J-S59001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                         Appellee         :
                                          :
             v.                           :
                                          :
RAUL PACHECO,                             :
                                          :
                         Appellant        :     No. 726 EDA 2013


            Appeal from the PCRA Order Entered February 5, 2013,
            In the Court of Common Pleas of Northampton County,
              Criminal Division, at No. CP-48-CR-0003795-2011.


BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER,* J.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 10, 2015

       Appellant, Raul Pacheco, appeals pro se from the order denying his

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

42 Pa.C.S. §§ 9541-9546. We affirm.

       We summarize the procedural history of this case as follows. 1      On

January 26, 2012, Appellant pled guilty to one count of attempted burglary.

On March 30, 2012, the trial court sentenced Appellant to a term of

incarceration of three to ten years, followed by a term of probation of five



*
    Retired Senior Judge assigned to the Superior Court.
1
   For an exhaustive recitation of the factual and procedural history of this
matter, we direct the reader to pages two through twenty-two of the PCRA
court’s opinion of May 16, 2013. Although the PCRA court’s opinion includes
facts pertaining to multiple lower court docket numbers, only the matter at
docket number CP-48-CR-0003795-2011 is the subject of this appeal.
J-S59001-14



years. On May 18, 2012, the trial court further sentenced Appellant to pay

restitution in the amount of $26,751.54.    Appellant did not file a direct

appeal.

      On October 18, 2012, Appellant filed, pro se, the instant PCRA

petition.   On October 20, 2012, the PCRA court appointed counsel.

Thereafter, PCRA counsel filed a Turner/Finley letter.2 On January 7, 2013,

pursuant to Pa.R.Crim.P. 907, the PCRA court issued notice of its intent to

dismiss Appellant’s PCRA petition in twenty days.     In an order entered

February 5, 2013, the PCRA court denied Appellant’s PCRA petition and

granted appointed counsel’s request to withdraw.         Subsequently, on

February 6, 2013, the PCRA court received from Appellant a pro se “Letter in

Response,” dated February 4, 2013, attempting to address the PCRA court’s

notice of intent to dismiss.   Also on February 6, 2013, the PCRA court

entered an order denying Appellant’s pro se “Letter in Response.”       This

timely appeal followed.

      Appellant presents in his pro se brief the following issues for our

review, which we reproduce verbatim:

      a) WHETHER COUNSELS NO MERIT LETTER MUST BE REVIEWED
      UNDER THE SIXTH AMENDMENT RIGHT TO EFFECTIVE PCRA
      COUNSEL AS RULE 904 IS AN INDEPENDENT STATE LAW
      GROUND, IN ADDITION PLEA COUNSEL PROVIDED INEFFECTIVE
      ASSISTANCE OF COUNSEL BY INDUCING A PLEA WHICH WAS


2
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

                                     -2-
J-S59001-14



       NOT KNOWING OR INTELLIGENT AND IS DEVOID OF ITS
       VOLUNTARY CHARACTER AS A MATTER OF LAW.

       b) WHETHER PLEA COUNSEL UNLAWFULLY INDUCED THE PLEA
       ON ILL ADVISE THE COURT WOULD IMPOSE CONCURRENT
       SENTENCES AND THE JUDGE DID NOT EXPLAIN THE FULL
       RAMIFICATION IT COULD IMPOSE A CONSECUTIVE SENTENCE.

       c) WHETHER COUNSEL ILL ADVISED THE APPELLANT TO ENTER
       A PLEA WHEN NO FACTUAL BASIS EXISTED FOR THE
       SUFFICIENCY OF ATTEMPTED BURGLARY.

Appellant’s Brief at 2.

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).        The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

       In order to succeed on a claim of ineffective assistance of counsel, an

appellant must demonstrate (1) that the underlying claim is of arguable

merit; (2) that counsel’s performance lacked a reasonable basis; and (3)

that   the   ineffectiveness   of   counsel    caused   the   appellant   prejudice.

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).                     We have

explained that trial counsel cannot be deemed ineffective for failing to




                                         -3-
J-S59001-14



pursue a meritless claim.    Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc). Moreover, with regard to the second prong,

we have reiterated that trial counsel’s approach must be “so unreasonable

that no competent lawyer would have chosen it.”           Commonwealth v.

Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000) (quoting Commonwealth

v. Miller, 431 A.2d 233 (Pa. 1981)).

      Our Supreme Court has long defined “reasonableness” as follows:

             Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.        Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial
      counsel’s decision had any reasonable basis.

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

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

      In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”   Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that an appellant has failed to meet the prejudice prong of

                                       -4-
J-S59001-14



an ineffective assistance of counsel claim, the claim may be disposed of on

that basis alone, without a determination of whether the first two prongs

have been met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.

2005).

       It is presumed that the petitioner’s counsel was effective, unless the

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177     (Pa. 1999).       We   are   bound by the         PCRA   court’s credibility

determinations     where    there     is   support   for   them    in   the    record.

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

       Furthermore, claims of ineffective assistance of counsel are not self-

proving.      Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).

“[A] post-conviction petitioner must, at a minimum, present argumentation

relative to each layer of ineffective assistance, on all three prongs of the

ineffectiveness standard….”      Commonwealth v. D’Amato, 856 A.2d 806,

812    (Pa.    2004).   “[A]n    underdeveloped       argument,     which     fails   to

meaningfully discuss and apply the standard governing the review of

ineffectiveness claims, simply does not satisfy Appellant’s burden of

establishing that he is entitled to relief.” Commonwealth v. Bracey, 795

A.2d 935, 940 n.4 (Pa. 2001).




                                           -5-
J-S59001-14



      We have reviewed the briefs of the parties, the relevant law, the

certified record before us on appeal, and the thorough opinion of the PCRA

court dated May 16, 2013. We conclude that each of the issues presented

by Appellant lacks merit and the PCRA court’s well-crafted opinion

adequately addresses Appellant’s claims on appeal. Accordingly, we affirm

on the basis of the PCRA court’s opinion and adopt its reasoning as our own.

The parties are directed to attach a copy of that opinion in the event of

further proceedings in this matter.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




                                      -6-
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              COMMONWEALTH OF PENNSYlVANIA                    No.: C-4S-CIR-3195-2011
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                             PENNSYLVANIA RULE OF APPELLATE PROCEDURE
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                                        1925(a) STATEMENT

                      AND NOW, this 16th day of May, 2013, the Court issues the following

             statement:

                      Following guilty pleas and sentencing on charges of attempted

             burglary in two related cases, Defendant Raul Pacheco ("Pacheco") filed a

             Petition for Post Conviction Collateral Relief pursuant to the Post Conviction

             Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et seq., which this Court denied.

             Pacheco then filed a timely Notice of Appeal to the Superior Court of

             Pennsylvania. On April 1, 2013, pursuant to our request under Pa.R.A.P.

             1925(b), we received Pacheco's Concise Statement of Matters Complairied of

             on Appeal. For the reasons set forth below, we respectfully suggest that

             Pacheco's appeal lacks merit and should be dismissed.




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                                                BACKGROUND
                       Although Pacheco's PCRA Petition was filed only in the instant matter,

               he was sentenced on charges in two related cases, and the issues relevant

               to the PCRA determination depend on facts from both cases. Accordingly,

               the Court will discuss the factual background for both.

                       The Criminal Conduct

                       On May 19, 2011, there was a burglary at the home of Scott and

              Natalie Arnold at 323 Prospect Avenue in Bethlehem, Pennsylvania. See Aff.

              of Det. Bradford Jones, Bethlehem Police Dep't, Commonwealth v. Pacheco,

              C-48-CR-3795-2011 (C.P. Northampton Co. Oct. 25, 2011) ("Jones Aff.")

              4l~   2-3. The burglary occurred while the Arnolds were at work. See id. 'll 4.

              The burglar forced entry to the home from the back door and stole a

              significant amount of jewelry. See id. In a second burglary at the home on

              July 11, 2011, the burglar stole a BB gun and a green mountain bike. See

              id'l]6.

                       On July 4, 2011, there was a burglary at the home of Joseph Koch of

              955 Jeter Avenue in Bethlehem. See id.      ~   5. The burglary occurred while

              Koch was at work. See id. The burglar forced entry by breaking a window

              at the back of the house and stole numerous items, including jewelry, rare

              coins, and binoculars. See id. At the time of the burglary, Koch's neighbor

              saw a white male with a tattoo on his forearm riding a bicycle in Koch's

              driveway. See id.


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b




                      On the morning of August 8, 2011, officers from the Fountain Hill

              Police Department responded to a burglar alarm at the home of Paul and

              Sharon Kipila at 1116 Seneca Street in Bethlehem. See id.          ~   8. The

              attempted burglary occurred while the Kipilas were at work. See id. The

              burglar forced entry at the back of the house. See id. However, the Kipilas

              determined that nothing was missing. See id. The officers surmised that

             the burglar had fled when the alarm sounded. See id.

