J-S52008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JOHN LEWIS GERHOLT, SR.,

                         Appellant                  No. 1622 WDA 2014


               Appeal from the PCRA Order August 29, 2014
             In the Court of Common Pleas of Bedford County
            Criminal Division at No(s): CP-05-CR-0000530-2008


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 30, 2015

      Appellant, John Lewis Gerholt, Sr., appeals from the August 29, 2014

order denying his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.

      On August 21, 2012, facing charges of first-degree murder for the

killing of his twenty-four-year-old wife, Karen Gerholt, along with the

Commonwealth’s intent to seek the death penalty, Appellant pleaded no

contest to first-degree murder. The Commonwealth summarized the facts of

the crime at the plea hearing, as follows:

      [THE COMMONWEALTH]:           Yes,   Your    Honor.       Sunday,
      November 9th, 2008, Pennsylvania State Police received a
      dispatch to the proximity of Walmart parking lot in Snake Spring
      Township for the—to respond to a shooting. Trooper John Brown
      of the Pennsylvania State Police was the first to arrive on scene.
      Upon his arrival, he observed [Appellant] kneeling down over the
      victim in this case, Karen M. Gerholt, age 24. The victim was
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     lying on her back in the northeast corner of the parking lot.
     There was a gunshot—there was a shotgun laying beside the
     victim, and she had what appeared to be injuries to her
     abdomen, her back.

            [Appellant] was taken into custody and returned to the
     station. They also recovered three 12-gauge shotgun shells in
     his right front pocket. At that point, Trooper Terry Summers of
     the Pennsylvania State Police was assigned to conduct an
     investigation into what happened that day.

           During his investigation, we learned that between October
     31st and November 7th, prior to this incident, [Appellant] told an
     acquaintance, George Cramer, on at least three or four occasions
     that he was going to, quote, kill that bitch, end quote, referring
     to the victim. On the morning of the incident, on November 9th,
     2008, [Appellant] asked several people who would testify at trial
     where he could obtain a shotgun. At approximately 3:00 p.m.
     on November 9th, 2008, [Appellant] arrived at the Bedford
     Walmart store in his pickup truck. He purchased a hacksaw from
     the store paying in cash and quickly took the hacksaw from the
     store without a bag. [Appellant] took the hacksaw to his parked
     truck where he stayed for approximately six minutes. He then
     walked to a trashcan and threw away one bag containing what
     appeared to be a long, thin item. Police believe that item to be
     the barrel to that shotgun.

            [Appellant] then moved his vehicle to several different
     parking locations within the Walmart Plaza. After moving the
     vehicle around for approximately 11 minutes, he walked across
     the Walmart parking lot into the McDonald’s parking lot around
     the Tractor Supply building and back near the McDonald’s
     parking lot. [Appellant] then walked around this area. This walk
     that I just described, Your Honor, took approximately 6 minutes.

           [Appellant] then walked back to the Walmart parking lot
     hiding behind a large storage container and peering around the
     container to look at the McDonald’s store. After hiding behind
     the storage container for approximately one minute, he returned
     to his vehicle. He then parked his vehicle behind the storage
     container in the Walmart parking lot, exited his vehicle, again
     peered around the container toward the McDonald’s store, and
     walked into the McDonald’s parking lot where he first came in
     contact with the victim.

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           From the time [Appellant] first arrived in the Walmart
     plaza, [Appellant] spent between 30 and 40 minutes walking
     around the plaza, McDonald’s, and the Tractor Supply store.
     When [Appellant] last approached the Walmart parking lot, he
     was armed with a sawed-off, single-barrel, break-action shotgun
     and several shotgun shells. Several witnesses, who would be
     called to testify at trial, saw [Appellant’s] actions during the
     shooting. And while some witnesses saw more than others, the
     investigation determined that they will all testify to the same
     general account.

