Com. v. Ely, G.

J-S17002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

GEORGE F. ELY, JR.

Appellant No. 1756 WDA 2014

Appeal from the PCRA Order July 17, 2007
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0002786-1996

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 04, 2016

Appellant, George F. Ely, Jr., appeals nunc pro tunc from the order

entered in the Washington County Court of Common Pleas, dismissing his

first petition under the Post Conviction Relief Act (“PCRA”).1 We affirm.

The PCRA court’s opinion fully sets forth the relevant facts and

procedural history of this appeal. Therefore, we will only briefly summarize

them here. Appellant was involved in a contract killing in 1985, where the

victim sustained a single gunshot to the head. After an eleven-year

investigation, state police arrested Appellant, who was then serving a

sentence in federal prison.

____________________________________________

1
42 Pa.C.S.A. §§ 9541-9546.

_____________________________

*Former Justice specially assigned to the Superior Court.
J-S17002-16

On September 26, 1997, [Appellant] entered an open
general plea to criminal homicide and criminal conspiracy
to commit homicide for his participation in a 1985 contract
killing. In exchange for his full cooperation concerning his
and other conspirators’ involvement, the Commonwealth
agreed not to seek the death penalty. The court
conducted a full and extensive oral colloquy, after which
the court found a factual basis for the plea and that
[Appellant] knowingly, intelligently and voluntarily entered
said plea.2 [Appellant] also waived his right under
Pa.R.Crim.P. 704(A)(1) to be sentenced within ninety days
so that he could comply with his plea agreement and offer
testimony against his known co-conspirator, John Dino
Martin. Martin’s case did not conclude until July 29, 2003,
at which time Martin was sentenced to 5-10 years’
imprisonment for criminal conspiracy to commit homicide
on a negotiated plea bargain. On August 1, 2003, the
court issued an order scheduling [Appellant’s] degree of
guilt hearing for September 10-11, 2003.
2
The record included the notes of testimony from
the guilty plea colloquy, but no written guilty plea
colloquy form.

On August 28, 2003, [Appellant] filed a motion to
withdraw his guilty plea and a motion to dismiss the
charges for violation of Rule 704. On September 10, 2003,
both motions were considered and denied. At the degree
of guilt hearing on September 11, 2003, [Appellant] was
found guilty of murder in the first degree and criminal
conspiracy to commit homicide, and sentenced to life in
prison.3 A timely post-sentence motion was filed and
denied….
3
This includes a sentence of 5-10 years’
imprisonment for criminal conspiracy to commit
homicide, to run concurrently.

Commonwealth v. Ely, No. 718 WDA 2004, unpublished memorandum at

1-2 (Pa.Super. filed July 28, 2005). On July 28, 2005, this Court affirmed

the judgment of sentence; our Supreme Court denied Appellant’s petition for

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J-S17002-16

allowance of appeal on March 8, 2006. See Commonwealth v. Ely, 587

Pa. 683, 897 A.2d 451 (2006).

On June 30, 2006, Appellant timely filed a pro se PCRA petition. The

court appointed counsel, who filed an amended petition on November 27,

2006, raising multiple claims of plea counsel’s ineffectiveness. On June 15,

2007, the PCRA court issued notice of its intent to dismiss the petition

without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant did not respond

to the Rule 907 notice, and the court denied PCRA relief on July 17, 2007.

Counsel filed a praecipe to withdraw as counsel on September 14, 2007.

On November 24, 2010, Appellant filed a “motion for re-sentencing

nunc pro tunc.” Over one year later, the court appointed counsel who filed a

second PCRA petition on December 14, 2012, requesting reinstatement of

Appellant’s appellate rights related to his first PCRA petition. On October 3,

2014, the court reinstated Appellant’s right to appeal nunc pro tunc the

denial of his first PCRA petition. The court also appointed appellate counsel.

Appellant timely filed a notice of appeal on October 22, 2014. On October

27, 2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely

complied on November 3, 2014.

Appellant raises five issues for our review:

WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
DISCRETION IN DENYING APPELLANT’S CLAIM THAT
[PLEA] COUNSEL WAS INEFFECTIVE FOR FAILURE TO

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INVESTIGATE AND PRESERVE EVIDENCE IN THE CASE
AGAINST APPELLANT?

WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
DISCRETION IN DENYING APPELLANT’S CLAIM THAT
[PLEA] COUNSEL WAS INEFFECTIVE FOR FAILING TO
REQUEST AND OBTAIN DISCOVERY MATERIAL?

WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
DISCRETION IN DENYING APPELLANT’S CLAIM THAT
[PLEA] COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO THE ELEVEN YEAR LAPSE OF TIME BETWEEN
THE DATE OF THE CRIME AND APPELLANT’S ARREST?

WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
DISCRETION IN DENYING APPELLANT’S CLAIM THAT
[PLEA] COUNSEL WAS INEFFECTIVE BECAUSE HE
PROVIDED ERRONEOUS ADVICE AS TO THE DURATION OF
THE SENTENCE AND THAT APPELLANT’S PLEA OF GUILTY
WAS UNLAWFULLY INDUCED?

WHETHER THE [PCRA] COURT ERRED AND ABUSED ITS
DISCRETION IN DENYING APPELLANT’S CLAIM THAT
EXCULPATORY EVIDENCE EXISTED WHICH WAS
UNAVAILABLE AT THE TIME OF THE PLEA AND/OR
SENTENCING AND HAS SUBSEQUENTLY BECOME
AVAILABLE AND WOULD HAVE CHANGED THE OUTCOME?

(Appellant’s Brief at 4).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s

determination and whether its decision is free of legal error.

Commonwealth v. Lane, 81 A.3d 974 (Pa.Super. 2013), appeal denied,

625 Pa. 658, 92 A.3d 811 (2014). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

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denied, 593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a

PCRA hearing as a matter of right; the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact, the

petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings. See Commonwealth v. Wah, 42 A.3d 335, 338

(Pa.Super. 2012) (citing Commonwealth v. Hardcastle, 549 Pa. 450, 701

A.2d 541, 543 (1997)); Pa.R.Crim.P. 907.

“The benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the [proceeding] cannot be relied on having

produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104

S.Ct. 2052, 2064, 80 L.Ed.2d 674, ___ (1984). When asserting a claim of

ineffective assistance of counsel, the petitioner is required to demonstrate

that: (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his action or inaction; and (3) but for the

errors or omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Kimball, 555 Pa. 299, 724 A.2d 326 (1999). Counsel is presumed effective,

and the petitioner’s failure to satisfy any prong of the ineffectiveness test

will cause the claim to fail. Commonwealth v. Williams, 597 Pa. 109, 950

A.2d 294 (2008).

“The threshold inquiry in ineffectiveness claims is whether the

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issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Once this

threshold is met we apply the ‘reasonable basis’ test to determine whether

counsel’s chosen course was designed to effectuate his client’s interests.”

Id. at 524, 645 A.2d at 194-95. If there is no reasonable basis for counsel’s

action, we must move to the final point of analysis under

Strickland/Pierce—prejudice. Kimball, supra. A petitioner raising an

ineffectiveness claim is required to show counsel’s ineffectiveness was of

such magnitude that it “could have reasonably had an adverse effect on the

outcome of the proceedings.” Pierce, supra at 162, 527 A.2d at 977. In

other words, there must be a reasonable probability that, but for counsel’s

error, the outcome of the proceedings would have been different.

Commonwealth v. Cox, 581, Pa. 107, 125, 863 A.2d 536, 546 (2004). “A

reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d

872, 883 (2002).

“A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Bedell, 954 A.2d 1209,

1212 (Pa.Super. 2008), appeal denied, 600 Pa. 742, 964 A.2d 893 (2009).

To obtain relief on allegations of ineffectiveness in connection with a guilty

plea, the defendant must show counsel’s deficient performance caused the

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J-S17002-16

defendant to enter an unknowing, involuntary, or unintelligent plea.

Commonwealth v. Allen, 557 Pa. 135, 144, 732 A.2d 582, 587 (1999). “A

plea is knowing, intelligent and voluntary…if the defendant had an

understanding of the nature of the charges against him, his right to a jury

trial and the consequences of his plea.” Commonwealth v. Flannigan,

578 Pa. 587, 625, 854 A.2d 489, 512 (2004). A reviewing court should

consider the totality of the circumstances when assessing the voluntariness

of the plea. Id. at 626, 854 A.2d at 513.

Significantly, however, claims of ineffective assistance of counsel are

not self-proving. Commonwealth v. Jones, 571 Pa. 112, 127-28, 811

A.2d 994, 1003 (2002). Ineffective assistance of counsel claims must be

pled with specificity, i.e., with enough facts to support the allegations;

courts will not consider ineffectiveness of counsel claims in a vacuum.

Commonwealth v. Thomas, 560 Pa. 249, 256, 744 A.2d 713, 716 (2000).

A petitioner must identify facts and, if they do not appear of record, provide

evidence proving the alleged facts to support an averment of counsel’s

ineffectiveness for failing to file an appeal (or in this case failing to withdraw

a guilty plea); otherwise the claim lacks arguable merit. Commonwealth

v. Collins, 546 Pa. 616, 622, 687 A.2d 1112, 1115 (1996). A PCRA

evidentiary hearing is not meant to be a fishing expedition for any possible

evidence that might support some bare assertion of ineffectiveness of

counsel. Jones, supra at 128 n.8, 811 A.2d at 1003 n.8.

