J-S33006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH TOLBERT                              :
                                               :
                       Appellant               :   No. 1168 EDA 2017

                   Appeal from the PCRA Order March 13, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013923-2013


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 12, 2018

        Keith Tolbert appeals, pro se, from the order of the Court of Common

Pleas of Philadelphia County, entered March 13, 2017, dismissing his first

petition filed under the Post Conviction Relief Act (“PCRA”)1 without an

evidentiary hearing. On April 9, 2015, Tolbert entered into a negotiated plea

to the charges of third-degree murder, conspiracy to commit robbery, and

abuse of corpse.2        On May 1, 2015, the court sentenced Tolbert to an

aggregate term of 22 to 44 years’ imprisonment. On appeal, Tolbert raises

several claims regarding ineffective assistance of counsel.       Based on the

following, we affirm.
____________________________________________


   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541–9546.
2   18 Pa.C.S. §§ 2502(c), 903, and 5510, respectively.
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      The PCRA court set forth the underlying factual history as follows:

      Keith Tolbert was running a prostitution ring out of 220 South 11th
      Street, Apartment 26 in Philadelphia.        On August 27, 2013
      Francis Zarzycki     paid    two    of    [Tolbert]’s   prostitutes,
      Stephanie Foulke and Angel Weston, for sex and drugs. N.T. 4-9-
      2015, pp. 8-9. The victim left the apartment for a while with the
      promise to return shortly. During this time, Tolbert obtained a
      handheld taser from Ms. Foulke, then went to the local Walgreens
      to purchase duct tape and other items. Tolbert returned to the
      apartment and waited for Zarzycki. A video surveillance tape
      shows the victim returning to the apartment. A few minutes later,
      [Tolbert] emerges from the bedroom, tases Zarzycki and a
      struggle ensues. N.T. 4-9-2015, pp. 9-10. Everyone becomes
      involved in the struggle, and Tolbert directs the women to duct
      tape Zarzycki. With Tolbert on top of the bound victim, he is tased
      at least two more times, until eventually [Foulke, Tolbert, and
      Weston] come to the realization that Zarzycki is no longer
      breathing. Tolbert tells Foulke[] and Weston to leave, that he
      would take care of it. N.T. 4-9-2015, pp. 10-11. Crime scene
      investigators eventually process the scene at which time the blood
      of Mr. Zarzycki was discovered in the bathroom along with gouge
      marks consistent with an axe or hatchet in the bathtub. N.T. 4-
      9-2015, p. 11. On September 3, 2013, the police recovered the
      torso of a human body, missing all four limbs and the head from
      the river. Specific tattoos on the torso provided the basis for the
      identification of the body as being Mr. Zarzycki. DNA later
      confirmed the identity. N.T. 4-9-2015, p. 8.

PCRA Court Opinion, 6/27/2017, at 2-3 (some formatting).

      The trial court also provided the underlying procedural history as

follows:

      On September 5, 2013, Keith Tolbert was arrested and charged
      with murder, robbery, unlawful restraint, theft receiving stolen
      property, possessing the instruments of a crime, false
      imprisonment and abuse of a corpse. [Tolbert] was held for court
      on all charges after a Preliminary Hearing on November 6, 2013.

      A jury was selected and sworn in on April 9, 2015. Prior to any
      testimony being taken, [Tolbert] entered into a negotiated plea to
      the charges of murder of the third degree, abuse of corpse and

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       criminal conspiracy to commit a robbery, in return for an
       aggregate sentence of twenty-two to forty-four years. [Tolbert]
       was sentenced in accordance with the agreement on May 1, 2015.
       On June 10, 2015, [Tolbert] filed a pro se appeal to the Superior
       Court which was dismissed on August 28, 2015.

Id. at 1-2.

       On April 28, 2016, Tolbert filed a timely pro se PCRA petition, in which

he contended trial counsel was ineffective and his plea was unlawfully induced.

PCRA Petition, 4/28/2016, at 2. On June 22, 2016, the PCRA court appointed

counsel to represent Tolbert. On January 19, 2017, PCRA counsel filed a letter

on the record addressed to the PCRA court with the case name, case number,

and “Non-Capital Homicide PCRA Finley[3] Letter-No Merit Letter” in the

reference line (“no-merit letter”).            On January 24, 2017, the PCRA court

entered a notice pursuant to Pa.R.Crim.P. 907 that the PCRA petition “will be

dismissed without further proceedings” on February 13, 2017.

       On January 31, 2017, Tolbert filed pro se objections to the Rule 907

notice, in which he stated he never received a copy of PCRA counsel’s no-

merit letter and, accordingly, does not know why PCRA counsel determined




____________________________________________


3  Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc);
see also Commonwealth v. Muzzy, 141 A.3d 509, 510-511 (Pa. Super.
2016) (requirements for post-conviction counsel to withdraw from
representation); Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.
Super. 2014) (same).




