J-S19037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
BOBY PROPHETE,                             :
                                           :
                   Appellant               :           No. 1452 EDA 2015

                   Appeal from the PCRA Order April 9, 2015
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0009790-2012

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED MARCH 29, 2016

        Boby Prophete (“Prophete”) appeals from the dismissal of his Petiton

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

        The PCRA court set forth the relevant factual and procedural history in

its Opinion, which we adopt for purposes of this appeal.      See PCRA Court

Opinion, 9/8/15, at 1-5.

        On March 8, 2013, the trial court sentenced Prophete to an aggregate

sentence of 7 to 15 years in prison, followed by 5 years of probation.

Prophete did not appeal his judgment of sentence.        On March 24, 2014,

Prophete, acting pro se, filed the instant PCRA Petition.     The PCRA court

appointed counsel, who thereafter filed an amended Petition.2 On February

18, 2015, the PCRA court issued a Notice of its intent to dismiss the Petition,


1
    See 42 Pa.C.S.A. §§ 9541-9546.
2
 The record reflects that Prophete’s counsel also filed a second amended
Petition, and a supplement to the second amended Petition.
J-S19037-16


pursuant to Pa.R.Crim.P. 907. Prophete did not file a response to the Rule

907 Notice. On April 9, 2015, the PCRA court entered an Order dismissing

Prophete’s Petition. Thereafter, Prophete filed a timely Notice of Appeal and

a court-ordered Pa.R.A.P. 1925(b) Statement of Matters Complained of on

Appeal.

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

      1. Did the lower court err in denying PCRA relief without holding
         an evidentiary hearing to determine whether counsel was
         ineffective for failing to determine whether [Prophete] was
         making a knowing, intelligent and voluntary plea[,] and for
         failing to inform [Prophete] that he had a valid consent
         defense?

      2. Did the lower court err in denying PCRA relief without holding
         an evidentiary hearing to determine whether correspondence
         between [Prophete] and the [victim] was new evidence[,] and
         would have made a difference at trial?

Brief for Appellant at 6.

             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.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      The right to an evidentiary hearing on a PCRA petition is not absolute,

and the PCRA court may decline to hold a hearing if the petitioner’s claims

are patently frivolous with no support in either the record or other evidence.

See Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010);


                                  -2-
J-S19037-16


Pa.R.Crim.P. 907; see also Commonwealth v. Jones, 942 A.2d 903, 906

(Pa. Super. 2008) (explaining that “[t]here is no absolute 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 fact exist, then a hearing

is not necessary.”).

      In his first issue, Prophete contends that his mental illness presented

both his counsel and the trial court with a responsibility to determine the

extent of Prophete’s ability to knowingly, intelligently and voluntarily enter a

plea. Brief for Appellant at 10-11. Prophete asserts that his counsel knew

that Prophete’s mental illness was going untreated at the time of the

incident, and that it was incumbent upon counsel to explore the possibility

that Prophete was not competent to stand trial and had an insanity defense.

Id. at 11. Prophete also claims that his counsel failed to advise him of a

consent defense. Id. Prophete asserts that the PCRA court erred by failing

to conduct a hearing on these issues, and contends that “[t]here is

absolutely nothing in the record for the court to make a determination of

th[ese] issue[s] and[,] therefore[,] as the record does not support the lower

court’s decision, that decision must be reversed and remanded.” Id.

      The PCRA court set forth the relevant law, addressed Prophete’s first

claim, and concluded that it lacks merit. See PCRA Court Opinion, 9/8/15,

at 5-6, 7-9, 11-12.    We agree with the reasoning of the PCRA court, and




                                  -3-
J-S19037-16


conclude that its determination is supported by the evidence of record and is

free of legal error. See id.

       In his second issue, Prophete contends that the communications

between himself and the victim constitute after-discovered evidence that

entitle him to a new trial. Brief for Appellant at 12. Prophete asserts that

the communications were not discovered until after the entry of his guilty

plea, and are not merely cumulative, corroborative or impeachment

evidence. Id. Prophete claims that the presentation of this evidence could

have resulted in a different verdict.     Id.   Prophete argues that the PCRA

court erred by failing to conduct an evidentiary hearing to determine the

credibility of the communications, and the impact that such communications

could have had on the trial. Id. at 13.