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J-S17002-16

After a thorough review of the record, Appellant’s brief, the applicable

law, and the well-reasoned opinion of the Honorable Katherine B. Emery, we

conclude Appellant’s issues merit no relief. The PCRA court’s opinion fully

discusses and properly disposes of Appellant’s issues on appeal. (See PCRA

Court Opinion, filed December 29, 2014, at 7-14) (finding: (1) Appellant’s

claim lacks particularity with regard to whom or what his counsel failed to

investigate; Appellant’s claim fails as undeveloped; moreover, Appellant

cannot show how counsel’s failure, if true, prejudiced Appellant;

overwhelming evidence against Appellant includes his signed confession and

subsequent 73-page guilty plea colloquy, as well as eyewitness testimony

that linked Appellant to vehicle seen leaving crime scene, and testimony at

preliminary hearing which indicated Appellant had knowledge of and

admitted involvement in homicide; Appellant’s claim that plea counsel failed

to preserve evidence does not state what evidence counsel allegedly failed to

preserve or how Appellant suffered prejudice; (2) Commonwealth provided

discovery to plea counsel; Appellant failed to offer proof that Commonwealth

withheld any evidence; Appellant’s claim that counsel failed to request and

obtain discovery material is undeveloped; (3) even if Appellant was

prejudiced by lapse of time from crime to his arrest, Appellant’s claim still

fails because he failed to provide evidence to indicate misconduct by

prosecution; at worst, eleven-year delay between commission of offense and

Appellant’s arrest is attributable to prosecutorial or investigative negligence,

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J-S17002-16

which is insufficient to establish claim of due process violation due to pre-

arrest delay; underlying claim lacks merit, so Appellant’s ineffective

assistance claim also fails; (4) Appellant has offered no evidence to suggest

plea counsel failed to inform Appellant that he could be sentenced to life

imprisonment; Appellant’s plea colloquy belies Appellant’s claim, as court

explicitly informed Appellant he could be sentenced to life imprisonment if

convicted of first degree murder; Appellant’s plea transcript refutes

Appellant’s claim that his plea was involuntary, unknowing, or unintelligent;

Appellant advances only bald, unsupported allegations that his plea was

unlawfully induced; Appellant’s dissatisfaction with cohort’s sentence is not

fair and just reason to allow withdrawal of Appellant’s guilty plea; (5)

Appellant’s “newly discovered exculpatory evidence” consists of preliminary

hearing witness’ guilty plea to charges of theft and tampering with records;

witness’ guilty plea occurred several years before she testified against

Appellant; Appellant’s evidence is neither new nor exculpatory, but merely

impeachment evidence that was available to Appellant at time of his guilty

plea). The record supports the PCRA court’s decision; therefore, we see no

reason to disturb it. Accordingly, we affirm on the basis of the PCRA court’s

opinion.

Order affirmed.

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J-S17002-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/4/2016

- 10 -
 J Circulated 03/09/2016 12:02 PM

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

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ORDER

AND NOW, this~ day of July, 2007, pursuant to the Court's Order dated June 15,

2007, the Court not having received a response within twenty (20) days from the Petitioner, George

Ely, Jr., to the Court's Notice of Intent to Dismiss Post Conviction Relief Act Petition, as amended,

said Petition is dismissed.

BY THE COURT:
To: George F. Ely, Jr. by Certified Mail; District Attorney, Mary R. Bates, Esquire; File

IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
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OPINION PURSUANT TO Pa. R.A.P. 1925(a)

George Ely appeals nunc pro tune from Judge John Bell's July 2007 order denying relief

under the Post-Conviction Relief Act (PCRA). This opinion is written pursuant to Rule 1925(a)

of the Pennsylvania Rules of Appellate Procedure.

BACKGROUND

The factual and procedural history of this case spans a period of nearly thirty years from

the commission of the offense to this appeal and is - to put it mildly - complicated. The

following is a timeline of events leading to this appeal.

