J-S66003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

FRANK PEKULAR,

                         Appellant                  No. 883 WDA 2014


                Appeal from the PCRA Order of May 12, 2014
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0005537-2010


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 05, 2016

      Appellant, Frank Pekular, appeals from an order entered on May 12,

2014 that denied his petition filed pursuant to the Post Conviction Relief Act

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

      We glean the historical facts in this case from the summary of the

evidence proffered by the Commonwealth at Appellant’s plea hearing.        On

November 28, 2009, at approximately 8:00 p.m., Appellant entered the BP

filling station and convenience store at 910 Sawmill Run Boulevard in

Allegheny County.      He approached the counter and purchased a pack of

crackers with loose change. Appellant then left the convenience store and

walked outside. He paced around the store, returned, and selected another

package of crackers.




*Retired Senior Judge assigned to the Superior Court.
J-S66003-15



     When Appellant came up to the purchase window, Lucinda Wetzel was

the cashier.       As Ms. Wetzel opened the drawer to the cash register,

Appellant dove underneath a security barrier and unsuccessfully attempted

to grab cash from the open register.             Appellant then fled outside and

attempted to rob Ms. Wetzel.       Next, Walter Wetzel chased Appellant and

brandished     a   firearm.   If   the    case    had   proceeded    to   trial,   the

Commonwealth’s witnesses were prepared to testify that Mr. Wetzel was

acting within the scope of his employment at the BP station when he

brandished a firearm in an attempt to stop Appellant’s efforts to commit

robbery.

     Mr. Wetzel then got in front of the driver’s side of Appellant’s vehicle.

After a three- or four-second pause, Appellant accelerated his vehicle

forward at a high rate of speed.         Appellant’s vehicle struck Mr. Wetzel,

causing him to go onto and over the hood of the car.                Appellant never

attempted to decelerate his vehicle and Mr. Wetzel was dragged for some

distance and later run over by Appellant. Appellant fled the scene without

stopping.

     Mr. Wetzel suffered severe brain injuries as a result of these events

and succumbed to these injuries on April 2, 2010. The Commonwealth was

prepared to establish at trial that the cause of Mr. Wetzel’s death was blunt

force trauma to the head, consistent with a motor vehicle accident and a

pedestrian strike.     At the time, Appellant was not properly licensed to




                                         -2-
J-S66003-15



operate a motor vehicle in Pennsylvania. See Trial Court Opinion, 5/29/15,

at 3-4.

        On January 28, 2011, Appellant pled guilty to one count of

third-degree murder1 and one count of accident involving death or personal

injury.2   On September 28, 2011, the trial court sentenced Appellant to

serve an aggregate sentence of 22 to 44 years in prison.        Counsel for

Appellant subsequently filed a petition to reconsider sentence and on March

1, 2012, after a hearing, the court modified Appellant’s sentence to an

aggregate term of ten to 20 years’ imprisonment.            Thereafter, the

Commonwealth moved the court to reconsider the modified sentence. The

court denied the Commonwealth’s motion on March 23, 2012.                The

Commonwealth subsequently filed an appeal, which this Court dismissed on

May 28, 2013 for failure to file a brief.

        Appellant initiated collateral proceedings on August 19, 2013.   The

PCRA court appointed counsel and convened an evidentiary hearing on

March 19, 2014. The PCRA court dismissed Appellant’s petition on May 12,

2014 and Appellant filed a timely notice of appeal.   On June 5, 2014, the

PCRA court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925.        Appellant timely


____________________________________________


1
    18 Pa.C.S.A. §2502(c).
2
    75 Pa.C.S.A. §3742(a).



                                           -3-
J-S66003-15



complied and the PCRA court issued its Rule 1925(a) opinion on May 29,

2015.

        On appeal, Appellant raises the following issues for our review:

        [1.] Did the lower court err by finding that trial counsel was not
        ineffective by failing to meet with the appellant and discuss his
        decision to withdraw the guilty plea, failing to argue the motion
        to withdraw the guilty plea, giving appellant erroneous advice as
        to the sentence that would be imposed and failing to describe
        the elements of third degree murder?

        [2.] Was the plea of guilty unlawfully induced by trial counsel?

Appellant’s Brief at 4.

        Appellant raises interrelated claims challenging an order that denied

collateral relief; hence, we shall address Appellant’s claims in a single

discussion.    “Under the applicable standard of review, we must determine

whether the ruling of the PCRA court is supported by the record and is free

of legal error.”   Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)

(citation omitted). In conducting this inquiry, “[t]he PCRA court's credibility

determinations, when supported by the record, are binding on this Court[;

h]owever, this Court applies a de novo standard of review to the PCRA

court's legal conclusions.” Id. (citations omitted).

        Appellant contends that plea counsel’s ineffectiveness unlawfully

induced him to enter an invalid guilty plea.      Specifically, Appellant claims

that counsel only met with him on one occasion before entry of the plea,

that counsel advised Appellant that he would receive a four- to eight-year



                                       -4-
J-S66003-15


sentence, that counsel failed to adequately explain the elements of

third-degree murder, and that counsel failed to litigate a motion to withdraw

Appellant’s guilty plea. Appellant maintains that this Court should allow him

to withdraw his guilty plea and order a new trial.

