J-S46019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ERNIE RIVERA-GONZALEZ

                        Appellant                   No. 2020 MDA 2016


              Appeal from the PCRA Order November 17, 2016
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0005899-2014


BEFORE: BOWES, OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 18, 2017

     Appellant, Ernie Rivera-Gonzalez, appeals pro se from the order

entered on November 17, 2016, dismissing Appellant’s petition filed

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

9546. We affirm.

     The PCRA court has ably summarized the underlying facts and

procedural posture of this appeal. As the PCRA court explained:

        On October 5, 2014, police were called in response to a
        reported stabbing. When officers arrived at the scene, they
        found the victim, Alexander Vazquez-Dones, lying on the
        sidewalk, bleeding from a stab-wound to the chest. Mr.
        Vazquez-Dones was transported by ambulance to the
        hospital where emergency efforts were made to save his
        life. Unfortunately, the efforts were unsuccessful, and Mr.
        Vazquez-Dones died. . . .

        While securing the scene, a police officer found a black,
        leather wallet [lying] on the sidewalk across the street from
        where Mr. Vazquez-Dones was found. Within the wallet, the

* Former Justice specially assigned to the Superior Court.
J-S46019-17


       officer discovered [Appellant’s] state identification card.
       The officer showed the ID card to two eye-witnesses, both
       of whom confirmed [that] the person in the ID card photo
       was who they saw stab Mr. Vazquez-Dones once in the
       chest with a [pocketknife] before fleeing the scene on foot.
       The witnesses were also familiar with [Appellant], as he had
       frequented the neighborhood. One of the witnesses, Mr.
       Vazquez-Dones’ brother, had known [Appellant] for about
       [ten] years, and stated that [Appellant] had told him prior
       to the stabbing that he was planning to fight Mr. Vazquez-
       Dones. [Appellant] was ultimately caught [11] days later,
       on October 16, 2014, by a police officer responding to a
       disturbance call in Enfield, Connecticut.

       [Appellant] was charged with criminal homicide[] and
       extradited back to Pennsylvania.       Once here, he was
       appointed counsel, who filed an omnibus pre-trial motion on
       his behalf. Ultimately, a suppression hearing was scheduled
       for November 30, 2015, with a trial, if necessary, to begin
       on December 7, 2015. . . .

       While the . . . suppression [motion] was pending,
       [Appellant’s counsel] was able to get the Commonwealth to
       offer a reduction of the charge from first to third degree
       murder[,] with an agreed upon sentence of 15-30 years’
       incarceration. [Appellant’s] counsel then requested a status
       conference due to [Appellant’s] desire to reject that
       negotiated plea offer and proceed to trial. [The trial court]
       granted that request, and a status conference was held on
       November 5, 2015. At that conference, [the trial court] was
       informed that while the Commonwealth had made such an
       offer, [Appellant] still had some concerns and misgivings
       about the negotiation process and was still considering
       proceeding pro se.         Accordingly, to give time for
       [Appellant’s] concerns to be resolved, and to address any
       continuing issues on the record, [the trial court] scheduled
       another conference for November 19, 2015.

       Prior to the November 19th conference, [Appellant’s] counsel
       contacted [the trial court’s] chambers to request scheduling
       a guilty plea hearing for the following Monday. Due to
       [Appellant’s] prior assertions, however, [the trial court] still
       held the scheduled status conference. At the conference,
       [Appellant’s] counsel explained to [the trial court] that while

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       [Appellant] had indicated the day before that he was ready
       to accept the Commonwealth’s offer, at the time of the
       conference, she was no longer sure how he wished to
       proceed. After informing [Appellant] of the importance of
       not revealing attorney-client confidences, [the trial court]
       then proceeded to question him to ensure he understood
       the proceedings, to avoid any further delay, and to
       determine whether he wished to proceed pro se.

