Com. v. Daniely, B.

J-S48024-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRYHEEM DANIELY : : Appellant : No. 3508 EDA 2017

Appeal from the PCRA Order October 17, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003492-2015

BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J. MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 17, 2018

Bryheem Daniely (Appellant) appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

On March 28, 2016, Appellant pled guilty to one count each of criminal conspiracy, possessing an instrument of crime, aggravated assault, and robbery of a motor vehicle; in addition, he pled guilty to two counts of robbery.1 The plea was open with respect to Appellant’s sentence. On July 7, 2016, the trial court sentenced Appellant to an aggregate term of six to twelve years of incarceration, followed by five years of probation. Appellant did not file post-sentence motions or a direct appeal. ____________________________________________

1 18 Pa.C.S.A. §§ 903, 907, 2702(a), 3702(a), and 3701(a)(1). ____________________________________ * Retired Senior Judge assigned to the Superior Court.

J-S48024-18

On December 20, 2016, Appellant filed a pro se PCRA petition. Counsel was appointed on April 17, 2017 and filed an amended petition on Appellant’s behalf. On September 6, 2017, the Commonwealth filed a motion to dismiss Appellant’s PCRA petition, asserting that the petition failed to allege sufficient facts that would entitle Appellant to relief. On September 12, 2017, the PCRA court issued notice of its intent to dismiss Appellant’s PCRA petition without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure. Appellant did not file a response to the Rule 907 notice. On October 17, 2017, the PCRA court dismissed Appellant’s petition without a hearing. This timely appeal followed.

On appeal, Appellant states his issue as follows:

I. Did [the PCRA] court err in denying [A]ppellant an evidentiary hearing when [A]ppellant raised a material issue of fact that trial defense counsel was ineffective in giving [A]ppellant unreasonable advice by advising [A]ppellant to reject the Commonwealth’s offer as to the [A]ppellant’s guilty plea as a result of which [A]ppellant received a more severe sentence?

Appellant’s Brief at 2.

“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination is supported by the record and free of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and citations omitted). “To be entitled to PCRA relief, [an] appellant must establish, by a preponderance of the evidence, [that] his conviction or

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sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

Appellant challenges the PCRA court’s conclusion that Appellant’s trial counsel was not ineffective. Appellant’s Brief at 6-8. In deciding ineffective assistance of counsel claims, we begin with the presumption that counsel rendered effective assistance. Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption, the petitioner must establish: “(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different.” Id. (citation omitted). If an appellant fails to prove by a preponderance of the evidence any of the three prongs, the Court need not address the remaining prongs of the test. Commonwealth v. Williams, 863 A.2d 505, 513 (Pa. 2004).

Instantly, we have reviewed the record and found no merit to Appellant’s claim. The Honorable Jeffrey P. Minehart, sitting as the PCRA court, has filed a comprehensive opinion which we adopt and incorporate as our own. Judge Minehart has cogently analyzed Appellant’s argument, citing both the record and prevailing legal authority. See PCRA Court Opinion, 11/16/17, at 3-7 (concluding that Appellant’s PCRA petition was properly dismissed without a hearing because: (1) Appellant failed to attach to his petition any certifications or affidavits supporting his claim of ineffective

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assistance of counsel, rendering his petition fatally defective; and (2) Appellant testified at the guilty plea hearing and signed a guilty plea colloquy form indicating that no promises or threats were made to induce him to plead guilty). Accordingly, we adopt the PCRA court’s November 16, 2017 opinion as our own, and affirm the order dismissing Appellant’s PCRA petition.

