J-S24026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellee

                  v.

TARIQ MAVEN,

                       Appellant                 No. 2731 EDA 2014


        Appeal from the PCRA Order entered September 18, 2014,
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0003598-2011


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

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

     Tariq Maven (“Appellant”) appeals from the order denying his first

petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

sections 9541-46. We affirm.

     The PCRA court summarized the pertinent facts as follows:

        On July 19th, 2010, at approximately 10:30 p.m.,
        [Appellant,] along with codefendant[s] Eugene Mincey and
        Shaku Maven went looking for the complainant, the victim
        in this case Akiem. . .Smith for the purposes of shooting
        him.    At that time they spotted Akiem Smith driving
        towards the area of 500 Pierce Street in his Cadillac.
        [Appellant] and Eugene Mincey opened fire on Akiem
        Smith. After they shot him, the three of them ran away.
        [Appellant] was identified by a witness who was at the
        street at the time of the murder. [Appellant] was brought
        in for questioning and he did give a statement admitting
        his role in this incident and naming his codefendants. An
        autopsy was performed on Akiem Smith. At the time of
        his death he was 19 years-old. Dr. Edwin Lieberman
        would testify that the cause of death was homicide.
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        [Appellant] did not have a valid license to carry a firearm
        in Philadelphia.

PCRA Court Opinion, 9/18/14, at 2 (citing N.T., 11/30/12, at 26-27).       On

November 10, 2010, Appellant was arrested and charged with criminal

homicide and related offenses.

     On November 30, 2012, Appellant entered into a negotiated plea to

third-degree murder, conspiracy, and firearms not to be carried without a

license. In return, the Commonwealth recommended an aggregate sentence

of twenty-five to fifty years of imprisonment. That same day, the trial court

sentenced Appellant in accordance with the plea agreement. Appellant filed

neither a post-sentence nor a direct appeal.

     On March 1, 2013, Appellant filed a timely pro se PCRA petition, as

well as a supplemental petition on May 10, 2013. The PCRA court appointed

counsel on October 13, 2013, and PCRA counsel filed an amended PCRA

petition on March 28, 2014. On July 30, 2014, the Commonwealth filed a

motion to dismiss.     On August 13, 2014, after hearing the parties’

arguments, the PCRA court denied Appellant’s request for an evidentiary

hearing. That same day, the PCRA court issued Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s amended PCRA petition.        Appellant filed a

response on August 29, 2014. By order entered September 18, 2014, the

PCRA court denied Appellant’s petition.      This timely appeal follows.   The

PCRA court did not require Pa.R.A.P. 1925 compliance.

     Appellant raises the following issue:



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         1) Whether the PCRA court violated paragraph (1) of
         Pa.R.Crim.P. 907 by summarily dismissing [Appellant’s
         PCRA] petition without [an] evidentiary hearing, in light of
         counsel’s failure to raise and/or preserve [an objection to]
         the [trial] court’s defective plea colloquy, where there was
         a genuine issue of material fact as to whether [Appellant’s]
         failure to understand his presumption of innocence induced
         him to enter into a guilty plea.

Appellant’s Brief at 5.

      In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the findings of the PCRA court, “but its legal determinations are

subject to our plenary review.”   Id.   A PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      To be entitled to relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that the conviction or sentence

arose from one or more of the errors enumerated in section 9543(a)(2) of

the PCRA. One such error involves the ineffectiveness of counsel. To obtain

relief under the PCRA premised on a claim that counsel was ineffective, a

petitioner must establish by a preponderance of the evidence that counsel's

ineffectiveness so undermined the truth-determining process that no reliable


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adjudication of guilt or innocence could have taken place.    Johnson, 966

