J-S09035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WILLIAM SCOTT BEATTY, JR.

                            Appellant                No. 1256 MDA 2015


                  Appeal from the PCRA Order June 23, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000842-2010


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED FEBRUARY 05, 2016

        William Scott Beatty, Jr. (“Appellant”) appeals from the order entered

in the Lebanon County Court of Common Pleas, which dismissed his petition

filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1    We

affirm.

        The PCRA court set forth the relevant facts and procedural history of

this appeal as follows:

           On May 26, 2010, [Appellant] was charged at this action
           number[2] with 96 counts which included corrupt
           organizations,[3] dealing in   proceeds  of    unlawful

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    CP-38-CR-0000842-2010 (“the 2010 docket”).
3
    18 Pa.C.S. § 911(b)(3).
J-S09035-16


           activities,[4] robbery,[5] simple assault,[6] possession of
           instrument of crime [(“PIC”)],[7] conspiracy,[8] burglary[9]
           and theft[10] for numerous incidents which occurred
           between 2007 and August, 2009. On April 4, 2011, an
           amended information was filed which reduced the charges
           to 87 counts. On June 23, 2010, the Commonwealth filed a
           motion to consolidate this action with another action, [CP-
           38-CR-00001745-2009 (“the 2009 docket”)], which was
           already pending against [Appellant] at the time. [The
           2009 docket] involved burglary, conspiracy, and [PIC]
           charges with regard to a residential burglary which
           occurred on September 9, 2009. [Appellant’s] co-
           conspirators were the same in both actions. Brian
           Deiderick, Esquire (“Defense Counsel”) was appointed to
           represent [Appellant] in both matters. Defense Counsel
           took no action to oppose the consolidation of [Appellant’s]
           two cases.

           On November 1, 2010, [Appellant] pled guilty to the
           charges in [the 2009 docket]. A jury trial was commenced
           for the charges in this action on April 5, 2011. On the first
           day of trial, after proceedings had already commenced,
           [Appellant] decided to plead nolo contendere to all 87
           counts. His plea was entered on that date. On May 18,
           2011, [Appellant] appeared for sentencing and made an
           oral request to withdraw his guilty plea. The court denied

____________________________________________


4
    18 Pa.C.S. § 5111(a)(1).
5
    18 Pa.C.S. § 3701(a)(1).
6
    18 Pa.C.S. § 2701(a)(3).
7
    18 Pa.C.S. § 907(a).
8
    18 Pa.C.S. § 903.
9
    18 Pa.C.S. § 3502(a).
10
     18 Pa.C.S. § 3921(a).




                                           -2-
J-S09035-16


          his request and imposed an aggregate sentence of over
          forty years.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed June 24, 2015, at 3-4 (“PCRA

Court Opinion”) (some capitalization omitted).

       On May 26, 2011, Appellant filed a pro se PCRA petition. That same

day, the court dismissed Appellant’s PCRA petition because his judgment of

sentence was not yet final.        The court appointed counsel and conducted a

hearing on January 31, 2012 with respect to the 2009 docket.11             On

February 4, 2012, Appellant filed a pro se PCRA petition regarding the 2010

docket. On April 8, 2013, the PCRA court dismissed both petitions, however,

the PCRA court’s opinion only addressed issues raised with respect to the

2009 docket. Appellant appealed to this Court. On February 4, 2014, this

Court affirmed the order denying relief for the 2009 docket, but vacated and

remanded the order denying relief on the 2010 docket.

       On July 29, 2014, the PCRA court conducted a hearing on Appellant’s

PCRA petition regarding the 2010 docket that is presently before us.       On

June 23, 2015, the PCRA court denied Appellant’s petition.        On July 20,

2015, Appellant filed a timely notice of appeal.      The next day, the PCRA

court ordered appellant to file a concise statement of errors complained on

of appeal, and he timely complied on August 5, 2015.
____________________________________________


11
  Because we do not have the record for the 2009 docket, it is unclear
whether Appellant filed an additional PCRA petition with respect to the 2009
docket or if the PCRA court ruled on his previously dismissed petition.



                                           -3-
J-S09035-16


      Appellant raises the following issues for our review:

          [1.] WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO
          COMMUNICATE ADEQUATELY WITH APPELLANT, TO
          INFORM HIM OF THE FACTS AND EVIDENCE THAT WOULD
          BE PRESENTED AGAINST HIM AT TRIAL, AND TO WORK
          WITH APPELLANT IN DEVELOPING AN ADEQUATE DEFENSE
          OR A KNOWING AND INFORMED BASIS FOR A PLEA?

