Com. v. Hall, A.

J-S33023-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY HALL :
:
Appellant : No. 3038 EDA 2018

Appeal from the PCRA Order Entered September 17, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004897-2016,
CP-51-CR-0008176-2012

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 16, 2020

Anthony Hall (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.

While on probation, Appellant was arrested and charged with various

firearm offenses. On November 14, 2016, Appellant entered a negotiated

guilty plea to possession of a firearm prohibited and possession of a firearm

with manufactured number altered.1 In exchange for his plea, the

Commonwealth consolidated Appellant’s probation violation case with the

instant matter. Consistent with the terms of the plea agreement, the trial

court, on November 14, 2016, sentenced Appellant in both cases to an
____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6106(a)(1) and 6108.
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aggregate 3 to 10 years of incarceration. Appellant did not file post-sentence

motions or a direct appeal.

On September 5, 2017, Appellant filed a timely pro se PCRA petition.

Counsel was appointed, and subsequently filed an amended petition on May

3, 2018, alleging that Appellant’s plea counsel was ineffective. On July 5,

2018, the Commonwealth filed a motion to dismiss Appellant’s petition as

meritless. The PCRA court issued notice of its intent to dismiss Appellant’s

petition pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure

on July 10, 2018. For reasons unclear from the record, the PCRA court issued

a second notice pursuant to Rule 907 on August 17, 2018. Neither Appellant

nor his counsel filed a response to the Rule 907 notice or attempted to raise

additional issues. On September 17, 2018, the PCRA court granted the

Commonwealth’s motion to dismiss and formally dismissed Appellant’s

petition. The order did not inform Appellant of his right to appeal, the time

period within which he had to file a notice of appeal, or the need to file

separate notices of appeal, and there is no indication elsewhere in the record

that Appellant was advised of his appellate rights.

On October 15, 2018, Appellant filed a timely, single notice of appeal

that listed both docket numbers involved in this case. The PCRA court issued

an order pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied. On

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January 24, 2020,2 pursuant to Commonwealth v. Walker, 185 A.3d 969

(Pa. 2018), this Court issued a rule to show cause why the appeal should not

be quashed. In Walker, our Supreme Court instructed that “where a single

order resolves issues arising on more than one docket, separate notices of

appeal must be filed for each case,” or the appeal will be quashed. Id. at 971,

976-77. The Supreme Court applied this holding prospectively to notices of

appeal filed after June 1, 2018.

As stated above, Appellant filed his notice of appeal on October 15,

2018, and thus, Walker applies. The appeal before us is from a single order

resolving issues arising on two docket numbers. Appellant did not file a

response to this Court’s rule to show cause. On April 1, 2020, we discharged

the rule to show cause and deferred the issue to this panel.

Upon review, we decline to quash this appeal pursuant to Walker

because the record – not a model of clarity – does not reflect that the PCRA

court advised Appellant of his right to appeal and the need to file separate

notices of appeal.3 See Pa.R.Crim.P. 907(4); Commonwealth v. Larkin, --

A.3d --, 2020 WL 3869710, at *2 n.2, *3 (Pa. Super. 2020) (en banc) (stating,

____________________________________________

2 It appears from the record that significant delay in the appellate proceedings
resulted from the PCRA court’s failure to promptly remit the lower court record
to this Court.

3 “It is well-settled that this Court may only consider items which have been
included in the certified record and those items which do not appear of record
do not exist for appellate purposes.” In re J.F., 27 A.3d 1017, 1023 n.10
(Pa. Super. 2011) (quoting Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa. Super.
2008)).

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“we may overlook the requirements of Walker where, as here, a breakdown

occurs in the court system, and a defendant is” not informed of his appellate

rights); see also Commonwealth v. Rohades, 2020 WL 6285217, at *2

(Pa. Super. Oct. 27, 2020) (unpublished memorandum) (declining to quash

appeal pursuant to Walker where PCRA dismissal order “did not inform

Appellant of his right to appeal, the time period within which he had to file a

notice of appeal, or the need to file separate notices of appeal”).4 We thus

turn to the merits of Appellant’s issues, which he presents as follows:

A. Did the PCRA [c]ourt err as a matter of law by denying
[Appellant’s] PCRA petition, without a hearing where the issues
alleged, if proven, would entitle him to relief?

B. Did the PCRA [c]ourt err as a matter of law by denying
[Appellant’s] petition without a hearing where his claim of
ineffective assistance of counsel contains at least arguable
merit in that Plea Counsel failed to inform him that the
Pennsylvania Supreme Court was, at the time of his plea,
considering whether evidence suppressed at trial could be used
against a defendant in a violation of probation and/or parole
hearing, thus rendering him unable to knowingly, voluntarily,
or intelligently forgo his right to trial?

C. Did the PCRA [c]ourt err as a matter of law by denying
[A]ppellant’s PCRA petition without a hearing where his claim
of ineffective assistance of counsel contains at least arguable
merit in that Plea Counsel failed to discuss with him, sua
sponte, whether he wished to file a post-sentence motion to
withdraw his guilty plea or file a direct appeal because the
issues presented in his case were being decided by the
Pennsylvania Supreme Court?

