J-S19013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

RASHAWN FORD

                         Appellant                   No. 1519 EDA 2014


              Appeal from the PCRA Order entered May 5, 2014
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0002891-2011


BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 15, 2015

      Appellant, Rashawn Ford, appeals pro se from the May 5, 2014 order

issued in the Court of Common Pleas of Philadelphia County, dismissing his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

      The PCRA court provided the following procedural and factual

background:

      This case centers on a shooting that occurred around 3:40 a.m.
      on February 19, 2011, on the 1200 block of North 7th Street in
      the city and county of Philadelphia, Pennsylvania. Appellant was
      the shooter; Rufus Bailey was the shooting victim. On January
      24, 2012, Appellant entered into a negotiated guilty plea to
      charges of Aggravated Assault (18 Pa.C.S. § 2702), Criminal
      Conspiracy (18 Pa.C.S. § 903), and Firearms not to be Carried
      without a License (18 Pa.C.S. § 6106).          In exchange for
      Appellant’s guilty pleas, the Commonwealth agreed to nolle pros
      the charges of Attempted Murder, violation of Section 6108 of
      the Firearms Act, Possession of an Instrument of Crime, Simple
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     Assault, and Recklessly Endangering Another Person.          The
     Commonwealth also agreed to “demandatorize” the case – which
     otherwise required a mandatory minimum of five (5) to ten (10)
     years’ incarceration – and to recommend a sentence of four (4)
     to twelve (12) years’ incarceration. (N.T. 1/24/12, pp. 4-5). At
     the plea hearing, the assistant district attorney read the
     following facts into the record:

       [A]t approximately 2:30 a.m., there was a disturbance
       inside Club Samba. . . . [Appellant] was removed from the
       club by a security guard named Justin Love and he was
       overheard stating that he would be back with a gun. At
       approximately 3:40 [a.m.] when the club was emptying
       out, that same security guard, Mr. Love, saw [Appellant]
       pacing back and forth at the intersection of 7th and Girard.
       Mr. Love kept an eye on him, saw him walk north on 7th,
       approach the victim, Mr. Bailey, and fire a shot from a
       revolver. . . .

       After [Appellant] fired the shots from the revolver, he got
       into a gold colored Grand Marquis and fled. Officers Cappa
       and Bender who were right in the area of 7th and Girard
       got a flash information from the security guard, Mr. Love,
       about [Appellant] and the Grand Marquis. Just a few
       minutes later, Officers Cross and Wingrove stopped the
       Grand Marquis at Girard [and] Frankford. [Appellant] was
       the driver. There was a female passenger in the front and
       . . . [co-]defendant Fletcher . . . leaning back and forth
       toward his feet and making a kicking motion.

       All the passengers were taken out of the car. When
       Fletcher was taken out of the car, he dropped what was a
       scope, an attachment for a firearm, underneath the car
       and that was recovered.            [F]rom the area [of] Mr.
       Fletcher’s feet . . . [officers] recovered a silver revolver . .
       . that did have an attachment . . . the scope that he kicked
       under the car could be attached to. Mr. Love again being
       the security guard, was taken to the scene and identified
       [Appellant] as the shooter and the vehicle.

       At the same time the victim, Mr. Bailey, was taken to
       Temple Hospital in stable condition. He had a superficial
       laceration to his right flange, no serious internal injuries.
       . . . There was a projectile recovered by the hospital staff

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          that was ballistically [sic] compared to the revolver from
          the vehicle and did match that revolver. Mr. Bailey, upon
          being interviewed, refused to give any information about
          who shot him and denied knowing the defendants. And
          that would be our evidence at trial.

      (N.T., 1/24/12, pp. 13-16).

      When the district attorney finished reciting the facts, this [c]ourt
      asked Appellant whether the facts were “correct in regards to
      [Appellant’s] shooting at Mr. Bailey.” Appellant replied, “Yes.”
      (Id., p. 16).

