J-S74018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH NORWOOD                              :
                                               :
                       Appellant               :   No. 913 EDA 2019

              Appeal from the PCRA Order Entered March 4, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0016048-2010

BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 25, 2020

        Keith Norwood (Appellant) appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        The trial court summarized the relevant facts and procedural history:

           On April 26, 2009, [Appellant] obtained possession of a .38
           caliber handgun owned by the [c]o-[d]efendant, Khayan
           Harris. [Appellant] and the [c]o-defendant approached the
           decedent on his bike at the intersection of 32nd and Morris
           Streets. [Appellant] shot the decedent three times, and the
           [c]o-defendant shot the decedent six times. The decedent
           then began to beg for his life, and the [c]o[-]defendant fired
           one more shot at the decedent’s head.

        [Trial Court Opinion, 6/24/16, at 1-2 n.1]. [Appellant] was
        subsequently charged with murder-generally and related VUFA
        offenses.   On December 29, 2003, [Appellant] entered a
        negotiated guilty plea to the charges of third-degree murder,
        conspiracy, and possessing an instrument of a crime. On the
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     same day, the [trial court] sentenced [Appellant] to 20 to 40 years
     [of] imprisonment on the charge of third-degree murder and 5 to
     10 years [of] imprisonment on the charge of conspiracy, to run
     consecutively. No further penalty was given on the charge of
     possession of an instrument of crime. No post-sentence motion
     or notice of appeal was filed.

         On October 09, 2013, [Appellant] filed a timely pro se PCRA
     petition. On May 19, 2014, counsel was appointed. On October
     21, 2014, [Appellant] filed an amended PCRA petition, in which he
     claimed that trial counsel failed to protect his post-sentence or
     direct appeal rights. On January 15, 2015, [the PCRA court]
     reinstated [Appellant]’s direct appeal rights nunc pro tunc, but did
     not address [Appellant]’s request for post-sentence rights to be
     reinstated. On January 20, 2015, [Appellant] filed a Notice of
     Appeal. On January 12, 2017, the Pennsylvania Superior Court
     affirmed [Appellant]’s judgment of sentence. On June 5, 2017,
     the Pennsylvania Supreme Court denied [Appellant]’s application
     for allocatur.

        On March 28, 2018, [Appellant] filed a pro se PCRA petition in
     which he claimed that he did not voluntarily enter into his
     negotiated guilty plea and, therefore, Trial Counsel was ineffective
     for failing to file a post-sentence motion to withdraw his guilty
     plea. On July 10, 2018, [counsel] was appointed to represent
     [Appellant]. On October 23, 2018, [Appellant] filed an amended
     PCRA petition. On February 4, 2019, [the] Commonwealth filed a
     motion to dismiss.

        On February 5, 2019, the [PCRA court] sent [Appellant] a 907
     Notice of Intent to Dismiss. [Appellant] did not file a response to
     the 907 Notice. On March 4, 2019, following a thorough review
     of the record, [the PCRA court] dismissed [Appellant]’s PCRA
     petition for lack of merit. On March 19, 2019, [Appellant] filed a
     Notice of Appeal.

PCRA Court Opinion, 6/28/19, at 2-3 (footnote omitted).

     On appeal, Appellant presents the following issue for review:

     Did the [PCRA court] err in dismissing the Post-Conviction Relief
     Act (PCRA) petition, without a hearing, even though Appellant
     pled, and would have been able to prove that he was entitled to


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      relief due to ineffective assistance of trial counsel and should have
      been allowed to withdraw his guilty plea and go to trial?

Appellant’s Brief at 3.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      We begin by recognizing:

      To be eligible for relief under the PCRA, [a PCRA petitioner] must
      prove by a preponderance of the evidence that his conviction or
      sentence resulted from one or more of the enumerated
      circumstances found in Section 9543(a)(2) (establishing the bases
      for relief). These circumstances include . . . ineffective assistance
      of counsel that “so undermined the truth-determining process that
      no reliable adjudication of guilt or innocence could have taken
      place.” 42 Pa.C.S.A. § 9543(a)(2)[(ii)]; Commonwealth v.
      Blakeney, 108 A.3d 739, 749 ([Pa.] 2014). [A PCRA petitioner]
      also must demonstrate that the issues included in his PCRA
      petition have not been previously litigated or waived. 42 Pa.C.S.A.
      §§ 9543(a)(3), 9544(a)-(b) (defining circumstances that lead to
      waiver and a finding that a claim is previously litigated).

Commonwealth v. Crispell, 193 A.3d 919, 927-28 (Pa. 2018).

      Appellant’s sole issue on appeal challenges the effectiveness of Trial

Counsel. In deciding ineffective assistance of counsel claims, we begin with

the presumption that counsel rendered effective assistance. Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

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(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”         Id. (citation omitted).    If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Id. at 1188.

      “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.” Commonwealth v.

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation

omitted). “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.”                Id.

(quotations and citations omitted).       “Thus, to establish prejudice, the

defendant must show 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.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super.

2013) (quotations and citations omitted). “The reasonable probability test is

not a stringent one; it merely refers to a probability sufficient to undermine

confidence in the outcome.” Id. (quotations and citations omitted).

