Com. v. Myers, K.

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2021
• Docket: 403 EDA 2020
• Status: Unpublished

Opinion

J-A23030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KARL K. MYERS : : Appellant : No. 403 EDA 2020

Appeal from the PCRA Order Entered December 31, 2019 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0004755-2011

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 9, 2021

Appellant Karl K. Myers appeals from the order denying, after an

evidentiary hearing, his second petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant claims that the court erred in

denying his petition seeking relief based upon evidence that his trial counsel

failed to inform him of a plea offer. We affirm.

This Court previously set forth the facts of the instant matter as follows:

The facts leading to Appellant’s conviction are not germane to this appeal. On November 7, 2013, the trial court sentenced Appellant to an aggregate term of 14-30 years’ incarceration, following his conviction for

one count each of corrupt organization, 18 Pa.C.S. § 911(b)(3); dealing in proceeds of unlawful activities, 18 Pa.C.S. § 5111(a)(1); conspiracy, 18 Pa.C.S. § 903(a); three counts of criminal use of a

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* Retired Senior Judge assigned to the Superior Court. J-A23030-20

communication facility, 18 Pa.C.S. § 7512(a); and four counts each of possession of cocaine, 35 P.S. § 780-113(a)(16); and possession of cocaine with the intent to deliver[,] 35 P.S. § 780-113(a)(30).

Commonwealth v. Myers, No. 3243 EDA 2013, unpublished memorandum at 1 n.1 (Pa. Super. filed December 23, 2014). This Court affirmed Appellant’s conviction, and our Supreme Court declined further review. See Commonwealth v. Myers, 116 A.3d 697 (Pa. Super. 2014) (unpublished memorandum), appeal denied, 114 A.3d 1039 (Pa. 2015).

Appellant filed a timely, counseled PCRA petition, his first, on September 21, 2015.1 Therein, Appellant raised claims asserting the ineffectiveness of trial counsel. The PCRA court denied his petition. We affirmed, and our Supreme Court denied further review. Commonwealth v. Myers, 2017 WL 591216 (Pa. Super. 2017), appeal denied, 170 A.3d 1036 (Pa. 2017).

Appellant filed the current, facially untimely, pro se PCRA petition on July 3, 2018. The PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907 on July 9, 2018. Appellant filed a timely response thereto on July 19, 2018. On July 23, 2018, the PCRA court dismissed the petition. Appellant filed a timely notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued its Rule 1925(a) opinion on October 22, 2018.

Commonwealth v. Myers, 249 EDA 2018, 2019 WL 1749045, at *1 (Pa.

Super. filed Apr. 16, 2019) (unpublished mem.).

Appellant asserted that he met the newly-discovered facts exception

because

on or about May 12, 2018, he received a letter dated May 9, 2018, from A. Charles Peruto, Jr. Attorney Peruto at this point was the ____________________________________________

1 An evidentiary hearing regarding Appellant’s first petition was heard on February 5, 2016, regarding whether Attorney DeSipio was ineffective due to a conflict of interest. See N.T., 2/5/16, at 1-20. At that hearing, Attorney DeSipio and Assistant District Attorney Jason Whalley testified regarding their plea negotiations. See id. at 15-16, 21-22.

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former employer of Mr. De[S]ipio[, Appellant’s trial attorney,] and [Gina] Capuano. Attorney Peruto had been the trial attorney for one of Appellant’s co-defendants, Anthony Dennis, who pled guilty three days before trial and received a 10-20 year sentence. The letter provided to Appellant [stated that] the previously unknown fact that a second plea offer for 4-8 years[’] incarceration had been extended by the Commonwealth prior to Appellant[’]s trial and that this offer was not communicated to him by Mr. DeSipio.

Id. at * 2 (citation and omitted). Following an examination of the relevant

law, this Court concluded that Appellant satisfied the newly-discovered facts

exception to PCRA’s time bar. Id. at * 3. Furthermore, this Court remanded

the matter for the PCRA court to hold an evidentiary hearing “to address the

merits of Appellant’s claim that his trial attorney provided ineffective

assistance of counsel by failing to convey a plea offer made by the

Commonwealth.” Id. at * 4.

