J-S17025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 NOEL NIEVES                             :
                                         :   No. 3202 EDA 2016
                    Appellant            :

               Appeal from the PCRA Order August 30, 2016
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0000858-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.:                            FILED APRIL 16, 2018

      Noel Nieves appeals, pro se, from the order, entered in the Court of

Common Pleas of Chester County, denying his petition filed pursuant to the

Post Conviction Relief Act, (“PCRA”), 42 Pa.C.S.A. §§ 9541-45.        After our

review, we affirm based on the opinion authored by the Honorable Anthony A.

Sarcione.

      In October 2015, Nieves committed three gunpoint robberies in Chester

County. On July 15, 2015, Nieves entered a negotiated guilty plea to one

count of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), graded as a felony of the first

degree at docket number 15-CR-0003829-2014, and two counts of robbery,

18 Pa.C.S.A. § 3701(a)(1)(ii), also graded as felonies of the first degree, at

docket number 15-CR-000858-2105.
J-S17025-18



      In accordance with the terms of the plea bargain, the court sentenced

Nieves on July 17, 2015 to ten to twenty years’ imprisonment followed by ten

years’ probation. Nieves did not file post-sentence motions or a direct appeal.

      On November 4, 2015, Nieves filed a timely PCRA petition. He alleged

plea counsel was ineffective for failing to file a pretrial motion to suppress on

various grounds, for “manipulating” him into entering a guilty plea, for failing

to develop a strategy to support his claim of innocence, and for failing to file

a post-sentence motion for modification. On November 6, 2015, the court

appointed PCRA counsel for Nieves.

      On January 27, 2016, PCRA counsel filed a petition to withdraw and a

no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc).   On March 8, 2016, the court issued a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907(1). Nieves responded with a pro se letter to the

court, claiming he had been diagnosed with ADHD and bipolar disorder as a

child and, although he denied being on medication at the time of his plea, “the

truth was” that he was on medication and could not “focus right” during the

guilty plea colloquy. In response, the court conducted another independent

review of the record and again determined there were no genuine issues

concerning any material fact and that no relief was warranted.        The court

issued another Rule 907 notice of intent to dismiss.

      On April 20, 2016, Nieves filed an “Emergency Motion for Enlargement

of Time,” seeking additional time to respond to the court’s Rule 907 notice.

                                      -2-
J-S17025-18



The court granted Nieves’ motion in part, allowing him 60 days to respond.

Nieves filed his response on June 20, 2016, again challenging plea counsel’s

effectiveness in suggesting that if he were convicted, Nieves, as a repeat felon,

would be sentenced to a mandatory 30 to 60 years in prison, and that as a

once-convicted felon, he would not be entitled to the presumption of

innocence.

      Nieves wrote a second letter to the court on July 19, 2016, claiming he

was “not right mentally” when he tendered his plea due to his medicated

status, and counsel had suggested that he not admit to being medicated at

the colloquy. On July 22, 2016, the court entered an order directing PCRA

counsel to review Nieves’s Rule 907(1) response and his July 19, 2016 pro se

letter, and to advise the court whether Nieves was entitled to an evidentiary

hearing on whether plea counsel was ineffective for: (1) misadvising Nieves

of the applicable law; (2) failing to file a pretrial motion to suppress; and (3)

for counseling Nieves to plead guilty.

      PCRA counsel complied and filed a letter to the court.         Thereafter,

following another independent review of the record in light of Nieves’

supplemental claims and PCRA counsel’s response, the court issued a final

order on August 30, 2016 dismissing Nieves’ PCRA petition and granting

counsel’s petition to withdraw. This pro se appeal followed.

      Nieves raises the following issue for our review:

      Whether this pro se brief upon appeal from the PCRA court’s
      August 30, 2016, final dismissal order merits redress is a question
      of exceptional circumstances and the law?

                                      -3-
J-S17025-18



Appellant’s Brief, at 2.

      Essentially, Nieves is challenging the PCRA court’s order dismissing his

petition without a hearing to determine if his guilty plea was invalid due to

plea counsel’s ineffectiveness.   We review such a decision for an abuse of

discretion. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

      A petitioner’s right to an evidentiary hearing on a post-conviction

petition is not absolute. “It is within the PCRA court’s discretion to decline to

hold a hearing if the petitioner’s claim is patently frivolous and has no support

either in the record or other evidence.”     Id., quoting Commonwealth v.

Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007) (internal citations omitted);

see also Pa.R.Crim.P. 907. “The controlling factor . . . is the status of the

substantive assertions in the petition.   Thus, as to ineffectiveness claims in

particular, if the record reflects that the underlying issue is of no arguable

merit or no prejudice resulted, no evidentiary hearing is required.”

Commonwealth v. Baumhammers, 92 A.3d 708, 726–27 (Pa. 2014)

(citations omitted).

      Nieves has set forth a comprehensive argument in his pro se brief,

outlining his claims of ineffectiveness of both plea counsel and appointed PCRA

counsel. Nieves argues this Court should remand for a hearing to determine

whether sufficient evidence exists of his “medically impaired mental status at

the time of the negotiated plea deal,” and whether plea counsel advised him

that he would not be entitled to the presumption of innocence and would be

subject to a mandatory 30-60 year sentence. Appellant’s Brief, at 11, 15-17.

                                      -4-
J-S17025-18



        After our review of the parties’ briefs, the record, and the relevant law,

we agree with the PCRA court’s determination that there were no genuine

issues of material fact with respect to Nieves’ claims of ineffectiveness. The

record of the verbal guilty plea colloquy and the written guilty plea colloquy

belies Nieves’ claims that he was manipulated and coerced into entering a

guilty plea. Nieves stated that he was a high school graduate, was not under

the influence of “any drugs, alcohol or medicine,” and that he did not suffer

from any mental illness “or anything else that would cause [him] not to

understand[.]” See N.T. Guilty Plea Colloquy, 7/17/15, at 3. He also stated

that he understood that he was “presumed to be innocent[.]” Id. at 4. At

the colloquy, Nieves admitted to the three gunpoint robberies, id. at 5, 7, and

stated that he was satisfied with plea counsel’s services. Id. at 10. See also

Written Plea Colloquy, 7/17/15, at 6; Pa.R.Crim.P. 590.

        “Our law presumes that a defendant who enters a guilty plea was aware

of what he was doing. He bears the burden of proving otherwise.”

Commonwealth v. Pollard, 832 A.2d 517, 522–23 (Pa. Super. 2003). The

record clearly demonstrates that Nieves understood the nature of the charges

against him, and therefore “the voluntariness of the plea is established.”

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006). “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).

                                       -5-
J-S17025-18



      With respect to his claim that plea counsel advised him to lie when the

court asked whether he was medicated, and was ineffective in telling him he

would not be entitled to the presumption of innocence due to a prior felony

conviction, Nieves essentially asks this Court to accept that he perjured

himself at the colloquy. As illustrated above, Nieves acknowledged that he

was presumed innocent at the colloquy, and this was also affirmed in the

written colloquy, which stated:        “I am presumed innocent, and if the

Commonwealth cannot prove me guilty beyond a reasonable doubt I must be

set free on these charges.” Written Guilty Plea Colloquy, 717/15, at 7. Nieves

initialed that line, and signed his name at the bottom of the page. Id. at 7.

      We conclude, therefore, that the PCRA court did not abuse its discretion

in   dismissing   the   petition   without   a   hearing.   Wah,   supra.   See

Commonwealth v. Bryant, 855 A.2d 726 (Pa. 2004) (PCRA court may deny

petition without hearing if following review of petition it determines hearing

would serve no purpose); see also Pa.R.Crim.P. 907(1). We affirm the PCRA

court’s order dismissing Nieves’ petition without a hearing based on Judge

Sarcione’s opinion. The parties are directed to attach a copy of that opinion

in the event of further proceedings.

      Order affirmed.




                                       -6-
J-S17025-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/18




                          -7-
   :\durr-nn \saruone \Nieves Noel 1" PCRA 1925a.docx                        Circulated 04/04/2018 09:43 AM




  COMMONWEALTH OF PENNSYLVANIA                               :   IN THE COURT OF COMMON PLEAS

                      vs.                                :       CHESTER COUNTY, PENNSYLVANIA
  NOEL NIEVES                                            :       NOS. 15-CR-0000858-2015;
                                                                      15-CR-0003829-2014

                                                         :       CRIMINAL ACTION-PCRA
 Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney, for the
                                                                            Commonwealth
 Noel Nieves, Defendant, Pro Se

                             OPINION               R    RULE 1925
                                                                                       rr   I

                                                                                                    .)
                  Before the Court is Defendant Noel Nieves' timely*,0eaL.Vom                     nyr August
 30, 2016 Order denying and dismissing his first PCRA
                                                                         Petiti6C Delend4i filed           hi
                                                                                                  rz)
 Notice of Appeal effective September 24, 2016, the date on which
                                                                                      te        attests in th
 Certificate of Service attached to his Notice that he placed his Notice of
                                                                            Appeal in th
 prison mail system, thereby satisfying the requirements of service under the
                                                                              'Prisone
 Mailbox Rule.' See Commonwealth v Little, 716 A.2d 1287 (Pa. Super.
                                                                     1998)(discussin
Prisoner Mailbox Rule). Defendant's Notice of Appeal was thus timely filed
                                                                           within th
thirty (30) day period following the entry of this Court's final Order
                                                                       disposing of his PCR
Petition, as required by Pa. R.A.P. 903(a). See Pa. R.A.P.
                                                           903(a)("Except as otherwis
prescribed by this rule, the notice of appeal required by Rule 902 (manner of takin

appeal)     shallte filed within   30 days after the entry of the order from which the appeal               i


taken.").     Because Defendant appended to his Notice of Appeal a list of the issues o

which he was complaining, we did not deem it necessary to order a
                                                                  Concise Statement
pursuant to Pa. R.A.P. 1925(b). Having reviewed the issues Defendant has raised

appeal in light of the record and the relevant constitutional, statutory and
                                                                             decisional law
      J        di LIU! iewneves Noel 1" PCRA
                                               1925a.docx
a




     we are now prepared to issue the
                                      following recommendation with respect to the
                                                                                   merits of
     Defendant's appeal pursuant to Pa. R.A.P. 1925(a).

                           I.      FACTUAL AND PROCEDURAL HISTORY

                   On July 15, 2015 Defendant tendered
                                                       a counseled negotiated guilty plea
                                                                                             t'
    one (1) count of Robbery, 18 Pa. C.S.A.
                                            § 3701(a)(1)(ii) (Count 1), graded
                                                                               as a Felony o
    the First Degree (F-1), at docket
                                      number 15-CR-0003829-2014 and two (2) counts
                                                                                            f
    Robbery, 18 Pa. C.S.A. § 3701(a)(1)(ii)
                                            (Counts 22 and 21, respectively), graded         a

    Felonies of the First Degree (F-1's), at docket
                                                    number 15-CR-0000858-2015. The factu         I



    basis recited in the Verbal Guilty Plea
                                            Colloquy set forth the following predicate for
    plea.

                   With regard to term number 3829 of 2014, on
                                                                   October 22nd
                 of 2014, at approximately 9:50 p.m., the
                                                           defendant went to the
                 Shell station at 101 East Chestnut
                                                          Street in Coatesville,
                 Chester County, Pennsylvania where he
                                                             made contact with
                 employees, Michael Brown and Claude Edwards,
                                                                    C -L -A-U -D-
                 E.

                  _ The
                        defendant_approached wearing a mask, pointed_what _
                 appeared to be a gun at them and stated both of                        _

                                                                    you get back
                 in the store. They walked back into
                                                       the store. He ordered
                 them to the ground and told Mr. Brown to
                                                            open the safe. Mr.
                 Brown told him he didn't have the key
                                                        and told the defendant
                to take the money in the register and
                                                        leaVe. The defendant
                told them to get on the ground again.
                                                             And once on the
                ground, Mr. Brown said he was tased in the
                                                                forehead. And
                then the defendant tased Mr. Edwards in the
                                                              side.
                  The defendant grabbed a drawer with
                                                            approximately four
                hundred dollars in it and ran out the back of the
                                                                  store.



                 On 858 of '15, on October 15th of 2014 the
                                                              defendant went
               to the Hair Cuttery at 3927 Lincoln
                                                   Highway in Cain Township,
               Chester County, Pennsylvania at
                                                    approximately 9:00 p.m.

                                                  -2-
  s:   \unto \sarcione \Nieves Noel 1"   PCRA 1925a.docx




                   And the defendant approached Ms. Brittany Daily, B -R -I
                                                                                  -T -T-
                   A-N -Y D -A -I -L-Y and Alliah Lacy, A-L-L -I -A -H L -A
                                                                            -C -Y, who
                   were employees of the Hair Cuttery, with what
                                                                      appeared to be
                   a black semi -automatic handgun which he
                                                                     pointed at them
                   and said where is the money bag? The defendant
                                                                              punched
                   Ms, Daily on the left side of her face. And they
                                                                         told him that
                   the money was with another employee still in the
                                                                           store. The
                   defendant then fled the area.

                     Also on that date and around the same time, the
                                                                         defendant
                   went to the Pizza Hut located at 1809 Lincoln Highway also
                                                                                   in
                   Caln Township, Chester County, Pennsylvania.
                                                                            That is
                   located approximately one and a half miles from the
                                                                                Hair
                   Cuttery. The defendant went there and made contact
                                                                                with
                   employees Michael Hashem, H -A-S -H -E-M and Elizabeth
                   Cosella, C -O -S -E-L -L -A. Ms. Cosella was working at the cash
                   register when the defendant approached and pointed
                                                                               what
                   appeared to be a gun in her face while wearing a
                                                                       mask and a
                   gray hood ie.

                    The defendant told her to give him the money, give
                                                                         him the
                  money and punched her in the face, yelled at her to
                                                                        give him
                  the money again. She opened the register drawer and
                  the defendant all the cash inside of it, nine hundred
                  me    -  three hundred ninety-six dollars from the
                                                                           -gave
                                                                         excuse
                                                                         delivery
                  register.

                    THE COURT: He didn't get anything at the. Hair
                                                                   Cuttery,________

                     [THE PROSECUTOR]: Correct. The two
                                                          employees he
                  approached did not have the money. And he fled without
                  entering the store in that instance.

(Verbal Guilty Plea Colloquy and Sentencing
                                            Hearing, 7/17/15, N.T. 4-7).                   Defenda
admitted to committing these acts as outlined by the
                                                     Commonwealth. (Verbal Guilty Ple
Colloquy and Sentencing Hearing, 7/17/15, N.T. 5, 7;
                                                     Written Guilty Plea Colloqu
7/17/15, at 2, 5).          Importantly to the instant proceedings, the following exchang

occurred.

                         THE COURT: How did the police get to this fellow?


                                                     3
  s:\admin\sarcione\Nieves Noel   161   PCRA   1925a.docx




                       [THE PROSECUTOR]: There was a video at one of
                the stores, Judge, that showed, although the defendant's face
                was covered, there was a general description that was able to
                be provided. And he has a sleeve tattoo on his right arm that
               was exposed in some of the video footage. It has distinct
                patterning on it. The police, actually the county detectives ran
                a search in the database, for someone who fit
                                                                      the rough
               description of the defendant, the description that was provided
               at the scene, who lived in the Downingtown area and who had
               a right arm tattoo and looked for a right arm
                                                                     tattoo that
               matched. And they found the defendant in the system. They
               found his tattoo. And they took it to a tattoo artist in the area
               who was able to confirm that based on the shading and
               comparison between the photo of the defendant and his tattoo
               and video footage, that was in fact the same tattoo.

                      [PLEA COUNSEL]: And then they got a warrant and
               went to the house and found incriminating evidence.

                     [THE PROSECUTOR]: That was the back end of                          it.
               That was how they originally           -
                                                                                               CI
                         THE COURT: They found the taser, [M]r. Jurs?
                                                                                     e              01\   g

                         [PLEA COUNSEL]: No, a stun gun similar to that.

