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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
MUSTAFA T. MOODY, :
:
Appellant : No. 1534 EDA 2015
Appeal from the PCRA Order April 24, 2015,
Court of Common Pleas, Delaware County,
Criminal Division at No. CP-23-CR-0001920-2013
BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 30, 2015
Appellant, Mustafa T. Moody (“Moody”), appeals from the order
denying his petition for relief pursuant to the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-46 (“PCRA”). In his PCRA petition, Moody alleged that
his guilty plea was involuntarily and unlawfully induced by the ineffective
assistance of his plea counsel. For the reasons that follow, we affirm the
PCRA court’s order.
In its written opinion pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure, the PCRA court summarized the relevant
procedural background of this case as follows:
On February 12, 2013, [Moody] was arrested and
charged with multiple counts of Delivery of a
Controlled Substance (Heroin)2, and Conspiracy to
Deliver a Controlled Substance (Heroin)3. At the
[p]reliminary [h]earing on March 14, 2013, [Moody]
was given an offer by the Commonwealth. The offer
*Retired Senior Judge assigned to the Superior Court.
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promised the Commonwealth would extend a plea
offer below any applicable mandatory minimum
sentence in exchange for [Moody] waiving his
[p]reliminary [h]earing, filing no omnibus pre-trial
motions, and pleading [g]uilty. Both parties signed
the agreement.
Prior to the [p]retrial [c]onference, the
Commonwealth offered [Moody] a negotiated
sentence of 3-6 years [of] incarceration. After
receiving the offer from the Commonwealth,
[Moody’s] attorney, Trevan Borum, Esquire
[(“Attorney Borum”)], filed a Motion to Enforce Guilty
Plea Agreement. It was [Moody’s] position that the
[g]uilty [p]lea [o]ffer that was tendered failed to
comport with their agreement. Specifically, the
Commonwealth’s offer of 3-6 years imprisonment
violated the agreement[,] as [Moody] believed the
offer was above the mandatory minimum. However,
the Commonwealth reasoned that the five-year
mandatory minimum sentence pursuant to [42]
Pa.C.S. § 9712.1 applied because the BB rifle
recovered at the [c]o-[d]efendant’s house was a
firearm for purposes of section 9712 and was found
“in close proximity to the controlled substance.” The
Commonwealth maintained that their offer of 3-6
years [of] incarceration comported with the
agreement because it was lower than the mandatory
minimum sentence. A hearing on the Motion to
Enforce the Negotiated Guilty Plea Agreement was
held on July 22, 2013, and the Motion was denied.1
1
At the PCRA hearing, Attorney Borum testified that at the argument on his
motion to enforce the plea agreement, the trial court advised him that it
would not “specifically enforce” the plea agreement, but would be willing to
withdraw it (based upon a lack of a “meeting of the minds” on the length of
the sentence). N.T., 4/24/2015, at 29-30. This left Moody with a choice
between accepting the Commonwealth’s plea offer or proceeding with the
previously scheduled preliminary hearing and defending himself against all
charges. Attorney Borum indicated that he and Moody discussed this
decision at length, during which he advised Moody that his chances of
successfully litigating the probable cause issues were not good (because it
would be his word against the testimony of the police), and thus the safer
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On August 5, 2013, a [p]lea [h]earing was held and
[Moody] entered into a [n]egotiated [g]uilty [p]lea to
the charges of Possession with Intent to Deliver, and
to Conspiracy to Deliver. On the same date,
[Moody] was sentenced as follows: (1) Count 1—
Possession with Intent to Deliver (Heroin) – 36-72
months SCI, no RRRI eligibility, no boot camp
eligibility, credit-time for the period from 2/13/13 to
8/5/13, and payment of court costs; (2) Count 2 –
Delivery of a Controlled Substance (Heroin) – 1 year
State Probation consecutive to Count 1; (3) Count 3
– Delivery of a Controlled Substance (Heroin) – 1
year State Probation consecutive to Count 2; (4)
Delivery of a Controlled Substance (Heroin) – 1 year
State Probation consecutive to Count 3; (5) Count 5
– Delivery of a Controlled Substance (Heroin) – 1
year State Probation consecutive to Count 4; (6)
Count 21 – Conspiracy to Delivery of a Controlled
Substance (Heroin) -- 1 year State Probation
consecutive to Count 5. (N.T. 8/5/13 pp. 26-27).
[Moody] filed a timely, pro se, [PCRA] Petition on
July 18, 2014. [Moody’s] appointed counsel Scott
Galloway, Esquire, filed an Amended [PCRA] Petition
on February 9, 2015. A [PCRA] [h]earing was held
on April 24, 2015, and the request for [PCRA] [r]elief
was denied. On April 27, 2015, the Court entered an
Order denying [Moody’s] request for [PCRA] [r]elief.
On May 20, 2015, [Moody] filed a timely [n]otice of
[a]ppeal to the Pennsylvania Superior Court
appealing the Order Denying [Moody’s] [PCRA]
Petition.
