Com. v. Diaz, P.

• Court: Superior Court of Pennsylvania
• Decided: July 9, 2018
• Docket: 1668 EDA 2017
• Status: Unpublished

Opinion

J-S03022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PEDRO DIAZ : : Appellant : No. 1668 EDA 2017

Appeal from the PCRA Order April 20, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006819-2014

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.

MEMORANDUM BY PANELLA, J. FILED JULY 09, 2018

Pedro Diaz appeals from the order entered in the Philadelphia County

Court of Common Pleas, denying him relief pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Briefly, Appellant pled guilty to murder in the third degree, robbery, and

carrying a firearm on a public street in Philadelphia. The court accepted his

plea, and sentenced him to an aggregate 25-50 years’ incarceration. Appellant

did not file any post-sentence motions, or a direct appeal.

Instead, Appellant timely filed his first PCRA petition. The court

appointed counsel, who filed an amended petition. The PCRA court declined to

hold a hearing, and denied Appellant’s petition as meritless. On appeal,

Appellant seeks remand for an evidentiary hearing, in order to establish that

his guilty plea was unknowingly and involuntarily entered.

____________________________________ * Former Justice specially assigned to the Superior Court. J-S03022-18

This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). A

PCRA court may decline to hold a hearing on the petition if the court

determines that the petitioner’s claims are patently frivolous and are without

a trace of support either in the record or from other evidence. See

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).

“Claims challenging the effectiveness of [plea] counsel’s stewardship

during a guilty plea are cognizable under 42 Pa.C.S.A. § 9543(a)(2)(ii).”

Commonwealth v. Lee, 820 A.2d 1285, 1287 (Pa. 2003) (citation omitted).

We review allegations of counsel's ineffectiveness in connection with a guilty

plea as follows:

The standard for post-sentence withdrawal of guilty pleas dovetails with the arguable merit/prejudice requirements for relief based on a claim of ineffective assistance of plea counsel … under which the defendant must show that counsel’s deficient stewardship resulted in a manifest injustice, for example, by facilitating entry of an unknowing, involuntary, or unintelligent plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (en

banc) (citations omitted). “This standard is equivalent to the ‘manifest

injustice’ standard applicable to all post-sentence motions to withdraw a guilty

plea.” Id. (citation omitted). “To succeed in showing prejudice, the defendant

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must show that it is reasonably probable that, but for counsel’s errors, he

would not have pleaded guilty and would have gone to trial.” Commonwealth

v. Hickman, 799 A. 2d 136, 141 (Pa. Super. 2002) (citation omitted).

A defendant challenging his plea counsel’s stewardship “is bound by the

statements which he makes during his plea colloquy.” Commonwealth v.

Barnes, 687 A.2d 1163, 1167 (Pa. Super. 1996) (citation omitted). As a

result, a defendant “may not later assert grounds for withdrawing the plea

which contradict the statements he made at his plea colloquy.”

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

(citation omitted).

Appellant argues plea counsel was ineffective, based on his alleged

failure to visit Appellant or review the facts of Appellant’s case with him.

Specifically, Appellant alleges—in his scant 1½ pages of argument—that

counsel was not ready for trial, and Appellant “rightfully felt that he had no

choice but to plead guilty.” Appellant’s Brief, page 7. 1 The record flatly belies

this assertion.

Appellant signed a four-page guilty plea colloquy. See Guilty Plea

Colloquy, filed 1/7/15, at 1-4. In it, Appellant asserted he understood his right

to a trial, his lawyer informed him of the elements of each crime, and he pled

guilty because he had committed the named crimes. See id., at 1-3. Further,

the colloquy asked if Appellant was satisfied with his lawyer’s advice and

____________________________________________

1 David Rudenstein, Esquire, represents Appellant on appeal.

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service, and if his lawyer spent enough time on his case. See id., at 3.

Appellant signed this document and affirmed its contents. See id.

At the guilty plea hearing, the Commonwealth described the evidence it

had planned to introduce at trial. The Commonwealth asserted it would have

called five witnesses, two of whom would have testified they actually saw

Appellant shoot the victim in the forehead. See N.T. Guilty Plea Hearing,

1/7/15, at 15. The remaining three witnesses would have testified that

Appellant told them he committed the crime after the fact. See id. The

Commonwealth also indicated it would have introduced Appellant’s cell phone,

which was recovered from the crime scene, and a certificate of nonlicensure

to show Appellant did not have a license to carry a firearm. See id., at 15-16.

Appellant then agreed with the facts as stated by the Commonwealth. See

id., at 17.

Additionally, Appellant’s plea counsel conducted an oral colloquy, where

counsel reiterated much of the information in the written colloquy. During the

colloquy, Appellant agreed he was pleading guilty to third-degree murder,

robbery, and carrying a firearm in public because he was, in fact, guilty of

those crimes. See id., at 5-8. Appellant also affirmed he was satisfied with

counsel’s advice and representation. See id., at 8.

Appellant may not assert reasons for withdrawing his plea that

contradict statements he made during his plea hearing. See Yeomans, 24

A.3d at 1074. Appellant’s current, bald assertions that he had “no choice” but

to plead guilty are unsupported by the record. The PCRA court was not

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required to hold an evidentiary hearing on these meritless claims. See

Jordan, 772 A.2d at 1014. Accordingly, we affirm the PCRA court’s order

denying Appellant relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/9/18

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