Com. v. Cook, F. ( 2018 )

J-S52031-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FABIAN ALEXANDER COOK, :
:
Appellant : No. 447 MDA 2018
Appeal from the PCRA Order February 12, 2018
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004747-2008
BEFORE: BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 21, 2018
Fabian Alexander Cook (Appellant) appeals from the February 12,
2018 order dismissing his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Just before midnight on September 7, 2008, Dimitri Francois and Julio
Arroyo (collectively, the victims) encountered Joseph Caston on a street in
Reading, Pennsylvania. Caston appeared ill and in need of assistance. As
the victims began to assist Caston, Appellant and Richard Lopez approached.
Appellant pointed a handgun at Arroyo’s head and forced the victims to the
ground. Appellant, Caston, and Lopez took various items from the victims,
including a book bag, an iPod, two cell phones, and a gold chain, before
fleeing on foot.
*Retired Senior Judge assigned to the Superior Court.
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The victims called police to report the armed robbery from a payphone
before chasing after their assailants. Officer Dinger responded to the armed
robbery call and encountered Francois, who reported that the assailants
were close by. Francois entered Officer Dinger’s marked police vehicle and
directed him towards the vicinity of the robbery. Francois informed Officer
Dinger that he had spotted three men with the stolen book bag. When
Officer Dinger stopped his vehicle near the three men, Appellant took off
running. Officer Dinger, along with Officer McClure, another officer who
responded to the scene as back-up, chased Appellant on foot. Officer
McClure caught up with Appellant and ordered him to get on the ground
before handcuffing Appellant and conducting a pat-down. After Appellant
stood up, he conducted a second pat-down, this time including a search of
Appellant’s pockets. Officer McClure found a cell phone and gold chain in
Appellant’s pocket but returned them to the pocket, not realizing at the time
that they were the victims’ stolen property. The officers then detained
Appellant in the back of a patrol vehicle.
While Appellant was in the patrol vehicle, Francois informed the
officers that Appellant was the person who held the gun and robbed him at
gunpoint. The officers then placed Appellant under arrest. During the
search incident to the arrest, the officers again discovered the victims’ gold
chain and cell phone. After Appellant was arrested, the other victim, Arroyo
identified Appellant at the scene as being one of the robbers.
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After Appellant was charged with various crimes, Paul Yessler, Esquire,
of the public defenders’ office, was appointed to represent Appellant.
Following a two-day jury trial on February 12-13, 2009, Appellant was
convicted of one count each of robbery, possessing instruments of crime,
terroristic threats, recklessly endangering another person (REAP), and
conspiracy to commit robbery.
Appellant requested to proceed pro se at sentencing. Following a
waiver-of-counsel hearing, the trial court permitted Appellant to proceed pro
se with Attorney Yessler as stand-by counsel. On February 19, 2009,
Appellant was sentenced to an aggregate term of 13 to 55 years of
incarceration. After Appellant pro se filed a post-sentence motion alleging
the ineffectiveness of Attorney Yessler, the trial court permitted Attorney
Yessler to withdraw as stand-by counsel and denied Appellant’s post-
sentence motion.
Appellant pro se filed a notice of appeal, and appellate counsel was
appointed. On December 15, 2009, this Court affirmed Appellant’s sentence
in part and vacated in part. Commonwealth v. Cook, 990 A.2d 40 (Pa.
Super. 2009) (unpublished memorandum). Because Appellant’s sentence
for REAP exceeded the statutory maximum, this Court remanded to the trial
court for resentencing. Id. On April 26, 2010, the trial court resentenced
Appellant to an aggregate term of incarceration of 13 to 53 years.
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On December 27, 2010, Appellant timely filed pro se a PCRA petition.
The PCRA court initially appointed Osmer Deming, Esquire to represent
Appellant on appeal, but after learning that Attorney Deming represented
Appellant’s co-conspirator, the PCRA court permitted Attorney Deming to
withdraw. On January 13, 2011, the PCRA court appointed Lara Glenn
Hoffert, Esquire, to represent Appellant.
Although the PCRA court had ordered counsel to file an amended
petition by March 4, 2011, the record reflects no filings from Attorney
Hoffert until November 29, 2011. On that date, Attorney Hoffert filed the
first of four petitions for an extension of time to file an amended petition,
stating that she needed more time due to Appellant’s incarceration.1 See
Petition for Extension, 11/29/2011; Petition for Extension, 2/21/2012;
Petition for Extension, 3/27/2015; Petition for Extension, 5/28/2015. The
PCRA court granted Attorney Hoffert’s extension requests each time. Order,
12/2/2011; Order, 2/24/2012; Order, 3/3/2015; Order 6/2/2015. Attorney
Hoffert finally filed an amended PCRA petition on June 4, 2015. The record
contains no reasonable explanation as to why Attorney Hoffert needed
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1 In the meantime, Appellant sent various pro se filings to the PCRA court,
which purported to be supplements to his petition. Because Appellant was
represented by Attorney Hoffert, and this Commonwealth prohibits hybrid
representation, these filings were legal nullities. Commonwealth v.
Williams, 151 A.3d 621, 623 (Pa. Super. 2016). The record reflects that
the clerk of courts docketed the filings and forwarded them to Attorney
Hoffert in accordance with Pa.R.Crim.P. 576(A)(4).
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almost four and one-half years to amend the PCRA petition, or why three
years elapsed between two of Attorney Hoffert’s extension requests.
After the petition was finally amended, the Commonwealth filed a
response, and a hearing was conducted on September 16, 2015. At the
hearing, Appellant and Appellant’s trial counsel, Attorney Yessler, testified
regarding Appellant’s allegations of ineffective assistance rendered by
Attorney Yessler. After one extension each, Appellant filed a post-hearing
brief on March 18, 2016, and the Commonwealth filed one on May 19, 2016.
For reasons that are unexplained by the record, the PCRA court did not rule
upon Appellant’s amended PCRA petition until February 12, 2018, when it
issued an order and memorandum dismissing Appellant’s petition.2 This
timely-filed appeal followed.3
On appeal, Appellant sets forth five issues for our review, which we
reorder for ease of disposition.
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2 These lengthy delays are unacceptable. Our Supreme Court has made
clear that “[t]he PCRA court [has] the ability and responsibility to manage its
docket and caseload and thus has an essential role in ensuring the timely
resolution of PCRA matters.” Commonwealth v. Renchenski, 52 A.3d
251, 260 (Pa. 2012) (citing Commonwealth v. Porter, 35 A.3d 4, 24–25
(2012) (“[T]he court, not counsel, controls the scope, timing and pace of the
proceedings below.”)). Additionally, “post-conviction counsel must ‘act
expeditiously so as to reduce unnecessary delays and ensure the efficient
administration of justice.’” Id. (citing Commonwealth v. Sneed, 45 A.3d
1096, 1104 n.11 (Pa. 2012)).
