J-S69043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

ADAM MICHAEL SCOTT

                          Appellant                 No. 903 EDA 2015


                Appeal from the PCRA Order March 12, 2015
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001240-2012


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

MEMORANDUM BY OLSON, J.:                       FILED December 17, 2015

     Appellant, Adam Michael Scott, appeals, pro se, from the order

entered on March 12, 2015, dismissing his petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     Appellant was arrested and subsequently charged with numerous

crimes, including:    three counts of robbery (threatens another with or

intentionally puts him in fear of immediate serious bodily injury), three

counts of receiving stolen property, four counts of possessing instruments of

crime, five counts of simple assault, five counts of recklessly endangering
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another person, and one count of both criminal mischief and driving under

the influence of a controlled substance.1

       Prior to trial, Appellant and the Commonwealth entered into an

agreement whereby, if Appellant pleaded guilty to the above three robbery

counts, the Commonwealth agreed to withdraw the remaining charges,

waive the mandatory minimum sentences for two of the three robbery

counts, and recommend that Appellant serve an aggregate sentence of

seven-and-a-half to 15 years in prison, followed by five years of probation.

Specifically, the Commonwealth agreed to recommend that Appellant serve:

the mandatory minimum sentence of five to ten years in prison, pursuant to

42 Pa.C.S.A. § 9712,2 for the first robbery count; a consecutive term of two-

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1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3925(a), 907(a), 2701(a)(3), 2705, and
3304(a)(5), and 75 Pa.C.S.A. § 3802(d)(1)(i) respectively.
2
  42 Pa.C.S.A. § 9712 was entitled “[s]entences for offenses committed with
firearms” and generally provided:

         any person who is convicted in any court of this
         Commonwealth of a crime of violence . . . shall, if the
         person visibly possessed a firearm or a replica of a firearm .
         . . that placed the victim in reasonable fear of death or
         serious bodily injury, during the commission of the offense,
         be sentenced to a minimum sentence of at least five years
         of total confinement. . . .

42 Pa.C.S.A. § 9712(a). We note that, on June 4, 2013, the Supreme Court
of the United States decided Alleyne v. United States, ___ U.S. ___, 133
S.Ct. 2151 (2013) and held that, where an “aggravating fact” increases a
mandatory minimum sentence, “the fact is an element of a distinct and
aggravated crime. [The fact] must, therefore, be submitted to the jury and
(Footnote Continued Next Page)


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and-a-half to five years in prison for the second robbery count; and, a

consecutive term of five years of probation for the third robbery count. See

Guilty Plea Colloquy, 9/5/12, at 3-4.

      Appellant        proceeded     to    a     guilty   plea   hearing,   where   the

Commonwealth summarized the factual basis for Appellant’s plea:

         The facts in support of the plea are that starting on . . .
         February [5,] 2012 at the location of the Sunoco station at
         2200 Pottstown Pike in [] Chester County, the troopers
         involved in this case were called on that date to report an
         armed robbery that had occurred at that station.

         The investigation showed that [Appellant] walked into the
         Sunoco station entered with a golf club and silver in color
         handgun/revolver as described by the clerk, took the golf
         club and struck and disabled the camera system inside the
         Sunoco station. He then asked for and left with [$575.00]
         worth of cash . . . and stolen merchandise[,] specifically
         Newport and Marlboro Red brand cigarettes [and] lottery
         tickets. . . . [Appellant], at that time, wore black clothing,
         gloves, shoes[,] and a white mask or cloth that was
         covering his face and had eyes cut out.

         Another armed robbery at this location occurred on March
         [19,] 2012. That that time [Appellant] walked into the
         same Sunoco station using what looked to be the same
         silver in color handgun/revolver described by the clerk. On
         that day the total value of stolen merchandise is $426.64[,]
         which includes the value of cash, cigarettes, and, again,
         specifically Newport brand. And during the commission of
         that crime he wore a brown colored hooded sweatshirt,

                       _______________________
(Footnote Continued)

found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2162-2163. We
also note that, on October 3, 2014, this Court concluded that Alleyne
rendered 42     Pa.C.S.A.  § 9712   unconstitutional  in  its  entirety.
Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).




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        black knit cap, white mask or cloth covering his face with
        the same eyes cut out.

