Opinion
941 EDA 2021 942 EDA 2021
02-14-2022
COMMONWEALTH OF PENNSYLVANIA v. ANDRE TAYLOR Appellant COMMONWEALTH OF PENNSYLVANIA v. ANDRE TAYLOR Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered May 3, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010995-2014, CP-51-CR-0011330-2014
Joseph D. Seletyn, Esq.
BEFORE: PANELLA, P.J., LAZARUS, J., and COLINS, J. [*]
MEMORANDUM
LAZARUS, J.
Andre Taylor appeals from the order, entered in the Court of Common Pleas of Philadelphia, denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm the PCRA court's order, and we rely on the opinion authored by the Honorable J. Scott O'Keefe.
Taylor's appeal pertains to two separate docket numbers CP-51-CR-0011330-2014 and CP-51-CR-0010995-2014. He has filed two separate appeals, docketed at 941 EDA 2021 and 942 EDA 2021, in compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (where single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case). See Pa.R.A.P. 341(a). We have consolidated his appeals, docketed at 941 EDA 2021 and 942 EDA 2021, sua sponte. See Order, 7/16/21. See also Pa.R.A.P. 513.
On December 28, 2015, Taylor, a serial strangler, entered an open guilty plea to two counts each of aggravated assault, robbery, unlawful restraint, and possession of instruments of crime. On October 28, 2016, after reviewing the presentence report, mental health and neuropsychology evaluations, and sentencing memoranda, the court held a sentencing hearing. The court sentenced Taylor to an aggregate term of imprisonment of 50 to 100 years. Taylor filed a motion for reconsideration of sentence, which the court denied. See Order, 11/7/16.
Taylor has a disturbing history of strangling women, robbing them and leaving them for dead. His three prior convictions stemmed from offenses on March 24, 2001, April 10, 2002, and June 25, 2002. Taylor kept a journal, which "chillingly describes how he has choked dozens of girls, how he regrets that he did not kill them, lists hundreds of new potential victims and vows to make sure he does not make the same mistake again-leaving them alive." Trial Court opinion, 7/6/21, at 3.
On direct appeal, this Court affirmed Taylor's judgment of sentence. Commonwealth v. Taylor, 3478 EDA 2016 (Pa. Super. filed April 30, 2018) (unpublished memorandum decision). The Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Taylor, 195 A.3d 563 (Pa. 2019). On January 7, 2019, Taylor filed a pro se PCRA petition. The PCRA court appointed counsel, who fled an amended petition on February 25, 2019. The court held an evidentiary hearing on March 30, 2021 and, on May 3, 2021, the court denied Taylor's petition. This timely appeal followed.
Taylor raises one issue for our review:
Did the trial court err in denying post-conviction relief [] after an evidentiary hearing when [Taylor] was never advised that the sentences for the cases to which he entered open guilty pleas could run consecutively, meaning that the total possible sentence was fifty (50) to one hundred (100) years, which was ultimately imposed, rendering his plea unknowingly entered?Appellant's Brief, at 4.
Taylor argues that his plea colloquy was deficient, and that plea counsel was ineffective for failing to explain the maximum penalty he was facing. Taylor is not entitled to relief.
When reviewing the PCRA court's denial of post-conviction relief, we must determine whether the court's findings are supported by the record and free of legal error. Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015). In doing so, we accord great deference to the PCRA court's credibility determinations, and, where supported by the record, they are binding on this Court. Id.
To be entitled to relief on a claim of ineffectiveness of counsel, a PCRA petitioner must establish all three prongs of the ineffective assistance of counsel test set forth in Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987). A petitioner must demonstrate: "(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 the result of the proceeding would have been different." Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011). We begin with the presumption that counsel rendered effective assistance. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
Where the underlying ineffectiveness implicates a guilty plea, such a claim provides relief only "if the ineffectiveness caused an involuntary or unknowing plea." Commonwealth v. Diaz, 913 A.2d 871, 872 (Pa. Super. 2006). This test is analogous to "the 'manifest injustice' standard applicable to all post-sentence attempts to withdraw a guilty plea." Id. Because "a plea of guilty effectively waives all non-jurisdictional defects and defenses," Commonwealth v. Gibson, 561 A.2d 1240, 1242 (Pa. Super. 1989), "after sentencing, allegations of ineffectiveness of counsel in this context provide a basis for withdrawal of the plea only where there is a causal nexus between counsel's ineffectiveness, if any, and an unknowing or involuntary plea." Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc).
