J-S48038-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILLIE LEROY SAVAGE : : Appellant : No. 3069 EDA 2023
Appeal from the PCRA Order Entered November 1, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004371-2017
BEFORE: STABILE, J., NICHOLS, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 20, 2025
Willie Leroy Savage (“Appellant”) appeals from the order denying his
timely petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9451-9546. Appellant maintains that the PCRA court erred in failing to
hold a hearing on his claims of trial counsel’s ineffectiveness. After careful
review, we affirm.
A previous panel of this Court has set forth the facts surrounding this
case, as follows: On May 18, 2017, at approximately 2:00 p.m., Appellant entered the Murray Overhill Pharmacy in Media, Pennsylvania, while wearing white latex gloves and a white t-shirt pulled up over the back of his head. Appellant approached Samantha Papi, who was working at the pharmacy counter with another employee, James McHugh. Appellant handed Ms. Papi a note that said, “I have a gun,” before walking around the counter. As Appellant “brush[ed] past” Ms. Papi, he yelled that he had a gun and wanted all of the J-S48038-24
“per[c]s.”[1] He also threatened that “his boys were out front.” Ms. Papi and Mr. McHugh told Appellant that they did not have any “percs” and activated a silent alarm. Appellant fled from the pharmacy, flagging down and boarding an eastbound trolley. Ms. Papi called 911 and the Media Police Department apprehended Appellant from the trolley. Once removed, Appellant made several unsolicited remarks, indicating that he was hearing voices, should not have listened to the voices, and that he did not “get anything” so he should not be arrested. Ms. Papi positively identified Appellant as the actor and police recovered from her the note which said [verbatim]: “I have a gun I have my partners waiting wit guns outside. We don’t want to hurt you, give up all the perc, 30s, 15s 20s 10s zaney and promethazine with codeen, no one will get hurt we are watch, no cops.”
Appellant was arrested and charged with attempted robbery, terroristic threats, robbery, simple assault, and related offenses. On August 18, 2018, Appellant entered into a negotiated plea agreement, whereby he pled guilty to a consolidated count of attempted robbery and the Commonwealth withdrew the other charges and recommended a sentence of six to twenty years of imprisonment. The trial court accepted the plea and sentenced Appellant in conformity with the Commonwealth’s recommendation. Appellant did not file a post-sentence motion.
Commonwealth v. Savage, No. 2490 EDA 2018, unpublished memorandum
at 1-3 (Pa. Super. filed Sept. 17, 2020) (citations omitted). Appellant filed a
timely appeal, and this Court affirmed his judgment of sentence. Id.
Appellant did not file a petition for allowance of appeal.
On November 24, 2020, Appellant filed a timely pro se PCRA petition,
and counsel was appointed. Counsel filed an amended petition on Appellant’s
behalf and, on October 2, 2023, the PCRA court issued a notice of intent to
dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. The court
ultimately dismissed the petition on November 1, 2023. Counsel filed a timely
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1 This is a reference to the prescription drug Percocet.
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notice of appeal, and both Appellant and the trial court have complied with
Pa.R.A.P. 1925.
Appellant raises the following issues in this appeal: 1. Whether the PCRA [c]ourt erred in denying [Appellant’s] PCRA petition without an evidentiary hearing, where [Appellant] was denied [the] effective assistance of counsel, as guaranteed by the Pennsylvania and United States Constitutions, when [t]rial counsel failed to file a post- sentence motion on behalf of [Appellant] when [Appellant] directed him to do so.
2. Whether the PCRA [c]ourt erred in denying [Appellant’s] PCRA petition without an evidentiary hearing, where [Appellant] was denied [the] effective assistance of counsel, as guaranteed by the Pennsylvania and United States Constitutions, when [t]rial counsel placed [Appellant] under duress with regard to his father’s diagnosis[,] resulting in [Appellant’s] entering an involuntary plea.
Brief for Appellant at 5 (emphasis in original).
Preliminarily, we note that when reviewing the denial of a PCRA petition,
our standard of review is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(internal citations omitted).
Appellant suggests that the PCRA court erred in not holding an
evidentiary hearing in both of his issues. Thus, we are mindful that: There is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not
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necessary. To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (cleaned
up).
