J-A24039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
              v.                            :
                                            :
ERIC WELLS,                                 :
                                            :
                    Appellant               :            No. 518 WDA 2017

                   Appeal from the PCRA Order March 10, 2017
              in the Court of Common Pleas of Washington County,
               Criminal Division, No(s): CP-63-CR-0001922-2013

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED DECEMBER 14, 2017

        Eric Wells (“Wells”) appeals from the Order dismissing his first Petition

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

        In its Order and Pa.R.Crim.P. 907 Notice (hereinafter “PCRA Court

Order and Rule 907 Notice”), the PCRA court set forth the relevant factual

and procedural history, which we adopt for the purpose of this appeal. See

PCRA Court Order and Rule 907 Notice, 1/18/17, at 1-5.

        Wells filed a Response to the PCRA court’s Order and Rule 907 Notice.

On March 10, the PCRA court entered an Order dismissing the Petition.

Wells filed a timely Notice of Appeal.     Thereafter, the PCRA court filed an




1
    See 42 Pa.C.S.A. §§ 9541-9546.
J-A24039-17


Opinion pursuant to Pa.R.A.P. 1925(a).2

      On appeal, Wells raises the following issues for our review:

      1. Was plea counsel ineffective in permitting the trial court to
         participate in plea negotiations, a violation of due process, by
         meeting with the trial court and the prosecution in chambers
         to discuss issues of guilt, innocence, level of guilt, and an
         appropriate period of incarceration before the proposed plea
         agreement was entered?

      2. Was [] Wells unlawfully induced into pleading guilty to
         homicide generally based on the ineffective assistance of plea
         counsel[,] who failed to adequately investigate or advise []
         Wells regarding potential defenses[,] and erroneously advised
         [] Wells that there were no available defenses when [] Wells
         was intoxicated at the time of the incident and struck the
         victim only one time?

      3. Did plea counsel render ineffective assistance by neglecting to
         adequately discuss with [] Wells his appellate rights in
         conjunction with his right to withdraw his plea?

      4. Whether plea counsel was ineffective in advising [] Wells to
         plead guilty to robbery as either principal or an accomplice[,]
         where [] Wells lacked the requisite specific intent to commit
         or facilitate a robbery of either [Zach] DeCicco or [Timothy]
         McNerney, which plea counsel actually argued?

Brief for Appellant at 4 (issues renumbered for ease of disposition).

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. Further, we grant great
      deference to the factual findings of the PCRA court and will not
      disturb those findings unless they have no support in the record.
      However, we afford no such deference to its legal conclusions.

2
 The PCRA court did not order Wells to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b)


                                  -2-
J-A24039-17


       Where the petitioner raises questions of law, our standard of
       review is de novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

       In his first issue, Wells contends that his plea counsel was ineffective

for permitting the trial court to participate in plea negotiations.           Brief for

Appellant at 16-17. Wells asserts that, “absent the trial court’s involvement

and agreement in this case, it would be absurd on its face to urge a client to

enter a plea to homicide[,] generally[,] and robbery arising out of the same

criminal episode.” Id. at 17-18. Wells claims that “it only makes sense for

an attorney to urge his client to enter such a plea if he had been made a

promise by the trial court.” Id. at 18. Wells argues that “[s]ince the trial

court ensured [sic] [plea counsel] that it would not find [] Wells guilty of

felony murder if he entered the plea proposed by the trial court, [] Wells[’s]

due process rights were violated.” Id. Wells contends that his plea counsel

“was    ineffective   for   failing   to   raise   this   issue   and,   in   light   of

[Commonwealth v.] Evans, [252 A.2d 689 (Pa. 1969),] could have no

reasonable basis for not doing so.” Brief for Appellant at 18. Wells claims

that he suffered prejudice because, absent the trial court’s interference, his

plea counsel would not have advised him to plead guilty to both murder and

robbery, and would have instead advised Wells to plead guilty to involuntary

manslaughter or proceed to trial. Id. at 19. Wells argues that, pursuant to

Evans, a plea entered on the basis of a sentencing agreement in which the



                                      -3-
J-A24039-17


judge participates cannot be considered a voluntary plea.        Id. at 19-20.

Wells asserts that the PCRA court incorrectly relied on Commonwealth v.

Vealey, 581 A.2d 217 (Pa. Super. 1990), in reaching its determination that

Wells suffered no prejudice relative to his Evans claim. Brief for Appellant

at 20.

         In its Opinion, the PCRA court addressed Wells’s first issue, set forth

the relevant law, and determined that the issue lacks merit.         See PCRA

Court Order and Rule 907 Notice, 1/18/17, at 5-6, 14-17 (wherein the PCRA

court concluded that there is no evidence of record that the trial judge was

involved in the plea negotiations between Wells, his plea counsel, and the

Commonwealth); see also id. at 17-18 (wherein the PCRA court determined

that, even if Wells had presented evidence that the trial judge was involved

in the plea negotiations, Wells suffered no prejudice, as the trial judge

declined to find Wells guilty of second-degree murder or to impose the

felony murder rule, despite evidence supporting those charges).        As Wells

failed to present any evidence that the trial judge was involved in his plea

negotiations, plea counsel cannot be faulted for failing to object to the trial

judge’s participation. See Commonwealth v. Poplawski, 852 A.2d 323,

327 (Pa. Super. 2004) (holding that counsel cannot be found ineffective for

failing to pursue a baseless or meritless claim).       As we agree with the

reasoning of the PCRA court, which is supported by the record and free of




                                    -4-
J-A24039-17


legal error, we affirm on this basis as to Wells’s first issue. See PCRA Court

Order and Rule 907 Notice, 1/18/17, at 14-17.

      As Wells’s second and third issues are related, we will address them

together. In his second issue, Wells contends that he did not possess the

requisite malice to support a conviction of third-degree murder.       Brief for

Appellant at 23.   Wells asserts that “[n]o reasonable person, who weighs

155 pounds, and strikes a person weighing thirty pounds more than him,

reasonably expects that one punch would kill the person he struck.”         Id.

Citing to Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1987), Wells

claims that none of the circumstances deemed sufficiently egregious to

warrant a finding of aggravated assault in a “one-punch aggravated assault”

case were present in this case.3    Brief for Appellant at 25.    Based on his

assertion that there was no evidence of malice, Wells argues that “there was

a valid defense to homicide, i.e., that the crime[,] at most[,] rose to the

level of involuntary manslaughter ….”      Id.   Wells contends that his plea

counsel’s advice that Wells had no viable defense was erroneous, and plea

counsel had no reasonable basis for not informing Wells that he “had a



3
  In Alexander, the Court announced that the following factors can be
utilized in ascertaining whether the defendant intended to inflict serious
bodily injury by one blow: (1) if the defendant “was disproportionately
larger or stronger than the victim;” (2) whether the defendant would have
escalated his attack but was restrained from doing so; (3) whether the
defendant was in possession of a weapon; and (4) “statements before,
during, or after the attack which might indicate [defendant’s] intent to inflict
further injury upon the victim.” Alexander, 383 A.2d at 889.


                                  -5-
J-A24039-17


strong[,] legally valid defense to the homicide charge.” Id. at 25-26. Wells

asserts that he would not have entered his plea if plea counsel had properly

advised him. Id. at 26.

      Wells further claims that the PCRA court erred by determining that

plea counsel had a reasonable basis to advise Wells to plead guilty to

homicide, generally, and robbery without the benefit of any testimony from

plea counsel.   Id. at 28.   Wells argues that the PCRA court also erred by

failing to make the appropriate inquiry of whether plea counsel’s advice

caused Wells to enter an unknowing and involuntary plea.          Id.   Wells

contends that the only explanation for plea counsel’s advice to plead guilty

to homicide, generally, and robbery based on the same set of facts is that

the trial judge promised that he would not find Wells guilty of felony murder.

