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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN EDWARD BOYER
Appellant No. 147 MDA 2014
Appeal from the PCRA Order January 21, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002326-2012
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 16, 2014
Appellant, Brian Edward Boyer, appeals pro se from the January 21,
2014 order dismissing his first petition for relief filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.
We summarize the factual and procedural background of this case as
follows. On June 8, 2012, the Commonwealth filed an information charging
Appellant with 17 counts of sexual abuse of children.1 On January 16, 2013,
Appellant entered into a negotiated guilty plea for one count of sexual abuse
of children. Pursuant to said agreement, the same day, the trial court
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1
18 Pa.C.S.A. § 6312(d)(1).
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remaining 16 counts were dismissed. Appellant did not file a post-sentence
motion with the trial court, nor did he file a direct appeal with this Court.
On May 7, 2013, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel. After several extensions, on October 30,
2013, PCRA counsel filed a petition to withdraw as counsel along with a no-
merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), and their progeny. On December 20, 2013, the PCRA court entered
an order notifying Appellant of its intent to dismiss his PCRA petition without
a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907, and
response. The PC
petition without a hearing on January 21, 2014. On January 21, 2014,
Appellant filed a timely pro se notice of appeal.2 On January 27, 2014,
Appellant filed a timely amended pro se notice of appeal.3
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2
however, that the certified record contains the envelope in which Appellant
mailed the motion, which is postmarked January 21, 2014. Under the
prisoner a pro se
Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal
denied, 46 A.3d 715 (Pa. 2012). Therefore, we treat January 21, 2014 as
the filing date.
3
however, the certified record contains the postmark bearing the date of
(Footnote Continued Next Page)
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On appeal, Appellant raises four issues for our review.
1.
involuntary and unknowing manner?
2.
coercive tactics of his trial counsel?
3. Was trial counsel ineffective for failing to move
when requested to do so?
4. Was trial counsel ineffective for failing to
properly investigate, subpoena police and
parole records concerning issues related to the
search and interview of Jeff Fink as a possible
alternative suspect and/or witness and
subpoena potential witnesses and investigate
We begin by noting our well- In reviewing
the denial of PCRA
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
dings
of the PCRA court and the evidence of record, viewed in the light most
Commonwealth v.
Spotz -settled
_______________________
(Footnote Continued)
January 27, 2014. Therefore, pursuant to the prisoner mailbox rule we treat
January 27, 2014 as the filing date. See Chambers, supra. We also note
that Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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determinations are binding upon an appellate
Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
The Sixth Amendment to the Federal Constitution provides in relevant
4
to have the Assistance of Counsel f U.S. Const. amend. vi.
The Supreme Court has long held that the Counsel Clause includes the right
to the effective assistance of counsel. See generally Strickland v.
Washington, 466 U.S. 668, 686; Commonwealth v. Pierce, 527 A.2d
973, 975 (Pa. 1987).
Fears, supra at 804 (brackets in original; citation omitted). To prevail on
any claim of ineffective assistance of counsel, a PCRA petitioner must allege
had no reasonable strategic basis for his action or inaction; and (3) the
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4
Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
[i]n all criminal prosecutions the accused hath a right to be
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.
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petitioner was prejudiced that is, but f
there is a reasonable likelihood the outcome of the proceedings would have
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
Commonwealth v. Elliott, 80
A.3d 415, 427 (Pa. 2013) (citation omitted).
We also note that a PCRA petitioner is not automatically entitled to an
g a
petition without a hearing for an abuse of discretion. Commonwealth v.
Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted).
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
n to decline to hold a hearing if
support either in the record or other evidence. 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. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal
fishing expedition for any possible evidence that may support some
Roney, supra at 605 (citation
omitted).
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together. In his first two issues, Appellant avers that his guilty plea was not
tactics of counsel.
included the following.
Appellant repeatedly contacted counsel and
requested that she perform services on his behalf
that would actually form a valid defense at trial.
Included in these requests were (1) subpoenaing
police and parole records; (2) establishing a chain of
custody on the cell phone in which the pornographic
establish an illegal search and seizure argument, as
well as determining whether or not he possessed the
parole authorities; (4) failing to obtain prior
statements made by Debra Mohring to use as
impeachment to her testimony; (5) failing to
interview Carol Boyer as a potential defense witness;
Id. at 9-10. In his fourth issue, Appellant avers that counsel was ineffective
for not performing some of the above-
Appellant made voluminous requests for [counsel] to
contact him concerning a trial strategy, specifically,
to seek certain parole and police records that would
had a prior conviction for invasion of privacy, and did
in fact possess the cell phone in question prior to it
being discovered with child pornography on it.
Further, [] Appellant sought for [counsel] to
subpoena certain witnesses that would have cast
witness, Debra Mohring.
Id. at 13.
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In order to be eligible for relief under the PCRA, the statute requires
the petitioner to show the following by a preponderance of the evidence.
