J-S66019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

AKEEM WILLIE

                            Appellant                 No. 121 WDA 2015


             Appeal from the PCRA Order entered January 5, 2015
              In the Court of Common Pleas of Allegheny County
               Criminal Division at No: CP-02-CR-0012086-2011


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 20, 2016

        Appellant, Akeem Willie, appeals from the January 5, 2015 order

entered in the Court of Common Pleas of Allegheny County, denying his

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The PCRA court summarized the factual background as follows:

        On August 24, 2011, at approximately 5:30, [Appellant] along
        with his co-defendant Darien Clark, contacted Dalyn Jones via
        telephone and arranged to meet at McDonald’s on Frankstown
        Road in Penn Hills, Allegheny County, Pennsylvania.

        Once all parties arrived at that location, [Appellant] and Clark
        entered the vehicle driven by DeShawn Hall and occupied by
        Dalyn Jones. At that point, [Appellant] took out a firearm from
        his waistband and struck Jones in the face. [Appellant] then
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*
    Retired Senior Judge assigned to the Superior Court.
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       stated “throw it down,” which meant you are being robbed. At
       this point, the clip fell out of [Appellant]’s gun and [Appellant]
       stated that there is [a] bullet in the chamber. While [Appellant]
       was placing the clip back into his gun, Jones began moving and
       [Appellant] shot him four times in the back. All parties then
       exited the vehicle and Jones died at the scene. [Appellant] and
       Clark then fled the scene.

PCRA Court Opinion, 7/8/15, at 3 (unnumbered) (citations to record

omitted).

       On August 25, 2011, Appellant was charged with one count of criminal

homicide, two counts of robbery--serious bodily injury, one count of criminal

conspiracy, one count of carrying a firearm without a license, one count of

recklessly endangering another person, and one count of possession of a

firearm by a minor.1 A few days before the trial, the Commonwealth offered

Appellant a 20 to 40 years’ incarceration deal in exchange for his guilty plea.

On the day scheduled for trial, Appellant’s co-defendant, Darien Clark,

agreed to testify for the Commonwealth.            After discussing the new

development,

       [Appellant], along with his counsel, appeared before the [trial
       court] and entered a guilty plea to [one count of third degree
       murder, two counts of robbery, one count of criminal conspiracy,
       one count of carrying a firearm without a license, one count of
       recklessly endangering another person, and one count of
       possession of a firearm by a minor] in exchange for a sentence
       of twenty (20) to forty (40) years in a state correctional
       institution. Although not before the [c]ourt on that date, the
       plea agreement also included concurrent time for two
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1
  On April 10, 2013, the Commonwealth amended the general charge of
criminal homicide to third degree murder.



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      aggravated assault cases that were pending in Juvenile Court. It
      was anticipated that these charges would be certified to
      [c]riminal [c]ourt and [Appellant] would enter a plea agreement
      to those charges upon certification. Based upon the guilty plea
      colloquy, this [c]ourt found that [Appellant] entered a knowing,
      voluntary, and intelligent plea and [on April 10, 2013] was
      sentenced to a total sentence of twenty (20) to forty (40) years
      in a state correctional institution.

      On April 7, 2014, [Appellant] filed a pro se [PCRA] [p]etition.
      On April 14, 2014, this [c]ourt appointed [Appellant] counsel and
      gave counsel for [Appellant] leave to amend the petition.
      [Appellant]’s [a]mended petition was filed on June 10, 2014, and
      the Commonwealth filed an [a]nswer on July 10, 2014. An
      evidentiary hearing on [the amended petition] was held on
      November 6, 2014. Thereafter, on January 5, 2015, this [c]ourt
      dismissed [the amended PCRA petition].

PCRA Court Opinion, 7/8/15, at 1-2 (unnumbered)(footnote omitted). This

appeal followed.

      On appeal, Appellant raises the following issues:

      1. Whether [trial counsel] was ineffective, which in the
         circumstances of the particular case, so undermined the
         truth-determining process that no reliable adjudication of guilt
         or innocence could have taken place[.]