After our review, we agree with Judge O'Keefe's determination that the record belies Taylor's claims. See Trial Court Opinion, supra at 8-10, citing Written Guilty Plea Colloquy, 12/28/15, at 1 (stating "I know I can go to jail for up to 100 years and be fined $150k for the crimes I committed"). See Commonwealth v. Kpou, 153 A.3d 1020, 1024 (Pa. Super. 2016) (citing Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003)) ("A person who elects to plead guilty is bound by the statement he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy."). Moreover, the PCRA court found Taylor's testimony at the evidentiary hearing was not credible. Id. at 9. Accordingly, no relief is due.
We affirm the order denying PCRA relief based on Judge O'Keefe's opinion. The parties are directed to attach a copy of that opinion in the event of further proceedings.
Order affirmed.
Judgment Entered.
CRIMINAL TRIAL DIVISION
CP-51-CR-0010995-2014 CP-51-CR-00U330-2014
OPINION
O'KEEFE. J.
Andre Taylor appeals from the order denying his Post-Conviction Relief Act Petition (here inafter refereed to as “PCRA” for the ____
PROCEDURAL HISTORY:
Mr. Taylor was arrested on July 30, 2014, and charged with two counts of aggravated as sault, robbery, unlawful restraint and possessing the instruments of a crime. The defendant was bound over for court on all charges following a preliminary hearing on September 26, 2014. Taylor pied guilty on December 28, 2015, with sentencing scheduled fur March 18, 2016. At the defendant's request, sentencing was postponed until October 28, 2016, whereupon the defendant was sentenced to an aggregate sentence of fifty to one-hundred years' incarceration. A motion to reconsider sentence was timely filed and denied without a hearing.
An appeal was made to the Superior Court, who affirmed the trial court on April 30, 2018. Commonwealth v. Taylor, 3478 EDA 2016. On May 30, 2018, Appellant filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, who denied Allocatur on October 11, 2018. Commonwealth v, Taylor, 229 EAL 2018.
Mr. Taylor filed his PCRA petition on January 7, 2019, and counsel was appointed on the sixteenth of the same month. An amended petition was filed February 25, 2019, and an evidentiary hearing conducted on March 30, 2021. The petition was dismissed on May 3rd of this year and a timely appeal was made to the Superior Court.
STANDARD OF REVIEW:
When reviewing an order denying a PCRA petition, an appellate court looks to whether the PCRA court's decision is supported by the evidence of record and is free of legai error. Commonwealth v. Spotz, 624 Pa, 4, 84 A.3d 294 (2014). On questions of law, the standard of review is de novo and the scope of review is plenary. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super.2014). The court will grant great deference to the factual findings of the PCRA court and will not disturb those facts unless they have no support in the record. Id.
FACTS:
On July 27, 2014, Ms. Kathleen York was walking on the forty-five hundred block of Larchwood Street in Philadelphia when the defendant approached her from behind. Taylor grabbed Ms. York and pulled her into an alley, choking her with her headphones and a thin nylon rope. This defendant then robbed her of seven dollars, all that Ms. York had on her person and then ran away. (N.T. 12-28-2015, pp. 9-10; N.T, 10-28-2016, pp. 11-12). Three days later, in the middle of the day, Corrine McDonald was walking on the forty-five hundred block of Larchwood Street when the defendant approached her and placed a rope around her neck, strangling her while attempting to take her necklace. Police officers observed this incident and arrested the defendant. (N.T, 12-28-2015, pp. 10-11; N.T. 10-28-2016, pp. 12-13). These are the incidents to which the defendant pled guilty in the above-captioned dockets. They are second strike offenses. A true and correct copy of the six-page guilty plea colloquies are attached hereto, made a part hereof and marked Exhibit A.
This defendant previously had three similar cases from 2001 and 2002. On March 24, 2001, the defendant was arrested and eventually found guilty of robbery and aggravated assault (CP-51-CR-0605841-2001) for strangling and robbing Ms. Voshi Thomas at Thirty-Ninth and Spruce Streets in Philadelphia, choking her until she passed out. When she regained consciousness, Ms. Thomas found that she had been hauled to a dumpster and left for dead in the freezing snow. A Good Samaritan heard her guttural cries and came to her rescue. (N.T. 10-28-2016, pp. 14-17).