The Crime, Arrest, and Confession

On March 11, 1985, Robert Dickinson was killed by a single gunshot wound to the head

in-the parking lot of the Somerset Inn in Washington County, Pennsylvania. After an eleven year

investigation into this crime, on November 22, 1996, the Pennsylvania State Police (PSP)

arrested George Ely on homicide and conspiracy charges at the federal penitentiary at Lewisbug

- where Ely was serving a twenty year sentence for a R.I.C.O. conviction. Officer Maggi of the

PSP "Mirandized" Ely at Lewisburg and obtained from Ely a written waiver of his Miranda

rights. Omnibus Pre-Trial Motion Transcript, Apr. 21, 1997, p.4. The same day, Maggi

1
transported Ely to the state police barracks in Washington where Ely again signed a formal

waiver of his Miranda rights and provided detailed oral and written statements concerning his

involvement, and the involvement of John Dino Martin, in the Dickinson homicide. Id. at 10- 11,

94. Ely indicated in his statement that on the night of the homicide, he drove Martin to the

Somerset Inn, remained in the car while Martin waited outside of the bar for Dickinson, observed

Dickinson lying on the ground after being shot by Martin, and then drove Martin back to

Steubenville, Ohio. Degree-of-Guilt Transcript, Sept. 10 and 11, 2003, pp. 100-101. Ely was

arraigned on charges of homicide and conspiracy to commit homicide shortly after providing

these statements.

Ely's Motion to Suppress

In March of 1997, Ely filed an Omnibus Pre-Trial Motion requesting suppression of the

oral and written statements given to Maggi alleging that they were involuntary and coerced based

on (1) Maggi's promise of leniency, (2) false information set forth in Maggi's affidavit of

probable cause, and (3) unnecessary delay between his arrest and arraignment. Omnibus Pre-

Trial Motion dated 3/17/97, p.7. Following a suppression hearing on these issues, Judge Bell

determined that (1) there was "no evidence of inducement on the part of Trooper Maggi by

promising leniency to [Ely]," (2) Ely's statements were not induced by false information in the

affidavit of probable cause; and (3) Ely's statements were not involuntarily made due to

unnecessary delay because Maggi's "unrefuted testimony" established that no custodial

interrogation occurred during Ely's transport to Washington, PA. Op. and Order dated 5/21/97, J.

John F. Bell pp. 5-8. Following Judge Bell's ruling, on September 26, 1997, Ely pleaded guilty

to an open charge of homicide and criminal conspiracy and agreed to fully cooperate with the

prosecution in exchange for the Commonwealth's agreement to not seek the death penalty.

2
The Plea Hearing

At Ely's plea hearing before Judge Bell, 1 Washington County District Attorney John C.

Pettit recounted the above details of Ely's involvement in the Dickinson homicide for the Court,

along with details of many other crimes previously committed by Ely. Plea Transcript, Sept. 26,

1997, pp 6-29. Ely admitted before the Court his involvement in the homicide and affirmed the

truthfulness of his statements previously provided to Officer Maggi. Id. at 67-68. Consequently,

the Court found a factual basis for Ely's plea and after extensive discussion with Ely concerning

his state of mind and his ability to understand the rights waived by his plea, determined that he

knowingly, intelligently, and voluntarily entered into it. Ely further affirmed to the Court (1) the

only thing promised to him in exchange for his plea was Pettit's agreement to not seek the death

penalty, and (2) that he would fully assist in prosecuting any other individuals involved in the

Dickinson homicide. Id. at 68-70. As a result of Ely's cooperation, Martin pleaded guilty to

criminal conspiracy and was sentenced in July of 2003 to 5-10 years of imprisonment.

Ely's Motion to Withdraw Plea and the Degree-of-Guilt Hearing

Shortly after Martin's sentencing - which completed Ely's required cooperation with the

Commonwealth - a degree-of-guilt hearing was set for Ely on September 10, 2003 before Judge

Bell. However, less than two weeks before his degree-of-guilt hearing, and apparently because of

Martin's light sentence, Ely filed (1) a motion to dismiss all charges based on violation of Pa. R.

Crim. P. 704 and (2) a motion to withdraw his guilty plea. In his motion to withdraw his guilty

plea, he alleged that he was factually innocent and that his confession to Maggi was the product

of "psychological duress." Degree-of-Guilt Transcript, p.31.2 The Court denied both motions,

finding that (I) Ely's plea was voluntarily made, and the result of an informed decision in light

I
Ely was represented by attorney Dennis R. Paluso at his plea hearing.
2 Judge Bell held a hearing on Ely's motion to withdraw and motion to dismiss on September 10, and after denying
these motions, held a degree-of-guilt hearing the following day.

