J.A21014/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
BRANDON STALEY,                             :
                                            :
                          Appellant         :      No. 980 EDA 2014

                Appeal from the PCRA Order February 27, 2014
               In the Court of Common Pleas of Delaware County
               Criminal Division No(s).: CP-23-CR-0002362-2009

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED JULY 21, 2015

        Pro se Appellant, Brandon Staley, appeals from the order entered in

the Delaware County Court of Common Pleas dismissing his first Post

Conviction Relief Act1 (“PCRA”) petition.       He claims his PCRA counsel was

ineffective by, inter alia, not challenging plea counsel’s stewardship

regarding various issues and that the PCRA court erred by not recognizing

that Commonwealth v. Clinger, 833 A.2d 792 (Pa. Super. 2003),

controlled the outcome of his case. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J.A21014/15


        We adopt the facts and procedural history as set forth in the PCRA

court’s opinion.      See PCRA Ct. Op., 4/30/14,2 at 1-4.           We add that the

criminal complaint has the following handwritten statement at the end:

“5/5/09 complaint amended to add 903 to 2501 conspiracy to murder (2

counts) E. Courtney.”        Criminal Compl., 1/6/09, at 4.          A conspiracy to

commit third degree murder charge was then listed in form AOPC 501A-99,

dated 6/17/09, and form AOPC 501B-09, also dated 6/17/09. The criminal

information also charged Appellant with conspiracy to commit third degree

murder.       Criminal Information, 6/25/09.       On August 20, 2009, Appellant

filed   an    omnibus    pretrial    motion   referencing   the   charges,    including

conspiracy to commit third degree murder charge. Appellant’s Omnibus Pre-

Trial Mot., 8/20/09, at 1.          Appellant did not otherwise move to strike or

dismiss the charge.

        At    the   negotiated   guilty   plea   hearing,   the   following   exchange

transpired:

             [Appellant]: Yes, but I—from my presumption, I thought a
             Third Degree doesn’t carry Conspiracy.

             The Court: Pardon?

             [Appellant]: I thought the Third Degree don’t carry a
             Conspiracy.

             [Commonwealth]: It’s a Conspiracy to Murder charge.

2
  The opinion was docketed on this date, notwithstanding a typewritten
“FILED: 4/29/14” on the opinion itself.




                                           -2-
J.A21014/15



         The Court: It’s a Conspiracy . . .

         [Commonwealth]: And that’s . . .

         The Court: . . . to Murder generally, okay? So—and in
         addition to the agreement, there has to be some overt act.
         For example, if you drove somewhere. And—or—it—for
         the purpose of committing the object crime. You don’t
         actually have to carry the crime out. You just have to
         have—either you or your co-conspirator committed an
         overt act in furtherance of the object conspiracy. Do you
         understand that?

         [Appellant]: Um-hum.

N.T. Guilty Plea Hr’g, 1/21/10, at 11-12. The court accepted the plea and

sentenced him to the negotiated sentence of twenty seven and one-half to

fifty-five years’ imprisonment. Commonwealth v. Staley, 497 EDA 2010,

at 2 (Pa. Super. Mar. 14, 2011) (unpublished memorandum).

      On direct appeal, Appellant claimed he did not understand the charges

against him and his plea was made under duress.3 Id. at 1-2. This Court

affirmed, see id., and our Supreme Court denied Appellant’s petition for

allowance of appeal on September 26, 2011.          See Commonwealth v.

Staley, 298 MAL 2011 (Pa. Sept. 26, 2011). Appellant did not file a petition

for certiorari with the High Court.

      On August 17, 2012, Appellant timely filed a pro se PCRA petition

alleging, inter alia, that plea counsel was ineffective by negotiating a guilty

3
 Appellant did not pursue a claim that conspiracy to third degree murder
was a legal impossibility on direct appeal. Staley, supra, at 4 n.4.




                                      -3-
J.A21014/15


plea for the nonexistent crime of conspiracy to commit third degree murder.

Appellant’s Pro Se Mem. of [Law] in Support of PCRA Pet., 8/17/12,4 at 2-3.

        PCRA counsel was appointed, and he successfully moved for numerous

extensions of time to file an amended PCRA petition “as he awaited guidance

from the Pennsylvania Supreme Court in Commonwealth v. Fisher, 80

A.3d 1186 (Pa. 2013).”    PCRA Ct. Op. at 3-4.    After Fisher was decided,

PCRA counsel filed several Turner/Finley5 no-merit letters and applications

to withdraw on November 15, 2013, December 20, 2013, and January 28,

2014.

