J-S23036-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID ALLEN YINGLING 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1539 WDA 2018

Appeal from the PCRA Order Entered September 19, 2018

In the Court of Common Pleas of Indiana County Criminal Division at 

No(s): CP-32-CR-0001059-2016

BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED JUNE 21, 2019

Appellant, David Allen Yingling, appeals from the order entered 

September 19, 2018, that denied his first petition filed under the Post 

Conviction Relief Act (“PCRA”).1 We affirm on the basis of the PCRA court 

opinion.

In its opinion, the PCRA court correctly set forth the relevant facts and 

procedural history of this case. See PCRA Court Opinion, filed September 19, 

2018, at 1-4. Therefore, we have no reason to restate them at length here.

For the convenience of the reader, we briefly note that a competency 

evaluation of Appellant was completed by Abhishek Jain, M.D., who submitted 

a written report to the trial court dated July 7, 2016. According to Dr. Jain, 

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1 42 Pa.C.S. §§ 9541–9546.
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Appellant understood the nature and object of the proceedings against him, 

could participate and assist his defense, and was therefore competent to stand 

trial. On January 13, 2017, Appellant pleaded guilty to murder of the third 

degree.2 On April 3, 2017, the trial court sentenced Appellant to 171⁄2 to 35 

years of confinement. At both his plea and sentencing hearings, Appellant 

was represented by two attorneys, Donald McKee, Esquire, and 

Annmarie Everett, Esquire (hereinafter, collectively, “trial counsel”). 

Appellant did not file a direct appeal.

On March 26, 2018, Appellant filed his first, pro se, timely PCRA petition. 

On April 3, 2018, the PCRA court appointed counsel to represent Appellant 

and ordered PCRA counsel to file an amended petition within 90 days of the 

date of the order, and PCRA counsel complied on June 22, 2018. The amended 

PCRA petition alleged:

Despite [Appellant]’s mental health concerns, prior counsel did 

not further investigate [Appellant]’s mental state . . . at the time 

[Appellant] entered his plea. . . . 

[Appellant] believes and therefore avers that prior counsel should 

have attempted to bargain a plea for him based on a Guilty but 

Mentally Ill plea.

. . .

[Appellant]’s prior counsel was ineffective in that [Appellant] 

would not have entered a plea had he been aware of the proper 

sentencing range that he was going to be subjected to due to his 

prior record score.

Amended PCRA Petition, 6/22/2018, at ¶¶ 18-19, 23.

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2 18 Pa.C.S. § 2502(c).
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On August 27, 2018, the PCRA court held an evidentiary hearing.3 At 

the hearing, both Attorney McKee and Attorney Everett testified that they 

considered the possibility of a guilty-but-mentally-ill defense, but, given the 

Dr. Jain’s findings and the Commonwealth’s plea offer of third-degree murder, 

they did not believe that presenting such a defense was the best possible 

strategy for Appellant. Attorney Everett additionally testified that she 

discussed the possible range of sentences with Appellant at the time of his 

plea.

On September 19, 2018, the PCRA court entered an order denying

Appellant’s petition and an accompanying opinion. On October 19, 2018, 

Appellant filed this timely appeal.4

Appellant presents the following issues for our review:

1. Whether the [PCRA] court erred when it made a finding that 

defense counsel was effective counsel when defense counsel failed 

to inquire about [Appellant]’s mental state at the time of the plea 

hearing, making the plea involuntary and unknowing[].

2. Whether the [PCRA] court erred when it made a finding that 

defense counsel was effective counsel, even though counsel failed 

to pursue a guilty but mentally ill defense, causing the plea to be 

involuntary and unknowing.

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3 The notes of testimony for the PCRA hearing are incorrectly labelled as 

“Omnibus Pretrial Motion”.

4 On November 19, 2018, Appellant filed his statement of errors complained 

of on appeal. Later that same day, the PCRA court ordered that the opinion 

accompanying its order denying PCRA relief would serve as its opinion 

pursuant to Pa.R.A.P. 1925(a).
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3. Whether the [PCRA] court erred when it made a finding that 

defense counsel was effective counsel, even though defense 

counsel failed to advise [Appellant] about the possible sentencing 

ranges that he could face at sentencing.

