J-S18018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CARLOS ALCIDES SANCHEZ,

                        Appellant                   No. 1150 EDA 2014


           Appeal from the PCRA Order entered March 21, 2014,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0010979-2010


BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED MARCH 23, 2015

      Carlos Alcides Sanchez (“Appellant”) appeals pro se from the order

denying his petition for relief under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. sections 9541-46. We affirm.

      The PCRA court summarized the pertinent facts as follows:

            On September 21, 2009, at 7:48 p.m., Jose Rivera[]
         was shot in the area of 417 West Norris Street, which is in
         the intersection of Cadwallader and Norris Streets. Prior to
         this shooting, [Appellant] had been searching for Jose
         Rivera, the decedent, to collect a debt. During his search,
         [Appellant] observed Rivera in the area of Lawrence and
         Norris Streets. [Appellant] exited his Ford pickup truck
         and began to argue with Rivera about the debt. When
         Rivera said: “I don’t owe you any money,” [Appellant]
         pulled out a silver gun from his waistband and fired at
         least three gunshots at Rivera. Although Rivera turned
         and began to run away, [Appellant] continued firing his
         gun until Rivera fell to the ground. After the gunshots
         were fired, [Appellant] entered his pickup truck and a
         second male, Javier Zayas, entered the passenger side of
         the pickup truck. [Appellant] then drove away from the
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        scene with Zayas. Zayas left [Appellant] after they were a
        few blocks away from the scene.

           When police arrived, they transported Rivera to Temple
        Hospital, where he was pronounced dead at 8:25 p.m. Dr.
        Blanchard, from the Office of the Medical Examiner,
        conducted an autopsy of Rivera’s body. Rivera suffered
        one gunshot wound to the lower back, one gunshot wound
        to the groin, and one gunshot wound to the right thigh.
        Dr. Blanchard concluded to a reasonable degree of medical
        certainty that the cause of death was multiple gunshot
        wounds. Dr. Blanchard further concluded to a reasonable
        degree of medical certainty that the manner of death was
        homicide.

            When Officer Rahill responded to the crime scene, he
        recovered three .40 caliber fired cartridge casings. He
        later submitted these fired cartridge casings to the
        Firearms Identification Unit for examination. Officer Stott
        examined three .40 caliber fired cartridge casings from the
        crime scene. After examining the fired cartridge casings,
        Officer Stott determined to a reasonable degree of
        scientific certainty that they were fired from the same
        firearm. He further concluded that it was probable that
        the fired cartridge casings were ejected from a semi-
        automatic handgun.

           Two eyewitnesses, Mike Seloski and George Adorno,
        observed the argument and subsequent shooting while
        they were on a basketball court in the area of Lawrence
        and Norris Streets. They later provided written statements
        to police and identified [Appellant] as the shooter after
        viewing a photographic array. Seloski further informed
        police that Zayas did not have a weapon and did not fire
        any gunshots at the decedent. Zayas also provided a
        statement to police, and he later testified at a preliminary
        hearing about this shooting.

PCRA Court Opinion, 8/4/14, at 2-3. Police subsequently arrested Appellant.

     On April 24, 2012, Appellant entered a negotiated guilty plea to third

degree murder and related charges.        That same day, the trial court

sentenced him to a negotiated aggregate term of twenty to forty years of

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imprisonment. Appellant filed neither a post-sentence motion, nor a direct

appeal.

        On August 28, 2012, Appellant filed a pro se PCRA petition, as well as

a pro se amended petition.       The PCRA court appointed counsel, and on

November 24, 2013, PCRA counsel filed a “no-merit” letter and petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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

After   reviewing   PCRA   counsel’s   “no-merit”   letter,   and   independently

determining that Appellant’s claims were meritless, the PCRA court issued

Pa.R.Crim.P. 907 notice of intent to dismiss the petition on February 20,

2014.     Appellant filed a response on March 10, 2014.        By order entered

March 21, 2014, the PCRA court dismissed Appellant’s PCRA petition and

permitted PCRA counsel to withdraw.       This timely pro se appeal followed.

