J-S09035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM SCOTT BEATTY, JR.
Appellant No. 1256 MDA 2015
Appeal from the PCRA Order June 23, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000842-2010
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 05, 2016
William Scott Beatty, Jr. (“Appellant”) appeals from the order entered
in the Lebanon County Court of Common Pleas, which dismissed his petition
filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
The PCRA court set forth the relevant facts and procedural history of
this appeal as follows:
On May 26, 2010, [Appellant] was charged at this action
number[2] with 96 counts which included corrupt
organizations,[3] dealing in proceeds of unlawful
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1
42 Pa.C.S. §§ 9541-9546.
2
CP-38-CR-0000842-2010 (“the 2010 docket”).
3
18 Pa.C.S. § 911(b)(3).
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activities,[4] robbery,[5] simple assault,[6] possession of
instrument of crime [(“PIC”)],[7] conspiracy,[8] burglary[9]
and theft[10] for numerous incidents which occurred
between 2007 and August, 2009. On April 4, 2011, an
amended information was filed which reduced the charges
to 87 counts. On June 23, 2010, the Commonwealth filed a
motion to consolidate this action with another action, [CP-
38-CR-00001745-2009 (“the 2009 docket”)], which was
already pending against [Appellant] at the time. [The
2009 docket] involved burglary, conspiracy, and [PIC]
charges with regard to a residential burglary which
occurred on September 9, 2009. [Appellant’s] co-
conspirators were the same in both actions. Brian
Deiderick, Esquire (“Defense Counsel”) was appointed to
represent [Appellant] in both matters. Defense Counsel
took no action to oppose the consolidation of [Appellant’s]
two cases.
On November 1, 2010, [Appellant] pled guilty to the
charges in [the 2009 docket]. A jury trial was commenced
for the charges in this action on April 5, 2011. On the first
day of trial, after proceedings had already commenced,
[Appellant] decided to plead nolo contendere to all 87
counts. His plea was entered on that date. On May 18,
2011, [Appellant] appeared for sentencing and made an
oral request to withdraw his guilty plea. The court denied
____________________________________________
4
18 Pa.C.S. § 5111(a)(1).
5
18 Pa.C.S. § 3701(a)(1).
6
18 Pa.C.S. § 2701(a)(3).
7
18 Pa.C.S. § 907(a).
8
18 Pa.C.S. § 903.
9
18 Pa.C.S. § 3502(a).
10
18 Pa.C.S. § 3921(a).
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his request and imposed an aggregate sentence of over
forty years.
PCRA Court Pa.R.A.P. 1925(a) Opinion, filed June 24, 2015, at 3-4 (“PCRA
Court Opinion”) (some capitalization omitted).
On May 26, 2011, Appellant filed a pro se PCRA petition. That same
day, the court dismissed Appellant’s PCRA petition because his judgment of
sentence was not yet final. The court appointed counsel and conducted a
hearing on January 31, 2012 with respect to the 2009 docket.11 On
February 4, 2012, Appellant filed a pro se PCRA petition regarding the 2010
docket. On April 8, 2013, the PCRA court dismissed both petitions, however,
the PCRA court’s opinion only addressed issues raised with respect to the
2009 docket. Appellant appealed to this Court. On February 4, 2014, this
Court affirmed the order denying relief for the 2009 docket, but vacated and
remanded the order denying relief on the 2010 docket.
On July 29, 2014, the PCRA court conducted a hearing on Appellant’s
PCRA petition regarding the 2010 docket that is presently before us. On
June 23, 2015, the PCRA court denied Appellant’s petition. On July 20,
2015, Appellant filed a timely notice of appeal. The next day, the PCRA
court ordered appellant to file a concise statement of errors complained on
of appeal, and he timely complied on August 5, 2015.
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11
Because we do not have the record for the 2009 docket, it is unclear
whether Appellant filed an additional PCRA petition with respect to the 2009
docket or if the PCRA court ruled on his previously dismissed petition.
