J-S68003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

LAWRENCE WHITAKER,

                           Appellant                 No. 1030 EDA 2013


              Appeal from the PCRA Order entered March 28, 2013,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division, at No(s): CP-51-CR-0012235-2009
                           & CP-51-CR-0012236-2009


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED NOVEMBER 07, 2014

      Lawrence Whitaker (“Appellant”) appeals from the order denying his

petition for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

sections 9541-46. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

            This case stems from a pedestrian stop of [Appellant]
         by police officers, which resulted in a violent struggle on
         September 1, 2009.         At a preliminary hearing on
         September 24, 2009, [Appellant] was charged with (2) two
         counts of aggravated assault, (2) counts of simple assault,
         and resisting arrest.

            On October 15, 2010, [Appellant] consulted with [trial
         counsel], and proceeded to read and sign a written
         colloquy.    After reading and signing the colloquy,
         [Appellant] entered a plea of nolo contendere in open
         court. The colloquy explained in detail the charges alleged
         against [Appellant], the maximum possible sentence, and
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        [Appellant’s] constitutionally protected rights at trial. The
        Court also described to [Appellant], at length, the
        differences between his options to either (i) proceed with
        trial, or (ii) enter a nolo contendere plea. The written
        colloquy required [Appellant] to sign in confirmation that
        he was not threated or promised anything in return for his
        plea of nolo contendere[.]

           The Court explained that, by entering a nolo contendere
        plea, [Appellant] was relinquishing certain pretrial rights,
        and that the information contained in the police reports
        would formally be made part of the record. The Court then
        asked [Appellant] whether he was satisfied with the
        information and advice he had received from [trial
        counsel], to which [Appellant] replied, “Yes.” The Court
        also asked [Appellant] whether he had any questions for
        the Court regarding his plea, to which he replied, “Yes.”
        After conferring with [trial counsel, Appellant] was asked
        again whether he had any questions for the Court, to
        which he replied, “No.” Lastly, the Court asked [Appellant]
        whether he understood what it meant to plead no contest,
        to which he replied, “Yes.”

           After an extensive recitation of the colloquy, the Court
        determined that [Appellant] entered his plea of nolo
        contendere knowingly, intelligently, and voluntarily. The
        Court asked [Appellant] whether he intended to contest
        the facts contained in the police report[s], to which he
        replied “No.” In accordance with the nolo contendere plea,
        the Court Crier subsequently arraigned [Appellant] on (2)
        two charges of simple assault[.]

PCRA Court Opinion, 4/2/14, at 1-3 (citations to notes of testimony

omitted). The trial court then sentenced Appellant to an aggregate term of

three years of reporting probation, and a mandatory anger management

course. Appellant filed neither post-sentence motions nor a direct appeal.

     On October 14, 2011, Appellant filed a pro se PCRA petition.        The

PCRA court appointed counsel, and PCRA counsel subsequently filed an



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amended petition.       On February 14, 2013, the PCRA court issued

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a

hearing.    Appellant did not file a response.   By order entered March 28,

2013, the PCRA court denied Appellant’s petition.        This timely appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        Appellant’s sole claim on appeal is that the PCRA court erred in

denying his petition without a hearing.     See Appellant’s Brief at 2.    In

reviewing the propriety of an order granting or denying PCRA relief, an

appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the findings of the PCRA court, “but its legal determinations are

subject to our plenary review.” Id. Moreover, a PCRA court may decline to

hold a hearing on the petition if the PCRA court determines that petitioner’s

claim is patently frivolous and is without a trace of support either in the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,

1014 (Pa. Super. 2001). Finally, to be entitled to relief under the PCRA, the

petitioner must plead and prove by a preponderance of the evidence that the

conviction or sentence arose from one or more of the errors enumerated in

section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness

of counsel.




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        To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Id.     “Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that:    (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission.        Id. at 533.    A finding of

"prejudice" requires the petitioner to show "that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different."       Id.   Counsel cannot be deemed

ineffective for failing to pursue a meritless claim.       Commonwealth v.

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852

A.2d 311 (Pa. 2004).

        Appellant claims that trial counsel unlawfully induced him into entering

his no contest pleas.     According to Appellant, he did not enter his nolo

contendere plea voluntarily, but did so because trial counsel “refused to call

witnesses who would have shown that [Appellant] was innocent of the

offenses and [trial] counsel also refused to show a video of the incident

which was taken by [Appellant] which also shows that he in fact was the


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victim of an assault perpetrated by the two police officers.” Appellant’s Brief

at 5. Additionally, Appellant asserts that he produced evidence following the

entry of his plea that showed one of the police officers involved in the

incident was no longer being used as a witness in criminal cases prosecuted

by the Commonwealth.           Id.   According to Appellant, he has “alleged and

demonstrated that [trial counsel] abandoned him and he, [Appellant], had

no option but to plead no contest.”            Id.   Appellant therefore argues that,

because his PCRA petition raised an issue of material fact, this case should

be remanded for an evidentiary hearing. We disagree.

