Com. v. Christine, J. ( 2017 )

J-S10003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JACOB MATTHEW CHRISTINE,
Appellant No. 3816 EDA 2015
Appeal from the PCRA Order Entered December 2, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002002-2007
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 01, 2017
Appellant, Jacob Matthew Christine, appeals pro se from the order
entered on December 2, 2015, dismissing his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The PCRA court summarized the facts underlying Appellant’s conviction
as follows:
On February 22nd, 2007, members of the Allentown Police
Department were dispatched to the Super 8 Motel, located at
1033 Airport Road, Allentown, Lehigh County, Pennsylvania, for
a shooting in progress. There, they came across Cameron
Fodero and Jeremy Pahula who indicated that they encountered
[Appellant] in the dumpster area, outside of the Super 8 Motel.
Mr. Fodero and Mr. Pahula approached [Appellant] and a brief
argument ensued. During the course of that questioning and
argument, [Appellant] produced an automatic weapon from
behind his back and pointed the weapon towards the ground, in
the direction of Mr. Fodero and Mr. Pahula, and fired several
shots. The ricochets from those shots resulted in a cut
J-S10003-17
underneath Mr. Fodero's right eye and Mr. Pahula[’s] being
struck in the center of his chest, both minor gunshot wounds.
Mr. Fodero ran away and [Appellant] then ran towards the front
of the motel, with Mr. Pahula[’s] giving chase. While being
chased, [Appellant] continued to fire several more shots at Mr.
Pahula. Mr. Pahula eventually caught up with [Appellant] just in
front of the lobby area of the Super 8 Motel and a physical
struggle ensued.
Mr. Pahula broke away. During the course of the physical
altercation, Mr. Pahula saw a chain lying on the ground and took
that in his possession. On his way back to his room, Mr. Pahula
yelled to the night clerk that he had been shot. The night clerk
also saw [Appellant] run by.
A short time later, that same clerk saw [Appellant] heading
towards the front of the Super 8 Motel, this time having changed
his clothes from a sweater to a black muscle shirt. Police units
arrived shortly thereafter.
At the direction of the night clerk, [Appellant] was taken
into custody by Allentown police. Subsequently, a search
warrant was obtained for [Appellant]'s room, Room Number 126.
$3,529.00 in US currency was found in the refrigerator,
alongside [Appellant]'s identification. Police found a .40 caliber
High Point semi-automatic handgun, which was loaded with
three hollow point shells in the magazine and one hollow point
shell in the chamber, and male clothing in a tote caddy.
Additionally, a backpack was found which contained [Appellant]'s
Social Security card, a certificate from the Department of
Education, [Appellant]'s résumé, and an "owe" sheet. Inside this
backpack, police also found 82.5 grams of cocaine and 128
grams of marijuana, variously packaged. Police found several
empty glass vials, Inositol (a cutting agent used for the
distribution of cocaine), and razors within the room.
It was later determined that [Appellant] did not have a
license to carry the firearm.
PCRA Court Opinion (“PCO”), 3/21/16, at 6-7 (quoting this fact summary
verbatim from the court’s December 2, 2015 opinion dismissing Appellant’s
PCRA petition).
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On November 2, 2007, Appellant, while represented by Nathan
Schiesser, Esq., pled nolo contendere to two counts of aggravated assault,1
one count of carrying a firearm without a license, 2 and two counts of
possession of a controlled substance with intent to deliver (“PWID”),3
pursuant to a negotiated plea agreement. However, prior to sentencing,
Appellant successfully withdrew his plea. See Order Granting Motion to
Withdrawal Plea of Nolo Contendere, 12/05/07, at 1 (single page). Attorney
Schiesser subsequently filed a petition to withdraw as Appellant’s counsel,
which was granted by the trial court on January 3, 2008.
Appellant obtained new counsel, Michael Parlow, Esq., who entered his
appearance on January 23, 2008. On February 15, 2008, Appellant filed an
omnibus pre-trial motion, which was dismissed as untimely on February 20,
2008. Appellant subsequently entered a negotiated guilty plea on June 6,
2008, to the same charges listed above. That same day, Appellant was
sentenced to consecutive terms of 1-2 years’ incarceration for the two
aggravated assault offenses, a concurrent term of 18-36 months’
incarceration for the firearm offense, a consecutive term of 30-60 months’
incarceration for one PWID offense, and a consecutive term of 5 years’
____________________________________________
1
18 Pa.C.S. § 2702(a)(4).
2
18 Pa.C.S. § 6106.
3
35 P.S. § 780-113(a)(30).
-3-
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probation for the remaining PWID offense. This resulted in an aggregate
sentence of 4½-9 years’ incarceration, to be followed by 5 years’ probation.
Appellant filed a timely, pro se direct appeal.4 On May 17, 2010, this
Court affirmed his judgment of sentence. Commonwealth v. Christine, 4
A.3d 194 (Pa. Super. 2010) (unpublished memorandum). On June 28,
2011, our Supreme Court denied Appellant’s petition for allowance of appeal
from that decision. Commonwealth v. Christine, 23 A.3d 1054 (Pa.
2011).
Appellant then filed a timely, pro se PCRA petition on February 2,
2012. Michael Wiseman, Esq., was appointed to represent Appellant during
the PCRA proceedings.5 In his pro se petition, Appellant raised, inter alia,
several ineffective assistance of counsel (“IAC”) claims. A PCRA hearing was
conducted on October 12, 2012, at which time Attorney Parlow testified.
Following that hearing, on February 12, 2013, Appellant filed a supplement
to his PCRA petition, alleging an additional IAC claim pertaining to Attorney
____________________________________________
4
For a brief time during Appellant’s direct appeal, he was represented by
appointed counsel, Albert Nelthropp, Esq. However, Appellant successfully
waived his right to appellate counsel, and proceeded pro se for the
remainder of his direct appeal. See Order, 3/11/10, at 1 (single page)
(permitting Attorney Nelthropp to withdraw in his representation of
Appellant, and permitting Appellant to proceed pro se, following a hearing
pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)).
5
It appears from the record that Appellant was briefly appointed standby
counsel prior to when Attorney Wiseman entered his appearance.
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Schiesser. A second PCRA hearing was held to address the supplementary
claim, at which Attorney Schiesser testified. A third PCRA hearing was
conducted on July 10, 2014, at which Appellant and Detective Ralph Romano
testified.6 Ultimately, the PCRA court dismissed Appellant’s petition by order
and opinion dated December 2, 2015.
Appellant filed a pro se notice of appeal on December 8, 2015. New
counsel was briefly appointed for his appeal, however, Appellant filed a
motion to proceed pro se with this Court. He also filed a pro se, court-
ordered Pa.R.A.P. 1925(b) statement in the PCRA court on January 21,
2016. On January 20, 2016, this Court remanded for a Grazier hearing to
determine “whether … Appellant’s waiver of counsel is knowing, intelligent
and voluntary[.]” Order, 1/20/16, at 1 (single page). Appellant’s Grazier
hearing was conducted on February 9, 2016, at which time the PCRA court
determined that Appellant’s choice to proceed without counsel was made
knowingly, intelligently, and voluntarily. N.T. Grazier Hearing, 2/9/16, at 6.
Also during that hearing, Appellant requested that the PCRA court accept his
previously rejected, pro se Rule 1925(b) statement, and the court agreed.7
____________________________________________
6
Detective Romano was the lead investigator in Appellant’s case, as well as
the affiant who obtained the search warrant.
7
The statement had initially been rejected because, at the time of its filing,
Appellant was represented by the attorney appointed by the court after
Appellant had filed his pro se notice of appeal.
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Id. at 7. The PCRA court then filed its Rule 1925(a) opinion on March 21,
2016.
Appellant now presents the following questions for our review, restated
for clarity, as follows:
I. Was Attorney Schiesser ineffective for failing to file a
suppression motion directed at the fruits of the search of
Appellant’s motel room?
II. Was Attorney Parlow ineffective during the second plea
process, for failing to object to the factual basis of the
plea, for coercing Appellant to plead guilty, for
misinforming Appellant about his direct appellate rights,
and/or for ignoring Appellant’s assertions of innocence?
III. Was Attorney Parlow ineffective for failing to challenge the
Commonwealth’s rescinding of the initial plea agreement
after Appellant withdrew his nolo contendere plea?
IV. Was Attorney Schiesser ineffective for failing to file a
Pa.R.Crim.P. 600 motion for nominal bail, as Appellant’s
continued incarceration after the first 180 days of
incarceration contributed to coercing him to accept a plea?
V. Was Attorney Parlow ineffective for failing to notify the trial
court of a threatening letter Appellant received from a
victim, and was Attorney Wiseman ineffective for failing to
question Attorney Parlow regarding that matter during the
October 12, 2012 PCRA hearing?
