prove that offense of third[ ]degree murder, the malice aforethought. This the defendant killed Court has long held that another person with particular ill-will, but ... [also malice comprehends not a] wickedness of only a recklessness of consequences, disposition, hardness of and a mind regardless heart, particular person may not be of social duty, intended to be injured. although a

Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (alteration in original) quotation, and emphasis (internal citation, omitted); see also Commonwealth v. Drum, 58 Pa. 9, 15 (1868) (defining malice as quoted above). The Pennsylvania Supreme Court has further noted:

6 [T]hird degree murder is not a homicide that the Commonwealth must prove committed with malice and without a was specific intent to kill. Instead, it is homicide that the Commonwealth must a prove was committed with malice, one with respect to which the but Commonwealth need not prove, nor even address, the presence or absence of a specific intent to kill. Indeed, to convict a for third degree murder, the jury defendant need not consider whether the specific intent to kill, nor make any finding defendant had a with respect thereto. Commonwealth v. Meadows, 787 A.2d 312, 317 (Pa. 2001) (quoting Young, 748 A.2d 166, 174-75 (Pa. 1999)). Commonwealth v.

To summarize, third degree murder is an intentional act that is characterized by malice and results in death, intended or not. Commonwealth v. Fisher, 80 A.3d 1186, 1193 (Pa. 2013). The Defendant acknowledged that he punched the decedent, but argues that he merely punched him one time and that case law demonstrates that one punch cannot support a charge of homicide. At the May 27, 2014 hearing when the Court entered its verdict, Attorney DeRiso (plea counsel) stated on behalf of the Defendant, "Mr. Wells is the individual who threw that fatal punch to that young man that evening." Transcript of Proceedings Held on May 27, 2014 at p. 16, LL. 24-25. Further, Attorney DeRiso emphasized that "after Mr. McNerney fell to the ground, he was not touched. He was not struck thereafter." Id. at p. 17, L. 25; p. 18, L. 3. Moreover, "Where was no intent on the part of Mr. Wells to kill Mr. McNerney." Id. at p. 17, LL. 22-23. The Defendant argues that a solitary punch is not sufficient to sustain a conviction for third degree murder based on the absence of any intent to cause serious bodily harm. Rather, the Defendant believes that there is only sufficient evidence for a plea to an involuntary manslaughter charge, and therefore Attorney DeRiso's advice that the Defendant had no viable defenses was erroneous.2

2 A person is guilty of involuntary manslaughter when as a or grossly negligent manner, or the direct result of the doing of an doing of a lawful act in a reckless unlawful act in a reckless death ofanother person. 18 Pa.C.S. or grossly negligent manner, he causes the § 2504(a).

7 To support his argument, the Defendant points to Commonwealth v. Alexander. In Alexander, the defendant walked up to the victim on a street corner and punched the victim once in the face, breaking his nose. 383 A.2d 887 (Pa. 1978). The defendant was convicted of aggravated assault. On appeal, the Supreme Court reversed the judgment of sentence, holding: "While there can be no dispute about the physiological significance of the head, where the victim did not actually sustain the requisite serious bodily injury, we cannot say that the mere fact that a punch was delivered to that portion of the body is sufficient, without more, to support a finding that appellant intended to inflict serious bodily injury." Id. at 889.The Defendant in the present case analogizes to the facts in Alexander to contend that delivering a single punch and then walking away cannot evince the malice necessary to establish third degree murder. This Court finds that Alexander is not dispositive because the case does not address the facts at bar- namely, unlike the victim in Alexander, McNerney sustained serious bodily injury as a result of the punch to the point of death.

In "one punch" cases involving victims that did sustain serious bodily injury, the Superior Court has found the requisite intent to support the charge of aggravated assault. In Commonwealth v. Patrick, two witnesses saw the accused approach the victim from the side as the victim walked along the street with his hands in his pockets. 933 A.2d 1043, 1044 (Pa. Super. Ct. 2007). The victim did not see the accused approach him. Without warning, the accused punched the victim one time in the side of his head with enough force to knock the victim off of his feet. The victim spent about two days in a coma due to severe brain trauma. The Superior Court found that the "Commonwealth's evidence at the preliminary hearing demonstrated [the defendant] inflicted an assault on the victim with reckless indifference under circumstances which virtually assured serious bodily injury." Id. at 1047. In making this finding, the Superior

8 Court pointed to the fact that the punch was a surprise attack that "knocked the defenseless and

unsuspecting victim off of his feet without reflexive protection, causing the victim to strike his

head on the concrete." Id.

