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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GEORGE M. PINES JR. :
:
Appellant : No. 1761 EDA 2019
Appeal from the PCRA Order Entered May 16, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003937-2015
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 09, 2020
George Pines, pro se, appeals from the order entered in the Philadelphia
County Court of Common Pleas, which denied his first petition filed pursuant
to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546.
After conducting an exhaustive review of the six issues that Pines raises, we
conclude that the PCRA court correctly determined that he was not entitled to
relief and affirm.
By way of background, under the pretense of a drug deal, Pines, armed
with a handgun, and two others broke into an apartment occupied by three
individuals: Sheina Martin, Nancy Mundo, and Terrance Soloman. Pines and
his accomplices robbed the occupants and ransacked their apartment, seeking
both drugs and money. In the process, Pines shot Soloman in the face, killing
____________________________________________
Retired Senior Judge assigned to the Superior Court.
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him. After some level of resistance, Pines also shot Martin several times, but
she survived.
Several weeks after the robbery and shootings, Pines was transported
for questioning to Philadelphia’s homicide headquarters. There, in sequential
order, he was asked biographical information, was Mirandized, signed a
consent to search his vehicle and cell phone, and then Mirandized a second
time. After that, Pines admitted to police detectives that he shot and killed
Soloman, but denied that he shot Martin. Instead, he claimed that it was one
of the two other robbers. He denied any affiliation with the other robbers.
After the denial of his motion seeking to suppress the statement he
made to the detectives, Pines entered into a negotiated guilty plea to third-
degree murder, see 18 Pa.C.S.A. § 2502(c), robbery, see 18 Pa.C.S.A. §
3701, and two counts of aggravated assault, see 18 Pa.C.S.A. § 2702.
Correspondingly, Pines was sentenced to twenty-seven and one-half to fifty-
five years of imprisonment. The court ran Pines’s two aggravated assault
sentences concurrent with one another, but consecutive to his third-degree
murder sentence.
Several days after sentencing, Pines filed a motion to withdraw his guilty
plea. The court denied his motion without a hearing. Thereafter, Pines filed a
notice of appeal to our Court. We, in turn, affirmed Pines’s judgment of
sentence. Following our decision, Pines’s petition for allowance of appeal with
our Supreme Court was denied.
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Several months later, Pines filed a timely pro se PCRA petition, his first.
The court appointed PCRA counsel, but counsel concluded there was no merit
to any of the issues in Pines’s PCRA petition. As a result, counsel filed a Finley
letter, see Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), seeking to withdraw from representing Pines. Satisfied that relief was
not warranted, the court issued notice that it intended to dismiss his petition
without a hearing, pursuant to Pa.R.Crim.P. 907(1). Although Pines filed a
timely response to the court’s Rule 907 notice, the court dismissed his petition.
At the same time, Pines filed a motion to proceed pro se.
After dismissal, Pines filed a timely notice of appeal to our Court and
then filed a timely statement of matters complained of on appeal. Pines
presents six questions for our review, reordered for ease of disposition:
1) Did Pines unintelligently enter into a plea agreement given that
he was unaware that the court colloquy was defective, as
certain mandatory components were not met?
2) Was plea counsel ineffective in failing to protect Pines from that
defective court colloquy?
3) Was Pines denied a pre-sentence investigation (“PSI”)?
4) Did the sentencing court abuse its discretion in sentencing?
5) Was plea counsel ineffective in failing to present character
witnesses?
6) Was PCRA counsel ineffective in failing to raise Pines’s first five
issues as well as failing to challenge the coerciveness of Pines’s
statement made leading up to the plea agreement process?
See Appellant’s Brief, at 3.
