J-S58013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER D. BOULDING,

                            Appellant                 No. 1805 WDA 2013


                 Appeal from the PCRA Order October 18, 2013
                in the Court of Common Pleas of Beaver County
              Criminal Division at Nos.: CP-04-CR-0002092-2009;
                            CP-04-CR-0002174-2009


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED SEPTEMBER 23, 2014

        Appellant, Christopher D. Boulding, appeals from the denial of his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        This Court set forth the relevant background of this case in its May 3,

2011 memorandum, as follows:

              On September 12, 2009, Appellant assaulted his girlfriend
        and then held her against her will in their home for a weekend.
        Appellant was charged with aggravated assault, kidnapping,
        terroristic threats, unlawful restraint, simple assault, and false
        imprisonment.[1]
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 18 Pa.C.S.A. §§ 2702(a), 2901(a)(3), 2706(a)(1), 2902, 2701(a)(1), and
2903(a), respectively.
J-S58013-14



              On May 31, 2009, Appellant was arrested for operating a
        vehicle with a blood alcohol content (BAC) of .013. Appellant
        was charged with one count of DUI (general impairment), one
        count of DUI (high rate) his third offense in ten years and one
        count of driving while his operating privilege was suspended or
        revoked.[2]

              The Commonwealth and Appellant negotiated an open plea
        in both cases, by which the charges of aggravated assault,
        kidnapping, terroristic threats, and false imprisonment would be
                                                  nolo contendere plea to
        simple assault, unlawful restraint, and DUI (high rate). At the
        sentencing hearing on September 23, 2010, the Commonwealth
        set forth the factual basis of the offenses and the terms of the
        plea agreement. (See N.T. Sentencing, 9/23/10, at 3, 12-13).

                                       *       *   *

                                               that this was an accurate
        recitation of the plea agreement. (See id. at 5). At the hearing,
        Appellant completed a written plea colloquy and two oral
        colloquies. In the written plea colloquy Appellant averred that
                                                     nd/or fine that can be
                                                                       Nolo
        Contendere Plea Colloquy, 9/23/10, at 3 ¶ 24). He further
        represented that he was not being forced to enter the plea, that
        he was doing it of his own free will, that no threats were made to

        [him] to enter [the] plea of nolo contendere other than [the]
                                                       Id. at [¶ 34; see
        id. at §§ 31-33]). Lastly, Appellant noted
        opportunity to consult with [his] attorney before deciding that
        [he] would enter [his] plea of nolo contendere  Id. at 4 ¶ 42).


        Appellant, wherein counsel reviewed the offenses for which
        Appellant would plead nolo contendere, the maximum sentences
        for each offense, and the terms of the plea agreement. (See
        N.T. Sentencing, 9/23/10, at 8-10). Appellant responded that
____________________________________________


2
    75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), and 1543(b)(1).



                                           -2-
J-S58013-14


     he understood, that he was entering the plea of his own free will,
     that he answered the questions in the written colloquy truthfully,
     and that he was satisfied with his representation. (See id. at
     10-11, 18). The trial court thereafter also conducted an oral
     colloquy with Appellant, who responded again that he was not
     being forced to enter the plea agreement, that he was doing this
     of his own free will, and that he was satisfied with the
     representation of his attorney. (See id. at 19).

           The trial court approved the negotiated plea, and then
     sentenced Appellant to twelve to twenty-four months on the
     offense of simple assault, twenty-four to forty-eight months on
     the offense of unlawful restraint, and ninety days to forty-eight
     months on the offense of DUI (high rate). All of his sentences
     were ordered to run concurrently.         At the conclusion of
     sentencing, Appellant made a request to proceed to trial, which
     was denied by the court. (See id. at 30).

           Appellant filed a post-sentence motion on October 4, 2010,
     seeking to withdraw his nolo contendere plea on the basis that
     he
     (Motion to Withdraw Plea, 10/4/10, at 1 ¶ 3). The trial court
     denied this motion by order dated October 4, 2010. [A] timely
     appeal followed [in which Appellant challenged the denial of his
     post-sentence motion to withdraw his nolo contendere plea on


(Commonwealth      v.   Boulding,   No.   1681   WDA    2010,   unpublished

memorandum, at 1-4 (Pa. Super. filed May 3, 2011)). On May 3, 2011, this

Court affirmed Appel

     . . . in the totality of the circumstances there is ample evidence

     knowingly, voluntarily and intelligently entered his nolo
     contendere plea. The recor
     he misunderstood the plea agreement and that he believed his
     sentence would be time served to two years less one day.
     Accordingly, Appellant has failed to establish manifest
     injustice[.]




