Com. v. Harrison, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JIHAAD AMORE HARRISON :
:
Appellant : No. 728 WDA 2021
Appeal from the PCRA Order Entered June 8, 2021
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000107-2019
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 28, 2022
Jihaad Amore Harrison (Harrison) appeals from the June 8, 2021 order1
of the Court of Common Pleas of Mercer County (PCRA court) denying his
petition pursuant to the Post-Conviction Relief Act (PCRA).2 We affirm.
I.
We glean the following facts from the certified record. On December
16, 2019, Harrison pled guilty to rape, aggravated assault, strangulation,
kidnapping, robbery and three counts of involuntary deviate sexual
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* Retired Senior Judge assigned to the Superior Court.
1 The PCRA court orally denied the petition on the record at the conclusion of
the evidentiary hearing on June 4, 2021. The written order denying the
petition was docketed on June 8, 2021.
2 42 Pa.C.S. §§ 9541 et seq.
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intercourse (IDSI) in exchange for a sentence of 20 to 50 years’ incarceration.3
In addition, the Commonwealth nolle prossed another case pending against
Harrison and agreed not to file charges related to “recent conduct in the
Mercer County Jail involving drugs.” See Order, 12/16/19, at 2. He agreed
to pay restitution in the instant case and to be joint and severally liable for
restitution with his alleged co-defendant in the withdrawn case. The
Commonwealth did not pursue a mandatory minimum sentence pursuant to
the Habitual Offender Statute, 42 Pa.C.S. § 9714.
At his plea hearing, the trial court asked Harrison whether he had viewed
a video at the jail prior to the hearing that explained his plea rights. Harrison
testified that he had seen the video, understood his rights and did not have
any questions. He confirmed that he had discussed the matter with his
attorney and understood the consequences of pleading guilty. He said that
he was taking medication to treat mental health conditions but they did not
impair his ability to understand the proceedings. He said he had not taken his
morning medications but that he fully understood the proceedings. He
understood that because he was on state parole, his sentence would be served
consecutively to any sentence in that case.
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3 18 Pa.C.S. §§ 3121(a)(2), 2702(a)(1), 2718(a)(1), 2901(a.1)(3),
3701(a)(1)(i) & 3123(a)(2).
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Harrison confirmed he understood the terms of the plea. The trial court
explained the elements of each of the crimes and Harrison’s attorney
questioned him about the specific facts of the case. He admitted to raping the
17-year-old victim and causing serious bodily injury to her, strangling her with
a cord, committing three acts of IDSI and stealing her cell phone.
Harrison testified that he was satisfied with trial counsel’s
representation. He confirmed that he had testified truthfully, that no one had
told him what to say, threatened him or coerced him, and that he understood
the proceedings and wanted to enter his plea. The trial court accepted the
plea and sentenced Harrison in accordance with the agreement. The trial court
explained his post-sentence and appellate rights on the record prior to
imposing the sentence and he did not file a direct appeal.
On September 11, 2020, Harrison filed a timely pro se PCRA petition
alleging ineffective assistance of trial counsel and that his guilty plea was
unlawfully induced.4 As the factual basis for relief, Harrison wrote that trial
counsel had “engage[d] in a fiscal transaction and a mutual exchange of
evidence and documentation from [his] personal file and the court[’]s file of
records.” Post-Conviction Relief Act Petition, 9/11/20, at 5. He claimed that
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4 Harrison was first represented by the Mercer County Office of the Public
Defender and then by appointed private counsel. Those attorneys withdrew
due to conflicts of interest. His ineffectiveness claims relate only to his third
attorney who represented him through the plea and sentencing process.
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trial counsel insisted that he plead guilty to avoid a life sentence and assured
him the matter could be reopened on appeal. He said that trial counsel did
not “provide a full and sincere effort in [his] defense” and that he had not
been provided with his discovery. Id. at 7.