3
of the Commonwealth's "overwhelming evidence'} and (2) that Ely waived his right to be

sentenced within ninety days under Rule 704 so that he could take advantage of the plea bargain

offered by the Commonwealth. Id. at 27, 44. The following day, Judge Bell found Ely guilty of

murder in the first degree and criminal conspiracy to commit homicide, and sentenced him to life

in pnson,

Ely's Post-Sentence Motions and Appeal

Less than a month after his sentencing, Ely filed post-sentence motions seeking to vacate

Judge Bell's order denying the above motions. Judge Bell again denied both motions,

determining that (1) Ely waived Rule 704 and (2) the motivating factor behind Ely's motion to

withdraw his guilty plea was not his actual innocence, but rather his displeasure with his plea

bargain after learning of Martin's relative light sentence. Op. and Order dated 3/30/2004, J. John

F. Bell p. 9-11. Ely appealed Judge Bell's decision to the Pennsylvania Superior Court, who

determined in an unpublished memorandum opinion that Judge Bell correctly denied (1) the

motion to withdraw because the "73-page oral colloquy confirms Ely knowingly and voluntarily

admitted his guilt" and (2) the motion to dismiss because Ely voluntarily waived his rights under

Rule 704. Superior Court Memorandum and Order dated 7/28/05, at 718 WDA 2004. Ely filed a

Petition for Allowance of Appeal with the Supreme Court of Pennsylvania, and this petition was

denied on March 8, 2006.

3 The evidence included (1) Mr. Ely's oral and written confession, (2) eyewitness testimony from Jodie Wright
linking Mr. Ely to a vehicle seen leaving the scene of Mr. Dickinson's murder immediately following a gunshot, and
(3) testimony from Mr. Ely's former girlfriend concerning his possession of the means to commit the murder ie. a
rifle with a scope, his knowledge of and admitted involvement in the Dickinson murder, and his receipt of money
and purchase of expensive items following the Dickinson murder. Degree-of-Guilt Transcript, pp. 51-60, 71-79;
Preliminary Hearing Transcript, Dec. 4, 1996, p. 49.

4
Ely's First PCRA Petition

Ely filed a pro se PCRA petition in June of 2006, raising a variety of ineffective

assistance of counsel claims and also alleging, again, that his guilty plea was unlawfully

induced. Following the appointment of attorney Jeffrey Watson in September, Judge Bell

ordered Ely to file an amended petition setting forth "with particularity" the above claims.

Watson filed an amended petition in November and the Commonwealth filed an answer one

month later, arguing that Ely's valid guilty plea negated any ground for relief based on

ineffective assistance of counsel. On June 15, 2007 Judge Bell issued an order noticing his

intention to dismiss Ely's petition without a hearing unless Ely responded within twenty days

and established a right to relief under sections 9543(a)(3) and 9543(a)(4) of the Act (relating to

whether issues were previously litigated). After receiving no response from Ely, Judge Bell
4
issued a final order of dismissal on July 17, 2007. This order did not make reference to Ely's

appellate rights, and there is no indication that Watson informed Ely of these rights - or

contacted him at all - prior to withdrawing from representing Ely via praecipe on September 14,

2007.

Ely's Motion for Nunc Pro Tune Sentencing Order and Second PCRA Petition

Ely remained silent in state courts until November 24, 2010,5 when he filed a Motion for

Nunc Pro Tune Sentencing Order - still claiming he was "unlawfully induced into a guilty plea"

and that he is "actually innocent" based on an unidentified "unique set of circumstances [that]

came to light during the trial of his co-defendant." Ely attached to this motion nearly twenty

letters to various organizations and individuals attempting to enlist their help in appealing the

4
Neither the Commonwealth's answer nor Judge Bell's final order addressedEly's claims on their merits.
5
On January 2, 2008, Ely filed a habeas corpus petition in the Western District of Pennsylvania, raising essentially
the same claims that he raised in his amended PCRA. In a memorandum opinion dated May I, 2009, Magistrate
Judge Amy Hay found that Ely procedurally defaulted on these claims and did not address their merits. Ely v.
Attorney Gen. of Pennsylvania, No. 2009 WL 1248057 (W.D. Pa. May 1, 2009).

5
denial of his initial PCRA petition. Eventually, on January 7, 2011, Judge Paul Pozonsky

appointed Daniel Chunko to represent Ely, and Chunko filed a second PCRA petition on

6
December 14, 2012. The second PCRA claimed that attorney Watson was ineffective in failing

to advise Ely of his appellate rights related to the denial of his first petition, and also alleged that

Ely was unlawfully induced into pleading guilty and that exculpatory evidence now exists that

was unavailable at trial - though this petition, and every other filing submitted by Ely, lacks

particularity as to the nature of this evidence or any facts tending to establish its actual existence.

Ely's Appellate Rights are Restored

After a review of this case, in an order dated October 3, 2014, this Court restored Ely's

appellate rights nunc pro tune as to his first PCRA petition, finding that Ely was not made aware

of his appellate rights as to that petition' and appointed Mary R. Bates to represent Ely. On

November 14, Bates filed a Concise Statement of Matters Complained on Appeal which is the

subject of this opinion.