       The PCRA court set forth the relevant law, addressed Prophete’s

second claim, and concluded that it lacks merit. See PCRA Court Opinion,

9/8/15, at 12-14.    We agree with the reasoning of the PCRA court, and

conclude that its determination is supported by the evidence of record and is

free of legal error. See id. Additionally, Prophete voluntarily and knowingly

pled guilty to involuntary deviate sexual intercourse and simple assault, and

admitted to the factual bases for his conviction of these crimes. See id. at

2-4.

       Order affirmed.




                                 -4-
J-S19037-16



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2016




                          -5-
                                                                                                           S /C(057-   ;q·
                                                                                          Circulated 03/04/2016 03:43 PM


                                                                                                      FILED
             IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY SEP O 8 2015
                     FIRST JUDICIAL DISTRlCT OF PENNSYLVANIA
                             TRIAL DIVISION - CRIMINAL       . Criminal Appeals Umt
                                                                                             First Judicial District of PJ.1
COMMONWEALTH OF PENNSYLVANIA                                   CP-51-CR-0009790-2012

vs.                                                            1452 EDA 2015

BOBY PROPHETE

                                             OPINION

       Defendant Boby Prophete appeals from the PCRA Court's dismissal of his Amended

Petition under the Post Conviction Relief Act ("PCRA"). On appeal, Defendant argues that: (1)

his trial counsel was ineffective for failing to ensure that Defendant's guilty plea was knowing

and voluntary given his alleged mental illness and his failure to take prescribed medication; (2)

his trial counsel was ineffective for failing to pursue an insanity defense given Defendant's

alleged mental illness; (3) his trial counsel was ineffective for failing to advise Defendant that he

had a viable consent defense; and ( 4) exculpatory letters from the victim constituted after-

discovered evidence. For the reasons stated herein, the Superior Court should affirm the PCRA

Court's order.                                            CP-51-CR--0009790-2012 Comm. v. Prophete, Boby
                                                                             Opinion


FACTUAL BACKGROUND

        1.       The Rape On 2216 Greenwich Street             111111111111111 II Ill II Ill
                                                                        7341615431

        On July 31, 2012, Defendant was inside 2216 Greenwich Street with his girlfriend

Michelle Williams. Defendant punched Williams in the face and threw her to the ground, causing

bruising to her face. Defendant forced Williams to suck his penis, and afterward penetrated her

vagina with his fingers. Williams attempted to fight off Defendant. Defendant inserted his penis

into Williams' vagina and later ejaculated in her mouth. Defendant forced Williams to stay the
whole night. Immediately after she was allowed to leave the house, Williams went to the police

to report the rape. N. T. 12/05/2012 at 11-13.

        Williams was taken to the hospital where a rape kit was performed on her. Although the

criminalistics report came back positive for DNA, the DNA results were not complete at the time

of the guilty plea hearing. Defendant gave a statement to a detective in which he admitted to

punching Williams in the face. He also admitted that Williams told him "no" prior to him putting

his penis in her vagina, stating, "Yes, she said no at the last minute." During the guilty plea

hearing, Defendant testified twice that his "statement [to the detectives] is not wrong" and that he

"did tell [ the detective] what happened." Id. at 13-15, 17, 19, 21.

        2.       Defendant's Guilty Plea Hearing

        On December 5, 2012, Defendant pleaded guilty to involuntary deviate sexual intercourse

and simple assault. During that hearing, he stated, "No sir" when asked if his mental health

treatment or diagnosis would impact his ability to understand. When the trial court asked him,

"what[ ... ] are we going to do today," he responded, "To resolve the case, please." When the

trial court further inquired, "how would you like to resolve the case today," he responded, "By
             -
pleading guilty to it." Defendant acknowledged that he was represented by a defense attorney

and that he reviewed the entire guilty plea form with his attorney before signing it. Defendant

also testified that-although he had been treated for a mental illness-his treatment and

diagnosis for the mental illness did not impact his ability to understand what was happening

during the guilty plea hearing. He further testified that he was not under the influence of any

                                                                                                                1
prescription drugs that impacted his ability to understand what was going on during the hearing.


