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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TAEVON TERRELL DIXON,
Appellant No. 1787 WDA 2014
Appeal from the PCRA Order September 30, 2014
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001596-2010
BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 09, 2015
Taevon Terrell Dixon appeals from the September 30, 2014 order
denying PCRA relief. After thorough review, we affirm.
On January 9, 2012, Appellant pled guilty to third-degree murder and
person not to possess a firearm. We glean the following facts that formed
the basis for Appellant’s convictions from the Commonwealth’s proffer at the
plea and sentencing hearing. Detective Sergeant Thomas Owens of the City
of Johnstown Bureau of Police testified under oath that he was called to a
shooting incident on July 11, 2010, on Church Avenue. Patrol officers, who
were the first on the scene, found James Pelham in a small parking area
across from Appellant’s residence. Mr. Pelham had suffered a gunshot
wound to the chest and subsequently died of that injury. Examination of the
*
Former Justice specially assigned to the Superior Court.
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scene yielded two .38 caliber casings near the victim’s body. Investigation
revealed that the victim had gone to a Church Avenue address believing
there was to be a party there. Upon arriving, he remained in his car.
Appellant approached the vehicle and a verbal altercation ensued.
Appellant’s brother Jharon joined him and the altercation turned physical.
Appellant pulled out a handgun and fired two shots, one of which was fired
directly at Mr. Pelham and struck him in the chest. Sergeant Owens
subsequently learned that Appellant had a prior record that precluded him
from owning a firearm.
The preliminary hearing transcript was admitted as an exhibit at the
plea hearing and it provides additional details. Officer Eric Gelles and
another officer were dispatched to the area of 1031 Church Avenue at
approximately 2:30 a.m. due to shots fired. Upon reaching that location,
they observed a silver vehicle parked on Church Avenue with the passenger
door open. As the officers walked toward the vehicle, they saw a male lying
face down in a pool of blood in a driveway next to 1038 Church Avenue.
EMS transported the victim to Conemaugh Hospital where he was
pronounced dead upon arrival.
The police officers secured and searched the scene and located two
shell casings, one in the middle of the street and the other one next to the
curb. Additional investigation revealed a number of eyewitnesses to the
shooting. A friend of the victim, Corey Porter, testified at the preliminary
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hearing that he, Shawn Stephens and the victim had been at the Pony
Lounge celebrating the victim’s promotion. When the bar closed, they
headed to a party. The victim was driving a silver Monte Carlo. None of
them was armed. They pulled up in front of a house in Old Conemaugh
Borough, which had its lights on, and waited for other people to arrive at the
party.
After a short while, Appellant and his brother came out on the porch.
Appellant approached the car and asked why they were there. After Mr.
Stephens told Appellant that they were there for a party, Appellant returned
to the porch. A few moments later, a car containing a group of women
arrived. Within the hearing of the victim and his two friends, Appellant
instructed the women to tell the people in the silver Monte Carlo to get away
from his house. The victim exited his car and stood in front of it in the
street. He asked Appellant what the problem was. In response, Appellant
screamed that there was no after party. When the victim asked Appellant
not to be so loud, Appellant said he did not have to be quiet in front of his
own home, pulled out a gun, and shot it into the air. After some verbal
bickering, Appellant and his brother Jharon approached the victim and
Jharon punched him several times. Appellant hit the victim in the face with
a silver automatic handgun. When the victim responded with a punch,
Appellant shot him from several steps away. Porter and Stephens fled on
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foot. An autopsy on the victim confirmed that the cause of Mr. Pelham’s
death was a gunshot wound to the chest at close range.
Appellant was charged with conspiracy to commit murder, criminal
homicide, aggravated assault, and person not to possess a firearm. The
conspiracy charge was dismissed after the preliminary hearing. Following
discovery and disposition of pre-trial motions, Appellant pled guilty to third-
degree murder and person not to possess a firearm in exchange for a
sentence of seventeen and one-half years to forty years imprisonment and
withdrawal of the remaining charges. He executed a written guilty plea
colloquy and was orally colloquied at his plea and sentencing hearing on
January 9, 2012.
Appellant did not appeal. On October 4, 2012, he filed a timely pro se
PCRA petition alleging that his sentence was illegal, his plea involuntary and
unknowing, that plea counsel was ineffective in failing to conduct an
independent investigation, and charging prosecutorial misconduct. The
court appointed Attorney Gregory Neugebauer as PCRA counsel on October
11, 2012. No amended PCRA petition was filed. Following an evidentiary
hearing, the PCRA court denied relief on March 22, 2013. The court
concluded that Appellant understood the nature of the charges to which he
pled guilty and agreed to the negotiated plea and sentence, and that the
plea was neither involuntary nor unknowing. The court also found no
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evidence of any failure on the part of plea counsel to conduct a reasonable
investigation of the facts or potential defenses or prosecutorial misconduct.