Similarly, Commonwealth v. Burton involved a victim that sustained serious bodily injury

as a result of being caught unawares by a single punch. 2 A.3d 598 (Pa. Super. CL 2010). There,

the Superior Court found sufficient evidence of intent to cause serious bodily injury,

emphasizing the fact that the victim was unprepared when he was struck. As explained by the

Burton court:

The fact that the victim was caught unaware is further supported by the severity of Mr. Price's injuries. As stated above, the victim suffered brain trauma as well as two facial and two spinal fractures. Indeed, throughout his brief, Appellant insists that the fall, rather than his punch, caused [the victim's] life-threatening damages. Patrick, supports the conclusion that such evidence was sufficient to establish that Appellant had the requisite mens rea to sustain a conviction for aggravated assault.

Id. at 604.

After a thorough review of the record and considering the above case law, this Court

concludes that the facts support the trial court's verdict of third degree murder. The one punch

delivered by the Defendant to McNerney did not take place in a vacuum. As Attorney DeRiso

said, "Mr. Wells delivered, for a lack of a better term, a sucker punch to Mr. McNerney, causing

Mr. McNerney to fall back and strike his head and die." Transcript of Proceedings Held on May 27, 2014 at p. 17, LL. 19-22. Like the victims in Patrick and Burton, McNerney sustained

serious bodily injury as a result of being punched without warning rendering him unconscious

and unable to protect his head from striking the ground. Echoing the Superior Court in Burton,

the fact that McNerney was caught unawares is supported by the severity of his injuries, which

were ultimately fatal. That the Defendant did not intend to kill McNerney when he punched him

9 does not alter this Court's conclusions. Specific intent is not a required element of third degree

murder; the facts establish the Defendant's intention to cause serious bodily harm during the

confrontation. Accordingly, the Court finds that the Defendant's PCRA claim that Attorney

DeRiso's advice with respect to the plea had no reasonable basis is without merit.

With respect to the Defendant's alleged intoxication supporting a plea or conviction of

involuntary manslaughter, this Courtfinds that the law is not on his side.

Where the question of intoxication is introduced into a murder case its only effect could be to negate the specific intent to kill which is required for a finding of murder of the first degree.... If intoxication does render an accused incapable of forming the necessary intent the result is to reduce the crime to a lesser degree of murder. In no event does the reduction change the character of the crime from murder to manslaughter.

Commonwealth v. Breakiron, 571 A.2d 1035, 1041 (Pa. 1990) (quoting Commonwealth v. England, 375 A.2d 1292, 1301 (Pa. 1977)).

For the above reasons, the Court finds that the Defendant's first claim in his amended PCRA petition lacks merit.

Even if the Commonwealth were unable to prove the requisite intent to convict the

Defendant of third degree murder based upon the aforementioned, this Court finds that the record

supports a conviction of second degree murder. "A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony." 18 Pa. C.S.A. § 2502(b); see Commonwealth v.

Miller, 35 A.3d 1206, 1212 (Pa. 2012). "Perpetration of a felony" is statutorily defined, inter alia, as "[t]he act of the defendant in engaging in ... the commission of, or an attempt to commit, ... robbery...." 18 Pa.C.S. § 2502(d).

Based upon the testimony of record, it is clear that the confrontation started as a robbery.

This was according to DeCicco's testimony and Simmons confession to Detective Stanek.

