J-S19025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT MERK
Appellant No. 2337 EDA 2014
Appeal from the PCRA Order July 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001517-2009
CP-51-CR-0015427-2009
BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 07, 2015
Appellant Robert Merk appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his petition
filed for relief pursuant to the Post Conviction Relief Act (“PCRA”). 1 We
affirm.
The relevant facts and procedural history of this appeal are as follows.
On January 26, 2009, at approximately 3:00 a.m., Appellant entered a
Wawa store, approached the cashier, and directed him to give Appellant all
of the money in the register. Appellant told the cashier he had a gun
pointed at him, and the cashier gave him the contents of the register, about
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1
42 Pa.C.S. §§ 9541-9546.
J-S19025-15
two hundred dollars. After the cashier handed him the money, Appellant
demanded a carton of Kool cigarettes, which the cashier also gave him.
Appellant then got into a dark-colored Chevy pick-up truck. The Wawa
manager called 9-1-1, and Officer Buckman responded to the location and
apprehended Appellant in his vehicle.
On October 7, 2009, at approximately 7:00 a.m., Appellant entered a
7-11 store, approached the cashier, and demanded the cashier give him the
contents of the register. The cashier told Appellant that he was standing
next to a police officer, and Appellant fled the store. Officer Mather followed
Appellant and watched him get into a Chevy Lumina. Officer Mather wrote
down the license plate number, and discovered the vehicle was registered to
Appellant’s home. Officers later apprehended Appellant.
Several witnesses identified Appellant shortly after each incident.
Wawa video surveillance captured the January 26, 2009 event, and
Appellant admitted to the above facts during Appellant’s guilty plea and
sentencing. See N.T., 3/27/12, at 13-19.
On March 27, 2012, Appellant entered a non-negotiated guilty plea to
two counts of both robbery and possessing an instrument of crime (“PIC”)
for his combined offenses. The court sentenced Appellant to an aggregate
sentence of 12½-25 years’ incarceration. On November 20, 2012, Appellant
filed a timely pro se PCRA petition. The court appointed counsel, who filed a
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no-merit letter pursuant to Turner2/Finley3 with a petition to withdraw on
May 28, 2014. The court granted counsel’s petition and issued a Rule 907
notice of intent to dismiss the PCRA petition without a hearing. On June 26,
2014, Appellant filed a response to the Rule 907 notice. On July 10, 2014,
the court denied Appellant’s PCRA petition without a hearing. On August 4,
2014, Appellant filed a notice of appeal. The court did not order Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). On September 17, 2014, the court filed its Pa.R.A.P.
1925(a) opinion.4
Appellant raises the following issues for our review:
1. WHETHER PCRA COUNSEL WAS INEFFECTIVE FOR
FAILING TO PROPERLY REVIEW AND PRESENT
MERITORIOUS ISSUES, INCLUDING SPECIFICALLY THE
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL (“IATC”)
CLAIMS WITHOUT AN EVIDENTIARY HEARING FOR
[APPELLANT’S] TESTIMONY TO FULLY EXPLAIN WHAT
ISSUE HE TAKES WITH TRIAL/PLEA COUNSEL?
2. WHETHER TRIAL/PLEA COUNSEL PROVIDED DEFICIENT
PREPARATION FOR TRIAL PREJUDICING [APPELLANT] BY
REFUSING TO PRESENT A VALID ALIBI DEFENSE?
3. WHETHER THE FAILURE TO NEGOTIATE A PLEA, ADVISE
[APPELLANT] TO ENTER AN OPEN GUILTY PLEA, AND
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
3
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).
4
Appellant filed a “Motion to Strike 1925(a) Opinion,” which the court denied
on October 28, 2014.
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OTHERWISE CHALLENGE IMPOSITION OF THE INSTANT
MANDATORY SENTENCE CONSTITUTED IATC?
4. WHETHER TRIAL/PLEA COUNSEL’S FAILURE TO FILE A
REQUESTED POST-SENTENCE MOTION TO WITHDRAW THE
PLEA CONSTITUTED IATC?
Our well-settled standard of review for orders denying PCRA relief is
“to determine whether the determination of the PCRA court is supported by
the evidence of record and is free of legal error. The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192
(Pa.Super.2013) (internal quotations and citations omitted).
To be eligible for PCRA relief, a petitioner must plead and prove, by a
preponderance of the evidence, that his conviction or sentence was the
result of one or more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or laws of the United
States 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.
(ii) 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.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement
caused the petitioner to plead guilty and the petitioner
is innocent.
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(iv) The improper obstruction by government officials
of the petitioner's right of appeal where a meritorious
appealable issue existed and was properly preserved in
the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of
exculpatory evidence that has subsequently become
available and would have changed the outcome of the
trial if it had been introduced.
(vii) The imposition of a sentence greater than the
lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S. § 9543(a)(2).
In all four issues on appeal, Appellant argues that ineffective
assistance of counsel entitles him to a new trial. We disagree.
This Court follows the Pierce5 test adopted by our Supreme Court to
review claims of ineffective assistance of counsel:
When a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the
evidence that his conviction or sentence 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. We have
interpreted this provision in the PCRA to mean that the
petitioner must show: (1) that his claim of counsel’s
ineffectiveness has merit; (2) that counsel had no
reasonable strategic basis for his action or inaction; and
(3) that the error of counsel prejudiced the petitioner-i.e.,
that there is a reasonable probability that, but for the error
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5
Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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of counsel, the outcome of the proceeding would have
been different. We presume that counsel is effective, and
it is the burden of Appellant to show otherwise.
Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal
denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,
164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). The
petitioner bears the burden of proving all three prongs of this test.
Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an
appellant fails to prove by a preponderance of the evidence any of the
Pierce prongs, the Court need not address the remaining prongs of the
test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009),
appeal denied, 990 A.2d 727 (2010) (citation omitted).
Appellant fails to prove any prongs of the Pierce test for his
ineffective assistance of counsel claims. For purposes of disposition, we will
address Appellant’s third issue first. In his third issue, Appellant argues trial
counsel was ineffective for advising him to enter an open guilty plea.
Further, he alleges his guilty plea was involuntary because he did not know
that his sentences could be imposed consecutively. Appellant claims his
involuntary guilty plea has resulted in manifest injustice, which entitles him
to a new trial. We disagree.
“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.
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Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v.
Allen, 557 Pa. 135, 732 A.2d 582 (1999)). Whether a plea was voluntary
“depends on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.” Commonwealth v. Lynch, 820
A.2d 728, 733 (Pa.Super.2003), appeal denied, 835 A.2d 709 (Pa.2003)
(quoting Hickman, 799 A.2d at 141).
“[T]he 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. Willis, 68 A.3d 997, 1001 (Pa.Super.2013)
(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.
2010) (alterations in original)). A guilty plea colloquy must “affirmatively
demonstrate the defendant understood what the plea connoted and its
consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d
497, 501 (Pa.Super.1998)). After a defendant enters a guilty plea, “it is
presumed that he was aware of what he was doing, and the burden of
proving involuntariness is upon him.” Id. (quoting Commonwealth v.
Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).
Whether a defendant is competent to plead guilty “requires a finding
that the defendant comprehends the crime for which he stands accused, is
able to cooperate with his counsel in forming a rational defense, and has a
rational and factual understanding of the proceedings against him.” Willis,
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68 A.3d at 1002 (citing Commonwealth v. Turetsky, 925 A.2d 876
(Pa.Super.2007)). “[T]he mere fact [a defendant] was taking prescribed
psychotropic medication at the time of [a] plea does not, of itself, result in
the conclusion he was unable to enter a knowing, voluntary, and intelligent
guilty plea.” Id., at 1009.
Here, the court conducted a thorough colloquy before Appellant
entered his guilty plea. See N.T., at 3-12. Appellant was competent to
enter his plea and stated that the only medication he was taking, Strattera,
for depression, did not affect his understanding of the proceedings. The
court explained to Appellant that he could go to jail for up to sixty years and
that he did not have to plead guilty. Appellant demonstrated that he
entered the plea with a full understanding of what it connoted and its
consequences. See Willis, supra. Based on Appellant’s responses to its
questions, the court was satisfied that Appellant entered the guilty plea
knowingly, intelligently and voluntarily. Further, given the eyewitnesses to
the crimes and the video surveillance of Appellant, it was in the range of
competence of a criminal attorney to suggest Appellant enter into an open
guilty plea. See Lynch, supra. Thus, Appellant’s guilty plea was not
unlawfully induced, and his claim of ineffectiveness lacks merit.
In his second issue, Appellant argues trial counsel was ineffective for
failing to present a valid alibi defense. Appellant claims his wife was able
and willing to testify that she was with him at a different location during the
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time the crimes were committed. Given the eyewitness testimony, the video
surveillance, and Appellant’s guilty plea, there was no basis to present an
alibi defense. Accordingly, this claim of ineffectiveness lacks merit.
In his fourth issue, Appellant claims his counsel was ineffective for
failing to file post-sentence motions to withdraw the guilty plea.
The standard for withdrawal of a guilty plea after the imposition of
sentence is much higher than the standard applicable to a pre-sentence
motion to withdraw. Commonwealth v. Byrne, 833 A.2d 729, 737
(Pa.Super.2003). A defendant must demonstrate that manifest injustice
would result if the court were to deny his post-sentence motion to withdraw
the plea. Id. “Manifest injustice may be established if the plea was not
tendered knowingly, intelligently, and voluntarily.” Commonwealth v.
Hodges, 789 A.2d 764, 765 (Pa.Super.2002); see also Pa.R.Crim.P.
590(A)(3). “[D]isappointment by a defendant in the sentence actually
imposed does not represent manifest injustice.” Byrne, 833 A.2d at 737
(citation omitted); see also Commonwealth v. Moser, 921 A.2d 526, 528-
529 (Pa.Super.2007) (“The law does not require that appellant be pleased
with the outcome of his decision to enter a plea of guilty: All that is required
is that [appellant’s] decision to plead be knowingly, voluntarily and
intelligently made.”).
Here, Appellant entered his guilty plea intelligently, knowingly, and
voluntarily. Appellant’s disappointment in his sentence does not represent
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manifest injustice. See Byrne, supra. If Appellant had filed a post-
sentence motion to withdraw his guilty plea, he would not have been able to
demonstrate manifest injustice, and the court would have denied the
motion. Thus, Appellant suffered no prejudice from his counsel’s failure to
file a post-sentence motion to withdraw the guilty plea. See Pierce, supra;
see also Commonwealth v. Edwards, 612 A.2d 1077, 1079-80
(Pa.Super.1992), appeal denied, 625 A.2d 1191 (Pa.1993) (dismissing
appellant’s ineffective assistance of counsel claim because appellant could
not show prejudice for counsel failing to file post-sentence motions to
withdraw guilty plea when guilty plea was voluntary and knowing).
In Appellant’s remaining issue, the first issue in his brief, he argues
PCRA counsel was ineffective for failing to present meritorious issues,
specifically the ineffectiveness of trial counsel. Because we have determined
trial counsel was not ineffective, this issue lacks merit. The determination of
the PCRA court is supported by the evidence of record and is free of legal
error. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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