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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 FLOYD NOEL                               :
                                          :
                      Appellant           :   No. 686 WDA 2018

                 Appeal from the PCRA Order April 10, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0008001-2015


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 22, 2020

      Appellant, Floyd Noel, appeals from the order dismissing his petition

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

9546. After careful review, we affirm.

      On direct appeal, this Court provided the following factual and

procedural history:

      On May 30, 2015, at approximately 2:00 a.m., officers of the
      Mckeesport Police Department observed Appellant fail to stop at a
      stop sign and then turn into a shopping center without signaling.
      Police instituted a traffic stop, activating their emergency lights
      and sirens.     The officer possessed personal knowledge that
      Appellant had prior arrests for firearms and observed Appellant
      lowering his left shoulder towards the floor of the vehicle. The
      officer told Appellant the reason for the traffic stop, obtained
      Appellant’s license and a rental agreement for the vehicle, and
      asked Appellant if he had weapons on him. When Appellant
      queried why the officer inquired about the weapons, the officer
      asked Appellant to step out of the vehicle. Appellant sped off at
      a high rate of speed, leaving his credentials with the police. The
      original police officers, as well as a back-up unit, engaged in the
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       pursuit of Appellant through the streets of McKeesport. Officers
       estimated that Appellant reached speeds of 90 miles per hour. At
       one point, Appellant almost collided head-on with one of the police
       vehicles. Appellant eventually outran the police and they called
       off the chase. Appellant turned himself over to authorities shortly
       thereafter.

              On October 22, 2015, the trial court held a bench trial and
       found Appellant guilty of the aforementioned charges.[1] On
       January 12, 2016, the trial court, with the benefit of a pre-
       sentence investigation report, sentenced Appellant to an
       aggregate term of 51 to 102 months of imprisonment. More
       specifically, the trial court sentenced Appellant to consecutive
       standard-range sentences for escape, fleeing or attempting to
       elude police officers, and the three counts of [recklessly
       endangering another person], with no further penalties on the
       remaining offenses. Appellant filed a timely post-sentence motion
       on January 14, 2015, arguing that his sentence was excessive.
       Following a hearing on Appellant’s post-sentence motion, the trial
       court denied relief by order entered on March 17, 2016. This
       timely appeal followed.

Commonwealth v. Noel, 168 A.3d 322, 459 WDA 2016 (Pa. Super., filed

3/17/17). We affirmed. Id.

       Appellant did not appeal from the decision of the Superior Court, and on

July 10, 2017, Appellant filed his timely PCRA petition.2       PCRA Petition,

7/10/17. The PCRA court appointed counsel for Appellant on October 2, 2017,
____________________________________________


1Appellant was convicted of one count of escape (18 Pa.C.S. § 5121); fleeing
or attempting to elude police officers (75 Pa.C.S. § 3733); obstructing
administration of law (18 Pa.C.S. § 5101); resisting arrest (18 Pa.C.S. §
5104); three counts or recklessly endangering another person (18 Pa.C.S. §
2705); and thirteen summary traffic offenses.

2 Pursuant to 42 Pa.C.S. § 9454(b)(1), a first PCRA petition must be filed
within one year from the date judgment becomes final. “[A] judgment
becomes final at the conclusion of direct review.” This Court filed its opinion
on March 17, 2017, as noted. Appellant did not appeal from this Court’s
decision. Appellant filed his pro se PCRA petition on July 10, 2017, within the
one-year prescribed period.

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and counsel filed an amended PCRA petition on March 6, 2018. Amended

PCRA Petition, 3/6/18. The PCRA court held a hearing on April 10, 2018, and

denied Appellant’s petition on April 11, 2018. Order, 4/11/18. Appellant filed

the instant appeal; both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        Appellant presents the following question for our review:

        I.    Did the lower court abuse its discretion in denying the PCRA
              petition insofar as [Appellant] established the merits of the
              claim that his decision to proceed to trial rather than enter a
              guilty plea was unknowing, unintelligent and involuntary due
              to the ineffective assistance of trial counsel?

Appellant’s Brief at 4.

        When reviewing the propriety of an order denying PCRA relief, this Court

is limited to determining whether the evidence of record supports the

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

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).                    We will

review PCRA appeals “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super.

2015).       The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).          Finally, we note that the “PCRA court’s

credibility determinations, when supported by the record, are binding on this

Court.” Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014).

        Generally, in this Commonwealth:



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      [c]ounsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel’s performance
      was deficient and that such deficiency prejudiced him. In
      Pennsylvania, we have refined the Strickland [v. Washington,
      466 U.S. 668 (1984)] performance and prejudice test into a three-
      part inquiry. Thus, to prove counsel ineffective, the petitioner
      must show that: (1) his underlying claim is of arguable merit; (2)
      counsel had no reasonable basis for his action or inaction; and (3)
      the petitioner suffered actual prejudice as a result. See
      [Commonwealth v.] Pierce[, 527 A.2d 973 (Pa. 1987) ]. If a
      petitioner fails to prove any of these prongs, his claim fails.
      Generally, counsel’s assistance is deemed constitutionally
      effective if he chose a particular course of conduct that had some
      reasonable basis designed to effectuate his client’s interests.
      Where matters of strategy and tactics are concerned, a finding
      that a chosen strategy lacked a reasonable basis is not warranted
      unless it can be concluded that an alternative not chosen offered
      a potential for success substantially greater than the course
      actually pursued. To demonstrate prejudice, the petitioner must
      show that there is a reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceedings would have
      been different. A reasonable probability is a probability that is
      sufficient to undermine confidence in the outcome of the
      proceeding.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2016)

