Com. v. McCarthy (memorandum)

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J-S75008-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ALLEN ANTHONY MCCARTHY, Appellant No. 1709 WDA 2011 Appeal from the PCRA Order September 27, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0017142-2007 BEFORE: STEVENS, P.J., MUNDY, J., and FITZGERALD, J.* MEMORANDUM BY STEVENS, P.J. Filed: January 10, 2013 This is an appeal from the order of the Court of Common Pleas of Allegheny County denying Appellant Allen Anthony McCarthy s petition pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A. §§ 95419546. Appellant claims the PCRA court erred in refusing to find his trial counsel was ineffective in failing to adequately advise Appellant to enter a guilty plea in light of the overwhelming evidence against him. We affirm. Appellant was charged with robbery,1 false identification to law enforcement,2 resisting arrest,3 and possession of a small amount of ____________________________________________ * 1 2 3 Former Justice 18 Pa.C.S.A. § 18 Pa.C.S.A. § 18 Pa.C.S.A. § specially assigned to the Superior Court. 3701(a)(1)(i),(ii). 4914. 5104. J-S75008-12 marijuana.4 This Court summarized the factual background and procedural history of this case on direct appeal: On November 5, 2007, the victim, M.S., a wheelchairbound young man, and Appellant had a happenstance meeting. They had been friends in school and then gone their separate ways. N.T. Trial, 5/27/09, at 36-37. After conversing for a few minutes, Appellant asked M.S. for a ride, and M.S. obliged. M.S. had approximately $200 in rent money in the center console of his vehicle that was visible to Appellant. Id. at 37-38. M.S. transported Appellant to his destination without incident. M.S. subsequently went out with his girlfriend. Upon their return, no one was available to assist her in removing M.S. from the car, so the girlfriend entered the house and M.S. remained in the vehicle. Id. at 38. He dozed off while listening to a Steeler game on the radio. Id. at 39. M.S. awoke some time later to Appellant peering in through the driver s side rear door of the vehicle. Id. at 36. The door opened and Appellant climbed over the front seat. Appellant had a gun in his hand and used it to poke M.S. in the stomach, telling him to give it up. Id. at 39. M.S. realized that Appellant wanted the rent money that had been in the console, which he had subsequently put in his pocket. M.S. refused Appellant s demand and advised him, [Y]ou are going to have to kill me if you want anything off me. Id. at 40. They struggled, and M.S. succeeded in knocking the gun out of Appellant s hand. Appellant tried to start the car, but M.S. removed the keys from the ignition. M.S. screamed for help. M.S. s brother was walking down the street, heard him screaming, and intervened. As he pulled Appellant from the driver s seat of the vehicle, Appellant honked the horn. Id. at 41-42. The victim s aunt and girlfriend were awakened by the horn and they came out of the house. Initially, Appellant was on the ground but then he ran. M.S. advised them that Appellant had taken his stuff, so the girlfriend chased after Appellant with a hammer, eventually apprehending him and retrieving M.S. s cell phone and money. Id. at 68. Appellant fled and police were summoned. ____________________________________________ 4 35 P.S. § 780-113(a)(31). -2- J-S75008-12 Pittsburgh Police Officer Keith Stover responded to the call and found M.S. sitting in his car, holding his chest and gasping for breath. He called paramedics. Officer Stover retrieved the weapon used in the robbery, which turned out to be a toy pistol or replica. The next day, Officer Stover recognized Appellant based on M.S. s description, and he attempted to arrest him. Appellant resisted and several officers were required to subdue him. At the time of his arrest, Appellant was in possession of marijuana and gave a false name to police. Id. at 30-31. At trial, M.S., as well as his girlfriend, aunt, and brother identified Appellant as the assailant. Appellant offered the alibi testimony of his sister to the effect that on the night of the robbery, she saw Appellant laying in the middle of the street around midnight, she took him home, and stayed with him until three or four a.m. Id. at 100. She described him as highed up, acting crazy, drunk, and she was afraid that he might steal from her because he was an addict. Id. at 102. The jury convicted Appellant of all charges. Prior to the commencement of trial, the trial court conducted a colloquy regarding a plea offer that the Commonwealth made to Appellant. N.T. Trial, 5/27/09, at 3-4. The Commonwealth offered a mitigated-range sentence of thirty to sixty months on the robbery charge, with a waiver of the mandatory five-to-ten year sentence for use of firearm, and in addition, to withdraw the remaining counts. Id. Appellant acknowledged that he understood the mandatory five-to-ten year sentence, that he discussed the offer with his counsel, and stated that he would proceed to trial. Id. On the record, defense counsel related that Appellant s mother discussed the plea with him, but Appellant remained resolute in his desire to go to trial. Id. Commonwealth v. McCarthy, 549 WDA 2010 (Pa. Super. November 4, 2010) (unpublished memorandum). After the jury convicted Appellant of all the charges, the trial court sentenced Appellant to five to ten years imprisonment with credit for two years Appellant had already served. Appellant filed a timely appeal in which he claimed trial counsel was ineffective. On November 4, 2010, this Court dismissed Appellant s -3- J-S75008-12 ineffectiveness claim without prejudice pursuant to Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), and affirmed Appellant s sentence. On November 15, 2010, Appellant filed this timely PCRA petition.5 The PCRA court appointed Appellant new counsel, who indicated that the sole claim Appellant wished to raise in his petition was trial counsel s alleged ineffectiveness in failing to advise Appellant to accept the Commonwealth s plea offer. After the PCRA court held an evidentiary hearing, it denied Appellant s petition on September 27, 2011. This timely appeal followed. Our standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). In order to be eligible for PCRA relief, the petitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found in 42 Pa.C.S.A. § 9543(a)(2), which includes the ineffective assistance of counsel. It is well-established that counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him. ____________________________________________ 5 Generally, a PCRA petition must be filed within one year of the date the judgment is final unless the petitioner pleads and proves one of the exceptions enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). -4- J-S75008-12 Commonwealth v. Koehler, ---Pa.---, 36 A.3d 121, 132 (Pa. 2012) (citing Strickland v. Washington, 466 U.S. 688, 687-691 (1984)). To prevail on an ineffectiveness claim, the petitioner has the burden to prove that (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance. Commonwealth v. Sneed, --Pa.---, 45 A.3d 1096, 1106 (Pa.,2012) (quoting Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001)). The trial court, in its 1925(a) opinion found Appellant was not a credible witness in testifying that he did not understand the likelihood of his conviction in the case when the victims and witnesses knew Appellant well and could clearly identify him as the robber. In addition, Appellant stated on the record in a colloquy before proceeding to trial that he was fully aware of the mandatory sentence he was faced if convicted, had discussed the plea offer with his attorney, and fully understood the plea agreement he was rejecting. The PCRA court found trial counsel testified credibly when he claimed that he told Appellant that he should take the plea offer as the likelihood of conviction was high, but Appellant insisted on going to trial. We agree with the trial court s thorough analysis in its July 19, 2012 opinion, which we adopt as our own for purposes of further appellate review. -5- J-S75008-12 Accordingly, we find the trial court did not err in denying Appellant collateral relief. Order affirmed. -6-

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