Appellant’s Brief at 6 (suggested answers and unnecessary capitalization 

omitted).

“We review the denial of PCRA relief to decide whether the PCRA court’s 

factual determinations are supported by the record and are free of legal error.” 

Commonwealth v. Medina, 2019 PA Super 119, *8 (filed April 17, 2019) 

(quoting Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

All of Appellant’s claims allege ineffective assistance of trial counsel. 

Appellant’s Brief at 16-22. Appellant specifically contends that his trial counsel 

was ineffective, because counsel “did not inquire into [Appellant]’s mental 

state at the time of his guilty plea” and “failed to advance a guilty but mentally 

ill verdict or plea” or “to inform [him] of this possible legal avenue.” Id. at 

16, 18, 22. He also argues that trial counsel was ineffective for failing to 

“advise [him] of his prior record score and sentencing ranges prior to 

sentencing.” Id. at 14.5

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5

In his brief to this Court, Appellant also contends that Dr. Jain’s evaluation 

does not include his prior mental health treatment history and that his 

“hearing issues coupled with his mental illness ultimately caused his guilty 

plea to be involuntarily and unknowingly entered.” Appellant’s Brief at 17-18. 

However, Appellant makes no mention of Dr. Jain’s failure to explore his 

mental health history or his hearing issues in his amended PCRA petition, and, 

thus, these challenges are waived. Commonwealth v. Santiago, 855 A.2d 

682, 691 (Pa. 2004) (“Regardless of the reasons for [an a]ppellant’s belated 
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[C]ounsel is presumed to be effective.

To overcome this presumption, a PCRA petitioner must 

plead and prove that: (1) the underlying legal claim is of 

arguable merit; (2) counsel’s action or inaction lacked any 

objectively reasonable basis designed to effectuate his 

client’s interest; and (3) prejudice, to the effect that there 

was a reasonable probability of a different outcome if not 

for counsel’s error.

Commonwealth v. Root, 179 A.3d 511, 518 (Pa. Super. 2018) 

(citation omitted) (some formatting). “A failure to satisfy any of 

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raising of [an] issue, it is indisputably waived. We have stressed that a claim 

not raised in a PCRA petition cannot be raised for the first time on appeal.”).

Assuming Appellant’s claim that Dr. Jain should have explored his mental 

health treatment history were not waived, when asked during his guilty plea 

hearing if he had “ever received treatment for a mental disease or disability[,]” 

Appellant answered, “No.” N.T., 1/13/2017, at 4. “A person who elects to 

plead guilty is bound by the statements he makes in open court while under 

oath[.]” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 

2011); accord Commonwealth v. Wilcox, 174 A.3d 670, 674 (Pa. Super. 

2017), appeal denied, 184 A.3d 545 (Pa. 2018).

Likewise, assuming arguendo that the issue of Appellant’s hearing were not 

waived, immediately prior to his plea hearing, Appellant completed a ninepage written guilty plea colloquy giving his full name, age, education, and 

comprehension of written and spoken English and acknowledging that he 

understood the charge to which he was pleading guilty, the facts summarized 

by the Commonwealth that supported his plea, his right to trial by jury

including the jury selection process, and the presumption of innocence; he 

initialed pages 2 to 9 and signed page 9. Appellant’s hearing problems could 

not have affected his ability to complete a written colloquy, and this written 

colloquy satisfied all of the inquiries necessary to find that a plea is voluntarily 

and understandingly tendered pursuant to Pa.R.Crim.P. 590. See 

Commonwealth v. McGarry, 172 A.3d 60, 66-67 (Pa. Super. 2017), appeal 

denied, 185 A.3d 966 (Pa. 2018). Additionally, during his oral guilty plea 

colloquy in open court, Appellant never requested that a question be repeated, 

asked any participant to increase his or her volume, or otherwise demanded 

assistance with his hearing. See generally N.T., 1/13/2017. Hence, 

assuming this issue were not waived, we would still find no arguable merit to 

Appellant’s assertion that his hearing somehow rendered his plea unknowing

or involuntary.
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the three prongs of [this] test requires rejection of a claim of 

ineffective assistance[.]” Commonwealth v. Chmiel, 30 A.3d 

1111, 1128 (Pa. 2011).

