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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARVIN BRUNSON, :
:
Appellant. : No. 1611 EDA 2018
Appeal from the PCRA Order, April 26, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0000153-2016,
CP-51-CR-0000155-2016.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 18, 2019
Marvin Brunson appeals pro se from the order denying his first petition
filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
The PCRA court summarized the pertinent facts underlying Brunson’s
convictions as follows:
The charges arose out of two separate incidents that
occurred on October 9, 2015 and October 17, 2015. During
the first incident, [Brunson], armed with a handgun, entered
the H & P Deli located on East Allegheny Avenue in
Philadelphia, pointed his gun at a worker and demanded
money. He left after being given $ 400.00 during the first
robbery. The second incident occurred at the same location.
This time, [Brunson] had a jacket or sweatshirt wrapped
around what appeared to be a handgun. He took $ 200.00
during the second robbery. Both incidents were recorded
on a security camera and a comparison of the two
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* Retired Senior Judge assigned to the Superior Court.
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recordings showed that they both appeared to have been
committed by the same person.
Investigation by police led to a person who witnessed the
first robbery and that person identified [Brunson], who
resided in the neighborhood in which the store was situated,
as the person who robbed the Deli on October 9, 2016. In
addition, police executed a search warrant at [Brunson’s]
residence and recovered clothing that matched the clothing
the robber wore during both robberies.
PCRA Court Opinion, 11/15/18, at 2 (citations omitted).
Police arrested Brunson, and charged him with robbery and a firearm
violation at two separate dockets.1 On December 12, 2016, Brunson entered
a negotiated guilty plea at each docket. In return, the Commonwealth agreed
to recommend an aggregate sentence of six to twenty years of imprisonment.
The PCRA court described the circumstances involving the entry of the
guilty pleas as follows:
After [Brunson] completed the guilty plea colloquy form,
and prior to accepting his plea, this Court conducted an oral
colloquy of [Brunson] during which [he] acknowledged,
inter alia, that he was not promised anything and no one
threated him to enter his plea. This Court further
ascertained that [Brunson] was satisfied with plea counsel’s
representation and that he agreed with the
Commonwealth’s recitation of the facts.
Following the colloquy, [Brunson] formally entered his
plea, which this Court accepted. Immediately thereafter,
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1 Brunson’s appeal was filed on May 31, 2018. Thus, our Supreme Court’s
June 1, 2018 decision in Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018), which prospectively requires a separate notice of appeal for each
docket number, does not apply.
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this Court imposed the negotiated sentence upon
[Brunson], who prior to being sentenced stated:
[BRUNSON]: I just want to apologize. I mean, I don’t
see the victim here. I just want to apologize, you
know, to him, to the family, to the Court. You know
what I’m saying? It was just something stupid that I
did - - I chose to do. There’s no excuse for it, you
know. I just hope my apology is accepted.
(N.T. 12/12/16, [at] 15). [Brunson] did not file a post-
sentence motion or a notice of appeal after this Court
imposed sentence upon him.
PCRA Court Opinion, 11/15/18, at 2-3 (citations omitted).
On October 10, 2017, Brunson filed a pro se PCRA. The PCRA court
provided the following facts and procedural history regarding this petition:
In his petition, [Brunson] asserted that he did not commit
either robbery, that he was not identified at a lineup by two
individuals, one of whom selected someone else, and a third
person picked him after someone said [Brunson] was the
third person in the lineup. He also asserted that he was
entitled to PCRA relief because he never was inside the Deli,
his son committed both crimes, and his daughter’s mother
was aware that [Brunson’s] son committed the crime[s] but
did not mention that because she though [Brunson] would
be acquitted and she did not want to get [Brunson’s] son in
trouble. Finally, he claimed that his plea to the weapons
charge did not have a factual basis because a video shows
that he did not have a gun.
