Com. v. Bickel, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRUCE BICKEL :
:
Appellant : No. 329 WDA 2022
Appeal from the PCRA Order Entered February 11, 2022
In the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000213-2017
BEFORE: BOWES, J., OLSON, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: APRIL 28, 2023
Bruce Bickel, nunc pro tunc,1 appeals from the post-hearing order
denying relief under the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A.
§§ 9541–9546. On appeal, Bickel contends that his trial counsel was
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 Retired Senior Judge assigned to the Superior Court.
1 As background, the lower court issued the appealed-from order without
Bickel being present. In looking at the order’s contents, it does not “advise
[Bickel] of the right to appeal from [that order] disposing of the petition [nor]
of the time limits within which the appeal must be filed.” Pa.R.Crim.P. 908(E).
Bickel’s nunc pro tunc counseled notice of appeal from the February 11, 2022
order was filed on March 21, 2022, exceeding the permitted filing period. See
Pa.R.A.P. 903(a) (thirty days). Despite the untimeliness of this notice, we
conclude that there has been a breakdown in the court’s operation given the
infirmity associated with the appealed-from order, i.e., the absence of
information regarding its appealability. Consequently, we decline to quash the
appeal. See Commonwealth v. Braykovich, 664 A.2d 113 (Pa. Super.
1995) (allowing for this Court to permit an enlargement of the filing period in
situations that involve a breakdown in the processes of the lower court).
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ineffective, that his guilty plea is void, and that his sentence is illegal.
Separately, PCRA counsel has filed an Anders2 brief, asserting that an
examination of the record has uncovered no non-frivolous issues to pursue in
this appeal.3 After thorough review, we affirm the PCRA court’s order and
additionally grant counsel’s application to withdraw.
As cogently summarized by the court:
This case has a complex and lengthy procedural history, but
essentially arises out of two complaints at two separate dockets
regarding [Bickel’s] alleged sexual abuse of two children, F.A.S.
and J.D.B. On September 22, 2016, while [Bickel] was being
interviewed by Meadville City Police regarding the allegations
involving J.D.B. … he opened his cell phone and showed Meadville
City Detective Justin Bailey pornographic pictures involving
minors. As a result, [Bickel’s] phone was taken and placed in
evidence at the Meadville City Police Department, and he was
arrested on the sexual abuse charges involving J.D.B., as well as
charges involving possession of child pornography.
At [the present] docket, Detective Sergeant Stefanucci … obtained
a search warrant on January 11, 2017 for [Bickel’s] cell phone,
based on F.A.S.’s allegations that he had taken pornographic
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2 Anders v. California, 386 U.S. 738 (1967).
3 We note that counsel’s brief is mistakenly labeled as an Anders brief.
Anders applies only when counsel seeks to withdraw from representation on
direct appeal. As counsel, here, attempts to withdraw in Bickel’s collateral
appeal, Turner and Finley apply. See Commonwealth v. Widgins, 29 A.3d
816, 817 n.2 (Pa. Super. 2011) (citing Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc)). Notwithstanding that error, counsel’s mistake is not fatal to an
application to withdraw. We have repeatedly held that “because an Anders
brief provides greater protection to a defendant, this Court may accept an
Anders brief in lieu of a Turner/Finley letter.” See, e.g., id. (citation
omitted). As such, we are inclined to accept counsel's Anders brief and
correspondingly evaluate whether it substantially complies with the
Turner/Finley criteria. See id., at 819.
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pictures of her with the cell phone. The phone was then sent to
the Pennsylvania State Police (hereinafter “PSP”) for inspection.
On February 2, 2017, PSP prepared a report detailing the results
of the inspection of [Bickel’s] cell phone, which found several
photos of both male and female juveniles, ranging in age from
toddler to teenager. [Bickel] was subsequently arrested regarding
the sexual abuse allegations made by F.A.S. and possession of
child pornography.
[Bickel] was initially represented by Attorney Wayne Hundertmark
at both dockets. Attorney Hundertmark withdrew his appearance
at the [current] docket when Attorney Gary Kern entered his
appearance on July 10, 2017. … Attorney Kern represented
[Bickel] … through sentencing.
[Ultimately], [Bickel] entered a guilty plea [at the 2017 case] …
to ten counts of Sexual Abuse of Children – Possession of Child
Pornography pursuant to 18 Pa.C.S.A. § 6312(d)(1). … The
Commonwealth and Attorney Kern also negotiated an agreed-
upon sentence[. The other charges Bickel faced, such as, inter
alia, rape of a child and involuntary deviate sexual intercourse
with a child were nolle prossed as a result of this plea.]
