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[U] Commonwealth v. Rapoport

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAVID ADAM RAPOPORT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 30, 2013 in the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001953-2011

BEFORE: ALLEN, STABILE, and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.

David Adam Rapoport (Appellant) appeals from an order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On December 8, 2011, Appellant pled guilty to the first degree murder of Jennifer Snyder and to the first degree murder of the fetus which she was carrying, [1] after Appellant shot Ms. Snyder three times, wrapped her body in trash bags, and disposed of it in the woods.

In exchange for the Commonwealth's agreement to withdraw its notice of aggravating factors, thus foregoing the possibility of the death penalty, Appellant agreed to waive all direct and collateral appeal rights. The sentencing court conducted an extensive oral colloquy to confirm that Appellant's decision to plead guilty was knowing and voluntary, and also incorporated into the record two written colloquies signed by Appellant: one as to the guilty plea generally, and one specific to waiver of his rights to direct and collateral review. Thereafter, Appellant was given consecutive life sentences without the possibility of parole.

On December 6, 2012, Appellant filed a pro se PCRA petition. Counsel was appointed and, on March 13, 2012, filed an amended petition. On July 30, 2013, the PCRA court held a hearing to determine whether Appellant knowingly and voluntarily waived his collateral review rights. The Commonwealth presented the testimony of Appellant's trial counsel and offered as an exhibit the written colloquy Appellant executed regarding the waiver of his appeal rights; Appellant offered no testimony or other evidence.

At the conclusion of the hearing, the PCRA court denied Appellant's request for relief and dismissed his petition. Appellant timely filed a notice of appeal. Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant presents one question for this Court's review: "Did the [PCRA] court err in dismissing the PCRA petition based upon a waiver of appeal rights where there was no showing on the record that the waiver was knowing and voluntary?" Appellant's Brief at 4 (some capitalization omitted).

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. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. The PCRA court's factual determinations are entitled to deference, but its legal determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quotations and citations omitted).

We begin by noting that a "well-reasoned decision to plead guilty in order to avoid the death penalty does not render the plea invalid." Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa.Super. 1996). Rather, "[a] plea of guilt that is motivated by a fear that the prosecution may obtain the death penalty is valid as long as the guilty plea is entered knowingly and voluntarily." Id. See also Commonwealth v. Saranchak, 810 A.2d 1197, 1199 (Pa. 2002) ("Most jurisdictions permit a capital defendant to waive direct appellate review and/or post-conviction proceedings, and Pennsylvania is no exception.").

In the instant case, Appellant executed a written colloquy that provided as follows, in relevant part.

