Com. v. Fitzgerald, J. ( 2022 )

J-S07014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMAAL RISHAL FITZGERALD :
:
Appellant : No. 818 WDA 2021
Appeal from the PCRA Order Entered June 17, 2021
In the Court of Common Pleas of Fayette County Criminal Division at No(s):
CP-26-CR-0001801-2017
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: JUNE 6, 2022
Appellant, Jamaal Rishal Fitzgerald, appeals from the order entered June
17, 2021, which denied his first petition filed pursuant to the Post-Conviction
Relief Act (“PCRA”).1 Counsel for Appellant, James V. Natale, Esquire filed a
petition to withdraw and a no-merit brief pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc).2 We affirm and grant counsel’s petition to
withdraw.
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
2 Although counsel styled his brief as having been filed pursuant to Anders v.
California, 386 U.S. 738 (1967), we note that an Anders brief governs the
withdrawal of counsel from direct appeal. Nevertheless, as Anders imposes
stricter requirements than those set forth in Turner/Finley, this Court
accepts Anders-compliant briefs in the context of collateral review.
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).
J-S07014-22
The PCRA court summarized the facts and procedural history of this case
as follows:
On June 23, 2017, [Appellant] contacted the police emergency
number stating that he had just shot a friend who attempted to
rob him. [Appellant] was at the apartment with his girlfriend when
the police arrived. A Glock pistol was recovered from the
residence. The victim [ ] was laying in the alley behind the
residence beside a Pontiac sedan with multiple gunshot wounds.
[Appellant’s] girlfriend informed the police that [Appellant] went
outside to sell the victim some marijuana. She heard four [] or
five [] gun shots. [Appellant] was charged with criminal homicide,
[two counts of] aggravated assault, recklessly endangering
another person, possession of instruments of crime[,] and
possession with intent to deliver.[3]
Trial Court Opinion, 6/17/21, at 1 (extraneous capitalization omitted).
Appellant was represented by private counsel throughout proceedings before
the trial court.
Appellant proceeded to a guilty plea hearing on January 30, 2019. At
his plea hearing, Appellant pleaded guilty to third-degree criminal homicide4
in exchange for a negotiated sentence of seven-and-one-half to 15 years’
incarceration followed by a consecutive two-year probationary period. N.T.
Guilty Plea, 1/30/19, at 3. In essence, Appellant admitted that he fired the
gunshots that fatally wounded the victim and did not contest that malice could
318 Pa.C.S.A. §§ 2502, 2702(a)(1), 2702(a)(4), 2705, 907(b), and 35 P.S.
§ 780-113(a)(30), respectively.
4Appellant also pleaded guilty to two counts of aggravated assault, possession
of instruments of crime, and possession of a small amount of marijuana
pursuant to the plea bargain. See Trial Court Opinion, 6/17/21, at 2.
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be inferred from the fact that deadly force was applied to vital parts of the
victim’s body. Id. at 7-8 and 14-16.
Through responses to both oral and written colloquies undertaken
during the plea hearing, Appellant acknowledged: his overall satisfaction with
representation by trial counsel; his comprehension of the elements of each
offense for which he entered a guilty plea; his understanding of the maximum
penalty for each offense to which he pled guilty; his understanding of the
nature of his plea and the rights he surrendered by entering a guilty plea,
including his right to trial by a jury of his peers and his right to a presumption
of innocence until found guilty beyond a reasonable doubt by a unanimous
jury; his understanding that the entry of a guilty plea waived the right to
appeal certain issues; confirmation that he received no promises or threats
which caused him to plead guilty; and, that his decision to plead guilty was
made voluntarily. See Guilty Plea Colloquy, 1/30/19; see also N.T. Guilty
Plea, 1/30/19, at 5-23. After hearing Appellant’s testimony and reviewing
Appellant’s responses to the foregoing inquiries, the trial court accepted
Appellant’s guilty plea as knowing and voluntary and immediately imposed the
negotiated sentence. Id. at 23-25. No post-sentence motions or direct
appeals were filed.
On January 27, 2020, Appellant filed a timely pro se PCRA petition which
asserted various claims alleging that plea counsel was ineffective. Specifically,
Appellant alleged that counsel failed to advise him of potential defenses, that
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counsel failed to investigate and secure certain evidence, and that counsel
failed to file certain motions. See Pro Se PCRA Petition, 1/27/20. In addition,
Appellant alleged that the Commonwealth breached the parties’ plea
agreement. See id.
