Commonwealth v. Abbott

1

COMMONWEALTH OF PENNSYLVANIA v. COLIN WILLIAM ABBOTT Appellant

No. 857 WDA 2022

No. J-S14025-23

Superior Court of Pennsylvania

August 2, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered June 30, 2022 In the Court of Common Pleas of Butler County Criminal Division at No(s) CP-10-CR-0001863-2011

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J. ^[*]

MEMORANDUM

BENDER, P.J.E.:

Appellant Colin William Abbott, appeals from the post-conviction court's order denying his first, timely petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. Appellant presents seven issues on review, all of which relate to his claim that trial counsel ineffectively failed to seek dismissal of all charges due to alleged prosecutorial misconduct designed to undermine the attorney-client relationship. We affirm.

I.

In June of 2011, Appellant murdered his father and stepmother, and attempted to incinerate their corpses. The Commonwealth sought the death penalty, and the case was set for trial on March 18, 2013. The Commonwealth eventually offered a plea of nolo contendere to two counts of criminal homicide in the third degree, with the caveat that the offer would expire prior to jury selection. On February 26, 2013, Appellant accepted. He waived a pre-sentence investigation and the parties agreed to have the sentence imposed the next day. He received an aggregate sentence of 35 to 80 years of incarceration.

On March 11, 2013, Appellant filed a pro se motion to withdraw his plea, claiming that it was not entered voluntarily, knowingly or intelligently, on the basis that he was originally told he had until March 1, 2013, to accept the deal but was forced by the trial court to make his decision on February 26, 2013. He also contended that the sentence date deprived him of the more lenient "fair and just" standard applicable to attempts to withdraw a plea prior to sentencing. See Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015). The trial court denied relief, finding that Appellant failed to satisfy the "manifest injustice" standard applicable to post-sentence motions to withdraw. See Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002) ("The standard for withdrawal of a guilty plea after imposition of sentence is much higher; a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified.") (quotation marks and citation omitted).

Appellant appealed, and we affirmed. Commonwealth v. Abbott, No. 708 WDA 2013, unpublished memorandum (Pa. Super. filed Nov. 14, 2013). We agreed that Appellant failed to establish a manifest injustice. We added that Appellant's assertion of manifest injustice was further belied by evidence presented at the hearing on the motion to withdraw. The Commonwealth had presented "nine recorded telephone calls made by Appellant from prison that the trial court accepted as an exhibit," wherein "Appellant and his mother discussed ways to garner publicity and to create judicial 'chaos' by filing the motion to withdraw his plea." Id. at *7-8.

II.

Those and other recorded jail calls are significant to Appellant's PCRA petition. Appellant filed a pro se petition on May 27, 2014. Following protracted proceedings, an amended petition was filed on February 28, 2020. In short, the legal claim alleged that the prosecutor assigned to the case, Assistant District Attorney Ben Simon, committed misconduct by informing Appellant's attorney of disparaging comments Appellant made about his counsel during phone calls. Appellant alleges that this misconduct warranted dismissal of all charges had trial counsel filed a motion to dismiss. For ease of discussion, this memorandum will first set forth the testimony adduced at the evidentiary hearing.

Appellant gradually became dissatisfied with his privately-retained trial counsel, Attorney Wendy Williams, beginning with her missing a court hearing on a motion filed by the Commonwealth. N.T., 7/29/20, at 13, 16. Appellant was also unhappy that Attorney Williams sent clerical members of her legal staff to visit him in jail, and that she missed a meeting with police and the prosecution to review discovery material. Appellant learned of her absence from the meeting to discuss discovery material when Attorney Kevin Flaherty, who was the Chief Public Defender of Butler County and was appointed by the court to serve as mitigation counsel, arrived to ask if Appellant had heard from Attorney Williams. When Appellant next spoke to Attorney Williams, she told him that the meeting date was tentative and had never been finalized. She told Appellant that ADA Simon was angry at her failure to show and had called her father in an attempt to find her. Appellant testified that "she thought it was very inappropriate" that ADA Simon would resort to calling her family member. Id. at 34.

