Com. v. Harmon, D. (memorandum)

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J-S33030-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DARALE HARMON, Appellant No. 2871 EDA 2013 Appeal from the PCRA Order of September 6, 2013 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000683-2006 BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ. MEMORANDUM BY OLSON, J.: FILED JULY 03, 2014 Appellant, Darale Harmon, appeals from the order entered on September 6, 2013 denying his petition filed under the Post-Conviction -9546. We affirm. We previously summarized the horrific factual background of this case as follows: On November 9, 2005, [22] year old J.H. went to bed in her bedroom in the residence that she shared with Chris Bachalis in Middletown Township. [] Bachalis was not at home at the time. J.H. heard a knock at the door, but did not answer it because she was not feeling well. Shortly thereafter, five males with guns appeared in her bedroom. The males told J.H. that she home, and that they were there to get [Bachalis]. They tied her wrists to the headboard of her bed using electrical and cell phone charger cords. Over the course of the next [10] to [12] hours they repeatedly took turns raping J.H. vaginally, orally, and anally. While forcing her to perform oral sex on him, one of the perpetrators ejaculated in her mouth and told her to J-S33030-14 swallow. At times they held a handgun to her breast and hip and threatened to shoot her. They took pictures of her during the commission of the crimes, depicting her tied up with a gun being pointed at her. One of the perpetrators roughly yanked a tampon from her vagina. During the course of the early morning, while the five males took turns assaulting J.H., the others ransacked the entire apartment. They stole cell phones, televisions, prescription drugs, and other items. the information, and told her that they knew who she was and her. They stole her cell phone. They repeatedly asked when her roommate was going to return as they intended to kill him. When her roommate, Bachalis, finally returned to the house the next morning, the assailants directed J.H. to answer the door while they hid. After she let Bachalis into the house, she ran back upstairs to her bedroom. The five males appeared, threatened Bachalis with guns, assaulted him, robbed him, and forced him into a closet. Shortly thereafter, a friend of the victims dropped by, and she was also robbed of some cash and forced into the closet. Finally, after having been in the apartment some [12] hours, the five males left the house. The subjects were located primarily through global positioning when the police got TJ.H. The positional coordinates of the cell phone led detectives to an address in Philadelphia where four of the men, including Appellant, were located. The four were taken to Frankford Hospital for forensic examination. When the detective opened the rear door of the police van used to transport the subjects, they found that the subjects had set fire to some of their legal papers in the back of the van. Police and fire department personnel were called and the subjects were re[-]secured in the police van. The four were arrested and taken to Bucks County Correctional Facility in lieu of bail. The next day a prison attendant recovered a piece of paper with the name of the fifth suspect. Investigators identified him and determined that he also lived in Philadelphia. Appellant was one of the four subjects found in Philadelphia. When arrested, he was in possession of the cell phone stolen -2- J-S33030-14 from J.H. When the police searched Appellant, they found condoms that were of the same brand and lot number as that of Later, a used condom was recovered from the apartment stuck to a bloodstained shirt that was left behind by one of the perpetrators. J.H. identified all five perpetrators from photo lineups. Plentiful physical evidence including blood, semen, urine, and fingerprints was recovered from the scene of the crimes. Commonwealth v. Harmon, 988 A.2d 720 (Pa. Super. 2009) (unpublished memorandum), at 1-3 (internal alterations and ellipsis omitted), quoting Trial Court Opinion, 12/12/06, at 4-6. We previously outlined the procedural history of this case as follows: On April 24, 2006, Appellant pled guilty to [a myriad of offenses, inter alia,] rape,[1] [involuntary deviate sexual intercourse,2] kidnapping,[3] robbery,[4] arson,[5] carrying a firearm without a license,[6] burglary,[7] aggravated indecent assault,[8] and 1 18 Pa.C.S.A. § 3121. 2 18 Pa.C.S.A. § 3123. 3 18 Pa.C.S.A. § 2901. 4 18 Pa.C.S.A. § 3701. 5 18 Pa.C.S.A. § 3301. Appellant did not file a PCRA petition in relation to his arson and related convictions, which were docketed at CP-09-CR0005239-2006. 6 18 Pa.C.S.A. § 6106. 7 18 Pa.C.S.A. § 3502. 8 18 Pa.C.S.A. § 3125. -3- J-S33030-14 criminal conspiracy.[9] Following an assessment by the Sexual sexually violent predator. On September 27, 2006, Appellant imprisonment]. At the time of sentencing, the trial court had the benefit of a pre-sentence report. Post-sentence motions denied. Appellant filed a direct appeal. On September 12, 2007, a panel of this court found all of Appellant failing to file a [concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure] of sentence. Commonwealth v. Harmon, 938 A.2d 1114 (Pa. Super. 2007) (unpublished memorandum). On February 8, 2008, Appellant filed a pro se petition pursuant to the [PCRA]. [The petition challenged the legality and alleged ineffectiveness. PCRA counsel was appointed and a] hearing was held on the petition on June 12, 2008. By order reinstated nunc pro tunc and all other claims raised in the PCRA petition were denied [on their merits.10] Commonwealth v. Harmon, 988 A.2d 720 (Pa. Super. 