The PCRA court appointed counsel from the Fayette County Public
Defender’s Office to represent Appellant. Counsel filed an amended PCRA
petition on March 21, 2020, seeking only to correct the charges reflected on
Appellant’s sentencing order.5 See Amended PCRA Petition, 3/21/20.
Thereafter, the PCRA court granted counsel’s petition to withdraw and
appointed Attorney James V. Natale to represent Appellant.
On August 7, 2020, Attorney Natale filed an amended PCRA petition
asserting four grounds for post-collateral relief. First, the amended petition
argued that the Commonwealth violated Appellant’s constitutional rights by
failing to produce exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83 (1963). Amended PCRA Petition, 8/7/20, at 2 (unpaginated).
5Specifically, Appellant’s sentencing order reflected incorrect criminal charges
at counts 4, 6, and 7. Amended Petition, 3/21/20, at 2 (unpaginated). The
sentencing order at count 4 incorrectly included a charge of “unlawful
restraint,” rather than a charge for “possession of a weapon.” In addition, the
sentencing order failed to account for the Commonwealth’s agreement to nolle
pros count 6 (possession with intent to deliver cocaine) and add count 7
(possession of a small amount of marijuana). After lengthy discussion of these
changes at the plea hearing, Appellant entered guilty pleas to the amended
changes and was sentenced for those offenses. See N.T. Guilty Plea, 1/30/19,
at 2, 8-11, 12-13, and 23-25. Accordingly, the PCRA court entered an
amended sentencing order reflecting the correct charges to which Appellant
pled guilty. See Amended Sentencing Order, 7/14/20.
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Specifically, the Brady claim asserted that the Commonwealth failed to
disclose: (1) text messages between the victim and his sister; (2) the victim’s
status as a black belt in martial arts; (3) a broken red brick reportedly
recovered from the step where the shooting occurred and supposedly used by
the victim to attack Appellant; (4) a statement from a caller offered the week
of Appellant’s guilty plea hearing; and (5) surveillance footage from a
neighboring residence. Id. Second, the amended petition asserted that plea
counsel was ineffective in failing to visit the crime scene, interviewing potential
witnesses, requesting surveillance footage from neighboring residences, or
researching the victim’s background. Id. at 3. This failure prejudiced
Appellant because “a thorough investigation could have uncovered
exculpatory evidence.” Id. Third, the amended petition claimed that plea
counsel was ineffective because he pressured Appellant to enter a guilty plea,
which caused Appellant to enter a plea he would not have otherwise accepted
and which precluded Appellant from presenting meritorious defenses at trial.
Id. at 4. Finally, Appellant argued that plea counsel was ineffective because
he failed to seek withdrawal of Appellant’s guilty plea after Appellant directed
him to do so. Id.
The PCRA court conducted an evidentiary hearing on Appellant’s second
amended petition on March 26, 2021. At the hearing, the PCRA court heard
testimony from Appellant, plea counsel, James Geibig, Esquire (the Assistant
District Attorney assigned to Appellant’s case), and Officer Jamie Holland (the
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lead investigator). The PCRA court denied Appellant’s PCRA petition on June
17, 2021. This appeal followed.6, 7
On appeal, the Turner/Finley brief raises the following issues for our
review:
1. Whether the Commonwealth violated Appellant’s constitutional
rights by failing to [disclose] exculpatory evidence, [including]:
text messages between the victim and his sister[;] the fact that
the victim is a black belt; [a] broken red brick on top of the step
where the shooting occurred; [a] statement taken from a caller
on the week of January 31, 2019 with information regarding the
case; [and] surveillance footage from the neighboring residence?
2. Whether [plea counsel] was ineffective for failing to conduct a
thorough investigation, in particular: never visiting the crime
scene; never interviewing any potential witnesses; never
requesting surveillance from the neighboring residence; and
failing to research the victim’s background?
3. Whether [plea counsel] was ineffective for pressuring
[Appellant] to accept a guilty plea?
6 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Specifically, the record demonstrates that Appellant’s counsel filed a concise
statement of errors complained of on appeal contemporaneously with his
notice of appeal filed on July 12, 2021. See Commonwealth v. Snyder, 870
A.2d 336, 341 (Pa. Super. 2005) (stating, “it is of no moment that appellant
was not ordered to file a 1925(b) statement. Appellant filed his statement
contemporaneously with his notice of appeal. Accordingly, there was no need
for the trial court to order him to file a 1925(b) statement.”).
