J-S84019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 MAURICE ADRIAN WILKINS                  :
                                         :   No. 746 MDA 2017
                     Appellant

                 Appeal from the PCRA Order April 25, 2017
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0003314-2013


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                          FILED MARCH 20, 2018

      Maurice Adrian Wilkins appeals from the order, entered in the Court of

Common Pleas of Berks County, denying his pro se petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After

review, we affirm.

      The trial court summarized the relevant procedural history of this case

in its March 28, 2017 order and notice of intent to dismiss Wilkins’ PCRA

petition:

      On or about July 12, 2013, [Wilkins] was charged with three
      counts of [m]urder of the [f]irst [d]egree, three counts of
      [m]urder of the [t]hird [d]egree, two counts of [c]riminal
      [c]onspiracy, three counts of [a]ggravated [a]ssault, one count of
      [p]ersons not to [p]ossess, [u]se, [m]anufacture, [c]ontrol, [s]ell
      or [t]ransfer [f]irearms, one count of [p]ossessing [i]nstruments
      of [c]rime, one count of [k]idnapping and two counts of [c]riminal
      [s]olicitation. On October 21, 2015, [Wilkins] entered into a plea
      agreement and pled guilty to three counts of [m]urder of the
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     [f]irst [d]egree.   On the same day, this [c]ourt sentenced
     [Wilkins] to a life term of incarceration without possibility of
     parole, and all remaining charges were dropped. [Wilkins] did not
     pursue an appeal at this time.

     On February 8, 2016, [Wilkins] filed the instant, timely pro se
     [m]otion for [p]ost-[c]onviction [c]ollateral [r]elief. On February
     18, 2016, [the trial court] appointed Osmer Deming, Esquire, to
     serve as PCRA counsel for [Wilkins]. On March 21, 2016, Counsel
     Deming filed a [p]etition for [e]xtension of [t]ime to [f]ile an
     [a]mended PCRA [p]etition or “[n]o [m]erit” [l]etter pursuant to
     Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
     [The trial court] granted that petition on March 22, 2016. Counsel
     Deming filed six additional [p]etitions for [e]xtension of [t]ime,
     which in each case [the trial court] granted.

     On March 2, 2017, Counsel Deming filed a “[n]o [m]erit” [l]etter
     [r]equesting [l]eave of [c]ourt to [w]ithdraw as [c]ounsel.

Order and Notice of Intent to Dismiss, 3/28/17, at 1-2. On March 16, 2017,

the trial court granted Counsel Deming’s petition for withdrawal. On April 25,

2017, the trial court dismissed Wilkins’ PCRA petition, which he timely

appealed on May 3, 2017. Both Wilkins and the trial court have complied with

Pa.R.A.P. 1925. On appeal, Wilkins raises the following issues:

     1. Whether trial counsel was ineffective due to conflict of interest,
     erroneous advice and poor performance?

     2. Whether Wilkins’ guilty plea was unlawfully induced by duress
     from the vigorous assaults and threats by victim’s family and 3½
     years of solitary confinement?

     3. Whether there was a prejudicial conflict of interest by the trial
     court by dual representation, pretrial prejudice, bias treatment by
     the judge, and withheld evidence against witness character?

     4. Whether the PCRA court abused its discretion by failing to
     conduct an evidentiary hearing?



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Brief of Appellant, at 5 (reworded for clarity).

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011), citing Commonwealth v. Berry, 877 A.2d 479,

482 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record.         Id., citing

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

       Wilkins first claims that trial counsel was ineffective at the time of his

plea and sentencing for (1) laboring under a conflict of interest,1 and (2)

inducing his guilty plea with false information regarding harmful DNA

evidence.

       The standard a petitioner must meet for PCRA relief when raising an

ineffective assistance of counsel claim is well settled:

       A petitioner is eligible for PCRA relief only when he proves by a
       preponderance of the evidence that his conviction or sentence
       resulted from one or more of the circumstances delineated in [42
       Pa.C.S.A. § 9542]. One of the grounds enumerated in [42
       Pa.C.S.A. § 9542] involves claims alleging ineffective assistance
       of counsel. Thus, the PCRA provides relief to those individuals
       whose convictions or sentences 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.
       The Supreme Court of Pennsylvania has interpreted that to mean
____________________________________________


1 Eric Angeles, who the Commonwealth listed as a potential witness for the
prosecution, procured representation from the same law firm that employed
Wilkins’ trial counsel.

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      that in order to obtain relief on a claim alleging ineffective
      assistance of counsel, a petitioner must prove that: 1) the claim
      underlying the ineffectiveness claim has arguable merit; 2)
      counsel’s actions lacked any reasonable basis; and 3) counsel’s
      actions resulted in prejudice to petitioner.

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).                      See also

Commonwealth v. Lynch, 820 A.2d 728 (Pa. Super. 2003) (claims that

counsel unlawfully induced defendant to plead guilty are reviewable as claims

of ineffective assistance of counsel).

      Wilkins entered a guilty plea to three counts of murder in the first

degree.    Thus, the only matters Wilkins may raise on appeal are the

jurisdiction of the court, the validity of the guilty plea, and the legality of the

sentence. Commonwealth v. Syno, 791 A.2d 363, 365 (Pa. Super. 2002)

(citation omitted). Therefore, in order to be successful on an ineffectiveness

claim, Wilkins must prove that trial counsel’s ineffectiveness resulted in an

unknowing and involuntary plea.          Commonwealth v. Yeager, 685 A.2d

1000, 1004 (Pa. Super. 1996) (citation omitted).

