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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA   :                IN THE SUPERIOR COURT OF
                               :                      PENNSYLVANIA
               v.              :
                               :
SHAQUAN WILLIAM ROGERS-JORDAN, :                    No. 1556 MDA 2019
                               :
                  Appellant    :


            Appeal from the PCRA Order Entered September 5, 2019,
                in the Court of Common Pleas of Luzerne County
               Criminal Division at No. CP-40-CR-0004474-2017


BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JUNE 15, 2020

        Shaquan William Rogers-Jordan appeals from the September 5, 2019

order entered by the Court of Common Pleas of Luzerne County denying his

first petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546.        PCRA counsel has also filed a petition to

withdraw. After careful review, we affirm.1

        The PCRA court set forth the following procedural history:

              A seven (7) count information, filed on December 20,
              2017, charged [appellant] with two counts of
              aggravated assault[ and one count each of] robbery –
              inflicting serious bodily injury, conspiracy to commit
              robbery (inflicting serious bodily injury), attempted
              criminal homicide, theft by unlawful taking (movable




1   The Commonwealth did not file a brief in this matter.
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             property),    and   receiving   stolen    property.[2]
             Counseled pre-trial motions were filed, and a hearing
             on the motions was scheduled, but on the day of the
             hearing [appellant] and the Commonwealth entered
             into a [negotiated] plea agreement whereby
             [appellant] agreed to plead guilty to attempted
             criminal homicide, and the parties agreed to a
             sentence of nine (9) to twenty (20) years[’]
             imprisonment.[3] Following a guilty plea colloquy,
             [the trial court] accepted the plea, and sentenced
             [appellant] in accordance with the terms of the plea
             agreement [on September 6, 2018].

             No post-sentence motions or direct appeal were filed.
             On February 5, 2019, [appellant] filed a timely pro se
             PCRA petition.     PCRA counsel was appointed to
             represent [appellant], and a hearing was scheduled
             for September 5, 2019. At the hearing, [appellant]
             testified in support of his request for post-conviction
             relief.   Upon consideration of the entire record,
             including the testimony and the arguments presented
             at the hearing, [appellant’s] PCRA petition was
             denied. [Appellant] filed a timely notice of appeal on
             September 23, 2019, and a timely counseled
             statement of errors complained of on appeal
             [pursuant to Pa.R.A.P. 1925(b)] on October 15, 2019.

PCRA court opinion, 12/17/19 at 2-3 (extraneous capitalization and citations

to the record omitted). The PCRA court subsequently filed an opinion pursuant

to Pa.R.A.P. 1925(a).

       The PCRA court appointed Matthew P. Kelly, Esq., to represent appellant

on appeal. On January 29, 2020, Attorney Kelly filed with this court a petition

to withdraw as counsel, accompanied by a no-merit brief pursuant to


218 Pa.C.S.A. §§ 2702(a)(1), 3701(a)(1)(i), 903(a), 901(a), 3921(a), and
3925(a), respectively.

3   The Commonwealth withdrew the remaining charges.


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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

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

           Counsel petitioning to withdraw from PCRA
           representation must proceed . . . under Turner and
           Finley and . . . must review the case zealously.
           Turner/Finley counsel must then submit a
           “no-merit” letter to the trial court, or brief on appeal
           to this Court, detailing the nature and extent of
           counsel’s diligent review of the case, listing the issues
           which petitioner wants to have reviewed, explaining
           why and how those issues lack merit, and requesting
           permission to withdraw.

                 Counsel must also send to the petitioner:
                 (1) a copy of the “no merit” letter/brief;
                 (2) a copy of counsel’s petition to
                 withdraw; and (3) a statement advising
                 petitioner of the right to proceed pro se
                 or by new counsel.

                                    ***

                 Where counsel submits a petition and
                 no—merit letter that . . . satisfy the
                 technical demands of Turner/Finley, the
                 court—trial court or this Court—must then
                 conduct its own review of the merits of the
                 case. If the court agrees with counsel that
                 the claims are without merit, the court will
                 permit counsel to withdraw and deny
                 relief.

           Commonwealth v. Doty, 48 A.3d 451, 454
           (Pa.Super. 2012) (internal citations omitted) (quoting
           Commonwealth v. Wrecks, 931 A.2d 717, 721
           (Pa.Super. 2007)).

Commonwealth v. Muzzy, 141 A.3d 509, 510-511 (Pa.Super. 2016)

(bracketed material omitted).




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      Our review of the record demonstrates that Attorney Kelly has complied

with each of the above requirements.         Additionally, Attorney Kelly sent

appellant copies of the Turner/Finley no-merit brief and petition to withdraw

and advised appellant of his right to retain new counsel or proceed pro se.4

See Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).

Appellant did not file a response.

