J-S19019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 MARVIN BRUNSON,                          :
                                          :
                    Appellant.            :   No. 1611 EDA 2018


                  Appeal from the PCRA Order, April 26, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0000153-2016,
                           CP-51-CR-0000155-2016.


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED JUNE 18, 2019

      Marvin Brunson appeals pro se from the order denying his first petition

filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

      The PCRA court summarized the pertinent facts underlying Brunson’s

convictions as follows:

             The charges arose out of two separate incidents that
          occurred on October 9, 2015 and October 17, 2015. During
          the first incident, [Brunson], armed with a handgun, entered
          the H & P Deli located on East Allegheny Avenue in
          Philadelphia, pointed his gun at a worker and demanded
          money. He left after being given $ 400.00 during the first
          robbery. The second incident occurred at the same location.
          This time, [Brunson] had a jacket or sweatshirt wrapped
          around what appeared to be a handgun. He took $ 200.00
          during the second robbery. Both incidents were recorded
          on a security camera and a comparison of the two


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S19019-19


          recordings showed that they both appeared to have been
          committed by the same person.

              Investigation by police led to a person who witnessed the
          first robbery and that person identified [Brunson], who
          resided in the neighborhood in which the store was situated,
          as the person who robbed the Deli on October 9, 2016. In
          addition, police executed a search warrant at [Brunson’s]
          residence and recovered clothing that matched the clothing
          the robber wore during both robberies.

PCRA Court Opinion, 11/15/18, at 2 (citations omitted).

       Police arrested Brunson, and charged him with robbery and a firearm

violation at two separate dockets.1 On December 12, 2016, Brunson entered

a negotiated guilty plea at each docket. In return, the Commonwealth agreed

to recommend an aggregate sentence of six to twenty years of imprisonment.

       The PCRA court described the circumstances involving the entry of the

guilty pleas as follows:

             After [Brunson] completed the guilty plea colloquy form,
          and prior to accepting his plea, this Court conducted an oral
          colloquy of [Brunson] during which [he] acknowledged,
          inter alia, that he was not promised anything and no one
          threated him to enter his plea.          This Court further
          ascertained that [Brunson] was satisfied with plea counsel’s
          representation     and    that    he    agreed    with   the
          Commonwealth’s recitation of the facts.

             Following the colloquy, [Brunson] formally entered his
          plea, which this Court accepted. Immediately thereafter,


____________________________________________


1 Brunson’s appeal was filed on May 31, 2018. Thus, our Supreme Court’s
June 1, 2018 decision in Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018), which prospectively requires a separate notice of appeal for each
docket number, does not apply.


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         this Court imposed the negotiated sentence             upon
         [Brunson], who prior to being sentenced stated:

            [BRUNSON]: I just want to apologize. I mean, I don’t
            see the victim here. I just want to apologize, you
            know, to him, to the family, to the Court. You know
            what I’m saying? It was just something stupid that I
            did - - I chose to do. There’s no excuse for it, you
            know. I just hope my apology is accepted.

         (N.T. 12/12/16, [at] 15). [Brunson] did not file a post-
         sentence motion or a notice of appeal after this Court
         imposed sentence upon him.

PCRA Court Opinion, 11/15/18, at 2-3 (citations omitted).

      On October 10, 2017, Brunson filed a pro se PCRA. The PCRA court

provided the following facts and procedural history regarding this petition:

            In his petition, [Brunson] asserted that he did not commit
         either robbery, that he was not identified at a lineup by two
         individuals, one of whom selected someone else, and a third
         person picked him after someone said [Brunson] was the
         third person in the lineup. He also asserted that he was
         entitled to PCRA relief because he never was inside the Deli,
         his son committed both crimes, and his daughter’s mother
         was aware that [Brunson’s] son committed the crime[s] but
         did not mention that because she though [Brunson] would
         be acquitted and she did not want to get [Brunson’s] son in
         trouble. Finally, he claimed that his plea to the weapons
         charge did not have a factual basis because a video shows
         that he did not have a gun.

             After [Brunson] filed his petition, counsel was appointed
         to represent him and on March 29, 2018, counsel filed a “no-
         merit” letter in accordance with the requirements set forth
         in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
         and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
         1988), as well as a motion to withdraw as counsel. After
         carefully reviewing the record and counsel’s no-merit letter
         this Court determined that the issues [Brunson] set forth in
         his pro se PCRA petition did not entitle him to relief after
         which this Court sent [Brunson] a Pa.R.Crim.P. 907 notice
         of intention to dismiss on April 2, 2018. On April 13, 2018,


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        [Brunson] filed a Motion requesting an extension of time to
        file a response to the 907 notice. On April 26, 2018, this
        Court issued an order dismissing [Brunson’s] PCRA petition
        without a hearing and granted PCRA counsel’s motion to
        withdraw after the Court again assiduously reviewed the
        entire record.

