J-S02045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

EDWARD TILLMAN

                            Appellant                No. 2075 EDA 2016


                   Appeal from the PCRA Order June 8, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0004427-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                             FILED JULY 07, 2017

       Edward Tillman appeals from the June 8, 2016 order entered in the

Montgomery County Court of Common Pleas dismissing his petition filed

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

appeal, counsel has filed an Anders1 brief and a petition to withdraw as

counsel. We affirm and grant counsel’s petition to withdraw.

       The PCRA court set forth the following factual and procedural history:

____________________________________________


       1
        Anders v. California, 386 U.S. 738 (1967). Because counsel seeks
to withdraw on appeal from a denial of PCRA relief, he should have filed a
no-merit brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc), rather than an Anders brief. However, “[b]ecause an Anders brief
provides greater protection to a defendant, this Court may accept an
Anders brief in lieu of a Turner/Finley letter.”      Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011). We will refer to counsel’s
brief as a Turner/Finley Br.
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              On April 27, 2015, [Tillman] – then represented by
           Daine Arthur Grey, Jr., Esquire – appeared before the
           undersigned and entered a negotiated guilty plea to
           corrupt organizations1, person not to possess firearm2,
           criminal conspiracy3, and multiple counts of possession of
           a controlled substance with intent to deliver [(“PWID”)]4.[2]
           That same date, the undersigned sentenced [Tillman] in
           accordance with the terms of his plea agreement with the
           Commonwealth, imposing an aggregate sentence of not
           less than nine (9) nor more than twenty (20) years
           imprisonment.
              1
                  18 Pa.C.S.A. §911(B)(1)[.]
              2
                  18 Pa.C.S.A. §6105(A)(1)[.]
              3
                  18 Pa.C.S.A. §903(A)(1)[.]
              4
                  35 P.S. §780-113(A)(30)[.]

              On May 5, 2015, Mr. Grey filed on [Tillman’s] behalf a
           timely post-sentence motion to withdraw [Tillman’s] guilty
           plea. In this motion, [Tillman] contended that his guilty
           plea was not knowingly, voluntarily, and intelligently
           rendered because he “was feeling intense pressure at the
           time of his plea, from his co-defendant who happened to
           be his girlfriend, and felt confused and unsure during the
           entire process.”

               Following transcription of the notes of testimony for
           [Tillman’s] guilty plea hearing, the undersigned reviewed
           the record and determined that [Tillman] was not entitled
           to withdraw his guilty plea on the basis of the claims raised
           in his post-sentence motion. Accordingly, by order dated
           June 26, 2015, the undersigned denied [Tillman’s] post-
           sentence motion, stating the court’s reasoning at some
           length in our order.


____________________________________________


       2
         An information charged Tillman with 65 counts following the
investigation of a drug trafficking organization. Tillman pled guilty to six
counts of PWID, and one count each of corrupt organizations, person not to
possess firearms, and criminal conspiracy.



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          On July 24, 2015, [Tillman] filed, pro se, a notice of
       direct appeal to the Superior Court of Pennsylvania. That
       same date, [Tillman] also filed a request that counsel be
       appointed to represent him on appeal. By order dated July
       31, 2015, the undersigned appointed John W. Aitchison,
       Esquire, to represent [Tillman] as appellate counsel. The
       undersigned subsequently became aware that, on July 30,
       2015, [Tillman] had filed, pro se, a petition for
       reconsideration of our order denying his post-sentence
       motion. Given that [Tillman] had already filed his direct
       appeal before filing his pro se motion for reconsideration,
       the undersigned denied said motion for reconsideration by
       order dated August 10, 2015.

          On August 19, 2015, Mr. Aitchison filed on [Tillman’s]
       behalf a statement of errors complained of on appeal,
       pursuant to Pennsylvania Rule of Appellate Procedure
       1925(b).   On February 1, 2016, Mr. Aitchison filed a
       praecipe for discontinuance in the Superior Court,
       withdrawing [Tillman’s] direct appeal (2290 EDA 2015).

          On February 25, 2016, Mr. Aitchison filed on [Tillman’s]
       behalf the instant petition pursuant to the [PCRA]. In said
       petition, [Tillman] contended that his guilty plea resulted
       from ineffectiveness on the part of Mr. Grey.