                      Later in the morning of August 8, 2011, a man attempted to burglarize

             the home of Nancy Arnold at 961 Moravia Street in Bethlehem, about half a

             mile from the Kipilas' house. See Aff. of Investigator Christopher Leidy,

             Lower Saucon Police Dep't, Commonwealth v. Pacheco, C-48-CR-2975-2011

             (Aug. 15,2011) ("Leidy Aff.")    ~~   1-2; Jones Aff.   ~   7; Notes of Testimony,

             Commonwealth v. Pacheco, OTN No. T080000-4, 2975-2011 (C.P.

             Northampton Co. Sept. 22, 2011) ("N.T. Sept. 22, 2011") at 19. Nancy

             Arnold heard her doorbell ring three times but did not answer it. See N.T.

             Sept. 22, 2011 at 4-5. Shortly thereafter, she heard glass break. See id. at

             5. She entered her kitchen and saw a man breaking the window. See id. at

             6. Investigator Christopher Leidy of the Lower Saucon Police Department

             and other officers responded to Nancy Arnold's 911 call. See N.T. Sept. 22,

             2011 at 19-20. Nancy Arnold told the police that the man who had broken

             her window was a medium-skinned man, possibly Hispanic, in his forties,

             with no facial hair, and that he had been wearing a dark blue hat and a tan


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"
              shirt with the sleeves rolled up. See Leidy Aff. 'fl 3. She said that when she

              confronted him, he rode away on a blue-gray bicycle. See id. 'Il 4.

                       The Police Investigations

                       Nancy Arnold's neighbor had made a surveillance video of the man

             who had broken her window, and Nancy Arnold confirmed that the man in

             the video was the man she had seen. See Leidy Aff. '!I'll 5-6. The Lower

             Saucon Police Department publicized a photograph of the suspect taken from

             the neighbor's surveillance video. See Leidy Aff. '11 8. In the photograph,

             the suspect, a white male, was wearing a cream-colored, short-sleeved,

             button-down shirt and a black baseball cap with blue writing on the front.

             See Jones Aff.          'II 7. He was pushing a green mountain bike. See id. A
             tattoo was visible on his forearm. See id. Detective Bradford Jones of the

             Bethlehem Police Department saw the photograph and connected it with the

             green mountain bike that Scott Arnold had reported stolen. See Jones Aff.

             '11   7. Scott Arnold later positively identified the green mountain bike in the

             photograph as his. See id. '11 8.

                      Video from security cameras at the Republican Club near the Kipilas'

            house showed a white male wearing a cream-colored, Short-sleeved, button-

            down shirt and a black baseball cap with blue writing on the front, pushing a

            green mountain bike. See id. '11 9. According to the time stamp on the

            video, at 10:44 a.m., the man stowed the mountain bike at the back of the

            Republican Club, approached the Kipilas' house, and checked the perimeter.


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,.

              See id. At 10:46 a.m., he moved to the back of the Kipilas' house. At 10:49

              a.m., he fled the house, returned to the Republican Club, retrieved the green

              mountain bike, and rode away. See id. The Kipilas' security company

              received an alarm from the back door of the Kipilas' home at 10:49 a.m.

              See Jones Aff.          ~   10.

                      After publicizing the photograph of the burglary suspect, Investigator

              Leidy received an anonymous tip that the man in the photograph lived in an

              apartment at 1535 E. 9th Street in Bethlehem and that the green mountain

              bike in the photograph was at the apartment. See Leidy Aff. 'fl 9.

              Investigator Leidy went to the address and met a man who told him that the

              burglary suspect was his mother's boyfriend. See id. 'fl 11. The mother told

              him that her boyfriend was Pacheco. See Leidy Aff.     ~   13. Outside the

              apartment, Leidy found the green mountain bike and the black baseball cap.

              See id.    'fl 12. Scott Arnold confirmed that the green mountain bike was his.
              See Jones Aff. 1111.

                      After obtaining search warrants, Detective Jones and Investigator

              Leidy searched Pacheco's apartment and recovered numerous stolen items,

              including a black bag filled with jewelry, Scott Arnold's BB gun, and a pair of

              binoculars and a rare coin belonging to Koch. See Jones Aff.     ~1111-12.   On

             August 18, 2011, Pacheco was arrested. See Jones Aff. 1!J13. At the time of

              his arrest, he was riding a bicycle and wearing a cream-colored, short-

             sleeved, button-down shirt. See id.


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..
                       Docket Number 2975-2011

                       On October 13, 2011, Pacheco was charged in connection with the

              August 8, 2011 window-smashing incident that had occurred at Nancy

              Arnold's home at 961 Moravia Street. See Criminal Information,

              Commonwealth v. Pacheco, C-48-CR-2975-2011 at 1 (C.P. Northampton Co.

              Oct. 13, 2011). He was charged with one count of criminal attempt to

              commit burglary under 18 Pa.C.S.A. §§ 901(a) and 3502(a), one count of

              criminal trespass under 18 Pa.C.S.A. § 3503(a)(1)(ii), and one count of

              criminal mischief under 18 Pa.C.S.A. § 3304(a)(5). The charges under

              Docket Number 2975-2011 involved only the August 8, 2011 incident at

              Nancy Arnold's house. See id.

                      On September 22, 2011, a preliminary hearing in Docket Number

              2975-2011 was held before Magisterial District Judge David W. Tidd. See

              N.T. Sept. 22, 2011. Nancy Arnold testified that she had seen the burglar at

              her home clearly. She said, "I saw him banging on the glass breaking it. I

              went face-to-face with him." Id. She said she was approximately six to

              twelve inches from the man and looked directly into his face for

              approximately ten seconds. See id. at 10-13. She said that after he fled,

              she went to her dining room window and watched him ride away on a blue

              bicycle. See id. at 5-6, 13. She pOinted to Pacheco in the courtroom and

              identified him as the man she had seen breaking her window. See id. at 5.




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                 Pacheco was represented by Michael P. Corcoran, Esquire, who cross-

         examined Nancy Arnold and Investigator Leidy. See id. at 6, 17. Attorney

         Corcoran elicited from Nancy Arnold that she recalled Pacheco as having

         facial hair, which contradicted the description she had given police on the

         day of the incident. See id. at 16. District Judge Tidd found that the

         Commonwealth had met its burden of proof to establish a prima facie case,

         and he bound the charges over for trial. See id. at 16, 21-22.

                 On January 3, 2012, Pacheco pled guilty to one count of attempted

        burglary in connection with the August 8, 2011 incident at Nancy Arnold's

        house. See Notes of Testimony, Commonwealth v. Pacheco, C-48-CR-2975-

        2011 (C.P. Northampton Co. Jan. 3, 2012) ("N.T. Jan. 3, 2012"). Pacheco

        and his counsel, Attorney Corcoran, executed a written guilty plea statement

        and engaged in a verbal guilty plea colloquy with the Court in which Pacheco

        acknowledged that he had been informed, among other things, (1) that the

        maximum sentence for the charge to which he was pleading guilty was

        twenty years in prison and a $25,000 fine; (2) that the Court was not bound

        by the terms of any plea agreement he might have negotiated with the

        Commonwealth; (3) that he was waiving any right to file pretrial motions to

        challenge the Commonwealth's evidence; (4) that even after his guilty plea

        was accepted by the Court, he would have a right to file a motion to

        withdraw his guilty at any time prior to sentencing; (5) that if he wished to

        move    to~ withdraw     his plea after sentencing on the grounds that it was


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         involuntary or that counsel had been ineffective, any such motion would

         have to be filed within ten (10) days of sentencing; and (6) that if the Court

         did not allow him to withdraw his plea, he would be entitled to appeal the

         Court's decision. See Guilty Plea Statement (Colloquy), Commonwealth v.

         Pacheco, C-48-CR-2975-2011 (C.P. Northampton Co. Jan. 3, 2012)("Guilty

         Plea Statement 2975"), Nos. 27, 28, 30, 32, 33, 34, 35; N.T. Jan. 3, 2012 at

         2-14.

                 The Court explained to Pacheco that given his prior record score and

         the offense gravity score, a standard-range sentence could be up to fifty-two

         months as a minimum and that an aggravated sentence could be up to

         sixty-one months as a minimum. See N.T. Jan. 3, 2012 at 3. Pacheco

         acknowledged that he was pleading guilty of his own free will and had not

         been threatened or coerced by anyone. See Guilty Plea Statement 2975-

         2011, Nos. 37-41. He agreed that the Commonwealth's recitation of the

         facts was correct. See N.T. Jan. 3, 2012 at 13. He acknowledged that he

         was satisfied with the services of his attorney. See Guilty Plea Statement

         2975-2011, Nos. 42-45. He acknowledged that he had pled guilty in front of

         a judge in the past. See N.T. Jan. 3, 2012 at 10. The Court accepted

         Pacheco's plea, ordered a presentence investigation, and deferred

         sentenCing to March 9, 2012. See id. at 14.