In Appellant’s first issue, he argues that counsel was ineffective for
failing to file a post-sentence motion to withdraw his plea as he had ostensibly
requested. In evaluating any claim encompassing an allegation of ineffective
assistance of counsel, the following standards apply:
A PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the 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. Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him. In Pennsylvania, we have refined the Strickland [v. Washington, 466 U.S. 688 (1984)] performance and prejudice test into a three-part inquiry. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result.
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (most internal
citations omitted). If an appellant fails to satisfy any prong of the
ineffectiveness standard, the claim will fail. Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa. Super. 2009).
The requirement to demonstrate “actual prejudice” to prove a claim of
ineffective assistance of counsel under the PCRA means that petitioners must
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establish a reasonable probability that, but for counsel’s error, the outcome of
the proceeding would have been different. Commonwealth v. Mullen, 267
A.3d 507, 512 (Pa. Super. 2021) (citation omitted). Moreover, “boilerplate
allegations and bald assertions of no reasonable basis and/or ensuing
prejudice cannot satisfy a petitioner’s burden to prove that counsel was
ineffective.” Sandusky, 203 A.3d at 1044 (citation omitted).
More specifically with respect to the entry of a guilty plea, it is well
established that [a]llegations 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. Kapellusch, 323 A.3d 837, 848 (Pa. Super. 2024).
Initially, Appellant presents no proof other than his self-serving
statement that he asked trial counsel to file a post-sentence motion to
withdraw his negotiated guilty plea. For example, Appellant’s petition does
not explain when he asked prior counsel to file the motion, or how counsel
responded. Appellant failed to attach copies of any correspondence with
counsel he may have had about filing a post-sentence motion. Counsel cannot
be deemed ineffective for failing to file post-sentence motions if he was not
requested to do so. Commonwealth v. McMillian, No. 16 MDA 2023,
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unpublished memorandum at 8 (Pa. Super. filed Aug. 14, 2023).2 This failure
alone could provide a basis for denying PCRA relief.
Despite these pleading deficiencies in his PCRA petition, we also
recognize that Appellant cannot prove that counsel was ineffective because he
cannot demonstrate prejudice. In other words, Appellant cannot show that,
had counsel filed a motion to withdraw his negotiated plea, it would have been
granted. There is no absolute right to withdraw a guilty plea; when a
defendant seeks to withdraw a plea after sentencing, he must demonstrate
prejudice “on the order of manifest injustice.” Commonwealth v. Hart, 174
A.3d 660, 664 (Pa. Super. 2017) (citation and quotation marks omitted). This
standard is enforced to discourage defendants from entering guilty pleas as
sentence-testing devices. Id. In addition, a defendant who enters a plea is
presumed to be aware of what he or she is doing, and thus bears the burden
of proving otherwise in a subsequent challenge. Id.
While Appellant asserted in his amended PCRA petition that trial counsel
was ineffective for failing to file a post-sentence motion after sentencing,
Amended PCRA Petition, 5/12/22, at ¶ 13 A, Appellant has never claimed that
he is innocent of the charges he faced, nor did he provide evidence of any
defense he could offer to the charges. Appellant merely stated, without
explication, that had counsel filed the motion to withdraw his plea, “it is
reasonable that it would have been granted.” Brief for Appellant at 14. ____________________________________________
2 Non-precedential Superior Court decisions filed after May 1, 2019, may be
cited for their persuasive value. See Pa.R.A.P. 126(b).
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Appellant also baldly asserts for the first time in his brief to this Court, that
the plea colloquy contained material errors and concludes that, because trial
counsel must have known that Appellant had mental health issues, he should
have known that Appellant did not understand what was happening in the
courtroom. Yet, “claims raised outside of a court-authorized PCRA petition
are subject to waiver[.]” Commonwealth v. Mason, 130 A.3d 601, 627 (Pa.
2015); Pa.R.Crim.P. 902(B); see also Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on appeal.”).
Thus, any claims pertaining to the court conducting a deficient plea colloquy
have not been preserved for our review.