Taylor also has arrests from April 10, 2002 and June 25, 2002, wherein he was charged with aggravated assault, robbery and related offenses for the strangulation and robbery of Tianna Woodson and Olivia Grant (CP-51-CR-0807781-2002; CP-51-CR-0800381-2002), where both victims were strangled until they lost consciousness. Taylor entered a guilty plea on both cases on January 9, 2003. (N.T. 10-28-2016, p. 18). For these robberies and aggravated assaults, Taylor received an aggregate sentence of six to twelve years' incarceration, to which he served the maximum. It is these three cases that the parties agreed invoked the second-strike statute, 42 Pa.C.S. §9714.
While serving his state sentence, the defendant kept a journal, which disturbingly describes crimes he has committed, along with crimes he wants to commit in the future, a copy of which is attached hereto as Exhibit B. The journal lists the names, addresses, dates of birth and social security numbers of each of his victims, their family members and any witnesses in the cases for which he was incarcerated. He describes each crime, including "what I was wearing," how each victim was clad and specific details of what he did to each victim, such as "choked her, draged [sic] her, took $200.00 out of her pocket, pulled hair out." (Exhibit B, pp. 2-6). Taylor also has a list titled "Weapons used in crime's!!" in which he lists the following: "Gun; knife; strap Belt; Rope; Ace bandage; Candy; Bone's; Plastic bag; Food; Tree stick's small ones; Gloves Black, rubber; Rocks." (Exhibit B, p. 7). Taylor then has a to-do list for when he got out of prison - to go to Shaw Middle School, obtain the graduation books as well as pore over the school computer to find literally hundreds of young girls. (Exhibit B, pp. 8-15). Taylor's next to-do list:
"Do This When Home!! [sic] And Always Remember Finish What Ever I Start! Make Sure The Girl Is Not Breathing And Is Dead!
I'm Going To Do One Of These Four Things?
1. Watch her choke on something until death, or Just Dead, [sic]
2. Strangle her with a Night Stick, Until dead.
3. Put my arm around her neck until she goes to sleep, then I'm going to tie a Rope or Cord around her neck while her feet is [sic] in a chair, than [sic] I'm going to slap her until she wakes up and as soon as she does I'm going to kick the chair from under her feet and watch her gag and cough until she's dead and I'm going to watch her kick her feet as well,
4. Just choke her with my hand squeezing her throat, or buy [sic] taping [sic] a cord or rope around her neck strangling her and seeing her gag and tell me I can't Breathe, [sic]"
(Exhibit B, pp. 18-19).
Taylor next has some homicidal reminiscing and regrets:
"Giri's [sic] that's [sic] on this list is [sic] girls I should Have killed!
Asthma 1. Alicia - I choked her with both my hands and I got a picture of her squezzing [sic] her throat, she was - coughing, crying, gagging, faning [sic] hand, to let me know she couldn't breathe, she was doing all this while I was choking her.
Asthma 2. Shereta -1 was choking her with one hand by squezzing [sic] by
grabbing her windpipe, she was gagging and whizzing, [sic] while I was doing it, and Mokus [sic] was coming [sic] the side of her mouth,
3. Sequana, a/k/a Peanut - I was choking her with both my hands, and while I was doing it, she was gagging, then after I was done she was coughing then she was clearing her throat, and she almost passed out,
4. Sierra From North Philly -1 was choking with both my hands in [sic] she pass out, and her lips got really dry, and she had mokus [sic] coming out the side of her mouth while I was choking her.
Also - Tianna, Olivia, Vashti, Kennfha,
5.Anya -1 was choking her with both my hand squezzing [sic] her throat, she was coughing and gagging and whizzing [sic] while I was doing it, then when I stoped [sic] she was coughing.
6.Tyra -1 was choking her with both my hands squezzing [sic] her throat from in back of her, and she was telling me I can't breathe and I told her so what I don't care, [sic] and then after I stoped [sic] she was coughing.
7.Tammy the Dike girl -1 choked with both my hand over and over again for 12 mintes [sic] and when I was doing she was gagging, and then when 1 stoped [sic] she couldn't talk or swollow [sic] at all, and I made her clear her throat for 4 mintes, [sic]
8. Cherell - I squezzed [sic] her throat with one hand and choking her and she was gagging and getting Red in the face, and also I made her stick her fingers down her throat and choke on them."(Exhibit B, pp. 22-23).
It Continues:
"Read when I get Home!!
Girls I was choking and they were coughing while it was happening or when I stoped! [sic]
Asthma 1. Alicia -1 was choking her with both of my hands around her neck and she was coughing and crying and flaning [sic] me to stop with one of her hands.