          [2.] WAS TRIAL COUNSEL INEFFECTIVE FOR OBTAINING
          TRIAL CONTINUANCES AGAINST APPELLANT’S EXPRESS
          INSTRUCTIONS THAT HE NOT CONTINUE TRIAL?

          [3.] WAS TRIAL COUNSEL [] INEFFECTIVE FOR FAILING
          TO PERFORM AN ADEQUATE INVESTIGATION[, WHERE,]
          HAD HE DONE SO, APPELLANT WOULD HAVE BEEN ABLE
          TO PRESENT ARGUABLY MERITORIOUS MOTIONS TO
          SUPPRESS EVIDENCE AND SEVER, AS WELL AS MOTIONS
          IN LIMINE BEFORE TRIAL, THUS RESULTING IN AN
          UNKNOWING,     INVOLUNTARY,    AND    UNINFORMED
          DECISION TO ENTER A NOLO CONTENDERE PLEA[?]

Appellant’s Brief at 4.

      In his combined issues, Appellant argues his trial counsel was

ineffective and he is entitled to a new trial. We disagree.

      Our standard of review regarding PCRA relief is well-settled.      “[W]e

examine whether the PCRA court’s determination is supported by the record

and free of legal error.”    Commonwealth v. Fears, 86 A.3d 795, 803

(Pa.2014) (internal quotation marks and citation omitted).      “The scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level.”   Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) (citation

omitted).   “It is well-settled that a PCRA court’s credibility determinations

are binding upon an appellate court so long as they are supported by the

                                     -4-
J-S09035-16



record.”    Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa.2013)

(citation omitted).      However, this Court reviews the PCRA court’s legal

conclusions de novo.          Commonwealth v. Rigg, 84 A.3d 1080, 1084

(Pa.Super.2014) (citation omitted).

        This Court follows the Pierce12 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

           When a petitioner alleges trial counsel’s ineffectiveness in
           a PCRA petition, he must prove by a preponderance of the
           evidence that his conviction or sentence resulted from
           ineffective   assistance   of   counsel    which,     in   the
           circumstances of the particular case, so undermined the
           truth-determining process that no reliable adjudication of
           guilt or innocence could have taken place. We have
           interpreted this provision in the PCRA to mean that the
           petitioner must show: (1) that his claim of counsel’s
           ineffectiveness has merit; (2) that counsel had no
           reasonable strategic basis for his action or inaction; and
           (3) that the error of counsel prejudiced the petitioner-i.e.,
           that there is a reasonable probability that, but for the error
           of counsel, the outcome of the proceeding would have
           been different. We presume that counsel is effective, and it
           is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             “If an appellant fails to prove by a

preponderance of the evidence any of the Pierce prongs, the Court need not

address the remaining prongs of the test.” Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).


____________________________________________


12
     Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



                                           -5-
J-S09035-16


       In his first and third issues, Appellant contends his trial counsel was

ineffective for failing to adequately investigate his case or communicate with

him, for failing to develop a better defense, and for failing to suppress

evidence, which caused him to enter into an unknowing, involuntary nolo

contendere plea. These claims merit no relief.

       “An appellant’s claim for ineffective assistance of counsel in connection

with advice rendered regarding whether to plead guilty[13] is cognizable

under the PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).” Commonwealth

v. Lippert, 85 A.3d 1095, 1100 (Pa.Super.2014), appeal denied, 95 A.3d

277 (Pa.2014). “Allegations of ineffectiveness in connection with the entry

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

caused the defendant to enter an involuntary or unknowing plea.”

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing

Commonwealth v. Allen, 732 A.2d 582 (Pa.1999)). Whether a plea was

voluntary “depends on whether counsel’s advice was within the range of

competence demanded of attorneys in criminal cases.” Commonwealth v.

Lynch, 820 A.2d 728, 733 (Pa.Super.2003), appeal denied, 835 A.2d 709

(Pa.2003) (quoting Hickman, 799 A.2d at 141).


____________________________________________


13
   “It is well established that a plea of nolo contendere is treated as a guilty
plea in terms of its effect upon a given case.” Commonwealth v. V.G., 9
A.3d 222, 226 (Pa.Super.2010) (citing Commonwealth v. Leidig, 850 A.2d
743, 745 (Pa.Super.2004)).



                                           -6-
J-S09035-16


        Thus, to establish prejudice, the defendant must show that
        there is a reasonable probability that, but for counsel’s
        errors, he would not have pleaded guilty and would have
        insisted on going to trial. The reasonable probability test is
        not a stringent one; it merely refers to a probability
        sufficient to undermine confidence in the outcome.