Appellant filed a pro se notice of appeal to this Court and was directed
to file a Pa.R.A.P. 1925(b) statement. We determined that the appeal was
untimely and quashed it on August 30, 2013. One year later, on August 21,
2014, Appellant filed a second PCRA petition seeking nunc pro tunc
restoration of his PCRA appeal rights, which he maintained were lost due to
abandonment of counsel. There being no objection by the Commonwealth,
the court reinstated Appellant’s right to pursue his appeal of the denial of his
first PCRA petition within thirty days and appointed new counsel.1
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1
Appellant’s second PCRA petition was facially untimely. However, since the
Commonwealth did not object to the PCRA court’s lack of jurisdiction, there
was no factual inquiry into Appellant’s ability to meet the timeliness
exception for facts “unknown to the petitioner” and that “could not have
been ascertained by the exercise of due diligence,” and the record is
undeveloped on this issue. 42 Pa.C.S. § 9545(b)(1)(ii). In Commonwealth
v. Bennett, 930 A.2d 1264 (Pa. 2007), our High Court vacated this Court’s
order, which quashed petitioner’s reinstated nunc pro tunc PCRA appellate
rights based on an untimely second petition, and remanded for an
evidentiary hearing to determine whether petitioner could prove the factual
predicate to surmount the time-bar. We do not believe remand is necessary
to determine whether Appellant can meet the timeliness exception as we
view the Commonwealth’s acquiescence in his abandonment claim to be
tantamount to a stipulation. Similar reasoning was espoused by our
Supreme Court in Commonwealth v. Walter, 119 A.3d 255, 260 n.5 (Pa.
2015). Therein, the Court relied upon the Commonwealth’s stipulation that
appellant was abandoned by counsel, which was not appealed, to support a
judicial finding of deprivation of a right to appellate counsel “so severe as to
be tantamount to a complete denial of counsel” that necessitated
reinstatement of appellate rights nunc pro tunc. Furthermore, our High
(Footnote Continued Next Page)
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Newly-appointed counsel timely appealed, and after an extension to
permit transcription of the record, complied with the court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
court penned its Rule 1925(a) opinion and this matter is ready for our
review. Appellant raises four issues for our review:
I. Whether the trial court erred by denying [Appellant’s]
post-conviction relief act petition when trial counsel was
ineffective for failing to investigate possible defenses, e.g.,
the “Castle Doctrine” (18 Pa.C.S. § 505), and failing to
advise the Appellant of those defenses?
II. Whether the trial court erred by denying [Appellant’s]
post-conviction relief act petition when Appellant’s guilty
plea was unlawfully induced thus entitling him to relief
under the Post-Conviction Relief Act pursuant to 42 Pa.C.S.
§ 9543(a)(2)(ii)?
III. Whether the trial court erred by denying [Appellant’s]
post-conviction relief act petition when trial counsel was
ineffective for failing to adequately advise the Appellant of
the nature and effect of Appellant’s guilty plea, thus
rendering Appellant’s guilty plea involuntary?
_______________________
(Footnote Continued)
Court reasoned that the PCRA court’s order became final thirty days later, no
appeal by the Commonwealth having been filed, and that it did not have
jurisdiction to “tinker with that final judgment.” Id. at 1162. See
Commonwealth v. Robinson, 834 A.2d 1157 (Pa. 2003) (a PCRA court’s
order granting relief, left unchallenged, becomes final thirty days after
entry); 42 Pa.C.S. § 5505. The Walter Court reasoned that, otherwise, the
Commonwealth would have “endless opportunities to collaterally attack a
PCRA court's order it declined to appeal, and would provide this Court a right
(and perhaps an obligation) to examine the propriety of already final orders
granting nunc pro tunc relief at all subsequent stages of post-conviction
litigation.” Walter, supra at 260 n.5. Id. We find that rationale applicable
herein.
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IV. Whether the Commonwealth displayed prosecutorial
vindictiveness, in contravention of the United States and
Pennsylvania constitutions, in the circumstances leading to
the entry of the guilty plea of Appellant that so
undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place.
42 Pa.C.S. § 9543(a)(2)(i)?
Appellant’s brief at 2.