                                    -3-
J-S58013-14


(Id. at 8) (citation omitted)

for allowance of appeal on October 28, 2011.        (See Commonwealth v.

Boulding, 30 A.3d 1192 (Pa. 2011)).

       On April 23, 2012, Appellant filed a timely pro se first PCRA petition.

Appointed counsel filed an amended petition on February 25, 2013 and, on

October 18, 2013, the court denied the petition after a hearing. Appellant

timely appealed.3



       I.     Whether the [PCRA] court erred in failing to hold that prior
       legal trial counsel was ineffective in misleading [Appellant] as to
       the meaning of or effect of the terms of the plea agreement
       causing him to enter an involuntary or unknowing plea of no
       contest, which could not have been the result of any rational,
       strategic or tactical decision?

       II.   Whether the [PCRA] court erred during the P.C.R.A.
       hearing in preventing [Appellant] from forcing prior legal counsel
       to admit that at the meeting between them just prior to
       [Appellant] entering his plea, prior legal counsel told him that
       under the terms of the open plea agreement he negotiated
       [Appellant] could and would receive a county (as opposed to a
       state) sentence and be paroled on both cases immediately after
       the plea and sentence hearing?

       III. Whether the [PCRA] court erred during the P.C.R.A.
       hearing in preventing [Appellant] from calling two eyewitnesses
       to the underlying unlawful restraint case to rebut testimony of
       prior legal counsel that prior to [Appellant] entering his plea he

____________________________________________


3

errors complained of on appeal on December 9, 2013. See Pa.R.A.P.
1925(b). The court filed an opinion on January 10, 2014. See Pa.R.A.P.
1925(a).



                                           -4-
J-S58013-14


     (a) caused them to be served with subpoenas for trial and (b)
     discussed their potential testimony at trial?



     Our standard of review and the legal principles applicable to this

matter are well-          In reviewing the denial of PCRA relief, we examine

whether the PC

                   Commonwealth v. Reid, 2014 WL 4097636, at *3 (Pa.

filed August 20, 2014) (quotation marks and citation omitted).

     As relevant here, a PCRA petitioner will be granted relief only
     when he proves, by a preponderance of the evidence, that his
     conviction or sentence resulted from the [i]neffective 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. [See]
     42 Pa.C.S.A. § 9543(a)(2)(ii). Counsel is presumed effective,
     and to rebut that presumption, the PCRA petitioner must

     such deficiency prejudiced him.       In Pennsylvania, we have
     refined the Strickland [v. Washington, 466 U.S. 668 (1984)]
     performance and prejudice test into a three-part inquiry. See
     [Commonwealth v.] Pierce[, 527 A.2d 973 (Pa. 1987)]. Thus,
     to prove counsel ineffective, the petitioner must show that: (1)
     his underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. If a petitioner fails to prove
     any of these pron
     assistance is deemed constitutionally effective if he chose a
     particular course of conduct that had some reasonable basis


Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. Super. 2014)

(quotation marks and some case citations omitted).




                                     -5-
J-S58013-14


                                                     urt in which [the appellant]

could have had review as a matter of right has ruled on the merits of the

           Id. at § 9544(a)(2). However, our Supreme Court has held:

       a Sixth Amendment claim of ineffectiveness raises a distinct
       legal ground for purposes of state PCRA review under §
       9544(a)(2). Ultimately, the claim may fail on the arguable merit
       or prejudice prong for the reasons discussed on direct appeal,
       but a Sixth Amendment claim raises a distinct issue for purposes
       of the PCRA and must be treated as such.

Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005) (citations and

footnote omitted).

       Here, in his first issue, Appellant alleges that the ineffective assistance

of counsel rendered his plea of nolo contendere involuntary.                (See



to the meaning of or effect of th

resulting in an involuntary plea.         (Id. at 19; see id. at 19-29) (internal

quotation marks omitted). This issue does not merit relief.

                                                                              the

petitioner must plead and prove by a preponderance of the evidence . . .

[t]hat the conviction or sentence resulted from . . . [a] plea of guilty[4]

unlawfully induced where the circumstances make it likely that the

____________________________________________


4
                                                                    nolo
contendere                                           Commonwealth v.
Leidig, 850 A.2d 743, 745 (Pa. Super. 2004), affirmed, 956 A.2d 399 (Pa.
2008).



                                           -6-
J-S58013-14


inducement caused the petitioner to plead guilty and the petitioner is

                                               see also Commonwealth v.

