J-S58028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ZACHARY BLAIR                           :
                                         :
                    Appellant            :   No. 491 WDA 2018

                  Appeal from the PCRA Order April 2, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0015391-2013


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                        FILED OCTOBER 16, 2018

      Zachary Blair (Appellant) appeals from the order denying his petition

seeking relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546. We affirm.

      The PCRA court summarized the relevant factual and procedural history

of this case as follows:

      On June 23, 2016, [Appellant] appeared before [the trial court] to
      plead guilty pursuant to a negotiated plea agreement. [Appellant]
      was originally charged in three separate cases and the negotiated
      plea agreement resolved all three cases. Only two of the cases
      are germane to this appeal. In one case, [Appellant] was charged
      with criminal homicide. The Commonwealth was seeking a
      conviction for first-degree murder and a sentence of death.
      However, because [Appellant] had previously been convicted of
      homicide, a conviction of third degree murder would have carried
      a mandatory life sentence. The second case charged firearm
      possession which was part of the events giving rise to the
      homicide charge. The firearm charge was originally included in
      the same information as the criminal homicide charge but was
      later severed by [the trial court]. Under the terms of the plea
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     agreement, [Appellant] agreed to plead guilty to one count of
     conspiracy to commit third degree murder and the firearm
     offense. The Commonwealth and [Appellant] both agreed that the
     appropriate disposition of this case was a state prison sentence of
     not less than 15 years nor more than 30 years relative to the
     conspiracy charge. No further penalty was imposed at the
     firearms count.

PCRA Opinion, 7/5/18, at 1-2.

     Appellant did not file post-sentence motions or a direct appeal. On May

23, 2017, Appellant filed a pro se PCRA petition. Counsel was appointed and

filed an amended PCRA petition on September 15, 2017. On September 20,

2017, the PCRA court ordered the Commonwealth to file a written response

to Appellant’s amended PCRA petition. The Commonwealth filed its answer

on November 13, 2017. The PCRA court held a hearing on Appellant’s PCRA

petition on April 2, 2018 and denied Appellant’s petition that same day. On

April 6, 2018, Appellant filed this appeal. Both Appellant and the PCRA court

have complied with Pennsylvania Rule of Appellate Procedure 1925.

     Appellant presents a single issue for our review:

     1. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA
        PETITION SINCE TRIAL COUNSEL THOMAS FARRELL AND
        PENALTY PHASE COUNSEL MICHAEL MACHEN WERE
        INEFFECTIVE FOR CAUSING APPELLANT TO ENTER INTO AN
        INVOLUNTARY,    UNKNOWING     AND    UNINTELLIGENTLY
        ENTERED GUILTY PLEA SINCE APPELLANT NEVER WANTED TO
        PLEAD AND WANTED TO PROCEED TO TRIAL, BUT MR.
        FARRELL TOLD APPELLANT THAT HE WASN’T ABLE TO
        SUCCESSFULLY TRY THE CASE AND PROCEED TO TRIAL
        BEFORE A JURY (AND THEREFORE APPELLANT WAS BETTER
        OFF PLEADING GUILTY) SINCE APPELLANT WAS AFRICAN
        AMERICAN AND THUGGISH LOOKING AND A CAUCASIAN [sic],
        AND AN ALLEGHENY COUNTY JURY COULD NEVER BE
        CONVINCED TO ACQUIT HIM OF THE INSTANT CHARGES,
        BOTH ATTORNEYS TOLD HIM THAT HE COULD HAVE RECEIVED

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         AT LEAST 20 YEARS IF HIS GUN CASE(S) WERE TRANSFERRED
         TO FEDERAL COURT JURISDICTION, AND BOTH ATTORNEYS
         TOLD HIM THAT IF HE PLED ON [JUNE 23, 2016,] THEY WOULD
         ENSURE THAT THE PLEA AND SENTENCE WOULD BE QUICKLY
         WITHDRAWN SINCE A MOTION TO WITHDRAW THE PLEA
         WOULD BE FILED WITHIN 10 DAYS OF THE PLEA, AND IF THE
         TRIAL COURT WASN’T AVAILABLE TO ENTERTAIN THE MOTION
         DURING THAT 10 DAY PERIOD, AN APPEAL WOULD BE FILED
         IN THE SUPERIOR COURT TO HAVE THE PLEA WITHDRAWN.
         MOREOVER, TRIAL COUNSEL FARRELL FAILED TO ACT TO
         WITHDRAW THE PLEA AFTER RECEIVING NOTICE, THE DAY
         AFTER THE PLEA/SENTENCING, THAT APPELLANT WANTED
         THE PLEA WITHDRAWN?

Appellant’s Brief at 3-4.

      Preliminarily, we note that 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) (quotations and citations omitted). “To be entitled to PCRA relief, [an]

appellant must establish, by a preponderance of the evidence, [that] his

conviction or sentence resulted from one or more of the enumerated errors in

42 Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

      Here, Appellant’s claim challenges plea counsel’s effectiveness as it

relates to his guilty plea. In deciding ineffective assistance of counsel claims,

we begin with the presumption that counsel rendered effective assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

that presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,

with prejudice measured by whether there is a reasonable probability that the


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result of the proceeding would have been different.” Id. (citation omitted).

To demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      “Allegations 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.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation

omitted). “Where the defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice was within the

range of competence demanded of attorneys in criminal cases.”                Id.

(quotations and citations omitted).       “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

      With respect to valid guilty pleas, this Court has explained:




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      A valid guilty plea must be knowingly, voluntarily and intelligently
      entered. The Pennsylvania Rules of Criminal Procedure mandate
      that pleas be taken in open court, and require the court to conduct
      an on-the-record colloquy to ascertain whether a defendant is
      aware of his rights and the consequences of his plea. Specifically,
      the court must affirmatively demonstrate the defendant
      understands: (1) the nature of the charges to which he is pleading
      guilty; (2) the factual basis for the plea; (3) his right to trial by
      jury; (4) the presumption of innocence; (5) the permissible ranges
      of sentences and fines possible; and (6) that the court is not
      bound by the terms of the agreement unless the court accepts the
      agreement. This Court will evaluate the adequacy of the plea
      colloquy and the voluntariness of the resulting plea by examining
      the totality of the circumstances surrounding the entry of that
      plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted).

      Appellant argues that his guilty plea was not knowing, voluntary, and

intelligent because plea counsel was ineffective.        Specifically, Appellant

contends that “he wanted to proceed to a jury trial and never wanted to plead

guilty to any of the instant crimes, but that he was manipulated and coerced

into doing so by [t]rial [c]ounsel Thomas Farrell and [p]enalty [p]hase

[c]ounsel Michael Machen. . .” Appellant’s Brief at 14-15. Appellant asserts

that Attorney Farrell and Attorney Machen informed him that if he did not

plead guilty, the prosecutor would transfer Appellant’s firearm charge to

federal court where he would face an additional prison sentence of 25 to 30

years; Attorney Farrell told Appellant that he was not qualified to try the case

before a jury; both attorneys promised Appellant that they would withdraw

the guilty plea within 10 days; and Attorney Farrell warned Appellant that his


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“thuggish” appearance would cause a jury to find him guilty. Id. at 15-17.

The record does not support Appellant’s argument.

      Based upon our review of the certified record, including Appellant’s

written colloquy and the transcripts of his guilty plea and PCRA hearing, we

conclude that Appellant’s guilty plea was knowing, voluntary, and intelligent.

The record reflects that the trial court informed Appellant of the nature of the

charges to which he pled guilty, the factual basis for the plea, his right to trial

by jury, the presumption of innocence, the sentences, and that the court was

accepting the negotiated sentence. N.T., 6/23/16, at 31-60; Explanation of

Defendant’s Rights, 6/23/16, at 1-11.

      During the PCRA hearing, Attorney Farrell acknowledged that he

communicated to Appellant his concerns regarding Appellant’s appearance.

N.T., 4/2/18, at 45.    However, Attorney Farrell explained that he wanted

Appellant to make a good impression during jury selection and discussed with

Appellant ways to soften his appearance for trial. Id. at 45, 57-61. Attorney

Farrell testified that the conversations relating to Appellant’s appearance were

part of trial strategy discussions and not about inducing Appellant to plead

guilty. Likewise, both Attorney Farrell and Attorney Machen testified that they

discussed the threat of federal prosecution with Appellant. Id. at 40-44, 52.

Both attorneys explained that these discussions were to ensure that Appellant

was fully informed of all the risks of proceeding to trial. Id. Both attorneys

denied promising Appellant that they would withdraw his guilty plea. Id. at


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38-39, 52-53. The PCRA court found Attorney Farrell and Attorney Machen’s

testimony credible. PCRA Court Opinion, 7/5/18, at 4.

      Importantly, during the oral colloquy, Appellant indicated that he was

not forced into pleading guilty, and that he was satisfied with counsel’s

representation. Id. at 42-45. Appellant acknowledged that he decided to

exchange his rights, including the right to defend the charges brought against

him, for a favorable sentence of 15 to 30 years of incarceration, where, if

convicted following a jury trial, Appellant would have faced a life sentence or

possibly the death penalty. Id. at 33-36, 40-41. Appellant stated that he

understood the ramifications of pleading guilty and that he was entering his

plea on his own volition. Id. at 44.

      By arguing that plea counsel’s ineffectiveness forced him to plead guilty,

Appellant implies that his responses to the plea colloquies were untruthful. A

defendant who elects to plead guilty “is bound by the statements he makes in

open court while under oath and he may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.”   Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super.

2007) (quotations and citations omitted). “A criminal defendant who elects

to plead guilty has a duty to answer questions truthfully.” Id. Likewise, in

cases where a PCRA court passes on witness credibility, its credibility

determinations should be provided great deference by reviewing courts. See,

e.g., Commonwealth v. (Damon) Jones, 912 A.2d 268, 293 (Pa. 2006);


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Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004) (Opinion

Announcing the Judgment of the Court) (“[W]e are bound by the PCRA court’s

credibility   determinations   where   there   is   record   support   for   those

determinations.”); Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa.

1998) (“Just as with any other credibility determination, where the record

supports the PCRA court’s credibility determinations, those determinations are

binding on this [C]ourt.”). For these reasons, we conclude that the PCRA court

did not err in denying Appellant’s petition seeking post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




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