      To prevail on a petition for PCRA relief, a petitioner must plead and

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

resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A.

§ 9543(a)(2).         Spotz,   supra.       These      circumstances    include      the

ineffectiveness 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.A. § 9543(a)(2)(ii).

      Our analysis of an ineffectiveness claim begins with the presumption

that counsel is effective. Spotz, supra. To overcome this presumption and

prevail   on   such    a   claim,   Appellant   must    plead   and    prove,   by    a

preponderance of the evidence, three elements: (1) the underlying legal

claim has arguable merit; (2) counsel had no reasonable basis for his action

or inaction; and (3) Appellant suffered prejudice because of counsel's action

or inaction. Moreover,

      claims of counsel's ineffectiveness in connection with a guilty
      plea will provide a basis for relief only if the ineffectiveness
      caused an involuntary or unknowing plea. This is similar to the
      ‘manifest injustice’ standard applicable to all post-sentence
      attempts to withdraw a guilty plea. The law does not require
      that appellant be pleased with the outcome of his decision to
      enter a plea of guilty: All that is required is that [appellant's]


                                        -5-
J-S66003-15


      decision to plead guilty be knowingly, voluntarily and intelligently
      made.

      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. A defendant is bound by
      the statements he makes during his plea colloquy, and may not
      assert grounds for withdrawing the plea that contradict
      statements made when he pled.

      Determining whether a defendant understood the connotations
      of his plea and its consequences requires an examination of the
      totality of the circumstances surrounding the plea.

      [I]n order to determine the voluntariness of the plea and
      whether the defendant acted knowingly and intelligently, the
      trial court must, at a minimum, inquire into the following six
      areas:

        (1) Does the defendant understand the nature of the
        charges to which he is pleading guilty?

        (2) Is there a factual basis for the plea?

        (3) Does the defendant understand that he has a right to
        trial by jury?

        (4) Does the defendant understand that he is presumed
        innocent until he is found guilty?

        (5) Is the defendant aware of the permissible ranges of
        sentences and/or fines for the offenses charged?

        (6) Is the defendant aware that the judge is not bound by
        the terms of any plea agreement tendered unless the judge
        accepts such agreement?

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)

(internal citations omitted).

                                     -6-
J-S66003-15


      We carefully reviewed the certified record, the parties’ appellate

submissions, and the PCRA court’s opinion.         In its opinion, the court

reviewed the transcript of Appellant’s plea hearing and concluded that,

based upon the totality of circumstances, Appellant entered a knowing,

voluntary, and intelligent plea.   PCRA Court Opinion, 5/29/15, at 5.      The

court’s reasons were as follows:

      Next, [Appellant] alleges that [plea] counsel was ineffective.
      [Appellant] completed a written guilty plea colloquy, and the
      [c]ourt also explained [Appellant’s] rights. The [c]ourt advised
      [Appellant] of the maximum penalty that could be imposed, after
      which [Appellant] indicated in the affirmative that he understood
      the nature of the charges and the maximum penalty.
      [Appellant] also admitted his guilt and that he was satisfied with
      his lawyer. [Appellant] also indicated that he answered the
      questions in his colloquy truthfully . . . and that it was his
      knowing, intelligent and voluntary decision to plead guilty. The
      court also asked if [Appellant] was promised anything in
      exchange for pleading guilty other than the terms of the plea
      agreement[.]      Appellant replied, “No, your Honor.”        The
      Assistant District Attorney, in outlining the plea agreement, had
      earlier indicated there was, “No agreement as to sentence.”

      During the PCRA hearing in this matter, [Appellant’s plea
      counsel] testified that he did in fact[] explain the difference
      between [t]hird[-d]egree [m]urder and [m]anslaughter to
      [Appellant], and that he met with his client on numerous
      occasions. [Plea counsel] also testified that he went through the
      written colloquy with [Appellant] who understood and answered
      the questions. [Counsel] denied representing to [Appellant] that
      he would receive a sentence of [four to eight] years[’
      imprisonment.] The [PCRA c]ourt found [counsel’s]testimony to
      be credible.

Id. at 4-5.

      Under the totality of circumstances, we conclude that the PCRA court’s

findings are supported by the record and that its legal conclusions are free of

                                     -7-
J-S66003-15


error.3    We therefore agree that Appellant knowingly, intelligently, and

voluntarily entered his guilty plea. Accordingly, we affirm.


       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




____________________________________________


3
  We are unpersuaded by Appellant’s contention that plea counsel was
ineffective in failing to discuss Appellant’s decision to withdraw his guilty
plea. The PCRA court found that plea counsel testified credibly at Appellant’s
PCRA hearing that he never discussed this decision with Appellant because
he never received a copy of Appellant’s pro se motion to withdraw. See N.T.
PCRA Hearing, 3/19/14, at 34.        Similarly, the record squarely rebuts
Appellant’s claim that his use of prescription medication diminished his
understanding of events at the plea hearing. See N.T. Plea Hearing,
6/28/11, at 5 (Appellant denying the use of drugs, prescription medication,
and alcohol within the last day). Both of these claims are unavailing.



                                           -8-