10 Simmons demanded DeCicco's cell phone. When DeCicco would not provide Simmons with the

phone, Simmons punched DeCicco, who then fell to the ground and continued to get beaten by

multiple persons for 20 seconds. Sometime after the initial punch to DeCicco, the Defendant

punched McNerney who then fell to the ground and subsequently died. According to Detective

Stanek, none of the Defendant's took responsibility for "physically" taking McNerney's cell

phone. Transcript of Preliminary Hearing Held on August 14, 2013 at p. 61, LL. 10-13. The

Defendant, however, did come into possession of McNerney's cell phone. According to the

Defendant, he took the cellphone from Simmons at Hankins' residence. Id. at p. 61, LL. 14-21.

Attorney DeRiso confirmed at the May 27, 2014 hearing that "my client did end up with that cell

phones [sic]." Transcript of Proceedings Held on May 27, 2014 at p. 18, LL. 7-8.

Whether the Defendant picked up McNemey's cell phone at the time of the confrontation

or got it from Simmons at Hankins' house is immaterial to the Court's conclusion regarding

second degree murder. Even if the Defendant were not the person who picked up the cell phone

at the scene, the record supports a charge of conspiracy to commit robbery. A person is guilty of

conspiracy with another person or persons to commit a crime if with the intent of promoting or

facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a).

The Commonwealth must prove that: 1) the defendant entered into an agreement with another

person to commit or aid in the commission of a crime; 2) he shared the criminal intent with that

other person; and 3) an overt act was committed furthering the conspiracy. Commonwealth v.

11 Devine, 26 A.3d 1139, 1147 (Pa. Super. Ct. 2011). "This overt act need not be committed by the

defendant; it need only be committed by a co-conspirator." Commonwealth v. Murphy, 795 A.2d

1025, 1038 (Pa. Super. Ct. 2002) (citation omitted).

The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators in furtherance of the conspiracy.

Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa. Super. Ct. 2006) (citation omitted).

An accomplice is also legally accountable for another person's conduct involved in the

commission of crimes. 18 Pa.C.S.A. § 306(b)(3). The Crimes Code defines an accomplice as

follows:

A person is an accomplice of another person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he: (i) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or (2) his conduct is expressly declared by law to establish his complicity.

18 Pa.C.S.A. § 306(c).

"Both requirements may be established wholly by circumstantial evidence. Only the least degree

of concert or collusion in the commission of the offense is sufficient to sustain a finding of

responsibility as an accomplice. No agreement is required, only aid." Commonwealth v.

12 Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. Ct. 2005) (en bane) (citations and quotations

omitted). "[Piroof of a criminal partnership is almost invariably extracted from the circumstances

that attend its activities." Id. at 1253-54 (citation omitted).

To establish complicity, mere presence at the scene of a crime and knowledge of the commission of criminal acts is not sufficient. Nor is flight from the scene of a crime, without more, enough. However, those factors combined, along with other direct or circumstantial evidence may provide a sufficient basis for a conviction, provided the conviction is predicated upon more than mere suspicion or conjecture.

Commonwealth v. Rosetti, 469 A.2d 1121, 1123 (Pa. Super. Ct. 1983) (citations omitted).

To reiterate, the testimony of record makes clear that the confrontation started as a

robbery when the Defendants and DeCicco and McNerney met on Maiden Street. When DeCicco

would not give Simmons his cell phone, Simmons punched DeCicco, who then fell to the ground

and continued to get beaten by multiple persons for 20 seconds until there was a sudden break

that allowed him to escape. Although Attorney DeRiso pointed to Simmons as the "catalyst" he

explained that "[a]s Mr. McNerney attempted to aid his friend [Zach DeCicco], Mr. Wells

delivered, for a lack of a better term, a sucker punch to Mr. McNerney, causing Mr. McNemey to

fall back and strike his head and die." Transcript of Proceedings Held on May 27, 2014 at p. 17, LL. 19-22. In addition, the Defendant had McNerney's cell phone after DeCicco and McNerney were beaten. Therefore, the record reflects that the Defendant, at the very least, committed an act furthering the initial intended crime of robbing a person of their cell phone. Because Mr.

McNerney died as a result of the Defendant's punch, the Defendant was subject to a verdict of

second degree murder. Accordingly, the Court finds that the Defendant's second claim in his

amended PCRA petition lacks merit. Concomitantly, the Court finds that the Defendant has

failed to establish that plea counsel's actions resulted in prejudice-the Defendant received a

13 much lower sentence for third degree murder than he would have if convicted for second degree

murder.

