J-S79036-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
STEVEN ESTREMERA,                         :
                                          :
                 Appellant                :     No. 1269 EDA 2014

            Appeal from the PCRA Order Entered March 28, 2014
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No(s): CP-51-CR-0012681-2010

BEFORE:     ALLEN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED APRIL 13, 2015

      Steven Estremera (Appellant) appeals from the order dismissing

without a hearing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.       We vacate the order and remand for

further proceedings consistent with this memorandum.

      Appellant entered negotiated guilty pleas to third-degree murder and

other crimes. The factual basis for the pleas was as follows:

      [Appellant] lived at 3471 Weikel Street in Philadelphia with his
      wife and children. On July 25, 2010, police discovered the body
      of [Appellant’s] mother-in-law in the basement of his home.
      When confronted by police, [Appellant] initially claimed that he
      didn’t know what happened to the decedent. He later told police
      that a friend of his had murdered the decedent. Eventually,
      [Appellant] gave a detailed confession to police, which was
      entered into evidence. [Appellant] told police that he had an
      argument with his mother-in-law because she had yelled at his
      children.   The argument grew in intensity, and [Appellant]
      eventually stabbed his mother-in-law in the neck with a pair of


*Retired Senior Judge assigned to the Superior Court.
J-S79036-14


      scissors, causing her to fall down the basement stairs.
      [Appellant] then disposed of the decedent’s purse to make it
      appear that the house was burglarized and that the burglar had
      killed the decedent.

           The medical examiner conducted an autopsy and
      determined that the decedent died from the stab wounds to her
      neck, shoulder, thumb and forearms as well as blunt force
      trauma.

PCRA Court Opinion, 5/6/2014, at 2 n.2 (citation omitted).     Appellant was

sentenced, in accordance with the terms of the plea agreement, to an

aggregate term of 25 to 50 years’ imprisonment.

      Appellant filed no post-sentence motion or direct appeal.     He timely

filed a PCRA petition on May 30, 2012. The docket reflects that counsel was

appointed and entered an appearance on January 10, 2013. However, the

appointment notice is not in the record certified to this Court, and Appellant

apparently was unaware of the appointment: on May 8, 2013, he filed a

motion to proceed pro se, in which he avers that no action yet had been

taken on his petition nor had counsel been appointed. Although Appellant

requested a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81

(Pa. 1998), it does not appear that one was conducted.1           Rather, on

December 16, 2013, appointed counsel filed a motion to withdraw and a no-




1
  There is a docket entry on November 15, 2013, for “Hearing Notice,” but
the notice is not in the record before this Court, and there is no indication
that any hearing occurred.



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J-S79036-14


merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc).

        On January 31, 2014, the PCRA court issued a notice of intent to

dismiss Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

Appellant filed a motion for extension of time, and the docket reflects that

the motion was granted. Appellant filed a second motion for an extension,

on which the PCRA court did not rule.2 The PCRA court dismissed Appellant’s

petition by order of March 28, 2014. On March 31, 2014, the clerk of courts

docketed Appellant’s response to the 907 notice, which is dated March 17,

2014.

        Appellant timely filed a notice of appeal. The PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal, and

none was filed.     The PCRA court did file an opinion pursuant to Pa.R.A.P.

1925(a).

        Appellant presents this Court with five questions on appeal:

              [1.] Whether the PCRA court erred as a matter of law
        and/or abused its discretion in denying and/or otherwise
        dismissing without a hearing Appellant’s claim that trial counsel
        was ineffective for failing to object/move to withdraw his guilty
        plea based upon miscommunication of the maximum possible
        sentence for third degree murder?

             [2.] Whether the PCRA court erred as a matter of law
        and/or abused its discretion in denying and/or otherwise

2
  A hearing transcript reflects that the PCRA court decided to give Appellant
the additional time, but did not “think it was necessary to reply” to his
motion. N.T., 3/28/2013, at 2.


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      dismissing without a hearing Appellant’s claim that trial counsel
      was ineffective for failing to object/move to withdraw his guilty
      plea based upon the absence of an illustrative elucidation of the
      term “malice”?

            [3.] Whether the PCRA court erred as a matter of law
      and/or abused its discretion in denying and/or otherwise
      dismissing without a hearing Appellant’s claim that trial counsel
      was ineffective for failing to object/move to withdraw his guilty
      plea based upon facts indicating a meritorious defense?