ISSUES ON APPEAL

In his Amended PCRA, Ely asserts that he is eligible for relief under the following

subsections of the act:

(ii) 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.

(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the
inducement caused the petitioner to plead guilty and the petitioner is innocent.

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently
become available and would have changed the outcome of the trial if it had been
introduced.

6
The merits of Ely's second PCRA petition were never addressed because this Court's October 3, 2014 order
restoring Ely's appellate rights as to hisfirst petition effectively "mooted" the second one.
7 Ely was incarcerated in West Virginia throughout his PCRA proceedings and did not receive notice of any appeal

rights which were apparently sent to the Pennsylvania Department of Corrections.

6
 .r :

42 Pa.C.S. § 9543(a)(2). In his Concise Statement of Matters Complained on Appeal, Ely raises

six distinct ineffective assistance of counsel claims, an unlawful inducement claim, and a newly

discovered exculpatory evidence claim. We will address them individually.

I. Ineffective Assistance of Counsel

The standard applicable to ineffective assistance of counsel claims is well worn; to

succeed on such a claim, Ely must plead and prove by a preponderance of the evidence that (1)

the underlying claim has arguable merit, (2) counsel did not have a reasonable basis for his

action or inaction, and (3) he suffered prejudice, or in other words - a reasonable probability that

the outcome of the proceedings would have been different, as a result of this action or inaction.

Com. v. Steele, 961 A.2d 786, 797 (Pa. 2008). Counsel is presumed to be effective and Ely bears

the burden of proving otherwise. Com. v. Harris, 972 A.2d 1196, 1203 (Pa. Super. 2009). Where

it is clear that he has failed to meet any one of the three prongs, his claim may be disposed of on

that basis alone - without a determination of whether the other two prongs have been met. Steele,

at 797.

We also note that ineffective assistance of counsel claims are not self-proving, and Ely

cannot prevail on undeveloped claims consisting of boilerplate allegations. Id. (internal

quotations and citations omitted); see also Com. v. Pierce, 786 A.2d 203, 221 (Pa. 2001)

(petitioner cannot prevail on an ineffective assistance claim absent an "analysis of the record or

specific allegations of how [counsel's] failure ... prejudiced him."). Most of Ely's ineffective

assistance claims suffer from this defect.

7
1. The Trial Court Erred and Abused its Discretion in Denying Defendant's Claim that Trial
Counsel Was Ineffective for Failure to Appeal the Trial Court Order of July 15, 2007
Denying Post Conviction Relief

This claim of error is premised on a factual misstatement. The trial Court never denied

Ely's claim that attorney Watson, the PCRA counsel (not trial counsel), was ineffective for

failing to appeal Judge Bell's July 2007 order. In fact, no court ever addressed this claim because

it was raised only in Ely's second PCRA petition - which was effectively mooted when this

Court restored his rights as to his first petition. In any event, the only remedy for this error would

be restoration of Ely's appellate rights, which has already been ordered by this Court. Thus, we

have no occasion to address this claim.

2. The Trial Court Erred and Abused its Discretion in Denying Defendant's Claim that Trial
Counsel Was Ineffective Because he Failed to Investigate the Case and Interview Witnesses
Identified by the Defendant

Ely's amended PCRA petition claims that "Paluso failed to investigate this matter prior to

the plea and failed to interview various witnesses identified by Defendant." His pro se petition is

slightly more elaborate - claiming that "Paluso never investigated anything in this case. I told

him numerous things I wanted checked out and never received a response." Ely "supports" this

claim in his pro se petition with a string cite of six cases from various federal courts - only one

of which, Thomas v. Lockhart, 738 F.2d 304 (8th Cir; 1984), addresses an ineffective assistance

claim in the context of a guilty plea. Lockhart offers Ely no help however because the attorney's

conduct there was infinitely more egregious than "failing to investigate" and included (1)

informing his client that he would have to prove his innocence at trial, (2) informing his client, a

black man, that a jury would never believe his testimony over the testimony of his white victim,

and (3) failing to investigate his client's documented history of mental illness - from which he

was suffering at the time of plea.

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 In any event, Ely has not pleaded with any degree of particularity who or what his

counsel failed to investigate, and more importantly, he cannot plead how this failure, if true,

prejudiced him. Accordingly, this claim fails as undeveloped.

Even so, the evidence against Ely is overwhelming and includes (1) his signed confession

and subsequent 73-page plea colloquy confirming its veracity, (2) Jodie Wright's testimony

linking him to a vehicle seen leaving the scene the Dickinson homicide, and (3) Stephanie

Kirkpatrick's testimony indicating his knowledge of, and admitted involvement in,8 the

homicide.