Id. at 29-30.    Wells asserts that the PCRA court improperly relied on

aggravated assault cases when determining the level of malice necessary for

homicide. Id. at 30.

      In his third issue, Wells contends that an evidentiary hearing was

required to determine whether plea counsel had advised Wells of his right to

file a direct appeal. Id. at 33. Wells asserts that, “had counsel adequately

advised [Wells] regarding his defense to homicide[,] and that [Wells] could

have pursued an involuntary manslaughter defense, [] Wells would have

moved to withdraw his plea or never entered the plea.” Id. Wells claims

that he suffered actual prejudice because his plea counsel had no reasonable



                                  -6-
J-A24039-17


basis not to discuss with Wells his appellate rights, and there would have

been grounds for an appeal based on his defense to homicide. Id. at 35.

             [T]o convict a defendant of the offense of third[ ]degree
      murder, the Commonwealth need only prove that the defendant
      killed another person with malice aforethought. This Court has
      long held that malice comprehends not only a particular ill-will,
      but [also a] wickedness of disposition, hardness of heart,
      recklessness of consequences, and a mind regardless of social
      duty, although a particular person may not be intended to be
      injured.

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (citations

omitted).

      This Court has further noted:

      [T]hird[-]degree murder is not a homicide that the
      Commonwealth must prove was committed with malice and
      without a specific intent to kill. Instead, it is a homicide that the
      Commonwealth must prove was committed with malice, but one
      with respect to which the Commonwealth need not prove, nor
      even address, the presence or absence of a specific intent to kill.
      Indeed, to convict a defendant for third[-]degree murder, the
      jury need not consider whether the defendant had a specific
      intent to kill, nor make any finding with respect thereto.

Id.   As with other elements of crime, the trier of fact may infer criminal

intent, knowledge and recklessness from circumstantial evidence.              See

Commonwealth v. Moore, 395 A.2d 1328, 1332 (Pa. Super. 1978)

      In its Opinion, the PCRA court addressed Wells’s second and third

issues, set forth the relevant law, and determined that the issues lack merit.

See PCRA Court Order and Rule 907 Notice, 1/18/17, at 5-10 (determining

that “[s]pecific intent is not a required element of third[-]degree murder”

and that “the facts establish [Wells’s] intention to cause serious bodily harm


                                   -7-
J-A24039-17


during the confrontation.”); see also PCRA Court’s Pa.R.A.P. 1925(a)

Opinion, 3/9/17, at 2-5 (wherein the PCRA court further explained its

determination that Wells’s ineffectiveness claims regarding a defense to

third-degree murder are meritless).

      Here, the evidence of record reveals that, during the course of a

robbery, Wells delivered a single punch to the victim with such force that the

victim immediately fell to the ground and struck his head.      Indeed, Wells

admitted to police that he had punched the victim with such force that he

“knocked him out.”    N.T., 8/14/13, at 60.    We conclude that these facts

support a determination that Wells acted with a “wickedness of disposition,

hardness of heart, recklessness of consequences, and a mind regardless of

social duty” so as to satisfy the malice element of third-degree murder. See

Fisher, 80 A.3d at 1191. The fact that Wells did not intend to kill the victim

is of no consequence.      Id.   We therefore agree with the PCRA court’s

determination that plea counsel was not ineffective for failing to advise Wells

that he had a defense to third-degree murder, and affirm as to Wells’s

second and third issues.     See PCRA Court Order and Rule 907 Notice,

1/18/17, at 5-10; see also PCRA Court’s Pa.R.A.P. 1925(a) Opinion, 3/9/17,

at 2-5.

      In his fourth issue, Wells contends that, based on his plea counsel’s

statement to the trial court during sentencing that Wells had no criminal

intent to commit robbery, counsel could have no reasonable basis to advise



                                  -8-
J-A24039-17


Wells to plead guilty to robbery as a principal.     Brief for Appellant at 32.

Wells asserts that, although plea counsel had indicated that his advice was

based on the Commonwealth’s charge of accomplice liability, an intent

element is also required for accomplice liability.    Id.   Wells claims that,

because he denied that he intended to commit the robbery, a valid defense

to the robbery charge existed.       Id. at 33.   Wells argues that, had plea

counsel explained that Wells had a defense to robbery, Wells would not have

pleaded guilty to that charge. Id.

      In its Opinion, the PCRA court addressed Wells’s fourth issue, set forth

the relevant law, and determined that the issue lacks merit.        See PCRA

Court Order and Rule 907 Notice, 1/18/17, at 10-13 (wherein the PCRA

court determined that the record supports Wells’s conviction of conspiracy to

commit robbery). We agree with the reasoning of the PCRA court, which is

supported by the record and free of legal error, and affirm on this basis as to

Wells’s fourth issue. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/14/2017


                                  -9-
Mar, 29, 2017        3: 29PM                                                                 ell     ed 111/16/2017 10:37 AM




       IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
                               CRIMINAL DIVISION



      COMMONWEALTH OF PENNSYLVANIA
                                             4




                v.                                                  No.     CR 1922 2013


      ERIC WELLS
            Defendant.



                                                    ORDER

                AND NOW, this 9" day of MARCH, 2017, after reviewing the Defendant's Response to

      Pa,R.Crim. 907 Notice of Intent to Dismiss, it is hereby ORDERED, ADJUDGED, and

       DECREED that the Defendant's. .PCRA is DISMISSED. Pursuant to Rule 910 of the

       Pennsylvania Rules of Criminal Procedure, the Defendant has the right to file an appeal to the

       Superior Court within thirty (30) days of this date of this order. The appeal must be flied with the

       Washington County Clerk of Courts. PURSUANT TO RULE 908(E), THE DEFENDANT

       SHALL BE SERVED WITH NOTICE OF THIS ORDER Bit CERTIFIED MAIL, RETURN

       RECEIPT REQUESTED.

                 By way of Au-tiler explanation, this Court provided notice to the Defendant by way of an

       Order dated January 17, 2017 that it intended to dismiss the Defendant's amended PCRA

       petition without a hearing. The Court found no genuine issues of material fact based upon the

       reasons act forth 14 the Order. Through his counsel, the Defendant filed a timely response to the

       Court's notice of intent to dismiss. The Court finds that its January      17th   Order addieises the

       issues raised in both the Defendant's amended PCRA petition and response. Consequently, the
Mar.   29.2017     3:29PM
                                                                                                    No.   1527    P.   2




        Cdurt need not reiterate ib reasoning in detail and will address the Defendant's response in

        abridged fashion below,

                 The Defendant argues in his response that the Court erred in not affording him an

        evidentiary hearing, The Defe:ndaraaverstthat the Court has flashioned a reasonable basis for trial

        counsel's strategy, which was not clear and obvious from the record. The Defendant quotes from

        Commonwealth        v.   McGill to support his position that "the court is not to glean, surmise, or

        speculate with regard to the strategy of Counsel except In those rare instances where his strategy

        is clear and obvious from the record under review," 832 A.24 1014, 1023 (Pa. 2003).

                 "There is no absolate right to an evidentiary hearing on a PCRA petition, and if the

        PCRA court can determine from the record that no genuine issues of material fac exist, then a

        hearing is not necessary." Commonwealth                 v.   Jones, 942 A.2d 903, 906 (Pa. Super. Ct. 2008)

         (quoting Commonwealth            v.   Barbosa, 819 A.2d 81 (Po. Super. Ct. 2003)). "[S]uch a decision is

         within the discretion of the PCRA court and. will not be overturned absent an abuse of

         discretion" Commonwealth              v.   Mason, 130 A.3d 601, 617 (Pa. 2015). This Court finds that trial

         counsel's strategy      Is   clear and obvious from the record under review and that he understood the

         circumstance in which the Defendant found himself.'

