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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GEROME WRIGHT,
Appellant No. 2740 EDA 2014
Appeal from the PCRA Order of August 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006089-2010
BEFORE: MUNDY, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 11, 2015
Appellant, Gerome Wright, appeals pro se from the August 29, 2014
order dismissing his first petition filed pursuant to the Post-Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The factual background and procedural history of this case are as
follows. On February 4, 2010, Raymond Roberts (“Roberts”) was working as
the doorman at the Evergreen Tower Apartments. He learned of a
disturbance in one of the apartment units. Roberts, along with Kevin Quinn
(“Quinn”), another employee at the apartment building, investigated the
disturbance. Upon entering the apartment unit, Roberts and Quinn were
met by Appellant. Appellant informed Roberts and Quinn that his
grandfather cut his finger. When Roberts went to the bedroom to confirm
this story, Appellant ran at him with a pot or pan and hit him over the head.
* Retired Senior Judge assigned to the Superior Court
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Roberts’ injuries required seven staples. As Quinn attempted to leave the
apartment unit, Appellant bit off a portion of Quinn’s face. Appellant
continued assaulting Quinn until they reached the lobby of the apartment
building. At that time, bystanders restrained Appellant until police arrived.
When police arrived at the scene, they found Appellant’s grandfather’s
body in the apartment unit. He had been stabbed several times in the head,
neck, face, and chest. He was pronounced dead at the scene. Appellant
was later questioned at police headquarters. During that interview,
Appellant admitted that he stabbed his grandfather to death.
On May 17, 2010, Appellant was charged via criminal information with
three counts of possessing an instrument of crime,1 two counts of
aggravated assault,2 two counts of simple assault,3 two counts of recklessly
endangering another person,4 and homicide.5 On February 7, 2012,
pursuant to a negotiated plea agreement, Appellant pled guilty to two counts
of aggravated assault, possessing an instrument of crime, and third-degree
1
18 Pa.C.S.A. § 907.
2
18 Pa.C.S.A. § 2702.
3
18 Pa.C.S.A. § 2701.
4
18 Pa.C.S.A. § 2705.
5
18 Pa.C.S.A. § 2501.
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murder.6 He was immediately sentenced to 25 to 50 years’ imprisonment.
Appellant did not file a direct appeal.
On August 16, 2012, Appellant filed a pro se PCRA petition. On July
12, 2013, counsel was appointed. On June 3, 2014, PCRA counsel filed a
motion to withdraw as counsel along with a “no merit” letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
July 28, 2014, the PCRA court issued notice, pursuant to Pennsylvania Rule
of Criminal Procedure 907, of its intent to dismiss Appellant’s petition
without an evidentiary hearing. Appellant responded to the Rule 907 notice.
On August 29, 2014, the PCRA court dismissed Appellant’s petition. This
timely appeal followed.7
Appellant raises three issues for our review:
1. [Was] Appellant [] denied a direct appeal when the [trial
court] merely asked the Appellant if he wanted counsel to file
an appeal at this moment[?]
2. Did the Appellant knowingly[ and] intelligently plead guilty to
the crimes for which he is now [serving a sentence] when
counsel should have known that the Appellant was mentally
ill, moreover, that the Appellant’s illness was well
documented in the county prison where he was being held
[before entering his plea]?
6
18 Pa.C.S.A. § 2502(c)
7
On September 25, 2014, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On October 16, 2014, Appellant filed his concise
statement. On December 12, 2014, the PCRA court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in Appellant’s concise
statement.
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3. Was PCRA counsel ineffective for failing to communicate with
[] Appellant and failing to do his own investigation rather than
relying on the information [] Appellant supplied in his pro se
PCRA petition?
Appellant’s Brief at 4 (emphasis removed).
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (internal
quotation marks and citation omitted). “In PCRA appeals, our scope of
review is limited to the findings of the PCRA court and the evidence on the
record of the PCRA court’s hearing, viewed in the light most favorable to the
prevailing party.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
779 (Pa. Super. 2015) (en banc) (internal quotation marks and citations
omitted).
All three of Appellant’s issues allege that either trial and/or PCRA
counsel were ineffective. As our Supreme Court has explained:
[T]o prove counsel ineffective, [a PCRA] petitioner must
demonstrate: (1) the underlying claim has arguable merit; (2)
no reasonable basis existed for counsel’s actions or failure to
act; and (3) the petitioner suffered prejudice as a result of
counsel’s error such that there is a reasonable probability that
the result of the proceeding would have been different absent
such error. Counsel is presumed to have rendered effective
assistance.
A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead,
if a claim fails under any necessary element of the
ineffectiveness test, the court may proceed to that element first.
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Finally, counsel cannot be deemed ineffective for failing to raise
a meritless claim.
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations
omitted).
