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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTHONY J. LEE
Appellant No. 881 EDA 2016
Appeal from the PCRA Order March 7, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001936-2011
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED MAY 23, 2017
Anthony J. Lee appeals, pro se, from the March 7, 2016 order denying
his PCRA petition without a hearing. We affirm.
The facts underlying Appellant’s conviction are as follows. On
February 22, 2011, Appellant entered a Subway restaurant in Allentown,
Lehigh County. Two employees were working that evening. Appellant
grabbed one of the employees, placed a gun against her head, threatened
both women, and demanded money. The employees complied. Appellant
led the two women to the back of the restaurant where he secured their
ankles with zip ties before leaving with the money and other items taken
from the store. An off-duty detective observed Appellant exiting the
restaurant. A pursuit ensued, and Appellant evaded apprehension for a
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short period after abandoning his car. The police recovered items stolen
from the store in the deserted vehicle. Appellant’s latent fingerprints were
also found within.
Subsequently, Appellant was charged with robbery, two counts of false
imprisonment, and firearms not to be carried without a license. He was
convicted of all charges following a jury trial, and the court imposed a
sentence of nineteen-and-one-half to thirty-nine years incarceration.
Appellant filed a direct appeal with this Court challenging the court’s failure
to suppress certain in-court and out-of-court identifications, the legality of
his sentence, and the discretionary aspects of his sentence. On December
17, 2013, we vacated Appellant’s sentence insofar as the trial court
improperly imposed conditions upon his parole, but affirmed his judgment of
sentence in all other respects. Commonwealth v. Lee, 93 A.3d 511
(Pa.Super. 2013) (unpublished memorandum). The Supreme Court denied
Appellant’s petition for allowance of appeal on May 15, 2014.
Commonwealth v. Lee, 625 Pa. 658 (Pa. 2014).
Appellant filed a timely pro se PCRA petition on August 13, 2015. The
trial court appointed counsel, and counsel subsequently filed a motion to
withdraw as counsel and accompanying Turner/Finley1 letter on October
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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26, 2015. On November 24, 2015, after a hearing on the motion to
withdraw, the trial court granted PCRA counsel’s motion.2 Thereafter, on
January 26, 2016, the PCRA court filed a Rule 907 notice of intent to
dismiss. Appellant did not contest the court’s Rule 907 notice. Instead, on
March 4, 2016, Appellant filed a pro se notice of appeal to this court. On
March 7, 2016, the PCRA court filed an order denying Appellant’s PCRA
petition.3 Appellant complied with the court’s order to file a Rule 1925(b)
concise statement of errors complained of on appeal, and the court authored
its Rule 1925(a) opinion. This matter is now ready for our review.
Appellant raises one issue for our consideration:
A. As nothing existed in the record to either confirm nor
contradict Appellant’s claim of ineffective assistance of
counsel in the context of counsel’s failure to disclose an
additional plea made by the Commonwealth, the trial court
erred in dismissing Appellant’s PCRA petition without a
hearing; denying Appellant the opportunity to examine
defense counsel under oath and establish a record in regards
to this claim.
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2
The notes of testimony for the November 24, 2015 hearing regarding PCRA
counsel’s motion to withdraw were not transcribed.
3
Pursuant to Pa.R.A.P. § 905(5), “A notice of appeal filed after the
announcement of a determination but before entry of an appealable order
shall be treated as filed after such entry an on the day thereof.” See also
Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.3 (Pa.Super. 2012)
(stating “Although initially premature when filed, we need not quash
[appellant’s] appeal.”). Although Appellant’s notice of appeal was filed
before the PCRA court entered its final order, we treat it as if it were timely
filed on March 7, 2016, when the court docketed the order denying the PCRA
petition.
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Appellant’s brief at 4.
When reviewing a court’s denial of a PCRA petition, we consider the
record “in the light most favorable to the prevailing party at the PCRA level.”
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).
Our review is limited to the evidence of record and the factual findings of the
PCRA court. Id. This Court will afford “great deference to the factual
findings of the PCRA court and will not disturb those finding unless they have
no support in the record.” Id. Thus, when a PCRA court’s ruling is free of
legal error and is supported by the evidence, we will not disturb its decision.”
Id.
Appellant’s PCRA petition alleges that trial counsel rendered ineffective
assistance of counsel by failing to apprise him of a global plea offer prior to
his trial. In analyzing a claim of ineffective assistance of counsel, “we begin
with the presumption counsel is effective.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citation omitted). In order to succeed on
such a claim, an appellant must establish, by a preponderance of the
evidence:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions of failure to act; and (3)
appellant suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.
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Id. at 296-297. Finally, we are “not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; if a claim fails under
any necessary element . . . the court may proceed to that element first.”
Id. at 297 (citation omitted).
Appellant’s claimed error on appeal assails the PCRA court’s denial of
his PCRA petition without a hearing. We note that the decision to deny a
PCRA petition is discretionary, and the PCRA court may do so where it is
satisfied that “there are no genuine issues concerning any material fact, the
defendant is not entitled to post-conviction collateral relief, and no legitimate
purpose would be served by further proceedings.” Id. (citation omitted).