2
[35] P.S. § 780-113(30)
3
18 Pa.C.S.A. § 903(c)
Trial Court Opinion, 7/7/2015, at 2-4.
course was to “minimize your exposure” and take the plea offer of 3-6 years
of imprisonment. Id. at 29-32.
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On appeal, Moody raises a single question for our review and
consideration, namely whether the PCRA court erred in denying his PCRA
petition alleging that ineffective assistance of counsel resulted in a guilty
plea that was not knowing, voluntary and intelligent. Moody’s Brief at 4.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the court's determination is supported by evidence of
record and free of legal error. Commonwealth v. Turetsky, 925 A.2d 876,
880 (Pa. Super. 2007). This Court accords great deference to the findings of
the PCRA court if the record contains any support for those findings. Id.
Further, the PCRA court's credibility determinations are binding on this Court
if there is record support for its determinations. Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
In reviewing a claim of ineffective assistance of counsel, the petitioner
must show, by a preponderance of the evidence, that counsel’s deficient
performance so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Kimball, 724 A.2d 326, 333 (Pa. 1999). To prevail, the petitioner must
demonstrate that (1) the underlying claim is of arguable merit; (2) counsel's
course of conduct was without a reasonable basis designed to effectuate the
client's interest; and (3) the client was prejudiced by counsel's
ineffectiveness, i.e. there is a reasonable probability that but for the act or
omission in question the outcome of the proceedings would have been
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different. Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super.
2005), appeal denied, 877 A.2d 460 (Pa. 2005). The petitioner bears the
burden of proving all three prongs of the test. Commonwealth v.
Meadows, 787 A.2d 312, 319–20 (Pa. 2001); Commonwealth v.
Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005), appeal denied, 877 A.2d
460 (Pa. 2005). Moreover, trial counsel is presumed to have been effective.
Commonwealth v. Basemore, 744 A.2d 717, 728 n. 10 (Pa. 2000).
With respect to a claim of ineffective assistance of counsel in
connection with a guilty plea, this Court has explained the applicable law in
this area as follows:
It is clear that a criminal defendant's right to
effective counsel extends to the plea process, as well
as during trial. However, [a]llegations 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. Willis, 68 A.3d 997, 1001-02 (Pa. Super. 2013)
(quoting Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)).
“[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.” Anderson, 995 A.2d at 1192.
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In his counseled amended PCRA petition, Moody based his claim for
relief on two grounds. First, Moody alleged that his counsel (Attorney
Borum) failed to advise him that he was pleading guilty to conspiracy to
deliver heroin, and that when he heard this for the first time during the plea
hearing, it was too late for him to renege on the plea agreement. Amended
PCRA Petition, 2/9/2015, ¶ 4-5. As such, Moody alleged that he was forced
into pleading guilty to the conspiracy charge without the opportunity to
discuss it first with counsel. Id. Second, Moody averred that the transcript
of the plea hearing reflects that he did not even know the name of his
alleged co-conspirator, demonstrating his surprise at the inclusion of the
conspiracy charge in the plea agreement. Id.
The certified record on appeal does not support Moody’s claims. Prior
to the colloquy at the plea hearing, Moody signed a guilty plea statement,
initialing each paragraph therein. Guilty Plea Statement, 8/5/2013.
Paragraph 23 therein specifically provided that he was pleading guilty to five
counts of delivery of a controlled substance and one count of conspiracy
to deliver a controlled substance. Id. ¶ 23. At the PCRA evidentiary
hearing, Moody admitted that Attorney Borum reviewed this guilty plea
statement with him prior to its signing and initializing. N.T., 4/24/2015, at
53-54. Moreover, Moody acknowledged that in advance of the plea hearing,
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Attorney Borum reviewed the plea colloquy with him.2 N.T., 4/24/2015, at
40. During the plea colloquy, Moody agreed that he was entering into the
plea agreement freely and voluntarily, that nobody had threatened or
coerced him in any way, that there was a factual basis for the plea, and that
this factual basis included him engaging in a conspiracy on specific dates.
N.T., 8/5/2013, at 15-21; N.T. 4/24/2015, at 47-56. During the colloquy,
the trial judge described the crime of conspiracy to deliver, including both
the need for an agreement and an overt act, and Moody testified that he
understood. N.T., 8/5/2013, at 12; N.T. 4/24/2015, at 51.
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. Commonwealth v. Pollard, 832
A.2d 517, 524 (Pa. Super. 2003); Commonwealth v. Cappelli, 489 A.2d
813, 819 (Pa. Super. 1985). A person who elects to plead guilty is bound by
the statements he makes in open court while under oath. Commonwealth
v. Stork, 737 A.2d 789, 790–91 (Pa. Super. 1999). A criminal defendant
who elects to plead guilty has a duty to answer questions truthfully.
Cappelli, 489 A.2d at 819.
2
Moody testified that he could not remember whether Attorney Borum
reviewed the conspiracy count with him. N.T., 4/24/2015, at 41.