The PCRA court did not require Pa.R.A.P. 1925 compliance.

        In his pro se brief, Appellant claims that the PCRA court erred as a

matter of law and/or abused its discretion in “denying or otherwise

dismissing without a hearing” his claims that prior counsel was ineffective for

failing to: 1) move to dismiss the charges filed against him based upon the

prejudicial delay in holding his preliminary hearing; 2) move for dismissal of

the charges based upon a violation of his Pa.R.Crim.P. 600 right to a speedy

trial; and 3) file a requested post-sentence motion for reconsideration

and/or withdraw of his guilty plea. See Appellant’s Brief at 4.




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      In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the findings of the PCRA court, “but its legal determinations are

subject to our plenary review.” Id. Moreover, a PCRA court may decline to

hold a hearing on the petition if the PCRA court determines that petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,

1014 (Pa. Super. 2001). Finally, to be entitled to relief under the PCRA, the

petitioner must plead and prove by a preponderance of the evidence that the

conviction or sentence arose from one or more of the errors enumerated in

section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness

of counsel.

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Johnson, 966 A.2d at 532. “Generally, counsel’s performance is presumed

to be constitutionally adequate, and counsel will only be deemed ineffective

upon a sufficient showing by the petitioner.” Id. This requires the petitioner

to demonstrate that:    (1) the underlying claim is of arguable merit; (2)

counsel had no reasonable strategic basis for his or her action or inaction;

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and (3) petitioner was prejudiced by counsel's act or omission. Id. at 533.

A finding of "prejudice" requires the petitioner to show "that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different." Id.

      Counsel will not be deemed ineffective if any reasonable basis exists

for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.

1994). Even if counsel had no reasonable basis for the course of conduct

pursued, however, an appellant is not entitled to relief if he fails to

demonstrate the requisite prejudice which is necessary under Pennsylvania's

ineffectiveness standard. Douglas, 645 A.2d at 232. In assessing a claim

of ineffectiveness, when it is clear that appellant has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).               Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003).

      As correctly recognized by the PCRA court in this case, Appellant’s first

two ineffectiveness claims would have arguable merit only if trial counsel

was ineffective in relation to Appellant’s entry of a guilty plea.   See PCRA

Court Opinion, 8/4/14, at 8.       Thus, we first address the validity of

Appellant’s guilty plea.




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      “[A] defendant who attempts to withdraw a guilty plea after

sentencing must demonstrate prejudice on the order of manifest injustice

before withdrawal is justified.”   Commonwealth v. Pantalion, 957 A.2d

1267, 1271 (Pa. Super. 2008) (citation omitted).       A showing of manifest

injustice may be established if the plea was entered into involuntarily,

unknowingly, or unintelligently. Id. As this Court has summarized:

              Pennsylvania has constructed its guilty plea procedures
           in a way designed to guarantee assurance that guilty
           pleas are voluntarily and understandingly tendered. The
           entry of a guilty plea is a protracted and comprehensive
           proceeding wherein the court is obliged to make a specific
           determination after extensive colloquy on the record that
           a plea is voluntarily and understandingly tendered.


Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)

(citation omitted).

      Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that

a guilty plea be offered in open court, and provides a procedure to

determine whether the plea is voluntarily, knowingly, and intelligently

entered.   As noted in the Comment to Rule 590, at a minimum, the trial

court should ask questions to elicit the following information:


                   (1)   Does the defendant understand the nature
                         of the charges to which he or she is
                         pleading guilty or nolo contendere?
                   (2)   Is there a factual basis for the plea?
                   (3)   Does the defendant understand that he or
                         she has the right to trial by jury?
                   (4)   Does the defendant understand that he or
                         she is presumed innocent until found
                         guilty?


