J-S51026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JONNY SANDERS,                           :
                                          :
                    Appellant             :   No. 757 EDA 2018

               Appeal from the PCRA Order February 9, 2018
  In the Court of Common Pleas of Northampton County Criminal Division
                    at No(s): CP-48-CR-0001663-2016


BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                      FILED NOVEMBER 26, 2018

      Appellant Jonny Sanders appeals from the order denying his first timely

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. Appellant claims that the PCRA court erred in rejecting his claims based

on the ineffective assistance of counsel. We affirm.

      The PCRA court set forth the facts of this case as follows:

      On January, 8, 2016, [Appellant] entered the Family Dollar store
      located at 301 Northampton Street in Easton, Pennsylvania with
      Rachyeed Hollenbach. [Appellant] brandished two handguns and
      demanded that the Family Dollar employees, Deborah Myers and
      Jennifer Altenbach, turn over cash from their registers. While
      brandishing the handguns, [Appellant] stated “Give me the money
      or I’ll kill you.” Hollenbach was taken into custody shortly after
      the incident and identified [Appellant] as the individual with him
      at the Family Dollar. [Appellant] was located several hours later,
      hiding under a trailer on Bushkill Drive in Easton. After police
      officers discovered [Appellant], [Appellant] charged at them,
      punching and kicking several officers. [Appellant] was found in
      possession of the same amount of cash reported stolen from the
      Family Dollar, contained in a plastic bag bearing the Family Dollar
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      logo. [Appellant] was previously convicted of a felony under the
      Controlled Substance, Drug, Device and Cosmetic Act and, as
      such, is prohibited from possessing a firearm.

      [Appellant] was charged with (1) robbery; (2) four counts of
      aggravated assault, attempting to cause serious bodily injury to a
      police officer; (3) two counts of aggravated assault, attempting to
      cause bodily injury with a deadly weapon; (4) resisting arrest; (5)
      two counts of terroristic threats; and (6) persons not to possess
      firearms.

PCRA Ct. Op., 2/9/18, at 3-4 (citations and footnotes omitted).

      The PCRA court further summarized the relevant procedural history of

this case as follows.

      Attorney Anthony Rybak [(plea counsel)] was assigned as
      [Appellant]’s public defender.          [Appellant] expressed his
      displeasure with [plea counsel]’s assistance several times
      throughout [the] case, culminating in [Appellant]’s pro se “Motion
      for Change of Appointed Counsel.” In his motion, [Appellant]
      stated that [plea counsel] could not adequately represent his
      interests because he felt that [plea counsel] believed he was guilty
      of all charges and would not argue in good faith on his behalf. At
      various times, [Appellant] also expressed dissatisfaction
      regarding [plea counsel]’s failure to obtain an in-person line-up
      and his failure to object to the Commonwealth’s amendment of
      the criminal [i]nformation prior to trial. Following a hearing on his
      “Motion for Change of Appointed Counsel,” [Appellant] opted to
      proceed to trial pro se and we appointed [plea counsel] as stand-
      by counsel. Thereafter, on November 18, 2016, [Appellant]
      reported that he decided to proceed with [plea counsel] as trial
      counsel.

      Prior to trial, the Commonwealth made numerous offers to resolve
      this case with a negotiated guilty plea. [Appellant] rejected all of
      these offers.

      The matter proceeded to jury selection on January 9, 2017. At
      the outset of voir dire, [Appellant] objected to the racial
      composition of the jury panel. [Plea] counsel moved for a “more
      diverse panel.” We denied [Appellant]’s motion as untimely,
      pursuant to Pennsylvania Rule of Criminal Procedure Rule 625(B).
      A jury was selected and seated on January 9, 2017.

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Id. at 4-6 (citations omitted).