2009) (unpublished memorandum), at 3-4 (footnote omitted). On November 16, 2009, we affirmed the judgment of sentence. See id. at 15. Appellant did not seek review by our Supreme Court. On September 2, 2010, Appellant filed a post-sentence motion for reconsideration of sentence and request for new trial, which the PCRA court 9 18 Pa.C.S.A. § 903. 10 Appellant did not file a timely appeal after his direct appeal rights were reinstated nunc pro tunc. Therefore, he later sought, and was granted, leave from the trial court to file his direct appeal nunc pro tunc. -4- J-S33030-14 treated as a pro se PCRA petition. On September 27, 2010, the PCRA court issued notice pursuant to Pennsylvania Rule of Criminal Procedure 907(1) of its intent to dismiss the petition. Appellant filed a response in which he requested additional time to file an amended petition. The PCRA court petition. The matter then became dormant. On October 3, 2011, Appellant filed a petition for habeas corpus relief in the United States District Court for the Eastern District of Pennsylvania. See Harmon v. Dist. Attorney of Cnty. of Bucks, 2012 WL 1624396, *1 (E.D. Pa. Apr. 17, 2012), adopted, 2012 WL 1622639 (E.D. Pa. May 8, state court remedies. Id. at *3. On or about April 13, 2012, counsel was appointed to represent Appellant in the dormant PCRA proceedings.11 Thereafter, an evidentiary hearing was held on April 5, 2013. On September 6, 2013, the PCRA court 11 The certified record is devoid of any order appointing counsel. However, after April 13, 2012, the docket reflects that Appellant was directed to contact his counsel whenever he attempted to contact the PCRA court. Furthermore, counsel avers in her brief that she was appointed on April 13, 2012 and the record reflects that she was present at the evidentiary hearing on April 5, 2013. As counsel was obviously appointed at some time prior to the evidentiary hearing we need not concern ourselves with the exact date of the appointment. -5- J-S33030-14 issued an order denying Appellant PCRA relief. This timely appeal followed.12 Appellant presents one issue for our consideration: Is Appellant entitled to [PCRA] relief based on his claim that [p]lea [c]ounsel was ineffective when he failed to file a [m]otion to [w]ithdraw [g]uilty [p]plea as directed by his client? that the PCRA court determined that it did not have jurisdiction over See PCRA Court Opinion, 12/3/13, at 8. The timeliness requirement f and jurisdictional in nature. raises a question of law The question of whether a petition is timely Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (citations omitted). Therefore, our standard of review when determining if a petition is timely is de novo and our scope of review is plenary. judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the 12 On October 10, 2013, the PCRA court ordered Appellant to file a concise statement. On November 6, 2013, Appellant filed his concise statement. On December 4, 2013, the PCRA court issued its Rule 1925(a) opinion. cluded in his concise statement. -6- J-S33030-14 Supreme Court of Pennsylvania, or at the expiration of time for seeking the PCRA relief and permitted to file a direct appeal nunc pro tunc, the judgment of sentence is considered to be final when Appellant fails to seek discretionary review by our Supreme Court or the Supreme Court of the United States, or certiorari is denied by the Supreme Court of the United States. See Commonwealth v. Karanicolas, 836 A.2d 940, 945 (Pa. Super. 2003). As petition was timely filed and the PCRA court had jurisdiction to consider the previously litigated. Under the PCRA, a petitioner may not be granted relief upon claims that have been previously litigated. See 42 Pa.C.S.A. § claim had been previously litigated in the 2008 PCRA proceedings. See PCRA Opinion, 12/3/13, at 5-6 (noting that the 2008 PCRA court addressed effective assistance of counsel claims). We note that, under the law as it stands today, the 2008 PCRA court granting Appellant the right to file a direct appeal nunc pro tunc. See Commonwealth v. Donaghy, 33 A.3d 12, 14 n.5 (Pa. Super. 2011), -7- J-S33030-14 appeal denied, 40 A.3d 120 (Pa. 2012); see also Commonwealth v. Holmes 2008 PCRA proceedings, and prior to the cases that have clarified the cognizability of ineffective assistance of counsel claims, Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), was still the law of this Commonwealth. Under Bomar, a defendant could pursue an ineffective assistance counsel claim on direct appeal if certain pre-requisites were satisfied. See id. at 853-855 (in order for an appellate court to consider an ineffective assistance of counsel claim the defendant must have raised the issue in the trial court, the trial court must have held an evidentiary hearing, and the trial court must have addressed the merits of the claim); see Holmes, 79 A.3d at 576 (citations omitted). This Court found those pre-requisites were nunc pro tunc direct appeal. See Commonwealth v. Harmon, 988 A.2d 720 (Pa. Super. 