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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
JOSEPH McGRATH,                            :         No. 1354 EDA 2016
                                           :
                           Appellant       :


                   Appeal from the PCRA Order, April 15, 2016,
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos. CP-51-CR-0000658-2011,
               CP-51-CR-0000698-2011, CP-51-CR-0006929-2010


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 22, 2017

        Joseph McGrath appeals from the April 15, 2016 order dismissing his

petition for relief filed pursuant to the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1

        The PCRA court summarized the relevant facts and procedural history

of this case as follows:

                     In separate proceedings on March 3, 2011 and
              April 29, 2011, [a]ppellant appeared before th[e trial
              c]ourt and entered an open guilty plea to aggravated
              assault, criminal conspiracy to commit aggravated
              assault, criminal solicitation of murder, witness
              intimidation, and criminal conspiracy to commit
              witness intimidation.

                    Prior to accepting [a]ppellant’s plea, th[e trial
              c]ourt conducted a proper and thorough colloquy in

1
    The Commonwealth has not filed a brief in this matter.
J. S02003/17


          accordance with [Pa.R.Crim.P.] 590. During each
          colloquy, [a]ppellant testified that he understood all
          of the rights he was waiving and that he was acting
          on his own free will.       Appellant was shown his
          written, guilty plea colloquy form and [a]ppellant
          confirmed his signature. Appellant affirmed that he
          was making a voluntary, knowing, and intelligent
          guilty plea by his oral responses and his signature on
          the written colloquy form.

                 Having      knowingly   and understandingly
          completed the colloquy, [a]ppellant then pleaded
          guilty to the following facts:

          A.    Aggravated Assault and Related Criminal
                Conspiracy.

                On March 9, 2010, [a]ppellant attacked his
          neighbor Neil Lawn around 5:15 p.m. on the
          1800 block of East Airdrie Street in Philadelphia,
          Pennsylvania. Appellant walked over to Mr. Lawn,
          grabbed him, punched him in the face, and knocked
          him to the ground. Appellant started kicking and
          stomping at Mr. Lawn, repeating the word, “[g]ive
          me the money,” in reference to a $50 drug debt.
          Appellant     also     engaged      an    unidentified
          co-conspirator in stomping and kicking Mr. Lawn.
          Mr. Lawn’s neighbor Amber Pratt yelled at the
          perpetrators to stop and said that she was calling the
          police. Appellant threatened to kill Ms. Pratt if she
          called the cops.     Thereafter, [a]ppellant and the
          unidentified co-conspirator departed the scene in a
          vehicle. Mr. Lawn was admitted to the ICU at Erie
          Torresdale Hospital in critical condition. Mr. Lawn
          suffered from two broken ribs, four broken vertebrae
          in his back, a broken right orbital bone, a broken
          jaw, multiple facial fractures, and a punctured lung.
          Mr. Lawn was placed on a ventilator due to
          respiratory failure. Additionally, a doctor informed
          Mr. Lawn that had he sustained one more punch, he
          would have died.




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          B.    Criminal Solicitation of Murder.

                 On May 1, 2010, Nicole Rosa assisted the First
          Judicial District Warrant Unit officers in setting up a
          drug purchase with [a]ppellant in order for the
          officers to apprehend him. Ms. Rosa sent [a]ppellant
          several text messages stating that she wished to
          purchase Xanax at his residence. After an exchange
          of text messages, two officers knocked on
          [a]ppellant’s door, came in the house, and arrested
          [a]ppellant.

                Appellant made several phone calls from
          prison. The calls were recorded and authenticated
          by the Philadelphia Prisons and Public Call,
          Incorporated. On May 3, 2010, [a]ppellant called his
          nephew and informed him that “Nicky set me up”
          and that he wanted her dead.        He directed his
          nephew to mix battery acid with a batch of heroin.
          That mixture was to be given to [a]ppellant’s
          accomplice in drug dealing, who would then sell it to
          Ms. Rosa. On May 11, 2010, [a]ppellant followed up
          with his nephew and the accomplice to check if the
          order was carried out. On May 19, 2010, [a]ppellant
          further communicated to his sister on how he wanted
          Ms. Rosa dead: “I want her dead—to die.”

                 In August 2010, [a]ppellant realized the calls
          were recorded and declared to Lieutenant Knight, “I
          told somebody I wanted to have someone killed and
          I just found out that the telephone conversations are
          monitored. I got to see how I can get out of this.”
          Afterwards, [a]ppellant was taken to the Psych Unit.

          C.    Witness Intimidation and Related Criminal
                Conspiracy.

                On May 10, 2010, [a]ppellant met with two
          co-conspirators in prison and instructed them to
          “take care of the victim” in the aggravated assault
          case, Mr. Lawn. Appellant instructed his nephew to
          pay Mr. Lawn $500 every time he did not appear in
          court, until three times when [a]ppellant’s case
          would be thrown out per the Three Strikes Rule.


