J-S72021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
DONNIEL ROUNDTREE,                      :
                                        :
                  Appellant             :          No. 556 EDA 2017

                 Appeal from the PCRA Order January 5, 2017
               in the Court of Common Pleas of Lehigh County,
            Criminal Division at No(s): CP-39-CR-0001605-2014

BEFORE:    BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.:                      FILED JANUARY 18, 2018

      Donniel Roundtree (“Roundtree”), pro se, appeals from the Order

dismissing his first Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      At the guilty plea hearing, Roundtree agreed to the following factual

summary presented by the Commonwealth:

      [O]n April 8, 2014, at approximately 1:25 p.m., Pennsylvania
      State Police were monitoring westbound traffic on Interstate 78.
      At that time[,] they observed a tan 2013 Chevrolet Tahoe
      traveling 63 miles per hour in a 55 mile per hour speed zone.

      …

      Trooper [Thomas] Fleisher conducted a vehicle stop in the area
      of mile marker 60.1, which is Exit 57, which is Upper Saucon
      Township, Lehigh County. At that time[,] [] Roundtree was in
      the front [passenger seat] in the Chevy Tahoe. After some
      questioning by the troopers, they eventually made a search of []
      Roundtree and they found that he was concealing in his anus
      two plastic bags[, which contained heroin]. They were recovered
      by Trooper Jonathan Gerken and submitted to the Pennsylvania

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72021-17


      State Police. One bag came back weighing 30.37 grams. The
      second bag was 30.16 grams, for a total of 60.53 grams of
      heroin, and [Roundtree] possessed that with the intent to
      deliver. Also recovered from the Chevy Tahoe was one []
      cardboard box[] with the small glassine packages that are
      commonly used to package heroin.

N.T., 1/5/15, at 9-10 (paragraph breaks omitted).

      Roundtree was charged with three counts of possession of a controlled

substance and one count each of possession with intent to deliver a

controlled substance (heroin), possession of a small amount of marijuana,

and possession of drug paraphernalia. On June 10, 2014, Roundtree filed a

Motion to Suppress physical evidence, on the basis that the evidence was

seized as a result of an illegal stop, detention, and search.      Following a

hearing, the trial court denied Roundtree’s Motion to Suppress.

      On January 5, 2015, Roundtree entered a negotiated guilty plea to

possession with intent to deliver, with the agreement that his minimum

sentence would not exceed 5 years.     The trial court accepted Roundtree’s

guilty plea, and sentenced him to a term of 5 to 10 years in prison.

Roundtree did not file post-sentence motions or a direct appeal.

      On January 27, 2016, Roundtree, pro se, filed the instant PCRA

Petition.   The PCRA court appointed Roundtree counsel, who filed an

Amended Petition on Roundtree’s behalf. PCRA counsel subsequently filed a

Petition for permission to withdraw from representation, and a “no-merit”

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The PCRA court granted PCRA counsel permission to withdraw.                On

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November 16, 2016, the PCRA court issued a Notice of its intention to

dismiss Roundtree’s Petition without a hearing, pursuant to Pa.R.Crim.P.

907. After receiving an extension of time to respond to the Rule 907 Notice,

Roundtree filed a Response. The PCRA court dismissed Roundtree’s Petition

on January 5, 2017. Roundtree filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on

appeal.

     On appeal, Roundtree raises the following questions for our review:

     1. Whether trial counsel provided ineffective assistance of
     counsel when advising [Roundtree] to tak[e] a guilty plea, that
     was a direct result of an illegal search and seizure, arising from
     an unlawful traffic stop and search/pat[-]down?

     2. Whether trial counsel provided ineffective assistance of
     counsel when advising [Roundtree] to tak[e] a guilty plea of an
     illegal sentence, that was a direct result of an illegal search and
     seizure, arising from an unlawful traffic stop/pat[-]down?

     3. Whether PCRA counsel was ineffective for failing to appeal
     trial counsel’s failure in advising [Roundtree] to tak[e] a guilty
     plea, that was a direct result of an illegal search and seizure,
     arising from an unlawful traffic stop and search/pat[-]down?

