J-S38044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JOHN LEE

                             Appellant                No. 2610 EDA 2016


                   Appeal from the PCRA Order July 13, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
         at No(s): CP-51-CR-0011788-2009, CP-51-CR-0011789-2009,
                            CP-51-CR-0014002-2009

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 25, 2017

        Appellant, John Lee, appeals from the order entered in the Philadelphia

County Court of Common Pleas denying his first Post Conviction Relief Act 1

(“PCRA”) petition without a hearing. Appellant claims that his plea counsel’s

ineffectiveness caused him to enter an unknowing, involuntary, and

unintelligent plea, and that he was entitled to an evidentiary hearing on this

claim. We affirm.

        The PCRA court summarized the procedural and factual history of this

appeal as follows:

           On September 7, 2009, [A]ppellant was arrested and
           charged with a host of crimes including Rape and
           Involuntary    Deviate  Sexual   Intercourse,  Criminal
           Solicitation, Sexual Assault, Criminal Conspiracy and

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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        related offenses.[2]     On March 20, 2012, [A]ppellant
        appeared before th[e trial c]ourt and entered an open
        guilty plea to Criminal Conspiracy (2 counts), Unlawful
        Restraint (2 counts), Simple Assault (2 counts), Criminal
        Solicitation and Possession with Intent to Deliver.
        Appellant was sentenced on August 1, 2012, to an
        aggregate sentence of fifteen (15) to thirty (30) years
        incarceration.[3] A Motion to Reconsider Sentence was filed
        by [A]ppellant on August 13, 2012. This [c]ourt denied
        the Motion on September 4, 2012. Appellant did not file
        an appeal. However, on July 15, 2013, [A]ppellant filed a
        petition for relief under the [PCRA].        Counsel was
        appointed to assist [A]ppellant in the preparation of an
        Amended PCRA petition. An Amended PCRA petition was
        filed on February 2, 2015. The Commonwealth responded
        with a Motion to Dismiss which was filed on April 7, 2016.
        This [c]ourt took the matter under advisement. Following
        a review of the record and the various pleadings, this
        [c]ourt dismissed the [A]ppellant’s Amended PCRA petition
        on July 13, 2016.[4] . . .

                                    ***



2
  The charges were listed in three separate dockets: CP-51-CR-0011788-
2009 (“11788-2009”); CP-51-CR-0011789-2009 (“11789-2009”); and CP-
51-CR-0014002-2009 (“14002-2009”).
3
  The trial court sentenced Appellant to the following individual terms of
imprisonment.       In 11788-2009, five to ten years for conspiracy, a
consecutive two to four years each for unlawful restraint and criminal
solicitation, and a concurrent one to two years for simple assault. In 11789-
2009, a consecutive five to ten years’ imprisonment for conspiracy, a
concurrent two to four years for unlawful restraint, and a concurrent one to
two years for simple assault. In 14002-2009, a consecutive one to two
years for possession with intent to deliver.
4
  The PCRA court did not issue a Pa.R.Crim.P. 907(1) notice of intent to
dismiss the petition. However, Appellant does not challenge this procedural
misstep in this appeal. See Commonwealth v. Taylor, 65 A.3d 462, 468
(Pa. Super. 2013) (noting that the “failure to challenge the absence of a
Rule 907 notice constitutes waiver” (citation omitted)).



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        The facts of [A]ppellant’s case were detailed at great
        length by the Commonwealth at the guilty plea hearing on
        March 20, 2012. Essentially [A]ppellant engaged in a
        human trafficking ring that operated out of a Ramada Inn
        on Roosevelt Boulevard in Philadelphia. In the months
        leading up to [A]ppellant’s arrest, he and others engaged
        in a large scale prostitution operation.        Appellant’s
        associates went throughout Northeast Philadelphia and
        lured women with promises of food, shelter and drugs.
        Once the victims agreed to go with [A]ppellant’s
        associates, they were brought to the Ramada Inn where
        they were sold to [A]ppellant and forced into prostitution.
        [Appellant was found with controlled substances in his
        possession at the time of his arrest. Two complainants
        gave statements to police implicating Appellant in the
        operation. Although Appellant suggests that one of the
        complainants recanted her allegations at the preliminary
        hearing,5     the Commonwealth’s asserted that the
        complainant was prepared to testify against Appellant at
        trial.]

PCRA Ct. Op., 10/17/16, at 1-2.

     Appellant timely appealed the order denying his PCRA petition without

a hearing. The PCRA court did not order the filing of a Pa.R.A.P. 1925(b)

statement.    However, the PCRA court issued Pa.R.A.P. 1925(a) opinion

concluding that Appellant’s plea was knowing, intelligent, and voluntary

based on its colloquy advising him of the nature of offenses, his rights to a

trial, and the permissible range of sentences in each case. PCRA Ct. Op. at

4.



5
  Appellant extensively cites to the transcript of the preliminary hearing,
which is not included in the certified record. However, the Commonwealth
does not object to the accuracy of Appellant’s recitation of the preliminary
hearing testimony.