VI. Was Attorney Wiseman ineffective for failing to investigate
and litigate the issue that the Commonwealth tampered
with the notes of testimony from prior hearings, omitting
testimony favorable to Appellant’s legal interests, or
otherwise ineffective for failing to have the omission
corrected?
VII. Were Attorneys Schiesser, Parlow, and Wiseman
cumulatively ineffective?
Appellant’s Brief, at 3.
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Regarding Appellant’s seventh claim, wherein he asserts the
cumulative ineffectiveness of all prior counsel, we deem that matter waived,
as it was not raised in Appellant’s Rule 1925(b) statement. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived.”).
Furthermore, after a thorough review of the record, the briefs of the
parties, the applicable law, and the well-reasoned opinion(s) of the
Honorable Kelly L. Banach, we conclude that the remainder of Appellant’s
issues merit no relief. The PCRA court’s Rule 1925(a) opinion (which
incorporates its December 2, 2015 opinion that accompanied the order
dismissing Appellant’s PCRA petition) comprehensively discusses and
properly disposes of the first six questions presented in Appellant’s brief.
Specifically, we conclude in light of its opinion(s) that the PCRA court’s
dismissal of Appellant’s PCRA petition was “supported by evidence of record
and … free of legal error.” Commonwealth v. Ford, 44 A.3d 1190, 1194
(Pa. Super. 2012). Accordingly, with the exception of the claim we deem
waived for appellate review, we affirm the order denying Appellant’s PCRA
petition on the basis set forth in the PCRA court’s opinion(s).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
-8-
Circulated 02/10/2017 01:26 PM
/Sf-
IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
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KELLY L. BANACH, J.:
By way of background, the Court provides a brief summary of the relevant
procedural history of the underlying case. On February 23, 2007, the Appellant was
arrested and charged with two counts of Aggravated Assault 1, one count of Firearms
Not to be Carried Without a License2, two counts of Possession with the Intent to
Deliver3, two counts of Possession of a Controlled Substance+, and one count of
Possession of Drug Paraphernalias.e
The Appellant, represented by Nathan Bauer Schiesser, Esquire, waived his
Preliminary Hearing on May 2, 2007, and was arraigned on the above charges on June
11, 2007. On November 2, 2007, the Appellant pled nolo coniendere to both counts of
Aggravated Assault, Firearms Not to be Carried Without a License, and both counts of
Possession with Intent to Deliver. At the time of the nolo contendereplea, the
Commonwealth agreed to have both counts of Aggravated Assault run concurrently
1 18 Pa.Con.Stat.Ann. § 2702 (A}(4)
2 18 Pa.Con.Stat.Ann.§ 6106 (A)(l)
3 35 P.S. §780-113 §§ (A)(30)
4 35 P.S. §780-113 §§ (Al{ 16)
s 35 P.S. §780-113 §§ (A)(32)
6 The original charges also included two counts of Attempted Homicide (18 Pa.Con.Stat.Ann.
§2501(a)) and two counts of Simple Assault (18 Pa.Con.Stat.Ann. §2701(a)(2)). These charges
were withdrawn at the Preliminary Hearing.
2
with each other and the remaining counts to run concurrently with each other. The
Commonwealth also agreed to waive the mandatory sentencing provision. A Pre-
sentence Investigation Report (PSI) was ordered and sentencing was deferred to
December 5, 2007.
Prior to sentencing, the Appellant filed a prose Motion to Modify or Withdraw
his nolo contendre plea. After a hearing, the Motion was granted, the nolo contendere
plea was withdrawn, and a Bail Hearing was scheduled for December 10, 2007.
On December 28, 2008, Mr. Schiesser filed a Petition to Withdraw as Counsel.
Without opposition from the Appellant and no opinion expressed by the
Commonwealth, the Court granted the Petition on January 3, 2008.
On .January 23, 2008, the Appellant's new counsel, Michael K. Parlow, Esquire
filed a pre-trial discovery request. On February 15, 2008, an Omnibus Pretrial Motion
(OPTM) was filed on the Appellant's behalf. In response to this Motion, the
Commonwealth filed a Motion to Quash the Appellant's Omnibus Pretrial Motion
because the OPTM was not timely filed by the Appellant. On February 20, 2008, the
Court dismissed the OPTM. On March 25, 2008, the Appellant filed a Motion for
Reconsideration of Denial of Suppression Motion. The Matter was set for Hearing and
Status Conference on April 23, 2008. On that date, the Motion for Reconsideration
was abandoned and a trial date of June 9, 2008 was set.
On June 6, 2008, the Appellant entered a guilty plea to the same charges that
he pled nolo contendere to on November 2, 2007. The Commonwealth and the defense
agreed that the minimum sentence would be capped at four and a half years. The
Court sentenced the Appellant to a term of imprisonment of no less than 12 months
nor more than 24 months for each of the counts of Aggravated Assault, to be run
consecutive to each other; no less than 18 months nor more than 36 months of
3
incarceration for the count of Firearms Not to be Carried Without a License, to be run
concurrently with the Aggravated Assault charges; no less than 30 months nor more
'than 60 months for one count of Possession with Intent to Deliver, to be consecutive to
the sentences for the counts of Aggravated Assault and Firearms Not to be Carried
Without a License. For the second count of Possession with Intent to Deliver, the
Appellant was sentenced to a five-year period of probation supervision, consecutive to
the other charges.
On July 3, 2008, the Appellant filed a prose Notice of Appeal. On May 17,
2010, the Superior Court of Pennsylvania issued an Opinion affirming this Court's
Judgement of Sentence imposed on June 6, 2008. On June 28, 2011, the Supreme
Court of Pennsylvania denied the Appellant's Petition for Allowance of Appeal.
On February 3, 2012, the Appellant filed a prose Petition under the Post-
Conviction Relief Act. Thereafter, on May 1, 2012, Attorney Michael Wiseman, Esquire
entered his appearance.
On October 12, 2012, a PCRAHearing was held before this Court. At that time,
the Court heard testimony from Appellant's former counsel, Attorney Parlow, regarding
his representation of the Appellant.
On February 12, 2013, Attorney Wiseman filed a supplement to the pending
PCRApetition, which included an allegation of ineffectiveness of prior counsel
(Attorney Schiesser) for failing to file a Motion to Suppress. On November 25, 2013, a
Hearing was held and the Court heard testimony from Mr. Schiesser. On July 10,
2014, a third PCRAHearing was held and the Appellant and Detective Ralph Romano,
the affiant who filed the original charges, provided testimony to the Court.
On January 2, 2015, Attorney Wiseman filed a Brief in support of the PCRA
Petition for this Court's consideration. Despite being represented by experienced
4
counsel, the Appellant filed Amendments to Brief (in support of the PCRA) on January
12, 2015 and January 28, 2015.
On February 3, 2015, the Appellant filed a prose Motion to Terminate Counsel.
On February 8, 2015, the Commonwealth filed its Response Brief regarding the PCRA
Petition. On April 10, 2010 a Hearing was held with regard to the Motion to Terminate
Counsel. At the conclusion of the Hearing, the Court ordered the withdrawal of
Attorney Wiseman."
On May 1, 2015, the Appellant filed an additional prose Brief in support of the
PCRA Petition. The Commonwealth filed its Response to that Brief on September 1,
2015. The Appellant then filed another Brief for the Court's consideration of his
allegations on September 15, 2015. This Court issued an Order and Opinion denying
the PCRA Petition on December 2, 2015.
On December 16, 2015, the Court received a copy of the Appellant's prose
Notice of Appeal of the December 2, 2016 Order and Opinion of this Court. On
December 16, 2015, the Court appointed Attorney Sean Poll, Esquire to represent the
Appellant for purposes of an Appeal. On December 29, 2015, the Appellant' filed a pro
se Motion to Proceed Pro Se and Other Relief with the Superior Court of Pennsylvania.
On January 21, 2016, the Court received a prose Statement of Matters Complained of
on Appeal from the Appellant.
Pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the Court held a
Hearing on February 9, 2016 and determined that the Appellant had knowingly,
intelligently and voluntarily waived his right to counsel for the instant Appeal. At the
Hearing, which the Appellant attended via video conference, the Appellant asserted
7
The Order allowing Attorney Wiseman to withdraw was filed on April 13, 2015.
5
that he wished the Court to consider the Concise Statement he previously filed. Notes
of Testimony> Feb. 9> 2016, 7. The Court has done so and this Opinion follows.
SUMMARYOF THE FACTS
By way of background, the Court reproduces a brief summary of the
underlying facts of the case, taken f~om our December 2, 2015 Order and Opinion:
On February 22nd, 2007, members of the Allentown
Police Department were dispatched to the Super 8 Motel,
located at 1033 Airport Road, Allentown, Lehigh County,
Pennsylvania, for a shooting in process. There, they came
across Cameron Fodero and Jeremy Pahula who indicated
that they encountered the Defendant in the dumpster area,
outside of the Super 8 Motel. Mr. Fodero and Mr. Pahula
approached the Defendant and a brief argument ensued.
