J-S83023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA


                      v.

    ANDRE GOFF,

                           Appellant                 No. 775 EDA 2017


                  Appeal from the PCRA Order January 24, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005044-2013

BEFORE: GANTMAN, P.J., OLSON AND DUBOW, JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 13, 2018

        Appellant, Andre Goff, appeals pro se from the January 24, 2017 order

dismissing his first petition filed pursuant to the Post-Conviction Relief Act

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

        The factual background and procedural history of this case are as

follows. On January 20, 2013, Appellant fired several shots near 59th Street

in Philadelphia, Pennsylvania. When police arrested him, they recovered a .40

caliber handgun with an altered serial number.       On April 26, 2013, the

Commonwealth charged Appellant via criminal information with possession of

a firearm by a prohibited person,1 carrying a firearm without a license,2



1   18 Pa.C.S.A. § 6105(a)(1).

2   18 Pa.C.S.A. § 6106(a)(1).
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carrying a firearm on the streets of Philadelphia,3 recklessly endangering

another person,4 and possessing a firearm with an altered serial number.5 On

December 22, 2014, Appellant pled guilty to all five offenses. On June 4,

2015, the trial court sentenced him to an aggregate term of five to ten years’

imprisonment followed by five years’ probation. Appellant did not file a direct

appeal.

        Appellant filed a timely pro se PCRA petition and counsel was appointed.

PCRA counsel moved to withdraw with an accompanying letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On December 19, 2016,

the PCRA court issued notice of its intent to dismiss the petition without an

evidentiary hearing.       See Pa.R.Crim.P. 907.    After receiving Appellant’s

response to the Turner/Finley letter, the PCRA court granted PCRA counsel’s

motion to withdraw and dismissed the petition on January 24, 2017. This

timely appeal followed.6

        Appellant presents two issues for our review:


3   18 Pa.C.S.A. § 6108.

4   18 Pa.C.S.A. § 2705.

5   18 Pa.C.S.A. § 6110.2(a).

6 On March 1, 2017, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On March 16, 2017, Appellant filed his concise statement.
On April 25, 2017, the PCRA court issued its Rule 1925(a) opinion. Both of
Appellant’s issues were included in his concise statement.


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      1. [In light of plea counsel’s ineffectiveness, was Appellant’s guilty
         plea knowing and intelligent?

      2. Did plea counsel render ineffective assistance by not arguing
         that the Commonwealth failed to prove that the firearm’s serial
         number was altered?]

Appellant’s Brief at 2.

      “We review the denial of a PCRA [p]etition to determine whether the

record supports the PCRA court’s findings and whether its [o]rder is otherwise

free of legal error.”     Commonwealth v. McGarry, 172 A.3d 60, 65 (Pa.

Super. 2017) (citation omitted).      Although not phrased as such, both of

Appellant’s issues challenge the effectiveness of his plea counsel.

      “[T]he Sixth Amendment to the United States Constitution and Article I,

[Section] 9 of the Pennsylvania Constitution, [entitle a defendant] to effective

counsel. This right is violated where counsel’s performance so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.” Commonwealth v. Simpson, 112 A.3d

1194, 1197 (Pa. 2015) (internal quotation marks and citation omitted).           “In

the context of a plea, a claim of ineffectiveness may provide relief only if the

alleged   ineffectiveness    caused   an     involuntary   or    unknowing     plea.”

Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017)

(citation omitted).

      “Counsel is presumed to have been effective.”             Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017).                  To prevail on an

ineffective assistance of counsel claim, a “petitioner must plead and prove


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that: (1) the underlying legal claim is of arguable merit; (2) counsel’s action

or inaction lacked any objectively reasonable basis designed to effectuate his

[or her] client’s interest; and (3) prejudice, to the effect that there was a

reasonable probability of a different outcome if not for counsel’s error.”

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (citation

omitted). “Failure to satisfy any prong of the test will result in rejection of the

[petitioner’s] ineffective assistance of counsel claim.”     Commonwealth v.

Smith, 167 A.3d 782, 787-788 (Pa. Super. 2017) (citation omitted).

      Appellant argues that his plea counsel’s ineffectiveness in two respects

caused him to enter an unknowing and/or unintelligent plea. First, he argues

that plea counsel failed to notify him of a plea agreement which would have

resulted in an aggregate sentence of five to ten years’ imprisonment. Even if

plea counsel failed to notify Appellant of this plea offer, he is unable to show

prejudice as he was sentenced to an aggregate term of five to ten years’

imprisonment – the same sentence included in the plea offer.7

      Appellant also argues that plea counsel was ineffective for not objecting

to the mandatory minimum sentence as violating Alleyne v. United States,

133 S.Ct 2151 (2013). The record shows, however, that Appellant did not

receive a mandatory minimum sentence. See Sentencing Order, 6/4/15, at


7 Appellant does not argue that he was prejudiced as a result of the
probationary tail at the end of the sentence. Instead, he makes clear that he
was only concerned with the amount of prison time he received. See
Appellant’s Brief at 7 (noting his concern was with the amount of “real time
he would receive”).


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3-5 (checking the “no” box when asked whether sentences were mandatory

minimums); see generally N.T., 6/4/15 (never mentioning mandatory

minimum during sentencing).      Hence, Appellant’s underlying claim lacks

arguable merit.

     In his second issue, Appellant argues that plea counsel was ineffective

for not challenging the sufficiency of the evidence with respect to the

possession of a firearm with an altered serial number charge. This argument

is without merit. It is axiomatic that the Commonwealth is not required to

prove the sufficiency of the evidence at a guilty plea hearing. Instead, the

Commonwealth only avers what evidence it would have presented at trial and

the defendant must concede the facts are true and sufficient to prove the

crime(s) he is accused of committing.      In his written guilty plea colloquy,

Appellant acknowledged that he understood the elements of the possession of

a firearm with an altered serial number charge and that he was guilty of that

offense.   Written Guilty Plea Colloquy, 12/22/14, at 3; see also N.T.,

12/22/14, at 38-39 (Commonwealth outlining facts supporting alteration of a

serial number charge and Appellant agreeing that those facts were correct).

Therefore, Appellant’s underlying claim lacks arguable merit.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/18




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