The PCRA court appointed counsel on September 15, 2020, who did not
file an amended petition. Harrison filed a pro se amended petition on May 3,
2021, alleging that because of trial counsel’s ineffectiveness, his guilty plea
was not knowingly, voluntarily and intelligently entered.5 He contended that
trial counsel did not provide him with his discovery so he did not have enough
information to enter a plea. He said that trial counsel falsely told him that he
would receive a life sentence if convicted at trial. Finally, he claimed that trial
counsel and the prosecutor had “engaged in coercive and unconstitutional
misconduct.” Petitioner’s Amended PCRA Petition, 5/3/21, at 2.
The PCRA court held an evidentiary hearing on June 4, 2021, at which
Harrison and trial counsel testified. Harrison testified that he met with trial
counsel three times at the jail prior to entering his plea and that counsel had
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5 It is well-established that there is no right to hybrid representation and any
pro se filings by a represented party are a legal nullity. See Commonwealth
v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011). At the evidentiary hearing,
counsel adopted and litigated the issues raised in the amended petition and
the PCRA court subsequently ruled on the merits of those issues. A PCRA
court may allow amendment of a petition at any time and amendment “shall
be freely allowed to achieve substantial justice.” Pa. R. Crim. P. 905(A).
Because the PCRA court exercised its discretion to accept the amended
petition as filed, we decline to find this issue waived.
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always advised him to enter a plea. Trial counsel informed him that DNA
evidence linked him to the crime, but he did not have that evidence re-tested.
They also did not discuss the strength of the Commonwealth’s witnesses.
Harrison testified that trial counsel did not know of his mental illnesses
and medications and had never discussed filing a notice of mental infirmity as
part of his defense. He had been treated for post-traumatic stress disorder,
bipolar disorder, schizophrenia and attention deficit hyperactivity disorder and
had been abused in the past. Trial counsel did not request a psychiatric
evaluation or his prior psychiatric records in preparation of his defense.
Harrison also testified that an investigator had been appointed for the
case but he had never been contacted by the investigator.6 He did not know
if the investigator took any action on the case and trial counsel did not discuss
the investigation with Harrison. He believed that video footage should have
been recovered from the scene of the crime. He also claimed that the
investigator did not investigate the victim’s physical injuries, which Harrison
believed did not match her description of the crime or her credibility and
alleged mental illness. He testified that when he asked trial counsel about the
investigation, he only reiterated that the Commonwealth had recovered
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6 Harrison’s second appointed counsel filed a motion to appoint an investigator
prior to withdrawing. The trial court granted the motion and assigned an
investigator from the Office of the Public Defender to the case.
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Harrison’s DNA from the victim. Trial counsel did not review the discovery in
the case with him despite multiple requests.
Even though he testified that he understood his plea and sentencing
rights at the hearing, Harrison said he pled guilty only because trial counsel
had promised to continue the investigation through a direct appeal. He
believed that this investigation would lead to a new trial or dismissal of the
charges. He testified that trial counsel told him he would have 30 days to
rescind the plea, and that he only entered the plea because he believed there
would be an additional investigation thereafter. However, trial counsel did not
file the appeal or contact him at all after the hearing.
On cross-examination, Harrison testified that he still believed there had
been a monetary exchange between his attorney and the prosecutor, but he
accepted PCRA counsel’s advice not to pursue that claim. He said that in
addition to meeting with trial counsel at the jail, he spoke to him briefly at
four or five court dates. He said that he never reviewed the discovery with
trial counsel but had seen some of the pictures taken of the victim when he
met with his prior appointed counsel.
He agreed that he had watched a video explaining his plea and
sentencing rights before his hearing, and that he had testified that he
understood his plea and had discussed the matter with trial counsel. At that
time, he said he was satisfied with trial counsel’s services and had not been
promised anything outside of the terms of the plea that had been placed on
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the record. However, he still believed trial counsel would be filing an appeal
and continuing the investigation. He said that trial counsel told him he would
receive a life sentence if he did not plead guilty.