7 Appellant’s counsel filed a notice of appeal on July 12, 2021, which was
docketed at 818 WDA 2021. Appellant, however, subsequently filed a pro se
notice of appeal on July 15, 2021, which was docketed at 831 WDA 2021.
After issuing a rule to show cause and receiving counsel’s response, this Court
dismissed the appeal at 831 WDA 2021 and granted Appellant permission to
proceed at 818 WDA 2021 with any issue properly preserved at either docket
number. See Per Curiam Order, 8/20/21.
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4. Whether [plea counsel] was ineffective for failing to file a
motion to withdraw [Appellant’s] guilty plea after [Appellant]
directed [him] to file the motion?
Turner/Finley Brief at 2 (extraneous capitalization omitted).
Prior to addressing the merits of the issues raised in the Turner/Finley
brief, we must determine whether counsel met the procedural requirements
necessary to withdraw. Counsel seeking to withdraw in PCRA proceedings
must review the case zealously. Turner/Finley counsel must
then submit a “no-merit” letter to the [PCRA] 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 – [the PCRA]
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. Muzzy, 141 A.3d 509, 510-511 (Pa. Super. 2016)
(citations and corrections omitted).
Here, counsel fulfilled the technical requirements necessary for
withdrawing as PCRA counsel. We thus turn to the claims raised in the
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Turner/Finley brief, along with Appellant’s reply thereto, filed on January 4,
2022.8
In reviewing the grant or denial of PCRA relief, an appellate court
considers whether the PCRA court’s conclusions are supported by
the record and free of legal error. Moreover, the factual findings
of a post-conviction court, which hears evidence and passes on
the credibility of witnesses, should be given deference. A PCRA
court passes on witness credibility at PCRA hearings, and its
credibility determinations should be provided great deference by
reviewing courts. Indeed, one of the primary reasons PCRA
hearings are held in the first place is so that credibility
determinations can be made.
* * *
[An appellate court] will not disturb the findings of the PCRA court
if they are supported by the record, even where the record could
support a contrary holding. [The reviewing court’s] scope of
review is limited to the findings of the PCRA court and the evidence
on the record of the PCRA court’s hearing, viewed in the light most
favorable to the prevailing party.
Commonwealth v. Flor, 259 A.3d 891, 910-911 (Pa. 2021) (quotation
marks, citations, and corrections omitted).
In his first claim, Appellant asserts that the Commonwealth violated his
constitutional rights by withholding exculpatory evidence. Turner/Finley
8 To the extent Appellant attempts to raise an excessive sentence claim within
his reply to counsel’s Turner/Finely brief, Appellant failed to raise this claim
before the PCRA court. See Pa.R.A.P. 302(a) (noting that issues cannot be
raised for the first time on appeal). Moreover, “[o]ne who pleads guilty and
receives a negotiated sentence may not then seek discretionary review of that
sentence.” Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa. Super.
2008); see also Commonwealth v. Wrecks, 934 A.2d 1287, 1289
(Pa. Super. 2007) (“Requests for relief with respect to the discretionary
aspects of sentencing are not cognizable in PCRA proceedings.”).
8
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Brief at 12. Specifically, Appellant’s Brady claim involves the
Commonwealth’s alleged failure to disclose the following pieces of evidence:
1. text messages between the victim and his sister;
2. the fact that the victim is a black belt in a form of martial arts;
3. a broken red brick on top of the step where the shooting
occurred;
4. a statement taken from a caller during the week of January 31,
2019 with information regarding the case; and
5. surveillance footage from the neighboring residence.
Id.To prove a Brady violation, an appellant must demonstrate that:
(1) the prosecution concealed evidence; (2) which evidence was
either exculpatory or impeachment evidence favorable to him;
and (3) he was prejudiced by the concealment. In order to prove
prejudice [an a]ppellant must show a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different. Stated differently, the
undisclosed evidence must be material to guilt or punishment.
Commonwealth v. Bomar, 104 A.3d 1179, 1189-1190 (Pa. 2014) (internal
alterations, quotation marks, and citations omitted). Materiality involves
more than the “mere possibility that an item of undisclosed information might
have helped the defense.” Commonwealth v. Haskins, 60 A.3d 538, 547
(Pa. Super. 2012) (citation omitted).
