J-S05006-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAIVON TURNER : : Appellant : No. 316 EDA 2020
Appeal from the PCRA Order Entered November 6, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006211-2015
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 16, 2021
Daivon Turner appeals pro se from the order that dismissed his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
We glean the following case history from the PCRA court’s opinion. On
the afternoon of May 25, 2015, Basil Scott was riding a dirt bike he had taken
the day before from Appellant. Appellant arrived at the scene in a minivan
and shot Mr. Scott four times, once in the head, killing him. Appellant fled
the state, was brought back to Philadelphia by his mother, and confessed to
the shooting after surrendering to police. He was arrested and charged with
murder and crimes related to possession of a firearm.
Appellant retained counsel, who filed an omnibus pretrial motion seeking
to suppress Appellant’s statements, physical evidence, and out-of-court
identification evidence. After the plan for payment fell through, counsel
sought and was granted permission to withdraw. New counsel entered an J-S05006-21
appearance and also filed an omnibus pretrial motion seeking suppression of
Appellant’s statement to police, physical evidence, and out-of-court
identification evidence.
Before the court ruled upon the suppression issues, Appellant opted to
enter a negotiated guilty plea to third-degree murder and one firearms charge
in exchange for a sentence of fifteen to thirty years of imprisonment and the
dismissal of the remaining charges. In the plea colloquy signed by Appellant,
he acknowledged that by pleading guilty he was giving up his pretrial rights,
including the right to pursue suppression of statements he made to police,
identifications of him made by third parties, and seized evidence. After
confirming Appellant’s understanding though an oral plea colloquy, the trial
court accepted the plea and imposed the agreed-upon sentence. Appellant
did not file a direct appeal.
Appellant filed a timely PCRA petition on February 13, 2018. Therein,
he raised three bases for claiming that his confession to the police was
involuntary, as well as a claim that trial counsel rendered ineffective
assistance by failing to challenge the admissibility of his confession. Counsel
was appointed and filed a motion to withdraw and no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court issued
notice of its intent to dismiss Appellant’s PCRA petition without a hearing, and
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Appellant filed no response. By order of November 8, 2018, the PCRA court
dismissed the petition and granted counsel’s request to withdraw.
Appellant filed a timely pro se notice of appeal, and both Appellant and
the PCRA court complied with Pa.R.A.P. 1925. Appellant presents one
question for our consideration: “Did the PCRA court err, when it denied
Appellant’s PCRA petition alleging he waived his right to post-conviction relief
which is the- first cognizable avenue to raise ineffective assistance of counsel
arising out of plea process?” Appellant’s brief at 4 (unnecessary capitalization
omitted).
We begin with a review of the applicable law. “This Court’s standard of
review regarding an order denying 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.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.
2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA
court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684,
688 (Pa.Super. 2012).
Counsel is presumed to be effective, and a PCRA petitioner bears the
burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112
(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal
claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s
decision to act (or not) lacked a reasonable basis designed to effectuate the
petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish
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any prong is fatal to the claim. Id. at 113. Further, “[i]n the context of a
plea, a claim of ineffectiveness may provide relief only if the alleged
ineffectiveness caused an involuntary or unknowing plea.” Commonwealth
v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017).
In his PCRA petition, Appellant alleged that counsel was ineffective in
“allowing [Appellant’s] constitutionally protected and guaranteed rights to be
violated” by not pursuing suppression. See PCRA Petition, 2/13/18, at 7. See
also id. at 16 (stating that counsel failed to be a zealous advocate and allowed
unconstitutionally-obtained evidence “to be used against his client at trial”).
On appeal, he presents this Court with additional averments not pled in the
PCRA court. Specifically, he contends that trial counsel advised Appellant that
counsel withdrew the suppression motion because the trial court would never
grant it, and that Appellant had to accept the plea deal or he would end up
with a life sentence. See Appellant’s brief at 11-12. Appellant further alleged
on appeal that counsel instructed him to represent during the oral plea
colloquy that he was pleased with his attorney’s representation and that no
one had forced him to plead guilty, otherwise the trial court would not accept
the plea and Appellant would end up with a life sentence. Id. at 12.
Appellant’s claims entitle him to no relief. First, specific allegations of
trial counsel ineffectiveness not raised in the PCRA petition or an authorized
amendment are waived. See, e.g., Commonwealth v. Jones, 811 A.2d
994, 1003 (Pa. 2002) (citing Pa.R.A.P. 302(a) in holding issue not raised in
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the PCRA court could not be raised for the first time on appeal). See also
Commonwealth v. Reid, 99 A.3d 470, 519-20 (Pa. 2014) (“Appellant’s
specific allegations regarding trial counsel's failure [to obtain certain evidence]
were raised for the first time in his Supplemental Amended PCRA Petition,
which the PCRA court does not appear to have authorized. Thus, Appellant’s
claim is waived on this basis.”). Appellant never presented to the PCRA court
his allegations that trial counsel pressured him to enter his plea and lie about
being coerced to do so. Accordingly, the contentions cannot serve as a basis
for this Court to grant relief.
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J-S05006-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAIVON TURNER : : Appellant : No. 316 EDA 2020
Appeal from the PCRA Order Entered November 6, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006211-2015
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 16, 2021
Daivon Turner appeals pro se from the order that dismissed his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
We glean the following case history from the PCRA court’s opinion. On
the afternoon of May 25, 2015, Basil Scott was riding a dirt bike he had taken
the day before from Appellant. Appellant arrived at the scene in a minivan
and shot Mr. Scott four times, once in the head, killing him. Appellant fled
the state, was brought back to Philadelphia by his mother, and confessed to
the shooting after surrendering to police. He was arrested and charged with
murder and crimes related to possession of a firearm.