(Verbal Guilty Plea and Sentencing Hearing, 7/17/15, N.T. 8-9).

               In accordance with the terms of              Defendants negotiated plea agreement, w

sentenced Defendant on July 17, 2015 on Count 1, Robbery, at docket number 15-C

0003829-2014 to ierve       a   term of ten (10) to twenty (20) years' imprisonment in a Stat

Correctional Facility.     This sentence did not represent a mandatory minimum. At ter

number 15-CR-0000858-2015, we sentenced Defendant on July 17, 2015 to serve a ter

of ten (10) to twenty (20) years' imprisonment in a State Correctional Facility for the
                                                                                        crim

of Robbery at Count 22, to run concurrently with the sentence imposed at docket
                                                                                number

15-CR-0003829-2014.         Again, this sentence did not represent a mandatory minimum.

On Count 21, again a Robbery conviction, we sentenced Defendant to serve a
                                                                           term                               f

                                                    -4-
   s:wornin \sarcione \ Nieves Noel   15' PCRA   1925a.docx




  ten (10) years' probation, to run consecutively to the sentence
                                                                  imposed on Count         .1   a

  docket number 15-CR-0003829-2014. Thus, Defendant's
                                                      aggregate sentence is two (2
  concurrent terms of ten (10) to twenty (20) years' imprisonment in a
                                                                       State Correctional
  Facility, followed by ten (10) years of consecutive probation.
                                                                 We gave Defendant credit
  for times served from October 23, 2014 to July 17, 2015. We
                                                              ordered Defendant to pa
  the costs of prosecution and three (3) ten dollar ($10.00)
                                                             fines. We directed Defendant t
  pay ten dollars ($10.00) in restitution to the Shell station and
                                                                   three hundred ninety-six
 dollars ($396.00) to the Pizza Hut. We directed that Defendant have no
                                                                        contact with an
 of the victims.     Finally, we ordered him to provide a DNA sample and pay the
                                                                                 requisit
 fee associated therewith and to submit to a drug and alcohol
                                                              evaluation and follow         a   I


 recommended treatment. Defendant was advised of his post -sentence
                                                                    rights, includin
 his right to file a post -sentence motion within ten (10) days
                                                                of sentencing, both orally o
 the record at the Verbal Guilty Plea and Sentencing Hearing
                                                             and in writing in his Written
 Guilty Plea Colloquy. (Verbal Guilty Plea and Sentencing Hearing,
                                                                   7/17/15, N.T. 19-21
Written Guilty Plea Colloquy, 7/17/15, at 8-9).

                 Defendant did not file a post-sentence motion or take a direct appeal..

Consequently; for PCRA purposes, Defendants Judgment of Sentence became
                                                                        final on
August 16, 2015, thirty (30) days after the imposition of sentence without a
                                                                             post-sentenc
motion or direct appeal being filed. See 42 Pa. C.S.A. § 9545(b)(3)("For
                                                                         purposes of thi
subchapter, a judgment becomes final at the conclusion of direct review,
                                                                         includin'
discretionary review in the Supreme Court of the United States and the
                                                                       Supreme Court o
Pennsylvania, or at the expiration of the time for seeking the review."); Pa,
                                                                              R.A.P.
903(a)("Except as otherwise prescribed by this rule, the notice of appeal required by
                                                                                      Rul

                                                      -5-
  s:\admin \sarcione \ Nieves Noel lst PCRA 1925a.docx




  902 (manner of taking appeal) shall be filed within 30
                                                         days after the entry of the ord
  from which the appeal is taken.").

                 On     November      4;   2015,    Defendant filed   a    timely    PCRA Petitio
  Defendant's Petition referenced only docket number
                                                     15-CR-0003829-2014.                      In hi

 Petition, Defendant claimed that his plea counsel was ineffective
                                                                   for failing to file a pr
 trial motion to suppress evidence on the grounds of racial
                                                            profiling, for failing to file a pr
 trial motion to suppress challenging identification
                                                     evidence, that his plea agreement wa
 the product of manipulation and coercion by plea
                                                  counsel, that plea counsel wa
 ineffective for failing to develop a strategy to support Defendant's
                                                                      alleged claim of actu                I


 innocence, that plea counsel failed to file a requested post
                                                              -sentence motion f
 modification, that his plea agreement was "the result of unethical
                                                                    behavior or activity" o
 the part of plea counsel, whom he alleged was "partial to the
                                                               police" and "deliberate!
 manipulated the [Defendant] into taking a Plea of Guilt[.]"          Defendant attached to hi
Petition (1) a letter from plea counsel dated February 25,
                                                           2015 regarding variou

developments in Defendant's case, including plea counsel's filing- of a
                                                                        --Motion f
Discovery, (2) a letter from plea counsel dated June 1, 2015, in
                                                                 which plea couns
represents that he "will be filing suppression motion [sic] regarding the
                                                                          search warrants              i



which we will ask the Judge to suppress all items seized from your
                                                                   residence and car[
and (3) a letter from First Assistant Public Defender Nathan M.
                                                                Schenker, Esquire date
August 17, 2015 indicating that Defendant's letter request for         a   motion for modificatio
was received by his office on August 13, 2015, well beyond the
                                                               period for filing a time!
post -sentence motion.       Mr. Schenker advised Defendant in this letter          that due to   hi

having entered a negotiated guilty plea, and having completing the
                                                                   lengthy and comple

                                                -6-
   s: wammsarcione \Nieves   Noel 1" PCRA 1925a.docx




   process which that requires, there was
                                          essentially no basis for filing a motion for
   modification and that the time period for seeking such
                                                          modification had already expired.
   Mr. Schenker advised Defendant in this
                                          letter that Defendant could proceed by filing

  PCRA Petition within one (1) year of his date of
                                                   sentence.

                 On November 6, 2015 we issued an Order,
                                                         captioned only with docke
  number 15-CR-0003829-2014, appointing PCRA
                                             Counsel for Defendant. On January 2
  2016, PCRA Counsel filed a Petition to Withdraw as
                                                     PCRA Counsel. On March 8, 2016,
  after conducting an independent review of the record,
                                                        we determined that there were            n

  genuine issues concerning any material fact and that
                                                       PCRA relief was not warranted, an
  issued a Notice of Intent to Dismiss PCRA Petition
                                                     Pursuant to Pa. R.Crim.P. 907(1).
                On March 4, 2016 the Defendant wrote a pro         se letter to the Court,   whic
 we received and filed with the Clerk of Courts on
                                                   March 11, 2016, directing that Office t

 forward a copy of Defendant's March 4, 2016 to
                                                counsel.           In his March 4, 2016 lette

 Defendant protested his actual innocence, challenged the
                                                          accuracy of the evidence use
 to identify him, claimed that there was exculpatory
                                                     evidence that was not provided to th
 Court in the form of a cigarette butt found at the scene of
                                                             the one of the Robberies whic
-did not contain -a match of his DNA, and stated that
                                                      his plea counsel told him that if he di

 not plead he would be convicted and would face
                                                thirty (30) to sixty (60) years in priso
and that he should just "take the deal" so that he
                                                   will still be able to see his son, at whic

point Defendant stated that "i [sic] got scared and
                                                    gave up on myself."         (Deft,'s Lettei
3/4/16, at 1). Defendant also claimed that he was
                                                  diagnosed with ADHD and Bi-Pola
Disorder as   a child and    that, although he denied on the record at his guilty plea
                                                                                       colloqu
that he was on any medication, "the truth was" that
                                                    he was on medication at the time

                                              -'7
s:\admin\sarcione\Nieves Noel     PCRA   1925a.docx




his plea and was under distress and could not "focus right" during his guilty plea colloqu

(Deft.'s Letter, 3/4/16, at 1).     Defendant wrote both docket numbers 15-CR-0003829

2014 and 15-CR-0000858-2015 on his March 4, 2016 letter.

              On March 11, 2016, based on Defendant's March 4, 2016 letter, we issue

an Order amending the caption of our November 4, 2015 Order to reflect both dock t

numbers and directing that Defendant's PCRA Petition shall be deemed to have been

filed to both dockets effective November 4, 2015.           Our March 11, 2016 Order als

vacated our previous March 8, 2016 Rule 907(1) Notice, directed the Office of the Cler

of Courts of Chester County to forward a copy of Defendant's March 4, 2016 letter t

counsel, and directed that PCRA Counsel review Defendant's March 4, 2016 letter an

file, within forty-five (45) days of the Order, either an Amended PCRA Petition or

Petition for Leave to Withdraw as Counsel.

              On March 17, 2016, PCRA Counsel filed a letter to the Court in which he

advised the Court that his review of Defendant's PCRA Petition prior to the filing of hi

January 27, 2016 Petition for Leave to Withdraw as PCRA Counsel had encompasse

both dockets already.       Stating that he had addressed Petitioner's claims of actu

innocende in his prior Petition for Leave to Withdraw as PCRA Counsel, PCRA Couns

addressed the issue concerning Defendant's medication by noting that at the Verb

Guilty Plea Colloquy Defendant had advised the Court that he did not suffer from ment

illness and that he was not under the influence of any drugs or medications.        (Verb

Guilty Plea Colloquy, 7/17/15, N.T. 3).         PCRA Counsel requested that his January   2


2016 Petition for Leave to Withdraw as PCRA Counsel be reinstated, that Defendant'

first PCRA Petition be dismissed, and that he be allowed to withdraw from representatio

                                                -8 -
                      \
  s: admin \sarcione Nieves    Noel     PCRA 1925a.docx




                   On April 1, 2016, after conducting another independent review of the

  record, we determined that there were no genuine issues concerning any material
                                                                                  faot

  and that PCRA relief was not warranted, and issued a Notice of Intent to Dismiss PCR

  Petition Pursuant to Pa. R.Crim.P. 907(1).                      In accordance with Pennsylvania Rule o

  Criminal Procedure 907(1), we gave Defendant twenty (20) days in which to respond                                   t

 our Rule 907(1) Notice,

                   On April 20, 20161 Defendant filed an "Emergency Motion for Enlaregmen

 [sic] of Time", seeking additional time in which to respond to our Rule 907(1) Notic

 Specifically, Defendant requested one hundred and twenty (120) days in which t

 respond to our Rule 907(1) Notice.                     In       his "Emergency Motion", Defendant als

 challenged the stewardship of PCRA Counsel. Defendant appended to his "Emergency

 Motion" another copy of the February 25, 2015 letter written by plea counsel and a letter

 by Defendant to PCRA Counsel dated April 6, 2016 in which Defendant claimed he wa

actually innocent of the crimes to which he pled, challenged the accuracy of th

identification evidence against him, challenged plea counsel's stewardship for failure                            t

call a particular witness by the name of "Charlie" in his favor, and raised allegations o
                                                         .   ,
defeatS in the execution of the search warrant at the Defendant's residence.                           DefendanIt

also again claimed in this letter that a cigarette had been found at one of the crim

scenes and his DNA had been tested and it was determined that there was no matt

Defendant suggested that the negative results implied that he was excluded from th

scene of the crime, thereby exculpating him, and his incarceration is therefor


 Defendant's Motion was received by the Clerk of Courts on April 25, 2016; however, the letter In which It was sent
bore a postmark of April 20, 2016. Accordingly, under the Prisoner Mailbox Rule, we deemed Defendant's letter to
have been filed on April 20, 2016. See Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. 1998).

                                                      r9
 s:\admin \sarcione\ Nieves Noel   1st PCRA   1925a.docx




 unconstitutional. He claims his plea counsel was aware of the DNA test results. Finall

 Defendant stated that he was heavily medicated for ADHD and               tai -Polar   Disorder at th
 time he entered his plea and that, as a result, his plea could not have been knowin

 voluntary or intelligent.    He also attached to his Motion two (2) pictures, one of whic

 according to his April 6, 2016 letter to PCRA Counsel, is a copy of surveillance video, an

the other of which, again according to Defendant's April 6, 2016 letter to PCRA Counse

is a picture of the Defendant's tattooed forearm. Defendant alleges that the Count

Detectives took the photograph on the day they executed the search warrant at hi

residence.

                On May 10, 2016 we granted Defendant's .Motion in part and denied it in

part; We denied Defendant's request for              one hundred and twenty (120) days in which t

respond to our Rule 907(1) Notice, but gave him sixty (60) days from the April 21, 201

expiration of his original twenty (20) day response period in which to file his Rule 907(1

response, making his response due on or before June 20, 2016.

               On June 20, 2016, Defendant filed his Rule 907(1) Response. In his Rul

907(1) Response, Defendant again challenged the stewardship of PCRA Counsel, who

he claimed did not adequately investigate Defendant's issues, failed to remedy th

defects in Defendant's PCRA Petition, and failed to adequately meet or speak with th

Defendant to discuss the status of the Defendant's PCRA Petition.                     Defendant als

claimed that his plea counsel coerced his plea by advising him (a) that his chances of a

acquittal if he went to trial were "close to 0", (b) that Defendant, as           a   once convicte

Felon, would not be entitled to the presumption of innocence, and (c) that, if convicte

Defendant would be sentenced under the "Repeated Offender Act" [sic] to a mandato

                                                    - 10 -
 sAadmin\sarcione\Nieves Noel 1"   PCRA 1925a.docx




thirty (30) to sixty (60) years in prison.      Defendant claimed that his plea counsel wa

 ineffective for failing to file a motion to suppress the evidence obtained as a result of th

police execution of a search warrant at his residence on the grounds that the search wa

conducted in violation of the Fourth Amendment because the police only gav

Defendant's wife, who is not the homeowner, according to the Defendant, a "quick look

glance" at the warrant after ordering Defendant and his family to vacate the premises an

by conducting the search while Defendant, who claims to be the sole homeowner, wa

not present in the home. Defendant also claimed that his plea counsel induced him to lie,

by means of "subliminal suggestion", about his mental health and medication status a

the Verbal Guilty Plea Colloquy.        Defendant claimed that his plea counsel, allegedly     in

violation of Lefler   v.   Cooper, 132 S.Ct. 1376 (U.S. Mich. 2012) and Missouri v. Rye,   131

S.Ct. 1399 (U.S. Mo. 2012), cert. denied, 132 S.Ct, 1789 (U.S. Mo. 2012), insisted thalt

"[Defendant] and his family should not question or attempt to interfere with his method

for they know nothing of the legal ramifications at work and to simply rely upon his legal

expertise because he ((plea counsel]), must do what's necessary          to   apiese [sic] bot

[Defendant] and the Commonwealth." (Deft.'s Rule 907(1) Response, 6/20/16, at 3, par

"A").   Defendant claimed that his plea counsel failed to develop an informed opinio

about the course of action Defendant should pursue in this matter, as allegedly require

by Von Moltke    v.   Gillies, 68 S.Ct. 316 (U.S. Mich. 1948). Finally, Defendant claimed th

plea    counsel failed to inform him of his basic sentencing liabilities            and othe

considerations so as to enable Defendant to make an informed decision about whether t

accept or reject the Commonwealth's plea offer.              Defendant requested that th

undersigned to allow further PCRA proceedings, appoint new PCRA Counsel, and vacat

                                              - 11 -
  sAadmin\sarcione \ Nieves Noel   1s`   PCRA 1925a.docx




 Defendant's conviction and sentence pending the resolution of whether Defendant's plea

 was voluntary and "free from the influence of, powerful narcotics". (Deft.'s Rule 907(1)

 Response, 6/20/16, at 5).

                 On July 18, 2016 Defendant wrote a pro se letter to the Court, which we

 received and filed with the Clerk of Courts on July 22, 2016.                    In his   pm se lette     ,




 Defendant claimed that he was "not right mentally" when he tendered his plea becaus

 he was on medication and that his plea counsel knew he was on medication and told hi

 not to admit it in order to "falsly [sic] convinc[e] [him] to perjur [sic]" himself.         Defendarit

 requested a copy of his prison medical records and other discovery in order to show that

 his plea was not knowingly, voluntarily and intelligently entered. He attached to his lett r

 a   "Letter in Application" addressed to the "official court reporter/tourt stenographe                  '



seated For The Honorable Anthony A. Sarcione" in which he set forth under the titl

"Requisition" all of the items of discovery he wished to have provided to him.