        On January 31, 2014, the court granted PCRA counsel’s motion to

withdraw and issued a notice of intent to dismiss per Pa.R.Crim.P. 907.

Appellant filed his pro se response to the Rule 907 notice on February 11,

2014.6 On February 27, 2014, the court formally dismissed Appellant’s first

PCRA petition. Appellant timely appealed, and the court did not order him to

comply with Pa.R.A.P. 1925(b), but filed a responsive opinion.


4
  This date reflects the docketing date, as the record did not include an
envelope, postmark, or any other indication of when Appellant mailed the
petition. See generally Commonwealth v. Wilson, 911 A.2d 942, 944
n.2 (Pa. Super. 2006) (discussing prisoner mailbox rule).
5
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6
  The docket reflects that on February 4, 2014, Appellant filed a pro se
motion for leave to file an amended PCRA petition and an amended PCRA
petition, but the certified record did not include either pleading. Docket,
5/1/14, at 8.




                                    -4-
J.A21014/15


      Appellant filed with this Court a pro se application for remand to have

the trial court supplement the record with documents that purportedly would

substantiate his contention that the trial court constructively added the

conspiracy to commit third degree murder charge.          Appellant’s Mot. for

Remand to Supplement R., 3/19/15. This Court denied the motion without

prejudice for Appellant to challenge any deficiencies in the certified record in

his appellate brief. Order, 4/14/15.

      Appellant raises the following issues:

         Ineffective assistance of counsel in violation of Appellant’s
         right to counsel guaranteed by the Sixth and Fourteenth
         Amendments to the Constitution of the United States:

            (i)   PCRA counsel was ineffective for failing to file
            amended PCRA petition where a meritorious issue of
            appellant being induced to plead guilty to non-
            cognizable offense at the time plea was entered and
            accepted by the court;

            (ii) PCRA counsel was ineffective for failing to raise
            direct appeal counsel ineffectiveness for failing to raise
            trial counsel’s ineffectiveness for failing to raise trial
            courts [sic] error, due to legal innocence of Appellant to
            criminal conspiracy charges.

            (iii) PCRA counsel was ineffective for failing to properly
            layer direct appeal counsel’s ineffectiveness for failing
            to raise trial court error, for constructively amending
            charges during guilty plea colloquy, where trial court
            informed Appellant the conspiracy charge was for
            murder generally and not third degree murder, and lack
            of subject matter jurisdiction, causing Appellant to
            plead guilty unknowingly;

            (iv) PCRA counsel was ineffective for failing to properly
            layer direct appeal counsel’s ineffectiveness for failing
            to challenge the factual basis for guilty plea, where


                                       -5-
J.A21014/15


            Commonwealth failed to establish underlying criminal
            act, to conspiracy to commit third degree murder?

         PCRA court erred in dismissing PCRA petition and failing to
         rule on amended PCRA petition filed of record raising ex-
         post facto violation of applying Fisher ruling to Appellant’s
         PCRA proceedings, where at time of plea and sentencing
         Clinger was controlling precedential case?

         PCRA court erred and abused it’s [sic] discretion by
         dismissing PCRA petition without a hearing based on PCRA
         counsel’s no-merit letter, relying on Fisher, where
         Appellant’s sentence was final and Fisher was not
         declared to be retroactive to cases on collateral review,
         and failing to address amended PCRA petition?

Appellant’s Brief at 4. Appellant’s pro se response to the court’s Rule 907

notice raised no additional issues.

      We summarize all of Appellant’s arguments together, as they are

interrelated. At heart, Appellant contends that Clinger was in effect at the

time of his plea, and pursuant to Clinger, the crime of conspiracy to commit

third degree murder did not exist. Further, the subsequent Fisher decision

by the Pennsylvania Supreme Court should not control disposition of this

case, Appellant asserts, because it “was not declared to be retroactive . . . to

cases on collateral review.” Id. at 8. He maintains that the offense simply

cannot exist as it is “logically impossible.” Id. at 11. Appellant argues the

court improperly amended the charge to include conspiracy to commit third

degree murder at the time he entered his guilty plea. He claims the certified

record did not include documents substantiating his contention regarding the

court’s improper amendment. Appellant opines that because the trial court



                                      -6-
J.A21014/15


misplaced but ultimately located and transmitted the signed guilty plea

statement to this Court, it does not exist for purposes of appellate review

and thus, he should be permitted to withdraw his plea.               Accordingly,

Appellant claims all prior counsel were ineffective. We hold Appellant is not

due relief.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).