The PCRA court held an evidentiary hearing on September 27, 2019,

and October 21, 2019. At the September 27, 2019 hearing, Appellant testified

on his own behalf.2 The Commonwealth presented the testimony of Assistant

2 Appellant sought to introduce the testimony of Gina Amoriello, also known as Gina Capuano, who was Appellant’s counsel for his direct appeal and first PCRA petition; the Commonwealth moved to preclude her testimony due to the fact that Appellant had not included a signed certification as to her testimony in his PCRA petition pursuant to 42 Pa.C.S. § 9545(d)(1). N.T., 9/27/19, at 4-7. The court stated that it would preclude Ms. Amoriello’s testimony until the next hearing, when a certification could be filed. Id. at 12-13. Ultimately, Ms. Amoriello/Capuano did not testify. Attorney DeSipio was unavailable, having moved to Kentucky, left the practice of law, and contracted some form of terminal illness. Id. at 13-14. However, Attorney DeSipio had testified previously at the February 5, 2016 PCRA proceedings, and his prior testimony was incorporated by stipulation. Id. at 14.

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District Attorney Jason Whalley (ADA Whalley). At the October 21, 2019

hearing, Appellant presented the testimony of Attorney Peruto.

Appellant testified that he was represented by Attorney DeSipio at trial,

and that he had prior drug cases in which he had entered guilty pleas. N.T.,

9/27/19, at 15. With regard to his 2011 arrest, Appellant testified that he

was told that if he cooperated, his bail would be lowered; after being released

on bail, Attorney DeSipio told Appellant about an offer of three to six years of

incarceration so long as Appellant cooperated against his co-defendants and

testified at trial. Id. at 16-17. Appellant informed Mr. DeSipio that he was

unwilling to testify against his friends. Id. at 17. No further offers were

conveyed to Appellant between 2011 and the time of trial in 2013. Id.

Appellant’s PCRA testimony was that Attorney DeSipio did not inform him of

any other offers. Appellant testified that, if he had been informed of the four

to eight year offer that Attorney Peruto described, he would have entered a

guilty plea, because he had taken responsibility for his actions and would not

have had to testify against his friends. Id. at 18.

ADA Whalley testified that between the years of 2011 and 2013, he was

employed by the Montgomery County District Attorney’s Office and assigned

to the Drug and Narcotics Unit. Id. at 19. ADA Whalley testified that he was

the lead prosecutor assigned to the case, and was heavily involved in the

investigation of Appellant and his co-defendants’ involvement in a large-scale

corrupt organization that encompassed several counties in Southeastern

Pennsylvania. Id. at 19-20. ADA Whalley also prepared the case for trial,

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knowing the role of each defendant and the crimes they had committed, and

either making or possessing knowledge of all plea offers extended in the case.

Id. at 21. He was the lead prosecutor at the jury trial of Appellant and his

co-defendants which occurred in January 2013. Id.

ADA Whalley testified that he never extended Appellant a four to eight

year offer given his large role in the organization; the amount of cocaine that

he had distributed; and the mandatory minimums at issue. Id. at 21-22. ADA

Whalley testified that the offer made to Appellant, without his testimony or

cooperation, was seven years to fourteen years as a minimum. Id. at 23. On

the morning of trial, Attorney DeSipio requested an offer of four to eight years,

but ADA Whalley “unequivocally said no, we would not entertain that nor offer

it.” Id.

ADA Whalley characterized Attorney Peruto’s involvement in the trial as

“peripherally involved at best.” Id. at 24. ADA Whalley testified that although

he did not recall an offer being extended, that Peruto was not present during

any meetings with the district attorney’s office, Attorney DeSipio, and

Appellant. Id. at 24-27. ADA Whalley also denied making an offer of three

to six years of incarceration with potential cooperation; he explained that he

would have gone over the guidelines as to what Appellant could expect in an

open plea. Id. at 27. Specifically, ADA Whalley noted that, at the time, the

mandatory minimum for possession with intent to deliver cocaine was seven

to fourteen years of incarceration, and Appellant’s own guideline sentence was

seventy-two months or six years. Id. at 27, 49-50. Additionally, ADA Whalley

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stated that he did not recall making any offer contingent upon appellant’s

testimony, but “that could have happened earlier on. As I said, co-counsel in

the case was Assistant District Attorney Lupinacci . . .” Id.