       [Appellant] then stated that he did not want to sign the plea
       agreement because, while he did not consider [his counsel]
       incompetent, he did not trust her. [The trial court] then
       confirmed with [Appellant] and the Commonwealth that the
       offer was only open until the end of the week. [The
       Commonwealth] then added that the offer was only
       available to begin with because [Appellant’s counsel] had
       advocated very strongly on [Appellant’s] behalf.         The
       [Commonwealth] also noted that their theory of the case
       was first degree murder, and that is what they would
       pursue should the case proceed to trial.

       After confirming with [Appellant] that he understood the
       situation, [the trial court] asked [Appellant’s counsel] if she
       would like to add anything. She then explained that she
       had believed [Appellant] was truly ready to accept the plea
       that afternoon, but that [Appellant] changed his mind only
       after hearing the plea [hearing] had been rescheduled.
       [Appellant’s     counsel]     then   requested     that     the
       Commonwealth keep their plea offer open, because she did
       not want [Appellant’s] decision to be a “knee-jerk reaction”
       because of her, and so that [Appellant] could confer with his
       family or people he did trust before making a final decision.
       [Appellant] then stated that he thought the agreement was
       unfair, that it should have been for 14-28 years instead of
       15-30, that he was rejecting the Commonwealth’s offer, and
       that he wanted to proceed pro se. In response, [the trial
       court] reminded [Appellant] that the right to counsel is an
       important Constitutional right, and that [the trial court]
       would need to ask him a series of questions before allowing
       him to proceed pro se, to ensure that his decision to waive
       that important right was knowing, voluntary, and intelligent.
       Even though [Appellant] had never previously had any
       difficulty understanding English, at this point he stated that
       he required an interpreter.         None being immediately

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       available, [the trial court] terminated the proceeding until
       the following Monday, November 23, 2015.

       Prior to the November 23, 2015 hearing, an interpreter was
       provided to [Appellant] to assist him with any language
       issues or questions he had with the written waiver of
       counsel colloquy. [Appellant’s counsel] then informed [the
       trial court] that [Appellant] no longer wished to proceed pro
       se, and instead wanted to accept a revised plea offered by
       the Commonwealth. The interpreter thereafter assisted
       [Appellant] with any language issues or questions he had
       with the written guilty plea colloquy.

       As a result of this change of heart, [the trial court]
       proceeded with a guilty plea hearing. At the outset, [the
       trial court] confirmed with [Appellant] that he had the
       interpreter he had demanded, and that the interpreter’s
       services were adequate. [The trial court] then had him
       confirm his decision that instead of going to trial, he
       intended to plead guilty to third degree murder. When
       asked about mental health and medications, [Appellant]
       responded that he had previously been treated for bipolar
       disorder and depression, and that he was currently on
       medication for anxiety, high blood pressure, and seizure[s].
       [Appellant] confirmed, however, that there was nothing
       about those conditions or medications that in any way
       “would impair or limit [his] ability to understand” what was
       happening at the proceeding. Indeed, [the trial court’s]
       own observations throughout the colloquy left [the trial
       court] with no doubt that [Appellant] fully understood the
       meaning and gravity of his statements and decision.

       [Appellant] also acknowledged that he had reviewed the
       written guilty plea colloquy with his attorney and with the
       assistance of the interpreter. [Appellant] stated that he
       was able to understand all of the questions in the
       document, and that, while he had had some questions,
       those questions were answered satisfactorily by his attorney
       before he signed the agreement[; Appellant confirmed that
       he] fully underst[ood] the documents’ meaning and legal
       effect. Likewise, [Appellant] signed a separate[] guilty plea
       slip before the proceeding, and confirmed that the signature
       on the slip was his own.