Lippert, 85 A.3d at 1100 (quoting Commonwealth v. Barndt, 74 A.3d


185, 191–92 (Pa.Super.2013)).


     The PCRA court reasoned:

        Defense Counsel provided [Appellant] with a great deal of
        discovery materials prior to trial and met with him on
        numerous occasions in order to go over that material and
        to develop a trial strategy. [Appellant] complains that he
        was not provided with phone records, the video and color
        copies of the photographs provided in discovery. Defense
        Counsel explained that he did not provide the phone
        records to [Appellant] as both of them had determined
        that the item was too voluminous and was not relevant to
        the charges in this action, Defense Counsel had no way to
        show the video to [Appellant] while he was incarcerated
        and made the decision not to spend the funds necessary to
        obtain color prints due to the trial strategy to which the
        two subsequently agreed.         [Appellant] provides no
        explanation of his assertion that he would not have pled
        nolo contendere had he received these materials.

        Defense Counsel thoroughly explained the legal concepts
        regarding [Appellant’s] charges and reviewed the jury
        instructions for all of the offenses, thereby apprising
        [Appellant] of all of the elements and of the proof required
        of the Commonwealth at trial. This review also opened up
        a dialogue between [Defense] Counsel and [Appellant] as
        to whether they would challenge specific elements or the
        charge as a whole at trial. Defense Counsel met with
        [Appellant] on numerous occasions to discuss these
        matters. [Appellant] charges that Defense Counsel
        misrepresented the case to him. However, [Appellant’s]
        own version of the information provided by Defense
        Counsel indicates that he was merely explaining the law to

                                    -7-
J-S09035-16


          [Appellant] as it could be applied to the facts of this case.
          It appears that [Appellant] simply did not like or agree
          with the status of the law on these matters.

          Defense Counsel reviewed voluminous discovery materials
          which had resulted from an extensive investigation by law
          enforcement. He arranged to have the motion filed to
          obtain the grand jury testimony, but decided that it would
          not be useful at trial because the witness involved would
          not be called to testify at trial by the Commonwealth. After
          reviewing all of the aspects of the case, Defense Counsel
          determined that there were no valid bases upon which to
          file pretrial motions or motions in limine. He noted that he
          would request offers of proof as to certain Commonwealth
          witnesses at trial. [Appellant] was not prejudiced in any
          manner by Defense Counsel’s failure to oppose severance;
          [Appellant] was tried individually at the trial of this matter.

                                       *       *   *

          Based on these facts, we find that [Appellant] was
          provided with fully effective legal representation in this
          matter and that his plea of nolo contendere was entered
          knowingly, voluntarily and intelligently.

PCRA Court Opinion, at 15-18.

       The PCRA court’s determination is supported by the record and free of

legal error. Appellant failed to show a reasonable probability that, but for

counsel’s errors, he would not have pleaded nolo contendere. See Lippert,

supra. Thus, Appellant’s first and third issues merit no relief.14

____________________________________________


14
   Although Appellant asserted his innocence to some of the charges against
him at the PCRA hearing on July 29, 2014, he failed to preserve his
innocence claim in his Pa.R.A.P. 1925(b) statement.                   Moreover,
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1285 (Pa.2015) provides
“a bare assertion of innocence is not, in and of itself, a sufficient reason to
require a court to grant [a] request [to withdraw a guilty plea before
(Footnote Continued Next Page)


                                           -8-
J-S09035-16


      In Appellant’s remaining issue, he argues his trial counsel was

ineffective for continuing Appellant’s trial against Appellant’s express wishes.

Although Appellant claims he did not approve of the continuances, he fails to

allege the continuances prejudiced his case in any way.             Thus, this

ineffective assistance of counsel claim fails. See Fitzgerald, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016

                       _______________________
(Footnote Continued)

sentencing]” and also provides guidelines for what a defendant must
demonstrate in order to withdraw his guilty plea:

          [W]e are persuaded by the approach of other jurisdictions
          which require that a defendant’s innocence claim must be
          at least plausible to demonstrate, in and of itself, a fair
          and just reason for presentence withdrawal of a plea.
          ...[T]he proper inquiry on consideration of such a
          withdrawal motion is whether the accused has made some
          colorable demonstration, under the circumstances, such
          that permitting withdrawal of the plea would promote
          fairness and justice.

Id. at 1885, 1292. In this case, although Appellant indicated he was not
guilty of some of the charges, he pled nolo contendere to 87 counts after a
full colloquy and failed to make a colorable demonstration that withdrawal of
his plea would promote fairness and justice. See id.




                                            -9-