Importantly, courts will not find a Brady violation where the evidence
at issue is available to the defense from non-governmental sources. See
Commonwealth v. Tedford, 960 A.2d 1, 30 (Pa. 2008). In other words,
there is no violation “when the appellant knew or, with reasonable diligence,
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could have uncovered the evidence in question.” Commonwealth v.
Trieber, 121 A.3d 435, 461 (Pa. 2015).
The PCRA court determined Appellant’s Brady claim was meritless. It
found:
[Appellant] presented evidence regarding the red brick when his
counsel introduced a photograph of the brick during a preliminary
hearing. As such[, Appellant] had this information from his own
witnesses and provided it to the Commonwealth. [Attorney
Geibig] testified for the Commonwealth that it did not have any
other photographs in the file regarding the red brick. In addition,
[Appellant] did not take his case to trial but rather entered into a
plea agreement, he failed to establish how the lack of this
information impacted the voluntariness of his plea. [Attorney
Geibig] further testified that he had no information that the victim
was a black belt. During the PCRA hearing, [Appellant] presented
no evidence that the victim was in fact a black belt. Nor did he
explain how this information impacted his plea. [Attorney Geibig]
credibly testified that the Commonwealth had provided
[Appellant] with all text messages in its possession. No copies of
un[disclosed] text messages were presented nor did [Appellant
adduce] testimony from witnesses regarding [] undisclosed text
messages. [Appellant’s] further assertion that there was an
undisclosed telephone call on January 31, 2019 was not supported
by any evidence that such a call even existed. It is not enough
for [Appellant] to just assert violations without providing evidence
supporting that the evidence actually existed. For these reasons,
this issue is without merit.
PCRA Court Opinion, 6/17/21, at 4.
Upon review, we conclude the PCRA court’s findings enjoy record
support. Based on the record, including the testimony at the PCRA hearing,
Appellant offered no proof of undisclosed evidence or, alternatively, Appellant
possessed independent knowledge of such evidence.
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Regarding the text messages between the victim and his sister, Attorney
Geibig testified that he turned over all text messages to the defense. N.T.
PCRA Hearing, 3/26/21, at 25. Officer Holland explicitly remembered turning
over text messages between the victim and his sister, and plea counsel
confirmed that he and Appellant received and reviewed those text messages
Id. at 16, 29-30. Moreover, Appellant stated that he knew the nature of the
text messages because the victim’s sister referred to them in her written
statement that the Commonwealth disclosed to him. Id. at 3-4. Therefore,
Appellant failed to prove that any text messages were withheld by the
Commonwealth.
Regarding the victim holding black belt status in a martial arts discipline,
Appellant had independent and personal knowledge of this fact from the victim
himself. See id. at 4 (confirming Appellant’s friendship status with the victim
and Appellant’s knowledge that victim was a black belt). Plea counsel
explained that “whether or not the kid was a black belt in karate given the
distance at least of some of the five shots really didn’t have any relevance.”
Id. at 20. Therefore, no violation can be found because Appellant knew of
the evidence and could not establish the materiality of this information.
Similarly, regarding evidence of the red brick at the top of the steps,
Appellant obtained information about the brick through nongovernmental
means. The uncontradicted testimony was that the defense introduced
evidence of the red brick at the preliminary hearing via a photograph taken
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by Appellant’s mother. Id. at 10, 25. Furthermore, Officer Holland compared
the photograph with those taken by the Pennsylvania State Police Forensic
Service Unit, and testified that the red brick was not shown in any of the
original photographs of the crime scene. Id. at 30. Therefore, Appellant had
independent knowledge of the red brick and failed to demonstrate the
authenticity or materiality of the red brick photograph necessary to establish
a Brady violation.
Regarding a purported statement taken from a caller, Appellant failed
to enter any evidence at the PCRA hearing to establish that such a call
occurred, the identity of the caller, or if the information was helpful to the
defense. See Haskins, supra (the “mere possibility that an item of
undisclosed information might have helped the defense” is insufficient to
establish materiality necessary to prove a Brady violation).
Regarding purported surveillance footage, the unequivocal testimony of
the PCRA hearing demonstrated that no such footage existed. Appellant
testified that he did not know if any video existed. Id. at 5-6. Plea counsel
explained that one of the first things he does upon beginning a case is to
investigate whether any video footage exists and preserves that evidence. Id.
at 15, 21. In this case, he testified that he was not advised of any footage,
and Appellant explained to him that “the alley was dark and that he didn’t
think there would be any chance of anything showing anything.” Id. at 21.