Attorney Williams stated that she met with the Commonwealth several times to look at evidence and "the only meeting that I know that I missed" was "a meeting to pick discovery up from the district attorney's office" very early in the case. Id. at 114. "I did not come when [ADA] Simon felt the day and time had been appointed for me to appear. I thought it was casual." Id. at 115. She stated that ADA Simon "somehow dug my home phone number of my elderly father up from a ticket I had received from the Butler City Police about ten years prior." Id. Her father "was told that I had failed to appear for a meeting" and he panicked, thinking that the police said she was a missing person. Attorney Williams "was extremely angry" and she denied ever giving that phone number to ADA Simon. Id. at 116. ADA Simon "claimed that was the number I had given him," but she denied this, saying that she "hadn't lived at my father's home address in over thirty years" and "would have never given [him] that number[.]" Id. at 115, 116. ADA Simon, who was called by the Commonwealth as a witness, testified that the missed meeting was to review discovery. When Attorney Williams failed to show, ADA Simon "used the phone numbers that she provided me." Id. at 197.

Appellant stated he was "kind of annoyed as well[;] … I pay you all this money[,] are you going to go there or not[?]" Id. at 35. Appellant was also upset that Attorney Williams filed a motion to permit Appellant's mother to visit the crime scene. "Again, I'm in disbelief. You want my mom to go to the residence where this incident took place as a, I guess her, investigator, here?" Id. Appellant's mother was not permitted to view the crime scene, but Attorney Williams was allowed to visit. According to Appellant, she asked Appellant to pay for a new videorecorder so she could record her visit. However, "[w]hen she went to the crime scene with this videorecorder that we bought, she never took it out of the box. She never charged the battery. The entire purchase of it and use of it was a complete waste of money." Id. at 47. Appellant spoke to his mother about this in "[n]ot very nice" language. Id. at 48. Appellant then learned in November of 2012 that Attorney Williams asked his mother for $500 for gas money. Appellant "went through the roof" and refused to pay. Id. at 49. Again, Appellant spoke about all of this on the phone to his mother.

The tenor of these comments was eventually conveyed to Attorney Williams. Appellant stated that on October 4, 2012, Attorney Williams visited the jail following another meeting to review discovery. "Apparently[,] when she got to the police station[,] … [ADA] Simon told her that my mother hated her, and he was referencing the motion filed to tour the crime scene. I vividly remember her saying his words were[,] 'why are you going to bat for [his mother]? She hates you. You should hear the things they're saying about you over the prison phone.'" Id. at 40-41.

Appellant also made disparaging remarks about ADA Simon, prompted by a visit from Attorney Flaherty. Appellant stated that, sometime in early November, he called his girlfriend to discuss her attending a New York Yankees game. The next day, Attorney Flaherty visited and asked specific details about that conversation, warning him that the Commonwealth was "still listening" and to "be careful what you say." Id. at 53. Appellant, believing that ADA Simon was listening to Appellant's calls every evening, asked Attorney Flaherty, "is he gay? This man [is] obsessed with me[.]" Id. at 54. Attorney Flaherty said "No, he's not gay. He has a girlfriend and [he] explained where she worked." Id. Appellant then made a phone call to his mother, relating the details of ADA Simon's personal life and where his girlfriend worked. Attorney Flaherty returned to the jail a few days later, angry at Appellant for sharing that information on the phone. Appellant was also told by Attorney Flaherty that, during a Butler County Christmas party, another assistant district attorney told Attorney Flaherty to "stay away from [ADA Simon]. He's ticked off at you for sharing personal information with [Appellant]." Id. at 60.

As trial preparations continued through the end of 2012 and into early 2013, Appellant received the plea offer. He and both attorneys discussed it. Attorney Williams was "supportive of [his] position" to reject the plea, whereas Attorney Flaherty recommended he take it. Id. at 66. Attorney Flaherty "ended up storming out of the room. I started criticizing his performance as an attorney." Id. That evening, Appellant again disparaged his attorneys in a conversation with his mother.

That phone call led to an urgent request by Attorney Williams. According to Appellant, "around February 13^th, 14^th, 2013, I had gotten a call down to the guard's desk[. H]e...