3 Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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A. Whether the PCRA court erred in denying Appellant’s amended
PCRA petition where trial counsel rendered ineffective assistance
of counsel in failing to challenge the legality of Appellant’s arrest
and in not moving to suppress the physical evidence and on-
scene identification evidence?
B. Whether the PCRA court erred in denying Appellant’s amended
PCRA petition where trial counsel was ineffective for failing to
request a Kloiber[4] charge and/or cautionary instruction on the
identification testimony presented at trial?
C. Whether the PCRA court erred in denying Appellant’s amended
PCRA petition where trial counsel was ineffective for failing to
communicate sufficiently with Appellant in the course of plea
bargain discussions?
D. Whether the PCRA court erred in denying Appellant’s amended
PCRA petition where trial counsel was ineffective for failing to
object to the admission of the co-defendant’s guilty plea
transcript into evidence without seeking a curative instruction
explaining that the co-defendant’s guilty plea could not be used
as substantive proof of the existence of a conspiracy or used to
determine Appellant’s guilt, as required by law?
E. Whether the PCRA court erred in denying Appellant’s amended
PCRA petition where trial counsel was ineffective for failing to
object to the testimony of official court reporter Vicky Brady and,
further, for failing to seek to stipulate that, if called to testify, []
Brady would confirm the accuracy and authenticity of the
transcript?
Appellant’s Brief at 5-6 (unnecessary capitalization and answers omitted).
We begin with our standard of review.
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4 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954) (requiring an
instruction to jury to receive testimony of witness regarding identity with
caution when witness did not have opportunity to clearly view defendant,
equivocated in identification of defendant, or had difficulty identifying
defendant in the past).
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This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review
is limited to the findings of the PCRA court and the evidence of
record and we do not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Similarly, we grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference
to its legal conclusions. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review is
plenary. Finally, we may affirm a PCRA court’s decision on any
grounds if the record supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
“[C]ounsel is presumed to be effective, and the petitioner bears the
burden of proving to the contrary.” Commonwealth v. Brown, __ A.3d
__, 2018 WL 5046812, at *12 (Pa. filed Oct. 17, 2018).
It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error.
Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa. Super. 2018)
(citations omitted). “A failure to satisfy any prong of the ineffectiveness test
requires rejection of the claim of ineffectiveness.” Commonwealth v.
Daniels, 963 A.2d 409, 419 (Pa. 2009).
Following a review of the certified record and the briefs for the parties,
we conclude that the opinion of the Honorable James M. Bucci thoroughly
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addresses Appellant’s first three issues and applies the correct law to facts
that are supported by the record. See PCRA Court Opinion, 3/28/2018, at
2-12, 16-18. We discern no error or abuse of discretion in the PCRA court’s
treatment of these issues. Therefore, we adopt the specified portions of the
PCRA court’s opinion of February 12, 2018, as our own and affirm the PCRA
order as to these issues based upon the reasons stated therein.5
We now turn to Appellant’s final two issues. Appellant argues that
Attorney Yessler was ineffective for failing to object to the admission of the
guilty plea transcript of Appellant’s co-defendant, Caston, without seeking a
curative instruction explaining that Caston’s guilty plea could not be used as
substantive proof of the existence of a conspiracy or to determine
Appellant’s guilt. Appellant’s Brief at 33-39. Similarly, he argues that
Attorney Yessler should have objected to or sought to stipulate to a court
reporter’s testimony authenticating Caston’s guilty plea transcript to avoid
the introduction of cumulative evidence. Id. at 39-42.
Like Appellant, Caston was charged in connection with the armed
robbery. Prior to Appellant’s trial, Caston pleaded guilty to robbery and
conspiracy to commit robbery. During his guilty plea colloquy, Caston
implicated Appellant as being one of his co-conspirators. Specifically, Caston
____________________________________________
5 The parties shall attach a copy of the PCRA court’s February 12, 2018
opinion to this memorandum in the event of further proceedings.
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agreed that the Commonwealth’s factual summary was accurate, which
included averments that on the night of the incident, Appellant pointed a
semi-automatic pistol directly at the victims, threatened to kill them, and
proceeded, along with Caston and Lopez, to rob the victims. Commonwealth
Exhibit 9 (N.T. of Caston’s guilty plea hearing, 1/9/2009, at 4).
Despite Caston’s guilty plea, Caston testified as a defense witness at
Appellant’s trial. In response to Attorney Yessler’s questions, Caston
testified that he had participated in the incident in question along with two
friends named Spaz and Black, and Appellant was not involved. N.T., 2/12-
13/2009, at 212-14. Caston acknowledged that he had pleaded guilty to
robbery and conspiracy to commit robbery, but stated that he did not
remember with whom he said he conspired at his guilty plea hearing, even
after reviewing the transcript of his testimony. Id. at 209-11. As part of
cross-examination, the prosecutor quoted Caston’s statements in the guilty
plea transcript implicating Appellant, but Caston still insisted he did not
remember making such statements. Id. at 226-29.
The Commonwealth called the court reporter who transcribed the
transcript from Caston’s guilty plea hearing in rebuttal. During her
testimony, the prosecutor requested to publish a portion of the transcript to
the jury, but the record is not clear if the trial court permitted the
publication because a sidebar followed and there is nothing further in the
transcript regarding the request. Id. at 242. The court reporter verified the
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guilty plea proceeding was accurately transcribed, and read to the jury the
same portion implicating Appellant that the prosecutor had read during his
cross-examination of Caston. Id. at 240-44. Although the transcript was
admitted as an exhibit with no objection, id. at 244, Attorney Yessler
objected to its being sent to the jury room during deliberations, and the trial
court sustained the objection. N.T., 2/12/2009-2/13/2009 (Closing
Speeches through End of Trial), at 35.
On appeal, Appellant argues that Attorney Yessler should have
requested that the trial court instruct the jury that Caston’s guilty plea could
not be considered as evidence of Appellant’s guilt. Appellant’s Brief at 36.
He argues that Attorney Yessler had no reasonable basis for failing to
request such an instruction and the failure “substantially increased the
likelihood that he would be convicted because the jury may well have failed
to find a reasonable doubt based upon their knowledge of [Caston’s] guilty
plea colloquy naming [Appellant] as his co-conspirator.” Id. at 38. He
further argues that Attorney Yessler should have objected to or sought a
stipulation to the court reporter’s testimony to avoid the jury’s hearing
Caston’s statements implicating Appellant for a second time. Id. at 39-42.
This Court has held that it is error to introduce a co-defendant’s plea
without a cautionary instruction not to consider the plea as evidence of the
defendant’s guilt. Commonwealth v. Boyer, 856 A.2d 149, 155 (Pa.
Super. 2004). “[T]he defendant has a right to have his guilt or innocence
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determined by the evidence presented against him, not by what has
happened with regard to a criminal prosecution against someone else.”
