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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
TYRONE THOMAS, :
:
Appellant : No. 483 WDA 2015
Appeal from the PCRA Order Entered February 23, 2015
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0002359-2011
and CP-02-CR-0004968-2010
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E, and STRASSBURGER,* J.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 28, 2015
Tyrone Thomas (Appellant) appeals pro se from the order which
denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
This Court previously summarized the history of this case as follows:
Following his arrest in connection with the March 14, 2010
shooting death of a retired firefighter, Mark Barry, Appellant was
charged in the adult division of the trial court with criminal
homicide, robbery, carrying a firearm without a license, and
criminal conspiracy. Additionally, following his arrest in
connection with the March 21, 2010 shooting into the occupied
residence of Portia Smithson, Appellant was charged in the adult
division of the trial court with two counts of aggravated assault,
four counts of recklessly endangering another person, one count
of conspiracy, one count of discharging a firearm into an
occupied structure, and one count of possessing a firearm by a
minor. Upon notice by the Commonwealth, the cases were
joined, and on July 2, 2010, Appellant filed a counseled motion
*Retired Senior Judge assigned to the Superior Court.
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seeking to decertify the criminal proceedings and transfer the
cases to the juvenile division.
Following a hearing on the matter, the trial court denied
Appellant’s motion to decertify the criminal proceedings, and on
May 2, 2011, Appellant proceeded to a guilty plea hearing….
Commonwealth v. Thomas, 67 A.3d 838, 838-39 (Pa. Super. 2013)
(footnotes omitted). The Commonwealth, per the plea agreement,
recommended an aggregate sentence of 40 to 80 years of imprisonment.
The trial court accepted the plea and imposed the negotiated sentence. On
direct appeal, this Court affirmed the trial court’s denial of his decertification
motion. Id.
Appellant pro se filed a PCRA petition on October 15, 2013, but was
subsequently granted leave by our Supreme Court to file a petition for
allowance of appeal nunc pro tunc. The trial court initially appointed PCRA
counsel, but later entered an order staying the PCRA action during the
pendency of Appellant’s direct appeal. Our Supreme Court denied
Appellant’s petition for allowance of appeal on April 4, 2014.
Commonwealth v. Thomas, 89 A.3d 661 (Pa. 2014). Appellant filed
another PCRA petition on May 6, 2014, stating substantially the same claims
as in his original petition.
On September 2, 2014, PCRA counsel filed a motion to withdraw as
counsel and a letter brief pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
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1988) (en banc). On September 25, 2014, the PCRA court granted counsel
leave to withdraw and issued a notice of intent to dismiss the petition
without a hearing pursuant to Pa.R.Crim.P. 907. On February 25, 2015, the
PCRA court entered an order denying the petition.
Appellant timely filed a notice of appeal. The PCRA court did not order
Appellant to file a statement of errors complained of on appeal, and none
was filed. In lieu of filing an opinion pursuant to Pa.R.A.P. 1925(a), the
PCRA court pointed to its notice of intent to dismiss for its reasons for
denying Appellant’s petition. On appeal, Appellant presents this Court with
several arguments that his guilty plea was induced by the ineffective
assistance of plea counsel. Appellant’s Brief at 2.
“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, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).
We begin by noting that counsel is presumed to be effective.
Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015). To prevail
on a claim of ineffective assistance of counsel, a PCRA petitioner must prove
each of the following: “(1) the underlying legal claim was of arguable merit;
(2) counsel had no reasonable strategic basis for his action or inaction; and
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(3) the petitioner was prejudiced—that is, but for counsel’s deficient
stewardship, there is a reasonable likelihood the outcome of the proceedings
would have been different.” Id.
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. 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.
Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (internal
quotations and citations omitted). “Thus, to establish prejudice, the
defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.
Super. 2013) (citation and internal quotation marks omitted).
In his brief, Appellant offers the following claims of plea counsel’s
ineffectiveness: (1) ignoring inconsistent statements and other evidence that
called the credibility of witnesses into question, Appellant’s Brief at 8-9; (2)
coaching Appellant through the plea colloquy although he was aware that
Appellant was under the influence of drugs at the time, id. at 8-11; and (3)
failing to use “vital information” from Appellant’s mother that “could make
the entire interrogation illegal,” id. at 8.
