J-S71036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEENAN MCINTOSH                            :
                                               :
                       Appellant               :   No. 814 EDA 2019

            Appeal from the PCRA Order Entered February 22, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004138-2014


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 01, 2020

        Keenan McIntosh appeals from the denial of his request for relief under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA

court denied McIntosh’s PCRA petition, concluding that the issues presented

in the petition were meritless. We affirm.

        In February 2017, McIntosh entered a negotiated guilty plea to third

degree-murder, aggravated assault, and possession of an instrument of

crime.1 The trial court sentenced him to an aggregate term of 20 to 48 years’

incarceration. McIntosh did not file either a post-sentence motion or a direct

appeal. He did file a timely pro se PCRA petition in November 2017, raising

claims of an unlawful guilty plea, ineffective assistance of counsel, and a

violation of the United States and Pennsylvania Constitutions. He then filed a

____________________________________________


1   18 Pa.C.S.A. §§ 2502(c), 2702(a), and 907(a), respectfully.
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pro se amended PCRA petition and the PCRA court appointed counsel. Despite

now having counsel, McIntosh then filed another pro se amended PCRA

petition. The PCRA court removed counsel and appointed new counsel who

filed a Turney/Finley letter as well as a petition to withdraw as counsel.2

       The PCRA court issued notice of its intent to dismiss McIntosh’s petition

without a hearing. See Pa.R.Crim.P. 907. McIntosh responded to the notice

and filed another amended PCRA petition. Following this last petition, the

PCRA court dismissed McIntosh’s petition and granted counsel’s motion to

withdraw. This timely appeal followed.

       McIntosh raises the following issues on appeal:

          a.     Did the lower court err as a matter of law and/or
                 abuse discretion in denying [McIntosh] post conviction
                 relief without conducting a[n] evidentiary hearing
                 pursuant to Pa.R.Crim.P. 907(2); Pa.R.Crim.P.
                 908(A)(2)?

          b.     Did the lower court err as a matter of law and/or
                 abuse discretion by failing to properly apprise
                 [McIntosh] of the following Federal Rules of Criminal
                 Procedure Rule 11. Pleas (b)(1)(A), (b)(1)(B), and
                 (b)(1)(E)?

          c.     Did the lower court err as a matter of law and/or
                 abuse discretion in denying [McIntosh] post conviction
                 relief when [McIntosh] proved with overwhelming fact
                 based evidence that plea agreement was not
                 intelligently, knowingly, and voluntarily made?

          d.     Did the lower court err as a matter of law and/or
                 abuse discretion in denying [McIntosh] post conviction
                 relief on the grounds of ineffective assistance of
____________________________________________


2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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               counsel when it was clear indication that [McIntosh]
               and counsel’s relationship had deteriorated to the
               point that counsel could not effectively represent
               [McIntosh]?

         e.    Did lower court err as a matter of law and/or abuse
               discretion in denying [McIntosh] post conviction relief
               by not allowing [McIntosh] to proceed pro se pursuant
               to § 8.04 Outline- The Law of Waiver of Counsel (Rue
               121) [1] Defendant’s right to self representation?

         f.    Did the lower court err as a matter of law and/or
               abuse discretion in denying [McIntosh] post conviction
               relief for the warrantless search of [McIntosh’s] cell
               phone and allowing evidence from the warrantless
               search to be used against [McIntosh]?

         g.    Did the lower court err as a matter of law and/or
               abuse discretion in denying [McIntosh] post conviction
               relief after clear violations of Fed.R.Crim.P. Rule 11.
               Pleas (b)(1)(A), (b)(1)(B), (b)(1)(E) and [McIntosh’s]
               4th, 5th, 6th, 8th, and 14th amendment rights to the PA,
               U.S., and Federal Constitutions and certain
               Pennsylvania rules and statues such as Pa.C.S.
               9543(a)(2)(i),       Pa.C.S.   9543(a)(2)(ii),   Pa.C.S.
               9543(a)(2)(iii), Pa.C.S. 9543(a)(2)(vi), Pa.C.S.
               9545(b)(1)(i),       Pa.C.S.   9545(b)(1)(ii),   Pa.C.S.
               9545(b)(1)(iii)?

