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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JON K. TAYLOR,

                        Appellant                 No. 1744 MDA 2014


        Appeal from the PCRA Order entered September 17, 2014,
           in the Court of Common Pleas of Lancaster County,
          Criminal Division, at No(s): CP-36-CR-0001617-2012


BEFORE: ALLEN, LAZARUS, and PLATT,* JJ.

MEMORANDUM BY ALLEN, J.:                            FILED JUNE 26, 2015

     Jon K. Taylor (“Appellant”) appeals from the order denying his petition

for post-conviction relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. In addition, PCRA counsel has filed an

application to withdraw. We affirm.

     The pertinent facts and procedural history are as follows:         The

Commonwealth charged Appellant at four different docket numbers with

multiple crimes, including burglary, theft and robbery.     These charges

stemmed from Appellant’s crime spree during January of 2012. During this

period, Appellant burglarized two churches, and robbed two convenience

stores. On November 16, 2012, Appellant entered a negotiated guilty plea

at all four docket numbers, and that same day the trial court sentenced



*Retired Senior Judge assigned to the Superior Court.
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Appellant to the negotiated aggregate term of ten to twenty years of

imprisonment. Appellant did not file a direct appeal.

         On August 1, 2013, Appellant filed a pro se PCRA petition, and the

PCRA court appointed counsel to represent him.             PCRA counsel filed an

amended PCRA petition on December 6, 2013, in which Appellant raised

several claims, including two claims of ineffective assistance of trial counsel.

Namely, that trial counsel’s ineffectiveness caused Appellant to enter an

unknowing plea, and that trial counsel was ineffective for failing to file a

motion to suppress Appellant’s confession.          On March 6, 2014, the PCRA

court held an evidentiary hearing, at which Appellant and trial counsel

testified. At the conclusion of the PCRA hearing, the PCRA court directed the

parties to file briefs. By order entered September 17, 2014, the PCRA court

denied Appellant’s amended PCRA petition.             Appellant filed this timely

appeal. The PCRA court did not require Pa.R.A.P. 1925 compliance.

         In lieu of an advocate’s brief, Appellant’s counsel has filed a “Finley

Brief”    and   an   application   to   withdraw.     Although   the   decisions    in

Commonwealth           v.   Turner,      544   A.2d    927   (Pa.      1988),      and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), only

require Appellant’s counsel to file a no-merit letter, we will assess counsel’s

assertion that the issues Appellant wishes to raise have no merit under a

Turner/Finley analysis.

         This Court has recently explained:




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            The Turner/Finley decisions provide the manner for
        [PCRA] counsel to withdraw from representation.            The
        holdings of those cases mandate an independent review of
        the record by competent counsel before a PCRA court or
        appellate court can authorize an attorney’s withdrawal. The
        necessary independent review requires counsel to file a “no-
        merit” letter detailing the nature and extent of his review
        and list each issue the petitioner wishes to have examined,
        explaining why those issues are meritless. The PCRA court,
        or an appellate court if the no-merit letter is filed before it,
        see Turner, supra, then must conduct its own independent
        evaluation of the record and agree with counsel that the
        petition is without merit. . . .

        [T]his Court [has] imposed additional requirements on
        counsel that closely track the procedure for withdrawing on
        direct appeal.      . . .       [C]ounsel is required to
        contemporaneously serve upon his [or her] client his [or
        her] no-merit letter and application to withdraw along with
        a statement that if the court granted counsel’s withdrawal
        request, the client may proceed pro se or with a privately
        retained attorney. . . .


Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted).

     Here, counsel has substantially complied with the mandates of Turner

and Finley, as summarized in Reed, supra. “Accordingly, we will proceed

with our independent review of the questions presented to determine if

counsel correctly concluded that the issues raised had no merit.” Reed, 107

A.3d at 141.

     This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

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court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).

     To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) petitioner was

prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice"

requires the petitioner to show "that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different." Id. In assessing a claim of ineffectiveness, when it is

clear that appellant has failed to meet the prejudice prong, the court may

dispose of the claim on that basis alone, without a determination of whether

the first two prongs have been met.    Commonwealth v. Travaglia, 661

A.2d 352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing

to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc), appeal denied, 852 A.2d 311 (Pa. 2004).

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      Appellant’s first claim of trial counsel’s ineffectiveness involves

Appellant’s   decision   to   plead   guilty.       When   asserting   a   claim   of

ineffectiveness of counsel in the context of a guilty plea, a defendant must

show that plea counsel’s ineffectiveness induced him to enter the plea.

Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa. Super. 2005). This

Court has observed:

            Because a plea of guilty effectively waives all non-
        jurisdictional defects and defenses, after sentencing,
        allegations of ineffectiveness of counsel in this context
        provide a basis for withdrawal of the plea only where there
        is a causal nexus between counsel’s ineffectiveness, if any,
        and an unknowing or involuntary plea. The guilty plea
        hearing becomes the significant procedure under scrutiny.
        The focus of the inquiry is whether the accused was misled
        or misinformed and acted under that misguided influence
        when entering the guilty plea.

Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations omitted).

      We have further explained:

            Our law presumes that a defendant who enters a guilty
        plea was aware of what he was doing. He bears the burden
        of proving otherwise.

                               *       *        *

            The long standing rule of Pennsylvania law is that a
        defendant may not challenge his guilty plea by asserting
        that he lied while under oath, even if he avers that counsel
        induced the lies. A person who elects to plead guilty is
        bound by the statements he makes in open court while
        under oath and may not later assert grounds for
        withdrawing the plea which contradict the statements he
        made at his plea colloquy.


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                              *       *       *

            [A] defendant who elects to plead guilty has a duty to
        answer questions truthfully.     We [cannot] permit a
        defendant to postpone the final disposition of his case by
        lying to the court and later alleging that his lies were
        induced by the prompting of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      The PCRA court explained its reasons for rejecting Appellant’s

ineffectiveness claim relative to his guilty plea as follows:

            In the instant case, the Court is hard-pressed to find a
         way in which [Appellant] could possibly believe his
         sentence was anything other than what was ordered. At
         the PCRA hearing [trial counsel] stated that he spoke with
         [Appellant] prior to the day of sentencing regarding the
         terms of the agreement. [N.T., 3/6/14, at 14]. [Trial
         counsel] even recalls [Appellant’s] request he try to
         counter with an offer of nine years; tending to show
         [Appellant] was well aware of the ten year minimum which
         the Commonwealth was offering. [N.T., 3/6/14, at 8-9].
         Additional evidence of [Appellant’s] knowledge of the
         terms comes in the form of the plea agreement forms
         themselves. As stated previously, each of the four forms
         outlined the aggregate terms of sentence, each form was
         signed just below by [Appellant]. See Comm. Ex. 1-4.

            Appellant contends that even though he signed the plea
         forms, he still “had questions,” and “thought it would all be
         taken care of in the courtroom.” [N.T., 3/16/14, at 29]. If
         [Appellant] had any questions as to his sentence, the
         courtroom dialogue should only have cemented his
         understanding that the terms of incarceration were for a
         period of ten to 20 years. [N.T., 11/16/12, at 14-15]. A
         review of the guilty plea transcript shows that the
         aggregate term of [Appellant’s] sentence is stated on the
         record seven separate times throughout the oral colloquy.
         [N.T., 3/6/14, at 2-5, 12, 15]. Despite this, [Appellant]
         never once questions the terms of the agreement[.] [I]n

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         contrast, [Appellant] acknowledges that the negotiated
         terms were precisely those which he now contends are
         wrong:

            “Court: You heard the terms of the plea agreement
            and basically it all adds up that you have to do at
            least ten and not more than 20 years in the State
            Correctional Institution; do you understand that?

            [Appellant]: Yes, Sir.” [N.T., 3/6/14, at 5.]

         A [d]efendant has a duty to answer questions posed by the
         court   truthfully  during    a    guilty    plea    hearing.
         Commonwealth v. Lewis, 634 A.2d 633 (Pa. Super.
         1993).     When [Appellant] addressed the court at
         sentencing, he did not ask for clarification of the plea, nor
         did he ask any questions regarding specifically how much
         time the agreement called on him to serve. Rather, at the
         conclusion of sentencing [Appellant] stated the following:

                  “Anything I say can’t justify the actions that I
            took those following days threatening those people’s
            lives. But I’m hoping that this opportunity will give
            me a chance to take a step forward and try to
            become a productive citizen of society.”        [N.T..
            11/16/12, at 13.]

            The law does not require that a defendant be pleased
         with the outcome of his decision. All that is required is
         that the defendant’s decision to plead guilty be knowingly,
         voluntarily and intelligently made. Commonwealth v.
         Myers, [642 A.2d 1103, 1105 (Pa. Super. 1994)]. It is
         the opinion of this Court that while [Appellant] may not be
         currently pleased with his decision[,] [Appellant] was fully
         informed as to the terms of the agreement on the day of
         the plea. Knowing full well the terms of the agreement,
         and the charges lodged against him, [Appellant]
         knowingly, voluntarily, and intelligently entered into the
         negotiated plea deal.

PCRA Court Opinion, 9/17/14, at 7-9 (unnumbered).

      Our review of Appellant’s written and oral colloquies establish the

validity of his guilty plea.   Moreover, in denying relief, the PCRA court


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credited the testimony of trial counsel over the testimony and other

allegations made by Appellant at the evidentiary hearing. We cannot disturb

this determination. See Commonwealth v. Battle, 883 A.2d 641, 648 (Pa.

