J-S19025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ROBERT MERK


                            Appellant                   No. 2337 EDA 2014


                   Appeal from the PCRA Order July 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001517-2009
                                          CP-51-CR-0015427-2009


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                              FILED APRIL 07, 2015

        Appellant Robert Merk appeals from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his petition

filed for relief pursuant to the Post Conviction Relief Act (“PCRA”). 1     We

affirm.

        The relevant facts and procedural history of this appeal are as follows.

On January 26, 2009, at approximately 3:00 a.m., Appellant entered a

Wawa store, approached the cashier, and directed him to give Appellant all

of the money in the register.           Appellant told the cashier he had a gun

pointed at him, and the cashier gave him the contents of the register, about

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
J-S19025-15



two hundred dollars.    After the cashier handed him the money, Appellant

demanded a carton of Kool cigarettes, which the cashier also gave him.

Appellant then got into a dark-colored Chevy pick-up truck.        The Wawa

manager called 9-1-1, and Officer Buckman responded to the location and

apprehended Appellant in his vehicle.

      On October 7, 2009, at approximately 7:00 a.m., Appellant entered a

7-11 store, approached the cashier, and demanded the cashier give him the

contents of the register.   The cashier told Appellant that he was standing

next to a police officer, and Appellant fled the store. Officer Mather followed

Appellant and watched him get into a Chevy Lumina. Officer Mather wrote

down the license plate number, and discovered the vehicle was registered to

Appellant’s home. Officers later apprehended Appellant.

      Several witnesses identified Appellant shortly after each incident.

Wawa video surveillance captured the January 26, 2009 event, and

Appellant admitted to the above facts during Appellant’s guilty plea and

sentencing. See N.T., 3/27/12, at 13-19.

      On March 27, 2012, Appellant entered a non-negotiated guilty plea to

two counts of both robbery and possessing an instrument of crime (“PIC”)

for his combined offenses. The court sentenced Appellant to an aggregate

sentence of 12½-25 years’ incarceration. On November 20, 2012, Appellant

filed a timely pro se PCRA petition. The court appointed counsel, who filed a




                                     -2-
J-S19025-15



no-merit letter pursuant to Turner2/Finley3 with a petition to withdraw on

May 28, 2014. The court granted counsel’s petition and issued a Rule 907

notice of intent to dismiss the PCRA petition without a hearing. On June 26,

2014, Appellant filed a response to the Rule 907 notice. On July 10, 2014,

the court denied Appellant’s PCRA petition without a hearing. On August 4,

2014, Appellant filed a notice of appeal. The court did not order Appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).       On September 17, 2014, the court filed its Pa.R.A.P.

1925(a) opinion.4

       Appellant raises the following issues for our review:

          1. WHETHER PCRA COUNSEL WAS INEFFECTIVE FOR
          FAILING   TO   PROPERLY    REVIEW  AND  PRESENT
          MERITORIOUS ISSUES, INCLUDING SPECIFICALLY THE
          INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL (“IATC”)
          CLAIMS WITHOUT AN EVIDENTIARY HEARING FOR
          [APPELLANT’S] TESTIMONY TO FULLY EXPLAIN WHAT
          ISSUE HE TAKES WITH TRIAL/PLEA COUNSEL?

          2. WHETHER TRIAL/PLEA COUNSEL PROVIDED DEFICIENT
          PREPARATION FOR TRIAL PREJUDICING [APPELLANT] BY
          REFUSING TO PRESENT A VALID ALIBI DEFENSE?

          3. WHETHER THE FAILURE TO NEGOTIATE A PLEA, ADVISE
          [APPELLANT] TO ENTER AN OPEN GUILTY PLEA, AND

____________________________________________


2
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
3
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).
4
 Appellant filed a “Motion to Strike 1925(a) Opinion,” which the court denied
on October 28, 2014.



                                           -3-
J-S19025-15


         OTHERWISE CHALLENGE IMPOSITION OF THE INSTANT
         MANDATORY SENTENCE CONSTITUTED IATC?

         4. WHETHER TRIAL/PLEA COUNSEL’S FAILURE TO FILE A
         REQUESTED POST-SENTENCE MOTION TO WITHDRAW THE
         PLEA CONSTITUTED IATC?


      Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”   Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

      To be eligible for PCRA relief, a petitioner must plead and prove, by a

preponderance of the evidence, that his conviction or sentence was the

result of one or more of the following:

               (i) A violation of the Constitution of this
            Commonwealth or the Constitution or laws of the United
            States which, in the circumstances of the particular
            case, so undermined the truth-determining process that
            no reliable adjudication of guilt or innocence could have
            taken place.

                (ii) Ineffective assistance of counsel which, in the
            circumstances of the particular case, so undermined the
            truth-determining process that no reliable adjudication
            of guilt or innocence could have taken place.

                (iii) A plea of guilty unlawfully induced where the
            circumstances make it likely that the inducement
            caused the petitioner to plead guilty and the petitioner
            is innocent.




                                     -4-
J-S19025-15


                 (iv) The improper obstruction by government officials
              of the petitioner's right of appeal where a meritorious
              appealable issue existed and was properly preserved in
              the trial court.

                 (v) Deleted.

                  (vi) The unavailability at the time of trial of
              exculpatory evidence that has subsequently become
              available and would have changed the outcome of the
              trial if it had been introduced.

                 (vii) The imposition of a sentence greater than the
              lawful maximum.

                 (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2).

       In all four issues on appeal, Appellant argues that ineffective

assistance of counsel entitles him to a new trial. We disagree.

       This Court follows the Pierce5 test adopted by our Supreme Court to

review claims of ineffective assistance of counsel:

          When a petitioner alleges trial counsel’s ineffectiveness in
          a PCRA petition, he must prove by a preponderance of the
          evidence that his conviction or sentence resulted from
          ineffective   assistance   of   counsel    which,     in   the
          circumstances of the particular case, so undermined the
          truth-determining process that no reliable adjudication of
          guilt or innocence could have taken place. We have
          interpreted this provision in the PCRA to mean that the
          petitioner must show: (1) that his claim of counsel’s
          ineffectiveness has merit; (2) that counsel had no
          reasonable strategic basis for his action or inaction; and
          (3) that the error of counsel prejudiced the petitioner-i.e.,
          that there is a reasonable probability that, but for the error
____________________________________________


5
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



                                           -5-
J-S19025-15


         of counsel, the outcome of the proceeding would have
         been different. We presume that counsel is effective, and
         it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted).          The

petitioner bears the burden of proving all three prongs of this test.

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001).                 “If an

appellant fails to prove by a preponderance of the evidence any of the

Pierce prongs, the Court need not address the remaining prongs of the

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),

appeal denied, 990 A.2d 727 (2010) (citation omitted).

      Appellant fails to prove any prongs of the Pierce test for his

ineffective assistance of counsel claims. For purposes of disposition, we will

address Appellant’s third issue first. In his third issue, Appellant argues trial

counsel was ineffective for advising him to enter an open guilty plea.

Further, he alleges his guilty plea was involuntary because he did not know

that his sentences could be imposed consecutively.         Appellant claims his

involuntary guilty plea has resulted in manifest injustice, which entitles him

to a new trial. We disagree.

      “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.



                                      -6-
J-S19025-15


Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v.

Allen, 557 Pa. 135, 732 A.2d 582 (1999)). Whether a plea was voluntary

“depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.” Commonwealth v. Lynch, 820

A.2d 728, 733 (Pa.Super.2003), appeal denied, 835 A.2d 709 (Pa.2003)

(quoting Hickman, 799 A.2d at 141).

      “[T]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

made.”   Commonwealth v. Willis, 68 A.3d 997, 1001 (Pa.Super.2013)

(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.

2010) (alterations in original)).   A guilty plea colloquy must “affirmatively

demonstrate the defendant understood what the plea connoted and its

consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d

497, 501 (Pa.Super.1998)).     After a defendant enters a guilty plea, “it is

presumed that he was aware of what he was doing, and the burden of

proving involuntariness is upon him.”      Id. (quoting Commonwealth v.

Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).