The PCRA court then questioned Harrison regarding his colloquy.
Harrison affirmed that he understood the appeal rights that had been
explained to him in the video, specifically, that he could appeal issues related
to his sentence, the trial court’s jurisdiction and whether his plea was
voluntary, knowing and intelligent. On redirect examination, Harrison testified
that he spoke with trial counsel after viewing the video. He believed trial
counsel’s advice was correct as to the specific circumstances of his case even
though it differed from what was said in the video.
On recross examination, Harrison admitted that due to the conflicting
information in the video and from counsel, he was not certain of what his
rights were when he entered the plea but he chose to credit trial counsel’s
advice. He said that he testified truthfully at the time that he understood
everything that had been explained in the video, but that trial counsel’s advice
was more detailed and specific to his case.
Next, the Commonwealth called trial counsel as a witness. He testified
that he had been practicing law for over nine years and that approximately 55
to 60 percent of his practice was criminal. He had represented between 750
and 900 criminal defendants and had tried one case to a jury. He was
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appointed to Harrison’s case in July 2019 and represented him through his
plea and sentencing in December 2019.
Trial counsel testified that he received the discovery packet after his
appointment but he could not recall whether he picked it up from the district
attorney’s office or from the jail. He said that a copy of the discovery was
kept at the jail and Harrison would have been able to review it through his
counselor. Prior counsel had told him that Harrison had already reviewed the
discovery. He said that packet included the criminal complaint, photos and
police reports, but he received the DNA report later. He said that he does not
provide copies of discovery to clients in jail, which was common practice for
defense attorneys in the county.
Trial counsel testified that he met with Harrison three or four times at
the jail and five to seven times at various court dates. He said that he
reviewed all the discovery with Harrison, including photos, police reports and
the DNA report. Harrison had never told him that he did not see the discovery
materials. Trial counsel believed the negotiated plea was in Harrison’s best
interests based on the evidence against him and the severity of the charges.
He said that if Harrison had been convicted and sentenced consecutively, he
would have received an effective life sentence.
Trial counsel said that he believed Harrison understood the terms and
consequences of the plea. He discussed mental health with Harrison during
one of their meetings at the jail, but he did not think there were any issues
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that would require a motion or further examination. He said Harrison always
appeared lucid and forthright. He explained various issues that could be
appealed if they proceeded to trial, but did not discuss any appeal that would
follow a plea. He could not recall whether Harrison contacted him about filing
an appeal after the plea and sentencing hearing.
On cross-examination, trial counsel testified that he did not conduct any
independent investigation other than reviewing the evidence in discovery. He
knew that an investigator had been appointed and briefly spoke to prior
counsel about the investigation. She told him that the investigator had not
found anything of interest. He did not recall receiving a report from the
investigator or whether he asked about the scope of the investigation.
On redirect, trial counsel testified that if Harrison had asked him to file
an appeal, he was not certain that he would have complied. He said that the
plea was appropriate for the case and any appeal would have been frivolous.
He did not recall Harrison ever requesting an appeal and never told Harrison
he would file an appeal following the plea.
Harrison testified once again on rebuttal. He said that by the time he
contacted his counselor to see his discovery at the jail, his attorney had picked
it up. He did not know the discovery had been there until after his attorney
had retrieved it, so he never reviewed it on his own. He said that he would
not have been permitted to see the photos that were kept on CD. Harrison
testified that trial counsel reviewed the DNA report with him on one occasion.
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He did not have any in-depth conversations with trial counsel regarding the
facts or legal issues in the case. He testified that he sent trial counsel a letter
requesting an appeal within 30 days of entering his plea.
On cross-examination, he said he did not have a copy of this letter or
any of the other letters he had sent trial counsel, but he did send some letters
to the Clerk of Courts to be included in his file. He said that in all of their
meetings, trial counsel merely urged him to plead guilty. He admitted he had
discussed mental health with trial counsel and said at that time he told counsel
about the victim’s alleged mental health problems.