Medina, 2019 PA Super 119, *15. “Allegations of ineffectiveness in 

connection with the entry of a guilty plea will serve as a basis for relief only if 

the ineffectiveness caused the defendant to enter an involuntary or unknowing 

plea.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013)

(citation omitted).

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable

Thomas M. Bianco, we conclude Appellant’s issues merit no relief. The PCRA

court opinion comprehensively discusses and properly disposes of those 

questions. See PCRA Court Opinion, filed September 19, 2018, at 7–12

(finding: (1) with regard to Appellant’s claim that trial counsel was ineffective 

for failing to investigate Appellant’s mental health at the time of the plea, 

Appellant failed to establish that the underlying claim has arguable merit, 

because the competency evaluation sufficiently addressed Appellant’s state of 

mind at the time of the crime and at the time of the plea, so a request for a 

further evaluation was not warranted; (2) with regard to Appellant’s claim that 

counsel was ineffective for failing to pursue a guilty-but-mentally-ill verdict or 

plea, Appellant failed to establish that trial counsel lacked an objectively 

reasonable basis, because both Attorneys McKee and Everett testified during 

the PCRA hearing that they considered the possibility of such a defense but, 
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given Dr. Jain’s findings and the Commonwealth’s plea offer of third-degree 

murder, did not believe that seeking a guilty-but-mentally-ill finding was the 

best strategy; and (3) with regard to Appellant’s claim that trial counsel was 

ineffective for failing to advise him of his prior record score and the applicable 

sentencing ranges prior to the entry of his plea, Appellant failed to establish 

that trial counsel lacked an objectively reasonable basis, because (a) Attorney 

Everett testified that she discussed the possible range of sentences with 

Appellant at the time of his plea, and (b) Appellant never told trial counsel 

that he wished to withdraw his plea after learning his prior record score and 

the applicable standard range of the sentencing guidelines).

Accordingly, having discerned no error of law, we affirm on the basis of 

the PCRA court’s opinion. See Medina, 2019 PA Super 119, *8. The parties 

are instructed to attach the opinion of the PCRA court in any filings referencing 

this Court’s decision.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2019
Circulated 05/30/2019 03:08 PM

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IN TH

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E COURT OF COMMON PLEAS OF INDIANA COUNTY, PENNSYLVANIA 

·COMMONWEALTH OF 

PENNSYLVANIA, 

CRIMINAL DIVISION 

vs. 

NO. l 059 CRIM 2016 

DAVID ALLEN YINGLING, 

Petitioner. 

OPINION AND ORDER OF COURT 

Bianco, J. 

This matter comes before the Court on the Amended Petition Under PostConviction Collateral Relief Act (hereinafter the "Amended PCRA Petition") filed 

on behalf of Petitioner, David Allen Yingling. For the reasons stated herein, the 

Amended PCRA Petition is DENIED. 

FACTS 

Petitioner was charged with a violation of 1 8 Pa.CS.A. §2501 (a), Criminal 

Homicide. At all times relevant to the allegations contained in the PCRA 

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Petition, Petitioner was represented by Donald L. McKee, Esquire, and AnnMarie 

Everett, Esquire.' 

On January 13, 2017, Petitioner entered a plea of guilty to Count 2, as 

amended, Murder of the Third Degree, 1 8 Pa.CS.A. §2 502(c), a felony of the 

first degree. The Commonwealth of Pennsylvania moved for the Nol Pros of 

Count 1, Criminal Homicide. At the time of the entry of the guilty plea, the 

Court engaged Petitioner in an oral guilty plea colloquy. During the oral 

colloquy, the Court reviewed the written colloquy entitled "Guilty Plea, 

Explanation of Defendant's Rights," previously completed and executed by 

Petitioner. This form contains nine (9) pages. Petitioner's initials appear on 

pages 2 through 9, and Petitioner's signature appears on page 9. The 

signatures of Attorney McKee and Attorney Everett also appear on page 9. The 

written colloquy is dated January 11, 201 7. At the PCRA hearing, the written 

colloquy was introduced as Commonwealth's Exhibit 1, and the transcript of the 

Plea Hearing was introduced as Defendant's Exhibit 1. In response to the 

questions presented in the colloquies, both written and oral, Petitioner 

I A review of the transcript from the Magisterial District Court reveals that Petitioner was represented by Donald L. 

