Com. v. Hailey, A.

J-S53043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALVIN MAURICE HAILEY :
:
Appellant : No. 982 EDA 2020

Appeal from the PCRA Order Entered March 2, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007727-2017

BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: APRIL 19, 2021

Alvin Maurice Hailey (Hailey) appeals pro se from the Court of Common

Pleas of Montgomery County (PCRA court) order denying his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Hailey claims that his trial counsel was ineffective in advising him to enter a

guilty plea as well as his PCRA counsel was ineffective in filing a

Turner/Finley1 “no merit” letter without investigation. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
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I.

We take the factual background and procedural history of this case from

the PCRA court’s June 8, 2020 opinion and our independent review of the

record. The PCRA court set forth the factual background as follows:

On August 25, 2017, the Norristown Police Department received
notice that [Hailey] had an active County Probation and State
Parole warrant. The Department was further informed [Hailey]
was driving a red Buick sedan, license plate number KLV-3012 and
that he was potentially armed. On August 27, 2017, police
received information from a confidential informant that [Hailey]
was in fact the operator of the vehicle and that there was cocaine
and a handgun located inside the vehicle. On August 27, 2017,
while on patrol, Corporal Tyler North (“Cpl. North”) of the
Norristown Police Department saw an individual, who he believed
to be [Hailey] in the driver seat of the red Buick sedan, license
plate number KLV-3012 which was parked outside the address
listed for [Hailey], 419 E. Moore St., Norristown, Pennsylvania.
When [Hailey] began to drive the red Buick sedan, Cpl. North
proceeded to follow [him] until he reached a dead end. There,
Cpl. North ordered [Hailey] out of the car. [Hailey] did as he was
ordered and then fled the scene and successfully eluded the police
during a police search of the area. With further investigation, the
police confirmed that the red Buick belonged to [Hailey], and after
a K-9 exterior sniff search of the vehicle discovered the presence
of narcotics the vehicle was towed to a police station pending a
search warrant application.

On August 28, 2017, police were notified of the whereabouts
of [Hailey] by a confidential informant, and [Hailey] was
subsequently arrested at the location. On August 29, 2017, police
executed the search of [Hailey’s] vehicle and found amongst other
items, a handgun and ammunition as well as marijuana.
[Hailey’s] criminal history indicates that he is a convicted felon,
not to possess a firearm. Bills of Information were filed and
finalized on January 5, 2018 charging the following six counts
against [Hailey]:

1. Firearms not to be carried without a license-Felony 3rd Degree
2. Persons not to possess, use, manufacture, control, sell or
transfer firearms-Felony 2nd Degree

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3. Controlled Substance/Possession-Misdemeanor
4. Drug Paraphernalia-Misdemeanor 2
5. Persons not to possess, use, manufacture control, sell or
transfer firearms-Misdemeanor 1st Degree
6. Controlled Substance/Possession with intent to
manufacture/deliver-Felony

On September 18, 2018, [Hailey] entered into a negotiated
guilty plea agreement to the charge under 6105(a)(1) of the
Pennsylvania Criminal Code: Persons not to possess a firearm,
graded as a felony of the second degree. … In exchange for this
plea, the Commonwealth agreed to move for entry of nolle
prosequi on the five remaining counts.

(Trial Court Opinion, 6/08/20, at 1-3).

At the guilty plea hearing, the court conducted a thorough colloquy that

affirmatively demonstrated that Hailey understood what the plea connotated

and its consequences. (See N.T. Guilty Plea, 9/18/18, at 6); see

Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. 2013) (“With regard to

the voluntariness of a plea, a guilty plea colloquy must affirmatively

demonstrate the defendant understood what the plea connoted and its

consequences.”) (internal quotation marks and citation omitted).2 Counsel

explained the standard range sentence for Persons not to Possess was not less

than four nor more than five years’ incarceration and that the sentence to

which he and the Commonwealth agreed was below the mitigated range. He

testified that he was satisfied with trial counsel’s representation and that no

one had threatened, coerced or promised him anything in exchange for the

____________________________________________

2 Hailey does not challenge the guilty plea colloquy.

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plea. Hailey admitted to the recitation of facts and evidence provided by the

assistant district attorney. He also took the opportunity to apologize to his

mother for putting her through this again and told her he hoped this was the

last time. The written guilty colloquy form signed by Hailey reflected the same

answers he supplied to the trial court on the record. It also apprised him that

the only four grounds for appeal were that the guilty plea was not knowing,

voluntary and intelligent; the court lacked jurisdiction; legality of sentence;

and ineffective assistance of counsel. In all other respects it mirrored the

information supplied to him at the guilty plea hearing. (See Written Guilty

Plea Colloquy, 9/18/18, at 2-8).