The parties are instructed to attach a copy of the PCRA court’s November 16, 2016 Opinion to all future filings.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/18

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Circulated 08/28/2018 02:25 PM

IN THE COURT <)F COMMON PLEAS OF·PHILADELP.HiA C.0:UNT\' FILED FI.RST Jl)DICIAL DISTRICT OF PENNSYLVANIA NOV 16 2017 CRIMINAL-TRIAL DIVJSION. Office of Judiciar Records Appeal�/Post Trial

COMMONWEALTH OF PENNSYLVANIA COURT OF'COMMON PLEAS PHILADEU'HIA CQUNTY

NO.: OP�Sl-CR-:0003492�2015 :BRYHEEM DANIELY

0-PINION:

.Defendant.iBryheem Daniely, ' . -,fromthe order 'of October l 7, �017·, . has appealed .

denying him relief under. the Post-Conviction Relief.Act (hereinafter PCRA), 42 Pa;C.S. § ·9741 et seq: By way of background, petitioner was. arrested and charged whh one

count each of robbery of a motor vehicle, aggravated assault, criminal conspiracy, arid � :. . .;

possessing instruments of crime, generally; and two counts of robbery. These charges arose .out of an incident that. occurred in J anuary of 2015 during which defendant's co-.conspirator April Precha answered an on-line advertisement posted by Matthew 'zolna offering a BB gun for sale and said th}1tshe wanted to purchase the gun. Precha, who knew Zolna from. school told Zolna to· meet ·her at 5{3 Chew A. venue. Zolna was driven there by his.friend Jeff. Ganter in ·Ga'nter's 20'1J Dodge Ram truck; along with Kylie Stedman, Canter's girlfriend, and her six-year oid daughter.

When they arrived at the. location named by Precha, Precha .asked to inspect the BB:gun at which-time defendant -,?11d _0.�m¢ll Russell approached the truck and defendant

· threatened to shoot- 'its occupants uniess they· vacafed the truck. When they. tlid as. commanded, Precha, stili holdiug. th�_.13� gun, c.limbed .be.hin.� the wh�el o.f the truck and.

A-1 . . ... -·-··-. -- . . ····-·· .... ·-····-

Russell climbed into it. After they did so, defendant directed Stedman and her daughter

to walk away from the truck and Zolna arid Ganter to· lie down. When they did so, defendant searched them .and took $;65.00 from Ganter. He then got into the ire.ck and

.Precha drove away.

Minutes after the crime occurred, police stopped the truck and · after a short pursuit; apprehended defendant and. Russell. Police recovered Ganter's money from defendant.as well as the BB gun from inside the truck. The victims positively identified both defendants-at the scene of their arrests.

On March 28, .2016; .defendant appeared before this Court and entered an open guilty plea to the above charges. On Ju1y, 7, 2016, defendant received an aggregate sentence ofincarceration ofsix to twelve years followed by a period of-probation of five years. Defendant did not file either a post-sentence motion or an appeal

On December 20, 2016, .defendant filed a pro se petition pursuant to the Post- Conviction Relief Act; 42 Pa.C.S. § 9541 et seq. Counsel was appointed to represent

defendant and on April 17, 2017, counsel filed .an amended petition. Upon reviewing the \ .letter and the entire record, including. a motion to dismiss filed by the Commonwealth,

this Court sent defendant a Pa.RCrim.P. 907Notice of Intent to Dismiss. Defendant did not file a response· thereto. On October 17, 2017) this Court issued art order dismissing defendant's PCRA petition. Subsequent thereto, petitioner filed a timely notice of appeal.

In his amended PCRA petition, defendant .asserted thai he was entitled to an evidentiary hearing on a claim alleging that trial counsel. was ineffective for advising, defendant not to accept the Commonwealth's })lea offer of five to ten years:' incarceration *3 in exchange for his guilty plea and letthe trial court decide the sentence: Defendant claims that. he-suffered prejudice because .he received .a mote 'severe . sentence than what was offered to him because of trial counsel's bad advice

In reviewing the propriety of the P'CR.A court's dismissal of a petition Without a hearing, the reviewing court t·s limited to determining whether the court's findings .are supported by the record arid whether. the order in question is free of legal. .error . .Comn1onwealth v. Holmes; .905 A.2d 707� �.09 (P�. Super. .CL..2006� citing-Commonwealih V. Halley; :870 A.2d 79.5, 799 (Pa, 2005). The PCRA court's findings will not..be disturbed unless there is no .support f6r 'the findings .in the. certified .record.