McKee, Esquire, Ann Marie Everett, Esq., and Aaron F. Ludwig, Esquire, during the early stages of this matter. 

2 
responded with appropriate answers, and in a manner consistent with a 

knowing and voluntary plea. 

Petitioner was sentenced by the Court on April 3, 201 7. Petitioner was 

ordered to pay the cost of prosecution of $1,470.50, pay a fine in the amount 

of $500, and undergo incarceration at a State Correctional Institution for a 

period of not less than 1 7 Yi years nor more than 35 years. Petitioner did not 

file a post-sentencing motion, nor did Petitioner file an appeal to the Superior 

Court of Pennsylvania. 

On March 26, 201 8, Petitioner filed a Motion for Post Conviction Relief 

with the Clerk of Court of Indiana County, Pennsylvania. By Order of Court 

dated April 2, 2018, the Court appointed Jennifer Westrick, Esquire, to 

represent Petitioner. Attorney Westrick filed the Amended Petition Under PostConviction Collateral Relief Act at issue on June 22, 2018. In the Amended 

PCRA Petition, Petitioner appears to raise two issues: "Ineffective Assistance of 

Counsel - Plea," and "Ineffective Assistance of Counsel - Prior Record Score." 

This Court conducted a hearing to address the Amended PCRA Petition on 

August 27, 2018. During the course of the hearing, the Court heard testimony 

3 
from Petitioner, Attorney Donald McKee, and Attorney AnnMarie Everett. This 

matter is ripe for decision. 

APPLICABLE LAW 

The relevant portions of the Post Conviction Relief Act are set forth 

below; Petitioner must prove each by a preponderance of the evidence: 

(1) That the petitioner has been convicted of a crime 

under the laws of this Commonwealth and is at the 

time relief is granted: 

(i) currently serving a sentence of imprisonment, 

probation or parole for the crime; 

(2) That the conviction or sentence resulted from one 

or more of the following: 

(ii) Ineffective assistance of counsel which, in the 

circumstances of the particular case, so 

undermined the truth-determining process that 

no reliable adjudication of guilt or innocence 

could have taken place. 

(3) That the allegation of error has not been previously 

litigated or waived. 

(4) That the failure to litigate the issue prior to or 

during trial, during unitary review or on direct appeal 

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could not have been the result of any rational, strategic 

or tactical decision by counsel. 

42 Pa.CS.A. § 9543. 

" 'Counsel is presumed effective, and [Petitioner] bears the burden of 

proving otherwise.'" Commonwealth v. Fears, 86 A.3d 795, 803-804 (Pa. 

2014), quoting Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 

2008)(additional citation omitted). 'To prevail on an ineffectiveness claim, 

[Petitioner] must establish: '(1) the underlying claim has arguable merit; (2) no 

reasonable basis existed for counsel's actions or failure to act; and (3) 

[Petitioner] suffered prejudice as a result of counsel's error such that there is a 

reasonable probability that the result of the proceeding would have been 

different absent such error.'" Id.. quoting Commonwealth v. Lesko, 1 5 A.3d 

345, 3 73 (Pa. 201 l)(additional citation omitted). "Failure to prove any prong of 

this test will defeat an ineffectiveness claim." ld.,_, citing Commonwealth v. 

Basemore, 560 Pa. 258, 744 A.2d 171, 738 (2000). 