2. Peanut a/k/a Sequana - 1 was choking her with both my hands around her neck and she was gagging then when I stoped [sic] she was coughing and clearing her throat.
3.The Dike girl a/k/a Tammy from Clarks Park -1 was choking her with both of my hands around her neck and squeezing her throat with my fingers and when I stoped [sic] she had a sore throat and couldn't talk or swallow [sic],
Latoya - Cherell - Jessica - Vicky - Angle - Tasha - Markeda -Candice - Colleen - Anya - Zakiya - Tete a/k/a Tadtia - Olivia
PS: Snoopy I am going to choke you with my hands to death or strangle you with something to death?" (Exhibit B, p. 24).And further:
"Kenntha - fastest one to Passout?
1. Girl's [sic] that was [sic] coughing while I was choking them? Alicia, Cherell, Latoya, April?
2. Girl's [sic] that was [sic] coughing after I stoped [sic] choking them?
Alicia, Peanut, Latoya, Tete, Vicky, Taneshia, Anya, Daneen, Can-dice, Tyra, Zakiya, Markeda, India, Colleen, Angie?
3.Girl's [sic] that spit up?
Kenntha, Anya, Tianna, Markeda, Angie, Denise?
4. Girl's [sic] that was [sic] gagging while I was choking them? Cherell, Pricess, Latoya, Tete, Shereta, Charmaine, Taneshia, Vicky, Kenntha, Anya, Peanut, Sierra, Stacie, Colleen, Zakiya, Tyra, Tabitha?
5. Girl's [sic] that was [sic] telling me I can't breathe while I was choking them?
Alicia, Cherell, Latoya, Colleen, Taneshia, Vicky, Anya, Kenntha, Peanut, Tyra, Ashley?
6. Girl's [sic] that had mokus [sic] coming out there mouth while I was choking them?
Sheretia, Vashti, Kenntha, Aisa, Eliss, Bianka, Genie, Keria, Cherell, Alicia, Teresa, Lekisha, Shamay, Torrie, Tyeshia, Latoya, Tete, Tia, Kenntha, Zakiya, P, Denise, Sierra?
Sore threats - Brandi, Alicia, Lekisha, Ciara, Cherell, Teresa, Aisa, Keria, Torrie, Peanut, Lauren, Dawn, Zakiya Clear throats - Lauren, April, Coleeneanut, Tyra."(Exhibit B, p. 25).
Throughout this journal, Taylor chillingly describes how he has choked dozens of girls, how he regrets that he did not kill them, lists hundreds of new potential victims and vows to make sure he does not make the same mistake again - leaving them alive. Taylor writes that he will make sure that the next victims are dead. The defendant was released from prison to a half-way house on April 14, 2014, and by July 30th, three and one-half months later, Taylor had already attempted to strangle and rob two women walking down the street.
LEGAL DISCUSSION
Denial of PCRA Petition
The standard and scope of review for the denial of a PCRA petition is well-settled. The appellate court examines a PCRA appeal in the light most favorable to the prevailing party at the PCRA level. The court's review is limited to the findings of the PCRA court and the evidence of record. Additionally, the reviewing court grants great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. In this respect, the appellate court will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. However, where the petitioner raises questions of law, the standard of review is de novo, and the scope of review is plenary. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super.2014), appeal denied, 101 A.3d 785 (Pa.2014) (citations and quotation marks omitted).
Guilty Plea
The defendant raises a single claim in his Statement of Matters Complained of on Appeal: Did the PCRA court err in denying the PCRA petition, after an evidentiary hearing in that Mr. Taylor was not advised, when pleading guilty, that the sentence could run consecutive to a maximum of fifty to one hundred years, the sentence that was imposed. A defendant who asserts a claim of ineffectiveness of counsel in the context of a guilty plea must show that counsel's ineffectiveness induced him to enter into the plea. Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa.Super, 2005), Our Superior Court has opined:
"Because a plea of guilty effectively waives all non-jurisdictional defects and defenses after sentencing, allegations of ineffectiveness of counsel in this context provide a basis for withdrawal of the plea only where there is a causal nexus between counsel's ineffectiveness, if any, and an unknowing or involuntary plea. The guilty plea hearing becomes the significant procedure under scrutiny. The focus of the inquiry is whether the accused was misled or misinformed and acted under that misguided influence when entering the guilty plea."Commonwealth v. Flood, 426 Pa.Super. 555, 627 A, 2d 1193, 1199 (1993) (citations omitted).