Commonwealth v. Geho, 302 A.2d 463, 465-66 (Pa. Super. 1973) (en
banc) (citation omitted). “It is incumbent, therefore, upon the trial judge to
give adequate and clear cautionary instructions to the jury to avoid ‘guilt by
association’ as to the defendant being tried.” Id. at 466 (citation omitted).
In the instant case, the PCRA court concedes that the trial court “may
have erred” by failing to instruct the jury regarding Caston’s testimony, even
without counsel’s request for one. PCRA Court Opinion, 3/28/2018, at 13.
However, it concludes that Appellant did not demonstrate the third prong of
the test for ineffectiveness of counsel because he did not prove “he was
significantly prejudiced” and the outcome of the trial would have been
different, because the jury was free to believe Caston’s trial testimony
despite his inconsistent testimony at his own plea hearing one month before
the trial. Id. at 14; see also id. at 14-16 (reaching the same conclusion as
to the court reporter’s testimony). The PCRA court emphasized that
Appellant insisted that Attorney Yessler call Caston as a witness against
Attorney Yessler’s advice, which resulted in the Commonwealth’s
introduction of the guilty plea transcript to impeach Caston’s trial testimony.
Id.
The fact that Appellant demanded that Attorney Yessler call Caston as
a witness against counsel’s advice does not fully resolve the issue of whether
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Attorney Yessler then rendered ineffective assistance of counsel by failing to
request a cautionary instruction when the Commonwealth impeached Caston
with the guilty plea transcript on cross-examination.6 Nor does it address
whether Attorney Yessler should have objected to or sought to have
stipulated to the court reporter’s testimony. Nevertheless, for the reasons
that follow, Appellant has not convinced us to disturb the PCRA court’s
dismissal of his petition.7
Even assuming arguendo that there is arguable merit to Appellant’s
contention that an instruction was warranted under these circumstances
pursuant to Geho,8 Appellant’s claim fails because he did not prove that he
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6 The only claim that Appellant has preserved relates to counsel’s failure to
request a jury instruction upon the Commonwealth’s introduction of Caston’s
guilty plea transcript, not the underlying decision to call Caston as a witness.
See Appellant’s Concise Statement, 4/2/2018, at 1; Appellant’s Brief at 5.
7 This Court is not bound by the rationale of a PCRA court and may affirm
the PCRA court’s order on any basis. Commonwealth v. Wilcox, 174 A.3d
670, 674 (Pa. Super. 2017).
8 Geho and its progeny involve situations where the jury became aware of a
co-defendant’s guilty plea when the co-defendant changed his plea in the
middle of trial or when the Commonwealth initiated the introduction of the
plea. Had Appellant not called Caston as a witness, the jury would not have
been aware of the outcome of Caston’s criminal charges as his case had
been severed from Appellant’s case prior to trial. While the Commonwealth
did initiate the introduction of the plea in this case, it was on cross-
examination to impeach Caston, not as part of its case-in-chief. Appellant
clearly opened the door to Caston’s impeachment by calling him as a witness
despite Caston’s implication of Appellant in his guilty plea colloquy one
month prior to Appellant’s trial. However, given our disposition, we need not
definitively determine whether Geho applies to this scenario.
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was prejudiced by counsel’s failure to request a jury instruction. When
confronted with the same issue, this Court in Commonwealth v. Boyer,
962 A.2d 1213 (Pa. Super. 2008), held that on PCRA review, an appellant
must plead and prove a “reasonable probability that the trial outcome would
have been different if a [guilt-by-association] cautionary instruction had
been given.” Boyer, 962 A.2d at 1215. This Court concluded that despite
the admission of Boyer’s confession into evidence, Boyer could not
demonstrate that he was prejudiced from the failure of his counsel to
request an instruction. Id.
As in Boyer, there was other evidence establishing Appellant’s guilt.
In the instant case, the jury heard evidence that the two victims got a good
look at Appellant during the robbery, later enabling them to identify
Appellant at the scene and in court as the robber with the gun. N.T.,
2/13/2009-2/14/2009, at 36-39, 81, 85-86, 91, 98-99, 172-78. The jury
also heard testimony that Caston and Lopez participated in the robbery with
Appellant, and Appellant and Caston were found with some of the victim’s
stolen property on the night of the incident. Id. at 91-97, 178-86. Thus,
even if Attorney Yessler had requested a guilt-by-association cautionary
instruction, it is not reasonably probable that the trial outcome would have
been different. Likewise, even if Attorney Yessler had stipulated to or
objected to the court reporter’s testimony, it is not reasonably probable that
the outcome would have been different. Because Appellant failed to show
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that he was prejudiced by the lack of an instruction or the admission of the
court reporter’s testimony, these issues fail.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2018
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Circulated 10/29/2018 11:38 AM
Received 31271201811:� �lddle Olstrld
Flied 312712018 11 :40:00 AM Superior Court Middle District
447 MDA2018
COMMONWEAL TH OF PENNSYLVANIA IN THE COURT OF COMMONS PLEAS
BERKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
v.
CP-06-CR-0004747-2008
FABIAN COOK ASSIGNED: BUCCI, J.
DISCUSSION ANDORDER TODlSMiss PCRA PETITION
AND NOW, this 12th day of February, 2018, following a hearing on Petitioner's Petition
for Post-Conviction Relief under the Post-Conviction Relief Act ("PCRA 0),
42 Pa. C.S. §§ 9541
et seq., pW'S\Wlt to Pennsylvania Rule of Criminal Procedure 907(1), it is hereby ORDERED
that the PCRA Petition is DISMISSED and Petitioner's request for collateral relief is DENIED
for the reasons set forth more fully below.
PROCEDURAL HISTORY
Followina a jury trial held on or about February 12-13, 2009, Fabian Cook ("Petitioner")
convicted Qf one count of Robbery, 1 one count of Possessin& Instruments of Crime,2 one count of
Terroristic Tbreats,3 one count of Recklessly Endangering Another Perscn," one count of Theft
by Unlawful Takina,' and one count of Conspiracy to Commit Robbcry.6 Petitioner was
represented at trial by Paul Yessler, Esquire.
On February 18, 2009, this Court sentenced Petitioner to consecutive sentences of six to
twenty years' incarceration for Robbery; one to five years' incarceration for Possessing
Instruments of Crime; one to five years' incarceration for Terroristic Threats; one to five years'
incarceration for Recklessly Endangering Another Person; and four to twenty years'
1
18 PLC,S. t 3701(a)(l). .
. .
·. _ .. ,..�� :."�·,,� . .,
. .. ., �' . ._; .Ju
2
18 Pa.C.S. I 907(b),
J 18 Pa.C.S. f 2706(aXl).
4
18 Pa.C.S. § 2705.
8� :Q/ J,J1 Z I 83.:J 8Wl
, 18 Pa.C.S. f 392l(a).
