J-S78045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JERROLD SISCO

                             Appellant                 No. 987 WDA 2016


                   Appeal from the PCRA Order June 28, 2016
       in the Court of Common Pleas of Jefferson County Criminal Division
                        at No(s): CP-33-CR-0000402-2012

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 26, 2017

        Appellant, Jerrold Sisco, appeals from the order entered in the

Jefferson County Court of Common Pleas denying, after an evidentiary

hearing, his first Post Conviction Relief Act1 (“PCRA”) petition.   This case

returns to us after we remanded to have counsel comply with all of the

requirements of Turner/Finley,2 including filing a petition to withdraw with

this Court.     Appellant’s counsel has substantially complied.     We grant

counsel’s petition to withdraw and affirm the order below.




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S78045-16


        On December 19, 2012, Appellant entered a guilty plea to one count of

involuntary deviate sexual intercourse3 (“IDSI”) with a two year old child.

On March 20, 2013, Appellant was sentenced to ten to thirty years’

incarceration; however, the court did not find Appellant to be a sexually

violent predator.    Appellant did not file post-sentence motions or a direct

appeal to this Court. On July 12, 2013, Appellant filed a pro se motion for

discovery and to produce transcripts.

        The PCRA court summarized the procedural posture of this case as

follows:

              When [Appellant] filed a document specifically
           requesting PCRA relief on December 16, 2015, the [c]ourt
           treated it as an amendment to the unanswered Motion for
           Discovery and to Produce Transcripts he had filed on July
           12, 2013, which was well within the PCRA’s statute of
           limitations. PCRA counsel filed an additional amendment
           on March 10, 2016, and the [c]ourt convened a hearing on
           May 31, 2016, to entertain [Appellant’s] ineffective
           assistance of counsel claims.

PCRA Ct. Op., 6/28/16, at 1. The PCRA court denied Appellant’s petition on

June 28, 2016. This timely appeal followed.

        Appellant’s counsel filed a petition to withdraw representation pursuant

to Anders v. California, 386 U.S. 738 (1967).          We directed counsel to

comply with the Turner/Finley requirements and denied the petition to

withdraw without prejudice.      Commonwealth v. Sisco, 987 WDA 2016

(unpublished memorandum at 3) (Pa. Super. Oct. 28, 2016). Counsel filed a

3
    18 Pa.C.S. § 3123(b).



                                      -2-
J-S78045-16


Turner/Finley brief and a petition to withdraw. Appellant did not file a pro

se response.4

        Appellant’s counsel identifies the following issues on appeal:

           1. Was trial counsel ineffective for failing to file requested
           post-sentence motions and a direct appeal from the
           judgment of sentence?

           2. Was [Appellant] coerced into pleading guilty by threat of
           abandonment by his trial counsel?

           3. Was trial counsel ineffective for failing to discuss with
           [Appellant] the “Simeon statement” and the “Hill letter”?

Turner/Finley Brief at 4.

        Prior to addressing the issues raised in the Turner/Finley brief, we

examine the following in evaluating counsel’s petition to withdraw:

           [I]ndependent review of the record by competent counsel
           is required before withdrawal is permitted.       Such
           independent review requires proof of:

           1) A “no-merit” letter by PCRA counsel detailing the nature
           and extent of his review;

           2) The “no-merit” letter by PCRA counsel listing each issue
           the petitioner wished to have reviewed;

           3) The PCRA counsel’s “explanation”, in the “no-merit”
           letter, of why the petitioner’s issues were meritless;

           4) The PCRA court conducting its own independent review
           of the record; and

           5) The PCRA court agreeing with counsel that the petition
           was meritless.


4
    We note the Commonwealth did not file a brief.



                                       -3-
J-S78045-16


Commonwealth v. Widgins, 29 A.3d 816, 817–18 (Pa. Super. 2011)

(citations and alterations omitted).

