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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SAMUEL HENRY FUNK, JR.
Appellant No. 843 EDA 2016
Appeal from the PCRA Order February 24, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003668-2007
BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED DECEMBER 21, 2016
Samuel Henry Funk, Jr. appeals from the February 24, 2016 order
denying his PCRA petition. We affirm.
The relevant factual and procedural history is as follows. Following a
dispute on February 10, 2007, Appellant beat and stabbed Jaqueline
Goulding in her apartment in Falls Township, Bucks County. The victim –
who suffered injuries to her head and face, numerous defensive injuries, and
several puncture wounds – perished from the attack. Appellant removed
items from the home and left the scene in the victim’s vehicle. The next
day, an officer located the vehicle parked at the Edgley Inn. Appellant was
apprehended returning to the car shortly thereafter.
* Former Justice specially assigned to the Superior Court.
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Upon his arrest, Appellant relayed information regarding the
circumstances surrounding the victim’s death to Fall Township police officers.
As his initial interview with detectives commenced, Appellant offered further
inculpatory statements. The detectives informed Appellant of his Miranda1
rights. He then signed a form acknowledging his understanding of those
rights and indicating his desire to speak with the detectives without a lawyer
present. Appellant proceeded to offer the officers varying versions of the
events leading to the victim’s death.
Based on the foregoing, Appellant was charged with murder in the first
degree, possession of an instrument of crime, two counts of theft by
unlawful taking, and two counts of receiving stolen property. Following a
jury trial, Appellant was convicted on all counts. The court imposed a
sentence of life imprisonment without parole for murder in the first degree,
and an aggregate sentence of sixteen and one-half to thirty-three years
incarceration to run consecutively.2
Appellant filed a timely post-trial motion, alleging, inter alia, ineffective
assistance of counsel. A hearing was held on May 19, 2008, and, the motion
was subsequently denied by operation of law. The court thereafter
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1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
During the hearing on Appellant’s post-trial motion, the court vacated the
sentence on one count of receiving stolen property, and resentenced him to
no further penalty.
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permitted Appellant to file an appeal from his judgment of sentence nunc pro
tunc. Appellant challenged certain evidentiary rulings by the trial court and,
again, contended he received ineffective assistance of counsel. This Court
affirmed Appellant’s judgment of sentence. Commonwealth v. Funk, 29
A.3d 28 (Pa.Super. 2011) (en banc). We also found that Appellant’s
ineffectiveness claims could not be considered on direct review, and
dismissed those claims without prejudice to be raised in a timely PCRA
petition. Id. at 34-35. On March 13, 2012, the Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Funk, 40
A.3d 1234 (Pa. 2012).
Appellant filed a timely pro se PCRA petition. The court appointed
counsel, and counsel filed a motion to amend Appellant’s PCRA petition
asserting he was denied effective assistance of counsel when trial counsel
prevented him from testifying at trial and by failing to move to suppress the
post-arrest statements made by Appellant. A hearing was held on the
petition on May 29, 2014, in which the Commonwealth incorporated the
testimony presented during Appellant’s post-sentence hearing on May 19,
2008. By agreement with the court, Appellant filed a second amended PCRA
petition to clarify the arguments raised during the May 29, 2014 hearing,
and the court entertained memoranda from the parties. The court denied
Appellant’s PCRA petition, and this timely appeal followed. Appellant
complied with the court’s order to file a Rule 1925(b) concise statement of
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matters complained of on appeal. The court then authored its Rule 1925(a)
opinion. This matter is now ready for our review.
Appellant presents two questions for our consideration:
1. Did trial counsel provide ineffective assistance of counsel
where trial counsel denied [Appellant] his right to testify and
failed to prepare him to testify because she misapprehended
the nature of the defense?
2. Did [Appellant] receive ineffective assistance of counsel when
counsel failed to move to suppress his statements following
his arrest?
Appellant’s brief at 3.
Our standard of review regarding an order denying a PCRA petition is
whether the determination of the PCRA court is supported by the evidence of
record and is free from legal error. Commonwealth v. Wah, 42 A.3d 335,
335 (Pa.Super. 2012). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. Id.
Moreover, “a PCRA court’s credibility findings are to be accorded great
deference, and where supported by the record, such determinations are
binding on the reviewing court.” Commonwealth v. Williams, 141 A.3d
440, 452 (Pa. 2016) (citation omitted). We review the PCRA court’s legal
conclusions de novo. Id.
As each of Appellant’s claimed errors allege he received ineffective
assistance of counsel, we conduct our analysis in light of the following
standards:
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Success on a claim of ineffective assistance of counsel requires
the petitioner to rebut the presumption that counsel rendered
effective assistance and prove, by a preponderance of the
evidence, that (1) the claim has arguable merit, (2) counsel’s
action or inaction was not based upon a reasonable trial strategy
and (3) petitioner suffered prejudice because of counsel’s act or
omission.
Id. at 454. Furthermore, “the failure to satisfy any one of the prongs
requires rejection of the petitioner’s claims.” Id.
Appellant first asserts that trial counsel interfered with his right to
testify by convincing him not to testify prior to trial, and ignoring an attempt
to invoke that right during trial.3 In order to prevail on a claim alleging
counsel ineffectiveness for counsel’s interference with a defendant’s right to
testify, the defendant must prove either that “counsel interfered with his
right to testify, or that counsel gave specific advice so unreasonable as to
vitiate a knowing and intelligent decision to testify on his own behalf.”