           [Appellant] approached the victim, Karen M. Gerholt, in
     the McDonald’s parking lot. While the victim was running to her
     vehicle in the parking lot, [Appellant] fired the shotgun at her.
     [Appellant] then reloaded the shotgun and fired a second shot at
     the victim at very close range. The victim sustained a fatal
     gunshot wound which entered her back just below her left
     shoulder blade. The victim bled profusely from her midsection
     and mouth and was pronounced dead at the scene.

           During the autopsy, at least 29 shotgun pellets were
     removed from the victim’s body. And a plastic shotgun shell was
     located between the victim’s heart and spine. Injuries from the
     shotgun blast were present on the victim’s right lung, heart, left
     lung, and liver. The nature of the entry wound indicated that the
     shotgun was fired from a distance of three feet or less, and the
     Commonwealth would present testimony to support that at trial.

           Shortly after shooting the victim, [Appellant] called the
     victim’s stepmother, Bess Lemin, with the victim’s cell phone,
     and told Lemin that he accidentally shot the victim. Ms. Lemin
     responded by saying that [Appellant] better not have injured the
     victim to which [Appellant] replied, quote, fuck you, end quote.

           When investigators from the Pennsylvania State Police
     arrived, they found at least six live shotgun shells and one
     shotgun shell wadding various places in the parking lot, one live
     shotgun shell in [Appellant’s] pants pocket, and one spent
     shotgun shell in the storm grate behind the victim’s vehicle.
     Investigators found the sawed-off, single-barrel shotgun lying
     beside [Appellant] with the action open and one spent shotgun
     shell still inside. The barrel of the shotgun appeared to have
     been recently cut. After investigators located [Appellant], he

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      told them that he accidentally shot the victim and he was only
      there to scare her. The victim just—[Appellant] indicated the
      weapon went off while he was holding it.

            A search of [Appellant’s] vehicle revealed the following: A
      hacksaw that appeared to be brand new but had areas on pant
      [sic] worn off from the use; a greeting card addressed from
      [Appellant] to the victim in this case, Karen Gerholt; a letter also
      addressed to the victim in this case from [Appellant]; sawdust,
      and metal shavings, and sandpaper, which appeared to have
      been recently used. [Appellant] was Mirandized and chose not
      to speak to the police.         However, he did make several
      statements during the process including the ones I’ve already
      stated, Your Honor, that he said it was an accident, things of
      that nature. In the police presence, when he observed a news
      report regarding the incident shortly after being taken into
      custody, [Appellant] stated that the victim’s family should know
      what caused the incident because it was them, meaning the
      victim’s family, that caused the accident.

            An autopsy, Your Honor, was conducted at the Memorial
      Medical Center in Conemaugh by Dr. Mo Zhicheng and Dr.
      Manjunath Heggere, would indicate, Your Honor, that the victim
      died from a single shotgun wound to the right inferior scapula
      region, also described as her right lateral mid back. It was a
      fatal wound causing injuries to her visceral organs including her
      lungs, heart, and liver.    That would be evidence that the
      Commonwealth would present at trial, Your Honor, to which we
      believe would support a conviction for Murder of the First
      Degree.

N.T. (Plea), 8/21/12, at 35–41.

      The    plea   agreement     provided   for   a   “firm   bargain   for   life

imprisonment.” Plea Agreement, 8/21/12, at ¶ 2. The trial court accepted

the plea, which was entered during jury selection, and imposed a sentence

of life in prison without the possibility of parole. Order, 8/21/12. Appellant

did not file a direct appeal.




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       On October 29, 2012, Appellant filed both a purported pro se motion

to withdraw his plea and a pro se PCRA petition. The PCRA court appointed

counsel, who filed an amended petition on April 15, 2013. The trial court

held hearings on January 15, 2014,1 and March 25, 2014, and denied PCRA

relief on August 29, 2014.         Appellant filed a timely notice of appeal, and

both Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:

        I.    Whether the Trial Court properly concluded that appellant
              was provided effective assistance of counsel in entering his
              nolo contendere plea to the charge of Murder in the First
              Degree?