      Whether a defendant is competent to plead guilty “requires a finding

that the defendant comprehends the crime for which he stands accused, is

able to cooperate with his counsel in forming a rational defense, and has a

rational and factual understanding of the proceedings against him.” Willis,


                                     -7-
J-S19025-15


68 A.3d at 1002 (citing Commonwealth v. Turetsky, 925 A.2d 876

(Pa.Super.2007)).    “[T]he mere fact [a defendant] was taking prescribed

psychotropic medication at the time of [a] plea does not, of itself, result in

the conclusion he was unable to enter a knowing, voluntary, and intelligent

guilty plea.” Id., at 1009.

      Here, the court conducted a thorough colloquy before Appellant

entered his guilty plea.   See N.T., at 3-12.     Appellant was competent to

enter his plea and stated that the only medication he was taking, Strattera,

for depression, did not affect his understanding of the proceedings.       The

court explained to Appellant that he could go to jail for up to sixty years and

that he did not have to plead guilty.        Appellant demonstrated that he

entered the plea with a full understanding of what it connoted and its

consequences.    See Willis, supra.    Based on Appellant’s responses to its

questions, the court was satisfied that Appellant entered the guilty plea

knowingly, intelligently and voluntarily. Further, given the eyewitnesses to

the crimes and the video surveillance of Appellant, it was in the range of

competence of a criminal attorney to suggest Appellant enter into an open

guilty plea.   See Lynch, supra.      Thus, Appellant’s guilty plea was not

unlawfully induced, and his claim of ineffectiveness lacks merit.

      In his second issue, Appellant argues trial counsel was ineffective for

failing to present a valid alibi defense.   Appellant claims his wife was able

and willing to testify that she was with him at a different location during the


                                     -8-
J-S19025-15


time the crimes were committed. Given the eyewitness testimony, the video

surveillance, and Appellant’s guilty plea, there was no basis to present an

alibi defense. Accordingly, this claim of ineffectiveness lacks merit.

      In his fourth issue, Appellant claims his counsel was ineffective for

failing to file post-sentence motions to withdraw the guilty plea.

      The standard for withdrawal of a guilty plea after the imposition of

sentence is much higher than the standard applicable to a pre-sentence

motion to withdraw.       Commonwealth v. Byrne, 833 A.2d 729, 737

(Pa.Super.2003).      A defendant must demonstrate that manifest injustice

would result if the court were to deny his post-sentence motion to withdraw

the plea.    Id.   “Manifest injustice may be established if the plea was not

tendered knowingly, intelligently, and voluntarily.”      Commonwealth v.

Hodges, 789 A.2d 764, 765 (Pa.Super.2002); see also Pa.R.Crim.P.

590(A)(3).     “[D]isappointment by a defendant in the sentence actually

imposed does not represent manifest injustice.”      Byrne, 833 A.2d at 737

(citation omitted); see also Commonwealth v. Moser, 921 A.2d 526, 528-

529 (Pa.Super.2007) (“The law does not require that appellant be pleased

with the outcome of his decision to enter a plea of guilty: All that is required

is that [appellant’s] decision to plead be knowingly, voluntarily and

intelligently made.”).

      Here, Appellant entered his guilty plea intelligently, knowingly, and

voluntarily. Appellant’s disappointment in his sentence does not represent


                                     -9-
J-S19025-15


manifest injustice.     See Byrne, supra.      If Appellant had filed a post-

sentence motion to withdraw his guilty plea, he would not have been able to

demonstrate manifest injustice, and the court would have denied the

motion. Thus, Appellant suffered no prejudice from his counsel’s failure to

file a post-sentence motion to withdraw the guilty plea. See Pierce, supra;

see   also   Commonwealth        v.   Edwards,   612   A.2d   1077,   1079-80

(Pa.Super.1992), appeal denied, 625 A.2d 1191 (Pa.1993) (dismissing

appellant’s ineffective assistance of counsel claim because appellant could

not show prejudice for counsel failing to file post-sentence motions to

withdraw guilty plea when guilty plea was voluntary and knowing).

      In Appellant’s remaining issue, the first issue in his brief, he argues

PCRA counsel was ineffective for failing to present meritorious issues,

specifically the ineffectiveness of trial counsel. Because we have determined

trial counsel was not ineffective, this issue lacks merit. The determination of

the PCRA court is supported by the evidence of record and is free of legal

error. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015

                                      - 10 -
