J-S57018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellee             :
                                         :
              v.                         :
                                         :
 DANIEL SHELLEY                          :
                                         :
                   Appellant             :       No. 794 EDA 2018


                 Appeal from the PCRA Order August 3, 2017
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0001363-2012


BEFORE:    PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.:                       FILED NOVEMBER 09, 2018

      Appellant, Daniel Shelley, appeals nunc pro tunc from the dismissal of

his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      We take the procedural and factual background of this matter from our

independent review of the certified record and the PCRA court’s May 18, 2018

opinion.   On October 11, 2011, police arrested Appellant for murder and

related charges. The charges arose from an incident in which Appellant fatally

shot an innocent bystander when he opened fire on his intended target and

missed. Appellant entered a negotiated guilty plea to third degree murder on

April 3, 2013. In return, the Commonwealth withdrew a first-degree murder

charge and its recommendation of a life sentence. The court sentenced him



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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to the agreed upon aggregate term of not less than twenty-two and one-half

nor more than forty-five years of incarceration.

       On April 17, 2013, the trial court denied Appellant’s motion to withdraw

his guilty plea, and this Court affirmed the judgment of sentence on January

12, 2016. (See Commonwealth v. Shelley, 2016 WL 128545, at *1 (Pa.

Super. filed Jan. 12, 2016) (unpublished memorandum)). Appellant filed a

PCRA petition on January 27, 2017 with the assistance of counsel. On June

29, 2017, the PCRA court provided notice of its intent to dismiss the petition

without a hearing.      See Pa.R.Crim.P. 907(1).    The PCRA court denied the

petition on August 3, 2017, and a panel of this Court dismissed his appeal for

the failure to file a docketing statement. On March 15, 2018, the PCRA court

granted Appellant’s petition to reinstate his appeal rights nunc pro tunc. He

now timely appeals nunc pro tunc.1

       Appellant raises two questions for this Court’s review:

       1.    Was plea counsel ineffective and did Appellant suffer
       prejudice because Appellant’s guilty plea was not voluntary due to
       the fact that he was not orally advised of the presumption of
       innocence or the elements of the charges, there was no inquiry as
       to the right to a jury trial as well as associated rights, and there
       was no inquiry as to whether Appellant understood the written
       colloquy in English and whether the written colloquy was fully
       discussed with plea counsel?

       2.    Did the PCRA court err in failing to conduct an evidentiary
       hearing in relation to plea counsel’s failure to interview and
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1 Pursuant to the PCRA court’s order, Appellant filed a timely statement of
errors complained of on appeal on April 4, 2018. The court filed an opinion
on May 18, 2018. See Pa.R.A.P. 1925.

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      investigate eyewitnesses, Briana Shelly and Tiffany Wright, as well
      as alibi witness, Anna Lewis, because only an evidentiary hearing
      could assess plea counsel’s role in inducing fourth-grade educated
      Appellant to enter a plea due to plea counsel’s lack of
      preparedness for trial?

(Appellant’s Brief, at 4).

      “Our standard of review of a [PCRA] 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. Pier, 182 A.3d 476, 478 (Pa. Super. 2018)

(citation omitted).

      In his first issue, Appellant maintains that plea counsel was ineffective

for conducting a defective guilty plea colloquy, resulting in an involuntary plea.

(See Appellant’s Brief, at 8-13). This issue does not merit relief.

             . . . To prevail on a claim of ineffective assistance of counsel,
      a PCRA petitioner must prove each of the following: (1) the
      underlying legal claim was of arguable merit; (2) counsel had no
      reasonable strategic basis for his action or inaction; and (3) the
      petitioner was prejudiced—that is, but for counsel’s deficient
      stewardship, there is a reasonable likelihood the outcome of the
      proceedings would have been different.

                  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.

            Thus, to establish prejudice, the defendant must show that
      there is a reasonable probability that, but for counsel’s errors, he


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      would not have pleaded guilty and would have insisted on going
      to trial.

Pier, supra at 478-79 (citations, quotation marks, and footnote omitted).

“The law does not require that appellant be pleased with the outcome of his

decision to enter a plea of guilty[.]” Commonwealth v. Bedall, 954 A.2d

1209, 1212 (Pa. Super. 2008), appeal denied, 964 A.2d 893 (Pa. 2009)

(citation omitted).

            The guilty plea colloquy must affirmatively demonstrate that
      the defendant understood what the plea connoted and its
      consequences. Once a defendant has entered a plea of guilty, it
      is presumed that he was aware of what he was doing, and the
      burden of proving involuntariness is upon him. 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. Furthermore, nothing in the rule precludes
      the supplementation of the oral colloquy by a written colloquy that
      is read, completed, and signed by the defendant and made a part
      of the plea proceedings.

