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Commonwealth v. Mansaray

SUPERIOR COURT OF PENNSYLVANIA
Aug 16, 2018
No. 943 EDA 2017 (Pa. Super. Ct. Aug. 16, 2018)

Opinion

J-S31006-18 No. 943 EDA 2017

08-16-2018

COMMONWEALTH OF PENNSYLVANIA v. SIDIQUE A. MANSARAY Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order February 17, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001720-2012 BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J. MEMORANDUM BY SHOGAN, J.:

Appellant, Sidique A. Mansaray, appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the underlying facts of this case as follows:

On November 11, 2011, shortly before 11 p.m. while inside of a residence at 912 North 43th Street in Philadelphia, [Appellant] was sitting in a room behind the victim, Titus Lowery. N.T. 6/24/13 at 20. There had been previous disagreements between the two. Id. [Appellant] had in his possession at the time a "sawed off" shotgun, which he shot one time, hitting the victim in the back. Id. The shotgun cup was recovered from the victim's body. Id. at 21. The victim was pronounced dead at the Hospital of the University of Pennsylvania. Id. The next day, [Appellant] was apprehended at 30th Street Station trying to board an Amtrak train to New Jersey. Id. at 21. After being taken down to the Homicide Unit of the Philadelphia Police Department, [Appellant] gave a statement, "almost completely taking responsibility for the crime." N.T. 6/24/13 at 21. A DNA analysis found [Appellant's] DNA on the shotgun. Id. Witnesses reported seeing [Appellant] run out of the house after the gun was fired.14 Id.
14 As this was a guilty plea, the Commonwealth merely recited the facts into the record. These witnesses were not named.
PCRA Court Opinion, 7/7/17, at 3.

The PCRA court set forth the subsequent procedural history of this matter as follows:

On June 24, 2013, [Appellant] entered into a negotiated guilty plea1 to murder of the third degree (H-3) and persons not to possess firearms (F-2).2 Notes of Testimony (N.T.) 6/24/13 at 30-31. Pursuant to those negotiations, [Appellant] was sentenced to a cumulative term of not less than 25 years nor more than 50 years in prison.3 Id. at 37. [Appellant] did not file post-sentence motions or a notice of appeal.

1 [Appellant] was represented at trial by Tariq Karim El Shabazz, Esquire.

2 18 Pa.C.S. §§ 2502(c) and 6105(a)(1), respectively.

3 As to the charge of murder of the third degree, [Appellant] was sentenced to a term of not less than 20 nor more than 40 years in prison. As to the charge of persons not to possess firearms, [Appellant] was sentenced to a consecutive term of not less than five nor more than ten years in prison. N.T. 6/24/13 at 37.

On February 7, 2014, [Appellant] filed a timely pro se Post Conviction Relief Act (PCRA)4 petition.5 Counsel was appointed6 and, on March 31, 2016, filed an amended petition, alleging that [Appellant's] plea was not a knowing, intelligent, or voluntary plea, and that trial counsel was ineffective for inducing [Appellant] to plead guilty. The Commonwealth filed a motion to dismiss on May 12, 2016. On June 15, 2016, having reviewed the pleadings and the Notes of Testimony from the entry of the plea, and having concluded [Appellant's] claim was meritless, this [c]ourt sent [Appellant] notice of its intent to deny and dismiss his claim without a hearing pursuant to Pa.R.Crim.P. 907 (907 Notice).
4 42 Pa.C.S. 55 9541-9546.

5 [Appellant] also filed a petition for transcripts and discovery on October 30, 2015, which was forwarded to his attorney, Lee Mandell, Esquire.

6 Lee Mandell, Esquire, was appointed to represent [Appellant] on collateral attack, and entered his appearance on July 2, 2014.