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                     (5)    Is the defendant aware of the permissible
                            range of sentences and/or fines for the
                            offenses charged?
                     (6)    Is the defendant aware that the judge is
                            not bound by the terms of any plea
                            agreement tendered unless the judge
                            accepts such agreement?
Pa.R.Crim.P. 590, Comment.1

       This Court has further summarized:

           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. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)

(quoting Fluharty, 632 A.2d at 314-15)).

       Finally, when addressing an appellate challenge to the validity of a

guilty plea:


       Our law presumes that a defendant who enters a guilty plea was
       aware of what he was doing. He bears the burden of proving
       otherwise.


____________________________________________


1
  The Comment to Rule 590 includes a seventh proposed question that is
only applicable when a defendant pleads guilty to murder generally.




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                           *       *      *

           The longstanding rule of Pennsylvania law is that a
       defendant may not challenge his guilty plea by asserting
       that he lied while under oath, even if he avers that counsel
       induced the lies. A person who elects to plead guilty is
       bound by the statements he makes in open court while
       under oath and may not later assert grounds for
       withdrawing the plea which contradict the statements he
       made at his plea colloquy.

                           *       *      *

       [A] defendant who elects to plead guilty has a duty to
       answer questions truthfully.     We [cannot] permit a
       defendant to postpone the final disposition of his case by
       lying to the court and later alleging that his lies were
       induced by the prompting of counsel.

Commonwealth v. Yeomans, 24 A.3d at 1047 (quoting Commonwealth

v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003)).

     In concluding Appellant entered a valid guilty plea, the PCRA court

explained:

            The record clearly demonstrates that [Appellant’s]
        guilty plea was entered knowingly, voluntarily and
        intelligently. Before accepting [Appellant’s] guilty plea,
        this court conducted an extensive colloquy to ensure that
        [Appellant] had “actual knowledge of the implications and
        rights associated with a guilty plea.” [Commonwealth v.
        Allen, 732 A.2d 582, 588 (Pa. 1999)].           [Appellant]
        confirmed that he understood the nature of the charges
        filed against him after this court carefully explained the
        elements of third-degree murder [and related charges].
        The record also shows that there was a factual basis for his
        guilty plea. After this court informed [Appellant] of the
        elements of the aforementioned offenses, the assistant
        district attorney gave a summary of the facts that were the
        basis of this guilty plea. [Appellant] agreed that he was
        pleading guilty to those facts.


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            During this colloquy, [Appellant] was informed of his
        rights and the consequences of entering a guilty plea to
        the charges against him. In response to a series of
        inquiries, [Appellant] responded that he understood those
        rights and consequences.           Specifically, [Appellant]
        confirmed that he understood his right to a jury trial and
        the consequences of electing to plead guilty. He also
        stated that he understood that he is presumed innocent
        until proven guilty beyond a reasonable doubt in a jury
        trial. [Appellant] further indicated his awareness of the
        permissible range of sentences and fines for the charges
        filed against him.       He was further aware that his
        negotiated sentence was less than the statutory maximum
        sentence that could have been imposed. Throughout this
        colloquy, this court informed [Appellant] that it was not
        bound by the terms of the plea agreement unless it was
        accepted after a finding that it was entered into
        voluntarily, knowingly, and intelligently.       [Appellant]
        completed and signed a Written Guilty Plea Colloquy form
        and indicated that he understood each page of the form.
        [Appellant] also stated that he had consulted with defense
        counsel before entering his guilty plea, that he was
        satisfied with his attorney’s services, and that no threats
        or promises had been made to him. There was no point
        during the colloquy where [Appellant] informed this court
        that his guilty plea was unlawfully induced by counsel.

                                    ***

            Based on the totality of the circumstances, this court
        accepted [Appellant’s] guilty plea after being satisfied that
        it was entered voluntarily, knowingly, and intelligently.

PCRA Court Opinion, 8/4/14, at 6-8 (footnote and citations omitted).