Nevertheless, even if his issue regarding counsel’s ineffectiveness for
failing to file a post-sentence motion is deemed preserved, Appellant’s sworn
statements from his guilty plea hearing contradict any claim that the plea was
unknowing or involuntary. During the hearing, the Commonwealth referenced
the terms of the negotiated plea as follows: Appellant enters a plea to one
consolidated count of attempted robbery, with a negotiated sentence of 6 to
20 years’ imprisonment, all other counts dropped, and a recommendation that
Appellant be housed at SCI Chester. N.T., 8/15/18, at 3. The plea was initially
to include a concurrent sentence for one count of possession of a controlled
substance due to Appellant’s having certain pills in his possession at the time
he was arrested, but the Commonwealth agreed to withdraw this count after
Appellant objected, stating that he had a valid doctor’s prescription for those
pills. Id. at 4, 12-16. The lower court then asked Appellant:
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THE COURT: Regarding what we’re doing in court here today, the entry of your plea and the sentence you’ve negotiated, have you heard, do you understand, and do you agree with the terms of the guilty plea?
[Appellant]: Yes.
Id. at 11. The court discussed the written guilty plea form that Appellant had
filled out with the assistance of counsel, asking Appellant if he understood the
guilty plea documentation and that certain rights are waived by the entry of a
plea. Id. at 12. After the Commonwealth agreed to withdraw the possession
charge, the court continued: THE COURT: As far as the Attempted Robbery goes[,] do you understand – let me finish. Do you understand that by pleading guilty to Robbery that you’re saying that the affidavit – that you did the things stated in the affidavit regarding the Robbery?
[Appellant]: Correct.
THE COURT: Okay. Now you also understand what you’re pleading guilty to. You reviewed that with your attorney, the Attempted Robbery, you reviewed that with [defense counsel]. Do you understand the elements of Attempted Robbery and do you understand what you could potentially be exposed to, jail time, correct?
[Appellant]: Yes, Your Honor.
THE COURT: Okay. Hold on. Now you also understand – strike that. Okay. So you understand everything we’re doing here today. I’ll let you speak in a minute. You understand everything we’re doing here today and you still wish me to proceed – you understand you want me to accept this plea, correct?
THE COURT: All right. [Defense counsel], is there a factual basis for the plea?
[DEFENSE COUNSEL]: Yes.
THE COURT: The affidavit?
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[DEFENSE COUNSEL]: Yes. We would stipulate to the Affidavit of Probable Cause.
THE COURT: Based upon the stipulation of the affidavit[,] the [c]ourt hereby finds there’s a factual basis for the plea. Now you’ve gone over this case with [Appellant], I know at length with him. In your opinion, is this a knowing, voluntary, intelligent plea on his behalf?
[DEFENSE COUNSEL]: It is, Your Honor.
THE COURT: All right. Based upon everything that’s been entered before the [c]ourt in this matter, the [c]ourt will hereby accept this plea. Now, do you wish to move for immediate sentencing?
Id. at 16-17.3
It is well established that “[a] defendant is bound by the statements
which he makes during his plea colloquy and cannot assert challenges to his
plea that contradict his statements when he entered the plea.”
Commonwealth v. Jamison, 284 A.3d 501, 506 (Pa. Super. 2022). Thus,
when Appellant, while entering the plea, told the court that he agreed with
the terms of the negotiated plea, he is bound by that statement; he cannot ____________________________________________
3 We recognize that this discussion between Appellant and the court does not
discuss the possible duration of his sentence, one of the subjects mentioned in the comment to Pa.R.Crim.P. 590 as required for a sufficient guilty plea colloquy. However, as this was always a plea for a negotiated sentence of 6 to 20 years, and Appellant was clearly aware that he would be incarcerated following his plea, this does not invalidate the guilty plea. See Hart, supra at 668 (stating that a plea will not be deemed invalid by a defect in the plea colloquy if the defendant had a full understanding of the nature and consequences of his plea and knowingly decided to enter the plea); see also N.T. at 16-17 (the court’s asking Appellant: “you understand [that] you could potentially be exposed to jail time” and Appellant’s replying in the affirmative). Further, as noted, Appellant also completed a written guilty plea colloquy, in which Appellant stated that he was “fully satisfied” with counsel’s representation, and which explained that attempted robbery has a maximum sentence of 20 years. Guilty Plea Statement, 8/15/18, at 2-3 (unnumbered).