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In addition to Moody’s own testimony, at the PCRA evidentiary hearing
Attorney Borum indicated that it is his practice to review the plea colloquy in
detail with his clients:
Q. When was it, if you remember, that you went over
the guilty plea colloquy with Mr. Moody?
A. It would have been before the plea. I don’t have a
specific recollection of doing it, but I know from the
cases I’ve done out here in Delaware County, that
you have to fill out that colloquy, initial it, and it’s
my practice in every single guilty plea that I do out
there, to go over each and every question to make
sure my client understands. After I’m done, I ask
them, do you have any more questions and if he
does have any question or he doesn’t understand
any questions, I make sure that I break it down and
explain it in plain English, so my client gets it.
N.T., 4/24/2015, at 12-13. Attorney Borum also testified that in his view,
Moody understood that he was pleading guilty to, inter alia, a conspiracy
charge.
Q. So is it your testimony, Mr. Borum, that prior to Mr.
Moody entering his guilty plea … he understood he
was pleading guilty to conspiracy and to whom he
was pleading guilty to conspiracy with?
A. I certainly believe that to be the case. Like I said, I
can’t – I’ve represented hundreds of clients since
then, but I don’t have the specific recollection of
going over that form, but I just can’t imagine I would
be, you know, have him plead guilty to a charge that
I didn’t explain to him. I just – that just doesn’t
happen. That’s not the way I practice.
Id. at 15.
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In his counseled amended PCRA petition, Moody contended that “he
did not even know the person Michelle Camgemi to which he supposedly
conspired with.” Amended PCRA Petition, 2/9/2015, ¶ 4. At the PCRA
evidentiary hearing, Moody amended his position somewhat, stating that he
knew “of” Ms. Camgemi, but did not know her personally. N.T., 4/24/2015,
at 44. Moody nevertheless continues to insist that he did not conspire with
Ms. Camgemi, and that his testimony to the contrary at the plea hearing,
upon close inspection, reflects his surprise at the suggestion that he ever
conspired with her. Id. at 45; Moody’s Brief at 10. Specifically, Moody
contends that he “did not know the name of the individual whom he
supposedly conspired with and it is obvious that this criminal charge was not
reviewed with him prior to the plea being entered.” Moody’s Brief at 10. A
review of the transcript of the plea hearing, however, does not support this
contention.
MR. DENUCCI:
… Okay, Mr. Moody, I just need to ask you a couple
of questions. You’re entering a negotiated guilty
plea to Count XXI which is conspiracy to delivery
[sic] of a controlled substance. Is that correct?
MR. MOODY:
Yes.
MR. DENUCCI:
Okay. And the conspiracy with regard to Count XXI
pertains to three specific dates. So I’m going to ask
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you on each particular date I’d like you to tell me
who the person was that you conspired with. So for
instance, on January 28, 2013, who was the person
that you conspired with at that time to deliver a
controlled substance?
MR. MOODY:
Michele.
MR. DENUCCI:
What’s the last name?
MR. MOODY:
I don’t know.
MR. DENUCCI:
Well, step back.
MR. BORUM:
Sure – I mean – I’m sorry.
MR. DENUCCI:
You can ask him another question.
MR. BORUM:
Sure.
MR. DENUCCI:
Your Honor, I just need a second. I’m sorry. I
wasn’t expecting that. 7262 Bradford?
MR. BORUM:
Yes. His residence was 2224 South Park. Now her
residence is 76 – 7262 Bradford Road.
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MR. DENUCCI:
In Upper Darby?
MR. BORUM:
Correct.
MR. DENUCCI:
Mr. Moody, the Michele in question, if I told you her
name – her last name was Camgemi, would you
have reason to dispute that?
MR. MOODY:
No.
MR. DENUCCI:
No? And are you familiar with [Ms.] Camgemi’s
address?
MR. MOODY:
Yeah. Yes.
MR. DENUCCI:
The Miss Camgemi that you conspired with, if I
suggested to you that that was – that her address
was 7262 Bradford Road in Upper Darby, would that
be the same Michele that you conspired with,
Camgemi?
MR. MOODY:
Yes.
MR. DENUCCI:
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Okay. And those other dates – so it was a
conspiracy with Michele Camgemi of 7262 Bradford
Road in Upper Darby, PA, on the following dates:
January 28, 2013, 1/31/13 and February 6, 2013. Is
that correct?
MR. MOODY:
Yes.
N.T., 8/5/2013, at 19-22.
The PCRA court concluded that it was “disingenuous to argue that
[Moody] did not know his co-conspirator, simply because he did not know
her last name.” Trial Court Opinion, 7/7/2015, at 10. We agree. At most
this excerpt from the transcript of the plea hearing reflects that Moody could
not remember Ms. Camgemi’s last name, but that his recollection was
immediately refreshed upon being provided with her full name and address.
It does not, by itself, demonstrate, by a preponderance of the evidence, that
counsel failed to advise him in advance of the plea hearing that he would be
pleading guilty to a count of conspiracy to deliver heroin (with Ms.
Camgemi), or that his plea to that charge was unknowing, involuntary, or
unintelligent.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2015
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