J-S02004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

PAUL ADAMS, JR.,

                         Appellant                    No. 794 EDA 2015


              Appeal from the PCRA Order February 19, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0000820-2013


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 23, 2016

      Appellant, Paul Adams, Jr., appeals from the order denying his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

            The facts of this case are entirely tragic. On November 1,
      2012 [Appellant], Paul Adams, was 38 years old and living in his
      home in Wallingford, Delaware County. [Appellant] is a 1992
      graduate of Strath Haven High School and was 20 credits short
      of a college degree, having previously studied Accounting and
      French at West Chester University on a full tuition academic
      scholarship. [Appellant] served in the U.S. Army Reserves from
      1991 to 1999. At the time of the incident, [Appellant] had
      primary custody of his 8 year old daughter and a zero prior
      record score.    Also living in [Appellant’s] home and in his
      guardianship was his nephew, the victim, Tyreece Charlow.
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            On November 1, 2012 [Appellant] picked up his nephew,
     six year old Tyreece Char[l]ow at the Nether Providence
     Elementary School at 3:30 pm. [Appellant] and his nephew
     walked to their residence at 211 Walnut Road, Nether
     Providence, Pennsylvania where they ate dinner. After dinner
     they drove to Chester to pick up their martial arts instructor.
     They then traveled to West Chester for a 7:00 pm Karate class.
     Karate practice ended at 9:15 pm. After practice they returned
     to Chester and then to their residence by approximately 10:00 to
     10:15 pm. After arriving home, Tyreece went to the second
     floor of their residence, brushed his teeth, took a shower, put on
     his pajamas then returned downstairs to say his prayers.
     [Appellant] and Tyreece reviewed their plans for the next day,
     including picking out clothing to wear. According to [Appellant],
     Tyreece would not listen nor follow directions.        [Appellant]
     attempted to reason with Tyreece. [Appellant] claims Tyreece
     shut down and would not respond. [Appellant] then set a timer
     for three minutes.       [Appellant] told Tyreece he had three
     minutes to get things done. When [Appellant] felt Tyreece was
     not complying, [Appellant] retrieved a belt and struck Tyreece
     several times. After several lashings, [Appellant] retrieved a
     wider belt and reset the timer. [Appellant] began “lashing”
     Tyreece with the larger belt. [Appellant] held Tyreece[’]s hands
     with his own hands while striking him with the belt. When
     [Appellant] released Tyreece[’]s hands, Tyreece fell limp to the
     ground. This discipline lasted approximately forty five minutes.
     Tyreece was crying the entire time during the discipline.
     [Appellant] then cleaned Tyreece’s wounds with peroxide.
     [Appellant] walked Tyreece to his bedroom where he put Tyreece
     to bed naked. Approximately fifteen minutes later [Appellant]
     checked in on Tyreece. Tyreece did not move. [Appellant]
     believed Tyreece was asleep. [Appellant] again checked on
     Tyreece several hours later. [Appellant] observed Tyreece[’]s
     stomach moving but Tyreece was not responsive. [Appellant]
     moved Tyreece from his back to his side.             At this time
     [Appellant] noticed a brown liquid coming from Tyreece[’]s
     mouth. [Appellant] then transported Tyreece to Crozer Chester
     Medical Center.

           At 5:19 a.m[.] on November 2, 2012 Tyreece was
     pronounced dead. The Medical Examiner performed an autopsy
     and determined that the cause of Tyreece’s death was multiple
     blunt force injuries and the manner of death was a homicide.
     The postmortem report detailed numerous injuries to Tyreece’s

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       head, neck, chest, abdomen, and back, numerous abrasions and
       bruises to his extremities, and damage to several of Tyreece’s
       internal organs.    There was hemorrhaging of his pancreas.
       There was hemorrhaging of the small and large bowel. There
       was hemorrhaging to the abdominal wall.            There was
       hemorrhaging around the bladder. There was hemorrhaging
       around both testicles. Both of Tyreece’s testicles had been
       crushed and there was hemorrhaging present within his scrotum.

