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[U] Commonwealth v. Russell

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GEORGE EARL RUSSELL, JR., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of June 11, 2013 In the Court of Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000002-2010

BEFORE: MUNDY, OLSON AND STABILE, JJ.

MEMORANDUM

OLSON, J.

Appellant, George Earl Russell, Jr., appeals from the order entered on June 11, 2013 denying his petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The trial court accurately outlined the factual background of this case as follows:

On [October 24, 2009], Appellant, while under the influence of alcohol, drove a car which collided with another vehicle on Windy Hill Road in Perry County. He immediately fled the scene and was followed to Orchard Hills Mobile Home Park where witnesses were able to confront Appellant and contact police.

PCRA Court Opinion, 8/29/13, at 1.

The procedural history of this case is as follows. On May 28, 2010, a jury convicted Appellant of driving under the influence- incapable of safe driving, [1] driving under the influence- highest rate of alcohol, [2] driving under suspension- DUI related, [3] and several additional traffic offenses. He was sentenced to an aggregate term of 15 to 63 months' imprisonment. The trial court granted Appellant's post-sentence motion to indicate that he was eligible for the recidivism risk reduction incentive. Appellant did not file a direct appeal. Thereafter, Appellant filed a pro se PCRA petition and counsel was appointed. On May 10, 2013, an evidentiary hearing was held regarding Appellant's petition. After post-hearing briefs were filed, the PCRA court denied Appellant's petition on June 11, 2013. This timely appeal followed.[4]

Appellant presents one issue for our review.
Whether the [PCRA] court erred in [denying] Appellant's PCRA petition where Appellant's trial counsel failed to conduct an independent investigation of his client's case thus depriving Appellant of effective assistance of counsel?

Appellant's Brief at 4.

As most PCRA appeals involve mixed questions of fact and law, "[o]ur standard of review of a [PCRA] court order granting or denying relief under the PCRA calls upon us to [consider] whether the determination of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa.Super. 2013) (internal quotation marks and 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. Cintora, 69 A.3d 759, 762 (Pa.Super. 2013) (citation omitted).

Appellant's claim relates to the purported ineffectiveness of his trial counsel. A "defendant's right to counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, [Section] 9 of the Pennsylvania Constitution is violated where counsel's performance so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and ...


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