J   -S62028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA

                 v.


    BASHIR A. JOHNSON

                      Appellant                 :    No. 500 EDA 2018

                 Appeal from the PCRA Order January 11, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0007314-2013,
                           CP-51-CR-0007315-2013

BEFORE:     LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JANUARY 07, 2019

        Bashir A. Johnson appeals from the order denying him relief under the

Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On December 28, 2012, Johnson shot two people in the back of the head

while they were sitting in the front of   a   car and he was sitting in the rear. N.T.

(Guilty Plea), 4/20/15, at 31-35. One of the victims survived, and later

identified Johnson to the police. Id. Johnson told police Detectives Ronald

Dove and James Pitts that he was not in the area of the shooting and had his

cell phone with him at the time.   Id. Information garnered from Johnson's        cell

phone records contradicted his statement and placed his cell phone in the area

of the shooting at the time of the shooting.        Id.
J    -S62028-18



         Johnson was charged with third degree murder, attempted murder, and

carrying    a   firearm without       a   license.' He moved to suppress the statement he

made to the police, on the basis that the police violated his Miranda2 rights,

and to suppress his cell phone records, on the basis that his phone was seized

and searched without          a   warrant. The court held        a   suppression hearing, at

which Detective Pitts testified but Detective Dove did not.3 The court denied

the motion.

         Johnson entered      a   negotiated plea of guilty in April 2015 to the above

charges. During the guilty plea colloquy, Johnson admitted he was guilty. N.T.

at 35. He also acknowledged that by pleading guilty he would surrender his

right to   a    jury trial, the right to raise additional trial issues, and his right to
appeal the denial of his suppression motion or any other trial -related issues.

Id. at 7-22.       He testified   that he had not been threatened or forced to plead
guilty, had discussed his decision to plead guilty with his trial attorney, and

was satisfied with his legal representation.             Id. at 40-41.   The court thereafter

sentenced Johnson to the negotiated aggregate term of 20 to 40 years'

incarceration.

         Johnson did not file     a   direct appeal, but filed   a   timely   PCRA   petition. The

PCRA     court appointed counsel, who filed an Amended PCRA Petition. After



1-   See 18 Pa.C.S.A. §§ 2502(c), 901(a), 6106(a)(1).

2    Miranda v. Arizona, 384 U.S. 436 (1996).
3    Detective Frank Mullen also testified.
                                                 - 2 -
J   -S62028-18



providing notice of its intent to dismiss the Petition without                  a   hearing, the

court dismissed the Petition on January 11, 2018.

        Johnson timely appealed, and raises            a    sole issue: "Was [Johnson's]

[g]uilty [p]lea entered      in a    knowing, intelligent, and voluntary fashion?"

Johnson's Br. at    3   (Statement of Question Involved).

        The issue Johnson presents in his Statement of Question Involved is not

cognizable under the PCRA. While the PCRA provides relief for "[a] plea of

guilty unlawfully induced where the circumstances make it likely that the

inducement caused the petitioner to plead guilty and the petitioner                           is

innocent," 42 Pa.C.S.A.       §   9543(a)(2)(iii), Johnson's Statement of Question
Involved does not contend that his plea was unlawfully induced. He instead

mounts    a   direct attack on his guilty plea. Therefore, his only issue on appeal

affords him no relief.

        In contrast, the issue he argues in the Argument section of his brief is

cognizable under the PCRA. He contends that his trial counsel was ineffective

for advising him to plead guilty. See Johnson's Br. at 8-10. A claim of

ineffectiveness of counsel in connection to        a       guilty plea   is   cognizable under

the PCRA. Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126, 130

(Pa. 2001)     ("[A]ll constitutionally -cognizable claims of ineffective assistance
of counsel may be reviewed in        a PCRA   petition").

        However, Johnson did not include this argument in his Statement of

Question Involved, and in failing to do so, he waived it. See Pa.R.A.P. 2116(a)

("No question will be considered unless it is stated in the statement of

                                          - 3 -
J   -S62028-18



questions involved or           is   fairly suggested thereby"); Commonwealth v.

Heggins, 809 A.2d 908, 912 n.2 (Pa.Super. 2002) ("Issues not presented               in

the Statement of Questions Involved portion of a brief will not be considered").

        Even if he had not waived it, we would reject his ineffectiveness claim

as meritless. Our review of the denial of PCRA relief "is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the PCRA court level." Commonwealth

v.   Medina, 92 A.3d 1210, 1214 (Pa.Super. 2014)(en banc). We are bound by
any credibility determinations made by the PCRA court and supported by the

record, but apply     a       de novo standard of review to the PCRA court's legal

conclusions.     Id. at 1214-15.        A PCRA court need not hold a hearing if no

material issues of fact exist. Commonwealth v. Smith, 121 A.3d 1049, 1052

(Pa.Super. 2015).