[Appellant] thereafter sent three pro se correspondences to the [c]ourt, which were received on June 27, 2016, August 1, 2016, and September 26, 2016. These explained his motivations for pleading guilty, asked to be updated on the status of his petition, and discussed his mental health issues and mental state during the crime, specifically alleging diminished capacity.7 This [c]ourt considered [Appellant's] submissions as his response to the 907 Notice. After giving them full consideration, on November 29, 2016, this [c]ourt sent [Appellant] a supplemental 907 Notice (Supplemental 907 Notice). On December 5, 2016, [Appellant] requested an extension to reply to the supplemental 907 Notice in order to access his mental health records. On December 12, 2016, this [c]ourt ordered that any response would be due no later than February 10, 2017.8 [Appellant] filed a pro se response to the Supplemental 907 Notice on December 15, 2016, and several pro se addenda on December 15, 2016, December 19, 2016,9 and January 4, 2017.10

7 All pro se filings were docketed, and notice of their receipt and contents was sent to [Appellant] and counsel.

8 The December 12, 2016 order lists the date as February 10, 2016. This was clearly in error.

9 Based upon the dates [Appellant] gave these documents, the pro se response and first two addenda may have been drafted before he received notice of the extension.

10 These were similar in content to his previous pro se correspondence, focusing on his mental health issues and that he no longer had access to his mental health evaluations.
On February, 17, 2017, after having reviewed the petition and copious record, this [c]ourt dismissed the petition. On March 15, 2017, [Appellant] filed: a notice of appeal, a 1925(b) statement (1925(b) Statement),11 and an application to appeal in forma pauperis, all pro se. These were received in chambers on March 24, 2017. However, because [Appellant] continued to be represented by PCRA counsel, who also filed a notice of appeal on March 20, 2017, on April 13, 2017, this [c]ourt ordered that counsel to [sic] file a 1925(b) Statement.12 Counsel's 1925(b) Statement was filed on May 4, 2017.13

11 Pa.R.A.P. 1925(b).

12 The April 13, 2017, order had originally been filed on March 22, 2017, but was returned to chambers as the address counsel provided on the notice of appeal was inaccurate.

13 [Appellant's] pro se 1925(b) Statement alleged ineffective assistance of counsel for: "excluding mental health evaluation" and "failing to get a diagnosis of mental health." Additionally, he claimed he was "never afforded the ability to present any psychiatric opinion..." Statement of Matter Complained of Appeal 1925(b) (pro se) 3/15/17 (emphasis in original). However, the May 4, 2017, Statement from counsel serves as the basis of this opinion, as this [c]ourt is under no obligation to entertain hybrid representation. "There is no statutory or constitutional requirement that a court must review a pro se appellate brief which is submitted by a counseled appellant." Commonwealth v. Ellis, 626 A.2d 1137, 1138 (Pa. 1993). Under Pa.R.A.P. 3304 the pro se filing will be forwarded to the counsel of record, while the counsel's filing will be reviewed. Id. at 1139; Pa.R.A.P. 3304.
PCRA Court Opinion, 7/7/17, at 1-3.

Appellant presents the following issue for our review:

I. Did the PCRA Court err when it dismissed the Amended Petition without a Hearing but where [Appellant] pled and would have
been able to prove that he should have been permitted to withdraw his Guilty Plea where [Appellant] claims that his Plea was not entered in a knowing, intelligent and voluntary fashion?
Appellant's Brief at 3.

Appellant argues that the PCRA court erred in dismissing his PCRA petition without first holding an evidentiary hearing. Appellant's Brief at 7-11. Appellant asserts that his trial counsel was ineffective for forcing Appellant to enter a guilty plea and that a PCRA hearing was necessary in order for the PCRA court to resolve the question of whether Appellant's plea was knowing, intelligent and voluntary.

When reviewing the propriety of an order denying PCRA relief, we consider the record "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Stultz , 114 A.3d 865, 872 (Pa. Super. 2015) (quoting Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)). This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012). We grant great deference to the PCRA court's findings that are supported in the record and will not disturb them unless they have no support in the certified record. Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014).

Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that the petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan , 772 A.2d 1011, 1014 (Pa. Super. 2001). A reviewing court on appeal must examine each of the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and denying relief without an evidentiary hearing. Id.