         [C]ounsel is presumed to have provided effective
         representation unless the PCRA petitioner pleads and
         proves that: (1) the underlying claim is of arguable merit;
         (2) counsel had no reasonable basis for his or her conduct;
         and (3) Appellant was prejudiced by counsel’s action or
         omission. To demonstrate prejudice, an appellant must
         prove that a reasonable probability of acquittal existed but
         for the action or omission of trial counsel. A claim of
         ineffective assistance of counsel will fail if the petitioner
         does not meet any of the three prongs. Further, a PCRA
         petitioner must exhibit a concerted effort to develop his
         ineffectiveness claim and may not rely on boilerplate
         allegations of ineffectiveness.

Commonwealth        v.   Perry,   959   A.2d   932,   936   (Pa.   Super.   2008)

(punctuation and citations omitted).

      This Court set forth the applicable law regarding counsel’s stewardship

during guilty plea colloquies:

            A criminal defendant has the right to effective counsel
         during a plea process as well as during trial. The law does
         not require that appellant be pleased with the outcome of
         his decision to enter a plea of guilty.        Instead, the


                                        -7-
J.A21014/15


       defendant must show that counsel’s deficient stewardship
       resulted in a manifest injustice, for example, by facilitating
       entry of an unknowing, involuntary, or unintelligent plea.
       The voluntariness of the plea depends on whether
       counsel’s advice was within the range of competence
       demanded of attorneys in criminal cases.          Therefore,
       allegations of ineffectiveness in connection with the entry
       of a guilty plea will serve as a basis for relief only if the
       ineffectiveness caused appellant to enter an involuntary or
       unknowing plea.

          Our law is clear that, to be valid, a guilty plea must be
       knowingly, voluntarily and intelligently entered. There is
       no absolute right to withdraw a guilty plea, and the
       decision as to whether to allow a defendant to do so is a
       matter within the sound discretion of the trial court. To
       withdraw a plea after sentencing, a defendant must make
       a showing of prejudice amounting to manifest injustice. A
       plea rises to the level of manifest injustice when it was
       entered into involuntarily, unknowingly, or unintelligently.
       A defendant’s disappointment in the sentence imposed
       does not constitute manifest injustice.

          In order to ensure a voluntary, knowing, and intelligent
       plea, trial courts are required to ask the following
       questions in the guilty plea colloquy:

          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 or she has
       the right to a trial by jury?

          4) Does the defendant understand that he or she is
       presumed innocent until found guilty?

          5) Is the defendant aware of the permissible ranges of
       sentences and/or fines for the offenses charged?




                                   -8-
J.A21014/15


            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?

             The guilty plea colloquy must affirmatively demonstrate
         that the defendant understood what the plea connoted and
         its consequences. 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. . . . Furthermore, nothing in the rule precludes the
         supplementation of the oral colloquy by a written colloquy
         that is read, completed, and signed by the defendant and
         made a part of the plea proceedings.

Commonwealth v. Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008)

(punctuation and citations omitted).

      In Commonwealth v. Eller, 807 A.2d 838 (Pa. 2002), our Supreme

Court addressed whether Commonwealth v. Lantzy, 736 A.2d 564 (Pa.

1999), “established a new rule of [PCRA] procedure that cannot be applied

‘retroactively’” to the defendant’s case. Eller, 807 A.2d at 839. The Eller

Court explained that because Lantzy construed the statutory language of

the PCRA, it did not create a new rule:

         [I]in deciding Lantzy, this Court was not fashioning a
         judicial rule of criminal or post-conviction procedure to
         decide the case. Instead, this Court construed the terms
         of a statute, the PCRA. As Madame Justice Newman
         noted in her recent unanimous opinion in Fiore v. White,
         562 Pa. 634, 757 A.2d 842, 847 (2000), “[n]ot every
         opinion creates a new rule of law.” This is particularly so
         when the opinion involves the construction of a statute,
         and it either adopts a view of the statute “which was not
         wholly without precedent,” id.; see also McCloskey v.
         WCAB, 501 Pa. 93, 460 A.2d 237, 239 n. 3 (1983)
         (decisions that do not “articulate a new rule but merely
         rel[y] upon a statutory interpretation which [is] not wholly
         without precedent, . . . are treated as relating back to the