1
 The transcript indicates that Defendant nodded his head instead of providing a verbal response regarding whether
he was under the influence of any prescription drugs. The PCRA Court noted that it was always his practice to
follow up with additional questions whenever a Defendant responded that he was taking prescription medications.
Because the court did not ask any follow-up questions after Defendant nodded his head, the PCRA Court found that

                                                       -2-
Additionally, Defendant's attorney, Ms. Christlieb, stated that she spoke with Defendant's social

worker who had no concerns regarding Defendant's competency.

        During the guilty plea hearing, Defendant also acknowledged that he was waiving

important trial rights, including: (1) a unanimous verdict, (2) participating in jury selection with

his attorney, (3) the burden of proofrequired to support a guilty verdict, and ( 4) the right to

cross-examine any witnesses. Defendant further acknowledged that he was not threatened or

forced into pleading guilty, and that no one promised him anything in exchange for pleading

guilty and giving up his right to a trial. In addition to Defendant's oral guilty plea colloquy,

Defendant acknowledged that he signed the guilty plea forms by stating, "I just signed it, but I

understand what is going on." When the trial court asked Defendant, "what does the form say,"

he responded that he "didn't read it." The trial court then allowed Defendant to read the written

guilty plea form.

        Also during the guilty plea hearing, the prosecutor provided a factual summary of the

testimony and other evidence that would have been presented at trial and which supported the

criminal convictions. After the factual summary, the trial court asked Defendant if he agreed

with the factual summary. Defendant responded, "To a point." He then denied having sex with

Williams, but "was willing to go forward because I plead guilty." Given Defendant's reluctance

to admit that the factual summary was correct, the trial court suggested to proceed by way of a

nolo contendere plea. During an extensive colloquy with Defendant regarding the nolo

contendere plea, Defendant admitted that he had sex with Williams but denied that she said "no"

to having sex with him. N.T. 12/05/2012 at 23-24. The trial court interpreted Defendant's

response as raising the issue of consent as a defense to the criminal charges.


Defendant nodded his head to indicate "no" and that he was not under the influence of any prescription medication.
N.T. 02/18/2015 at 12.

                                                        -3-
        The trial court specifically inquired of Defendant: "Do you desire to plead guilty to those

facts, do you desire to take this case to trial and assert your innocence?" Defendant responded by

saying, "I wish I could, but no, sir." The trial court again specifically inquired of Defendant, "So

do you wish to take this trial, knowing that you believe that you have some defense to the case?"

Defendant responded, inter alia, "Yeah. I had a defense, but it is not what I want." Once again,

the trial court specifically inquired, "I'm not understanding what your response is." Defendant

replied, "My response is, I can go to trial, but I won't take it to trial." Finally, the trial court

inquired, "You want to plead guilty," to which Defendant responded, "Yes, sir. I would."

        As a result of this extensive colloquy, the trial court determined that Defendant knew that

he had a defense to the criminal charges but voluntarily chose to plead guilty. The trial court

accepted his plea as an Alford plea, whereby Defendant was aware that he had a defense of

consent by Williams, but decided to plead guilty. Defendant was notified that he had a defense if

he chose to go to trial, and Defendant responded, "I won't take it to trial."

        3.      Defendant's Sentencing Hearing

        At the sentencing hearing, the trial court asked Defendant if he wanted to exercise his

right of allocution prior to being sentenced. Defendant responded,

                I would like to say, I think I will say something. I am a God child
                and so what I would ask this Court for mercy from the Court.
                Maybe I don't deserve to be here, maybe I do, I just don't know, I
                didn't do it, I didn't do that. With all my heart I never, never would
                never force my girlfriend, I would never do that, I'm just asking
                for mercy. I just want you to take mercy on me because I want to
                be a God child.

N.T. 03/08/2013 at 11-12. In response to this statement, the trial court inquired Defendant ifhe

"agree[d] that you plead[ ed] guilty and acknowledged the facts that support the two convictions




                                                   -4-
to which you plead[ed) guilty to." Defendant responded, "Yes, Sir, I do." Based upon his

response, the trial court then sentenced Defendant.