McIntosh’s Br. at 5-6.

      McIntosh challenges both the PCRA court’s denial of an evidentiary

hearing and the denial of his PCRA petition. We review the PCRA court’s denial

of a request for an evidentiary hearing for an abuse of discretion. See

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). We review a PCRA

court’s dismissal of a PCRA petition to “examine whether the PCRA court’s

determination is supported by the evidence of record and free of legal error.”

Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super. 2003) (en banc).



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EVIDENTIARY HEARING



      McIntosh does not explain why the court erred in denying him an

evidentiary hearing; he merely states the standard for obtaining an

evidentiary hearing. The PCRA court concluded that McIntosh “did not raise a

single claim of arguable merit.” PCRA Ct. Op., filed 5/14/19, at 12. Having

failed to develop this issue in his brief, McIntosh has waived review of this

issue. See Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super.

2015) (“the failure to develop an adequate argument in an appellate brief may

result in waiver of the claim under Pa.R.A.P. 2119”) (citation omitted);

Pa.R.A.P. 2119(a).

Rule 11 of the Federal Rules of Criminal Procedure

      McIntosh maintains that the trial court erred in failing to advise him of

his right to remain silent under Fed.R.Crim.P. 11. This is frivolous. The Federal

Rules of Criminal Procedure do not have any application to state court, and,

in any event, the trial court informed him of his right to remain silent. See

PCRA Ct. Op. at 10.

         THE COURT: . . . As the defendant in the case you have a
         right of silence, and if you wished to invoke your right of
         silence and not testify, all you’d have to do is tell me and I
         would tell the jury that they could not hold it against you.
         They could not draw any adverse inference or any inference
         of guilty from your decision not to testify. Is that clear to
         you?

         [McIntosh]: Yes.

                                      ***

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          THE COURT: So when you plead guilty, you give up all of
          those trial rights. Is that clear to you?

          [McIntosh]: Yes.

N.T., Guilty Plea Volume 1, 2/17/17, at 16. McIntosh also completed a written

guilty plea colloquy that he signed where he acknowledged his right to remain

silent.

          I have the right to remain silent. Nobody can make me
          testify or talk about the case. No one can hold it against me
          if I remain silent. However, if I want to, I can testify (tell my
          story) at the trial. Also, I may call other people who will be
          my witnesses and testify for me. If I plead guilty, I give up
          this right.

Written Guilty Plea Colloquy, dated 2/17/17, at 2. The PCRA court did not err

in denying this claim.

CHALLENGE TO GUILTY PLEA

      McIntosh argues that the PCRA court erred in concluding that he entered

a knowing, intelligent, and voluntary guilty plea. We disagree. As the PCRA

court concluded, McIntosh entered a knowing, intelligent, and voluntary plea

after completing an oral and written guilty plea colloquy. The guilty plea

transcript supports that McIntosh was aware of “the nature of the charges;

the factual basis for his guilty plea; that he had an absolute right to a jury

trial; that he was presumed innocent until found guilty beyond a reasonable

doubt; the permissible range of sentences on the offenses, and the terms of

the plea agreement.” PCRA Ct. Op. at 9; N.T., Guilty Plea, at 13-43. A

defendant may not successfully challenge a guilty plea by contradicting

statements the defendant made during a guilty plea colloquy. See


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Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa.Super. 2002). The

PCRA court did not abuse its discretion in denying this claim.

INEFFECTIVE ASSISTANCE OF COUNSEL

      McIntosh maintains that the PCRA court erred by rejecting his claim that

trial counsel was ineffective. He argues that there was a “clear indication that

[McIntosh] and counsel’s relationship had deteriorated to the point that

counsel could not effectively represent [McIntosh].” McIntosh’s Br. at 5.

However, McIntosh waived this claim by failing to raise it in his Pa.R.A.P.

1925(b) statement. See Commonwealth v. Harris, 212 A.3d 64, 69-70

(Pa.Super. 2019) (concluding appellant’s claim waived because he did not

raised the claim in 1925(b) statement). Even if McIntosh had preserved this

claim, we would conclude that it lacked merit.