     4. Whether PCRA counsel was ineffective for failing to appeal
     trial counsel’s failure of effective assistance of counsel when
     advising [Roundtree] to tak[e] a guilty plea of an illegal
     sentence, that was a direct result of an illegal search and
     seizure,   arising    from   an    unlawful   traffic stop  and
     search/pat[-]down?

     5. Whether trial counsel … provided ineffective assistance of
     counsel when he failed to suppress the illegal search and
     seizure,  arising  from   the  unlawful   traffic stop    and
     search/pat[-]down?



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      6. Whether the PCRA court abused its discretion by finding no
      fault in trial counsel’s ineffectiveness during the suppression
      hearing of the unlawful traffic stop, that was a direct result of an
      illegal traffic stop, search/pat[-]down and seizure of the unlawful
      items?

      7. Whether the PCRA court abused its discretion in upholding the
      trial court’s illegal sentence of [Roundtree]?

      8. Whether PCRA counsel … was ineffective for failing to appeal
      trial counsel’s failure to suppress the illegal search and seizure,
      arising from the unlawful traffic stop and search/pat[-]down?

      9. Whether trial counsel failed to provide [Roundtree] with the
      requested notes of testimony and discovery?

      10. Whether PCRA counsel was ineffective for failing to provide
      [Roundtree] the requested notes of testimony and discovery?

      11. Whether the PCRA court abused its discretion by dismissing
      the PCRA Petition without order[ing] notes of testimony and
      discovery for the indigent [Roundtree]?

Brief for Appellant at 4-5 (issues renumbered).

             Our standard of review of a PCRA court’s [dismissal] of a
      petition for post[-]conviction relief is well-settled: We must
      examine whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is
      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.

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

(citation omitted).

      We will consider Roundtree’s first and second claims together. In both

claims, Roundtree contends that trial counsel was ineffective for advising

him to plead guilty. Brief for Appellant at 14-16. Roundtree argues that the

recovered evidence was the product of an illegal stop and search, and claims

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that he pled guilty based on trial counsel’s opinion that the evidence was

legally obtained. Id.

             It is well-settled 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.

Franklin, 990 A.2d at 797 (citations omitted). “A claim of ineffectiveness

will be denied if the petitioner’s evidence fails to satisfy any one of these

prongs.”   Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016)

(citation omitted).

             Ineffective assistance of counsel claims arising from the
      plea-bargaining process are eligible for PCRA review. Allegations
      of ineffectiveness in connection with the entry of a guilty plea
      will serve as a basis for relief only if the ineffectiveness caused
      the defendant to enter an involuntary or unknowing plea. Where
      the defendant enters his plea on the advice of counsel, the
      voluntariness of the plea depends on whether counsel’s advice
      was within the range of competence demanded of attorneys in
      criminal cases.

Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)

(citations and quotation marks omitted); see also Commonwealth v.

Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (stating that “the defendant

must show that counsel’s deficient stewardship resulted in a manifest

injustice … by facilitating entry of an unknowing, involuntary, or unintelligent

plea.” (citations omitted)).




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      As this Court has explained,

      [o]ur 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 longstanding 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).

      Here, the trial court conducted an oral colloquy on the record during

the January 5, 2015 guilty plea and sentencing hearing, during which

Roundtree acknowledged that he completed a Written Guilty Plea Colloquy

form and reviewed the form with his attorney.      See N.T., 1/5/15, at 4.

Additionally, the trial court advised Roundtree regarding his right to a jury

trial and the presumption of innocence, and informed him that the judge is

not bound by the terms of the plea agreement.      See id. at 3. Roundtree

also acknowledged that he understood the nature of the charge to which he

was pleading guilty; he understood the maximum sentence he could receive

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for the charge; he agreed to the facts underlying the charge; and he

admitted to possessing heroin for the purpose of delivery. See id. at 9-11;

see also Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015)

(stating that “a plea of guilty will not be deemed invalid if the circumstances

surrounding the entry of the plea disclose that the defendant had a full

understanding of the nature and consequences of his plea and that he

knowingly and voluntarily decided to enter the plea.”      (citation omitted)).