      Pursuant to the negotiated plea agreement, this [c]ourt
      sentenced Appellant to concurrent terms of four (4) to twelve
      (12) years’ incarceration on the charge of Aggravated Assault,
      and one (1) to two (2) years’ incarceration on the charge of
      Firearms not to be Carried without a License. This [c]ourt
      imposed no penalty on the charge of Criminal Conspiracy. (N.T.,
      1/24/12, pp. 20-21).

      Appellant filed no direct appeal, but on April 12, 2012, Appellant
      filed a pro se petition under the [PCRA]. In the standardized
      PCRA form provided to Appellant by the Pennsylvania
      Department of Corrections, Appellant claimed that his counsel
      rendered ineffective assistance by failing to call “defense
      witness(s).” Appellant also claimed “there was no ‘victim’ at any
      legal proceedings” and “no discovery provided to defendant.” In
      the section of the form instructing Appellant to list witnesses
      who will testify in support of his petition, and to briefly
      summarize their testimony, Appellant wrote, “to be called at
      hearing.”       On    June    13,   2012,     Appellant   filed  a
      “Supplemental/Amended” petition alleging, again, that his trial
      counsel was ineffective. Once again, Appellant failed to name
      any witnesses whom his prior counsel failed to call, or shed any
      light on what these witnesses’ testimony would have been.

PCRA Court Rule 1925(a) Opinion, 9/18/14, at 1-3 (footnotes omitted;

ellipses in original).

      In February 2013, counsel was appointed to represent Appellant in his

PCRA proceedings.        In January 2014, Appellant filed a petition to remove

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counsel and requested a Grazier hearing to obtain permission to proceed

pro se.1 In February 2014, PCRA counsel filed a petition to withdraw and a

“Finley letter.”2 Counsel explained that after communicating with Appellant,

reviewing his PCRA petition, and reviewing the transcript of the plea hearing,

she concluded Appellant “is not eligible for post-conviction relief because his

plea of guilty was knowing and voluntary and he is serving a legal sentence

that does not exceed the maximum statutory penalty for the crimes

charged.” Id. at 4 (quoting Finley Letter, 2/25/14).

       On March 19, 2014, the PCRA court issued a Notice of Dismissal of

Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.      Appellant filed a

response, arguing his petition should not be dismissed because he did not

enter a knowing, intelligent and willing guilty plea, his plea counsel did not

call witnesses, and the victim was not present to testify at the plea hearing.

       The PCRA court conducted a hearing on May 5, 2014 to address

Appellant’s petition, counsel’s Finley letter and petition to withdraw,

Appellant’s request to proceed pro se, and Appellant’s response to the Rule

907 notice. PCRA counsel testified that Appellant never disclosed to her the

identity of any witnesses plea counsel purportedly failed to call to testify.

N.T. Rule 907 Hearing, 5/5/14, at 3-6. Following an on-record colloquy with

____________________________________________


1
    See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
2
    See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).



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PCRA counsel, the PCRA court dismissed Appellant’s petition based on the

Finley letter and the court’s independent review of the record. PCRA Court

Rule 1925(a) Opinion, 9/18/14, at 4. The PCRA court also granted counsel’s

petition to withdraw and advised Appellant of his right to appeal the order

dismissing his petition, either pro se or with independently-retained counsel.

Id.

      On May 16, 2014, Appellant filed a timely pro se notice of appeal. On

July 10, 2014, he filed a statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), raising ten alleged errors that the PCRA court

aptly characterized as “a hodgepodge of boilerplate and overlapping claims

of error, essentially asserting that his guilty pleas were ‘not entered

Knowingly, willingly, [and] Intelligently;’ that he did not receive adequate

assistance of counsel during the plea process; and that Appellant is

‘[i]nnocent of the [s]aid [o]ffen[s]e.’”   PCRA Court Rule 1925(a) Opinion,

9/18/14, at 5. In his brief on appeal, Appellant presents nine issues, which

are similar to those raised in his 1925(b) statement and which we state here

verbatim but have rearranged for ease of disposition:

      1. Was not the Denial of the Post Conviction Relief Act Petition
         an abuse of discretion by the Trial Court?

      2. Was Counsel at Plea and sentencing Ineffective for not
         Defending [Appellant] and seeking that Appellant enter in a
         plead of Guilty.

