Opinion
J-S02045-19 No. 1549 EDA 2017
04-04-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERT S. KARPEH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 4, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005514-2012, CP-51-CR-0005515-2012, CP-51-CR-0005516-2012 BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY GANTMAN, P.J.E.:
Appellant, Robert S. Karpeh, appeals from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the relevant facts and procedural history as follows:
Findings of Fact
On April 20, 2012, at approximately 1:50 a.m., Philadelphia Police Officer Perez was patrolling the 6200 block of Woodland Avenue in Philadelphia when she was flagged down by a male civilian in reference to a black male in an orange shirt, the Appellant, causing a disturbance inside of Lynn's Bar located as 6206 Woodland Avenue.
Officer Perez notified police radio and requested backup. Officer Juszczyszyn arrived on location and went inside the
bar with Officer Perez where they located the male in the orange shirt. The officers informed the Appellant that he had to leave at the request of the bar employees. [Appellant] refused to leave. The officers then ordered the Appellant to leave and he continued to refuse. The Appellant then stood up and informed the officers that he needed his bag while pointing behind the officer.
Officer Juszczyszyn picked up the Appellant's bag and attempted to hand it to him. As Officer Juszczyszyn was attempting to hand the Appellant the bag, the Appellant slapped the officer's arm away. Officer Juszczyszyn and Perez then grabbed the Appellant by his wrist in an attempt to remove him from the bar, but the Appellant pulled away from Officer Perez as Officer Juszczyszyn was still holding onto the Appellant's other arm. At this point in time, the Appellant stepped backwards and he pulled Officer Juszczyszyn behind the bar and shoved Officer Juszczyszyn against the bar while holding the officer's arm up against the wall. Officer Perez then called for additional backup while attempting to get the Appellant off of Officer Juszczyszyn. Officer Perez then drew her asp and struck the Appellant several times in the leg attempting to free Officer Juszczyszyn from Appellant's grasp.
Some patrons of the bar came to the aid of the officers prior to additional units arriving on location. Officer Gerard, Officer DeJesus, and some other officers arrived on location and observed Officer Perez and Officer Juszczyszyn struggling with the Appellant. As the officers were arriving, Officer Juszczyszyn was able to push the Appellant off of him and back against the display of the liquor bottles. The Appellant then began grabbing liquor bottles and throwing them at the officers, striking Officer Perez and Officer Gerard. The Appellant also struck Officer Juszczyszyn over the head with a clear glass liquor bottle, causing a deep laceration that began to bleed heavily. Officer Gerard and DeJesus were able to pin the Appellant against the bar and attempted to handcuff him. The Appellant grabbed a hold of the bar while still struggling with the officers, making it difficult to place handcuffs on him. Officer Juszczyszyn then produced his taser and yelled, "Get back, taser," and began to attempt to dry shock the Appellant. As Officer Perez was holding onto the Appellant, she was exposed to the taser
shock. The officers were finally able to subdue the Appellant after ten minutes and take him into custody. After he was placed into custody, Officer DeJesus noticed that a taser prong had penetrated his right shoulder during the struggle. Officers Perez, Gerard, Juszczyszyn, and DeJesus all sustained injuries as a result of the [incident].
Officer Perez was treated at Temple University Hospital for a closed head trauma as a result of being struck with a bottle, in addition to paralyses and temporary nerve damage as a result of being tased while struggling with the Appellant. Officers Gerard and DeJesus were treated at HUP and were released. Officer Gerard sustained a one inch laceration to his upper lip which required stitches while Officer DeJesus had to have the taser prong surgically removed and then received stitches to close up the incision.
Officer Juszczyszyn was taken to HUP and was admitted in stable condition to be treated for injuries that he sustained to his head as a result of being struck with a bottle. Officer Juszczyszyn also sustained injuries to his left hand that required surgery. Most recently, Officer Juszczyszyn had nerve graph [surgery] on his hand.