                On July 22, 2016, we issued two Orders.                     One Order was issued      i



'response to Defendant's request in his July 18, 2016 pro se letter for free copies of hi

court records and transcripts. We denied Defendant's request, noting that so long as th

Defendant's attorney had access to the requested items, Defendant's right to free copies

of these items was satisfied.             Sullivan   v.   Sokolski, 1994 WL 105526 (ED. Pa. 1994

aff'd, 40 F.3d 1241 (3rd Cir. Pa. 1994); Gay                v.   Watkins, 579 F. Supp. 1019 (E.D. P

1984).    As Defendant indicated in his pro se letter that he was making this request in

order to demonstrate that his guilty plea could not have been knowingly, voluntarily an

intelligently entered due to the alleged medicated status at the time he entered his ple

we also added that Defendant's argument had no merit because of the long-standing rul

                                                     - 12 -
 sAadmin Varcione \ Nieves Noel   1st PCRA   1925a.docx




 in   Pennsylvania that a defendant may not challenge his guilty plea by asserting that   h


 lied under oath, even if he avers that his counsel induced the lies. See Commonwealth

 Yeomans, 24 A.3d 1044 (Pa. Super. 2011), reargument denied (August 18, 2011). W

then quoted from that portion of the Verbal Guilty Plea transcript which demonstrates tha

Defendant advised the Court during his Verbal Guilty Plea that he was not under th

influence of any drugs, alcohol or medicine. (See Guilty Plea and Sentencing Transcrip        ,




7/17/15,'N.T. 3).

                 Our second Order dated July 22, 2016 directed PCRA Counsel to revie

Defendant's Rule 907(1) Response and his pro se July 18, 2016 letter and advise th

Court in writing within thirty (30) days of the date of the Order whether Defendant wa

entitled to an evidentiary hearing on the following issues:      (a) whether plea counsel

misadvised the Defendant of the applicable law; (b) whether plea counsel was ineffectiv

for failing to file   a   pretrial suppression motion; and (c) whether plea counsel wa

ineffective for counseling Defendant to plead guilty.

                On August 22, 2016 PCRA Counsel filed a letter to the Court addressing

the three (3) issues we directed him to review in our July 22, 2016 Order. PCRA Couns         I




attached    a   letter frorn plea counSel in which plea counsel denied ever telling th

Defendant that he would not be entitled to the presumption of innocence, asserted tha

he reviewed the search warrant executed by the police on Defendant's property an

found no issues that would warrant relief by the Court, and explained his reasons for

advising Defendant to accept the Commonwealth's plea offer.

                After conducting another independent review of the record in light of all of

the issues raised by the Defendant in his Petition and supplemental filings and all of th

                                                   -13-
  s:\adman\sarcione\Nieves Noel   1st PCRA   1925a.docx




  analyses by PCRA Counsel, including the letter from plea counsel
                                                                   attached to his fin -I
  recommendation, we issued a final Order dismissing the Defendant's first
                                                                           PCRA Petitio
 on August 30, 2016.

                On September 24, 2016 the Defendant placed his Notice of
                                                                         Appeal in th
 prison mail system, thereby satisfying the requirements of Pa.
                                                                R.A.P. 903(a) pursuant t

 the Prisoner Mailbox Rule.         See Commonwealth         v.   Little, 716 A.2d 1287 (Pa. Supe       .




 1998)(regarding Prisoner Mailbox Rule).             Attached to his Notice of Appeal, Defendarlt

 appended a statement of the issues he wished to raise on appeal.
                                                                  Because Defenda
 filed this statement of his claims, we did not request a Concise
                                                                  Statement of Error
 Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). 1;(

               In his Statement, Defendant raised the following issues,
                                                                        Defendant claime
that PCRA Counsel abandoned him and failed to conduct an
                                                         adequate investigatio
which he suggests would have had to include a personal meeting or
                                                                  conference with th
Defendant, into Defendant's PCRA claims, including Defendant's claim that he wa

actually innocent of the crimes to which he pled and that his plea was not
                                                                           knowing]
voluntarily or intelligently entered due to his alleged medicated status and
                                                                             due to ple
counsel% -alleged maniPulatiVe and coercive' tactics'.               Defendant claimed that ple
counsel violated Lefler v. Cooper, 132 S.Ct. 1376 (U.S. Mich. 2012) and
                                                                        Missouri v. Frye,
132 S,Ct. 1399 (U.S. Mo. 2012), cert. denied, 132 S.Ct. 1789 (U.S.
                                                                   Mo. 2012) by insistin

that Defendant and his family "not question or attempt to interfere
                                                                    with his methods f
they know nothing of legal ramifications at work and to simply
                                                               rely upon his leg                    I




expertise because he ((plea counsel)), must do what's necessary
                                                                to apiese [sic] bot
[Defendant] and the Commonwelath."                  (Deft's Statement, 9/24/16,   at 4, para.

                                                 - 14 -
                                             (
    sAadmin\sarcione \ Nieves Noel 1" PCRA
                                           1925a.docx




     Defendant claimed that he was deprived of
                                                   the effective assistance of counsel
                                                                                          during th
     pretrial and plea bargaining phases of
                                              his prosecution and that plea
                                                                              counsel compelle
     Defendant's plea without Defendant's
                                            understanding and consent, in violation of the
                                                                                               Fift
    Sixth and Fourteenth Amendments to
                                             the United States Constitution and
                                                                                    Article I, §§
    and 14 of the Pennsylvania
                                    Constitution. Finally, Defendant claimed
                                                                                    that his ple
    counsel violated Von Moltke v. Gillies, 68
                                                S.Ct. 316 (U.S. Mich. 1948) by failing
                                                                                         "to get a
   opinion with the specifity (sic] and
                                         explicitness that the standards require, counsel
                                                                                               als
   failed to educate [Defendant] about his
                                              basic sentencing liabilities." (Deft.'s
                                                                                      Statemen
   9/24/16, at 5). In essence, as near as
                                               we can decipher, Defendant claim is
                                                                                         that ple
  counsel did not offer him adequate
                                         advice with respect to his options of
                                                                                 going to trial or
  taking a plea and did not advise
                                       Defendant about his sentencing
                                                                            exposure under th
  Statewide Sentencing Guidelines.

               Having reviewed the record in light of the
                                                          relevant constitutional, statuto
 and decisional law, we are now
                                   prepared to issue the following
                                                                   recommendations wit
 regard to the merits of Defendant's PCRA
                                           appeal.

                                       II.     DISCUSSION

                    A. Claims raised in November 4,
                                                    2011 PCRA Petition

               We will begin our analysis with the
                                                   claims Defendant raised      in his
November 4, 2011 PCRA Petition.

               Concerning Defendant's claim that plea counsel
                                                              was ineffective for failing      t
file a pre-trial motion to suppress, whether
                                             on the grounds of racial profiling or
                                                                                   improperl
obtained evidence, including identification
                                            evidence, Defendant waived his right to fil
pre-trial motions by tendering a negotiated
                                            guilty plea. See Commonwealth v.
                                                                              Reich!
                                             - 15 -
     s:\admin\sarcione\Nieves Noel 1.5` PCRA 1925a.docx




     589 A.2d 1140 (Pa. Super.
                                   1991)(generally, a plea of guilty amounts
                                                                               to a waiver of a I
    defects and defenses except those
                                          concerning the jurisdiction of the
                                                                             court, the legality
    the sentence, and the validity
                                   of the plea). In his Written Guilty
                                                                       Plea Colloquy, Defendart
   acknowledged that he was waiving his
                                           right to file pre-trial motions
                                                                           as a result if
   tendering his plea. In paragraph
                                      20 of Defendant's Written
                                                                    Guilty Plea Colloqu
   Defendant acknowledged the
                              following.

                   If I went to trial, I would have
                                                      the right to file motions
                  the Court for many different                                   asking
                                                     kinds of relief. Some of these
                  would be motions to quash or
                                                     dismiss the charges against me
                  for lack of evidence or for
                                                procedural defects; to suppress the
                  use of evidence against me
                                                         because it was obtained
                  unconstitutionally, as for instance by improper
                  an illegal search and                                 questioning or
                                            seizure; and to ask, that evidence
                 suppressed because it was                                          be
                                                     improperly obtained, such as
                 identification testimony. There could be
                 If I file such pre-trial                         other motions, also.
                                          applications, a Judge will have to rule on
                 them before the case could go to
                                                        trial. I am willing to give up
                 these rights.

   (Written Guilty Plea Colloquy,
                                     7/17/15, at 6, para. 20)(emphasis
                                                                            added). Defendart
_signed his initials on the_line to the
                                        bottom right of this paragraph and
                                                                             signed his name on
  the line at the bottom of the
                                page immediately below this
                                                               paragraph. (Written Guilty Ple
 Colloquy, 7/17/15, N.T. 6).
                               Defendant ackpowledged and agreed to
                                                                          the waiver of his rig
 to file pre-trial motions in
                                exchange for the tender of his guilty
                                                                            plea. There is n
substantive merit to Defendant's claim.
                                             See Commonwealth v.
                                                                      Williams, 899 A.2d 106
(Pa. 2006)(regarding three (3)
                                  prong test for ineffective assistance
                                                                        of counsel).
              With respect to Defendant's claim
                                                 that counsel was ineffective for
                                                                                  coercin
and manipulating him into
                             accepting the Commonwealth's plea
                                                                    offer, the Verbal an
Written Guilty Plea Colloquies belie
                                     the veracity of his claim. At the
                                                                        Verbal Guilty Ple

                                              - 16 -
      s: \admin \sarcione
                             \Nieves Noel   e PCRA 1925a.docx


       Colloquy, the Court asked the
                                       Defendant, "Has anyone threatened or
                                                                                forced you to pleao
       guilty?", to which Defendant
                                     responded, "No, sir." (Verbal Guilty
                                                                            Plea Colloquy, 7/17/15,
       N.T. 11). The Court then asked
                                         the Defendant, "Other than the
                                                                          promise contained in the
       plea agreement, has anyone
                                      promised you anything else to induce
                                                                              you to plead guilty?"
      to which the Defendant
                                responded, "No." (Verbal Guilty Plea
                                                                       Colloquy, 7/17/15, N.T. 11).
      In the Written Guilty Plea
                                  Colloquy, Defendant signed his
                                                                  initials2 on the line provided to
     the right of the following
                                statements.

                       VOLUNTARINESS OF PLEA:

                       I   agree that:

                              17.    No one has used any force
                       me in order to get me to enter
                                                                     or threats against
                                                      this plea of guilty.     Vsi NN
                               18.  No promises have been made
                       get me to enter this plea other             to me in order to
                                                        than what is set forth in the
                       plea bargain agreement, if any,
                                                       on page 3 and 4 of this guilty
                       plea form.
                               Vs/I NN

_(Written Guilty Plea_Colloquy,
                                7/17/15,_at 6).__Defendant alsosignecl _his
                                                                            name on_the lin
 provided at the bottom of the page
                                      containing these two paragraphs.
                                                                        (Written Guilty Ple
 Colloquy, 7/17/15, at 6). Further, in the
                                           Verbal Guilty Plea Colloquy the
                                                                            Court asked th
 2
   This Court asked Defendant on
                                   the record at the Verbal Guilty Plea
 colloquy?", to which Defendant                                         Colloquy, "Did you sign and Initial the guilty
                                    responded, "Yes, I have." (Verbal                                                   pie'
 followed up by asking Defendant,                                         Guilty Plea Colloquy, 7/17/15, N.T.
                                     "Old you review It with Mr. Jurs                                              11).  W
 (Verbal Guilty Plea Colloquy,                                        (plea counsel) before you signed
                               7/17/15, N.T. 11). Defendant again                                        and  Initialed it?'
 7/17/15, N.T. 11). The end of the                                     responded, "Yes." (Verbal Guilty Plea
                                    Written Guilty Plea Colloquy also contains                                    Colioqu
                                                                                an attestation which reads:

                   AFFIRM THAT I HAVE RED THE
                   I
                                                 ABOVE DOCUMENT IN ITS
                  UNDERSTAND ITS FULL MEANING, AND                          ENTIRETY AND I
                                                      I AM STILL,
                  ENTER A PLEA OF GUILTY TO THE                   NEVERTHELESS, WILLING TO
                                                OFEFNSES SPECIFIED. I FURTHER
                  MY SIGNATURE AND                                            AFFIRM  THAT
                                    INITALS ON EACH PAGE OF THIS
                                                                           DOCUMENT ARE TRUE AND
                  CORRECT.

(Written Guilty Plea Colloquy, 7/17/15, at
                                           9). Defendant signed his
of this paragraph. (Written                                         name on the line provided below
                            Guilty Plea Colloquy, 7/17/15, at 9).                                   and to the righ


                                                       - 17 -
   s:\admin\ sarcione \ Nieves Noel
                                      1st PCRA   1925a.docx




   Defendant, "Have you had time to
                                          discuss your case and go over
                                                                               things with Mr. Jur
   [plea counsel]?". (Verbal
                              Guilty Plea Colloquy,
                                                         7/17/15, N.T. 10). Defendant replie
  "Yes, I have." (Verbal Guilty
                                   Plea Colloquy, 7/17/15, N.T.
                                                                     10). The Court then aske
  "Are you satisfied with his
                              services?", to which Defendant
                                                                   replied, "Yes." (Verbal Guilt
  Plea Colloquy, 7/17115, N.T.
                                10). Finally, in the Written
                                                                Guilty, Plea Colloquy, Defenda t
  was asked, "Do you understand
                                    the charges against you'?"
                                                                   (Written Guilty Plea Colloqu
 7/17/15, at 6, para. 15). Defendant
                                         wrote on the line to the right of
                                                                              this question, "Yes
 and placed his initials on
                            the line immediately below his
                                                                response. (Written Guilty Ple
 Colloquy, 7/17/15, at 6, para. 15).
                                          The Written Guilty Plea
                                                                       Colloquy then asked th
 Defendant, "Are you able to work
                                      with your lawyer in responding
                                                                          to those charges?", t
which Defendant wrote "Yes" on
                                   the line to the right of the
                                                                question and placed his initial
on the line immediately
                         below his response. (Written Guilty
                                                                  Plea Colloquy, 7/17/15, N.
6, para. 16). At the end
                            of the Written Guilty Plea
                                                            Colloquy, the Written Guilty Ple
Colloquy contained the following
                                   paragraphs.
               TO MY LAWYER:

                     39.    I  have had enough time to
              charges with my lawyer, and I am             discuss these
              that he has given me, and         satisfied with the advice
                                          with his representation of
              before this Court.                                         me
                                                                  [Ist] NN
                     40.    I have gone over this
              attorney, and he has explained it      document with my
                                                to me and answered any
              questions I have concerning it.
                                                               [/s/] NN
                    41.     I further agree that, although I
             assisted by my attorney, it is my                 have been
                                                 own decision to enter the
             plea that I [am) making here
                                          today.                  [/s/] NN




                                                  - 18 -
a
           s:\admin\sarcione\Nieves Noel   PCRA 1925a.docx




          (Written Guilty Plea Colloquy,
                                          7/17/15, at 9, paras. 39-41).
                                                                         Defendant signed his initial?
          on the lines provided to the
                                        right of each paragraph, and
                                                                        signed the affirmation belo
          acknowledging that

                         IAFFIRM THAT I HAVE READ THE
                        ITS ENTIRETY AND I
                                                      ABOVE DOCUMENT IN
                                           UNDERSTAND ITS FULL MEANING,
                        AND I AM STILL,
                                        NEVERTHELESS, WILLING TO ENTER A
                        PLEA OF GUILTY TO THE
                                                  OFFENSES SPECIFIED.    I
                        FURTHER AFFIRM THAT MY
                        ON EACH PAGE OF THIS      SIGNATURE  AND INITIALS
                                                DOCUMENT ARE TRUE AND
                        CORRECT.