     Our review of Appellant’s colloquy with the trial court prior to the entry

of his guilty plea amply supports the PCRA court’s conclusion that Appellant

knowingly, voluntarily, and intelligently entered his plea. See N.T., 4/24/12,

at 7-43. Thus, because any post-sentence motion filed by trial counsel to




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withdraw the guilty plea would have been meritless, Appellant’s claim of

ineffectiveness fails. Loner, supra.

     Given its determination regarding Appellant’s plea, the PCRA court

further determined that Appellant’s claims of ineffective assistance by prior

counsel prior to the entry of his guilty plea was devoid of merit. The PCRA

court explained:

        First, [Appellant] cannot prevail on the claim that
        preliminary hearing counsel was ineffective for failing to
        file a motion to dismiss his charges due to an alleged
        violation of his right to a preliminary hearing within a
        specific timeframe. Neither can [Appellant] be afforded
        relief on the basis that trial counsel was ineffective for
        failing to file a motion to dismiss his charges due to an
        alleged violation of his right to a speedy trial. The alleged
        inaction of counsel to file these pre-trial motions did not
        prejudice the outcome of this case. The record clearly
        shows that [Appellant] had full knowledge of the effect
        that his guilty plea would have on his pre-trial rights.
        Through the court’s oral and written colloquy, [Appellant]
        was informed that his pre-trial rights would be waived
        upon entry of his guilty plea. Thus, [Appellant] fully
        understood the consequences of his guilty plea. Because
        [Appellant’s] guilty plea was an informed choice, counsel’s
        alleged ineffectiveness in failing to file these pre-trial
        motions could not have adversely affected the outcome of
        the proceedings before this court.

PCRA Court Opinion, 8/4/14, at 8-9 (footnote and citations omitted).

     Once again, our review of the record supports the PCRA court’s

conclusions.   See N.T., 4/24/12, at 21 (Appellant acknowledges that his

entry of a guilty plea would render him unable to pursue pre-trial motions);

see also Commonwealth v. Murray, 836 A.2d 956, 962-63 (Pa. Super.



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2003) (providing that the entry of a guilty plea constitutes a waiver of all

defects and defenses except lack of jurisdiction, invalidity of the plea, and

illegality of the sentence).

      In his remaining claim, Appellant asserts that trial counsel was

ineffective    for    failing   to   file   a   post-sentence     motion    for   sentence

reconsideration.          According to Appellant, “while [he] may have had no

particular right to receive a reduced sentence . . . it cannot be reasonably

disputed that he did have the right to have such a request considered.”

Appellant’s Brief at 19-20.           Appellant further asserts that trial counsel’s

failure   to   file   a    post-sentence        motion   for   sentence    reconsideration

“prevented [him] from seeking appellate review of the discretionary aspects

of his sentence[.]” Id. at 20.

      This claim of ineffectiveness is baseless.               The PCRA court cogently

observed:

             [Appellant] is not entitled to post-conviction relief on
          the claim that trial counsel was ineffective for failing to file
          a post-sentence motion for reconsideration of his sentence.
          There is no relief available because [Appellant] is not
          entitled to a different sentence than the one he negotiated.
          In Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa.
          Super 1994), [the Superior Court] opined that “in a
          ‘negotiated’ plea agreement, where a sentence of specific
          duration has been made part of the plea bargain, it would
          clearly make a sham of the negotiated plea process for
          courts to allow defendants to later challenge their
          sentence.” Here, [Appellant’s] sentence was lawful and as
          it was within statutory limits.          Consequently, this
          ineffectiveness claim does not warrant relief because it has
          no merit.



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PCRA Court Opinion, 8/4/14, at 10-11 (footnote omitted). We agree.

      In sum, our review of the record supports the PCRA court’s

determination that each ineffectiveness claim raised by Appellant lacks

merit. We therefore affirm its order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2015




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