           On April 11, 2016, the Commonwealth filed a response
       to [Tillman’s] PCRA petition, requesting that the petition be
       dismissed on the basis that all of the claims raised in the
       petition were belied by the record and/or were without
       merit. The Commonwealth also contended that [Tillman]
       would, in any event, be unable to present evidence on his
       claims at any evidentiary hearing because the petition
       failed to attach witness certifications as required by 42
       Pa.C.S. §9545(d)(1). On May 3, 2016, [Tillman] filed an
       amended PCRA petition, attaching witness certifications for
       Mr. Grey and for [Tillman] himself.

          Upon review of the record, the undersigned determined
       that [Tillman] was not entitled to PCRA relief. Accordingly,
       on May 10, 2016, the undersigned notified [Tillman],
       pursuant to Pa.R.Crim.P. 907(a), of this court’s intention to
       dismiss his PCRA petition without a hearing. [Tillman] did
       not respond to the court’s Rule 907(a) Notice, and the



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         undersigned entered our final order dismissing [Tillman’s]
         petition on June 8, 2016.

            On July 6, 2016, Mr. Aitchison filed on [Tillman’s] behalf
         a timely appeal to the Superior Court of Pennsylvania. By
         order dated July 7, 2016, the undersigned directed Mr.
         Aitchison to file a statement of the errors complained of on
         appeal, pursuant to Pennsylvania Rule of Appellate
         Procedure 1925(b).

            On August 1, 2016, Mr. Aitchison filed a statement
         expressing his intention to file an Anders/McClendon
         brief in lieu of filing a statement of errors complained of on
         appeal.

Opinion, 8/8/16, at 1-2.

      Before we may address the merits of Tillman’s appeal, we must

determine whether his PCRA counsel has satisfied the requirements for

withdrawal under Turner/Finley.       Counsel must “file a ‘no-merit’ letter

detailing the nature and extent of his review and list[ing] each issue the

petitioner wishes to have examined, explaining why those issues are

meritless.”   Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super.

2012) (internal citation omitted).    Counsel also must serve copies of the

petition to withdraw and no-merit letter on the petitioner and advise the

petitioner that he or she has the right to proceed pro se or with privately

retained counsel.     Commonwealth v. Widgins, 29 A.3d 816, 818

(Pa.Super. 2011).

      In his petition to withdraw, PCRA counsel states that he “conducted a

conscientious examination of the record,” interviewed Tillman, and “reviewed




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case law and legal theories provided by” Tillman.          Pet. to Withdraw as

Counsel for Appellant at ¶ 5.3             PCRA counsel stated he reached the

determination that the appeal is frivolous and is without basis in law or fact.

Id. ¶ 6. PCRA counsel also mailed a copy of the petition and brief to Tillman

and informed him that, if he wished to continue the appeal, Tillman could

retain private counsel or proceed without counsel.        Id. at ¶ 7.   Further,

counsel’s Turner/Finley brief filed with this Court explained why the issue

raised in the PCRA petition lacked merit.        We conclude that PCRA counsel

has complied with the dictates of Turner/Finley. Therefore, we will address

the issues raised in the Turner/Finley brief and Tillman’s pro se response.

       PCRA counsel raises the following issue in his Turner/Finley brief:

“Whether the trial court erred by dismissing [Tillman’s] petition pursuant to

the [PCRA]?” Turner/Finley Br. at 8. Tillman also filed a pro se response

raising additional issues, which we discuss below.

       Counsel states that Tillman contends that his trial counsel was

ineffective for: failing to ensure he understood the factual basis of the plea;

permitting Tillman to plead guilty to corrupt organizations where the charge

lacked a factual basis; and coercing him to enter a guilty plea by informing



____________________________________________


       3
        Although counsel’s brief states that he interviewed “Mr. Burton” by
phone and reviewed correspondence forwarded by “Mr. Burton,” it appears
that counsel mistakenly referenced “Mr. Burton,” rather than “Mr. Tillman.”
His petition to withdraw confirms that he spoke with Tillman.



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J-S02045-17



him he would receive the maximum sentence if he did not plead guilty.

Turner/Finley Br. at 13.

        Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

        To prevail on an ineffective assistance of counsel claim, the petitioner

must establish: “(1) his underlying claim is of arguable merit; (2) counsel

had no reasonable basis for his action or inaction; and (3) the petitioner

suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014).      To establish the prejudice prong when an appellant

has entered a guilty plea, “the appellant must demonstrate ‘it is reasonably

probable that, but for counsel’s errors, he would not have pleaded guilty and

would have gone to trial.’” Commonwealth v. Timchak, 69 A.3d 765, 770

(Pa.Super. 2013) (quoting Commonwealth v. Rathfon, 899 A.2d 365, 370

(Pa.Super. 2006)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.”        Ousley, 21 A.3d at

1244.    “The failure to prove any one of the three [ineffectiveness] prongs

results in the failure of petitioner’s claim.” Id.

        The PCRA court concluded that Tillman’s ineffectiveness claim lacked

merit. Rule 907 Notice, 5/11/16, at 7-8. The PCRA court noted that at the

guilty plea hearing, Tillman stated that his counsel had reviewed the

discovery and facts with him and that they had discussed the option of

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proceeding to trial. Id. at 7. He stated that he wanted to plead guilty, that

he was making the decision of his own free will, and that no one forced,

threatened, or coerced him to plead guilty.     Id.   The PCRA court further

noted that Tillman signed a written guilty plea colloquy and that he stated on

the record that the answers on the written colloquy were the same as the

answers he would provide in court. Id. at 6. The written questions included

whether he was pleading guilty of his own free will, whether he was satisfied

with his attorney’s representation, and whether he had sufficient time to talk

to his attorney. Id. He responded yes to these written questions. Id. As

the PCRA court noted, Tillman is bound by the statements made in open

court. Id. at 5-6 (citing cases).

      We further note that at the guilty plea hearing, the parties discussed

the counts to which Tillman was pleading guilty and the negotiated sentence

for each count.    N.T., 4/27/15, at 3-5.   The trial court also discussed the

applicable maximum sentences for the crimes at issue.          Id. at 14-17.

Further, the following exchange occurred regarding the charges and the

factual basis for such charges:

         Q. So from April 30th of 2013 through March 31st of
         2014, you were trafficking throughout Montgomery
         County; is that correct?

         A. Yes.

         Q. Primarily heroin but also crystal methamphetamine and
         cocaine.

                                     ...



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J-S02045-17


       Q:   You were trafficking heroin, cocaine and crystal
       methamphetamine.

       A: Can I talk to my lawyer?

                                  ...

       (Whereupon, Mr. Grey conferred with [Tillman].)

                                  ...

       Q:   Mr. Tillman, you were trafficking three controlled
       substances: Heroin, cocaine and methamphetamine?

       A: Heroin.

       Q: Are you saying that you were only trafficking heroin?

       A: Yes.

       Q. Now, there was a search warrant conducted at the
       apartment at Theresa Hilary’s, 487 West King Street?

       A. Yes.

       Q. Are you familiar with that address?

       A. Yes

       Q. And were you using that as a base of your drug
       trafficking in Pottstown, in the Bright Hope Community?

       A. No.

       COURT: Am I to understand then that for all the Counts
       that the man is pleading guilty to his suggestion on the
       record is he was trafficking heroin? My understanding is
       that the conceivable maximum just climbed, because you
       explained to him what they were for heroin, have you not?

       [Assistant District Attorney (“ADA”)]: I have – I have
       explained it to him, yes, Your Honor. But he’s pleading to
       Counts open for cocaine and methamphetamine.

       (Whereupon, Mr. Grey and [the ADA] conferred off the
       record.)

       (Whereupon, Mr. Grey conferred with [Tillman].)



                                  -8-
J-S02045-17


        Q: Now, Mr. Tillman, I’ll ask you one more time – I know
        you just spoke with your attorney – are you agreeing that
        you, in fact, were trafficking cocaine, methamphetamine
        and heroin.

        A. Yes.

        Q. And there was a significant amount of heroin that was
        stolen from your apartment while juveniles burglarized it
        and that heroin was, in fact, yours and you were trafficking
        that?

        A. Yes.

        Q. And you were found in an hotel room in Philadelphia
        with a significant quantity of heroin and you were
        intending to distribute that as well; is that correct?