      2. Whether there was a violation of the Constitution of this
         Commonwealth or the Constitution of the United States which
         so undermined the truth-determining process that no reliable
         adjudication of guilt or innocence could have taken place[.]

      3. Whether Appellant’s     guilty   plea   was   not   knowing   and
         voluntary[.]

Appellant’s Brief at 9.

      On appeal from the denial of a PCRA petition,

      [our standard of review] is limited to examining whether the
      court’s determination is supported by the evidence of record and
      free of legal error. This Court grants great deference to the

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      findings of the PCRA court if the record contains any support for
      those findings.       Further, the PCRA court’s credibility
      determinations are binding on this Court, where there is record
      support for those determinations.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)

(citations omitted).

      Despite having raised three separate issues, they all are different

aspects of the same claim, namely, whether trial counsel provided ineffective

assistance, which we review pursuant to the following principles.

      To prevail on a claim alleging counsel’s ineffectiveness under the
      PCRA, Appellant must demonstrate (1) that the underlying claim
      is of arguable merit; (2) that counsel’s course of conduct was
      without a reasonable basis designed to effectuate his client’s
      interest; and (3) that he was prejudiced by counsel’s
      ineffectiveness, i.e. there is a reasonable probability that but for
      the act or omission in question the outcome of the proceedings
      would have been different. It is clear that a criminal defendant’s
      right to effective counsel extends to the plea process, as well as
      during trial.        However, allegations of ineffectiveness in
      connection with the entry of a guilty plea will serve as a basis for
      relief only if the ineffectiveness caused the defendant to enter an
      involuntary or unknowing plea. Where the defendant enters his
      plea on the advice of counsel, the voluntariness of the plea
      depends on whether counsel’s advice was within the range of
      competence demanded of attorneys in criminal cases.

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

quotation, quotation marks, and brackets omitted).

      Appellant argues counsel was ineffective for “communicating certain

information that the Appellant relied on and induced him to take the plea, as

he felt he had no other choice.”       Appellant’s Brief at 17.     Specifically,

Appellant argues counsel was ineffective “for improperly advising his client


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that a jury or judge would only believe [] co-defendant’s version of events,

and Appellant would be therefore convicted of [f]irst or [s]econd [d]egree

[m]urder if he were to proceed to trial.[2]       [Counsel]’s statements made

Appellant feel as if he had no other choice but to take a plea when he had

always intended on proceeding to trial.” Id. at 15. Additionally, Appellant

argues counsel was ineffective because he did not honor his request to

obtain a continuance so he could have more time to decide about the plea

offer and for not allowing him to talk to his family regarding the plea. See

id. at 17.

       Appellant avers he met the three prongs for a finding of ineffective

assistance of counsel for the following reasons. Regarding the first prong,

Appellant argues that his claim has arguable merit because “clear[ly] [he] is

more credible” as to whether he wanted to proceed to trial as opposed to

taking a guilty plea.      Appellant’s Brief at 18.   Next, Appellant argues “no

reasonable basis exists” for not seeking a continuance to allow him more

time to make a decision on the plea offer or to talk to his family.          Id.

Finally, Appellant      argues he      was “severely prejudiced”   by counsel’s

ineffectiveness. Id. at 19. For the reasons stated below, we disagree.

       The PCRA court credited trial counsel’s version of the facts, not

Appellant’s. Yet, Appellant is asking us to discount counsel’s testimony, in
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2
  Appellant also testified that counsel told him he would be sentenced to
“technically life” as a result of his conviction. Appellant’s Brief at 17.



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favor of his testimony, which is, in his view, “clearly more credible.”

Credibility issues are for the PCRA court, not for this Court. See Anderson,

supra.       As such, we will not reweigh the testimony.     Thus, the claim is

meritless. Similarly meritless is Appellant’s statement about the reasonable

basis (or lack thereof) prong.       Merely stating that the strategy had no

reasonable basis is not proof that the strategy in fact lacked reasonable

basis.    In other words, the statement is not self-evident truth.     Appellant

must allege and prove by a preponderance of the evidence that he is entitled

to relief.    See, e.g., Commonwealth v. Hutchinson, 25 A.3d 277, 285

(Pa. 2011).      Bald allegations, without more, are insufficient to meet the

standard. See, e.g., Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa.

