J-S16022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWIN ROY SHOWALTER :
:
Appellant : No. 1457 MDA 2018
Appeal from the PCRA Order Entered July 31, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0003661-2015
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 09, 2019
Edwin Roy Showalter (Appellant) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
A prior panel of this Court summarized the relevant facts and procedural
history of this case as follows:
On April 19, 2015, [Appellant] entered Harbor Freight in York
County to return an item he had purchased. A dispute arose as
to the amount of the refund. Stephany Nicholson, a cashier at the
store, testified that [Appellant] then left the store, but he returned
shortly after that dispute to make a purchase. This time, however,
[Appellant] was shouting, and Nicholson noticed he was agitated
and invading her “personal space.” N.T. Jury Trial, 7/12/16, at
93. [Appellant] left the store again, and returned a third time,
just before closing time. Nicholson testified that [Appellant] was
“trying to come behind the registers with his fists balled and made
[the employees] feel threatened[.]” Id. at 83-84. Nicholson
testified [Appellant] was acting combative, and this time he lifted
his shirt and exposed a handgun, which was tucked inside his
waistband. Another store clerk, Elizabeth Spells, testified that at
the time [Appellant] lifted up his shirt he said something to the
J-S16022-19
effect of, “[T]this is what I can do to you.” Id. at 94. [Appellant]
then left the store.
* * *
[Appellant] was charged with two counts each of simple assault
and harassment, and one count of disorderly conduct. At a
pretrial conference, represented by [an] Assistant Public Defender
. . ., [Appellant] indicated he wished to represent himself. The
court was not satisfied that [Appellant] was willing to waive his
right to counsel. Thereafter, at [Appellant]’s request, the public
defender filed a motion to withdraw. On February 2, 2016, the
court held a hearing on the motion to withdraw and conducted a
full waiver colloquy. See Pa.R.Crim.P. 121. The court permitted
the public defender to withdraw, allowed [Appellant] to represent
himself, and appointed [the public defender] as standby counsel.
Following trial, . . . [t]he jury convicted [Appellant] of two
counts of simple assault, and the court found him guilty of the
summary offense of disorderly conduct. [Appellate Counsel]
entered his appearance. The court sentenced [Appellant] to an
aggregate term of 9 to 23 months [of] imprisonment, followed by
12 months [of] probation. Post-sentence motions were filed and
denied.
Commonwealth v. Showalter, 1805 MDA 2016 at 1-4 (Pa. Super. Aug. 29,
2017) (unpublished memorandum; footnotes omitted).
The PCRA court set forth the remaining procedural history:
On October 27, 2016, [Appellant], through counsel, filed a
notice of appeal to the Superior Court. On August 27, 2017, the
Superior Court affirmed [Appellant]’s judgment of sentence at
1805 MDA 2016. On October 2, 2017, [Appellant] filed a petition
for allowance of appeal to the Pennsylvania Supreme Court. On
March 29, 2018, the Pennsylvania Supreme Court denied
[Appellant]’s appeal.
On May 21, 2018, [Appellant], through counsel, . . . filed a
[PCRA petition]. On June 20, 2018, [Appellant] filed an amended
petition for [PCRA] relief. On July 31, 2018, [the PCRA court] held
a hearing on [Appellant]’s petition and issued an order denying
post-conviction relief to [Appellant].
-2-
J-S16022-19
On August 29, 2018, [Appellant] filed a notice of appeal to the
Superior Court. On th[e] same date, [the PCRA court] issued an
order directing the [Appellant] to file a Concise Statement of
Matters Complained of on Appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b). On September 19, 2018,
[Appellant] filed the 1925(b) Statement.
PCRA Court Opinion, 11/7/18, at 2-3.