In this case, Petitioner alleges that his counsel was ineffective regarding 

the entrance of his plea. " 'Allegations of ineffectiveness in connection with the 

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entry of a guilty plea will serve as a basis for relief only if the ineffectiveness 

caused the defendant to enter an involuntary or unknowing plea. Where the 

defendant enters his plea on the advice of counsel, the voluntariness of the plea 

depends on whether counsel's advice was within the range of competence 

demanded of attorneys in criminal cases.'" Commonwealth v. Barndt, 74 A.3d 

185, 192 (Pa.Super. 2013), quoting Commonwealth v. Wah, 42 A.3d 335, 338- 

39 (Pa.Super. 201 2). 

DISCUSSION 

To begin, the Court recognizes that Petitioner is eligible for relief under 

42 Pa.CS.A. §9543(a) in that Petitioner was convicted of a crime and is 

currently serving a sentence of imprisonment for the crime. 

As stated above, the Amended PCRA Petition sets forth two issues 

separately identified as "Ineffective Assistance of Counsel - Plea" and 

"Ineffective Assistance of Counsel - Prior Record Score." However, the Court 

believes that the Amended PCRA Petition actually contains four separate claims 

of ineffective assistance of counsel. The Court believes it is important to 

specifically identify all issues raised for the Court's consideration. 

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First, Petitioner asserts that counsel was ineffective for failing to 

investigate Petitioner's mental state at the time of the crime. Second, Petitioner 

asserts that counsel was ineffective for failing to investigate Petitioner's mental 

health state at the time of the plea. Third, Petitioner asserts that counsel was 

ineffective for failing to pursue a guilty but mentally ill defense or plea. Finally, 

Petitioner alleges that counsel was ineffective for failing to advise Petitioner of 

his prior record score and the appropriate sentencing guideline range prior to 

the entry of his plea. The Court will discuss the merits of each of the 

Petitioner's claims individually. 

With regard to Petitioner's claim that counsel was ineffective in failing to 

investigate Petitioner's mental health at the time of the crime, Petitioner has 

failed to establish that the underlying claim has arguable merit. Prior to the 

commencement of any critical stage of the criminal proceedings, a Competency 

Evaluation of Petitioner was completed by Abhishek Jain, MD, of the 

Pennsylvania Department of Human Services. Dr. Jain interviewed Petitioner on 

June 9, 2016, and submitted a written report on July 7, 2016. The written 

report was admitted into evidence at the PCRA hearing as Commonwealth's 

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Exhibit 2. In the report, Dr. Jain states that "Mr. Yingling provided a detailed, 

coherent, rational, and non-psychotic account of the alleged events leading to 

his charge." Evaluation at 4. Dr. Jain quotes Petitioner as having stated "I had 

the mind to cut him up and get rid of him so I wouldn't get caught, but I 

couldn't." kL. 

Consequently, the Court finds that the Competency Evaluation sufficiently 

addresses Petitioner's state of mind at the time of the crime, and a request for 

a further evaluation was not warranted. Therefore, this ineffective assistance 

claim fails because the underlying claim lacks merit. In any event, given the 

findings and conclusions of Dr. Jain, a reasonable basis existed for Attorney 

McKee and Attorney Everett to rely on that evaluation and not request that a 

separate evaluation be conducted as to Petitioner's mental health at the time of 

the crime. Therefore, even if the underlying claim had merit, Petitioner's 

argument fails because counsel had a reasonable basis for the decision not to 

request an additional evaluation. 

Next, the Court addresses Petitioner's claim that counsel was ineffective 

for failing to investigate Petitioner's mental health or competency at the time of 

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the plea. Once again, the Court looks to Competency Evaluation conducted by 

Dr. Jain. In the written report, Dr. Jain concludes as follows: "It is my opinion, 

with a reasonable degree of medical certainty, that although Mr. Yingling has a 

likely diagnosis of Unspecified Schizophrenia Spectrum and Other Psychotic 

Disorder stemming from a history of auditory hallucinations, these symptoms 

are not likely to interfere with his present ability to understand the nature and 

object of the proceedings against him, or to participate and assist in his 

defense. Thus, it is my opinion that he is presently competent to stand trial." 

Evaluation at l l. Given this timely and definite opinion, the Court finds that 

Petitioner's underlying claim lacks merit. At the very least, counsel had a 

reasonable basis for not requesting another evaluation or questioning 

Petitioner's competency to understand and enter the plea. 