Commonwealth v. Miller, 987 A.3d 638, 660 (Pa. 2009) (citation omitted).
Appellant claims that counsel advised him prior to trial not to take the
stand since his testimony would “necessarily defeat his ‘self-defense’ claim.”
Appellant’s brief at 30. Appellant maintains that his testimony supported the
argument that the victim’s death was accidental, and that such testimony
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3
Appellant did not present any argument in support of his contention that
counsel failed to properly prepare him to testify. Hence, we find this aspect
of his appeal waived. Commonwealth v. Bullock, 948 A.2d 818, 823
(Pa.Super. 2008) (finding claim raised in Rule 1925(b) statement but not
developed in appellate brief abandoned by appellant).
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would support a self-defense claim. Id. at 31. Hence, he concludes that
counsel’s advice was so unreasonable that it directly interfered with his right
to testify. In addition, Appellant contends that counsel ignored his attempt
to invoke his right to testify during trial. Appellant suggests that he penned
a note during trial which stated, “I still have the right to take the stand if I
wish to.” Appellant’s brief at 29. Appellant argues that counsel interfered
with his right to testify by ignoring the note.
The PCRA court credited testimony by counsel and co-counsel, and did
not credit Appellant’s contrary assertions. The court noted that counsel
advised Appellant regarding both self-defense and heat-of-passion defenses.
She testified that she had prepared opening statements arguing both
theories and did not settle on presenting her heat-of-passion defense until
Appellant agreed to that theory. Counsel further advised Appellant that his
self-defense testimony would be inconsistent with a heat-of-passion defense,
and thus, warned him against testifying. Indeed, Appellant concedes he
agreed not to testify prior to trial. Appellant’s brief at 29. The trial court
also credited counsel’s testimony that, although she did not recall
Appellant’s handwritten note, if he had insisted on testifying, she would have
called him to the stand. Based on this evidence, the court found Appellant’s
claim was without merit as the evidence supported the conclusion that
Appellant agreed to pursue a heat-of-passion defense and that he would not
testify.
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We must accept the PCRA court’s credibility determinations when they
are supported by the record. Counsel advised Appellant as to the dangers of
his self-defense theory given the nature of the evidence against him. In
addition, counsel reported that Appellant performed poorly during
preparation for testifying at trial, providing inconsistent statements and
failing to project sympathy for the victim. Hence, counsel concluded that a
heat-of-passion defense was the best trial strategy. Prior to trial, Appellant
agreed to pursue a heat-of-passion defense and declined to testify.
Furthermore, Appellant’s note to counsel during trial does not invoke
his right to testify. Rather, his statement “I still have a right to take the
stand if I wish to” suggests either that he wanted to confirm he had a right
to testify at some point in the future, or that he was aware he had a right to
testify, but had not yet decided to do so. In either case, Appellant’s note
does not reflect a clear assertion of his right to testify. Thus, counsel did not
interfere with Appellant’s right to testify, nor did she provide unreasonable
advice in regards to his decision not to testify. Miller, supra. Since
Appellant has not presented an issue of arguable merit, nor has he shown
that counsel’s course of conduct was without a reasonable trial strategy, his
challenge fails.
Appellant next assails counsel’s effectiveness in failing to move to
suppress inculpatory statements made to police following his arrest. He
alleges that he twice requested an attorney, once prior to the police
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providing him with his Miranda rights, and once afterwards. Nevertheless,
Appellant offered incriminating statements to the police, and responded to
questions regarding the victim’s murder. Additionally, Appellant contends
that, although he signed a form waiving his right to an attorney, that he did
not have the opportunity to fully review or understand the document.
The PCRA court credited counsel and co-counsel’s testimony in this
regard and found Appellant’s testimony to the contrary wholly incredible.
Counsel and co-counsel testified that they were unaware of Appellant’s
purported request for an attorney until the hearing on his post-sentence
motion in May, 2008. Nevertheless, both lawyers confirmed that they would
have raised the issue had Appellant informed them of his attempts to invoke
his right to counsel. The court also reviewed the testimony of the detectives
who interrogated Appellant and noted that each stated that Appellant never
requested an attorney. It observed that the Miranda card, wherein
Appellant waived his right to an attorney, corroborated their account.
Finally, we observe the following. Appellant filed a pre-trial omnibus
motion which included a motion to suppress the statements he made to the
detectives. In that motion, Appellant alleged that his waiver of his Miranda
rights was not knowing, intelligent, and voluntary due to injuries suffered at
that time, and his level of intoxication. Pretrial Omnibus Motion, 8/13/07, at
¶¶ 19-30. That motion did not assert his alleged request for counsel as a
basis for suppression. Appellant then filed two amended omnibus pretrial
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motions on October 5, 2007, and December 14, 2007. Again, Appellant
sought suppression of his statements to police without raising a violation of
his right to counsel. Appellant’s counsel and co-counsel credibly testified
that if they had been aware of any issue pertaining to Appellant’s purported
invocation of his right to counsel, they would have included it in their
motions to suppress. Nevertheless, no such claim was made. The record
thus supports the PCRA court’s factual finding that Appellant did not ask for
a lawyer. Hence, we find this issue without arguable merit and Appellant is
not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2016
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