         (Written Guilty Plea Colloquy,
                                        7117/15, at 9). Defendant's claim
                                                                             that he was coerced an
         manipulated into entering his plea is
                                                 contrary to his verbal and written
                                                                                     averments at th
         Guilty Plea Colloquy. A defendant
                                             may not challenge his guilty plea
                                                                                  by asserting that h
        lied to the Court under oath.
                                          Commonwealth v. Yeomans, 24 A.3d 1044
                                                                                          (Pa. Supe
        2011), reargument denied (August
                                            18, 2011). Defendant's claim
                                                                            that his counsel coerce
        and manipulated him into
                                   pleading guilty has no substantive
                                                                       merit.
                                     With respect to Defendant's
                                                                 claim that plea counsel was
         ineffective for falling to develop a strategy
                                                        to support Defendant's
                                                                                alleged claim of actu I
        innocence, again we note that Defendant
                                                       pled guilty. Defendant admitted
                                                                                          on the record
        in open court that he
                                   committed the crimes that were the
                                                                          subject of the plea bargai
        (Verbal Guilty Plea Colloquy,
cig                                       7/17/15, N.T. 5,, 7-8). He
                                                                       acknowledged in writing on th
        Written Guilty Plea Colloquy that "I
                                                admit committing the crimes to
                                                                                 which I am pleadin
       guilty" and "I acknowledge that the
                                                facts occurred as set forth on
                                                                                 page 2 of this form.
       (Written Guilty Plea Colloquy,
                                          7/17/15, at 5). He signed each and
                                                                                    every page of th
      Written Guilty Plea Colloquy,
                                          including the pages setting forth the
                                                                                    offenses and th
      factual basis for the plea and placed
                                                    his initials next to every
                                                                               numbered paragrap
                                                  R729   '7-,
  s:\admin \sarcione\Nieves Noel   1st PCRA   1925a.docx




  (Written Guilty Plea Colloquy, 7/17/15, at 1-9; Guilty. Plea
                                                               and Sentencing Transcrip

 7/17/15, N.T. 11). Never once did Defendant protest or even
                                                             suggest in any way that          h

 was innocent of the crimes to which he was pleading.

                 Further, as plea counsel noted in his letter to PCRA Counsel,
                                                                               the evidence
 against the Defendant was strong. There was video
                                                   surveillance footage of the crime
 showing the perpetrator to have the same distinctive tattoo
                                                             that Defendant has on hi
 right arm, eyewitness despLiptions from the victims, and, at
                                                              his home, according to th

 Search Warrant Receipts/Inventories, Detectives found a cash
                                                              register drawer, a stu
 gun, $427.00 in U.S. currency, various weapons and a pair
                                                           of size 9 Timberland shoe-.
 Defendant has a prior conviction for. Robbery, for which he was
                                                                 sentenced to four (4) t
eight (8) years in a State penitentiary and for which he was on
                                                                State Parole at the tim

these crimes were committed. Defense counsel did not
                                                     develop          a   strategy to suppo
Defendant's alleged claim of actual innocence because Defendant never
                                                                      made such
claim. Defendant's post -sentence attempt to raise such a claim
                                                                now rings hollow in light

of his admissions during the negotiated guilty plea
                                                    colloquy, the strength of th

Commonwealth's case, and his prior record.

               "A guilty plea is not a ceremony of innocence, it is an occasion where
                                                                                      one
offers a confession of guilt." Commonwealth v. Watson, 835 A.2d 786 (Pa.
                                                                         Super. 2003
Further,

               A defendant may plead guilty for any reason: to shield others,
               avoid further exposure, to diminish the penalty, to be
                                                                         done
              with the matter, or any secret reason that appeals to his
              needs. What is generally and most objectively accepted is
              that a plea is offered to relieve conscience, to set the record
              straight and, as earnest of error and repentance, to accept the
              penalty.

                                                  -20-
    s:\adtnin\sarcione\Nieves Noel 1n PCRA 1925a.docx




   Commonwealth          v,   Watson, 835 A.2d 786 (Pa. Super. 2003).
                                                                                Defendant's belate
   attempt to suggest that he is actually
                                            innocent of the crimes to which he pled afte
   extensive record oral and written colloquy is
                                                 belied by the evidence. His attempt to cas
   aspersions upon counsel for failing to "develop a
                                                     strategy" to support this spurious claim
   is   without merit.

                   Turning to Defendant's claim that plea
                                                          counsel was ineffective for failing to
  file a post -sentence motion for
                                   modification, we note, as did First Assistant Publi

  Defender Nathan M. Schenker, Esquire in his
                                              August 17, 2015 letter to the Defendan',
  that Defendant's request was not received
                                            by the Office of the Public Defender o
  Chester County until August 13,2015, well after the
                                                      expiration of the ten (10) day perio
 provided by the Rules of Criminal Procedure for
                                                 filing post -sentence motions. See             P

 R.Crim.P. 720(A)(1)("[A] written post-sentence
                                                motion shall be filed no later than 10 day
 after imposition of sentence."). (See also
                                            Verbal Guilty Plea Colloquy, 7/17/15, N.T.              2

_["You also have the right to file with this. Court,
                                                     within ten days _of today in_writing, a post
 sentence motion."]; Written Guilty Plea Colloquy,
                                                   7/17/15, at 8, para. 34 ["I have ten        (1

 days from the date I arn sentenced within
                                           which to the optional motions with this Court fo
post -sentence relief[.]"]).      Further, Defendant tendered a negotiated guilty
                                                                                  plea.       Thi
Court is unable to modify the terms of      a   negotiated plea at the unilateral request of eithe
party.     Commonwealth v. Coles, 530 A.2d 453 (Pa. Super.
                                                           1987), appeal denied, 55
A.2d 34 (Pa. 1989). Therefore, a post
                                      -sentence motion for modification would have bee

frivolous.     Counsel cannot be deemed ineffective for
                                                        failing to file a frivolous motion




                                                - 21 -
    sAadmin\salcione\Nieves Noel 1"    PCRA 1925a.docx




    Commonwealth         v.    Vesay, 464 A.2d 1363 (Pa. Super. 1983).
                                                                              Defendant's claim           djf

   ineffective assistance of counsel has no substantive merit.

                   With respect to Defendant's claim that his plea
                                                                   agreement was "the result o
   unethical behavior or activity" on the part of plea counsel,
                                                                whom he alleged was "part'                    I



   to the police" and "deliberately manipulated the
                                                    [Defendant] into taking a Plea of Guil                    "

   (see Deft.'s PCRA Petition, 11/4/15, at 12, para. 2),
                                                         we have already demonstrate

  above, by Defendant's own admissions during the Verbal
                                                         Guilty Plea Colloquy and                     i


  writing in the Written Guilty Plea Colloquy, that counsel did
                                                                not manipulate Defendant int

  tendering a plea.           Thus, Defendant's claim that his counsel's alleged
                                                                                 manipulation of
  Defendant constitutes "unethical behavior or activity" on behalf
                                                                   of an attorney who is
  partisan of the police department has no substantive merit.
                                                                               To the extent th
  Defendant's allegations against plea counsel,          a   well -respected member of the Chester

 County Public Defender's Office, of "unethical behavior or activity"
                                                                      and/or "partial[ity]        t

 the police" relate to some other unidentified
              .
                                               conduct on the part of counsel, the
 constitute undeveloped, generalized, boilerplate attacks
                                                          upon the integrity of couns                     I




 without any factual substantiation. As such, they do not support a
                                                                    claim for PCRA retie
 Commonwealth       v.   Natividad, 938 A.2d 310 (Pa. 2007)(a petitioner under the PCRA mu t

exhibit a concerted effort to develop his ineffectiveness
                                                          claim and may not rely on
boilerplate allegations of ineffectiveness).

                  For all of the foregoing reasons, the issues Defendant
                                                                         raised in hi
November 4, 2015 PCRA Petition have no merit and will not support
                                                                  a claim for PCR

relief.




                                                -22-
   sAadrnin sarcione \Nieves Noel 1'` PCRA
                                           1925a.docx




                                B. Claims raised in March 4, 2016 Letter

                 The first claim Defendant raised in his March
                                                               4, 2016 pro se letter to th

  Court is that he is actually innocent of the crimes to
                                                         which he pled on July '17, 2015. W
  have already addressed the merits of this
                                            claim above.                   We would respectfull
  incorporate herein by reference and refer this Honorable
                                                           reader to that portion of ou
  Opinion above that explains the reasons why we
                                                 conclude that Defendant's assertion tha
  he is actually innocent of these crimes has no
                                                 merit and does not warrant PCRA relief.

         Defendant's second claim repeats his challenging to the
                                                                 accuracy of th
 identification evidence against him. Again, as we noted
                                                         above, Defendant waived hi
 right to challenge the identification evidence against
                                                        him by tendering a negotiated plea.
 See Commonwealth         v.   Reichle, 589 A.2d 1140 (Pa Super. 1991)(generally, a
                                                                                    plea o
 guilty amounts to a waiver of all defects and
                                               defenses except those concerning th
 jurisdiction of the court, the legality of the sentence, and
                                                              the validity of the plea). (Se
 also Written Guilty Plea Colloquy, 7/17/15, at 6,
                                                   para. 20).           We would respectful)
 incorporate herein by reference and refer this Honorable reader
                                                                 to that portion of ou
 Opinion above which addresses Defendant's waiver of
                                                     his right to file pre-trial motions.
We respectfully recommend for the reasons
                                          aforestated that Defendant'S Claim has            n

merit and does not warrant PCRA relief.

               The third issue Defendant raised in his March 4,
                                                                2016 pro se letter to th
Court is that there is exculpatory evidence in this case
                                                         that was not presented to th
Court. This letter must be read in conjunction with the
                                                        allegations he raised in his April 6,
2016 letter to PCRA Counsel that was appended
                                              to his April 20, 2016 motion for a
extension of time in which to file         is   Rule 907(1) Response.       Therein, Defendant

                                                - 23 -
             s: \admin Varcione \Nieves   Noel   ft PCRA 1925a.docx


             delineates the basis of his claim. He claims that        a   cigarette butt was recovered from th
            scene of one of the crimes. He states that Detectives
                                                                  swabbed his mouth for DNA an
            tested the results. He states that the results came back
                                                                     negative. Defendant claims that
            this means he could not have been the perpetrator of
                                                                 the robberies.              Defendant claim
            that his plea counsel knew the results of the DNA
                                                              test "after the Chester Count
            Detectives retrieved      a    warrant for the DNA swab."         (Deft.'s Emergency Motion for

            Enlaregment [sic] of Time, 4/20/16, Attached Letter to PCRA
                                                                        Counsel dated April
            2016, at 2).     Importantly, Defendant is not claiming that the Commonwealth
                                                                                          withhel
            exculpatory evidence from him,

                            Defendant is mistaken about the exculpatory value of the
                                                                                     evidence               h

           describes. At best, the lack of a match between his DNA and
                                                                       the DNA on the cigarett
           butt means that he probably did not smoke that particular
                                                                     cigarette. It does not mean            h

           did not commit any of the three (3) armed robberies to
                                                                  which he pled.                  The factu     I


           predicate for these crimes do not include descriptions of
                                                                     the perpetrator smoking

     c.)   cigarette. The evidence Defendant claims exonerates him is not
                                                                          exculpatory.                Had hi
           DNA been found on the cigarette, that would have made the
                                                                     Commonwealth's case eve
           stronger, which is probably why his DNA was tested. However,
                                                                        the fact that his DNA wa
           not found on the cigarette butt does nothing to
                                                           exonerate him from the commission of
           these crimes.

                           Further, as we already stated, Defendant tendered a negotiated guilty
                                                                                                 plea.
                            A guilty plea is an acknowledgement by a defendant that he
                         participated in the commission of certain acts with a criminal
                         intent. He acknowledges the existence of the facts and the
                         intent. The facts that he acknowledges may or may not
                                                                                     be
                         within the powers of the Commonwealth to prove. However,


it
                                                             -24-,
   s:\admin \sarcione \Nieves Noel   ft PCRA 1925a.docx


                  the plea of guilt admits that the facts and intent
                                                                     occurred; and
                  is a confession not only of what the
                                                            Commonwealth might
                  prove, but also as to what the defendant knows
                                                                          to have
                  happened.

                  I




                   A guilty plea is not a ceremony of
                                                             innocence, it is an
                  occasion where one offers a confession of guilt.
                                                                              If a
                 defendant voluntarily, knowingly, and intelligently wishes to
                 acknowledge facts that in themselves constitute an 'offense,
                 that acknowledgement is independent of the
                                                                   procedures of
                 proving or refuting them. How they would be
                                                                    proved, what
                 burdens accompany their proof, what privileges exist to
                                                                             avoid
                 their proof, what safeguards exist to determine their
                                                                        accuracy,
                 and under what rules they would be determined,
                                                                    by whom and
                 how, are irrelevant. The defendant is before the
                                                                          court to
                acknowledge facts that he is instructed constitute a crime. He
                is not there to gauge the likelihood of their
                                                              proof, nor to weigh
                them in the light of the available procedures for their
                                                                            proof.
                He is there to voluntarily say what he
                                                                knows occurred,
                whether the Commonwealth would prove them or not, and
                that he will accept their legal meaning and
                                                                      their legal
                consequences.

 Commonwealth         v.   Watson, 835 A.2d 786, 796-97 (Pa. Super. 2003)(emphasis
                                                                                   omitted).
Defendant admitted_that he committed_the crimes which
                                                      were_the_subject of the ple
colloquy.    His plea was knowingly, voluntarily and
                                                     intelligently entered.         Assuming fo
purposes of argument that the cigarette butt evidence was
                                                          exculpatory, Defendant neve
mentioned the existence of the cigarette butt, the DNA test, or
                                                                the lack of a match in th

results to the Court. He did not assert his innocence in any way.

                Because the lack of        a   DNA match on the cigarette butt is not exculpato

and because Defendant tendered a knowing,
                                          voluntary and intelligent plea,
respectfully submit that the third issue Defendant raised in his March
                                                                       4, 2016 pro s

letter to the Court has no merit and does not warrant PCRA
                                                           relief.
 s:\admin\sarcione\Nieves Noel   1st PCRA   1925a.docx




                 The fourth issue Defendant raised in his March 4, 2016 pro se letter to th

 Court claims that counsel was ineffective for advising Defendant that if he did not plea

 he would be convicted and face thirty (30) to sixty (60)        years in prison and that he shoul

 just "take the deal" so that he will still be able to see his son. Defendant claims that as

 result of this advice, he "got scared" and "gave up" on himself and accepted the pie

 because he felt like no one was "on [his] side" in spite of all of the evidence that               h

 alleged demonstrates his actual innocence.              (Deft.'s Letter to the Court, 3/4/16, at   1



 Defendant's claims have no merit.

                  Plea counsel was not ineffective for advising the Defendant that if he wen

 to trial, it was likely   that he would be convicted. The Commonwealth's case was stron

 Plea counsel has a duty to advise Defendant of his options, including the likelihood of hi

success if he chooses to go to trial.            Plea counsel was not ineffective for giving th

Defendant his professional opinion in this regard.              His advice to Defendant was n

outside the parameters of that which is expected of attorneys practicing criminal la

See Commonwealth v. Wah, 42 A.3d 335 (Pa. Super. 2012)(where the defendant enter

his plea on the advice of counsel, the voluntariness of the plea depends on wheth

counsel's advice was within the range of competence demanded of attorneys in criminal

cases).