        On March [21,] 2012[, Appellant] walked into the same
        Sunoco station, used the same silver handgun/revolver at
        the cashier. He robbed the store of $653.54, involving
        cash, cigarettes, same specific brands that were mentioned
        earlier. He wore the same dark brown in color hooded
        sweatshirt, blue gloves[,] and a white mask or cloth
        described to be covering his face with the same eyes cut
        out.

        There are three different victims in this case, three different
        clerks that were robbed at the hand of [Appellant]. On that
        same day the investigation was able to pin, based on the
        description matching [Appellant].      The trooper went to
        [Appellant’s] house, saw [Appellant] arrive in a car. He
        looked under the influence. . . .

        When they stopped [Appellant,] they immediately noticed
        stolen merchandise matching what was described to be
        stolen from the Sunoco station as well as dark in color
        sweatshirt and white cut out mask over his face that he
        used in all three of the armed robberies.

N.T. Guilty Plea and Sentencing, 9/5/12, at 2-4.

     On September 5, 2012, the trial court accepted Appellant’s guilty plea

and sentenced Appellant in accordance with the negotiated terms.          Id. at

22-26. Appellant did not file a post-sentence motion or a notice of appeal

from his judgment of sentence.

     On September 3, 2013, Appellant filed a timely, pro se PCRA petition

and the PCRA court appointed counsel to represent Appellant. However, on

September 25, 2013, Appellant filed a pro se petition entitled “Motion for




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Grazier Hearing,”3 demanding that the PCRA court allow him to proceed pro

se during the post-conviction proceedings.

       Following a Grazier hearing, the PCRA court concluded that Appellant

knowingly, intelligently, and voluntarily waived his right to counsel during

the post-conviction proceedings.         The PCRA court thus granted Appellant’s

petition to proceed pro se and directed that appointed counsel “remain as

stand-by counsel to assist [Appellant], if requested to do so.” PCRA Court

Order, 12/2/13, at 1-2.

       On August 24, 2014, Appellant filed a pro se amended PCRA petition.

Within the petition, Appellant claimed that he was entitled to post-conviction

collateral relief because: 1) his trial counsel provided him with ineffective

assistance by failing to “request[] a suppression hearing for the purpose of

suppressing the evidence discovered following the unlawful seizure of

[Appellant’s] car” and 2) his sentence is illegal, as the trial court sentenced

him to serve an unconstitutional mandatory minimum sentencing term.

Appellant’s Amended PCRA Petition, 8/24/14, at 4 and 7-8 (some internal

capitalization omitted).

       On October 22, 2014, the PCRA court held a hearing on Appellant’s

PCRA petition.      At the hearing, Appellant called no witnesses other than

himself and Appellant offered no exhibits. Regarding Appellant’s claim that

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3
    See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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trial counsel was ineffective for failing to file a suppression motion,

Appellant’s testimony was merely:

        One thing I found in discovery and the affidavit of probable
        cause is that my car was seized, impounded, and there was
        no warrant issued. And the car was on my property at the
        time of the seizure of it.

        I – I believe defense counsel, . . . he should have filed for a
        suppression of the evidence hearing to suppress evidence
        that was found during the unlawful seizure of the vehicle.

        And I think it was – it was, so to say, the fruit of the poison
        tree and detrimental to my case. Minus the guilty plea
        there was no reliable adjudication of guilt or innocence.

N.T. PCRA Hearing, 10/22/14, at 19 (some internal capitalization omitted).

      Appellant did not provide any evidence regarding the underlying facts

or the potential merits of his alleged suppression claim. See id. at 19-50.

Further, although the Commonwealth called Appellant’s trial counsel as a

witness during the hearing, Appellant’s trial counsel did not elaborate on the

underlying facts or potential merits of the alleged suppression claim – except

to say that Appellant’s suppression claim had no merit. Id. at 59.

      On March 12, 2015, the PCRA court denied Appellant post-conviction

collateral relief. Appellant filed a timely notice of appeal.

      Appellant raises two claims on appeal:

        [1.] Whether the PCRA court erred in finding that trial
        counsel was not ineffective for failing to file a suppression
        motion on the grounds that the trooper lacked reasonable
        suspicion to stop Appellant and that the search of his
        vehicle was executed without a warrant?




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        [2.] Whether Appellant’s sentence is illegal and subject to
        correction, mandated by PCRA provisions as such challenge
        was asserted in a timely PCRA and the interpretation in
        [Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015)]
        provides relief?

Appellant’s Brief at 3.