(quoting Commonwealth v. Spotz, 84 A.3d 294, 311-312 (Pa. 2014) (some

internal citations omitted)). Moreover, “[a] court is not required to analyze

the elements of an ineffectiveness claim in any particular order of priority;

instead, if a claim fails under any necessary element of the ineffectiveness

test, the court may proceed to that element first.” Commonwealth v. Tharp,

101 A.3d 736, 747 (Pa. 2014).

      In support of his appeal, Appellant argues that his counsel failed to

advise him of all of the plea offers that the prosecution related to counsel and

avers that counsel failed to “fully and accurately explain to [Appellant] the


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pros and cons of accepting a plea offer.” Appellant’s Brief at 9. Appellant

avers that if he had been fully apprised of all of the offers made to him – along

with the facts that if convicted he could be facing a sentence longer than

fifteen months of imprisonment and that he could receive consecutive

sentences - he would have taken the plea offer of fifteen months or less of

incarceration.3 Appellant’s Brief at 10. Appellant highlights a statement made

by the prosecutor during Appellant’s sentencing, which referenced an offer of

county time, as evidence of his trial counsel’s ineffectiveness.4 Id. at

11.   Appellant also claims that his trial counsel never informed him of a plea

offer that involved a county sentence. Id.       Appellant points to the testimony

he gave at the PCRA hearing as establishing that his counsel was ineffective

for giving him incorrect information regarding the plea offers, that counsel

lacked a reasonable basis for that failure, and that Appellant was prejudiced

by that failure. Id. 12-14.

       In its brief, the Commonwealth avers that prior to trial, Appellant stated

on the record that (1) he was aware of the charges pending against him, (2)

he understood the maximum penalties he faced, and (3) he was satisfied with
____________________________________________


3 We note that after reviewing the PCRA transcript, it is unclear whether
Appellant ever received a plea offer of fifteen months of incarceration. The
plea deal discussed during the PCRA hearing, that Appellant rejected, was for
six to twenty-three months of incarceration.

4Specifically, during Appellant’s sentencing, the Commonwealth stated, “Yes,
Your Honor. I have nothing to add or change to the presentence report. But,
Your Honor, before we proceed to the non-jury [trial] [Appellant] was offered
many plea offers, including county time… .” Appellant’s Brief at 11 (citing N.T.
(Sentencing), 1/12/16, at 5).

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his legal representation.    Commonwealth’s Brief at 9 (citing N.T. (Trial),

10/22/15, at 2-5). Moreover, the Commonwealth points out that Appellant

admitted that no one promised him any particular outcome. Id.                  The

Commonwealth also highlights the testimony of Appellant’s trial counsel given

during the PCRA hearing. Id. (citing N.T.(PCRA), 4/10/18, at 6). Counsel

testified that prior to trial, he informed Appellant of the offer of six to twenty-

three months of incarceration, which constitutes a county sentence.            Id.

Counsel also testified that he encouraged Appellant to accept the offer given

the weakness of Appellant’s case. Id. Finally, the Commonwealth notes that

the PCRA court heard the testimony of Appellant, Appellant’s girlfriend, and

Appellant’s trial counsel and the PCRA court determined that trial counsel’s

testimony was credible. Commonwealth’s Brief at 12-13 (citing PCRA Court

Opinion, 5/13/19, at 5).

      Generally, a PCRA petitioner seeking relief on the basis that ineffective

assistance of counsel caused him to reject a guilty plea must demonstrate the

following circumstance:

      [B]ut for the ineffective advice of counsel there is a reasonable
      probability that the plea offer would have been presented to the
      court (i.e., that the defendant would have accepted the plea and
      the prosecution would not have withdrawn it in light of intervening
      circumstances), that the court would have accepted its terms, and
      that the conviction or sentence, or both, under the offer’s terms
      would have been less severe than under the judgment and
      sentence that in fact were imposed.

Steckley, 128 A.2d at 832 (quoting Lafler v. Cooper, 132 S.Ct. 1376, 1385

(2012)). Further, we note that where a PCRA court’s credibility determination


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is supported by the record, we are bound by those credibility determinations

and will not disturb them on appeal. Commonwealth v. Marinez, 777 A.2d

1121, 1124 (Pa. Super. 2001).         In Marinez, this Court opined that the

appellant’s claim that his counsel was ineffective for failing to convey a plea

offer was of no merit where the PCRA court held a hearing and found that the

petitioner’s trial counsel was credible when he testified that he informed

petitioner of a plea offer.    Marinez, 777 A.2d at 1124-1125. Further, the

court stated that it specifically disbelieved petitioner’s testimony that his trial

counsel failed to inform him of the plea offer.       Id. Indeed, “A PCRA court

passes   on   witness   credibility   at   PCRA   hearings,   and   its   credibility

determinations    should      be   provided   great   deference     by    reviewing

courts.” Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009). In its

opinion, the PCRA court stated it reviewed the testimony given at the hearing

and found, “It is clear that [Appellant] was offered a plea agreement, and

clearly rejected it.” PCRA Court Opinion, 5/13/19, at 5. Further, the court

found, “In the instant case, [trial counsel] urged [Appellant] to accept a plea,

which [Appellant] rejected. Further, the PCRA [c]ourt did not find [trial

counsel] to be ineffective in his representation. The PCRA [c]ourt did not find

[Appellant’s] testimony to be credible or persuasive.” Id.

      We conclude that the record supports the PCRA court’s credibility

determinations. Accordingly, Appellant is due no relief and we affirm the order

denying PCRA relief.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2020




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