On cross-examination, ADA Whalley was questioned concerning his

testimony at the PCRA hearing in 2016, when he testified that three to six

years would have been a reasonable offer, but that the offer made, without

cooperation, was seven to fourteen years. Id. at 30, 34. At the 2016 hearing,

ADA Whalley testified that he did not recall making any offer contingent upon

Appellant’s testimony. Id. at 30-31.

Attorney DeSipio’s prior testimony was incorporated by stipulation. At

the February 5, 2016 evidentiary hearing, Attorney DeSipio testified that

Appellant retained him in June 2011 despite the fact that two other attorneys

in the office were representing Appellant’s co-defendants. N.T., 2/5/16, at 6-

7. Attorney DeSipio testified that he met with Appellant to discuss an offer

the Commonwealth made, which he described as three to six years of

incarceration with Appellant’s cooperation. Id. at 8-9. Attorney DeSipio

stated that he found out the morning of trial that Anthony Dennis, Appellant’s

co-defendant, was pleading guilty, and that had he known, he would have

advised Appellant to enter a guilty plea. Id. at 10.

Attorney DeSipio stated that the initial offer may have been seven to

fourteen years, but the offer he remembered was three to six years of

incarceration. Id. at 15-16. Attorney DeSipio stated that he did not recall if

there was a plea offer without cooperation, but that if Appellant had entered

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an open guilty plea, the mandatory minimum would have been seven years to

fourteen years. Id. at 18-19.

Attorney Peruto testified that Attorney DeSipio was employed by his law

firm in 2009 and was still employed by his law firm at the time of trial in 2013.

See N.T., 10/21/19, at 4. Attorney DeSipio represented Appellant at that

time, and Attorney Peruto represented one of Appellant’s co-defendants,

Anthony Dennis. Id. at 4-5.

Attorney Peruto testified that he wrote to Appellant on May 9, 2018. In

the letter, he wrote that Attorney DeSipio had told him that the

Commonwealth had made an offer of four to eight years of incarceration, and

that Attorney DeSipio had not advised Appellant to take the offer. Id. at 9,

12. Attorney Peruto testified that Attorney DeSipio insisted on taking the case

to trial “because he thought he was going to win it.” Id. at 12. Attorney

Peruto testified that, at the time the trial was approaching, Attorney DeSipio

was abusing crystal methamphetamine, and that this drug use was affecting

his judgment. Id. at 14-16.

Attorney Peruto admitted that he was not present when ADA Whalley

communicated offers to Attorney DeSipio. Id. at 21. Following this Court’s

remand of the case to the trial court, Attorney Peruto wrote a letter to

Appellant, congratulating him and advising Appellant to seek court-appointed

counsel and to contact Attorney Peruto for witness testimony. Id. at 27.

Attorney Peruto admitted that his affidavit did not indicate that ADA Whalley

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informed him of the offer, nor did his letter to Appellant following the remand.

Id. at 28-29.

At the evidentiary hearing, Attorney Peruto attempted to testify that

ADA Whalley directly informed him of the four to eight year offer. Id. at 10-

11. The Commonwealth objected to the statement as hearsay. Id. Appellant

argued that this was an opposing party’s statement, but the court sustained

the objection. Id. On cross-examination, Attorney Peruto responded to

questions regarding the extension of the four to eight year offer by stating,

“The answer to that question is I do have an idea because [ADA Whalley] told

me it was four to eight and so did [Attorney DeSipio].”3 Id. at 21.

On January 2, 2020, the PCRA court denied Appellant’s PCRA petition.

Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P. 1925(b)

statement. The PCRA court prepared a Rule 1925(a) opinion admitting that it

3 On cross-examination, the following was elicited:

[The Commonwealth]: But you weren’t there when Jason Whalley allegedly communicated this to Mr. De[S]ipio, right?

[Attorney Peruto]: He told me it was. Rich told me it was. ...

[The Commonwealth]: Okay. You would have no idea if that offer had actually been extended, right?

