J-S20037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ARLINE LOUISE PETERMAN :
:
Appellant : No. 1580 WDA 2018
Appeal from the PCRA Order Entered October 3, 2018
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0001191-2016
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED MAY 10, 2019
Appellant, Arline Louise Peterman, appeals from the order entered in
the Indiana County Court of Common Pleas, which denied her first petition
brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A
§§ 9541-9546. We affirm.
In its opinion, the PCRA court correctly set forth the relevant facts and
most of the procedural history of this case. Therefore, we have no reason to
restate them. We add the following procedural history. The PCRA court
denied PCRA relief on October 3, 2018. On November 2, 2018, Appellant filed
a timely notice of appeal. On November 5, 2018, the PCRA 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 19,
J-S20037-19
2018.1
Appellant raises the following issue for our review:
WHETHER THE [PCRA] COURT ERRED WHEN IT MADE A
FINDING THAT [PLEA] COUNSEL WAS EFFECTIVE…, EVEN
THOUGH THE EVIDENCE SHOWS THAT COUNSEL INDUCED
[APPELLANT] TO PLEAD GUILTY, SHE WANTED TO HAVE A
JURY TRIAL AND IS INNOCENT OF THE CHARGE OF
STALKING?
(Appellant’s Brief at 5).
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. Conway,
14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
(2011). 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, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012). Traditionally, credibility issues are resolved by the trier of fact who
had the opportunity to observe the witnesses’ demeanor. Commonwealth
v. Abu-Jamal, 553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied, 528
____________________________________________
1 On June 2, 2017, Appellant entered open guilty pleas at Docket No. 1191-
2016 for stalking and at Docket No. 114-2017 for harassment. Appellant’s
PCRA petition and appellate issue relate only to the stalking conviction at No.
1191-2016. Thus, this case does not present a jurisdictional issue pursuant
to Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018).
-2-
J-S20037-19
U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports
the PCRA court’s credibility resolutions, they are binding on this Court. Id.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the reasoned opinion of the Honorable Thomas M. Bianco,
we conclude Appellant’s issue merits no relief. The PCRA court opinion
comprehensively discusses and properly disposes of the question presented.
(See PCRA Court Opinion, filed October 3, 2018, at 6-10) (finding: Appellant
completed written plea colloquy; during oral plea colloquy, Appellant
acknowledged she had reviewed and executed written plea colloquy and had
opportunity to ask plea counsel questions about pleading guilty; Appellant also
indicated plea counsel explained consequences of pleading guilty and
alternatives to pleading guilty; at PCRA hearing, plea counsel credibly testified
that although Appellant was originally reluctant to enter guilty plea, Appellant
chose to enter plea after she discussed rights and possible trial outcomes with
counsel; plea counsel said Appellant did not request to withdraw guilty plea;
Appellant also did not indicate to court she wished to withdraw guilty plea
prior to PCRA petition; Appellant entered negotiated plea with implications at
two separate docket numbers, which indicates Appellant understood effect of
guilty plea; Appellant knowingly, intelligently, and voluntarily entered guilty
plea). The record supports the reasoning of the PCRA court. Accordingly, we
affirm based on the PCRA court opinion.
Order affirmed.
-3-
J-S20037-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: May 10, 2019
-4-
Circulated 04/23/2019 04:21 PM
IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY, PENNSYLVANIA
COMMONWEALTH OF
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Bianco, J.
This matter comes before the Court on the Petition for Post Conviction
Collateral Relief (hereinafter the "PCRA Petition") filed on behalf of Petitioner,
Arline Peterman. For the reasons stated herein, the PCRA Petition is DENIED.
FACTS
Petitioner was charged with a violation of 18 Pa.CS.A. §2709.1 (a)(2),
Stalking, graded as a misdemeanor of the first degree, and 1 8 Pa.CS.A.
§2 709(a)(7), Harassment, graded as a misdemeanor of the third degree. At all
times relevant to the allegations contained in the PCRA Petition, Petitioner was
represented by Robert S. Bell, Esquire.
43 S
On June 2, 2017, Petitioner entered a plea of guilty to Count l, Stalking.