Procedural History
On April 20, 2012, Appellant was arrested and charged with Aggravated Assault (18 Pa.C.S.A. § 2702(a)); Possession of an Instrument of Crime with Intent (18 Pa.C.S.A. § 907(a)); Simple Assault (18 Pa.C.S.A. § 2701(a)); Recklessly Endangering Another Person (18 Pa.C.S.A. § 2705); Resisting Arrest (18 Pa.C.S.A. § 5104); and Criminal Mischief (18 Pa.C.S.A. § 3304(a)(4)). Following a preliminary hearing on May 7, 2012, all charges were held for court. By information filed on May 18, 2012, Criminal Mischief (18 Pa.C.S.A. § 3304(a)(4)) was changed to Criminal Mischief—Tamper w/ Property (18 Pa.C.S.A. § 3304(a)(2)). On May 13, 2013, the Appellant entered into a non-negotiated guilty plea, which occurred before the Honorable Sean F. Kennedy. The Appellant pled guilty to three counts of Aggravated Assault ((18 Pa.C.S.A. § 2702(a)), a felony of the first degree. On July 18, 2013, the Appellant was sentenced to five to ten years' incarceration on CP-51-CR-0005516-2012, two and one-half to five years'
incarceration on CP-51-CR-0005514-2012, and two and one-half to five years on CP-51-CR-0005515-2012, all to run consecutive for a total period of ten to twenty years' incarceration. Under these circumstances, the Appellant filed a direct appeal with the Superior Court of Pennsylvania on August 16, 2013. After reviewing the record, Appellant's counsel submitted a statement indicating that counsel intended to file a brief pursuant to Anders v. California , 386 U.S. 738[, 87 S.Ct. 1396, 18 L.Ed.2d 493] (1967) and Commonwealth v. Santiago , [602 Pa. 159, 978 A.2d 349 (2009)], as counsel was unable to identify a non-frivolous appellate issue. On February 27, 2014, the Superior Court discontinued Appellant's initial appeal.(PCRA Court Opinion, filed March 13, 2018, at 1-4) (some internal citations omitted).
On March 19, 2014, Appellant filed a Post-Conviction Relief Act Petition and [a counseled] Amended PCRA Petition on January 22, 2015. On December 1, 2016, the Honorable Sean F. Kennedy entered an order granting post-conviction collateral relief. The Commonwealth filed a Motion to Dismiss the PCRA Petition, and the [c]ourt granted the motion to dismiss on May 4, 2017. Shortly thereafter, the Appellant filed a timely Notice of Appeal on May 12, 2017. On November 1, 2017, Appellant's counsel filed a Statement of [Errors] Complained of on Appeal, and on November 2, 2017, a Supplemental Statement of [Errors] Complained of on Appeal.
According to the certified record, Appellant's counsel actually discontinued and withdrew the direct appeal on February 27, 2014.
Before the PCRA court on May 4, 2017, the Commonwealth initially consented to limited post-conviction relief in the form of withdrawing Appellant's guilty plea and providing Appellant with the options of either (1) accepting a new stipulated plea to the sentence imposed on July 18, 2013, or (2) proceeding to a trial. Appellant rejected both options. Appellant instead insisted the court should vacate the judgment of sentence and impose a new sentence consistent with the Commonwealth's previously withdrawn plea offer of 2-5 years.
Appellant raises one issue for our review:
WHETHER THE PCRA COURT ERRED IN NOT REDUCING [APPELLANT'S] SENTENCE TO THE SENTENCE OFFERED BY THE COMMONWEALTH WHEN [APPELLANT] HAD ACCEPTED THIS OFFER, BUT TRIAL DEFENSE COUNSEL THROUGH INEFFECTIVENESS REJECTED IT, AS A RESULT OF WHICH [APPELLANT] WAS SUBJECTED TO A MORE SEVERE SENTENCE WHEN HE PLEADED GUILTY?(Appellant's Brief at 2).
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by the trier of fact who had the opportunity to observe the witnesses' demeanor. Commonwealth v. Abu-Jamal , 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports the PCRA court's credibility resolutions, they are binding on this Court. Id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Sean F. Kennedy, we conclude Appellant's issue merits no relief. The PCRA court opinion comprehensively discusses and properly disposes of the question presented. ( See PCRA Court Opinion, filed March 13, 2018, at 7) (finding: no plea agreement exists unless and until it is presented to trial court, and trial court accepts it; here, Appellant had no right to specific performance of Commonwealth's plea offer, as Commonwealth withdrew offer before presentation to and acceptance by trial court; therefore, trial court did not err in refusing to impose withdrawn plea offer). The record supports the PCRA court's decision. Accordingly, we affirm based on the PCRA court opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/4/19
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