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Appellant raises the following issues for our review:
[1.] WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
COMMUNICATE ADEQUATELY WITH APPELLANT, TO
INFORM HIM OF THE FACTS AND EVIDENCE THAT WOULD
BE PRESENTED AGAINST HIM AT TRIAL, AND TO WORK
WITH APPELLANT IN DEVELOPING AN ADEQUATE DEFENSE
OR A KNOWING AND INFORMED BASIS FOR A PLEA?
[2.] WAS TRIAL COUNSEL INEFFECTIVE FOR OBTAINING
TRIAL CONTINUANCES AGAINST APPELLANT’S EXPRESS
INSTRUCTIONS THAT HE NOT CONTINUE TRIAL?
[3.] WAS TRIAL COUNSEL [] INEFFECTIVE FOR FAILING
TO PERFORM AN ADEQUATE INVESTIGATION[, WHERE,]
HAD HE DONE SO, APPELLANT WOULD HAVE BEEN ABLE
TO PRESENT ARGUABLY MERITORIOUS MOTIONS TO
SUPPRESS EVIDENCE AND SEVER, AS WELL AS MOTIONS
IN LIMINE BEFORE TRIAL, THUS RESULTING IN AN
UNKNOWING, INVOLUNTARY, AND UNINFORMED
DECISION TO ENTER A NOLO CONTENDERE PLEA[?]
Appellant’s Brief at 4.
In his combined issues, Appellant argues his trial counsel was
ineffective and he is entitled to a new trial. We disagree.
Our standard of review regarding PCRA relief is well-settled. “[W]e
examine whether the PCRA court’s determination is supported by the record
and free of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803
(Pa.2014) (internal quotation marks and citation omitted). “The scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) (citation
omitted). “It is well-settled that a PCRA court’s credibility determinations
are binding upon an appellate court so long as they are supported by the
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record.” Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa.2013)
(citation omitted). However, this Court reviews the PCRA court’s legal
conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080, 1084
(Pa.Super.2014) (citation omitted).
This Court follows the Pierce12 test adopted by our Supreme Court to
review claims of ineffective assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence resulted from
ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place. We have
interpreted this provision in the PCRA to mean that the
petitioner must show: (1) that his claim of counsel’s
ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and
(3) that the error of counsel prejudiced the petitioner-i.e.,
that there is a reasonable probability that, but for the error
of counsel, the outcome of the proceeding would have
been different. We presume that counsel is effective, and it
is the burden of Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal
citations and quotations omitted). “If an appellant fails to prove by a
preponderance of the evidence any of the Pierce prongs, the Court need not
address the remaining prongs of the test.” Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa.2010) (citation omitted).
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12
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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In his first and third issues, Appellant contends his trial counsel was
ineffective for failing to adequately investigate his case or communicate with
him, for failing to develop a better defense, and for failing to suppress
evidence, which caused him to enter into an unknowing, involuntary nolo
contendere plea. These claims merit no relief.
“An appellant’s claim for ineffective assistance of counsel in connection
with advice rendered regarding whether to plead guilty[13] is cognizable
under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).” Commonwealth
v. Lippert, 85 A.3d 1095, 1100 (Pa.Super.2014), appeal denied, 95 A.3d
277 (Pa.2014). “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 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), appeal denied, 835 A.2d 709
(Pa.2003) (quoting Hickman, 799 A.2d at 141).
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13
“It is well established that a plea of nolo contendere is treated as a guilty
plea in terms of its effect upon a given case.” Commonwealth v. V.G., 9
A.3d 222, 226 (Pa.Super.2010) (citing Commonwealth v. Leidig, 850 A.2d
743, 745 (Pa.Super.2004)).
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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. The reasonable probability test is
not a stringent one; it merely refers to a probability
sufficient to undermine confidence in the outcome.
Lippert, 85 A.3d at 1100 (quoting Commonwealth v. Barndt, 74 A.3d
185, 191–92 (Pa.Super.2013)).
