J-S54029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

BRIAN EDWARD BOYER

                            Appellant                No. 147 MDA 2014


                  Appeal from the PCRA Order January 21, 2014
                  In the Court of Common Pleas of Berks County
               Criminal Division at No(s): CP-06-CR-0002326-2012


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                       FILED SEPTEMBER 16, 2014

        Appellant, Brian Edward Boyer, appeals pro se from the January 21,

2014 order dismissing his first petition for relief filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review, we

affirm.

        We summarize the factual and procedural background of this case as

follows. On June 8, 2012, the Commonwealth filed an information charging

Appellant with 17 counts of sexual abuse of children.1 On January 16, 2013,

Appellant entered into a negotiated guilty plea for one count of sexual abuse

of children.     Pursuant to said agreement, the same day, the trial court



____________________________________________
1
    18 Pa.C.S.A. § 6312(d)(1).
J-S54029-14


remaining 16 counts were dismissed. Appellant did not file a post-sentence

motion with the trial court, nor did he file a direct appeal with this Court.

       On May 7, 2013, Appellant filed a timely pro se PCRA petition.           The

PCRA court appointed counsel.           After several extensions, on October 30,

2013, PCRA counsel filed a petition to withdraw as counsel along with a no-

merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc), and their progeny. On December 20, 2013, the PCRA court entered

an order notifying Appellant of its intent to dismiss his PCRA petition without

a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907, and



response. The PC

petition without a hearing on January 21, 2014.           On January 21, 2014,

Appellant filed a timely pro se notice of appeal.2        On January 27, 2014,

Appellant filed a timely amended pro se notice of appeal.3


____________________________________________
2

however, that the certified record contains the envelope in which Appellant
mailed the motion, which is postmarked January 21, 2014. Under the
prisoner                a pro se
                                                       Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal
denied, 46 A.3d 715 (Pa. 2012). Therefore, we treat January 21, 2014 as
the filing date.
3

however, the certified record contains the postmark bearing the date of
(Footnote Continued Next Page)


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      On appeal, Appellant raises four issues for our review.

               1.
                       involuntary and unknowing manner?

               2.
                       coercive tactics of his trial counsel?

               3.      Was trial counsel ineffective for failing to move

                       when requested to do so?

               4.      Was trial counsel ineffective for failing to
                       properly investigate, subpoena police and
                       parole records concerning issues related to the
                       search and interview of Jeff Fink as a possible
                       alternative suspect and/or witness and
                       subpoena potential witnesses and investigate




      We begin by noting our well-                                     In reviewing

the   denial    of   PCRA



Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

                                                                             dings

of the PCRA court and the evidence of record, viewed in the light most

                                                                Commonwealth v.

Spotz                                                                      -settled

                       _______________________
(Footnote Continued)

January 27, 2014. Therefore, pursuant to the prisoner mailbox rule we treat
January 27, 2014 as the filing date. See Chambers, supra. We also note
that Appellant and the PCRA court have complied with Pa.R.A.P. 1925.



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                                    determinations are binding upon an appellate

                                                             Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

                                                     de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

       The Sixth Amendment to the Federal Constitution provides in relevant



                                                       4
to have the Assistance of Counsel f                        U.S. Const. amend. vi.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.          See generally Strickland v.

Washington, 466 U.S. 668, 686; Commonwealth v. Pierce, 527 A.2d

973, 975 (Pa. 1987).




Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege



had no reasonable strategic basis for his action or inaction; and (3) the


____________________________________________
4
    Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
                  [i]n all criminal prosecutions the accused hath a right to be

Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



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petitioner was prejudiced   that is, but f

there is a reasonable likelihood the outcome of the proceedings would have

                   Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.



                                               Commonwealth v. Elliott, 80

A.3d 415, 427 (Pa. 2013) (citation omitted).

     We also note that a PCRA petitioner is not automatically entitled to an

                                                                        g a

petition without a hearing for an abuse of discretion.     Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted).

            [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
                                   n to decline to hold a hearing if

            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in
            light of the record certified before it in order to
            determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal



fishing expedition for any possible evidence that may support some

                                             Roney, supra at 605 (citation

omitted).




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together. In his first two issues, Appellant avers that his guilty plea was not



tactics of counsel.

included the following.

             Appellant   repeatedly    contacted     counsel   and
             requested that she perform services on his behalf
             that would actually form a valid defense at trial.
             Included in these requests were (1) subpoenaing
             police and parole records; (2) establishing a chain of
             custody on the cell phone in which the pornographic

             establish an illegal search and seizure argument, as
             well as determining whether or not he possessed the

             parole authorities; (4) failing to obtain prior
             statements made by Debra Mohring to use as
             impeachment to her testimony; (5) failing to
             interview Carol Boyer as a potential defense witness;


Id. at 9-10. In his fourth issue, Appellant avers that counsel was ineffective

for not performing some of the above-

             Appellant made voluminous requests for [counsel] to
             contact him concerning a trial strategy, specifically,
             to seek certain parole and police records that would

             had a prior conviction for invasion of privacy, and did
             in fact possess the cell phone in question prior to it
             being discovered with child pornography on it.
             Further, [] Appellant sought for [counsel] to
             subpoena certain witnesses that would have cast

             witness, Debra Mohring.

Id. at 13.


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     In order to be eligible for relief under the PCRA, the statute requires

the petitioner to show the following by a preponderance of the evidence.