       4.      Defendant's PCRA Hearing

       On February 18, 2015, the PCRA Court held a hearing and reviewed Defendant's

statements made during the guilty plea hearing. The PCRA Court determined that during the

guilty plea hearing Defendant understood that: (1) he was pleading guilty; and (2) he had a right

to a trial where he could present a defense, including the defense of consent by Williams. The

PCRA Court cited Defendant's Alford plea as evidence that Defendant was aware of an available

defense of consent, but instead chose to plead guilty rather than go to trial.

       The PCRA Court also determined that D~fendant's testimony during the guilty plea

hearing was coherent and responsive during the bxtensive colloquy with the trial court. It further

noted that his testimony and responses were not ~onsistent with a person suffering from a mental

illness or who failed to take required medicationl Rather, it was consistent with a person who
                                                   I
knowingly and voluntarily pleaded guilty. Last, ihe PCRA court cited the testimony of the

Defendant's social worker, who informed Defen~ant's attorney that he had no concerns about

Defendant's mental health status or competency. N.T. 02/18/2015 at 11-14.

DISCUSSION

       In Commonwealth v. Cox, 983 A.2d 666 (Pa. 2009), our Supreme Court set forth the

standards governing claims brought pursuant to the PCRA alleging ineffective assistance of

counsel:

               Under the PCRA, collateral relief is afforded to individuals who
               prove that they are innocent of the crimes of which they were
               convicted, and those receiving illegal sentences. 42 Pa.C.S. § 9542.
               "A petitioner is eligible for PCRA relief only when he proves by a
               preponderance of the evidence that his conviction or sentence
               resulted from one or more of the circumstances delineated in 42

                                                 -5-
              Pa.C.S. § 9543(a)(2)." Commonwealth v. Natividad, 938 A.2d 310,
              320 (Pa. 2007). One of the grounds enumerated in 42 Pa.C.S §
              9542(a)(2) involves claims alleging ineffective assistance of
              counsel. Thus, the PCRA provides relief to those individuals
              whose convictions or sentences "resulted from ineffective
              assistance of counsel which, in the circumstances of the particular
              case, so undermined the truth-determining process that no reliable
              adjudication of guilt or innocence could have taken place." 42
              Pa.C.S. § 9542(a)(2)(ii). This Court has interpreted this to mean
              that in order to obtain relief on a claim alleging ineffective
              assistance of counsel, a petitioner must prove that: (1) the claim
              underlying the ineffectiveness claim has arguable merit; (2)
              counsel's actions lacked any reasonable basis; and (3) counsel's
              actions resulted in prejudice to petitioner. Commonwealth v.
              Collins, 957 A.2d 237 (Pa. 2008); Commonwealth v. Pierce, 527
              A.2d 973 (Pa. 1987). A chosen strategy will not be found to have
              lacked a reasonable basis unless it is proven 'that an 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 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." Commonwealth v.
              Pierce, 786 A.2d 203, 213 (Pa. 2001); Strickland v. Washington,
              466 U.S. 668, 694 (1984). Finally, the law presumes that counsel
              was effective and the burden of proving that this presumption is
              false rests with the petitioner. Commonwealth v. Basemore, 744
              A.2d 717, 728 n.10 (Pa. 2000).

Commonwealth v. Cox, 983 A.2d at 678.

       The standard ofreview for an appeal from the denial of PCRA relief is "whether the

findings of the PCRA court are supported by the record and free oflegal error." Commonwealth

v. Gwynn, 943 A.2d 940, 944 (Pa. 2008). "The level of deference accorded to the post-conviction

court may vary depending upon whether the decision involved matters of credibility or matters of

applying the governing law to the facts as so determined." Commonwealth v. Williams, 950 A.2d



                                               -6-
294, 299 (Pa. 2008). "The PCRA court's factual determinations are entitled to deference, but its

legal conclusions are subject to plenary review." Commonwealth v. Gorby, 900 A.2d 346, 363

(Pa. 2006).

       A judge may dismiss a PCRA petition without a hearing if: (1) the petition is patently

frivolous and without support in the record; or (2) the facts alleged therein would not, even if

proven, entitle the defendant to relief. See Pa.R.Crim.P. 907; Commonwealth v. Walls, 993 A.2d

289, 295 (Pa. Super. Ct. 2010) (stating, "It is within the PCRA court's discretion to decline to

hold a hearing if the petitioner's claim is patently frivolous and has no support either in the

record or other evidence."). "There is no absolute 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

fact exist, then a hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. Ct. 2008).