The PCRA court reasoned:
Defense Counsel provided [Appellant] with a great deal of
discovery materials prior to trial and met with him on
numerous occasions in order to go over that material and
to develop a trial strategy. [Appellant] complains that he
was not provided with phone records, the video and color
copies of the photographs provided in discovery. Defense
Counsel explained that he did not provide the phone
records to [Appellant] as both of them had determined
that the item was too voluminous and was not relevant to
the charges in this action, Defense Counsel had no way to
show the video to [Appellant] while he was incarcerated
and made the decision not to spend the funds necessary to
obtain color prints due to the trial strategy to which the
two subsequently agreed. [Appellant] provides no
explanation of his assertion that he would not have pled
nolo contendere had he received these materials.
Defense Counsel thoroughly explained the legal concepts
regarding [Appellant’s] charges and reviewed the jury
instructions for all of the offenses, thereby apprising
[Appellant] of all of the elements and of the proof required
of the Commonwealth at trial. This review also opened up
a dialogue between [Defense] Counsel and [Appellant] as
to whether they would challenge specific elements or the
charge as a whole at trial. Defense Counsel met with
[Appellant] on numerous occasions to discuss these
matters. [Appellant] charges that Defense Counsel
misrepresented the case to him. However, [Appellant’s]
own version of the information provided by Defense
Counsel indicates that he was merely explaining the law to
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[Appellant] as it could be applied to the facts of this case.
It appears that [Appellant] simply did not like or agree
with the status of the law on these matters.
Defense Counsel reviewed voluminous discovery materials
which had resulted from an extensive investigation by law
enforcement. He arranged to have the motion filed to
obtain the grand jury testimony, but decided that it would
not be useful at trial because the witness involved would
not be called to testify at trial by the Commonwealth. After
reviewing all of the aspects of the case, Defense Counsel
determined that there were no valid bases upon which to
file pretrial motions or motions in limine. He noted that he
would request offers of proof as to certain Commonwealth
witnesses at trial. [Appellant] was not prejudiced in any
manner by Defense Counsel’s failure to oppose severance;
[Appellant] was tried individually at the trial of this matter.
* * *
Based on these facts, we find that [Appellant] was
provided with fully effective legal representation in this
matter and that his plea of nolo contendere was entered
knowingly, voluntarily and intelligently.
PCRA Court Opinion, at 15-18.
The PCRA court’s determination is supported by the record and free of
legal error. Appellant failed to show a reasonable probability that, but for
counsel’s errors, he would not have pleaded nolo contendere. See Lippert,
supra. Thus, Appellant’s first and third issues merit no relief.14
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14
Although Appellant asserted his innocence to some of the charges against
him at the PCRA hearing on July 29, 2014, he failed to preserve his
innocence claim in his Pa.R.A.P. 1925(b) statement. Moreover,
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1285 (Pa.2015) provides
“a bare assertion of innocence is not, in and of itself, a sufficient reason to
require a court to grant [a] request [to withdraw a guilty plea before
(Footnote Continued Next Page)
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In Appellant’s remaining issue, he argues his trial counsel was
ineffective for continuing Appellant’s trial against Appellant’s express wishes.
Although Appellant claims he did not approve of the continuances, he fails to
allege the continuances prejudiced his case in any way. Thus, this
ineffective assistance of counsel claim fails. See Fitzgerald, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
_______________________
(Footnote Continued)
sentencing]” and also provides guidelines for what a defendant must
demonstrate in order to withdraw his guilty plea:
[W]e are persuaded by the approach of other jurisdictions
which require that a defendant’s innocence claim must be
at least plausible to demonstrate, in and of itself, a fair
and just reason for presentence withdrawal of a plea.
...[T]he proper inquiry on consideration of such a
withdrawal motion is whether the accused has made some
colorable demonstration, under the circumstances, such
that permitting withdrawal of the plea would promote
fairness and justice.
Id. at 1885, 1292. In this case, although Appellant indicated he was not
guilty of some of the charges, he pled nolo contendere to 87 counts after a
full colloquy and failed to make a colorable demonstration that withdrawal of
his plea would promote fairness and justice. See id.
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