§ 9543. Eligibility for relief
(a) General rule.--To be eligible for relief under
this subchapter, the petitioner must plead and prove
by a preponderance of the evidence all of the
following:
(2) That the conviction or sentence resulted from
one or more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or laws of
the United States 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) Ineffective assistance 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.
(iii) A plea of guilty unlawfully induced where
the circumstances make it likely that the
inducement caused the petitioner to plead
guilty and the petitioner is innocent.
(3) That the allegation of error has not been
previously litigated or waived.
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42 Pa.C.S.A. § 9543(a). A if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary
Id.
§ 9544(b). It is also axiomatic that when a defendant pleads guilty he or
she
Commonwealth v. Barbaro, 94 A.3d 389,
391 n.2 (Pa. Super. 2014) (citation omitted).
In the case sub judice, Appellant did not file a direct appeal in this
Court after his guilty plea was entered and his sentence imposed. Appellant
could have raised the issue of the voluntariness of his plea directly in such
an appeal, but he did not. Therefore, the issue is waived under the
parameters of the PCRA. See 42 Pa.C.S.A. §§ 9543(a), 9544(b); accord
Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal
denied
warrant relief.
tactics is more properly viewed as a claim that counsel was ineffective for
not performing those tasks. See -10 (analyzing claim
under the ineffective assistance of counsel rubric). As noted above,
Id. at 13-14.
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outcome of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily, and intelligently
Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013)
Thus, to establish
prejudice, the defendant must show that there is a reasonable probability
have insisted on going to trial. Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014) (citation omitted), appeal denied, --- A.3d ---, 95
WAL 2014 (Pa. 2014).
during the plea colloquy, and a defendant may not later offer reasons for
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012)
(citations omitted; brackets in original), appeal denied, 63 A.3d 773 (Pa.
2013).
The longstanding rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by
asserting that he lied while under oath, even if he
defendant who elects to plead guilty has a duty to
answer questions truthfully. We [cannot] permit a
defendant to postpone the final disposition of his
case by lying to the court and later alleging that his
lies were induced by the prompting of counsel.
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Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)
(citations omitted; brackets in original), appeal denied, 940 A.2d 365 (Pa.
2007); see also Brown, supra.
In this case, when Appellant entered his guilty plea, the trial court
engaged in a plea colloquy as required by Pennsylvania Rule of Criminal
Procedure 590. See generally N.T., 1/16/13, at 2-5; Pa.R.Crim.P. 590,
cmt.; Commonwealth v. Prendes, --- A.3d ---, 2014 WL 3586262, *10
(P [u]nder Rule 590
that a defendant understands: (1) the nature of the charges to which he is
pleading guilty; (2) the factual basis for the plea; (3) he is giving up his
right to trial by jury; (4) and the presumption of innocence; (5) he is aware
of the permissible ranges of sentences and fines possible; and (6) the court
is not bound by the terms of the agreement unless the court accepts the
Among the questions asked of Appellant was whether he was
Id. at 3. Appellant answered this question in
the affirmative. Id. As a result, Appellant cannot now claim that he was not
of these See Brown, supra
[Brown] felt coerced, at
[he] testified that it was his decision to plead guilty, and that he was
satisfied with the representation provided by counsel
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added). Therefore, Appellant is not entitled to relief on his second and
fourth issues.
was ineffective for not filing a motion to withdraw his guilty plea when being
asked to do so. Appellan
letter to counsel on February 1, 2013 asking her to file a motion to withdraw
a guilty plea. Id.
Exhibit B.5
a written post-
sentence motion shall be filed no later than 10 days after imposition of
validity of a plea of guilt Id. at 720(B)(1). In this case, Appellant was
sentenced on January 16, 2013. As a result, any post-sentence motion
requesting that Appellant be permitted to withdraw his guilty plea was
required to be filed by January 28, 2013.6 Appellant did not make any other
request for counsel to file a motion to withdraw his guilty plea. Therefore,
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5
We note that this letter does not appear in the certified record, nor is there
any indication that this letter was mailed to counsel, much less received by
counsel. However, even assuming arguendo that it was, for the reasons
discussed infra, it would not entitle Appellant to relief.
6
We note that the tenth day, January 26, 2013, was a Saturday. It is
axiomatic that when calculating a filing period, weekends are excluded from
this computation. 1 Pa.C.S.A. § 1908. Therefore, Appellant had until
Monday, January 28, 2013 to timely file his post-sentence motion.
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to file a motion to withdraw his guilty plea, the filing period for such a
motion had already expired. See id. at 720(A). It is axiomatic that counsel
cannot be ineffective for failing to raise an issue that cannot be addressed by
the trial court. See, e.g., Fears, supra
deemed ineffective for failing to rais
omitted). A
court properly refused to grant relief. See Simpson, supra.
are waived or devoid of merit. We further conclude the PCRA court did not
hearing. See Roney, supra
2014 order is affirmed.
Order affirmed.
Judge Lazarus joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
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Com. v. Boyer, B.
Combined Opinion