With respect to the Defendant's third claim that Attorney DeRiso was ineffective in

permitting the trial court to participate in plea negotiations by meeting with the trial court and the

prosecution in chambers before the proposed plea agreement was entered, the record does not

reflect a violation of the Defendant's due process rights. The Defendant claims that the trial

judge, Edward Borkowski, was impermissibly involved in plea negotiations and supports his

argument by stating that "it would be absurd on its face to urge a client to enter a plea to

homicide generally and robbery arising out of the same criminal episode. This is because the

defendant would receive no benefit to pleading guilty since he would be subjected to life

imprisonment for felony murder, the same period of incarceration if he went to trial and was

found guilty of first -degree murder." See Defendant's Brief in Support of Amended PCRA

Petition at p. 20. According to the Defendant, Attorney DeRiso's fear that he "would be

convicted of robbery if he went to trial, subjecting him to second degree murder can only be

reconciled with urging him to plead guilty to robbery if the trial court improperly engaged in plea

negotiations and promised it would not find felony murder." Id. at p. 20 n.5.

The Defendant cites the case of Commonwealth v. Evans, 252 A.2d 689 (Pa. 1969) to

further his position. Therein, the Pennsylvania Supreme Court stated, "We feel compelled to

forbid any participation by the trial judge in the plea bargaining prior to the offering of a guilty

plea." Id. at 691 (emphasis in original). The High Court came to this conclusion for three

reasons:

First, the defendant can receive the impression from the trial judge's participation in the plea discussions that he would not receive a fair trial if he went to trial before the same judge. Second, if the judge takes part in the pre-plea discussions, he may not be able to judge objectively the voluntariness of the plea when it is

14 I .

entered. Finally, the defendant may feel that the risk of not going along with the disposition which is apparently desired by the judge is so great that he ought to plead guilty despite an alternative desire.

Id. at 691-92.

Importantly, the Evans opinion discusses with approval the ABA Minimum Standards

that preclude a judge from participating in the plea bargaining process before a plea bargain or

agreement has been reached between the prosecution and the defense. The Standards state that

the trial judge may be informed of the final bargain once it has been reached by the parties and

before the guilty plea is formally offered. Id. at 691 n.1. There is nothing prohibiting the trial

judge from then indicating to the prosecuting attorney and defense counsel whether he will

concur in the proposed disposition.

Herein, the record of the May 27, 2014 hearing does not reflect any participation by the

trial judge prior to a plea bargain or an agreement being reached by the parties. Specifically, at

the very beginning of the proceeding, Judge Borkowski introduced the parties and their

respective attorneys. Immediately thereafter, the judge states, "The parties, after substantial

preparation and discussion, have reached an agreement." Transcript of Proceedings Held on May

27, 2014 at p. 2, LL. 15-16. The attorneys representing the co-defendants and the

Commonwealth then respond in the affirmative to the Court, which was that the Defendant

would plead to one count of Robbery and one count of Homicide wherein the Court would

determine the degree. Id. at pp. 2-3. Thereafter, the Court tells the attorneys that it "will listen to

argument from counsel as to the proper degree of guilt." Id. at p. 3, LL. 15-17. In sum, the

Defendant argued that he had no "intent" as an accomplice at the May 27, 2014 hearing. As

Attorney DeRiso emphasized, "[T]here, certainly, was no intent on Mr. Wells to rob anybody....

The argument is that this is a one punch case, which through accomplice liability, may be a

15 robbery, but that intent was not utilized until after the aggravated assault/manslaughter. That's

the argument." Id. at p. 17, LL. 23-24; p. 18, LL. 9-13.