3. The Trial Court Erred and Abused its Discretion in Denying Defendant's Claim that Trial
Counsel Was Ineffective Because he Failed to Request and Obtain Discovery Material

Ely claims in his pro se petition that the Commonwealth "denied" Paluso's request for

discovery, which is entirely different from the claim he raises in his amended petition - that

Paluso failed to request discovery. In his prose petition, Ely relied on two Supreme Court cases

granting a defendant relief based on the government's withholding of evidence, but ignores the

fact that the defendants in these cases were able to establish actual prejudice: that disclosure

would have produced a different result at trial. At any rate, discovery was provided to Ely's

counsel, and Ely has offered no proof that evidence was withheld. This claim is undeveloped.

4. The Trial Court Erred and Abused its Discretion in Denying Defendant's Claim that Trial
Counsel Was Ineffective Because he Failed to Preserve Evidence

This claim similarly fails as undeveloped because Ely has not pleaded what evidence went

unpreserved or how it could possibly have prejudiced him.9

8
Stephanie Kirkpatrick testified at Ely's preliminary hearing that, after viewing a news story concerning the
Dickinson homicide, Ely stated to her that Dickinson "was the guy that John [Martin] took care of." Preliminary
Hearing Transcript, Dec. 4, 1996, p. 49.
9
Ely does claim in his prose petition that the deaths of Lewis Still and James Ely prejudiced his defense, but he
fails to allege how.

9
5. The Trial Court Erred and Abused its Discretion in Denying Defendant's Claim that Trial
Counsel Was Ineffective Because he Failed to Object to the Lapse of Time From the Date of
the Crime to the Arrest

The underlying claim here is pre-arrest delay, a due process claim. To succeed on this

claim, Ely must demonstrate that (I) the delay caused him actual prejudice, or in other words,

substantially impaired his ability to defend against the charges, and (2) the delay was the product

of intentional, bad faith, or reckless conduct by the prosecution. Com. v. Scher, 803 A.2d 1204,

1221 (Pa. 2002) (twenty year delay in homicide prosecution does not violate due process).

We will assume, arguendo, that Ely was prejudiced, as he claims, by the lapse of time

from offense to arrest. Even so, his claim fails because there is no evidence indicating

misconduct by the prosecutio_n. At worst, the eleven year delay between the commission of the

offense and Ely's arrest is attributable to prosecutorial or investigative negligence, which is not

sufficient to establish a claim under Scher. Because his underlying claim lacks merit so does his

ineffective assistance claim.

6. The Trial Court Erred and Abused its Discretion in Denying Defendant's Claim that Trial
Counsel Was Ineffective Because he Gave Erroneous Advice as to the Duration of the
Sentence

To succeed on this claim, Ely must establish that but for Paluso's alleged failure to

advise, the outcome would have been different. But Ely cannot escape the fact that the outcome,

at least life in prison, would have been the same, no matter what his plea, because the evidence

against him was simply overwhelming. Ely appears to suggest here that he would not have

pleaded guilty had he been advised of the possible sentence.

No evidence exists to suggest that Paluso failed to inform Ely that he might be sentenced

to life. In fact, Ely's plea colloquy - during which Judge Bell explicitly informs him that he

10
might be so sentenced if found guilty of first-degree murder - belies this undeveloped claim.

Degree-of-Guilt Transcript, p. 60.

II. Plea of Guilty Unlawfully Induced

A defendant has no absolute right to withdraw a guilty plea, 10 and the decision to grant

such a motion lies within the sound discretion of the trial court. Com. v. Muhammad, 794 A.2d

378, 382 (Pa. Super. 2002). More to the point, a pleabargain should not be set aside in the

absence of convincing evidence that the appellant was dealt with indecently or unfairly, and the

appellant must demonstrate manifest injustice, in other words involuntariness, to void a plea

based on unlawful inducement. Com. v. Hare, 380 A.2d 330, 333 (Pa. 1977).

7. The Trial Court Erred and Abused its Discretion in Denying Defendant's Claim that his Plea
of Guilty was Unlawfully Induced, Made Involuntary and Unknowing

Ely claims in his amended PCRA that his plea was involuntary based on the following,

apparently independent, premises (1) District Attorney Pettit promised a sentence of ten to

twenty years imprisonment in exchange for the plea, (2) the plea colloquy did not advise him of

permissible sentencing range, (3) Paluso gave erroneous advice as to the duration of his sentence,

and (4) Paluso failed to advise him of grounds to suppress incriminatory evidence. (1), (2), and

(3) are directly contradicted by Ely's plea colloquy set out below. (4) is likewise not supported

by the record; Paluso actually filed a suppression motion:

At the outset, we note that the Superior Court has already determined that Ely knowingly

and voluntarily entered into the plea agreement, and that he offered no just reason for attempting