Rachak, 62 A.3d 389, 394 (Pa. Super. 2012), appeal denied, 67 A.3d 796

(Pa. 2013) (citing 42 Pa.C.S.A. § 9543(a)(2)(iii)).

      Further,

                   [i]n order for a guilty plea to             be
            constitutionally valid, the guilty plea colloquy must
            affirmatively show that the defendant understood
            what the plea connoted and its consequences. This
            determination is to be made by examining the
            totality of the circumstances surrounding the entry of
            the plea. [A] plea of guilty will not be deemed
            invalid if the circumstances surrounding the entry of
            the plea disclose that the defendant had a full
            understanding of the nature and consequences of his
            plea and that he knowingly and voluntarily decided
            to enter the plea.

      Our law presumes that a defendant who enters a guilty plea was
      aware of what he was doing. He bears the burden of proving
      otherwise. [Commonwealth v.] Pollard, 832 A.2d [517,] 523
                                                               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
                            Commonwealth v. McCauley, 797 A.2d
      920, 922 (Pa. Super. 2001) [(citation omitted)].

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (internal

                                                                   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

                 McCauley, supra at 922 (citation omitted).

and practical matter, it is more difficult for a defendant to prevail on a claim


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J-S58013-14


litigated through the l                                    Spotz, supra at

315 (citation omitted).



issue of the voluntariness of his nolo contendere plea.     (See Boulding,

supra at 1681 WDA 2010, at 4-8). In that appeal, Appellant argued that his



agreement. . . . [Appellant] believed he would be sentenced to concurrent

sentences of time served to two (2) years less one (1) day, and that he

w                                       Id.

After a thorough review of the pertinent law and facts of the plea hearing,



voluntarily and intelligently entered his nolo contendere plea [and that t]he

record belies [his] contentions that he misunderstood the plea agreement . .

       Id. at 8 (citation omitted); see id. at 4-8).5

       Accordingly, because                                             nolo

contendere was voluntary, he has failed to prove the arguable merit of his



____________________________________________


5
    We also observe that

(Order, 10/18/13; see also PCRA Court Opinion, 1/10/14, at unnumbered
page six). Our review of the
we will not disturb it. (See, e.g., N.T. PCRA Hearing, 6/17/13, at 145, 155-
54, 156-58); see also Commonwealth v. Hackett, ___ A.3d ___, 2014
WL 4064039, at *36 (Pa. filed August 18, 2014).



                                           -8-
J-S58013-14




Spotz, supra at 311-12; Collins, supra at 573.



during the P.C.R.A. hearing in preventing [him] from forcing prior legal



                                               e does not merit relief.6

             [W]e note that in cross-examining a witness, an attorney
       is entitled to question the witness about subjects raised during
       direct examination as well as any facts tending to refute
       inferences arising from matters raised during direct testimony. .
       . . Similarly, an attorney may discredit a witness by cross-
       examining the witness about omissions or acts that are
       inconsistent with his testimony. . . . However, the scope and
       limits of cross-examination [are] vested in the . . . court
       discretion and that discretion will not be reversed unless the trial
       court has clearly abused its discretion or made an error of law.

Commonwealth v. Bricker, 882 A.2d 1008, 1018-19 (Pa. Super. 2005)

(citation omitted).




____________________________________________


6
  As a preliminary matter, we note that Appellant utterly fails to provide any
citation to the 209-page PCRA hearing transcript identifying where exactly
the court prevented PCRA counsel from any cross-examination designed to
                                                  Appellant about the plea
                       See                         -34); see also Pa.R.A.P.
2119(c). He also fails to provide any pertinent citation to authority. See
Pa.R.A.P. 2119(a)-
this basis, we decline to do so where we are able to discern his argument
and, thus, it does not preclude our meaningful appellate review. See
Commonwealth v. Rodgers, 605 A.2d 1228, 1233 (Pa. Super. 1992),
appeal denied, 615 A.2d 1311 (Pa. 1992).



                                           -9-
J-S58013-14


       Here, the notes of testimony reveal that the PCRA court allowed

                                  -examine trial counsel thoroughly at the PCRA

hearing.7 (See N.T. PCRA Hearing, 6/17/13, 91-138, 161-77).

       Specifically, PCRA counsel cross-examined trial counsel at length

regarding what he told Appellant about the terms of the open plea in an

effort to get him to admit that he misled him. (See id. at 113-38, 150-58).