Further, in pleading guilty, Roundtree acknowledged that he waived all

claims except for the jurisdiction of the court accepting his plea, the validity

of the plea, and the legality of his sentence. See N.T., 1/5/15, at 8. Based

upon the foregoing, we conclude that Roundtree entered into his negotiated

plea knowingly, intelligently, and voluntarily, and our review of the record

reveals no way in which Roundtree was misled or misinformed.               See

Pollard, supra; see also id. at 524 (stating that “[t]he desire of an

accused to benefit from a plea bargain is a strong indicator of the

voluntariness of his plea.”). Accordingly, Roundtree is not entitled to relief

on these claims.

      Similarly, in his third and fourth claims, Roundtree argues that his

PCRA counsel was ineffective for failing to challenge trial counsel’s




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effectiveness in advising Roundtree to enter a guilty plea. 1         Brief for

Appellant at 20-22. Because we have concluded that Roundtree’s challenges

to the effectiveness of trial counsel are without merit, Roundtree is not

entitled to relief on the basis that PCRA counsel was ineffective for failing to

raise such a claim. See Commonwealth v. Williams, 900 A.2d 906, 910

(Pa. Super. 2006) (stating that “[i]f trial counsel was not ineffective …, then

no subsequent counsel could be held ineffective for failing to raise that

claim.”); see also Commonwealth v. Rivera, 816 A.2d 282, 292 (Pa.

Super. 2003) (stating that “post-trial counsel will not be deemed ineffective

for failing to raise and preserve meritless challenges to the effectiveness of

trial counsel.” (citation and brackets omitted)).

       We will consider Roundtree’s fifth, sixth, and seventh claims together.

In his fifth claim, Roundtree argues that trial counsel was ineffective for

failing “to suppress the illegal search and seizure.” Brief for Appellant at 12.

Roundtree claims that trial counsel failed to present an argument that the

traffic stop and subsequent search were unsupported by reasonable

suspicion. Id. at 12-14. In his sixth claim, Roundtree contends that “the

PCRA court abused its discretion by finding no fault in trial counsel’s

effectiveness during the suppression hearing ….” Id. at 24; see also id. at

____________________________________________


1 Roundtree preserved his challenge to PCRA counsel’s effectiveness for our
review because he raised the claim in response to the PCRA court’s Rule 907
Notice. See Commonwealth v. Ford, 44 A.3d 1190, 1198 (Pa. Super.
2012).



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J-S72021-17



24-26. In his seventh claim, Roundtree asserts that the PCRA court abused

its discretion in upholding his “illegal” sentence, because the evidence

supporting his conviction was the result of an illegal stop. Id. at 26-27.

       Contrary to Roundtree’s assertions, trial counsel did, in fact, challenge

the legality of the traffic stop, detention, and subsequent search in a Motion

to Suppress physical evidence, which the trial court denied. Accordingly, we

cannot conclude that trial counsel was ineffective on this basis.            See

Commonwealth v. Eichinger, 108 A.3d 821, 834 (Pa. 2014) (concluding

that trial counsel was not ineffective for failing to raise a claim that

appellant’s statements to the police were unlawfully obtained, where trial

counsel did, in fact, raise such a claim); see also Commonwealth v.

Busanet, 54 A.3d 35, 61 (Pa. 2012) (concluding that trial counsel could not

be deemed ineffective for failing to object to a specific line of questioning

where counsel did, in fact, object).2




____________________________________________


2 Moreover, to the extent that Roundtree attempts to pursue his underlying
claim that the recovered evidence should have been suppressed, we note
that Roundtree waived his suppression challenge by entering a guilty plea.
See Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014)
(stating that “upon entry of a guilty plea, a defendant waives all claims and
defenses other than those sounding in the jurisdiction of the court, the
validity of the plea, and what has been termed the ‘legality’ of the sentence
imposed”); see also N.T., 1/5/15, at 8 (wherein, during his oral plea
colloquy, Roundtree acknowledged his understanding that in pleading guilty,
he waived all claims except for the jurisdiction of the court accepting his
plea, the validity of the plea, and the legality of his sentence).



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      Similarly, in his eighth claim, Roundtree argues that PCRA counsel was

ineffective for failing to challenge trial counsel’s effectiveness in failing to

raise a suppression claim. Brief for Appellant at 18-19. Because we have

concluded that Roundtree’s challenges to the effectiveness of trial counsel

regarding the suppression claim are without merit, Roundtree is not entitled

to relief on the basis that PCRA counsel was ineffective for failing to raise

such claims. See Williams, supra; see also Rivera, supra.