[Attorney Peruto]: The answer to your question is that I do have an idea because Jason [Whalley] told me that it was four to eight and so did Rich [DeSipio].

N.T., 10/21/19, at 21-22. Despite the Commonwealth’s earlier hearsay objections, neither party objected to Attorney Peruto’s responses.

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had erred in excluding Attorney Peruto’s testimony regarding the offer, but

that the exclusion was harmless error due to the fact that Attorney Peruto

stated that ADA Whalley directly informed him of the offer while on cross-

examination. Therefore, because there was credible testimony that the offer

had not been extended, the PCRA court concluded that Appellant was not

entitled to PCRA relief.

On appeal, Appellant raises the following issues for our review:

1. Whether the PCRA [c]ourt [erred] in sustaining the Commonwealth’s hearsay objection to Attorney Charles Peruto’s testimony that ADA Jason Whalley said he had extended a 4-8 year offer to [Appellant].

2. Whether the PCRA [c]ourt [erred] in denying [Appellant’s] PCRA [p]etition “based upon the credible testimony of the Commonwealth witness, [ADA] Jason Whalley” when this credibility determination is not supported by the record.

See Appellant’s Brief at 2.

Appellant first argues that the PCRA court erred in sustaining the

Commonwealth’s hearsay objection during the direct examination of Attorney

Peruto. Appellant contends that ADA Whalley’s statement to Attorney Peruto

constituted an opposing party’s statement and fell within the exception

provided by Pa.R.E. 803(25). See Appellant’s Brief at 16. Additionally,

Appellant contends that the exclusion of Attorney Peruto’s testimony during

direct examination was not harmless, because he was denied the opportunity

to explore the testimony further and elicit details from Attorney Peruto

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regarding his meeting with ADA Whalley. Id. at 18-19. Appellant seeks a

remand for a new evidentiary hearing.

In response, the Commonwealth argues that the error was de minimis,

because ADA Whalley unequivocally denied making a four to eight year offer,

and that ADA Whalley’s testimony was corroborated by Mr. DeSipio’s own

2016 testimony that he did not discuss the case with Mr. Peruto and did not

recall an offer based on Appellant’s cooperation. See Commonwealth Brief at

15-16. The Commonwealth contends that ADA Whalley’s 2016 testimony does

not materially contradict his 2019 testimony. Id. at 17. Further, the

Commonwealth contends that any error of the PCRA court was harmless and

cumulative in excluding Attorney Peruto’s testimony on direct examination,

because, on cross-examination Attorney Peruto testified that ADA Whalley told

him directly of the offer, and submitted a written affidavit alleging the same.

Id. The Commonwealth continues that Peruto’s testimony was contradicted

by the testimony of ADA Whalley and Attorney DeSipio. Id.

The PCRA court acknowledged that it excluded Attorney Peruto’s

testimony in error, but opined that the error was harmless, reasoning:

In this case, there was no prejudice to [Appellant] and the evidence that was improperly excluded was duplicative of evidence that had been admitted. First, [Attorney] Peruto conveyed the same information on cross-examination wherein he told this [c]ourt he heard about the 4-to-8 year offer directly from [Attorney] Whalley. Specifically, upon cross-examination questioning he was asked whether he had no idea [sic] if that if that 4-to-8 year offer had actually been extended, to which he answered, “The answer to that question is I do have an idea because Jason told me it was four to eight and so did Rich.”

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Second, this testimony was given little weight because it is contradicted not only by [Attorney] Whalley’s credible testimony at both the 2016 and 2019 hearings, but also based upon the testimony of [Attorney] DeSipio, the only other party who was directly involved in this case, including any plea negotiations. Therefore, [Appellant] was not prejudiced by the improper exclusion of this evidence.

PCRA Ct. Op., 3/4/20, at 22 (record citations omitted).

Our review of the denial of a PCRA petition is limited to the examination

of “whether the PCRA court’s determination is supported by the record and

free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014) (quotation marks and citation omitted). “A PCRA court passes

on witness credibility at PCRA hearings, and its credibility determinations

should be provided great deference by reviewing courts.” Commonwealth

v. Johnson, 966 A.2d 523, 539 (Pa. 2009) (citations omitted). “The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.

