J-S86031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM ALBERSTADT

                            Appellant                 No. 632 WDA 2016


                    Appeal from the PCRA Order April 5, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001947-2013


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.:                     FILED NOVEMBER 21, 2016

        Appellant, William Alberstadt, appeals from the order entered in the

Erie County Court of Common Pleas, which denied his first petition filed

under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The PCRA court fully set forth the relevant facts and procedural history

of this case in its opinions. Therefore, we have no reason to restate them. 2

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
2
  Appellant filed a timely pro se PCRA petition on August 7, 2015. The court
appointed counsel, who subsequently filed a motion to withdraw and no-
merit letter per Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
(1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). The court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the
petition without a hearing on October 20, 2015. On October 29, 2015,
Appellant secured new counsel, who sought an extension of time to file a
(Footnote Continued Next Page)

_____________________________

*Former Justice specially assigned to the Superior Court.
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      Appellant raises four issues for our review:

          WAS [THERE] A CONFLICT OF INTEREST WHERE [THE
          COURT] FOUND A CONFLICT EXISTED IF APPELLANT
          ENTERED A GUILTY PLEA AFTER COUNSEL ADVISED THE
          COURT THERE WAS A CONFLICT IN THAT THEY ADVISED
          APPELLANT TO ACCEPT THE PLEA BARGAIN AND
          APPELLANT DECLARED THAT HE WANTED A JURY TRIAL?

          ONCE [THE COURT] RULED THAT THERE WOULD BE A
          CONFLICT OF INTEREST IF APPELLANT ENTERED A GUILTY
          PLEA IF REPRESENTED BY [PLEA] COUNSEL, WAS IT
          IMPROPER FOR ANOTHER JUDGE TO ACCEPT A PLEA IN
          THIS CASE?

          DID [PLEA] COUNSEL ABANDON APPELLANT WHEN THEY
          TOLD HIM THAT THEY WOULD NOT REPRESENT HIM IN A
          JURY TRIAL EVEN THOUGH [THE COURT] DENIED THEIR
          MOTION TO WITHDRAW BASED UPON A CONFLICT OF
          INTEREST AND ORDERED THEM TO TRIAL?

          DID [PLEA] COUNSEL COERCE APPELLANT TO ENTER A
          PLEA AGAINST HIS FREE WILL?

(Appellant’s Brief at 3).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959

                       _______________________
(Footnote Continued)

supplemental PCRA petition. The court granted the request and new counsel
filed the supplemental PCRA petition on November 23, 2015. The court held
a PCRA hearing on March 2, 2016, and ultimately denied PCRA relief on April
5, 2016. Although the PCRA court opinion filed March 16, 2016 suggests
Appellant’s supplemental PCRA petition might be construed as a second
PCRA petition, the record makes clear the current petitions collectively
constitute Appellant’s first attempt at collateral relief.



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A.2d 319 (2008). 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,

593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable William R.

Cunningham, we conclude Appellant’s issues merit no relief. The PCRA court

opinions comprehensively discuss and properly dispose of the questions

presented. (See PCRA Court Opinion, filed October 20, 2015, at 2-7; PCRA

Court Opinion, filed March 16, 2016, at 3-7; PCRA Court Opinion, filed June

2, 2016, at 1-4) (finding: evidence against Appellant was significant,

including Victim’s videotaped statement describing Appellant’s sexual acts,

photographs Appellant took of Victim in suggestive poses, and Appellant’s

statements to police describing his granddaughter as “saucy looking girl”

with “cute little body”; when Appellant admitted to counsel that Appellant

had oral sex with his granddaughter but told counsel he would lie on witness

stand, Appellant created ethical dilemma for his attorneys, prompting

attorneys to file motion to withdraw; court ultimately denied motion to

withdraw and informed counsel that Appellant could testify in narrative form

to avoid any ethical issues; court’s denial of motion to withdraw in no way


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precluded possibility of Appellant entering guilty plea at later date; although

Appellant voiced desire to go to trial during hearing on motion to withdraw,

material circumstances changed following that hearing; specifically, counsel

learned after hearing on motion to withdraw that Appellant attempted to

bribe his son-in-law to make charges disappear (which would have been

very damaging to Appellant if presented at trial), and Commonwealth

offered more favorable plea bargain; upon these changed circumstances,

counsel explained to Appellant benefits of entering guilty plea but left choice

to Appellant; court engaged in thorough plea colloquy which confirmed

Appellant’s decision to plead guilty was of his own volition; 3 Appellant’s

attorneys did not abandon Appellant and were prepared to go to trial had

Appellant made that choice; significantly, Appellant did not seek to withdraw

plea after sentencing; Appellant’s testimony at PCRA hearing was incredible;

____________________________________________


3
   Given the current state of the law regarding mandatory minimum
sentencing statutes, we depart from the PCRA court’s references to the
Commonwealth’s sentencing offer, which contained no mandatory minimum,
as one ground to assess plea counsels’ effectiveness. On appeal, Appellant
makes no claim that, but for his fear of a mandatory minimum sentence, he
would not have pled guilty. Instead, Appellant challenges the guilty plea
solely on counsels’ alleged threat to abandon him if Appellant decided to go
to trial. The record belies that contention, however, and makes clear
Appellant’s decision to plead guilty was knowing, intelligent, and voluntary.
Additionally, the record confirms the Commonwealth agreed to seek nolle
prosequi on nine of the ten charges against Appellant in exchange for his
guilty plea to one count of involuntary deviate sexual intercourse. As well,
the Commonwealth had overwhelming evidence against Appellant in this
case.    Thus, counsels’ advice to Appellant to enter a guilty plea was
reasonable under the circumstances of this case.



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Appellant failed to prove ineffective assistance of counsel in connection with

his guilty plea).     Accordingly, we affirm on the basis of the PCRA court’s

opinions.4

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2016




____________________________________________


4
  In its opinion filed June 2, 2016, the PCRA court references a direct appeal
in this case. The record confirms Appellant did not seek direct review.
Instead, Appellant timely filed a PCRA petition following sentencing.



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