After receiving argument, the PCRA court made findings of fact on the
record. It found trial counsel to be entirely credible. It concluded that
Harrison was not credible in light of his statements during his guilty plea
colloquy and did not believe the testimony that trial counsel told him to plead
guilty and continue the investigation on appeal. It did not believe that
Harrison’s mental health diagnoses interfered with his capacity to plead guilty.
It credited trial counsel’s testimony that he had spoken with prior counsel
about the investigator, and further concluded that Harrison had not proven
that any additional investigation would have changed the outcome of the case.
Accordingly, it denied the petition. Harrison timely appealed and he and the
trial court have complied with Pa. R.A.P. 1925.
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II.
On appeal, Harrison argues that trial counsel was ineffective in
preparing his defense and failing to properly investigate the facts of the case.7
He argues that his guilty plea was induced by trial counsel’s ineffective
representation and as a result was unknowing and involuntarily entered.
“[T]o succeed on an ineffectiveness claim, a petitioner must
demonstrate: that the underlying claim is of arguable merit; counsel had no
reasonable basis for the act or omission in question; and he suffered prejudice
as a result[.]” Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015)
(citations omitted). In this context, prejudice requires proof of a reasonable
possibility that but for counsel’s ineffectiveness, the outcome of the
proceedings would have been different. Id.“[F]ailure to prove any of these prongs is sufficient to warrant dismissal
of the claim without discussion of the other two.” Commonwealth v.
Robinson, 877 A.2d 433, 439 (Pa. 2005) (citation omitted). Counsel cannot
be ineffective for failing to pursue a meritless claim. Commonwealth v.
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7 “The standard of review of an order dismissing a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).
“The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Id. (citation omitted). “The PCRA court’s
credibility determinations, when supported by the record, are binding on this
Court; however, we apply a de novo standard of review to the PCRA court’s
legal conclusions.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).
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Tarver, 420 A.2d 438, 438 (Pa. 1980). Finally, we presume that counsel has
rendered effective assistance. See Commonwealth v. Treiber, 121 A.3d
435, 445 (Pa. 2015).
A.
First, Harrison argues that trial counsel did not investigate the facts of
his case, provide him with discovery, discuss any trial strategy or defenses,
or consider his mental health diagnoses as exculpatory or mitigating evidence.
He contends that trial counsel was focused on convincing him to plead guilty
and did not attempt to locate additional witnesses, seek additional testing of
the DNA evidence or investigate the mental health and credibility of the victim.
The PCRA court concluded, and the Commonwealth agrees, that
Harrison waived his failure to investigate and mental health claims because
he did not raise them in his initial or amended PCRA petition. Harrison’s initial
petition alleged that trial counsel and the prosecutor engaged in a financial
transaction before his guilty plea, that trial counsel had falsely advised him
that he would receive a life sentence if he proceeded to trial, and that counsel
promised to file an appeal to “re-open” the case. Post-Conviction Relief Act
Petition, 9/11/20, at 5. He also claimed more generally that he was entitled
to relief based on “the wait [sic] of the evidence and ineffective assistance of
counsel to provide a full and sincere effort in my defense.” Id. at 7
(unnecessary capitalization omitted).
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Assuming this general allegation was sufficient to preserve Harrison’s
claims related to failure to investigate and mental health, we conclude that he
is not entitled to relief. We agree with the PCRA court that Harrison has not
established or even argued that he was prejudiced by a lack of investigation
or failure to pursue his mental health diagnoses as exculpatory or mitigating
evidence. See Laird, supra. Harrison repeatedly asserted at the hearing
that trial counsel failed to investigate the case, but he presented no evidence
that counsel should have uncovered that would have changed the outcome.