            On May 14, 201[8] [Brunson] filed a Motion asking this
        Court to reconsider its order dismissing his PCRA petition.
        In that Motion [Brunson] alleged that he advised plea
        counsel that he did not commit the crime and was innocent,
        that counsel told him that his defense would fail and thus he
        had no choice but to plead guilty, that counsel told him to
        lie and say that he was entering his plea willingly of his own
        volition. He further added that if this Court had granted his
        Motion seeking an extension of time to respond to the 907
        notice he would have filed an amended petition asserting
        that he had a viable defense to the charges, he had been
        coerced to plead guilty, and that he did not enter his plea
        voluntarily or intelligently. Finally, he claimed that this
        Court erred by dismissing his PCRA petition without a
        hearing and in violation of Pa.R.Crim.P. 907. On May 23,
        2018, although this Court had not yet ruled on his Motion
        for Reconsideration, [Brunson] timely filed pro se a notice
        of appeal from the order denying him PCRA relief.

PCRA Opinion, 11/15/18, at 3-4 (citation omitted).     Both Brunson and the

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

     Brunson raises the following issues:

        1. Is Brunson entitled to a remand to withdraw his guilty
           plea since the PCRA court erred when it adopted PCRA
           counsel’s no-merit letter under the Turner/Finley
           requirement holding that Brunson’s PCRA issues were
           without merit and granting PCRA counsel’s petition to
           withdraw, when arguably meritorious issues were
           present on the face of the record, thus, counsel’s review
           was deficient.

        2. Is Brunson entitled to a remand for the appointment of
           new counsel to amend his first PCRA petition since the
           PCRA court erred when it denied Brunson the assistance


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              of counsel and the opportunity to amend his petition,
              when the court allowed appointed PCRA counsel to
              withdraw without amending the PCRA petition and
              without an adequate independent review of the record.

          3. Did PCRA counsel render ineffective assistance of counsel
             for failing to raise plea counsel’s ineffectiveness for failing
             to file a motion to withdraw his guilty plea or to file a
             notice of appeal as directed by Brunson.

          4. Is Brunson entitled to a remand to withdraw his guilty
             plea since the PCRA court erred when it dismissed the
             request for PCRA relief without an evidentiary hearing.

See Brunson’s Brief at 4.2

       This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.          Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

       The PCRA court has discretion to dismiss a petition without a hearing

when the court is satisfied that there are no genuine issues concerning any

material fact, the defendant is not entitled to post-conviction collateral relief,

and no legitimate purpose would be served by further proceedings. To obtain

a reversal of a PCRA court’s decision to dismiss a petition without a hearing,
____________________________________________


2 In his fifth issue, Brunson stated that because he “is unsure of the precise
reasoning” for the PCRA court’s “dismissal of PCRA relief,” he “reserves the
right to argue any additional issues raised by the PCRA court’s opinion in this
matter.” Brunson’s Brief at 4. Such a request is not permitted by the
appellate rules governing the contents of an appellant’s brief. Nevertheless,
Brunson has filed nothing further with this Court.

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an appellant must show that he raised a genuine issue of material fact which,

if resolved in his favor, would have entitled him to relief, or that the court

otherwise abused its discretion in denying a hearing.          Commonwealth v.

Blakeney, 108 A.3d 739, 750 (Pa. 2014).

       In his first three issues, Brunson claims the PCRA court erred by

agreeing with his PCRA counsel’s assessment that the issues raised in his pro

se PCRA petition merit no relief. According to Brunson, because meritorious

issues appeared on the face of the record, PCRA counsel should have amended

his petition to include a claim that plea counsel was ineffective for failing to

file a motion to withdraw his plea and/or an appeal to this Court once Brunson

requested him to do so. In addition, Brunson asserts that the PCRA court did

not adequately conduct an independent review of the record before dismissing

his PCRA petition. Brunson’s claims are refuted by our review of the record.

       Initially,   we   note   that   Brunson’s   challenge   to   PCRA   counsel’s

effectiveness is not properly preserved. See Commonwealth v. Smith, 121

A.3d 1049, 1055 (Pa. Super. 2015) (explaining claim of PCRA counsel’s

ineffectiveness must be raised in response to the PCRA court’s Rule 907 notice

in order to be preserved for appeal); Commonwealth v. Henkel, 90 A.3d

16, 20 (Pa. Super. 2014) (stating claims of ineffective assistance of PCRA

counsel may not be raised for the first time on appeal).3

____________________________________________


3To the extent Brunson asserts that the PCRA court erred in not granting his
motion for an extension of time to file a response to the court’s Rule 907, we



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       Essentially, in his first three issues, Brunson argues that his decision to

enter a guilty plea resulted from the ineffective assistance of counsel.       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. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                 “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.

       This Court has summarized the following regarding claims that the entry

of a guilty plea was the result of ineffective assistance of counsel:

____________________________________________


agree with the PCRA court that Brunson was not prejudiced. The PCRA court
reviewed the issues raised in Brunson’s motion for reconsideration, see infra,
“and concluded that none of those issues [had] merit because the record
amply demonstrate[d] that [Brunson’s] plea was entered in full accordance
with the law.” PCRA Court Opinion, 11/15/18, at 13. According to the PCRA
court, in order for Brunson “to obtain relief, [the PCRA court] had to determine
that [Brunson] lied during the guilty plea hearing, which the law precluded
[the PCRA court] from doing.” Id.