Appellant retained counsel, who filed an omnibus pretrial motion seeking
to suppress Appellant’s statements, physical evidence, and out-of-court
identification evidence. After the plan for payment fell through, counsel
sought and was granted permission to withdraw. New counsel entered an J-S05006-21
appearance and also filed an omnibus pretrial motion seeking suppression of
Appellant’s statement to police, physical evidence, and out-of-court
identification evidence.
Before the court ruled upon the suppression issues, Appellant opted to
enter a negotiated guilty plea to third-degree murder and one firearms charge
in exchange for a sentence of fifteen to thirty years of imprisonment and the
dismissal of the remaining charges. In the plea colloquy signed by Appellant,
he acknowledged that by pleading guilty he was giving up his pretrial rights,
including the right to pursue suppression of statements he made to police,
identifications of him made by third parties, and seized evidence. After
confirming Appellant’s understanding though an oral plea colloquy, the trial
court accepted the plea and imposed the agreed-upon sentence. Appellant
did not file a direct appeal.
Appellant filed a timely PCRA petition on February 13, 2018. Therein,
he raised three bases for claiming that his confession to the police was
involuntary, as well as a claim that trial counsel rendered ineffective
assistance by failing to challenge the admissibility of his confession. Counsel
was appointed and filed a motion to withdraw and no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court issued
notice of its intent to dismiss Appellant’s PCRA petition without a hearing, and
-2- J-S05006-21
Appellant filed no response. By order of November 8, 2018, the PCRA court
dismissed the petition and granted counsel’s request to withdraw.
Appellant filed a timely pro se notice of appeal, and both Appellant and
the PCRA court complied with Pa.R.A.P. 1925. Appellant presents one
question for our consideration: “Did the PCRA court err, when it denied
Appellant’s PCRA petition alleging he waived his right to post-conviction relief
which is the- first cognizable avenue to raise ineffective assistance of counsel
arising out of plea process?” Appellant’s brief at 4 (unnecessary capitalization
omitted).
We begin with a review of the applicable law. “This Court’s standard of
review regarding an order denying 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.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.
2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA
court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684,
688 (Pa.Super. 2012).
Counsel is presumed to be effective, and a PCRA petitioner bears the
burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112
(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal
claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s
decision to act (or not) lacked a reasonable basis designed to effectuate the
petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish
-3- J-S05006-21
any prong is fatal to the claim. Id. at 113. Further, “[i]n the context of a
plea, a claim of ineffectiveness may provide relief only if the alleged
ineffectiveness caused an involuntary or unknowing plea.” Commonwealth
v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017).
In his PCRA petition, Appellant alleged that counsel was ineffective in
“allowing [Appellant’s] constitutionally protected and guaranteed rights to be
violated” by not pursuing suppression. See PCRA Petition, 2/13/18, at 7. See
also id. at 16 (stating that counsel failed to be a zealous advocate and allowed
unconstitutionally-obtained evidence “to be used against his client at trial”).
On appeal, he presents this Court with additional averments not pled in the
PCRA court. Specifically, he contends that trial counsel advised Appellant that
counsel withdrew the suppression motion because the trial court would never
grant it, and that Appellant had to accept the plea deal or he would end up
with a life sentence. See Appellant’s brief at 11-12. Appellant further alleged
on appeal that counsel instructed him to represent during the oral plea
colloquy that he was pleased with his attorney’s representation and that no
one had forced him to plead guilty, otherwise the trial court would not accept
the plea and Appellant would end up with a life sentence. Id. at 12.
Appellant’s claims entitle him to no relief. First, specific allegations of
trial counsel ineffectiveness not raised in the PCRA petition or an authorized
amendment are waived. See, e.g., Commonwealth v. Jones, 811 A.2d
994, 1003 (Pa. 2002) (citing Pa.R.A.P. 302(a) in holding issue not raised in
-4- J-S05006-21
the PCRA court could not be raised for the first time on appeal). See also
Commonwealth v. Reid, 99 A.3d 470, 519-20 (Pa. 2014) (“Appellant’s
specific allegations regarding trial counsel's failure [to obtain certain evidence]
were raised for the first time in his Supplemental Amended PCRA Petition,
which the PCRA court does not appear to have authorized. Thus, Appellant’s
claim is waived on this basis.”). Appellant never presented to the PCRA court
his allegations that trial counsel pressured him to enter his plea and lie about
being coerced to do so. Accordingly, the contentions cannot serve as a basis
for this Court to grant relief.
Second, “[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). Here, Appellant represented to the trial court, under oath,
that he completed and understood the written plea colloquy which indicated
that, by entering a guilty plea, he gave up his right to appeal the denial of his
pre-trial suppression motion. The certified record clearly evidences his
subsequent oral confirmation of the voluntary waiver of his pretrial rights:
THE COURT: . . . You’re giving up your right -- you[r] pretrial rights as well. I understand there was a statement made in this case. And that the Commonwealth has told me, and your attorney has told me, that if you were to proceed to trial, he would have filed -- or we would have litigated, I should say, because he did file -- we would have litigated a motion to suppress the statement that you gave.
-5- J-S05006-21
When you plead guilty, we are not going to litigate that motion. And you will forever give up your right to say that that statement was taken in any other way except lawful.
Do you understand that?
[APPELLANT]: Yes.
THE COURT: You’re also giving up your right to challenge any identifications made of you and anything that was seized by the police, like any guns that were recovered or any clothing or cars, anything that the police recovered from you.
N.T. Guilty Plea, 1/23/18, at 7-8. Thus, the record belies Appellant’s claim
that counsel withdrew the suppression motion and coerced him into entering
an involuntary plea.
Accordingly, Appellant has failed to convince us that the PCRA court
erred in dismissing his PCRA petition and that he is entitled to relief from this
Court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/16/2021
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