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simply say at a later time that he has changed his mind. Id. A guilty plea
will not be deemed invalid if the circumstances surrounding the entry of the
plea disclose that the defendant had a full understanding of the nature and
consequences of his plea, and that he knowingly and voluntarily decided to
enter the plea. Id. The written and oral colloquies in this case demonstrate
that Appellant knowingly, intelligently, and voluntarily entered his guilty plea.
Based on the foregoing, Appellant’s claim that counsel acted
ineffectively by failing to file a post-sentence motion to withdraw his plea is
meritless. Appellant is not entitled to relief on his first issue.
In Appellant’s second issue, he argues that his counsel’s ineffectiveness
rendered his guilty plea not knowing or intelligent because his attorney
“placed Appellant under extreme duress” when convincing him to enter the
negotiated plea. See Amended PCRA Petition at ¶ 7 (“On August 15, 2018,
[Appellant’s] father, who had a recent cancer diagnosis[,] was present.
[Appellant] was put under duress to enter the plea when trial counsel told him
that if he wanted to see his father again, he will take the deal.”).
Notably, Appellant did not raise any claim of duress or unlawful
inducement due to counsel’s statement or his father’s illness at the time of
the plea hearing. At the hearing, Appellant never expressed reservations
about pleading guilty, other than those related to the now-dropped possession
charge. Appellant did not evince uncertainty about the negotiated sentence
or concerns regarding the representation of his attorney during the plea
negotiation process. Our review of the record indicates that at no point did
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the court or trial counsel make any comments that could be interpreted as
coercive. “The law does not require that [an appellant] be pleased with the
outcome of his decision to plead guilty. The law requires only that [the
appellant’s] decision to plead guilty be made knowingly, voluntarily, and
intelligently.” Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super.
2018).
As noted above, Appellant had signed a written plea colloquy prior to
his hearing. Appellant also engaged in an oral colloquy with the lower court.
Nowhere did Appellant state that he did not want to enter a plea and was only
doing so because of pressure from counsel or due to his father’s health.
Indeed, if counsel had determined that there was no defense to Appellant’s
charges, an attempt to negotiate the best sentence that he could for Appellant
through the plea process was highly appropriate. We cannot conclude that
counsel’s representation here is outside the range of competence demanded
of attorneys in criminal cases. Appellant’s displeasure at this late date with
his conviction and sentence do not demonstrate any ineffectiveness by his trial
counsel that would warrant a withdrawal of his plea.
Moreover, we note that any claim of ineffective assistance in connection
with entry of the guilty plea would require Appellant to prove that counsel
lacked a reasonable basis for his actions. However, “[a]s a general rule, a
lawyer should not be held ineffective without first having an opportunity to
address the accusation in some fashion.” Commonwealth v. Colavita, 993
A.2d 874, 895 (Pa. 2010). Appellant apparently did not intend to call his trial
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counsel as a witness to present testimony about plea negotiations, comments
made to Appellant, or any trial strategies.4 The failure to certify that trial
counsel would testify, and to alert the court to the proposed testimony, was
also fatal to this ineffectiveness claim.
Because Appellant’s ineffectiveness claims are meritless and there are
no genuine issues of material fact on this record, the court did not err in
declining to conduct an evidentiary hearing. This is especially apparent where
Appellant could not have called any witnesses at that hearing due to his lack
of witness certifications. As we conclude that the PCRA court’s decision is free
from legal error and has support in the certified record, we affirm the order
denying PCRA relief. Brown, supra.
Order affirmed.
Date: 2/20/2025
4 Where a petitioner requests an evidentiary hearing under the PCRA, the petition shall include a certification stating each witnesses’ name, address, date of birth, and a brief recitation of the substance of their proposed testimony. 42 Pa.C.S. § 9545(d)(1)(i). The failure to substantially comply with this requirement will render the proposed witness’s testimony inadmissible. Id. at § 9545(d)(1)(iii). Appellant’s purported reservation of the right to supplement his PCRA petition with proposed witness statements is wholly insufficient.
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