Super. 2005) (explaining that credibility determinations are solely within the

province of the PCRA court).       Thus, we agree with PCRA counsel that

Appellant’s first ineffectiveness claim lacks merit.

      In his second claim, Appellant asserts that trial counsel was ineffective

for failing to pursue the suppression of his confession.      “When . . . an

assertion of ineffective assistance of counsel is based upon the failure to

pursue a suppression motion, proof of the merit of the underlying

suppression claim is necessary to establish the merit of the ineffective

assistance of counsel claim.” Commonwealth v. Carelli, 546 A.2d 1185,

1189 (Pa. Super. 1988) (citations omitted).

      The PCRA court concluded that Appellant did not establish his claim of

ineffectiveness:

             Assuming arguendo that . . . [Appellant’s] motion to
         suppress is supported by some form of meritorious
         grounds, [Appellant] still fails to establish ineffective
         assistance for two reasons[:] 1) [Appellant] fails to prove
         that trial counsel’s decision was not supported by a
         reasonable basis; and 2) [Appellant] fails to show that a
         different outcome would be reached had the statement
         been suppressed. See Commonwealth v. Wallace, [724
         A.2d 916 (Pa. 1999].

            During the PCRA hearing, [trial counsel] laid out specific
         reasons supporting his decision not to file a motion to
         suppress. [N.T., 3/6/14, at 7]. For one, [trial counsel]
         stated that early on in his representation [he and
         Appellant] agreed that a “package deal,” negotiation was

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       the best option.     Id.     Being able to consolidate and
       negotiate all four dockets allowed [Appellant] to secure a
       “benefit for the bargain” that would not be available in
       negotiating each felony on its own. Id. When entertaining
       the issue of suppression, [trial counsel] weighed the pros
       and cons of filing the motion. [N.T., 3/6/14, at 9]. While
       on the stand [trial counsel] voiced his concerns that filing
       the motion may jeopardize a potential plea offer.
       Weighing the thought of not getting a plea offer against
       the slim chance [Appellant’s] motion [would be] granted,
       [trial counsel] made the decision not to file the motion.
       Such a decision is perfectly supported by the
       circumstances surrounding the case. Calling upon his 17
       years of practice, [trial counsel] made the decision he felt
       was in the best interest of his client. [N.T., 3/6/14, at 10].
       His decision was certainly reasonable given [Appellant’s
       sentencing] exposure under the guidelines. Accordingly,
       this Court finds that [trial counsel] had a reasonable basis
       to support the strategy implemented in this case. [N.T.,
       3/6/14, at 23].

                                  ***

           [Appellant also] fails in the instant case to show a
       “resulting prejudice” from [trial counsel’s] decision not to
       file a motion to suppress. . . . [Appellant] asserts that his
       statement was a “key point to this case.” [N.T., 3/6/14, at
       31]. A parsing of the discovery reveals that the statement
       may have been a piece of evidence in the case, but it was
       by no measure the only smoking gun at the prosecution[’]s
       disposal.

           Throughout their investigation Detectives collected a
       litany of physical and testimonial evidence implicating
       [Appellant] in the aforementioned felonies. Within the
       pages of discovery Officers were able to locate multiple
       eye-witnesses identifying either [Appellant], or his
       automobile, at the scene of the crime.          There was
       additional evidence from anonymous callers that
       [Appellant] was bragging about his robbery conquests[,]
       and selling the stolen goods to local neighbors. Lastly and
       most condemning was the search of [Appellant’s]
       residence. Inside Officers found both instrumentalities
       used in committing the crimes, as well as a number of
       actual items taken from the victims. Thus, trial counsel’s

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         proposed “failure” had no prejudicial effect on the outcome
         of this case. Excluding [Appellant’s] statement altogether,
         the Commonwealth still had overwhelming evidence tying
         [Appellant] to the aforementioned felonies.

PCRA Court Opinion, 9/17/14, at 8-10 (unnumbered) (citations to the record

omitted).

      Our review of the record supports the PCRA court’s conclusions. The

PCRA court credited trial counsel’s testimony that a suppression motion

would not have been successful and its filing may have harmed the plea

negotiation process.      Once again, we cannot disturb the PCRA court’s

determination. Battle, supra.

      In sum, we have reviewed the record, including the notes of testimony

from the PCRA hearing, and agree with PCRA counsel’s determination that

Appellant’s ineffectiveness claims are without merit.         Additionally, our

independent review of the record reveals that Appellant’s PCRA petition is

meritless.   Reed, supra.    We therefore affirm the PCRA court’s denial of

Appellant’s petition for post-conviction relief, and grant counsel’s application

to withdraw.

      Order affirmed. Application to Withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015

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