Com. v. Lewis

• Decision Date: 02 December 1993
• Citation: 634 A.2d 633,430 Pa.Super. 336
• Parties: COMMONWEALTH of Pennsylvania v. Brenda LEWIS, Appellant.
• Court: Pennsylvania Superior Court

Page 633

634 A.2d 633

430 Pa.Super. 336

COMMONWEALTH of Pennsylvania v. Brenda LEWIS, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 20, 1993.

Filed Dec. 2, 1993.

James E. Mugford, Sr., Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before DEL SOLE, JOHNSON and CERCONE, JJ.

DEL SOLE, Judge:

Appellant, Brenda Lewis, appeals from the trial court's denial of her P.C.R.A. petition without a hearing. Finding no abuse of discretion or error of law by the trial court, we affirm.

On the evening of July 13, 1988, Appellant approached her neighbor, Julia Whitmore, who was sitting on the steps of a Philadelphia home talking to her friends. Appellant told the others to leave, then produced a handgun and shot Ms. Whitmore in her arm and her leg. Ms. Whitmore was rushed to the hospital, where she underwent surgery. Appellant was apprehended and charged with aggravated assault, simple assault, reckless endangerment and violations of the Uniform Firearms Act. Appellant was released on bail.

On November 4, 1989, while awaiting trial for the shooting of Ms. Whitmore, Appellant had an argument with her niece, Yolanda Linder. Appellant again produced a handgun and shot Ms. Linder in the stomach and legs. Ms. Linder was rushed to the hospital and treated for her injuries. Appellant then fled to San Diego, California, but was subsequently extradited to Philadelphia and charged with aggravated assault, simple assault, reckless endangerment, terroristic threats and violations of the Uniform Firearms Act.

On October 16, 1990, Appellant appeared before the trial court and indicated that she wished to consolidate the two cases for disposition by guilty plea pursuant to Pa.R.Crim.P. 1402. Appellant, represented by two attorneys, then entered open guilty pleas to two counts of aggravated assault in the first degree. The remaining charges were nolle prossed. Appellant was sentenced to concurrent terms of seven to twenty years imprisonment for each conviction. Thereafter, Appellant did not file a motion to withdraw the plea, a petition to modify her sentence, or a direct appeal.

Instead, Appellant filed a pro se P.C.R.A. petition for collateral relief. Counsel was appointed to represent her, and the Commonwealth moved to dismiss the petition. Following oral argument, the P.C.R.A. court denied Appellant's request for an evidentiary hearing and then denied Appellant's P.C.R.A. petition. This appeal ensued.

Appellant asserts that the P.C.R.A. court erred in denying her petition for relief under the Post Conviction Relief Act. She claims that her guilty pleas were not voluntary, because she did not understand the nature of the proceedings and because she was misinformed by counsel regarding the consequences of her pleas. Appellant also claims that counsel was ineffective for failing to adequately advise and inform her of the consequences of entering the open guilty pleas and for failing to file motions to withdraw the pleas, motions for reconsideration of sentence and a direct appeal, as requested by Appellant's husband and mother.

Initially, we note that it is not error for a P.C.R.A. court to deny a petitioner's request for an evidentiary hearing where the supporting factual allegations are either patently frivolous or without a trace of support in the record or from other evidence submitted by the petitioner. Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983). On appeal, this court will not disturb the factual findings of the P.C.R.A. court when those findings are supported by the record. Commonwealth v. Vesay, 318 Pa.Super. 320, 464 A.2d 1363 (1983).

In the instant case, the evidence on the record belies Appellant's claim regarding the voluntariness of her pleas. To be constitutionally valid, a guilty plea must have been made knowingly, voluntarily and intelligently, with an understanding of the nature of the charges, the right to a jury trial and an awareness of the consequences of the plea. Commonwealth v. Khorey, 521 Pa. 1, 4, 555 A.2d 100, 104, quoting Commonwealth v. Enty, 442 Pa. 39, 40, 271 A.2d 926, 927 (1971). Where the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established. Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). The record in the instant case clearly shows that Appellant, at the time she entered her plea, was a forty-one year-old high school graduate who had been employed as an x-ray technician for twenty years. She had no history of mental illness and denied being under the influence of drugs or alcohol. The trial court advised her of her right to a jury trial, and she was also informed of the nature of the charges and the range of possible sentences. The trial court then informed her that by electing to enter a guilty plea, she was giving up her right to a trial by jury, to present witnesses and evidence, and to testify on her own behalf, and Appellant indicated that she understood that she was waiving her right to trial and still wished to plead guilty.

Appellant cannot now claim that what she asserted during her colloquy, i.e. that her guilty pleas were entered voluntarily, was false and that she is thereby entitled P.C.R.A. relief. Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284 (1983). Indeed, in Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976), we affirmed the denial of P.C.H.A. relief without a hearing. In that case, it was alleged that the defendant was promised sentences at variance with the stated sentence in the colloquy. We stated:

A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We can not 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.

Id. at 247, 363 A.2d at 1253.

Accordingly, Appellant's claim regarding the voluntariness of her plea is meritless.

Appellant's second contention involves various allegations concerning the effectiveness of counsel. The threshold inquiry for evaluating claims of ineffective assistance is whether the issue, argument or tactic which counsel has foregone is of arguable merit. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). If the argument is of merit, the next inquiry is whether counsel's chosen course of action was...