                With respect to the amount of time plea counsel advised Defendant he

could face, plea counsel's advice was likewise accurate.            Indeed, the Court advised th

Defendant on the record in the Verbal Guilty Plea Colloquy that the maximum sentenc

he could receive on each offense to which he was              tendering his plea was twenty (2

years in prison. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 12). The Court stated, "If yo

                                                 - 26 -
 s:\admin sarcione \ Nieves Noel   PCRA   1925a.docx




 were maxed out, you could receive sixty years in prison and seventy-five thousand

 dollars in fines."    (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 12).        Defendant's Prio

 Record Score is RVOC. (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 13). Further, the firs,

and second pages of Defendant's Written Guilty Plea Colloquy set forth the maximun

penalties Defendant faced if he went to trial and was convicted on each of the crimes         t


which he pled. (Written Guilty Plea Colloquy, 7/17/15, at 1-2). The Written Guilty Ple

correctly identified these maximum penalties as twenty (20) years' confinement pe

Robbery, with maximum fines of $25,000.00 each as well.                See 18 Pa. C.S.A.

1103(1)(Sentence of imprisonment for Felony of the First Degree).                The maximum

recited were only for the offenses to which Defendant tendered his plea. Defendant wa

charged in the Informations at both dockets with many, many more offenses than th

three (3) Robberies to which he pled. Plea counsel has a duty to advise Defendant of hi

exposure in the event he chooses to go to trial and is convicted.             There was nothin

inaccurate, misleading, coercive or manipulative about plea counsel's advice to th

Defendant that if he were convicted on the three offenses to which he was being asked t

plead alone he would face thirty (30) to sixty (60) years in prison. It is a faci that on thos

three (3) Robberies alone, Defendant could have received that much time in prison. It         i




certainly understandable that Defendant might become "scared" and decide tha

accepting the Commonwealth's plea offer for two concurrent terms of ten (10) years           i




prison followed by a ten (10) year probationary tail would be preferable to spending thirt

(30) years in prison, particularly in light of the strength of the Commonwealth's case. It    i




also understandable that a desire to see his son grow up might influence his decisio

concerning the advantages of taking the plea. See Commonwealth           v.   Watson, 835 A.2

                                               - 27 -
 s:\admin sarcione \ Nieves Noel   151   PCRA 1925a.docx




 786 (Pa. Super. 2003)("A defendant may plead guilty for any reason:                       to shield other

 avoid further exposure, to diminish the penalty, to be done with the matter, or any secret

 reason that appeals to his needs."). However, that does not make counsel's performanc

 deficient. Counsel was not ineffective in any way for advising Defendant that he face

thirty (30) to sixty (60) years in prison if he went to trial on the charges for which th

Commonwealth was seeking the plea, or for pointing out to Defendant, if indeed he di

so, that a sentence of ten (10) years in prison would be more beneficial to him in terms

his ability to parent his son than would a sentence of at least thirty (30) consecutiv

years' incarceration. Counsel has               a   duty to advise Defendant of the advantages an

disadvantages of his respective options.                   As Defendant acknowledged in his Writte

Guilty Plea Colloquy, "I further agree that, although               I   have been assisted by my attorney,

it is my own decision to enter the plea that                I   [am] making here today." (Written Guilt

Plea Colloquy, 7/17/15, at 9, para. 41). Defendant's fourth claim of ineffective assistanc

of counsel has no substantive merit and will not support a claim for PCRA relief.

       Finally, in Defendant's March           4,   2016 pro se letter to the Court, Defendant claime

that his guilty plea was not knowingly, voluntarily or intelligently entered becaus

contrary to what he advised the Court on the record at the Verbal Guilty Plea Collo4

he was on medication that impaired his ability to understand what he was doing and                       t


make rational judgments. This contention has no merit.                      The record reflects that durin

the Verbal Guilty Plea Colloquy, the following exchange took place.

               THE COURT: And are you presently under the influence of
               any drugs, alcohol or medicine?

               NOEL NIEVES: No.


                                                     - 28 -
s:\admin\sarcione\Nieves Noel 1"   PCRA 1925a.docx




               THE COURT: And do you suffer from any mental illness or
               anything else that would cause you not to understand me?

                NOEL NIEVES: No.

(Verbal Guilty Plea Colloquy, 7/17/15, N.T. 3).               Defendant claims that he lied at th

Verbal Guilty Plea Colloquy at the instruction of plea counsel. As we pointed out in ou

July 22, 2016 Order issued in response to his July 18, 2016 letter requesting free copie

of his transcripts and court records, to prove that his plea was not voluntary due to hi

having been under the influence of mind -altering medication, "the longstanding rule o

Pennsylvania law is that a defendant may not challenge his guilty plea by asserting th                 It



he lied under oath, even if he avers that his counsel induced the lies." (Order, 7/22/16,

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

reargument denied (August 18, 2011)). Further,                this   Court   had   the opportunity t

observe and speak with the Defendant on the record during the Guilty Plea Colloquy an

there was nothing about the. Defendants demeanor or responses that suggested to th

Court that his cognition was impaired in any way.__The final claim Defendant raised in hi

March 4, 2016 pro se letter to the Court has no merit and, like the others, will not suppo

P claim   for PCRA relief.

  C. Claims raised in April 20, 2016 "Emergency Motion for Enlareqment (sic] of Time"

       The first claim Defendant raised            in    his Emergency Motion for Enlar[ge]ment    of

Time, which he mailed to the Court on April 20; 2016, aside from his request for aril

extension of time in which to file his Rule 907(1) Response, which was granted, albeit

for the full amount of time that the Defendant requested, is that PCRA Counsel'

stewardship of his PCRA Petition was deficient in that PCRA Counsel failed t


                                               - 29 -
  s: \admin \sarcione   \ Nieves Noel 1't PCRA1925a.docx



 adequately investigate Defendant's claims or to meet or speak personally
                                                                          with th

 Defendant "to discuss the status of Defendant's guilty plea colloquy." (Deft.'s
                                                                                 Emergenc

 Motion, 4/20/16, at 1). As we have already demonstrated, none of the
                                                                      issues Defenda
 raised heretofore have any substantive merit. PCRA Counsel's conclusion
                                                                         in his Janua

 27, 2016 Petition for Leave to Withdraw, as supplemented by his
                                                                 March 17, 2016 lette

 that Defendant's PCRA claims have no merit is supported by the facts
                                                                      of record an
 relevant law and there is no basis upon which to impugn PCRA counsel's
                                                                        stewardship a
 of April 20, 2016,

         The remainder of the issues raised in Defendant's April 20, 2016
                                                                          "Emergenc
 Motion for Enlar[ge]ment of Time" are found in the letter he wrote to
                                                                       counsel dated Apr
 6, 2016   which he appended to his Emergency Motion. Therein, Defendant reiterates
                                                                                    hi

claim of actual innocence, his challenge to the accuracy of the identification
                                                                               evidenc
against him, repeated his challenge to the alleged defects in the execution of
                                                                               the searc

warrants issued for his residence, renewed his claim concerning the
                                                                    cigarette butt, an
again asserted that his plea was not knowingly, voluntarily or
                                                               intelligently entere
because he was heavily medicated at the time he was colloquized. We have
                                                                         addresse

all of these issues above and would respectfully incorporate herein
                                                                    by reference and refer

this Honorable reader to those portions of our present Opinion that
                                                                    address these matter

above.

         The only new claim Defendant raised was a challenge to the effectiveness of ple

counsel for plea counsel's alleged failure to call a witness Defendant only
                                                                            identifies a

"Charlie" who, according to the Defendant, would have established an alibi for th

Defendant for the October 15, 2014 Robberies.                  Defendant attached to his Motion th

                                                     30    -
      s:\admin\sarcione\Nieves Noel   PCRA 1925a.docx




     letter written to him by plea counsel on February
                                                        25, 2015 indicating that plea counsil

     spoke to "Charles" and that "Mt was a
                                              favorable discussion, but I would prefer to tank
     about it in person rather than by letter." (Letter
                                                        from Peter Jurs, Esq. to Defendant date

     February 25, 2015, at 1). Plea counsel's letter does
                                                          not indicate that Charles/Charlie wa
     consulted about an alibi nor does it state, as
                                                    Defendant suggests, that plea couns
     represented to Defendant that he intended to call
                                                       Charles/Charlie to "prove [Defendant's
     innocence" at trial. (See Deft.'s Letter to PCRA
                                                      Counsel dated April 6, 2016 at para. 2)
    Indeed, in plea counsel's subsequent letter to
                                                   PCRA Counsel dated August 15, 201
    plea counsel stated, "[Tjhere were no viable
                                                 defenses." (See PCRA Counsel's Letter t
    Court dated August 16, 2016, attached Letter from
                                                      Plea Counsel dated August 15, 201
    at 1).   Notwithstanding plea counsel's apparent awareness of
                                                                  "Charles/Charlie" or th
    dubious relevance of this witness to Defendant's case
                                                          in light of plea counsel's Augus

    15, 2016 letter, Defendant's argument
                                          overlooks the fact that he elected to plead guilty
    admitting to the facts of the crimes and the criminal
                                                          intent, and declining to advance any
 alibi defense against the charges to which he
                                               pled. As we stated earlier,

                   A defendant may plead guilty for any reason: to
                                                                     shield others,
                   avoid_ further exposure, to diminish the penalty,
                                                                      .to be done_
                   with the matter, or any secret reason that appeals
                                                                            to his
                   needs. What is generally and most objectively
                                                                       accepted is
                   that a plea is offered to relieve conscience, to set the
                                                                            record
                   straight and, as earnest of error and repentance, to accept
                                                                               the
                   penalty.

Commonwealth v. Watson, 835 A.2d 786 (Pa. Super. 2003). By
                                                           pleading guilty as part of
a     negotiated     agreement with     the Commonwealth,       Defendant    opted    to    acceptI
responsibility for the crimes charged and obviated the need for
                                                                counsel to call witnesse
or advance an inconsistent alibi defense on his
                                                behalf. See Commonwealth              v.   Casne
                                              -31-
   sAadmin \sarcione \Nieves Noel   PCRA 1925a.docx




  461 A.2d 324 (Pa. Super. 1983)(no
                                    ineffective assistance of counsel            for failure t
  investigate possible alibi witnesses where plea counsel
                                                          testifies that defendant never tol
  him he was innocent but instead "virtually
                                             admitted the crime and said he would plead.'
  Here, plea counsel did take steps to investigate
                                                   the potential alibi, but as his letter t

  PCRA Counsel dated August 15, 2016 indicates,
                                                plea counsel ultimately determined th .t
  no viable alibi defense existed. Moreover,
                                             Defendant has not alleged, and none of hi
  "exhibits" establish, that this proposed witness would
                                                         have been available or willing t
 testify on his behalf at any trial.     See Commonwealth v. Pander, 100 A.3d 626
                                                                                  (P
 Super. 2014), appeal denied, 109 A.3d 679 (Pa.
                                                2015)(elements of test for ineffectiv
 assistance of counsel with respect to claim that counsel
                                                          failed to investigate or call
 witness).     For all of these reasons, we conclude that
                                                          Defendant's claim that plea counsel
 was ineffective for failing to investigate or call an
                                                       alibi witness has no merit and will   n

 support   a   claim for PCRA relief.

        Because none of the claims Defendant incorporated into
                                                               his "Emergency Motio
for Enlaregment [sic] of Time" have any merit,
                                               Defendant is not entitled to PCRA relief.

                    D. Claims raised in June 20,   2016 Rule 907(1) Response

       The first claim Defendant raised in his June 20, 2016 Rule
                                                                  907(1) Response is th .t
PCRA Counsel's stewardship was deficient in that PCRA
                                                      Counsel failed to adequatel
investigate Defendant's issues, failed to remedy the defects in
                                                                Defendant's Petition, an
failed to adequately meet or speak with the
                                            Defendant to discuss the status of th

Defendant's PCRA Petition. As we agreed with PCRA Counsel,
                                                           for all of the reasons            s t

forth above, that none of Defendant's issues have any
                                                      substantive merit, a circumstanc



                                             -32-
    s: \adminVarcione \Nieves
                                Noel   151   PCRA 1925a.docx




   that does not lend itself to remedy,
                                        Defendant's claims of ineffective stewardship
                                                                                      on th
   part of PCRA Counsel have no
                                   merit and do not warrant PCRA relief.

           The second claim Defendant
                                           raised in his June 20, 2016 Rule 907(1)
                                                                                     Response i
   that his plea counsel coerced his plea
                                             by advising him (a) that his
                                                                          chances of an acquitt I
   if he went to trial were "close to
                                      0", (b) that Defendant, as a
                                                                   once convicted Felon, woul
  not be entitled to the presumption
                                           of innocence, and (c) that, if
                                                                           convicted, Defendant
  would be sentenced under the
                                    "Repeated Offender Act" [sic) to a
                                                                         mandatory thirty (30) t
  sixty (60) years in prison. We
                                          have already addressed the fact
                                                                               that the recor
   demonstrates that plea counsel did not coerce
                                                      Defendant into accepting a plea. We hay
   also already addressed the fact that
                                           plea counsel's alleged advice to
                                                                             Defendant that, if h
   went to trial, he would likely be
                                      convicted or have a "close to 0" chance
                                                                                    of acquittal, i
  light of the strength of the
                                 Commonwealth's case and plea counsel's
                                                                                 conclusion, after
  investigation, that Defendant had no viable
                                                         defenses, was within the range of
  competence demanded of attorneys who
                                                 practice criminal law. See
                                                                               Commonwealth i.
  Wah, 42 A.3d 335 (Pa. Super.
                                    2012)(where the defendant enters his plea on
                                                                                       the advic
 of counsel, the voluntariness of
                                    the plea depends on whether counsel's
                                                                               advice was withi
 the range` of competence-
                                 demanded of attorneys in criminal cases).
                                                                                       We woul
 respectfully incorporate herein by reference
                                                   and refer this Honorable reviewing
                                                                                         Court t
those portions of our present Opinion
                                           which address these claims above
                                                                                  and submit, for
all of the reasons
                      aforestated, that these claims of counsel's
                                                                       ineffectiveness have n
merit and do not warrant PCRA
                                   relief.




                                                    - 33 -
     sAadmin sarcione \ Nieves Noel         1'1   PCRA1925a.docx




            As for Defendant's claim that plea counsel was ineffective for
                                                                           advising Defenda
     that, as a convicted Felon, he would not be entitled to the
                                                                 presumption of innocence,
     Defendant's claim is belied by the record. At the. Verbal Guilty Plea Colloquy, this
                                                                                          Cou
     asked Defendant if he reviewed the Written Guilty Plea Colloquy with his
                                                                              plea couns
     before he signed it. (Verbal Guilty Plea Colloquy, 7117/15, N.T. 11).
                                                                           Defendant replie
  "Yes." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 11). The Written Guilty Plea
                                                                                  signed                               b

  the Defendant advises the Defendant at paragraph 25 that

                   In order to be convicted,  I would have to be proven
                                                                         guilty
                   beyond a "reasonable doubt." A reasonable doubt is a doubt
                   which would cause a person of reasonable prudence to
                   hesitate before acting in a matter of importance to him or
                   herself. I am presumecf innocent, and if the Commonwealth
                   cannot prove me guilty beyond a reasonable doubt, l must be
                   set free on these charges.

 (Written Guilty Plea Colloquy, 7/17/15, at 7, para. 25). Defendant signed his initials in th

 line provided to the right of this paragraph and signed his name to
                                                                     the bottom of th
 page.       (Written Guilty Plea Colloquy, 7/17/15, at 7).                      Thus, there is no merit t

 Defendant's contention that his plea counsel did not advise him of the
                                                                        presumption
 innocence or advised him that he would not be entitled to the presumption of
                                                                              innocenc




33This Is the first claim we Identified in our July 22, 2016 Order directing PCRA
                                                                                  Counsel to review Defendant's Rule
907(1) Response and pro se letter dated July 18, 2016. We stated in our July 22,
                                                                                    2016 Order,

                  PCRA   Counsel       shall      review both Defendant's Rule 907(1) Response and
                  Defendant's pro      letter dated July 18, 2016 and advise the Court In writing
                                       se
                  within thirty (30) days of the date of this Order as to whether Defendant Is
                  entitled to an evidentiary hearing on the following Issues: (a) whether plea
                  counsel misadvised Defendant of the applicable law (see Rule 907(1) Response,
                  6/20/16, at 2 ((Reason -1111.)"

