J-S65014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAREEN GLASS
Appellant No. 3142 EDA 2013
Appeal from the PCRA Order October 4, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0502891-2005
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED JANUARY 30, 2015
Appellant, Kareen Glass, appeals from the order entered October 4,
2013, by the Honorable M. Teresa Sarmina, Court of Common Pleas of
Philadelphia County, which denied Glass’s Post Conviction Relief Act 1
(“PCRA”) petition. We affirm.
Following a jury trial on October 21, 2008, Glass was convicted of
murder in the first degree, attempted murder, aggravated assault,
possessing an instrument of crime, and recklessly endangering another
person.2 The following day Glass appeared at a penalty phase hearing. At
the hearing, Glass’s attorney, Jack McMahon, Esquire, indicated to the court
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9541-9546.
2
18 Pa.C.S.A. §§ 2502(a), 901, 2702(a)(1), 907(a) and 2705.
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that he had reached an agreement with the Commonwealth whereby Glass
agreed to waive his appellate rights in return for withdrawal of the death
penalty. See N.T., Penalty Hearing, 10/22/08 at 5-6. After much discussion
and an extensive colloquy, the trial court accepted the agreement and
sentenced Glass to life imprisonment.
Glass filed a pro se PCRA petition. The PCRA court appointed Janice
Smarro, Esquire, as counsel and Attorney Smarro filed an amended PCRA
petition seeking reinstatement of Glass’s appellate rights nunc pro tunc.
Following a hearing, the PCRA court announced notice of its intent to dismiss
Glass’s petition pursuant to Pa.R.Crim.P. 907. Thereafter, the PCRA court
removed Attorney Smarro and appointed David Rudenstein, Esquire, as
PCRA counsel. Attorney Rudenstein filed a second amended PCRA petition,
in which he alleged that trial counsel’s lack of preparation for the penalty
hearing caused Glass to waive his appellate rights. Following evidentiary
hearings, the trial court denied Glass’s PCRA petition. See Order, 10/04/13.
This timely appeal followed.3
On appeal, Glass raises the following issue for our review:
Was [Glass] denied the effective assistance of capital sentencing
counsel who, as a matter of adjudicated fact, was not prepared
____________________________________________
3
Glass filed a pro se notice of appeal on October 23, 2014. The PCRA court
conducted a Grazier hearing, at the conclusion of which the court accepted
Glass’s pro se notice of appeal and removed Attorney Rudenstein as counsel.
See Order, 11/21/13. Todd Michael Mosser, Esquire, then entered his
appearance for the purposes of this appeal.
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to proceed to sentencing, and in turn, caused [Glass] to waive all
of his appellate rights, which included waiving viable issues for
direct appeal as well as a colorable ineffective assistance of trial
counsel claim under the PCRA?
Appellant’s Brief at 4.
“Our standard of review of a trial court order granting or denying relief
under the PCRA calls upon us to determine whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)
(citation and internal quotation marks omitted). “The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record.” Id. (citation omitted). The PCRA court’s credibility
determinations are binding on this Court, where there is record support for
those determinations. See Commonwealth v. Timchak, 69 A.3d 765, 769
(Pa. Super. 2013).
To establish ineffectiveness of counsel, “a PCRA petitioner must show
the underlying claim has arguable merit, counsel’s actions lacked any
reasonable basis, and counsel's actions prejudiced the petitioner.”
Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citation
omitted), appeal denied, 84 A.3d 1062 (Pa. 2014). “Prejudice means that,
absent counsel’s conduct, there is a reasonable probability the outcome of
the proceedings would have been different.” Id. If a reasonable basis
exists for the particular course chosen by counsel, the inquiry ends and
counsel’s performance is deemed constitutionally effective.
Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003) (citations
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omitted). Failure to satisfy any prong of the test requires that the claim be
dismissed. See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.
Super. 2004).
Glass’s waiver of appellate review in exchange for the
Commonwealth’s agreement to a sentence of life imprisonment was
undoubtedly the functional equivalent to the entry of a guilty plea. Accord
Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. Super. 1996),
appeal denied, 693 A.2d 585 (Pa. 1997) (waiver of post-trial review
functional equivalent of plea of guilty). “A criminal defendant has the right
to effective counsel during a plea process as well as during trial.”
Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006)
(quotation omitted). “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. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)
(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. (citations and internal quotation marks omitted). “A person who
elects to plead guilty is bound by the statements he makes in open court
while under oath and he may not later assert grounds for withdrawing the
plea which contradict the statements he made at his plea colloquy.”
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Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citation
omitted).
Instantly, the PCRA court agreed with Glass that defense counsel was
unprepared to present mitigation evidence at the penalty phase hearing. 4
However, the court determined that counsel’s lack of preparedness for the
penalty hearing did not render the waiver of Glass’s appellate rights
unknowing or involuntary. The PCRA court concluded, among other things,
that Glass “failed to demonstrate that, but for counsel’s lacking penalty
phase preparation, petitioner would have elected not to waive his appellate
rights and would have instead proceeded to the penalty phase hearing.”
PCRA Court Opinion, 2/6/14 at 13.
After careful review of the briefs submitted by counsel and the record
in this matter, we find that the Honorable M. Teresa Sarmina has so
thoroughly addressed and properly rejected the issue raised by Glass that
further discussion of the issue would be purposeless. Accordingly, we adopt
the opinion of the PCRA court as fully dispositive of the issue raised on
appeal. Id. at 7-16. Therefore, we affirm the order denying PCRA relief.
Order affirmed.
____________________________________________
4
The PCRA court thoroughly details the facts and reasoning behind this
conclusion in its 1925(a) opinion. See PCRA Court Opinion, 2/6/14 at 5
n.12.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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PHILADELPHIA COURT OF COMMON PLEAS
CRIMINAL TRIAL DIVISION
COMMONWEALTH
CP-S1-CR-OS02891-2005
v. Superior Court No.
3142 EDA 2013
KAREEN GLASS
Sarmina, J.
February 6, 2014 F~lED
FEB 062014
OPINION
Criminal Appeals Unit
PROCEDURAL HISTORY First Judicial District 01 PA
On October 21,2008, following a jury trial t before this Court, Kareen Glass (hereafter,
petitioner) was ,convicted of murder of the first degree (H-1) for the death of Tyreke Gaymon
(fyreke), attempted murder (F-l) of Tyreese Allen (Tyreese), aggtavated assault (F-l) of Tyreese,
possessing an instrument of crime (PIC) (M-l), and recklessly endangering another person (REAP)
(lvf-2),2 The next day, petitioner appeared before this Court to begin a penalty phase hearing.
Instead, on that date, after consultation with counsel, petitioner agreed to waive all appellate and
post-conviction rights 3 in exchange for teceiving a life sentence without the possibility of parole; this
Court conducted a colloquy with petitioner regarding that waiver and found it to be knowing,
intelligent and voluntmy, Notes of Testimony (N.T.) 10/22/2008 at 42. This Court then sentenced
1 Petitioner was reprc5cntcd at trial by Jack McMahon, Esquire.
218 Pa.C.S. §§ 2502(a), 901, 2702(a)(1), 907 (n), and 2705, respectively.
3 Petitioner agreed to waive his rights to file a direct appelll, a peRA petition, an application for commutation of
sentence, ns well as an application for pardon. Notes of Testimony (NT.) 10/22/2008 at 42. This Court refers to the
rights forfeited by petitioner, collectively, as his "appellate rights."
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petitioner to the mandatoty term 4 of life imprisonment.s
On July 10, 2009, petitioner filed a timely pro se petition pursuant to the PostHConviction
Relief Act (pCRA).6 On October 21, 2011, David Rudenstein, Esquire, filed an amended petition.7
Mr. Rudenstein supplemented his amended petition with an additional filing on July 12, 2012. On
September 14, 2012, the Commonwealth filed its answer; Mr, Rudenstein responded on November
19,2012 and again on FebrualY 19,2013. On April 26, 2013 and Aptil 29, 2013, this Court held an
evidentiary hearing pursuant to Pa.R.Crim,P, 908 (908 Hearing) to address petitioner's claim that
trial counsel was ineffective for coercing petitioner to waive his appellate rights. At the conclusion
of the 908 Hearing, Mr. Rudenstein requested an opportunity to review the notes of testimony from
the hearing and to present oral argument at a later date. N.T. 4/29/2013 at 130, On July 9, 2013,
this Court heard argument. After considering the pleadings, the evidence presented at the 908
Hearing, the oral argument, and conducting an independent review, this Court found that
petitioner's claims lacked merit and, on September 11, 2013, sent petitioner notice pursuant to
Pa.R.Crim.P. 907 (907 Notice) of its intent to deny and dismiss his petition. On October 4, 2013,
this Court denied and dismissed petitioner's petition. s Petitioner filed a timely notice of appeaL9
4 18 Pa.C.S. § 1102(a).