Officer Holland confirmed that there was no video surveillance in the vicinity.
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Id. at 31. He testified that the only building that Appellant could have been
referring to did not have external cameras. Id.
Therefore, based on the totality of the record, Appellant cannot
demonstrate that his Brady claim has any basis in fact that the
Commonwealth withheld any of the purported evidence, how such evidence
was favorable to him, or how possessing such evidence would have resulted
in his choice to go to trial rather than enter into the plea agreement. As
detailed above, Appellant agreed to plead guilty to third-degree murder in
exchange for a negotiated sentence. None of the evidence Appellant lists
renders such a choice involuntary, unintelligent, or unknowing. Thus,
Appellant’s first claim affords him no relief.
In his remaining three issues, Appellant argues that plea counsel’s
ineffectiveness caused him to enter invalid guilty pleas.
In order to obtain relief based on an [ineffective assistance of
counsel] claim, a petitioner must establish: (1) the underlying
claim has arguable merit; (2) no reasonable basis existed for
counsel’s actions or failure to act; and (3) petitioner suffered
prejudice as a result of counsel’s error such that there is a
reasonable probability that the result of the proceeding would
have been different absent such error. Trial counsel is presumed
to be effective, and [an a]ppellant bears the burden of pleading
and proving each of the three factors by a preponderance of the
evidence.
The right to constitutionally effective assistance of counsel
extends to counsel’s role in guiding his client with regard to the
consequences of entering into a guilty plea. 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. Where the
defendant enters his plea on the advice of counsel, the
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voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in
criminal cases. Thus, to 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. The reasonable probability test is not a stringent
one; it merely refers to a probability sufficient to undermine
confidence in the outcome.
[Central] to the question of whether a defendant’s plea was
entered voluntarily and knowingly is the fact that the defendant
know[s] and understand[s] the nature of the offenses charged in
as plain a fashion as possible. A guilty plea is not a ceremony of
innocence, it is an occasion where one offers a confession of guilt.
Thus, a trial judge and, by extension, plea counsel is not required
to go to unnecessary lengths to discuss every nuance of the law
regarding a defendant’s waiver of his right to a jury trial in order
to render a guilty plea voluntary and knowing.
Commonwealth v. Barndt, 74 A.3d 185, 191- 193 (Pa. Super. 2013)
(cleaned up; quotation marks and citations omitted). Moreover,
[o]ur law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving
otherwise.
* * *
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.
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Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(citations omitted). “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. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013)
(internal citations and brackets omitted).
First, Appellant asserts that plea counsel was ineffective for failing to
conduct a thorough investigation. See Turner/Finley Brief at 17. This claim
is unavailing. As the PCRA court explained: “[Appellant’s] assertion that his
counsel failed to conduct a thorough investigation was not supported by any
evidence as previously stated[,] as he also asserted the evidence not turned
over by the Commonwealth was also the basis of his claim of ineffectiveness.”
PCRA Court Opinion, 6/17/21, at 5. Indeed, as our Supreme Court has
previously observed, boilerplate ineffective assistance claims, composed of
recast (but meritless) Brady claims, lack arguable merit. See Tedford, 960
A.2d at 31.
Next, Appellant contends that plea counsel pressured him into accepting
the guilty plea. Turner/Finley Brief at 17. Appellant alleged at the PCRA
hearing that counsel threatened him with an “ultimatum to take seven and a
half years for a more severe crime than the actual crime that was committed”
or else the court would sentence him to the “max penalty” because the judge
was a prior district attorney. N.T. PCRA Hearing, 3/26/21, at 7. Within his
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oral and written guilty plea colloquies, Appellant stated he was satisfied with
counsel’s services and noted that “[n]o threats have been made against me
for the purpose of causing me to plead guilty.” See id. at 5-23; see also
Guilty Plea Colloquy, 1/30/19, at 3. Appellant is bound by the statements he
made during his oral and written guilty plea colloquies attesting to the absence
of threats and his satisfaction with counsel’s services and he may not now
contradict those statements to seek relief. See Yeomans, supra; see also
Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super. 2018).
Appellant’s claim fails.