             The only regret [Appellant] expressed about Tyreece’s
       beating was that he drew his nephew’s blood.

              [Appellant] was arrested and charged with numerous
       offenses[,] the most serious of which was Murder of the First
       Degree [18 Pa.C.S. § 2502(a)]. On June 27, 2013[,] [Appellant]
       entered a negotiated plea of Nolo Contendere to Murder of the
       Third Degree, Possession of Instrument of Crime, Endangering
       Welfare of Children and Unlawful Restraint of a Minor.      In
       accordance with the negotiated plea agreement, [Appellant] was
       sentenced to an aggregate of 30 to 60 years confinement. No
       objections to this sentence or the sentencing proceedings were
       placed on the record at sentencing and no direct appeal was
       filed.

              On June 27, 2014[,] [Appellant] filed a timely pro se PCRA
       petition. On July 7, 2014[,] PCRA counsel was appointed by [the
       PCRA court]. After an exhaustive review of the record, on
       January 20, 2015[,] PCRA counsel filed a Finley[1] “No Merit”
       letter. On January 23, 2015 [the PCRA court] served [Appellant]
       with a Twenty Day Notice of Intent [to] Dismiss PCRA Petition
       without a hearing. Thereafter [Appellant’s] PCRA was dismissed
       on February 19, 2015 and this timely appeal followed.

Trial Court Opinion, 5/1/15, at 1-4 (internal footnotes omitted).

       Appellant presents the following issues for our review:

       I.    Whether the PCRA court committed an error of law or
       abused its discretion when it failed to conduct an evidentiary
       hearing to develop the record on counsel’s ineffectiveness as
____________________________________________


1
    Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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      counsel failed to subject the prosecution’s case to meaningful
      adversarial testing by filing a pretrial motion to suppress
      statements made by Appellant, failures to investigate and
      present a diminished capacity defense, and was PCRA counsel
      ineffective for failing to raise this claim?

      II.    Whether the circumstances of this case where Appellant
      plead nolo contendere, renders this plea constitutionally invalid
      in light of deficient performances by counsel’s as such caused an
      unlawful inducement rendering this plea involuntary and not
      intelligently knowing?

Appellant’s Brief at 4 (verbatim) (full capitalization omitted).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).       The PCRA court’s findings will not be

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

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      In his first issue, Appellant claims that the PCRA court erred by failing

to conduct an evidentiary hearing on trial counsel’s ineffectiveness.

Appellant’s Brief at 8. Appellant contends that trial counsel was ineffective

for not seeking suppression of Appellant’s statements and for declining to

investigate and present a diminished capacity defense.         Id.   Specifically,

Appellant contends that the police secured a statement from him during a

custodial interrogation without counsel’s presence after Appellant invoked


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his right to counsel, and therefore, counsel should have sought to suppress

this statement.   Id. at 9.   Appellant also contends that he was diagnosed

with “cranium stynosis” and that counsel was ineffective for failing to

investigate or present expert testimony that this diagnosis would establish

that Appellant lacked the ability to form a specific intent to kill. Id. at 10.

Additionally, Appellant contends that PCRA counsel was ineffective for failing

to raise these claims. Id. at 8. Appellant asserts that the proper remedy is

to remand for an evidentiary hearing. Id. at 11.

         To prevail in a claim of ineffective assistance of counsel, a
      petitioner must overcome the presumption that counsel is
      effective by establishing all of the following three elements, as
      set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975–76 (1987):        (1) the underlying legal claim has
      arguable merit; (2) counsel had no reasonable basis for his or
      her action or inaction; and (3) the petitioner suffered prejudice
      because of counsel's ineffectiveness.

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).                “In order to

meet the prejudice prong of the ineffectiveness standard, a defendant must

show that there is a ‘reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

A claim of ineffective assistance of counsel will fail if the petitioner does not

meet any of the three prongs.       Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004).      “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).