Moreover, “[t]o obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he raised a genuine
issue of fact which, if resolved in his favor, would have entitled him to relief,
or that the court otherwise abused its discretion in denying a hearing.” Id.
(citation omitted).
Additionally, we observe, “hearings are not discovery expeditions, but
are conducted when necessary to offer the petitioner an opportunity to prove
his explicit assertion of ineffectiveness raising a colorable claim about which
there remains an issue of material fact.” Id. at 299 (citation omitted). A
petitioner cannot rely on mere conclusory allegations, but must make some
showing as to how counsel would response to the allegations in order to be
entitled to relief. Id.; Pa.R.Crim.P. 902(A)(12)(b) (PCRA petition must
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contain facts supporting grounds for relief; if facts do not appear in record,
petitioner must identify “affidavits, documents, and other evidence showing
such facts.”).
Appellant contends that the court erred in refusing to grant him a
hearing on his ineffectiveness-of-counsel claim because there is “nothing in
the record to either confirm nor [sic] contradict” his allegation that trial
counsel did not communicate to him a final plea offer which was supposedly
made prior to trial. Appellant’s brief at 10. He avers trial counsel did not
apprise him of this last-minute offer until after trial. Appellant also
challenges the findings contained in PRCA counsel’s Turner/Finley letter,
including his conclusion that Appellant’s claim was meritless. He reiterates
that there is nothing of record to support this conclusion. Hence, Appellant
maintains that, since it is not possible to determine from the record whether
his claim is frivolous and without support, he is entitled to a remand for an
evidentiary hearing. We disagree.
Instantly, Appellant filed a PCRA petition alleging that trial court failed
to communicate a plea offer to him. He claimed that “there is a very strong
likelihood that [he] would have taken the plea offer rather than proceeding
to trial in this matter.” Id. In addition to conceding that there was no
support in the record for this allegation, Appellant’s initial pro se PCRA
petition did not identify “affidavits, documents, or other evidence” tending to
support his claim as required by Pa.R.Crim.P. 902(A)(12)(b). Indeed,
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Appellant did not explain to the court the contents of the supposed plea
offer. Upon being appointed to Appellant’s case, PCRA counsel undertook an
investigation, on Appellant’s behalf, to determine whether support could be
garnered for his claim.
In his no-merit letter, PCRA counsel described, in detail, the extent of
his investigation into Appellant’s contention as follows. PCRA counsel
contacted trial counsel and reviewed Appellant’s case file, including
numerous correspondences between Appellant and trial counsel.
Turner/Finley No Merit Letter, 10/26/15, at unnumbered 3-4. This review
revealed that Appellant requested that trial counsel seek a plea deal, that
the Commonwealth proposed multiple plea offers, and that Appellant
rejected all of those offers. Id. Moreover, PCRA counsel indicated that trial
counsel did not recollect communicating with Appellant after his trial
regarding a last-minute plea offer made just before trial, and that his file did
not reflect that such a conversation had occurred. Id. at 4. Hence, PCRA
counsel determined that Appellant could not proffer evidence establishing
trial counsel’s ineffectiveness, and indicated his intent to withdraw.
On November 24, 2015, the PCRA court held a hearing on PCRA
counsel’s motion to withdraw. The PCRA court recounted its findings in its
Rule 1925(a) opinion, observing:
[Appellant] alleges he found out about this offer from [trial
counsel] after he was sentenced, but does not indicate what this
offer was. [Trial counsel] advised [PCRA counsel] that she did
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not recall any such conversation nor did she make any file notes
regarding such a conversation. Considering the many offers
[trial counsel] relayed to [Appellant] prior to trial – which [he]
ultimately rejected – this court finds it incredible that [Appellant]
had any conversation with [trial counsel] regarding a plea offer
after sentencing. [PCRA counsel] fully investigated this claim,
and found there was no merit.
PCRA Court Opinion, 5/23/16, at 2-3 (emphasis in original). The PCRA court
concluded that Appellant’s issue lacked arguable merit, and therefore, he
was not entitled to a hearing on his petition. In so finding, the PCRA court
credited and adopted the results of PCRA counsel’s evidentiary investigation,
and found Appellant’s bald allegations to the contrary to be incredible.
Upon review of the certified record, we find the PCRA court did not
abuse its discretion in denying Appellant’s PCRA petition without a hearing.
As noted above, hearings are not an opportunity for discovery. Rather, in
order to overcome trial counsel’s presumption of effectiveness, Appellant
was required, pursuant to Pa.R.Crim.P. 902, to offer some evidence in
support of the averments contained within his petition. The PCRA court
found a hearing was unnecessary since Appellant relied upon an
unsupported assertion of ineffectiveness belied by trial counsel’s file, and
they did not support a colorable claim about which there remains an issue of
material fact. Cousar, supra. PCRA counsel undertook a thorough
investigation on Appellant’s behalf to determine whether such evidence
existed, and concluded that it did not. The PCRA court credited PCRA
counsel’s findings, and Appellant offered no evidence to refute that
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determination. Therefore, Appellant did not present a claim of arguable
merit. Since Appellant has failed to plead facts sufficient to establish that he
is entitled to an evidentiary hearing, this claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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