(Order dated July 22, 2016, at   1).


                                                           - 34 -
   s:\admin Varcione \ Nieves Noel 1sIPCRA 1925a.docx




  because of his prior conviction.         Plea counsel, in his letter to PCRA Counsel
                                                                                       date
  August 15, 2016, specifically states

                  In my discussions with Mr. Nieves, I never
                                                                    told him that
                 because of prior convictions he lost the presumption
                                                                                 of
                 innocence under the law. Mr. Nieves, like any
                                                                        defendant
                 charged in a criminal matter, had the presumption
                                                                                 of
                 innocence up until the point he plead guilty and if asked
                                                                            stated
                 as such[.]

  (PCRA Counsel's Letter to Court dated August 16,
                                                   2016, attached Letter from Ple

  Counsel to PCRA Counsel dated August 15, 2016).
                                                  Furthermore, at the beginning of th
 Verbal Guilty Plea Colloquy, this Court asked Defendant
                                                         on the record in open cou

 "And do you understand, young man, that you're
                                                presumed to be innocent, you have th
 right to a jury or non -jury trial?"        (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 4).

 Defendant replied, "Yes, sir." (Verbal Guilty Plea
                                                    Colloquy, 7/17/15, N.T. 4). Defendan
 was advised in writing and orally that the
                                            presumption of innocence applied to him an
 his claim to the contrary is belied by the record
                                                   and, quite frankly, patently absurd.

        Finally; with respect to Defendant's_claim that
                                                        plea_counsel advised him that if,h
was convicted at trial he would be sentenced to a
                                                  mandatory thirty (30) to sixty (60) year
under the "Repeated Offender Act" [sic], this Court asked
                                                          plea counsel on the record
open court, in front of the Defendant, whether there
                                                     were any mandatories applicable to
this case, to which plea counsel replied, "No,
                                               there are none."           (Verbal Guilty Ple
Colloquy, 7/17/15, N.T. 14). The prosecutor stated that even
                                                             if there were mandatorie

involved, "the mandatory would be the guideline range",
                                                        due, as the prosecute

explained, to Defendant's status as an RVOC,            (Verbal Guilty Plea Colloquy, 7/17/1

N.T. 13-14). Plea counsel, stated on the
                                         record that he went over this with the Defendant


                                              - 35 -
     s:\admin\ sarcione \ Nieves Noel 1"   PCRA   1925a.docx




     "[s]everal times."        (Verbal Guilty Plea Colloquy, 7/17/15,
                                                                      N.T, 14-15).                        Defendarit
     acknowledged on the record, as we
                                           discussed earlier, that no extrajudicial
                                                                                     threats Jr
     promises were made to him to induce him
                                                to plead guilty. (Verbal Guilty Plea
                                                                                      Colloqu
     7/17/15, N.T. 11; Written Guilty Plea
                                           Colloquy, 7/17/15, at 6, paras, 17, 18). For
                                                                                          all
    these reasons, we conclude that
                                      Defendant's claim that plea counsel advised
                                                                                     him that f
    he went to trial and was convicted
                                        he would receive a mandatory thirty
                                                                             (30) to sixty (6
    years under the "Repeated Offender
                                           Act" [sic] is without merit and does
                                                                                  not warra
    PCRA relief.

            In his Rule    907(1) Response, Defendant again raised
                                                                   the issues concerning th
  execution of the search warrant at his
                                           residence4 and his allegedly medicated statu
  during the guilty plea colloquy. With
                                          respect to the search warrant issue, we hay
 already addressed our conclusion that
                                              Defendant waived his right to contest th
 execution of the search warrant by
                                     tendering a negotiated guilty plea. Reichle, supr
 To this reasoning we would only add
                                      the following. Defendant claimed that
                                                                             the executio
 of the search warrant was defective
                                     because the police only gave Defendant's
                                                                                 wife, wh
is not the homeowner, according to
                                     the Defendant, a "quick look -glance" at
                                                                               the warm t
after ordering Defendant and his family
                                              to vacate the premises and because
                                                                                       th
Detectives conducted the search while
                                       Defendant, who claims to be the sole homeowne
was not present in the home. The acts
                                          of which Defendant complains, even if
                                                                                  they di
occur as he describes them; are not
                                      violations of the Rules of Criminal Procedure, se
Pa. R.Crim.P. 207, 208, but even
                                 if they were, technical violations
                                                                    of the Rules
4
  MIS is the second Issue we asked PCRA
                                        Counsel to address In our July 22, 2016
from that paragraph of Defendant's Rule                                         remand Order. Thls Issue derives
                                        907(1) Response Identified by the
907(1) Response, 6/20/16, at 2                                             Defendant as "Reason -111". (See Rule
                                ("Reason lin Order dated July 22,  2016).
        sAadmin \sarcione\Nieves Noel lst PCRA 1925a.docx
P.




       Criminal Procedure do not warrant             application of the Exclusionary   Rule.    Se
       Commonwealth       v.   Ruey, 892 A.2d 802 (Pa. 2006)(violations of the
                                                                               Rules of Crimin
       Procedure relating to the issuance and execution of
                                                           search warrants require Suppressio
       only when the violations assume constitutional
                                                      dimensions and/or substantially prejudic
       the accused). The defects alleged here are
                                                  neither of constitutional dimension nor di
       they substantially prejudice the. Defendant.

              As we indicated above, Defendant, in his Rule
                                                            907(1) Response, renewed hi
      contention that his plea counsel induced him to lie
                                                          about his mental health an
      medication status at the guilty plea colloquy by,
                                                        according to Defendant, instilling int
      Defendanfs thought process "subliminal suggestion."              (See Deft.'s Rule 907(1
      Response, 6/20/16, at 2, para. IV). Again, a Defendant may
                                                                 not lie under oath and the
      claim that his lies entitle him to PCRA relief, even if he
                                                                 asserts that his lies were induce
      by counsel.     Yeomans, supra.        Defendant's averment that counsel induced his lie

      through "subliminal suggestion" is, as his argument
                                                          regarding his Public Defender ple
      counsel's alleged misrepresentation concerning the
                                                         applicability of the presumption o
     innocence, plainly absurd. Further, this Court had the
                                                            opportunity to observe Defendant
     and speak with him on the record and there was
                                                    nothing about Defendant's demeanor or
     responses that suggested to the Court that his cognition was
                                                                  impaired in any way.
            Defendant next claimed in his Rule 9070) Response that his plea
                                                                            counsel insiste
     that "[Defendant] and his family should not question or
                                                             attempt to interfere with hi
     methods for they know nothing of the legal ramifications at work and
                                                                          to simply rely upo
     his legal expertise because he ([plea counsel]), must
                                                           do what's necessary to apiese [si
     both [Defendant] and the Commonwealth." (Deft.'s Rule
                                                           9070) Response, 6/20/16, at

                                                  (37-
     sAadmin \sarcione\Nieves Noel let PCRA
                                            1925a.docx




     para. "A"). Defendant claims that counsel's
                                                 alleged refusal to brook dissension from hi
     advice is a violation of Lefler v, Cooper, 132
                                                    S.Ct. 1376 (U.S. Mich. 2012) and Missouri
  Frye, 132 S.Ct. 1399 (U.S. Mo. 2012), cert.
                                              denied, 132 S.Ct. 1789 (U.S. Mo. 2012
  (Deft.'s Rule 907(1) Response, 6/20/16, at 3,
                                                para. "A"),

           In Lefler, supra, the defendant lost a
                                                  plea offer based on counsel's advice to reject
  the plea and go to trial.         Lefler, supra. The United States Supreme
                                                                             Court held that th
  Defendant established ineffective assistance of
                                                  counsel with regard to counsel's advic
  to go to trial and reject the plea
                                     because counsel's advice was based on counsel'

  incorrect understanding of a point of law. Id. The
                                                     United States Supreme Court held tha
 a   defendant's Sixth Amendment right to counsel extends to
                                                             the plea bargaining proces
 and that during plea negotiations,
                                    defendants are entitled to the effective assistance              if
 competent counsel.

          In   Missouri   v.   Frye, 132 S.Ct. 1399 (U.S. Mo. 2012), cert.
                                                                           denied, 132 S.Ct. 178
 (U.S. Mo. 2012), the defendant lost two
                                         favorable plea offers because his counsel faile
 to communicate them; he later pled open
                                         and received a heavier sentence than what ha

 previously been offered by the Commonwealth.
                                                          Missouri   v.   Frye, 132 S.Ct. 1399 (U.
Mo. 2012), cert. denied, 132 S,Ct, 1789 (U.S.
                                              Mo. 2012). The United Slates Siiprem

Court held that defense counsel has a duty to
                                              communicate formal offers from th
prosecution to accept a plea on terms and conditions
                                                     that may be favorable to th
accused. Id.

         In the   matter sub judice, there is no question that counsel
                                                                       advised Defendant             f
the Commonwealth's plea offer.             Defendant accepted the plea offer.      Nor is there an
question that counsel's advice to accept the plea
                                                  was         a   reasonable strategy designed t'

                                                - 38 -
  sAadmin \sarcione \Nieves Noel   15' PCRA   1925a.docx




 effectuate Defendant's interests. The Commonwealth had a very strong case against th

 Defendant,     Defendant had no viable defenses, and Defendant faced considerabl

 exposure to at least thirty (30) to sixty (60) years                      in   prison if he went to trial only on th

 offenses that were the subject of the plea agreement.                               Counsel's actions here do       n

 violate either Lefler, supra or Missouri            v.    Frye,       supra.


         Defendant appears to be relying on an argument that may be viewed as th

 converse of Lefler, supra and Missouri                   v.   Frye, supra,      namely, that if counsel has a duty

 to communicate plea offers and give competent advice about whether to accept
                                                                              them,

 counsel has a corollary duty to allow Defendant to question counsel's advice and to rejeot

 the plea offer if that is the Defendant's wish. Defendant claims that                          it is   this converse o

corollary duty that plea counsel here violated. However, at all times during his guilty ple

colloquy, Defendant advised the Court that he had no questions (Verbal Guilty Ple

Colloquy, 7/17/15, N.T. 11, 15) and he wished to enter a plea of guilty (Verbal Guilty Ple

Colloquy, 7/17/15, N.T. 5, 7-8, 10, 12; Written Guilty Plea Colloquy, 7/17/15, at 5, para

4, 5); he did in fact enter a plea of guilty (Verbal Guilty Plea Colloquy, 7/17/15,
                                                                                    N.T. 5,                                  ;




Written Guilty Plea Colloquy, 7/17/15, at                      5,   paras. 4, 5) and advised the Court that h

understood that his plea meant that the Court would'freat him as having committed th

crimes that were the subject of the plea bargain. (Verbal Guilty Plea Colloquy, 7117/1

N.T. 7-8, 10). Defendant advised the Court both orally and in writing that he was able t

work with his counsel, that he was satisfied with counsel's services, and that                                       n

extrajudicial threats or promises were made to him to induce him to plead guilty. (Verb .I

Guilty Plea Colloquy, 7/17/15, N.T. 10, 11; Written Guilty Plea Colloquy, 7/17/15, at                                    ,




pares. 16-18, 39-41). He acknowledged that, while he had been assisted in his decisio
                                                           ..-2----.
                                               z:::-L 39 )-

                                                1:
     sAadmin\sarcione \Nieves Noel          PCRA
                                     1.5`          1925a.docx




    by counsel, it was his own
                                decision to enter the plea that he
                                                                   tendered on July 17, 201
    (Written Guilty Plea Colloquy, 7/17/15,
                                            at 6, para. 41). As we stated
                                                                           before, Defendant
    may not represent one position to the
                                           Court during a guilty plea colloquy and
                                                                                    then try t
    obtain PCRA relief by asserting that what
                                              he represented to the Court at his
                                                                                 colloquy wa
   a lie.    Yeomans, supra.         Defendant's Lauer          v.   Cooper, supra/Missouri v. Frye, sups
   argument has no merit and does not warrant
                                              PCRA relief.
            Next, Defendant contends that his
                                              plea counsel did not "'make an
                                                                             independe t
   examination of the facts, curcumstances [sic],
                                                  pleadings and laws involved and then offer
   his/her informed opinion as to what plea
                                             or defence [sic] should be
                                                                         entered." (Deft.'
     Rule 907(1) Response, 6/20/16, at
                                           3, para. "D")(quoting Von
                                                                       Moltke v. Gillies, 68 S.0
     316 (U.S. Mich. 1948)). Defendant
                                           cites Von Moltke v. Gillies, 68 S.Ct.
                                                                                   316 (U.S. Mic
     1948) in support of his claim. Von Moltke,
                                                 supra is a somewhat unique case with
                                                                                            peculi r
    facts. In Von Moltke, supra, a German
                                               national living in the United States was
                                                                                           charge
   with Conspiracy to violate the
                                     Espionage Act of 1917 by allegedly agreeing
                                                                                       with twent
   three (23) other people to collect and
                                               deliver military secrets to the Germans
                                                                                             durin
  World War 11. Von Moltke v. Gillies, 68
                                              S.Ct. 316 (U.S. Mich. 1948). The
                                                                                   Defendant wa
  not provided with counsel. Id. In
                                        tendering her plea, she relied on legal
                                                                                 advice provide
  to her by an F.B.I. lawyer
                                    -agent, indisputably a representative
                                                                                of the Feder .l
  Government, the opposing party. Id. When she
                                                        later challenged the validity of her ple
                                                                                                       ,


 the United States Supreme Court
                                       held that "[a] challenge to a plea of
                                                                              guilty made by a
 indigent defendant, for whom no lawyer has
                                                   been provided, on the ground that the pie
was entered in reliance upon advice
                                          given by a government lawyer-agent,
                                                                                   raises seriou
constitutional questions." Von Moltke v. Gillies,
                                                       68 S.Ct. 316 (U.S. Mich. 1948).
                                                                                              Th
                                                     - 40 -
    sAadmin\sarcione \Nieves Noel   3.'t PCRA   1925a.docx




   United States Supreme Court reversed and
                                            remanded the matter for a determination o
   whether the Defendant validly waived her right to
                                                      counsel. Id. The facts in Von Moltk
   supra are entirely distinguishable from the
                                                  facts of the present case, wherein th
   Defendant was provided with an attorney from
                                                    the Chester County Office of the Publi
  Defender to represent him in connection with
                                                   his pre-trial and plea proceedings. W
  would respectfully submit that the peculiar
                                               factual distinctiveness of Von Moltke, supr
  renders that case inapposite to the present
                                              matter.

         Nevertheless, the Von Moltke, supra case does
                                                       articulate the proposition for whic
  Defendant cited it, but that does not mean that
                                                  the Defendant is entitled to relief. Unlik
  the Von Moltke, supra case, Defendant was
                                               appointed free counsel entirely devoted t
 his cause who did investigate the
                                     facts, circumstances, pleadings and law
                                                                                 and wh
 formed a learned opinion as to what plea should
                                                  be entered in light of what he termed
 "strong" case on the part of the
                                  Commonwealth, no viable defenses on the part of th
Defendant, and Defendant's extensive exposure
                                               to significant jail time if Defendant went
to trial and were convicted on even a
                                      few of the charges set forth in the
                                                                              Information
which he reasonably advised the Defendant
                                           was a likely outcome based on the strengtl
of the Commonwealth's case and the
                                       lack of any viable defenses available to thi

Defendant. Plea counsel satisfied the concerns
                                               expressed in Von Moltke, supr
assuming for purposes of argument that Von
                                               Moltke, supra has any application to th
matter sub judice. Defendant's claim to the
                                            contrary is without merit.