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that all of his claims were meritless.           Objection to Notice Pursuant to

Pa.R.Crim.P. 907, 1/31/2017, at 1 ¶ 1.4

       On March 13, 2017, the PCRA court entered an order dismissing the

PCRA petition. On March 31, 2017, Tolbert filed a pro se notice of appeal to

this Court.     On April 7, 2017, the PCRA court ordered Tolbert to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

within 21 days, and Tolbert complied on April 18, 2017. Tolbert’s concise

statement raises claims that his trial counsel was ineffective. Rule 1925(b)

Statement, 4/18/2017, at ¶¶ 1-2.5 On June 27, 2017, the PCRA court filed

an opinion pursuant to Pa.R.A.P. 1925(a).

       On August 27, 2018, we remanded for a hearing to clarify the status of

PCRA counsel’s representation of Tolbert, because the PCRA court had never

specifically granted nor denied permission for PCRA counsel to withdraw his

appearance in the Rule 907 Notice, in the order of March 13, 2017, or in a

separate order prior to appeal. Following remand, on September 6, 2018, the

PCRA court entered the following order:

       This matter having been remanded for a determination of whether
       [Tolbert] is still represented by counsel, and having reviewed the
       record in its entirety, including the [no-merit letter] filed by
____________________________________________


4  On February 17, 2017, Tolbert also filed a pro se “Objection to Notice of
Finley Letter” in which he challenged the correctness of PCRA counsel’s
conclusion that there was no merit to any allegation that trial counsel was
ineffective. Obj. to Notice of Finley Letter, 2/17/2017, at 1-2.
5  The concise statement does not include any claims of PCRA counsel’s
ineffectiveness. See generally id.


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      [Tolbert]’s then counsel, it is hereby Ordered that [Tolbert]’s PCRA
      counsel was allowed to withdraw as of March 7, 2017, and
      [Tolbert] proceeded pro se.

Order, 8/27/2018. Accordingly, this matter is now properly before us.

      Tolbert now raises the following issues on appeal:

      [1.] Did court appointed PCRA counsel provide an ineffective
      assistance of counsel in violation of the Sixth Amendment and the
      Pennsylvania Rules of Criminal Procedure?

      [2.] Did the [PCRA] court err by dismissing the PCRA petition
      without conducting an evidentiary hearing given the guilty plea
      was entered involuntarily as a result of trial counsel’s
      ineffectiveness?

      [3.] Does the [PCRA] court’s dismissal of the PCRA petition
      without an evidentiary hearing constitute a due process violation?

Tolbert’s Brief at 6 (issues reordered to facilitate disposition).

      Preliminarily, we note that, according to Rule 1925(b), “[i]ssues not

included in the Statement . . . are waived.”          Pa.R.A.P. 1925(b)(4)(vii).

Tolbert’s concise statement did not include any claims of PCRA counsel’s

ineffectiveness, and his first claim on appeal thus is waived.

      In his next challenge, Tolbert contends trial counsel was ineffective and

“failed to zealously act in [his] advocacy.” Tolbert’s Brief at 11; see also id.

at 9-11. Tolbert alleges counsel’s “complete and utter failure to conduct a

reasonable investigation prejudiced [him] by compelling him to enter a guilty

plea given a defense had not been perfected.” Id. at 14-15. He argues trial




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counsel “fail[ed] to perform the rudimentary task of interviewing the

cooperating co-defendants[.]” Id. at 15.6

       In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

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

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).

       Counsel is presumed to have been effective. To overcome this
       presumption, a PCRA petitioner must plead and prove that: (1)
       the underlying legal claim is of arguable merit; (2) counsel’s action
       or inaction lacked any objectively reasonable basis designed to
       effectuate his client’s interest; and (3) prejudice, to the effect that
       there was a reasonable probability of a different outcome if not
       for counsel’s error.

Id. (citation and internal quotation marks omitted). “A failure to satisfy any

of the three prongs of [this] test requires rejection of a claim of ineffective

assistance of trial counsel[.]”      Commonwealth v. Chmiel, 30 A.3d 1111,

1128 (Pa. 2011). The right to effective assistance of counsel extends to the

plea process. Commonwealth v. Wah, 42 A.3d 335, 338-339 (Pa. Super.

2012).



____________________________________________


6 In his brief to this Court, Tolbert also maintains trial counsel was ineffective
for failing to investigate and to interview “Anthony Maresca, Mr. Sweeney
(Maresca’s step-father), and Foulke’s boyfriend ‘Rob’.” Tolbert’s Brief at 15;
see also id. at 15-16. However, Tolbert never referenced any of these
individuals in his PCRA petition, objections to the Rule 907 notice, or Objection
to Notice of Finley Letter. “Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
Accordingly, any issue concerning trial counsel’s actions regarding these
individuals is waived.