Commonwealth v.. Carr, 768· A.2d ·� . .. Super. �001). ll64, 1 Ll56 (Pa . A. PCRA court may

. decline to hold a hearing onthe.petition ifthe petitioner's .claim .is patently frivolous and' is. without a trace of support either in the record orfrom otb.�r: evidence. Commonwealth .v, Jordan, 772 A.2d 1011, 10l4 (Pa. Super. 2001). The reviewing court on appeal must examine each of the issues. raised in th�·.PCRA petition in light of the record in order to determine whether the PCRA court erred.in concluding that there were no genuine 'issues of material fact and 'denying relief without an evidentiary hearing. Id. .See also Commonwealth v. Hardcastle., 701 A.2d .541, 542 (Pa. 1997).

Pennsylvania law presumes counsel ·is effective. and therefore, the. burden is placed upon the defendant to. prove otherwise. Commonwealth v. Brown, 767 A..�d 576, -5$1 (Pa� Super. 200 n, citing Corrunonwealth 'v. ·Carpenter, ·725 A.2d l:S4·r l61 (Pa. 1999), citing CommonweaJth·v. Marshall, 633 A,2d 1100 (Pa. 1993).; see also�: Commonwealth v. 'Baker,. 614 A.2d 663,. 673 (Pa. 1992). Trial counsel has broad d;1scretion in mattersoftrial strategy and the, .determination . of what tactics to empJoy during litigation. *4 Comm:oriwealth v. Choi Chun Lani. 684 A.2d 153., 160 (Pa.. Super. 1996)� Furthermore, "[i]t is well. established that failed trial tactics of. defense counsel are not grounds for a new trial:" Commonwealth v. Hall. 565 A2d 144, · 14s (Pa. 1989). trial counsel will.not be held ineffective if there was a reasonable strategic basis for his or her trial tactics. Commonwealth v. Pursell. 724 A.2d 293,. 311 (Pa. l999) ..

In order to establish that trial counsel's representation was deficient, defendant must establish all of the following three elements, as set forth · in Commonwealth v; Pierce, 527, A2d 973, 975,.76 (Pa. 1987): (1) the underlying. legal claim has arguable . merit; {2) counsel had no reasonable. basis for his· or her action or inaction; and (3} the petitioner suffered prejudice because of counsel's ineffectiveness. Commonwealth. v. Chmiel, 30 A.3d 1111, l 127 (Pa. 2011 ), citing Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008): -

Thethreshold question iii reviewing an ineffectiveness claim is whether the issue,

argument, or. tactic which trial counsel failed to use at trial and which is the basis of the ineffectiveness claim is of arguable merit. Commonwealth v.-Balodis; 747 A.2d 341, 343

(Pa; 2000); If defendant can prove that the argument or tactic which trial counsel failedto use at trialis of arguable merit, then the "reasonable basis" test is applied to. determine if the course of action chosen by trial counsel was designed to effectuate his or her client's interest Id. With. regard to the. .seeond element, defendant must.prove that "an alternative [action orinaction] not chosen offered a potential for success. substantially greater than' the course actually pursued. t; Cluniel, supra, citing . Commonwealth v. Williams, 899 A.2d 1060, 1064: (Pa. 2006) (alteration added).. To establish prejudice, defendant must. demonstrate that there is a reasonable probability that; but for counsel's error, the.. outcome of the 'proce�ding would have been different. Chmiel, supra, at 1127 '-'28,, citing Denni's, supra� at 954.

