J-S48042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT
    PENNSYLVANIA,                              :      OF PENNSYLVANIA
                                               :
                            Appellee           :
                                               :
                       v.                      :
                                               :
    KEITH BECKHAM,                             :
                                               :
                            Appellant          :   No. 3243 EDA 2018


             Appeal from the PCRA Order Entered October 4, 2018
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003508-2015

BEFORE:      BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                    FILED NOVEMBER 06, 2019

       Keith Beckham (Appellant) appeals from the order entered October 4,

2018, dismissing his petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

       On October 31, 2016, Appellant entered into a negotiated guilty plea to

third-degree murder and possessing an instrument of crime (PIC),1 and he

____________________________________________
1The PCRA court set forth the factual basis for the plea based upon the
Commonwealth’s proffer at the guilty-plea hearing.

             At approximately 12:45 a.m. on March 14, 2015, in the area
       of 53rd and Market Streets in Philadelphia, David McMillan, the
       decedent, got into a verbal altercation with [Appellant]. During
       the altercation, [Appellant] took out a four inch pocket knife and
       stabbed McMillan six times, including one in the neck. McMillan
       was pronounced dead at 1:36 a.m. at Presbyterian Medical
       Center. The cause of death was his stab wounds.


* Retired Senior Judge assigned to the Superior Court.
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was sentenced to an aggregate sentence of 22½ to 45 years of incarceration.

Relevant to this appeal, the guilty plea/sentencing transcript reveals the

following discussion of Appellant’s post-sentence and appellate rights.

       After explaining to Appellant that he would be waiving most of his

appellate rights by pleading guilty, the trial court informed Appellant that “[he]

shouldn’t count on getting any help at all from a higher court.” N.T.,

10/31/2016, at 8. Appellant responded that he understood. Id. After the trial

court accepted the guilty plea and sentenced Appellant in accordance with the

plea, the trial court specifically informed Appellant that he had 30 days to

appeal his sentence and 10 days to file a post-sentence motion. Id. at 21-22.

The trial court told Appellant that if he believed he entered the plea

involuntarily or that his sentence was excessive, he had 10 days to raise those

claims or they would be waived. Id. at 22. The trial court then asked Appellant

if he had “any desire to file an appeal or a post-sentence motion.” Id. at 22.

Appellant responded, “No.” Id.           The trial court told Appellant that if he




____________________________________________



              Detectives recovered surveillance video of [Appellant]
       stabbing McMillan and later recovered [Appellant’s] knife in a trash
       can half a block away from the crime scene. DNA analysis showed
       [that] both [Appellant’s] and McMillan’s DNA was present on the
       knife.   Detectives also recovered a bloodstained shirt from
       [Appellant], and analysis showed the blood belonged to McMillan.

PCRA Court Opinion, 1/22/2019, at 2-3 (footnotes and citations omitted).


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changed his mind, he had to let trial counsel “know within the next ten days.”

Id.

       After sentencing, Appellant did not file either a post-sentence motion or

direct appeal. On October 17, 2017, Appellant pro se timely filed a PCRA

petition.    Counsel was appointed, and an amended petition was filed.

Appellant claimed, inter alia, that trial counsel was ineffective for failing to file

a post-sentence motion to withdraw Appellant’s guilty plea and a direct

appeal, despite Appellant’s request for trial counsel to do so. An evidentiary

hearing was held, where both Appellant and trial counsel testified.2

       According to Appellant, after his sentence was imposed, Appellant told

trial counsel that he “wanted [trial counsel] to appeal the guilty plea and try

to fight for a better negotiated plea.” N.T., 10/4/2018, at 8. Appellant testified

that the conversation occurred right after sentencing in the “booth,” and that

trial counsel did not respond to this request. Id. at 8-9. Appellant testified

that he never heard from trial counsel again. Id. at 9. According to Appellant,

he did not contact trial counsel again because he “didn’t know [he] had to file

an appeal within ten days.” Id. at 12.

       Trial counsel also testified at the hearing. According to trial counsel, he

remembered Appellant’s case because Appellant himself brought up the idea

of a plea deal while trial counsel was preparing a self-defense defense. Id. at


____________________________________________
2The Honorable Glenn B. Bronson presided at both the guilty plea/sentencing
hearing and the PCRA proceedings.

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18. Specifically, the two “were going through the preparation of [Appellant’s]

direct testimony,” and Appellant said, “I want the deal.” Id. Trial counsel

testified that he felt this was unusual “because normally the defense attorney

has to do some convincing or some talking.” Id. Trial counsel testified that

the initial offer from the Commonwealth was 25 to 50 years of incarceration,

and he negotiated the sentence down to 22½ to 45 years of incarceration. Id.

at 19. Trial counsel indicated that he did not “recall going to a booth and

speaking with” Appellant after the plea/sentencing hearing. Id. at 20. Trial

counsel does not remember Appellant requesting an appeal. Id. at 23.

      At the close of the hearing, the PCRA court denied Appellant PCRA relief.

Appellant timely filed a notice of appeal, and both Appellant and the PCRA

court complied with Pa.R.A.P. 1925.

      On appeal, Appellant contends that trial counsel was ineffective because

Appellant requested that trial counsel file a motion to withdraw and appeal

from his sentence and trial counsel failed to do so. See Appellant’s Brief at 8.

      We review this issue mindful of the following.