'11 Pa.C�S. f 903(aXJ). Sla;lOJ .do �o31J
·1-
incarceration for Conspiracy to Commit Robbery, making an aggregate sentence of thirteen to
fifty.five years' incarceration.
On April 20, 2009, Appellant tiled a timely pro se Notice of Appeal to the Pennsylvania
Superior Court. This Court ordered A,p�llant to file a Concise Statement on April 27, 2009. On
May 11, 2009, Appellant requested an extension of time to tile his Concise Statement. The Court
granted his request on May 13, 2009. On May 20, 2009, Appellant filed a timely Concise
Statement raising four issues.
On December 15, 2009, the Superior Court affinned in part and vacated in part
Petitione!'s sentence. The Superior Court remanded the matter for resentencing, as Petitioner's
original sentence on the charae of Reckless Endangerment exceeded the statutory maximum. On
April 26, 2010, pursuant to instruction by the Superior Court, Petitioner's sentence was
amended, makina Petitioner's sentence an asgregate term of thirteen to fifty-three years of
incarceration. Petitioner was represented on appeal by Melissa M. Bleecher, Esquire.
On December 27, 2010, Petitioner filed a pro se Petition for Post-Conviction Relief
pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 ("PCRA"). This Court
appointed Lara Glenn Hoffert, Esquire, to represent Petitioner in the disposition of his PCRA
claim. On June 4, 20141 Attorney Hoffert filed an Amended PCRA Petition on Petitioner's
behalf. This Court conducted an evidentiary hearing on the Amended Petition and counsel was
ordered to file briefs thereafter. Upon consideration of all the foregoing, and based on all the
reasons set forth more fully below, we now enter an order dismissing Petitioner's PCRA Petition.
AtPLICABLE LAW
Disposition of the Petition is governed by the PCRA and the decisional law that flows
from the PCRA and its predecessor, the Post-Conviction Hearing Act. The PCRA was enacted as
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a means of providing collateral relief for persons who have either been convicted of crimes they
did not commit or persons who are serving illesal sentences. 42 Pa.C.S.A. § 9S43(aX2).
Pennsylvania law provides that, in order to qualify for relief under the PCRA, the petitioner must
plead and prove by a preponderance of the evidence that his conviction or sentence resulted from
one or more of the enumerated defects listed in 42 Pa.C.S.A. § 9S43(a)(2). The petitioner is also
required to establish that the issues raised in his PCRA Petition have not been previously
litigated or waived. 42 Pa.C.S.A. §§ 9S43(a)(3), 9544. See also Commonwealth v. Morris, 684
A.2d 1037, 1041 (Pa 1996).
At the hearing, the burden is on the petitioner to establish, by a preponderance of the
evidence, that his conviction was the result of one of the specifically-enumerated defects and
further that that defect has not been previously litigated or waived. 42 Pa.C.S.A. §9S43(a)(3)
( 1998). The standard of review of a PCRA court's grant or denial of relief is limited to
examining whether the trial court's determination is supported by the evidence of record and
whether it is free oflegal error. Commonwealth v. Owens, 150 A.2d 872 (Pa. Super. 2000); see
also Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000); Commonwealth v, Lantzy, 736 A.2d
564 (Pa. 1999).
PETITIONER'SPCRAISSUES
In his Amended PCRA Petition, Petitioner, by and through counsel, raises five claims of
ineffective assistance of trial counsel, as well as a challenge to the legality of his sentence. We
will address each of the claims below.
W:;FFECTIVE ASSISTANCEQF COUNSEL
Under Pennsylvania jurisprudence counsel is presumed effective, and the petitioner bears
the burden of proving otherwise. Commonwealth v. Hall, 701 A.2d 190, 200-01 (Pa. 1997). The
.3.
test for ineffectiveness consists of three prongs: (1) the claim is of arguable merit; (2) counsel
had no reasonable basis for his or her actions or inactions, and (3) actual prejudice resulted, in
that tho outcome of the proceedings would have been different but for the actions or inactions of
counsel. See Commonwealth v, McGIJI, 832 A.2d 1014, 1020 (Pa. 2003) and Commonwealth v.
Pierce, 786 A.2d 203, 213 (Pa. 1987), adopting Stricldandv. Washington, 466 U.S. 668, 687
(1984). Failure to establish any of the three prongs necessarily results in the dismissal of the
claim. Commonwealth v. Basemore, 144 A.2d 717 (Pa. 1999).
To establish the prong of prejudice, a defendant must demonstrate that "but for the act or
omission in question, the outcome of the proceedings would have been different".
Commonwealth "· Rios, 920 A.2d 790, 799 (Pa. 2007). Further, under the PCRA. in order to
fonn the basis for post-conviction relief, counsel's ineffectiveness must have so undennined the
truth-determining process that no reliable adjudication of guilt or innocence could have taken
place. § 9S43(a)(2)(ii).
I. WAL COUNSEL' s FAILURE JO FILESUPPRESSION MOTIONS
A. TERRY FRISK/REASONABLE SUSPICION
Petitioner first claims that trial counsel was ineffective for failina to challenge the leplity
of Petitioner's arrest. Specifically, Petitioner claims that he was stopped and frisk without the
requisite reasonable suspicion. and turther, that the Terry frisk went beyond the scope of a
protective search and trial counsel should have filed a motion to suppress items found in
Petitioner's pockets.
"The mere failure to tile a suppression motion does not constitute ineffectiveness ...
Commonwealth v Smith, 615 A.2d 1221, 1228 (Pa. 1996) (citing Commonwealth v. Stovko, 41S
A.2d 714, 720 n.2 (Pa. 1984)). Rather, a defendant must establish that counsel lacked a
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"reasonable basis for not pursuing the suppression claim and that if the evidence had been
suppressed, there is a reasonable probability the verdict would have been more favorable."
Commonwealth v. Melson, SS6 A.2d 836, 839 (Pa. Super. 1989) (citing Kltrell v. Dakota, 540
A.2d 301, 306 (Pa. Super. 1988)).
Pursuant to Terry v. Ohio, 392 U.S. I (1968), a police officer may perform a limited
search for weapons without a warrant, even without probable cause, when the officer reasonably
believes that the person may be armed and dangerous. 392 U.S. at 27; accord Commonwealth v.
Zhahir, 151 A.2d 1153 (Pa. 2000). In order to determine whether Terry frisk was warranted,
courts must employ a dual analysis, inquiring (1) whether the officer's action in conducting the
stop was proper, and (2) whether the stop and frisk was reasonably related to the circumstances
thatjustified the initial stop. See Zhahlr, 151 A.2d at 1153 (Pa. 2000).
To determine reasonableness. courts must consider "the specific reasonable inferences
which [the police officer] is entitled to draw from the facts in light of his experience." Id at 1158
(citing Terry, 392 U.S. at 27). Importantly, "[t]he officer need not be absolutely certain that the
individual is anncd; the issue is whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27.