5 As to the conviction for attempted murder, petitioner was sentenced to a consecutive term of not less than 20 years
nor more than 40 years confinement. N.T. 10/22/2008 at 48. As to the conviction for PIC, this Court imposed a
concurrent sentence of not less than nine months nor more than five years confinement. Petitioner's convictions for
aggravated assault and REAP merged for pw:poses of sentencing.
642 Pa.C.S. §§ 9541.9546.
7 On October 5, 2009.James Lammendola, Esquire, had been appointed to represent petitioner. However, this Court
found that he had not lIealously represented his client. On April 8,2010, this Court removed Mr. Ll1ffimendola and
appointed Janis Smarro, Esquhe. In June 2011, Ms. Smarro informed this Court that she was no longer taking
appointments in capital cases. As petitioner sought to challenge his appellate waiver, thus potentially subjecting him to
the death penalty, Ms. Smarro requested to ·withdraw. OnJune 17,2011, this Court permitted Ms. Smarto to withdraw.
8 Priorto dismissing petitioner's petition, this Court received a pro Ie response to the 907 Notice from petitioner,
postmarked September 27, 2013. As petitioner was still represented by 'tvfr. Rudenstein at the cime of his response, this
Court immecliately had petitioner's response hand-delivered to Mr. Rudenstein, so he could formulate a 907 Response
(FN conCd ... )
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FACTS
On September 27, 2004, petitioner confronted Maurice Gaymon (Ivlaurice) on the 1300
block of North 15th Street in Philadelphia about an incident in which petitioner's coworkers had
been robbed. NT. 10/8/2008 at 179. Petitioner asked Maurice whether he had heard about the
robbery; when Maurice said that he was unaware, petitioner told Maurice, ('If I can't get at the
[people] who did it, I'm going to get at the people they be with (sic]." Id. On September 28, 2004,
Maw;ice, Tyreke, Tyreese and Stanley Battle (Battle) wcre selling crack cocaine in front of the satne
house where petitioner had approachcd Mauxice the day before. rd. at 182. Battle left the front
steps to get a snack from a local market. N.T. 10/9/2008 at 219. Maurice retreated into the house
to make a phone cali. Id. at 65. Shortly thereafter, petitioner and a friend walked up to the curb,
eight or nine feet in front ofTyreke and Tyreese. 1O rd. at 65-66. Petitioner accused Tyreke and
Tyrecse of knowing who robbed his friend. Id. Both Tyreke and Tyreese denied involvement. rd.
at 67. Petitioner then pulled a gun from his waist, and opened fIre. Tyreese survived five gunshot
wounds to his legs and abdomen. Id. at 69.
As he pulled the gun out, I stood up. And as soon as I stood up, he shot me in my leg.
Then he shot me again on the same leg. So I spin and I tty to go in the hallway. He started
shooting at Tyreke. Then as I go in the hallways, he shoot [sic], he shoot [sic] at me again.
(FN cont'd ... )
for thls Court's consideration, if appropriate. ~ CQmmonwealth v. Glgckcn, 32 A.3d 750, 752 (pa.Super. 2011)
(''Pursuant to our Rules of Appellate Procedure and deci~ionallaw, thls Court will not review the pro Je filings of a
counseled appellant.").