      In his Turner/Finley no-merit brief, Attorney Kelly identified the

following issues:

            I.      Whether the Commonwealth was guilty of
                    prosecutorial misconduct[?]

            II.     Whether trial counsel was ineffective in failing
                    to properly prepare for [appellant’s] defense
                    and coercing [appellant] to plead guilty[?]

No-merit brief at 1.

      PCRA petitions are subject to the following standard of review:

            Our standard of review of the denial of a PCRA petition
            is limited to examining whether the evidence of record
            supports the court’s determination and whether its
            decision is free of legal error. Commonwealth v.
            Conway, 14 A.3d 101 (Pa.Super. 2011), appeal
            denied, [] 29 A.3d 795 ([Pa.] 2011). This Court
            grants great deference to the findings of the PCRA
            court if the record contains any support for those
            findings. Commonwealth v. Boyd, 923 A.2d 513
            (Pa.Super. 2007), appeal denied, [] 932 A.2d 74
            ([Pa.] 2007). We do not give the same deference,
            however,      to  the    court’s  legal    conclusions.

4 We note that while appellant’s petition to withdraw does not include a
certificate of service on appellant, the letter Attorney Kelly sent to appellant
indicates that copies of both the Turner/Finley no-merit brief and the petition
to withdraw were enclosed.


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            Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super.
            2012). Traditionally, credibility issues are resolved by
            the trier of fact who had the opportunity to observe
            the witnesses’ demeanor. Commonwealth v. Abu-
            Jamal, [] 720 A.2d 79 ([Pa.] 1998), cert. denied,
            528 U.S. 810 [] (1999). “A PCRA court passes on
            witness credibility at PCRA hearings, and its credibility
            determinations should be provided great deference by
            reviewing courts.” Commonwealth v. Johnson, []
            966 A.2d 523, 539 ([Pa.] 2009).

Commonwealth v. Beatty, 207 A.3d 957, 960-961 (Pa.Super. 2019),

appeal denied, 218 A.3d 850 (Pa. 2019).

      In his first issue, appellant alleges prosecutorial misconduct. (No-merit

brief at 5.) Specifically, appellant contends that “the prosecutor engaged in

misconduct because he ‘made a deal with’ or ‘coached’ another participant in

the crime for which [a]ppellant was charged, causing him to implicate

[a]ppellant as the shooter.” (Id., citing notes of testimony, 9/5/19 at 7-8.)

      In order to be eligible for relief under the PCRA, a petitioner must plead

and prove, inter alia, by a preponderance of the evidence that the allegation

of error has not been previously waived. 42 Pa.C.S.A. § 9543(a)(3). The

PCRA defines waiver as when a petitioner could have raised an issue either

“before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). It is axiomatic that when

a defendant enters a guilty plea, he or she waives the right to challenge any

non-jurisdictional defects, with the exception of the legality of the sentence or

the validity of the guilty plea. Commonwealth v. Lincoln, 72 A.3d 606, 609




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(Pa.Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014), citing

Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.Super. 2008).

      Here, appellant waived his right to raise a claim of prosecutorial

misconduct when he entered a guilty plea. Accordingly, this issue of trial error

is not cognizable for collateral review.

      In his second issue, appellant contends that his plea counsel,

Allyson Kacmarski, Esq., rendered ineffective assistance.

            We presume counsel is effective. Commonwealth v.
            Cox, [] 983 A.2d 666, 678 ([Pa.] 2009). To overcome
            this presumption, “a PCRA petitioner must show the
            underlying claim has arguable merit, counsel’s actions
            lacked any reasonable basis, and counsel’s actions
            prejudiced the petitioner.”        Commonwealth v.
            Escobar, 70 A.3d 838, 841 (Pa.Super. 2013) (citing
            Commonwealth v. Cox, [] 983 A.2d 666, 678 ([Pa.]
            2009).) “Prejudice means that, absent counsel’s
            conduct, there is a reasonable probability the outcome
            of the proceedings would have been different.” Id. A
            claim will be denied if the petitioner fails to meet any
            one of these prongs. See [Commonwealth v.]
            Jarosz, 152 A.3d [344,] 350 [(Pa.Super. 2016)]
            (citing Commonwealth v. Daniels, [] 963 A.2d 409,
            419 ([Pa.] 2009)).

            “[A] criminal defendant’s right to effective counsel
            extends to the plea process, as well as during trial.”
            [Commonwealth v.] Wah, 42 A.3d [335,] 338
            [(Pa.Super. 2012)] (citations omitted). Under the
            PCRA, “[a]llegations of ineffectiveness in connection
            with the entry of a guilty plea will serve as a basis for
            relief only if the ineffectiveness caused [the
            petitioner] to enter an involuntary or unknowing
            plea.” [Commonwealth v.] Fears, 86 A.3d [795,]
            806-807 [(Pa. 2014)] (citation omitted). “Where the
            defendant enters his plea on the advice of counsel, the
            voluntariness of the plea depends on whether
            counsel’s advice was within the range of competence


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            demanded of attorneys in criminal cases.”         Wah,
            42 A.3d at 338-399 (citations omitted).