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       [The trial court] then verbally explained the charge of third
       degree murder during the colloquy, defining it as “a killing
       with malice,” and explaining that malice occurs if the
       “perpetrator’s actions show his or her wanton and willful
       disregard of an unjustified and extremely high risk that his
       or her conduct would result in death or serious bodily injury
       to another.” After reading this definition to [Appellant], he
       indicated that malice had previously been “explained
       different[ly]” to him. After [Appellant] briefly conferred
       with counsel, [the trial court] asked again if [Appellant]
       understood the charge, and specifically malice, and
       [Appellant] replied that he did. Then, to further ensure
       there could be no doubt as to [Appellant’s] understanding of
       the plea, [the trial court] defined malice a second time. At
       [Appellant’s] request, [the trial court] then had the
       interpreter define malice for him in Spanish, followed by
       another explanation of third degree murder in English,
       including another reading of the definition of malice. After
       conversing again with counsel, [Appellant] responded again
       that he admitted to the charge. Following this admission,
       [the trial court] explained to [Appellant] that he faced a
       maximum sentence of [40] years in prison and a fine of
       $50,000[.00].

       Before going further, [the trial court] made sure that
       [Appellant] admitted that he killed Alex Vasquez-Dones by
       stabbing him in the chest with a pocketknife during an
       argument.      [Appellant] also admitted that before the
       incident occurred, he had told the victim’s brother he was
       planning to fight the victim. [Appellant] likewise admitted
       that after stabbing the victim, [Appellant] fled from
       Lancaster County to Connecticut, but was later identified as
       the perpetrator by two eye-witnesses, and by his wallet,
       which he left at the scene. [The trial court] then made sure
       that [Appellant] knew he had an absolute right to have a
       trial by jury where it would be the Commonwealth’s burden
       to prove [Appellant] guilty beyond a reasonable doubt.
       [Appellant] also recognized that he was giving up most of
       his rights to appeal, that he was pleading guilty of his own
       free will, and that no one forced or threatened him to
       induce the plea. While [Appellant] claimed that he was not
       satisfied with counsel’s services, he stated that there was
       nothing he would like to know that he [had not] been told


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          up to that point, and that he had no questions he wanted to
          ask his lawyer before entering the plea.

          When given his right to make a statement, after asking
          permission to address the victim’s family, [Appellant] stated
          the following: “Forgive me. I know it’s difficult because
          you lost a son, and you have the person in front of you, the
          person who did it.”

          Assured that the plea was knowing, voluntary, and
          intelligent, [the trial court] accepted the plea agreement,
          sentencing [Appellant] to the agreed upon guideline
          sentence of 14 to 35 years [in prison] plus costs.

          [Appellant] filed no direct appeal in this case, and almost
          one year after sentencing, [Appellant] filed [a] pro se PCRA
          petition.[1, 2] [Appellant] was appointed counsel, who, after
          reviewing the case, filed a [no-merit letter and a request to
          withdraw as counsel, pursuant to Commonwealth v.
          Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v.
____________________________________________


1
    Appellant raised the following claims in his pro se PCRA petition:

          [1.] Was [Appellant] denied due process where his pre-
          sentence self-defense claims were negated by [an]
          incomplete colloquy on criminal homicide which should have
          included an instruction on voluntary and involuntary
          manslaughter from which [Appellant] could have faced a
          lesser degree of homicide as opposed to the only alternative
          plea of third degree murder?

          [2.] Was counsel ineffective for not requesting a
          competency hearing where [Appellant] clearly informed the
          court of multiple occasions that he was bipolar, depressed,
          arguably [schizophrenic], and on daily medications which
          reasonably could have [affected] and clouded his judgment?

Appellant’s Pro Se PCRA Petition, 8/1/16, at 5 (some internal capitalization
omitted).
2
    Appellant timely filed his PCRA petition on August 1, 2016.




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         Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)]. After
         reviewing the [Turner/Finley letter], and an objection filed
         by [Appellant], [the PCRA court entered an order notifying
         Appellant that it intended to dismiss Appellant’s PCRA
         petition in 20 days, without holding a hearing.           See
         Pa.R.Crim.P. 907(1). Appellant] then filed a motion for
         extension of time, asking to amend his petition[] and
         “adequately respond” to the [Rule] 907 [notice; the PCRA
         court granted this request]. Shortly after issuing that order,
         [the PCRA court] received [Appellant’s] response to [the
         Rule 907 notice.3] After reviewing it, [the PCRA court] still
         found his petition to be meritless, dismissed it accordingly,
         and granted counsel leave to withdraw. . . .