      Further, the Widgins Court explained:

         The Supreme Court [in Commonwealth v. Pitts, 981
         A.2d 875 (Pa. 2009),] did not expressly overrule the
         additional requirement imposed by [Commonwealth v.
         Friend, 896 A.2d 607 (Pa. Super. 2006),] decision, i.e.,
         that PCRA counsel seeking to withdraw contemporaneously
         forward to the petitioner a copy of the application to
         withdraw that includes (i) a copy of both the “no-merit”
         letter, and (ii) a statement advising the PCRA petitioner
         that, in the event the trial court grants the application of
         counsel to withdraw, the petitioner has the right to
         proceed pro se, or with the assistance of privately retained
         counsel.

Id. at 818 (citations omitted).        Instantly, we have reviewed counsel’s

petition to withdraw and conclude it substantially5 complies with the

requirements set forth by the Widgins Court. See id. Accordingly, “[w]e

now turn to an independent review of [Appellant’s] PCRA Petition to

ascertain whether his claim entitles him to relief.” Id. at 819.

      First, Appellant contends trial counsel was ineffective for failing to file

requested post-sentence motions and a direct appeal. He avers that on the

day he was sentenced he asked counsel “what more is there to do, what

motions” and “what more can we do.” Turner/Finley Brief at 14.


5
  Counsel’s petition failed to advise Appellant explicitly about the nature and
extent of his review. See Widgins, 29 A.3d at 817-18. However, counsel’s
Turner/Finley brief contained a statement of the matters reviewed and his
discussion of Appellant’s issues evidences a review of the record. See id.




                                       -4-
J-S78045-16


     “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted). “Furthermore,

we note that we are bound by the PCRA court’s credibility determinations

where there is record support for those determinations.” Commonwealth

v. Santiago, 855 A.2d 682, 694 (Pa. 2004) (citation omitted).

     With respect to claims of counsel’s ineffectiveness,

        [C]ounsel is presumed to have provided effective
        representation unless the PCRA petitioner pleads and
        proves that: (1) the underlying claim is of arguable merit;
        (2) counsel had no reasonable basis for his or her conduct;
        and (3) Appellant was prejudiced by counsel’s action or
        omission. To demonstrate prejudice, an appellant must
        prove that a reasonable probability of acquittal existed but
        for the action or omission of trial counsel. A claim of
        ineffective assistance of counsel will fail if the petitioner
        does not meet any of the three prongs. Further, a PCRA
        petitioner must exhibit a concerted effort to develop his
        ineffectiveness claim and may not rely on boilerplate
        allegations of ineffectiveness.

Commonwealth       v.   Perry,   959   A.2d   932,   936    (Pa.   Super.   2008)

(punctuation and citations omitted).

     In determining whether counsel’s action was reasonable, the court

does not consider “whether there were other more logical courses of action”

counsel could have pursued, but simply examines whether counsel’s decision

had any reasonable basis. Commonwealth v. Washington, 927 A.2d 586,

594 (Pa. 2007). Conversely, to merit relief, counsel’s action, given all the



                                       -5-
J-S78045-16


other available alternatives, must be “so unreasonable that no competent

lawyer would have chosen it.”    Commonwealth v. Miller, 431 A.2d 233,

234 (Pa. 1981) (citation omitted).

            Our Supreme Court has held that counsel’s unexplained
        failure to file a requested direct appeal constitutes
        ineffective assistance per se, such that the petitioner is
        entitled to reinstatement of direct appeal rights nunc pro
        tunc without establishing prejudice. Commonwealth v.
        Lantzy, [ ] 736 A.2d 564, 572 ([Pa.] 1999). However,
        before a court will find ineffectiveness of counsel for failing
        to file a direct appeal, the petitioner must prove that he
        requested a direct appeal and the counsel disregarded the
        request. Commonwealth v. Bath, 907 A.2d 619 (Pa.
        Super. 2006). Here, [the a]ppellant has not alleged on
        appeal that he requested guilty plea/sentencing counsel to
        file a direct appeal and counsel failed to do so. Rather,
        [the a]ppellant contends that guilty plea/sentencing
        counsel was ineffective in failing to consult with [him] as to
        whether he desired to file a direct appeal . . . .