      Counsel is presumed to have been effective and thus the burden lies

with the petitioner to plead and prove all of the following: “(1) the underlying

substantive claim has arguable merit; (2) counsel did not have a reasonable

basis for his or her act or omission; and (3) the petitioner suffered prejudice

as a result of counsel’s deficient performance, ‘that is, a reasonable probability

that but for counsel’s act or omission, the outcome of the proceeding would

have been different.’” Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa.

2018) (citation omitted). Failure to plead any prong “will defeat an

ineffectiveness claim.” Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.

2014).




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         Here, McIntosh’s ineffectiveness claim fails because his underlying claim

has no arguable merit. McIntosh alleges that trial counsel was ineffective

because “[p]lea counsel manipulated and took full advantage of [McIntosh] at

the peak of his mental, emotional, physical, and moral instabilities . . . when

they compelled, coerced and persuaded [McIntosh] by not effectuating his

interest and repeatedly lying to him in order to persuade him to admit guilt

either by an insanity plea or by outright pleading guilty.” McIntosh’s Br. at 12.

He also alleges that he “wanted to withdraw [the] insanity plea that counsel

forced upon him but counsel repeatedly persuaded [McIntosh] with lies stating

that the insanity plea couldn’t be withdrawn” and “that Dr. Watson would use

this inculpatory report when testify against [McIntosh] at trial regardless.” Id.

at 13.

         “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.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super.

2011) (citations omitted). Here, McIntosh completed a written and oral guilty

plea colloquy. His written guilty plea colloquy, which McIntosh signed, reads:

“Nobody promised me anything or threatened me or forced me to plead guilty.

I, myself, have decided to plead guilty. I know what I say today is final.”

Written Guilty Plea Colloquy, at 1. McIntosh made a similar statement during

his oral colloquy. The trial court asked whether anyone had “threaten[ed]

[McIntosh] or forc[ed] [McIntosh] to make this decision [to plead guilty]?”

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McIntosh responded in the negative, stating that he was pleading guilty of his

own free will and was satisfied with the services of trial counsel. N.T., Guilty

Plea, at 41, 42. McIntosh is bound by these statements and cannot now claim

that counsel coerced him to plead guilty. Yeomans, 23 A.3d at 1047. His

claim is of no arguable merit and therefore his ineffectiveness claim fails.

Fears, 86 A.3d at 804.

RIGHT TO PROCEED PRO SE

      McIntosh claims that the “lower court” erred by denying him “post

conviction relief by not allowing [McIntosh] to proceed pro se[.]” McIntosh’s

Br. at 5. He argues that the PCRA court erred in concluding that he was not

denied his right to proceed pro se at trial. See id. at 22. However, by pleading

guilty, McIntosh has waived any claims relating to anything but a jurisdictional

issue, the legality of his sentence, or a challenge to the validity of his plea.

Commonwealth        v.   Lincoln,   72   A.3d   606,   609   (Pa.Super.   2013).

Furthermore, he waived this issued by failing to raise it with the trial court as

he did not file a post-sentence motion addressing this claim. See Pa.R.A.P.

302(a). The PCRA court did not err in denying this claim.

WARRANTLESS SEARCH

      McIntosh alleges that the police conducted a warrantless search of his

phone in violation of the Fourth, Eighth, and Fourteenth Amendments and the

Wiretapping and Electronic Surveillance Control Act. See McIntosh’s Br. at 21-

22. As stated in the previous section, McIntosh waived this issue by pleading

guilty. Lincoln, 72 A.3d at 609; Pa.R.A.P. 302(a).

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VIOLATIONS OF PCRA, FEDERAL LAW, U.S. AND PENNSYLVANIA

CONSTITUTIONS

      In his final claim, McIntosh alleges that the court erred in denying him

PCRA relief after “clear violations of Fed.R.Crim.P. Rule 11. Pleas (b)(1)(A),

(b)(1)(B), (b)(1)(E) . . . 4th, 5th, 6th, 8th, and 14th amendment rights to the

PA, U.S., and Federal Constitutions” and various sections of the PCRA.

McIntosh’s Br. at 6. McIntosh utterly failed to develop this claim in his brief.

He therefore waived it. We thus affirm the order denying his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/20




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