Id. at 1212-13 (citations and quotation marks omitted).

      In the present case, Appellant completed a written colloquy in which he

confirmed that he knew the charges to which he was pleading guilty, the

elements the Commonwealth was required to prove, and the potential

sentences that could be imposed. (See Written Guilty Plea Colloquy, 4/03/13,

at 1-2).   He certified that he understood: his right to a jury trial, the

presumption of innocence, that he was giving up pre-trial rights, and his

limited grounds for appeal.     (See id. at 1-3).      He also expressed his

satisfaction with counsel, that the facts of the case had been explained to him,




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and he was pleading guilty because he committed the charged crimes. (See

id. at 1, 3).

       At the oral guilty plea, Appellant confirmed that counsel had discussed

the evidence against him, and the possible outcomes.        (See N.T. Hearing,

4/03/13, at 9, 16).       He affirmed that he understood the Commonwealth’s

burden of proof, his trial rights, and that the fact-finder would determine the

trial outcome. (See id. at 9-12). He provided accurate testimony about his

date of birth and age, and ably answered the questions of both the court and

counsel. (See id. at 6-19, 37-40).

       Based on the foregoing, we conclude that the record supports the PCRA

court’s denial of Appellant’s claim, that counsel was ineffective for providing a

deficient plea colloquy that resulted in a unknowing and involuntary plea.2,    3



See Pier, supra at 478; Bedall, supra at 1212-13. Appellant’s first issue

does not merit relief.




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2 The PCRA court also noted counsel’s advice to plead guilty was reasonable
where Appellant faced a potential life sentence if he went to trial, and counsel
negotiated a term of years in exchange for the Commonwealth withdrawing
the first-degree murder charge. (See PCRA Court Opinion, 5/18/18, at 5).

3 Moreover, Appellant’s claim that he only reads at a fourth grade level and
therefore he could not understand the colloquy lacks merit where he provides
nothing to support this allegation, the record reflects that he attended school
until the twelfth grade, and he affirmed that he understood the consequences
of pleading guilty. See Brown, infra. at 1277; (see also N.T. Hearing, at 6-
19, 37-40; Written Guilty Plea Colloquy, at 1).

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      In his second issue, Appellant complains that the court erred in not

holding a hearing on his claim that counsel was ineffective for failing to

interview and investigate witnesses. (See Appellant’s Brief, at 14-16). This

claim does not merit relief.

      It is well-settled that:

      [A] petitioner is not entitled to a PCRA hearing as a matter of
      right; the PCRA court can decline to hold a hearing if there is no
      genuine issue concerning any material fact and the petitioner is
      not entitled to post-conviction collateral relief, and no purpose
      would be served by any further proceedings. A reviewing court
      on appeal must examine each of the issues raised in the PCRA
      petition in light of the record in order to determine whether the
      PCRA court erred in concluding that there were no genuine issues
      of material fact and in denying relief without an evidentiary
      hearing.

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015), appeal

denied, 136 A.3d 981 (Pa. 2016) (citations and quotation marks omitted);

see also Pa.R.Crim.P. 907.

      To prove prejudice for counsel’s failure to call a witness, a petitioner

must establish that the witness existed and was available and willing to testify;

and that counsel knew of, or should have known of the witness.              See

Commonwealth v. Pander, 100 A.3d 626, 639 (Pa. Super. 2014), appeal

denied, 109 A.3d 679 (Pa. 2015).       Also, in the context of a guilty plea, a

defendant must prove “that there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.” Pier, supra at 479 (citation omitted).




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       Here, Appellant claims that, if counsel had interviewed his proposed

witnesses, they would have rebutted the Commonwealth’s identification and

flight theories, and provided him with an alibi. (See Appellant’s Brief, at 14-

15).    However, Appellant admitted his guilt, and he is bound by that

admission. See Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super.

2012), appeal denied, 63 A.3d 773 (Pa. 2013) (“A defendant is bound by the

statements made during the plea colloquy, and a defendant may not later

offer reasons for withdrawing the plea that contradict statements made when

he pled.”) (citation omitted).   As additionally observed by the PCRA court,

Appellant was aware of, and informed counsel about, the alleged alibi witness

before trial, but he elected to plead guilty, and take the negotiated sentence,

instead. (See PCRA Ct. Op., at 7).

       Based on the foregoing, and our independent review of the certified

record, we conclude that it supports the PCRA court’s finding that Appellant

failed to create a genuine issue of material fact on his claim of counsel’s

ineffectiveness for failure to investigate potential witnesses. See Pander,

supra at 639.     Appellant’s second issue lacks merit and the PCRA court

properly denied his petition without a hearing. See Smith, supra at 1052.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/18




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