On appeal, Appellant presents a single issue for our review:
A. WHETHER THE TRIAL COURT ERRED IN DENYING POST-
CONVICTION RELIEF BASED UPON PREVIOUS APPELLATE
COUNSEL FAILING TO ADEQUATELY LITIGATE VIOLATIONS OF
THE SIXTH AMENDEMENT TO THE UNITED STATES
CONSTITUTION, ARTICLE I, SECTION 9 OF THE PENNSYLVANIA
CONSTITUTION, AND PENNSYLVANIA RULE OF CRIMINAL
PROCEDURE 121 FOR FAILING TO ARGUE THAT THE TRIAL
COURT, OR COUNSEL, DID NOT ESTABLISH ON THE RECORD
THAT APPELLANT UNDERSTOOD PROVISIONS OF PENNSYLVANIA
RULE OF CRIMINAL PROCEDURE 121 AND THEREFORE,
KNOWLINGLY, INTELLEGENTLY AND VOLUNTARILY WAIVE[D] HIS
RIGHT TO COUNSEL?
Appellant’s Brief at 7.
We review the denial of PCRA relief by “examining whether the PCRA
court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our 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 party who prevailed in the PCRA court proceeding.” Id.
We begin by recognizing:
To be eligible for relief under the PCRA, [a pcra petitioner] must
prove by a preponderance of the evidence that his conviction or
sentence resulted from one or more of the enumerated
-3-
J-S16022-19
circumstances found in Section 9543(a)(2) (establishing the bases
for relief). These circumstances include . . . ineffective assistance
of counsel that “so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S. § 9543(a)(2)[(ii)]; Commonwealth v.
Blakeney, 108 A.3d 739, 749 ([Pa.] 2014). [A pcra petitioner]
also must demonstrate that the issues included in his PCRA
petition have not been previously litigated or waived. 42 Pa.C.S.
§§ 9543(a)(3), 9544(a)-(b) (defining circumstances that lead to
waiver and a finding that a claim is previously litigated).
Commonwealth v. Crispell, 193 A.3d 919, 927–28 (Pa. 2018).
Appellant’s sole issue on appeal challenges the effectiveness of
Appellate Counsel. In deciding ineffective assistance of counsel claims, we
begin with the presumption that counsel rendered effective assistance.
Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome
that presumption, the petitioner must establish: “(1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s action or failure
to act; and (3) the petitioner 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.” Id. (citation omitted).
To demonstrate prejudice in an ineffective assistance of counsel claim, “the
petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the
petitioner fails to prove any of these prongs, the claim is subject to dismissal.
Bomar, 104 A.3d at 1188.
-4-
J-S16022-19
Appellant argues that Appellate Counsel was ineffective for failing to
properly litigate, on appeal, his claim that Appellant did not knowingly,
voluntarily, and intelligently waive his right to counsel at trial. Appellant
asserts that Appellate Counsel failed to argue “that Appellant gave no
responses to the pertinent inquiries of the trial court from which a conclusion
could be drawn that he understood any of the [t]rial [c]ourt’s questions and
any of the information that must be elicited from him before [trial] counsel
could be given permission to withdraw.” Appellant’s Brief at 18. Appellant
contends that Appellate Counsel improperly limited his argument on direct
appeal to “the context of the Appellant not being properly advised of the
sentencing issues in the case.” Id. at 19. Appellant further asserts that the
record demonstrates that he “did not understand” any of the necessary criteria
for waiving his right to counsel under Pennsylvania Rule of Criminal Procedure
121(A)(2). Id. at 18. Appellant maintains that “it was readily apparent that
Appellant was not mentally capable of defending himself at trial.” Id.
Upon review, we conclude that this issue does not merit relief. Appellant
purports to challenge Appellate Counsel’s ineffectiveness with respect to
Appellant’s claim on direct appeal regarding whether he properly waived his
right to counsel before the trial court. Appellant’s arguments, however,
amount to nothing more than an attempt to re-litigate the waiver of counsel
claim he previously raised before this Court.