6. I further agree, in consideration of the District Attorney's agreement not to seek the death penalty, to the following:
(a) I agree never to seek or file or have filed on my behalf any direct or collateral appeals of my conviction, sentence, or this agreement to the appellate courts of Pennsylvania, including the Superior Court or Supreme Court, or to any federal court. Direct appeals include, but are not limited to, appeals that must be filed with the appellate courts within the time limits explained in Pa.R.Crim.P. 720, and Pa.P.A.P. 903. I understand that in the absence of this agreement, I would have the right to file a direct appeal to the Superior Court, and could thereafter request the Supreme Court to review this matter within the time limits set by Pa.R.A.P. 1113. I also understand that I could then ask the United States Supreme Court to review my case. Collateral appeals include any requests for relief under the state Post Conviction Relief Act or a request for a writ of habeas corpus from a federal court. I know that I am now giving up these rights forever.
(b) I understand that collateral appeals are filed after direct appeals. In the absence of this agreement, I would initially have the right to file a collateral appeal with the trial court, and if denied I would have the right of appeal to the Superior Court. I would then have the right to ask the Supreme Court of Pennsylvania to review this matter, and then request review by the United States Supreme Court. I know that I am giving up these rights forever.
(c) I understand that in the absence of this agreement, and after the exhaustion of state remedies, I could ordinarily request habeas corpus review by a federal judge; that if the federal judge does not grant me relief that I could appeal to the federal court of appeals and ask them to review my case; and I thereafter would have the right to ask the United States Supreme Court to review my case. I know that I am now giving up these rights forever.
(d) I agree that no other court will review my case after today.
(e) I agree that I am giving up the right to make allegations, including but not limited to, asserting that my conviction or sentence resulted from one or more of the following:
(1) a violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of my case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place;
(2) ineffective assistance of counsel which, in the circumstances of my case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place; so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place;
(3) a plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused me to plead guilty and I am innocent;
(4) the improper obstruction of government officials of my right to appeal where a meritorious appealable issue existed and was properly preserved in the trial court;
(5) the unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced;
(6) the imposition of a sentence greater than the lawful maximum;
(7) proceeding in a court without jurisdiction.
(f) I agree that I am giving up the right to make any of the above allegations or any other allegation. I agree that none of these claims are [sic] present in my case.
(g) I agree to never seek or file, or have filed on my behalf, any claims of ineffective assistance of counsel, including but not limited to: a claim of lack of preparation for trial, lack of defense strategy, failure to file pre-trial motions and/or a claim of any defense attorney errors. I know that I am now giving up this claim forever.
(h) I agree to never seek or file, or have filed on my behalf, any claims of error by the Court regarding any rulings. I know that I am now giving up this claim forever.
(i) I agree to never seek or file, or have filed on my behalf, any claim of professional misconduct on the part of the District Attorney of Lehigh County. I know that I am now giving up this claim forever.
(j) I agree to never seek or file, or have filed on my behalf, any Petitions for Pardon before the Pennsylvania Board of Pardons on my life sentence.
(k) I agree to never seek or file, or have filed on my behalf, any request for commutation of my life sentence to the Governor of the Commonwealth of Pennsylvania.
(l) I agree that a copy of this written agreement shall become part of my prison record or file.
7. In return for my decision to comply with all the terms and conditions of this agreement and to give up each and every one of the rights described above, as well as the rights set forth in the written guilty plea colloquy, the District Attorney agrees to allow a plea to First Degree Murder and Criminal Homicide of an Unborn Child as set forth above, and a sentence of life imprisonment.
8. Other than the terms and conditions set forth in this agreement, nobody has promised me anything or forced me or threatened me to accept the terms and conditions of this agreement. I, myself, have decided to accept all terms and conditions of this agreement. I know what I do today is final.
9. I have read this colloquy and agreement and discussed the same, in its entirety, with my counsel John Waldron, Esquire, and John Griffin, Esquire. I have no questions regarding the terms and conditions of the agreement and I understand exactly what is written here.
10. I am satisfied with the advice and service I have received from my counsel John Waldron, Esquire, and John Griffin, Esquire. I have discussed my case fully with my defense counsel. My lawyers have spent enough time on my case and I have had enough time to discuss my case fully with my lawyers.
11. My lawyers, John Waldron, Esquire, and John Griffin, Esquire, have left the final decision as to what to do on my
case with me, and I have decided, myself, to accept the terms and conditions of this written agreement.
12. My lawyers, John Waldron, Esquire, and John Griffin, Esquire, have fully explained to me what it means to accept the terms and conditions of this agreement and have reviewed and explained this written agreement colloquy with me and it is my decision to accept all terms and conditions of this written agreement.

Written Waiver of Appeal Rights Colloquy, 12/8/2011.

This document was presented to the sentencing court at the sentencing hearing. The following exchange between the court and Appellant occurred on the record.

The Court: I have in front of me a written waiver of appeal rights colloquy. Did you review this?
[Appellant]: Yes.
The Court: Did you understand it?
[Appellant]: Yes, sir.
The Court: Do you have any questions you'd like to ask me about your waiver of your appeal rights or about your sentence?
[Appellant]: No, Your Honor.
The Court: Can you see from where you're seated your signature?
[Appellant]: Yes.