2014) (citation omitted). We review “the PCRA court’s legal conclusions de

novo.” See Miller, 102 A.3d at 992 (citation omitted).

We presume that the petitioner’s counsel was effective.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish

a claim of ineffectiveness, a petitioner “must show, by a preponderance of the

evidence, 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.” Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). A

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petitioner must establish (1) that the underlying claim has arguable merit; (2)

that counsel lacked a reasonable basis for his action or inaction; and (3) but

for the act or omission in question, the outcome of the proceedings would

have been different. Commonwealth v. Washington, 927 A.2d 586, 594

(Pa. 2007). “A claim of ineffectiveness may be denied by a showing that the

petitioner’s evidence fails to meet any of these prongs.” Id. (citation omitted).

When a PCRA petitioner contends that a plea offer was not conveyed to

him by counsel, the petitioner has the burden of proving that: “(1) a [plea

offer] was made; (2) trial counsel failed to inform him of such [an] offer; (3)

trial counsel had no reasonable basis for failing to inform him of the plea offer;

and (4) he was prejudiced thereby.” Commonwealth v. Chazin, 873 A.2d

732, 735 (Pa. Super. 2005) (citation omitted). “Where the PCRA court’s

determination of credibility is supported by the record, [this Court] will not

disturb it on appeal.” Commonwealth v. Marinez, 777 A.2d 1121, 1124

(Pa. Super. 2001) (citation omitted).

With regard to Appellant’s further claims

[t]he admission of evidence is solely within the discretion of the trial court, and a trial court’s evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

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Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation

marks and citations omitted). With regard to evidentiary rulings, any error is

harmless4 where:

(1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict.

Commonwealth v. Yockey, 158 A.3d 1246, 1254 (Pa. Super. 2017) (quoting

Commonwealth v. Chmiel, 889 A.2d 501, 521, 528 (Pa. 2005)) (quotation

marks omitted).

As the PCRA court admits that it excluded the testimony in error, we

need not examine whether or not the testimony was inadmissible hearsay.

Rather, we must determine whether the error was harmless. Here, Appellant

contends that the exclusion of evidence resulted in a one-sided record and the

court finding ADA Whalley’s unchallenged testimony credible. In support of

this contention, Appellant points to Commonwealth v. Greene, 366 A.2d

4 We note that the harmless error standard generally applies to evidentiary rulings at criminal trials while the present case involves a PCRA hearing. However, all parties and the trial court refer to the harmless standard without further distinction.

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234 (Pa. 1976), where the Pennsylvania Supreme Court concluded that the

trial court had improperly excluded testimony from a defense witness that

would have corroborated the defendant’s theory of defense, i.e., that he had

been intending to illegally buy drugs rather than commit a murder. Greene,

366 A.2d at 237.

In Greene, the defendant was convicted of second-degree felony

murder. Id. at 235. At trial, he sought to introduce the testimony of a witness

who would have corroborated his testimony that the victim’s husband illegally

sold drugs without prescriptions, and had observed young men obtaining pills

without prescriptions, and had consulted with authorities for the purpose of

watching the store. Id. at 237. Our Supreme Court observed that

Although it was the jury’s prerogative to assess the credibility of the witness and the weight to be attributed to his testimony, the proffered testimony definitely was relevant to the proposition upon which the defense was building its case. The exclusion of this testimony, therefore, was improper. Commonwealth v. Bailey, [299 A.2d 298 (Pa. 1973)]; Commonwealth v. Collins, [290 A.2d 121 (Pa. 1972)].

In Bailey, supra, the trial court excluded testimony of two witnesses who had borrowed money from a money-lender named Robinson. We held that this was reversible error because the testimony would have supported Bailey’s version as to his own dealings with Robinson and his reason for going to his house. We find the instant case to be indistinguishable from the situations present in Bailey and Collins. An accused has a fundamental right to present defensive evidence so long as such evidence is relevant and not excluded by an established evidentiary rule.

Id. at 237 (some citations omitted).