        With regard to counsel’s duty to consult, this Court has
        held as follows:

           [Case law] impose[s] a duty on counsel to
           adequately consult with the defendant as to the
           advantages and disadvantages of an appeal where
           there is reason to think that a defendant would want
           to appeal. The failure to consult may excuse the
           defendant from the obligation to request an appeal .
           . . such that counsel could still be found to be
           ineffective in not filing an appeal even where
           appellant did not request the appeal.

          [ ]

           [C]ounsel has a constitutional duty to consult with a
           defendant about an appeal where counsel has reason
           to believe either (1) that a rational defendant would
           want to appeal (for example, because there are
           nonfrivolous grounds for appeal), or (2) that this



                                     -6-
J-S78045-16


           particular defendant reasonably demonstrated to
           counsel that he was interested in appealing.

Commonwealth v. Ousley, 21 A.3d 1238, 1244–45 (Pa. Super. 2011)

(some citations omitted).

     The PCRA court opined as follows:

        Having agreed to the plea deal reflected in his written plea
        colloquy, [Appellant] knew going into the courtroom on
        March 20, 2013 that he would be receiving a sentence of
        10-30 years in prison. As he indicated on the date he
        entered his guilty plea, moreover, he understood that ten
        years was the mandatory minimum and that his negotiated
        maximum was ten years less than the statutory maximum.
        He also knew, of course, that he could anticipate a
        multiplied sentence if the Commonwealth added the other
        twenty-one counts and proved him guilty at trial. While
        [Appellant] may not have been eager to spend the next
        ten years of his life in prison, therefore, the [c]ourt does
        not believe that he inquired, even vaguely, about his
        appeal options.

                             *    *    *

        He knew on the date he was sentenced that the [c]ourt
        would be imposing the agreed-upon 10-30 years, that it
        was the best deal the Commonwealth would offer, and that
        rejecting it would engender a trial and all the risks he had
        consciously chosen to avoid by taking the plea deal. It
        thus defies reason to believe that [Appellant] suddenly
        wanted to upset the balance by taking an immediate
        appeal, and [counsel] cannot be deemed ineffective for not
        taking a groundless appeal his client never even
        requested.

PCRA Ct. Op. at 2-4.6 We agree no relief is due.


6
 We note that at sentencing, the following exchange took place between
Appellant and the court:




                                      -7-
J-S78045-16


      At the PCRA evidentiary hearing, Appellant testified, inter alia, as

follows:

           [Appellant’s PCRA Counsel]: . . . You also have an
           allegation that you asked [trial counsel] to file post
           sentence motions after you were sentenced?

           A: Yeah.   I asked him what more is there to do, what
           motions.

           Q: When did you ask him that?

           A: Right after my sentencing.

           Q: Same day?

           A: Yes.

           Q: What was his response, if any, did he give you?

           A: He just said, “Good luck.”

           Q: Was this just a verbal request?

           The Court: . . . You’ve been sentenced. Do you have any
           questions?

           [Appellant]: No, Your Honor.

           The Court: From today’s date, you have 10 days to file
           post-sentence motions. That would allow me to take a
           second look at your case. If I were to deny those motions,
           you have 30 days to appeal that denial to Superior Court,
           or you can take a separate avenue and file a direct appeal
           to Superior Court 30 days from today’s date. Do you
           understand your post-sentence and appeal rights?

           [Appellant]: Yes, Your Honor.

N.T. Sentencing Hr’g, 3/20/13, at 7.




                                       -8-
J-S78045-16



        A: Yes.

        Q: Was there anything in writing that you gave to him?

        A: No. It was all verbal. That day, after sentencing, I
        asked him if there was anything else we can do.
        Something.     Like a recommendation.     Well, sentence
        reconsideration or something. He said, “Good luck.”

        Q: You also have an allegation that you requested [trial
        counsel] to file a direct appeal. Can you tell us about that?

        A: That is after sentencing when I was asking him what
        more can we do.

        Q: Okay. It was just a general question?

        A: Yeah.

        Q: Not, hey, [counsel], file this, file that, file an appeal?