During the course of that questioning and argument, the
Defendant produced an automatic weapon from behind his
back and pointed the weapon towards the ground, in the
direction of Mr. Fodero and Mr. Pahula, and fired several
shots. The ricochets from those shots resulted in a cut
underneath Mr. Fodero's right eye and Mr. Pahula being
struck in the center of his chest, both minor gunshot
wounds. Mr. Fodero ran away and the Defendant then ran
towards the front of the motel, with Mr. Pahula giving
chase. While being chased, the Defendant continued to fire
·several more shots at Mr. Pahula. Mr. Pahula eventually
caught up with the Defendant just in front of the lobby area
of the Super 8 Motel and a physical struggle ensued.
Mr. Pahula broke away. During the course of the
physical altercation, Mr. Pahula saw a chain lying on the
ground and took that in his possession. On his way back
to his room, Mr. Pahula yelled to the night clerk that he
had been shot. The night clerk also saw the Defendant run
by.
A short time later, that same clerk saw the
Defendant heading towards the front of the Super 8 Motel,
this time having changed his clothes from a sweater to a
black muscle shirt. Police units arrived shortly thereafter.
At the direction of the night clerk, the Defendant was
taken into custody by Allentown police. Subsequently, a
search warrant was obtained for the Defendant's room,
Room Number 126. $3,529.00 in US currency was found in
the refrigerator, alongside the Defendant's identification.
Police found a .40 caliber High Point semi-automatic
handgun, which was loaded with three hollow point shells
in the magazine and one hollow point shell in the chamber,
and male clothing in a tote caddy. Additionally, a backpack
6
was found which contained the Defendant's Social Security
card, a certificate from the Department of Education, the
Defendant's resume, and an "owe" sheet. Inside this
backpack, police also found 82.5 grams of cocaine and 128
grams of marijuana, variously packaged. Police found
several empty glass vials, Inositol (a cutting agent used for
the distribution of cocaine), and razors within the room.
It was later determined that the Defendant did not
have a license to carry the firearm.
Order/Opin.Denying PCRA Dec. 2, 2015, 5-6.
DISCUSSION AND CONCLUSIONS OF LAW
Upon review of the Appellant's prose Statement of Matters Complained of on
Appeal, it would appear that the Appellant is alleging that the Court erred when it
denied the Appellant's PCRA Petition.s In short, the Appellant reiterates the
arguments he made in his prose P9RA Petition, specifically that trial counsel was
ineffective in (1) failing to litigate suppression issues; (2) in his representation at the ·
guilty plea hearing , giving incorrect appellate advice, and failing to meet with the
Appellant after sentencing; (3)failing to challenge what transpired at the Preliminary
Hearing regarding the agreement between the Commonwealth and the Appellant's
counsel; (4) failing to file and litigate Rule 600 motions; and, (5) failing to notify the
Court of a letter written by the victim in the underlying case. In addition, the
Appellant asserts a sixth allegation of ineffectiveness in his Statement of Matters
Complained of on Appeal that counsels was ineffective "for failure to investigate and
litigate the issue that the Commonwealth has tampered with the transcripts in this
case." Stmnt. Of Matters Complained of on Appeal, Jan.21, 2015, 3.
8 The Court notes that five of the allegations included in the pro se Statement of Matters
Complained of on Appeal (Paragraphs I through V) are allegations concerning the
ineffectiveness of prior counsel (Attorney Schiesser and Attorney Parlow) and are not phrased
as allegations of errors made by the Court. However, we believe that it was the intention of the
Appellant to argue that the Court erred when we did not agree with the Appellant when he
made the same allegations in his pro se PCRA.
9 The Appellant has been represented by at least three different attorneys at various stages of
his prosecution. In his Statement, he refers generically to "counsel" in his allegations although
clearly the Appellant's assertions apply to specific perceived ineffectiveness.
7
As to the first five allegations of error, the Court relies on its analysis performed
in the Order and Opinion dated December 2, 2015 and incorporates it by reference
and as Exhibit A to this Opinion. We call particular attention to the Discussion and
Conclusions of Law section of the Opinion from page 7 through page 25.
We next respond to the last allegation of the Statement of Matters Complained
of on Appeal that counsel was ineffective in failing to investigate and litigate the
authenticity of the prepared transcripts. Although the Appellant's reference to
"counsel" in this allegation is vague, based on the procedural history of this case and
testimony taken of the Appellant at the PCRA Hearing of April 10, 2015, the Court
assumes that the allegation is in reference to Attorney Wiseman. By way of
background, we note that on January 12, 2015, the Appellant sent this Court a prose
Petition for Temporary Waiver of Counsel. In said Petition, the Appellant suggested
that PCRAcounsel had "omitted some key issues that were contained in petitioners
[sic] original PCRA"in his Post-Hearing Brief and that the Appellant "[did] not wish to
terminate counsel, but only temporarily waive his representation in respect to the
filing of the amendments of the material that counsel has omitted against petitioners'
[sic] explicit requests." Pet. For Temp. Waiver of Counsel, rec'd January 12, 2015,1.
This Court promptly denied the Petition lo and the case proceeded.
Thereafter, on February 3, 2015, the Appellant filed a Motion to Terminate
Counsel. On February 11, 2015, PCRACounsel Wiseman sent the Court (and Counsel
for the Office of the District Attorney) a Response to the Motion to Terminate. In the
Response, Attorney Wiseman suggested that "{c]ounseland [the Appellant] simply
have an honest disagreement over the issues not included in the Brief" Counsel Resp.
10 "[T'[hereis no right of self-representation together with counseled representation ("hybrid
representation") at the trial level." Commonwealth v. Ellis, 626 A.2d 1137, 1138 (citing
Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985)).
8
Feb. 10, 2015 at 3. Attorney Wiseman did not object to the Court withdrawing him
from representation.
At the Hearing on the Motion to Terminate Counsel, held on April 10, 2015, a
. representative from the Office of the District Attorney and the Appellant (appearing via
video conference) were present. Attorney Wiseman was not present. The App~llant
made it clear to the Court that he no longer wished Attorney Wiseman to represent
him _and the Court withdrew Attorney Wiseman from representation ~f the Appellant.
[The Court]. Okay. And sometime thereafter I know ·
that you filed. I don't know if I responded to it. You
wanted to supplement the brief. And I guess this was
Petition for Temporary Waiver of Counsel. I don't
know if I ever responded to that with an order.
But, thereafter, you filed a motion to withdraw; is
that correct?
[The Appellant]. Yeah, you did actually respond to
the motion. I had attempted to supplement Mr.
Wisernan's filing because his brief had waived a lot of
issues that we had agreed he would include and I
had insisted that he include but he refused to
include.
Once I saw that you denied the supplement,
that's when I filed to just terminate my counsel
because I knew that that was the only way that I
could amend the brief and include those issues that
he had waived.
Q. Okay. So at this point in time, Mr. Christine,
we are at a place where you do have the right to have
counsel represent you at the PCRA.You have had
private counsel represent you.
Are you choosing to have this counsel withdrawn
voluntarily of your own free will?
A. Yes, I am.
Q. And do you understand that at this point in
time your choices are that you can go forward on
your own or you can attempt to engage another
attorney?
A. I understand that. I would like to go forward
on my own.
Q. Okay.
A. File my own brief.
Notes of Testimony, April 10, 2015, 8-9.
9
After agreeing that he intended to file a Supplemental Brief for consideration of
the PCRA Petition, the Appellant indicated that he believed that there were errors in
the Notes of Testimony produced in regard to the June 6, 2008 Guilty Plea Hearing
and a Hearing held on July 10, 2014. He further suggested that he verbalized his
concerns to Attorney Wiseman while he represented the Appellant. Id. at 14. The
Court agreed, at the hearing, to review the audio recording of the Hearing and -make
any corrections necessary, and to inform the Appellant as to what was discovered. At
the conclusion of the Hearing, the Appellant was given until April 30, 2015 to submit a
Supplemental Brief in support of his PCRAPetition.
On April 16, 2015, the Court compared the audio recordings of the June 6,
2008 and .July 10, 2014 Hearings to the Notes of Testimony filed. In fact, a
discrepancy was found between the audio recording and the transcription of the June
6, 2008 Hearing. The transcripts were corrected accordingly. No discrepancies were
found in the July 10, 2014 Hearing transcription. The Court sent a letter to the
Appellant informing him of our findings.
The Appellant did file a Supplemental Brief, dated April 26, 201_5. Included in
the Supplemental Brief was the Appellant's belief that Attorney Wiseman had
submitted an incomplete brief that "omitted issues that were key to defendants [sic]
defense." Suppl. Brief, April 26, 2015, 23.