      In his ninth claim, Roundtree asserts that trial counsel was ineffective

for failing to obtain dashboard camera footage of the traffic stop in support

of his claim that the stop was illegal.          Brief for Appellant at 17-18.

      Contrary to Roundtree’s assertions, we note that the relevant

dashboard camera footage was available for the suppression court’s review

at the suppression hearing.      See Trial Court Opinion, 11/26/14, at 3

(wherein the trial court noted that Trooper Gerken can be heard on the

dashboard camera); see also Turner/Finley Letter, 10/31/16, at 2

(wherein PCRA counsel indicated that he had reviewed, inter alia, “the DVD

containing the audio and video of the traffic stop that led eventually to the

petitioner’s arrest and charges”).     Thus, we cannot conclude that trial

counsel was ineffective on this basis.        See Eichinger, supra; see also

Busanet, supra.

      In his tenth claim, Roundtree again argues that trial counsel “made no

attempts to seek discovery of the dash[board camera] footage in question,”

and asserts that PCRA counsel failed to raise this claim on his behalf. Brief

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for Appellant at 23-24.          Because we have concluded that Roundtree’s

challenge to the effectiveness of trial counsel regarding discovery are

without merit, Roundtree is not entitled to relief on the basis that PCRA

counsel failed to raise such a claim.              See Williams, supra; see also

Rivera, supra. Additionally, to the extent that Roundtree claims that PCRA

counsel did not review the dashboard camera footage, we note that, in his

Turner/Finley Letter, PCRA counsel specifically stated that he reviewed the

relevant footage. See Turner/Finley Letter, 10/31/16, at 2.

       In his eleventh claim, Roundtree argues that the PCRA court abused its

discretion in dismissing his Petition without ordering the requested notes of

testimony and discovery.3         Brief for Appellant at 27-28.   Roundtree avers

that these materials are necessary to establish his claims. Id. at 17, 23, 28.

Roundtree seeks dashboard camera footage obtained during the traffic stop,

which he believes will establish that the stop was illegal and that trial

counsel was therefore ineffective for failing to obtain such evidence. Id.

       Regarding Roundtree’s requests for transcripts, we observe that both

of his pro se requests were filed more than a month after the PCRA court

had dismissed Roundtree’s Petition, and Roundtree had filed a Notice of

Appeal.     Therefore, even if Roundtree had obtained the transcripts he

____________________________________________


3On March 1, 2017, Roundtree filed a pro se Motion for Notes of Testimony
and Discovery. Subsequently, on March 17, 2017, Roundtree filed a pro se
Request for Transcripts. The PCRA court denied both the Motion and the
Request in an Order dated March 29, 2017.



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sought, the PCRA court no longer had jurisdiction to consider new or

amended claims at that time. See generally Commonwealth v. Crider,

735 A.2d 730, 733 (Pa. Super. 1999) (stating that “a court is not required to

comply with a defendant’s request for transcripts in order to pursue relief in

a PCRA proceeding where no such action is pending.”).

       Regarding Roundtree’s request for discovery of dashboard camera

footage, we observe that, pursuant to Pa.R.Crim.P. 902(E)(1), “no discovery

shall be permitted at any stage of [PCRA] proceedings, except upon leave of

court after a showing of exceptional circumstances.” Because the PCRA and

the criminal rules do not define the term “exceptional circumstances,” “it is

for the trial court, in its discretion, to determine whether a case is

exceptional and discovery is therefore warranted.      We will not disturb a

court’s determination regarding the existence of exceptional circumstances

unless the court abused its discretion.” Commonwealth v. Frey, 41 A.3d

605, 611 (Pa. Super. 2012). Here, the trial court determined that Roundtree

failed to establish “exceptional circumstances” warranting discovery, see

Trial Court Order, 3/29/17, at 1 n.1, and we discern no abuse of discretion in

this determination. Based upon the foregoing, Roundtree is not entitled to

relief on these claims.4


____________________________________________


4 Moreover, we observe that Roundtree requested these materials in support
of his underlying suppression claim, which he waived by entering a guilty
plea. See Eisenberg, 98 A.3d at 1275.



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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/18




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