                                                   -examination of him, trial counsel

                                                           hat he would be released

                                       id. at 128; see id. at 122, 128, 132); that

he advised Appellant that the best case scenario included a minimum of

time-served, (see id. at 119-

discretion i                                               id. at 131; see id. at 118,

                                                                           see id. at

124, 130).

       Based on the foregoing, and our independent review of the 209-page

PCRA    hearing    transcript,    specific                                           -

examination of trial counsel, we conclude that the PCRA court did not abuse

its discretion in allegedly limiting cross-examination.           See Washington,

supra                                                                           .


____________________________________________


7

(See N.T. PCRA Hearing, at 5).



                                          - 10 -
J-S58013-14


       In his third issue,8 Appellant claims that the PCRA court erred in failing



                                                      Id. at 36).   Specifically,

Appellant argues that the court

       wrongly failed to consider the true . . . purpose [of the
       testimony, which was] to shed a light on the credibility of prior
                                                                     -trial
       preparation and thereby cast doubt on his entire testimony,
       especially as it related to the advice . . . or mis-advice . . . he
       gave [Appellant] regarding the open plea.

(Id. at 38). This issue lacks merit.

       The admissibility of evidence is a matter solely within the discretion of

the trial court[ and] we will rever

testimony only if there has been an abuse of discretion. Commonwealth v.

Walsh, 36 A.3d 613, 621 (Pa. Super. 2012) (case citations omitted).



call two witnesses to rebut the testimony of Attorney Winter.         (See N.T.

PCRA Hearing, at 181-82). The Commonwealth objected on the ground that

Appellant failed to attach affidavits and witness statements to his amended



____________________________________________


8
  We again observe that Appellant failed to cite pertinent authority or to
provide citations to the record where the PCRA court precluded his
witnesses. (See                           see also Pa.R.A.P. 2119(a)-(c).
However, because this does not preclude our meaningful appellate review,
we decline find his third issue waived, and will consider its merits. See
Rodgers, supra at 1233.



                                          - 11 -
J-S58013-14


PCRA petition and that, therefore, the witnesses were precluded from

testifying.9 (See id. at 182).

       Our independent review confirms that Appellant failed to attach any

proposed witness certifications to either the pro se or the amended petition

in violation of Pennsylvania Criminal Rule of Procedure 902(A)(15) and

section 9545(d)(1) of the PCRA. (See Amended PCRA Petition, 2/25/13; Pro

se Petition, 4/23/12); see also 42 Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P.

902(A)(15).      Therefore, Appellant was not entitled to have his witnesses

testify at a hearing. See Commonwealth v. Reid, ___ A.3d ___, 2014 WL

4097636     at   *5    (Pa.   Super.    filed   Aug.   20,   2014)   (observing   that




____________________________________________


9
    Pursuant to Pennsylvania Rule of Criminal Procedure 902(A)(15), a PCRA

The request for an evidentiary hearing shall include a signed certification as
to each intended witness, stating th

902(A)(15) (emphasis added).

       Similarly, section 9545(d)(1) of the PCRA requires:

       Where a petitioner requests an evidentiary hearing, the petition
       shall include a signed certification as to each intended witness

       of testimony and shall include any documents material to that
                             Failure to substantially comply with
       the requirements of this paragraph shall render the


42 Pa.C.S.A. § 9545(d)(1) (emphasis added).



                                          - 12 -
J-S58013-14


governing entitlement to an evidentiary hearing should p



       Additionally, although his pro se petition contained the names of four

potential PCRA witnesses, their proposed testimony was that they could

have helped him establish his innocence if they had testified at trial. (See

Pro Se

testimony that they were to offer . . . [went] to a guilt phase determination



co

credibility, specifically regarding the advice he gave Appellant about the

open plea. (PCRA Hearing, 183; see id. at 184); (see also Pro Se PCRA

                                                   at 38).

       Based on all of the foregoing, we conclude that the court did not abuse

its discretion when it precluded the proposed testimony identified in the

PCRA petition, because it was irrelevant to the claim of ineffectiveness of

counsel before it.10         (See id.); see also Walsh, supra at 621.11



____________________________________________


10
                                                                 hat the scope of
                             -trial preparation for the [a]ssault [c]ase was not


11
   We observe again that the PCRA court found Attorney Winter to be
credible, and Appellant has failed to establish that the introduction of his
proposed rebuttal witnesses would have changed that outcome. (See Order
(Footnote Continued Next Page)


                                          - 13 -
J-S58013-14


       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




                       _______________________
(Footnote Continued)

                                                    -
39).



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