Further; "(i]f it 'is clear that if a defendant has not demonstrated that counsel's act or omission adversely affected the outcome- of .the. proceedings.: the claim may be

dismissed on that bas-is .alone and . the court . need not first. . determine whether the first and

second prongs have been met." .Commonwealth v .. Rios; 920 A.2d 790� ·799 (Pa. 2007), citing Commonwealth v. Albrecht, 12.Q A.2d 693j 701 (Pa. 199�): A PCRA proceeding requires a defendant to, establish that counsel's .ineffectiveness "so undermined the truthdetermining process that no reliable adjudication ofguiltor innocence could have taken

place.''.Rios,. supra;.C'itiJ1g Pierce. supra, at2.2·'l-"-2�; Commonwealth v .. Kirri·ball, 724: A.2d .•. 326, 333 (Pa. 1999). Applyingthe foregoing to the instantmatter, itis clear that.none of

defend ah t' s claims has merit.and i Lis su_ggestef that no relief be afforded him the reasons. .set forth. below.

To obtain a PCRA remedy, a ·PCRA petition must allege contain, inter alia? sufficienr facts· to support each claim raised.. Pa.R.Crim.P. 902(A)(l 2). It is farther

required that a petition contain affldavits.iwitness certifications, documents, 'arid/or -other support for the. facts -s.et forth in the. petition.. 42 Pa.C..S. § 9'545(d)(1); Pa:R ..Crim.P ..

902(A)(l2), (15} In ..addition, if a petitioner is seeking an ·evidentiary hearing the· petitioner must' include, inter alia, signed certificates identifying, the witnesses he, or.she intends to cal) during the hearing and the evidence the petitioner will present through the· witnesses, 42 Pa.C .S. § 9545(d)(1); Pa.R.Crirri.P: 902(.t\).(15).

First, .this. Court dismissed defendant' s petition· because .he failed to attach to.. his petition arty evidence to support his petition or any certifications identif;ying the witness

s *6 or witnesses, including trial counsel and himself, he .intended to. call at an evidenriary hearing "Pd which outlined what he expected 'those. witnesses-to say:' Defendant's failure

to attach said certifications. or affidavits ·rendered. his petition fttally defective. See Commonwealth v. Roney, 79 A.3d 595, 606-607 (Pa. . 2013) (the failure to attach . an

affidavit from .counsel an. explanation .as .. to why 'one could not be- obtained, renders petition deficient with respect to proof that counsel acted unreasonably) (citing Commonwealth v.. Marshall,. 812 A.2d 539; 548 (Pa. '.Z002); Commonwealth v. Chmiel, :m A.3d 1111,. 1128 (Pa. io11) ·(boile.tplate "no reasonable basis" allegation in PCRA petition insufficient to meet burden to prove· that counsel was ineffective); Commonwealth v. Colavitg,. 9�:3 A.2d 8741 89� (pa: ·20:10) (failure to presentaffidavit from prior counsel-is generallyfatal); see also Commonweaithv. Cousar, 154 A.3d 287,_-300 B?·n.7 (Pa. 2017} (9iting_Roney and Marshall). It 'is suggested that. appellate relief be denied with respect to- this claim for theforegoing reason.

In addition. to the "foregoing, relief was denied because. defendant averred during the guilty pleahearing that no ·promises or threats were made to · .him. to Induce him to plead .guilty, (N.T. 3/28/l6, 5). He also 'signed a guilty plea colloquyIorm wherein lre acknowledged that no onehadnot.bepromised anythingtoplead guilty and had not been threatened to plead guilty. ·1'he law prohibits ? defendant fr.om obtaining relief'by: saying that he had lied duringa, guilty plea hearing even if he asserts that counselinduced said lies. Commonweaith v. Yeomans, ·24 A.3d 1-044, 10.47- (Pa:-. Super. 2011) ·(citation .ornittedj.In addition, "[ajpersonwho electsto plead.guilty .is-bound by the statements he makes in: open court while under oath and may not .later.asserts grounds for withdrawing the plea which contradict thestatements he.madeathis pJ.�a colloquy .." Id.

Because defendant's claim necessarily rests on his asserting that :he lied during the guilty plea- nearing, no error occurred in: denying. him .PCRA and it is suggested that the order .ofth1s Court denying him reliefbe affirmed . . CONCLOSION

Based on the . foregoing, the order denying defendant PCRA relief should be

affinned. i· i I f'

• • By the .Court,

effrey P. Minehart

i f .j

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