       Here, Defendant's PCRA petition was dismissed without an evidentiary hearing because

his claims lacked merit and were not supported in the record. For the reasons stated below, the

appellate court should affirm the PCRA court's dismissal of Defendant's petition without an

evidentiary hearing.

        1.     The Post-Conviction Court Properly Dismissed Defendant's
               Petition Without An Evidentiary Hearing Because
               Defendant's Guilty Plea Was Knowing And Voluntary

        On appeal, Defendant claims that he was "unable to knowingly and voluntarily enter a

plea because at the time he was not taking his medication and was suffering from the effects of

his mental illness" and that his counsel was ineffective for "failing to ensure that [his] plea was

knowing and voluntary." See 1925 Statement of Errors at 1 (Issues 1-3). The Pennsylvania




                                                 -7-
Supreme Court recently set out the following standard for evaluating whether a guilty plea is

knowing and voluntary:

               In order for a guilty plea to be constitutionally valid, the guilty plea
               colloquy must affirmatively show that the defendant understood
               what the plea connoted and its consequences. This determination is
               to be made by examining the totality of the circumstances
               surrounding the entry of the plea. Thus, even though there is an
               omission or defect in the guilty plea colloquy, a plea of guilty will
               not be deemed invalid if the circumstances surrounding the entry
               of the plea disclose that the defendant had a full understanding of
               the nature and consequences of his plea and that he knowingly and
               voluntarily decided to enter the plea.

Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014).

       For all of the reasons previously discussed supra at 2-4, Defendant's guilty plea

affirmatively showed that he understood the consequences and voluntarily decided to enter the

plea of guilty. Defendant knew the reason for being in attendance, stating, "We're here to

sentence me, sir." Defendant acknowledged the consequences of his guilty plea, stating, "I

know" when informed that he could be incarcerated for up to 22 years. Additionally, Defendant

was aware that he had the right to a jury trial and defense. Instead, he responded, "I won't take it

to trial." Defendant stated, "No" when asked if anybody forced him to waive his right to a trial,

showing Defendant's voluntary decision. Not only did the Defendant orally plead guilty, but

Defendant also read the guilty plea form, reviewed it with the advice and assistance of counsel,

and ultimately signed the guilty plea form. Lastly, Defendant stated, "No, sir" when asked if his

mental health treatment or diagnosis would affect his ability to understand. Defendant's social

worker confirmed Defendant's statements by telling his defense attorney that he had no concerns

about Defendant's competency.

       Additionally, the trial court had the opportunity to observe and evaluate Defendant's

behavior during the guilty plea hearing on December 5, 2012. At that hearing, Defendant


                                                 -8-
coherently answered all questions. In addition, Defendant read and signed the guilty plea form.

Defendant acknowledged the reason for being in attendance, stating, "We're here to sentence me,

sir." Furthermore, when specifically asked whether or not his mental health treatment or

diagnosis would affect his ability to understand, Defendant replied, "No, sir." Defendant's own

social worker had no concerns about Defendant's capacity to comprehend his situation or the

proceedings. Defendant's counsel believed that he was competent to understand his situation and

the proceedings. Counsel never requested a mental health evaluation and never expressed any

concerns about Defendant's competency. During Defendant's PCRA hearing, the trial court

noted that Defendant's behavior during his guilty plea hearing was inconsistent with a person

suffering from a mental illness.

       Defendant is bound by the written guilty plea agreement, the oral colloquy, and the facts

to which he pleaded guilty. Defendant may not assert grounds for withdrawing the plea that

contradict his previous statements during the guilty plea hearing. See Commonwealth v. Willis,

68 A.3d 997 (Pa. Super. Ct. 2013) (concluding that the PCRA court correctly rejected

petitioner's ineffectiveness claims where the claims would contradict petitioner's statements at

the guilty plea colloquy, noting that the defendant was bound by those statements made in open

court while under oath."). As a result, it was reasonable for the PCRA court to determine that

Defendant knowingly and voluntarily pleaded guilty. Thus, Defendant failed to meet his burden

of proof, and this claim is meritless.