In the instant case, Officer Christopher Dinger of the City of Reading Police Department
immediately responded to the scene of the crime. Notes of Testimony, Jury Trial, 2/12/09·
2/13/09, at 166·168 (hereinafter "N.T., Jury Trial"). Officer Dinger subsequently encountered the
two victims on the street and asked them to accompany him in the patrol vehicle. N.T., Jury
Trial, at 1 71. At the same time, Office Bradley McClure was on routine patrol when he heard
Officer Dinger on the radio requesting assistance in looking for an armed robbery suspect N.T.,
·S·
Jury Trial, at 130-31, 172. As Officer McClure drove to the area in question, he observed Officer
Dinger's patrol car and followed him. N.T. Jury Trial, at 132-33.
As Officer Dinger and the victims crossed over Franklin Street, one of the victims
observed the assailants, including Petitioner, walking on the south side of Cherry Street and
infonned Officer Dinger. N. T., Jury Trial, at 172-173. As soon as Officer Dinger stopped his
patrol vehicle, a suspect, later identified as Petitioner, fled. N. T., Jury Trial, 174-176.
Officer Dinger and Officer McClure chased Petitioner on foot and ultimately
apprehended him. N.T. Jury Trial, at 133·34, 172· 75. Petitioner obeyed Officer Dingcr's
command to get on the ground, and Officer McClure cuffed Petitioner's hands behind his back.
N.T., .Tury Trial, 134-35, 175-76. At this time, one of the victims identified Appellant as the
assailant who brandished the handgun during the robbery. N.T., Jury Trial, at 177. While
Petitioner was still on the around, Officer McClure did a quick pat-down of Petitioner's outer
clothins for weapons. N.T., Jury Trial, at 134-135.
After Petitioner stood up, Officer McClure did a more thorough search for weapons,
goins throuah items in Petitioner's pockets. N.T., Jury Trial, at 135-136. Petitioner was placed
under arrest for robbery shortly thereafter, and a more thorough search of his person was
performed. N.T., Jury Trial, at 139·140, 177-180. The reason for the search of Petitioner's
pockets is unclear and does not appear in the record.
Based on the facts in the record, the police officers acted properly in stoppina Petitioner,
and the frisk was reasonably related to the circumstances that justified the initial stop. Officer
Dinger responded to a call for an armed robbery. While in the patrol vehicle with Officer Dinser,
one of the victims observed Petitioner and his companions walking, and informed Officer Dinger
that they were the robbers. Officer Dinger then stopped the vehicle, chased Petitioner on foot,
·6·
and ultimately apprehended him, at which time one of the victims identified Petitioner as the
robber who held the gun. Because Petitioner was suspected of committing a crime, and because
police had reason to believe he was armed and dangerous, the Terry frisk was proper. Notably, at
the PCRA Hearing, trial counsel testified that he did not file a suppression motion because he
believed there were no viable suppression issues to raise. Notes of Testimony, PCRA Hearing,
9/16/15, at 41-42, 52-56 (hereinafter, "N.T., PCRA Hearing"),
Further, even if Officer McClure exceeded the scope of a pat-down by searching
Petitioner's pockets, Petitioner was placed under arrest minutes thereafter and the items would
have inevitably been discovered during the more thorough search of his person conducted
incident to arrest. See Commonwealth v, Gonzalez, 919 A.2d 879, 890 (Pa. Super. 2009Xciting
Nix v. Wiiiiams, 467 U.S. 431 (1984})(discussing the inevitable discovery doctrine). In sum, trial
counsel had a reasonable basis for not filina a motion to suppress. and this claim of ineffective
assistance therefore fails.
B. PETITIONER'S ARREST/PROBABLE CAUSE
Petitioner further claims that his arrest was not supported by probable cause and trial
counsel was ineffective for failins to file a motion to suppress evidence obtained as a result of an
illegal arrest.
It is axiomatic that an arrest, or custodial detention, must be supported by probable cause
at the time the arrest takes place. See, e.g.• Commonwealth v. Ellis, 663 A.2d 1043, 1047 (Pa.
199S). Whether there was probable cause is a fact-sensitive detennination based on the totality of
the circumstances. See Illinots v. Gate1, 462 U.S. 213 (1983); Commonwealth v. Gray, S03 A.2d
921 (Pa. 1985). "Under the totality of the circumstances, a police officer must make a practical
common sense decision whether, given all of the circumstances known to him at [the time of the
.7.
arrest], including hearsay infonnation, there is a fair probability that a crime was committed and
that the suspect committed the crime" Commonwealth v. Holton, 906 A.2d 1246, 1249
(2006)(intcmal citation omitted).
Based upon these principles, the Court finds that officers possessed the requisite probable
cause to believe that a robbery was committed and Petitioner was involved in the commission of
said robbery. Officer Dinger heard the call from dispatch that an anned robbery had just
occurred. N.T., Jury Trial, at 167. He immediately responded to the scene of the crime where he
encountered one of the victims, who then entered Officer Dinger's vehicle. N.T. Jury Trial, at
166-171. The victim subsequently spotted Petitioner and his companions and identified them as
the robbers to Officer Dinger. N.T., Jury Trial, at 172-173.
When Officer Dinger stopped the vehicle to get out, Petitioner and his companions fled.
N.T., Jury Trial, 174-176. When the officers ultimately apprehended Petitioner, the victim
identified Petitioner as the robber who pointed the gun. N.T., Jury Trial, at 136-137, 177. After
this identification was made, Petitioner and his companions were placed under arrest and a more
thoroua}l search of their persons was conducted incident to arrest. N.T., Jury Trial, at 178-182.
Thus, in light of the facts and circumstances within the officers' knowledge at the time of
Petitioner's arrest, the officers had reason to believe that a robbery occurred and that Petitioner
was involved in said robbery. The officers were responding to a call for an armed robbery. When
the victim was riding in the patrol vehicle with Officer Dinger, the victim spotted Petitioner and
his companions and identified them as the robbers. After Petitioner fled and was ultimately
apprehended, before Petitioner was Terry frisked, the victim specifically identified Petitioner as
the robber who held the gun. Given these facts, Petitioner's arrest was supported by probable
-8·
cause, and trial counsel was not ineffective for failing to file a motion to suppress evidence on
this basis.
C. OUT-OF-COURT IDENTIFICATION OF PETITIONER
Petitioner claims that trial counsel was ineffective in failing for failing flle a motion to
suppress evidence obtained as a result of an illegal identification procedure. Specifically,
Petitioner alleges that the on-scene identification was highly suggestive and therefore improper.
"In reviewing the propriety of identification evidence, the central inquiry is whether,
under the totality of the circumstances, the identification was reliable." Commonwealth v.