        A. Yes.

                                     ...

        Q. And you are also pleading the conspiracy of possession
        with intent to deliver. That goes hand-in-hand with the
        corrupt organization, you were in agreement with Melvin
        Harris, Johnathan Jackson, Anisha Harris, Teresa Hiller you
        were in fact trafficking these drugs across Montgomery
        County?

        A. Yes.

Id. at 18-22.

     We conclude that the record supports the PCRA court’s determination

that Tillman’s ineffectiveness claim lacks merit.   Tillman acknowledged the

factual basis for the plea, including the factual basis for the corrupt

organization charge. Moreover, he stated in his written colloquy and at the

guilty plea hearing that he was not forced, threatened, or coerced to plead

guilty, which would include that he was not coerced into pleading guilty




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J-S02045-17



because his counsel allegedly informed he would receive the maximum

sentence if he did not.

      We next address the claims raised in Tillman’s pro se response:

         A. Whether the     Bill of information filed in this matter
         conformed with     the right to formal notice of charges,
         gu[a]ranteed by     the Sixth Amendment of the Federal
         Constitution and   Article I, Section 9 of the Pennsylvania
         Constitution.

         B. Whether [Tillman] was punished for crimes that w[ere]
         never committed or punished twice for the same offenses
         in violation of the Double Jeopardy Clause of the
         Constitution of the United States and our state’s
         constitution counterpart.

         C. Whether trial counsel was ineffective for inducing
         [Tillman] to enter a negotiated guilty plea that was not
         voluntary, knowing, and intelligent.

         D. Whether appellate counsel was ineffective for not going
         over the record in its entirety and not putting [Tillman’s]
         issues before the trial court.

         E. Whether trial court erred by dismissing [Tillman’s]
         petition pursuant to the Post Conviction Relief Act without
         an evidentiary hearing.

Tillman’s Resp. at 10-11.

      Tillman first maintains that the information filed charged 17 counts of

PWID, with “absolutely no distinction between counts two(2) through

seventeen(17).” Id. at 17. He argues the information failed to provide him

notice of the charges against him, and, therefore, the trial court lacked

jurisdiction to accept the guilty plea. Id. at 21.

      There are “two requirements for subject matter jurisdiction as it

relates to criminal defendants:    the competency of the court to hear the


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J-S02045-17



case, and the provision of formal notice to the defendant of the crimes

charged in compliance with the Sixth Amendment of the United States

Constitution and Article I, Section 9, of the Pennsylvania Constitution.”

Commonwealth v. Jones, 929 A.2d 205, 210 (Pa. 2007). Here, Tillman

does not challenge the trial court’s competency, and we conclude that the

trial court was competent to hear the case, which involved violations of the

criminal code. See id. at 211 (“There is no question that the Philadelphia

County Court of Common Pleas, Criminal Division, was competent to hear

cases relating to criminal conspiracy and violations of the Controlled

Substance Act.”).

       We must next determine whether Tillman had proper notice of the

charges. In Jones, the defendant challenged the trial court’s subject matter

jurisdiction to accept a guilty plea because the bill of information included a

charge that had been dismissed at a preliminary hearing for failure to

establish a prima facie case. 929 A.2d at 206. The Supreme Court noted

that   although   inclusion   of   the   dismissed   conspiracy   charge   on   the

information was a procedural mistake, the defect, in and of itself, did not

divest the trial court of jurisdiction. Id. at 211. The Court noted that the

defendant did not claim the information failed to provide formal and specific

accusation of the conspiracy charge. Id. at 212. The Court concluded that

the defendant had notice of the charges, reasoning that: the defendant and

his counsel “were well aware of the charges, including conspiracy, as they

negotiated a plea bargain with the Commonwealth,” id. at 212, and the

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J-S02045-17



colloquy included a recitation of the facts, the criminal charges at issue, and

the relevant sentences contained in the plea bargain, id.               The Court,

therefore, concluded that the Commonwealth had provided formal and

specific accusation of the crimes and the procedural flaw in the information

did not result in a lack of subject matter jurisdiction. Id. The Court held

that, because the trial court had jurisdiction to accept the guilty plea, the

defendant waived all claims or procedural deficiencies by tendering his plea.

