Opinion
J-A24039-17 No. 518 WDA 2017
12-14-2017
COMMONWEALTH OF PENNSYLVANIA v. ERIC WELLS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 10, 2017 in the Court of Common Pleas of Washington County, Criminal Division, No(s): CP-63-CR-0001922-2013 BEFORE: MOULTON, SOLANO and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Eric Wells ("Wells") appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its Order and Pa.R.Crim.P. 907 Notice (hereinafter "PCRA Court Order and Rule 907 Notice"), the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Order and Rule 907 Notice, 1/18/17, at 1-5.
Wells filed a Response to the PCRA court's Order and Rule 907 Notice. On March 10, the PCRA court entered an Order dismissing the Petition. Wells filed a timely Notice of Appeal. Thereafter, the PCRA court filed an Opinion pursuant to Pa.R.A.P. 1925(a).
The PCRA court did not order Wells to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)
On appeal, Wells raises the following issues for our review:
1. Was plea counsel ineffective in permitting the trial court to participate in plea negotiations, a violation of due process, by meeting with the trial court and the prosecution in chambers to discuss issues of guilt, innocence, level of guilt, and an appropriate period of incarceration before the proposed plea agreement was entered?Brief for Appellant at 4 (issues renumbered for ease of disposition).
2. Was [] Wells unlawfully induced into pleading guilty to homicide generally based on the ineffective assistance of plea counsel[,] who failed to adequately investigate or advise [] Wells regarding potential defenses[,] and erroneously advised [] Wells that there were no available defenses when [] Wells was intoxicated at the time of the incident and struck the victim only one time?
3. Did plea counsel render ineffective assistance by neglecting to adequately discuss with [] Wells his appellate rights in conjunction with his right to withdraw his plea?
4. Whether plea counsel was ineffective in advising [] Wells to plead guilty to robbery as either principal or an accomplice[,] where [] Wells lacked the requisite specific intent to commit or facilitate a robbery of either [Zach] DeCicco or [Timothy] McNerney, which plea counsel actually argued?
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
In his first issue, Wells contends that his plea counsel was ineffective for permitting the trial court to participate in plea negotiations. Brief for Appellant at 16-17. Wells asserts that, "absent the trial court's involvement and agreement in this case, it would be absurd on its face to urge a client to enter a plea to homicide[,] generally[,] and robbery arising out of the same criminal episode." Id . at 17-18. Wells claims that "it only makes sense for an attorney to urge his client to enter such a plea if he had been made a promise by the trial court." Id. at 18. Wells argues that "[s]ince the trial court ensured [sic] [plea counsel] that it would not find [] Wells guilty of felony murder if he entered the plea proposed by the trial court, [] Wells['s] due process rights were violated." Id. Wells contends that his plea counsel "was ineffective for failing to raise this issue and, in light of [ Commonwealth v.] Evans , [252 A.2d 689 (Pa. 1969),] could have no reasonable basis for not doing so." Brief for Appellant at 18. Wells claims that he suffered prejudice because, absent the trial court's interference, his plea counsel would not have advised him to plead guilty to both murder and robbery, and would have instead advised Wells to plead guilty to involuntary manslaughter or proceed to trial. Id. at 19. Wells argues that, pursuant to Evans , a plea entered on the basis of a sentencing agreement in which the judge participates cannot be considered a voluntary plea. Id. at 19-20. Wells asserts that the PCRA court incorrectly relied on Commonwealth v. Vealey , 581 A.2d 217 (Pa. Super. 1990), in reaching its determination that Wells suffered no prejudice relative to his Evans claim. Brief for Appellant at 20.
In its Opinion, the PCRA court addressed Wells's first issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Order and Rule 907 Notice, 1/18/17, at 5-6, 14-17 (wherein the PCRA court concluded that there is no evidence of record that the trial judge was involved in the plea negotiations between Wells, his plea counsel, and the Commonwealth); see also id. at 17-18 (wherein the PCRA court determined that, even if Wells had presented evidence that the trial judge was involved in the plea negotiations, Wells suffered no prejudice, as the trial judge declined to find Wells guilty of second-degree murder or to impose the felony murder rule, despite evidence supporting those charges). As Wells failed to present any evidence that the trial judge was involved in his plea negotiations, plea counsel cannot be faulted for failing to object to the trial judge's participation. See Commonwealth v. Poplawski , 852 A.2d 323, 327 (Pa. Super. 2004) (holding that counsel cannot be found ineffective for failing to pursue a baseless or meritless claim). As we agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, we affirm on this basis as to Wells's first issue. See PCRA Court Order and Rule 907 Notice, 1/18/17, at 14-17.
As Wells's second and third issues are related, we will address them together. In his second issue, Wells contends that he did not possess the requisite malice to support a conviction of third-degree murder. Brief for Appellant at 23. Wells asserts that "[n]o reasonable person, who weighs 155 pounds, and strikes a person weighing thirty pounds more than him, reasonably expects that one punch would kill the person he struck." Id. Citing to Commonwealth v. Alexander , 383 A.2d 887 (Pa. 1987), Wells claims that none of the circumstances deemed sufficiently egregious to warrant a finding of aggravated assault in a "one-punch aggravated assault" case were present in this case. Brief for Appellant at 25. Based on his assertion that there was no evidence of malice, Wells argues that "there was a valid defense to homicide, i.e., that the crime[,] at most[,] rose to the level of involuntary manslaughter ...." Id. Wells contends that his plea counsel's advice that Wells had no viable defense was erroneous, and plea counsel had no reasonable basis for not informing Wells that he "had a strong[,] legally valid defense to the homicide charge." Id. at 25-26. Wells asserts that he would not have entered his plea if plea counsel had properly advised him. Id. at 26.