       II.    Whether the trial court properly concluded appellant’s plea
              was not unlawfully induced by either the District Attorney
              or his counsel, and the circumstances make it likely that
              he is innocent of the charge of Murder in the First Degree?

Appellant’s Brief at 3.

       When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Perez, 103 A.3d 344 (Pa. Super. 2014).                 We grant

great deference to the PCRA court’s findings that are supported in the

record, Commonwealth v. Rachak, 62 A.3d 389 (Pa. Super. 2012), and

____________________________________________


1
  Both the Commonwealth and the trial court state the date of the hearing
was January 14, 2014; we utilize the date stated on the transcript in the
certified record, January 15, 2014.



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will not disturb them unless they have no support in the certified record.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014), appeal

denied, 95 A.3d 277 (Pa. 2014).

      In order to obtain collateral relief, a PCRA petitioner must establish by

a preponderance of the evidence that his conviction or sentence resulted

from one or more of the circumstances enumerated in 42 Pa.C.S.

§ 9543(a)(2).       Instantly, Appellant asserted in his PCRA petition the

existence of ineffective assistance of counsel pursuant to 42 Pa.C.S.

§ 9543(a)(2)(ii).    A PCRA petitioner alleging ineffectiveness of his counsel

will be granted relief only if he is able to prove that, “in the circumstances of

[his] particular case,” the truth-determining process was undermined to the

extent “that no reliable adjudication of guilt or innocence could have taken

place.”   42 Pa.C.S. § 9543(a)(2)(ii).   The law presumes that counsel was

effective, Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015),

and it is the petitioner’s burden to prove the contrary. Commonwealth v.

Koehler, 36 A.3d 121, at 132 (Pa. 2012). To plead and prove ineffective

assistance of counsel a petitioner must establish:     (1) that the underlying

issue has arguable merit; (2) counsel’s actions lacked an objective

reasonable basis; and (3) actual prejudice resulted from counsel’s act or

failure to act. Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super.

2013) (en banc). A claim of ineffectiveness will be denied if the petitioner’s

evidence fails to meet any one of these prongs.            Commonwealth v.


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Martin, 5 A.3d 177, 183 (Pa. 2010). We have explained that trial 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).

Moreover, the PCRA court’s credibility determinations, when supported by

the record, are binding on this Court. Commonwealth v. Spotz, 18 A.3d

244, 259 (Pa. 2011).

       We address the issues in tandem.          Appellant contends that trial

counsel2 provided ineffective assistance of counsel in advising him to plead

nolo contendere, maintaining that trial counsel did not advise him that entry

of the plea would result in a life sentence without the possibility of parole.

In conjunction, he maintains that because trial counsel failed to meet with

him and were not prepared for trial, he was forced to accept the plea.

Appellant’s Brief at 6. He asserts that he “couldn’t think straight,” “was an

emotional wreck,” and was distracted and “not really paying attention.” Id.

at 8–10. He suggests that he was induced to plead guilty by promises that

counsel would represent him in a custody matter following entry of the plea.

       We note with disfavor that other than citing case law that refers to

ineffective-assistance-of-counsel standards, Appellant fails to support his

argument with citation to relevant law. The Pennsylvania Rules of Appellate
____________________________________________


2
  Appellant was represented pretrial and during plea proceedings by Thomas
M. Dickey, who practiced law for thirty years, and penalty phase counsel,
David Beyer, who practiced law for sixteen years. N.T. (PCRA), 3/25/14, at
25, 118–119.



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Procedure     require    adequate     development    of   each   issue   raised   with

discussion of pertinent authority.         Commonwealth v. Samuel, 102 A.3d

1001, 1005 (Pa. Super. 2014); Pa.R.A.P. 2119. Nevertheless, we address

Appellant’s issues.