       On January 10, 2017, Appellant pled guilty to robbery, persons not to

possess a firearm, and resisting arrest.         On that same day, the trial court

sentenced Appellant to a negotiated aggregate sentence of twelve to thirty

years’ incarceration.1 Appellant did not file a direct appeal.2

       On April 10, 2017, the PCRA court docketed Appellant’s first timely pro

se PCRA petition. On April 18, 2017, the PCRA court appointed counsel. PCRA

counsel filed a first amended PCRA petition on June 9, 2017. On October 13,

2017, PCRA counsel filed a second amended PCRA petition.             Appellant, in

relevant part, asserted that plea counsel was ineffective for failing to advise

him that the entry of his plea would waive his right to challenge plea counsel’s

competence.3        Additionally, Appellant claimed that plea counsel was

ineffective for failing to advise Appellant that his plea was not knowing,

intelligent, and voluntary as the Commonwealth failed to establish a factual


____________________________________________


1
  Pursuant to the negotiated guilty plea, the trial court sentenced Appellant to
a term of imprisonment of ten to twenty years for the robbery conviction, one
to eight years for the persons not to possess a firearm conviction, and one to
two years for the resisting arrest conviction. See N.T. Guilty Plea, 1/10/17,
at 9. The sentences were to run consecutively. See id.

2
 As part of Appellant’s plea, he waived his direct appeal rights. See N.T.
Guilty Plea, 1/10/17, at 8-9.

3
  More specifically, Appellant asserted that plea counsel was ineffective for
failing to advise him that his plea would waive his right to challenge plea
counsel’s ineffectiveness in failing to (1) challenge the racial make-up of the
jury, (2) obtain an in-person line-up, or (3) challenge the amendment of the
information.

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basis for his plea. The PCRA court held an evidentiary hearing on October 20,

2017, at which Appellant and plea counsel testified.

      On February 9, 2018, the PCRA court denied Appellant’s PCRA petition.

The PCRA court found Appellant’s guilty plea waived his claims of

ineffectiveness against plea counsel. PCRA Ct. Op., 2/9/18, at 16-17 (citing

Commonwealth v. Stewart, 867 A.2d 589 (Pa. Super. 2002)). Regarding

Appellant’s claim that plea counsel failed to advise him that there was no

factual basis in the guilty plea colloquy for the charges of persons not to

possess a firearm and resisting arrest, the court found that there was a

sufficient factual basis in the record. Id. at 32-38.

      Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) statement. The PCRA court filed a Pa.R.A.P. 1925(a) opinion relying

on the reasoning it set forth in its February 9, 2018 order and opinion.

      Appellant raises the following two issues on appeal:

      1. [Plea counsel] was ineffective for failing to advise [sic]
         Appellant that he had preserved ineffectiveness claims for
         collateral review when, by pleading guilty, Appellant had
         actually waived those claims.

      2. [Plea counsel] was ineffective for advising Appellant to plead
         guilty to persons not to possess firearms and to resisting arrest
         when the Commonwealth, at the guilty plea proceeding, had
         failed to establish a factual basis for pleas to those two
         offenses.

Appellant’s Brief at 4.

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the


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evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA

court’s credibility determinations, when supported by the record, are binding

on this Court; however, we apply a de novo standard of review to the PCRA

court’s legal conclusions.”   Commonwealth v. Mitchell, 105 A.3d 1257,

1265 (Pa. 2014) (citation omitted). “Finally, we may affirm a PCRA court’s

decision on any grounds if the record supports it.”        Commonwealth v.

Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (citation omitted).

      It is well-settled that a defendant is entitled to “effective assistance of

counsel at all stages of a criminal proceeding, including during the plea

process.” Commonwealth v. Lynch, 820 A.2d 728, 732 (Pa. Super. 2003)

(citation omitted). A “claim for ineffective assistance of counsel in connection

with advice rendered regarding whether to plead guilty is cognizable under

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

Barndt, 74 A.3d 185, 191 (Pa. Super. 2013) (citation omitted).           “If the

ineffective assistance of counsel caused the defendant to enter an involuntary

or unknowing plea, the PCRA will afford the defendant relief.” Lynch, 820

A.2d at 732 (citation omitted). “[T]he voluntariness of [the] plea depends on

whether counsel’s advice was within the range of competence demanded of

attorneys in criminal cases.” Id. at 733 (citation omitted).