While not addressed in our December 2, 2015 Opinion which denied the prose
PCRAPetition, we do not find that Attorney Wiseman was ineffective in failing to
include an issue involving the discrepancies of a transcript in his Brief, nor was he
ineffectivefor failing to "litigate the issue that the Commonwealth has tampered with
the transcripts in this case." Stmt. Of Matters Complained of on Appeal at 3.
10
To be entitled to relief under the PCRA, the petitioner must establish that "in
the circumstances of the particular case, [counsel's ineffectiveness] so undermined the
truth-determining process that no reliable adjudication of guilt or innocence could
have taken place." Id.; see also Commonwealth v. duPont, 860 A.2d 525, 531
(Pa.Super.2004) (referring to 42 Pa.C.S. § 9543(a)(2)(ii)). The law presumes that
counsel has rendered effective assistance to his client and the petitioner bears the
burden of proving the contrary. Commonwealth v. Copeland, 554 A.2d 54, 58
(Pa.Super. 1988)(internal citations omitted); Commonwealth v. Rivers, 786 A.2d 923,
927 (Pa. 2000). When determining if counsel has been ineffective, the burden is on
the petitioner to "prove by a preponderance of the evidence that his conviction or
sentence resulted from ineffective assistance of counsel." duPont at 531.
"[The Appellate Courts] have interpreted this provision in the P724 A.2d 326,
333 (Pa. 1999); Strickland v. Washington, 466 U.S. 668, 687, (1984). Furthermore, a
claim of ineffectiveness must be rejected if the appellant fails to satisfy any of the
prongs. Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super. 2009).
At the outset, we reiterate that the Appellant has not had the benefit of formal
legal training and is representing himself without the experience of having actually
practiced law (in criminal or civil court) in Lehigh County, or any other jurisdiction as
· far as the Court is aware. It is this lack of actual legal expertise, as opposed to
educating oneself on the legal process, which, perhaps, leads the Appellant to this far-
11
fetched argument. For the Appellant's knowledge, it is the Court Transcriptionist
which certifies the authenticity of the transcript. The Commonwealth plays absolutely
no role in the preparation, review, or filing of the notes of testimony. Any mistake
made is just that - a mistake in transcription- and not the result of the
Commonwealth or its agents "tampering." Attorney Wiseman, being a respected
member of the bar and an attorney with considerable experience in the judicial system
as well as how notes of testimony are prepared, would not have been successful in
pursuing such a claim against the Commonwealth. Because there is no merit in the
Appellant's claim against Attorney Wiseman, the Court denied the PCRAPetition in its
entirety.
CONCLUSION
For all of the foregoing reasons, including those included in the December 2,
. .
2015 Order and Opinion attached hereto, we urge the Superior Court to deny and
dismiss the instant Appeal.
By the Court:
12
Circulated 02/10/2017 01:26 PM
IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
. CRIMINAL DMSION
COMMONWEALTH
OF PENNSYLVANIA
vs. No.: 2002 of 2007
JACOB CHRISTINE,
Defendant
OPINION
Kelly L. Banach, J .:
On February 23, 2007, the Defendant was arrested and charged with two
counts of Aggravated Assault'. one count of Firearms Not to be Carried Without a
License>,two counts of Possession with the Intent to Deliver", two counts of
Possession of a Controlled Substance", and one count of Possession of Drug
Paraphernaliae.s
The Defendant, represented by Nathan Bauer Schiesser, Esquire, waived his
Preliminary Hearing on May 2, 2007 and was arraigned on the above charges on June
11, 2007. On November 2, 2007, the Defendant pled nolo contendere to both counts of
Aggravated Assault, Firearms Not to be Carried Without a License, and both counts of
Possession with Intent to Deliver. At the time of the nolo contendere plea, the
Commonwealth agreed to have both counts of Aggravated Assault run concurrently
with each. other and the remaining counts to run concurrently with each other. The
1 18 Pa.Con.Stat.Ann. § 2702 (A)(4)
2 18 Pa.Con.Stat.Ann.§ 6106 (A)(l)
3 35 P.S. §780-113 §§ (A)(30)
4 35 P.S. §780- 113 §§ (A)( 16)
s 35 P.S. §780-113 §§ (A)(32)
6 The original charges also included two counts of Attempted Homicide (18 Pa.Con.Stat.Ann.
§2501(a)) and two counts of Simple Assault (18 Pa.Con.Stat.Ann. §2701(a)(2)). These charges
were withdrawn at the Preliminary Hearing.
2
Commonwealth also agreed to waive the mandatory sentencing provision. A Pre-
sentence Investigation Report (PSI} was ordered and sentencing was deferred to
December 5, 2007.
Prior to sentencing, the Defendant filed a pro se Motion to Modifyor Withdraw
his nolo contendre plea. After a hearing, the Motion was granted, the nolo coniendere
plea was withdrawn, .and a Bail Hearing was scheduled for December 10, 2007,
On December 28, 2008, Mr. Schiesser filed a Petition to Withdraw as Counsel.
Without opposition from the Defendant and no opinion expressed by the
Commonwealth, the Court granted the Petition on January 3, 2008.
On January 23, 2008, the Defendant's new counsel, Michael K. Parlow, Esquire
filed a pre-trial discovery request. On February 15, 2008, an Omnibus Pretrial Motion
(OPTM} was filed on the Defendant's behalf. In response to this Motion, the
Commonwealth filed a Motion to Quash the Defendant's Omnibus Pretrial Motion
because the OPTMwas not timely filed by the Defendant. On February 20, 2008, the
Court dismissed the OPTM. On March 25, 2008, the Defendant filed a Motion for
Reconsideration of Denial of Suppression Motion. The Matter was set for Hearing and
Status Conference on April 23, 2008. On that date, the Motion for Reconsideration
was abandoned and a trial date of June 9, 2008 was set.
On June 6, 2008, the Defendant entered a guilty plea to the same charges that
he pled nolo coniendere to on November 2, 2007. The Commonwealth and the defense
agreed that the minimum sentence would be capped at four and a half years. The
Court sentenced the Defendant to a term of imprisonment of no less than 12 months
nor more than 24 months for each of the counts of Aggravated Assault, to be run
consecutive to each other; no less than 18 months nor more than 36 months of
incarceration for the count of Firearms Not to be Carried Without a License, to be run
3
concurrently with the Aggravated Assault charges; no less than 30 months nor more
than 60 months for one count of Possession with Intent to Deliver, to be consecutive to
the sentences for the counts of Aggravated Assault and Firearms Not to be Carried
Without a License. For the second count of Possession with Intent to Deliver, the
Defendant was sentenced to a five-year period of probation supervision, consecutive to
the other charges.
On July 3, 2008, the Defendant filed a prose Notice of Appeal. On May 17,
2010, the Superior Court of Pennsylvania issued an Opinion affirming this Court's
Judgement of Sentence imposed on June 6, 2008. On June 28, 2011, the Supreme
Court of Pennsylvania denied the Defendant's Petition for Allowance of Appeal.
On February 3, 2012, the Defendant filed a prose Petition under the Post-
Conviction Relief Act. Thereafter, on May·1, 2012, Attorney Michael Wiseman, Esquire
entered his appearance.
On October 12, 2012, a PCRAHearing was held before this Court. At that time,
the Court heard testimony from Defendant's former counsel, Attorney Parlow,
regarding his representation of the Defendant.
On February 12, 2013, Attorney Wiseman filed a supplement to the pending
PCRApetition, which included an allegation of ineffectiveness of prior counsel
(Attorney Schiesser) for failing to file a Motion to Suppress. On November 25, 2013, a
Hearing was held and the Court heard testimony from Mr. Schiesser. On July 10,
2014, a third PCRAHearing was held and the Defendant and Detective Ralph Romano,
the affiant who filed the original charges, provided testimony to the Court.
On January 2, 2015, Attorney Wiseman filed a Brief for this Court's
consideration. Despite being represented by experienced counsel, the Defendant filed
4
Amendments to Brief (in support of the PCRA)on January 12, 2015 and January 28,
2015.
On February 3, 2015, the Defendant filed a pro se Motion to Terminate Counsel.
On February 8, 2015, the Commonwealth filed its Response Brief regarding the PCRA
Petition. On April 13, 2015, the Court filed an Order withdrawing Attorney Wiseman
from representation of.the Defendant.
On May 1, 2015, the Defendant filed yet another prose Brief in support of the
PCRAPetition. The Commonwealth filed its Response to the latest Brief on September
1, 2015. The Defendant filed at least the fourth Brief for the Court's consideration of
the Defendant's allegations on September 15, 2015.
BRIEF STATEMENTOF THE FACTSOF THE UNDERYLYING
CASE7
On February 22nd, 2007, members of the Allentown Police Department were
dispatched to the Super 8 Motel, located at 1033 Airport Road, Allentown, Lehigh
County, Pennsylvania, for a shooting in process. There, they came across Cameron
Fodero and Jeremy Pahula who indicated that they encountered the Defendant in the
dumpster area, outside of the Super 8 Motel. Mr. Fodero and Mr. Pahula approached
the Defendant and a brief argument ensued. During the course of that questioning
and argument, the Defendant produced an automatic weapon from behind his back
and pointed the weapon towards the ground, in the direction of Mr. Fodero and Mr.
