J-S43023-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

CARL EDWARD BELL

Appellant No. 29 WDA 2020

Appeal from the PCRA Order Entered December 10, 2019

In the Court of Common Pleas of Erie County

Criminal Division at No.: CP-25-CR-0001854-2016

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 19, 2020

Appellant Carl Edward Bell appeals from the December 10, 2019 order

of the Court of Common Pleas of Erie County (“PCRA court”), which dismissed, without a hearing, his petition under the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

The facts and procedural history of this case are undisputed. As

summarized by a prior panel of this Court on direct appeal:

On January 1, 2016, while at an apartment in Lin Lee Motel in

Millcreek Township with his girlfriend, Appellant consumed alcohol

and cocaine. An argument erupted between Appellant and Charles

Lesser, and Appellant punched, kicked, and stomped on Lesser’s

head and body. When his friend, Danny Green, attempted to stop

the fight, Appellant punched, kicked, or stomped on Danny

Green’s head and body. Appellant then went to a separate

apartment and stomped and kicked his own mother, Andrea Zack,

in the face and neck, poured boiling water on her arms and

stomach, and threatened to kill her. Mr. Lesser never recovered

consciousness and died from his injuries on February 12, 2016.
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Mr. Green is permanently physically disabled as a result of the

attack. Ms. Zack suffered severe injuries and permanent scarring.

The Commonwealth charged Appellant with multiple counts of

Assault and Reckless Endangerment, one count of Terroristic

Threats, and one count of Homicide. On January 20, 2017,

Appellant pled guilty to Third-Degree Murder and two counts of

Aggravated Assault. In exchange, the Commonwealth withdrew

the remaining charges. The court ordered a pre-sentence

investigation and scheduled sentencing for Monday, March 6,

2017. The Commonwealth submitted a Sentencing Memorandum

to the court and gave a copy to Appellant’s counsel on the morning

of Friday, March 3, 2017.[FN1]

[FN1: The Commonwealth’s Sentencing Memorandum

“set forth the Commonwealth’s recommendation of an

aggregate sentence of 40 to 80 years of incarceration.

It summarized the factual background of the case,

Appellant’s prior record[,] and the Commonwealth’s

argument in favor of the sentence it recommended.

Appended to the memorandum were photographs of

the victims and the apartment where Appellant

assaulted the male victims.” Trial Ct. Op., dated

6/6/17, at 8 n.2.]

At the sentencing hearing on Monday, March 6, 2017, Appellant’s

counsel objected to the court’s considering the Commonwealth’s

Sentencing Memorandum, arguing that the photographs of the

victims and the crime scene attached to the Memorandum were

inflammatory. He also complained that he did not have a chance

to respond to the Memorandum, and argued that the

Commonwealth should be precluded from making oral argument

because it had already submitted its statement. N.T. Sentencing,

3/6/17, at 8-10. The court denied the objection.

The court then heard statements from Appellant, his attorney, and

Ms. Zack on Appellant’s behalf. The prosecutor made a short

statement, recognizing that the court had the Commonwealth’s

Sentencing Memorandum. Over defense counsel’s objection, the

decedent’s sisters and Mr. Green made victim impact statements.

The court then acknowledged counsels’ arguments, the in-court

statements, the pre-sentence investigation report, and the

sentencing guidelines, and imposed an aggregate sentence of 30

to 60 years’ incarceration, which included a term within the
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sentencing guidelines of 19 to 38 years on the Third-Degree

Murder conviction.[FN2]

[FN2: The court imposed consecutive terms of

incarceration of 19 to 38 years for the Third-Degree

Murder conviction, 6 to 12 years for the assault on Mr.

Green, and 5 to 10 years for the assault on Ms. Zack.

The court also ordered restitution.]

Commonwealth v. Bell, No. 538 WDA 2017, unpublished memorandum, at

1-3 (Pa. Super. filed April 24, 2018). On appeal, Appellant challenged the

discretionary aspects of his sentence. Concluding that Appellant failed to raise

substantial questions, we affirmed the judgment of sentence. Appellant did

not file a petition for allowance of appeal.