      With respect to valid guilty pleas, this Court has explained:

      A valid guilty plea must be knowingly, voluntarily and intelligently
      entered. The Pennsylvania Rules of Criminal Procedure mandate

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      that 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. Specifically,
      the court must affirmatively demonstrate the defendant
      understands: (1) the nature of the charges to which he is pleading
      guilty; (2) the factual basis for the plea; (3) his right to trial by
      jury; (4) the presumption of innocence; (5) the permissible ranges
      of sentences and fines possible; and (6) that the court is not
      bound by the terms of the agreement unless the court accepts the
      agreement. This 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.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations

omitted); see also Pa.R.Crim.P. 590.

      Appellant argues that Trial Counsel was ineffective for failing to file a

post-sentence motion to withdraw his guilty plea and that consequently, the

PCRA court abused its discretion in dismissing his PCRA petition without a

hearing. We disagree.

      Appellant’s challenge to the voluntariness of his guilty plea is not

cognizable under the PCRA because he raised the claim on direct appeal. As

this Court has explained, “[a] claim that has been previously litigated is not

cognizable for collateral relief.” Commonwealth v. Roane, 142 A.3d 79, 94

(Pa. Super. 2016) (citing 42 Pa.C.S.A. § 9544(a)(2)). The PCRA defines a

matter as having been previously litigated when “the highest appellate court

in which the petitioner could have had review as a matter of right has ruled

on the merits of the issue.” Id. (quotations and citation omitted).




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      Before a prior panel of this Court, Appellant argued that his plea was

not knowing, voluntary, and intelligent because the trial court misinformed

him of the elements of conspiracy to commit third-degree murder.

Commonwealth v. Norwood, 319 EDA 2016 at 4 (Pa. Super. Jan. 12, 2017)

(unpublished memorandum). In rejecting this claim, we explained:

      During the guilty plea hearing, the Commonwealth defined the
      elements of conspiracy to commit third[-]degree murder.

         You are also pleading guilty to a charge of conspiracy to
         commit third-degree murder, and that, in this case, that
         means the Commonwealth has to prove beyond a
         reasonable doubt that you made some kind of an agreement
         with another person and took at least one step towards
         completing this agreement. In this case, the agreement to
         commit third-degree murder would mean that you, in
         essence, agreed with someone to commit at least serious
         bodily injury upon another person. In this case, that serious
         bodily injury resulted in someone’s death.

      N.T. Guilty Plea, 10/9/2012, at 19. Conspiracy requires that the
      defendant have the intent of promoting or facilitating a crime and
      engaging in conduct which constitutes such crime. 18 Pa.C.S.A.
      § 903(a). In Commonwealth v. Fisher, 80 A.3d 1186 (Pa.
      2013), our Supreme Court held that conspiracy to commit third
      degree was a cognizable offense and “if a defendant acts with his
      co-conspirators in brutally attacking the victim . . . but does not
      care whether the victim dies or not, he conspires to commit third
      degree murder.” Fisher, 80 A.3d at 1195. As this factual
      scenario is practically identical to the description given to
      Appellant during his guilty plea colloquy, Appellant’s claim fails.

Id. at 4-5.

      Thus, Appellant challenged the voluntariness of his guilty plea on direct

appeal, and we determined that Appellant entered a knowing, voluntary, and

intelligent plea. See id. Our Supreme Court subsequently denied Appellant’s


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petition for allowance of appeal.     We therefore conclude that Appellant

previously litigated his challenge to the voluntariness of his guilty plea and

this claim is not cognizable under the PCRA.

      Because Appellant’s challenge to the voluntariness of his guilty plea

serves as the basis for his ineffective assistance of counsel claim, that claim

must likewise fail.   It is well-settled that “counsel will not be deemed

ineffective for failing to raise a meritless claim.” Commonwealth v. Spotz,

896 A.2d 1191, 1211 (Pa. 2006).

      Finally, with respect to Appellant’s argument that the PCRA court abused

its discretion in dismissing his PCRA petition without a hearing, we

acknowledge the following:

      [T]he right to an evidentiary hearing on a post-conviction petition
      is not absolute. Commonwealth v. Jordan, 772 A.2d 1011,
      1014 (Pa. Super. 2001). It is within the PCRA court’s discretion
      to decline to hold a hearing if the petitioner’s claim is patently
      frivolous and has no support either in the record or other evidence.
      Id. It is the responsibility of the reviewing court on appeal to
      examine each issue raised in the PCRA petition in light of the
      record certified before it in order to determine if the PCRA court
      erred in its determination that there were no genuine issues of
      material fact in controversy and in denying relief without
      conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).

      As Wah states, the PCRA court may decline to hold a hearing if the

petitioner’s claim is patently frivolous and without support in the record.

Because this Court previously determined that Appellant’s challenge to the


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voluntariness of his guilty plea was without merit, we discern no abuse of

discretion in the PCRA court’s determination that Appellant’s ineffective

assistance of counsel claim, based on trial counsel’s failure to challenge his

guilty plea, was frivolous and did not warrant a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/20




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