      3. Does Appellant Meet the Standard under the POST
         CONVICTION COLLATERAL RELIEF ACT, in which the (PCRA)
         should not of been denied?

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       4. Was appellant Coerced into Pleading Guilty in this instant
          case?

       5. Does the Record show that Appellant did not Commit the
          shooting?

       6. Should the Charge of Aggravated assault be VACATED?

       7. Did Appellant enter a Plead of Guilty to Offence(s) That he is
          not guilty of?

       8. Should Appellant be GRANTED a Reduction of time imposed in
          this Case?

       9. Was Prosecutorial Misconduct Conducted by the District
          Attorney in this Case?

Appellant’s Brief at 4.3

       As this Court has recognized:

       Our standard of review of the denial of a PCRA petition is limited
       to examining whether the court’s determination is supported by
____________________________________________


3
  Despite identifying nine issues in his Statement of Questions Presented,
Appellant has not divided the Argument section of his brief into sections
corresponding to those issues, in violation of Pa.R.A.P. 2119. Instead, he
presents one narrative spanning three pages in which he contends he is
innocent, he did not enter a knowing guilty plea, and he should be entitled
to discovery because he should not have entered a guilty plea. Appellant’s
Brief at 8-10. We recognize Appellant is proceeding pro se. “[A]lthough this
Court is willing to construe liberally materials filed by a pro se litigant, pro se
status generally confers no special benefit upon an appellant. Accordingly, a
pro se litigant must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court.” Commonwealth v. Freeland, 106 A.3d
768, 776-77 (Pa. Super. 2014) (citations omitted). While this Court may
quash or dismiss an appeal for failure to conform with our appellate rules of
procedure, see Pa.R.A.P. 2101, in the interests of justice we shall address
Appellant’s arguments that can reasonably be discerned from his brief and
reply brief despite the deficiencies.




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       the evidence of record and free of legal error. This Court grants
       great deference to the findings of the PCRA court if the record
       contains any support for those findings. Further, the PCRA
       court’s credibility determinations are binding on this Court,
       where there is record support for those determinations.

Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (quoting

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)

(additional citations omitted)).4 As explained in Timchak:

       To prevail on a claim alleging counsel’s ineffectiveness under the
       PCRA, Appellant must demonstrate (1) that the underlying claim
       is of arguable merit; (2) that counsel’s course of conduct was
       without a reasonable basis designed to effectuate his client's
       interest; and (3) that he was prejudiced by counsel’s
       ineffectiveness, i.e.[,] there is a reasonable probability that but
       for the act or omission in question the outcome of the
       proceedings would have been different.

       . . . [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.

Id. (citations omitted).         Further, “the 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.”          Id. at 770 (quoting Anderson, 995

A.2d at 1192) (citations and brackets omitted).

____________________________________________


4
  Appellant mistakenly proposes a standard of review for this appeal based
on sufficiency of evidence and suggests the scope of review is the entire trial
record and all evidence actually received. Appellant’s Brief at 3. As
reflected in the quoted excerpt from Timchak, this Court has announced
otherwise for appeals from denial of a PCRA petition.



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       In his first seven issues, Appellant attacks the PCRA court’s denial of

his PCRA petition and challenges its conclusion that Appellant’s guilty plea

was knowingly, voluntarily and willingly entered.          As explained above, we

review the PCRA court’s decision to determine whether it is supported by the

evidence of record and is free of legal error. Timchak, 69 A.3d at 769.

