J-S10014-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC M. LIVERING : : Appellant : No. 127 MDA 2025 :
Appeal from the PCRA Order Entered December 30, 2024 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001923-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC M. LIVERING : : Appellant : No. 128 MDA 2025 :
Appeal from the PCRA Order Entered December 30, 2024 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0002043-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC M. LIVERING : : Appellant : No. 129 MDA 2025 :
Appeal from the PCRA Order Entered December 30, 2024 J-S10014-26
In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0002069-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC M. LIVERING : : Appellant : No. 130 MDA 2025 :
Appeal from the PCRA Order Entered December 30, 2024 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000121-2019
BEFORE: DUBOW, J., BECK, J., and BENDER, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED: MAY 5, 2026
Appellant, Eric M. Livering, appeals pro se from the December 30, 2024
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46, as meritless. He challenges the stewardship
of plea counsel and asserts a Brady1 claim. After careful review, we affirm.
The relevant facts and procedural history are as follows. On November
8, 2019, while represented by Brian Diedrick, Esquire, Appellant entered a
guilty plea to nearly 200 charges arising from his sexual abuse of four minor
____________________________________________
1 Brady v. Maryland, 373 U.S. 83 (1963).
-2- J-S10014-26
girls, which he captured on video cameras hidden throughout his home.2
Appellant completed a written plea colloquy form prior to entering his plea and
at the plea hearing the trial court conducted a thorough and comprehensive
oral colloquy after which it accepted Appellant’s plea.
On February 5, 2020, the trial court sentenced Appellant to a term of
15 to 40 years of incarceration.3 Following a PCRA proceeding and the
reinstatement of his post-sentence and direct appeal rights, Appellant filed a
post-sentence motion challenging the discretionary aspects of his sentence.
The trial court denied the motion. Following Appellant’s direct appeal during
which Andrew Luch, Esquire, represented Appellant, this Court affirmed
Appellant’s judgment of sentence on May 3, 2024. See Commonwealth v.
Livering, 321 A.3d 926 (Pa. Super. 2024) (non-precedential decision).
Appellant did not seek further review of his judgment of sentence.
On August 2, 2024, Appellant pro se filed the instant PCRA petition
raising, among other claims, ineffective assistance of plea counsel. He argued
that he was unable to obtain his own medical records from his primary care
physician, Jeffrey A. Yocum, D.O., notwithstanding an order from the court,
and asserted that if Dr. Yocum had complied with the court’s order, those
records would have shown that he had been prescribed and had been taking ____________________________________________
2 In exchange for the plea, the Commonwealth agreed to a minimum sentence
of 15 years of incarceration. The parties agreed that the trial court would determine the maximum sentence.
3 On November 5, 2021, the trial court determined that Appellant is a sexually
violent predator.
-3- J-S10014-26
Percocet “for at least the last 18 years straight, at an average amount of 100
pills per month,” implying that such long-term use affected his judgment at
the time he committed the crimes. Petition, 8/2/24, at 9 (unpaginated).
Appellant asserted that “either the [p]hysician or the Public Defender’s Officer
were the cause of these records vanishing as these were the only (2) people
who ever had physical possession of these records.” Id. at 10 (unpaginated).
Appellant further contended that, at some point later, he obtained 8 pages of
prescription records from pharmacies.
Appellant claimed that “d[ue] to his [d]efense evidence not being turned
over as requested,” plea counsel provided ineffective assistance by causing
him to enter a guilty plea “under duress.” Id. He claimed that when he
notified Attorney Luch, his prior PCRA counsel, that he had entered his plea
under duress, Attorney Luch informed him that his duress claim had no merit
because the prescription records were irrelevant and could not be used as a
defense. Id. at 10-11 (unpaginated). He alleged that because Lebanon
County employed each of his appointed counsel, they “refused to investigate,
develop[,] and present a viable defense as it relates to [Appellant’s]
p[re]scription medications and the adverse side effects.” Id. at 11.