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J-S38044-17


      Appellant presents two questions that we have reordered for the

purposes of our review:

         Whether the court erred in not granting relief on the PCRA
         petition alleging counsel was ineffective[?]

         Whether the court erred in denying the Appellant’s PCRA
         petition without an evidentiary hearing on the issues raised
         in the amended PCRA petition regarding trial counsel’s
         ineffectiveness[?]

Appellant’s Brief at 8.

      Appellant initially claims that the PCRA court erred in dismissing his

claim of ineffective assistance of counsel.    In support, Appellant presents

three arguments that counsel’s ineffectiveness caused him to enter an

invalid guilty plea, which we address in detail below.

      It is well-settled that:

         This Court’s standard of review regarding an order denying
         a petition under the PCRA is whether the determination of
         the PCRA court is supported by the evidence of record and
         is free of legal error. The PCRA court’s findings will not be
         disturbed unless there is no support for the findings in the
         certified record.

                                      ***

            To    prevail  on     a    claim   alleging   counsel’s
            ineffectiveness under the PCRA, [the petitioner]
            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 proceeding
            would have been different.



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J-S38044-17


         It is clear that a criminal defendant’s right to effective
         counsel extends to the plea process, as well as during trial.
         However, “[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. . . .”

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).   The prejudice required to prevail on a claim of counsel’s

ineffectiveness during the plea process “is similar to the ‘manifest injustice’

standard applicable to all post-sentence attempts to withdraw a guilty plea.”

Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa. Super. 2006) (citation

omitted).

      First, Appellant argues that plea counsel promised him there was a

plea deal for three to six years’ imprisonment in exchange for his guilty plea

to a single count of possession with intent to deliver, and that he was

unaware of the maximum sentences for the offenses to which he pleaded

guilty. Appellant’s Brief at 17-18. We find no support for this argument.

      It is well settled that “[a] person who elects to plead guilty is bound

by the statements he makes in open court while under oath and he may not

later assert grounds for withdrawing the plea which contradict the

statements he made at his plea colloquy.” Commonwealth v. Turetsky,

925 A.2d 876, 881 (Pa. Super. 2007) (citations omitted).          This Court has

stated “we should be hesitant to set aside the trial court’s determination that

a hearing is unnecessary[,]” when an alleged promise of a lenient sentence

“in support of withdrawal is clearly contradicted by the unambiguous


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J-S38044-17


language of a guilty plea colloquy[.]”      Commonwealth v. Cappelli, 489

A.2d 813, 819 (Pa. Super. 1985) (en banc).

         Instantly, Appellant signed three separate written colloquies, which

each indicated the offenses charged, the offenses to which Appellant pleaded

guilty, and the maximum sentences for the individual offenses subject to the

plea.6     Written Guilty Plea Colloquy, 11788-2009, 11789-2009 & 14002-

2009, at 1.        The trial court also informed Appellant there were no

agreements regarding sentencing, except for the Commonwealth’s decision

not to pursue a mandatory minimum sentence for the drug offense in

14002-2009. Id. Thus, the record clearly contradicts Appellant’s allegation

that he pleaded guilty based on an alleged promise of a three to six year

sentence, or that plea counsel failed to advise him of the maximum

sentences of the remaining offenses. Accordingly, we agree with the PCRA

court that these arguments lacked arguable merit.      See Wah, 42 A.3d at

338-39; Cappelli, 489 A.2d at 819.




6
  The written colloquy in 11788-2009 did not include the maximum range of
sentences for several individual offenses. However, the written colloquies in
11789-2009 included the same offenses and indicated the maximum range
of sentences for those offenses.




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J-S38044-17


      Appellant next argues that plea counsel failed to explain the nature of

an open plea and the trial court’s authority to impose consecutive sentences

in all three cases.7 No relief is due.

      In Commonwealth v. Carter, 656 A.2d 463 (Pa. 1995), the

Pennsylvania Supreme Court acknowledged that a plea could be withdrawn

where the defendant was not advised that the trial court could impose

consecutive sentences on his plea to multiple counts of burglary. Id. at 466

(discussing Commonwealth v. Persinger, 615 A.2d 1305 (Pa. 1992)).

However, the Carter Court held that “where the aggregate sentence

[actually imposed] falls within the minimum and maximum sentence that

can be imposed on a single count of the crimes charged, [the defendant is]

not prejudiced for not being informed of the maximum total sentence he

risked by pleading nolo contendere.” Id.

      Here, the written and oral plea colloquies did not expressly advise

Appellant of the trial court’s ability to sentence consecutively on all counts,

or of his total exposure to 155 years’ imprisonment.       However, both the

written and oral colloquies apprised Appellant that the maximum exposure of

his plea in 11788-2009 was fifty-five years.        See Written Guilty Plea

Colloquy, 11788-2009, at 1; N.T., 3/20/12, at 3. The trial court ultimately

imposed an aggregate sentence of fifteen to thirty years’ imprisonment,

7
 Although the PCRA court did not address this issue in its Pa.R.A.P. 1925(a)
opinion, this Court may affirm on any basis apparent in the record.
Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000).