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                  Case Number 3795-2011

                  On October 25, 2011, under a separate docket number, Pacheco was

          charged in connection with all of the above-described criminal conduct other

          than the August 8, 2011 incident at Nancy Arnold's house. See Criminal

          Complaint, Commonwealth v. Pacheco, C-48-CR-3795-2011 (C.P.

          Northampton Co. Oct. 25, 2011) ("Criminal Complaint 3795"). In connection

         with his May 19, 2011 theft of jewelry from the home of Scott and Natalie

         Arnold at 323 Prospect Avenue, Pacheco was charged with one count of

         burglary under 18 Pa.C.S.A. § 3502(a), one count of criminal trespass under

          18 Pa.C.S.A. § 3503(a)(1)(ii), one count of theft by unlawful taking under

         18 Pa.C.S.A. § 3921(a)(1), and one count of receiving stolen property under

         18 Pa.C.S.A. § 3925(a)(1). See id. In connection with Pacheco's July 11,

         2011 theft of the mountain bike and BB gun from the same address, he was

         charged with one count of theft by unlawful taking under 18 Pa.C.S.A.

         § 3921(a)(1) and one count of receiving stolen property under 18 Pa.C.S.A.

         § 3925(a)(1). See id.

                 In connection with his July 4, 2011 theft of coins, jewelry, binoculars,

         and other items from the home of Joseph Koch at 955 Jeter Avenue,

         Pacheco was charged with one count of burglary under 18 Pa.C.S.A. §

         3502(a), one count of criminal trespass under 18 Pa.C.S.A. § 3503(a)(1)(ii),

         one count of theft by unlawful taking under 18 Pa.C.S.A. § 3921(a)(1), and




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                                                  9
          one count of receiving stolen property under 18 Pa.C.S.A. § 3925(a)(1).

          See id.

                  In connection with the August 8, 2011 forced entry of the home of

          Paul and Sharon Kipila at 1116 Seneca Street, Pacheco was charged with

          one count of criminal attempt to commit burglary under 18 Pa.C.S.A.

         § 90l(a) and 3502(a) and one count of criminal trespass under 18 Pa.C.S.A.

         § 3503(a)(1)(ii). See id.

                  A preliminary hearing was scheduled for November 4, 2011, but on

         that day, Pacheco requested and was granted a continuance until November

         23, 2011 in order to permit him to secure legal representation. See Criminal

         Docket Sheet, Commonwealth v, Raul Pacheco, C-48-CR-3795-2011 (C.P.

         Northampton Co. Nov. 4, 2011) ("Docket Sheet 3795"). However, Pacheco

         did not secure legal representation by November 23, 2011, and he was

         therefore unrepresented at the Preliminary Hearing. On November 23,

         2011, the preliminary hearing was held before Magisterial District Judge

         James F. Stocklas, who bound the charges over for trial. See Docket Sheet

         3795 (Nov. 23, 2011).

                 On January 12, 2012, nine days after he had pled guilty to the one

         count of attempted burglary in Case Number 2975-2011 involving Nancy

         Arnold, Pacheco pled guilty to one count of attempted burglary in case

         Number 3795-2011. See Executed Criminal Information in Docket Number

         3795-2011. The guilty plea in Docket Number 3795-2011 related solely to



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                                                10
          the attempted burglary at the home of Paul and Sharon Kipila at 1116

          Seneca Street. See id. At that time, Pacheco was represented by Vivian

          Zumas, Esquire, and he and his counsel executed a written guilty plea

          statement essentially identical to the guilty plea statement Pacheco had

          executed in Case Number 2795-2011. See Guilty Plea Statement

          (Colloquy), Commonwealth v. Pacheco, C-48-CR-3795-2011 (C.P.

          Northampton Co. Jan. 11, 2012) ("Guilty Plea Statement 3795").

                  At the verbal guilty plea colloquy, which occurred on January 26,

          2012, Pacheco's counsel told the Court that Pacheco was involved in two

          other cases, i.e., Docket Number 2795-2011 and an escape case, and that

          Pacheco's guilty plea in Case Number 3975-2011 was "part of the universal

          deal we worked out to settle all three separate cases." Notes of Testimony,

         Commonwealth v. Pacheco, C-48-CR-3795-100 at 2 (C.P. Northampton Co.

         Jan. 26, 2012) ("N.T. Jan. 26, 2012"). Ms. Zumas said that the

         Commonwealth would nolle prosequi the escape case as part of the

         settlement. See id. The Commonwealth agreed with Attorney Zumas's

         characterization of the settlement. See id. at 3. The Court reviewed the

         same questions it had reviewed at Pacheco's guilty plea colloquy in Docket

         Number 2975-2011, and Pacheco gave similar answers. See id. at 4-11.

         The Court reminded Pacheco that the Court was not bound by the terms of

         any plea agreement he had negotiated with the Commonwealth and that the

         maximum sentence for the crime to which he was pleading guilty was twenty



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                                                 11
         years in prison and a $25,000 fine. See id. at 9. Pacheco acknowledged

         that the Commonwealth's recitation of the facts was correct.     See id. at 12.

         The Court accepted Pacheco's guilty plea, ordered a presentence

         investigation, and deferred sentencing to March 9, 2012, stating, "and that

         will be the same time as Mr. Pacheco's sentence on the other burglary that

         he pled guilty to a few weeks ago." Id. at 13.

                 Pacheco completed a statement detailing his post-sentence rights,

         including his rights to challenge his sentence, challenge the validity of his

         guilty plea, and move to withdraw his guilty plea. See Post-Sentencing

         Colloquy--Important Sentence Information, Commonwealth v. Pacheco, C-

         48-CR-3795-2011 (C.P. Northampton Co. Jan. 26, 2012) ("Post-Sentencing

         Statement"). The document was signed by Pacheco and both of his counsel.

         See id.

                 Sentencing

                 At the sentencing hearing on March 9, 2012, the parties informed the

        Court that the plea agreement included an agreed-upon sentence of five to

        ten years, and the Court advised Pacheco that it would not accept the

        agreed-upon sentence. See Notes of Testimony, Commonwealth v. Pacheco,

        C-48-CR-3795-2011 (C.P. Northampton Co. Mar. 9,2012) ("N.T. Mar. 9,

        2012") at 2. The Court postponed the sentencing for another three weeks in

        order to give Pacheco time to consider whether, in light of the Court's




                                               12
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         intentions, he wished to withdraw his guilty pleas or proceed with

         sentencing. See id.

                       THE COURT: They have an agreement of a sentence of 5
                 to 10 years in state prison. I told the attorneys at the time of
                 the guilty plea that I would not accept the agreed upon
                 sentence. I wanted to sentence Mr. Pacheco according to the
                 law and according to his prior criminal record. I informed him of
                 that today that I would not accept the sentencing agreement. I
                 have that right as a judge not to accept a sentencing agreement.

                        Mr. Pacheco is now unsure whether he wishes to retain his
                 guilty plea or if he wants to withdraw his guilty plea and proceed
                 to a jury trial. Mr. McGinley [attorney for the Commonwealth],
                 what is your position?

                        MR. MCGINLEY: I informed Mr. Pacheco that if he is found
                 guilty on these current charges and because of his prior record,
                 which is specifically violent, he potentially would be looking at 50
                 years mandatory on each of those charges and combined that
                 would be 100 years. It would be a life sentence if he were to
                 take this to trial. I put him on notice that according to law that
                 the Court would be seeking mandatories should it proceed to
                 trial.

                        THE COURT: [W]e are giVing Mr. Pacheco three weeks
                until March 30 for him to make a decision on whether he wants
                to retain the two guilty pleas and proceed to sentencing under
                those guilty pleas with me or if he wants to proceed toa jury
                trial in front of me ....

        Id. at 2-3.

                At the sentencing hearing on March 3D, 2012, the Court inquired

        whether Mr. Pacheco had made a decision.

                THE COURT: We were in this matter previously and Mr. Pacheco
                was unsure whether he was continuing with his guilty plea or
                whether he wanted to withdraw the guilty plea and go to trial.
                Ms. Zumas, you're here as well for Mr. Pacheco?

                         MS. ZUMAS: That's correct.

                                                 13
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                          THE COURT: Mr. Corcoran, you're here for Mr. Pacheco?

                           MR.CORCORAN: I am.

                      THE COURT:      And Mike        McGinley is   here for the
                  Commonwealth of Pennsylvania.

                          MR. MCGINLEY: Yes, Judge.

                          THE COURT: Do you have a report for me, Counsel?