                  Trial counsel argued zealously on his client's behalf. Trial counsel pointed to Troy

         Simmons as the "catalyst" of the October 14, 2013 confrontation that killed Timothy McNerney

         ("McNerney"). Transcript of Proceedings Held on. May 27, 2014 at p. 17: LL. 19-22. Ho

         explained to Judge Borkowski that "[a]s Mr. McNerney attempted to aid his friend [Zech

         DeCicco], Mr. Wells delivered, for a lack. of a better term, a sucker punch to Mr. McNerney,

          causing Mr. McNerney to fall back and strike his head and die." Id. Tor these reasons, trial

           The Delbudant entered into a general homicide plea on May 27, 2014 before Judge Edward Borkowski, as well as
          one count of Robbery. The Commonwealth and the Defendant agreed that the Court would determine the degree of
          guilt. Transcript of Proceedings Held on May21, 2014 up, 2, LL. 3445; p. 3, L. 3.


                                                                      2
Mar. 29.2017      3:29PM
                                                                                                       No,   1527      P.    3




     counsel argued that the Defendant should not be subject first degree murder
                                                                                 because the
     Defendant's single punch evidenced no intention to kill.

               Trial counsel also argued that the pcfendalli should not be subject to the Felony
                                                                                                 Murder..
     Rule because     his   client had no intention to commit a robbery? As trial counsel emphasized,

     "[There, certainly, was no inept on Mr. Wells to rob anybody. ... The argument is that
                                                                                            this is a
      one punch case, which through accomplice liability, may be a robbery, but that intent was
                                                                                                not
      utilized until after the aggravated assauliimartalaughter. That's the argument." Id. at g, 17, IL...
                                                                   ,

      23-24; p.      1,1.   9-13.                                                                  I




               In its January 17, 2017 order, the Court emphasized that the October 14, 2013 incident

      started as robbery? This incident happened when Adam Hankins ("Hankins"), Simmons and the

      Defendant confronted DeCicco and McNerney, The Court stated;

               To reiterate, the testimony of record makes clear that the confrontation started as a
               robbery when the Defendants and DcCicco and McNerney met on Maiden Street;
               When. DeCicco would not give Simmons his cell phone, Simmons punched
               DeCicco, who then fell to the ground and continued to get beaten by multiple
               persons for 20 seconds until there was a sudden break that allowed him to escape.

               See Order dated January 17, 2017, p. 13.

                The entire incident began as a robbery. The intent to commit the felony had already been

      formulated before any assault. took place. "When an actor engages in one of the statutorily

      enumerated felonies and       a   killing occurs, the law, via the felony-murder rule, allows the finder of

       fact to infer the killing was malicious from the fact that the actor engaged in a felony of such a

       dangerous nature to human life because the actor, as held to a standard of a reasonable man,

       knew or should have known that death might result from the felony," Commonwealth                         v.   Legg,



         MeNerney'a wallet and cellular phone were taken as a result of the confrontation, The Dcfendam wound up
                                                                                                                  with
       Mclklatney's phone and trial counsel made that acknowledgment, Transcript of Proceedings Held on May 27, 2014
       at p. 18, LL. 7-8,
       3S.   Transcript of Preliminary hearing Held on August 14, 2013 at pp. 18-19 (testimony of victim, Zech DeCicco).


                                                               3
Mar, 29, 2017    3:29PM
                                                                                                       No. 1527       P.     4




      417 A,2d 1152, 1154 (Pa, 1980). By committing an unlawfhl
                                                                act (sucker punching McNerney) to                            '

      assist the robbery,4 the Defendant was subject to the Felony Murder
                                                                          Rule (second degree murder
     'and carrying a se:ntence of life in pris*n).. See 18 Pa.P.S.A.                §. 1102(b); Commonwealth           1*


      A;fi,ddlOcm; 467   Aid 841, 845       (Pa. Super, Ct. 1983). A robbery that                                  harm
      is defined as a crime of violence and considered a felony of the
                                                                       first degree, thereby subjecting a
                                                                                    L,.

      perpetrator to the Felony Murder Rule. 18 Pa. C.S.A.                   §   2592; 42 Pa.. C,S.A.       §   9714(g);
      Commonwealth v, Greene, 25 A.34 359, 362 (Pa. Super. Ct. 2011);
                                                                      Commonwealth                         v,   Lambert,
      795   Aid i 010, 1022 (Pa. Super. Ct. 2002),5
                For the above -mentioned reasons, this Court finds PCRA counsel's
                                                                                  central argument-
      that the facts support, at best, an involuntary manslaughter charge and that
                                                                                   trial counsel was
      ineffective for advising the Defendant that he had no available defense-to be wide of the
                                                                                                mark.6
      Thither, even if trial counsel did not explain involuntary manslaughter to
                                                                                 the Defendant, there
      was no ineffectiveness because the record is clear and obvious thatthe facts do rick
                                                                                           support such
       conviction. See Commonwealth'           v,   Davis, 652   Aid   885, 887 (Pa. Super, Ct, 1995) ("Vidal

       counsel cannot be held. Ineffective for falling to take       bile actions or to raise a meritless claim.");
       see also Commonwealth         v.   Pierce, 786 A.2d 203, 213 (Pa. 2001) ("Prejudice la the context of

       ineffective assistance of counsel means demonstrating that there Is a reasonable
                                                                                        probability that,
       but for counsel's error, the outcome of the proceeding would have been
                                                                              different"). The


       a
         The Defendant became an accomplice to the robbery and accomplices are legally aeommtable
                                                                                                      for another person's
       conduct involved In the commission of crimes. 18 Pa.C.8.A. § 306(b)(3).
         Thu Defendant's PCRA counsel cited Commomvealth v. Alexander,
                                                                             383 Aid 887 (Pa. 1978) and Connomveulth
       v. Burton, 2 A.3d 598, 604 (Pa. Super. Ct. 2010). In his
                                                                Amended PCRA. Petition to distinguish the facts therein
       from those Involving his client Thervlbro, this Court addressed said cases in its
                                                                                         January 17. 2017 order. Therein,
       this Covrt cited Barran concerning its conclusion that the Defendent's one
                                                                                    punch supported a finding of malice.
       Now, PCRA counsel claims that Burton is nor applicable because the victim in
                                                                                           Swim did not die, but merely
       sustained serious bodily injury.
         "A potion is guilty of involuntary manslaughter when as a direct result of the
                                                                                         doing of an unlawful action in a
       reckless or grossly nogligetu manner, or the doing of a lawilti act ion a reckless or
                                                                                             grossly negligent manner, he
       causes the death of another person." 18          § 2504(a).



                                                                 4
 Mar. 29. 2017        3:30PM
                                                                                                    No, 1527   F.   5




           Defendant was not convicted of either first or second degree murder and the facts as
                                                                                                discussed
           above belles a finding that the Defendant was guilty of involuntary manslaughter.


       ,          -   .                  -   -
                                                     -   .1   a   .
                                                                       c
                                                                               z
1.            .."°.             ,.   I

                                                 1
                                                                           "
                                                                                        I   .   .




                                                                           THEAourer;



                                                                  4   Gary Gilman, I




                                                                           S
                                                                               Circulated 11/16/2017 10:37




 IN THE COURT OF COMMON PLEAS OF WASHINGTON
                                            COUNTY, PENNSYLVANIA
                                      CRIMINAL DIVISION



COMMONWEALTH OF PENNSYLVANIA                         )


        v.                                           )       No.    CR 1922 - 2013

ERIC WELLS
                                                     )
                                                     )
                                                                                   ,
                                                                                   __...r--
                                                                                                    ---1

     Defendant,                                                                    t   ,Irn
                                                     )                                 ......,4
                                                                                                    =.,..