After [Brunson] filed his petition, counsel was appointed
to represent him and on March 29, 2018, counsel filed a “no-
merit” letter in accordance with the requirements set forth
in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988), as well as a motion to withdraw as counsel. After
carefully reviewing the record and counsel’s no-merit letter
this Court determined that the issues [Brunson] set forth in
his pro se PCRA petition did not entitle him to relief after
which this Court sent [Brunson] a Pa.R.Crim.P. 907 notice
of intention to dismiss on April 2, 2018. On April 13, 2018,
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[Brunson] filed a Motion requesting an extension of time to
file a response to the 907 notice. On April 26, 2018, this
Court issued an order dismissing [Brunson’s] PCRA petition
without a hearing and granted PCRA counsel’s motion to
withdraw after the Court again assiduously reviewed the
entire record.
On May 14, 201[8] [Brunson] filed a Motion asking this
Court to reconsider its order dismissing his PCRA petition.
In that Motion [Brunson] alleged that he advised plea
counsel that he did not commit the crime and was innocent,
that counsel told him that his defense would fail and thus he
had no choice but to plead guilty, that counsel told him to
lie and say that he was entering his plea willingly of his own
volition. He further added that if this Court had granted his
Motion seeking an extension of time to respond to the 907
notice he would have filed an amended petition asserting
that he had a viable defense to the charges, he had been
coerced to plead guilty, and that he did not enter his plea
voluntarily or intelligently. Finally, he claimed that this
Court erred by dismissing his PCRA petition without a
hearing and in violation of Pa.R.Crim.P. 907. On May 23,
2018, although this Court had not yet ruled on his Motion
for Reconsideration, [Brunson] timely filed pro se a notice
of appeal from the order denying him PCRA relief.
PCRA Opinion, 11/15/18, at 3-4 (citation omitted). Both Brunson and the
PCRA court have complied with Pa.R.A.P. 1925.
Brunson raises the following issues:
1. Is Brunson entitled to a remand to withdraw his guilty
plea since the PCRA court erred when it adopted PCRA
counsel’s no-merit letter under the Turner/Finley
requirement holding that Brunson’s PCRA issues were
without merit and granting PCRA counsel’s petition to
withdraw, when arguably meritorious issues were
present on the face of the record, thus, counsel’s review
was deficient.
2. Is Brunson entitled to a remand for the appointment of
new counsel to amend his first PCRA petition since the
PCRA court erred when it denied Brunson the assistance
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of counsel and the opportunity to amend his petition,
when the court allowed appointed PCRA counsel to
withdraw without amending the PCRA petition and
without an adequate independent review of the record.
3. Did PCRA counsel render ineffective assistance of counsel
for failing to raise plea counsel’s ineffectiveness for failing
to file a motion to withdraw his guilty plea or to file a
notice of appeal as directed by Brunson.
4. Is Brunson entitled to a remand to withdraw his guilty
plea since the PCRA court erred when it dismissed the
request for PCRA relief without an evidentiary hearing.
See Brunson’s Brief at 4.2
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
The PCRA court has discretion to dismiss a petition without a hearing
when the court 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. To obtain
a reversal of a PCRA court’s decision to dismiss a petition without a hearing,
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2 In his fifth issue, Brunson stated that because he “is unsure of the precise
reasoning” for the PCRA court’s “dismissal of PCRA relief,” he “reserves the
right to argue any additional issues raised by the PCRA court’s opinion in this
matter.” Brunson’s Brief at 4. Such a request is not permitted by the
appellate rules governing the contents of an appellant’s brief. Nevertheless,
Brunson has filed nothing further with this Court.
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an appellant must show that he raised a genuine issue of material 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. Commonwealth v.
Blakeney, 108 A.3d 739, 750 (Pa. 2014).