-4- J-S10014-26
On August 13, 2024, the PCRA court appointed Brandy Grace Hoke,
Esquire, to represent Appellant.4 On September 3, 2024, the Commonwealth
filed a motion to dismiss Appellant’s petition.
On December 30, 2024, the PCRA judge, who also presided over
Appellant’s plea proceedings, held a hearing on the petition. At the
commencement of the hearing, Attorney Hoke explained that Appellant sought
to raise issues “regarding suppression issues, credibility of witnesses” and the
sufficiency and weight of the evidence. PCRA Hr’g, 12/30/24, at 4-5. She
represented that she did not believe that Appellant had “any issues that can
move forward” except “possibly . . . that his counsel wrongfully induced him
to plead [guilty].” Id. at 5. She then concluded that, based on her review of
the record, Appellant had entered his negotiated plea knowingly, intelligently,
and voluntarily. Id.
Appellant then testified that he believed his long-term use of Percocet
may have caused him to suffer brain damage and had impaired his decision-
making ability.5 Id. at 18. He testified, however, that he had never been
evaluated by a doctor to see if he had brain damage or any other side effects
from long-term Percocet use and noted his theory that any side-effects he
may have had from using Percocet “wasn’t a permanent reaction, it would be ____________________________________________
4 Attorney Hoke did not file an amended PCRA petition on Appellant’s behalf
or any pleading indicating that she believed Appellant’s proffered claims lacked merit.
5 Appellant and his counsel also referred to Appellant’s use of Oxycodone for
a period of at least 7 years.
-5- J-S10014-26
a reaction while under the intoxication.” Id. at 18, 23. When pressed by the
court, Appellant again conceded he had no evidence to support that Percocet
use affected him other than “evidence . . . that I was given by the psych
department here as far as what long[-]term use causes and the damages what
they’re telling me.” Id. at 24. Attorney Hoke added that “the psychologist []
said possibly this could be a thing. But . . . [Appellant] hasn’t had MRIs, CAT
scans, any actual testing by a neurologist, anything like that to verify that this
is in fact what condition he is in or when that would have started in relation
to the crime.” Id. at 25.
Appellant also acknowledged that he completed a written guilty plea
colloquy form and participated in an oral colloquy before entering his guilty
plea. Id. at 19-21. He claimed that he did not inform the court at that time
that he was pleading guilty under duress because he was “in a state of shock.”
Id. at 21.
Following the hearing, the PCRA court dismissed Appellant’s petition.
The PCRA court first found that Appellant had entered his plea knowingly,
intelligently, and voluntarily and observed that Appellant did not testify that
he was either “in a fog” or “under duress” when he entered his plea. Id. at
26. The court then noted that Appellant’s alleged inability to obtain his own
medical and prescription records was irrelevant because “the case law says
the fact that you were voluntarily taking medication does not get to come into
evidence in this case as a defense as to what you were alleged to have done.”
Id. at 26. The court further noted the absence of any evidence that
-6- J-S10014-26
Appellant’s prescription drug use caused Appellant “not to understand that
setting up three different cameras, two of which were in the bathroom to
videotape or record young women, underage women undressed.” Id. at 27.
The court also observed that Appellant “ha[sn’t] had anybody in here to say
that going into their rooms and having you touching your penis against their
mouth and face area and vagina area, your tongue to their vagina area was
caused by you taking this medicine.” Id. The PCRA court, thus, denied
Appellant’s petition as meritless. Id. at 29.
Appellant pro se filed a timely notice of appeal.
On February 14, 2025, counsel filed a motion with the PCRA court for
leave to withdraw as counsel, asserting that Appellant wished to proceed pro
se. On April 10, 2025, the PCRA court held a Grazier6 hearing at which
Appellant waived his right to counsel. The PCRA court, thus, permitted
Appellant to proceed pro se, granted counsel’s motion to withdraw, and re-
appointed Attorney Hoke to serve as stand-by counsel.
On June 30, 2025, Appellant filed a court-ordered Pa.R.A.P. 1925(b)
statement. The PCRA court filed a responsive opinion.