      To establish a claim of ineffective assistance of counsel, a defendant

“must show, by a preponderance of the evidence, ineffective assistance of

counsel which, in the circumstances of the particular case, so undermined the

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

could have taken place.” Commonwealth v. Turetsky, 925 A.2d 876, 880

(Pa. Super. 2007) (citation omitted). The burden is on the defendant to prove

all three of the following prongs: “(1) the underlying claim is of arguable merit;

(2) that counsel had no reasonable strategic basis for his or her action or

inaction; and (3) but for the errors and omissions of counsel, there is a

reasonable probability that the outcome of the proceedings would have been

different.” Id. (citation omitted); see also Commonwealth v. Daniels, 963

A.2d 409, 419 (Pa. 2009) (“A failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” (citation omitted)).

Further, “[c]ounsel is presumed to have been effective and the burden of

rebutting that presumption rests with the petitioner.”      Commonwealth v.

Fletcher, 986 A.2d 759, 772 (Pa. 2009) (citation omitted).

      Moreover, regarding the validity of a guilty plea, we have explained that

a valid guilty plea colloquy “must delve into six areas: 1) the nature of the

charges, 2) the factual basis for the plea, 3) the right to a jury trial, 4) the

presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s

power to deviate from any recommended sentence.”            Commonwealth v.

Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (en banc) (citations omitted);

see also Pa.R.Crim.P. 590 cmt. Regarding the factual basis requirements,

our Supreme Court has explained that “there is no set manner, and no fixed

terms, by which [the] factual basis must be adduced.” Commonwealth v.

Flanagan, 854 A.2d 489, 500 (Pa. 2004) (citation omitted).

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           Ineffectiveness Regarding Waiver of PCRA Claims

      Appellant first argues that plea counsel failed to advise Appellant that

his plea would waive certain claims of plea counsel’s ineffectiveness.

Appellant’s Brief at 21-22. Appellant emphasizes that his argument is not that

plea counsel was ineffective for failing to raise his underlying claims that plea

counsel should have challenged the composition of the jury, requested a line-

up, and objected to the amendment of the information. Id. Indeed, he does

not develop any argument as to those underlying claims. Id.              Rather,

Appellant argues that he would not have pled guilty had he known that by

doing so he would be waiving his underlying ineffectiveness claims. Id. at 23.

He contends that the PCRA court abused its discretion by failing to credit

Appellant’s testimony in this regard. Id.

      We initially address the PCRA court’s and Appellant’s reliance on

Stewart in asserting that Appellant waived his ineffectiveness claims by

entering a guilty plea. In Stewart, the defendant pled guilty to aggravated

assault and statutory sexual assault. Stewart, 867 A.2d at 590. As part of

the plea agreement, the Commonwealth recommended a sentence of forty to

eighty months’ incarceration.    Id.   The trial court, however, rejected the

recommendation and sentenced the defendant to five to fifteen years’

incarceration. Id. The defendant filed a motion to modify sentence, which

the trial court ultimately denied. Id. at 591. The defendant filed a direct

appeal from his judgment of sentence challenging the discretionary aspects of

his sentence. Id. We explained that generally “[a] plea of guilty forecloses

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challenges to all matters except the voluntariness of the plea, the jurisdiction

of the court, or the legality of the sentence[,]” but that a defendant “may

challenge the discretionary aspects of [his] sentence . . . so long as there is

no plea agreement as to the terms of the sentence.” Id. Because there was

no binding plea agreement, the Stewart Court addressed the defendant’s

discretionary claim. Id.

