J-S62034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ASIA MARIE HARPER
Appellant No. 60 MDA 2016
Appeal from the PCRA Order December 7, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000662-2013
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 06, 2016
Appellant, Asia Marie Harper, appeals from the order entered in the
Dauphin County Court of Common Pleas, which dismissed her first petition
filed under the Post Conviction Relief Act (“PCRA”).1 We affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
On November 5, 2012, Appellant and her boyfriend (“Victim”) had an
argument. During the verbal altercation, Appellant stabbed Victim seven
times with a knife. The Commonwealth subsequently charged Appellant with
attempted homicide, aggravated assault, terroristic threats, and recklessly
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1
42 Pa.C.S.A. §§ 9541-9546.
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endangering another person (“REAP”). Appellant entered a negotiated guilty
plea on January 9, 2014. Pursuant to the terms of the plea agreement, the
Commonwealth would withdraw the attempted homicide charge, and
Appellant would plead guilty to the remaining offenses in exchange for a
sentence of 5-15 years’ imprisonment. Appellant completed a written guilty
plea colloquy detailing the terms of the parties’ agreement and the court
performed an on-the-record plea colloquy. After confirming Appellant’s plea
was knowing, intelligent, and voluntary, the court accepted the plea and
imposed the negotiated sentence of an aggregate 5-15 years’
imprisonment.2 Appellant did not file post-sentence motions or a direct
appeal.
On December 8, 2014, Appellant timely filed a pro se PCRA petition
alleging, inter alia, plea counsel was ineffective for coercing Appellant to
plead guilty and failing to file a requested direct appeal on Appellant’s
behalf. The court appointed counsel on February 6, 2015, who filed an
amended PCRA petition. The court held a PCRA hearing on July 20, 2015,
which was mostly limited to exploring whether Appellant had asked plea
counsel to file a direct appeal. Plea counsel testified at the hearing that
Appellant did not ask him to file a direct appeal on her behalf. Plea counsel
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2
The court sentenced Appellant to 5-15 years’ imprisonment for aggravated
assault, and imposed concurrent terms of 1-2 years’ imprisonment for
terroristic threats and REAP.
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said he would have filed an appeal for Appellant if she had asked him to do
so, even if counsel believed an appeal would lack merit. Plea counsel
admitted he received a letter from the Office of Disciplinary Counsel on
February 10, 2014 (two days after Appellant’s appeal period had expired),
containing a complaint from Appellant stating she wanted to withdraw her
guilty plea and proceed to trial. Plea counsel maintained he was unaware
Appellant wanted to withdraw her guilty plea until he received that letter.
The Office of Disciplinary Counsel asked plea counsel to communicate with
Appellant about the status of her case. Plea counsel complied.
Appellant testified at the hearing that plea counsel coerced her to
accept the negotiated guilty plea of 5-15 years’ imprisonment by stating
Appellant would receive 20-40 years’ imprisonment if she did not plead
guilty. Appellant claimed she mailed plea counsel a letter on January 13,
2014 (four days after she pled guilty) asking counsel to file a direct appeal
on her behalf. Appellant admitted she did not have a copy of the letter.
Appellant insisted her mother also called plea counsel multiple times asking
counsel to file an appeal on Appellant’s behalf. Appellant claimed she
contacted the Office of Disciplinary Counsel when plea counsel did not
respond to her January 13, 2014 letter.
On November 9, 2015, the court issued notice of its intent to dismiss
the petition without any further proceedings pursuant to Pa.R.Crim.P. 907.
Appellant responded on November 27, 2015. On December 7, 2015, the
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court denied PCRA relief. Appellant timely filed a notice of appeal on
January 6, 2016. On February 4, 2016, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Counsel filed, on February 24, 2016, a statement of intent to file a
“no-merit” brief pursuant to Pa.R.A.P. 1925(c)(4).
Preliminarily, appellate counsel has filed a Turner/Finley3 brief and
motion to withdraw as counsel. Before counsel can be permitted to
withdraw from representing a petitioner under the PCRA, Pennsylvania law
requires counsel to file a “no-merit” brief or letter pursuant to Turner and
Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
[C]ounsel must…submit a “no-merit” letter to the trial
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
motion to withdraw and advise petitioner of her right to proceed pro se or
with privately retained counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra at 947.
Instantly, appellate counsel filed a motion to withdraw as counsel and
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3
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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a Turner/Finley4 brief detailing the nature of counsel’s review and
explaining why Appellant’s issues lack merit. Counsel’s brief also
demonstrates she reviewed the certified record and found no meritorious
issues for appeal. Counsel notified Appellant of counsel’s request to
withdraw and advised Appellant regarding her rights. Thus, counsel
substantially complied with the Turner/Finley requirements. See Wrecks,
supra; Karanicolas, supra.