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       Additionally, Pa.R.Crim.P. 907, addressing the need for post-conviction

hearings, provides, in relevant part, as follows:

       (1)    The judge shall promptly review the petition, any answer
              by the attorney for the Commonwealth, and other matters
              of record relating to the defendant’s claim(s). If the judge
              is satisfied from this review that there are no genuine
              issues concerning any material fact and that the defendant
              is not entitled to post-conviction collateral relief, and no
              purpose would be served by any further proceedings, the
              judge shall give notice to the parties of the intention to
              dismiss the petition and shall state in the notice the
              reasons for the dismissal. The defendant may respond to
              the proposed dismissal within 20 days of the date of the
              notice.    The judge thereafter shall order the petition
              dismissed, grant leave to file an amended petition, or
              direct that the proceedings continue.

       (2)    A petition for post-conviction collateral relief may be
              granted without a hearing when the petition and answer
              show that there is no genuine issue concerning any
              material fact and that the defendant is entitled to relief as
              a matter of law.

Pa.R.Crim.P. 907(1), (2).        Furthermore, “after a defendant has entered a

plea of guilty,[2] the only cognizable issues in a post[-]conviction proceeding

are the validity of the plea of guilty and the legality of the sentence.”

Commonwealth v. Rounsley, 717 A.2d 537, 538 (Pa. Super. 1998)

(citation omitted).



____________________________________________


2
  “It is well established that a plea of nolo contendere is treated as a guilty
plea in terms of its effect upon a given case.” Commonwealth v. V.G., 9
A.3d 222, 226 (Pa. Super. 2010).




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       As noted, Appellant argues in his first issue that the PCRA court erred

in failing to hold a hearing to develop the record on trial counsel’s

ineffectiveness for: (1) failing to file a pretrial suppression motion; and (2)

failing to investigate and present a diminished capacity defense. Appellant’s

Brief at 8-11.      These claims do not implicate the legality of Appellant’s

sentence or the validity of his plea and are thus not cognizable in this post-

conviction proceeding.3 Rounsley, 717 A.2d at 538. Accordingly, the PCRA

court did not err or abuse its discretion in declining to hold an evidentiary

hearing to address these meritless claims. Pa.R.Crim.P. 907(1), (2).

       Additionally, in a layered ineffectiveness claim, appellate counsel is not

ineffective for failing to raise an ineffective assistance of counsel issue where

the underlying claim lacks merit. As this Court has explained:

              To prevail on a claim of appellate counsel ineffectiveness
       for failure to raise an allegation of trial counsel ineffectiveness, a
       PCRA petitioner must present a ‘layered’ claim, i.e., he or she
       must present argument as to each of the three prongs of the
       Pierce test for each layer of allegedly ineffective representation.
       To establish the arguable merit prong of a claim of appellate
       counsel ineffectiveness for failure to raise a claim of trial counsel
       ineffectiveness, the petitioner must prove that trial counsel was
       ineffective under the three-prong Pierce standard.              If the
       petitioner cannot prove the underlying claim of trial counsel
       ineffectiveness, then petitioner’s derivative claim of appellate
       counsel ineffectiveness of necessity must fail, and it is not
       necessary for the court to address the other two prongs of the
       Pierce test as applied to appellate counsel.
____________________________________________


3
  To the extent that Appellant asserts that these failings resulted in Appellant
entering an involuntary plea, we address that contention in the context of
his second issue.



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Paddy, 15 A.3d at 443 (internal citations omitted).

      Because Appellant has failed to establish an underlying claim of trial

counsel ineffectiveness, Appellant’s claim of appellate counsel ineffectiveness

also lacks merit. Paddy, 15 A.3d at 443. Accordingly, Appellant is entitled

to no relief on his first issue.

      In his second claim, Appellant argues that his plea was entered

involuntarily, unknowingly, and unintelligently.      Appellant’s Brief at 11.

Appellant asserts that trial counsel’s failure to put forth any defense on

Appellant’s behalf resulted in Appellant unwillingly entering the plea instead

of going to trial. Id. at 12.