The trial court accepted the guilty plea and sentenced Hailey to a term

of imprisonment of not less than two nor more than five years3 on the charge

of persons not to possess a firearm pursuant to the agreement’s terms.

Hailey filed a timely first PCRA petition pro se on September 11, 2019,

in which he maintained that trial counsel was ineffective for advising him to

enter a guilty plea instead of filing a motion to suppress challenging the

suspect’s identification, probable cause and the illegal search and seizure of

his vehicle without a warrant. (See Pro Se PCRA Petition, 9/11/19, at 4, 11)

____________________________________________

3 Based on the sentencing guideline form prepared by the Commonwealth for
Hailey, the standard range for the charge to which he pled guilty is forty-eight
to sixty months, with an aggravated/mitigated range of plus or minus twelve
months. (See N.T. Guilty Plea, at 4).

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(page number provided). The petition also claimed ineffective assistance of

trial counsel for failing to challenge the police description. (See id. at 4). He

argued that “the police officer reported that the suspect that he was pursuing

was 6’1” and 180 lbs, when [Hailey] at the time was 285 lbs and 6’2”….” (Id.

at 11) (page number provided). He maintained that “along with not matching

the police description, a DNA report shows that [he] never possessed the

firearm in question[,]” and that “[e]ven with the evidence not pointing to the

[Hailey], counsel still advised [him] to take a plea bargain.” (See id.).

Appointed counsel filed a petition for permission to withdraw as counsel

and a Turner/Finley “no merit” letter on January 16, 2020, in which he

maintained that after his independent review, it was his considered opinion

that the issues raised by Hailey in his PCRA petition lacked merit and there

were no other arguably meritorious issues. He apprised Hailey that his petition

fails because he acknowledged under oath that he understood what he was

doing in entering the guilty plea, no promises or threats had been made to

him, and that he understood what rights he forfeited by pleading guilty. (See

Turner/Finley Letter, 1/14/20, at 2). He advised that the place to challenge

the evidence of his identification was at trial, and that he was apprised in his

written guilty plea colloquies that by pleading guilty, he was waiving his right

to challenge anything except (1) the voluntariness of the plea, (2) the court’s

jurisdiction, (3) the legality of sentence, and (4) his attorney’s effectiveness.

(See id. at 3). He explained that:

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[Trial Counsel] cannot be ineffective for failing to cross-examine
witnesses at your trial, where you elected to waive your right to a
trial and plead guilty.…

While I understand your issue with respect to your height
and weight versus the police description-and such an issue is
fertile ground for cross-examination–[trial counsel’s] advice was
within “the range of competence” of a criminal defense attorney.
First, the firearm was found within your car. Second, Corporal
North believed he saw you driving the car. Third, your vehicle was
observed by Corporal North in front of your home address. Finally,
the sentence [trial counsel] negotiated for you was below the
standard sentencing guidelines. Under these circumstances, [trial
counsel] provided competent advice to you, even if you now regret
having entered the plea.

The record supports the determination that your plea was
knowing, intelligent, and voluntary. In the guilty plea colloquy,
you indicated what rights you gave up by pleading guilty. (See
N.T. Guilty Plea, at 6; Written Guilty Plea Colloquy, at 5). You
indicated no one forced, threatened, or coerced you into pleading
guilty. (See id.). You also indicated that the decision was of your
free will. (Id.).

With respect to the issue you raised when we spoke about
a county detective coming to see you about your complaints
regarding prison staff, that issue is also without merit. While that
issue could bear on the voluntariness of your decision to pursue
claims against the prison or continue in complaints to the prison
regarding your rights under [the Prison Rape Elimination Act
(PREA)], any statements made to you could not have coerced you
into pleading guilty. In fact, notwithstanding that conversation,
you were prepared to go to trial. Any conversations with prison
staff or a county detective cannot, under these circumstances,
bear on the voluntariness of your plea.