                                       -9-
J.A21014/15


        original statute because they are nothing more than
        interpretations of existing legislation”), or it involves this
        Court’s first opportunity to construe the disputed provision.
        Fiore, 757 A.2d at 848. With respect to the latter
        circumstance, which was the circumstance facing the Court
        in Lantzy, the Fiore Court noted:

           There can be no change to statutory law when there
           has been no amendment by the legislature and no
           prior decision by this Court. Only the legislature has
           the authority to promulgate legislation. Our role is to
           interpret statutes as enacted by the [General]
           Assembly. We affect legislation when we affirm,
           alter, or overrule our prior decisions concerning a
           statute or when we declare it null and void, as
           unconstitutional. Therefore, when we have not yet
           answered a specific question about the meaning of a
           statute, our initial interpretation does not announce
           a new rule of law. Our first pronouncement on the
           substance of a statutory provision is purely a
           clarification of existing law.

        Id. See also Rivers v. Roadway Express, Inc., 511
        U.S. 298, 312–13, 114 S. Ct. 1510, 128 L. Ed. 2d 274
        (1994) (“judicial construction of a statute is an
        authoritative statement of what the statute meant before
        as well as after the decision of the case giving rise to that
        construction.”); Buradus v. General Cement Prods. Co.,
        356 Pa. 349, 52 A.2d 205, 208 (1947) (“[i]n general, the
        construction placed upon a statute by the courts becomes
        a part of the act, from the very beginning”) (emphasis
        in original).

Eller, 807 A.2d at 844.

     In Fisher, our Supreme Court addressed “whether conspiracy to

commit third degree murder is a cognizable offense.”      Fisher, 80 A.3d at

1190. The Fisher Court initially discussed the statutory language from the

Crimes Code and case law defining the elements for conspiracy and third

degree murder.    Our Supreme Court then cited almost four decades of


                                    - 10 -
J.A21014/15


appellate case law affirming convictions for conspiracy to commit third

degree murder.    Id. at 1192-93 (“Our review of Pennsylvania case law

regarding conspiracy to commit third degree murder reveals convictions for

this crime have long been recognized as valid.”).      The Fisher Court,

however, acknowledged the sole, aberrant case of Clinger, which vacated

the defendant’s conviction for conspiracy to commit third degree murder as

a legal impossibility.   Fisher, 80 A.3d at 1193.     Our Supreme Court,

however, essentially overruled Clinger and reaffirmed that conspiracy to

commit third degree murder is a long recognized, cognizable offense. Id. at

1192-93, 1195.

      Instantly, the Fisher Court construed the statutory language for

conspiracy and third degree murder and thus authoritatively stated the

meaning of the statute prior to and subsequent to Fisher. See Eller, 807

A.2d at 844 (citing Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-

13; Buradus v. Gen. Cement Prods. Co., 52 A.2d at 208). Thus, similar

to the Eller Court, Fisher did not create a new rule of law, but merely

interpreted the preexisting conspiracy and third degree murder statutes.

See Eller, 807 A.2d at 844. Such an interpretation, bolstered by almost a

half-century of near-unanimous precedent, merely reaffirmed a longstanding

understanding that conspiracy to commit third degree murder is a cognizable

offense. See id. Thus, Fisher has no retroactive effect. See id.




                                  - 11 -
J.A21014/15


     We add that the record belies Appellant’s claim that the court

amended the charges against him at the guilty plea colloquy to include a

conspiracy to commit third degree murder, as sufficient documentation

exists that the charge predated his colloquy.         See, e.g., Criminal

Information. Further, we have reviewed the circumstances surrounding his

guilty plea colloquy and conclude it was constitutionally sound. 7      See

Bedell, 954 A.2d at 1212-13.     Because Appellant’s issues lack arguable

merit, we cannot hold that his plea and PCRA counsel were ineffective for,

inter alia, causing him to enter an involuntary plea. See Perry, 959 A.2d at

936; Bedell, 954 A.2d at 1212.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2015




7
  There is no merit to Appellant’s assertion that we should not consider his
signed guilty plea statement because it was lost, but then ultimately found
and transmitted to this Court. See generally Pa.R.A.P. 1926(b)(1).