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Our standard for reviewing an order denying PCRA relief is well-
established:
Upon reviewing an order in a PCRA matter, we must determine
whether the findings of the PCRA court are supported by the
record and whether the court's legal conclusions are free from
error. The findings of the PCRA court and the evidence of record
are viewed in a light most favorable to the prevailing party. The
PCRA court's credibility determinations, when supported by the
record, are binding; however, this [C]ourt applies a de novo
standard of review to the PCRA court's legal conclusions. We must
keep in mind that the petitioner has the burden of persuading this
Court that the PCRA court erred and that such error requires relief.
Finally, this Court may affirm a valid judgment or order for any
reason appearing of record.
Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (internal
citations omitted).
Preliminarily, we note that Pines has oscillated between substantive
claims, attacks on discretionary aspects of sentencing, and ineffective
assistance of counsel allegations. Further, he often interjects sentences and
paragraphs of specific arguments in unrelated sections.
Pines’s first issue claims that his court colloquy during his guilty plea
was defective. He therefore claims he did not enter it intelligently.
Specifically, Pines avers that the court never went through the
mandatory questions necessary to ensure his understanding of the full impact
and consequences of his plea. See Pa.R.Crim.P. 590, Comment. In addition,
Pines contends that he was unaware of “what charges he [was] pleading guilty
to, what acts he allegedly committed underlying the plea, and specifically what
elements of the crimes he was pleading to.” Appellant’s Brief, at 9.
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In order to be eligible for PCRA relief, the allegation of error must not
have previously been litigated. See 42 Pa.C.S.A. § 9543(a)(3). An issue has
been previously litigated if “the highest appellate court in which the petitioner
could have had review as a matter of right has ruled on the merits of the
issue[.]” Id., § 9544(a)(2).
In Pines’s direct appeal from his judgment of sentence, the sole
argument that he raised was a challenge to his guilty plea, claiming it not have
been entered into knowingly, intelligently, and voluntarily. See
Commonwealth v. Pines, 2916 EDA 2016, 2017 WL 2255556 at *1 (Pa.
Super., May 23 2017). After reviewing, inter alia, “the plea/sentencing
transcript[ and] the written plea colloquy,” id., our Court expressly found that
Pines’s plea agreement was not deficient. Moreover, the lower court, whose
opinion we unambiguously adopted, outlined the discrete pre-plea areas of
understanding necessary for a colloquy Pines now complains he never heard
the court discuss with him.
Accordingly, because any defect associated with Pines’s plea agreement
has already been litigated, Pines is due no relief on this issue.
In a similar vein, Pines’s plea counsel was not ineffective for failing to
object to Pines’s plea colloquy.
To succeed in a PCRA claim of ineffective assistance of counsel Pines
would need to demonstrate, via a preponderance of the evidence, that
counsel’s deficient action or actions “so undermined the truth-determining
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process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(2)(ii). Counsel is presumed to have rendered
effective assistance. See Commonwealth v. Sepulveda, 55 A.3d 1108,
1117 (Pa. 2012). Therefore, in order to obtain relief, Pines must demonstrate
prejudice as recognized by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). See Commonwealth v. Hannibal, 156
A.3d 197, 206 (Pa. 2016) (identifying that Pennsylvania courts employ “the
performance and prejudice standard set forth in Strickland”).
Under Strickland, Pines must establish that: (1) his underlying claim
has arguable merit; (2) counsel’s action or inaction was unreasonable; and
(3) he suffered prejudice as a result of counsel’s deficient performance to such
an extent that there is a reasonable probability that the result of the
proceeding would have been different excepting counsel’s affirmative error or
omission. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
Pines has the burden of demonstrating all three prongs. See Commonwealth
v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).
If Pines does not satisfy any one prong of the ineffectiveness test, it is
fatal to his claim. See Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa.
2018). Additionally, we are not bound to any sequential analysis of the three
ineffectiveness prongs; if, for whatever reason, Pines’s assertions fail under
any prong, we may immediately discuss that element to dismiss the claim in
its entirety. See Sepulveda, 55 A.3d at 1117-18.