Pahula, and fired several shots. The ricochets from those shots resulted in a cut
underneath Mr. Fodero's right eye and Mr. Pahula being struck in the center of his
chest, both minor gunshot wounds. Mr. Fodero ran away and the Defendant then ran
towards the front of the motel, with Mr. Pahula giving chase. While being chased, the
Defendant continued to fire several more shots at Mr. Pahula. Mr. Pahula eventually
1The followingrecitation of the facts of the underlying case is taken from this Court's Opinion,
dated September 9, 2008.
5
caught up with the Defendant just in front of the lobby area of the Super 8 Motel and
a physical struggle ensued.
Mr. Pahula broke away. During the course of the physical altercation, Mr.
Pahula saw a chain lying on the ground and took that in his possession. On his way
back to his room, Mr. Pahula yelled to the night clerk that he had been shot. The
night clerk also saw the Defendant run by.
A short time later, that same clerk saw the Defendant heading towards the front
of the Super 8 Motel, this time having changed his clothes from a sweater to a black
muscle shirt. Police units arrived shortly thereafter.
At the direction of the night clerk, the Defendant was taken into custody by
Allentown police. Subsequently, a search warrant was obtained for the Defendant's
room, Room Number 126. $3,529.00 in US currency was found in the refrigerator,
alongside the Defendant's identification. Police found a .40 caliber High Point semi-
automatic handgun, which was loaded with three hollow point shells in the magazine
and one hollow point shell in the chamber, and male clothing in a tote caddy.
Additionally, a backpack was found which contained the Defendant's Social Security
card, a certificate from the Department of Education, the Defendant's resume, and an
"owe" sheet. Inside this backpack, police also found.82.5 grams of cocaine andl28
grams of marijuana, variously packaged. Police found several empty glass vials,
Inositol (a cutting agent used for the distribution of cocaine), and razors within the
room.
It was later determined that the Defendant did not have a license to carry the
firearm.
6
DISCUSSION AND CONCLUSIONS OF LAW
Claims of ineffective assistance of counselare cognizable under the PCRA. See
42 Pa.C.S.A. § 9543 (a)(2)(ii). To be entitled to relief, the petitioner must establish that
"in the circumstances of the particular case, [counsel's ineffectivenessJ so undermined
the truth-determining process that no reliable adjudication of guilt or innocence could
have taken place." Id.; see also Commonwealth v. duPont, 860 A.2d 525, 531
(Pa.Super.2004) (referring to 42 Pa.C.S. § 9543(a)(2)(ii)). The law presumes that
counsel has rendered effective assistance to his client and the petitioner bears the
burden of proving the contrary. Commonwealth v. Copeland, 554 A.2d 54, 58
(Pa.Super. 1988)(intemal citations omitted); Commonwealth u. Rivers, 786 A.2d 923,
927 (Pa. 2000). When determining if counsel has been ineffective, the burden is on
the petitioner to "prove by a preponderance of the evidence that his conviction or
sentence resulted from ineffective assistance of counsel." duPont at 531.
"[The Appellate Courts] have interpreted this provision in the PCRAto mean
that the petitioner must show: (1) that his claim of counsel's ineffectiveness has merit;
(2) that counsel had no reasonable strategic basis for his action or inaction; and (3)
that the error of counsel prejudiced the petitioner-i.e., that there is a reasonable
probability that, but for the error of counsel, the outcome of the proceeding would
have been different." Id. at 531 (referring to Commonwealth v. Kimball, 724 A.2d 326,
333 (Pa. 1999); Strickland u. Washington, 466 U.S. 668, 687, (1984). Furthermore, a
claim of ineffectiveness must be rejected if the appellant fails to satisfy any of the
prongs. Commonwealth u. Fitzgerald, 979 A.2d 908, 910 (Pa.Super. 2009). If the
petitioner is unable to demonstrate prejudice, the first two prongs of the ineffective
examination need not be addressed. Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa.
2005). In that case, "the claim may be disposed of on that basis alone, without a
7
determination of whether the first two prongs have been met." Commonwealth v.
Wilson, 672 A.2d 293, 298 (Pa. 1996).
The Defendant alleges the followingin his prose PCRAPetition:
I. Claims with Regard to Attorney Schiesser
a. Attorney Schiesser was ineffective at the time of the Preliminary Hearing
because he allowed or encouraged the Defendant to waive his
Preliminary Hearing;
b. Attorney Schiesser was ineffective when he failed to file and/ or litigate
suppression issues;
c. Attorney Schiesser was ineffective when he failed litigate a Nominal Bail
Motion;
II. Claims with Regard to Attorney Parlow
a. Attorney Parlow was ineffective by failing to file a Post-Sentence Motion
to withdraw the Defendant's nolo contendre plea;
b. Attorney Parlow was ineffective when he provided incorrect information
to the Defendant regarding the Defendant's later ability on appeal to
challenge Attorney Schiesser's failure to file pretrial motions;
c. Attorney Parlow was ineffective.by failing to appear at the
Reconsideration Hearing;
d. Attorney Parlow was ineffective by failing to meet with the Defendant
after sentencing;
e. Attorney Parlow was ineffective by failing to challenge the agreement
between the Commonwealth and the Defendant at the time of the
Preliminary Hearing;
f. Attorney Parlow was ineffective by failing to litigate a Nominal Bail
Motion;
g. Attorney Parlow was ineffective by failing to notify the Court regarding a
letter written by the victim in the underlying case;
h. Attorney Parlow was ineffective because he coerced the Defendant to
plead guilty with a promise of the return of the Defendant's jewelry;
1. Attorney Parlow was ineffective by failing to advising him of the
possibility of consecutive probation.
III. The Court erred in refusing to grant the Defendant discovery as it related to
the prison conditions he was subject to followinghis guilty plea.
INEFFECTIVENESS OF ATTORNEY SCHIESSER
The Defendant claims that Attorney Schiesser was ineffective in failing to file a
Motion to Suppress prior to the Defendant's nolo contendre plea in November of 2007.
Additionally, the Defendant asserts that he maintained his innocence throughout
Attorney Schiesser's representation and that he continuously requested that Attorney
Schiesser file a Motion to Suppress. He argues that there was no agreement regarding
8
his waiver of his Preliminary Hearing and that Attorney Schiesser pressured him to
waive his Preliminary Hearing and to ultimately enter the nolo contendre plea.
The Court heard testimony from Attorney Schiesser regarding his recollection
of his representation of the Defendant. Attorney Schiesser testified that he became
involvedin the case shortly after the Defendant's arrest. On the date of the
Preliminary Hearing.i May 2, 2007, Attorney Schiesser spoke with the Assistant
District Attorney assigned to the case and negotiated a plea agreement. Specifically,
the Commonwealth agreed to withdraw the two Attempted Homicide charges in
exchange for the Defendant waiving his Preliminary Hearing and agreeing to enter a
guilty plea. Further, the Commonwealth agreed to have the sentences imposed in the
Aggravated Assault charges run concurrently and that the drug charges would run
concurrently, although no agreement was made regarding the two groups of charges .
and concurrency. Attorney Schiesser testified that he discussed the agreement prior
to the Defendant waiving the Preliminary Hearing, most likely on the same day. The
Defendant appeared to Attorney Schiesser to be agreeable to the negotiated disposition
at the time.
When the time came for the Defendant to enter his guilty plea, the Defendant
changed his mind and wanted to plead nolo coniendre instead. The Defendant told
Attorney Schiesser that he did not want to admit what he did, but gave no further
explanation. After the nolo coniendre plea was entered, the Defendant terminated
Attorney Schiesser's representation on the date of the Sentencing Hearing. It was at
that point that the Defendant stated that he wished to file a suppression motion.
At the PCRAHearing on November25, 2013, Attorney Schiesser testified that
during his representation of the Defendant, he always believed that the case was to
result in a guilty plea disposition and that the negotiated plea agreement was
9
appropriate. Attorney Schiesser testified that he evaluated the facts of the case and
determined that his client would not prevail on any pretrial motion and that filing a
Pretrial Motion was meritless. He further stated that it was his understanding at the
time that if a Pretrial Motion was litigated, that the negotiated plea agreement (from
the time of the Preliminary Hearing) would be withdrawn by the Commonwealth. Not
filing Pretrial Motions was part of the defense strategy to keep the negotiated plea
agreement in place.