Id.

       Here, although the information did not provide specific factual details

for each count, Tillman similarly had notice of the charges to which he pled

guilty. A 42-page affidavit of probable cause detailing the “Edward Tillman

drug trafficking organization” accompanied the complaint.4           Further, as in

Jones, Tillman and trial counsel were able to negotiate a plea agreement

with the Commonwealth. At the guilty plea hearing, Tillman admitted to all

charges to which he pled guilty, including the PWID charges; agreed to the

negotiated sentence for each count; acknowledged the applicable maximum

sentences for each count; and agreed to the recitation of facts. Accordingly,

Tillman had notice of the charges and the trial court had subject matter

jurisdiction to accept the guilty plea.        Further, because the trial court had


____________________________________________


       4
        The affidavit of probable cause accompanied the complaint, which
was initiated on May 19, 2014. An information was later filed on November
21, 2014.



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J-S02045-17



jurisdiction to accept the guilty plea, Tillman has waived any challenge to

any alleged procedural flaw in the information.     See Jones, 929 A.2d at

211-12.

      Tillman next maintains the sentence imposed by the trial court violated

his double jeopardy rights.     He argues he did not agree to the facts

supporting all PWID charges because at the guilty plea hearing the

Commonwealth only mentioned the heroin stolen from Tillman’s apartment

and the heroin found in his hotel room.         Further, similar to his prior

argument, he maintains that the court lacked jurisdiction because he did not

have formal notice of the facts underlying the offenses.         This claim is

meritless.

      At the guilty plea hearing, the Commonwealth delineated the counts to

which Tillman was pleading guilty and the sentences he would receive for

each count.    N.T., 4/27/15, at 3-5.     Tillman’s counsel agreed with the

Commonwealth’s recitation, id. at 5, and Tillman stated he had discussed

the discovery and facts with his counsel, id. at 7.    Moreover, Tillman not

only admitted to the heroin located in his apartment and hotel room, he also

admitted to trafficking cocaine, methamphetamine, and heroin. Id. at 13-

23.   Further, as discussed above, Tillman had formal notice of the facts

underlying the offenses. Accordingly, Tillman’s claim does not merit relief.

      In his third issue, Tillman claims that trial counsel was ineffective for

inducing him to enter an unknowing and involuntary plea.              Counsel




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addressed this claim in his Turner/Finley brief and, as discussed above, we

agree with counsel that the claim is meritless.

      Tillman next argues that his appellate counsel, who also is his PCRA

counsel, was ineffective for failing to review the record and for failing to

raise the issues raised in his pro se response.     This argument appears to

include a claim that PCRA counsel was ineffective for failing to raise in the

PCRA petition his own ineffectiveness for failing to consult with Tillman prior

to withdrawing his direct appeal. Had Tillman raised this claim in his PCRA

petition, he likely would have been entitled to a hearing to determine

whether counsel had obtained Tillman’s consent prior to withdrawing the

direct appeal. See Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)

(noting “[w]hile a defendant has the ability to relinquish his appellate rights,

this can only be accomplished through a knowing, voluntary and intelligent

waiver” and restoring appellate rights where defendant forfeited rights only

because he was informed he would be resentenced, where such resentencing

would have been invalid). However, we cannot review this claim because a

claim of PCRA counsel ineffectiveness cannot be raised for the first time on

appeal. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en

banc).

      In his last issue, Tillman claims that the PCRA court erred by

dismissing his petition without a hearing. “A PCRA petitioner is not entitled

to an evidentiary hearing as a matter of right, but only where the petition

presents genuine issues of material fact. A PCRA court's decision denying a

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claim without a hearing may only be reversed upon a finding of an abuse of

discretion.”   Commonwealth v. Walker, 36 A.3d 1, 17 (Pa. 2011)

(citations omitted).   Tillman’s PCRA petition claimed his trial counsel was

ineffective for permitting him to enter an unknowing, unintelligent, and

involuntary plea. As discussed above, this issue lacked merit. Further, it did

not present a genuine issue of material fact.   Accordingly, the PCRA court

did not abuse its discretion in denying the petition without an evidentiary

hearing.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2017




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