        A: I don’t know the law. All I was asking is what more can
        we do.

        Q: And that conversation, did it take place in the
        courtroom?

        A: Outside of the courtroom, right after I got sentenced.

        Q: In the courthouse?

        A: Yeah.

N.T. PCRA Hr’g, 5/31/16, at 25-26.

     Trial counsel testified at the PCRA hearing as follows:

        [Appellant’s PCRA counsel]: Now, [Appellant] also made
        [sic] allegation here that he asked you to file post-
        sentence motions and/or a direct appeal?

        A: He did not. He knew exactly what was coming. He
        didn’t come into court and didn’t know─oh, my God, I’m


                                     -9-
J-S78045-16


         shocked. He knew what the plea was and the sentence,
         and he knew about the plea bargain. So, no, it wasn’t─

         Q: And he indicated on the witness stand, [Appellant], that
         on March 20, 2013, the date of the sentencing, that either
         just outside of the courtroom, but inside of the courthouse
         somewhere, he asked about this, and you said something
         to the effect, well, if you’re thinking about filing motions or
         an appeal, good luck with that?

         A: No. Usually, if I’m hearing someone sentenced, I say
         good luck. But, no. Again, he knew what he was getting,
         so I don’t know why he was so shocked. He agreed to
         that.

         Q: But it’s your testimony that [Appellant] never asked
         you directly or indirectly to file post-sentence motions?

         A: No

         Q: He never asked you directly or indirectly to file an
         appeal?

         A: No.

         Q: Did he ever ask you, “What is there that you can do
         more for me,” after he was sentenced?

         A: No.

Id. at 37-38.

         [The Commonwealth]: It’s your testimony that [Appellant]
         never advised you that he wanted you to file a post-
         sentence motion or an appeal from his judgment of
         sentence?

         A: No, he never did.

Id. at 44.

      In the case sub judice, Appellant has not proven that he requested a

direct appeal and that counsel ignored the request; therefore, counsel was


                                     - 10 -
J-S78045-16


not per se ineffective.   See Ousley, 21 A.3d at 1244.     Furthermore, the

record does not support a finding that there are nonfrivolous grounds for

appeal.   Consequently,   counsel   cannot be   deemed   ineffective   in   not

consulting with Appellant regarding the filing of an appeal even if Appellant

did not request an appeal.   See id. at 1244-45; Perry, 959 A.2d at 936.

The PCRA court found counsel’s testimony to be credible.     See Santiago,

855 A.2d at 694. We find the PCRA court’s findings are supported by the

record and free of legal error. See Abu—Jamal, 941 A.2d at 1267.

     Next, Appellant contends counsel coerced him into taking the guilty

plea rather than go to trial. Appellant avers that when he told counsel he

was contemplating going to trial, counsel indicated that if he did not have

the money to pay for the trial fee, counsel would withdraw. Appellant felt

abandoned.

     In Commonwealth v. Rathfon, 899 A.2d 365 (Pa. Super. 2006), this

court opined:

          “A criminal defendant has the right to effective counsel
          during a plea process as well as during trial.”
          [Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.
          Super. 2002).] “A defendant is permitted to withdraw his
          guilty plea under the PCRA if ineffective assistance of
          counsel caused the defendant to enter an involuntary plea
          of guilty.” Commonwealth v. Kersteter, 877 A.2d 466,
          468 (Pa. Super. 2005).

             We conduct our review of such a claim in accordance
             with the three-pronged ineffectiveness test under
             section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. §
             9543(a)(2)(ii). See [Commonwealth v.] Lynch[,
             820 A.2d 728, 732 (Pa. Super. 2003)].          “The


                                    - 11 -
J-S78045-16


              voluntariness of the plea depends on whether
              counsel’s advice was within the range of competence
              demanded of attorneys in criminal cases.” Id. at
              733 (quoting [Hickman, 799 A.2d at 141].

                              *    *      *

          Kersteter, 877 A.2d at 46[8]–69. Moreover, trial counsel
          is presumed to be effective. Commonwealth v. Carter, [
          ] 656 A.2d 463, 465 (Pa. 1995).