A.2d at 532.     “Generally, counsel’s performance is presumed to be

constitutionally adequate, and counsel will only be deemed ineffective upon

a sufficient showing by the petitioner.” Id. This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his or her action or inaction; and (3)

the petitioner was prejudiced by counsel's act or omission. Id. at 533. A

finding of "prejudice" requires the petitioner to show "that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different." Id. Counsel cannot be

deemed ineffective for failing to pursue a meritless claim. Commonwealth

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied,

852 A.2d 311 (Pa. 2004).

     When asserting a claim of ineffectiveness of counsel in the context of a

guilty plea, a defendant must show that plea counsel’s ineffectiveness

induced him to enter the plea. Commonwealth v. Johnson, 875 A.2d 328,

331 (Pa. Super. 2005). We have stated:

            Because a plea of guilty effectively waives all non-
        jurisdictional defects and defenses, after sentencing,
        allegations of ineffectiveness of counsel in this context
        provide a basis for withdrawal of the plea only where there
        is a causal nexus between counsel’s ineffectiveness, if any,
        and an unknowing or involuntary plea. The guilty plea
        hearing becomes the significant procedure under scrutiny.
        The focus of the inquiry is whether the accused was misled
        or misinformed and acted under that misguided influence
        when entering the guilty plea.

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Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993)

(citations omitted).

      With regard to the validity of guilty pleas, our Court has reiterated:

            Pennsylvania has constructed its guilty plea procedures
         in a way designed to guarantee assurance that guilty pleas
         are voluntarily and understandingly tendered. The entry of
         a guilty plea is a protracted and comprehensive proceeding
         wherein the court is obliged to make a specific
         determination after extensive colloquy on the record that a
         plea is voluntarily and understandingly tendered.

Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011) (citing

Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)).

      Rule 590 of the Pennsylvania Rules of Criminal Procedure delineates a

trial court’s acceptance of a guilty plea. It first requires that a guilty plea be

offered in open court.    The rule then provides a procedure to determine

whether the plea is voluntarily, knowingly, and intelligently entered.         As

noted in the Comment to Rule 590, at a minimum, the trial court should ask

questions to elicit the following information:

         (1)   Does the defendant understand the nature of the
               charges to which he or she is pleading guilty or nolo
               contendere?

         (2)   Is there a factual basis for the plea?

         (3)   Does the defendant understand the he or she has
               the right to trial by jury?

         (4)   Does the defendant understand that he or she is
               presumed innocent until found guilty?

         (5)   Is the defendant aware of the permissible range of
               sentences and/or fines for the offenses charged?


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          (6)    Is the defendant aware that the judge is not bound
                 by the terms of any plea agreement tendered unless
                 the judge accepts such agreement?

Pa.R.Crim.P. 590, Comment.1

       In Yeomans, we explained:

          In order for a guilty plea to be constitutionally valid, the
          guilty plea colloquy must affirmatively show that the
          defendant understood what the plea connoted and its
          consequences.     This determination is to be made by
          examining the totality of the circumstances surrounding
          the entry of the plea. Thus, even though there is an
          omission or defect in the guilty plea colloquy, a plea of
          guilty will not be deemed invalid if the circumstances
          surrounding the entry of the plea disclose that the
          defendant had a full understanding of the nature and
          consequences of his plea and that he knowingly and
          voluntarily decided to enter the plea.

Yeomans, 24 A.3d at 1047 (citing Commonwealth v. Fluharty, 632 A.2d

312, 314-15)).       Additionally, our Supreme Court has held that our trial

courts, when considering the totality of the circumstances surrounding a

guilty plea, may consider a wide array of relevant evidence, including

transcripts from other proceedings, off-the-record communications with

counsel, and written plea agreements. Commonwealth v. Allen, 732 A.2d

582, 589 (Pa. 1999).

       Here, Appellant claims that the PCRA court erred in “summarily

dismissing [his PCRA] petition for relief without [an] evidentiary hearing, in

____________________________________________


1
  The Comment also includes a seventh proposed question that is only
applicable when a defendant pleads guilty to murder generally.



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light of the [] defective plea colloquy when there was a genuine issue of

material fact whether [A]ppellant understood and was advised by counsel

that he was presumed innocent until proven guilty[.]” Appellant’s Brief at 9.

Appellant supports his assertion by noting that the trial court did not use the

term “presumed innocent until proven guilty” during its oral colloquy with

him. Id. at 15.