On May 3, 2019, [Bickel] was sentenced … to the agreed-upon
sentence of five to twenty-five years of incarceration[.] Prior to
sentencing, Attorney Kern went over the [“]Appellate Rights of
Defendant [a]fter Sentencing[”] with [Bickel] to ensure that he
understood his post-sentence and appellate rights after entry of a
guilty plea.
Memorandum and Order, 11/17/21, at 1-2. Bickel did not file a direct appeal.
Approximately eleven months after this sentence was imposed, Bickel,
pro se, filed the present PCRA petition. The court appointed Bickel with
counsel, who thereafter submitted an amended petition.
The court conducted an evidentiary hearing on August 23, 2021, and
after hearing the testimony of both Bickel and Attorney Kern, found no merit
to any of the issues advanced in either Bickel’s pro se or counseled petition.
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The court reached this determination contemporaneous with its issuance of an
exhaustive memorandum and order evaluating all of the outstanding PCRA
issues. On February 10, 2022, the court entered an order dismissing Bickel’s
PCRA petition and as explained, supra, Bickel filed a counseled notice of appeal
nunc pro tunc from this order. Thereafter, the relevant parties complied with
their respective obligations under Pennsylvania Rule of Appellate Procedure
1925. As such, the matter is ripe for review.
Before we begin any substantive analysis of Bickel’s claims, we must
address the outstanding motion to withdraw filed by Bickel’s PCRA counsel. To
withdraw from PCRA representation, counsel must competently and
independently review the record. That review requires: (1) a “no-merit” letter
by PCRA counsel detailing the nature and extent of his review; (2) a “no-
merit” letter by PCRA counsel listing each issue the petitioner wished to have
reviewed; (3) PCRA counsel's explanation, in the “no-merit” letter, as to why
the petitioner's issues are meritless; (4) independent review of the record by
the PCRA or appellate court; and (5) agreement by the PCRA or appellate
court that the petition was meritless. See Commonwealth v. Pitts, 981 A.2d
875, 876 n.1 (Pa. 2009) (quoting Finley, 550 A.2d at 215). In addition to
these five precepts,
PCRA counsel who seeks to withdraw must contemporaneously
serve a copy on the petitioner of counsel's application to withdraw
as counsel, and must supply to the petitioner both a copy of the
“no-merit” letter and a statement advising the petitioner that, in
the event that the court grants the application of counsel to
withdraw, he or she has the right to proceed pro se or with the
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assistance of privately[-]retained counsel.
Commonwealth v. Friend, 896 A.2d 607, 614 (Pa. Super. 2006).
Despite some irregularities,4 there has been substantial compliance with
Turner/Finley and Friend. Counsel’s application indicates that “[t]he
undersigned has undertaken a thorough and conscientious review of the entire
record in this matter.” Application to Withdraw as Counsel, ¶ 2. Counsel’s brief
maintains the same: “[a]fter a thorough and careful review of the entire record
in this case … [.]” See, e.g., Anders Brief, 16, 18. In addition, the application
to withdraw, Anders brief, and letter advising Bickel of his rights going
forward were designated as having been served upon him. See Application to
Withdraw as Counsel, ¶ 6. Relatedly, Bickel was advised of his ability to
proceed pro se or with private counsel, and Bickel’s acknowledgement of this
advisement is evident through a responsive/subsequent pro se filing.5 In
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4 For instance, originally, counsel included language suggesting that Bickel’s
ability to proceed pro se or with privately retained counsel was predicated on
this Court granting counsel’s application to withdraw. See Application to
Withdraw as Counsel, Ex. A. However, after being ordered to do so, counsel
corrected this error by, inter alia, sending another letter to Bickel serving to
apprise him of his immediate right to proceed pro se or with private counsel.
Moreover, independent of this misstatement, counsel did not append a copy
of Bickel’s statement of errors contained of on appeal to the Anders brief.
See Pa.R.A.P. 2111(d).
5As best as can be discerned, Bickel’s pro se and handwritten submission does
not raise any issues that are independent from those contained in the
counseled brief. In fact, Bickel’s pro se statement of questions involved
contained in his most recent filing only includes three substantive issues,
whereas the Anders brief contains an additional ineffective assistance of
(Footnote Continued Next Page)
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addition, counsel’s brief, acting as the “no-merit” letter, outlines the issues
Bickel seeks review of and concomitantly, in a well-developed manner,
explains why those issues are, in fact, meritless.
As counsel has substantially complied with the procedural requirements
for withdrawal, we ascertain whether there is any validity to any of the claims
contained either within the brief or raised by Bickel in a pro se capacity.
