J. S55040/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

EDWARD WILLIAM PETTERSEN, JR., : No. 710 EDA 2018

:

 Appellant :

Appeal from the PCRA Order, February 7, 2018,

in the Court of Common Pleas of Pike County

Criminal Division at No. CP-52-CR-0000425-2009

BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 11, 2019

Edward William Pettersen, Jr., appeals from the February 7, 2018 

order entered by the Court of Common Pleas of Pike County denying his 

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The PCRA court provided the following synopsis of the pertinent 

procedural history:

Appellant was convicted of three (3) counts of 

Aggravated Assault (F-1), Burglary (F-1), Criminal 

Trespass (F-2), three (3) counts of Simple Assault 

(M-2), and Reckless[ly] Endangering Another 

Person[

1] following a jury trial held in May of 2011. 

Appellant was subsequently sentenced on July 7, 

2011. Appellant was sentenced to an aggregate 

period of incarceration of not less than 211⁄2 years 

 

1 18 Pa.C.S.A. §§ 2702(a), 3502(a), 3503(a), 2701(a), and 2705, 

respectively. 
J. S55040/18

- 2 -

nor more than 70 years in a State Correctional 

Facility.

After [a]ppellant’s appeal of the July 7, 2011 

Sentencing Order to the Pennsylvania Superior 

Court, said Court issued an Order dated July 16, 

2012 affirming [the trial court’s judgment of 

sentence.[

2] Pertinent to the procedural history of 

this matter, the Superior Court issued another Order 

dated June 27, 2016 remanding this matter to the 

[PCRA] court on [a]ppellant’s claims for 

post-conviction relief and directed that the [PCRA] 

court appoint counsel for [a]ppellant and to hold a 

new hearing on his post-conviction claims.[3]

[The PCRA court] appointed James P. Baron, Esquire 

to represent [a]ppellant with regard to his 

post-conviction claims. Attorney Baron filed an 

Amended Petition for Post-Conviction Relief on 

June 7, 2017. [The PCRA court] held a PCRA 

evidentiary hearing on October 6, 2017. [The PCRA 

court] denied [a]ppellant’s PCRA Petition by Order 

dated February 7, 2018, and this appeal followed.

On March 8, 2018, [the PCRA court] ordered that 

[appellant] file a Concise Statement of Matters 

Complained of on Appeal [pursuant to 

Pa.R.A.P. 1925(b)] within twenty-one (21) days from 

the date of the Order. Appellant filed a Concise 

Statement of Matters Complained of on Appeal on 

March 29, 2018.

PCRA court opinion, 5/2/18 at 1-2. The PCRA court filed an opinion pursuant

to Pa.R.A.P. 1925(a) on May 2, 2018.

Appellant raises the following issues for our review:

 

2 Commonwealth v. Pettersen, 49 A.3d 903 (Pa.Super. 2012), appeal 

denied, 63 A.3d 776 (Pa. 2013).

3 Commonwealth v. Pettersen, 153 A.3d 1119 (Pa.Super. 2016) 

(unpublished memorandum).
J. S55040/18

- 3 -

1. Whether the PCRA court erred in failing to find 

trial counsel ineffective for failing to file 

pre-trial motions regarding the search of 

[appellant’s] vehicle and cellular phone?

2. Whether the PCRA court erred in failing to find 

trial counsel ineffective for failing to convey 

and discuss plea offers to [appellant]?

3. Whether the PCRA court erred in failing to find 

trial counsel ineffective for failing to discuss or 

seek the consent of [appellant] before filing 

trial continuances[?]

Appellant’s brief at 14 (full capitalization omitted).

We begin by noting the following standard of review, 

guiding our consideration of this appeal. “On appeal 

from the denial of PCRA relief, our standard of 

review calls for us to determine whether the ruling of 

the PCRA court is supported by the record and free 

of legal error.” Commonwealth v. Calhoun, 52 

A.3d 281, 284 (Pa.Super. 2012) (citation omitted).

