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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM BERRIOZ
Appellant No. 1747 EDA 2014
Appeal from the PCRA Order May 15, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001043-2011
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED APRIL 21, 2015
Appellant William Berrioz appeals from the dismissal of his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541
et seq. Appellant’s counsel filed a Turner/Finley1 letter with this Court
and a motion seeking permission to withdraw as counsel. We affirm and
grant counsel’s motion.
The trial court summarized the factual and procedural history as
follows:
[Appellant] was arrested on January 6, 2011, after he
stabbed a stranger in a public restroom. He stabbed the
victim several times in the chest, back, neck, face and
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*
Retired Senior Judge assigned to the Superior Court.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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head with a large 8 1/2” blade, puncturing and collapsing
the victim’s lung. A security guard tried to restrain
[Appellant] but he escaped onto the street. The security
guard waved down police, who arrested [Appellant] and
recovered the large knife from his person. On April 14,
2011, [Appellant] appeared before the Honorable Harold
Kane and, after a full on-the-record colloquy, pled guilty to
attempted murder, robbery, possessing an instrument of
crime and simple assault.[2] The matter was continued for
sentencing so that a presentence investigation report and
mental health evaluation could be completed. On July 7,
2011, Judge Kane sentenced [Appellant] to an aggregate
sentence of 13 to 26 years[’] state incarceration.
[Appellant] did not file a direct appeal.
On February 1, 2012, [Appellant] filed a timely pro se
PCRA petition.1 On August 20, 2012, appointed PCRA
counsel filed an Amended PCRA petition. The
Commonwealth filed a Motion to Dismiss on January 16,
2014. On April 21, 2014, this [c]ourt sent [Appellant] a
Notice Pursuant to Rule of Criminal Procedure 907,
informing him that his petition would be dismissed without
further proceedings because the issues raised were without
merit. On May 7, 2014, [Appellant] replied to the 907
Notice; his attorney replied on May 12, 2014. On May 16,
2014, this [c]ourt dismissed [Appellant’s] PCRA petition
based upon lack of merit. On June 16, 2014, [Appellant]
appealed this dismissal to Superior Court.
1
The matter was reassigned to [the Honorable
Genece E. Brinkley] on March 18, 2014.
Trial Court Opinion, 10/9/2014, at 1-2.
The trial court granted PCRA counsel’s motion to withdraw3 and
appointed new counsel on appeal. Appointed counsel and the trial court
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2
18 P.S. §§ 901(a), 3701(a)(1), 907(a), and 2701(a), respectively.
3
Counsel sought leave to withdraw as counsel after the PCRA court
dismissed Appellant’s PCRA petition.
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complied with Pennsylvania Rule of Appellate Procedure 1925. On
November 12, 2014, counsel filed a Turner/Finley letter with this Court
and a motion seeking permission to withdraw.
Before we may address the merits of Appellant’s claim, “we must
determine if counsel has satisfied the requirements to be permitted to
withdraw from further representation.” Commonwealth v. Freeland, 106
A.3d 768, 774 (Pa.Super.2014). Competent PCRA counsel must conduct an
independent review of the record before we can authorize counsel’s
withdrawal. Id. The independent review
requires counsel to file a ‘no-merit’ letter detailing the
nature and extent of his review and list[ing] each issue the
petitioner wishes to have examined, explaining why those
issues are meritless. The PCRA court, or an appellate court
if the no-merit letter is filed before it, then must conduct
its own independent evaluation of the record and agree
with counsel that the petition is without merit.
Id. (internal citation omitted).
PCRA counsel must also “serve a copy on the petitioner of counsel’s
application to withdraw as counsel, and must supply to the petitioner both a
copy of the ‘no-merit’ letter and a statement advising the petitioner that, in
the event that the court grants the application of counsel to withdraw, he or
she has the right to proceed pro se or with the assistance of privately
retained counsel.” Commonwealth v. Widgins, 29 A.3d 816, 818
(Pa.Super.2011) (quoting Commonwealth v. Friend, 896 A.2d 607
(Pa.Super.2006), abrogated in part by Commonwealth v. Pitts, 981 A.2d
875, 876 (Pa.2009)).
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PCRA appellate counsel filed a Turner/Finley letter. Counsel
reviewed the record and the applicable law, listed the issues Appellant
wished to have examined, and explained why the issues are meritless.
Counsel also mailed a copy of the no-merit letter and a copy of his motion
seeking permission to withdraw as counsel to Appellant and informed
Appellant of his right to proceed pro se or with privately-retained counsel to
raise any points he deemed worthy of consideration. Motion Seeking
Permission to Withdraw as Counsel at Exh. 2, Letter from John Belli, Esq. to
William Berrioz dated Nov. 4, 2014. Counsel has substantially complied with
the dictates of Turner/Finley.
We will now address the merits of the claim raised. Appellant did not
file a pro se brief or a brief by privately-retained counsel and we will
therefore review the merits of the claim raised in his 1925(a) statement and
the Turner/Finley letter.