PCRA Court Opinion, 2/6/17, at 1-9 (internal citations, footnotes, and some

capitalization omitted).

       Now on appeal, Appellant raises four claims to this Court:4
____________________________________________


3
  Appellant’s response claimed that PCRA counsel’s no-merit letter was
insufficient because his claims had merit and because “PCRA counsel’s failure
to communicate with [Appellant] and his failure to explain any extra-record
investigation[] denied the very right entitled by our [C]onstitution.”
Appellant’s Response, 10/14/16, at 9.
4
   On December 15, 2016, the PCRA court entered an order pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), instructing Appellant to
file and serve a concise statement of errors complained of on appeal within
21 days. PCRA Court Order, 12/15/16, at 1. As the PCRA court notes,
Appellant’s Rule 1925(b) statement arrived in an envelope stamped
“1/05/17.” See PCRA Court Opinion, 2/6/17, at 9; Envelope, postmarked
1/5/17, at 1. We note that, since Appellant is incarcerated and proceeding
pro se, Appellant’s Rule 1925(b) statement is timely. Commonwealth v.
Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (“[p]ursuant to the
prisoner mailbox rule, we deem a document filed on the day it is placed in
the hands of prison authorities for mailing”).

Within Appellant’s Rule 1925(b) statement, Appellant listed the following
claims:

         [1.] Appellant is [innocent] of third degree murder.
(Footnote Continued Next Page)


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         [1.] Was counsel ineffective during the procession of plea
         negotiations for compelling Appellant to accept the terms
         without having advised Appellant of the facts of the case
         against him as they related to the offense?

         [2.] Was counsel ineffective for failing to inform Appellant of
         the lesser elements of criminal homicide and include those
         applicable to plea negotiations in light of Appellant’s claims
         of self-defense?
                       _______________________
(Footnote Continued)


         [2.] PCRA court [erred] in denying [Appellant’s] self-defense
         claim that denied him due process where his pre-sentence
         self-defense claims were negated by an [incomplete]
         colloquy on criminal homicide which should have include[d]
         an instruction on voluntary and involuntary manslaughter
         from which petitioner could have faced a lesser degree of
         homicide as opposed to the only alternative plea of third
         degree murder.

         [3.] PCRA court [erred] in denying [Appellant’s] ineffective
         [assistance of] counsel claim for not requesting a
         competency hearing where Appellant clearly informed his
         counsel of mental health problems since [juvenile] in and
         out of mental health hospital[s], mental wards, also
         Appellant informed the courts of multiple occasions that he
         was bipolar, depressed, arguably schizophrenic, and PTSD,
         and on daily medications which reasonably could have
         [affected] and clouded his [judgment].

         [4.] PCRA court [erred] in not addressing [Appellant’s] claim
         of counsel ineffectiveness during the plea [bargaining]
         process     making      [Appellant’s]    plea  unknowingly,
         unintelligently and [involuntarily] accepted.

         [5.] PCRA court [erred] in not addressing and/or finding
         that PCRA counsel was ineffective for filing a no merit
         [letter] without ever contacting Appellant.

Appellant’s Rule 1925(b) Statement, 1/5/17, at 1.




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          [3.] Was counsel ineffective for failing to request a
          competency hearing after Appellant informed the court on
          multiple occasions that he was bipolar, suffered from
          chronic depression, that he was arguably schizophrenic, and
          that he was diagnosed with post-traumatic stress disorder?

          [4.] Was PCRA counsel ineffective for filing a [no-merit]
          letter without having contacted Appellant?

