Com. v. Harper, A.
60 MDA 2016
| Pa. Super. Ct. | Oct 6, 2016Background
- Asia Harper stabbed her boyfriend seven times during an argument on Nov. 5, 2012; charged with attempted homicide, aggravated assault, terroristic threats, and REAP; attempted homicide later withdrawn.
- On Jan. 9, 2014 Harper entered a negotiated guilty plea to aggravated assault, terroristic threats, and REAP for an agreed sentence of 5–15 years; written and on-the-record plea colloquies confirmed plea was knowing and voluntary.
- Harper did not file post-sentence motions or a direct appeal. On Dec. 8, 2014 she filed a pro se PCRA petition alleging plea counsel coerced the plea and failed to file a requested direct appeal.
- Counsel was appointed, an evidentiary PCRA hearing was held July 20, 2015 focusing on whether Harper asked counsel to file an appeal; plea counsel testified Harper never requested an appeal and that he would have filed one if asked.
- Harper testified she mailed counsel a letter on Jan. 13, 2014 requesting an appeal and contacted the Office of Disciplinary Counsel; she produced no contemporaneous copy and the Disciplinary Office letter to counsel arrived after the appeal period expired.
- Trial court issued Pa.R.Crim.P. 907 notice, then denied PCRA relief (Dec. 7, 2015); Superior Court affirmed and granted appellate counsel’s Turner/Finley motion to withdraw as the appeal was frivolous.
Issues
| Issue | Harper's Argument | Plea Counsel / Commonwealth's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to file a direct appeal | Harper says she asked counsel (mailed letter Jan. 13, 2014; mother called) and counsel ignored request | Counsel testified Harper never asked him; only learned via ODC letter after appeal period; would have filed if asked | Held for Commonwealth: Harper failed to prove a timely request; credibility of counsel accepted |
| Whether the PCRA court erred by dismissing the PCRA petition | Harper contends court should have credited her testimony and allowed withdrawal/appeal | Court relied on record, credibility findings, and lack of proof of timely request | Held for Commonwealth: no error; factual findings supported by record |
| Whether the guilty plea was unlawfully induced / involuntary due to coercion | Harper claims counsel pressured her by warning of 20–40 year exposure and failed to investigate abuse or assert innocence | Counsel negotiated plea withdrawing attempted homicide; plea colloquy and record show Harper understood terms and was satisfied with counsel | Held for Commonwealth: plea was knowing, intelligent, voluntary; counsel’s advice was within competent range |
| Whether appellate counsel may withdraw under Turner/Finley | Harper implied appellate issues meritorious | Appellate counsel filed a Turner/Finley no-merit brief, reviewed record, notified Harper of rights | Held: withdrawal granted; appeal found frivolous |
Key Cases Cited
- Commonwealth v. Karanicolas, 836 A.2d 940 (Pa. Super. 2003) (Turner/Finley no-merit briefing requirements)
- Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (counsel must notify client and explain withdrawal)
- Commonwealth v. Moser, 921 A.2d 526 (Pa. Super. 2007) (ineffective assistance claims tied to voluntariness of plea)
- Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super. 2007) (three-prong test for ineffectiveness)
- Commonwealth v. Pollard, 832 A.2d 517 (Pa. Super. 2003) (plea statements under oath bind defendant)
- Commonwealth v. Fluharty, 632 A.2d 312 (Pa. Super. 1993) (totality of circumstances for plea validity)
- Commonwealth v. Harmon, 738 A.2d 1023 (Pa. Super. 1999) (defendant must prove request for appeal to show counsel ineffectiveness)
- Commonwealth v. Knighten, 742 A.2d 679 (Pa. Super. 1999) (appellate court defers to PCRA court credibility findings)
- Commonwealth v. Ford, 947 A.2d 1251 (Pa. Super. 2008) (standard of review for PCRA denials)