In his first three issues, Brunson claims the PCRA court erred by
agreeing with his PCRA counsel’s assessment that the issues raised in his pro
se PCRA petition merit no relief. According to Brunson, because meritorious
issues appeared on the face of the record, PCRA counsel should have amended
his petition to include a claim that plea counsel was ineffective for failing to
file a motion to withdraw his plea and/or an appeal to this Court once Brunson
requested him to do so. In addition, Brunson asserts that the PCRA court did
not adequately conduct an independent review of the record before dismissing
his PCRA petition. Brunson’s claims are refuted by our review of the record.
Initially, we note that Brunson’s challenge to PCRA counsel’s
effectiveness is not properly preserved. See Commonwealth v. Smith, 121
A.3d 1049, 1055 (Pa. Super. 2015) (explaining claim of PCRA counsel’s
ineffectiveness must be raised in response to the PCRA court’s Rule 907 notice
in order to be preserved for appeal); Commonwealth v. Henkel, 90 A.3d
16, 20 (Pa. Super. 2014) (stating claims of ineffective assistance of PCRA
counsel may not be raised for the first time on appeal).3
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3To the extent Brunson asserts that the PCRA court erred in not granting his
motion for an extension of time to file a response to the court’s Rule 907, we
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Essentially, in his first three issues, Brunson argues that his decision to
enter a guilty plea resulted from the ineffective assistance of counsel. To
obtain relief under the PCRA premised on a claim that counsel was ineffective,
a petitioner must establish by a preponderance of the evidence that counsel’s
ineffectiveness so undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.
This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) petitioner was prejudiced by counsel's act or
omission. Id. at 533. A finding of "prejudice" requires the petitioner to show
"that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different." Id.
This Court has summarized the following regarding claims that the entry
of a guilty plea was the result of ineffective assistance of counsel:
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agree with the PCRA court that Brunson was not prejudiced. The PCRA court
reviewed the issues raised in Brunson’s motion for reconsideration, see infra,
“and concluded that none of those issues [had] merit because the record
amply demonstrate[d] that [Brunson’s] plea was entered in full accordance
with the law.” PCRA Court Opinion, 11/15/18, at 13. According to the PCRA
court, in order for Brunson “to obtain relief, [the PCRA court] had to determine
that [Brunson] lied during the guilty plea hearing, which the law precluded
[the PCRA court] from doing.” Id.
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A criminal defendant has the right to effective counsel
during a plea process as well as during trial. A defendant is
permitted to withdraw his guilty plea under the PCRA if
ineffective assistance caused the defendant to enter an
involuntary plea[.]
We conduct our review of such a claim in accordance with
the three-pronged ineffectiveness test under section
9543(a)(2)(ii) of the PCRA. 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. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)
(citations omitted).
Brunson has failed to meet this burden. As this Court has summarized:
Our law presumes that a defendant who enters a guilty plea
was aware of what he was doing. He bears the burden of
proving otherwise.
* * *
The long standing rule of Pennsylvania law is that a
defendant may not challenge his guilty plea by asserting that
he lied while under oath, even if he avers that counsel
induced the lies. A person who elects to plead guilty is bound
by the statements he makes in open court while under oath
and may not later assert grounds for withdrawing the plea
which contradict the statements he made at his plea colloquy.
* * *
[A] defendant who elects to plead guilty has a duty to answer
questions truthfully. We [cannot] permit a defendant to
postpone the final disposition of his case by lying to the court
and later alleging that his lies were induced by the prompting
of counsel.
Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)
(citations omitted).
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Here, our review of the record reveals that Brunson’s answers to the
court’s questions during the oral plea colloquy, as well as those provided in
the written colloquy, contradict Brunson’s claims surrounding the entry of his
guilty plea. As noted by the PCRA court:
Instantly, [Brunson] fell woefully short of meeting his
burden of proof. First, Brunson reviewed with [plea] counsel
and then signed a guilty plea colloquy form. By signing that
form, he averred that he discussed with counsel and
understood, inter alia, the definitions of the crimes to which
he was pleading guilty as well as the maximum combined
sentence he could possibly receive upon entering his plea to
the charges enumerated above. It also manifested that
[Brunson] voluntarily waived the rights explained and
described in the colloquy form. In addition, this Court
supplemented the information contained in the written
colloquy form by conducting an oral colloquy of [Brunson]
during which this Court ascertained that [Brunson]
understood the nature of the proceeding and that he was
entering his plea, knowingly, intelligently, and voluntarily.
