J-S63025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

YAASMIYN STRADFORD-COLEMAN

                            Appellant              No. 1031 EDA 2015


                  Appeal from the PCRA Order March 13, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004469-2013


BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                        FILED OCTOBER 27, 2015

        Appellant, Yaasmiyn Stradford-Coleman, appeals from the March 13,

2015 order dismissing, without a hearing, her first petition for relief filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

        We summarize the relevant procedural background of this case as

follows. On February 11, 2014, Appellant entered a nolo contendere plea to

one count of endangering the welfare of a child (EWOC).1 That same day,

the trial court imposed a sentence of two years’ probation. Appellant did not

file a direct appeal with this Court.



____________________________________________
1
    18 Pa.C.S.A. § 4304(a)(1).
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       Appellant filed a timely, counseled PCRA petition on January 8, 2015.

The Commonwealth filed its answer on February 11, 2015. The next day, on

February 12, 2015, the PCRA court entered an order notifying Appellant of

its intention to dismiss her petition without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907(1). Appellant filed a response

to the PCRA court’s Rule 907 notice on February 13, 2015. On March 13,

2015, the PCRA court entered an order dismissing Appellant’s PCRA petition.

On April 13, 2015, Appellant filed a timely notice of appeal.2

       On appeal, Appellant presents one issue for our review.

               [W]hether the [PCRA c]ourt abused its discretion
               when it dismissed [Appellant]’s PCRA petition and
               amended PCRA petition without a hearing[?]

Appellant’s Brief at 5.

       We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA    relief,   we      examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most


____________________________________________
2
  We note that the 30th day fell on Sunday, April 12, 2015. Therefore,
Appellant’s notice of appeal was timely filed on Monday, April 13, 2015. See
generally 1 Pa.C.S.A. § 1908. We further observe that Appellant and the
PCRA court have complied with Pennsylvania Rule of Appellate Procedure
1925.



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favorable to the prevailing party at the trial level.”    Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).       “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”       Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

       Appellant’s claim asserts that her trial counsel provided ineffective

assistance.    The Sixth Amendment to the Federal Constitution provides in

relevant part that, “[i]n all criminal prosecutions, the accused shall enjoy the

right … to have the Assistance of Counsel for his defence.”3       U.S. Const.

amend. VI.      The Supreme Court has long held that the Counsel Clause

includes the right to the effective assistance of counsel.     See generally

Strickland v. Washington, 466 U.S. 668, 686 (1984); Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987).

       In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on


____________________________________________
3
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



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any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have

been different.”   Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to satisfy any one of these prongs.”    Commonwealth v. Elliott, 80

A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v.

Pennsylvania, 135 S. Ct. 50 (2014).

      We also note that a PCRA petitioner is not automatically entitled to an

evidentiary hearing.   We review the PCRA court’s decision dismissing a

petition without a hearing for an abuse of discretion.    Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted), cert. denied, Roney

v. Pennsylvania, 135 S. Ct. 56 (2014).

            [T]he 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). “[A]n evidentiary hearing is not meant to function as a

fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.”           Roney, supra at 605 (citation

omitted).

       In her sole issue on appeal, Appellant argues that trial counsel gave

her erroneous advice that the fact of her nolo contendere plea would not be

admissible against her in future dependency or termination proceedings.4

This issue is governed by Pennsylvania Rule of Evidence 410, which provides

as follows.

              Rule 410. Pleas, Plea Discussions, and Related
              Statements

              (a) Prohibited Uses. In a civil or criminal case,
              evidence of the following is not admissible against
              the defendant who made the plea or participated in
              the plea discussions:
____________________________________________
4
  To the extent Appellant avers counsel erroneously advised her that the
factual basis for the nolo contendere plea would not be admissible against
her, we note Appellant raised this issue for the first time in her “amended”
PCRA petition filed in response to the PCRA court’s Rule 907 notice. See
Commonwealth v. Rigg, 84 A.3d 1080, 1084-1085 (Pa. Super. 2014)
(stating, “a petitioner must request leave to amend his petition in his Rule
907 response to raise new trial counsel ineffectiveness claims[]”); accord
Commonwealth v. Derrickson, 923 A.2d 466, 469 (Pa. Super. 2007),
appeal denied, 934 A.2d 72 (Pa. 2007). Although Appellant titled her
response as an amended petition, she never sought leave from the PCRA
court to amend her petition. The PCRA court’s order on appeal states that it
was only considering her PCRA petition “filed January 8, 2015[.]” PCRA
Court Order, 3/13/15, at 1. As a result, Appellant has waived these
additional claims on appeal.



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                                         …

            (2) a nolo contendere plea;

                                         …

Pa.R.E. 410(a)(2).     As the PCRA court and the Commonwealth point out,

Rule 410(a)(2) plainly prohibits the introduction of a nolo contendere plea.

That is the end of the inquiry for this appeal.      Counsel’s advice was not

legally erroneous, and therefore, Appellant’s ineffective assistance of counsel

claim lacks arguable merit.         PCRA Court Opinion, 5/20/15, at 5-6;

Commonwealth’s Brief at 8.

      However, Appellant argues that despite counsel’s advice to the

contrary, the agency will attempt, or has attempted to introduce Appellant’s

nolo contendere plea. Appellant’s Brief at 11. Appellant does not state, and

the certified record does not indicate, what the status of any dependency or

termination proceedings are, or whether this issue arose therein. However,

the fact that CYS might attempt to do what counsel told Appellant it cannot

do does not render counsel’s advice legally erroneous.

      Based on the foregoing, we conclude the trial court did not abuse its

discretion when it dismissed Appellant’s petition without an evidentiary

hearing.     See     Elliott,   supra;    Roney,   supra;   Simpson,   supra.

Accordingly, the PCRA court’s March 13, 2015 order is affirmed.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2015




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