We cannot agree that the failure to file a Motion to Suppress constituted
ineffective assistance of counsel. First, we find that Attorney Schiesser's
determination that Pretrial Motions were not necessary or in the best interest of his
client and the negotiated plea under consideration was clearly part of a reasonable
defense strategy. "It is well-established that where matters of strategy and tactics are
concerned, counsel's assistance is deemed constitutionally effectiveif he chose a
particular course that had some reasonable basis designed to effectuate his client's
interests." Commonwealth v. Smith, 17 A.3d 873, 888 (citations omitted). "A finding
that a chosen strategy lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for success substantially
greater than the course actually pursued." Id. (citations omitted). The negotiated plea
agreement involved both the charges to be pursued by the Commonwealth, as well as
sentencing agreements, indicating that both parties understood that a non-trial
disposition was contemplated. Additionally,Attorney Schiesser recalled that had he
litigated a Pretrial Motion, the advantageous negotiated guilty plea would be taken
away by the Commonwealth.
Second, the Defendant is unable to show that had the Suppression Motion
been filed, that it would be meritorious. The Defendant alleges that the search
10
warrant e~ecuted in this case was insufficient and therefore, any resulting evidence
seized ought to have been suppressed. "[BJefore inquiring into the basis for trial
counsel's failure to file a suppression motion, we must determine whether the claim
which counsel is charged with failing to pursue was a frivolous one." Commonwealth
u. Gaston, 378 A.2d 297, 299 (Pa. 1977). In the instant case, this Court must
determine if the search warrant and the affidavit contained therein was valid.
"In determining whether a search warrant is supported by probable cause,
appellate review is confined to the four corners of the affidavit. Probable cause, in
turn, is a practical, non-technical concept which requires consideration of the totality
of the circumstances." Commonwealth v. Galvin, 985 A.2d 783, 796 (Pa. 2009)(citing
Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003)). The Court will consider
whether the issuing authority correctly determined "given all of the facts and
circumstances provided in the affidavit, including the veracity and basis of knowledge
of the persons supplying hearsay information, {that] there is a fair probability that
contraband or evidence of a crime will be found in a certain locale." Id. "It must be
remembered that probable cause is based on a finding of the probability of criminal
activity, not a primafacie showing of criminal activity." Commonwealth v. Luton, 672
A.2d 819, 822 (Pa.Super. 1996)(citingCommonwealth v. Baker, 615 A.2d 23, 25 (Pa.
1992)).
The four comers of the search warrant, and a reading of the facts and
circumstances provided in the affidavit, demonstrate a "fair probability that
contraband or evidence of a crime" would be found in Room 126 of the Super 8 Motel.
Specifically, the affidavit alleges that Allentown Police were summoned to the Super 8
for a report of a shooting. Shell casings were discovered outside of the Super 8 and
two victims identified the Defendant as the person who shot at them. The Defendant
11
was stopped while he wa.s attempting to flee the Super 8 and it was determined that
the Defendant was staying in Room 126. Because the affidavit "must be viewed in a
common sense, non-technical manner," we find that there was sufficient prima facie
evidence that contraband or evidence of criminal activity would be found in the
location to be searched. We find that had the Motion to Suppress been pursued, it
would not have been. successful and therefore, Attorney Schiesser was not ineffective
for failing to file such a Motion.
We also find no merit in the Defendant's assertion that because the warrant
was served at night without a demonstration that a nighttime search was reasonably
necessary, it ought to be suppressed. Even if no demonstration had been made, a
technical violation of Pa.R.Crim.Pro. 203 (E) does not warrant suppression of the
evidence. See Commonwealth v. Lyons, 79 A.3d 1053, 1065 n.9 (Pa.2013); and,
Commoruuealth. v. Johnson, 462 A.2d 743, 747 (Pa.Super. 1983)("Arule of exclusion is
properly employed where the objection goes to the question of the reliability of the
challenged evidence, or reflects intolerable government conduct which is widespread
and cannot otherwise be controlled.")
Likewise,we find no merit in the Defendant's argument regarding the
suppression of controlled substances found within a backpack in Room 126. "[W]here
a search warrant adequately describes the place to be searched and the items to be
seized the scope of the search 'extends to the entire area in which the object of the
search may be found and properly includes the opening and inspection of containers
and other receptacles where the object may be secreted." Commonwealth v. Watson,
724 A.2d 289, 292 (citing Commonwealth v. Reese, 549 A.2d 909, 911 (Pa. 1988)). The
warrant identified '40 A.3d 1245, 1249 (Pa.Super. 2012).a
Finally, the Defendant asserts that Attorney Schiesser was ineffectivein his
representation when he failed to file a Nominal Bail Motion. Pa.R.Crim.Pro. 600 (B)
and (C) provide "Except in cases in which the defendant is not entitled to release on
bail as provided by law, no defendant shall be held in pretrial incarceration in excess
of 180 days from the date on which the complaint is filed.... [P]eriodsof delay at any
stage of the proceedings caused by the Commonwealth when the Commonwealth has
failed to exercise due diligence shall be included in the computation of the time within
which trial must commence. Any other periods of delay shall be excluded from the
computation."
In the instant matter, the Criminal Complaint was filed (and the Defendant
was taken into custody) on February 231 2007. He was arraigned on June 11, 2007
(108 days). The Defendant requested a continuance of the status conference at that
time. The defendant was next in Court on August 141 2007. At that point, the
Commonwealth requested a continuance. The case was then listed for September 7,
2007 (total of 132 days). At that time, the Defendant again requested time to consider
the plea offer made by the Commonwealth. The Defendant entered his first plea on
November 7, 2007 and only 132 days had elapsed. At that time, and while Mr.
s "The plain view doctrine provides that evidence in plain view of the police can be seized
without a warrant .... The plain view doctrine applies if 1) police did not violate the Fourth
Amendment during the course of their arrival at the location where they viewed the item in
question; 2) the item was not obscured and could be seen plainly from that location; 3) the
incriminating nature of the item was readily apparent; and 4) police had the lawful right to
access the item." Anderson at 1249, internal citations omitted.
13
Schiesser still represented the Defendant, a Rule 600 Motion was baseless because
180 days had not yet passed. Again, because Mr. Schiesser cannot be found
ineffective for failing to file a meritless motion, the Defendant's allegations again fail.
Because we find that Attorney Schiesser's failure to file a Motion to Suppress
and/ or a Motion for Bail pursuant to Rule 600 did not render his service ineffective for
the above-stated reasons, the Defendant's PCRA Petition as it pertains to Attorney
Schiesser's representation must fail.
INEFFECTIVENESS OF ATIORNEY PARLOW
We begin by considering the Defendant's allegation that Attorney Parlow was
ineffective by failing to challenge the agreement between the Commonwealth and the
•
Defendant at the time of the Preliminary Hearing. We find this accusation without
merit. At the time he withdrew his nolo contendre plea, the Court clearly informed the
Defendant that all prior negotiated deals between the Commonwealth and the defense
were no longer in play, given that he had withdrawn the nolo contendre plea. The
Defendant accepted that and still continued with the withdrawal of the nolo contendre
plea.
The Defendant asserts that Attorney Parlow was ineffective when he permitted
the Defendant to enter a guilty plea knowing that the Defendant believed he had acted
in self-defense. At the time of the guilty plea, the Defendant acknowledged his actions
on the record:
THE COURT: Are you pleading guilty to all of these crimes and I will
outline them again for you, two counts of aggravated assault, one count
of firearms not to be carried without a license, one count of possession
with intent to deliver cocaine, one count of possession with intent to
deliver marijuana? Are you pleading guilty to all of those charges
because you are, in fact, guilty of them?
MR. CHRISTINE:Yes, I am.
N.T. 6/6/08, 39-40.
14
By acknowledging his criminal acts, and agreeing to plead guilty, any and all defenses
to the criminal activity alleged are moot. Had he wished to assert the defense, the
Defendant should have put aside the negotiated plea agreement and offers from the
Commonwealth and gone to trial. We will not find Attorney Parlow ineffective based
on this allegation.
The Defendant alleges that Attorney Parlow coerced him to plead guilty by
failing to notify the Court of a letter which the Defendant perceived to be threatening
from one of the victims, by making a promise that the Defendant's jewelry would be
returned, and/or by failing to advise the Defendant of the possibility of consecutive
probation. To determine whether the guilty plea was knowingly, intelligently, and
voluntarily made, we look to the transcript of the June 6, 2008 guilty plea and
sentencing. At the outset of the guilty plea, the Court advised? the Defendant
regarding the criminal charges and possible penalties he was facing, including the
possible maximum sentences.
THE COURT: Okay. We'll give it a try. Mr. Christine, you
and I have gone down this road before.
MR. CHRISTINE: Yes.
THE COURT: But it's necessary for me to make a new and
separate record. So, we have to act as if we haven't done it
before. Some things we might be able to short cutjust a
little bit, but I need to make a record and again, I need to
be assured that you understand everything that is going on
and that you -- the purpose of the colloquy, which is the
question and answer thing, is I need to be convinced that
this is a knowing and voluntary guilty plea. So you know
what you are doing and you are doing it of your own free
will. So, that's why I ask all these questions.