           § 9543. Eligibility for relief

           (a) General rule.--To be eligible for relief under
           this subchapter, the petitioner must plead and prove
           by a preponderance of the evidence all of the
           following:



           (2) That the conviction or sentence resulted from
           one or more of the following:

                 (i) A violation of the Constitution of this
                 Commonwealth or the Constitution or laws of
                 the United States 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.

                 (ii) 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.

                 (iii) A plea of guilty unlawfully induced where
                 the circumstances make it likely that the
                 inducement caused the petitioner to plead
                 guilty and the petitioner is innocent.



           (3) That the allegation of error has not been
           previously litigated or waived.




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42 Pa.C.S.A. § 9543(a). A                                      if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

                                                                            Id.

§ 9544(b). It is also axiomatic that when a defendant pleads guilty he or

she

                                Commonwealth v. Barbaro, 94 A.3d 389,

391 n.2 (Pa. Super. 2014) (citation omitted).

      In the case sub judice, Appellant did not file a direct appeal in this

Court after his guilty plea was entered and his sentence imposed. Appellant

could have raised the issue of the voluntariness of his plea directly in such

an appeal, but he did not.       Therefore, the issue is waived under the

parameters of the PCRA.     See 42 Pa.C.S.A. §§ 9543(a), 9544(b); accord

Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal

denied

warrant relief.



tactics is more properly viewed as a claim that counsel was ineffective for

not performing those tasks. See                          -10 (analyzing claim

under the ineffective assistance of counsel rubric).        As noted above,



Id. at 13-14.




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outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

         Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013)

                                                           Thus, to establish

prejudice, the defendant must show that there is a reasonable probability



have insisted on going to trial.   Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014) (citation omitted), appeal denied, --- A.3d ---, 95

WAL 2014 (Pa. 2014).



during the plea colloquy, and a defendant may not later offer reasons for



Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012)

(citations omitted; brackets in original), appeal denied, 63 A.3d 773 (Pa.

2013).

            The longstanding rule of Pennsylvania law is that a
            defendant may not challenge his guilty plea by
            asserting that he lied while under oath, even if he

            defendant who elects to plead guilty has a duty to
            answer questions truthfully. We [cannot] permit a
            defendant to postpone the final disposition of his
            case by lying to the court and later alleging that his
            lies were induced by the prompting of counsel.




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Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)

(citations omitted; brackets in original), appeal denied, 940 A.2d 365 (Pa.

2007); see also Brown, supra.

     In this case, when Appellant entered his guilty plea, the trial court

engaged in a plea colloquy as required by Pennsylvania Rule of Criminal

Procedure 590.   See generally N.T., 1/16/13, at 2-5; Pa.R.Crim.P. 590,

cmt.; Commonwealth v. Prendes, --- A.3d ---, 2014 WL 3586262, *10

(P                           [u]nder Rule 590

that a defendant understands: (1) the nature of the charges to which he is

pleading guilty; (2) the factual basis for the plea; (3) he is giving up his

right to trial by jury; (4) and the presumption of innocence; (5) he is aware

of the permissible ranges of sentences and fines possible; and (6) the court

is not bound by the terms of the agreement unless the court accepts the

           Among the questions asked of Appellant was whether he was

                               Id. at 3. Appellant answered this question in

the affirmative. Id. As a result, Appellant cannot now claim that he was not



of these                                                 See Brown, supra

                                                    [Brown] felt coerced, at



[he] testified that it was his decision to plead guilty, and that he was

satisfied with the representation provided by counsel


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J-S54029-14


added).     Therefore, Appellant is not entitled to relief on his second and

fourth issues.



was ineffective for not filing a motion to withdraw his guilty plea when being

asked to do so. Appellan

letter to counsel on February 1, 2013 asking her to file a motion to withdraw

a guilty plea. Id.

                                                    Exhibit B.5

                                                                  a written post-

sentence motion shall be filed no later than 10 days after imposition of



validity of a plea of guilt         Id. at 720(B)(1). In this case, Appellant was

sentenced on January 16, 2013.             As a result, any post-sentence motion

requesting that Appellant be permitted to withdraw his guilty plea was

required to be filed by January 28, 2013.6 Appellant did not make any other

request for counsel to file a motion to withdraw his guilty plea. Therefore,


____________________________________________
5
  We note that this letter does not appear in the certified record, nor is there
any indication that this letter was mailed to counsel, much less received by
counsel. However, even assuming arguendo that it was, for the reasons
discussed infra, it would not entitle Appellant to relief.
6
  We note that the tenth day, January 26, 2013, was a Saturday. It is
axiomatic that when calculating a filing period, weekends are excluded from
this computation. 1 Pa.C.S.A. § 1908. Therefore, Appellant had until
Monday, January 28, 2013 to timely file his post-sentence motion.



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to file a motion to withdraw his guilty plea, the filing period for such a

motion had already expired. See id. at 720(A). It is axiomatic that counsel

cannot be ineffective for failing to raise an issue that cannot be addressed by

the trial court.   See, e.g., Fears, supra

deemed ineffective for failing to rais

omitted). A

court properly refused to grant relief. See Simpson, supra.



are waived or devoid of merit. We further conclude the PCRA court did not



hearing.   See Roney, supra

2014 order is affirmed.

      Order affirmed.

      Judge Lazarus joins the memorandum.

      Judge Stabile concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2014




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