In his last ineffective assistance of counsel claim, Appellant argues that
plea counsel failed to file a motion to withdraw Appellant’s guilty plea after
Appellant directed him to do so. Turner/Finley Brief at 17. This Court
previously determined:
[o]ur law is clear that, to be valid, a guilty plea must be knowingly,
voluntarily[,] and intelligently entered. There is no absolute right
to withdraw a guilty plea, and the decision as to whether to allow
a defendant to do so is a matter within the sound discretion of the
trial court. To withdraw a plea after sentencing, a defendant must
make a showing of prejudice amounting to manifest injustice. A
plea rises to the level of manifest injustice when it was entered
into involuntarily, unknowingly, or unintelligently. A defendant's
disappointment in the sentence imposed does not constitute
manifest injustice.
Commonwealth v. Pollard, 832 A.2d 517, 522-523 (Pa. Super. 2003)
(internal citations and quotations omitted).
The PCRA court opined:
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A guilty plea may be withdrawn after sentencing only upon a
showing of prejudice on the level of manifest injustice. The plea
colloquy fully informed [Appellant] of his rights, the charges he
was pleading to, the maximum sentences for each charge, the
extent of his bargain, and also covered a possible defense.
[Appellant] failed to make a showing of manifest injustice such
that the [c]ourt would permit him to withdraw his plea, thus he
failed to meet his burden on this issue.
PCRA Court Opinion, 6/17/21, at 6.
In this case, the crux of Appellant’s argument is not that his negotiated
guilty plea was involuntarily or unintelligently entered. Appellant explained
his desire to withdraw his plea as follows:
[After entering the guilty plea,] I had a guilty conscious the next
day and I had called my attorney and I was pretty much in fear
because it weighed heavy on me that I can’t accept the fact that
I’m taking a charge that I don’t deserve for less time. I wouldn’t
be honest with myself if, I do not feel as if I murdered a friend of
mine. That’s pretty much how I put it to him and I cannot say
that I did murder him in its technical term. Now I could
understand maybe a manslaughter due to a fight and the death
resulting because of the fight but I am not, a murder to me is a
coldblooded killing and I cannot live with that. So that’s pretty
much how I put it to him the next day.
N.T. PCRA Hearing, 3/26/21, at 8. Appellant further testified, “I am guilty of
taking his life away and I feel guilty of taking his life away[,] but this was not
a murder[.]” Id. at 12.
As plea counsel explained, Appellant’s desire to withdraw his plea arose
from the title of the charge (third-degree murder), not the sentence he
received. Id. at 18 (“[w]here the issue lied was[,] it wasn’t so much the
sentence that was the concern[,] it was the sentence pursuant to third degree
instead of a voluntary manslaughter[. B]asically speaking[,] that was the
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question, the number versus the title. [] He ultimately pled guilty to a third
degree murder but he pled guilty to seven to [15] years.”). Plea counsel
explained that, after sentencing, Appellant called to withdraw his plea because
“[h]e wanted the title changed from a murder to a manslaughter[.]” Id. at
19. He explained to Appellant this is not a basis for appeal or withdrawal of
his plea because “[y]ou can’t say I want to keep the sentence but change the
charge.” Id. at 20.
As reflected in the certified record, Appellant signed a written guilty plea
colloquy and engaged in an extensive and specifically tailored oral colloquy at
the January 30, 2019 guilty plea hearing. Within those colloquies, Appellant
acknowledged that he understood the crimes with which he was charged and
confirmed his agreement to plead guilty to third-degree murder, the maximum
penalty for which was 40 years’ imprisonment. Appellant also understood that
he agreed to plead guilty in exchange for a negotiated sentence of
seven-and-one-half to 15 years. He confirmed his understanding of the rights
and defenses he waived by entering into the plea agreement. He also
confirmed his satisfaction with plea counsel’s services and acknowledged that
he had opportunities to consult with counsel before making the decision to
plead guilty.
We conclude that Appellant’s guilty plea and corresponding judgment of
sentence does not rise to the level of manifest injustice necessary to support
the withdrawal of his guilty plea. Appellant’s displeasure with the title of his
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conviction does not render his plea unknowing, involuntary, or unintelligent.
Timchak, supra. Consequently, plea counsel cannot be held ineffective for
failing to raise a meritless issue. Commonwealth v. Montalvo, 204 A.3d
274, 286 (Pa. 2019). Accordingly, Appellant’s claim of ineffectiveness, based
upon the failure to file a motion to withdraw a guilty plea, is meritless.
Finally, after an independent review of the record, we find no
meritorious issues that have been preserved for our review. Accordingly, we
agree with counsel that Appellant’s PCRA petition is meritless, grant counsel’s
petition to withdraw, and affirm the PCRA court’s order dismissing Appellant’s
PCRA petition.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2022
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