10 The standard for allowance of withdrawal is different depending on whether the defendant moves for withdrawal

pre-sentence or post-sentence. Ely moved both pre-sentence and post-sentence but, as the Superior Court has already
determined, he is unable to meet even the less demanding standard - that his withdrawal request is supported by a
"fair and just" reason. Ely filed his pre-sentence motion six years after pleading guilty and did so only a week after,
and because of, Martin's relatively light sentence. Dissatisfaction with an associate's sentence is not a fair and just
reason for withdrawal.
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to withdraw from it.11 We also note that such determinations of voluntariness are entitled to a

presumption of correctness, Siers vs. Ryan, 773 F.2d 37, 42 (3rd Cir. 1985), and that voluntary

and intelligent guilty pleas made under the advice of competent counsel may not be collaterally

attacked. Mabry vs. Johnson, 467 U.S. 504, 507-508, (1984).

This precedent notwithstanding, Ely's specific claims of involuntariness raised here, or

any other involuntariness claim raised elsewhere on a different factual premise, are simply not

supported by the record. The following unambiguous exchange between Judge Bell and Ely

during Ely's plea colloquy undermines any claim of involuntariness:

THE COURT: Knowing all this [rights waived], you want to enter a plea of
guilty then to a general homicide charge. Is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: And a criminal conspiracy charge?

THE DEFENDANT: Yes, sir.

THE COURT: Is that right?

THE DEFENDANT: Yes, sir.

THE COURT: You're doing that on your own free will?

THE DEFENDANT: Yes, sir.

THE COURT: No one has put thumb screws up your fingernails or pulled your
hair out or twisted your arm or any type of physical abuse?

THE DEFENDANT: No, sir.

THE COURT: Has there been any mental coercion to enter this plea of guilty?

THE DEFENDANT: No, sir.

THE COURT: No one here has promised you anything than what I heard Mr.
Pettit say that the only thing he is promising at this time in consideration of your plea of

11 Although Magistrate Judge Hay did not adjudicate Ely's habeas corpus petition on the merits, she opined, "even

if we were to review this issue de novo, we would find that the Petitioner's plea was knowing and voluntary ...
given that his sole argument concerning his alleged innocence is simply not borne out by the record." Ely v. Attorney
Gen. of Pennsylvania, at *7.
12
 /
·, I

guilty to homicide and criminal conspiracy is that he will not seek the death penalty. Is
that correct?

THE DEFENDANT: Yes, sir.

***
THE COURT: I went over first degree, life and death. I have already explained
that to you. Do you have any questions up to now?

THE DEFENDANT: No, sir.

Plea Colloquy Transcript, at 47-48, 60. Ely has offered no evidence, beyond unsupported

allegations directly contradicted by the record, to indicate even a modicum of unfairness or

injustice in his plea proceedings. Accordingly, he cannot credibly claim that his plea was

unlawfully induced or defective in any other respect.

III. Newly Discovered Exculpatory Evidence

To obtain relief based on an after-discovered evidence claim, Ely must demonstrate that

the evidence: (1) could not have been obtained prior to the conclusion of the trial by the exercise

of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely

to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new

trial were granted. Com. v. Pagan, 597 950 A.2d 270, 292 (Pa. 2008) (internal citations omitted).

8. The Trial Court Erred and Abused its Discretion in Denying Defendant's Claim that
Exculpatory Evidence Existed Which was Unavailable at the Time of Plea and/or Sentencing
and has Subsequently Become Available and Would Have Changed the Outcome

Ely's newly discovered exculpatory evidence, at least as far as he indicates in his prose

and amended petitions, consists in Stephanie Kirkpatrick's guilty plea to charges of theft and

tampering with records several years before her testimony against Ely. This evidence is neither

new nor exculpatory; it is merely impeachment evidence that was available to Ely at the time of

his plea. See Com. v. Foreman, 55 A.3d 532, 535 (Pa. Super. 2012) (petitioner not entitled to

relief where detective who testified in criminal trial was later charged with perjury because there

13
., ) ..

was no indication of misconduct at petitioner's trial). Even if Ely could establish that Kirkpatrick

was lying, or locate other pieces of actual newly discovered exculpatory evidence, he could

never prove that this evidence would have resulted in a different outcome. As much as he

desires to do so, Ely cannot undo his voluntary confession to his involvement in the Dickinson

homicide.

CONCLUSION

The findings by the PCRA Judge John Bell that the defendant's issues on appeal were

patently frivolous, not supported in law or fact, and did not entitle him to any relief, and the

order dismissing the PCRA should be affirmed.

BY THE COURT:

KATHERINE B. EMERY, mDG

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