In his pro se brief to this Court, Appellant raises the following issues for
our review:
1. Whether the [PCRA] court erred and/or abused its discretion when it denied [] Appellant’s PCRA [p]etition[?]
6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-7- J-S10014-26
2. Whether the [PCRA] court erred and/or abused its discretion when it failed to issue [] Appellant a new trial after [] Appellant claimed “newly[-]discovered evidence” for PCRA purposes[?]
3. Whether the [PCRA] court erred and/or abused its discretion when it denied [] Appellant’s PCRA claim of layered ineffective assistance of counsel because [Appellant’s] prescribing doctor was a prestigious county official for the last 20+ years[?]
4. [Whether t]he [PCRA] court erred and/or abused its discretion when it showed judicial bias and misconduct against [Appellant?]
5. Whether the [PCRA] court erred and/or abused its discretion when it failed to grant [Appellant] a directed verdict because of the Commonwealth and/or Lebanon County official’s failure to turn over court[-]ordered evidence, which violated [] Appellant’s due process rights[?]
Appellant’s Brief at 4 (unnecessary capitalization omitted).7
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014)). “This Court grants great deference to the findings of the PCRA court
if the record contains any support for those findings.” Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010). “Further, the PCRA
court’s credibility determinations are binding on this Court, where there is
record support for those determinations.” Id.
7 Although Appellant has raised five questions in his statement of questions,
his brief contains only three sections of argument. We, therefore, address only those questions subsumed within the arguments Appellant has presented.
-8- J-S10014-26
To be eligible for relief under the PCRA, a petitioner must establish that
his conviction or sentence resulted from one or more of the enumerated errors
or defects found in 42 Pa.C.S. § 9543(a)(2): a constitutional violation;
ineffective assistance of counsel; an unlawfully induced plea; improper
obstruction by governmental officials; discovery of exculpatory evidence; an
illegal sentence has been imposed; or the tribunal conducting the proceeding
lacked jurisdiction. 42 Pa.C.S. §§ 9543(a)(2)(i)-(viii). In addition, a
petitioner must establish that the issues raised in the PCRA petition have not
been previously litigated or waived, and that “the failure to litigate the issue
prior to or during trial, during unitary review or on direct appeal could not
have been the result of any rational, strategic or tactical decision by counsel.”
Id. at § 9543(a)(3), (a)(4).
Appellant first argues that the PCRA court abused its discretion in failing
to order a new trial based on Appellant’s discovery of purported new evidence.
Appellant’s Br. at 21-24.
To warrant relief, after-discovered evidence must meet a four-prong
test: (1) the evidence could not have been obtained before the conclusion of
the trial by reasonable diligence; (2) the evidence is not merely corroborative
cumulative; (3) the evidence will not be used solely for purposes of
impeachment; and (4) the evidence is of such a nature and character that a
different outcome is likely. Commonwealth v. Small, 189 A.3d 961, 972
(Pa. 2018). In addition, “the proposed new evidence must also be producible
and admissible.” Id.
-9- J-S10014-26
Appellant contends that his newly-found prescription records, which only
he and not any of his court-appointed attorneys were able to obtain, showed
he was under the influence of narcotics when he committed his crimes, and
that his use of prescription narcotics caused him to commit the crimes.
Appellant’s Br. at 22. In other words, Appellant claims that the prescription
records offer him a defense to the charged crimes that was previously
unavailable to him. Id.
Specifically, Appellant asserts that he could not obtain these records
earlier because, after his plea counsel obtained only one prescription record,
counsel “refused to further investigate and refused to take any further action
to acquire the prescription records.” Id. at 23. He claims that counsel
“effectively abandoned” him as it related to acquiring the prescription records.
He states that the evidence is not corroborative or cumulative and he would
not have used it solely for purposes of impeachment. Id. at 23-24. Last, he
baldly claims that if the court ordered a new trial the jury would find him not
guilty because numerous jurisdictions have entered into settlement
agreements with the three primary distributors of opioids. Id.