       Defendant also claimed in his Rule 907(1)
                                                 Response that his plea counsel did     n t
inform him of his basic sentencing liabilities
                                               and other considerations so as to enable hi

to make an informed decision about
                                        whether to accept or reject the Commonwealth'

                                                   - 41 -
     s.   warm \sarcsone \Nieves Noel 1" PCRA
                                              1925a.docx




    plea offer.    However, this Court asked plea
                                                        counsel whether he had reviewed
                                                                                                 with
     Defendant the Sentencing Guidelines
                                             applicable to the crimes for which he
                                                                                      was tendering
     the plea. (Verbal Guilty Plea
                                     Colloquy, 7/17/15, N.T. 14).
                                                                    Counsel advised the Court o
    the record, in front of the
                                Defendant, that he had done so
                                                                  "[s]everal times." (Verbal Guilt
    Plea Colloquy, 7/17/15, N.T.
                                    15). When the Court then
                                                                  asked the Defendant, "Do yo
    have any questions at all?",
                                     Defendant replied, "No." (Verbal
                                                                             Guilty Plea Colloqu
   7/17/15, N.T. 15). Plea counsel also
                                            advised the Court that he reviewed
                                                                                    with Defenda
   the amount of time he could
                                  expect as part of his State Parole
                                                                       hit, as he committed thes
   crimes while on State Parole, and
                                          whether his back time would be
                                                                               served first or las
  (Verbal Guilty Plea Colloquy,
                                    7/17/15, N.T. 12). When we
                                                                      asked Defendant, "Do yo
  understand?", Defendant replied, "Yes,
                                              sir." (Verbal Guilty Plea
                                                                          Colloquy, 7/17/15, N.
  12). Further, even if counsel
                                   had not reviewed with
                                                           Defendant his sentencing exposur
 and VOP time, we reviewed
                                  these items with Defendant on the
                                                                         record in open court a
 part of his Verbal Guilty Plea
                                   Colloquy. (Verbal Guilty Plea
                                                                    Colloquy, 7/17/15, N.T. 11-
 15). Defendant's claim that
                                  he was not advised of his
                                                               basic sentencing liabilities an
other considerations so as to
                                 enable him to make an informed
                                                                      decision about whether t
accept or reject the
                       Commonwealth's plea offer is without substantive
                                                                             -merit and does not
warrant PCRA relief.

         Finally, in his Rule 907(1)
                                     Response, Defendant requested that
                                                                            this Court allow
 further PCRA proceedings, appoint
                                       new PCRA Counsel, and
                                                                  vacate his conviction an
 sentence pending the resolution of
                                        whether Defendant's plea was
                                                                        voluntary and "fre
from the influence of powerful
                                 narcotics." (Deft.'s Rule 907(1)
                                                                  Response, 6/20/16, at 5
Based on our determination that
                                   none of Defendant's issues have
                                                                     any substantive meri
                                               - 42 -
tr.        s: \admin \sarcione   \ Nieves   Noel   ft PCRA 1925a.docx


          we would respectfully submit
                                        that Defendant's request for
                                                                       further PCRA proceedings,
          new counsel, and the vacating of his
                                               sentence are not warranted.
                Because none of the issues Defendant
                                                       raised in his June 20, 2016 Rule
                                                                                         907(1
         Response have any merit, we would
                                            respectfully submit that his appeal of
                                                                                   those issue
         should be denied and dismissed.

                         E. Claim raised in
                                            Defendant's July 18, 2016 Letter to the
                                                                                    Court
                 The only claim that Defendant
                                                raised in his July 18, 2016 pro se
                                                                                    letter to the Cou
         is that his plea was not
                                  knowingly, voluntarily and intelligently
                                                                           tendered because he wa
         under the influence of psychotropic
                                               medication(s) on the day of the colloquy. We
                                                                                                  hav
        already addressed this claim above
                                               and determined that it is without
                                                                                    merit. We woul
        respectfully incorporate herein by
                                             reference and refer this Honorable
                                                                                      reader to thos
        portions of our present Opinion which
                                               explain our rationale for rejecting this
                                                                                        claim.
              F. Whether plea counsel was ineffective for
                                                             advising Defendant to plead quilty
               In our July 22, 2016
                                      remand Order, we identified the issue as
                                                                                    to whether ple
        counsel was ineffective for advising
                                              Defendant to accept the plea bargain
                                                                                      offered by th
        Commonwealth. To all that we have said on
                                                           this issue above, which we incorporat
       herein by reference and to which we
                                                respectfully refer this Honorable reader, 'we
                                                                                              woul
       add that given the strengths of the
                                              Commonwealth's case, the lack of viable defense
       available to the Defendant, and the
                                            significant exposure he risked upon
                                                                                  conviction at trial,
       plea counsel's advice to accept the
                                             Commonwealth's offer of two (2) concurrent ten (10
      year terms followed by ten (10) years
                                                  of consecutive probation, in
                                                                                 essence, an offe
      requiring only ten (10) years in prison, was
                                                    within the range of competence
                                                                                      demanded o
      attorneys who practice in the field of
                                             criminal law. Commonwealth v. Wah, 42
                                                                                          A.3d 33
                                                             - 43 -
   sn,aamtn \sarcione \Nieves Noel 1" PCRA
                                           1925a.docx




   (Pa. Super. 2012). Plea counsel was not
                                           ineffective for advising Defendant to accept th

   Commonwealth's offer.

                                      G. Validity of Defendant's Plea

         To be valid, a guilty plea must be knowingly,
                                                       voluntarily and intelligently entere
  Commonwealth v. Rush, 909 A.2d 805 (Pa. Super. 2006),
                                                        reargument denied (November
  20, 2006).   In   order for a guilty plea to be constitutionally valid,
                                                                          the plea colloquy mu t
  affirmatively show that the defendant understood
                                                   what the plea connoted and it
  consequences.               Commonwealth   v.   Yeomans, 24 A.3d 1044          (Pa. Super.   2011
  reargument denied (August 18, 2011). A defendant who
                                                       attempts to withdraw a guilt
 plea after sentencing must demonstrate prejudice
                                                  on the order of manifest injustic

 before withdrawal is justified.        Commonwealth v, Yeomans, 24 A.3d 1044 (Pa. Supe

 2011), reargument denied (August 18, 2011).                A showing   of manifest injustice may   b
 established if the plea was entered into involuntarily,
                                                         unknowingly, or unintelligentl
 Commonwealth            v.   Yeomans, 24 A.3d 1044 (Pa. Super. 2011),
                                                                       reargument denie
 (August 18, 2011).

       As the Pennsylvania Superior Court has
                                              summarized,

               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, 1046 (Pa. Super. 2011),
                                                                         reargument denie
(August 18, 2011)(quoting Commonwealth               v.   Fluharty, 632 A.2d 312, 314 (Pa. Supe

1993)(citation omitted)).          Where the record clearly demonstrates that a
                                                                                guilty pie
                                                  - 44 -
     s:   aamai \sarcione\ Nieves Noel   3." PCRA   1925a.docx




     colloquy was conducted, during which                it   became evident that the defendant
                                                                                                understoo
     the nature of the charges against
                                       him, the voluntariness of the plea
                                                                          is established.

     Commonwealth        v.   Rush, 909 A.2d 805 (Pa. Super. 2006),
                                                                    reargument denied (Novembe
     20, 2006).

              Rule 590 of the Pennsylvania Rules of
                                                    Criminal Procedure requires that               a   guilt
   plea be offered in open court, and
                                        provides a procedure to determine whether the
                                                                                        plea
   voluntarily, knowingly, and intelligently
                                             entered. Commonwealth v. Yeomans, 24
                                                                                           A.3
   1044 (Pa, Super. 2011),
                                 reargument denied (August 18, 2011).
                                                                                    See ais
   Commonwealth v. Rush, 909 A.2d 805 (Pa. Super.
                                                        2006), redrgument denied (Novembe
  20, 2006)(a court accepting a
                                  defendant's guilty plea is required to conduct an
                                                                                       on -the
  record inquiry during the plea colloquy).
                                               Rule 590 does not prohibit the use of a
                                                                                       writtei
 colloquy that is read, completed, signed by the
                                                   defendant, and made part of the record
 the plea proceedings. Pa. R.Crim.P.
                                          590, Comment. This written colloquy
                                                                               would have t
 be supplemented              by some on -the -record oral
                                                           examination.             Pa.   R.Crim.P. 59
 Comment.

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

questions to elicit the following information: (a)
                                                   whether the defendant understands th
nature of the charges to which he or
                                           she is pleading guilty or nolo
                                                                          contendere; (b
whether there is a factual basis for the plea; (c)
                                                   whether the defendant understands th t
he   or she has the right to trial by jury; (d)
                                                whether the defendant understands that he or
she is presumed innocent until found
                                     guilty; (e) whether the defendant is aware
                                                                                of th
permissible range of sentences and fines for the
                                                 offenses charged; and (6) whether th
defendant is aware that the judge is not bound by
                                                     the terms of any plea agreemer

                                                      - 45 -
   sRadmin \sarcione \ Nieves Noel 1:`PCRA
                                           1925a.docx




  tendered unless the judge accepts
                                    such agreement.                  Pa. R.Crim.P. 590, Commend;

  Commonwealth          v.    Yeomans, 24 A.3d 1044 (Pa. Super.
                                                                2011), reargument denie
  (August 18, 2011); Commonwealth          v.   Rush, 909 A.2d 805 (Pa. Super. 2006),
                                                                                      reargume t
  denied (November 20, 2006). The
                                     Comment to Rule 590 includes a seventh
                                                                             propose
  question that is only applicable when a
                                          defendant pleads guilty to Murder generall
 Commonwealth          v.    Yeomans, 24 A.3d 1044, 1047 n. 2 (Pa.
                                                                   Super. 2011), reargume t
 denied (August 18, 2011).

        Reiterating and expanding on what we stated
                                                    above,
                 [i]n 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
                This determination is to be made by                  consequences.
                                                          examining the totality of
                the circumstances surrounding the
                                                         entry of the plea. Thus,
               even though there (may be] 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
               the defendant had a full
                                                                       disclose that
                                                understanding of the nature and
               consequences of his plea and that he
                                                                    knowingly and
               voluntarily decided to enter the plea.

Commonwealth      v.    Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
                                                                2011), reargument denie
(August 18, 2011)(quoting Commonwealth             v.   Fluharty, 632 A.2d 312, 314-15 (Pa. Supe
1993)(citations omitted)).

                Our law presumes that a defendant who
                                                      enters a guilty plea
              was aware of what he was doing. He
                                                     bears the burden of
              proving otherwise.



               The longstanding rule of
                                           Pennsylvania law is that a
             defendant may not challenge his guilty plea by
             he lied while under oath, even if
                                                             asserting that
                                                   he avers that counsel
             induced the lies. A person who elects to
                                                      plead guilty is bound
             by the statements he makes in
                                            open court while under             oath

                                                - 46 -
  sAadmin \sarcione\ Nieves Noel     PCRA 1925a.docx




                 and may not later assert grounds for withdrawing the plea
                 which contradict the statements he made at his plea colloquy.



                  A defendant who elects to plead guilty has a duty to answer
                questions truthfully. We [cannot] permit a defendant to
                postpone the final disposition of his case by lying to the court
                and later alleging that his lies were induced by the prompting
                of counsel.

 Commonwealth       v.   Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011), reargument dente

 (August 18, 2011)(guoting Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Supe

 2010)(citations omitted)).        The law does not require that a defendant be completely

 satisfied with the outcome of his decision to plead guilty, only that the plea be voluntary,

 knowing and intelligent.          Commonwealth    v.   Rush, 909 A.2d 805 (Pa. Super. 2006),

 reargumenf denied (November 20, 2006).

        A review of the record sub judice reveals that Defendant's plea was voluntaril

knowingly, and intelligently entered.          A Verbal Guilty Plea was conducted with

Defendant on the record in open court, (See Verbal Guilty Plea Colloquy and Sentencin

Transcript, 7/17/15, N.T. 1-23).          In addition, Defendant executed a comprehensiv

Written Guilty Plea Colloquy.         (See Written Guilty Plea Colloquy, 7/17/15, 1-10).    Th

record demonstrates that each of the mandatory six (6) areas of inquiry were explore

with this Defendant.

       With respect to the first area of inquiry, whether Defendant understands the natur

of the charges to which he is tendering his plea, we asked Defendant, "Are you aware o

what you have been charged with?"             (Verbal Guilty Plea Colloquy, 7/17/15, N.T.   3

Defendant replied, "Yes." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 3). We reviewe


                                              - 47 -
   sAadmin \sarcione\Nieves Noel           1st PCRA   1925a.docx




   with the Defendant the elements of each
                                           offense. (Verbal Guilty Plea Colloquy, 7/17/1
   N.T. 9-10). We asked Defendant whether
                                          he understood the elements of these offense

  (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 10).
                                                   Defendant replied, "Yes." (Verbal Guilt
  Plea Colloquy, 7/17/15, N.T. 10). We asked
                                                 Defendant whether he had any question
  about the elements of these offenses. (Verbal
                                                Guilty Plea Colloquy, 7/17/15, N.T. 10
  Defendant replied, "No." (Verbal Guilty Plea
                                               Colloquy, 7/17/15, N.T. 10).                        In addition t
  this oral colloquy, Defendant signed a
                                         Written Guilty Plea Colloquy that set forth th
  nature and elements of the offenses to which he
                                                  was tendering his plea. (Written Guilt
  Plea Colloquy, 7/17/15, at 1-2). The Written
                                               Guilty Plea Colloquy contained the followin
  items.

                1.               I   hereby enter a plea of guilty to the charges set
                                                                                      forth
               on the cover pages.
                                                                                       [Is/] NN
               2.            I       have read and understand the cover pages.
                                                                                       Vs/1   NN



               4.            I       admit committing the crimes to which      I   am pleading
               guilty.
                                                                                      j/s/1 NN

               5.        I           acknowledge that the facts occurred as set forth on
               page 2 of this form.
                                                                                              NN



               15.       Do you understand the charges against you?                   Vs/1 NN

(Written Guilty Plea Colloquy, 7/17/15, at 5-6).
                                                                   Defendant signed his initials after eac
paragraph and signed his name at the bottom of
                                               each page.                              (Written Guilty PIe
Colloquy, 7/17/15, at 5-6). Thus the first area of
                                                   mandatory inquiry is satisfied.




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3
        s:\admin\sarcione\Nieves Noel 1" PCRA 1925a.docx




              -With respect to the second area of
                                                  mandatory inquiry, whether there was a factu
       basis for the plea, as we demonstrated
                                                in the beginning of this
                                                                         Opinion, a factual basi
       was recited for the plea. (Verbal Guilty
                                                 Plea Colloquy, 7/17/15, N.T. 4-10;
                                                                                    Written Guilty
       Plea Colloquy, 7/17/15, at 2). Thus, the
                                                second area of mandatory inquiry is
                                                                                    satisfied.
             With respect to the third area of
                                                      mandatory inquiry, whether the Defendant
      understands that he has the right to trial by jury,
                                                          we asked the Defendant at the beginnin
      of the Verbal Guilty Plea Colloquy,
                                             "And do you understand, young
                                                                                     man, that you'r
      presumed to be innocent, you have the
                                                  right to a jury or non -jury trial?" (Verbal
                                                                                               Guilt
      Plea Colloquy, 7/17/15, N.T. 4).
                                              Defendant replied, "Yes, sir."    (Verbal Guilty Ple
      Colloquy, 7/17/15, N.T. 4).      In addition, the    Written Guilty Plea Colloquy advised th
      Defendant that he "need not enter       a   plea of guilty, but may plead not guilty
                                                                                           and go to
     trial." (Written Guilty Plea Colloquy,
                                              7/17/15, at 6, para. 19). Defendant wrote
                                                                                         his initial
     in the line provided to the
                                 right of this paragraph and signed his
                                                                         name at the bottom of thr
     page. (Written Guilty Plea Colloquy,
                                                7/17/15, at 6). Thus, the third area of
                                                                                        mandato
     inquiry is satisfied.