Appellant raises the following issue in his 1925(b) statement:
The PCRA court committed an abuse of discretion in
dismissing Appellant’s PCRA petition without a hearing by
finding that his claims that trial counsel was ineffective for
failing to pursue a possible insanity defense or plea of
guilty but mentally ill and for failing to file a motion to
suppress Appellant’s statement to police lacked merit did
[sic] not warrant an evidentiary hearing.
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Matters Complained of on Appeal (unnecessary capitalization omitted). 4 This
claim alleges two underlying issues: (1) trial counsel ineffectiveness for
failing to pursue an insanity defense or a plea of guilty but mentally ill; and
(2) trial counsel ineffectiveness for failing to file a motion to suppress
Appellant’s statement to police. The issues lack merit.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa.1997)).
A petitioner’s right to an evidentiary hearing on PCRA
is not absolute. It is within the PCRA court’s discretion to
decline to hold a hearing if the petitioner’s claim is patently
frivolous and has no 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
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4
The Turner/Finley letter states the claim as follows:
The PCRA court committed an abuse of discretion in
denying [Appellant] relief without a PCRA hearing.
Letter from John M. Belli, Esq. to Joseph D. Setelyn, Esq. dated Oct. 28,
2014, at 4 (unnecessary capitalization omitted). The letter discusses the
two underlying issues from the question presented in the matters
complained of on appeal, i.e., trial counsel was ineffective for failing to
pursue a possible insanity defense or plea of guilty but mentally ill and trial
counsel was ineffective for failing to file a motion to suppress Appellant’s
statement to police. Id. at 4-13.
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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
citations omitted).
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) that the underlying claim has merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) but for
the errors or omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.” Ousley, 21 A.3d at
1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279
(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove
any one of the three [ineffectiveness] prongs results in the failure of
petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).
Appellant first alleges the PCRA court should have conducted a hearing
to determine whether trial counsel was ineffective for not pursuing an
insanity defense or a plea of guilty but mentally ill. Turner/Finley Letter at
5. This claim lacks merit.
“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) (citing Commonwealth v.
Allen, 732 A.2d 582 (Pa.1999)). Whether a plea was voluntary “depends on
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whether counsel’s advice was within the range of competence demanded of
attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733
(Pa.Super.2003) (quoting Hickman, 799 A.2d at 141).
“[T]he law does not require that [the defendant] be pleased with the
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
made.” Commonwealth v. Willis, 68 A.3d 997, 1001 (Pa.Super.2013)
(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.
2010) (alterations in original)). A guilty plea colloquy must “affirmatively
demonstrate the defendant understood what the plea connoted and its
consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d
497, 501 (Pa.Super.1998)). After a defendant enters a guilty plea, “it is
presumed that he was aware of what he was doing, and the burden of
proving involuntariness is upon him.” Id. (quoting Commonwealth v.
Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).
Whether a defendant is competent to plead guilty “requires a finding
that the defendant comprehends the crime for which he stands accused, is
able to cooperate with his counsel in forming a rational defense, and has a
rational and factual understanding of the proceedings against him.” Willis,
68 A.3d at 1002 (citing Commonwealth v. Turetsky, 925 A.2d 876
(Pa.Super.2007)).
To establish an insanity defense, a defendant must prove “by the
preponderance of the evidence that the actor was legally insane at the time
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of the commission of the offense.” 18 Pa.C.S. § 315(a). “Legally insane” is
defined as “at the time of the commission of the offense, the actor was
laboring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing or, if the actor did know
the quality of the act, that he did not know that what he was doing was
wrong.” 18 Pa.C.S. § 315(b).
A defendant who is mentally ill may waive his right to trial and plead
guilty but mentally ill. A court may not accept a plea of guilty but mentally
ill until it “has examined all reports prepared pursuant to the Rules of
Criminal Procedure, has held a hearing on the sole issue of the defendant’s
mental illness at which either party may present evidence and is satisfied
that the defendant was mentally ill at the time of the offense to which the
plea is entered. . . .” 18 Pa.C.S. § 314(b). A mentally ill individual is
defined as “[o]ne who as a result of mental disease or defect, lacks
substantial capacity either to appreciate the wrongfulness of his conduct or
to conform his conduct to the requirements of the law.” 18 Pa.C.S. §
314(c)(1).
At Appellant’s guilty plea hearing, the following exchange occurred:
THE COURT: You have been diagnosed with bipolar
disorder and you are suffering from schizophrenia?
THE DEFENDANT: Yes.
THE COURT: Do you take medication for that?
THE DEFENDANT: No, Your Honor.
THE COURT: Pardon me?
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THE DEFENDANT: No, Your Honor.
THE COURT: You don’t now?
THE DEFENDANT: No.
THE COURT: Do you understand the proceedings and
what’s going on here today?
THE DEFENDANT: Yes.
THE COURT: Are you able to communicate with your
lawyer?
THE DEFENDANT: Yes.