In return, the Commonwealth, through First Assistant District Attorney, Chad Schneider,

argued to the Court that DeCicco and McNerney were a "mark for a robbery from these three

Defendants. And that doesn't happen unless all these Defendants were involved." Id. at p. 19,

LL. 21-24. Mr. Schneider goes on to state that "things do not happen in a vacuum. This was all

part of one occurrence. Zachary DeCicco was approached. He was asked for his phone and his

wallet. He did not comply, and he was beaten by the Defendants." Id. at p. 20, LL. 6-10. Then,

Mr. Schneider noted that McNerney was then hit and robbed of his cell phone and wallet. Id. at

p. 20, LL. 11-14. Consequently, Mr. Schneider emphasized that the "natural and probable

consequence of a robbery is a death, and that's actually contemplated in the Felony Murder Rule,

that if somebody dies in the course of a robbery, in the furtherance of a robbery, then it falls

under the Felony Murder Rule." Id. at p. 18-23.

Based upon the aforementioned, the record belies involvement by the trial judge in

fashioning a verdict. Mr. Schneider argued that the Court impose the Felony Murder Rule, which

is second degree murder that carries a sentence of life in prison. 18 Pa.C.S.A. § 1102(b).

Furthermore, the statute governing the Pennsylvania Board of Probation and Parole instructs that

the Parole Board may not parole an inmate serving life imprisonment. 61 Pa.C.S.A. § 6137(a)(1).

And, Judge Borkowski clearly stated that, "The Court has to consider a verdict of 2" Degree

Murder...," acknowledging that the defendants "have exposure" to a 2nd Degree Murder verdict.

Transcript of Proceedings Held on May 17, 2014 at p. 22, LL. 8-9; p. 23, LL. 7-9. The Court,

however, did not accept the Commonwealth's argument for imposing such a sentence. Judge

Borkowski stated,

16 I i P

The Court will enter, consistent with my evaluation in this case, in addition to the verdict of Robbery on each Defendant, will enter verdict as to Eric Wells, 3"1 Degree Murder; as to Troy Simmons, 3"I Degree Murder; and as to Mr. Hankins, 3"1 Degree Murder. Of course, the remaining charges will be dismissed pursuant to the agreement of the parties to proceed in this posture.

Id. at p. 23, LL. 13-20.

Nevertheless, even if the trial judge were somehow involved in plea agreement

negotiations, the Defendant did not articulate how he was prejudiced. The Defendant

merely states that he is entitled to withdraw his plea. See Defendant's Brief in Support of

Amended PCRA Petition at p. 21. In the case of Commonwealth v. Vealey, 581 A.2d. 217

(Pa. Super. Ct. 1990), the appellant was sentenced to one term of incarceration of life

imprisonment; he did not file a direct appeal. Eighteen years later, however, the appellant

filed a PCHA (now known as a "PCRA") petition. Among other things, the appellant

argued that he should be allowed to withdraw his plea because his due process rights

were violated. More specifically, he alleged that the trial judge "participated in an ex

parte plea bargaining negotiation with defense counsel, entering a private plea agreement

and failing to advise the defendant of the existence of such agreement until eighteen (18)

years later." Id. at 218.

The Vealey Court discussed Evans, but did not find that the appellant's due

process rights were violated.

[A]ssuming that the agreement in question actually did exist, we have carefully reviewed the record and the parties' briefs, and find no evidence that appellant was prejudiced by it in any way, as he was unaware of it, and there is no suggestion as to how it adversely affected counsel's stewardship. Under these circumstances, we are satisfied that, although the court may have acted erroneously in appearing to enter into an arrangement with trial counsel, that error did not result in prejudice to appellant. Therefore, appellant's argument that he should be allowed to withdraw his plea because of the alleged agreement between trial counsel and the court is meritless.

17 1

Id. at 221.

It is clear to this Court, just as it was to Judge Borkowski, that the Defendant herein has

"exposure" to a second degree murder conviction based upon the record. The sentence for

second degree murder is life without parole. The trial court did not impose this sentence. Instead,

the trial court imposed a third degree murder verdict on the Defendant, as well as a single count

of Robbery. As a result, the Defendant was sentenced to 10-25 years of incarceration for the third

degree murder finding and a consecutive period of 3-6 years of incarceration for the robbery

charge, with a 5 year period of probation to follow. Therefore, the Defendant was not prejudiced

and, in turn, the Defendant has failed to satisfy the standard for relief based on ineffective

assistance of counsel.

BY THE COURT,