Next, the Court addresses Petitioner's claim that counsel was ineffective 

for failing to pursue a Guilty but Mentally Ill verdict or plea. Section 314 of the 

Pennsylvania Crimes Code provides in pertinent part as follows: 

A person who timely offers a defense of insanity in accordance with the 

Rules of Criminal Procedure may be found "guilty but mentally ill" at trial 

if the trier of facts finds, beyond a reasonable doubt, that the person is 

9 
guilty of an offense, was mentally ill at the time of the commission of the 

offense and was not legally insane at the time of the commission of the 

offense. 

1 8 Pa.CS.A. § 314(a). Furthermore, 1 8 Pa.CS.A. § 314(c) defines mentally ill as 

"[o]ne who as a result of mental disease or defect, lacks substantial capacity 

either to appreciate the wrongfulness of his conduct or to conform his conduct 

to the requirements of the law." 

During the PCRA hearing, Attorney McKee and Attorney Everett testified 

that they considered the possibility of such a defense, however, given the 

findings and conclusions of Dr. Jain, as set forth in the written Competency 

Evaluation, and the plea offer of Third Degree Murder, they did not believe that 

seeking a guilty but mentally ill finding was the best strategy. In regards to 

trial strategy, "a claim of ineffectiveness will not succeed by comparing, in 

hindsight, the trial strategy trial counsel actually employed with the alternatives 

foregone." Commonwealth v. Miller, 987 A.2d 638, 653 (Pa. 2009), citing 

Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 277 (2008). 

Additionally, in examining effectiveness of trial strategy, " 'the balance tips in 

favor of a finding of effective assistance as soon as it is determined that trial 

10 
counsel's decision had any reasonable basis.' "liL..._ quoting Commonwealth v. 

Cooper, 515 Pa. l 53, 527 A.2d 973, 975 (l 987)(additional quotation omitted). 

Once again, the Court finds that Petitioner's underlying claim has no merit, and 

at the very least, counsel had a reasonable basis for not pursuing a guilty but 

mentally ill finding. 

Finally, the Court addresses Petitioner's claim that counsel was ineffective 

for failing to advise Petitioner of his Prior Record Score and the applicable 

sentencing ranges prior to the entry of the guilty plea. This argument is 

without merit. 

During the PCRA hearing, Attorney Everett testified that although she was 

unaware of Petitioner's Prior Record Score at the time of the plea, she did 

discuss with Petitioner the possible ranges of sentences. Further, Attorney 

Everett testified after she reviewed the Pre-Sentence Investigation report, she 

discussed with Petitioner his Prior Record Score and the applicable sentencing 

ranges given the Offense Gravity Score of the current offense. Subsequent to 

that conversation, Petitioner never informed counsel that he wished to withdraw 

his plea. The Court notes that Petitioner never indicated to the Court that he 

l l 
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wished to withdraw his plea. The Court also notes that the plea colloquies do 

not reference a Prior Record Score, a sentencing range, or a specific sentence 

bargain or recommendation. Petitioner's claim must fail because there was a 

reasonable basis for the attorneys' actions in continuing with the plea because 

Petitioner did not state that he wished to withdraw his plea after becoming 

aware of his Prior Record Score and applicable standard range of the sentencing 

guidelines. 

WHEREFORE, the Court enters the following Order. 

1 2 
IN THE COURT OF COMMON PLEAS OF INDIANA COUNTY, 

PENNSYLVANIA 

COMMONWEALTH OF 

PENNSYLVANIA, 

CRIMINAL DIVISION 

vs. 

NO. 1059 CRIM 2016 

DAVID ALLEN YINGLING, 

Petitioner. 

ORDER OF COURT 

AND NOW this 19th day of September, 2018, this matter having 

come before the Court on the Amended Petition Under PostConviction Collateral Relief Act filed on behalf of Petitioner, and the 

Court having held a hearing thereon, it is hereby ORDERED, 

ADJUDGED, and DECREED that said Amended Petition Under PostConviction Collateral Relief Act is DENIED, consistent with the attached 

Opinion. 

BY THE COURT: 

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Thomas M. Bianco, Judge 

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