                                   - 12 -
                                                                                                                         Circulated 07/02/2015 01:37 PM




                                    IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                                                         CRIMINAL DIVISION

                           COMMONWEALTH OF PENNSYLVANIA                                  Trial Court Docket No. CP-23-CR--2362-09
                                            v.                                           Superior Court No. 980 EDA 2014
                          BRANDON D. STALEY



                          William R. Toal, III, Esquire, Assistant District Attorney for the Commonwealth
                          Brandon Staley, pro se

                                                                         OPINION


                         NILON, J.                                                                             FILED: 4/29/14

                                      This is an appeal of the dismissal of Brandon D. Staley's first Post Conviction

                         Relief Act ("PCRA") petition after submission of a Finley "no merit" letter by PCRA

                         Counsel and an independent review of the record by the Trial Court. Appellant claims,

                        inter alia, that he tendered his negotiated guilty plea under duress. Appellant's

                        contentions are meritless.

                        I.            FACTUAL AND PROCEDURAL HISTORY:

                                      This is an appeal from this Court's Order of February 27, 2014 denying

                        Appellant's Post Conviction Relief Act Petition. The nature and history of the case are as

                        follows:

                                      The Appellant, Brandon D. Staley, was arrested and charged with the murder of

                    Michael P. Jackson which took place on January 2, 2009, at 3 :30 p.m. in front of the New

                    Chester Deli at 60 West                9th   Street in Chester, Delaware County, Pennsylvania. The

                    Affidavit of Probable Cause attached to the Criminal Complaint alleged as follows 1: three



                    I
                         The parties stipulated to the facts in the case that formed the factual basis for Appellant's guilty plea.
                    (N.T. pp.18-21).

'·~i::;·::\nc\: rs1 ·~1r,r~·/r           Y])~L
                        (\l:tl°J'
         E'1TEf.'~(JFi:lf;C \~Ai~~
                                                                             Circulated 07/02/2015 01:37 PM




 witnesses observed Appellant shoot the victim multiple times. The first witness went to

 the Chester Police Department and asked to speak to the detectives assigned to the

 shooting. He stated that on January 2, 2009, he was with a friend on 9th Street and they

 were talking to another friend, Michael P. Jackson, a/k/a "Sexy Chocolate". As they were

 walking home, his friend realized that she did not have her cell phone. When he arrived

 home, he called Jackson and asked him about the cell phone. While he was on the phone,

 his sister's boyfriend, Appellant Staley, grabbed the phone and spoke with Jackson. They

 agreed to .meet. The witness and Appellant drove to 9th Street to meet Jackson. Appellant

 left the car and went into the New Chester Deli. The witness saw Appellant talking to

 Jackson, and saw Jackson push Appellant. Then, Appellant pulled out his gun and went

crazy shooting Jackson at least six times. Appellant fled the scene in a car. The second

witness confirmed the above and stated she was forced at gun-point to drive .Appellant

from the scene. She drove away and Appellant jumped out of the car and fled the area in

an unknown direction. A third witness observed Appellant at the Deli talking with

Jackson, then Appellant grabbed Jackson's phone and began to walk away. Jackson then

began to walk toward Appellant. Appellant pulled out his gun and shot Jackson multiple

times. Each witness positively identified Appellant as the shooter in a photo array. Police

found Mr. Jackson at the scene suffering from nine gunshot wounds and he was taken to

Crozer-Chester Medical Center. Two hours later, Mr. Jackson was pronounced dead at

Crozer Chester Medical Center.

       On March 19, 2009, the Appellant was arrested by United States Marshals inside

a hotel room in Laurel, Maryland.




                                            2
                                                                               Circulated 07/02/2015 01:37 PM




              On June 16, 2009, a Preliminary Hearing was conducted by Magisterial District

     Justice Dawn Vann and all charges were held over to the Court of Common Pleas. On

     June 25, 2009, the Appellant was arraigned. On January 21, 2010, Appellant entered a

     negotiated guilty plea to Murder in the Third Degree,2 Conspiracy to Conunit Murder,3

     and Possessing an Instrument of Crime4• Appellant was sentenced as follows:

    Information A, Murder in the third degree, 20 years to 40 years SCI; Information B,

    count 2, Conspiracy to conunit Murder of the third degree, 7-1/2 to 15 years to run

    consecutively to Information A; and on Information D, Possessing an Instrument of

    Crime, 1 to 2 years, to run concurrently with the sentence imposed under Informations A

    and 82. The Appellant is to receive credit for time served. (N.T. 1/21/10 pp.25-26).