                                                                                    i,( )
                                                                                                    --.
                                                                                                     -4      =
                                                                                       P-c,
                                                                                         (-)         --,
                                                                                                     .-...
                                                                                                             rn
                                      ORDER and NOTICE                                 ( --,:.A.}     N)
                                                                                            -4
                                                                                       V. (al         CZ.
       AND NOW, this       17th   day of JANUARY, 2017, it is hereby ORDERED,
                                                                              ADJUlTGED
and DECREED that the Defendant, Eric Wells, is served
                                                            notice of the Court's intention to
dismiss his Amended Post-Conviction Relief Act Petition without
                                                                    a hearing inasmuch as the
Court finds that there are no genuine issues of material fact
                                                              based upon the reasons set forth
below.

      It is further ORDERED that the Defendant's petition
                                                          will be dismissed on February 16,
2017 (no less than 30 days from the date of this order
                                                          and notice), in accordance with
Pennsylvania Rule of Criminal Procedure 907 unless the Defendant,
                                                                        either representing himself
or through counsel, responds to this Order and Notice
                                                         demonstrating why the Court should not
dismiss the Defendant's petition for relief under the Post
                                                           -Conviction Relief Act ("PCRA").

                                    PROCEDURAL HISTORY
       On August 6, 2013, the Defendant was charged with
                                                         one count of Criminal Homicide (F-
1), two counts    of Robbery-Inflicting Serious Bodily Injury (F-1), one
                                                                         count of Criminal
Conspiracy to Promote or Facilitate Criminal Homicide and/or
                                                             Robbery (F-1), and one count of
            Theft by
                       Unlawful Taking,
                                              Movable Property
            against two other                                        (M-1). Identical
                                persons, Adam                                             criminal charges
                                                  Hankins                                                      were filed
           charges stemmed                                  ("Hankins") and Troy
                               from a                                                     Simmons
                                        confrontation occurring                                      ("Simmons"). The
                                                                     on or about
           Washington wherein                                                      October 14, 2012
                                  Timothy McNerney                                                        in the City
                                                        ("McNerney") was killed
                                                                                                                       of
          were taken.
                                                                                        and his cell
                                                                                                      phone and wallet
                 The three
                             co-defendants and the
         27, 2014                                      Commonwealth entered
                    before the                                                       into plea
                                 Honorable Judge                                                 agreements on May
                                                     Edward
         Commonwealth agreed that                              Borkowski. The
                                        each defendant                               respective defendant
                                                        would                                                  and the
        robbery. Transcript                                     enter a general
                             of Proceedings                                        plea of guilty to
                                               Held on May                                             homicide and
       the Court                                              27, 2014 at pp.
                  would then                                                     2-3. Further,
                               determine the degree                                              as a finder of
      p. 3, LL.                                       of guilt                                                   fact,
                  3-5. After                                   regarding the general
                              reviewing the                                                pleas of
                                               "pleadings, pretrial                                 homicide. Id. at
     Defendant, the                                                    pleadings,        , the
                       Affidavits of                                                           statements of each
                                      Probable Cause,
     after hearing                                       and the
                                                                   transcript of the
                    arguments by the                                                   preliminary hearing"
                                         attorneys, the Court                                                   and
    guilty of third                                            concluded     that it
                     degree murder, as                                               would find the
                                          well as one                                                  defendants
    13-20. In                                          count of
               addition, the Court                               robbery. Id. at p. 3,
                                     set a                                                 LL. 19-24; p.
                                           sentencing date of                                              23, LL.
   investigation reports. Id.                                   August 25, 2014
                               at p. 23, LL.                                          and ordered
                                              21-23.                                                pre -sentence
           At the
                   August 25, 2014
                                       sentencing hearing,
  25 years of                                                the Court
                incarceration for third                                   sentenced the
                                          degree murder                                     Defendant to 10 to
 incarceration for                                         and  a
                     robbery, with a 5                              consecutive period
                                          year period of                                    of 3 to 6 years
                                                                                                              of
 Proceedings Held on                                      probation to follow.
                          August 25, 2014                                          Transcript of
                                                at p. 52,                                           Sentencing
restitution as noted in                                     LL.   3-8. In
                        the pre                                             addition, the
                                -sentence                                                     Court imposed
of                                          investigation report,
   McNemey../d. at p. 52,                                          travel expenses,
                             LL. 8-10.                                                 and funeral
                                                                                                     expenses




                                                   2
                              The
                                    Defendant did not
                     the                                 file any
                         Superior Court.                            post
                                             He did,                     -sentencing
                                                                                        motions, nor
                   Court                              however, file a                                   did he file
                           appointed                                       timely                                    a direct
                                       Stephen Paul,                                 PCRA.                                    appeal to
                 2016, the                             Esq. as                                petition on
                             case was                             PCRA                                       August 31,
                                                                           counsel on                                     2015. The
                to                       reassigned to                                    September
                    Andrew                               Timothy Lyon,                                  11, 2015.
                              Salemme, Esq.                                  Esq. On                               On
                                                                                        June 30,                        February 23,
               2016.                              Attorney                                         2016,   the case
                                                             Salemme filed                                          was
                                                                                an                                       reassigned
                                                                                    Amended PCRA
                        In his                                                                            Petition on
                               amended                                                                                 October 20,
                                           petition, the
             should be                                    Defendant claims
                          granted:                                               the
                                                                                      following four
                      1. Mr.                                                                             reasons for
                               Wells was                                                                               why relief
                          based upon        unlawfully
                                       the                induced into
                         investigate or ineffective
                         advised Mr. advise Mr. Wells    assistance of pleading guilty to
                                                                          plea counsel           homicide
                                       Wells that               regarding                  who failed
                        intoxicated at the          there were
                                             time of the          no         potential                  to generally
                  2.                                                  available          defenses and adequately
                       Attorney                           incident and            defenses when
                      Mr. WellsDeRisoj, the                               struck the                 Mr.erroneously
                                                                                                           Wells was
                                   to plead Defendant's                                victim   only one
                      where Mr.                guilty to          trial                                    time.
                     either Mr. Wells lacked the robbery as counsel,] was
                                 DeCicco or Mr. requisite                either a          ineffective in
               3.                                                    specific       principal   or an       advising
                    Attorney                         McNerney, which intent to                         accomplice
                    plea       DeRiso was                                   Mr.             commit a
                                                                                 DeRiso                robbery of
                   and thenegotiations, a      ineffective  in                              actually
                                                                                                     argued.
                  of guilt,prosecution inviolation of duepermitting           the trial
                                                                                        court to
                              an              chambers to process, by
                  agreement was   appropriate                discuss            meeting            participate in
                                                                                            with the
                                                 period of             issues of                      trial court
                                    entered.                                       guilt,
           4.                                                  incarceration              innocence,   the level
                Attorney                                                        before the
                discuss with DeRiso                                                             proposed plea
                                      rendered
                                Mr. Wells
                                            his  ineffective
                                                                assistance by
                                                appellate rights.
          Amended                                                               neglecting to
                       Petition for
                                     Post                                                         adequately
                                          -Conviction Relief,
 The relief                                                       1111.
            requested by the
the                              Defendant is that
    alternative, his                                  he be
                       direct appeal                         permitted to
motion to                             rights be                               withdraw his
          withdraw his                            reinstated                                   guilty plea
                           guiltyplea.                        along with                                      and, in
                                        Id. 118.                             his  right to file
                                                                                                 a post
                                                                                                         -sentence