           With respect to the fourth area of
                                               mandatory inquiry, whether the Defenda
     understands that he or she is presumed
                                             innocent           until found guilty, we have alread
    discussed how both counsel and this Court
                                                advised the Defendant that he did indee
    enjoy the presumption of innocence in
                                          these matters. We would incorporate herein
                                                                                      b
    reference and respectfully refer this
                                          Honorable reviewing Court to those portions of
                                                                                          th
    present Opinion which address this issue above.
                                                     We reiterate that we advised Defendant
    of the presumption of innocence at the
                                           beginning of the Verbal Guilty Plea Colloquy
                                                                                        when
    we asked, "And do you understand,
                                          young man, that you're presumed to be
                                                                                    innocen
                                                  - 49 -
 sAadmin Varcione \Nieves Noel     PCRA 1925a.docx




 you have the right to a jury or non -jury trial?" (Verbal Guilty Plea Colloquy, 7/17/15,     N.

 4).   Defendant replied, "Yes, sir." (Verbal Guilty Plea Colloquy, 7/17/15, N.T. 4). Th

 Written Guilty Plea Colloquy advised the Defendant that

                [WI order to be convicted,  would have to be proven guilty
                                                I


                beyond a "reasonable doubt". A reasonable doubt is a doubt
                which would cause a person of reasonable prudence to
                hesitate before acting in a matter of importance to him or
                herself. I am presumed innocent, and if the Commonwealth
                cannot prove me guilty beyond a reasonable doubt, I must be
                set free on these charges.                          f/s/j NN

 (Written Guilty Plea Colloquy, 7/17/15, at 7, para. 25).     Defendant signed his initials    o

the line provided to the right of this paragraph and signed his name at the bottom of th

page. (Written. Guilty Plea Colloquy, 7/17/15, at 7). (See also PCRA Counsel's Letter          t


the Court dated August 16, 2016 with attached Letter from Plea Counsel at para.                1


Thus, the third area of mandatory inquiry is satisfied.

        With respect to the fifth area of mandatory inquiry, whether the Defendant wa

aware of the permissible range of sentences and/or fines for the offenses charged, w

advised Defendant on the record in open court of the maximum sentences and fines that

were applicable to the crimes for which he was tendering his plea as well as what hi

Statewide Sentencing Guidelines exposure would be.             (Verbal Guilty Plea Colloquy,

7/17/15, N.T. 12-15).       Plea counsel advised the Court that he had gone over thes

matters with the Defendant Isleveral times," (Verbal Guilty Plea Colloquy, 7/17/15, N.

12, 15).   Defendant assured the Court that he understood. (Verbal Guilty Plea Colloqu             ,




7/17/15, N.T.    12, 15).    In   addition, the Written Guilty Plea Colloquy executed by th

Defendant set forth the maximum penalties and fines applicable to the crimes for whic.

Defendant was tendering his plea.           (Written Guilty Plea Colloquy, 7/17/15, at 1-2

                                             - 50 -
  sAadmin \sarcione \Nieves Noel   1s`   PCRA 1925a.docx




  Defendant signed his name at the bottom of these pages.               Also, as we demonstrate

  above, Defendant placed his initials beside the paragraph of the
                                                                   Written Guilty Ple
  Colloquy which averred, "I have read and understand the cover
                                                                pages." (Written Guilt
  Plea Colloquy, 7/17/15,. at 5).           He also signed his name at the bottom    of that pag
 (Written Guilty Plea Colloquy, 7/17/15, at 5). Thus, the fifth area of mandatory
                                                                                  inquiry
 satisfied.

        With respect to the sixth area of mandatory inquiry, namely, whether the
                                                                                 defendan
 was aware that the judge is not bound by the terms of any plea agreement
                                                                          tendere
 unless the judge accepts such agreement, the undersigned advised
                                                                  Defendant on th
 record in open court that "I'm not bound by the terms of this plea agreement
                                                                              unless                I



 accept it. If   I   reject it, you may step down and withdraw your plea." (Verbal Guilty Ple

 Colloquy, 7/17/15, N.T. 11).            In addition, the Written Guilty Plea Colloquy advised th

 Defendant,

                 The Court is not bound by the terms of the plea agreement
                 that I have entered into with. the Commonwealth on pages 3
                 and 4 of this form, but if the Court rejects it, I may withdraw
                 my plea of guilty and enter a plea of not guilty.       [/s/j NN

(Written Guilty Plea Colloquy, 7/17/15,. at 8, para. 31). Defendant placed, his initials
                                                                                         in th

line provided to the right of this paragraph and signed his name at the
                                                                        bottom of th
page. (Written Guilty Plea Colloquy, 7/17/15, at 8).           Thus, the sixth area of mandato

inquiry is satisfied.

       In addition to all of the areas of mandatory inquiry, our record
                                                                        colloquy, both or -I
and written, inquired about Defendant's age, educational status and his ability
                                                                                to          rea,
write and understand the English language. (Verbal Guilty Plea Colloquy, 7/17/15,
                                                                                  N.



                                                   -51,.,
         s:\admin \sarcione\ Nieves Noel 1" PCRA
                                                 1925a.docx
et,




          2-3; Written Guilty Plea Colloquy,
                                             7/17/15, at 5). We learned that Defendant
                                                                                        was, at th      t
         time of the plea, twenty-nine (29) years old
                                                         and a graduate of Coatesville Area
                                                                                              Senior
         High School.        (Verbal Guilty Plea Colloquy, 7/17/15, N.T.
                                                                         2-3; Written Guilty Ple
         Colloquy, 7/17/15, at 5).     We also explored, as we discussed
                                                                         earlier infra, the issue
        Defendant later raised in his PCRA Petition
                                                    and with which he attempted to
                                                                                   impugn th
        validity of his plea.

               The record demonstrates that Defendant
                                                      tendered his plea voluntarily, knowing'
        and intelligently,    He understood the nature of the
                                                              charges against him, what the ple
        connoted, and its consequences. The record is
                                                      devoid of evidence of manifest injustic
        Defendant's plea is constitutionally valid.

                             H. Claims raised in de facto Rule
                                                               1925(b) Statement
              The first few claims Defendant raised in
                                                        his de facto Statement of Matter
       Complained of on Appeal, which was
                                             attached to his Notice of Appeal, purport t
       challenge the stewardship of PCRA Counsel
                                                    for PCRA Counsel's alleged failure t
       adequately investigate Defendant's PCRA claims,
                                                       failure to remedy the defects                i

       Defendant's PCRA Petition and failure to meet or
                                                        personally speak to the Defendai t
       about his PCRA. (See Deft.'s Statement,
                                                 at 2 paras. 1-4). As they all concern th

      stewardship of PCRA Counsel, we will treat them
                                                        in the aggregate, for convenience'

      sake, as one claim. The record, as we
                                            have discussed above, amply demonstrates th
      none of the issues Defendant raised in his
                                                 PCRA Petition and related documents hay
      any substantive merit. The lack of
                                         substantive merit in any of Defendant's contention
      does not lend itself to correction by PCRA
                                                 Counsel.        It is a fatal flaw in Defendant'

      attempt to challenge the validity of his plea and
                                                        is inherent in the foundation of th

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  s:\admin \sarcione \ Nieves Noel 1" PCRA 1925a.docx




  theories he advances.           There is no remedy for these defects.         Because none o
  Defendant's issues have any substantive merit, Defendant's various
                                                                     challenges to th
  stewardship of his plea counsel fail.          Commonwealth v. Chmiel, 30 A.3d 1111 (Pa.

 2011)(failure to meet any one of the three prongs of the test for
                                                                   ineffectiveness defeat
 the claim).. Because Defendant does not have a valid claim
                                                            of ineffective assistanc
 against plea counsel, Defendant's claim of ineffective assistance of
                                                                      PCRA Couns
 likewise fails. Commonwealth         v.   Chmiel, 30 A.3d 1111 (Pa. 2011)(failure to satisfy test I1




 for ineffectiveness against trial counsel defeats a layered
                                                             ineffectiveness claim against
 subsequent counsel).         Thus, Defendant's         challenges to the stewardship of PCR

 Counsel have no merit and should, respectfully, be denied and dismissed.
                                                                                        See als
 Commonwealth v Maple, 559 A.2d 953 (Pa. Super. 1989)(defendant is not
                                                                       entitled to th
 appointment of new counsel after initial PCRA counsel has properly been allowed               t

withdraw under the Turner/Finley procedures).                Defendant's claims against PCR

Counsel have no merit and should, respectfully, be denied and dismissed.

       The next issue Defendant raised in his statement of matters complained
                                                                              of is
reiteration of his Lefler    v.   Cooper, supra and Missouri v. Rye, supra argument.          W
would respectfully incorporate herein by reference and refer this
                                                                  Honorable reader t
those portions of the present Opinion above which address this issue. We
                                                                         respectfully
submit for all of the reasons aforestated that this issue has no merit and
                                                                           should,
respectfully, be denied and dismissed.

      The third issue Defendant raised in his statement of matters
                                                                   complained of on
appeal is that plea counsel was ineffective for "compel[ling] the plea
                                                                       agreement withou t
[Defendant's] understanding and consent." We respectfully submit, for all of the reason

                                               - 53 -
  sAadmin \sarcione \ Nieves Noel         PCRA   1925a.docx




  set forth in the body of this Opinion, that Defendant's
                                                          contention that his plea couns                            I




  compelled his acceptance of the Commonwealth's offer or
                                                          compelled him to enter a ple
  agreement without his consent is completely without foundation in
                                                                    the record and witho                            t

  merit, and should, respectfully, be denied, anddismissed.

          The fourth and final issue Defendant raised                    in    his de factor Rule 1925(
 Statement reiterates his VonMoltke               v.   Gillies, supra claim. We would respectfully subm t

 that we have already addressed this claim above. We
                                                     would respectfully incorporat
 herein by reference and refer this Honorable reader to that
                                                             portion of our present Opinio
 which addresses the merits of Defendant's claim. We
                                                     respectfully submit, for all of th
 reasons aforestated, that Defendant's claim has no merit and
                                                              should, respectfully, b
 denied and dismissed.

                                        III.     SUMMARY DISMISSAL

          "'The right to an evidentiary hearing on            a post -conviction   petition is not absolute."
Commonwealth             v. Wah,    42 A.3d 335, 338 (Pa. Super. 2012)(quoting Commonwealth

Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007), appeal denied,
                                                              940 A.2d 365 (P
2007)).     "'It   is    within the PCRA court's discretion to decline to hold a hearing if
                                                                                            th

petitioner's claim is patently frivolous and has no support in either
                                                                      the record or oth                         r

evidence.'         Id.   "Where a PCRA petition does not raise a 'genuine issue[               )   of materi    I



fact,' the reviewing court is not required to hold an evidentiary
                                                                  hearing on the petition                      "

Commonwealth             v.   Simpson, 66 A.3d 253, 260 (Pa. 2013)(quoting Commonwealth

Clark, 961 A.2d 80, 85 (Pa. 2008), cert. denied, Clark                  v.    Pennsylvania, 130 S.Ct.    81

(U.S. Pa. 2009)).             "Thus, to entitle himself to a hearing, [the petitioner) must raise          al


                                                       - 54 -
 sAadmin \sarcione \ Nieves Noel 1" PCRA 1925a.docx




 issue of fact, which, if resolved in his favor, would justify relief."             Commonwealth

 Simpson, 66 A.3d 253, 260-61 (Pa. 2013).

             It is the responsibility of the reviewing Court on appeal to examine each issu

 raised in the PCRA Petition in light of the record certified before it in order to determine f

 the PCRA court erred in its determination that there were no genuine issues of materi                    I




 fact   in    controversy and in denying relief without conducting an evidentiary hearin

 Commonwealth         v,   Wah, 42 A.3d 335, 338 (Pa. Super. 2012). In executing this task, th

 appellate courts apply an abuse of discretion standard.              Commonwealth v. Rush, 83

A.2d 651, 659 (Pa. 2003), application for extraordinary relief denied, 934 A.2d 1151 (P

2007).        An abuse of discretion is not merely an error of judgment; rather, discretion

abused when the law is overridden or misapplied, or the judgment exercised is manifest!

unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by th

evidence or the record.            Commonwealth     v.   Antidormi, 84 A.3d 736 (Pa. Super. 2014,

appeal denied, 95 A.3d 275 (Pa. 2014).

         To aid this Honorable reviewing Court in its duty, we have examined all of th

issues Defendant raised in his first PCRA Petition and related documents. As we hav

discussed herein, it       is   our position that none of the issues Defendant has raised have an

substantive merit. We would respectfully submit that the record as           it   stands at present   i




more than adequate to support this conclusion.                 Accordingly, we would respectfull

submit that no hearing was necessary to address the merits of Defendant's first PCRd

Petition and that we did not abuse our discretion by dismissing Defendant's first PCR

Petition without holding a hearing..




                                                 - SS
      sAadmin \sarcione \ Nieves Noel 1't PCRA1925a.docx




                                       IV.       STANDARD OF REVIEW

             As our appellate courts have established, in PCRA proceedings, an appellat

  court's scope of review is limited by the PCRA's parameters; since most PCRA appeal

  involve mixed questions of law and fact, the standard of review is whether the PCR

  court's findings are supported by the record and free of legal error. Commonwealth

  Pitts, 981 A.2d 875 (Pa. 2009), subsequent habeas corpus proceeding denied, Pitts v

  Kerestes, 2013 WL 4718950 (E.D. Pa. 2013). The Pennsylvania Superior Court review

  an Order dismissing a PCRA petition in the light most favorable to the               prevailing party   .t
 the PCRA level.             Commonwealth        v,   Oliver, 128 A.3d 1275 (Pa. Super. 2015).       Tha

 Superior Court's review of an Order dismissing a PCRA petition is limited to the finding

 of the PCRA court and the evidence of record. Commonwealth v. Oliver, 128 A.3d 127

 (Pa. Super. 2015). The Superior Court will not disturb a PCRA court's Order dismissing

 PCRA petition if the Order is supported by the evidence of record and is free of leg -I

 error. Commonwealth v. Oliver, 128 A.3d 1275 (Pa. Super. 2015).                     The Superior Cou

will grant great deferende to the factual findings of the PCRA court and will not distur

those findings unless they have no support in the record; however, the Superior Court

affords no such deference to a PCRA court's legal conclusions.                        Commonwealth

Oliver, 128 A.3d 1275 (Pa. Super. 2015).                   Where   a   PCRA petition raises questions

law, the Superior Court's standard of review is de novo and its scope of review is plenary

Commonwealth            v.   Oliver, 128 A.3d 1275 (Pa. Super. 2015). The Superior Court ma

affirm a PCRA court's dismissal of a PCRA petition on any grounds if the record support

it.    Commonwealth          v. Oliver, 128   A.3d 1275 (Pa. Super. 2015).



                                                      -56-
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     sAadmin Varcione \Nieves Noel   rt PCRA 1925a.docx


                                            V.      CONCLUSION

           We would respectfully submit that our analysis of the merits
                                                                        of the issues raised b
     the Defendant in his first PCRA Petition and related
                                                          documents survives the threshold fo
    appellate review. To that end, we would respectfully submit
                                                                that our factual findings ar
    supported by the record and our conclusions of law are free
                                                                from error. Consistent wit
    our analysis as set forth above, we would respectfully
                                                           submit that none of Defendant'
    issues has any substantive merit. Accordingly, we would
                                                            respectfully recommend that
    this Honorable reviewing Court deny and dismiss
                                                    Defendant's appeal and affirm ou
    Order dated August 30, 2016 summarily dismissing his first
                                                               PCRA Petition.

                                                   BY THE COURT:




    Date
               h /7(e                                     _           ir
                                                                      7
                                                                      .    431/4.4..,,,r....4..t.,.._.
                                                   Anton A/faone,
                                                              i   (



                                                 Certified From The Record
                                              This            ay of    20/
                                                 Deputy. Cie          of Corm ou                  Pleas Court   -

                                                                                                         h.




                                                  -57,.,