             On February 18, 2010, Appellant filed a timely direct appeal. Appellant sought to

    withdraw his guilty plea because he claimed it was neither knowing nor voluntary in that

    he did not understand the nature and consequences of his plea. He also claimed it was

    entered into under duress as he did not have adequate time to review the evidence against

    him and was not informed of the possible sentences he faced. On March 14, 2011, the

    Superior Court affirmed his judgment of sentence. On September 28, 2011, Appellant's

    Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court.

            On August 17, 2012, Appellant filed a pro se PCRA petition. On September 13,

2012, Mr. Stephen Molineux, Esquire was appointed to represent Appellant and to file an

amended PCRA within sixty days. Court-appointed counsel, Mr. Stephen Molineux,

Esquire, requested numerous extensions to file an amended Post Conviction Relief Act


2
    18 P.S. § 2502.
3
    18 P.S. § 903.
4
    18 P.S. § 907.




                                                3
                                                                               Circulated 07/02/2015 01:37 PM




 Petition as he awaited guidance from the Pennsylvania Supreme Court in Commonwealth

 v. Fisher, 80 A.3d 1186 (Pa. 2013) on one of the Appellant's PCRA issues.

           Fisher held that conspiracy to commit third-degree murder was a cognizable

 offense in Pennsylvania. Accordingly, Appellant's claims that his counsel was ineffective

 because he allowed Appellant to plead guilty to conspiracy to commit third-degree

 murder, asserting that it was not a cognizable offense, were without merit.

           On November 15, 2013, Mr. Molineux, Esquire, filed his initial no merit letter.

 On December 20, 2013, counsel filed a numeric letter superseding the November filing.

On January 28, 2014, Mr. Molineux, Esquire, filed a more detailed letter advising that the

PCRA petition was devoid of merit and filed an application to withdraw pursuant to

Pennsylvania v. Finley, 481 U.S. 551 (1987), and Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988). Appellant was served with a copy of the Application to Withdraw

Appearance.

           On January 31, 2014, the Court issued a notice of intent to dismiss the petition

without a hearing. On February 4, 2014, the Appellant filed an "Amended Pro Se

Petition". On or about February 14, 2014, the Appellant filed pro se objections to the

Court's notice. On February 27, 2014, the Court denied the PCRA petition without a

hearing.

       On March 26, 2014, Appellant filed a timely notice of appeal to the Superior

Court from the denial of his PCRA petition.

       The following issues are raised by Appellant as outlined m Mr. Molineux' s

Application to Withdraw:




                                             4
                                                                               Circulated 07/02/2015 01:37 PM




            1. Whether conspiracy to commit third-degree murder is a non-cognizable crime
               and therefore it was ineffective for his counsel to allow him to enter a guilty
               plea to a nonexistent crime?

         2. Whether Appellant's guilty plea was made under duress?

        3. Whether defendant's sentencing guidelines were incorrectly calculated, and
           counsel was ineffective for not objecting to preserve issue for appeal?


 II.    DISCUSSION:

        The issues raised by Appellant in his PCRA petition are without merit. The PCRA

 petition was dismissed without a hearing because a thorough review of the pleadings and

 the record shows that there are no genuine issues concerning any material fact, and no

purpose would be served by further proceedings. Pa.R.Crim.P. 907.

        The standard of review of a PCRA court's dismissal of a PCRA petition is limited

to a determination of whether the PCRA court's conclusion is supported by the evidence

of record and free of legal error. Commonwealth v. Boyer, 962 A.2d 1213, 1214 (Pa.

Super 2008).

        The PCRA provides relief for petitioners         whose convictions resulted from

ineffectiveness of counsel. 42 Pa.C.S. § 9543 (a)(2)(ii). The test for determining whether

counsel was ineffective is composed of three prongs. Commonwealth v. Pierce, 527 A.2d

973 (Pa. 1987); citing Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must

prove: (1) that the claim(s) are of arguable merit, (2) that counsel had no reasonable

strategic basis for his action or inaction, and (3) prejudice, i.e., but for the errors and

omissions     of counsel, there is a reasonable     probability   that the outcome of the

proceedings would have been different. Id.; see also Commonwealth v. Kimball, 724




                                              5
                                                                             Circulated 07/02/2015 01:37 PM




 A.2d 326, 333 (Pa. 1999). The failure to satisfy any prong of Pierce's three-part test will

 cause the claim to fail. Commonwealth v.Gonzalez, 858 A.2d at 1222 (Pa. Super. 2004).

          The law presumes counsel has rendered effective assistance, and it is the

 petitioner's burden to prove otherwise. 42 Pa.C.S. § 9543 (a)(2)(ii); Commonwealth v.