                        MR. CORCORAN: Yes. At this point, Your Honor, I did
                  have an opportunity to confer with Mr. Pacheco on Wednesday
                  and Thursday and, at this point in time, he's expressed a desire
                  to continue with sentencing.


                  THE COURT: As I advised you when you entered your pleas of
                  guilty, Mr. Pacheco, you had a right to file your motion to
                  withdraw those pleas. No such motion has been filed. Do you
                  wish your guilty pleas to stand at this point or do you wish to
                  withdraw your guilty pleas and proceed to a trial by jury in both
                  cases?

                  MR. PACHECO: Wish for my plea to stand.

         Notes of Testimony, Commonwealth v. Pacheco, C-48-CR-3795-2011 (C.P.

         Northampton Co. Mar. 30, 2012) ("N.T. Mar. 30, 2012") at 2-3.

                 Attorney Corcoran, Pacheco's counsel in Docket Number 2975-2011,

         asked the Court to consider imposing the sentences in the two cases

         concurrently. See id. at 9. Attorney Corcoran's request placed Pacheco on

         notice that the Court might choose to impose the two sentences

         consecutively.

                      Mr. CORCORAN: .... We're standing here today and we
                 understand, Your Honor, that you have the last say with respect
                 to sentencing, Mr. Pacheco understands that, but I would


Circulated 01/26/2015 11:04 AM
                                                 14
                  respectfully ask Your Honor to consider imposing a term of
                  incarceration or sentence that's close to what defense counsel
                  and the Commonwealth reached in this case which was 5 to 10
                  years. I would further ask that whatever sentence Your Honor
                  imposes that they run concurrently, both the case that Ms.
                  Zumas is handling and the one that I'm handling.

         Id. at 9.

                  On the charge of criminal attempt to commit burglary in Docket

         Number 2975-2011, the Court sentenced Pacheco to a term of imprisonment

         in a state correctional institution for a minimum period of four years to a

         maximum period of ten years, to pay the costs of prosecution, to serve a

         consecutive term of five years of probation, and to pay restitution to Nancy

         Arnold in the amount of $380. See id. at 22. On the charge of criminal

         attempt to commit burglary in Docket Number 3795-2011, the Court

         sentenced Pacheco to serve a term of imprisonment in a state correctional

         institution for a minimum period of three years to a maximum period of ten

         years and to serve a consecutive term of five years of probation. See id. at

         22-23. The Court ordered the sentences of imprisonment and parole to run

         consecutive to each other and the sentences of probation to run consecutive

         to each other and consecutive to the sentences of imprisonment and parole.

         See id. at 23. Thus, Pacheco's total sentence was a minimum period of

         seven years to a maximum period of twenty years followed by a consecutive

        term of ten years of probation. See id. l



        10n May 22, 2012, upon agreement of the parties and at the Commonwealth's
        request, an Order was entered in Docket Number 3795-2011 amending the


Circulated 01/26/2015 11:04 AM
                                                15
                 In explaining the sentence to Pacheco, the Court pOinted out that the

         Commonwealth had already given Pacheco a significant benefit by removing

         numerous other crimes from his plea agreement. See id. at 23. The Court

         stated that although Pacheco had accepted responsibility for his crimes, had

         recently stopped abusing substances, and had shown remorse, there were

         many factors weighing against him, including his extensive prior criminal

         record dating back to 1977 involving multiple felony convictions, the fact

         that he had previously served decades in prison and had not been

         rehabilitated, his lack of a positive family support system, and his weak

         employment record. See id. at 20-21. The Court noted that Pacheco had a

         prior record score of R-FEL, which meant he was a repeat felony offender,

        i.e., that he had six convictions on felonies of the first or second degree,
        which, in his case, included armed robbery, aggravated assault, indecent

        sexual assault, forgery, theft, and burglary. See id. at 17. The Court

        pOinted out that, as an adult, Pacheco had been convicted on at least twenty

        different occasions. The Court stated: "You are, indeed, a career criminal."

        Id. at 21.

                 Attorney Corcoran told the Court that Pacheco had previously

        completed a statement informing him of his post-sentence rights and said, "I

        can review them with him again." Id. at 24. The Court asked, "Mr. Pacheco,

        do you recall signing a document which set forth your rights that you have

        sentence to reflect a restitution amount of $26,751.54. See Commonwealth v.
        Pacheco, C-48-CR-3795-2011 (C.P. Northampton Co. May 18, 2012).

                                               16
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          post-sentence regarding any challenge to my sentence or appealing my

         sentence to the Superior Court?" Id. at 24. Pacheco answered, "I believe I

         do." Id. Pacheco took no direct appeal from his judgment of sentence.

                  The PCRA Petition

                  On October 18, 2012, Pacheco filed a PCRA Petition in Docket Number

         3795-2011, alleging that (1) a constitutional violation had so undermined

         the truth-determining process that no reliable adjudication of guilt or

         innocence could have taken place; (2) ineffective assistance of counsel had

         so undermined the truth-determining process that no reliable adjudication of

         guilt or innocence could have taken place; and (3) his guilty plea had been

         unlawfully induced. See PCRA Petition, Commonwealth v. Pacheco, C-48-

         CR-3795-2011 at 2 (C.P. Northampton Co. Oct. 18, 2012) ("PCRA Petition").

                  Pacheco asserted the following in support of his claims: (1) counsel

         did not spend adequate time with him; (2) he was not represented by

         counsel at the preliminary hearing and was denied the opportunity to

         postpone the proceeding to obtain counsel; (3) the Commonwealth's

         evidence was insufficient to convict him of attempted burglary; (4) his

         counsel had inappropriately influenced him to plead guilty by advising him

         that the Court would run his two sentences concurrently; (5) the sentencing

        judge did not explain the difference between consecutive and concurrent

         sentences and did not tell him that the sentences could be made

         consecutive; (6) his plea was not knowing and voluntary, because he was


                                                 17
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         not apprised of the maximum punishment possible; (7) counsel did not

         object to the sentence or explain his post-sentencing rights to him; and

         (8) had he not been "deluded by counsel's urging," he would not have pled

         guilty. PCRA Petition at 3. Pacheco sought an evidentiary hearing,

         revocation of his conviction and sentence, and transcripts of the preliminary

         hearing, relevant record, and sentenCing colloquy. See id. at 5-7.

                 On October 19, 2012, the Court appointed Alex J. Karam, Jr., Esquire

         as PCRA counsel. See Commonwealth v. Pacheco, C-48-CR-3795-2000 (C.P.

         Northampton Co. Oct. 19, 2012). Although the PCRA Petition had been filed

         only under Docket Number 3795-2011, because the cases were interrelated,

         the Court apPointed Attorney Karam under both Docket Number 3795-2011

         and 2795-2011. See id.

                 On October 24, 2012, Attorney Karam submitted a four-page no-merit

         letter in which he stated that he had reviewed the files in the two criminal

        cases, including the Criminal Informations signed by Pacheco, the PSI

        Report, the guilty plea transcripts of January 3, 2012 and January 26, 2012,

        the written Guilty Plea Colloquies signed by Pacheco, and the Post-

        Sentencing Rights form signed by Pacheco. See Letter of Alexander J.

        Karam, Jr., Esq. at 2 (Oct. 24,2012) ("No-Merit Letter"). He concluded that

        Pacheco's guilty pleas were knowing and voluntary; that he had admitted his

        guilt; that he had not been coerced in any way; that he had acknowledged in

        his guilty plea statements that pleading guilty waived his rights to challenge


                                               18
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         his lack of representation at the preliminary hearing and the

         Commonwealth's prima facie case; that he had admitted that he was

         satisfied with his attorneys' services; that the evidence against him was

         overwhelming and that his attorneys' recommendations to plead guilty were

         therefore in his best interests; that he was aware that the Court was not

         bound by the terms of his plea agreement; that he was aware that there was

         a maximum prison term of twenty years under each charge to which he had

         pled guilty; that, given his lengthy criminal history, it was implausible that

         he was not aware that the Court could impose consecutive sentences; and

        that there was no basis on which to challenge his sentences, since they were

        in the standard ranges and the Court had discretion to make the sentences

        consecutive. See id. at 1-3. In the letter, Attorney Karam requested that he

        be allowed to withdraw as PCRA counsel. See id. at 3.

                 On October 29, 2012, Pacheco wrote a response to the No-Merit Letter

        and sent a copy to the Court. See Letter of Raul Pacheco (Oct. 29, 2012).

        Pacheco's letter largely repeated the arguments in his PCRA Petition. See id.

        at 1-2.

                On January 7, 2013, the Court issued a Notice of Intent to Dismiss

        Without Hearing and allowed Pacheco twenty days to respond. See

        Commonwealth v. Pacheco, C-48-CR-3795-2011 (C.P. Northampton Co. Jan.