                                                     3
                                                             FACTS
                Three persons
                                 testified at the
                                                     Defendant's preliminary
       Warco ("Coroner                                                             hearing, Coroner S.
                           Warco"), Detective                                                               Timothy
                                                    Daniel Stanek
       ("DeCicco"). The only                                           ("Detective  Stanek"), and Zach
                                  witness to the                                                           DeCicco
                                                      crimes committed
       Hankins was DeCicco.                                                   by the
                                                                                      Defendant, Simmons,
                                According to DeCicco,                                                           and
                                                            he and
      and Jefferson                                                  McNerney, two students
                      College, were leaving                                                     from Washington
                                                 a bar called the
                                                                      Brew House at
     October 4, 2012.                                                                  approximately 2 a.m. on
                         Transcript of Preliminary
                                                       Hearing Held on
     The two were                                                           August 14, 2013 at p.
                     walking back to                                                                15, LL. 3-15.
                                         Washington and Jefferson
     were confronted by                                                   College on Maiden
                          the Defendant,                                                       Street when they
                                            Simmons, and Hankins
    Id. at p. 17, LL.                                                    near Lombardi's,
                       5-21. One of the                                                    an automotive
                                          three co-defendants                                               store.
    18, LL. 19-21.                                                asked   DeCicco for his cell
                    DeCicco did not                                                             phone. Id. at p.
                                        comply with the
    19, LL. 9-15.                                            demand     and was then hit
                   DeCicco testified that                                                 in the nose. Id.
                                             after being struck,                                            at p.
   and kicked by                                                    he  went to the
                   what felt like more                                               ground and was
                                         than one person                                               punched
                                                             for around twenty
   23; p. 20, LL. 2-9.                                                            seconds. Id. at p. 19,
                       During the beating,                                                               LL. 8-
                                              DeCicco was unable to
  turned on                                                               determine if any of the
              McNerney. Id. at p. 20,                                                              Defendants
                                         LL. 5-7. DeCicco
                                                               testified that when he
 moment," he "got up and                                                                felt "them stop
                               ran away." Id. at                                                          for a
                                                    p. 20, L.
 was unaware of                                                 13-14.   DeCicco never
                   where McNerney                                                        looked back, so he
                                       was or of his
                                                       circumstances. Id. at p. 20,
          Detective Stanek of the                                                     LL. 15-20.
                                   City of
                                            Washington Police
the three                                                           Department interviewed
            co-defendants. According                                                           DeCicco and
                                          to Detective
                                                           Stanek, Simmons
DeCicco and                                                                      confessed to
               demanding his cell phone.                                                        confronting
                                             Id. at p. 59, LL.
                                                                 14-19. Further,
                                                                                  Simmons
                                                                                             acknowledged




                                                  4
           that he was the
                           first to strike
                                               DeCicco and that once
           and Hankins                                                      DeCicco fell to the
                          joined the assault. Id.                                               ground, the
                                                                                                            Defendant
                                                     at p. 61, LL.
                                                                   5-9.1
                   Sadly, McNerney
                                        was killed
                                                      during the
          McNerney died from                                        confrontation-Coroner Warco
                                   blunt force trauma                                                     testified that
                                                           to the head
          homicide. Id. at p. 8,                                          and  ruled the manner
                                     LL. 5-6.                                                       of death to be a
                                                During the
                                                               investigation, Detective
          Defendant. As recounted                                                           Stanek interviewed
                                      by Detective                                                                  the
                                                      Stanek, the
         that punched                                               Defendant   admitted that he had
                       McNerney and                                                                      been the one
                                         "knocked him out." Id.
                                                                    at p. 60, LL.
         Detective Stanek that he                                                  1-2. Further, the
                                   got McNerney's                                                    Defendant told
                                                       cell phone from
                                                                          Simmons. Id. at p.
                                                                                               60, LL. 9-13.
                                          DISCUSSION OF LAW
                The four grounds                                         AND CLAIMS
                                    for relief raised
                                                       by the
        counsel. The PCRA                                      Defendant all concern
                              provides relief to                                          ineffective assistance
                                                   those individuals                                               of
       from                                                            whose convictions
             "[ijneffective assistance of                                                    or sentences
                                            counsel which, in                                               resulted
                                                                  the
      undermined the truth                                            circumstances of the
                              -determining process that                                        particular case, so
                                                             no reliable
      could have taken                                                     adjudication of guilt
                          place." 42 Pa.C.S.                                                        or innocence
                                                 §
                                                    9543(a)(2)(ii). The
     interpreted this to mean                                              Pennsylvania Supreme
                                that in order to                                                      Court "has
                                                  obtain relief on a
    counsel, a petitioner                                             claim alleging
                             must prove that                                           ineffective assistance
                                                 (1) the claim                                                   of
    arguable merit; (2)                                            underlying   the
                           counsel's actions                                        ineffectiveness claim has
                                                lacked any
   resulted in prejudice                                      reasonable basis; and
                            to petitioner."                                              (3) counsel's
                                                                                                          actions
                                              Commonwealth v. Cox,
  (citations omitted).                                                      983 A.2d 666,
                         "Where it is clear                                                    678 (Pa. 2009)
                                             that a petitioner
                                                                has failed to
 prongs... the claim                                                          meet any of the
                         may be disposed                                                         three, distinct
                                            of on that basis
 the other two                                                  alone, without a
                  prongs have been                                                 determination of whether
                                      met."
"A chosen                                     Commonwealth       v. Steele, 961 A.2d
              strategy will not be                                                      786, 797 (Pa.
                                   found to have                                                        2008).
                                                    lacked a
                                                              reasonable basis
1
 According to Detective                                                          unless it is proven
when  hewas on the      Stanek,  the                                                                  'that an
                    ground and that Defendant told him that
August 14, 2013 at                   the Defendant           Simmons and
                   p. 60, LL.                      did not                  Hankins
                              22-23.                       participate. Transcript    continued to
                                                                                   of Preliminary beat DeCicco
                                                                                                 Hearing Held on

                                                        5
     alternative not chosen offered
                                      a potential for
                                                       success substantially
                                                                              greater than the course
     actually pursued.'"
                          Commonwealth v. Williams, 899
                                                             A.2d 1060, 1064 (Pa.
                                                                                       2006) (quoting
     Commonwealth v. Howard, 719
                                        A.2d 233, 237 (Pa.
                                                               1998)). "Prejudice in the
    ineffective assistance of counsel                                                      context of
                                      means demonstrating that
                                                                there is a reasonable
   but for counsel's error,                                                           probability that,
                                 the outcome of the
                                                         proceeding would have been
   Commonwealth v. Pierce, 786 A.2d                                                        different."
                                        203, 213 (Pa. 2001).
                                                             "Finally, the law presumes
   was effective and the                                                                 that counsel
                          burden of proving that this
                                                      presumption is false rests with
   Cox, 983 A.2d at 678.                                                              the petitioner."

           Claims one, two, and four
                                      in the Defendant's
                                                          amended PCRA petition are
   While the Court will address                                                           interrelated.
                                each in turn, the Court
                                                        notes that its analysis of
   the other.                                                                      one claim informs


          Section 2502 of the Crimes
                                        Code defines the three
                                                                 degrees of murder. With
  third degree murder, the                                                                 regard to
                           statute does not set forth
                                                        the requisite mens rea,
 "[alit other kinds of murder                                                    providing only that
                               [that are not first degree
                                                          or second degree]
                                                                              shall be murder of the
 third degree." 18 Pa.C.S.
                           § 2502(c). Case
                                              law has further defined
                                                                       the elements of third
 murder. As explained by the                                                                 degree
                             Pennsylvania Supreme Court:
         [T]o convict a
                             defendant of the
         Commonwealth need only prove that offense of third[ ]degree murder, the
        malice aforethought. This                  the defendant killed
                                     Court has long held that             another person with
        particular ill-will, but ... [also                      malice comprehends not
                                            a] wickedness of                             only a
        recklessness of consequences,                          disposition, hardness of
                                           and a mind regardless                         heart,
        particular person may not be                                of social duty,
                                        intended to be injured.                     although a

 Commonwealth v. Santos, 876 A.2d
                                     360, 363 (Pa. 2005)
                                                         (alteration in original)
quotation, and emphasis                                                           (internal citation,
                           omitted); see also
                                               Commonwealth v. Drum, 58 Pa.
                                                                                      9, 15 (1868)
(defining malice as quoted
                           above). The Pennsylvania
                                                     Supreme Court has further
                                                                                  noted:



                                                 6
            [T]hird degree murder is not a homicide
                                                        that the Commonwealth must prove
            committed with malice and without a                                                was
                                                         specific intent to kill. Instead, it is
            homicide that the Commonwealth must                                                  a
                                                         prove was committed with malice,
            one with respect to which the                                                      but
                                             Commonwealth need not prove, nor even address,
            the presence or absence of a specific
                                                    intent to kill. Indeed, to convict a
            for third degree murder, the jury                                            defendant
                                                need not consider whether the
            specific intent to kill, nor make any finding                         defendant had a
                                                           with respect thereto.
            Commonwealth v. Meadows, 787 A.2d 312, 317
                                                       (Pa. 2001) (quoting
            Young, 748 A.2d 166, 174-75 (Pa.
                                             1999)).                       Commonwealth v.