Meachum, 711 A.2d 1029, I 034 (Pa. Super. Ct. 1998) (quoting McElrath v. Commonwealth, 405
Pa. Super. 431, 592 A.2d 740, 742 (1991)). Suggestiveness is merely "one factor to be
considered in determining the admissibility of such evidence and will not warrant exclusion
absent other factors." Id
Factors to be considered in the likelihood of a misidentification include: "the opportunity
of the witness to view the criminal at the time of the crime, the witness's degree of attention, the
accuracy of his prior description of the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the confrontation." Commonwealth v.
Edwards, 162 A.2d 382, 391 (2000) (internal citations omitted). Notably, "[t]he opportunity of
the witness to view the actor at the time of the crime is the key factor in the totality of the
circumstances analysis." Commonwealth v. Bruce, 717 A.2d 1033, 103 7 (Pa. Super. 1998). The
coffllptins effect of the suggestive identification should be weighed against all of the factors.
Edwards, 162 A.2d at 391.
In the instant case, Petitioner argues that the out-of-court identification procedure was
suggestive. However, the facts in the record reflect otherwise. At trial, the victims were
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questioned on cross-examination resardins the liahtina in the area during the robbery and their
ability perceive events at the time. Notably, they testified that the middle of the street was well·
lit and they were therefore able to sec Petitioner clearly during the robbery. See N.T., Jury Trial,
at 60-61; 11 S· 120. Further, one of the victims observed the direction in which the robbers fled
from the scene of the crime and followed the robbers on foot while the other victim called the
police. N.T, Jury Trial, at 43-46.
When a police vehicle arrived in the area, one of the victims flagged it down, entered the
vehicle, and directed the officer toward the location of the robbers. N.T., Jury Trial, at 171.
Shortly thereafter, within fifteen minutes, the victim spotted the robbers and informed Officer
Dinger, who then stopped tho car to get out. N.T. Jury Trial, at 57,173-174. The assailants
attempted to flee and Officer Dinger pursued Petitioner on foot. N.T, Jury Trial at 175-176. The
victim was still in the police car when Petitioner attempted to flee and was able to clearly see
Petitioner, and the victim identified Petitioner as the robber who pointed the gun-without any
prompting by officers-after Petitioner was taken into custody. N.T., Jury Trial, at 48-SO, 177.
In sum, the victims were able to clearly see Petitioner at the time of the crime; the victim
identified Petitioner and his companions as the robbers when he was in the car with Officer
Dinger look.in& for them and ultimately spotted them; the out-of-court identification of Petitioner
occurred very shortly thereafter, within fifteen minutes; the victim identified Petitioner as the
robber who pointed a gun without promptini by officers once Petitioner was apprehended; and
the victims' identification of Petitioner was not shaken at trial on cross-examination. The out-of.
court identification of Petitioner was therefore not improper and trial counsel was not ineffective
for failing to file a suppression motion on this issue.
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II. l\+OIBER JURY INSTRUCTION REGARDING IDENTIFICATION TESTIMONY
Petitioner alleges that trial counsel was ineffective for failing to request a jury instruction
pursuant to Commonwealth v. Kloiber, I 06 A.2d 820 (Pa. 1954), regarding the identification
testimony presented at trial. Kloiber states, in pertinent part:
Where the opportunity for positive identification is good and the witness is
positive in his identification and his identification is not weakened by
prior failure to identify, but remains, even after cross-examination,
positive and unqualified, the testimony u to identification need not be
...
received with caution-e-indeed the cases say that 'his [positive] testimony
as to identity may be treated as the statement of a fact'. O
On the other hand, where the witness is not in a position to clearly observe
the assailant, or he is not positive as to identity, or his positive statements
as to identity are weakened by qualification or by failure to identify
defendant on one or more prior occasions, the accuracy of the
identification is so doubtful that the Court should warn the jury that the
testimony as to identity must be received with caution.
Kloiber, 106 A.2d at 826-27 (internal citations omitted).
A Kloiber instruction is not required where the eyewitness testimony is unequivocal, consistent,
and independently based. See Commonwealth v. Johnson, 615 A.2d 1322, 1336 (Pa. Super.
1992).
Here, as discussed above, the victims were clearly able to identify Petitioner at the time
of the robbery due to the well-lit street, one of the victinu followed Petitioner and the robbers on
foot from the scene of the crime until they were apprehended by police shortly thereafter, and
one of the victiim again identified Petitioner was the robber who pointed the gun after Petitioner
was apprehended by police. Importantly, the victims' identification of Petitioner remained
unshaken even after cross-examination.
Notably, at the PCRA hearing, trial counsel testified that he did not request a Kloiber
instruction because there was no equivocation or failure to identify Petitioner as one of the
·11·
robbers prior to or during trial, u the victims' identification of Petitioner was unequivocal at
Petitioner's preliminary hearing as well. N.T., PCRA Hearing, at 33·3S, 56-S1.
In sum, the victims' identification of Petitioner was clear and unequivocal at the time of
arrest, preliminary hearing, and trial. Trial counsel believed this to be the case as well. Because a
Kloiber instruction is not warranted in such circumstances, trial counsel had a reasonable basis
for not requesting such an instruction, and Petitioner therefore cannot establish that trial counsel
was ineffective in this regard. •
Ill. ADMISSION OF-CQ·DEFENDANT'S GUILTY PLEA INTO'.EVIDENCE
Petitioner alleges that trial counsel was ineffective for failin& to object to the admission
of the transcript of co-defendant Joseph Gaston's guilty plea hearing into evidence without
requesting a cautionary jury instruction thereon.
It ls well-established that a co-defendant's guilty plea cannot be considered as evidence
aaainst the defendant who elects to stand trial. See Commonwealth v. Geho, 302 A.2d 463, 46S
(PL Super. 1973). Thus, where one or more of several charged defendants plead guilty and such
evidence is introduced, "it is incumbent ... upon the trial judae to give adequate and clear
cautionary instructions to the jury to avoid 'guilt by association' u to the defendant being tried."
Id. at 466; accord Commonwealth v. Boyer, 856 A.2d 149, lSS (Pa .Super. 2004)
In the instant case, co-defendant Joseph Caston, who previously pleaded guilty, was
called as a defense witness at trial and testified that Petitioner was not, in fact, one of the other
two individuals with whom Mr. Caston committed the robbery. N.T., Jury Trial, at 211-14. The
Commonwealth then confronted Mr. Caston on cross-examination with his guilty plea transcript
as a prior inconsistent statement pursuant to Pa.R.E. 613, which provides, in pertinent part:
(a) Witness's Prior Inconsistent Statement to Impeach. A witness may be
examined concerning a prior inconsistent statement made by the witness to
·12·
i�peach the witness's credibility. The statement need not be shown or its contents
disclosed to the witness at that time, but on request, the statement or contents
must be shown or disclosed to an adverse party's attorney.