        7, 2013). When no response was received within the time allowed, on

        February 5, 2013, the Court issued an Order denying the PCRA Petition and


                                               19
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          granting Attorney Karam's request to withdraw as PCRA counsel. See

         Commonwealth v. Pacheco, C-48-CR-3795-2011 (C.P. Northampton Co. Feb.

         5, 2013).

                  On February 6, 2013, the Court received a handwritten letter from

         Pacheco responding to the Notice of Intent to Dismiss Without Hearing. See

         Letter of Raul Pacheco (Feb. 6, 2013). In the letter, Pacheco reiterated the

         claims he had raised in his PCRA Petition. See id. The Court treated

         Pacheco's letter as a pro se motion for reconsideration of the January 7,

         2013 Notice of Intention to Dismiss Without Hearing and, on February 6,

         2013, denied the motion for reconsideration. See Commonwealth v.

         Pacheco, C-48-CR-3795-2011 (C.P. Northampton Co. Feb. 6, 2013).

                 The Appeal

                 On February 27, 2013, Pacheco filed a Notice of Appeal from the

         February 5, 2013 Order denying his PCRA Petition. See Notice of Appeal,

         Commonwealth v. Pacheco, C-48-CR-3795-2011 (C.P. Northampton Co. Feb.

         27, 2012). On March 7, 2013, the Court issued an Order directing Pacheco

         to file a Statement of Matters Complained of on Appeal within twenty-one

         days. See Commonwealth v. Pacheco, C-48-CR-3795-2011 (C.P.

         Northampton Co. Mar. 7, 2013).

                 On April 1, 2013, Pacheco filed his Statement of Matters Complained of

         on Appeal. See Statement of Matters Complained of on Appeal,

         Commonwealth v. Pacheco, C-48-CR-3795-2011 (C.P. Northampton Co. Apr.


                                                20
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         1, 2013) ("Statement of Matters Complained of on Appeal"). Although

         Pacheco's claims were inartfully drafted, interpreting them broadly and

         considering them together with the allegations in his PCRA Petition and his

         February 6, 2013 letter responding to the Notice of Intent To Dismiss

         Without Hearing, he appears to raise the following issues:

                  First, as more fully set forth below, Pacheco asserts that his guilty plea

         was involuntary and unknowing, because his counsel, Vivian Zumas,

         rendered ineffective assistance by (1) advising him to plead guilty to

         attempted burglary when there was no factual basis for the plea; (2) failing

         to challenge the sufficiency of the Commonwealth's prima facie case

         presented at the preliminary hearing; (3) failing to challenge the Court's

         alleged denial of his right to representation by counsel at the preliminary

         hearing; (4) erroneously advising him that the Court would likely honor the

         agreed-upon sentence of five to ten years in his plea agreement and failing

         to advise him that the Court could impose consecutive sentences; (5) failing

         to advise him to move to withdraw his guilty plea after the Court declined to

         honor the agreed-upon sentence; and (6) failing to advise him to move to

         withdraw his guilty on the ground that the Commonwealth violated its

         alleged agreement that it would "remain silent" and refrain from asking the

         Court to impose a longer sentence than the agreed-upon sentence. See id.

        at 1-2.




                                                  21
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                 Second, Pacheco asserts that the No-Merit Letter does not satisfy the

         requirements established by the Pennsylvania Supreme Court in

         Commonwealth v. Turner, 544 A.2d 927 CPa. 1988) and further defined by

         the Pennsylvania Superior Court in Commonwealth v. Finley, 550 A.2d 213

         CPa. Super. 1988). See Statement of Matters Complained of on Appeal at 1.

                 In his Statement of Matters Complained of on Appeal, Pacheco appears

         to have abandoned his claims that (1) counsel did not spend enough time

         with him and (2) counsel did not explain his post-sentence rights to him.

        See Commonwealth v. Hill, 16 A.3d 484, 494 CPa. 2011) C[A]ny issue not

         raised in a Rule 1925Ca) statement will be deemed waived .... ").

                                           DISCUSSION

                 Standard of Review on Appeal

                 On appeal from grant or denial of post-conviction relief, review is

        limited to whether the PCRA court's determination is supported by the

        evidence of record and free of legal error. See Commonwealth v. Morales,

        701 A.2d 516, 520 CPa. 1997); Commonwealth v. Ousley, 21 A.3d 1238,

        1241-42 & nn. 2,3 CPa. Super. 2011). The PCRA Court's findings will not be

        disturbed if they are supported by the record. See Ousley, 21 A.3d at 1241-

        42 & nn. 2,3; Commonwealth v. Yager, 685 A.2d 1000, 1003 CPa. Super.

        1996) Cen banc).

                 Grounds for PCRA Relief

                To be eligible for PCRA relief, a petitioner must plead and prove
                by a preponderance of the evidence that his or her conviction or

                                                 22
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                  sentence resulted from one or more of the circumstances
                  enumerated in 42 Pa.C.S. § 9S43(a)(2). These circumstances
                  include a violation of the Pennsylvania or United States
                  Constitution and ineffective assistance of counsel which "so
                  undermined the truth-determining process that no reliable
                  adjudication of guilt or innocence could have taken place." 42
                  Pa.C.S. § 9543(a)(2)(i). Furthermore, a petitioner must establish
                  that the claims of error raised in the PCRA petition have not
                  been previously litigated or waived, and that "the failure to
                  litigate the issue prior to or during trial, during unitary review or
                  on direct appeal could not have been the result of any rational,
                  strategic or tactical decision by counsel." 42 Pa.C.S. §9543(a)(3)
                  and (4); Washington, supra at 593. An issue has been waived
                  "if the petitioner could have raised it but failed to do so before
                  trial, at trial, during unitary review, on appeal or in a prior state
                  post[ -]conviction proceeding." 42 Pa.C.S. §9544(b). An issue
                  has been previously litigated if "the highest appellate court in
                  which the petitioner could have had review as a matter of right
                  has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2).

         Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).

                  Previous Litigation and Waiver

                  None of the claims raised in Pacheco's Rule 1925(a) Statement has

         been previously litigated. Pacheco did not take a direct appeal from his

         judgment of sentence.

                 As a general matter, claims that could have been raised on direct

         appeal, but were not, are waived and therefore cannot serve as a basis for

         peRA relief. See Commonwealth v. Hanyon, 772 A.2d 1033, 1035 (Pa.

         Super. 2001) ("Ordinarily, absent extraordinary circumstances, the failure to

         file a direct appeal from the judgment of sentence amounts to waiver of any

         claim which could have been raised in such an appeal, thereby precluding

         collateral relief."). However, claims of ineffective assistance of counsel may


                                                   23
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         not be raised on direct appeal but must be deferred until collateral review

         and therefore may be raised for the first time in a PCRA Petition. See

         Commonwealth v. Grant, 813 A.2d 726, 738 CPa. 2002) (,,[A] petitioner

         should wait to raise claims of ineffective assistance of trial counsel until

         collateral review. . .. [AJ claim raising trial counsel ineffectiveness will no

         longer be considered waived because new counsel on direct appeal did not

         raise a claim related to prior counsel's ineffectiveness.").

                  Based on the above-cited authorities, to the extent that Pacheco's

         claims are not based on ineffective assistance of counsel, he waived them by

         failing to take a direct appeal. It is unclear whether all of Pacheco's claims

         are premised on ineffective assistance of counsel, because his Statement of

         Matters Complained of on Appeal is inartfully drafted. In addition, many of

         his assertions are stated ambiguously and could be intended to support

         more than one claim. As more fully set forth below, taking all of his filings

         together, reading each claim in the broadest terms, and giving Pacheco the

         benefit of the doubt in order to avoid waiver, the Court will proceed on the

         assumption that all of Pacheco's claims are premised on ineffective

         assistance of counsel. 2


        2When an issue in a Rule 1925(a) Statement is so vague that the Court has to
        guess what the appellant is trying to say, the issue is deemed to be waived on
        appeal. See Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001)
        ("EA] Concise Statement which is too vague to allow the court to identify the issues
        raised on appeal is the functional equivalent of no Concise Statement at all.").
        Thus, although the Court has attempted to read Pacheco's claims in the most
        charitable light, to the extent that they remain too vague or ambiguous to permit
        clear interpretation, they should be deemed waived.

                                                 24
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                  Ineffective Assistance

                  Our standard of review when faced with a claim of ineffective
                  assistance of counsel is well settled. First, we note that counsel
                  is presumed to be effective and the burden of demonstrating
                  ineffectiveness rests on [the petitioner].



                 A petitioner must show (1) that the underlying claim has merit;
                 (2) counsel had no reasonable strategic basis for his or her
                 action or inaction; and (3) but for the errors or omissions of
                 counsel, there is a reasonable probability that the outcome of
                 the proceedings would have been different. The failure to prove
                 anyone of these prongs results in the failure of petitioner's
                 claim.

         Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (quoting

         Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. 2010)).

                 "Allegations of ineffectiveness in connection with the entry of a guilty

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

         appellant to enter an involuntary or unknowing plea." Commonwealth v.

        Allen, 732 A.2d 582, 587 (Pa. 1999); accord Commonwealth v. Flanagan,

         854 A.2d 489, 502 (Pa. 2004). The Court will now examine each of

         Pacheco's claims to determine whether counsel was ineffective and, if so,

        whether it caused Pacheco to enter an involuntary or unknowing plea.

                 Factual Basis for Pacheco's Guilty Plea

                 In his PCRA Petition, Pacheco asserted: "Defendants [sic] guilty plea

        was promoted by counsels urging in that a guilty verdict was likely at trial ..

        . . Had defendant not been deluded by counsels urging defendant would

        have plead [sic] not guilty." PCRA Petition at 3. In his letter in response to

                                                 25
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         the Notice of Intent To Dismiss Without Hearing, Pacheco asserted:

         "[C]ounsel lacked information and/or did not discuss the possibility that the

         defendant's charge may be temporily [sic] and logically related to

         defendant's other pending case .... " Letter Responding to the Notice of

         Intent To Dismiss Without Hearing at 2 (Feb. 6,2013). On appeal, Pacheco

         asserts, "Here, plea counsel ill advised on the Attempted Burglary, when

         under the totality of the circumstances the elements demonstrate criminal

         trespass .... Clearly, the defendant was prejudiced by plea counsel's ill

         advise [sic] and inducement of the plea .... The Plea was not knowing or

         voluntary when it was ill advised." Statement of Matters Complained of on

        Appeal at 2.

                 Reading these statements together, Pacheco appears to be arguing

        that his plea was involuntary and unknowing, because his counsel was

        ineffective in advising him to plead guilty to attempted burglary when there

        was not a factual basis for the plea, i.e., there was no evidence that he had

        the specific intent to steal anything from the Kipilas' house. See

        Commonwealth v. D'Collanfield, 805 A.2d 1244, 1247 (Pa. Super. 2002)

        (where defendant argued that his counsel had advised him to plead guilty

        without proof of requisite intent, court held that "the true nature of

        [defendant's] claim is whether he entered a guilty plea without a factual

        basis due to counsel's ineffectiveness."). To the extent Pacheco is arguing

        that there was not a factual basis for his plea, we disagree.


                                              26
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                  When the Court asked the Commonwealth to state the factual basis for

         the plea, the Commonwealth stated as follows:

                        MR. MCGINLEY; Yes, Judge, there are three different sets
                 of victims in this case. The Commonwealth is withdrawing the
                 charges related to two of them; however, they do remain victims
                 for purposes of sentencing and purposes of restitution. The
                 victims are Scott and Natalie Arnold in the first set, Joseph Kuch
                 [sic] in the second, and Paul and Sharon Kipila in the third. Now
                 the charge that Mr. Pacheco is pleading guilty to relates to Paul
                 and Sharon Kipila of the residence of 1116 Seneca Street in
                 Bethlehem, Pennsylvania.

                       The evidence that the Commonwealth would have
                 presented is that on April -- excuse me, August 8, 2011, at the
                 address of 1116 Seneca Street belonging to the Kipilas, there
                 was a report of a burglar alarm going off. That alarm was
                 audible, it was sounding. The residents returned to their home,
                 nothing had been disturbed except for the door was forced open.

                       Later that day -- excuse me -- on the 11th of August, Paul
                 and Sharon Kipila locate talk to the officer involved and stated
                 they noticed a white male walking through the parking lot of the
                 Republican Club that day.      Once our officers observed the
                 footage at the Republican Club they saw a video of the
                 defendant walking through a parking lot with a green bike that
                 had previously been reported stolen from one of the previous
                 burglaries.

                        On -- later that month Detective Leity [siC] of Lower
                 Saucon Police Department and Bradford Jones of Bethlehem
                 Police Department executed a search warrant at the residence
                 where the defendant was living with his paramour at the time.
                 Inside they found the green mountain bike, a black hat with blue
                 writing that had previously been in other burglary surveillance
                 videos as well as a coin and other property belonging to victims
                 in the previous cases that I mentioned.

         N.T. Jan. 26, 2012 at 11-12. Thus, the factual basis for the plea included

         evidence from the cases of Scott and Natalie Arnold and Joseph Koch.




                                                27
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                  This evidence was more than sufficient to provide a factual basis for

         Pacheco's plea to attempted burglary. In a prosecution for attempted

         burglary under 18 Pa.C.S.A. §§ 901(a) and 3502(a), the Commonwealth

         must establish both (1) the intent to make unauthorized entry to the house

         and (2) the intent to commit theft after entry. See Commonwealth v.

         Turner, 434 A.2d 827, 829 (Pa. Super. 1981). "It is a well-known principle

         that specific intent to commit a crime 'may be found in [defendant's]

         conduct, or from the attendant circumstances together with all reasonable

         inferences therefrom.'" Id. Pacheco's behavior on the surveillance video

         from the Republican Club, which was very similar to the defendant's conduct

         in Turner, establishes that Pacheco intended to make unauthorized entry to

         the Kipilas' house. See id. at 830.

                 The fresh pry marks on the door, [defendant's] periodic checks
                 to ensure that his conduct was unobserved, and his
                 abandonment of his endeavors when police sirens were heard in
                 the vicinity all support the inference that [defendant] intended to
                 effectuate an unauthorized entry into the house.

         Id.

                 The same behavior is enough to establish intent to commit theft after

         entry. See Commonwealth v. Morgan, 401 A.2d 1182, 1187 (Pa. Super.

         1979) (en bane) (intent to commit theft was shown by evidence that the

         defendant gained unauthorized entry to a private home after determining

        that the occupants were away). Evidence that Pacheco used a similar

        modus operandi at the homes of Scott and Natalie Arnold and Joseph Koch,


                                                 28
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         together with the fact that Pacheco was found in possession of items stolen

         from those homes, establishes that Pacheco intended to commit theft upon

         entry into the Kipilas' home. See Commonwealth v. Lasch, 347 A.2d 690,

         (Pa. 1975).

                 [W]here evidence of other crimes has an independent relevance
                 to the crime being tried -- where it tends to prove such elements
                 as motive, intent, absence of mistake or accident, a common
                 scheme, plan or design embracing the commission of two or
                 more crimes so related to each other that proof of one tends to
                 prove the others, or the identity of the person charged with the
                 crime being tried -- it is admissible for such limited purpose.

         [d. (multiple burglaries could be tied together where all took place in the

         same area and the defendants were found with items stolen from each

         victim); accord Commonwealth v. Gonzales, 443 A.2d 301, (Pa. Super.

         1982) (in burglary trial, proof of defendant's intent was supported by

         evidence that defendant had gained unauthorized entry to the same house

         in the past and had told the owner that owner owed the defendant money);

         (Commonwealth v. Barnhart, 434 A.2d 191, 193 (Pa. Super. 1981)

         (although defendant was seated in his car while his companions committed a

         burglary, evidence that he had participated in three other burglaries

         immediately prior to the crime in question was relevant to show that

         defendant was not an innocent bystander); Commonwealth v. Gusciora, 82

         A.2d 540, 542 (Pa. Super. 1951) (defendants' convictions for burglary were

         supported by evidence that defendants had used containers stolen from one

         store to carry goods stolen from another store).


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                 Here, there was overwhelming evidence that Pacheco was a

         professional burglar who regularly broke into homes and stole valuables. His

         identity was established through the surveillance video from the Republican

         Club, Pacheco's consistent modus operandi, his consistent choice of clothing,

         his practice of riding the same stolen bicycle when committing a burglary,

         and the fact that police had recovered numerous stolen items from his

         apartment. Thus, any claim that Pacheco's counsel advised him to enter a

         guilty plea without a factual basis has no merit.

                 In addition, Pacheco's counsel had sound reasons for her advice that

         he plead guilty. She knew that if the case proceeded to trial, the

        Commonwealth could have connected him to the burglary involving Nancy

        Arnold, who would have described Pacheco smashing her window in vivid

        detail. Given the strong likelihood of conviction and the mandatory prison

        sentences Pacheco would have faced had he been convicted, it would have

        been unwise for him to proceed to trial, and his counsel was not ineffective

        for advising against that course of action. Thus, Pacheco has failed to show

        ineffective assistance of counsel in connection with this claim.