Our standard of review for an order that dismisses a PCRA petition
requires this Court to dually consider whether the PCRA court’s determination
is supported by evidence of record and, too, free of legal error. See
Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010) (citation
omitted). However, we are limited to the PCRA court’s findings and evidence
of record, which are viewed in the light most favorable to the prevailing party
at the lower court level. See id. To the extent the PCRA court has made
credibility determinations, if the record supports those conclusions, they are
binding on this Court. See Commonwealth v. Widgins, 29 A.3d 818, 820
(Pa. Super. 2011).
The Anders brief raises four issues:
1. Was trial counsel ineffective for being unwilling to prepare for
or go to trial and also failing to locate or speak with two
potential trial witnesses that Bickel identified to counsel?
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counsel allegation, which, in the aggregate, amounts to four issues.
Notwithstanding that disparity, later in Bickel’s pro se filing, four discrete
issues are contained in his argument summary section. These four issues
parallel those identified in counsel’s Anders brief.
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2. Was trial counsel ineffective for not discussing case or defense
strategy with Bickel, thereby unlawfully inducing him to enter
into a guilty plea?
3. Is Bickel’s guilty plea void where he did not take an oath or
affirmation prior to its entry?
4. Is Bickel’s sentence illegal where, in addition to his term of
incarceration, he was required to pay a fine, but no inquiry was
made into his ability to pay said fine?
Anders Brief, at 5-6.
As the first two arguments contest counsel’s effectiveness, we start from
the position that “counsel is presumed to be effective and the burden of
demonstrating effectiveness rests on [the] appellant.” Commonwealth v.
Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (citation omitted). Specifically,
for an ineffectiveness claim to have validity,
[a] petitioner must show (1) that the underlying claim has merit;
(2) counsel had no reasonable strategic basis for his or her action
or inaction; and (3) but for the errors or omissions of counsel,
there is a reasonable probability that the outcome of the
proceedings would have been different. The failure to prove any
one of the three prongs results in the failure of petitioner's claim.
Id. (citation omitted).
As these ineffectiveness challenges follow Bickel having accepted a
guilty plea:
Allegations of ineffectiveness in connection with the entry of a
guilty plea will serve as a basis for relief only if the ineffectiveness
caused [an] appellant to enter an involuntary or unknowing plea.
In determining whether a guilty plea was entered knowingly and
intelligently, a reviewing court must review all of the
circumstances surrounding the entry of that plea.
Commonwealth v. Mitchell, 105 A.3d 1257, 1272 (Pa. 2014) (citations
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omitted); see also Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.
Super. 2016) (establishing that “a guilty plea must be knowingly, voluntarily
and intelligently entered[]”) (citation omitted).
Similar to the presumption that counsel was effective, “Pennsylvania law
presumes a defendant who entered a guilty plea was aware of what he was
doing, and the defendant bears the burden of proving otherwise.”
Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa. Super. 2018).
Furthermore, “one is bound by one’s statements made during a plea colloquy,
and may not successfully assert claims that contradict such statements.”
Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002).
Bickel first avers that his counsel was ineffective for failing to locate two
witnesses: (1) a PSP trooper named Danielle; and (2) F.A.S.’s mother.
As to the former witness, Bickel believes that F.A.S. and that trooper
had a conversation, but was unaware of what had been discussed between
them. Bickel concedes that he “was unable to provide Attorney Kern with the
trooper’s last name.” Pro Se Response to Anders Brief, at 24. Bickel also
admits that he has “no idea what [T]rooper Danielle and F.A.S. may have
discussed and could not verify their conversation[.]” Id., at 25.
At the PCRA hearing, Attorney Kern stated that he called the local PSP
barracks and “asked to speak to a Trooper Danielle[,]” but no one by that
name worked at that facility. PCRA Hearing, 8/23/21, at 136. Further inquiry
led to the discovery that there had been a Danielle working at that barracks
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at some point, but it was believed that she had left the force. See id. Attorney
Kern then went onto Facebook and sent a message to a former PSP trooper
by the name of Danielle, but did not receive a response. See id.
With Bickel having no specific identifying information (other than a first
name) about Trooper Danielle and, too, with him having no clear concept of
whether this Trooper’s testimony would be in any way relevant should this
case have gone to trial, Bickel has not satisfied any of the three ineffective
assistance prongs. Stated succinctly, Bickel has not demonstrated that there
is underlying merit to the notion that this Trooper’s testimony would have
been in any way valuable at trial, Attorney Kern’s actions were responsive to
Bickel’s directives and clearly reasonable in tracking this Trooper down based
on the information that had been provided, and finally, Bickel has failed to
demonstrate that counsel actually finding the Trooper would have yielded any
sort of different result. Therefore, this claim warrants no relief.