        "Counsel is presumed effective, and [a petitioner] has the burden of

proving    otherwise." Commonwealth v. Brown, 161 A.3d 960, 965

(Pa.Super. 2017). To overcome this presumption,           a   petitioner must plead and

prove by   a   preponderance of the evidence that: "(1) the underlying claim has

arguable merit; (2) counsel had no reasonable basis for his or her action or

inaction; and (3) the petitioner suffered prejudice because of counsel's

ineffectiveness." Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).

An allegation that counsel provided ineffective assistance in relation to a guilty

plea "will serve as       a    basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea." Commonwealth v.

                                             - 4 -
J   -S62028-18



Pier, 182 A.3d 476, 478 (Pa.Super. 2018) (quoting Commonwealth v.
Moser, 921 A.2d 526, 531 (Pa.Super. 2007)). Whether counsel was
ineffective turns on "whether counsel's advice was within the range of

competence demanded of attorneys in criminal cases," id. at 479 (quoting

Moser, 921 A.2d at 531), and "whether the accused was misled or
misinformed and acted under that misguided influence when entering the

guilty plea." Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa.Super.

1993).

        A defendant is bound by the          statements he or she made under oath

during   a   plea colloquy.   Commonwealth v. Muhammad, 794 A.2d 378, 384
(Pa.Super. 2002). Thus, where           a   defendant's claim that   a   guilty plea was

unknowing or involuntary is belied by the record, the claim must fail.             Id.   A

defendant cannot maintain        a   claim that his plea was involuntary based on an

allegation that counsel pressured him to plead guilty if he testified to the

opposite during his guilty plea colloquy. Commonwealth v. Brown, 48 A.3d

1275, 1278 (Pa.Super. 2012).

        Johnson claims "Detective Dove and others 'dummied up' evidence

against him and lied to the [c]ourt at [the] suppression hearing." Johnson's

Br. at 7;    see also id. at 5-6. Johnson contends that following the suppression

hearing, "he was compelled to plead guilty because of the nature, breadth and

depth of the lies told by the police."        Id. at   7. Johnson argues   that his trial
counsel was ineffective for both "failing to know that Detective Dove was being

investigated [for misconduct in another case] and would likely be prosecuted,"

                                            - 5 -
J   -S62028-18



and advising Johnson to plead guilty rather than challenge the denial of his

motion to suppress on appeal or otherwise challenge the evidence against

him.    Id. at   9. Johnson concedes     that the guilty plea colloquy was not "legally
inadequate," but vaguely asserts that "there were many things lying 'behind'

the colloquy."     Id.   Johnson asks us to remand the case to the PCRA court for

an evidentiary hearing.       Id. at   10.

        The PCRA court rejected this argument because Johnson "offer[ed] no

evidence that the detectives involved in this case fabricated any evidence or

that this alleged misconduct forced his guilty plea."        PCRA    Court Opinion, filed

April 6, 2018, at 5. The court observed that Detective Dove did not testify at

the suppression hearing and "there was no way Detective Dove's misconduct

in an    unrelated matter would have [led] to        a   different result in the subject

case."   Id.   The PCRA court found no merit to Johnson's claim that his counsel

had not known about the investigation into Detective Dove because trial

counsel had cross-examined Detective Pitts about it.           Id.   The PCRA court also

found that the guilty plea colloquy reflected that Johnson entered his plea

knowingly, intelligently, and voluntarily. Id. at 4-5.

        We agree with the PCRA court's analysis. Johnson fails to allege what

evidence Detective Dove or anyone else fabricated in his case. Nor does he

offer to prove facts substantiating this allegation at an evidentiary hearing.

Rather, the record reflects that Detective Dove offered no evidence against

Johnson at the suppression hearing, and nothing suggests that Detective Dove

would have testified at Johnson's trial. Moreover, the record belies Johnson's

                                             - 6 -
J   -S62028-18



claim that his trial attorney was unaware of the investigation into Detective

Dove for misconduct in an unrelated case, and did not consider the potential

success or failure of pursuit of    a   false -evidence claim on the basis of Detective

Dove's involvement with Johnson's case. See N.T., 1/26/15 (Suppression

Hearing), at 118-20. Johnson has therefore failed to convince us that pursuit

of   a   false -evidence claim either at trial or on direct appeal would have been

successful, such that counsel's advice to forego such         a   claim and plead guilty

was incompetent. See Pier, 182 A.3d at 478.

          In addition,    the record belies Johnson's        assertion that he was

misinformed or misguided regarding his appellate rights. Rather, Johnson was

apprised of all the rights he was relinquishing by pleading guilty; stated that

he was not being coerced; stated         that he had been advised by and was happy
with his counsel; and confirmed his guilt. Johnson cannot recant those

statements on the bald claim that "there were many things lying 'behind' the

colloquy." See Brown, 48 A.3d at 1278.

          In sum, Johnson has failed to carry his burden to plead facts necessary

to substantiate     a   claim that his attorney misled him into pleading guilty such

that it rendered his plea unknowing or involuntary. We therefore affirm the
order of the PCRA court denying relief.

          Order affirmed.




                                            -7
J   -S62028-18




Judgment Entered.




  seph D. Seletyn,
Prothonotary



Date: 1/7/19




                     -8