      Wilkins also argues that his housing in solitary confinement prior to trial

and unidentified threats by the victim’s family caused him to plead guilty

involuntarily. Therefore, we address these claims together, as each implicates

the voluntariness of Wilkins’ guilty plea.

      Under the PCRA, a petitioner is eligible for relief if he pleads and proves

by a preponderance of evidence that he has been convicted of a crime for

which he is currently serving a sentence and that his conviction has resulted

from a plea of guilty unlawfully induced where circumstances make it likely


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that   the   inducement    caused    the   individual   to   plead   guilty.   See

Commonwealth v. Stark, 698 A.2d 1327 (Pa. Super. 1997). 42. Pa.C.S.A.

9543(a)(2)(iii).

       Pennsylvania Rule of Criminal Procedure 590 requires that a guilty plea

be offered in open court and sets a procedure to determine voluntariness and

whether a defendant is acting knowingly and intelligently. The trial court must

conduct a colloquy that includes, at a minimum, the following:

       1. Does the defendant understand the nature of the charges to
       which he or she is pleading guilty or nolo contendere?

       2. Is there a factual basis for the plea?

       3. Does the defendant understand that he/she has the right to a
       trial by jury?

       4. Does the defendant understand that he/she is presumed
       innocent until found guilty?

       5. Is the defendant aware of the permissible range 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. D’Collandfield, 805 A.2d 1244, n. 1 (Pa. Super. 2002)

(citation omitted). See Pa.R.Crim.P. 590 – Comment.

       Here, the record belies Wilkins’ claim that his guilty plea was

involuntary.   At his guilty plea, Wilkins recited in detail his account of the

events leading up to the murder of three victims and stated on the record that

his guilty plea was voluntary.      See N.T. Guilty Plea, 11/21/16, at 12-17.



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Specifically, Wilkins stated that he forwent his trial because he did not “want

to put the [victim’s] family through any grief,” and to “own up to what [he]

had done.” Id. at 16. Moreover, Wilkins signed a written statement affirming

that he understood the nature and consequences of his plea.

       There is no indication in the record that Wilkins’ guilty plea was

involuntary, and therefore, his claim that trial counsel was ineffective is

meritless.2 Yeager, supra.

       Wilkins next claims that the trial court’s partiality to the victims

prejudiced his defense.

       As a general rule, when circumstances arise during the course of
       trial raising questions of the trial judge’s bias or impartiality, it is
       the duty of the party, who asserts that a judge should be
       disqualified, to allege by petition the bias, prejudice, or unfairness
       necessitating recusal.      Furthermore, a judge’s decision to
       continue presiding over a jury trial will not be reversed in
       the absence of a clear abuse of discretion. In order to
       establish an abuse of discretion, the appellant must show
       something more than bias in the abstract; he must ordinarily
       demonstrate that the alleged bias of the judge infected the jury
       or otherwise deprived him of a fair trial.

Commonwealth v. Hewett, 551 A.2d 1080, 1082 (Pa. Super. 1988)

(citations omitted) (emphasis added).



____________________________________________


2 Wilkins’ also argues that trial counsel labored under a conflict of interest at
his guilty plea. However, even if trial counsel labored under a conflict of
interest, Wilkins’ guilty plea invalidates any claim of error stemming from his
preliminary hearing. Commonwealth v. Jones, 929 A.2d 205, 209 (Pa.
2007) (citation omitted) (once a defendant has been convicted, deficiencies
at the preliminary hearing are rendered immaterial). Therefore, this claim is
meritless.

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      Here, Wilkins baldly asserts that the trial court expressed bias by (1)

denying his motion for a change in venue due to pretrial publicity, and (2)

commenting on the video which purportedly showed Wilkins shooting into the

car, killing two men. N.T. Guilty Plea, 11/21/16, at 16 (THE COURT: “I saw

the video in [co-defendant’s] trial. And clearly there’s no question that [the

video] captured you shooting into the other car.”).

      Wilkins fails to establish the requisite bias, prejudice or unfairness to

warrant recusal. The trial court’s comment regarding video evidence from

Wilkins’ co-defendant’s trial occurred after Wilkins tendered his guilty plea and

provided a lengthy and unsolicited account of the murder, during which he

admitted to shooting three or four times into a vehicle. Moreover, even if

Wilkins had established the requisite bias, prejudice or unfairness necessary

to warrant recusal, he waived his right to file a recusal motion when he entered

his guilty plea. See Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007)

(guilty plea constitutes waiver of all non-jurisdictional defects and defenses).

      Last, Wilkins claims that the trial court erred in dismissing his PCRA

petition without a hearing.

      The right to an evidentiary hearing on a post-conviction petition is
      not absolute. A PCRA court may decline to hold a hearing if the
      petitioner’s claim is patently frivolous and is without a trace of
      support in either the record or from other evidence. A reviewing
      court on appeal must examine each of the issues raised in
      the PCRA petition in light of the record in order to determine
      whether the PCRA court erred in concluding that there were no
      genuine issues of material fact and denying relief without
      an evidentiary hearing.



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Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001)

(citations omitted). Wilkins’ PCRA claims are meritless, and thus, the trial

court did not err in dismissing his petition without a hearing. Pa.R.Crim.P.

907(1).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/20/2018




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