In his first issue, Appellant argues that he was denied the right to file a
direct appeal in this matter. Specifically, he argues that, based upon the
trial court’s statement at sentencing, he believed that he had to file an
appeal immediately instead of filing an appeal within 30 days.
We conclude that Appellant’s underlying claim lacks arguable merit
because the trial court accurately advised Appellant of his rights. “The
courts of this Commonwealth have held that a court breakdown occur[s] in
instances where the trial court, at the time of sentencing, either fail[s] to
advise [a]ppellant of his post-sentence and appellate rights or misadvise[s]
him.” Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super.
2007), appeal denied, 960 A.2d 838 (Pa. 2008). Here, the trial court
informed Appellant, “You are entitled to the assistance of counsel for . . . the
appeal. . . . [T]he appeal would have to be done within 30 days of today’s
date. And again, you’re entitled to the assistance of counsel, and they
would represent you on appeal; if you wanted to [] file an appeal.” N.T.,
2/7/14, at 54. The trial court then asked Appellant if he wished to file an
appeal at that moment, to which he responded that he did not. Id. It is
evident from this portion of the colloquy that Appellant was properly notified
of his appellate rights. The trial court did not state, nor did it insinuate, that
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Appellant had to choose whether to appeal at that moment. Rather, it
merely asked Appellant if he wanted to appeal at that time.
To the extent that Appellant argues that trial counsel failed to file a
direct appeal on his behalf, this Court has stated that, “[t]o establish per se
ineffectiveness, a defendant must still prove that he asked counsel to file a
direct appeal.” Commonwealth v. Callahan, 101 A.3d 118, 124 n.12 (Pa.
Super. 2014). In this case, Appellant does not aver that he asked trial
counsel to file a direct appeal. Instead, he merely argues that counsel
should have filed a direct appeal on his behalf. There is no obligation,
however, for counsel to file a direct appeal on a client’s behalf if the client
does not inform counsel that he wishes to file a direct appeal. See
Commonwealth v. Haun, 32 A.3d 697, 705 (Pa. 2011).
Finally, to the extent that Appellant argues that trial counsel were
ineffective for failing to consult with him regarding filing a direct appeal, that
argument is waived.8 First, it was not included in Appellant’s PCRA petition.
Instead, Appellant’s PCRA petition merely alleged that both trial counsel
were ineffective for failing to “protect[ Appellant’s] appellate rights.” PCRA
Petition, 8/16/12, at 3. As such, it is waived. See Commonwealth v.
Baumhammers, 92 A.3d 708, 731 (Pa. 2014) (“[S]ince the present claim
was not raised in [a]ppellant’s PCRA petition, and no request was made to
amend the petition to include it, it is waived.”). Furthermore, Appellant’s
8
Appellant was represented by two attorneys at his plea hearing. See N.T.,
2/7/12, at 1.
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statement of questions involved does not fairly encompass the issue of
whether counsel failed to consult with Appellant regarding his direct
appellate rights. Therefore, this argument is also waived pursuant to
Pennsylvania Rule of Appellate Procedure 2116. Pa.R.A.P. 2116(a) (“No
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.”). Accordingly, Appellant’s first issue
on appeal is without merit.
In his second issue, Appellant argues that trial counsel were ineffective
for permitting him to plead guilty despite his mental illness. In order for a
plea to be valid, it must be made knowingly, intelligently, and voluntarily.
See Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013),
appeal denied, 87 A.3d 319 (Pa. 2014). As this Court explained, whether a
defendant possesses the mental
[c]ompetence to plead guilty[, so as to make his plea knowing,
intelligent, and voluntary,] depends upon whether the defendant
has the ability to comprehend his position as one accused of
murder and to cooperate with his counsel in making a rational
defense, and whether he has sufficient ability at the pertinent
time to consult with his lawyers with a reasonable degree of
rational understanding, and has a rational as well as factual
understanding of the proceedings against him.
Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007), appeal
denied, 940 A.2d 365 (Pa. 2008) (internal alteration, quotation marks, and
citations omitted).
We conclude that Appellant’s underlying claim lacks arguable merit.
Notwithstanding Appellant’s statement in his written plea colloquy that he
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never saw a doctor for mental illness, trial counsel raised Appellant’s
competency during the guilty plea hearing before the court. Trial counsel
noted that they believed Appellant was not competent for two years after his
arrest. See N.T., 2/7/12, at 29-30. Counsel noted that they were unable to
communicate with Appellant during that time period. Id. They stated,
however, that over the course of two years, psychiatrists at the jail treated
Appellant with strong medication and that after approximately 18 months of
treatment, they were finally able to communicate with Appellant. See id.
Counsel believed that Appellant was competent to plead guilty to the various
offenses at the conclusion of this period. See id.