Following our review, we conclude that the PCRA court properly rejected
this claim because, inter alia, Appellant’s prescription records would not have
been admissible at trial as a defense to the crimes charged. See
Commonwealth v. Bardo, 105 A.3d 678, 716 (Pa. 2014) (explaining that “a
defense of diminished capacity grounded in voluntary intoxication is a very
limited defense” which only acts to mitigate first-degree murder to third-
- 10 - J-S10014-26
degree murder); Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa.
2011) (“A defense of diminished capacity, whether grounded in mental defect
or voluntary intoxication, is an extremely limited defense available only to
those defendants who admit criminal liability but contest the degree of
culpability based upon an inability to formulate the specific intent to kill.”).
Appellant has not cited to any authority expanding the availability of the
defense of diminished capacity to defendants charged with child sexual abuse
offenses, and this Court is not aware of any. Accordingly, the after-discovered
evidence of Appellant’s years-long prescription drug use would not have been,
and would not now be, admissible at a trial as a defense to the crimes with
which the Commonwealth charged him.8 Appellant’s claim that the PCRA court
erred in declining to grant him a new trial on the basis of after-discovered
evidence, thus, fails.
Appellant next argues that his plea counsel was ineffective because, as
the Chief Public Defender of Lebanon County, he was biased in favor of
Appellant’s prescribing physician, Dr. Yocum, who served as the Lebanon
County Coroner, head of the county health department, lead medical
examiner, head medical facilitator for the county’s drug treatment facility, and
a primary care physician at the county’s correctional facility. Appellant’s Br.
at 26. He contends that because both his plea counsel and Dr. Yocum were ____________________________________________
8 Moreover, even if the prescription records were admissible in support of a
defense, Appellant conceded he had no evidence to demonstrate that his prescription drug use caused him brain damage or impaired his judgment at the time he committed the offenses. See N.T. PCRA Hr’g at 18, 23-25.
- 11 - J-S10014-26
“high ranking officials of Lebanon County who[se] paths have crossed many
times,” counsel “did not want the [c]ourt or the public to learn about Dr.
Yocum prescribing [Appellant] a[n] excessive amount of opioids for numerous
years” so counsel “acted to protect Dr. Yocum” by refusing to take any further
action after only obtaining one prescription record. Id. Appellant asserts that
counsel’s actions or inactions lacked a reasonable basis because he should
have either recused himself or zealously pursued additional prescription
records. Id. at 27. He contends that counsel’s inaction prejudiced him by
depriving him of a defense to the charges and ultimately “forced [him] to take
a plea deal.” Id.
We presume that “counsel has rendered effective assistance.”
Commonwealth v. Bickerstaff, 204 A.3d 988, 992 (Pa. Super. 2019). In
order to overcome the presumption that counsel has provided effective
assistance, a petitioner must establish that: (1) the underlying claim has
arguable merit; (2) counsel lacked a reasonable basis for his act or omission;
and (3) petitioner suffered actual prejudice. Commonwealth v. Bradley,
261 A.3d 381, 390 (Pa. 2021). A petitioner must plead and prove by a
preponderance of the evidence each of these elements. 42 Pa.C.S. § 9543(a).
A claim will be denied if the petitioner fails to meet any one of these prongs.
See Jarosz, 152 A.3d at 350.
Notably, “[c]ounsel cannot be deemed ineffective for failing to raise a
meritless claim.” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa.
2016) (citation omitted).
- 12 - J-S10014-26
A criminal defendant has the right to effective counsel during a plea process as well as during trial. 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 voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.
Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (citations
and quotation marks omitted); see also Commonwealth v. Kersteter, 877
A.2d 466, 468 (Pa. Super. 2005) (holding PCRA petitioner will be eligible to
withdraw his plea if he establishes ineffective assistance of counsel caused the
petitioner to enter an involuntary 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 doing otherwise.”
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (citation
omitted). “Where the record clearly demonstrates that a guilty plea colloquy
was conducted, during which it became evident that the defendant understood
the nature of the charges against him, the voluntariness of the plea is
established.” Id. (citation omitted).