As to F.A.S.’s mother, Bickel suggests that “F.A.S.’s mother had
information that was valuable to his case and [therefore] wanted her
subpoenaed.” Pro Se Response to Anders Brief, at 26.
Conversely, Attorney Kern believed that any information gleaned from
this individual would be unlikely “to lead to any relevant or admissible
information[.]” PCRA Hearing, 8/23/21, at 138. Essentially, to Attorney Kern,
Bickel wanted F.A.S.’s mother investigated for unrelated allegations of poor
parenting. See id. (providing an anecdote about how F.A.S.’s mother asked
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Bickel to watch her children while she went to meet up with a man in New
York for several days). However, Bickel’s desired questioning “didn’t go to any
of the elements of the crime” and “[w]ould not have changed the outcome of
the case[.]” Id., at 138-39.
Bickel’s pro se filing fails to demonstrate that there would have been
any merit to obtaining the testimony of F.A.S.’s mother. Moreover, it is
entirely unclear what kind of information, relevant to the elements or defenses
of the crimes in which he had been charged, Bickel thinks he could have
extracted from F.A.S.’s mother. To that point, Bickel acknowledges that he
and Attorney Kern “discussed why [the Attorney] did not feel that F.A.S.’s
mother would be an appropriate witness.” Pro Se Response to Anders Brief,
at 27. Even through the most generous reading of his pro se brief, which we
consider in tandem with the Anders brief, Bickel has presented absolutely
nothing to show that counsel’s inaction in not subpoenaing F.A.S.’s mother
was unreasonable, especially in light of the fact that Bickel and Attorney Kern
had a complete discussion on the matter. Furthermore, without Bickel framing
the type of information he could have expected to receive from the mother’s
testimony, there is no indicia that anything obtained could have changed
proceedings. Therefore, Bickel’s claim of ineffective assistance necessarily
fails.
Bickel’s other ineffective assistance of counsel claim contends that
Attorney Kern failed to discuss either trial strategy or potential defenses with
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him.
At the hearing, Bickel testified that Attorney Kern apprised him of the
elements of the charges he was facing. See PCRA Hearing, 8/23/21, at 37-
38. However, Bickel avers that Attorney Kern stated there were no defenses
to any of those crimes. See Pro Se Response to Anders Brief, at 28.
Bickel believed he had a defense insofar as he was “helping a minor
child prove that she … and her two … siblings were being molested and
photographed by F.A.S.’s half brother.” Id. Bickel also contends that as a
member of the Pennsylvania State Fire Police and/or in his position as an
unlicensed private investigator, he could investigate crimes of this nature. See
id. Additionally, Bickel suggests that Attorney Kern did not explain to him “the
Good Samaritan Laws.” Id., at 29.
Attorney Kern stated that he did, in fact, have conversations with Bickel
about various defenses that he could have raised, specifically as it pertained
to the possession of child pornography charges. See PCRA Hearing, 8/23/21,
at 130. After conducting legal research, Attorney Kern had determined that
relevant child pornography-related defenses were inapplicable if that material
was being possessed for any reason other than a “good-faith, bona fide,
medical, scientific, or law enforcement function.” Id. Attorney Kern conveyed
to Bickel that such defenses were likely inapplicable to his situation. See id.
However, Attorney Kern was still prepared to vigorously defend his client,
should the case have gone to trial. See id., at 134 (testifying that Attorney
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Kern would have argued that Bickel “was operating under a subjective believe
that he was engaging in some sort of professional or semi professional
investigation[.]”). Attorney Kern was also capable of presenting defenses to
the other sex-related charges Bickel was facing given that, inter alia, F.A.S.
“had given conflicting statements.” Id.
Bickel concedes that “Attorney Kern did discuss some trial and defense
strategy with [him] and that [he] understood part of said discussions.” Pro Se
Response to Anders Brief, at 30. Bickel also writes that “[i]t appears as
Attorney Kern may have acted reasonably by reviewing and researching part
of Bickel’s desired defense as well as other potential defenses into both the
possession of child pornography charges and the charges involving sexual
conduct.” Id., at 31. With all of that said, however, Bickel asserts that
Attorney Kern failed to discuss “all trial or all defense stateg[ies] with arguable
merit.” Id. Specifically, “Attorney Kern did not tell Bickel about The Good
Samaritan Immunity Law, until the PCRA hearing while he was testifying on
the stand.” Id.