Id. at 369.

     “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) (citation omitted).          “[T]he

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.” Rathfon, 899 A.2d at 370 (citation omitted).

     In the instant case, the PCRA court found no merit to this claim and

opined:

          By the date of the preliminary hearing, [Appellant] was
          being represented by Richard H. Milgrub, Esq. (“Milgrub”),
          whom Evelyn McConnell retained on her grandson’s behalf.
          . . . [Appellant’s] victim was S.S., who was the daughter
          of his paramour, Amber Hill (“Hill”).

             Based on [Appellant’s] recorded statement admitting to
          sexual contact with S.S., and Hill’s statement that she had
          witnessed him having sexual contact with her on five or six
          occasions, the Commonwealth filed seven additional counts
          of IDSI, along with seven counts each of Corruption of
          Minors and Indecent Assault with the magisterial district
          judge. During negotiations, however, the district attorney


                                       - 12 -
J-S78045-16


         offered to withdraw them if [Appellant] would plead to the
         original charge and accept a sentence of 10-30 years in
         prison. He also outlined some of the sentences the [c]ourt
         had previously imposed on similarly situated defendants
         who lost at trial. [Appellant] was not present at the time,
         but Milgrub advised him of both the offer and the likely
         sentencing outcome if he was found guilty by a jury.

            Milgrub also apprised [Appellant] of the evidence the
         Commonwealth would use at trial, including his own
         confession and Hill’s partial corroboration thereof . . . .

         [Appellant] had discussed the additional charges with his
         attorney shortly before the date of his plea and was well
         aware on December 19, 2012 that pleading guilty to one
         sex crime meant that he would not be found guilty of
         twenty-two.

                                  *     *      *

            Having agreed to the plea deal reflected in his written
         plea colloquy, [Appellant] knew going into the courtroom
         on March 20, 2013 that he would be receiving a sentence
         of 10-30 years in prison. As he indicated on the date he
         entered his guilty plea, moreover, he understood that ten
         years was the mandatory minimum[7] and that his

7
  We note that Appellant was sentenced to a mandatory minimum sentence
pursuant to 42 Pa.C.S. § 9718(a)(1), which has been held unconstitutional
by Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016); see also
Alleyne v. United States, 133 S. Ct. 2151 (2013). Although Appellant did
not raise the issue of the legality of his sentence, we can raise it sua sponte.
See Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013).
Appellant’s judgment of sentence became final on April 19, 2013.              A
judgment is deemed final at the conclusion of direct review or at the
expiration of time for seeking review. 42 Pa.C.S. § 9545(b)(1), (3). “[A]
constitutional right newly recognized by the Supreme Court of the United
States is made retroactive to cases on collateral review only if that court
specifically holds it to be retroactively applicable to cases on collateral
review.” Commonwealth v. Phillips, 31 A.3d 317, 320-21 (Pa. Super.
2011).     However, “neither our Supreme Court, nor the united States
Supreme Court has held that Alleyne is to be applied retroactively to cases
in which the judgment of sentence had become final.” Commonwealth v.



                                      - 13 -
J-S78045-16


         negotiated maximum was ten years less than the statutory
         maximum.     He also knew, of course, that he could
         anticipate a multiplied sentence if the Commonwealth
         added the other twenty-one counts and proved him guilty
         at trial.

PCRA Ct. Op. at 1-3, 5. The PCRA court concluded that there was no merit

to Appellant’s “claim that Milgrub coerced him to plead guilty by making him

feel abandoned, particularly when his answer to the district attorney’s

inquiry about why he failed to indicate as much to the [c]ourt was that he

relied on his attorney’s advice.” Id. at 5. We agree there is no merit to this

claim.

      At the PCRA hearing, Appellant testified, inter alia, as follows:

         [Counsel for Appellant]: Now, when you pled guilty in front
         of Judge Foradora on December 19, 2012, we have the
         transcripts, why did you not bring something up then to
         Judge Foradora like: Hey, the only reason I’m pleading
         guilty is because my attorney told me if I don’t, he’s
         dropping it?