      Here, however, we have a procedurally different posture than in

Stewart. Stewart involved a direct appeal from the defendant’s judgment

of sentence and did not address an ineffective assistance of counsel claim at

the PCRA level. See id. at 590. As noted above, claims of ineffectiveness as

to the entry of a guilty plea are cognizable under the PCRA. See Barndt, 74

A.3d at 191; see also Lynch, 820 A.2d at 731 (stating that “all

constitutionally-cognizable claims of ineffective assistance of counsel may be

reviewed in a PCRA petition” (citation omitted)). Therefore, we conclude that

the PCRA court erred in suggesting that Appellant waived his right to raise

claims of plea counsel’s ineffectiveness.

      Nevertheless, Appellant’s specific claim is that plea counsel misadvised

him regarding his underlying challenges to plea counsel’s effectiveness. Our

review of the record reveals that during the guilty plea colloquy, the following

relevant exchanges occurred:

      THE COURT: All right. And in conjunction with th[e plea]
      agreement you agree to waive and give up all of your rights to
      directly appeal in all Pennsylvania courts any issue relating to this
      case; is that correct, [Appellant]?


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J-S51026-18


      [PLEA COUNSEL]: Except for the PCRA issue, Your Honor.

      THE COURT: That’s why I said directly in all Pennsylvania courts,
      not collateral.

      [PLEA COUNSEL]: Thank you, Your Honor.

      THE COURT: Is that correct?

      [APPELLANT]: Yeah.

      THE COURT: You are agreeing to waive and give up all of your
      rights to directly appeal in all Pennsylvania courts any issue
      relating to this case?

      [APPELLANT]: Yes.

      THE COURT: Okay. You are not waiving any type of ineffective
      assistance of counsel appeals but you are waiving all direct
      appeals; is that correct?

      [APPELLANT]: Yes, yes.

                                      ***

      THE COURT: Do you have any questions regarding any rights that
      you are waiving here today?

      [APPELLANT]: No, Your Honor.

                                      ***

      THE COURT: Okay. [Plea counsel], did you discuss the agreement
      with [Appellant] and explain the rights that he’s waiving by
      pleading guilty here today?

      [PLEA COUNSEL]: I did, Your Honor, and we modified the guilty
      plea statement colloquy and the post-sentence rights also, and
      he’s indicated with initials to the rights he’s waiving and also
      acknowledged on the back of the post-sentence rights that he’s
      waiving all appellate rights except for the PCRA rights.


N.T. Guilty Plea, 1/10/18, at 8-10.


      Moreover, statement number thirty-three of the written guilty plea

colloquy provided:

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Guilty Plea Statement (Colloquy), 1/10/17, at ¶ 33.       As indicated above,

Appellant answered “yes” to whether he understood that he was waiving his

direct appeal rights but not his right to challenge plea counsel’s competence.

Id.

       Therefore, there is no support in the record for Appellant’s contention

that plea counsel misadvised him regarding Appellant’s right to challenge plea

counsel’s effectiveness.4 See N.T. Guilty Plea, 1/10/18, at 8-10; Guilty Plea

Statement (Colloquy), 1/10/17, at ¶ 33.
____________________________________________


4
  As noted above, Appellant has not developed any argument as to his
underlying claims that plea counsel was ineffective for failing to (1) challenge



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       In sum, although we disagree with the PCRA court’s waiver analysis, we

agree with its ultimate conclusion that there is no support for the proposition

that plea counsel misrepresented Appellant’s PCRA rights. See Benner, 147

A.3d at 919; Lynch, 820 A.2d at 733. Accordingly, we conclude that because

Appellant’s claim lacks arguable merit, he fails the ineffectiveness test. See

Turetsky, 925 A.2d at 880; Daniels, 963 A.2d at 419.