“The PCRA court’s findings will not be disturbed 

unless there is no support for the findings in the 

certified record.” Commonwealth v. Garcia, 23 

A.3d 1059, 1061 (Pa.Super. 2011) (internal 

quotation marks and citation omitted), appeal 

denied, [] 38 A.3d 823 ([Pa.] 2012). “The PCRA 

court's factual determinations are entitled to 

deference, but its legal determinations are subject to 

our plenary review.” Commonwealth v. Johnson, 

[] 966 A.2d 523, 532 ([Pa.] 2009) (internal 

quotation marks and citations omitted).

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012), appeal 

denied, 72 A.3d 602 (Pa. 2013).

In all three issues raised on appeal, appellant alleges separate 

allegations of ineffective assistance on the part of his trial counsel, 

Thomas Mincer, Esq.
J. S55040/18

- 4 -

The governing legal standard of review of ineffective 

assistance of counsel claims is well-settled:

[C]ounsel is presumed effective, and to 

rebut that presumption, the PCRA 

petitioner must demonstrate that 

counsel's performance was deficient and 

that such deficiency prejudiced him. 

Strickland v. Washington, 466 U.S. 

668, [] (1984). This Court has described 

the Strickland standard as tripartite by 

dividing the performance element into 

two distinct components. 

Commonwealth v. Pierce, [] 527 A.2d 

973, 975 ([Pa.] 1987). Accordingly, to 

prove counsel ineffective, the petitioner 

must demonstrate that (1) the 

underlying legal issue has arguable 

merit; (2) counsel's actions lacked an 

objective reasonable basis; and (3) the 

petitioner was prejudiced by counsel's 

act or omission. Id. A claim of 

ineffectiveness will be denied if the 

petitioner's evidence fails to satisfy any 

one of these prongs.

Commonwealth v. Busanet, [] 54 A.3d 34 [35], 

45 ([Pa.] 2012) (citations formatted). Furthermore, 

“[i]n accord with these well-established criteria for 

review, [an appellant] must set forth and individually 

discuss substantively each prong of the Pierce test.” 

Commonwealth v. Fitzgerald, 979 A.2d 908, 910 

(Pa.Super. 2009).

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa.Super. 2016), quoting 

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015), 

order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

In his first issue on appeal, appellant avers that Attorney Mincer was 

ineffective for failing to file a pretrial omnibus suppression motion to 
J. S55040/18

- 5 -

suppress a New Jersey speeding ticket that appellant contends was 

recovered from his vehicle, which police allegedly searched without a search 

warrant and the contents of appellant’s cell phone, which appellant argues 

were obtained without a search warrant. (Appellant’s brief at 23.) Appellant 

further alleges that the Commonwealth then used the evidence improperly 

seized to establish a timeline at trial of appellant’s whereabouts at the 

approximate time of his crimes. (Id.)

Appellant provides very little discussion as to the arguable merit of his 

claim; rather, appellant baldly asserts that the “evidence obtained from 

[appellant’s] vehicle and cellular phone was obtained without first obtaining 

a search warrant, in violation of [appellant’s] Constitutional guarantees as 

set forth in the Pennsylvania Constitution.” (Id. at 24-25.) Appellant 

provides no facts as to the nature of the search of appellant’s vehicle and no 

argument as to whether any exceptions to the warrant requirement did or 

did not apply. Moreover, the PCRA court noted that Attorney Mincer 

“specifically testified that he discussed the possibility of pre-trial motions 

with [a]ppellant and that [a]ppellant did not wish to file any.” (PCRA court 

opinion, 5/2/18 at 4.) Throughout its Rule 1925(a) opinion, the PCRA court 

notes multiple times that it found Attorney Mincer’s testimony to be credible. 

(See id. at 6-7.) 

Accordingly, we find that the PCRA court’s findings are supported by 

the record. Therefore, appellant’s first issue lacks arguable merit.
J. S55040/18

- 6 -

In his second issue on appeal, appellant contends that Attorney Mincer 

rendered ineffective assistance because he failed to convey and discuss plea 

offers with appellant. (Appellant’s brief at 28-29.) In the context of plea 

offers, in order to be entitled to relief for ineffective assistance of counsel, a 

petitioner must establish that “(1) an offer for a plea was made; (2) trial 

counsel failed to inform him of such offer; (3) trial counsel had no 

reasonable basis for failing to inform him of the plea offer; and (4) he was 

prejudiced thereby.” Commonwealth v. Chazin, 873 A.2d 732, 735 

(Pa.Super. 2005), appeal denied, 887 A.2d 1239 (Pa. 2005), quoting 

Commonwealth v. Copeland, 554 A.2d 54, 61 (Pa.Super. 1988), appeal 

denied, 565 A.2d 1165 (Pa. 1989).