 Gonzalez, 858 A2.d 1219, 1222 (Pa. Super. 2004), appeal denied, 871 A.2d 189 (Pa.

 2005). The petitioner must prove the ineffectiveness by a preponderance of the evidence.

 42 Pa.C.S. § 9543; Commonwealth v. Banks, 656 A.2d 467, 469 (Pa. 1995). The

 reasonableness of counsel's decisions cannot be based on a distorted hindsight review.

 Commonwealth v. Saranchak~ 866 A.2d 292, 304 (Pa. 2005).

         The threshold inquiry in ineffectiveness claims is whether the basis for counsel's

 action or inaction, which forms the basis for the ineffectiveness claim, is of arguable

merit.    Commonwealth v. Pierce, 645 A.2d 189, 194 (Pa. 1994).         Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim. Commonwealth v.

Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004).

         Once the threshold inquiry is met, the "reasonable        basis" test is used to

"determine whether counsel's chosen course was designed to effectuate his client's

interest. If we conclude that the particular course chosen by counsel had some reasonable

basis, our inquiry ceases and counsel's assistance is deemed effective."   Commonwealth

v. Pierce, 645 A.2d 189, 194-195 (Pa. 1994).

         The petitioner bears the burden during PCRA proceedings of proving all elements

of ineffective assistance, including prejudice.   Commonwealth v. Spatz, 870 A.2d 822,

834 (Pa. 2005).    The test for prejudice at the PCRA stage is more exacting than the

harmless en-or standard applied on direct appeal. Id.




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         PCRA counsel is not required to perform a broad extra-record investigation where

 the record belies the petitioner's   factual allegations, the petitioner offers no facts to

 support his claim, and counsel is therefore able to conclude that the issues petitioner

 seeks to raise have no merit. See, Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890

 (1999). Furthermore, bald, undeveloped allegations fail to satisfy Appellant's burden of

 establishing entitlement to PCRA relief when such allegations are mere boilerplate

 constitutional claims. Commonwealth v. Hall, 872 A.2d 1177 (Pa. 2005); Commonwealth

 v. Washington, 880 A.2d 536 (Pa. 2005).

        In order for PCRA counsel to withdraw, a request to withdraw must be

 accompanied by a "no merit" letter, which details the nature and extent of PCRA

counsel's review, lists each issue the petitioner wished to have reviewed, and explains

why the petitioner's issues are meritless.    In the case sub Judice, the Court determined

that PCRA counsel's Finley "no merit" letter was issued in compliance ·with the

provisions set forth in Pennsylvania v. Finley, 481 U.S. 551 (1987), and Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988). In Finley, the United States Supreme Court held that

a PCRA petitioner is entitled to an independent review of the record by competent

counsel. Finley, 481 U.S. 551. The independent review was described more fully by the

Pennsylvania Superior Court in Turner, wherein the court opined that counsel had to

present a "no merit" letter detailing the nature and extent of counsel's review and listing

each issue petitioner wished to have raised and explaining why the issues were meritless.

Commonwealth v. Turner, 479 A.2d 568, 569-570 (Pa.Super. 1984).

       This Court conducted its own independent review of the record and agrees with

counsel that the petition was meritless. See, Turner, 544 A.2d at 928.




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          Pennsylvania Rule of Criminal Procedure 907 (1) provides in relevant part:

          If the judge is satisfied from ... review [of a PCRA petition] that there are no
          genuine issues concerning any material fact and that the defendant is not entitled
          to post-conviction collateral relief, and no purpose would be served by any further
          proceedings, the judge shall give notice to the parties of the intention to dismiss
          the petition and shall state in the notice the reasons for the dismissal. The
          defendant may respond to the proposed dismissal within 20 days of the date of the
          notice. The judge thereafter shall order the petition dismissed, grant leave to file
          an amended petition, or direct that the proceedings continue.

          This rule applies when, as here, criminal defendants who are dissatisfied with the

 terms of their guilty pleas assert baseless claims of ineffectiveness. See Commonwealth

 v. Morrison, 878 A.2d 102, 109 (Pa. Super. 2005) (post-conviction petitioner was not

 entitled to hearing on his PCRA petition in absence of genuine issue concerning any

 material fact, where a Petitioner was not entitled to relief as matter of law and no

manifest injustice would result from refusal to allow petitioner to withdraw his guilty

plea).