             [4.] Whether the PCRA court erred as a matter of law
      and/or abused its discretion in denying and/or otherwise
      dismissing without a hearing Appellant’s claim that trial counsel
      was ineffective for failing to advise him of grounds to suppress
      his alleged confession to police?

           [5.] Whether new counsel should be appointed to conduct
      an independent review of Appellant’s PCRA claims and to
      advance those claims on the merits?

Appellant’s Brief at 4 (unnecessary capitalization and PCRA court answers

omitted).

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

      Appellant’s first four claims allege the ineffectiveness of his plea

counsel.3   We consider his claims mindful of the fact that counsel is


3
  The Commonwealth argues that Appellant waived these claims by raising
them for the first time on appeal. Commonwealth’s Brief at 11. However,
Appellant correctly notes that the issues were presented to the PCRA court in


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J-S79036-14


presumed to be effective. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.

2010).    To overcome this presumption, Appellant bears the burden of

proving the following:   “(1) the underlying substantive claim has arguable

merit; (2) counsel whose effectiveness is being challenged did not have a

reasonable basis for his or her actions or failure to act; and (3) the petitioner

suffered prejudice as a result of counsel’s deficient performance.”          Id.

Appellant’s claim will be denied if he fails to meet any one of these three

prongs. Id.

      As Appellant’s claims of ineffective assistance largely relate to

counsel’s failure to move to withdraw Appellant’s guilty plea, the following

principles of law are applicable to the determination of arguable merit. “It is

well established that when a defendant seeks to withdraw a guilty plea after

sentencing, a showing of prejudice on the order of manifest injustice is

required before withdrawal is properly justified.”         Commonwealth v.

Warren, 84 A.3d 1092, 1096 (Pa. Super. 2014) (internal quotation marks

and citation omitted).

      [A] manifest injustice occurs when a plea is not tendered
      knowingly, intelligently, voluntarily, and understandingly. The
      Pennsylvania Rules of Criminal Procedure mandate pleas be
      taken in open court and require the court to conduct an on-the-
      record colloquy to ascertain whether a defendant is aware of his
      rights and the consequences of his plea. Under Rule 590, the

counsel’s Finley letter.   Appellant’s Reply Brief at 1.       Furthermore,
Appellant raised these identical issues in his response to the PCRA court’s
notice of intention to dismiss.    Accordingly, we are unpersuaded by the
Commonwealth’s waiver argument.


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       court should confirm, inter alia, that a defendant understands:
       (1) the nature of the charges to which he is pleading guilty; (2)
       the factual basis for the plea; (3) he is giving up his right to trial
       by jury; (4) and the presumption of innocence; (5) he is aware
       of the permissible ranges of sentences and fines possible; and
       (6) the court is not bound by the terms of the agreement unless
       the court accepts the plea. The reviewing Court will evaluate the
       adequacy of the plea colloquy and the voluntariness of the
       resulting plea by examining the totality of the circumstances
       surrounding the entry of that plea. Pennsylvania law presumes a
       defendant who entered a guilty plea was aware of what he was
       doing, and the defendant bears the burden of proving otherwise.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (internal

citations and quotation marks omitted).

       In his first two issues, Appellant claims that counsel should have

moved to withdraw his plea because, during the oral plea colloquy, the court

(1) advised him incorrectly as to the maximum sentence he faced for third-

degree murder, and (2) did not explain adequately the meaning of the term

“malice.”   Appellant’s Brief at 13-18.      Specifically, Appellant notes that,

although the maximum penalty he faced for third-degree murder was “40

years in prison and $50,000 in fines,” he was informed at the plea colloquy

that he faced “52 years in prison and $85,000 in fines.”               Id. at 14.

Appellant also asserts that the trial court did not comply with its duty to

explain the malice element of the murder charge in terms understandable to

him.   Id. (citing, inter alia, Commonwealth v. Hare, 404 A.2d 388, 391

(Pa. 1979) (holding that a criminal defendant is “entitled to an explanation

of the crime of murder with an illustrative elucidation of the term ‘malice’”)).




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        The transcript of Appellant’s plea colloquy states as follows, in relevant

part.

        THE COURT:          The charges you are going to plead guilty to
        are murder in the third[ ]degree, which is murder with malice
        rather than a specific premeditated intent to kill; possession of
        an instrument of crime; theft; receiving stolen property; and
        filing a false report.

              Do I have those charges correct?

        [APPELLANT]:      Yes.