In Alexander , the Court announced that the following factors can be utilized in ascertaining whether the defendant intended to inflict serious bodily injury by one blow: (1) if the defendant "was disproportionately larger or stronger than the victim;" (2) whether the defendant would have escalated his attack but was restrained from doing so; (3) whether the defendant was in possession of a weapon; and (4) "statements before, during, or after the attack which might indicate [defendant's] intent to inflict further injury upon the victim." Alexander , 383 A.2d at 889.
Wells further claims that the PCRA court erred by determining that plea counsel had a reasonable basis to advise Wells to plead guilty to homicide, generally, and robbery without the benefit of any testimony from plea counsel. Id. at 28. Wells argues that the PCRA court also erred by failing to make the appropriate inquiry of whether plea counsel's advice caused Wells to enter an unknowing and involuntary plea. Id. Wells contends that the only explanation for plea counsel's advice to plead guilty to homicide, generally, and robbery based on the same set of facts is that the trial judge promised that he would not find Wells guilty of felony murder. Id. at 29-30. Wells asserts that the PCRA court improperly relied on aggravated assault cases when determining the level of malice necessary for homicide. Id. at 30.
In his third issue, Wells contends that an evidentiary hearing was required to determine whether plea counsel had advised Wells of his right to file a direct appeal. Id. at 33. Wells asserts that, "had counsel adequately advised [Wells] regarding his defense to homicide[,] and that [Wells] could have pursued an involuntary manslaughter defense, [] Wells would have moved to withdraw his plea or never entered the plea." Id. Wells claims that he suffered actual prejudice because his plea counsel had no reasonable basis not to discuss with Wells his appellate rights, and there would have been grounds for an appeal based on his defense to homicide. Id. at 35.
[T]o convict a defendant of the offense of third[ ]degree murder, the Commonwealth need only prove that the defendant killed another person with malice aforethought. This Court has long held that malice comprehends not only a particular ill-will, but [also a] wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.Commonwealth v. Fisher , 80 A.3d 1186, 1191 (Pa. 2013) (citations omitted).
This Court has further noted:
[T]hird[-]degree murder is not a homicide that the Commonwealth must prove was committed with malice and without a specific intent to kill. Instead, it is a homicide that the Commonwealth must prove was committed with malice, but one with respect to which the Commonwealth need not prove, nor even address, the presence or absence of a specific intent to kill. Indeed, to convict a defendant for third[-]degree murder, the jury need not consider whether the defendant had a specific intent to kill, nor make any finding with respect thereto.Id. As with other elements of crime, the trier of fact may infer criminal intent, knowledge and recklessness from circumstantial evidence. See Commonwealth v. Moore , 395 A.2d 1328, 1332 (Pa. Super. 1978)
In its Opinion, the PCRA court addressed Wells's second and third issues, set forth the relevant law, and determined that the issues lack merit. See PCRA Court Order and Rule 907 Notice, 1/18/17, at 5-10 (determining that "[s]pecific intent is not a required element of third[-]degree murder" and that "the facts establish [Wells's] intention to cause serious bodily harm during the confrontation."); see also PCRA Court's Pa.R.A.P. 1925(a) Opinion, 3/9/17, at 2-5 (wherein the PCRA court further explained its determination that Wells's ineffectiveness claims regarding a defense to third-degree murder are meritless).
Here, the evidence of record reveals that, during the course of a robbery, Wells delivered a single punch to the victim with such force that the victim immediately fell to the ground and struck his head. Indeed, Wells admitted to police that he had punched the victim with such force that he "knocked him out." N.T., 8/14/13, at 60. We conclude that these facts support a determination that Wells acted with a "wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty" so as to satisfy the malice element of third-degree murder. See Fisher , 80 A.3d at 1191. The fact that Wells did not intend to kill the victim is of no consequence. Id. We therefore agree with the PCRA court's determination that plea counsel was not ineffective for failing to advise Wells that he had a defense to third-degree murder, and affirm as to Wells's second and third issues. See PCRA Court Order and Rule 907 Notice, 1/18/17, at 5-10; see also PCRA Court's Pa.R.A.P. 1925(a) Opinion, 3/9/17, at 2-5.
In his fourth issue, Wells contends that, based on his plea counsel's statement to the trial court during sentencing that Wells had no criminal intent to commit robbery, counsel could have no reasonable basis to advise Wells to plead guilty to robbery as a principal. Brief for Appellant at 32. Wells asserts that, although plea counsel had indicated that his advice was based on the Commonwealth's charge of accomplice liability, an intent element is also required for accomplice liability. Id. Wells claims that, because he denied that he intended to commit the robbery, a valid defense to the robbery charge existed. Id. at 33. Wells argues that, had plea counsel explained that Wells had a defense to robbery, Wells would not have pleaded guilty to that charge. Id.
In its Opinion, the PCRA court addressed Wells's fourth issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Order and Rule 907 Notice, 1/18/17, at 10-13 (wherein the PCRA court determined that the record supports Wells's conviction of conspiracy to commit robbery). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Wells's fourth issue. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/14/2017
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