       When asserting a claim of ineffectiveness of counsel in the context of a

guilty plea1, a defendant must show that plea counsel’s ineffectiveness

induced him to enter the plea. Commonwealth v. Johnson, 875 A.2d 328,

331 (Pa. Super. 2005). This Court stated:


             Because a plea of guilty effectively waives all non-
         jurisdictional defects and defenses, after sentencing,
         allegations of ineffectiveness of counsel in this context
         provide a basis for withdrawal of the plea only where there
         is a causal nexus between counsel’s ineffectiveness, if any,
         and an unknowing or involuntary plea. The guilty plea
         hearing becomes the significant procedure under scrutiny.
         The focus of the inquiry is whether the accused was misled
         or misinformed and acted under that misguided influence
         when entering the guilty plea.

____________________________________________


1
 Appellant’s nolo contendere plea is treated the same as a guilty plea.
Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super. 2004).




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Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations omitted).

      Further, this Court summarized:

           Our law presumes that a defendant who enters a guilty plea
           was aware of what he was doing. He bears the burden of
           proving otherwise.

                               *      *      *

               The long standing rule of Pennsylvania law is that a
           defendant may not challenge his guilty plea by asserting
           that he lied while under oath, even if he avers that counsel
           induced the lies. A person who elects to plead guilty is
           bound by the statements he makes in open court while
           under oath and may not later assert grounds for
           withdrawing the plea which contradict the statements he
           made at his plea colloquy.

                               *      *      *

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

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)

(citations omitted).

      The PCRA court found no merit to Appellant’s claim, and explained as

follows:


               In the instant case, the Court found that [Appellant]
           failed to show that there was [a] genuine issue concerning
           any material fact. Although [Appellant’s] PCRA petition
           alleges that [trial counsel] “refused to call certain
           witnesses” and “failed to show a video of the incident,” the
           petition does not [allege] any facts indicating how

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         [Appellant] was induced to enter his plea. At trial, the
         Court thoroughly assessed [Appellant’s] competence, and
         specifically asked [Appellant] whether he was satisfied with
         the information and advice he had received from [trial
         counsel].      The Court determined [Appellant] to be
         competent, and [Appellant] indicated that he, in fact, was
         satisfied with the information and advice he had received
         from [trial counsel]. Based on [Appellant’s] responses to
         the extensive colloquy, the Court determined that
         [Appellant] entered his plea of nolo contendere knowingly,
         intelligently, and voluntarily.

            [Appellant’s] PCRA petition fails to show that
         [Appellant] entered his plea unknowingly, unintelligently,
         or by inducement. [Appellant’s] claim the he was induced
         by [trial counsel] to enter the plea of nolo contendere is
         not supported by any allegations in the PCRA petition that
         would rise to the level of ineffective assistance of counsel.
         [Appellant] merely claims that two eyewitnesses to the
         incident were not called to testify, and that a video was
         not shown to the Court.

            After thoroughly reviewing the record and [Appellant’s
         PCRA] petition, the Court found that [Appellant] neither
         established any genuine issue of material fact nor an
         entitlement to post-conviction collateral relief.

PCRA Court Opinion, 4/2/14, at 6-7 (footnote and citations omitted).

     Our review of the record supports the PCRA court’s conclusions.

Appellant’s answers to the court’s questions during the oral plea colloquy, as

well as those provided in the written colloquy, contradict Appellant’s claims

in his PCRA petition.   Thus, his ineffectiveness claim fails.   See Pollard,

supra.   Additionally, given this conclusion, the PCRA court did not err in

dismissing Appellant’s PCRA petition without first holding an evidentiary

hearing. See Jordan, supra.




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      With regard to Appellant’s “after-discovered evidence claim” involving

one of the police officers involved in the incident giving rise to Appellant’s

convictions, our review of the record supports the PCRA court’s conclusion

that Appellant failed to raise this claim in his amended petition. See PCRA

Court Opinion, 4/2/14, at 6. Thus, Appellant’s claim is not properly before

us.   See Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013)

(concluding ineffectiveness claim was waived when the PCRA petitioner

failed to raise it in his PCRA petition and did not obtain permission to amend

his petition).

      Based on the foregoing, we affirm the PCRA court’s order denying

Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2014




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