       Allegations of ineffectiveness in connection with the entry of a guilty

plea3 will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea. Commonwealth v.

Wah, 42 A.3d 335, 338 (Pa. Super. 2012). “[T]he law does not require that

[the appellant] 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). Moreover, with regard to the prejudice

prong of the ineffectiveness standard, where an appellant has entered a

guilty plea, he must demonstrate “it is reasonably probable that, but for

counsel’s errors, he would not have pleaded guilty and would have gone to

trial.” Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013)

(citing Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa. Super. 2006)).




____________________________________________


3
  “In terms of its effect upon a case, a plea of nolo contendere is treated the
same as a guilty plea.” Commonwealth v. Kepner, 34 A.3d 162, 166 n.2
(Pa. Super. 2011) (citing Commonwealth v. Lewis, 791 A.2d 1227, 1230
(Pa. Super. 2002)).



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      The PCRA court determined that Appellant’s claims are not supported

in the record and therefore, lack arguable merit.        PCRA Court Opinion,

9/3/14, at 17. We have reviewed the complete record, and we agree.

      Appellant testified at the PCRA hearing that his counsel did not tell him

that a life sentence meant “there was no parole,” and “he wouldn’t have

signed nothing” if he had known that fact.      N.T. (PCRA), 1/15/14, at 54.

Appellant’s assertion that trial counsel did not advise him that entry of the

plea would result in a life sentence without the possibility of parole is belied

by the record.

      At the plea colloquy, Appellant stated that he reviewed the plea

agreement “in its entirety” with his attorney and that he understood it. N.T.

(Plea), 8/21/12, at 4.    Appellant agreed that he reviewed the sentence

recommendations of the plea agreement. Id. at 6. Appellant indicated his

understanding of the plea court’s explanations. Id. at 11. While Appellant

acknowledged taking prescribed medication from his “psych doctor,” he

stated that it did not affect his ability to understand the proceedings. Id.

      When the Commonwealth addressed the court about related matters,

the prosecutor noted that the terms of the plea agreement “ensure[] that

[Appellant] will be incarcerated for the remainder of his natural life.” N.T.

(Plea), 8/21/12, at 43. Appellant did not disagree or offer comment.           Id.

The prosecutor also explained its agreement “to take the death penalty off

the table if [Appellant] entered a guilty plea.”    Id. at 44.   At that point,


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defense counsel stated, “I want to make sure [Appellant] is aware that a life

sentence means without parole.” Id. The plea court asked Appellant, “Do

you understand that, Mr. Gerholt?” Id. Appellant replied, “Yes.” Id. at 45.

      Attorney Dickey testified that there was no indication that Appellant

did not understand “what he was doing.”              N.T. (PCRA), 3/25/14, at 56.

Counsel   testified   that   he   attempted     to   obtain   the   Commonwealth’s

agreement to a plea to third-degree murder, but “[t]hat just wasn’t

happening.”    Id.     Regarding Appellant’s claim that “nobody ever told

[Appellant] he was entering a plea to First Degree Murder,” Attorney Dickey

testified, “That’s simply not true.”    Id.     Attorney Dickey offered extensive

testimony regarding the explanations given to Appellant, and indicated that

Appellant “absolutely” was told that the penalty for first-degree murder was

life imprisonment without parole. Id. at 56–61. He further testified that it

was Appellant’s decision to plead to first-degree murder.               Id. at 61.

Regarding his preparedness for trial, Attorney Dickey testified that he was

“absolutely” prepared to go to trial. N.T. (PCRA), 3/25/14, at 40, 84.

      Attorney Dickey also testified regarding Appellant’s implication, set

forth in issue two, that his counsel made promises about separate legal

matters “for the purpose of inducing him to enter the plea . . . .” Appellant’s

Brief at 13.   PCRA counsel asked Attorney Dickey if he “ever promis[ed

Appellant] that [he] would represent him in some sort of civil action to




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provide title or whatever for these [grave] plots.” 4 N.T. (PCRA), 3/25/14, at

89. Counsel responded:

             Well, not in relation to the plea. What I said to [Appellant]
       was . . . . if you want, I will follow through with you.