2009) (unpublished memorandum), claims. See id. It would appear that our prior memorandum may have erred in ffective assistance of counsel claims on his nunc pro tunc direct appeal. During the intervening period after the trial ineffectiveness claims, but prior to our November 2009 disposition of the case, our Supreme Court issued its decision in Commonwealth v. Wright, -8- J-S33030-14 961 A.2d 119 (Pa. 2008). In Wright, our Supreme Court announced a new rule, declaring that, in order for the Bomar exception to apply, a defendant must waive his right to file a PCRA petition alleging ineffective assistance of counsel. See Wright, 961 A.2d 148 n.22. In our November 2009 memorandum, we did not address whether Appellant had waived his right to ever, our review of the notes of testimony from the June 12, 2008 PCRA hearing indicates that Appellant did not waive his right to file a PCRA petition alleging ineffective assistance of counsel. As such, we conclude that Appellant maintained his right to file a PCRA petition regarding allegations of ineffectiveness not disposed of on his nunc pro tunc direct appeal. At the evidentiary hearing held on June 12, 2008, Appellant raised ten distinct ineffectiveness claims. See N.T., 6/12/08, at 7-11. Most of those guilty plea. See id. However, Appellant did not allege that he requested his trial counsel to file such a motion and his counsel refused to do so. Instead, his claims were premised on other alleged errors, including for example, that he was under the influence of drugs at his plea hearing. Thus, we conclude that the particular claim Appellant has raised in this appeal has not been previously litigated. Turning standard of review of an order denying PCRA relief is whether the record -9- J-S33030-14 Commonwealth v. Wantz, 84 A.3d limited to the findings of the PCRA court and the evidence of record, viewed Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Amendment to the United States Constitution and Article I, [Section] 9 of undermined the truth-determining process that no reliable adjudication of Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and citation Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014). (citation omitted). In order to overcome the presumption that counsel was effective, Appellant (2) the particular course of conduct pursued by counsel did not have some s a reasonable probability that the outcome Commonwealth v. Luster, 71 A.3d 1029, 1039 (Pa. Super. 2013) (internal alterations, quotation - 10 - J-S33030-14 rests Commonwealth v. Hill, 42 A.3d 1085, 1089-1090 (Pa. Super. 2012), appeal granted on other grounds, 58 A.3d 749 (Pa. 2012) (citations omitted). Appellant avers that he sent various letters to his trial counsel, both before and after his sentencing, requesting that a motion to withdraw his guilty plea be filed. In this appeal, Appellant argues th to file a motion to withdraw his guilty plea prior to the sentencing hearing was ineffective assistance of counsel. He does not challenge his trial imposition of sentence. 13 We conclude that Appellant has failed to plead and prove that his This finding of fact is well-supported by the record. At the evidentiary hearing, Appellant testified definitively that he sent a letter requesting that his counsel file a motion to withdraw his guilty plea to his trial counsel two days after the plea hearing. See 13 Although the question presented is phrased in broad terms, the argument prior to the sentencing hearing. See - 11 - -17. J-S33030-14 id. id. at 26guilty plea that you sent the first letter to [trial counsel], cor However, at other points it appears as though Appellant only sent his counsel a letter requesting withdrawal of his guilty plea after sentencing. See id. multiple letters, multiple letters after the sentencing. Everything was after id. at 25 (noting that he sent the letter after the trial court told him that he had ten days to file certain motions almost certainly referring to the ten day period with which defendants have to file postsentence motions). contradicted his prior sworn statements. For example, he testified that he Id. at 29. However, the record is clear that the trial court informed him that he was pleading guilty to rape. See id. first deg testimony was self-serving and not credible is supported by the record. With this factual determination, there is no evidence that Appellant ever requested that his trial counsel withdraw his guilty plea prior to the sentencing hearing. As such, trial counsel could not have been ineffective - 12 - J-S33030-14 ble merit. Furthermore, Appellant is unable to show that he was prejudiced by Appellant realized after he pled guilty, and before sentencing, that he pled guilty to crimes he did not commit he could have easily raised the issue at his sentencing hearing. Instead, when asked at sentencing, under oath, , at 71-72. When his trial Id. at 74. Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa. Super. 2013) (citation plea is his alleged innocence. claim. The record, however, squarely refutes this Thus, Appellant is unable to show the requisite prejudice for an ineffective assistance of counsel claim. Instead, it appears that Appellant was unhappy with the sentence the trial judge imposed in this case, which he deemed one of the worst cases he had seen in his 27 years as a trial judge and 13 years as a prosecutor. See N.T., 9/28/06, at 92. This will not afford a basis for relief. - 13 - J-S33030-14 In sum, we conclude that the PCRA petition Appellant filed on September 2, 2010 was timely, and that, therefore, the PCRA court had jurisdiction to consider this matter. Furthermore, the specific claim Appellant raised in his petition was not previously litigated. However, the PCRA court correctly determined that Appellant had failed to satisfy his burden of proving ineffective assistance of counsel. In particular, he failed to satisfy the first and third prongs of ineffectiveness. Therefore, the PCRA Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/3/2014 - 14 -

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