It is evident from the record that trial counsel carefully considered
Appellant’s competency and only chose to proceed with a negotiated plea
agreement once they believed Appellant was competent to knowingly,
intelligently, and voluntarily plead guilty. Furthermore, the PCRA court, who
also sat as the trial court, found that Appellant was competent at the guilty
plea hearing. See PCRA Court Opinion, 12/12/14, at 5 (“[A]t the plea
hearing, [Appellant] demonstrated that he had a comprehensive
understanding that he was being charged with murder, as well as an
understanding of the nature of the proceedings against him[.]”).
We find instructive this Court’s decision in Commonwealth v. Hazen,
462 A.2d 732 (Pa. Super. 1983). In Hazen, like in the case at bar, a post-
conviction petitioner argued that trial counsel provided ineffective assistance
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because he was not competent to plead guilty. This Court noted that trial
counsel testified regarding his extensive meetings with the petitioner prior to
the guilty plea hearing and that counsel believed the petitioner was
competent to enter a guilty plea. See id. at 734. Although trial counsel’s
testimony in Hazen occurred at the Post-Conviction Hearing Act9 hearing
while trial counsels’ statements in the case at bar occurred at the plea
hearing, we find no reason to treat them differently. In both cases trial
counsel set forth a detailed history of their client’s mental illness and what
steps had been taken to ensure their client was competent to plead guilty.
Also, in both cases, counsel averred that their client was in fact competent
at the plea hearing.
The record in this case stands in stark contrast to the record in
Turetsky. Like the case at bar, the written colloquy in Turetsky contained
an inaccuracy in that it stated the defendant never saw a doctor for mental
health problems.10 At the plea hearing, however, defense counsel made
only two brief statements regarding the defendant’s mental health, i.e., that
the defendant had “psychosexual issues” and “psychological problems.”
Turetsky, 925 A.2d at 882. Trial counsel in Turetsky did not give a
detailed history of the defendant’s mental health or outline why the
defendant was competent to plead guilty. Because of counsel’s failure to
9
The Post-Conviction Hearing Act was the predecessor to the PCRA.
10
Turetsky also originated in the Court of Common Pleas of Philadelphia
County. The relevant wording of the written plea colloquies was identical.
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rectify any misstatements in the written plea colloquy, this Court vacated
and remanded the matter for an evidentiary hearing. As noted above, that
is not what occurred in this case. Accordingly, we conclude that Appellant’s
second issue is without merit.
In his third issue, Appellant claims that PCRA counsel provided
ineffective assistance. As Appellant challenges the effectiveness of PCRA
counsel – and not trial counsel – he raises a layered ineffectiveness claim.
While a layered ineffectiveness claim presents a separate and distinct claim
from the underlying ineffectiveness claim, if the underlying ineffectiveness
claim is without merit then the resultant layered ineffectiveness claim is
likewise without merit. See Commonwealth v. King, 57 A.3d 607, 624
(Pa. 2012) (citations omitted).
Appellant raised five claims in his PCRA petition: (1) he was incapable
of knowingly, intelligently, and voluntarily pleading guilty; (2) the murder
was done in self-defense; (3) trial counsel were ineffective for failing to raise
his competency at the plea hearing; (4) trial counsel were ineffective for
failing to preserve his direct appellate rights; and (5) trial counsel were
ineffective for failing to seek a pre-sentence investigation report. In order
for PCRA counsel to be deemed ineffective, at least one of these five
underlying claims must have arguable merit.
As to the first and second issues, those issues lack arguable merit
because Appellant did not allege that his trial counsel were ineffective.
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Instead, in those two issues, Appellant raised the merits of his competency
to plead guilty and the merits of his self-defense claim. As such, those
issues were without merit in the PCRA context. 42 Pa.C.S.A. § 9544(b)
(claims that could have been raised on direct appeal are waived); see
Commonwealth v. Prendes, 97 A.3d 337, 351 (Pa. Super. 2014), appeal
denied, 105 A.3d 736 (Pa. 2014) (issue of whether plea was knowing,
intelligent, and voluntary raised on direct appeal); Commonwealth v.
Derby, 678 A.2d 784, 786 (Pa. Super. 1996) (issue of self-defense raised
on direct appeal). Therefore, PCRA counsel was not ineffective for failing to
pursue those claims. As noted above, we conclude that Appellant’s third and
fourth claims likewise lack arguable merit. Finally, Appellant is unable to
show any prejudice relating to his counsel’s failure to seek a pre-sentence
investigation report. As noted above, Appellant entered into a negotiated
plea agreement and he was sentenced according to the terms of that
agreement whether a pre-sentence investigation report was ordered or not.
As all of Appellant’s underlying claims are meritless, his claim of layered
ineffectiveness is likewise meritless. To the extent that Appellant argues
that PCRA counsel failed to comply with Turner/Finley, we disagree. It is
evident by reviewing PCRA counsel’s Turner/Finley letter that he
performed a thorough review of the record and determined that there were
no issues of arguable merit. See generally Turner/Finley Letter, 6/3/14.
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Accordingly, Appellant is not entitled to relief on his third issue raised on
appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2015
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