This defendant entered into an open guilty plea on December 28, 2015, in which he pled guilty to two counts each of aggravated assault, robbery, possessing the instrument of a crime and unlawful restraint. (N.T. 12-28-2015, pp. 13-14), A signed written guilty plea colloquy is referenced in the notes of testimony, clearly stating "I know lean go to jail for up to 100 years and be fined $150k for the crimes I committed. (Written Guilty Plea Colloquy, p. 1). Furthermore page 1 of another signed Colloquy for Plea of Guilty/Nolo Contendere enumerates the possible range of sentences as aggravated assault ten to twenty years; robbery as ten to twenty years; possessing the instruments of a crime two and one-half to five years and unlawful restraint as two and one-half to five years. (Colloquy for Plea of Guilty/Nolo Contendere, p. 1). A true and correct copy of the six page colloquies are attached hereto, made a part hereof and marked Exhibit A. Additionally, during the guilty plea, the defendant's counsel stated in open court that "On the colloquy form, I totaled up the maximum number of years for both cases, so that's what the number is." (N.T, 12-28-2015, p. 13), On the third page of the written colloquy is Taylor's signature below the declaration "1 have read all of the above, or my lawyer read it to me, I understand it. My answers are all true and correct." (Exhibit A). This certification was witnessed and attested to by the both the defendant's attorney and the prosecutor, as well as the trial court, (Exhibit A, pp. 3-4). Sentencing was October 28, 2016, at which time Appellant received the maximum he could under the plea agreement, fifty to one hundred years.
A reviewing court is free to look at the totality of the circumstances surrounding the entry of a plea when assessing whether the plea was entered into in accordance with the law. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 588 (Pa.1999); Commonwealth v. Muhammad, 794 A.2d 378, 383-84 (Pa.Super.2002); Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super.2002). A defendant is obliged to tell the truth during a plea hearing, and a trial court may rely on a properly executed written guilty plea colloquy supplemented by an oral colloquy in deciding whether the pica is knowing, intelligent and voluntary. See Commonwealth v. Cappelli, 340 Pa.Super. 9, 489 A.2d 813 (1985); Commonwealth v. Nelson, 319 Pa.Super. 66, 465 A.2d 1056 (1983). The defendant's contention that he was not advised that the sentences could run consecutively, to a maximum of fifty to one hundred years is belied by both the oral and written colloquies, For the defendant to succeed in his claim, he would need assert that he was lying, under oath when he attested to the written guilty plea forms. He is barred from doing so. See Commonwealth v. Cappelli, 340 Pa.Super. 9, 489 A.2d 813, 819 (1985); Commonwealth v. Willis, 68 A.3d 997 (Pa.Super.2013). The defendant confirmed under oath that counsel had explained to him the sentences that could be imposed and he cannot now attempt to withdraw his plea by arguing that he lied during the colloquy. Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011).
The plea colloquy, oral and written, conveyed all the required information for the defendant to make a knowing, intelligent and voluntary decision and the totality of the circumstances clearly shows Taylor's guilty plea met those requirements. Appellant's contention during the PCRA evidentiary hearing that he did not know he was subjecting himself to a maximum sentence of fifty to one hundred years was not credible. During the PCRA evidentiary hearing, when asked if he read the written plea agreement, he said no. When cross-examined he claimed he may have skimmed it, (N.T. 3-30-2021, pp. 23-25). Reviewing all those circumstances, it is crystal clear that the defendant's plea was knowing, intelligent and voluntary and he was well aware of the maximum sentence that he could receive. Accordingly, the court acted within its discretion in dismissing the PCRA petition and should be affirmed,
CRIMINAL TRIAL DIVISION
CP-51 -CR-0010995-2014 CP-51-CR-0011330-2014
Proof of Service
I hereby certify that I am on this day serving the foregoing Court's Opinion upon the person(), and in the manner indicated below, which service satisfies the requirements of Pa.RXrim.P 114:
Defense Attorney: Gina A. Amoricllo, Esquire
1515 Market Street
Suite 1200
Philadelphia, PA 19102
Type of Service; () Personal (X) First Class Mail () Interoffice () Other, please specify
District Attorney: Lawrence Jonathan Goode, Esquire
Appeals Unit
District Attorney's Office
3 South Pcnn Square
Philadelphia, PA 19107
Type of Service; () Personal () First Class Mail (X) Interoffice () Other, please specify
EXHIBIT A IMAGE OMIITED
EXHIBIT B IMAGE OMIITED [*] Retired Senior Judge assigned to the Superior Court.