(Id.) (citations omitted).

On January 22, 2020, after reviewing the Turner/Finley letter and

conducting its own independent review, the court issued a Rule 907 notice of

its intention to dismiss the petition without a hearing and permitted counsel

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to withdraw. Hailey filed pro se responses4 in which he maintained that his

central claim was that trial counsel was ineffective for advising him to enter a

guilty plea instead of filing a motion to suppress “evidence of his guilt.”

(Response to Rule 907 Notice, 2/03/20, at 2); (see id. at 1-2). Specifically,

he claimed that his DNA was not on the recovered firearm, his phone records

reveal that he called the Norristown Police Department on the night of the

incident to report his vehicle stolen and the description contained in the police

report of the guilty individual did not look like him. (See id. at 1-2). He also

stated that his plea was not knowing or voluntary because a detective

threatened that if he did not stop filing PREA complaints alleging abuse by a

corrections officer, there would be no deal on the pending criminal case. (See

id.). He did not claim the ineffective assistance of PCRA counsel in any way.

On March 3, 2020, the court dismissed the PCRA petition. Hailey timely

appealed. He was not ordered to file a Rule 1925(b) statement but the PCRA

court filed an opinion. See Pa.R.A.P. 1925.

On appeal,5 Hailey raises two issues for our review:

____________________________________________

4 Hailey filed pro se responses on February 3, 2020, and February 5, 2020.

5 “[A]n appellate court reviews the PCRA court’s findings of fact to determine
whether they are supported by the record and reviews its conclusions of law
to determine whether they are free from legal error. The 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 prevailing party at the trial level.”
Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014),
appeal denied, 104 A.3d 523 (Pa. 2014) (citations omitted).

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I. Whether PCRA counsel rendered ineffective [assistance] by
filing a [Turner/Finley] no-merit letter where there existed
meritorious issue(s)[;]

II. Whether [his] recent discovery of newly-discovered facts
require a remand for an evidentiary hearing[.]

(Hailey’s Brief, at 3, 8).

II.

A.

Hailey maintains that PCRA counsel was ineffective for filing a

Turner/Finley letter because he raised meritorious issues of trial counsel’s

ineffectiveness. The crux of his claim is that, had trial counsel filed a motion

to suppress the evidence that led to his identification, the search of his vehicle

and his arrest instead of advising him to enter a guilty plea, the outcome of

the proceedings would have been different. (See Hailey’s Brief, at 7). From

what we can determine from his rather inartful brief, Hailey is claiming that if

PCRA counsel had done a more thorough investigation, he would have

understood that trial counsel should not have advised him to enter a plea

because there were telephone records showing he called the Norristown Police

Department three times to report his car stolen, DNA evidence did not

inculpate him and a detective told him the district attorney was going to “bury

him” if he filed another PREA complaint. (See id. at 6-7).

1.

We first note that “one is bound by one’s statements made during a plea

colloquy, and may not successfully assert claims that contradict such

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statements.” Commonwealth v. Muhammed, 794 A.2d 378, 384 (Pa.

Super. 2002). Here, Hailey affirmed at his guilty plea colloquy that he was

satisfied with counsel’s representation and that he wanted to plead guilty. On

this basis alone, Hailey is not entitled to relief on either his challenge to trial

counsel’s alleged ineffective assistance in declining to pursue a suppression

motion and advising him to plead guilty or for his allegation that PCRA counsel

was ineffective for acknowledging same. See Muhammed, supra at 384

(concluding appellant was precluded from raising claim that attorney forced

him into pleading guilty where he represented to the court during his guilty

plea colloquy that he was satisfied with counsel’s representation).

Moreover, for the reasons discussed below, even if Hailey were not

precluded from challenging the validity of his plea based on counsel’s

representation, the claim would lack merit.

2.

In addressing an ineffectiveness assistance of counsel claim, we are

guided by the following legal principles. We presume counsel is effective and

an appellant bears the burden to prove otherwise. See Commonwealth v.

Hanible, 30 A.3d 426, 439 (Pa. 2011), cert. denied, 568 U.S. 1091 (2013).

