J-S72028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
            v.                            :
                                          :
TRAVIS JOHNSON,                           :
                                          :
                        Appellant         :     No. 708 WDA 2014


              Appeal from the PCRA Order Entered April 8, 2014,
                 In the Court of Common Pleas of Erie County,
              Criminal Division, at No. CP-25-CR-0003571-2012.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 02, 2014

      Travis Johnson (“Appellant”) appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.

§§ 9541–9546. We affirm.

      On the eve of trial, Appellant entered a no-contest plea to various drug

charges.   Although he received written and oral notice of his sentencing

date, Appellant failed to appear and was sentenced in absentia on June 25,

2013, to incarceration for an aggregate term of 126 to 252 months. Having

missed his direct-appeal period while a fugitive, Appellant filed a pro se

PCRA petition in which he asserted claims of ineffective assistance of

counsel. Petition, 11/15/13. The PCRA court appointed counsel, who filed a

supplemental PCRA petition on January 17, 2014. After the Commonwealth

filed a response to the supplemental petition on February 12, 2014, the
_________________________
*Retired Senior Judge assigned to the Superior Court.
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PCRA court filed a notice of intent to dismiss Appellant’s petition on February

26, 2014. Appellant filed a response, proffering after-acquired information

of an exculpatory witness named Scott Hoag. Response to Notice of Intent,

3/31/14.   After reviewing Appellant’s response, the PCRA court entered a

final order of dismissal on April 8, 2014.     This appeal followed, wherein

Appellant presents a single issue for review:     “[Whether t]he PCRA Court

erred in denying [Appellant’s] PCRA petition where he argued that he was

forced to enter a plea because his trial counsel was not prepared and,

specifically, had not secured certain witnesses on [Appellant’s] behalf.”

Appellant’s Brief at 1.

      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.

Phillips, 31 A.3d at 319. (citing Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001)).

      Appellant complains that trial counsel was ineffective for failing to call

witnesses, failing to explain the ramifications of entering a plea, and failing

to file a motion to withdraw the no-contest plea. Appellant’s Brief at 3. In




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response, the Commonwealth contends that, despite Appellant’s current

protestations, his plea was knowing, intelligent, and voluntary, and his

counsel was not ineffective. Commonwealth’s Brief at 3–4.

      A PCRA petitioner may be entitled to relief if the petitioner pleads and

proves facts establishing ineffectiveness of prior counsel.      42 Pa.C.S. §

9543(a)(2)(ii).

             To establish ineffectiveness, a petitioner must plead and
      prove the underlying claim has arguable merit, counsel’s actions
      lacked any reasonable basis, and counsel’s actions prejudiced
      the petitioner. Counsel’s actions will not be found to have lacked
      a reasonable basis unless the petitioner establishes that an
      alternative not chosen by counsel offered a potential for success
      substantially greater than the course actually pursued. Prejudice
      means that, absent counsel’s conduct, there is a reasonable
      probability the outcome of the proceedings would have been
      different. The law presumes counsel was effective.

             Moreover, in the particular context of the alleged failure to
      call witnesses, counsel will not be deemed ineffective unless the
      PCRA petitioner demonstrates: (1) the witness existed; (2) the
      witness was available; (3) counsel knew of, or should have
      known of the existence of the witness; (4) the witness was
      willing to testify for the defense; and (5) the absence of the
      testimony was so prejudicial to petitioner to have denied him or
      her a fair trial.

Commonwealth v. Miner, 44 A.3d 684, 687 (Pa. Super. 2012) (internal

citations omitted).

      Here, the PCRA court disposed of Appellant’s challenges with the

following analysis:

           A review of the trial transcript indicates [Appellant’s] plea
      was entered on the eve of trial and was voluntary and knowing.


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      Further, having been given written and oral notice of his
      sentencing date, [Appellant] failed to appear and was a fugitive
      from justice and had to be picked up on a bench warrant. At no
      time during this process did [Appellant] raise the issue of the
      voluntariness of his plea.

            As to the failure of counsel to secure witnesses, as the
      Commonwealth points out, the only witness identified and
      proposed testimony described was in fact in the courtroom at the
      time of the scheduled trial, and [Appellant’s] subsequent plea.

PCRA Notice of Intent to Dismiss, 2/26/14, at 1.

      In consideration of Appellant’s after-acquired evidence, the PCRA court

further opined as follows:

            [Appellant] now presents a signed statement by a Scott
      Hoag, a convicted drug dealer, which sets forth that one Byron
      Smith in December 2012 told Hoag that all of “his meth making
      stuff…” that the police found at his girlfriend’s house “all
      belonged to someone else”. This cannot be grounds for
      [Appellant’s] allegation that counsel did not subpoena witnesses
      for trial since there is no contention that counsel was ever
      informed of Mr. Hoag or this alleged testimony.