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     “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); accord Commonwealth v. Wilcox, 174 A.3d 670, 674 (Pa. Super.

2017), appeal denied, 184 A.3d 545 (Pa. 2018).

     Pa.R.Crim.P. 590, which pertains to procedures for entering pleas
     and plea agreements, requires pleas to be entered in open court,
     and specifies that the trial judge must make inquiries, on the
     record, to determine whether the plea is voluntarily and
     understandingly tendered. The comments to Pa.R.Crim.P. 590
     provide that at a minimum, the court should make the following
     inquiries:

        (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 that 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?

        (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.

Commonwealth v. McGarry, 172 A.3d 60, 66-67 (Pa. Super. 2017)

(footnote omitted), appeal denied, 185 A.3d 966 (Pa. 2018).




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      Here, Tolbert acknowledged on the record that he understood the

charges to which he was pleading guilty, the facts summarized by the

Commonwealth that supported his plea, his right to trial by jury, and the

presumption of innocence.     Colloquy for Plea of Guilty / Nolo Contendere,

4/9/2015; N.T., 4/9/2015, at 3-5, 7-12. Tolbert acknowledged that he had

signed the following written colloquy and had reviewed it with his attorney,

id. at 4:

      I understand the nature of the charges to which I am pleading
      guilty/nolo contendere.

      I acknowledge that there is a factual basis for this plea.

      I understand that I have a right to a trial by jury.

      I understand that I am presumed innocent until I am proven
      guilty.

      I am aware of the permissible range of sentences and/or fines for
      the offense(s) with which I am charged.

      I understand that the judge is not bound by the terms of any plea
      agreement between myself, my attorney, and the attorney for the
      Commonwealth unless the judge accepts such agreement.

      I knowingly, voluntarily, and intelligently make this plea of Guilty.

Colloquy for Plea of Guilty / Nolo Contendere, 4/9/2015. During the plea, the

trial court informed Tolbert that he did not have to plead guilty but could plead

innocent and have a jury trial, and Tolbert stated that he understood. N.T.,

4/9/2015, at 4-5. The trial court also explained that the negotiated aggregate

sentence was 22 to 44 years of incarceration, which is below the maximum

and, accordingly, a legal sentence, which Tolbert asserted that he understood.

Id. at 6. When asked if he was “satisfied” with trial counsel’s representation,


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Tolbert answered affirmatively. Id. The Commonwealth also asked whether

Tolbert understood that, had he gone to trial, he could have faced life

imprisonment without parole, and he answered affirmatively. Id. at 7. The

inquiries required by McGarry, 172 A.3d at 66-67, and Pa.R.Crim.P. 590,

were   completed,    and   Tolbert’s   plea   agreement    was   voluntarily   and

understandingly tendered.

       Tolbert is bound by the statements he made in open court while under

oath and cannot now make contrary assertions that his plea was entered

involuntarily or that he was dissatisfied with trial counsel. See Yeomans, 24

A.3d at 1047.     As he cannot demonstrate that his plea was involuntarily

entered, he also cannot establish there was a reasonable probability of a

different outcome, and, hence, he cannot prove prejudice. See Andrews,

158 A.3d at 1263. Without establishing prejudice, Tolbert also cannot satisfy

one of the prongs of the test to establish ineffective assistance of trial counsel,

and his second issue on appeal is meritless. See Chmiel, 30 A.3d at 1128.

       As for Tolbert’s remaining issue, i.e., the PCRA court’s dismissal of the

PCRA petition without an evidentiary hearing constituted a due process

violation, Tolbert’s Brief at 19-20, we observe that “[a]n evidentiary hearing

is not mandatory for all claims raised in a PCRA petition.” Commonwealth

v. Clark, 961 A.2d 80, 94 (Pa. 2008). “Counsel will not be deemed ineffective

for failing to raise a meritless claim. By extension, the PCRA court did not err

in denying the claim without a hearing.” Commonwealth v. Sneed, 45 A.3d

1096, 1115 (Pa. 2012) (internal citation omitted). Here, Tolbert’s allegation

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of ineffective assistance of trial counsel was without merit, and the PCRA court

thereby properly denied Tolbert’s PCRA petition without an evidentiary

hearing. See id.; Clark, 961 A.2d at 94.

      Hence, all of the challenges raised by Tolbert on appeal merit no relief.

We therefore affirm the order of the PCRA court.

      Order affirmed.

      Judge McLaughlin joins this memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/18




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