                                         -7-
J-S38044-17


which fell within the range imposed in that single case.          Consequently,

Appellant cannot establish manifest injustice based on plea counsel’s alleged

failure to inform him of the nature of his open plea or the possibility that

consecutive sentences could be imposed on all offenses.          See Diaz, 913

A.2d at 874; Carter, 656 A.2d at 466. Thus, this argument fails.

       Appellant next argues that plea counsel was ineffective for refusing to

investigate or present possible defense witnesses.      Appellant’s Brief at 18.

According to Appellant,

          These witnesses, Millicient Fluck, and Kate Taylor were
          arrested together with him in the case. These witnesses
          were available but [counsel] refused to talk to them or add
          to the defense Appellant asserts.          Appellant claims
          [counsel] told [him], without even talking to them, “They
          were lying anyway.” These witnesses were available and
          had no less credibility than [one of the complainants].

Id. at 18. Appellant asserts plea counsel “did not want to go to trial[,]” and

“[t]his strategy was also demonstrated when trial counsel refused to

interview available witness[es] that could have demonstrated Appellant’s

innocence.”    Id. at 18-19.    We conclude that this claim is inadequately

developed.8

       The following precepts govern our review:

          Counsel has a general duty to undertake reasonable
          investigations or make reasonable decisions that render
          particular   investigations   unnecessary.          Counsel’s
          unreasonable failure to prepare for trial is “an abdication of
          the minimum performance required of defense counsel.”

8
    See supra note 7.



                                      -8-
J-S38044-17



         The duty to investigate, of course, may include a duty to
         interview certain potential witnesses; and a prejudicial
         failure to fulfill this duty, unless pursuant to a reasonable
         strategic decision, may lead to a finding of ineffective
         assistance. Recently summarizing cases . . ., this Court
         stated that:

            These cases . . . arguably stand for the proposition
            that, at least where there is a limited amount of
            evidence of guilt, it is per se unreasonable not to
            attempt to investigate and interview known
            eyewitnesses in connection with defenses that hinge
            on the credibility of other witnesses. They do not
            stand, however, for the proposition that such an
            omission is per se prejudicial.

         Indeed, such a per se failing as to performance, of course,
         does not make out a case of prejudice, or overall
         entitlement to Strickland relief.

         When raising a failure to call a potential witness claim, the
         PCRA petitioner satisfies the performance and prejudice
         requirements of the Strickland test by establishing that:

            (1) the witness existed; (2) the witness was
            available to testify for the defense; (3) counsel knew
            of, or should have known 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 trial.

         To demonstrate Strickland prejudice, the PCRA petitioner
         “must show how the uncalled witnesses’ testimony would
         have been beneficial under the circumstances of the case.”


Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009) (citations

omitted); see also Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.

Super. 2007) (applying a similar standard to a claim of ineffectiveness of

plea counsel for refusing to call witnesses).


                                     -9-
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      In his amended PCRA petition, Appellant essentially pleaded that (1)

witnesses existed, (2) witnesses were available, and (3) plea counsel knew

of, or should have known of, the existence of the witnesses.          Appellant,

however, failed to establish that the witnesses were willing to testify for the

defense. See Johnson, 966 A.3d at 535-36. More significantly, Appellant’s

boilerplate assertion that the witnesses “could have demonstrated [his]

innocence” did not establish the witnesses would have testified favorably

regarding an offense to which he pleaded guilty.       Appellant’s Brief at 19.

Therefore, Appellant failed to plead or prove that plea counsel’s alleged

refusal to investigate or call defense witnesses caused him to enter an

unknowing, involuntary, or unintelligent guilty plea.9      See Johnson, 966

A.3d at 535-36; see also Turetsky, 925 A.2d at 881.            Accordingly, this

argument warrants no relief.

      Lastly, Appellant claims that he was entitled to an evidentiary hearing

regarding his claims of plea counsel’s ineffectiveness.     Appellant’s Brief at

15-16. However, it is well settled that

         [t]he right to an evidentiary hearing on a post-conviction
         petition is not absolute. It is within the PCRA court’s
         discretion to decline to hold a hearing if the petitioner’s
         claim is patently frivolous and has no support either in the
         record or other evidence. It is the responsibility of the
         reviewing court on appeal to examine each issue raised in
         the PCRA petition in light of the record certified before it in
         order to determine if the PCRA court erred in its

9
  Appellant also affirmed that he was satisfied with plea counsel during the
oral guilty plea colloquy. N.T. at 11-12.



                                     - 10 -
J-S38044-17


        determination that there were no genuine issues of
        material fact in controversy and in denying relief without
        conducting an evidentiary hearing.

Turetsky, 925 A.2d at 882 (citations omitted).

     Following our review of the record, the PCRA court’s opinion, and

Appellant’s arguments, we discern no basis to disturb the PCRA court’s

determination that an evidentiary hearing was not warranted. Therefore, we

affirm the PCRA court’s decision to dismiss the petition without an

evidentiary hearing. See id.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/25/2017




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