Moreover, “[a] person who elects to plead guilty is bound by the
statements he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.” Commonwealth v. Pier, 182 A.3d 476, 480 (Pa.
Super. 2018) (citation omitted).
- 13 - J-S10014-26
Appellant’s claim—that his plea counsel was ineffective and biased
against him because he failed to act more zealously to obtain Appellant’s
prescription records from Dr. Yocum—fails to garner relief. As discussed
above, Appellant sought to obtain his prescription records to establish a
defense to the crimes charged. However, based on the nature of the charges
against him, a diminished capacity defense was not available to Appellant and
plea counsel acted reasonably in declining to pursue Appellant’s prescription
records for this purpose. Moreover, to the extent Appellant claims his plea
was involuntary as a result of counsel’s purported ineffectiveness, we observe
that in his oral guilty plea colloquy, Appellant confirmed, inter alia, that he
committed each of the offenses to which he was pleading guilty and
understood the terms of the plea agreement, that counsel had discussed and
explained the case to him in full, and that he was satisfied with the way
counsel had represented him.9 N.T.Plea Hr’g, 11/8/19, at 5-10. Appellant is
bound by the statements he made in open court and, because the guilty plea
colloquy as set forth in record clearly demonstrates that Appellant understood
the nature of the charges against him, we consider him to have entered his
plea voluntarily. Appellant’s ineffective assistance of counsel claim, thus, fails.
Appellant next argues that the PCRA court should have granted him a
directed verdict because Lebanon County officials and the Commonwealth
failed to turn over his prescription records, even though they had been court- ____________________________________________
9 In addition, Appellant did not file a motion to withdraw his guilty plea either
pre- or post-sentence.
- 14 - J-S10014-26
ordered to do so, in violation of his constitutional rights. Appellant’s Br. at 28.
Relying on Brady, Appellant contends that because Dr. Yocum was a Lebanon
County official, the doctor’s failure to produce Appellant’s prescription records
pursuant to the court’s order amounted to suppression of evidence by the
Commonwealth. Id. at 29-30. Appellant claims that this evidence was
material and favorable to him and would have resulted in a different outcome
because it would have formed the basis of his defense to the mens rea element
of the charges. Id. at 30-31.
In Brady, the U.S. Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87;
see also Pa.R.Crim.P. 573(B)(1)(a) (pertaining to the mandatory disclosure
of evidence favorable to the accused which is material to guilt or to
punishment of the accused, and is within the possession or control of the
prosecutor). “To establish a Brady violation, an appellant must prove three
elements: (1) the evidence at issue is favorable to the accused, either because
it is exculpatory or because it impeaches; (2) the evidence was suppressed
by the prosecution, either willfully or inadvertently; and (3) prejudice ensued.”
Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa. 2012). In order to
demonstrate prejudice, “the evidence suppressed must have been material to
guilt or punishment.” Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa.
2008).
- 15 - J-S10014-26
Evidence is material under Brady when there is a reasonable probability
that, had the evidence been disclosed, the result of the trial would have been
different. Id. at 1127. “The mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the
outcome of the trial does not establish materiality in the constitutional sense.”
Commonwealth v. McGill, 832 A.2d 1014, 1019 (Pa. 2003) (quoting U.S.
v. Agurs, 427 U.S. 97, 109–10 (1976)).
Appellant’s claim fails to satisfy the first two elements of Brady. First,
the evidence at issue—Appellant’s prescription records—is not exculpatory
and, as discussed above, cannot be used as the basis for a diminished capacity
defense, nor would the evidence be admissible for impeachment purposes.
Second, Appellant has provided no evidence that the Commonwealth
suppressed the evidence and no citation to any authority to support his theory
that Dr. Yocum’s failure to turn over his prescription records amounts to
suppression of evidence by the Commonwealth. Appellant is, thus, not
entitled to relief on this claim.
Having found each of Appellant’s arguments meritless, we affirm the
PCRA court’s order denying Appellant relief.
Order affirmed.
- 16 - J-S10014-26
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 05/05/2026
- 17 -