(b) Extrinsic Evidence of a Witness's Prior Inconsistent Statement. Unless the
�teres!-5 of justice otherwise require, extrinsic evidence of a witness's prior
mcom1stcnt statement is admissible only if, during the examination of the
witness,
(1) the statement, if written. is shown to, or if not written, its contents are
disclosed to, the witness;
(2) the witness is aiven an opportunity to explain or deny the making of the
statement: and
(3) an adverse party is given an opportunity to question the witness.
Pa.R.E. 613
When the three requirements within subsection (b) are satisfied, the prior inconsistent statement
is admissible to impeach the witness's testimony. See Commonwealth v. Charleston, 16 A.3d
SOS, 521 (Pa. Super. 2011).
In accordance with the requirements of Rule 613, the Commonwealth confronted Mr.
Caston on cross-examination with the facts he admitted under oath at his guilty plea hearing,
during which he named Petitioner as one of his co-conspirators. N.T., Jury Trial, at 226-28. The
transcript of Mr. Caston's guilty plea hearing was marked and admitted as evidence, but was not
permitted to ao to the jury during deliberations.
No cautionary charge regarding Mr. Caston's plea was requested by trial counsel, nor
glven to the jury by the Court. The Court may have erred in this regard, However, the Court
finds that Petitioner was not significantly prejudiced as a result of trial counsel's failure to
request a cautionary lnstruc:tion regarding t.he guilty plea.
Notably, at the PCRA hearing, trial counsel testified that he was strongly opposed to
calling Mr. Caston as a witness at trial, as he was aware of his admissions during the guilty plea
hearing. N.T., PCRA Hearing, at 43-48, 62-68. Trial counsel expressed these concerns to
Petitioner, but Petitioner insisted on calling Mr. Caston as witness nonetheless. N.T., PCRA
-13-
Hearing, at 65. As a result, Petitioner himself, contrary to his attorney's advice, opened the door
for the Commonwealth to introduce impeachment evidence, including prior inconsistent
statements that were contained in the transcript of Mr. Caston's guilty plea hearing.
Had Petitioner not insisted on calling Mr. Caston, the guilty plea transcript would not
have been introduced, as the Commonwealth only introduced the transcript pursuant to Rule 613
in order to impeach the testimony proffered by Mr. Caston at trial. Regardless of the introduction
of the guilty plea, the jury was still free to believe Mr. Caston's trial testimony. See
Commonwealth v. Delesus; 860 A.2d 102, 107 (Pa. 2004) ([T]he finder of fact ... is free to
believe all, part, or none of the evidence, and to assess the credibility of the witnesses.).
In sum, Mr. Caston testified on Petitioner's behalf, at the insistence of Petitioner in spite
of trial coW1SCl' s advice, and testified that Petitioner was not involved in the robbery. The
transcript of Mr. Caston's guilty plea was only introduced on cross-examination to contradict his
testimony. The jury, as the fact-finder, was still free to believe Mr. Caston's trial testimony
absolving Petitioner of any involvement in the robbery. Petitioner therefore cannot establish that
he was sipificantly prejudiced and that the outcome of the trial would have been different had
trial counsel requested a cautionary jury instruction regarding Mr. Caston's suilty plea. This
claim of ineffective assistance therefore fails.
IV. IESTIMONY OF COURJ REPORTER REGARDING
CO-DEFENDANT'S GUILTY PLEA TRANSCB,IPT
Petitioner alleges that trial counsel was ineffective for failing to object to the testimony of
official court reporter Vicky Brady, and, further. for failing to seek to stipulate that, if called to
testify. Ms. Brady would confirm the accuracy and authenticity of the transcript. This claim is
closely related to the previous claim regarding Petitioner's allegation that trial counsel was
-14·
ineffective for failing to request a cautionary instruction regarding the admission of Petitioner's
co-defendant's guilty plea.
At trial, as discussed above, the Commonwealth read a portion of co-defendant Mr. Caston's
guilty plea transcript i.mplicatina Petitioner as an accomplice in order to challenge the co-
defendant' s testimony at trial that Petitioner did not commit the robbery. N.T., Jury Trial, 227·
228. The Commonwealth also presented the testimony of the official court reporter, Vicky
Brady, who transcribed Mr. Caston's guilty plea hearing, in order to authenticate the transcript,
specifically including statements the co-defendant made under oath that had already been read by
the Commonwealth as extrinsic evidence pursuant to Pa.R.E. 613(b) in order to show that Mr.
Caston's trial testimony was inconsistent with his statements made under oath at the time of his
guilty plea. N.T., Jury Trial, 236-244.
Petitioner claims that he was prejudiced by trial counsel's failure to object to Ms. Brady's
testimony, as it was merely cumulative of other evidence, and trial counsel was therefore
ineffective in this regard. However, even if the portion of the colloquy read aloud by Ms. Brady
was cumulative because some of the statements had already been read by the Commonwealth,
Petitioner cannot establish that he was significantly prejudiced by trial counsel's failure to object
to Ms. Brady's testimony, for the same reasons discussed above.
Specifically, the portion of the Mr. Caston's guilty plea transcript read aloud by the
Commonwealth, and later by Ms. Brady in order to authenticate the transcript, was only
introduced to contradict the Mr. Caston's trial testimony. Mr. Caston was called as a defense
witness at Petitioner's request and testified favorably for Petitioner, stating that Petitioner was
not involved in the robbery. N.T., Jury Trial, 211-14.
·15·
Therefore, the guilty pica introduced to contradict this testimony was not significantly
prejudicial to Petitioner, as the jury was still free to believe the co-defendant's trial testimony
that Petitioner was not involved in the crime. See Delesus, 860 A.2d at 107. Even if the portion
of the transcript read aloud by Ms. Brady was cumulative of evidence read by the
Commonwealth, Petitioner cannot establish that he was prejudiced by trial counsel's failure to
object to Ms. Brady's testimony such that the outcome of the trial would have been different if
trial counsel had objected. Therefore, this claim of ineffective assistance fails.
V. IRI.61< CQUNS&L'S �QMMUNIQATION WITHPETITIONER
B&QARDINO APLEA OFFER
Petitioner alleges that trial counsel was ineffective for failing to adequately communicate
with Petitioner during the course of plea bargain discussions, thereby depriving Petitioner of
sufficient information to make an informed decision whether to accept or reject a plea offer.
Specifically, Petitioner claims that trial counsel failed to communicate regarding: the total
amount of time Petitioner could be sentenced to, including the possibility of rcceivina
consecutive sentences; the potential in calling Petitioner's co-defendant Mr. Gaston as a witness;
and the pros and cons of pleading guilty.
The United States Supreme Court has espoused the general rule that "defense counsel has
the duty to communicate formal prosecution offers to accept a plea on terms and conditions that
may be favorable to the accused." Missouri v. Frye, 566 U.S. 134 (2012). Additionally, counsel
must explain the advantages and disadvantages of acceptins or rejecting a plea offer. See
Commonwealth v. Copeland, SS4 A.2d S4, 60 (Pa. Super 1988).