The combined effects of the signing of the written colloquy
form together with the supplemental oral colloquy clearly
established that [Brunson] entered his guilty plea
knowingly, intelligently, and voluntarily and that counsel did
not coerce [Brunson] to plead guilty. Thus, the plea was
entered in accordance with the law.
The claim was also dismissed because to obtain relief in
the form of an order vacating his sentence and guilty plea
and granting him a new trial based on his claim of innocence
and his assertion that he was coerced to lie to the court and
to enter his plea, [Brunson] necessarily had to disavow that
to which he averred by signing the guilty plea colloquy from
and in his testimony before this Court As noted above,
[Brunson] stated that no one promised, threatened, or
forced him to enter the plea and that he did so wholly of his
own volition. [Brunson] also stated that he was satisfied
with counsel’s advice and that he agreed that the facts read
into the record by the prosecutor were true and correct and
that he was guilty of the crimes. Finally, [Brunson] gave
what appeared to be a heartfelt apology to the victims prior
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to receiving the sentence he was promised in exchange for
his guilty plea.
PCRA Court Opinion, 11/15/18, at 10-11 (citations omitted).4 We find
Brunson’s first three issues warrant no relief.
In his fourth issue, Brunson asserts that he was entitled to an
evidentiary hearing regarding his plea counsel’s ineffectiveness for failure to
file a motion to withdraw his guilty plea and/or a direct appeal. Initially, after
reviewing Brunson’s pro se PCRA petition, we agree with the Commonwealth
that Brunson inappropriately raised this claim for the first time on appeal.
Henkel, supra.
Nevertheless, before an evidentiary hearing will be granted, a PCRA
petitioner “must set forth an offer to prove at an appropriate hearing sufficient
facts upon which a reviewing court can conclude that trial counsel may have,
in fact, been ineffective.” Commonwealth v. Begley, 780 A.2d 605, 635
(Pa. 2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.
1981). Here, Brunson has made no such offer of proof. Beyond his bare
assertion that he sent a letter to counsel, he has proffered no evidence to
support his claim that he asked counsel to file a motion to withdraw his guilty
plea and/or a direct appeal. In addition, he has failed to submit a signed
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4 As enumerated by the PCRA court supra, Brunson raises a number of
allegations regarding the sufficiency of the evidence supporting his convictions
and potential defenses he could have raised had he gone to trial. However,
by entering his guilty plea, Brunson waived the right to pursue any of these
claims as an avenue for relief. See generally Commonwealth v. Rounsley,
717 A.2d 537, 538 (Pa. Super. 1998).
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certification from his plea counsel, who he claimed was ineffective. “A
supporting document from counsel stating his reasons for the course chosen
is generally necessary to establish potential entitlement to a hearing.”
Commonwealth v. Cousar, 154 A.3d 287, 299-300 (Pa. 2017). Asserting
bald accusations as to counsel’s ineffectiveness “without some proffer as to
what counsel would say in response to the allegations” is insufficient to
warrant relief. Id. at 299. Here, there is no evidence that Brunson ever
contacted plea counsel regarding the ineffectiveness allegations, and no
witness certification was provided in the PCRA pleadings. As such, Brunson
has failed to take the necessary procedural steps to establish the need for an
evidentiary hearing.
Given these circumstances, the PCRA court did not err in dismissing
Brunson’s petition without first holding an evidentiary hearing. See
Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in
the absence of a sufficient proffer, a petitioner’s bare assertions would
inappropriately convert an evidentiary hearing into a “fishing expedition” for
possible exculpatory evidence). Thus, Brunson’s fourth issue fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/19
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