         A: Because I was leaning on Milgrub for everything when it
         came to this case.

N.T. PCRA Hr’g at 14.

      Our review of the record reveals that Appellant was aware of the

sentence he would receive upon pleading guilty to one count of IDSI.



Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Moreover, the Pennsylvania
Supreme Court has explicitly held that Alleyne does not apply retroactively
on collateral review. Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016). Therefore, Appellant is not entitled to relief based upon a
challenge to the legality of the sentence.




                                     - 14 -
J-S78045-16


Appellant denied being innocent of the charges.          N.T. Guilty Plea Hr’g,

12/19/12, at 5. Appellant did not seek to withdraw his plea prior to

sentencing. See N.T. Sentencing Hr’g at 4. Appellant did not establish that

plea counsel misrepresented the nature of the plea agreement prior to

sentencing.     See Rathfon, 899 A.2d at 369.               Appellant has not

demonstrated that he was prejudiced. See id. Furthermore, a review of the

record does not evince the entry of an involuntary or unknowing plea. See

Moser, 921 A.2d at 531.       Moreover, we find no support for the averment

that he would have proceeded to trial were it not for counsel’s threat of

abandonment. Cf. Rathfon, 899 A.2d at 369-70. Thus, no relief is due on

this claim.

      Lastly,   Appellant   claims   counsel   was   ineffective   for   failing    to

adequately discuss with him the statement given by Ms. Carolyn A. Simeon

to the police on August 6, 2012, as well as the Amber Hill letter.                 The

statement and the letter indicate that the victim’s father, Mr. Joey Simeon,

coached the victim to tell authorities that Appellant had sexually abused her.

      At the PCRA hearing, Appellant testified, inter alia, as follows:

         [Counsel for Appellant]: I’m going to show you what I’ve
         marked Exhibit A for identification. It purports to be a
         letter. Can you identify that?

         A: Yeah. This is Amber Hill’s handwriting.

         Q: Are you familiar with her handwriting?

         A: Yes, I am.



                                      - 15 -
J-S78045-16


       Q: And do you recall when she wrote that letter?

       A: Yeah. I was in Elk County Prison for a failure to appear
       at court for a Domestic Relations case for child support.

       Q: Okay. Would it have been well before the plea and
       sentence in this case─

       A: Oh, yeah, well before that.

       Q: ─when you received the letter?

       A. Well before.

       Q: Okay.

       A: Before I was even charged.

       Q: Okay. Now, this letter, Exhibit A, did that letter ever
       get into the hands of your attorney?

       A: Yes. My grandmother [, Evelyn E. McConnell, ] sent it
       to him, I believe, at the prelim.

                               *     *      *

       Q: And, basically, why do you feel that letter is important?

       A: Well, not only does it state that the father of the child
       tells the child what to say and or do to make an impression
       upon CYS as to supposed guilt or accusation, but it also
       pretty much says my innocence.

                               *     *      *

       Q: Okay. I’m going to show you what I’ve marked           as
       Exhibit B for identification. Do you know that that is?

       A: Well, from the looks of it, it is a statement given by
       Carolyn A. Simeon. And it is referring to Joe Simeon─or
       Joey Simeon─telling the child what to say, what to do, and
       that I’m innocent.

       Q: Now, who is the author of that statement?


                                   - 16 -
J-S78045-16



          A: Carolyn A. Simeon.

          Q: Who is she?

          A: Apparently, Joe’s aunt.

                                  *      *      *

          Q: I’m going to ask before the district attorney asks you
          some of these questions. Were you aware that you gave
          certain statements to the police which could be construed
          as incriminating statements?

          A: Yes, I’m aware.

                                  *      *      *

          Q: And basically, those statements would show that your
          erect penis had contact with the child victim’s mouth; is
          that correct?

          A: Yeah. That statement is correct, yeah.

                                  *      *      *

          [The Commonwealth]: . . . I’m looking at the police report,
          which I’m now presuming that you’ve seen. And it says
          that Amber Hill, your girlfriend and the mother of [the
          victim] at that time, stated that she had seen you having
          sexual contact with [the victim] at least five or six times.