2011) (“We stress that boilerplate allegations and bald assertions of no

reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s

burden to prove that counsel was ineffective”) (citation omitted)). Finally,

Appellant presumes prejudice from counsel’s conduct.         However, prejudice

cannot be presumed, it must be shown. Id. Appellant’s failure to do so is

fatal to his claims.

         Despite Appellant’s reliance on mere conclusions, the PCRA court

addressed his claims as follows:

         At the PCRA hearing in this matter, . . . trial counsel testified
         that he represented [Appellant] from the initial stages of this
         matter through the plea. He testified that the offer to plea to 20
         to 40 years was made a few days prior to the scheduled trial
         date, but on the trial date the Commonwealth agreed that his
         two pending aggravated assault charges would be concurrent to

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     the time served for this matter. Trial counsel testified that he
     was prepared to proceed to trial, but on the day scheduled for
     trial, [co-defendant] agreed to testify against [Appellant]. At
     this point, trial counsel spoke with [Appellant] to discuss the plea
     offer and the co-defendant’s statement. Trial counsel gave
     [Appellant] his opinion of the co-defendant statement that it was
     not necessarily the best evidence and there was contradictory
     evidence that would be presented at trial. He further advised
     him of the sentencing options for juvenile homicide offenders.
     Prior to the trial date, trial counsel had advised [Appellant] of
     the possible outcomes of going to trial in this matter, including
     available defenses.       Trial counsel advised him that a life
     sentence was a possibility, but not likely given the sentencing
     judge. [Appellant]’s demeanor at this point was that he was
     depressed and he stated, “I’m f-ed.”

     After trial counsel gave [Appellant] the plea offer and discussed
     it with him for a few hours, [Appellant] asked trial counsel to
     leave so that he could think about the plea offer. Based upon
     [Appellant]’s actions, trial counsel testified that he was of the
     impression that “there was somebody back in the holding cell
     whose opinion [Appellant] valued more than mine.” After not
     receiving confirmation that [Appellant] wanted to accept the plea
     offer, trial counsel and [Appellant] went to the jury room to
     begin selecting a jury. At that point, [Appellant] advised trial
     counsel that he wanted to accept the plea offer.

     [Appellant] was then brought before this [c]ourt to enter his plea
     of guilty. During [Appellant]’s plea colloquy, [Appellant] was
     difficult, but ultimately admitted guilt. As was placed on the
     record at the plea, trial counsel advised [Appellant] that he was
     not required to enter the plea and that he was able to proceed to
     trial if he so chose.

Trial Court Opinion, 7/8/15, at 3-4 (unnumbered) (citations to record

omitted).

     In light of the foregoing, the PCRA court concluded:

     Based upon the testimony at the guilty plea and the PCRA
     hearing, it was clear to this [c]ourt that [Appellant] understood
     the nature of the charges he was facing, that he had a right to a


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         trial by a jury, and that he knew the possible range of sentences
         he was facing. As such, [Appellant] entered into a knowing plea.
         As noted above, when ineffective assistance of counsel is raised
         with regard to voluntariness of a plea, a court is to look at
         whether counsel’s advice was within the range of competence
         demanded of attorneys in criminal cases.         Based upon the
         testimony presented at the PCRA hearing this [c]ourt found that
         trial counsel’s advice was competent and, therefore,
         [Appellant]’s plea was voluntary. As such, [Appellant] cannot
         meet his burden to establish the three prong test for an
         ineffective assistance of counsel claim . . . and his PCRA
         [p]etition was properly dismissed.

PCRA Court Opinion, 7/8/15, at 5-6 (quotation marks and citation omitted).

         Upon review, and in light of the foregoing, we conclude the record

supports the PCRA court’s analysis and conclusions, which are free of legal

error.     Appellant indeed failed to adequately allege and prove that he

entered an unknowing and involuntary guilty plea, and that that trial counsel

provided ineffective assistance.     Accordingly, we conclude the PCRA court

properly dismissed Appellant’s PCRA petition.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/20/2016




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