  To summarize, third degree murder
                                         is an intentional act that is
                                                                         characterized by malice and
  results in death, intended or not.
                                     Commonwealth v. Fisher, 80 A.3d 1186,
                                                                               1193 (Pa. 2013).
          The Defendant acknowledged that he
                                                   punched the decedent, but argues that
                                                                                             he merely
 punched him one time and that case law
                                            demonstrates that one punch cannot support
                                                                                           a charge of
 homicide. At the May 27, 2014 hearing
                                             when the Court entered its verdict,
                                                                                     Attorney DeRiso
 (plea counsel) stated on behalf of the
                                          Defendant, "Mr. Wells is the individual
                                                                                       who threw that
 fatal punch to that young man that
                                      evening." Transcript of Proceedings Held
                                                                                  on May 27, 2014 at
 p. 16, LL. 24-25. Further,
                               Attorney DeRiso emphasized that
                                                                    "after Mr. McNerney fell to the
 ground, he was not touched. He was not
                                               struck thereafter." Id. at p. 17, L.
                                                                                     25; p. 18, L. 3.
 Moreover, "Where was no intent on the part of
                                                    Mr. Wells to kill Mr.
                                                                            McNerney." Id. at p. 17,
 LL. 22-23. The Defendant argues that
                                        a solitary punch is not sufficient
                                                                           to sustain a conviction for
third degree murder based on the absence
                                            of any intent to cause serious bodily
                                                                                    harm. Rather, the
Defendant believes that there is only
                                             sufficient evidence for a plea to
                                                                                      an involuntary
manslaughter charge, and therefore Attorney
                                                 DeRiso's advice that the Defendant
                                                                                        had no viable
defenses was erroneous.2



2 A person is guilty
                     of involuntary manslaughter when as a
or grossly negligent manner, or the                         direct result of the doing of an
                                     doing of a lawful act in a reckless                     unlawful act in a reckless
death ofanother person. 18 Pa.C.S.                                        or grossly negligent manner, he causes the
                                     §   2504(a).


                                                          7
       To support his argument, the Defendant points to Commonwealth               v.   Alexander. In
Alexander, the defendant walked up to the victim on a street corner and punched the
                                                                                    victim once
in the face, breaking his nose. 383 A.2d 887 (Pa. 1978). The defendant
                                                                       was convicted of
aggravated assault. On appeal, the Supreme Court reversed the judgment of sentence,
                                                                                    holding:
"While there can be no dispute about the physiological significance of the head, where the
                                                                                           victim
did not actually sustain the requisite serious bodily injury, we cannot say that the
                                                                                     mere fact that a
punch was delivered to that portion of the body is sufficient, without more, to support
                                                                                        a finding
that appellant intended to inflict serious bodily injury." Id. at 889.The Defendant in
                                                                                       the present
case analogizes to the facts in Alexander to contend that delivering a single
                                                                              punch and then
walking away cannot evince the malice necessary to establish third degree murder.
                                                                                  This Court
finds that Alexander is not dispositive because the case does not address the
                                                                              facts at         bar-
namely, unlike the victim in Alexander, McNerney sustained serious bodily injury
                                                                                 as a result of
the punch to the point of death.

        In "one punch" cases involving victims that did sustain serious bodily injury,
                                                                                       the Superior
Court has found the requisite intent to support the charge of aggravated
                                                                         assault. In
Commonwealth     v.   Patrick, two witnesses saw the accused approach the victim from the
                                                                                          side as
the victim walked along the street with his hands in his pockets. 933 A.2d
                                                                           1043, 1044 (Pa. Super.
Ct. 2007). The victim did not see the accused approach him. Without
                                                                    warning, the accused
punched the victim one time in the side of his head with enough force to knock the
                                                                                   victim off of
his feet. The victim spent about two days in a coma due to severe brain
                                                                        trauma. The Superior
Court found that the "Commonwealth's evidence at the preliminary hearing
                                                                         demonstrated [the
defendant] inflicted an assault on the victim with reckless indifference under
                                                                               circumstances
which virtually assured serious bodily injury." Id. at 1047. In making this
                                                                            finding, the Superior



                                                 8
Court pointed to the fact that the punch was a surprise attack that "knocked the defenseless and

unsuspecting victim off of his feet without reflexive protection, causing the victim to strike his

head on the concrete." Id.

       Similarly, Commonwealth     v.   Burton involved a victim that sustained serious bodily injury

as a result of being caught unawares by a single punch. 2 A.3d 598 (Pa. Super. CL 2010). There,

the Superior Court found sufficient evidence of intent to cause serious bodily injury,

emphasizing the fact that the victim was unprepared when he was struck. As explained by the

Burton court:

       The fact that the victim was caught unaware is further supported by the severity of
       Mr. Price's injuries. As stated above, the victim suffered brain trauma as well as
       two facial and two spinal fractures. Indeed, throughout his brief, Appellant insists
       that the fall, rather than his punch, caused [the victim's] life-threatening damages.
       Patrick, supports the conclusion that such evidence was sufficient to establish that
       Appellant had the requisite mens rea to sustain a conviction for aggravated
       assault.

       Id. at 604.

        After a thorough review of the record and considering the above case law, this Court

concludes that the facts support the trial court's verdict of third degree murder. The one punch

delivered by the Defendant to McNerney did not take place in a vacuum. As Attorney DeRiso

said, "Mr. Wells delivered, for a lack of a better term, a sucker punch to Mr. McNerney, causing

Mr. McNerney to fall back and strike his head and die." Transcript of Proceedings Held
                                                                                       on May
27, 2014 at p. 17, LL. 19-22. Like the victims in Patrick and Burton, McNerney sustained

serious bodily injury as a result of being punched without warning rendering him unconscious

and unable to protect his head from striking the ground. Echoing the Superior Court in Burton,

the fact that McNerney was caught unawares is supported by the severity of his injuries, which

were ultimately fatal. That the Defendant did not intend to kill McNerney when he punched him




                                                   9
does not alter this Court's conclusions. Specific intent is not a required element of third degree

murder; the facts establish the Defendant's intention to cause serious bodily harm during the

confrontation. Accordingly, the Court finds that the Defendant's PCRA claim that Attorney

DeRiso's advice with respect to the plea had no reasonable basis is without merit.

           With respect to the Defendant's alleged intoxication supporting a plea or conviction of

involuntary manslaughter, this Courtfinds that the law is not on his side.

           Where the question of intoxication is introduced into a murder case its only effect
           could be to negate the specific intent to kill which is required for a finding of
           murder of the first degree.... If intoxication does render an accused incapable of
           forming the necessary intent the result is to reduce the crime to a lesser degree of
           murder. In no event does the reduction change the character of the crime from
           murder to manslaughter.