      As we have stated:

        [t]his Court’s standard of review regarding an order
        dismissing a petition under the PCRA is whether the
        determination of the PCRA court is supported by evidence of
        record and is free of legal error. In evaluating a PCRA
        court’s decision, our 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. We may affirm a PCRA court’s decision on
        any grounds if it is supported by the record.

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

citations omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”    Commonwealth v.




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Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).          To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not
        have some reasonable basis designed to effectuate his
        interests; and, (3) but for counsel’s ineffectiveness, there is
        a reasonable probability that the outcome of the challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).             “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

      We also note that “[a] criminal defendant has the right to effective

counsel during a plea process as well as during trial.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002).                 Yet, where the

ineffectiveness of counsel is claimed in connection with the entry of a guilty

plea, a petitioner may only obtain relief where “counsel’s deficient

stewardship resulted in a manifest injustice, for example, by facilitating [the]

entry of an unknowing, involuntary, or unintelligent plea.” Commonwealth

v. Moser, 921 A.2d 526, 530 n.3 (Pa. Super. 2007) (en banc) (internal

citations and quotations omitted). As we have explained:

        once a defendant has entered a plea of guilty, it is
        presumed that he was aware of what he was doing, and the
        burden of proving involuntariness is upon him. Therefore,
        where the record clearly demonstrates that a guilty plea
        colloquy was conducted, during which it became evident
        that the defendant understood the nature of the charges
        against him, the voluntariness of the plea is established.




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Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal

quotations, citations, and corrections omitted), quoting Commonwealth v.

Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an]

appellant must prove he would not have [pleaded] guilty and would have

achieved a better outcome at trial.”      Commonwealth v. Fears, 86 A.3d

795 (Pa. 2014) (internal quotations and citations omitted).

      On appeal, Appellant first claims that his trial counsel was ineffective

for failing to file a pre-trial suppression motion. This claim fails for a variety

of reasons, one of which is that, during the PCRA hearing, Appellant failed to

satisfy his burden of production to demonstrate that his underlying claim

had arguable merit. Indeed, as was explained above, with the exception of

Appellant’s own testimony, Appellant did not present any evidence during

the PCRA hearing.      Further, during the PCRA hearing, no evidence was

presented regarding the underlying facts or the potential merits of

Appellant’s suppression claim.      N.T. PCRA Hearing, 10/22/14, at 19-50.

Therefore, Appellant’s ineffective assistance of counsel claim immediately

fails, as Appellant failed to “prove by a preponderance of the evidence that .

. . his underlying claim is of arguable merit.” Fulton, 830 A.2d at 572.

      Second, Appellant claims that he is entitled to post-conviction

collateral relief because his sentence is illegal.      In particular, Appellant

claims that his sentence is illegal, as he was sentenced to a mandatory

minimum term of five to ten years in prison under 42 Pa.C.S.A. § 9712 –

and we have since held that Section 9712 is unconstitutional in light of

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Alleyne. Appellant’s Brief at 13. This claim fails because we have held that

the rule of law announced in Alleyne does not apply retroactively to cases

on collateral review.        Commonwealth v. Riggle, 119 A.3d 1058 (Pa.

Super. 2015) (“the Alleyne ruling does not prohibit punishment for a class

of offenders nor does it decriminalize conduct. Rather, Alleyne procedurally

mandates the inclusion of facts in an indictment or information, which will

increase a mandatory minimum sentence, and a determination by a

factfinder of those facts beyond a reasonable doubt. Alleyne, therefore, is

not substantive. Nor does Alleyne constitute a watershed procedural rule. .

. . Hence, the fundamental fairness of the trial or sentencing is not seriously

undermined, and Alleyne is not entitled to retroactive effect in this PCRA

setting”).4 Since Appellant’s judgment of sentence became final on October

5, 2012 (30 days after he entered his guilty plea and was sentenced) and

Alleyne was not decided until June 4, 2013, Appellant cannot rely on

Alleyne for relief.

       Order affirmed.




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4
  To the extent Appellant relies upon our Supreme Court’s opinion in
Hopkins – wherein our Supreme Court held that the mandatory minimum
sentencing statute at 18 Pa.C.S.A. § 6317(a) was unconstitutional in its
entirety – we note that Hopkins was decided on direct appeal. Hopkins,
117 A.3d at 249. Thus, Hopkins does not speak to whether the procedural
rule announced in Alleyne is retroactive to cases on collateral review.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2015




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