      On appeal from the denial of PCRA relief, our standard of review
      calls for us to determine whether the ruling of the PCRA court is
      supported by the record and free of legal error. The PCRA court’s
      findings will not be disturbed unless there is no support for the
      findings in the certified record. The PCRA court’s factual
      determinations are entitled to deference, but its legal
      determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal

citations and quotation marks omitted). “The scope of review is limited to the


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

favorable to the prevailing party at the PCRA court level.” Commonwealth

v. Koehler, 36 A.3d 121, 131 (Pa. 2012). Moreover, “[i]t is well-settled that

a PCRA court’s credibility determinations are binding upon an appellate court

so long as they are supported by the record.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014).

      Appellant’s claims are based upon the alleged ineffective assistance of

his counsel. With respect to such claims generally,

         [i]t is well-established that counsel is presumed to have
         provided effective representation unless the PCRA petitioner
         pleads and proves all of the following: (1) the underlying
         legal claim is of arguable merit; (2) counsel’s action or
         inaction lacked any objectively reasonable basis designed to
         effectuate his 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.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (internal

citations omitted).

      Regarding an ineffectiveness claim based on counsel’s failure to file a

direct appeal, we observe that “Article V, Section 9 of the Pennsylvania

Constitution guarantees a direct appeal as of right.” Commonwealth v.

Lantzy, 736 A.2d 564, 571 (Pa. 1999). “It is well settled that when a lawyer

fails to file a direct appeal requested by the defendant, the defendant is


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automatically   entitled   to   reinstatement   of   his   direct   appeal   rights.”

Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011). “[I]n

such circumstances, and where the remaining requirements of the PCRA are

satisfied, the petitioner is not required to establish his innocence or

demonstrate the merits of the issue or issues which would have been raised

on appeal.” Lantzy, 736 A.2d at 572. “However, before a court will find

ineffectiveness of trial counsel for failing to file a direct appeal, Appellant must

prove that he requested an appeal and that counsel disregarded this request.”

Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). “Mere

allegation will not suffice; the burden is on Appellant to plead and prove that

his request for an appeal was ignored or rejected by trial counsel.” Id.

      Here, the PCRA court concluded that Appellant failed to prove that he

requested trial counsel file a post-sentence motion or direct appeal. The PCRA

court explained its reasoning as follows.

      1. The testimony of [Appellant] was incredible, and he failed to
         show by a preponderance of the evidence that he asked
         counsel to move to withdraw his guilty plea or that he asked
         counsel to file an appeal. While [Appellant] claimed that the
         [trial court] never informed him that he had ten days to
         withdraw his guilty plea, the record shows that during the plea
         colloquy, the [trial court] told [Appellant] four times that he
         had ten days to withdraw his guilty plea. In addition, the [trial
         court] rejected as incredible [Appellant’s] testimony that he
         told [trial counsel] he wanted to file an appeal minutes after
         telling the [trial court] during his guilty plea colloquy that he
         did not want to file an appeal or any post-sentence motions.
         Accordingly, the [trial court] found that [Appellant] never
         asked [trial counsel] to withdraw or appeal his guilty plea at
         any time.


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      2. The testimony of [trial counsel] was credible and established
         that if [Appellant] had asked him to withdraw or appeal his
         guilty plea, either orally or in writing, then [trial counsel] would
         have responded to [Appellant’s] request in an appropriate
         fashion.

      3. Accordingly, the record establishes that [trial counsel] was not
         ineffective for failing to file a motion to withdraw or a direct
         appeal of [Appellant’s] guilty plea because [Appellant] never
         requested that he do so. As a result, [Appellant’s] claim in his
         PCRA petition that trial counsel was ineffective is meritless.

PCRA Court Opinion, 1/22/2019, at 5-6 (citation omitted).

      On appeal, Appellant sets forth numerous arguments in support of his

contention that trial counsel was ineffective for failing to file a post-sentence

motion or direct appeal. However, central to all of his points is the trial court’s

credibility determination. It is Appellant’s position that because Appellant had

a “fairly clear recollection of what occurred,” and testified at the PCRA hearing

that he requested trial counsel file a direct appeal, the PCRA court should have

credited Appellant’s testimony rather than the testimony of trial counsel.

Appellant’s Brief at 9. Appellant suggests that although trial counsel “is a very

good lawyer,” he “has many clients and many things to take care of during a

day or a week,” so “it makes common sense … to conclude that [Appellant]”

would be more likely to remember clearly what occurred immediately after

the plea/sentencing hearing. Id. at 9-10.

      As   discussed   supra,    this   Court   may   not   disturb   a   credibility

determination of the PCRA court so long as it is supported by the record. See

Miller, 102 A.3d at 992.        Here, the PCRA court found it incredible that


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Appellant specifically told the trial court that he did not wish to appeal and

then, as he testified as the PCRA hearing, almost immediately thereafter told

trial counsel that he wished to appeal. The PCRA court’s conclusion is further

supported by the fact that Appellant testified at the PCRA hearing that he was

not aware he had 10 days to file a post-sentence motion, when the

plea/sentencing transcript reveals Appellant was specifically informed several

times of that requirement. Moreover, our review of the testimony supports

the PCRA court’s conclusion that trial counsel’s testimony was credible. Trial

counsel offered specific recollections from Appellant’s case. Thus, we conclude

that the PCRA court’s findings are supported by the record, and we discern no

basis to disturb the PCRA court’s credibility determinations.

      Having concluded that the PCRA court’s credibility determinations are

supported by the record, we hold that the PCRA court did not err in concluding

that Appellant did not satisfy his burden in establishing that he requested trial

counsel to file either a post-sentence motion or a direct appeal, and that trial

counsel disregarded that request. See Harmon, 738 A.2d at 1025 (holding

that where the PCRA court concluded the testimony of trial counsel was

credible, and that testimony was supported by the record, this Court would

not disturb the credibility finding). Thus, we conclude trial counsel was not

ineffective, and we affirm the order of the PCRA court.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/19




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