            “[T]o establish prejudice, the defendant must show
            that there is a reasonable probability that, but for
            counsel’s errors, he would not have pleaded guilty and
            would     have     insisted  on   going    to    trial.”
            Commonwealth v. Barndt, 74 A.3d 185, 192
            (Pa.Super. 2013) (citations and internal quotation
            marks omitted). This is not a stringent requirement.
            Id. The reasonable probability test refers to “a
            probability sufficient to undermine confidence in the
            outcome.” Id. (citations omitted).

Commonwealth v. Velazquez, 216 A.3d 1146, 1149-1150 (Pa.Super.

2019). Moreover, “a defendant is bound by the statements which he makes

during his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167

(Pa.Super. 1996), appeal denied, 693 A.2d 585 (Pa. 1997) (citations

omitted). As such, a defendant may not assert grounds for withdrawing the

plea that contradict statements made when he entered the plea. Id. (citation

omitted).

     Here, the record reflects that appellant reviewed the written plea

agreement and signed it. (Notes of testimony, 9/6/18 at 5; see also Luzerne

County, Pennsylvania Plea Agreement, Docket No. 19.) By signing the written

plea agreement, appellant indicated that he understood the factual basis for

the charges in this case.   (Luzerne County, Pennsylvania Plea Agreement,

Docket No. 19.) During the trial court’s oral colloquy, appellant stated that

he was not forced or threatened to plead guilty, that no one had promised him

anything to plead guilty aside from the negotiated plea agreement, and



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appellant affirmed that he understood to what he was pleading. (Notes of

testimony, 9/6/18 at 9.)       Moreover, during the plea hearing, appellant

admitted to the following recitation of facts:

            [O]n October 24th, 2017, [appellant], along with two
            individuals by the name[s] of Jordan Hall and
            Dominick Harvey, went to the victim Austin Naples’
            residence at 230 Birchwood Estates in Exeter. They
            went there to pick up marijuana from Mr. Naples, as
            well as a female named Caitlyn Mattis. While they
            were doing the transaction [appellant] brandished a
            firearm in an attempt to rob Mr. Naples and
            Ms. Mattis. A fight ensued eventually ending with
            [appellant] pulling out the firearm, pointing it at a vital
            part of Mr. Naples’ body; specifically, his chest, firing
            the firearm causing a gunshot wound that caused
            significant lung damage and Mr. Naples to be placed
            into [the] intensive care unit.

Id. at 6.

      The record further reflects that at the conclusion of the PCRA hearing,

the PCRA court denied appellant’s petition, stating as follows:

            THE COURT: Based on what the [PCRA c]ourt deems
            to be the credible evidence before it, the [PCRA c]ourt
            hereby denies and dismisses [appellant’s] PCRA
            petition. [The PCRA court does] note the record is
            clear that there is handwriting with [appellant’s]
            signature [on] the written plea agreement that is part
            of the record in this matter. [Appellant] seems to
            testify that he thought he was getting a sentence of
            5 to 10 years.       I’m looking at it right now.
            Commonwealth and [appellant] agree to a sentence
            of 9 to 20 years, and that was also gone over on the
            date of the guilty plea and sentencing on
            September 6th, 2018.         The transcript of that
            proceeding I think is filed of record and that’s clearly
            set forth in the transcript. I just note and, again,
            these are just some of the reasons, it was clearly set
            forth and the [PCRA c]ourt found that [appellant]


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            entered a knowing and voluntary plea at that time.
            Part of what was indicated at the time of his pleas was
            that [appellant] pulled out the firearm[,] pointing it at
            a vital part of Mr. Naples’ body, specifically his chest,
            firing the firearm causing a gunshot wound that
            caused significant lung damage and Mr. Naples to be
            placed into [the] Intensive Care Unit. [Appellant]
            admitted to doing that at the time of his guilty plea. I
            do not find it credible for him to allege that somehow
            he thought he was getting a 5-to-10-year[ ]sentence
            when everything in the record is contrary to that, and
            [appellant’s] petition is hereby denied.

Notes of testimony, 9/5/19 at 20-21.

      Here, the PCRA court determined that appellant entered his guilty plea

knowingly, voluntarily, and intelligently. (PCRA court opinion, 12/17/19 at 7.)

We find that the record supports the PCRA court’s factual findings, and we will

not disturb them on appeal. The record also supports the PCRA court’s legal

conclusions, and they are free of legal error.

      Having conducted an independent review of the record, this court is

satisfied that the issues raised in appellant’s petition are meritless and that

there are no other issues that support a grant of relief. We, therefore, grant

Attorney Kelly’s petition to withdraw and affirm the PCRA court’s order denying

appellant’s petition.




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Petition to withdraw granted. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2020




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