Appellant’s Brief at 3-4.
____________________________________________

4 Non-precedential decisions filed after May 1, 2019 may be cited for their
persuasive value pursuant to Pa.R.A.P. 126(b). See 210 Pa. Code § 65.37.

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Appellant’s claims of ineffective assistance of counsel in connection with

advice rendered during his guilty plea are cognizable under the PCRA pursuant

to 42 Pa.C.S.A. § 9543(a)(2)(ii). See Commonwealth v. Lynch, 820 A.2d

728, 731-32 (Pa. Super. 2003) (“If the ineffective assistance of counsel

caused the defendant to enter an involuntary or unknowing plea, the PCRA

will afford the defendant relief.”); Commonwealth v. Rathfon, 299 A.2d

365, 369 (Pa. Super. 2006). 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.

Appellant challenges Plea Counsel’s effectiveness. 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 the 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). If the petitioner fails to

prove any of these prongs, the claim is subject to dismissal. Id.

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The right to constitutionally effective assistance of counsel extends to

counsel’s role in guiding his client with regard to the consequences of entering

into a guilty plea. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super.

2012). “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.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation

omitted). “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.” Id.

(quotations and citations omitted). “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

With respect to valid guilty pleas, this Court has explained:

A valid guilty plea must be knowingly, voluntarily and intelligently
entered. The Pennsylvania Rules of Criminal Procedure mandate
that pleas be taken in open court, and require the court to conduct
an on-the-record colloquy to ascertain whether a defendant is
aware of his rights and the consequences of his plea. Specifically,
the court must affirmatively demonstrate the defendant
understands: (1) the nature of the charges to which he is pleading
guilty; (2) the factual basis for the plea; (3) his right to trial by

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jury; (4) the presumption of innocence; (5) the permissible ranges
of sentences and fines possible; and (6) that the court is not
bound by the terms of the agreement unless the court accepts the
agreement. This Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining
the totality of the circumstances surrounding the entry of that
plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted); see also Pa.R.Crim.P. 590.

Here, Appellant initially rejected a plea offer and filed a motion to

suppress the firearms recovered by police. Subsequently, however, he

withdrew his motion to suppress and pled guilty. In each of his three issues,

Appellant argues that Plea Counsel provided ineffective assistance by failing

to inform Appellant that the Pennsylvania Supreme Court had granted

allocatur in Commonwealth v. Arter, 151 A.3d 149 (Pa. 2016). In Arter,

the Pennsylvania Supreme Court held that, under Article 1, Section 8 of the

Pennsylvania Constitution, the exclusionary rule applies to parole revocation

proceedings. Specifically, the Court held that evidence properly suppressed

in a criminal proceeding is inadmissible under the exclusionary rule in a parole

revocation proceeding. The Court concluded:

[A]pplication of the exclusionary rule to revocation proceedings is
in accord with this Court’s consistent and repeated emphasis that
the primary purpose of the exclusionary rule under Article I,
Section 8, is protecting the individual privacy rights of our citizens,
as opposed to deterring police misconduct. This purpose is equally
applicable to criminal proceedings and revocation proceedings.

Id. at 167 (citation omitted).

As it is undisputed that there was no reasonable suspicion for the
parole officer's warrantless search of Appellant, we hold that,

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pursuant to Article I, Section 8 of the Pennsylvania Constitution,
the evidence seized as a result of the search was inadmissible at
Appellant’s parole revocation proceedings, and, thus, Appellant’s
motion to suppress filed with respect to those proceedings should
have been granted.

Id. Although the Supreme Court had not decided Arter at the time Appellant

entered his plea, he asserts that counsel was nonetheless ineffective for failing

to advise him that Arter was pending. Appellant contends he “should have

been made aware of [Arter] prior to deciding whether to withdraw his motion

[to suppress] and enter a guilty plea.” Appellant’s Brief at 11-12.

Appellant’s claim lacks arguable merit. It is well-settled that the

adequacy of counsel’s representation will be assessed based on the law as it

existed at the time of the representation. Commonwealth v. Pizzo, 602 A.2

823 (Pa. 1992); see also Commonwealth v. Johnson, 532 A.2d 796 (Pa.

1987); Commonwealth v. Brewer, 388 A.2d 1071 (Pa. 1978). Counsel

cannot be found ineffective for failing to foresee or predict changes in the law.

Commonwealth v. Gribble, 863 A.2d 455, 464 (Pa. 2004). Importantly,

Appellant does not claim that counsel misinformed him of the applicable law

at the time of his plea, and the record reflects that counsel fully apprised

Appellant of the law as it existed at the time of the plea.

Furthermore, Appellant has not alleged – in either his PCRA petition or

appellate brief – that but for Plea Counsel’s failure to inform him regarding

Arter, “he would not have pleaded guilty and would have insisted on going to

trial.” Barndt, 74 A.3d at 192. Rather, Appellant only asserts that he should

have been made aware of the pending case. Appellant has also failed to

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establish the prejudice prong for ineffective assistance of counsel. Id. (stating

that the prejudice prong “focuses on whether counsel’s constitutionally

ineffective performance affected the outcome of the plea process”).

In sum, Appellant’s claims are without merit and the PCRA court

properly dismissed Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/20

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