THE COURT: You are not under the influence of any drugs
or alcohol, are you?
THE DEFENDANT: No.
THE COURT: Your lawyer went over this form with you?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Did she explain it to you?
THE DEFENDANT: Yes.
THE COURT: Do you understand it?
THE DEFENDANT: Yes.
N.T., 4/14/2014, at 3-4. Appellant also signed a written guilty plea colloquy,
detailing, inter alia, the rights he waived if he pled guilty. Commonwealth’s
Motion to Dismiss at Exh. B, Written Guilty Plea Colloquy (“Written
Colloquy”). On the Written Colloquy Appellant wrote “prior diagnosis of
schizophrenia and bipolar” under the pre-printed phrase “I have never seen
a doctor or been in a hospital for any mental problems – I can understand
what is going on.” Id. He placed a check mark next to the phrase. Id.
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At the conclusion of the guilty plea, the trial court ordered a pre-
sentence report and a mental health evaluation. Id. at 7. The mental
health evaluation described Appellant as “calm and cooperative,” and stated
he was “awake, alert, and oriented to person, place and time,” and he
denied “auditory or visual hallucinations” and “suicidal and homicidal
ideations.” Opinion, 10/9/2014, at 5; Commonwealth’s Motion to Dismiss at
Exh. C, Mental Health Evaluation at 2, (“Mental Health Evaluation”). It
further stated that Appellant’s “insight and judgment was fair.” Mental
Health Evaluation at 2. The report recommended dual diagnosis treatment
for Appellant’s mental health and substance abuse problems and anger
management therapy. Opinion, 10/9/2014, at 5; Mental Health Evaluation
at 2. It did not suggest Appellant was incompetent or severely mentally ill.
Id. At the sentencing, defense counsel noted that in the pre-sentence
report and the mental health report “there is a large indication of
[Appellant’s] mental illness, which will probably be life-long, of being bi-
polar, and all the other matters that are mentioned in here.” N.T.,
7/7/2011, at 10.
Appellant entered a knowing, intelligent, and voluntary plea. At the
guilty plea, he testified that he understood the proceedings and was able to
communicate with counsel. See Willis, 68 A.3d at 1008-09 (denying
ineffective assistance of counsel claim alleging counsel should have
investigated defendant’s competence where defendant made statements at
colloquy indicating he was not under the influence of drugs, alcohol, or
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medication and understood the proceedings). He is bound by these
statements. See id. (defendant bound by statements at guilty plea
colloquy). Further, Appellant offered no evidence to establish he was legally
insane or mentally ill at the time he committed the crime or to establish trial
counsel should have suspected he was legally insane or mentally ill at the
time he committed the crime. See id. (counsel not ineffective for failing to
investigate defendant’s competence where there was no evidence known to
counsel that would have caused a reasonable attorney to conduct a further
investigation).
Because Appellant’s claim lacked merit, the PCRA court acted within its
discretion when it denied a hearing. See Wah, 42 A.3d at 338.
Appellant next claims the PCRA court should have granted a hearing
on his claim that trial counsel was ineffective for not filing a motion to
suppress the statement he made following his arrest. Turner/Finley Letter
at 11. He claims the police officers failed to provide him Miranda5
warnings. Appellant’s written statement to police lists his Miranda rights.
Appellant answered that he understood each right, did not wish to remain
silent, and did not want to talk to a lawyer. He also initialed under each
right. Statement of William J. Berrioz, dated 1/6/2011 at 1-2. Therefore,
his claim that police did not provide him with the Miranda warnings is
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5
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
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meritless. Because the underlying claim lacks merit, Appellant’s
ineffectiveness of counsel claim also lacks merit and the PCRA court did not
err in not conducting a hearing. Wah, 42 A.3d 335, 338 (Pa.Super.2012);
Ousley, 21 A.3d at 1244.
PCRA appellate counsel also notes in the Turner/Finley letter that
Appellant asserted PCRA counsel was ineffective for failing to present
evidence to support his claim that trial counsel was ineffective for failing to
pursue an insanity defense or plea of guilty but mentally ill. Turner/Finley
Letter at 12 n.3. Appellant waived this claim because he failed to raise it in
his 1925(b) statement. Regardless, the claim lacks merit. As discussed
above, trial counsel was not ineffective for failing to pursue an insanity
defense or a plea of guilty but mentally ill. Therefore, because trial counsel
was not ineffective, PCRA counsel also was not ineffective. Commonwealth
v. Paddy, 15 A.3d 431, 445 (Pa.2011) (because claims of trial counsel
ineffectiveness lack merit, appellant’s derivative claims of appellate counsel
ineffectiveness for failing to raise trial counsel ineffectiveness fail).
Our independent review of the record has revealed no meritorious
claims that Appellant could have raised, and we agree with counsel that this
appeal lacks merit. Accordingly, we affirm the order dismissing the PCRA
petition and grant counsel’s motion seeking permission to withdraw.
Order affirmed and motion to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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