        THE COURT:          Have your lawyers explained to you and do
        you understand fully the elements of these charges? By that I
        mean, do you understand what the DA would have to prove you
        did at trial in order to get convictions on these charges?

        [APPELLANT]:      Yes.

        THE COURT:         With regard to the third-degree murder, that is
        murder with malice. Malice is a specific legal concept as applied
        to charges like third-degree murder.

             Have you discussed with your lawyers and do you
        understand what murder with malice means?

        [APPELLANT]:      Yes.

        THE COURT:      Do you understand how it applies to the facts
        and circumstances in this case?

        [APPELLANT]:      Yes.

        THE COURT:         Now, the maximum sentence that you could
        receive for this offense is up to 52 years in jail and $85,000 in
        fines.

              Do you understand that?

        [APPELLANT]:      Yes.




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      THE COURT:       The Commonwealth -- this is a negotiated
      guilty plea. The Commonwealth has agreed to recommend a
      sentence of not more than 25 to 50 years in custody in exchange
      for your guilty pleas to these charges.       That means, the
      minimum will be 25 years and you will have to have 25 years in
      custody, which will include the time you have already spent in
      custody, before you are even eligible for parole.       And the
      maximum sentence that you would have to serve under this
      agreement is 50 years in jail.

             Do you understand that?

      [APPELLANT]:      Yes.

N.T., 5/26/2011, at 9-11. Further, Appellant acknowledged having reviewed

the written plea colloquy with counsel, and confirmed that he understood

everything therein.    Id. at 12-13.     The written colloquy contains the

following:

      THE CHARGES

      I admit that I committed the crime(s) of murder (3rd degree),
      PIC, TUT, RSP (M1) False Reports M2, and I want to plead guilty.
      My lawyer told me what the elements of the crime(s) are that
      the District Attorney must prove to convict me. I know I can go
      to jail for up to 52 years and be fined $85,000 for the crimes I
      committed.

                                   ***

      FACTS OF MY CASE AND ELEMENTS OF THE CRIME(S)

      The facts of the case have been read to me. The crimes and
      elements of the crime(s) have been explained to me.           I
      committed the crime(s), and that is why I am pleading guilty.

Written Guilty Plea Colloquy, 5/26/2011, at 1, 3 (underlined portions are

hand-written into blanks on the form).




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J-S79036-14


      Appellant’s claim regarding the alleged misstatement of the maximum

sentence lacks arguable merit.       Examining in context the trial court’s

statement of the maximum penalty Appellant faced, it is clear that the 52

years’ imprisonment and $85,000 fine referred to the aggregate maximum

sentence for all the crimes to which he was pleading guilty, not to just the

murder charge. Furthermore, Appellant did not allege in his PCRA petition

that a misunderstanding of the maximum sentence was material to his

decision to plead guilty. See, e.g., Commonwealth v. Barbosa, 819 A.2d

81, 83 (Pa. Super. 2003) (“[Not] every mistake in computing the possible

maximum or advising the defendant of the possible maximum will amount to

manifest injustice justifying the withdrawal of a guilty plea; the mistake

must be material to the defendant’s decision to plead guilty.”). Moreover,

even if he had so alleged and proved, no manifest injustice was present

because Appellant was not sentenced to more time than he thought was

possible.   See, e.g., Warren, 84 A.3d at 1097 (“The maximum sentence

[he received] did not exceed what Warren had been told was the possible

maximum sentence.         Warren cannot, therefore, establish a manifest

injustice so as to permit the withdrawal of his guilty plea after sentencing.”).

      Appellant’s claim regarding the definition of malice is also unavailing.

As this Court has explained:

            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



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      lies. A person who elects to plead guilty is bound by the
      statements he makes in open court while under oath and he may
      not later assert grounds for withdrawing the plea which
      contradict the statements he made at his plea colloquy.

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

omitted). The above quotes from the oral and written colloquies show that

Appellant acknowledged that the elements of third-degree murder and the

concept of malice were explained to him and that he understood the

application of malice to the facts of his case.          Accordingly, a motion to

withdraw his plea based upon a claim that he lied about understanding

malice would have been fruitless.

      Because the underlying issues of Appellant’s first two questions are

without arguable merit, Appellant cannot establish that counsel was

ineffective in failing to pursue on those bases a motion to withdraw

Appellant’s guilty plea.   See, e.g., Commonwealth v. Keaton, 82 A.3d

419, 426 (Pa. 2013) (quoting Commonwealth v. Pursell, 724 A.2d 293,

304 (Pa. 1999)) (“[I]t is axiomatic that [trial] counsel will not be considered

ineffective for failing to pursue meritless claims.”).