On April 22, 2019, Appellant pro se filed the instant PCRA petition,

asserting claims for ineffective assistance of counsel. The PCRA court

appointed counsel, who filed an amended petition alleging that trial counsel

was ineffective. In particular, Appellant challenged “His guilty pleas based

upon the allegation that counsel provided erroneous legal advice upon which

he relied thereby, rending his pleas as unknowing and involuntary.” Amended

Petition, 7/2/19, at 1. Specifically, Appellant alleged that trial counsel advised

him that, in exchange for pleading guilty, Appellant “would receive a lesser

sentence,” which he ultimately did not receive. Id. On September 23, 2019,

the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the

petition without a hearing. On December 10, 2019, the PCRA court dismissed

Appellant’s petition. Appellant appealed. The PCRA court directed Appellant

to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
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Appellant complied. In response, the PCRA court issued a Pa.R.A.P. 1925(a)

opinion, whereby it incorporated and adopted its Rule 907 notice.

On appeal,1 Appellant presents a single issue for our review.

[I.] Whether Appellant’s guilty pleas were invalidated given the

ineffective assistance of counsel due to counsel’s conduct that

induced the entry of guilty pleas and misrepresentations as to the

sentencing exposure Appellant would be subjected to in exchange

for the guilty pleas?

Appellant’s Brief at 2 (unnecessary capitalizations omitted).

Appellant claims that the PCRA court erred in dismissing his petition

when his guilty pleas were unknowing, involuntary and unintelligent because

of counsel’s ineffectiveness. In particular, he argues that trial counsel “made

an express representation to him that he would receive a lesser sentence and

that [he] relied upon that material representation in entering the guilty

pleas.”2 Id. at 4. Despite trial counsel’s representations, his sentence of 30

to 60 years’ imprisonment was greater than what trial counsel had promised.

Thus, at the core, Appellant claims that he was induced by trial counsel’s

misrepresentations on sentencing to plead guilty.

To be entitled to relief on ineffectiveness grounds, Appellant was

required to plead and prove that counsel’s ineffectiveness caused an

____________________________________________

1 “In reviewing the denial of PCRA relief, we examine whether the PCRA court’s

determination ‘is supported by the record and free of legal error.’”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting

Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).

2 Appellant does not specify the nature of the alleged “lesser sentence” or

what that sentence entailed.
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involuntary or unknowing plea. See Commonwealth v. Fowler, 893 A.2d

758, 765 (Pa. Super. 2006) (affirming denial of PCRA relief where appellant

pled that his guilty plea was involuntary and unknowing because it was

improperly induced by counsel’s promise and assurance that he would not

receive the statutory maximum); see also 42 Pa.C.S.A. § 9543(a)(2)(ii).

Indeed, “[i]t is well-established that counsel 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.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citation omitted).

“To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and

prove by a preponderance of the evidence that (1) the underlying legal claim

has arguable merit; (2) counsel had no reasonable basis for acting or failing

to act; and (3) the petitioner suffered resulting prejudice.” Commonwealth

v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). “A

petitioner must prove all three factors of the “Pierce[3] test,” or the claim

fails.” Id. Put differently, “[t]he burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).

Instantly, Appellant is not entitled to relief. Despite his argument that

his ineffectiveness claim has merit,4 Appellant’s brief is bereft of any

discussion or argument with respect to the reasonable basis and prejudice

____________________________________________

3 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

4 We note that Appellant’s brief does not identify the Pierce prongs necessary

to establish an ineffectiveness claim.
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prongs. As we recently emphasized, “[a] petitioner must prove all three

factors of the Pierce test, or the [ineffectiveness] claim fails. In addition, on

appeal, a petitioner must adequately discuss all three factors of the

Pierce test, or the appellate court will reject the claim.” Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d at 804)). Thus,

given Appellant’s failure to mention, much less discuss, the reasonable basis

and prejudice prongs on appeal (or below), we must reject his ineffectiveness

claim.Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/2020