                 Failure To Challenge the Commonwealth's Prima Facie Case

                 In his PCRA Petition, Pacheco asserted: "Prima Facie was not

        established to indicate that defendant was the perpetrator of attempted

        burglary charge." PCRA Petition at 3. In his letter in response to the Notice

        of Intent To Dismiss Without Hearing, Pacheco asserted: "[C]ounsel lacked


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                                 "



         information and/or did not discuss the possibility that the defendant's charge

         may be temporily [sic] and logically related to defendant's other pending

         case .... " Letter Responding to the Notice of Intent To Dismiss Without

         Hearing at 2 (Feb. 6, 2013). On appeal, Pacheco asserts, "Here, plea

         counsel ill advised on the Attempted Burglary, when under the totality of the

         circumstances the elements demonstrate criminal trespass .... Clearly, the

         defendant was prejudiced by plea counsel's ill advise [sic] and inducement of

         the plea .... The Plea was not knowing or voluntary when it was ill

         advised." Statement of Matters Complained of on Appeal at 2.

                 Reading these statements together, Pacheco appears to be arguing

         that his guilty plea was involuntary and unknowing, because counsel was

         ineffective in (1) failing to explain to him that she could file a motion

         challenging the sufficiency of the Commonwealth's prima facie case

         presented at his preliminary hearing and (2) failing to file such a motion.

         We disagree.

                 Absent a demonstration of ineffective assistance of counsel, Pacheco

         cannot overcome the fact that he waived his rights to file pretrial motions

         challenging the sufficiency of the Commonwealth's case. See Guilty Plea

        Colloquy No. 3795-2011, Question 30. In addition, once there has been an

        adjudication of guilt, any defect in the preliminary hearing becomes moot.

        See Commonwealth v. McCullough, 461 A.2d 1229 (Pa. 1983) (failure of

        Commonwealth to establish a prima facie case at the preliminary hearing


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         was immaterial where the Commonwealth met its burden of proving the

         offense beyond a reasonable doubt at trial); Commonwealth v. Lee, 662

         A.2d 645, 650 (Pa. Super. 1995) (adjudication of guilt renders moot any

         claim that the Commonwealth failed to establish a prima facie case at the

         preliminary hearing); Commonwealth v. Hale, 2010 WL 5620793 (C.P.

         Northampton Co. May 4, 2010) (issue as to whether Commonwealth

         established a prima facie case at the preliminary hearing was rendered moot

         once defendant pled guilty). Thus, Pacheco has failed to demonstrate any

         right to relief with respect to this claim.

                 Failure To Challenge Lack of Representation at the Preliminary Hearing

                 In his PCRA Petition, Pacheco asserted: "Defendant was not

         represented by counsel at his preliminary hearing; was denied the

         opportunity to postpone proceeding to obtain counsel and defendant did not

        waive the hearing." PCRA Petition at 3. In his letter responding to the

        Notice of Intent To Dismiss Without Hearing, Pacheco wrote a lengthy

        paragraph about the alleged denial of his right to counsel at the preliminary

        hearing, followed immediately by the statement, "I claim that my plea was

        not knowingly or intelligently made because 'under the theory the plea of

        guilty is not binding upon a defendant when induced by fear, promises,

        improper persuasion or ignorance' as taken from Com. v. Scolari 415 Pa.

        218 1964." Letter Responding to Notice of Intent to Dismiss Without

        Hearing at 2 (Feb. 6, 2013). On appeal, Pacheco asserts:


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                                 ·,
                                                                                "




                 There is no dispute the defendant was not represented at his
                 Preliminary [sic] by counsel at a critical stage of adjudication,
                 specifically the Preliminary hearing. Accordingly, the denial of
                 the Sixth Amendment Right voids the conviction .... Clearly, the
                 defect of the preliminary Hearing would have been challenged
                 prior to a plea, which the Sixth Amendment attached.

         Statement of Matters Complained of on Appeal at 1-2.

                 Once again, the nature of Pacheco's claim is not entirely clear.

         However, the Court treats this issue as a claim that Pacheco's plea was

         involuntary and unknowing because his counsel was ineffective in (1) failing

         to explain to him that she could file a motion challenging the alleged denial

         of counsel at the preliminary hearing; and (2) failing to file such a motion.

                 Claims for ineffective assistance of counsel in the conduct of the

         preliminary hearing are not cognizable under the PCRA, because they do not

         implicate the truth-determining process. See Commonwealth v. Lassen, 659

         A.2d 999, 1007 (Pa. Super. 1995); Commonwealth v. Hale, 2010 WL

         5620793 (C.P. Northampton Co. May 4,2010); Commonwealth v. Tirado,

         2007 WL 6921343 (C.P. Lehigh Co. Nov. 21, 2007).

                 Even if denial of counsel at the preliminary hearing were cognizable

         under the PCRA, such denial would not be deemed reversible error unless

        the defendant could show prejudice, i.e., a reasonable probability that

         absent the error, the outcome would have been different. See Ditch v.

        Grace, 479 F.3d 249, 258-59 (3d Cir. 2007) (applying Pennsylvania law)

        (even though defendant was "unquestionably denied his right to counsel at

        the preliminary hearing" where witness made in-court identification, and

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                                 "                                             .

         even though the uncounseled identification was per se inadmissible, such

         that "trial counsel's performance fell below an objective standard of

         reasonableness when he did not file a motion to suppress the identification,"

         nevertheless, defendant could not show prejudice, since "the jury's verdict

         was supported by overwhelming evidence of guilt involving unchallenged

         ballistics evidence, and therefore "counsel was not constitutionally ineffective

         for failing to seek to suppress the identification made at the preliminary

         hearing"); Commonwealth v. Bastone, 467 A.2d 1339, 1341 (Pa. Super.

         1983) (even if defendant had been improperly denied his right to counsel at

         the preliminary hearing, any such denial would have been harmless error,

         since "appellant has not alleged that any prejudice resulted from the

         absence of counsel at the preliminary hearing"); Commonwealth v. Carver,

         436 A.2d 1209, 1211 (Pa. Super. 1981) (although defendant was blatantly

         denied his right to counsel at preliminary hearing where in-court

         identifications were made, and same eyewitnesses later identified defendant

         at trial, denial of counsel at the preliminary hearing did not constitute

         reversible error, because defendant could not show that representation at

         preliminary hearing would have changed the outcome: witnesses'

         identifications were based on close observation in good light within one hour

         of the crime and were "certain and unshakeable").




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                  Similarly here, given that there was overwhelming evidence of guilt, it

         is unlikely that having counsel present at Pacheco's preliminary hearing

         would have changed the outcome. Thus, it would have been futile for

         Pacheco's counsel to challenge his lack of representation at the preliminary

         hearing. Counsel cannot be deemed ineffective for failing to pursue a

         baseless claim. See Commonwealth v. Gaerttner, 649 A.2d 139 cPa. Super.

         1994).

                  Pacheco does not allege that he suffered any prejudice. Because

         Pacheco has alleged no prejudice from the lack of representation, he has

         failed to carry his burden of showing that he is entitled to PCRA relief. 3

                  Failure To Advise of the Possibility of Consecutive Sentences

                 In his PCRA Petition, Pacheco asserted:

                 Defendants [sic] guilty plea was promoted by counsels urging in
                 that a gUilty verdict was likely at trial and that sentenCing judge
                 would render a concurrent sentence with defendants other
                 pending burglary charge . . . . SentenCing judge did not explain
                 to defendant the difference between a concurrent sentence and a
                 consecutive sentence and was not told by judge that a
                 consecutive sentence could be imposed . . . . Defendants [sic]
                 guilty plea was not knowingly, understandingly and intelligently
                 entered because he was not fully apprised of the maximum
                 sentence possible.




         3 We note that it is incorrect that Pacheco was denied a postponement of the
         preliminary hearing in order to obtain counsel. The Criminal Docket Sheet shows
         that Pacheco was granted a continuance of the preliminary hearing on November 4,
         2011 for the express purpose of securing legal representation. See Criminal Docket
         Sheet, Commonwealth v. Raul Pacheco, C-48-CR-3795-2011 (C.P. Northampton
         Co. Nov. 4, 2011).

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                  In his letter responding to the Notice of Intent to Dismiss Without

         Hearing, Pacheco stated: Defendant would not have plead [sic] guilty if

         (according to ABA Standards 2nd ed. 1980 14-1, 4(ii)) 'The maximum

         possible sentence on the charge, including that possibility from consecutive

         sentences' had been explained to him." Letter Responding to Notice of

         Intent To Dismiss Without Hearing at 2 (Feb. 6, 2013).

         PCRA Petition at 3. On appeal, Pacheco states:

                 Clearly, the defendant was prejudiced by plea counsel's ill advise
                 [sic] and inducement of the plea .... The defendant avers that
                 plea counsel provided ineffective assistance of counsel by his
                 failure to withdraw the plea, per the violation of the agreement
                 between the Commonwealth and defense counsel that a five to
                 ten year sentence would be imposed.

         Statement of Matters Complained of on Appeal at 2.