MR. CHRISTINE:I understand.
***
9The Court had previously described the crimes and possible penalties to the Defendant
during the course of his first nolo coniendre plea while represented by Attorney Schiesser.
15
•
THE COURT: Okay. Then let's go over the charges, again,
we've done this once before, but we've had some lapse of
time. There are two counts of aggravated assault. I believe
these counts are that you caused serious bodily injury to
another person with a deadly weapon.
[SENIORDEPUTYDISTRICTATTORNEY]
BERNARDINO:
Bodily injury.
THE COURT: Bodily injury with a deadly weapon.
MR. BERNARDINO:Yes, Judge.
THE COURT: Okay. And again, two separate victims. So,
you intentionally caused bodily injury to two other people
with a deadly weapon. And a deadly weapon can be almost
anything that can cause death, quite frankly. But surely,
guns and knives are in that category without any
reservation. Do you understand the crime of aggravated
assault?
MR. CHRISTINE:Yes.
THE COURT: They are both graded as felonies of the
second degree, which means they have maximum possible
penalty ofup to ten years in prison and/or $25,000.00 in
fines. Do you understand?
MR. CHRISTINE: Yes.
***
THE COURT: All right. The other charge is firearms not to
be carried without a license. You may own a firearm, you
may carry it around, believe it or not, in the presence of
other people, in an open and notorious fashion, but if you
want to conceal it on your person or carry it in a closed
vehicle, you have to have a license to do that. If you don't
have a license to do that, you are considered to be in
violation of this section of the Crimes Code. That's graded
as a felony of the third degree, it has a maximum possible
penalty ofup to seven years in prison and/or $15,000.00 in
fines. Do you understand that crime and that penalty?
MR. CHRISTINE: I understand that crime,' too.
THE COURT: Okay. And we have one count of -- or, I'm
sorry, two counts of possession with intent to deliver a
controlled substances. Controlled substances are
substances that the law says you are not permitted to have.
16
These substances are marijuana and cocaine. And
possession with intent to deliver means that you had these
two substances in such quantities and/ or other
circumstances such that it would be reasonable for me to
conclude that your purpose was not to have them for
personal use, but rather to deliver them, meaning, to give
or sell them to another person. That could mean that there
was a tremendous quantity or that there was a particular
quantity, but it was packaged in a certain way. It could
mean that it was in combination with packaging materials,
lots of money, customer lists, it could mean that you had it
without any kind of use paraphernalia, so, it didn't appear
that you were intending to use it all. So, those are some of
the factors that contribute to proof of possession with
intent to deliver. Do you understand?
MR. CHRISTINE:Yes.
THE COURT: Okay. Both of those are felonies and I think
there's some distinction or not -- yes, for the possession
with intent to deliver cocaine, it's up to ten years in prison
and/or $100,000.00 in fines. For marijuana, five years in
prison and/or $15,000.00 fines.
MR. CHRISTINE:I understand.
Notes of Testimony, June 6, 2008, p. 5-6; 9-
10;13-15.
THE COURT: It's explained to me, Mr. Christine, that you are going to
plead guilty to five different counts of the information. They address four
different crimes. And as I recall, there were two separate victims here.
The agreement is that you will receive a four and a half year minimum
sentence for those crimes, the maximum will be up to my discretion. Is
that your understanding of the agreement?
MR. CHRISTINE: I understand that.
Id. at 8-9.
In addition to the answers to the Court's questions, the Appellant also executed a
written guilty plea colloquy. The Court went over this document with the Appellant:
THE COURT: Okay. Once again, we asked
you to go over this guilty plea colloquy. Did
you go through this document carefully?
MR. CHRISTINE:Yes, we did.
17
•
THE COURT: Can you tell me, Mr. Christine,
who actually marked the answers to the
questions?
MR. CHRISTINE: That was me.
THE COURT: Did you answer the questions
truthfully?
MR. CHRISTINE: Yes.
THE COURT: Yes?
MR. CHRISTINE: Yes, I did.
THE COURT: Okay. Do you have any
questions about this document or about the
rights that you're giving up?
MR. CHRISTINE: Nope.
THE COURT: Are you sure?
MR. CHRISTINE: No, ma'am.
THE COURT: It says you're presently on
probation or parole, were you on probation or
parole at the time this offense was committed?
MR. CHRISTINE: No.
THE COURT: Okay. Near the end, we ask for
your signature, is that your signature?
MR. CHRISTINE: Uh, huh.
THE COURT: Again, that tells me that you did
understand all of the questions and you did
answer them all truthfully. Is that right?
MR. CHRISTINE: Yes, it is.
Id. at 20-22:9-5.
From the testimony taken at the Guilty Plea, and upon consideration of the
Defendant's answers to the verbal questions as well the written colloquy, it is clear
that the Defendant was well aware of what the crimes were that he was pleading guilty
to and what he could potentially receive in terms of sentencing. Therefore, the current
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allegations of coercion are completely without substantiation in the record. The
Defendant's allegations of Attorney Parlow's ineffectiveness in this regard are without
merit.
Next, the Defendant asserts that Attorney Parlow was ineffectivein that he
failed to file Post-Sentence Motions and/ or a Notice of Appeal followingthe
Defendant's negotiated guilty plea on June 6, 2008. The Court heard testimony from
Attorney Parlow on October 12, 2012. Attorney Parlow indicated that followingthe
entry of the guilty plea and the sentencing hearing, the Defendant no longer wished for
Attorney Parlow's representation, although Attorney Parlow could not recall how he
was informed of the Defendant's decision. Further, the Defendant had indicated to
Attorney Parlow that he wished to pursue his appeal on his own. In response,
Attorney Parlow sent the Defendant information regarding how he could exercise his
appeal rights (Defense Exhibit 8, 10/ 12/ 12). 10 Defense Exhibit 5 (a memo to the
Attorney Parlow's working file) indicated that Attorney Parlow advised the Defendant
that the only issue on appeal would be the effectiveness or ineffectiveness of Attorney
Parlow, and perhaps Attorney Schiesser, although Attorney Parlow indicated that he
believed that claim to be without merit.
Pursuant to R.Crim.Pro. 120, "[ajn attorney who has been retained or
appointed by the court shall continue such representation through direct appeal or
until granted leave to withdraw by the court." "Where a defendant does not ask his
attorney to file a direct appeal, counsel still may be held ineffective if he does not
10 At the October 12, 2012 Hearing, Attorney Parlow appeared in response to a subpoena. He
brought the contents of his case file. The Defendant's counsel at the time, Attorney Wiseman,
requested access to Attorney Parlow's file, but Attorney Parlow objected to turning that file
over. Therefore, the Court accepted the contents of the file and determined which of the items
Attorney Wiseman was entitled to. By Order, dated October 9, 2014, the Court accepted
Defense Exhibits 5 through 15 to be admitted into evidence and provided copies to Attorney
Wiseman and the Commonwealth.
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consult with his client about the client's appellate rights. Such ineffectiveness,
however, will only be found where a duty to consult arises either because there were
issues of merit to raise on direct appeal or the defendant, in some manner, displayed'
signs of desiring an appeal." Commonwealth u. Markowitz, 32 A.3d 706, 714
(Pa.Super. 2011).
The Defendant is unable to demonstrate that he did, in fact, inform Attorney
Parlow that he desired to file Post-Sentence Motions or to appeal either his guilty plea
or his sentence. Rather, the Court finds persuasive Attorney Parlow's recollection of
events followingthe sentencing hearing and finds that Exhibits 5 (the memo to the file)
and 8 (letter sent to the Defendant regarding appeal information) corroborate his
recollection. Specifically, Exhibit 8 directs the Defendant to contact Attorney Parlow
should he have questions or for more information. In addition, it is uncontroverted
that followingthe sentencing hearing, the Defendant no longer wished to have
Attorney Parlow represent him.
Additionally, Attorney Parlow was not required to file an appeal because no
issues of merit existed. The Defendant's guilty plea was knowing and voluntary, and
the sentence issued was legal and without abuse of discretion. We recall that on July
3, 2008, the Defendant filed a prose Notice of Appeal which contained allegations of
error regarding the guilty plea and sentencing. Specifically, the Defendant alleged that
that he was unaware of the true penalties for the charges he pled guilty to and that he
was coerced into pleading guilty because (a) counsel informed him that he would have
his personal belongings (specifically the gold chain and pendent) returned as a
condition of the guilty plea; (b) he was given chocolate by the Court; (c) he became
concerned about his mother's health; (d) he did not have witnesses, proper trial
clothing, and a haircut for trial; (e) he presumed that Mr. Parlow would impose
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additional fees if he elected to go to trial; and, [f] he allegedly received threats made by
one of the victims in the case. This Court wrote a detailed opinion regarding the
Defendant's allegations. On May 17, 2010 the Pennsylvania Superior Court affirmed,
finding that the Defendant had waived these issues because he failed to raise these
challenges regarding his guilty plea in the lower court. However, the Superior Court
did state, "[eJvenwere we able to address the merits of[the Defendant's! challenges to
his guilty plea, we would not hesitate to find these arguments to be without merit."