9 On October 21,2013, while still represented by iYIr. Rudenstein, petitioner filed a pro Ie notice of appeal. On that same
date, petitioner wrote to tllls Court, ex,pressing his desire to proceed pro te. This Court scheduled a hearing. pu.tsunnt to
Commonwealth y. Grazier, 713 A.2d 81 (pa. 1998), for November 1,2013 -less than 30 days after petitioner's PCRA
petition had been dismissed and, tllUS, within the time frame to file a notice of a,ppeal. However, due to extenuating
circumstances involving oral argument in a separate capital PCRA litigation, thls Court was unable to hold the Gmzier
hearing as scheduled. This Court rescheduled the~ hearing for November 19,2013, on which date this Court
accepted petitioner's October 21, 2013 notice of appeal as controlling, removed MJ:. Rudenstein, and appointed new
counsel on petitioner's behalf. On November 22,2013, Todd Michael Mosser, Esquire, entered his appearance. On
January 6, 2014, N11:. Mosser filed a Statement ofMattcI:s Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b)
(1925(b) Statement).
10 Tyreese Allen testified at a preliminary hearing on April 26, 2005. As Allen had died prior to petitioner's trial and thus
was unavailable, IllS preliminary hearing testimony was admitted at trial pursuant to Pa.R.E. 804(b)(1).
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Then when he had hit me in this leg, as he hit me in this leg, my whole - I lost all feeling in
my leg. So I collapsed to the ground - as I collapsed to the ground, I started crawling. This
guy still shooting.
So the next thing you know, he finally stops shooting. I call for my aunt and everybody to
come outside. I see him running down the street or whatever, but I turned around and told
Tyreke to hold on. I'm like hold on, everybody, because they called on - they called the
cops and the cops on they way [sic]. Tyreke lift his head up, laid his head back down, and
ain't move again.
N.T. 10/9/2008 at 68.
On Battle's walk back from the store, as he was four or five houses away from his friends, he
saw petitioner pull a gtm from his waist band and begin shooting. Id. at 226. As petitioner lifted his
gun and shot Tyreke, Battle froze. Id. "I'm still looking at him. Then he start [sic] looking rapidly,
boom, boom. I took off running. I didn't want him to cut his eye on me, start shooting at me. I
took off running." Id. After running around the block, Battle returned to the front porch to find
Tyreke "dead" with a "big hole in his head," and Tyreese yelling for help in pain. Id. at 232.
Tyreke was pronounced dead at tlle scene of the shooting at 10:25 AM. rd. at 124. He
suffered a perforating gunshot wound to the left side of his head, passing through his brain before
exiting the tight backside of his head. 11 N.T. 10/9/2008 at 127.
LEGAL ANALYSIS
Petitioner raised three claims in his 1925(b) Statement. As the facts underlying claims two
and three are closely related, this Court will address those two issues together.
(1) The PCRA Court erred by finding that sentencing counsel's unpreparedness did not
"cause" petitioner to waive his appellate rights.
Petitioner contends that sentencing counsel was ineffective, as he was ill-prepared to
represent petitioner at a penalty phase hearing and, therefore, petitioner's waiver of his appellate
rights was not knowing, intelligent and voluntary. Supplemental Amended PetitiQn, 7/12/2012 at 2-
3. "Having been unprepared to proceed, counsel was in no position to offet any competent,
11 Tyrekc also suffered gunshot wounds to his left shoulder and abdomen. N.T. 10/9/2008 at 130-32.
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objective advice about [petitioner's] chances at [a penalty phase} hearing/' 1925(b) Statement,
1/6/2014 at 2. Petitionet argues that counsel's lack of preparedness vitiated the voluntariness of his
waiver. rd.
This Court found that sentencing counsel was, in fact, unprepared to present a penalty phase
12
heru:ing. However, claims of ineffective assistance of counsel in the context of entering a waiver of
12 This Court found that Mr. McMahon was not prepared to represent petitioner adequately at the penalty phase
pwceeding. Mr. McMahon was aware that petitioner had suffered significant cognitive damage as the result of a beating
by police officers. N.T. 4/26/2013 at 59-60. However, Mr. McMahon did not secure a witness who could have
explained, to a reasonable degree of scientific certrunty, the cognitive impainnents that petitioner suffered. Mr.
McMahon stated that he planned to introduc;e evidence that petitioner's capacity to appreciate the criminality of his
conduct was substantially impaired - pursuant to 42 Pa.C.S. § 9711(e)(3) - in two ways: (1) through the testimony of
Neil Jokelson, Esquire, one of the attorneys who had represented petitioner in his federal civil trial ag