Here, the PCRA court noted that Attorney Mincer testified as follows:

I did discuss with [appellant’s] parents and 

[appellant] — [appellant] specifically whether he 

would accept any type of plea. I discussed potential 

pleas that I thought we could try to get through. 

However, the [Commonwealth] would not discuss a 

specific plea with me unless [appellant] would agree 

that he would take a plea. [Appellant] told me all 

the way through the process that he would not take 

a plea.

PCRA court opinion, 5/2/18 at 5, quoting notes of testimony, 10/6/17 at 

13-14. The PCRA court further noted that Attorney Mincer had encouraged 

appellant to authorize plea negotiations with the Commonwealth and that 

appellant elected not to authorize such negotiations. (PCRA court opinion, 

5/2/18 at 6.) 
J. S55040/18

- 7 -

The PCRA court also specifically found Attorney Mincer’s testimony to 

be credible. (Id.) The record before us contains ample basis for such a 

determination. Accordingly, we find that the PCRA court’s findings are 

supported by the record and are free of legal error. Therefore, appellant’s 

second issue is without merit.

In his third and final issue on appeal, appellant contends that the PCRA 

court erred when it did not find Attorney Mincer to be ineffective for failing to 

discuss or seek the consent of appellant before filing trial continuances. 

(Appellant’s brief at 29-32.) Appellant further argues that these 

continuances violated his right to a speedy trial. (Id. at 30.) 

As noted above, in order to obtain relief under the PCRA for ineffective 

assistance of counsel, a petitioner must plead and prove that counsel lacked 

a reasonable basis for his or her action or inaction.

“Relating to the reasonable basis prong, [g]enerally, 

where matters of strategy and tactics are concerned, 

counsel's assistance is deemed constitutionally 

effective if he chose a particular course that had 

some reasonable basis designed to effectuate his 

client's interests.” Commonwealth v. Koehler, [], 

36 A.3d 121, 132 ([Pa.] 2012) (quotations and 

citation omitted). “Courts should not deem counsel’s 

strategy or tactic unreasonable unless it can be 

concluded that an alternative not chosen offered a 

potential for success substantially greater than the 

course actually pursued.” Id. (quotations and 

citation omitted). 

Commonwealth v. Durrett King, A.3d , 2018 WL 4102591 at *2 

(Pa.Super. 2018).
J. S55040/18

- 8 -

Here, the PCRA court determined that Attorney Mincer had a 

reasonable basis for filing continuances in this case, summarizing 

Attorney Mincer’s testimony as follows:

[Attorney Mincer] testified that some of the first 

continuances he requested would have been very 

early in the case, and neither the Commonwealth nor 

[appellant] would have been ready to proceed to 

trial. [(Notes of testimony, 10/6/17 at 26.)] 

Furthermore, [Attorney Mincer] was waiting to 

proceed to trial upon receipt of DNA results as he 

was hoping for the results to show third-party DNA 

. . . which would exonerate [a]ppellant. [(Id. at 

17.)] Finally, [Attorney Mincer] testified that he 

requested at least one trial continuance due to his 

own illness, which was confirmed by the record 

showing a trial continuance was submitted from the 

March 2011 trial term to the May 2011 trial term. 

[(Id.)]

PCRA court opinion, 5/2/18 at 7.

Upon our review of the record, we find that there is ample evidence to 

provide a basis for the PCRA court’s determination. Accordingly, the PCRA 

court’s determinations are supported by the record and are free from legal 

error. Therefore, because appellant failed to demonstrate that 

Attorney Mincer’s decisions to request continuances did not have a 

reasonable basis, his third issue must fail.

Order affirmed.
J. S55040/18

- 9 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/19