Bickel does not elaborate on what he means by “The Good Samaritan
Immunity Law” and such a reference did not come up during the PCRA
hearing. To the extent that “Law” is analogous to the aforementioned defenses
for the possession of child pornography, Attorney Kern made it clear to him
that such a defense was likely inapplicable, as Bickel’s actions were almost
certainly not part of a bona fide law enforcement action, regardless of the fire
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or investigation-related titles Bickel may possess. Attorney Kern acted
reasonably in reviewing Bickel’s desired defense, but it led to a determination
that such a defense would almost certainty lead to no success. Therefore, as
counsel fully informed Bickel of the situation that he faced and had a
reasonable basis to discuss the inapplicability of Bickel’s desired defense,
Bickel has failed to demonstrate that he suffered from ineffective assistance
of counsel.
In his next issue, Bickel “desires to argue that his plea of guilty is void”
because “he did not take an oath prior to the entry of his guilty plea.” Pro Se
Response to Anders Brief, at 31. Bickel then quotes a passage in the Bible.
See id., at 32. However, Bickel concedes that he testified “to the best of his
ability during his plea colloquy with the trial court[.]” Id., at 34.
As the present matter involves PCRA proceedings, which are limited in
scope, Bickel has failed to demonstrate which statutory basis for relief he
seeks. See 42 Pa.C.S.A. § 9543(a)(2) (outlining the seven argumentative
bases for a PCRA petition). Other than his citation to the Bible, Bickel has not
provided any authority to show that this claim is cognizable under the PCRA.6
Even through our own independent research, we have not found any specific
ground for such a contention to warrant relief under the PCRA. As such,
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6 Bickel baldly suggests that “his conviction or sentence was a direct result of
him not taking such an oath[,]” Pro Se Response to Anders Brief, at 34,
possibly as some sort of illegal sentence/jurisdictional defect, but does not
elaborate as to how that could fit under any of the PCRA’s auspices.
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Bickel’s claim is without merit.
Bickel’s last argument suggests that the trial court failed to make a pre-
sentence inquiry into his ability to pay a fine, which amounted to $100 and
court costs. Bickel cites to 42 Pa.C.S.A. § 9726(c) and Commonwealth v.
Ford, 217 A.3d 824 (Pa. 2019), for this proposition and considers his sentence
to be illegal.
Bickel admits that prior to sentencing him to this fine, “the trial court
reviewed Bickel’s presentence report, which contained information regarding
[his] financial status and ability to pay.” Pro Se Response to Anders Brief, at
35 (record citations omitted). Additionally, “Attorney Kern highlighted [to the
court] and corrected various aspects of Bickel’s presentence report, including
information regarding a hauling business which Bickel claimed was never
profitable for him[.]” Id. Furthermore, the presentence report stated that
Bickel was on Social Security Disability. Despite all of this, Bickel insinuates
that the court had an inaccurate picture of his finances and that the court
should have conducted an ability-to-pay analysis.
Bickel’s argument does not provide any indication that the court
somehow relied upon the wrong economic information when it imposed a fine
against him. Also, assuming they contain sufficient information, Courts are
allowed to use presentencing investigation reports to satisfy the requirements
of Section 9726(c). See Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa.
Super. 2013). As such, despite suggesting that some sort of on-the-record
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inquiry was necessary, Bickel has not provided any reason to conclude that
the lower court, who had the benefit of a detailed presentence investigation,
was without the information that it needed to ascertain whether he had the
ability to pay the fine. Therefore, Bickel’s claim is frivolous and does not
warrant relief.
Finally, in his pro se brief, Bickel has appended what appears to be an
additional argument (or series of arguments) that his cellular phone was
illegally seized without a warrant. Bickel also asserts that he was denied his
right to call his attorney when he requested to do so at some point during
police questioning. These claims come after two pages of citationless
narrative, and the arguments, themselves, do not contain any references to
authority. “We shall not develop an argument for an appellant, nor shall we
scour the record to find evidence to support an argument.” Milby v. Pote,
189 A.3d 1065, 1079 (Pa. Super. 2018). Similarly, we “will not act as counsel
and will not develop arguments on behalf of an appellant.” Commonwealth
v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).
As Bickel has failed to provide even a scintilla of record evidence or
support to prove these claims of a seemingly constitutional nature, there is no
basis to conclude that he is entitled to any relief here, either.
In finding no merit to any of the claims advanced in the Anders brief or
by Bickel in a pro se capacity, we affirm the lower court’s order dismissing
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Bickel’s PCRA petition.7
Application to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2023
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7 Relatedly, our independent review of the record, too, has uncovered no
additional issues worthy of review or analysis.
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