       In his PCRA petition, Appellant complained that his plea counsel was

ineffective for failing to call witnesses.          The PCRA court rejected that

assertion, noting Appellant “failed to identify any purported witness in his

original PCRA petition, . . . in his supplemental/amended petition, . . . in his

response to [the PCRA court’s] Rule 907 Notice, . . . to his PCRA counsel,

and . . . in his 1925(b) Statement.”             PCRA Court Rule 1925(a) Opinion,

9/18/14, at 8.      Because Appellant failed to establish that any witness or

witnesses even existed, he failed to establish the first prong on the five-

prong test applied when reviewing a claim of failure to call a witness. Id.5

       Appellant also argues that his guilty plea was not entered into

knowingly, voluntarily and intelligently.          A review of Appellant’s written
____________________________________________


5
  “When raising a failure to call a potential witness claim, the PCRA petition
satisfies the performance and prejudice requirements [of Strickland v.
Washington, 466 U.S. 668 (1984),] . . . by establishing that: (1) the
witness existed; (2) the witness was available to testify for the defense;
(3) counsel knew of, or should have know of, the existence of the witness;
(4) the witness was willing to testify for the defense; and (5) the absence of
the testimony of the witness was so prejudicial as to have denied the
defendant a fair trials.” PCRA Court Rule 1925(a) Opinion, 9/18/14, at 8
(quoting Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009)
(emphasis added)).



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guilty plea colloquy and the transcript of the guilty plea hearing belies his

assertions.    Appellant admitted he committed the crimes to which he was

pleading guilty and acknowledged he understood the maximum sentence

and fines he was facing, as well as the plea offer and the consequences of

accepting the plea. Guilty Plea Colloquy, 1/24/12, at 1-4; N.T. Guilty Plea

Hearing, 1/24/12, at 5, 9-12, 16.

      An appellant is bound by the statements “made in open court while

under oath, and he may not now assert[] grounds for withdrawing the plea

which contradict the statements.” Commonwealth v. Willis, 68 A.3d 997,

1009 (Pa. Super. 2013) (citation omitted).        “The longstanding 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.”    Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super.

2007) (quotations and citations omitted).

      The PCRA court concluded Appellant both failed to support his PCRA

petition by identifying any purported witnesses and entered into his plea

knowingly, intelligently and voluntarily. The record supports those findings.

Not only did Appellant fail to identify any witnesses or prove their existence,

he also failed to offer any purpose for calling witnesses at the guilty plea

hearing during which he knowingly, intelligently and voluntarily admitted to

committing the acts with which he was charged.         Appellant’s first seven

issues fail for lack of merit.


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      In his eighth issue, Appellant suggests he should be granted a

reduction of time imposed.     Appellant does not address this issue in the

argument section of his brief.    Therefore, the issue is waived.     Wirth v.

Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (quoting Commonwealth

v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails

to provide any discussion of a claim with citation to relevant authority or

fails to develop the issue in any other meaningful fashion capable of review,

that claim is waived. It is not the obligation of [an appellate court . . . ] to

formulate [a]ppellant's arguments for him.”)).          Even if not waived,

Appellant’s sentencing claim has no support in the record.       Appellant was

facing up to 47 years in prison and $65,000 in fines based on the charges

brought against him. By accepting responsibility for his actions, a fact noted

by the trial court at the plea hearing, N.T. Guilty Plea Hearing, 1/24/12, at

20, Appellant instead was given a “demandatorized” sentence of four to

twelve years in prison on the aggravated assault conviction and a concurrent

sentence of one to two years on the firearms conviction.         No additional

sentence was imposed for the criminal conspiracy conviction.        Appellant’s

sentencing issue is completely devoid of merit.

      In his ninth issue, Appellant alleges prosecutorial misconduct.     Once

again, Appellant identifies an issue but fails to address it in the argument

section of his brief. Therefore, Appellant’s ninth issue is waived. Wirth, 95

A.3d at 837.


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     We conclude that the PCRA court’s dismissal of Appellant’s PCRA

petition is supported by the record and free of legal error.   Therefore, we

affirm the May 5, 2014 order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2015




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