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Appellant’s claims regarding information known by his mother and his
being under the influence of drugs at the time of the plea are not stated in
either his 2013 or 2014 PCRA petition. Accordingly, they are waived. See,
e.g., Commonwealth v. Camps, 772 A.2d 70, 74 (Pa. Super. 2001) (“[A]
review of Appellant’s PCRA petition … reveals that he failed to raise the
above claims in his petition. As such, these claims are waived.”).
Appellant’s remaining claim is that his plea was not knowing and
voluntary because plea counsel ignored the fact that Appellant’s co-
defendant, his co-defendant’s nephew, and his co-defendant’s girlfriend gave
inconsistent statements to detectives, Appellant’s Brief at 7-9; and counsel
did not consult with him after Appellant wrote to him, immediately after the
plea, to say he “was unhappy with the plea and … wanted to withdraw the
plea.” PCRA Petition, 5/6/2014, at ¶ 8.
Appellant fails to address separately each of the three prongs
necessary to establish ineffective assistance of counsel, and we could on that
basis alone deny him relief. See, e.g., Commonwealth v. Steele, 961
A.2d 786, 797 (Pa. 2008) (“[W]here Appellant has failed to set forth all
three prongs of the ineffectiveness test and meaningfully discuss them, he is
not entitled to relief, and we are constrained to find such claims waived for
lack of development.”).
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However, it is clear from the record that Appellant’s claim warrants no
relief. We find instructive the case of Commonwealth v. Brown, 48 A.3d
1275 (Pa. Super. 2012). In that case, Brown made the argument “that he
was essentially forced into pleading guilty because counsel did not
adequately prepare for trial and did not adequately consult with” him. Id. at
1277. This Court rejected Brown’s claim that he was entitled to PCRA relief
as follows:
The law does not require that an appellant be pleased with
the results of the decision to enter a guilty plea; rather [a]ll that
is required is that [the appellant’s] decision to plead guilty be
knowingly, voluntarily and intelligently made.
A defendant is bound by the statements made during the
plea colloquy, and a defendant may not later offer reasons for
withdrawing the plea that contradict statements made when he
pled. Claims of counsel’s ineffectiveness in connection with a
guilty plea will provide a basis for relief only if the ineffectiveness
actually caused an involuntary or unknowing plea.
[Brown’s] position is that, because of all the foregoing
points, he felt coerced, at the time of his plea hearing, to enter a
guilty plea. However, at that hearing, [Brown] testified that it
was his decision to plead guilty, and that he was satisfied with
the representation provided by counsel. [Brown] is bound by
the statements made during the plea colloquy, and he may not
now offer contradictory reasons for withdrawing his plea.
[Brown] may not be pleased with the results of entering a guilty
plea, but he cannot now obtain relief by claiming he felt
pressured by counsel to plead guilty.
Id. at 1277-78 (internal citations and quotation marks omitted).
Similarly, in the instant case, Appellant indicated at his plea hearing,
under oath, that he had fully discussed his case with counsel and was
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satisfied with his attorney’s assistance. N.T., 5/2/2011, at 5. He stated that
he had not consumed any drugs or alcohol in the last 24 hours, and was not
on any medication. Id. at 16. Appellant testified that he understood that he
was giving up his right to affect his case favorably and to proceed to trial at
which the Commonwealth would have to prove his guilt beyond a reasonable
doubt. Id. at 14-15. Appellant acknowledged, both before and after the
recitation of the factual basis of the plea, that he did the things the
Commonwealth alleged. Id. at 18, 24. He testified that he understood the
terms of the plea and was not pleading guilty because of any promises,
threats, or other representations made to him to cause him to give up his
right to a trial. Id. at 17.
Appellant is bound by his statements and cannot now claim that they
were untrue. Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (“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 avers that counsel induced the lies.”). The fact that he is unhappy with
his decision to plead guilty does not warrant PCRA relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
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