To succeed on an ineffectiveness claim, he must establish by a preponderance

of the evidence that:

(1) [the] underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but

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for counsel’s ineffectiveness, there is a reasonable probability that
the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). The failure to satisfy

any prong of the test requires rejection of the claim. See Commonwealth

v. Martin, 5 A.3d 177, 183 (Pa. 2010), cert. denied, 563 U.S. 1035 (2011).

A criminal defendant has the right to effective counsel
during a plea process as well as during a trial. 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 his 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. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)

(citations and quotation marks omitted). “In determining whether a guilty

plea was entered knowingly and intelligently, a reviewing court must review

all of the circumstances surrounding the entry of that plea.” Commonwealth

v. Allen, 732 A.2d 582, 587 (Pa. 1999). “[T]he decision to litigate, or not

litigate, suppression motions is left to counsel in the exercise of his or her

professional judgment. Strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable.”

Commonwealth v. Johnson, 179 A.3d 1153, 1160 (Pa. Super. 2018)

(citations omitted); see id. at 1160-61 (finding trial counsel provided effective

assistance when she advised client to accept guilty plea instead of further

pursuing previously filed suppression motion where she had reasonable

strategic basis “designed to effectuate Appellant’s interests”).

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3.

Here, the PCRA court found that despite the height and weight

discrepancy in the criminal complaint, there was a substantial basis to

conclude that probable cause existed to support the search warrant for

Hailey’s vehicle, which resulted in the recovery of the evidence used against

him at trial. (See PCRA Ct. Op., at 6-7). The affidavit of probable cause

included Corporal North’s eyewitness identification of Hailey as the driver of

the red Buick, his observation of Hailey fleeing the scene when the officer

approached the vehicle, and confirmation that the vehicle, which was parked

outside his home, was registered to him. A K-9 sniff of the car indicated the

presence of narcotics. Hailey had a criminal history of drug and weapons

violations and a confidential informant who had worked with the Norristown

Police Department previously advised that Hailey owned the red Buick and

possessed a handgun.

Based on all the foregoing, the PCRA court concluded, and we agree,

that “the Norristown Police provided the magistrate with a substantial basis to

conclude probable cause existed for the issuance of a search warrant.” (PCRA

Ct. Op., at 6); see also Commonwealth v. Torres, 764 A.2d 532, 537-38

(Pa. 2001) (totality of the circumstances is considered in “common sense,

non-technical manner” when determining if police had probable cause);

Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (informant’s tip may

constitute probable cause when he has provided reliable information in the

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past). Hence, even if trial counsel had filed a motion to suppress the search

warrant, it would have lacked merit and the outcome of the proceedings would

not have been any different.

Moreover, counsel’s advice to enter the negotiated guilty plea rather

than pursue the suppression motion based on inconsistencies in the

identification, the inconclusive DNA evidence and Hailey’s claim that he

reported his car stolen on the evening of the incident, was reasonably

designed to effectuate Hailey’s interests. Hailey faced six charges had he gone

to trial. His counsel negotiated a plea wherein the Commonwealth withdrew

five of the charges and agreed to a sentence below even the mitigated range

for possession of a firearm prohibited. Therefore, counsel had a reasonable

strategic basis “designed to effectuate [Hailey’s] interests” for not pursuing a

motion to suppress. Johnson, supra at 1161 (citation omitted).

4.

Next, Hailey claims that PCRA counsel was ineffective in filing a

Turner/Finley letter because, had he done further investigation, he would

have discovered the “questionable affidavit of probable cause,” telephone

records that reveal he called the Norristown Police Department three times to

report his car stolen, and the DNA report that reflected his DNA was not

identified on the weapon. (Hailey’s Brief, at 5-7).

First, the claims of PCRA counsel’s ineffectiveness are waived because

Hailey failed to raise the issue in his pro se response to the Rule 907 notice.

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See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa. Super. 2012)

(waiving appellant’s claim of PCRA counsel ineffectiveness raised for the first

time on appeal because “when counsel files a Turner/Finley no-merit letter

to the PCRA court, a petitioner must allege any claims of ineffectiveness of

PCRA counsel in a response to the court’s notice of intent to dismiss.”) (citation

omitted).