            Further, if the statement by Smith was made in December
      of 2012, [Appellant] has not set forth when he learned of this
      information and why it took over a year to do so. Also, there is
      nothing contained in the statement to tie this particular
      information to [Appellant] or his case.1 Lastly, the statement is
      not sworn to or notarized. Nor has it been set forth that the
      witness is available and willing to testify. In any event, this
      witness is irrelevant since he was not available at the time of
      [Appellant’s] plea (or trial) as he was unknown to [Appellant] or
      counsel at that time.         [Appellant] pled guilty voluntarily,
      knowingly, and under oath. He did not file a motion to withdraw
      his plea either before or after his sentencing but rather
      absconded, fleeing the jurisdiction.      Based on [Appellant’s]
      contentions, the facts of record, and the applicable law,
      [Appellant] is not now entitled to a PCRA hearing or relief.




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             1
                In fact, Byron Smith was a named co-conspirator
             with [Appellant] and charged with similar offenses.
             He had already pled guilty at docket 3563-2012 to
             Possess of Red Phos, etc, with Intent to Manufacture
             a Controlled Substance, the most serious charge on
             March 19, 2013 and on May 29, 2013, sentenced to
             8 to 16 months [of] incarceration followed by 24
             months’ probation. So there was no question that
             Mr. Smith, while he may have implicated [Appellant]
             had there been a trial, would not (and could not in
             light of his plea) have set forth as Mr. Hoag claimed,
             “that it all belonged to someone else, so he could not
             be charged with any of it”.

PCRA Final Order, 4/8/14, at 1–2.

      Our review of the record discloses no basis for disturbing the PCRA

court’s   determination.    Although   Appellant   pleads   that   counsel   was

ineffective for not securing witnesses and for not informing Appellant that he

could withdraw his plea, Appellant has failed to prove the underlying claims.

      In his PCRA petition, Appellant identified two witnesses who, he

claims, were present at his plea hearing and willing to testify.       Petition,

11/15/13, at 5–6.    In his response to the PCRA court’s notice of intent to

dismiss, Appellant identified Scott Hoag and provided his statement of

February 24, 2014, as exculpatory evidence. Response to Notice of Intent,

3/31/14, at 1 and Attachment.       Yet, nothing in the record indicates that

counsel knew, or should have known, of the existence of these witnesses.

Moreover, at the plea hearing, the trial court gave Appellant multiple




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opportunities to enter a no-contest plea or proceed to trial.1 Each time, with

two of his proffered witnesses in court, Appellant chose to plead no-contest.

N.T., 5/13/13, at 13–14. As for Mr. Hoag, Appellant did not indicate in his



1
  When Appellant indicated to the trial court that he “was kind of forced into
pleading no-contest,” the following exchange ensued:

             THE COURT: Like I said, you don’t have to plead. We
      have a jury ready. The Commonwealth is ready to proceed to
      trial. They have their witnesses, and this is the time that has
      been scheduled for trial.

             [APPELLANT]: I’m pleading no-contest, your Honor, just
      to cooperate with everybody, and they said this is probably the
      best thing to do. But I just want you to know that I’m not guilty
      of all them things that they’re telling me, but I will plead no-
      contest.

            THE COURT: Well, look, nobody can force you to plead no-
      contest, number 1. And, number 2, the decision has to be yours
      and yours alone. So if you want to plead no-contest, that’s up to
      you. If you want to go to trial, that’s up to you. But today’s the
      day and now is the time for that decision. So what do you want
      to do?

            [APPELLANT]: No-contest, your Honor.

             THE COURT: All right. Now, do you understand that you
      can’t come back at a later time and say, somebody forced me to
      plead, or somebody made me plead, or I didn’t want to plead,
      this is the time. If you want to go to trial, it’s now. If you want
      to plead no-contest, that’s now.       But either way, it’s your
      decision and the final decision is yours and yours alone. Do you
      want to plead no-contest at this time, or do you want to go to
      trial?

            [APPELLANT]: No-contest, your Honor.

Id. at 14–15.

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response if this witness was available and willing to testify for the defense.

Nor did Appellant explain why he waited more than a year to disclose the

substance of Mr. Hoag’s prison conversation in December 2012.

      Finally, we consider Appellant’s argument that “counsel should have

known that he wished to withdraw his plea based upon the fact that his plea

was entered only after a discussion on the record which included his

implication that he was reluctant to enter the plea” to be specious.

Appellant’s Brief at 3. Appellant acknowledged orally before the trial court

and   in   writing   that   he   understood   his   right   to   a   jury   trial,    the

Commonwealth’s factual allegations, and the maximum sentences.                       N.T.,

5/13/13, at 2–14, Statement of Understanding of Rights.               Appellant also

acknowledged that entry of a no-contest plea precluded any future challenge

that he “made a mistake” or “didn’t want to plead, or . . . any other excuse

for pleading” no-contest. Id. at 13–14. Nothing in the record indicates that

Appellant was reluctant to enter a plea.            Indeed, “to cooperate with

everybody” and because it was “the best thing to do,” Appellant chose to

enter the no-contest plea after declining several opportunities from the trial

court not to plead, but to summon the waiting jury and proceed with the

scheduled trial. Id.

      In sum, Appellant’s underlying claims that counsel failed to secure

witnesses and failed to inform Appellant that he could withdraw his plea lack




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merit.   Based upon this record, we agree with the PCRA court that

Appellant’s plea was knowing, intelligent, and voluntary and that counsel

was not ineffective.    The record supports the PCRA court’s determination,

and its determination is free of legal error.    Thus, we affirm the order

denying collateral relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2014




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