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            A criminal defendant has the right to effective counsel
         during a plea process as well as during trial. A defendant is
         permitted to withdraw his guilty plea under the PCRA if
         ineffective assistance caused the defendant to enter an
         involuntary plea[.]

            We conduct our review of such a claim in accordance with
         the three-pronged ineffectiveness test under section
         9543(a)(2)(ii) of the PCRA. 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. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)

(citations omitted).

      Brunson has failed to meet this burden. As this Court has 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).


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      Here, our review of the record reveals that Brunson’s answers to the

court’s questions during the oral plea colloquy, as well as those provided in

the written colloquy, contradict Brunson’s claims surrounding the entry of his

guilty plea. As noted by the PCRA court:

         Instantly, [Brunson] fell woefully short of meeting his
         burden of proof. First, Brunson reviewed with [plea] counsel
         and then signed a guilty plea colloquy form. By signing that
         form, he averred that he discussed with counsel and
         understood, inter alia, the definitions of the crimes to which
         he was pleading guilty as well as the maximum combined
         sentence he could possibly receive upon entering his plea to
         the charges enumerated above. It also manifested that
         [Brunson] voluntarily waived the rights explained and
         described in the colloquy form. In addition, this Court
         supplemented the information contained in the written
         colloquy form by conducting an oral colloquy of [Brunson]
         during which this Court ascertained that [Brunson]
         understood the nature of the proceeding and that he was
         entering his plea, knowingly, intelligently, and voluntarily.
         The combined effects of the signing of the written colloquy
         form together with the supplemental oral colloquy clearly
         established that [Brunson] entered his guilty plea
         knowingly, intelligently, and voluntarily and that counsel did
         not coerce [Brunson] to plead guilty. Thus, the plea was
         entered in accordance with the law.

            The claim was also dismissed because to obtain relief in
         the form of an order vacating his sentence and guilty plea
         and granting him a new trial based on his claim of innocence
         and his assertion that he was coerced to lie to the court and
         to enter his plea, [Brunson] necessarily had to disavow that
         to which he averred by signing the guilty plea colloquy from
         and in his testimony before this Court As noted above,
         [Brunson] stated that no one promised, threatened, or
         forced him to enter the plea and that he did so wholly of his
         own volition. [Brunson] also stated that he was satisfied
         with counsel’s advice and that he agreed that the facts read
         into the record by the prosecutor were true and correct and
         that he was guilty of the crimes. Finally, [Brunson] gave
         what appeared to be a heartfelt apology to the victims prior


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          to receiving the sentence he was promised in exchange for
          his guilty plea.

PCRA Court Opinion, 11/15/18, at 10-11 (citations omitted).4             We find

Brunson’s first three issues warrant no relief.

       In his fourth issue, Brunson asserts that he was entitled to an

evidentiary hearing regarding his plea counsel’s ineffectiveness for failure to

file a motion to withdraw his guilty plea and/or a direct appeal. Initially, after

reviewing Brunson’s pro se PCRA petition, we agree with the Commonwealth

that Brunson inappropriately raised this claim for the first time on appeal.

Henkel, supra.

       Nevertheless, before an evidentiary hearing will be granted, a PCRA

petitioner “must set forth an offer to prove at an appropriate hearing sufficient

facts upon which a reviewing court can conclude that trial counsel may have,

in fact, been ineffective.” Commonwealth v. Begley, 780 A.2d 605, 635

(Pa. 2001) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.

1981). Here, Brunson has made no such offer of proof. Beyond his bare

assertion that he sent a letter to counsel, he has proffered no evidence to

support his claim that he asked counsel to file a motion to withdraw his guilty

plea and/or a direct appeal. In addition, he has failed to submit a signed
____________________________________________


4  As enumerated by the PCRA court supra, Brunson raises a number of
allegations regarding the sufficiency of the evidence supporting his convictions
and potential defenses he could have raised had he gone to trial. However,
by entering his guilty plea, Brunson waived the right to pursue any of these
claims as an avenue for relief. See generally Commonwealth v. Rounsley,
717 A.2d 537, 538 (Pa. Super. 1998).


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certification from his plea counsel, who he claimed was ineffective.       “A

supporting document from counsel stating his reasons for the course chosen

is generally necessary to establish potential entitlement to a hearing.”

Commonwealth v. Cousar, 154 A.3d 287, 299-300 (Pa. 2017). Asserting

bald accusations as to counsel’s ineffectiveness “without some proffer as to

what counsel would say in response to the allegations” is insufficient to

warrant relief.   Id. at 299.   Here, there is no evidence that Brunson ever

contacted plea counsel regarding the ineffectiveness allegations, and no

witness certification was provided in the PCRA pleadings. As such, Brunson

has failed to take the necessary procedural steps to establish the need for an

evidentiary hearing.

      Given these circumstances, the PCRA court did not err in dismissing

Brunson’s petition without first holding an evidentiary hearing.         See

Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that, in

the absence of a sufficient proffer, a petitioner’s bare assertions would

inappropriately convert an evidentiary hearing into a “fishing expedition” for

possible exculpatory evidence). Thus, Brunson’s fourth issue fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/18/19

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