Com. v. Taylor, C. ( 2021 )

J-S16038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COREY TAYLOR :
:
Appellant : No. 115 EDA 2020
Appeal from the PCRA Order Entered December 6, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002919-2017
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 6, 2021
Appellant, Corey Taylor, appeals from the order entered by the Court of
Common Pleas of Philadelphia County dismissing his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546, without an evidentiary hearing. Herein, Appellant contends his guilty
plea counsel ineffectively failed to advise him that one of the police officers
involved with supervising the controlled buys in the present case was facing
charges of official misconduct in his handling of confidential informants. After
careful review, we affirm.
The PCRA court provides an apt summary of relevant facts and
procedural history, as follows:
On January 20, 2017, Appellant was arrested and charged with
Possession with Intent to Deliver (“PWID”). On July 5, 2017,
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S16038-21
Appellant’s co-defendant[], Anthony Roebuck[], [had his] case . .
. nolle prossed when the assigned ADA exercised prosecutorial
discretion.
On September 29, 2017, Appellant entered into a negotiated
guilty plea and was sentenced the same day to two and one half
to five years of imprisonment with five years state probation to
run consecutively. [In] October 2017, Appellant filed a [“]Motion
for a New Trial Based Upon After Discovered Evidence;
Alternatively, for Post Conviction Collateral Relief; or Alternatively,
for a Writ of Habeas Corpus.[”] This motion was docketed as the
Appellant’s first PCRA petition.
On April 2, 2018, Appellant filed an amended PCRA petition in
which he alleged . . . after-discovered evidence [regarding a
criminal investigation into the official conduct of the arresting
officer in his case, Philadelphia Police Officer Stanley Davis,] to
challenge his conviction. In his petition, Appellant claimed two
grounds upon which relief could be granted. [Of relevance to the
present appeal,] Appellant claimed that his negotiated guilty plea
was not intelligently and knowingly made because [plea counsel]
. . . denied [him] crucial information regarding Officer Davis’
[alleged] criminal conduct [while handling confidential informants
used in controlled buys] and because he did not know that his co-
defendant’s case was nolle prossed as a result of Officer Davis’
pending indictment.[fn]
Fn. Officer Stanley Davis was an arresting officer in the
Appellant’s case. Davis was indicted on drug charges
relating to Davis selling drugs, using drugs as currency in
exchange for sex with informants, along with other related
criminal conduct. [Defendant’s Motion, supra, at 2.]
On November 1, 2019, following a hearing on the amended PCRA
petition, a 907 Notice of Intent to Dismiss was mailed to the
Appellant. On December 6, 2019, the Appellant’s PCRA petition
was formally dismissed as meritless.
On December 12, 2019, a Notice of Appeal was filed by the
Defender Association to preserve Appellant’s appellate rights. The
appointment of the Defender was vacated and new counsel was
appointed to pursue the appeal of the dismissal of the PCRA,
-2-
J-S16038-21
however, rather than immediately issuing a 1925(b) Order, the
Notice was placed in Appellant’s file. . . . On August 23, 2020,
[the PCRA court issued a 1925(b) Order and on September 10,
2020, the Appellant filed a Statement of Matters Complained of on
Appeal.
After reviewing the petition, [the PCRA] court [deemed] the
petition meritless. [This timely appeal followed.]
PCRA Court’s Pa.R.A.P. 1925(a) Opinion, 10/21/20, at 2-3.
Appellant raises the following issues in his counseled brief on appeal:
1. [Did] the court err[] in denying the Appellant’s PCRA
petition without an evidentiary hearing on the issue of
after-discovered evidence[?]
2. [Did] the PCRA court err[] in not granting relief on the
issue [of] after-discovered evidence[?]
Appellant’s brief, at 7.