Appellant raises the following issues in the brief filed on appeal:5
WHETHER [PLEA] COUNSEL WAS INEFFECTIVE FOR
FAILING TO FILE AN APPEAL ON APPELLANT’S BEHALF?
WHETHER THE PCRA COURT ERRED BY DISMISSING
APPELLANT’S PCRA PETITION?
WHETHER APPELLANT’S GUILTY PLEA WAS UNLAWFULLY
INDUCED?
(Turner/Finley Brief at 5).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
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4
Counsel incorrectly designated her brief as one per Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which applies to
attorneys seeking to withdraw representation on direct appeal. We can
accept counsel’s filing in this case as a Turner/Finley brief. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004), appeal denied, 584 Pa. 691, 882 A.2d 477 (2005) (stating Superior
Court can accept Anders brief in lieu of Turner/Finley brief, where PCRA
counsel seeks to withdraw on appeal).
5
For purposes of disposition, we have reordered Appellant’s issues.
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and whether the court’s decision is free of legal error. Commonwealth v.
Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779,
959 A.2d 319 (2008). This Court grants great deference to findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-
conviction court’s credibility determination, it is binding on the appellate
court. Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999),
appeal denied, 563 Pa. 659, 759 A.2d 383 (2000).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Richard A.
Lewis, we conclude Appellant’s first and second issues merit no relief. The
PCRA court opinion comprehensively discusses and properly disposes of
those questions.6 (See Memorandum Opinion and Order, filed November 9,
2015, at 3-4) (finding: plea counsel’s testimony was credible that he
received no contact from Appellant following entry of her negotiated guilty
plea; plea counsel did not receive copy of letter Appellant had sent to Office
of Disciplinary counsel until after time to file direct appeal on Appellant’s
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6
In her second issue, Appellant complains the court should not have denied
PCRA relief given her testimony that she asked plea counsel to file a direct
appeal and her production of a copy of the letter she sent to the Office of
Disciplinary Counsel. We will not disturb the court’s credibility determination
in favor of plea counsel. See Knighten, supra.
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behalf had expired; Appellant failed to prove she asked counsel to file direct
appeal; thus, Appellant’s ineffectiveness claim fails). Therefore, we affirm
Appellant’s first and second issues on the basis of the PCRA court’s opinion.
In her third issue, Appellant argues plea counsel pressured her to
plead guilty by telling her she could face a sentence of 20-40 years’
imprisonment if she did not accept the plea bargain. Appellant asserts that
she asked the court, following the entry of her plea, why the court could not
impose a maximum 10-year sentence. Appellant claims her question
demonstrates she did not understand the nature of the parties’ agreement.
Appellant contends she was unaware of the consequences of pleading guilty.
Appellant insists plea counsel failed to investigate the history between
Appellant and Victim and ignored Appellant’s complaints that Victim had
abused Appellant in the past. Appellant insists plea counsel refused to argue
Appellant’s innocence. Appellant concludes plea counsel induced her to
enter an unlawful guilty plea, and this Court must reverse the order denying
PCRA relief and allow Appellant to withdraw her guilty plea. We disagree.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),
appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of
ineffective assistance of counsel, a petitioner must show, by a
preponderance of the evidence, ineffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-
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determining process that no reliable adjudication of guilt or innocence could
have taken place. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super.
2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner
must demonstrate: (1) the underlying claim has arguable merit; (2) counsel
lacked a reasonable strategic basis for his action or inaction; and (3) but for
the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. Id. at 880.
“The petitioner bears the burden of proving all three prongs of the test.” Id.
“Allegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.” Commonwealth v.
Moser, 921 A.2d 526, 531 (Pa.Super. 2007) (quoting Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa.Super. 2002)). “Where the defendant
enters [her] 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.” Moser, supra. Pennsylvania law
does not require the defendant to “be pleased with the outcome of [her]
decision to enter a plea of guilty[; a]ll that is required is that [her] decision
to plead guilty be knowingly, voluntarily and intelligently made.” Id. at 528-
29. A guilty plea will be deemed valid if the totality of the circumstances
surrounding the plea shows that the defendant had a full understanding of
the nature and consequences of her plea such that she knowingly and
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intelligently entered the plea of her own accord. Commonwealth v.
Fluharty, 632 A.2d 312 (Pa.Super. 1993). Further, a defendant who
decides to plead guilty is bound by the statements she makes while under
oath and may not later assert grounds for withdrawing her plea which
contradict statements she made during the plea colloquy. Commonwealth
v. Pollard, 832 A.2d 517 (Pa.Super. 2003).