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This case is distinguishable from Greene as the testimony proffered by

Attorney Peruto was in fact introduced in several forms, by his written

affidavit, which was introduced into evidence as Defendant’s Exhibit 3, as well

as his testimony, on cross-examination, that ADA Whalley had directly

informed him of the offer to appellant. See N.T., 10/21/19, at 21-22; see

also N.T., 10/21/19, Def. Ex. 3. Specifically, on cross examination he stated

that ADA Whalley “told me what the offer was to my face . . . [ADA Whalley]

told me it was four to eight and so did [Attorney DeSipio]” and “the answer to

your question is that I do have an idea because [ADA Whalley] told me that it

was four to eight and so did [Attorney DeSipio].” N.T., 10/21/19, at 21-22.

Attorney Peruto’s affidavit stated that he complained to ADA Whalley about

the offer to his own client, and was informed about offers to other defendants.

Id. at Def. Ex. 3. The affidavit further stated, “I am positive I learned at that

time the offer for [Appellant] was 4-8 years [sic] incarceration . . . because of

his record.” Id.

Based on our review, we agree with the PCRA court that while it erred

in sustaining the Commonwealth’s hearsay objection, the objected to

testimony was cumulative of Attorney Peruto’s other properly admitted

testimony, on cross-examination and in his affidavit, describing the four to

eight year plea offer and the circumstances under which Attorney Peruto

believed that the Commonwealth extended that offer to Appellant. Ultimately,

however, the PCRA court stated in its opinion that it did not afford the

testimony much weight, given that it was directly contradicted by Attorney

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DeSipio’s own testimony that the only offer he recalled was a three to six year

offer with cooperation and testimony. See PCRA Ct. Op., 3/4/20, at 22.

Additionally, the court found that Attorney Peruto’s testimony was directly

contradicted by the credible testimony of ADA Whalley. Id. Accordingly, no

relief is due.

Appellant’s second argument avers that the testimony of ADA Whalley

was not credible. See Appellant’s Brief at 23. Specifically, Appellant points

to ADA Whalley’s 2016 testimony that an offer based on Appellant’s

cooperation “could have happened early on,” because another ADA was also

assigned to the case, but later testified that such an offer was “something we

wouldn’t have done.” Id. at 23-24. Appellant additionally argued that ADA

Whalley’s prior testimony, namely, that he worked with another ADA on the

case and that a three to six year offer with cooperation was reasonable, was

inconsistent with his testimony at the hearing in 2019. Id. at 25-26.

Again, we note that “[a] PCRA court passes on witness credibility at

PCRA hearings, and its credibility determinations should be provided great

deference by reviewing courts.” Johnson, 966 A.2d at 539.

Here, a review of the record establishes that ADA Whalley’s 2019

testimony does not materially contradict his prior testimony. Initially, in 2016,

ADA Whalley was asked whether he remembered making an offer contingent

on the defendant testifying. He responded, “That could have happened early

on. As I said, co-counsel in the case was [ADA] Lupinacci. As I sit here, I

don’t remember, no.” N.T., 2/5/16, at 22. Similarly, though he conceded

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that a lower offer contingent upon cooperation “sound[ed] reasonable,” he

again stated he did not recall making a three to six year offer. Id. at 21-22.

In 2019, ADA Whalley testified that he would not have agreed to a specific

sentence in exchange for cooperation; “at that time, we would offer people

open pleas . . . we can go over the guidelines with them to determine what

they could be facing. But that was entirely up to the judge.” N.T., 9/27/19,

at 22-23. Unequivocally, ADA Whalley denied making a four to eight year

offer. Id. at 22-27, 54-55. Regardless, it is clear in 2016 and 2019 that ADA

Whalley testified that he did not make a four to eight year offer.

In sum, ADA Whalley testified that he had not made an offer, while

Attorney Peruto testified that there was an offer for four-to-eight years

without cooperation. However, Attorney Peruto admitted he was not present

when an offer was extended to Appellant. At the conclusion of the testimony,

the PCRA court made its credibility determination in favor of the

Commonwealth. Thus, because the PCRA court’s credibility determination is

supported by the record, we will not disturb it on appeal. See Johnson, 966

A.2d at 539; Marinez, 777 A.2d at 1124. Appellant has failed to establish

that his underlying claim is of arguable merit, he is not entitled to relief on the

claim. Thus, we affirm the order below.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/09/2021

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