         Allegations of ineffective assistance in connection with the entry of a guilty plea

will entitle the petitioner to relief only if the ineffectiveness caused him to enter an

involuntary or unknowing plea. Commonwealth v. Fears, 836 A.2d 52, 60 (Pa. 2003)

(citing Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999)). To withdraw a plea after

sentencing, a defendant must make a showing of prejudice amounting to "manifest

injustice." Commonwealth v. Pollard, 830 A.2d 517, 522 (Pa. Super. 2003).


         Guided    by   these   standards,   the   court   turns   to   Appellant's     claims   of

ineffectiveness.


         1. Appellant claims that Conspiracy to Commit Third-Degree Murder is a
            non-cognizable crime and therefore it was ineffective for his counsel to
            allow him to enter a guilty plea to a non-existent crime.


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         Appellant seeks to withdraw his guilty plea for several reasons. Initially,

 Appellant's main argument is that Conspiracy to Commit Third Degree Murder is a non-

 cognizable crime and therefore it was ineffective for his counsel to allow him to enter a

 guilty plea to a non-existent crime.

         Several of Appellant's other arguments flow from his basic premise that

 Conspiracy to Commit Third Degree Murder was a non-cognizable crime, including that

 counsel was ineffective for failing to challenge this charge and that the sentence for this

 charge was illegal since it stems from a non-existent crime. Appellant's claims that stem

 from this assertion are without merit. The Pennsylvania Supreme Court has held that

 Conspiracy to Commit Third-Degree Murder is a cognizable offense, abrogating

Commonwealth v. Clinger, 833 A.2d 792. Commonwealth v. Fisher, 80 A.3d 1186 (Pa.

2013). Accordingly, Appellant's claims that his counsel was ineffective because counsel

allowed him to plead guilty to Conspiracy to Commit Third Degree Murder, asserting

that it is not a cognizable offense, are without merit.


        2. Appellant claims that his guilty plea was made under duress.


       Appellant seeks to withdraw his guilty plea to Third-Degree Murder because he

alleges that the guilty plea was entered under duress for a number of reasons. Appellant

felt he had no choice but to enter the guilty plea even though he asserts his innocence.

Appellant asserts that his plea counsel was in possession of a statement of an eyewitness

Donya McCoy Johnson, who labeled the victim as the aggressor. Also, plea counsel was

in possession of the toxicology report which showed that the victim had a BAC of .10%

and supported the Appellant's self defense theory. Moreover, all of Appellant's claims



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 regarding the involuntariness of his guilty plea were already litigated in the Pennsylvania

 Superior Court and the plea was found to be voluntary.


         Appellant's direct appeal sought to withdraw his guilty plea and contended that

 his guilty plea was not entered knowingly, voluntarily, and intelligently. He also claimed

 that the guilty plea was entered under duress as he did not have the time to review the

 evidence against him and was not informed of the possible sentences he faced. The

 Superior Court rejected his arguments and found that his guilty plea was knowing,

 intelligent and voluntary. See Commonwealth v. Staley, No. 497 EDA 2010, pp.4-5 (Pa.

 Super. 2011) (unpublished opinion). Thus, these issues fail because of the PCRA's

prohibition against raising "previously litigated" issues. 42 Pa.C.S.§§9543(a), 9544(a)(2).

An issue is "previously litigated" if "the highest appellate court in which the Petitioner

could have had review as a matter of right"-in this case, the Superior Court- "has ruled on

the merits of the issue." Thus, the voluntariness of the plea issue is barred as "previously

litigated."


        3. Appellant claims that his trial counsel was ineffective for not challenging
        the use of incorrect sentencing guidelines.

        Appellant's claim that his counsel was ineffective for failing to object to the use of

incorrect sentencing guidelines is without merit. Appellant claims that his sentencing

guidelines were calculated to make him a (revoc) repeat violent offender when in fact he

had one prior misdemeanor offense at the time of sentencing which made his prior record

score a zero (0).


       A review of the applicable sentencing guideline forms indicates that, contrary to

Appellants' claim, the guidelines were calculated based on Appellant having a zero (0)


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prior record score. As a result, the sentence Appellant received was based upon an

accurately calculated sentencing guideline form. Appellant's claim of incorrect sentencing

guidelines is frivolous.


III.   CONCLUSION:

       For the foregoing reasons, the court's order denying Appellant's PCRA petition

should be affirmed.


                                                    BY/OURT:



                                       c==b,4<'=~ /JAMESF. NILON, JR., J. <,




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