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             Mr. Lawn gave a statement to the District Attorney’s
             Office    corroborating     the    recorded     phone
             conversations and confirmed that he was physically
             approached by the nephew on three separate
             occasions and was offered $500 not to appear in
             court. Mr. Lawn also stated that on one occasion, a
             second co-conspirator pulled up his shirt, exposed
             bullet holes on his body, and told Mr. Lawn, “[t]his is
             what can happen.”

Trial court opinion, 6/29/16 at 2-4 (citations and footnotes omitted).

        At the March 3 and April 29, 2011 guilty plea hearings, the trial court

informed appellant of his right to withdraw his guilty plea, but he failed to

invoke this right.2 Thereafter, on August 26, 2011, the trial court sentenced

appellant to an aggregate term of 20 to 40 years’ imprisonment, followed by

10 years’ probation.         On September 1, 2011, appellant filed timely

post-sentence motions to withdraw his guilty plea and for reconsideration of

his sentence. The trial court denied both motions that same day.

        On May 10, 2013, a panel of this court affirmed appellant’s judgment

of sentence.    See Commonwealth v. McGrath, 81 A.3d 993 (Pa.Super.

2013) (unpublished memorandum).              Appellant did not file a petition for

allowance of appeal with our supreme court.           On May 21, 2013, appellant

filed   a   timely   pro    se   PCRA   petition,    and   Sharon      Meisler,   Esq.

(“Attorney Meisler”)       was   appointed    to    represent   him.        Following

Attorney Meisler’s removal, Sandjai Weaver, Esq. (“Attorney Weaver”) was



2
  Appellant was represented during his guilty plea hearings and on direct
appeal by Robert Trimble, Esq. (hereinafter, “plea counsel”).


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appointed on January 14, 2015. On June 23, 2015, Attorney Weaver filed

an   amended     PCRA     petition   on   appellant’s   behalf.   Thereafter,   on

November 9, 2015, the PCRA court provided appellant with notice, pursuant

to Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a

hearing. Appellant did not respond, and on April 15, 2016, the PCRA court

dismissed appellant’s petition without a hearing.            On April 28, 2016,

appellant filed a timely notice of appeal.3

      Appellant raises the following issue for our review:

            Whether the [PCRA] court abused its discretion by
            failing to grant an evidentiary hearing, and for failing
            to permit [a]ppellant to withdraw his guilty plea
            where [plea] counsel inaccurately advised him he
            would receive a ten (10) year sentence if he entered
            a guilty plea, and where such advice caused
            [a]ppellant to enter involuntary, unknowing, and
            unintelligent guilty pleas in violation of his
            constitutional rights under the U.S. Const. Amend.,
            V, VI, and XIV and see, PA.Const. art. I, sec. 9?

Appellant’s brief at 4.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in


3
  The record reflects that appellant was not directed to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b).   Nonetheless, the PCRA court filed an opinion that
comports with the requirements of Rule 1925(a) on June 29, 2016.


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the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”            Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).               In order to be

eligible   for    PCRA    relief,   a   defendant   must   plead   and   prove   by   a

preponderance of the evidence that his conviction or sentence arose from

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).               Further,

these issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).

      Where the PCRA court has dismissed a petitioner’s petition without an

evidentiary hearing, as was the case here, we review the PCRA court’s

decision for an abuse of discretion.          See Commonwealth v. Roney, 79

A.3d 595, 604 (Pa. 2013), cert. denied, 135 S.Ct. 56 (2014) (citation

omitted). Moreover,

                 the right to an evidentiary hearing on a
                 post-conviction petition is not absolute. It is within
                 the PCRA court’s discretion to decline to hold a
                 hearing if the petitioner’s claim is patently frivolous
                 and has no support either in the record or other
                 evidence. It is the responsibility of the reviewing
                 court on appeal to examine each issue raised in the
                 PCRA petition in light of the record certified before it
                 in order to determine if the PCRA court erred in its
                 determination that there were no genuine issues of
                 material fact in controversy and in denying relief
                 without conducting an evidentiary hearing.




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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal

citations omitted).

        Appellant contends that his guilty plea was unlawfully induced due to

plea counsel’s ineffectiveness in “advis[ing] him he would receive a ten (10)

year sentence if he entered a guilty plea[.]” (Appellant’s brief at 10.) We

disagree.

        In Commonwealth v. Willis, 68 A.3d 997 (Pa.Super. 2013), a panel

of this court explained that the PCRA will provide relief to an appellant if

ineffective assistance of counsel caused him to enter an involuntary guilty

plea.    Id. at 1001-1002.            We conduct our review of such a claim in

accordance        with        the    three-pronged     ineffectiveness    test   under

Section 9543(a)(2)(ii) of the PCRA.             To prevail on a claim of ineffective

assistance of counsel under the PCRA, a petitioner must plead and prove 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

Specifically, a petitioner must establish that “the underlying claim has

arguable merit; second, that counsel had no reasonable basis for his action

or inaction; and third, that [a]ppellant was prejudiced.” Commonwealth v.

Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014), appeal denied, 104

A.3d 523 (Pa. 2014) (citation omitted).                “[C]ounsel is presumed to be

effective   and    the    burden      of   demonstrating    ineffectiveness   rests   on



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[a]ppellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.

2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citation omitted).

Additionally, we note that “counsel cannot be held ineffective for failing to

pursue a meritless claim[.]” Commonwealth v. Hall, 867 A.2d 619, 632

(Pa.Super. 2005), appeal denied, 895 A.2d 549 (Pa. 2006).

      This court has explained that the entry of a guilty plea constitutes a

waiver of all defects and defenses except lack of jurisdiction, invalidity of the

plea, and illegality of the sentence. See Commonwealth v. Zeigler, 112

A.3d 656, 660 (Pa.Super. 2015) (citation omitted). Before a withdrawal of a

plea will be permitted after sentencing, the appellant “must make a showing

of prejudice amounting to manifest injustice.       A plea rises to the level of

manifest injustice when it was entered into involuntarily, unknowingly, or

unintelligently.”    Commonwealth v. Bedell, 954 A.2d 1209, 1212

(Pa.Super. 2008), appeal denied, 964 A.2d 893 (Pa. 2009) (internal

quotation marks and citation omitted).        In order to ensure a voluntary,

knowing, and intelligent plea, the trial court, at a minimum, must ask the

following questions during the guilty plea colloquy:

            1)      Does the defendant understand the nature of
                    the charges to which he or she is pleading
                    guilty or nolo contendere?

            2)      Is there a factual basis for the plea?

            3)      Does the defendant understand that he or she
                    has the right to a trial by jury?




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           4)    Does the defendant understand that he or she
                 is presumed innocent until found guilty?

           5)    Is the defendant aware of the permissible
                 ranges of sentences and/or fines for the
                 offenses charged?

           6)    Is the defendant aware that the judge is not
                 bound by the terms of any plea agreement
                 tendered unless the judge accepts such
                 agreement?

Zeigler, 112 A.3d at 660 (citation omitted); see also Pa.R.Crim.P. 590(C).

Moreover, a defendant is bound by the statements that he makes during his

plea colloquy.   See Commonwealth v. Yeomans, 24 A.3d 1044, 1047

(Pa.Super. 2011).

     Upon review, we find that appellant’s claim that he was induced to

plead guilty because of counsel’s purported ineffectiveness is belied by the

record. As noted, a panel of this court on direct appeal found that appellant

entered into his guilty plea “voluntarily, knowingly, and intelligently.”

McGrath, 81 A.3d 993 (unpublished memorandum at 9).               This court

reasoned as follows:

           With respect to the requirements set forth in
           Rule 590, the record indicates the following:
           (1) [appellant] understood the charges against him;
           (2) he agreed to the Commonwealth’s summary of
           the case against him; (3) he understood his right to
           a trial by jury; (4) he understood that he was
           presumed innocent unless the Commonwealth
           proved his [sic] guilty beyond a reasonable doubt;
           (5) the court informed [appellant] that the maximum
           aggregate sentence that could be imposed for the
           crimes he was charged with was 100 years’
           incarceration and a fine of $125,000; and (6) the


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             court informed him that it was not bound by the
             terms of the plea agreement unless it accepted the
             agreement.

Id. (unpublished memorandum at 9-10) (citations to notes of testimony

omitted).

      This court has long recognized that “[t]he law does not require that

[the defendant] be pleased with the outcome of his decision to enter a plea

of guilty:   All that is required is that [his] decision to plead guilty be

knowingly,   voluntarily   and   intelligently   made.”   Commonwealth       v.

Anderson, 995 A.2d 1184, 1192 (Pa.Super. 2010), appeal denied, 9 A.3d

626 (Pa. 2010) (citation omitted).      Because appellant’s plea was found to

have been entered voluntarily, knowingly, and intelligently, and not due to

any ineffectiveness on the part of plea counsel, allegations of ineffectiveness

related to his plea may not be raised as a basis for relief. See Willis, 68

A.3d at 1001-1002 (stating, “[a]llegations of ineffectiveness in connection

with the entry of a guilty plea will serve as a basis for relief only if the

ineffectiveness caused the defendant to enter an involuntary or unknowing

plea.” (citation omitted; brackets in original; emphasis added)); see also

Bedell, 954 A.2d at 1212 (same). Accordingly, we affirm the PCRA court’s

April 15, 2016 order dismissing his petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/22/2017




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