      Our law is clear that, to be valid, a guilty plea must be
      knowingly, voluntarily and intelligently entered. There is no
      absolute right to withdraw a guilty plea, and the decision as to
      whether to allow a defendant to do so is a matter within the
      sound discretion of the trial court. To withdraw a plea after
      sentencing, a defendant must make a showing of prejudice
      amounting to “manifest injustice.” “A plea rises to the level of
      manifest injustice when it was entered into involuntarily,
      unknowingly, or unintelligently.” A defendant’s disappointment
      in the sentence imposed does not constitute “manifest injustice.”

Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003).

      “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.”     Commonwealth v. Hickman, 799 A.2d

136, 141 (Pa. Super. 2002).        “The law does not require that appellant be

pleased with the outcome of his decision to enter a plea of guilty[.]”

Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa. Super. 2006) (citation


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omitted).   Instead, “the defendant must show that counsel’s deficient

stewardship resulted in a manifest injustice, for example, by facilitating

entry of an unknowing, involuntary, or unintelligent plea.” Commonwealth

v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005). “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.

Lynch, 820 A.2d 728, 733 (Pa. Super. 2003) (citation omitted). Therefore,

“[a]llegations of ineffectiveness in connection with the entry of a guilty plea

will serve as a basis for relief only if the ineffectiveness caused appellant to

enter an involuntary or unknowing plea.”      Commonwealth v. Boyd, 835

A.2d 812, 815 (Pa. Super. 2003). “If the ineffective assistance of counsel

caused the defendant to enter an involuntary or unknowing plea, the PCRA

will afford the defendant relief.” Lynch, 820 A.2d at 732.

      When a defendant enters a plea to a murder charge, in order to ensure

a voluntary, knowing, and intelligent plea, trial courts are required to ask the

following questions in the guilty plea colloquy:

      1) Does the defendant understand the nature of the charges to
      which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right to
      a trial by jury?

      4) Does the defendant understand that he or she is presumed
      innocent until found guilty?

      5) Is the defendant aware of the permissible ranges of sentences
      and/or fines for the offenses charged?

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      6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

      7) Does the defendant understand that the Commonwealth has a
      right to have a jury decide the degree of guilt if defendant pleads
      guilty to murder generally?

Pa.R.Crim.P. 590(C); see also Pollard, 832 A.2d at 522–523.          “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.” Commonwealth v.

Rush, 909 A.2d 805, 808 (Pa. Super. 2006). “[W]here the record clearly

demonstrates that a guilty plea colloquy was conducted, during which it

became evident that the defendant understood the nature of the charges

against him, the voluntariness of the plea is established.” Id. at 808. “In

determining whether a guilty plea was entered knowingly and voluntarily, ...

a court ‘is free to consider the totality of the circumstances surrounding the

plea.’” Commonwealth v. Flanagan, 854 A.2d 489, 513 (Pa. 2004).

      Finally, we apply the following when addressing an appellate challenge

to the validity of a guilty plea:

            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


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      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. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).

      Here, the record belies Appellant’s assertion that his plea was entered

involuntarily.   First, Appellant executed a written plea agreement which

advised him of all criteria outlined under Pa.R.Crim.P. 590 and indicated that

Appellant entered the plea knowingly and voluntarily. Appellant completed

the lengthy written guilty plea colloquy by initialing every paragraph. Guilty

Plea Statement, 6/27/13, at 1-4.            Second, the trial court conducted a

lengthy   oral   guilty   plea   colloquy    with   Appellant   that   covered   the

requirements set forth in Pa.R.Crim.P. 590. N.T., 6/27/13, at 1-42. After

the oral colloquy, the trial court, satisfied that Appellant’s plea was being

entered voluntarily, knowingly and intelligently, accepted Appellant’s plea of

nolo contendere.     Id. at 34.     Specifically, the PCRA court provided the

following explanation in support of its conclusion that Appellant’s plea was

voluntarily, knowingly and intelligently entered:

             The record here plainly demonstrates that [Appellant]
      knowingly, intelligently, and voluntarily entered a plea of Nolo
      Contendere. The terms of the negotiated plea agreement were
      clearly stated to [Appellant].          The Court then informed
      [Appellant] of the legal consequences of entering a nolo
      contendere plea. [Appellant] expressed his understanding that a
      plea of nolo contendere has the same legal effect as a plea of
      guilty. [Appellant] indicated that he understood that he had the
      right to a jury trial, was presumed innocent and that the
      Commonwealth had the burden to prove guilt beyond a
      reasonable doubt. [Appellant] understood that he waived all of
      his pre-trial and trial rights including possible defenses by virtue

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     of the entry of the guilty plea. [Appellant] then indicated he
     understood each crime he was entering a plea to and counsel
     reviewed the elements of each crime. [Appellant] acknowledged
     he understood that he was facing a possible maximum aggregate
     sentence of 60 years in jail and a $95,000 fine. The District
     Attorney then offered the Affidavit of Probable Cause
     supplemented with a Police Report prepared by Nether
     Providence Police Sergeant Michael Montgomery, the Medical
     Examiner’s Postmortem Report of Tyreece Charlow, a Laboratory
     Report from the Pennsylvania State Police Bureau of Forensic
     Services, Number L13373-2, which is a report of a DNA analysis
     of several belts removed from [Appellant’s] residence. Also
     offered into evidence by the District Attorney were Medical
     Records from the Emergency Department at Crozer Chester
     Medical Center for patient, Tyreece Charlow, and the Program
     from the funeral services of Tyreece Charlow, showing many
     pictures of Tyreece’s short life. [Appellant] stipulated to the
     factual basis as presented by the Commonwealth for his plea.
     [Appellant] acknowledged that he had read and reviewed the
     Affidavit of Probable Cause and the Criminal Complaint and had
     discussed them with his attorney. [Appellant] then indicated
     that he had reviewed and understood the Guilty Plea Statement
     and signed and initialed the document. [Appellant] was then
     advised of his post sentence rights and indicated to the Court
     that he understood them. [Appellant] further acknowledged to
     the Court that he had reviewed [the] Guilty Plea Statement and
     Statement of Post Sentence Rights with his attorney and that he
     understood these documents and had answered them truthfully.
     [Appellant] also informed the court that he was satisfied with
     Counsel’s recommendations and representation.

           [Appellant] understood and responded affirmatively to
     each and every material inquiry posed from the [c]ourt and
     Counsel during the colloquy. The [c]ourt found [Appellant’s]
     plea to be [knowing], intelligent and voluntary. [Appellant]
     indicated that he understood all of the rights he was waiving,
     and that he clearly wished to enter the plea. There is nothing in
     the record to indicate that the plea was not voluntary.

                                  ***

           Additionally, [Appellant] received the benefit of the
     negotiated Plea.    [Appellant] was charged with first degree
     murder. His exposure on that charge was a life sentence without

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      the possibility of parole or a sentence of death. A first degree
      murder conviction was a real possibility had [Appellant]
      proceeded to trial. There appeared to be ample evidence related
      to torture of the child and the brutality of the child’s death.
      Although [Appellant’s] sentence is lengthy, he benefitted from
      entering into the negotiated plea. It would have been illogical
      and otherwise potentially detrimental to [Appellant] if he
      attempted to withdraw or modify his previously negotiated
      sentence. In fact, [Appellant] chose not to. He did not petition
      to withdraw his plea nor did he file a direct appeal. [Appellant]
      did not challenge his plea until the instant PCRA petition filed a
      year to the day after his conviction became final.

Trial Court Opinion, 5/1/15, at 8-11.

      We agree with the PCRA court’s conclusion. The record reflects that

Appellant knowingly and voluntarily entered his plea, and Appellant has

failed to establish otherwise.    Thus, the underlying claim lacks arguable

merit.   Accordingly, Appellant has failed to establish a claim of ineffective

assistance of counsel. Appellant is therefore entitled to no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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