Instantly, the Commonwealth initially charged Appellant with
attempted homicide, aggravated assault, terroristic threats, and REAP, in
connection with Appellant’s attack on her boyfriend in which she stabbed
him with a knife seven times. Plea counsel met with Appellant several
times, during which they discussed whether Appellant should enter a guilty
plea.7 After multiple negotiations with the Commonwealth, plea counsel was
able to secure what he deemed “a very good deal for [Appellant], given the
allegation of her offenses.” (N.T. PCRA Hearing, 7/20/15, at 7-8). Pursuant
to the terms of the agreement, the Commonwealth would withdraw the
attempted homicide charge, and Appellant would plead guilty to the
remaining offenses in exchange for an agreed-upon sentence of 5-15 years’
imprisonment.
On January 9, 2014, Appellant completed a written guilty plea colloquy
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7
Appellant testified at the PCRA hearing that plea counsel met with her
approximately three times. Plea counsel testified he met with Appellant at
least a half a dozen times, if not more.
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confirming the terms of the parties’ agreement. The court performed an on-
the-record plea colloquy that day, at the beginning of which the prosecutor
set forth the terms of the parties’ agreement. Appellant confirmed the
prosecutor’s recitation of those terms was consistent with Appellant’s
understanding of their agreement. Appellant agreed she had reviewed the
written plea colloquy with counsel, signed it, and affirmed she understood
everything that was within the document.8 Appellant acknowledged she
would forgo certain constitutional rights in exchange for her guilty plea and
her appellate rights would be limited as a result of her plea. The prosecutor
then explained the factual basis for Appellant’s guilty plea. Following
recitation of the facts, Appellant said she wanted to plead guilty to the
charges of aggravated assault, terroristic threats, and REAP. After
confirming Appellant’s plea was knowing, intelligent, and voluntary, the
court accepted the plea and imposed the negotiated sentence of an
aggregate 5-15 years’ imprisonment. At the conclusion of the hearing,
Appellant had the following exchange with the court:
THE COURT: [Appellant], anything you want to say? You
don’t have to. You have that right to do that.
[APPELLANT]: No, sir. I was just kind of wondering why it
had to be a 5 to 15 and not just a 5 to 10.
THE COURT: Well, you just pled guilty to the 5 to 15.
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8
Appellant’s written plea colloquy includes a statement that expressed
Appellant’s satisfaction with counsel’s representation.
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[APPELLANT]: I know. No, I don’t have anything else to
say.
(N.T. Guilty Plea/Sentencing Hearing, 1/9/14, at 6).
The record makes clear Appellant understood the terms of the parties’
negotiated plea agreement. We reject Appellant’s contention that her
comment to the court at the conclusion of her guilty plea hearing indicates
she did not understand the parties’ plea agreement. Appellant faced serious
charges carrying substantial sentences as a result of her actions. Plea
counsel’s statement that Appellant could face 20-40 years’ imprisonment if
she proceeded to trial was an accurate statement of law. See 18 Pa.C.S.A.
§ 1102(c) (explaining person who has been convicted of attempted murder
where serious bodily injury results may be sentenced to term of
imprisonment which shall be fixed by court at not more than 40 years).
Additionally, the record belies Appellant’s assertion that plea counsel
ignored her complaints of Victim’s past abuse. Plea counsel testified at the
PCRA hearing that he was aware of the abusive relationship between
Appellant and Victim and that the Commonwealth considered the abuse in
formulating the terms of the plea agreement. Significantly, Appellant does
not allege her actions on the night in question were in self-defense. Quite
simply, nothing in the record supports Appellant’s claim that plea counsel
coerced her to plead guilty. Rather, the record shows plea counsel believed
the negotiated plea agreement would best serve Appellant’s interests under
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the circumstances, and Appellant knowingly, intelligently, and voluntarily
heeded counsel’s advice. See Moser, supra; Pollard, supra; Fluharty,
supra. Thus, Appellant’s third issue merits no relief. Following our
independent examination of the record, we conclude the appeal is frivolous
and affirm; we grant counsel’s petition to withdraw.
Order affirmed; counsel’s petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2016
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Circulated 09/22/2016 02:11 PM
COMMONWEAL TH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY, PENNSYLVANIA
: NO. 662 CR 2013
v.
: SUPERIOR COURT DOCKET NO.
60 MDA 2016
CHARGES: Aggravated Assault;
ASIA M. HARPER Terroristic Threats;
Recklessly Endangering Another Person
TRIAL COURT OPINION
This appeal follows the denial ofrequest for relief under the Post Conviction Relief Act by
Final Order entered December 7, 2015.
We set forth the reasons for our denial in our Memorandum Opinion filed November 9, 2015,
a copy of which we attach hereto for ease of reference. For all of those reasons, the Final Order
of December 7, 2015 should be affirmed .
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