In addition, Appellant challenges the effective assistance of his trial counsel. Our Supreme Court has long stated that in order to succeed on a claim of ineffective assistance of counsel, an appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused the appellant prejudice. Commonwealth v. Pierce , 786 A.2d 203, 213 (Pa. 2001).

We have explained that trial counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner , 836 A.2d 125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second prong, we have reiterated that trial counsel's approach must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Ervin , 766 A.2d 859, 862-863 (Pa. Super. 2000) (quoting Commonwealth v. Miller , 431 A.2d 233 (Pa. 1981)).

Our Supreme Court has discussed "reasonableness" as follows:

Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.
Commonwealth v. Pierce , 527 A.2d 973, 975 (Pa. 1987) (quoting Commonwealth ex rel. Washington v. Maroney , 235 A.2d 349 (Pa. 1967)) (emphasis in original).

In addition, we are mindful that prejudice requires proof that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Pierce , 786 A.2d at 213. "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels , 963 A.2d 409, 419 (Pa. 2009) (citing Commonwealth v. Sneed , 899 A.2d 1067 (Pa. 2006)). Thus, when it is clear that a petitioner has failed to meet the prejudice prong of an ineffective-assistance-of-counsel claim, the claim may be disposed of on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Baker , 880 A.2d 654, 656 (Pa. Super. 2005).

It is presumed that the petitioner's counsel was effective, unless the petitioner proves otherwise. Commonwealth v. Williams , 732 A.2d 1167, 1177 (Pa. 1999). Moreover, we are bound by the PCRA court's credibility determinations where there is support for them in the record. Commonwealth v. Battle , 883 A.2d 641, 648 (Pa. Super. 2005) (citing Commonwealth v. Abu-Jamal , 720 A.2d 79 (Pa. 1998)).

The PCRA will provide relief to an appellant if ineffective assistance of counsel caused him or her to enter an involuntary plea of guilt. Commonwealth v. Lynch , 820 A.2d 728 (Pa. Super. 2003). We conduct our review of such a claim in accordance with 42 Pa.C.S. § 9543(a)(2)(ii). Lynch , 820 A.2d at 732. "The voluntariness of [the] plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Id. at 733 (quoting Commonwealth v. Hickman , 799 A.2d 136 (Pa. Super. 2002)).

Further, we are mindful of the following:

Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise.


* * *

The longstanding rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. A person who elects to plead guilty is bound by the statements he makes in open court while under oath and may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy.


* * *

A defendant who elects to plead guilty has a duty to answer questions truthfully. We cannot permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel.
Commonwealth v. Yeomans , 24 A.3d 1044, 1047 (Pa. Super. 2011) (citing Commonwealth v. Pollard , 832 A.2d 517 (Pa. Super. 2003)).

We have reviewed the briefs of the parties, the relevant law, the thorough opinion of the PCRA court, and the complete certified record before us on appeal. We conclude that the PCRA court's opinion adequately and accurately addresses Appellant's allegation that the PCRA court erred in failing to hold an evidentiary hearing to determine whether trial counsel was ineffective in handling Appellant's guilty plea. PCRA Court Opinion, 7/7/17, at 4-9. Indeed, upon consideration of the facts surrounding the guilty plea, the transcript of the guilty plea hearing, and the relevant law, we fail to see how trial counsel could have induced Appellant to enter an involuntary guilty plea in this matter. Accordingly, because the record supports the PCRA court's analysis, we adopt its opinion as our own, and conclude that Appellant's claim lacks merit.

The parties are directed to attach a copy of the July 7, 2017 opinion in the event of further proceedings in this matter.

Order affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/16/2018

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Summaries of

Commonwealth v. Mansaray

SUPERIOR COURT OF PENNSYLVANIA
Aug 16, 2018
No. 943 EDA 2017 (Pa. Super. Ct. Aug. 16, 2018)
Case details for

Commonwealth v. Mansaray

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. SIDIQUE A. MANSARAY Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Aug 16, 2018

Citations

No. 943 EDA 2017 (Pa. Super. Ct. Aug. 16, 2018)