Commonwealth v. Christine, 2039 EDA 2008, 6 n.2, May 17, 2010). Because the
Defendant's challenges to the guilty plea were without merit, failing to file a meritless
appeal cannot render Attorney Parlow's representation ineffective.
Likewise, Attorney Parlow was not obligated to file an appeal or post-sentence
motion because a challenge to the sentence imposed was without merit. At the time of
the guilty plea, the Commonwealth and the defense agreed that the minimum
sentence would be capped at four and a half years. The Court sentenced the
Appellant to pay the costs of prosecution and to a term of imprisonment of no less
than 12 months nor more than 24 months for each of the counts of Aggravated
Assault, to be run consecutive to each other; no less than 18 months nor more than
36 months for the count of Firearms Not to be Carried Without a License, to be run
concurrently with the Aggravated Assault charges; no less than 30 months nor more
than 60 months for one count of Possession with Intent to Deliver, to be consecutive to
the sentences for the counts of Aggravated Assault and Firearms Not to be Carried
Without a License. For the second count of Possession with Intent to Deliver, the
Appellant was sentenced to a five-year period of probation supervision, consecutive to
the other charges. The sentence imposed fell within the plea agreement and did not
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violate the statutory maximums. Therefore, only the discretionary aspects of the
sentence could have been challenged via a Post Sentence Motion.
"An abuse of discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will." Commonwealth v. Smith, 673 A.2d 893, 895 (Pa.
1996)(internal citations omitted). A sentencing court is entitled to consider the totality
of circumstances when malting its decision. Here, the Court had an opportunity to
review a presentence investigation report prepared by the Lehigh County Probation
and Parole Department in anticipation of sentencing.u In addition, the Court was
provided a copy of the Defendant's institutional misconduct and letters that the
Defendant had sent to the Court. The Defendant, his mother, and his counsel gave
argument at the time of sentencing as well. Given the totality of the circumstances
including the Defendant's prior criminal history, the violent nature of the crime, the
risk to others as well as the Defendant, and the Court's need to protect the community
from future similar behavior, the sentence imposed was not manifestly unreasonable,
or the result of partiality, prejudice, bias or ill-will. Therefore, had the Defendant
indeed appealed the discretionary aspects of his sentence either by filing a Post-
Sentence Motion or via appeal, his allegations would be without merit. Again,
Attorney Parlow cannot be found ineffectivefor failing to file Motions or an appeal
which was both unrequested and without merit.
Next, the Defendant alleges that Attorney Parlow was ineffective in the
information he provided the Defendant regarding his ability to challenge Attorney
11 The PSI was prepared followingthe nolo coniendre plea and was utilized for the sentencing
followingthe ultimate guilty plea on June 6, 2008. Mr. Parlow and the Defendant had an
opportunity to review the PSI prior to sentencing.
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Schiesser's failure to file a Motion to Suppress. As stated at length above, we do not
find that Attorney Schiesser's representation was ineffective in this regard, and
therefore, the Defendant is unable to satisfy the prejudice prong of the Strickland test.
As such, this claim of ineffectiveness is also without merit.
The Defendant next alleges that Attorney Parlow was ineffective in failing to
appear at the Reconsideration Hearing regarding the Court's denial of the untimely
filed Motion to Suppress. For the reasons stated above in the Court's discussion of
the merits regarding the challenge to the search warrant, even had Attorney Parlow
appeared at the hearing and even if the Court had agreed to entertain the untimely
Motion to Suppress, ultimately the Motion to Suppress would have been denied.
Therefore, the Defendant cannot satisfy the prejudice prong of the Strickland test for
ineffectiveness.
The Defendant claims that Attorney Parlow was ineffective because he did not
meet with him after sentencing. After a discussion followingthe entry of the guilty
plea and followingthe imposition of the sentence, the Court reiterated the Defendant's
post-sentence and appellate rights to the Defendant. Further, although he indicated
that he wished to speak with his attorney, the Defendant indicated that he was in the
Restricted Housing Unit ("the hole"). The followingexchange occurred:
THE COURT: Okay. Now,I can have you remain here for ten days, I can
have you remain here for thirty days.
MR. CHRISTINE: Remain in Lehigh County?
THE COURT: Yes.
MR. CHRISTINE: I'm in the hole right now. I really can't do -
THE COURT: Well, you should be able to communicate with your
attorney for purposes of the appeal.
MR. CHRISTINE: Okay. I would choose to remain.
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THE COURT: To remain for thirty days? But my -- this doesn't trump
your -- you are here and you have days that you owe them in the hole,
that's where you stay. If I send you within ten days then you just go.
MR. CHRISTINE: Does it take a long time to go up anyway?
THE COURT: No, they would probably take you next week if I didn't
keep you here.
MR. CHRISTINE:So, me -
MR. PARLOW: We discussed this before, Judge, and -- I told him how to
get in contact with me. He wants to go up.
THE COURT: All right. Then I am not going to order anything with
regard to -- whenever they get a ride going?
MR. PARLOW: Yes.
THE COURT: As we say, on the bus. Okay.
N.T. 6/6/08 at 63-65.
From this excerpt it is clear that the Defendant wished to be transported to the state
facility without delay and that he had been previously made aware of the method in
which he could get ahold of Attorney Parlow to have him file additional paperwork.
The Defendant never contacted Attorney Parlow. For reasons stated above, because
the Defendant never contacted Attorney Parlow to file the Post-Sentence Motions or to
file a Notice of Appeal, and because those items are without merit, Attorney Parlow
was under no obligation to file those documents. Without the obligation, he cannot be
considered to be ineffective.
The Defendant also argues that Attorney Parlow was ineffective for failing to
file a Rule 600 Motion. As stated in the previous section, at the time the Defendant
entered his first nolo coniendre plea on November 7, 2007, only 132 days had elapsed.
The Defendant then withdrew the nolo coniendre plea on December 5, 2007. Pursuant
to Pa.R.Crim.Pro. 600 (B)(4), the Commonwealth had 120 days from December 5,
2007, to bring the Defendant to trial. Omnibus Pretrial Motions were then filed on
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February 15, 2008, which stopped the calculation at 73 days. The OPTMwas
dismissed on February 20, 2008, which again started the calculation of time. A
Motion for Reconsideration of the OPTMwas filed on March 28, 2008, which again
stopped the calculation of time. At that point, 110 days had passed. On March 31,
2008, defense counsel requested a continuance and the case was rescheduled to April
23, 2008. On April 23, 2008, the Court denied the Motion for Reconsideration and set
a trial date of June 9, 2008 based on the availability of the Court. The ultimate guilty
plea was taken on June 6, 2008. Based on the excludable time and the calculations
above, any Rule 600 Motion for Nominal Bail would be meritless and the Defendant's
allegations of ineffectiveness based on Attorney Parlow's failure to file such a motion
fails.
COURT'S ERROR IN REFUSING DISCOVERY
The Defendant alleges that he is entitled to discovery related to the prison
conditions as they existed at the time period followinghis entry of his guilty plea due
to the fact that those conditions affected his ability to file timely post-sentence
motions. He avers that he was housed in the Restrictive Housing Unit ("the hole") and
due to that status, he had no access to writing materials to timely file a pro se post-
sentence motion.
As we noted in our September 4, 2012 Order, pursuant to Pa.R.Crim.Pro.
§902(E}(l),the Court has discretion to permit discovery in post-conviction matters
only upon a showing of "exceptional circumstances." He has failed to show
exceptional circumstances. We note that the Defendant failed to raise the issue of his
restrictions while in the RHU and/or in his inability to file proper Motions and/or
Petitions in his July 3, 2008 appeal to the Superior Court and only raised this issue in
a prose Motion for Withdraw , received by this Court on August 23, 2010. The
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Defendant has failed to disclose what, if any, post-sentence motions would have been
filed but for the conditions in the prison immediately followinghis guilty plea and
sentencing. Therefore, we believe that granting PCRAdiscovery would amount to an
excuse for engaging in a "fishing expedition," and this Court will not condone such
tactics. Because the Defendant has failed to show exceptional circumstances as to
why he is entitled to PCRA discovery and has failed to demonstrate any prejudice the
denial of the Motion for Discovery has caused, we believe that the Court was justified
in denying the Motion for Discovery.
CONCLUSION
For all of the foregoing reasons, this Court does not find that either Attorney
Schiesser or Attorney Parlow rendered ineffective assistance of counsel. Further, we
do not believe that PCRA Discovery was warranted in this case and that we were
correct in denying such a request. Therefore, we DENY and DISMISS the pro se PCRA
Petition.
By the Court:
KellyL. Ban~h, J.
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