In reviewing the PCRA court’s denial of post-conviction relief, we must
determine whether the court’s findings are supported by the record and free
of legal error. Commonwealth v. Treiber, 2015 Pa. LEXIS 1775, *9-10
(Pa. 2015). In doing so, we accord great deference to the PCRA court’s
credibility determinations, and where supported by the record, they are
binding on this Court. Id.
Appellant’s first three claims allege trial counsel ineffectiveness. To be
entitled to relief on such a claim, a PCRA petitioner must establish all three
prongs of the ineffective assistance of counsel test enunciated in
Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987). He must
demonstrate: “(1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's action or failure to act; and (3) he
suffered prejudice as a result of counsel's error, with prejudice measured by
whether there is a reasonable probability the result of the proceeding would
have been different.” Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.
2011). We start from the presumption that counsel rendered effective
assistance. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
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Ineffective assistance of counsel claims that are founded on the plea-
bargaining process are eligible for review under the PCRA. Commonwealth
ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001). However, where
the underlying ineffectiveness implicates a guilty plea, such a claim will
provide relief only “if the ineffectiveness caused an involuntary or unknowing
plea.” Commonwealth v. Diaz, 913 A.2d 871, 872 (Pa.Super. 2006). This
Court held in Diaz that this test is analogous to “the ‘manifest injustice’
standard applicable to all post-sentence attempts to withdraw a guilty plea.”
Id.
First, Appellant contends that trial counsel George Bills was ineffective
for failing to investigate and pursue the defense of self-defense based on the
Castle Doctrine, which became effective on August 26, 2011. 18 Pa.C.S. §
505. Plea counsel testified at the evidentiary hearing that he advised
Appellant after the plea that if he was looking for PCRA issues, he could
consider counsel’s failure to raise self-defense, and specifically, the Castle
Doctrine. Attorney Bills acknowledged that the defense, if founded, may
have absolved Appellant of criminal liability. However, he maintained that
the Doctrine had only become fashionable after this case and that he did not
believe it would have applied on the facts. Trial counsel testified that he
viewed the case as one of imperfect self-defense rather than self-defense.
In support of his ineffectiveness claim, Appellant relies upon trial
counsel’s identification of facts that tended to support self-defense. Counsel
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pointed to the fact that that Appellant knew the victim and, on prior
occasions, the victim carried a gun. Counsel speculated that such evidence
may have supported a reasonable belief on Appellant’s part that the victim
was carrying a gun on the night in question. There was evidence that
Appellant told the victim to leave and fired a warning shot into the air, but
the victim did not comply. Finally, there was a physical altercation prior to
the shooting. Thus, Appellant contends, the defense of self-defense had
arguable merit, counsel had no reasonable basis for not pursuing it, and the
outcome could have been different if Appellant had opted to proceed to trial
rather than accept a plea.
The Commonwealth counters that counsel’s failure to pursue self-
defense was not raised in the PCRA petition nor identified as a basis for
counsel’s ineffectiveness at the commencement of the evidentiary hearing.
Hence, it is waived. If not found to be waived, the Commonwealth argues
that Appellant failed to prove that the issue meets the arguable merit prong
of the Strickland ineffectiveness test as the facts do not support self-
defense. The Commonwealth maintains that the facts proffered at the plea
and sentencing hearing, which were stipulated by the defense to be true,
established that Appellant was the aggressor, he approached the victim’s
vehicle on a public road, and he initiated both the verbal and physical
altercation. Thus, Appellant had a duty to retreat. Instead, Appellant fired
two shots, one of which fatally struck the victim in the chest.
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We find that the self-defense issue is waived since it was not raised in
the PCRA petition or identified at the PCRA hearing. Even if it was not
waived, however, Appellant’s self-defense claim lacked arguable merit. 42
Pa.C.S. § 9543(a)(2). Title 18 Pa.C.S. § 505, is entitled “Use of force in
self-protection.” It provides in pertinent part that the use of deadly force is
not justifiable unless an actor believes deadly force is “necessary to protect
himself against death, serious bodily injury, kidnapping or sexual intercourse
compelled by force or threat[,]” and the actor did not provoke the use of
force against him “with the intent of causing death or serious bodily injury.”
The record is devoid of any evidence that the victim was the aggressor or
that Appellant was protecting himself from serious bodily injury or death. In
fact, the victim did not employ force except when provoked by Appellant and
his brother’s use of force, and then only a punch. In these circumstances,
the record does not support a finding that Appellant believed, correctly or
mistakenly, that such force was “necessary to protect himself against death,
serious bodily injury, kidnapping or sexual intercourse compelled by force or
threat.” Id. at 505(b)(2).
