J-S36010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEVIN LEEMON HARRIS
Appellant No. 1814 MDA 2015
Appeal from the PCRA Order September 24, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000150-2014
BEFORE: DUBOW, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED AUGUST 23, 2016
Appellant, Kevin Leemon Harris, appeals from the order dismissing his
initial petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court, which also presided over the underlying proceedings
in this matter, summarized the pertinent factual and procedural history of
this case as follows:
On August 25, 2014, [Appellant] entered a guilty plea to
one count of the following offenses: Aggravated Assault
with a Deadly Weapon (18 Pa.C.S.A. § 2702(a)(4)),
Persons Not to Possess/Use Firearms (18 Pa.C.S.A. §
6105(a)(1), Terroristic Threats (18 Pa.C.S.A. §
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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2706(a)(1)), Simple Assault by Physical Menace (18
Pa.C.S.A. § 2701(a)(3)) and Recklessly Endangering
Another Person (18 Pa.C.S.A. § 2705)). [Appellant] was
sentenced to 5 to 10 years[‘] incarceration on Count 2
Person Not to Possess/Use Firearms. [Appellant] received
concurrent sentences on all the remaining counts. The
sentence imposed was concurrent to a sentence of 27 to
54 months that [Appellant] received on June 18, 2014 on a
charge of aggravated assault in Case 1491-2013.
On June 16, 2015, [Appellant] filed the within petition
for post-conviction collateral relief asserting that he had
been denied constitutional protections resulting in the
impossibility of a reliable adjudication of guilt,
ineffectiveness of counsel, that he had been unlawfully
induced to enter a guilty plea and the imposition of a
sentence greater than the lawful maximum. . . .
This Court appointed counsel, other than trial counsel,
to represent [Appellant] on his post-conviction proceeding
and gave appointed counsel an opportunity to amend the
pro se petition of [Appellant]. On July 9, 2015, the
Commonwealth filed a response to [the] motion for post-
conviction collateral relief requesting that the petition be
dismissed because [Appellant] was not sentenced to a
mandatory minimum sentence. On August 13, 2015, this
Court issued a notice pursuant to Pa. R. Crim. P. 907 and
proposed order that the petition was going to be
dismissed.
On August 14, 2015, [the PCRA] court appointed
counsel for [Appellant, who] filed an amended petition for
post-conviction collateral relief where [Appellant] alleges
facts to support his claim that he is entitled to relief
because his guilty plea was both unlawfully induced and
the guilty plea was the result of ineffective assistance of
counsel leading to an unknowing guilty plea. . . . By Order
of Court dated August 17, 2015, this Court scheduled an
evidentiary hearing for September 10, 2015. . . .
***
At the evidentiary hearing conducted before this Court the
testimony presented by [Appellant] and the testimony
presented by the Commonwealth, through guilty plea
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counsel Andrea Thompson, was not reconcilable as to
significant issues in the case. [Appellant] testified that he
did not want to enter a plea and he wanted to go to trial.
[Appellant] testified that he picked a jury and was set to
go to trial but on the day of the trial he decided to plead
guilty because he did not feel his trial counsel was
prepared because she did not have any witnesses.
[Appellant] testified that his brother, Kashif Harris, and his
mother, Beverly Edwards, would have testified at trial that
the gun that he was convicted of possessing on the day of
the incident was possessed by someone else.
[Appellant] also presented the testimony of his brother,
Kashif Harris. Kashif Harris testified that he would have
been a witness for his brother but he was never contacted
by the Public Defender's Office. Kashif Harris testified that
he would have testified at trial that someone else was in
possession of the firearm in question on the day of the
incident. Kashif Harris testified that he took clothing to the
Public Defender's Office but he never spoke to Attorney
Andrea Thompson about his brother's case.
The Commonwealth presented the testimony of
[Appellant’s] plea counsel, Attorney Andrea Thompson.
The testimony of Attorney Thompson painted a completely
different picture of the day of the trial when [Appellant]
decided to plead guilty. Attorney Thompson stated that
the reason that [Appellant] wanted to go to trial was that
he did not believe that the victim in the case, who was his
Aunt, was going to show up for trial. On the day of the
trial, the victim was present and Attorney Thompson
discussed with [Appellant] whether he was interested in
pleading guilty. Attorney Thompson testified that she was
able to get the District Attorney’s Office to agree to the
original plea deal where [Appellant] would receive the
minimum sentence of 5 to 10 years on the charge of
persons not to possess a firearm and to have all the other
charges run concurrent. The plea agreement negotiated
with the District Attorney also called for this sentence to be
concurrent to another aggravated assault case where
[Appellant] pleaded guilty two months prior and was
sentenced to 27 to 54 months.
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Attorney Thompson also testified that she was prepared to
go to trial on the day in question. She testified that the
defense was hoping the victim would not show up but
when the victim showed up she advised [Appellant] he
may want to consider entering a guilty plea. Attorney
Thompson testified that [Appellant] was in agreement to
enter a guilty plea on the day of the trial and that she went
over with [Appellant] the guilty plea colloquy and
[Appellant] answered all of the questions and was in
agreement that he wanted to enter the guilty plea.
Attorney Thompson also testified to refute [Appellant’s]
testimony that she did not speak to [Appellant’s] witnesses
prior to trial. Attorney Thompson testified that she did
speak, several weeks prior to trial, with [Appellant’s]
brother and mother to see if they had any information that
would be helpful to [Appellant].