                                                -9-
       2.      The Post-Conviction Court Properly Dismissed Defendant's
               Petition Without An Evidentiary Hearing Because Defendant's
               Alleged Insanity Defense Is Meritless And Without Support

       On appeal, Defendant also claims that his counsel was ineffective "for failing to explore

the possibility of having him examined to determine whether he was competent to stand trial and

whether an insanity defense could be pursued." See 1925 Statement at 1-2 (Issues 4-6). There is

no abuse of discretion in a trial court's decision not to order a competency evaluation of a

defendant where the judge had ample opportunity to observe defendant and where the defendant

testified. Commonwealth v. Petterson, 49 A.3d 903, 915 (Pa. Super. Ct. 2012). An abuse of

discretion occurs where the trial court reaches a conclusion that overrides or misapplies the law,

or where the judgment exercised is manifestly unreasonable, or is the result of partiality,

prejudice, bias, or ill will. Commonwealth v. Cascardo, 981 A.2d 245, 248 (Pa. Super. Ct. 2009).

       The trial court did not abuse its discretion by not ordering a competency evaluation. For

all of the reasons discussed in the previous section, supra at 7-9, Defendant's insanity claim is

without merit and the trial court did not abuse its discretion because nothing during any of the

hearings indicated that defendant required a competency evaluation. See Commonwealth v.

Petterson, 49 A.3d 903, 915 (Pa. Super. Ct. 2012) (rejecting abuse of discretion claim where trial

court refused defense counsel's post-trial but pre-sentence request for a mental health evaluation

where trial court observed defendant's demeanor throughout the trial and nothing ofrecord

indicated a need for such an evaluation).




                                                -10-
       3.      The Post-Conviction Court Properly Dismissed Defendant's Petition
               Without An Evidentiary Hearing Because Defendant Was Aware Of
               An Available Consent Defense But Decided To Plead Guilty Nevertheless

       Defendant also claims that his counsel was ineffective "for failing to inform [him] that he

had a viable consent defense." See 1925 Statement at 2 (Issues 7 -8). Allegations of

ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if

the ineffectiveness caused the defendant to enter an involuntary or unknowing plea.

Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. Ct. 2013). The law does not require

that the defendant be pleased with the outcome of his decision to enter a plea of guilty. All that is

required is that his decision to plead guilty be knowingly, voluntarily, and intelligently made.

Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa. Super. Ct. 2010).

       Here, Defendant entered a guilty plea that was knowing and voluntary even though he

was aware of a possible defense as discussed supra at 2-5. Defendant stated, "I know" when told

that he would be waiving his right to a jury trial by pleading guilty. When asked if Defendant

was forced into waiving his right, Defendant responded, "No." Moreover, the trial court told

Defendant that he had an available consent defense if he chose to take his case to trial. See N.T.

12/05/2012 at 26-28 (stating "So do you wish to take this case to trial, knowing that you believe

that you have some defense to this case?" and "I'll find this is the nature of an [Alford] plea, that

Mr. Prophete believes he would have some defense to this case, notwithstanding[] that he is

accepting responsibility and is pleading guilty to the facts that the Commonwealth has recited.")

Instead, Defendant responded, "I won't take it to trial." Defendant's plea was an Alford plea; he

recognized that he had a defense but chose to plead guilty regardless of that potential defense.

Defendant acknowledged and signed the Afford plea. The hearing on December 5, 2012,

demonstrated that Defendant knew about a possible defense and that Defendant waived that



                                                 -11-
defense by pleading guilty to the facts the Commonwealth stated. During the sentencing hearing

on March 8, 2013, Defendant confirmed that he wanted to plead guilty and acknowledged that

the facts stated by the prosecutor at the guilty plea hearing supported the two convictions. See

N.T. 03/08/2013 at 11-12 (noting Defendant's response, "Yes, Sir, I do."). Therefore,

Defendant's claim is without merit because he voluntarily and knowingly entered a plea of guilty

notwithstanding an available defense.

       4.      The Post-Conviction Court Properly Dismissed Defendant's
               Petition Without An Evidentiary Hearing Because Defendant's
               After-Discovered Evidence Claim Is Meritless And Without Support

       Finally, Defendant claims that previously unavailable and exculpatory letters, which

undermined the complaining witness's credibility and could have made a difference at trial,

constituted after-discovered evidence. See 1925 Statement at 2 (Issues 9-10). To obtain relief on

a substantive after-discovered evidence claim based on recantation testimony, a PCRA Petitioner

must establish that: (1) the evidence has been discovered after trial and it could not have been

obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it

is not being used solely to impeach credibility; and ( 4) it would likely compel a different verdict.