          A: And I say that never happen [sic].

          Q: That’s pretty damaging though, isn’t it?

          A: Yeah. Sounds damaging, yes.

N.T. PCRA Hr’g at 6-9, 14-16. At the PCRA hearing, Appellant testified that

he was only charged with one count of IDSI. Id. at 11. The Commonwealth

stated:



                                       - 17 -
J-S78045-16


        Your honor, I would ask the [c]ourt to take judicial notice
        of the Magisterial District Judge 54-3-02, Judge Inzana, at
        Docket No. 58 of 2012. And I would point out there was
        one count of IDSI filed at that docket . . . .

           I would also ask the [c]ourt to take judicial notice at the
        same magisterial court, Docket No. 163 of 2012, which
        shows charges being filed August 15, 2012, the day before
        that preliminary hearing, against [Appellant], in which
        seven counts of [IDSI] were filed, seven counts of
        Corruption of Minors, and seven counts of Indecent Assault
        Against a Person Less than 13 Years of Age, graded as a
        felony three. The IDSI’s were F1’s and the Corruptions
        were M1.

Id. at 38-39.     Milgrub replied in the affirmative when the Commonwealth

asked the following question: “Do you recall discussions that you had with

me in which I agreed that if [Appellant] would enter his plea to one count of

IDSI . . . we would forgo the prosecution of these other counts that we

believed that we could prove?” Id. at 40. The Commonwealth noted that

the 21 counts were withdrawn on September 26, 2012. Id.

     Milgrub testified at the hearing regarding a letter he had written to

Appellant’s grandmother. Id. at 41.

        [The Commonwealth]: . . . [I]n this letter, . . . you refer to
        the fact that you had a conversation with [Appellant] on
        the phone prior to the date of this letter, December 13,
        2012?

        A: Yes.

        Q: And then you recite some things that you had told him,
        and that he was now aware of.        The first being the
        sentence that was being offered. This was December
        13th, and I think the record would show the date of the
        plea was December 15th─



                                    - 18 -
J-S78045-16


        [Appellant’s counsel]: December 19th, 2012.

        [The Commonwealth]: December 19th. And you talked
        about what had been offered and what he was looking at.
        You say in the letter, “I explained to [Appellant] that he
        made a full confession. I also explained to him that his ex-
        girlfriend, Amber, also corroborates some of his
        confessions.”

                            *       *         *

        Q: So you had discussions with him about the strength of
        the Commonwealth’s case?

        A: Yes.

                                *         *       *

        . . . I explained if he went to trial and all these other
        charges were filed, his life, effectively, would be over,
        based on the other county sentences that other people
        received in Jefferson County. . . .

        Q: And he accepted that?

        A: Yes. He entered the guilty plea and proceeded with
        sentencing.

Id. at 41-43.

     Instantly, the PCRA court opined that Appellant

        knew for a fact at the time he pled that he was
        exponentially reducing his sentencing exposure, and the
        [c]ourt does not believe he would have risked spending the
        rest of his life in prison on the chance that a jury would
        have believed Simeon and and Hill over the victim, his own
        confession, and Hill’s partial corroboration of that
        confession.

PCRA Ct. Op. at 4.




                                        - 19 -
J-S78045-16


         We find the court’s credibility determinations are supported by the

record; thus, we are bound by them.            See Santiago, 855 A.2d at 694.

Appellant has not demonstrated that but for counsel’s errors he would not

have pleaded guilty and would have gone to trial. See Rathfon, 899 A.2d

at 369-70.      Appellant has not shown that he entered an involuntary or

unknowing plea. See Moser, 921 A.2d at 531.

         Following our review of the record, we discern no error by the PCRA

court.      See Abu-Jamal, 941 A.2d at 1267. Consequently, we grant

counsel’s petition to withdraw and affirm the order below.           See id.;

Widgins, 29 A.3d at 817-18.

         Petition to withdraw granted. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2017




                                      - 20 -