                                           * * *

       I was waiting to hear from him.

                                           * * *

       [W]hen we left I told him once he got situated he needed to let
       me know what he wanted me to do with like this property and
       some stuff like that. And I never heard any direction from that.

Id. at 90–91. Attorney Dickey explained that he “was just basically trying to

do that just as a courtesy to him because I had told him. I was basically

sticking to my word that I could do it for him before.”          Id. at 91–92.

Appellant never contacted counsel about these matters. Id. at 91.

       Attorney Beyer’s testimony was similar to that of Attorney Dickey.

Both men agreed that Appellant hoped to get a plea offer to third-degree

murder, but he understood that he ultimately was facing the possibility of a

first-degree murder conviction and the death penalty.             N.T. (PCRA),

3/25/14, at 120–122.         Attorney Beyer explained that Attorney Dickey was

“very specific” with Appellant that “life without parole means life without
____________________________________________


4
   Appellant asserted that he wanted to visit the victim’s grave, he wanted
his children to visit him, and he had a civil matter relating to burial plots. He
implied that he entered a plea in order to gain Attorney Dickey’s
representation on these matters.          N.T. (PCRA), 1/15/14, at 26–28;
Appellant’s Brief at 12.



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parole.”   Id. at 123.   Attorney Beyer testified that during jury selection,

when it was clear that there was no plea offer to third-degree murder, and

the Commonwealth was not “budging” regarding removing the death penalty

from “the table,” Appellant began questioning the viability of a plea to first-

degree murder to avoid the possibility of receiving the death penalty. Id. at

125.    Attorney Beyer indicated that he was “ready to handle the death

penalty phase,” that he had “mitigation experts” hired, and that he had a

“team” assembled and prepared if Appellant was convicted of first-degree

murder. Id. at 126–127. Attorney Beyer also explained that in addition, he

was “very involved in the guilt phase process” as well, reviewing strategies

and evaluating the case.     Id. at 127–128.   When asked about Appellant’s

mental state and understanding of the proceedings and trial preparation,

Attorney Beyer described Appellant as “very cognizant with me, very

understanding. . . . I never, ever felt that he didn’t understand what I was

saying. He asked relevant questions, and he was very tuned in with what

was going on.” Id. at 128.

       Our review of the record compels the conclusion that the PCRA court’s

finding that Appellant’s claim of ineffective assistance of counsel lacks

arguable merit is amply supported.     The PCRA court explained that it did

“not credit the contentions of [Appellant]” and found that they did not have

arguable merit. PCRA Court Opinion, 9/3/14, at 7. Deferring to the PCRA

court’s credibility conclusions as we must, Spotz, 18 A.3d at 259, and


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concluding that its conclusions are supported in the record, Appellant has

failed to prove that his underlying claim has arguable merit. It is clear that

while Appellant initially hoped to plead to third-degree murder, as the

potentiality of the death penalty morphed into reality during jury selection,

Appellant’s focus shifted.5 Appellant is not entitled to relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015



____________________________________________


5
  When asked at the PCRA hearing, if Appellant was “adamant that he didn’t
want to take life in prison, First Degree Murder, and then at jury selection
and the next day” he decided to plead, “[w]hat changed?” Attorney Beyer
explained:

               You know, it’s not uncommon. A defense attorney will see
       it all the time. Once you start to pick a jury they’re realizing at
       that point in time, my opinion anyway, that Third is not an
       option. That I’m really going through with this and maybe what
       my attorneys have been telling me for the past couple of years is
       true and maybe I am looking at the death penalty. I think
       that’s—whenever those realities start setting in that’s when they
       start really weighing their options, and I think that’s what
       happened here in my opinion.

N.T. (PCRA), 3/25/14, at 125–126.



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