In the instant case, the Commonwealth offered Petitioner a plea bargain of five to ten
years' inc:arceration, and counsel informed Petitioner of such. N.T., PCRA Hearing, at 23.
Petitioner now claims that he rejected that plea based upon lack of guidance from trial counsel.
-16·
At the PCRA hearing, Petitioner testified that trial counsel communicated the plea bargain offer
extended by the Commonwealth prior to trial and explained the maximwn sentence for each
offense, but did not explain that after trial the deadly weapon enhancement would apply and the
Court could impose consecutive sentences. N.T. PCRA Hearing, at 22-26.
Petitioner also testified that he was unaware prior to trial that Mr. Caston could be
impeached with the transcript of his guilty plea hearing. Petitioner testified that if trial counsel
had informed him of these possibilities, he would have pleaded guilty. N.T., PCRA Hearing, at
22-26. In response to these allegations, trial counsel testified at the PCRA hearing that he did, in
fact, inform Petitioner that if he went to trial he would be facing the application of the deadly
weapon enhancement. N.T, PCRA Hearing. at 59-60. Trial counsel also explained to Petitioner
the possibility of receiving consecutive sentences. N.T., PCRA Hearing, at 32·33, S8-60.
Specifically, trial counsel testified that he informed Petitioner he would be facing a total of sixty·
seven years' incarceration ifhe were to receive the maximwn sentence for each charge. N.T.,
PCRA Hearina, at 58.
Based upon this record, the Court finds that trial counsel fulfilled his obligations with
regard to the plea offer. Trial counsel communicated the terms of the plea offer to Petitioner and
explained the possible ramifications of goina to trial, including the possibility of consecutive
sentences, the maximum possible sentence Petitioner could receive, and the applicability of the
deadly weapon enhancement. Petitioner therefore fails to establish that trial counsel was
ineffective for failins to communicate with him regarding the terms of the plea offer extended by
the prosecution.
Petitioner also fails to prove that trial counsel was ineffective for failing to communicate
with him regarding his trial strategy involving callina Mr. Caston as a witness. At the PCRA
·17-
hearina, trial counsel testified that, contrary to his advice. Petitioner insisted on calling Mr.
Caston as a wi�ess. N.T .• PCRA Hearing, 43, 6S-66. Indeed, Petitioner admitted that it was his
idea to call Mr. Caston. N.T., PCRA Hearing, at 23, 29. Trial counsel knew prior to trial that Mr.
Caston had pleaded gwlty to conspiring with Petitioner to commit the robbery. N.T., PCRA
Hearing, at 42-43, 62-64. Trial counsel infonned Petitioner that Mr. Caston would name
Petitioner as a co-conspirator, and actually arranged to meet with Mr. Caston prior to trial. as
trial counsel anticipated that his testimony would be inconsistent with the facts placed on the
record during his guilty plea hearing. N.T., PCRA Hearing, at 43, 65-66.
Against trial counsel's advice, Petitioner insisted upon calling Mr. Caston as a witness.
N.T., PCRA Hearing, at 43·35, 61-62. Because Petitioner participated in this decision-making
regarding trial strateSY, he is barred from raising trial counsel's ineffectiveness on the issue. See
Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002) (internal citation omittedX"(A]
defendant who makes a knowing, voluntary, and intelligent decision concerning trial strategy
will not later be heard to complain that trial counsel was ineffective on the basis of that
decision."). Accordinaly, this claim of ineffective assistance fails.
LEQALIIY OF SENTENCE
Finally, Petitioner contends that he is serving an illegal sentence pursuant to Alleyne v,
United States, 133 S. Ct. 2151 (2013). In Alleyne, the United States Supreme Court held that any
fact that increases the mandatory minimum sentence for a crime must be submitted to a jury and
proven beyond a reasonable doubt. 133 S. Ct. at 21 S 1.
In the instant case, Petitioner alleges that the Court's application of the deadly weapon
enhancement wu impermissible. The Court sentenced Petitioner to an aggregate tenn of thirteen
·18·
to fifty-five years' incarceration, based upon his prior record score and in accordance with the
applicable sentencins guidelines. Transcript of Proceedings, 2/18/09, at 9, 22.
The Commonwealth initially sought the application of the mandatory sentence of five
years of confinement for offenses involving ti.rearms pursuant to 42 Pa.C.S. § 9712.1. 7 However,
based upon Petitioner's prior record score and the application of the deadly weapon
1
enhancement, the applicable sentencing guidelines exceeded the mandatory sentencing
9
provision. Thus, the record reflects that no mandatory minimum was sought by the
Commonwealth, nor imposed by this Court. See Transcript of Proceedings, 2/18/09, at 14-15,
22. Therefore, Alleyne is inapposite. Moreover, Alleyn« does not apply retroactively in the
context of collateral relief. See Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa. Super.
2015); Commonwealth v, Miller, 102 A.3d 988 (Pa. Super. 2014).
Although no mandatory minimwn was sought and Alleyne does not apply retroactively in
a PCRA setting, Petitioner nonetheless asserts that the Court's application of the deadly weapon
enhancement was impermissible and Alleyne should apply. Even if Alleyne did apply
retroactively, the Superior Court has held that Alleyne does not apply to the deadly weapon
enhancement. Se, Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super. 2014)
("If the [deadly weapon] enhancement applies. the sentencing court is required to raise the
standard guideline range; however. the court retains the discretion to sentence outside the
guideline range. Therefore. neither of the situations addressed in Alleyne and Apprend: arc
7
In pertinent part, f 9712. l state,: "[A)ny person who Is convicted In any court of this Commonwealth of a crime of
violence u deflncd in secdon 9714(8) ... shall, lfthe person vialbly possessed a flrearm or a replica oh firearm,
whether or not the t1retrm or replica wu loaded or functional, that placed the victim in reuonablo fear of death or
serious bodily hljury, durln& the commission of the oft'onse, be sentenced to a minimum sentence of at leut five
rears of total conftnement •.•. " § 9712.l(a).
Petitioner had a prior record score of 4. The deadly weapon cnhan"ment was applied to Count 1, Robbery, and
Count 4, Rocklnaly Endanaerin& Another Pmon. Tramcript of Proceedinp, 2118/09, at 9.
' The standard 11111e for Count l, Buralary, which had the highest aravlty score of all the charges, was slxty·six
months to seventy-elaht montha. Transcript of Procoodinp, 2/18/09, at 9.
·19·
implicated.). This claim therefore lacks merit and Petitioner is entitled to no PCRA relief on this
issue.
CQ��LJlSJQN
For all of the foregoing reasons, it is ORDERED and DECREED that the collateral
relief sought by Petitioner is DENIED and Petitioner's PCRA Petition is hereby DISMISSED.
Petitioner is hereby notified that he has the right to appeal this Order to the Superior
Court of Pennsylvania. An appeal must be taken within thirty (30) days from the date of this
Order.
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