Attorney Thompson testified that she spoke to Kashif
Harris several times. Attorney Thompson testified that
Kashif Harris informed her that he did not know who
possessed the firearm on the day of the incident. She
testified that Kashif Harris’ testimony would not be
favorable to [Appellant] but that she kept his phone
number in case something came up in trial that she
thought Kashif Harris’ testimony would be beneficial.
Attorney Thompson also testified that she spoke to
[Appellant’s] mother and that she was adamant that she
did not want to be involved in the trial and did not want to
testify in the case.
PCRA Court Opinion, 9/24/15, at 1-6.
The PCRA court denied Appellant’s petition on September 24, 2015. In
doing so, the court explained that “[s]imply stated the Court did not find the
testimony of [Appellant] or his brother credible,” whereas the “events
testified to by Attorney Thompson” were “believable.” Id. at 9, 7. The court
did not find counsel’s representation of Appellant ineffective in any manner.
On appeal, Appellant raises the following issue:
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Whether the [PCRA] Court committed reversible error
when it concluded that the Appellant’s guilty plea was
knowingly, voluntarily and intelligently entered, when in
fact, the Appellant was effectively coerced into pleading
guilty due to the fact that his attorney was not prepared to
effectively represent him at trial[?]
Appellant’s Brief at 19.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is “to determine whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d
185, 191-92 (Pa. Super. 2013) (internal citations omitted).
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. Payne, 794 A.2d 902, 905 (Pa. Super. 2002). 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 905-06. In this context, a finding of “prejudice” requires
the petitioner to show “there is a reasonable probability that, but for the
error of counsel, the outcome of the proceeding would have been different.”
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Commonwealth v. Stevens, 739 A.2d 507, 512 (Pa. 1999). The law
presumes that counsel was effective, and it is the petitioner’s burden to
prove the contrary. Payne, 794 A.2d at 906.
It is clear that a criminal defendant’s right to effective
counsel extends to the plea process, as well as during trial.
However, [a]llegations 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. Wah, 42 A.3d 335, 338-339 (Pa. Super. 2012)
(citations, quotation, and quotation marks omitted).
“[T]he law does not require that [the defendant] be pleased with the
outcome of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily, and intelligently
made.” Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa. Super.
2010). Moreover, with regard to the prejudice prong, where an appellant
has entered a guilty plea, the appellant must demonstrate “it is reasonably
probable that, but for counsel's errors, he would not have pleaded guilty and
would have gone to trial.” Commonwealth v. Timchak, 69 A.3d 765,
769–70 (Pa. Super. 2013).
Here, Appellant claims he entered his plea of guilty because he did not
believe his counsel was adequately prepared for trial. When asserting a
claim of ineffectiveness of counsel in the context of a guilty plea, a
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defendant must show that plea counsel’s ineffectiveness induced him to
enter the plea. Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa.
Super. 2005). On the question of ineffectiveness, this Court “must defer to
the credibility determinations made by the [PCRA] court that observed a
witness’s demeanor first hand.” Commonwealth v. Todd, 820 A.2d, 707
712 (Pa. Super. 2003). If the PCRA court credits the testimony of counsel
over that of the defendant at an evidentiary hearing, this determination
cannot be disturbed on appeal. See Commonwealth v. Battle, 883 A.2d
641, 648 (Pa. Super. 2005) (credibility determinations are solely within the
province of the PCRA court).
Appellant contends that his trial counsel was ineffective because she
did not provide him with discovery while he was incarcerated so that he
could assist in the preparation of his defense; did not contact his brother,
Kashif Harris, or his mother, Beverly Edwards, to testify on his behalf; and
was generally unprepared for his trial. All of the foregoing, he maintains, led
him to feel he “had no choice but to plead guilty.” Appellant’s Brief at 23-
24. He therefore seeks to withdraw his plea and proceed to trial.
Upon review, we find Appellant’s claims to be meritless. The PCRA
court’s in-person credibility determinations are dispositive, particularly in
light of the fact that the PCRA judge presided over Appellant’s guilty plea, as
well as the evidentiary PCRA hearing. See N.T., 8/25/14; 9/10/15. The
PCRA court twice observed both Appellant and counsel, and ultimately found
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the testimony of trial counsel to be credible. Cf. Todd; Battle. As noted,
the court credited Appellant’s trial counsel and did not credit Appellant and
Appellant’s witnesses:
Simply stated, we afford no credibility to the testimony of
the defendant and find the events testified to by Attorney
Thompson to be believable. We do not believe that at any
time Attorney Thompson induced the defendant to plead
guilty. To the contrary, the written guilty plea colloquy and
the oral colloquy before this Court suggests otherwise. The
defendant acknowledged his guilt in the written colloquy
and before this Court; and now wants to refute the
assertion of guilt. A defendant is bound by his statements
given during a plea colloquy and record evidence rebutting
claims concerning a plea agreement's voluntariness will
cause the petition to be dismissed. Commonwealth v.
Cappelli, 340 Pa. Super. 9, 489 A.2d 813 (1985). In light
of the defendant's admissions to this Court directly, as well
as the admissions and acknowledgements within the
written guilty plea, one thing is clear: the defendant lied at
some point in time. Thus, he either lied to the Court at the
time of the guilty plea or is lying now.
PCRA Court Opinion, 12/9/15, at 7-8.
In sum, we discern no legal error relative to the PCRA court’s
determinations as to Appellant’s guilty plea and assertion of trial counsel’s
ineffectiveness, and we are bound by the PCRA court’s findings. We
therefore affirm the PCRA court’s order denying Appellant post-conviction
relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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Com. v. Harris, K.
Combined Opinion