This Court's standard of review regarding a PCRA court's order is
whether the determination of the PCRA court is supported by the evidence of
record and is free of legal error. Commonwealth v. Reaves, 923 A.2d 1119(Pa. 2007). The PCRA court's findings will not be disturbed unless there is no
support for the findings in the certified record. Commonwealth v. Carr, 768
A.2d 1164 (Pa. Super. 2001). Counsel cannot be found ineffective for failing
to raise a baseless or meritless claim. See id.Additionally, the PCRA court has discretion to dismiss a petition without
a hearing when it is satisfied “that there are no genuine issues concerning any
material fact, the defendant is not entitled to post-conviction relief, and no
legitimate purpose would be served by any further proceedings.” Pa.R.Crim.P.
907(1); see also Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.
-3-
J-S16038-21
Super. 2008); but see Pa.R.Crim.P 908 (A)(2) (“[T]he judge shall order a
hearing ... when the petition for post-conviction relief ... raises material issues
of fact.”). “A reviewing court must examine the issues raised in the PCRA
petition in light of the record in order to determine whether the PCRA court
erred in concluding that there were no genuine issues of material fact and in
denying relief without an evidentiary hearing.” Springer, 961 A.2d at 1264.
A PCRA court's decision to deny a request for an evidentiary hearing will not
be overturned absent an abuse of discretion. See Commonwealth v.
Mason, 130 A.3d 601, 617 (Pa. 2015).
Appellant’s issues coalesce to state he would not have entered a
negotiated guilty plea had counsel informed him of Officer Davis’ indictment
and the dismissal of co-defendant Anthony Roebuck’s charges. His after-
discovered evidence claim couched within the ineffective assistance of counsel
claim warranted an evidentiary hearing before the PCRA court, he continues,
because the evidence against Officer Davis as it existed at the time of his plea
created an issue of material fact as to whether he would have obtained a more
favorable result by withdrawing his guilty plea and proceeding to trial.
In addressing an ineffectiveness assistance of counsel claim, we are
guided by the following legal principles. We presume counsel is effective and
an appellant bears the burden to prove otherwise. See Commonwealth v.
Hanible, 30 A.3d 426, 439 (Pa. 2011). To succeed on an ineffectiveness
claim, an appellant must establish by a preponderance of the evidence that:
(1) [the] underlying claim is of arguable merit; (2) the particular course of
-4-
J-S16038-21
conduct pursued by counsel did not have some reasonable basis designed to
effectuate his interests; and (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the proceedings would have been
different. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). The failure
to satisfy any prong of the test requires rejection of the claim. See
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
A criminal defendant has the right to effective counsel
during a plea process. 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. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)
(citations and quotation marks omitted).
“In determining whether a guilty plea was entered knowingly and
intelligently, a reviewing court must review all of the circumstances
surrounding the entry of that plea.” Commonwealth v. Allen, 732 A.2d 582,
587 (Pa. 1999). “[T]he decision to litigate, or not litigate, . . . is left to counsel
in the exercise of his or her professional judgment. Strategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Commonwealth v. Johnson, 179 A.3d 1153,
1160 (Pa. Super. 2018) (citations omitted).
To be entitled to relief on the basis of exculpatory after-discovered
evidence, the petitioner must plead and prove by a preponderance of the
-5-
J-S16038-21
evidence “[t]he unavailability at the time of trial of exculpatory evidence that
has subsequently become available and would have changed the outcome of
the trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). As our
Supreme Court has summarized:
To obtain relief based on after-discovered evidence, [an] appellant
must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the credibility
of a witness; and (4) would likely result in a different verdict if a
new trial were granted. Commonwealth v. Pagan, 950 A.2d
270, 292 (Pa. 2008) (citations omitted). “The test is conjunctive;
the [appellant] must show by a preponderance of the evidence
that each of these factors has been met in order for a new trial to
be warranted.”
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citation
omitted).1 Further, when reviewing the decision to grant or deny a new trial
on the basis of after-discovered evidence, an appellate court is to determine
whether the PCRA court committed an abuse of discretion or error of law that
controlled the outcome of the case. Commonwealth v. Reese, 663 A.2d
206 (Pa. Super. 1995).