-5-
J-S16022-19
The Superior Court rejected Appellant’s waiver of counsel claim on direct
appeal, stating:
Pennsylvania Rule of Criminal Procedure 121 provides the
framework and minimum guidelines for the waiver colloquy to
ensure that the defendant’s waiver is knowing, voluntary and
intelligent. See Pa.R.Crim.P. 121(A)(1), (2); see also
Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
Pursuant to Rule 121, the court must ensure:
a) that the defendant understands that he or she has the
right to be represented by counsel, and the right to have
free counsel appointed if the defendant is indigent;
b) that the defendant understands the nature of the charges
against the defendant and the elements of each of those
charges;
c) that the defendant is aware of the permissible range of
sentences and/or fines for the offenses charged;
d) that the defendant understands that if he or she waives
the right to counsel, the defendant will still be bound by all
the normal rules of procedure that counsel would be familiar
with these rules;
e) that the defendant understands that there are possible
defenses to these charges that counsel might be aware of,
and if those defenses are not raised at trial, they may be
lost permanently, and
f) that the defendant understands that, in addition to
defenses, the defendant has many rights that, if not timely
asserted, may be lost permanently; and that if errors occur
and are not timely objected to, or otherwise timely raised
by the defendant, these errors may be lost permanently.
Pa.R.Crim.P. 121(A)(2).
* * *
The court advised [Appellant] that he could hire private
counsel, be appointed counsel if he were indigent, or represent
-6-
J-S16022-19
himself. [N.T., 2/23/16, at 5]. The court advised [Appellant] of
the fact that if he chose to represent himself he would be bound
by the same rules of law as an attorney. Id. at 12. The court
also determined that [Appellant] was not under the influence of
anything that would interfere with his ability to understand the
waiver proceeding, and that [Appellant] was not forced,
threatened or promised anything in return for giving up his right
to an attorney. Id. at 12, 17-18. [Appellant] ultimately agreed
to have the assistance of the public defender as standby counsel,
and he indicated that he understood that standby counsel would
only give advice if he asked for it. Id. at 10.
Additionally, we find that [Appellant]’s statements during the
colloquy, that the charges were “false charges,” id. at 4, or that
he did not “understand these charges at all[,]” id. at 10, does not
establish that he did not understand the nature of the charges
against him. . . . [A]t the pretrial conference, the court had read
[Appellant] the charges against him, and explained to him that he
could request a Bill of Particulars if he needed additional
information about the nature of the charges. N.T., Pretrial
Conference, 12/17/15, at 4-5. The trial court did acknowledge
that it did not state the permissible range of sentences and/or
fines for the offenses charged verbatim, see Pa.R.Crim.P.
121(A)(2)(c), but the court ensured that [Appellant] had access
to the guidelines ranges and the maximum sentences applicable
to the offenses charged. N.T. Post-Sentence Hearing, 10/24/16,
at 5; N.T. Hearing on Motion to Withdraw/Waiver Colloquy,
2/23/16, at 18.
After our review, we find the court’s conclusion that [Appellant]
knowingly, intelligently and voluntarily waived his right to counsel
is supported in the record. See Commonwealth v. Starr, 664
A.2d 1326 (Pa. 1995); see also Commonwealth v. El, 977 A.2d
1158 (Pa. 2009) (where defendant knowingly, voluntarily, and
intelligently seeks to waive Sixth Amendment right to counsel,
trial court must allow individual to proceed pro se). We agree with
the trial court’s assessment that [Appellant] understood the
implications of his decision to represent himself.
Showalter, 1805 MDA 2016 at 5-9 (footnote omitted).
Our review of the record, law and the previous decision of this Court
demonstrates that Appellant previously litigated his issue relating to waiver of
-7-
J-S16022-19
his right to counsel. Not only did this Court conclude that Appellant knowingly,
voluntarily, and intelligently waived his right to counsel, but it did so while
taking into consideration all of the criteria under Rule 121(A)(2) that Appellant
now claims on collateral review that this Court and the trial court did not
consider. Even if Appellant were correct that Appellate Counsel improperly
limited his arguments relating to Appellant’s waiver of counsel claim, Appellant
cannot establish that he was prejudiced by Appellate Counsel’s tactics, as the
Superior Court’s decision on direct appeal reflects that it reviewed all of the
necessary criteria under Rule 121(A)(2), and determined that Appellant
knowingly, voluntarily, and intelligently waived his right to counsel. See id.
Because Appellant previously litigated the issue he raises before this Court,
we conclude that the PCRA court did not abuse its discretion in dismissing his
PCRA petition. See 42 Pa.C.S.A. §§ 9543(a)(3), 9544(a)(2).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/09/2019
-8-