N.T., 12/8/2011, at 77-78.

A written waiver form "must be accorded prima facie validity." Commonwealth v. Smith, 450 A.2d 973, 974 (Pa. 1982). Given the written and oral colloquies, as well as the facts that Appellant read and wrote English and had eight years of post-secondary education at the time of the colloquies, N.T., 12/8/2011, at 11, it is clear to us that the PCRA court did not err or abuse its discretion in finding that Appellant's waiver of his collateral appeal rights was knowing, intelligent, and voluntary. Indeed, with Appellant offering absolutely no evidence to the contrary, the PCRA court could not have reasonably reached any other conclusion.

Appellant's sole argument before the PCRA court and this Court is that Commonwealth v. Baker, 73 A.2d 652, 667 (Pa.Super. 2013), mandates that a waiver of PCRA rights must include an oral, on-the-record colloquy in order to be valid. Because the waiver of direct and collateral appeal rights in the instant case was done via written colloquy rather than orally by the trial judge, Appellant argues, his waiver was not knowing and voluntary. Appellant's Brief at 10-11.

Appellant's argument is facile. Baker was a case in which the defendant sought to raise ineffective assistance of counsel claims on direct appeal rather than wait to raise them in a PCRA petition. The issue before this Court was what constitutes a valid waiver of PCRA rights to allow such a claim to be litigated on direct appeal under Commonwealth v. Barnett, 25 A.3d 371 (Pa.Super. 2011) (en banc).

The Court noted that the validity of a waiver of the right to seek PCRA relief is subject to the same analysis as waiver of a defendant's right in other contexts. Baker, 73 A.3d at 667 (examining case law concerning the waiver of rights to, inter alia, a jury trial, counsel, and testifying on one's own behalf). The record in Baker revealed that the rights Baker was waiving had not been described to him; in fact, the record showed that Baker had been misinformed in that he was told that he was only waiving the right to raise the specific instances of ineffective assistance of counsel, rather than waiving all of his PCRA rights. Baker, 73 A.3d at 668. Accordingly, this Court held that Baker had not made "an express, knowing and voluntary waiver of his right to PCRA review in its entirety…." Id. at 669.

In the instant case, this issue is not whether Appellant has sufficiently waived his right to PCRA relief to allow review of ineffective assistance of counsel claims on direct appeal, and Appellant does not claim that he was misinformed of what rights he was waiving. He simply claims that his waiver was not accompanied by an on-the-record, oral colloquy.

"[A]s our Courts have held on a number of occasions, the absence of an on-the-record colloquy, alone, does not prove that a defendant unknowingly and unintelligently waived" his or her rights. Commonwealth v. Michaud, 70 A.3d 862, 873 (Pa.Super. 2013) (discussing waiver of the right to a jury trial).

A waiver colloquy is a procedural device; it is not a constitutional end or a constitutional "right." Citizens can waive their rights in the absence of a colloquy. … [A]n on-the-record colloquy is a useful procedural tool whenever any significant right is at issue…. But the colloquy does not share the same status as the right itself.

Commonwealth v. Mallory, 941 A.2d 686, 697 (Pa. 2008). "The determination whether an accused has knowingly and voluntarily waived his [ ] rights depends on the facts of each particular case. These circumstances include the background, experience, and conduct of the accused." Commonwealth v. Kunkle, 79 A.3d 1173, 1182 (Pa.Super. 2013) (determining validity of waiver of right to counsel).

Here, "[t]he circumstances surrounding [Appellant's] guilty plea demonstrate that [his] decision was his free and unconstrained choice. … Throughout the proceedings, it was evident to [Appellant] that he would be spending the rest of his life in jail without further review by any court." PCRA Court Opinion, 9/20/2013, at 7-8. Upon the record before us, we agree.

Order affirmed.

Judgment Entered.


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