The Commonwealth of Pennsylvania moved for the Nol Pros of Count 2,
Harassment. Petitioner also entered a guilty plea in the case docketed at 114
Crim. 2017. In that matter, Petitioner was charged with 18 Pa.CS.A. §2709.1,
Stalking, graded as a felony of the third degree, and 1 8 Pa.CS.A. §2709,
Harassment, graded a misdemeanor of the third degree. Petitioner pied guilty
to Count 2, Harassment, and the Commonwealth moved for the Nol Pros of
Count 1, Stalking. The Court acknowledges that the pending PCRA Petition
does not claim error at the case docketed at 114 Crim. 2017, however, the
Court believes that entry of the pleas as a "package deal" is relevant to the
pending claims.
At the time of the entry of the guilty plea, the Court engaged Petitioner in
an oral guilty plea colloquy. During the oral colloquy, the Court reviewed the
written colloquy entitled "Colloquy for Plea of Guilty / Noto Contendere"
previously completed and executed by Petitioner. This form is a one page
document. It lists the offense to which Petitioner pied guilty, it has brief
statement of Petitioner's rights (including a statement that Petitioner has "the
2
right to a jury trial"), and Petitioner's signature appears at the bottom of the
document. The written colloquy is dated June 2, 2017. At the PCRA hearing,
the written colloquy was introduced as Commonwealth's Exhibit A, and the
transcript of the Plea Hearing was introduced as Commonwealth's Exhibit B.
Petitioner was sentenced by the Court on August 11, 2017. Petitioner
was ordered to pay the cost of prosecution of$ 321.00 and pay a fine in the
amount of $500.00. Petitioner was placed on Intermediate Punishment for a
period of three (3) years. It was a special condition of Intermediate Punishment
that Petitioner undergo incarceration at the Indiana County Jail for 72 hours,
followed by 3 months of restrictive intermediate punishment (house arrest with
electronic monitoring). Petitioner did not file a post-sentencing motion.
Petitioner did file an appeal to the Superior Court of Pennsylvania, however, that
appeal was withdrawn at Petitioner's request prior to a decision on the merits of
the appeal.
On August 8, 201 S, Petitioner filed the pending PCRA Petition with the
Clerk of Court of Indiana County, Pennsylvania. In the PCR.A Petition, Petitioner
appears to raise one issue: Petitioner wanted a jurv trial, but Robert S. Bell,
3
Esquire, induced Petitioner to enter the plea. The Court will consider this claim
as an ineffective assistance of counsel claim.
This Court conducted a hearing to address the PCRA Petition on October
2, 201 8. During the course of the hearing, the Court heard testimony from
Attorney Robert S. Bell and Petitioner. This matter is ripe for decision.
APPLICABLE LAW
The relevant portions of the Post Conviction Relief Act are set forth
below; Petitioner must prove each by a preponderance of the evidence:
(l) That the petitioner has been convicted of a crime
under the laws of this Commonwealth and is at the
time relief is granted:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime;
(2) That the conviction or sentence resulted from one
or more of the following:
(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.
4
(3) That the allegation of error has not been previously
I itigated or waived.
(4) That the failure to litigate the issue prior to or
during trial, during unitary review or on direct appeal
could not have been the result of any rational, strategic
or tactical decision by counsel.
42 Pa.CS.A. § 9543.
" 'Counsel is presumed effective, and [Petitioner] bears the burden of
proving otherwise.' " Commonwealth v. Fears, 86 A.3d 795, 803-804 (Pa.
2014), quoting Commonwealth v. Steele, 961 A.2d 786, 796 (Pa.
2008)(additional citation omitted). "To prevail on an ineffectiveness claim,
[Petitioner] must establish: '(l) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's actions or failure to act; and (3)
[Petitioner] suffered prejudice as a result of counsel's error such that there is a
reasonable probability that the result of the proceeding would have been
different absent such error.'" Id., quoting Commonwealth v. Lesko, 15 A.3d
345, 3 73 (Pa. 2011 )(additional citation omitted). "Failure to prove any prong of
5
this test will defeat an ineffectiveness claim." Id., citing Commonwealth v.
Basemore, 560 Pa. 258, 744 A.2d 171, 738 (2000).
In this case, Petitioner alleges that his counsel was ineffective regarding
the entrance of her plea. " '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. 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.'" Commonwealth v. Barndt, 74 A.3d
185, 192 (Pa.Super. 2013), quoting Commonwealth v. Wah, 42 A.3d 335, 338-
39 (Pa.Super. 2012).
DISCUSSION
To begin, the Court recognizes that Petitioner is eligible for relief under
42 Pa.CS.A. §9543(a) in that Petitioner was convicted of a crime and is
currently serving a sentence of intermedlate punishment (parole).