                 Reading these statements together, Pacheco appears to be arguing

         that his guilty plea was involuntary and unknowing, because counsel was

         ineffective in (1) failing to explain to him that the Court might impose

         consecutive sentences; and (2) failing to move to withdraw his guilty plea

         based on the Court's failure to inform the defendant of the possibility of

        consecutive sentences. We disagree.

                 Pacheco's signed Guilty Plea Statements and verbal guilty-plea

        colloquies indicated that he knew that each count to which he pled guilty

        carried a maximum penalty of twenty years in prison and that the Court was

        not bound by the agreed-upon sentence in Pacheco's plea agreement. The

        record reflects that the Court told Pacheco prior to sentenCing that the Court

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          would not adhere to the agreed-upon sentence but intended to sentence

          Pacheco "according to the law and according to his prior criminal record."

          N.T. Mar. 9, 2012 at 2. The Court allowed Pacheco three extra weeks to

         consider whether, in light of the Court's intentions, he wished to withdraw

         his guilty pleas or proceed to sentencing. Although the record does not

         reflect that the Court specifically advised Pacheco that his sentences might

         be made consecutive, Pacheco's own counsel asked the Court, in front of

         Pacheco, to consider making the sentences concurrent, which placed

         Pacheco on notice that the sentences might be made consecutive. See N.T.

         Mar. 30, 2012 at 9.

                 A defendant suffers no prejudice from a failure to advise of the

         possibility of consecutive sentences as long as the defendant is advised of

         the maximum sentence possible on each individual count and the aggregate

         sentence is no greater than the maximum sentence possible on anyone

         count. See Commonwealth v. Carter, 656 A.2d 463, 466 (Pa. 1995)

         ("[W]here the aggregate sentence falls within the minimum and maximum

         sentence that can be imposed on a single count of the crimes charged,

         [defendant] was not prejudiced for not being informed of the maximum total

         sentence he risked by pleading nolo contendere. ").

                 On the charge of criminal attempt to commit burglary in Docket

         Number 2975-2011, the Court sentenced Pacheco to a term of imprisonment

         in a state correctional institution for a minimum period of four years to a


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         maximum period of ten years. See N.T. Mar. 30, 2012 at 22. On the charge

         of criminal attempt to commit burglary in Docket Number 3795-2011, the

         Court sentenced Pacheco to serve a term of imprisonment in a state

         correctional institution for a minimum period of three years to a maximum

         period of ten years. See id. at 22-23. The Court ordered the sentences of

         imprisonment and parole to run consecutive to each other. See id. at 23.

         Thus, Pacheco's aggregate sentence of imprisonment was a minimum period

         of seven years to a maximum period of twenty years. See id. Assuming

        arguendo that Pacheco was not aware that the Court might impose

         consecutive sentences, because his aggregate sentence of imprisonment

        falls within the minimum and maximum that could have been imposed on a

        single count of the crimes charged, i.e., a minimum term of ten years to a

        maximum term of twenty years, Pacheco has suffered no prejudice from any

        alleged failure to inform him of the possibility of consecutive sentences. See

        Carter, 656 A.2d at 466. Based on the above-cited authority, the Court

        concludes that Pacheco's guilty plea was knowing and voluntary.

                 Failure To Withdraw Plea After Court Rejected Agreed-Upon Sentence

                 In his PCRA Petition, in addition to the above claims concerning the

        consecutive sentence and the maximum sentence possible, Pacheco

        asserted: "Counsel did not object to sentence, nor explain post sentenCing

        appeal rights to defendant." PCRA Petition at 3. On appeal, Pacheco states:

                 Clearly, the defendant was prejudiced by plea counsel's ill advise
                 [sic] and inducement of the plea .... The defendant avers that

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                 plea counsel provided ineffective assistance of counsel by his
                 failure to withdraw the plea, per the violation of the agreement
                 between the Commonwealth and defense counsel that a five to
                 ten year sentence would be imposed .... It is true the Court is
                 not bounds by a plea agreement. However, it is settled law a
                 defendant may withdraw the plea under such circumstances.

         Statement of Matters Complained of on Appeal at 2.

                 Reading these statements together, Pacheco appears to be arguing

         that his guilty plea was involuntary and unknowing, because counsel was

         ineffective in (1) failing to advise him that the Court might reject the

        agreed-upon sentence; and (2) failing to move to withdraw his guilty plea

        based on the Court's rejection of the agreed-upon sentence. We disagree.

                 At the March 9, 2012 hearing, the Court told Pacheco that it would not

        adhere to the agreed-upon sentence. The Court told Pacheco that it was his

        choice whether to withdraw his guilty pleas or proceed to sentencing. The

        attorney for the Commonwealth explained to Pacheco what his sentencing

        options would be if he proceeded to trial. The Court gave Pacheco three

        weeks to consider whether, in light of the Court's intentions, he wanted to

        withdraw his plea or proceed with sentencing. On March 30, 2012, just

        before imposing sentence, the Court again asked Pacheco whether he

        wished to withdraw his guilty pleas. Pacheco told the Court, "Wish for my

        plea to stand./I N.T. Mar. 30, 2012 at 3. Pacheco cannot now credibly

        contend that he was ignorant of his right to withdraw his plea due to

        ineffective assistance of counsel.




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                 The Commonwealth's Failure To "Remain Silent"

                 Finally, Pacheco claims that the Commonwealth "did not remain silent

         and violated the agreement." Statement of Matters Complained of on

         Appeal at 2. Pacheco is presumably suggesting that the Commonwealth

         agreed not to request a sentence longer than the agreed-upon sentence but

         then read Nancy Arnold's letter asking that Pacheco be "prosecuted for each

         of his offenses." N.T. Mar. 30, 2012 at 16. Pacheco did not include this

         issue in his PCRA Petition or in any of his submissions to the Court prior to

         the denial of the Petition. He is raising it for the first time in his Statement

         of Matters Complained of on Appeal. "It is well settled that 'issues not raised

         in a PCRA petition cannot be considered on appeal. '" Commonwealth v.

         Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (quoting Commonwealth v.

        Lauro, 819 A.2d 100, 104 CPa. Super. 2003)). Accordingly, this claim has

         been waived on appeal.

                 Sufficiency of PCRA Counsel's No-Merit Letter

                 Pacheco asserts that PCRA counsel's No-Merit Letter was deficient in

        that it failed to satisfy the requirements established by the Pennsylvania

        Supreme Court in Commonwealth v. Turner, 544 A.2d 927 CPa. 1988) and

        further defined by the Pennsylvania Superior Court in Commonwealth v.

        Finley, 550 A.2d 213 (Pa. Super. 1988). We disagree.




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                                                                                 ,



                  When court-appointed counsel concludes that the issues raised in a

         PCRA Petition are without merit l counsel fully satisfies his professional

         obligation under the Pennsylvania Rules of Criminal Procedure by filing a

         letter in which he (1) details the nature and extent of his review; (2) lists

         the issues raised in the PCRA Petition; and (3) explains why he has

         concluded that the issues have no merit. See Turnerl 544 A.2d at 928;

         FinleYI 550 A.2d at 215. If the Court conducts its own independent review

         and agrees with counsel that the issues are meritless l PCRA counsel may be

         permitted to withdraw. See Turnerl 544 A.2d at 928; FinleYI 550 A.2d at

         215. At that timel the petitioner "will be permitted to proceed pro sel or by

         privately retained counsellor not at all." Turnerl 544 A.2d at 928-29.

                  Here l PCRA counsel filed a four-page letter in which he stated that he

         had reviewed the files in the two criminal cases l including the Criminal

         Informations signed by Pacheco l the PSI Reportl the guilty plea transcripts

         of January 3 1 2012 and January 26 1 2012 1 the written Guilty Plea Colloquies

         signed by Pacheco l and the Post-Sentencing Rights form signed by Pacheco.

         See No-Merit Letter at 2. PCRA counsel listed each of the issues raised in

         the peRA Petition and explained in detail why he had concluded that the

         issues were without merit l providing specific citations to the record. See id.

         at 2-3. Pacheco asserts that the No-Merit Letter was deficient in that it does

         not include citation to legal authority. See Statement of Matters Complained

         of on Appeal at 1. Howeverl Turner and Finley do not require that counsel


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"


              include citation to legal authority, nor has Pacheco cited any case that so

              holds. Accordingly, the Court concludes that counsel's No-Merit Letter

              satisfied the standards set forth in Turner and Finley.

                                               CONCLUSION

                      For the foregoing reasons, we respectfully suggest that Pacheco's

             appeal lacks merit and should be dismissed.


                                                             BY THE COURT,


                                                                 •
                                                              ~       o~~
                                                             lIY~" ~~~7! ~ >""
                                                         I                   ~-

                                                             MICHAEL J. KOURY, JR., J. "




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