      In rejecting Appellant’s claim, the PCRA court, which also sat as the

trial court, reasoned:

            In Commonwealth v. Best, 480 A.2d 1245, 1247 (Pa.
         Super. 1984), [the defendant] pled guilty to Attempted
         Murder and related charges. Superior Court held that the
         mere failure of defendant’s counsel to use the words
         “presumption of innocence” did not render the plea
         colloquy defective. The court explained that the “essential
         ingredients” of the concept of presumption of innocence
         were explained to the defendant.        Id.   The colloquy
         explained that the Commonwealth had the burden to prove
         the defendant guilty beyond a reasonable doubt and that
         the jury would have to be unanimous to convict. Id.
         Under the totality of the circumstances the comprehensive
         colloquy allowed the defendant to make a voluntary,
         knowing, and intelligent decision to enter into a guilty
         plea; thus, the defendant could not make a showing of
         prejudice on the order of manifest injustice. Id.; see also
         Commonwealth v. Siebert, 451 A.2d 552, 554 (Pa.
         Super. 1982).

            [Appellant] knew that he was presumed innocent until
         proven guilty.     [He] reviewed a written guilty plea
         explaining his rights, including his presumption of
         innocence.    N.T., 11/30/2012 at 19; Exhibit 1.       Trial
         counsel reviewed the written colloquy with [Appellant]
         after which [Appellant] signed the colloquy. Id. at 19, 23,
         26. [Appellant] confirmed during the oral colloquy that he
         knew his rights. Id. at 19-20. It is clear that [Appellant]
         was informed of his presumption of innocence.

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           This Court conducted a thorough and detailed oral
        colloquy with [Appellant] before accepting his guilty plea.
        During the plea colloquy this Court explained the nature of
        the charges against [Appellant], including the elements of
        the offenses, the theory of conspiratorial liability, and the
        maximum penalties to which [Appellant] was subject.
        N.T., 11/30/2012 at 9-10, 15-17. This Court highlighted
        [Appellant’s] jury rights. Id. at 20-23. Similar to the
        court in Best and Siebert, this Court explained to
        [Appellant] that the Commonwealth had the burden of
        proving every element of the crime and proving
        [Appellant] guilty beyond a reasonable doubt. Id. at 22.
        This Court advised [Appellant] that the jury had to be
        unanimous in its decision to find him guilty. Id. at 21.
        Finally,  this   Court    informed   [Appellant]      of  the
        consequences of entering a guilty plea. Id. at 23.

           The “essential ingredients” of the concept of
        presumption of innocence were conveyed to [Appellant]
        during the oral colloquy, even though the exact words
        [“presumption of innocence”] were not spoken. The oral
        colloquy was in addition to the written colloquy which also
        informed [Appellant] of his presumption of innocence. The
        plea colloquy, both oral and written, conveyed all the
        necessary information for [Appellant] to make a knowing,
        intelligent, and voluntary decision. Trial counsel was not
        ineffective when he did not object to this Court’s omission
        of the phrase “presumption of innocence.” This claim is
        meritless.

PCRA Court Opinion, 9/18/14, at 4-6.

     Our review of the certified record supports the PCRA Court’s

conclusions.   Appellant contends that the PCRA court erred in concluding

that he knew he was presumed innocent until proven guilty. According to

Appellant, “[b]ecause [t]he circumstances surrounding [his] signing of the

written colloquy and counsel’s purported explanation of the same to [him]




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was conducted off the record[,]” a factual issue arose, which necessitated an

evidentiary hearing. Appellant’s Brief at 16-17. We disagree.

      Although Appellant cites case law within his brief that looks to the

“totality of the circumstances”, he fails to explain how the cases apply to the

facts underlying his petition for PCRA relief.   See Appellant’s Brief at 14.

Specifically, Appellant cites Allen, supra, which permits the trial court to

rely on off-the-record communications with counsel.        Id.   Because the

record before us refutes Appellant’s claim that he has raised a material issue

of fact, we find that the PCRA court did not err in dismissing Appellant’s

PCRA petition without a hearing. Jordan, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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