       As for Appellant’s claim that the PCRA court abused its discretion by

failing to credit Appellant’s testimony that he would not have pled guilty had

he known that by doing so he would be waving his underlying ineffectiveness

claims, it is of no consequence. As discussed above, Appellant did not waive

his underlying ineffectiveness claims by pleading guilty. See Barndt, 74 A.3d

at 191; Lynch, 820 A.2d at 731. In any event, the PCRA court was in a better

position to hear Appellant’s testimony and weigh its credibility. “Indeed, one

of the primary reasons PCRA hearings are held in the first place is so that

credibility determinations can be made[.]” Commonwealth v. Johnson, 966

A.2d 523, 539 (Pa. 2009). Accordingly, where the record supports the PCRA

court’s credibility determinations, this Court is bound by the court’s findings.

See Mitchell, 105 A.3d at 1265; see also Commonwealth v. White, 734

A.2d 374, 421 (Pa. 1999) (reiterating that “there is no justification for an
____________________________________________


the racial make-up of the jury, (2) obtain an in-person line-up, or (3)
challenge the amendment of the information. Therefore, we decline to
address those claims in this appeal. See Commonwealth v. Treiber, 121
A.3d 435, 474 (Pa. 2015); see also Commonwealth v. Kane, 10 A.3d 327,
331 (Pa. Super. 2010) (“This Court will not act as counsel and will not develop
arguments on behalf of an appellant.” (citation omitted)).

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appellate court, relying solely upon a cold record, to review the fact-finder’s

first-hand credibility determinations” (citation omitted)).

            Ineffectiveness Regarding Factual Basis of Plea

      Next, Appellant argues that plea counsel was ineffective for advising

Appellant to plead guilty to the charges of persons not to possess a firearm

and resisting arrest when there was no factual basis presented during the

guilty plea colloquy regarding these offenses.        Appellant’s Brief at 24.

Appellant claims that during the recitation of the factual bases, “there was no

mention of any conviction . . . for an offense under the Controlled Substance,

Drug and Cosmetic Act that may be punishable by a term of imprisonment

exceeding two years, which is an element of the offense for persons not to

possess.”   Id. at 25.   Appellant further claims that no factual basis was

presented “that would give rise to an offense of resisting arrest.” Id.

      By way of background, the PCRA court found that “there is ample

support in the record to demonstrate that there was a factual basis for the

plea to the charges of robbery, persons not to possess firearms, and resisting

arrest.” PCRA Ct. Op. at 38. It set forth its reasoning as follows:

      When the Commonwealth was asked to set forth the factual basis
      for [Appellant]’s guilty plea, the following was placed on the
      record:

         [Commonwealth]: On January 8, 2016 at approximately
         9:13 in the evening[, Appellant] entered a commercial
         business known as the Family Dollar store and brandished
         two handguns and said, give me the money or I’ll kill you,
         to two cashiers and, with that, they loaded approximately in
         excess of $400 into a family general dollar store bag, gave
         it to [Appellant] – not gave it to but surrendered it to

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        [Appellant] at which time he left the building with money
        and he was apprehended probably – actually they located
        him about 16 minutes later but it took about an hour and
        half to two hours to physically locate him after he ran. And
        when they discovered him he had the goods on his person.

     T.P. Jan. 10 at 21-22.

     [Appellant] also signed the Information pleading guilty to robbery,
     resisting arrest, and persons not to possess firearms. See
     generally Information. Count 5 of the Information read as
     follows:

        [Appellant], with the intent of preventing a public servant
        from effectuating a lawful arrest or discharging any other
        duty, creates a substantial risk of bodily injury to the public
        servant or anyone else, or employs means justifying or
        requiring substantial force to overcome the resistance, to
        wit: [Appellant] did struggle with Police Officers as
        said officers were attempting to place [Appellant]
        under arrest, namely Officer T. Wagner, Officer
        Siegfried, Officer VanHorn and Officer Ocetnik.

     Id. at 1. Count 6 of the Information stated:

        [Appellant] being a convicted felon in violation of act April
        14, 1972, known as the Controlled Substance, Drug, Device
        and Cosmetic Act, or any equivalent Federal statute of any
        other state that may be punishable by a term of
        imprisonment exceeding two years, did possess, use,
        control, sell or transfer or manufacture a firearm, to wit:
        [Appellant] possessed a Smith & Wesson air[]weight
        revolver and a Keltec semi-automatic pistol.
        [Appellant] previously had been convicted of the
        crime of Manufacture of a Controlled Substance by
        person not registered.