Furthermore, it is of no consequence that trial counsel did not consider
the Castle Doctrine as it was not applicable on the facts herein. The
Doctrine, codified in the self-defense statute, provides that deadly force is
justified and that one need not retreat even if he can do so safely if he is in
his dwelling or place of work and he was not the initial aggressor. Id. at
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505(b)(2)(ii). By all accounts, Appellant was the aggressor. Even if the
victim had been the aggressor and presented a threat of serious bodily
injury, Appellant was obliged to avoid the use of deadly force by retreating if
he could do so safely since he was not in his home or workplace.2 Id. at §
505(b)(2)(ii).
Thus, the facts do not support the defense of self-defense, the Castle
Doctrine notwithstanding. Trial counsel considered the possible defense of
imperfect self-defense, but was not optimistic that it could be successfully
employed. He explained further that he entertained a plea bargain because
there was other evidence that undermined self-defense and raised the
specter of a first-degree murder conviction. First, Appellant and his brother
fled to New York after the shooting and were apprehended with a gun in the
car. Secondly, the Commonwealth possessed recordings of Appellant’s
telephone calls from the jail in which he attempted to influence witnesses
not to testify against him. Third, Appellant’s brother was going to testify
that he told Appellant not to shoot the victim and report inculpatory
statements made by Appellant. In light of that evidence, trial counsel
recommended the negotiated plea rather than trial.
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2
As the Commonwealth points out, Appellant also cannot claim that he had
no duty to retreat from the street based upon 18 Pa.C.S. § 505(b)(2.3),
because he possessed a firearm illegally.
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Thus, trial counsel was not ineffective in failing to pursue a defense
that lacked merit. Furthermore, given the fact that there were numerous
eyewitnesses to the shooting, considerable evidence of Appellant’s
consciousness of guilt, and concern that Appellant’s brother would reveal
Appellant’s inculpatory statements, trial counsel had a reasonable basis for
recommending the plea bargain in lieu of trial. Appellant has not met the
first and second prongs of the ineffectiveness test and this claim fails.
Next, Appellant contends that he only accepted the plea because trial
counsel promised that he would file a post-sentence motion in three to six
months and get the sentence reduced. He testified that counsel did not do
what he promised and that he accepted the plea in reliance upon counsel’s
promise. Appellant also maintained that counsel did not explain or read to
him the written colloquy but merely directed him to initial and sign it. He
testified that he did not understand the court’s oral questions regarding the
plea, but that counsel had directed him prior to the hearing to answer the
court’s questions in the affirmative.
Generally, once a defendant enters a plea of guilty, it is presumed that
he understood what he was doing and it is his burden to prove otherwise.
Commonwealth v. Moser, 921 A.2d 526, 529 (Pa.Super. 2007). When
there are allegations of ineffectiveness of counsel in connection with a guilty
plea, the defendant can prevail only if he can prove that counsel’s
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ineffectiveness caused him to enter an involuntary or unknowing plea.
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002).
At the plea hearing, the trial court conducted a thorough oral colloquy
on the record. See Commonwealth v. Mallory, 941 A.2d 686, 697 (Pa.
2008) (recognizing that an on-the–record colloquy is a useful procedural
tool whenever the waiver of any significant right is at issue, constitutional or
otherwise, e.g., waiver of a trial). At that time, Appellant denied that
anyone had promised him anything better or hinted at more favorable
treatment. Critically, trial counsel denied that he ever promised Appellant
that he would file a futile post-sentence motion and the PCRA court credited
that testimony. We must defer to the PCRA court’s credibility determination
where, as here, there is record support for that determination.
Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). This claim fails for
lack of arguable merit.
In a related argument, Appellant maintains that trial counsel did not
inform him of the finality of his guilty plea, and thus his plea was
involuntary. He claims that counsel did not go over the plea and colloquy
documents with him and that he did not understand the court’s oral
colloquy. Attorney Bills presented contrary testimony. Counsel stated that
he read and explained the written plea and colloquy to Appellant. He
instructed Appellant to listen to the court’s questions and answer them
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truthfully. It was his belief that Appellant understood what he was doing
when he entered the plea.
The PCRA court found, based on the written colloquy and the transcript
of the oral colloquy, that Appellant understood the nature of the charges to
which he was pleading guilty; understood that he had a right to a jury trial;
was aware of the maximum penalties; and agreed to the terms of the
negotiated plea. Trial Court Opinion, 3/25/13, at unnumbered 3. We have
no basis to disturb that finding. Appellant’s final claim of prosecutorial
vindictiveness is wholly without support in the record and has been
abandoned on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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