      Appellant next contends that trial counsel was ineffective in failing to

move for withdrawal of his guilty plea because he had a meritorious defense.

Specifically, Appellant asserts that his guilty plea was invalid because he

stated immediately thereafter that “it wasn’t really [his] intention” to kill the

decedent, and that, because of drugs, he “wasn’t in [his] right mind at all” at




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the time. Appellant’s Brief at 19 (quoting N.T., 5/26/2011, at 32). Because

these statements indicated that he had a defense to the crime, Appellant

argues, the plea should not have been accepted, and counsel should have

moved to withdraw it. Id. (citing, inter alia, Commonwealth v. Fluharty,

632 A.2d 312 (Pa. Super. 1993)).

        “[I]f a defendant pleads guilty to a criminal charge, and in the next

breath contravenes the plea by asserting facts which, if true, would establish

that he is not guilty, then his guilty plea is of no effect and should be

rejected.” Commonwealth v. Roundtree, 269 A.2d 709, 711 (Pa. 1970).

However, the defendant’s testimony must give rise to “a complete defense

to the crime charged” and “the act resulting in death must, inter alia, be

lawful.” Commonwealth v. Johnson, 331 A.2d 473, 475, 476 (Pa. 1975)

(internal quotation omitted).

        Appellant accepted the following as part of the factual basis for his

plea.

        [Appellant] told the detectives that at about 12:30-1:00 a.m. he
        and his mother-in-law got into an argument about her always
        yelling at his kids. He also said they started to push each other
        and that she smacked him. He then started smacking her and
        grabbed scissors that were on the kitchen table and he was
        holding them open. “Like I made a fist with the scissors open
        and the blades were sticking out the sides of my fists. I swung
        the scissors at her and I got her in the neck a couple of times
        and then she fell down the stairs. …”

N.T., 5/26/2011, at 16-17.       Later, in his allocution, Appellant stated as

follows.



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             Your Honor, I just want to say that I accept my
      responsibility of the crimes that I’ve committed. I understand I
      hurt a lot of family members, including my kids. I accept the
      punishment. I am going to be dealing with -- I want to say to
      the family that I am very, very sorry. It wasn’t really my
      intention. I wasn’t in my right state of mind at all. I was high
      all my life even at the age of 11. I never tried to get help
      because I never thought anyone could help at times. I am really
      truly sorry. I loved my mother-in-law as they did. She was like
      my own mother.

Id. at 32.

      Appellant’s claim of a complete defense to the murder charge is

meritless.   First, third-degree murder requires no intent to kill, so his I-

didn’t-really-mean-to-do-it statement did not indicate a defense. See, e.g.,

Commonwealth v. Seibert, 622 A.2d 361, 365 (Pa. Super. 1993) (quoting

Commonwealth v. Gooslin, 189 A.2d 157, 158 (Pa. 1963)) (“If there was

an unlawful killing with (legal) malice, express, or implied, that will

constitute murder even though there was no intent to injure or kill the

particular   person   who   was    killed   and   even   though   his   death   was

unintentional or accidental….”).

      Second, Appellant’s “drug induced insanity” claim, Appellant’s Brief at

20, is equally unavailing under Pennsylvania law. “[E]vidence of voluntary

intoxication cannot negate malice, the state of mind necessary for murder of

the third degree.” Commonwealth v. Ruff, 405 A.2d 929, 929 (Pa. Super.

1979).

      Neither voluntary intoxication nor voluntary drugged condition is
      a defense to a criminal charge, nor may evidence of such



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      conditions be introduced to negative the element of intent of the
      offense, except that evidence of such intoxication or drugged
      condition of the defendant may be offered by the defendant
      whenever it is relevant to reduce murder from a higher degree
      to a lower degree of murder.

18 Pa.C.S. § 308. See also Commonwealth v. Reed, 583 A.2d 459, 471

(Pa. Super. 1990) (“Evidence of voluntary intoxication may reduce murder of

the first degree to murder of the third degree, but it cannot reduce murder

of the third degree to manslaughter.”).