He did not identify any witnesses who would contradict the victim’s version of
events or support his own. While he complains that trial counsel did not speak
to the appointed investigator, he did not call the investigator as a witness or
offer any other evidence to suggest he had uncovered relevant information or
would have done so with further direction from trial counsel. His claims that
further investigation into the victim’s background or additional DNA testing
would have yielded favorable evidence are wholly speculative.
Similarly, Harrison identified his mental health diagnoses at the hearing
but did not explain how those diagnoses could have successfully been used as
exculpatory or mitigating evidence. He agreed that he had spoken about
mental health with trial counsel during one of their meetings at the jail, and
he did not contradict counsel’s testimony that he was always lucid, transparent
and forthright. He did not offer any documentary evidence of his past mental
health treatment or any testimony from past healthcare providers. Because
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he has not established that prejudice resulted from trial counsel’s failure to
pursue these avenues of defense, he is not entitled to relief.
In rejecting Harrison’s claim that trial counsel never provided him with
discovery, the PCRA court credited trial counsel’s testimony regarding his
conversations with Harrison. Trial counsel testified that it is not his practice
to provide clients with their own copy of discovery materials, but that he
brought the discovery with him to each meeting and thoroughly reviewed it
with Harrison before he entered his plea. While Harrison disputes trial
counsel’s version of events, we are bound by the PCRA court’s credibility
determinations. Roney, supra. Accordingly, this claim is meritless.
B.
Next, we consider whether trial counsel’s ineffectiveness caused
Harrison to enter an unknowing and involuntary plea. Harrison contends that
he only entered his plea because trial counsel assured him that he would
continue the investigation through a direct appeal. He reiterates his
arguments that trial counsel failed to investigate the case and prepare for trial
and argues that this deficient performance compelled him to enter an
unknowing and involuntary plea.8
“Under the PCRA, allegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief only if the ineffectiveness
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8As we have already rejected these claims of trial counsel’s ineffectiveness,
we do not address them further here.
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caused the petitioner to enter an involuntary or unknowing plea.”
Commonwealth v. Brown, 235 A.3d 387, 391 (Pa. Super. 2020) (cleaned
up; 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.”
Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (internal
quotations and citation omitted).
Once a defendant has entered a plea of guilty, it is presumed that
he was aware of what he was doing, and the burden of proving
involuntariness is upon him. Therefore, where the record clearly
demonstrates that a guilty plea colloquy was conducted, during
which it became evident that the defendant understood the nature
of the charges against him, the voluntariness of the plea is
established. A defendant is bound by the statements he makes
during his plea colloquy, and may not assert grounds for
withdrawing the plea that contradict statements made when he
pled.
Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)
(citations omitted). To determine whether a plea was knowingly, voluntarily
and intelligently entered, the court must inquire into six areas. See
Pa.R.Crim.P. 590, cmt (plea court must question the defendant regarding
whether he understands the nature of the charges, the factual basis for the
plea, his right to a jury trial, the presumption of innocence, the permissible
sentencing ranges, and that the court has the right to reject the agreement).
As noted supra, the PCRA court regarded Harrison’s testimony that trial
counsel promised to continue the investigation on appeal as “completely
incredible.” Notes of Testimony, 6/4/21, at 73. It also reviewed the guilty
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plea colloquy, including the post-sentence and appellate rights explained to
Harrison in the video, and concluded that he had been fully informed of the
effect and consequences of his plea. Id. at 72-74. It noted that Harrison had
not mentioned an appeal or further investigation during the colloquy when he
was asked if any additional promises induced his plea. He testified that he
was satisfied with trial counsel’s performance and that his mental illnesses
and medications did not impair his ability to understand the proceedings.
Harrison is bound by these statements he made under oath during his
colloquy. McCauley, supra. Accordingly, the record belies Harrison’s
assertion that he entered his plea based on trial counsel’s promise to continue
investigating the case through direct appeal and the PCRA court did not err in
denying relief on this claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2022
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