As stated above, Petitioner claims that she wanted to have a jury trial, but
her defense counsel induced her to enter a plea. With regard to this claim, the
6
Court first mentions that Petitioner completed a written plea colloquy. This one
page document was handed to the Court at the beginning of the plea hearing.
The Court also questioned Petitioner about the execution of the written
colloquy to ensure that Petitioner did in fact execute the document and that she
had the ability to ask her lawyer any questions that she may have had about her
rights.
The Court next examines the Plea Hearing Transcript. During the Plea
Hearinq, the Court engaged Petitioner in an oral colloquy. The Court reviewed
the plea agreement in both cases. The Court then asked Petitioner "has it been
explained to you what it means to plead guilty and the consequences of
entering the pleas and the alternatives available to you." (Plea Hearing
Transcript, p. 4). Ms. Peterman responded "Yes." Id. The Court then told
Petitioner that "I want to make sure that the pleas are being entered knowingly,
voluntarily, and intellingently," and then proceeded to engage Petitioner in an
oral colloquy. 1.Q. Relevant to the pending issue are the following excerpts for
the Plea Hearing Transcript:
7
Q: Now Miss Peterman with regard to the offenses themselves; the
Stalking offense, the Commonwealth would have to prove that you engaged in a
course of conduct or repeatedly communicated to another person under the
circumstances that demonstrated or communicated an intent to place such
person in reasonable fear of bodily injury or to cause substantial emotional
distress to the other person. That's the definition of that offense, and it's
graded as a Misdemeanor of the First Degree. Any questions for me about what
the Commonwealth would have to prove?
A: No.
(Plea Hearing Transcript, pp. 5-6).
Q: Now Miss Peterman you understand that one of the rights you have
is to have a trial; you can say I'm not going to enter a plea I would like to have a
trial, the Commonwealth would have to prove the elements of the offense-
both offenses beyond a reasonable doubt. Any questions about that right?
A: No.
Q: Has anybody forced you or threatened you to give up those rights
· to plead guilty today?
8
A: No.
Q: Are you entering the pleas of your own free choice?
A: Yes.
(Plea Hearing Transcript, p. 7).
In addition to the clear language of the oral colloquy, as set forth in the
transcript, the Court received credible testimony from Robert S. Bell, Esquire, at
the PCRA Hearing. Attorney Bell testified that Petitioner was reluctant to enter a
plea in this matter, but after he engaged Petitioner in discussions regarding her
rights and possible outcomes at trial, Petitioner decided to enter the plea.
Attorney Bell also testified that Petitioner never requested to withdraw her plea.
In fact, Attorney Bell testified that on the day of the Sentencing Hearing in this
matter, Petitioner stated "let's go ahead with the sentence." The Court also
notes that Petitioner never indicated to the Court that she wished to withdraw
her plea.
Finally, the Court flnds.lt relevant that Petitioner entered a negotiated
plea in another case at the same time as the plea in question. It is not
uncommon forthe Commonwealth and a defendant to negotiate a "package
9
deal" in a situation involving multiple cases. As stated above, the PCRA Petition
addresses the case at 1191 Crim. 2016, therefore, the Court gleans that
Petitioner wants the benefit of her bargain in the case docketed at 114 Crim.
2017, in which the Commonwealth moved for the Nol Pros of the Stalking
charge graded as a felony of the third degree. Petitioner testified at the PCRA
Hearing that prior to the entry of her pleas, Attorney Bell told her that is "was a
package deal." The Court believes that Petitioner knowingly, intelligently, and
voluntarily entered her pleas.
Based upon a review of the written plea colloquy, an examination of the
Plea Hearing Transcript, and a review of the testimony presented at the PCRA
Hearing, the Court finds that Petitioner has failed to demonstrate a right to
relief.
WHEREFORE, the Court enters the following Order.
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IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY,
PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA,
CRIMINAL DIVISION
vs.
NO. 1191 CRIM 201 6
ARLINE PETERMAN,
Petitioner.
ORDER OF COURT
AND NOW this 3rd day of October, 201 8, this matter having
come before the Court on the Petition for Post Conviction Collateral
Relief filed on behalf of Petitioner, and the Court having held a hearing
thereon, it is hereby ORDERED, ADJUDGED, and DECREED that said
Petition for Post Conviction Collateral Relief is DENIED1 consistent with
the attached Opinion.
BY THE COURT:
\ __..o/J\ . 13
__
-
Thomas M. Bianco, Judge
s
Com. v. Peterman, A.
Combined Opinion