      Because his statements that he did not really mean to kill the victim

and that he had a drug problem did not present a complete defense to

murder in the third degree, Appellant’s claim that these statements

invalidated his plea lacks merit. Therefore, counsel was not ineffective for

failing to file a meritless motion to withdraw the guilty plea.    Keaton, 82

A.3d at 426.

      We consider together Appellant’s remaining two claims, which are that

(1) trial counsel’s ineffectiveness in failing to move to suppress Appellant’s

involuntary confession rendered his plea invalid, Appellant’s Brief at 21-23;

and (2) new counsel should be appointed to advance this claim because

PCRA counsel “neither succeeded in advancing all of Appellant’s claims for

PCRA relief [n]or certifying their lack of merit.” Id. at 24-25.

      We begin by examining the applicable law. “A defendant is permitted

to withdraw his guilty plea under the PCRA if ineffective assistance of

counsel caused the defendant to enter an involuntary plea of guilty.”



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Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006)

(quoting Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa. Super.

2005)). When an unconstitutionally-obtained confession is the alleged basis

for an involuntary plea, a defendant must do more than establish that the

confession was involuntary. To establish the right to withdraw a guilty plea

in the context of an involuntary confession, a petitioner must prove each of

the following: “(1) the involuntariness of the pre-trial confession; (2) the

fact that the plea was primarily motivated by that evidence; and (3) the

incompetence of counsel’s advice that the defendant plead under the

circumstances, rather than stand trial.” Commonwealth v. Lane, 401 A.2d

787, 788-89 (Pa. Super. 1979) (citations omitted).

      The claim that trial counsel was ineffective in failing to move to

suppress Appellant’s confession, and that Appellant’s guilty plea was

motivated primarily by the unsuppressed confession, does not appear in

Appellant’s pro se PCRA petition.       However, it is clear that Appellant

communicated to PCRA counsel his desire to raise this claim, because PCRA

counsel addressed it in his Finley letter.    Therein, PCRA counsel opined that

Appellant gave up his right to seek suppression by entering a voluntary

guilty plea. Finley Letter, 12/16/2013, at 7 (unnumbered).

      PCRA counsel’s statement is correct insofar that “by entering a guilty

plea, the defendant waives his right to challenge on direct appeal all

nonjurisdictional defects except the legality of the sentence and the validity



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of the plea.”    Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.

2013) (emphasis added). However, this is not a direct appeal, and Appellant

indicated his desire to raise the claim in a challenge to the validity of his

plea.4    PCRA counsel in his Finley letter failed to discuss the appropriate

legal standard applicable to the claim Appellant wished to raise, let alone

how he was able to determine on the record before him that the claim was

meritless.

         On his first PCRA petition, Appellant is entitled to the assistance of

counsel “to frame the issues in a legally meaningful fashion” to guarantee

that he has “at least one meaningful opportunity to have [his] issues

reviewed.”      Commonwealth v. Karanicolas, 836 A.2d 940, 945 (Pa.

Super. 2003) (citations and internal quotation marks omitted).        This rule

exists to ensure the PCRA court “that all relevant considerations will be

brought to its attention.” Id.

         From the record before us, it does not appear that PCRA counsel

framed in a legally-meaningful way Appellant’s claim that trial counsel’s

ineffectiveness in failing to move to suppress his confession rendered his


4
 In both his response to the PCRA court’s Rule 907 Notice and in his brief on
appeal, Appellant claims that he informed PCRA counsel that, at the time he
confessed to the police, he “had been held in custody for a period of roughly
29 hours, was not advised of his rights as required by Miranda v. Arizona,
384 U.S. 436 (1966), and was under the influence of drugs.” Appellant’s
Brief at 21. He further states in his brief that the involuntary confession
primarily motivated his plea. Id. at 22; see also Response to 907 Notice,
3/31/2014, at 3-4, 16-18.


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plea invalid, nor that the PCRA court had all relevant considerations brought

to its attention. Accordingly, we vacate the PCRA court’s order dismissing

Appellant’s petition and remand for the appointment of counsel either to (1)

amend Appellant’s pro se PCRA petition to state Appellant’s suppression-

related claim,5 or (2) file a petition to withdraw and no-merit letter detailing

why such claim is meritless.

      Order vacated.      Case remanded with instructions.          Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 4/13/2015




5
  Because we have determined that the PCRA court did not err in dismissing
Appellant’s claims based upon the alleged (1) misstatement of the maximum
sentence, (2) failure of the trial court to define adequately the term malice,
or (3) meritorious defense of lack of intent, counsel need not address those
issues a second time.


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