Moreover, the claim would not merit relief. At the time he advised Hailey

to enter a guilty plea, trial counsel was aware of the affidavit, DNA records

and Hailey’s claim that his car was stolen on the evening of the incident. Thus,

because we already found that trial counsel was not ineffective for advising

Hailey to enter a guilty plea instead of pursuing a motion to suppress, PCRA

counsel will not be found ineffective on this basis. See Commonwealth v.

Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012), appeal denied, 64 A.3d 631

(Pa. 2013) (If trial “attorney was effective, then subsequent counsel cannot

be deemed ineffective for failing to raise the underlying issue.”).6

____________________________________________

6 We also note that Hailey’s claim that PCRA counsel was ineffective because
he found Hailey’s allegation regarding threats to stop filing PREA complaints
did not render his guilty plea involuntary likewise fails. First, at the guilty plea
hearing, Hailey expressly testified that he was not threatened or coerced into
entering the plea. Furthermore, he did not raise any allegation that his plea
was coerced in his PCRA petition. For both reasons, he is not entitled to relief
on this allegation. Moreover, as noted by PCRA counsel, the alleged threat to
stop filing PREA complaints or else his plea deal would be revoked and he
would be “buried” goes to whether any decision not to file further complaints
would be coerced, not to whether he voluntarily entered the guilty plea.

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B.

Hailey’s second issue is merely an alternate argument in support of his

claim that counsel rendered ineffective assistance in advising him to enter a

guilty plea, and that PCRA counsel is ineffective for concluding that trial

counsel provided reasonable advice; ignoring the fact that he admitted to and

apologized for possessing the prohibited firearm. Specifically, he maintains

that he is qualified for relief under the “newly-discovered fact exception to the

PCRA time limitations” and that counsel was ineffective for not discovering

these facts sooner and instead advising him to plead guilty. (See Hailey’s

Brief, at 8-9). Hailey alleges that in July 2020, he asked his father if there

were cell phone records for August 27, 2017, the night Corporal North

observed him driving the Buick. He believed they would provide evidence that

he had called the Norristown Police Department that evening to report his car

stolen and that, therefore, he could not have been the one driving and in

possession of the firearm. (See Hailey’s Brief, at 8). He avers that he told

trial counsel that he had called the police that night and that the phone

records, coupled with the lack of DNA on the firearm, “tends to prove that

[he] did not commit the crimes in question.” (See id.). Thus, he argues,

counsel rendered ineffective assistance when he failed to discover these phone

records sooner and instead advised him to plead guilty.

[T]he newly-discovered facts exception to the time limitations of
the PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct from
the after-discovered evidence basis for relief delineated in 42
Pa.C.S. § 9543(a)(2). To qualify for an exception to the PCRA’s

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time limitations under subsection 9545(b)(1)(ii), a petitioner need
only establish that the facts upon which the claim is based were
unknown to him and could not have been ascertained by the
exercise of due diligence. However, where a petition is otherwise
timely, to prevail on an after-discovered evidence claim for relief
under subsection 9543(a)(2)(vi), a petitioner must prove that (1)
the exculpatory evidence has been discovered after trial and could
not have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel
a different verdict.

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (citation omitted).

We note first that Hailey’s petition was not untimely because it was filed

within one year of the date on which his judgment of sentence became final.

See 42 Pa.C.S. § 9545(b)(1) making his reliance on the newly-discovered

facts exception to the PCRA timeliness requirements misplaced. Moreover, he

is not entitled to relief under the after-discovered evidence theory because he

provides no explanation for why he could not have discovered this evidence

before he pleaded guilty since they were records from his own cell phone.

Finally, as stated previously, the notes of testimony evidence establish

that Hailey admitted to the facts underpinning his arrest and that he was

pleading guilty of his own free will. Further, trial counsel had a reasonable

basis for recommending Hailey enter a guilty plea where the Commonwealth

nolle prossed most of the charges against him and he was sentenced well

below the standard guideline range. For all of these reasons, Hailey is not

entitled to relief under a theory of either newly-discovered facts or after-

discovered evidence to set aside his guilty plea.

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Accordingly, we conclude that the record supports PCRA counsel’s

withdrawal and the PCRA court’s denial of the petition where “counsel’s advice

was within the range of competence demanded of attorneys in criminal cases.”

Hickman, supra at 141 (citations omitted); see also Charleston, supra at

1018-19. Hailey’s claims lack merit.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/21

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