           Commonwealth v. Breakiron, 571 A.2d 1035, 1041 (Pa. 1990) (quoting
           Commonwealth v. England, 375 A.2d 1292, 1301 (Pa. 1977)).

For the above reasons, the Court finds that the Defendant's first claim in his amended
                                                                                       PCRA
petition lacks merit.

           Even if the Commonwealth were unable to prove the requisite intent to convict the

Defendant of third degree murder based upon the aforementioned, this Court finds that the record

supports a conviction of second degree murder. "A criminal homicide constitutes murder
                                                                                       of the
second degree when it is committed while defendant was engaged as a principal or
                                                                                 an
accomplice in the perpetration of a felony." 18 Pa. C.S.A.            §   2502(b); see Commonwealth     v.

Miller, 35 A.3d 1206, 1212 (Pa. 2012). "Perpetration of a felony" is statutorily
                                                                                 defined, inter
alia, as "[t]he act of the defendant in engaging in      ... the commission of, or an   attempt to commit,
...   robbery...." 18 Pa.C.S.   §   2502(d).

           Based upon the testimony of record, it is clear that the confrontation started as a robbery.

This was according to DeCicco's testimony and Simmons confession to Detective
                                                                              Stanek.



                                                    10
Simmons demanded DeCicco's cell phone. When DeCicco would not provide Simmons with the

phone, Simmons punched DeCicco, who then fell to the ground and continued to get beaten by

multiple persons for 20 seconds. Sometime after the initial punch to DeCicco, the Defendant

punched McNerney who then fell to the ground and subsequently died. According to Detective

Stanek, none of the Defendant's took responsibility for "physically" taking McNerney's cell

phone. Transcript of Preliminary Hearing Held on August 14, 2013 at p. 61, LL. 10-13. The

Defendant, however, did come into possession of McNerney's cell phone. According to the

Defendant, he took the cellphone from Simmons at Hankins' residence. Id. at p. 61, LL. 14-21.

Attorney DeRiso confirmed at the May 27, 2014 hearing that "my client did end up with that cell

phones [sic]." Transcript of Proceedings Held on May 27, 2014 at p. 18, LL. 7-8.

       Whether the Defendant picked up McNemey's cell phone at the time of the confrontation

or got it from Simmons at Hankins' house is immaterial to the Court's conclusion regarding

second degree murder. Even if the Defendant were not the person who picked up the cell phone

at the scene, the record supports a charge of conspiracy to commit robbery. A person is guilty of

conspiracy with another person or persons to commit a crime if with the intent of promoting or

facilitating its commission he:

       (1) agrees with such other person or persons that they or one or more of them will engage
           in conduct which constitutes such crime or an attempt or solicitation to commit such
           crime; or
       (2) agrees to aid such other person or persons in the planning or commission of such
           crime or of an attempt or solicitation to commit such crime.


        18   Pa.C.S.A. § 903(a).

The Commonwealth must prove that:      1) the   defendant entered into an agreement with another

person to commit or aid in the commission of a crime; 2) he shared the criminal intent with that

other person; and 3) an overt act was committed furthering the conspiracy. Commonwealth        v.




                                                 11
Devine, 26 A.3d 1139, 1147 (Pa. Super. Ct. 2011). "This overt act need not be committed by the

defendant; it need only be committed by a co-conspirator." Commonwealth v. Murphy, 795 A.2d

1025, 1038 (Pa. Super. Ct. 2002) (citation omitted).

       The essence of a criminal conspiracy is a common understanding, no matter how
       it came into being, that a particular criminal objective be accomplished.
       Therefore, a conviction for conspiracy requires proof of the existence of a shared
       criminal intent. An explicit or formal agreement to commit crimes can seldom, if
       ever, be proved and it need not be, for proof of a criminal partnership is almost
       invariably extracted from the circumstances that attend its activities. Thus, a
       conspiracy may be inferred where it is demonstrated that the relation, conduct, or
       circumstances of the parties, and the overt acts of the co-conspirators sufficiently
       prove the formation of a criminal confederation. The conduct of the parties and
       the circumstances surrounding their conduct may create a web of evidence linking
        the accused to the alleged conspiracy beyond a reasonable doubt. Even if the
       conspirator did not act as a principal in committing the underlying crime, he is
        still criminally liable for the actions of his co-conspirators in furtherance of the
        conspiracy.


       Commonwealth          v.   McCall, 911 A.2d 992, 996-97 (Pa. Super. Ct. 2006) (citation omitted).

       An accomplice is also legally accountable for another person's conduct involved in the

commission of crimes. 18 Pa.C.S.A.            §   306(b)(3). The Crimes Code defines an accomplice as

follows:

        A person is an accomplice of another person in the commission of an offense if:

        (1) with the intent of promoting or facilitating the commission of the offense, he:
                (i) solicits such other person to commit it; or
                (ii) aids or agrees or attempts to aid such other person in planning or
                     committing it; or
        (2) his conduct is expressly declared by law to establish his complicity.


        18   Pa.C.S.A.   §   306(c).

 "Both requirements may be established wholly by circumstantial evidence. Only the least degree

 of concert or collusion in the commission of the offense is sufficient to sustain a finding of

 responsibility as an accomplice. No agreement is required, only aid." Commonwealth                   v.



                                                        12
Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. Ct. 2005) (en bane) (citations and quotations

omitted). "[Piroof of a criminal partnership is almost invariably extracted from the circumstances

that attend its activities." Id. at 1253-54 (citation omitted).

        To establish complicity, mere presence at the scene of a crime and knowledge of
        the commission of criminal acts is not sufficient. Nor is flight from the scene of a
        crime, without more, enough. However, those factors combined, along with other
        direct or circumstantial evidence may provide a sufficient basis for a conviction,
        provided the conviction is predicated upon more than mere suspicion or
        conjecture.

        Commonwealth      v.   Rosetti, 469 A.2d 1121, 1123 (Pa. Super. Ct. 1983) (citations omitted).

        To reiterate, the testimony of record makes clear that the confrontation started as a

robbery when the Defendants and DeCicco and McNerney met on Maiden Street. When DeCicco

would not give Simmons his cell phone, Simmons punched DeCicco, who then fell to the ground

and continued to get beaten by multiple persons for 20 seconds until there was a sudden break

that allowed him to escape. Although Attorney DeRiso pointed to Simmons as the "catalyst" he

explained that "[a]s Mr. McNerney attempted to aid his friend [Zach DeCicco], Mr. Wells

delivered, for a lack of a better term, a sucker punch to Mr. McNerney, causing Mr. McNemey to

fall back and strike his head and die." Transcript of Proceedings Held on May 27, 2014 at p.
                                                                                             17,
LL. 19-22. In addition, the Defendant had McNerney's cell phone after DeCicco and
                                                                                  McNerney
were beaten. Therefore, the record reflects that the Defendant, at the very least, committed
                                                                                             an act
furthering the initial intended crime of robbing a person of their cell phone. Because Mr.

McNerney died as a result of the Defendant's punch, the Defendant was subject to a verdict of

second degree murder. Accordingly, the Court finds that the Defendant's second claim in his

amended PCRA petition lacks merit. Concomitantly, the Court finds that the Defendant has

failed to establish that plea counsel's actions resulted in prejudice-the Defendant received a




                                                     13
much lower sentence for third degree murder than he would have if convicted for second degree

murder.

       With respect to the Defendant's third claim that Attorney DeRiso was ineffective in

permitting the trial court to participate in plea negotiations by meeting with the trial court and the

prosecution in chambers before the proposed plea agreement was entered, the record does not

reflect a violation of the Defendant's due process rights. The Defendant claims that the trial

judge, Edward Borkowski, was impermissibly involved in plea negotiations and supports his

argument by stating that "it would be absurd on its face to urge a client to enter a plea to

homicide generally and robbery arising out of the same criminal episode. This is because the

defendant would receive no benefit to pleading guilty since he would be subjected to life

imprisonment for felony murder, the same period of incarceration if he went to trial and was

found guilty of first -degree murder." See Defendant's Brief in Support of Amended PCRA

Petition at p. 20. According to the Defendant, Attorney DeRiso's fear that he "would be

convicted of robbery if he went to trial, subjecting him to second degree murder can only be

reconciled with urging him to plead guilty to robbery if the trial court improperly engaged in plea

negotiations and promised it would not find felony murder." Id. at p. 20 n.5.