Appellant’s Brief at vii.5

        As we have stated:

          [t]his Court’s standard of review regarding an order
          dismissing a petition under the PCRA is whether the
          determination of the PCRA court is supported by evidence of
          record and is free of legal error. In evaluating a PCRA
          court’s decision, our scope of review is limited to the
          findings of the PCRA court and the evidence of record,
          viewed in the light most favorable to the prevailing party at
          the trial level. We may affirm a PCRA court’s decision on
          any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

        To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness of counsel which, in the

circumstances of the particular case, so undermined the truth-determining


____________________________________________


5
    For ease of discussion, we have reorganized Appellant’s claims on appeal.



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process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

       Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”       Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).          To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

         (1) his underlying claim is of arguable merit; (2) the
         particular course of conduct pursued by counsel did not
         have some reasonable basis designed to effectuate his
         interests; and, (3) but for counsel’s ineffectiveness, there is
         a reasonable probability that the outcome of the challenged
         proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).              “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

       First, Appellant claims that plea counsel was ineffective “during the

procession of plea negotiations for compelling Appellant to accept the terms

without having advised Appellant of the facts of the case against him as they

related to the offense.” Appellant’s Brief at 9. Appellant did not raise this

claim in his PCRA petition or in his Rule 1925(b) statement. 6 Therefore, the

____________________________________________


6
 The PCRA court finally dismissed Appellant’s PCRA petition on November
17, 2016. PCRA Court Order, 11/17/16, at 1. We note that, on November
30, 2016, Appellant filed a purported “Amended PCRA Petition,” where
Appellant attempted to raise a number of additional claims. See Appellant’s
Amended PCRA Petition, 11/30/16, at 1-12. Yet, given that the PCRA court
(Footnote Continued Next Page)


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claim is waived. Commonwealth v. Jacobs, 727 A.2d 545, 547 (Pa. 1999)

(“issues [that] were not raised in [an] original PCRA petition, counsel’s

amended petition, or the oral amendments made to [a] petition before the

PCRA court . . . are waived”); Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not

included    in   the     [Rule    1925(b)        s]tatement   .   .   .   are   waived”);

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“[a]ny issues

not raised in a Pa.R.A.P. 1925(b) statement will be waived”).

      Second, Appellant claims that plea counsel was ineffective because she

“fail[ed] to inform Appellant of the lesser elements of criminal homicide and

include those applicable to plea negotiations in light of Appellant’s claims of

self-defense.”   Appellant’s Brief at 1.          Appellant did not raise this specific

claim either in his PCRA petition or in his Rule 1925(b) statement. Rather,

Appellant’s PCRA Petition and Rule 1925(b) statement only claimed that

Appellant was denied due process of the law because “his pre-sentence self-

defense claims were negated by an [incomplete] colloquy on criminal

homicide which should have include[d] an instruction on voluntary and

involuntary manslaughter.” Appellant’s Rule 1925(b) Statement, 1/5/17, at

                       _______________________
(Footnote Continued)

had already dismissed Appellant’s PCRA petition, Appellant could not
“amend” the current petition. Moreover, Appellant cannot file a second
PCRA petition until “the resolution of review of the pending PCRA petition by
the highest state court in which review is sought, or upon the expiration of
the time for seeking such review.” Commonwealth v. Lark, 746 A.2d 585,
588 (Pa. 2000).




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1. Appellant’s claim that the trial court conducted an “incomplete colloquy

on criminal homicide” does not include any claim that plea counsel was

ineffective for failing to negotiate for, or inform Appellant of, a lesser charge.

Therefore, Appellant has waived his current claim on appeal. Jacobs, 727

A.2d at 547; Pa.R.A.P. 1925(b)(4)(vii).

      Third, Appellant contends that plea counsel was ineffective for failing

to request a competency hearing. Appellant’s Brief at 6. This claim fails.

      “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.”    Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002).      Yet, where the ineffectiveness of counsel is

claimed in connection with the entry of a guilty plea, a petitioner may only

obtain relief where “counsel’s deficient stewardship resulted in a manifest

injustice, for example, by facilitating [the] entry of an unknowing,

involuntary, or unintelligent plea.”     Commonwealth v. Moser, 921 A.2d

526, 530 n.3 (Pa. Super. 2007) (en banc) (internal citations and quotations

omitted). As we have explained:

        once a defendant has entered a plea of guilty, it is
        presumed that he was aware of what he was doing, and the
        burden of proving involuntariness is upon him. Therefore,
        where the 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 plea is established.

Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal

quotations, citations, and corrections omitted), quoting Commonwealth v.



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Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an]

appellant must prove he would not have [pleaded] guilty and would have

achieved a better outcome at trial.”    Commonwealth v. Fears, 86 A.3d

795 (Pa. 2014) (internal quotations and citations omitted).

      Moreover,

        With regard to the voluntariness of a plea, a guilty plea
        colloquy must “affirmatively demonstrate the defendant
        understood what the plea connoted and its consequences.”
        Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa. Super.
        1998). Once the defendant has entered a guilty plea, “it is
        presumed that he was aware of what he was doing, and the
        burden of proving involuntariness is upon him.”
        Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.
        Super. 2008).      Competence to plead guilty requires a
        finding that the defendant comprehends the crime for which
        he stands accused, is able to cooperate with his counsel in
        forming a rational defense, and has a rational and factual
        understanding     of   the   proceedings    against   him.
        Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super.
        2007).

Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013).               “A

defendant is bound by the statements which he makes during his plea

colloquy.” Commonwealth v. Lewis, 708 A.2d 497, 502 (Pa. Super. 1998)

(internal citation omitted).   “A defendant may not assert grounds for

withdrawing the plea that contradict statements made when he pled guilty.”

Id.

      Within Appellant’s PCRA petition and brief to this Court, Appellant

notes that, during the plea colloquy, Appellant “repeatedly indicated” that he

could not understand the element of “malice” in the third-degree murder


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charge.    See Appellant’s Brief at 6. However, as both Appellant and the

PCRA court note, after Appellant indicated that he could not understand the

charge during the plea colloquy, the PCRA court took its time and repeatedly

explained to Appellant the elements of third-degree murder and, specifically,

the element of malice. Id. As the PCRA court declared:

          [The trial court] verbally explained the charge of third
          degree murder during the colloquy, defining it as “a killing
          with malice,” and explaining that malice occurs if the
          “perpetrator’s actions show his or her wanton and willful
          disregard of an unjustified and extremely high risk that his
          or her conduct would result in death or serious bodily injury
          to another.” After reading this definition to [Appellant], he
          indicated that malice had previously been “explained
          different[ly]” to him. After [Appellant] briefly conferred
          with counsel, [the trial court] asked again if [Appellant]
          understood the charge, and specifically malice, and
          [Appellant] replied that he did. Then, to further ensure
          there could be no doubt as to [Appellant’s] understanding of
          the plea, [the trial court] defined malice a second time. At
          [Appellant’s] request, [the trial court] then had the
          interpreter define malice for him in Spanish, followed by
          another explanation of third degree murder in English,
          including another reading of the definition of malice. After
          conversing again with counsel, [Appellant] responded again
          that he admitted to the charge.

PCRA Court Opinion, 2/6/17, at 6-7 (internal citations omitted).

     Neither in Appellant’s PCRA petition nor in his brief to this Court does

Appellant ever claim that he failed to understand the element of malice

after the PCRA court fully explained the element to him.       See Appellant’s

Brief at 6-8. Moreover, Appellant has never claimed that any of his alleged

illnesses or possible medications actually prevented him from understanding

the element of malice. Id. Therefore, “even if counsel had no reasonable

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basis to decline to pursue a competency evaluation, Appellant fails to

articulate how he was prejudiced because he cannot establish that had

counsel requested an evaluation and hearing, the outcome of” the

proceedings would have changed.       Commonwealth v. Rainey, 928 A.2d

215, 236-237 (Pa. 2007). Appellant’s claim on appeal fails.

      Finally, Appellant claims that PCRA counsel was ineffective “for filing a

[no-]merit letter without having contacted Appellant.”     Appellant’s Brief at

11.   Even if Appellant raised this claim in his response to the Rule 907

notice, the claim fails because Appellant has completely “fail[ed] to articulate

how he was prejudiced” by PCRA counsel’s actions. See Rainey, 928 A.2d

at 236. Thus, Appellant’s final claim on appeal fails.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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