     Id. at 2.

     We addressed the criminal Information during [Appellant]’s guilty
     plea colloquy:

        THE COURT: Now I have a Criminal Information and that
        document has a signature on the back page. Is that your
        signature, [Appellant]?

        [APPELLANT]: Yes, Your Honor.

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        THE COURT: Did you read the Criminal Information before
        you signed it?

        [APPELLANT]: Yes.

        THE COURT: Did you understand it?

        [APPELLANT]: Yes.

        THE COURT: And did you sign it voluntarily?

        [APPELLANT]: Yes.

        THE COURT: And do you understand by signing that
        document, appearing here today, and engaging in this
        discussion with me you are pleading guilty to the three
        crimes I outlined previously?

        [APPELLANT]: Yes.

     T.P. Jan. 10 at 12-13.

     Prior to his guilty plea hearing, [Appellant] received and reviewed
     the Pennsylvania Standard Criminal Jury Instructions for the
     charges of robbery, resisting arrest, and persons not to possess
     firearms. See id. at 11, Court Ex. 1. [Appellant] stated that he
     understood the elements of each offense:

        THE COURT: Court Exhibit number 1 is a copy of a
        document that we gave to [Appellant] prior to beginning the
        guilty plea colloquy and it is a copy of the Pennsylvania
        [Suggested S]tandard [J]ury [I]nstructions for all the
        charges to which [Appellant] is pleading guilty today.
        [Appellant], you read that document; correct?

        [APPELLANT]: Yes, Your Honor.

        THE COURT: And after reading that document do you
        understand what [sic] elements that the Commonwealth
        would have had to prove beyond a reasonable doubt for the
        charges of robbery, prohibited person having a firearm, and
        resisting arrest?

        [APPELLANT]: Yes, Your Honor.

        THE COURT: So you understand the crimes to which you
        are pleading guilty have a number of elements or things that



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          the Commonwealth has to prove beyond a reasonable
          doubt; correct?

          [APPELLANT]: Yes.

          THE COURT: And you understand what those elements are
          and you understand the burden of beyond a reasonable
          doubt; correct?

          [APPELLANT]: Yes.

      Id. at 11-12.

                                     ***

      Here, there is ample support in the record to demonstrate that
      there was a factual basis for the plea to the charges of robbery,
      persons not to possess firearms, and resisting arrest. During the
      colloquy, the Commonwealth recited a factual basis supporting the
      charge of robbery, and arguably, supporting the charge of persons
      not to possess firearms.        See T.P. Jan. 10 at [5,] 21-22
      (describing robbery and indicating [Appellant] “brandished two
      handguns”[; indicating Appellant’s acknowledgment that he had
      been previously incarcerated for a robbery in Philadelphia]). Prior
      to this recitation of facts, [Appellant read and agreed to the facts
      summarized in the criminal Information, which specifically
      addressed the factual basis for all three charges. See generally
      Information; T.P. Jan. 10 at 12-13. We also provided [Appellant]
      with the Pennsylvania Suggested Standard Criminal Jury
      Instructions for robbery, persons not to possess firearms, and
      resisting arrest. See T.P. Jan. 10 at 11, Court Ex. 1. [Appellant]
      agreed that he understood the elements the Commonwealth was
      required to prove for each charge and the Commonwealth’s
      burden of proof. See id. at 11-12. . . .

PCRA Ct. Op. at 32-35, 38 (emphases added). We agree with, and adopt, the

above-quoted portions of the PCRA court’s cogent reasoning.        Accordingly,

because Appellant’s issue lacks arguable merit, he has failed to establish plea

counsel’s ineffectiveness. See Turetsky, 925 A.2d at 880; Daniels, 963 A.2d

at 419.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2018




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