          The Defendant cites the case of Commonwealth       v.   Evans, 252 A.2d 689 (Pa. 1969) to

further his position. Therein, the Pennsylvania Supreme Court stated, "We feel compelled to

forbid any participation by the trial judge in the plea bargaining prior to the offering of a guilty

plea." Id. at 691 (emphasis in original). The High Court came to this conclusion for three

reasons:

          First, the defendant can receive the impression from the trial judge's participation
          in the plea discussions that he would not receive a fair trial if he went to trial
          before the same judge. Second, if the judge takes part in the pre-plea discussions,
          he may not be able to judge objectively the voluntariness of the plea when it is


                                                   14
I   .




               entered. Finally, the defendant may feel that the risk of not going along with the
               disposition which is apparently desired by the judge is so great that he ought to
               plead guilty despite an alternative desire.

               Id. at 691-92.

               Importantly, the Evans opinion discusses with approval the ABA Minimum Standards

        that preclude a judge from participating in the plea bargaining process before a plea bargain or

        agreement has been reached between the prosecution and the defense. The Standards state that

        the trial judge may be informed of the final bargain once it has been reached by the parties and

        before the guilty plea is formally offered. Id. at 691 n.1. There is nothing prohibiting the trial

        judge from then indicating to the prosecuting attorney and defense counsel whether he will

        concur in the proposed disposition.

                Herein, the record of the May 27, 2014 hearing does not reflect any participation by the

        trial judge prior to a plea bargain or an agreement being reached by the parties. Specifically, at

        the very beginning of the proceeding, Judge Borkowski introduced the parties and their

        respective attorneys. Immediately thereafter, the judge states, "The parties, after substantial

        preparation and discussion, have reached an agreement." Transcript of Proceedings Held on May

        27, 2014 at p. 2, LL. 15-16. The attorneys representing the co-defendants and the

        Commonwealth then respond in the affirmative to the Court, which was that the Defendant

        would plead to one count of Robbery and one count of Homicide wherein the Court would

        determine the degree. Id. at pp. 2-3. Thereafter, the Court tells the attorneys that it "will listen to

        argument from counsel as to the proper degree of guilt." Id. at p. 3, LL. 15-17. In sum, the

        Defendant argued that he had no "intent" as an accomplice at the May 27, 2014 hearing. As

        Attorney DeRiso emphasized, "[T]here, certainly, was no intent on Mr. Wells to rob anybody....

        The argument is that this is a one punch case, which through accomplice liability, may be a



                                                          15
robbery, but that intent was not utilized until after the aggravated assault/manslaughter. That's

the argument." Id. at p. 17, LL. 23-24; p. 18, LL. 9-13.

       In return, the Commonwealth, through First Assistant District Attorney, Chad Schneider,

argued to the Court that DeCicco and McNerney were a "mark for a robbery from these three

Defendants. And that doesn't happen unless all these Defendants were involved." Id. at p. 19,

LL. 21-24. Mr. Schneider goes on to state that "things do not happen in a vacuum. This was all

part of one occurrence. Zachary DeCicco was approached. He was asked for his phone and his

wallet. He did not comply, and he was beaten by the Defendants." Id. at p. 20, LL. 6-10. Then,

Mr. Schneider noted that McNerney was then hit and robbed of his cell phone and wallet. Id. at

p. 20, LL. 11-14. Consequently, Mr. Schneider emphasized that the "natural and probable

consequence of a robbery is a death, and that's actually contemplated in the Felony Murder Rule,

that if somebody dies in the course of a robbery, in the furtherance of a robbery, then it falls

under the Felony Murder Rule." Id. at p. 18-23.

        Based upon the aforementioned, the record belies involvement by the trial judge in

fashioning a verdict. Mr. Schneider argued that the Court impose the Felony Murder Rule, which

 is second degree murder that carries a sentence of life in prison. 18 Pa.C.S.A.         §   1102(b).

 Furthermore, the statute governing the Pennsylvania Board of Probation and Parole instructs that

 the Parole Board may not parole an inmate serving life imprisonment. 61 Pa.C.S.A.   §   6137(a)(1).

 And, Judge Borkowski clearly stated that, "The Court has to consider a verdict of       2"   Degree

 Murder...," acknowledging that the defendants "have exposure" to a   2nd   Degree Murder verdict.

 Transcript of Proceedings Held on May 17, 2014 at p. 22, LL. 8-9; p. 23, LL. 7-9. The Court,

 however, did not accept the Commonwealth's argument for imposing such a sentence. Judge

 Borkowski stated,




                                                  16
I   i   P




                   The Court will enter, consistent with my evaluation in this case, in addition to the
                   verdict of Robbery on each Defendant, will enter verdict as to Eric Wells, 3"1
                   Degree Murder; as to Troy Simmons, 3"I Degree Murder; and as to Mr. Hankins,
                   3"1 Degree Murder. Of course, the remaining charges will be dismissed pursuant
                   to the agreement of the parties to proceed in this posture.

                   Id. at p. 23, LL. 13-20.


            Nevertheless, even if the trial judge were somehow involved in plea agreement

            negotiations, the Defendant did not articulate how he was prejudiced. The Defendant

            merely states that he is entitled to withdraw his plea. See Defendant's Brief in Support of

            Amended PCRA Petition at p. 21. In the case of Commonwealth       v. Vealey, 581   A.2d. 217

            (Pa. Super. Ct. 1990), the appellant was sentenced to one term of incarceration of life

            imprisonment; he did not file a direct appeal. Eighteen years later, however, the appellant

            filed a PCHA (now known as a "PCRA") petition. Among other things, the appellant

            argued that he should be allowed to withdraw his plea because his due process rights

            were violated. More specifically, he alleged that the trial judge "participated in an ex

            parte plea bargaining negotiation with defense counsel, entering a private plea agreement

            and failing to advise the defendant of the existence of such agreement until eighteen (18)

            years later." Id. at 218.

                    The Vealey Court discussed Evans, but did not find that the appellant's due

            process rights were violated.

                    [A]ssuming that the agreement in question actually did exist, we have carefully
                    reviewed the record and the parties' briefs, and find no evidence that appellant
                    was prejudiced by it in any way, as he was unaware of it, and there is no
                    suggestion as to how it adversely affected counsel's stewardship. Under these
                    circumstances, we are satisfied that, although the court may have acted
                    erroneously in appearing to enter into an arrangement with trial counsel, that error
                    did not result in prejudice to appellant. Therefore, appellant's argument that he
                    should be allowed to withdraw his plea because of the alleged agreement between
                    trial counsel and the court is meritless.


                                                             17
1




           Id. at 221.


           It is clear to this Court, just as it was to Judge Borkowski, that the Defendant herein has

    "exposure" to a second degree murder conviction based upon the record. The sentence for

    second degree murder is life without parole. The trial court did not impose this sentence. Instead,

    the trial court imposed a third degree murder verdict on the Defendant, as well as a single count

    of Robbery. As a result, the Defendant was sentenced to 10-25 years of incarceration for the third

    degree murder finding and a consecutive period of 3-6 years of incarceration for the robbery

    charge, with a   5   year period of probation to follow. Therefore, the Defendant was not prejudiced

    and, in turn, the Defendant has failed to satisfy the standard for relief based on ineffective

    assistance of counsel.




                                                    BY THE COURT,