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As this Court previously found there to be no validity to Pines’s assertion
that his colloquy was defective, Pines’s underlying claim does not have
arguable merit. Therefore, he cannot demonstrate that plea counsel engaged
in ineffective assistance of counsel.
Pines next claims he was denied a pre-sentence investigation and
corresponding report without his knowledge or consent. “The sentencing judge
may, in the judge’s discretion, order a pre-sentence investigation report in
any case.” Pa.R.Crim.P. 702(A)(1). “[A] claim that the court erred in failing to
order a PSI report raises a discretionary aspect of sentencing of which a
defendant’s right to appellate review is exceptionally limited.”
Commonwealth v. Flowers, 950 A.2d 330, 331 (Pa. Super. 2008).
First, Pines was the beneficiary of a negotiated plea agreement, which
the court followed in imposing sentence. Second, Pines did not object after
Pines’s counsel stated, in open court, that she would be waiving any claim to
a PSI report. See N.T., 7/19/16, at 69. A few moments later, when directly
asked if he desired to speak prior to sentencing, Pines indicated that there
was nothing that he wished to say. See id., at 71. Finally, as this claim
constitutes a challenge to the discretionary aspects of his sentencing, it is not
a cognizable claim under the PCRA. See Commonwealth v. Fowler, 930
A.2d 586, 593 (Pa. Super. 2007). Accordingly, there is no merit to his claim
that the PCRA court erred in dismissing this claim.
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Pines’s subsequent argument contends that there was an abuse of
discretion in sentencing because the court imposed consecutive sentences
without his knowledge and that it also disregarded the doctrine of merger.
Once again, Pines is attempting to challenge the discretionary aspects
of his sentence. Such claims are not cognizable under the PCRA, and the PCRA
court did not err in dismissing them. See id.
Next, Pines emphasizes that he should have had the opportunity to
present character witnesses at sentencing and that counsel was ineffective by
failing to call those witnesses. Because Pines was sentenced in accordance
with his negotiated plea deal, he cannot establish that he has suffered from
any sort of prejudice by not being able to call these witnesses. Further review
of the record offers no indicia that the trial court was amenable to deviating
from the agreed-upon sentence if character witnesses would have been
presented. In failing to establish prejudice, Pines has failed to demonstrate
ineffective assistance of counsel on the issue of not calling character witnesses
for sentencing purposes.
Even though he has suggested the existence of ineffective assistance of
counsel at numerous other points in his brief, blurring the lines between claims
against plea counsel and PCRA counsel, Pines dedicates an omnibus argument
section advocating for the same contention. The gravamen of Pines’s
ineffectiveness argument, at least here, is that plea counsel failed him
throughout the plea and sentencing process because plea counsel did not raise
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any concerns over the incriminating statement Pines made to police
detectives. He alleges PCRA counsel continued in a similar manner by not
following up with Pines as to any of his concerns. Ultimately, Pines believes
that he should have been able to withdraw his plea prior to sentencing.
“Generally, a plea of guilty amounts to a waiver of all defects and
defenses except those concerning the jurisdiction of the court, the legality of
the sentence, and the validity of the guilty plea.” Commonwealth v.
Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation omitted). The record
reflects that Pines was fully apprised of his waiver of anything beyond those
grounds. See N.T., 7/16/16, at 38-47.
While it is true that ineffective assistance of counsel is a cognizable claim
even where a plea agreement exists, this Court has already held that under
all the circumstances, Pines’s guilty plea was knowingly and intelligently
entered. Moreover, prior to the acceptance of the plea agreement, the trial
court denied Pines’s motion to suppress his statement. Neither plea counsel
nor PCRA counsel can be ineffective for failing to raise claims that would not
have succeeded. Therefore, Pines has not demonstrated ineffective assistance
of counsel.
As the court correctly determined that Pines is not entitled to any PCRA
relief, we affirm the PCRA court’s dismissal of his petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/20
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