Commonwealth v. Brown, 111 A.3d 171 (Pa. Super. Ct. 2015); Commonwealth v. Smith, 17 A.3d

873 (Pa. 2011). Further, the proposed new evidence must be producible and admissible.

Commonwealth v. Smith, 17 A.3d 873, 887 (Pa. 2011).

       Here, Defendant claims that several letters he received from the complaining witness

were exculpatory because the complaining witness: (1) suggested the acts were consensual, and

(2) stated that she brought the charges so Defendant would receive mental health counseling,




                                                -12-
rather than bringing charges because the allegations were true. Defendant appended a copy of a

single letter to his original PCRA Petition filed on March 24, 2014.2 The letter provided:

                 "Dear Boby"
                 Wht's up?

                 I went to visit you today on August 21, 2013 when I got to the
                 prision them refused my visit because of the case against you. I
                 had a van service to pick me up from broad st. I was so upset and
                 crying because I was'nt able to see you. The prisioner guard told
                 me to write to Superintendent that everything is resolved between
                 us so that they can put me back on your visiting list. It takes about
                 2-3 weeks for approval if granted. I will be coming to visit you
                 soon. If you want to see me. I miss and I love you so much I regret
                 everything that happen to you. It's so hard to write you sometimes
                 because I want to talk with you on the phone and express how I
                 feel about you. Stay incourage
                 Write back!

                 "Love"
                 Michelle

Defendant also appended a photograph in a supplement to his second amended petition, filed on

February 19, 2015. The photograph, allegedly of the complaining witness, had a handwritten

note on the back: "To: Boby, From: Michelle, "To the one I love" "Keep your head up" Love,

your boo."

        Based on this letter and photograph with a handwritten note, the PCRA court concluded

that the letter simply expressed some form of regret regarding the consequences of the

proceedings against Defendant, showed that the complaining witness cared for Defendant, and

showed that the complaining witness felt bad. The letter was not relevant and not authenticated,

so Defendant failed to demonstrated that the letters were producible and admissible at trial. More

importantly, the PCRA court determined that the letters were not exculpatory in any way, did not

2
 Although Defendant indicated that he received multiple letters from the complaining witness, only a letter and a
photograph with a handwritten note were produced throughout the PCRA proceedings. The PCRA court provided
counsel the right to supplement the record with additional letters, however, Defendant never took advantage of this
opportunity and failed to submit any other evidence relevant to this issue.

                                                        -13-
contradict the charges against him or address the issue of consent, and did not indicate that she

was recanting her testimony or expressing any thoughts about the truth of the underlying facts

supporting Defendant's conviction. Moreover, such evidence was cumulative of the victim's

cross-examination at trial, and was not likely to compel a different result if a new trial were

granted. See Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011) (rejecting after-discovered

evidence claim where witness to defendant's shooting submitted post-trial affidavit allegedly

recanting her trial testimony because: (1) the affidavit was cumulative of her cross-examination

testimony, and (2) it was not likely to compel a different result because the jury was already

aware of her inconsistent statements); and Commonwealth v. Wilson, 649 A.2d 435 (Pa. 1994)

(rejecting after-discovered evidence claim where petitioner appended an unswom, handwritten

statement of Commonwealth witness to his briefrecanting trial testimony because: (1) petitioner

failed to show that such evidence could not have been obtained at or before the conclusion of

trial, (2) such recantation evidence was not of a nature and character that would likely result in a

different verdict if a new trial were granted, and (3) "there is no less reliable form of proof than

recantation, especially when it involves an admission of perjury.").

        Therefore, Defendant's claim lacked merit and the trial court did not abuse its discretion

by dismissing Defendant's after-discovered evidence claim.

CONCLUSION

        Based on the foregoing, this court should affirm the PCRA court's dismissal of

                         et tion for relief under the PCRA.
                            \
BY



DANIEL J. ANDERS,
Dated: September 8, 2015


                                                 -14-