____________________________________________
1 A claim of after-discovered evidence within a timely post-conviction petition
is distinct from the newly discovered fact exception to the PCRA's time-bar.
See Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017).
-6-
J-S16038-21
Instantly, after a careful review of the record,2 party briefs, the PCRA
court’s Rule 1925(a) Opinion, and relevant authority, we likewise conclude
Appellant’s underlying claim of after-discovered evidence regarding Officer
Davis’ criminal conduct in matters unrelated to Appellant’s case does not meet
____________________________________________
2 Appellant has failed to ensure that copies of transcripts, including the guilty
plea transcript, were included in the certified record. Nor does the record
contain any request for transcripts pursuant to Pa.R.A.P. 1911.
It is an appellant's responsibility to ensure that the certified record contains
all the items necessary to review his claims. See, e.g., Commonwealth v.
Tucker, 143 A.3d 955, 963 n.3 (Pa. Super. 2016). It “is not proper for [this
Court] to order transcripts nor is it the responsibility of the appellate courts to
obtain the necessary transcripts.” Commonwealth v. Preston, 904 A.2d 1,
7 (Pa. Super. 2006) (en banc ). Rather, an “appellant shall request any
transcript required under” the Rules of Appellate Procedure. Pa.R.A.P. 1911(a)
(emphasis supplied). The rule provides a form upon which parties may model
their requests. See Pa.R.A.P. 1911(c). We may dismiss an appeal when the
appellant fails to comply with Rule 1911. See Pa.R.A.P. 1911(d).
Furthermore, we observe that the Court of Common Pleas of Philadelphia
County Local Rules of Judicial Administration provide that an appellant must
request a transcript using a “Transcript Order Form.” See Phila. County L.R.
5000.5(a). When the transcript is being requested for the purpose of a post-
verdict motion or an appeal, the request form must be filed with the trial court
as well as with the Prothonotary of the appropriate appellate court. See Phila.
County L.R. 5000.5(c)(2)(i, x).
There is no indication in the certified record that Appellant made any effort to
comply with Pa.R.A.P. 1911 or the requirements imposed by the local rule.
However, we decline to impose waiver doctrine in this matter, as we deem the
record sufficient to dispose of the present appeal on the merits. See infra.
-7-
J-S16038-21
the doctrine’s requirement that the evidence likely would have changed the
outcome of the case.3
Specifically, Appellant fails to allude to any evidence or information
creating a nexus between Officer Davis’ misconduct while working with
confidential informants in other cases and the investigation into Appellant’s
distribution of narcotics that led to his arrest and eventual guilty plea. Most
detrimental to Appellant’s claim in this regard is an undisputed arrest report
confirming that multiple law enforcement officers, which included a SEPTA
police officer, FBI agents, and other Philadelphia Police Department Drug Task
Force officers, worked on every critical aspect of the operation and witnessed
Appellant’s criminal conduct during all relevant times.
____________________________________________
3 A non-precedential decision of this Court has questioned, in dicta, whether
an after-discovered evidence claim raised by a defendant seeking to withdraw
their guilty plea is cognizable under the PCRA. In Commonwealth v. Poole,
241 A.3d 374 (Table), 20 WL 5951463 unpublished memorandum (Pa. Super.
filed October 7, 2020), we observed:
Where a defendant had pleaded guilty it is incongruous to say that
new evidence would ‘change the outcome of the trial if it had been
introduced,’ as there was no trial. Under prior law, however, such
claims were cognizable in post-conviction proceedings. See
Commonwealth v. Peoples, 319 A.2d 679, 681 (Pa. 1974)
(construing the Post Conviction Hearing Act).[]
Poole, at **2. Although Poole is a non-precedential decision, we cite it
because we find it instructive to the extent it raised the question of
cognizabilty before opting to engage in merits review. See Pa.R.A.P. 126(b)
(unpublished non-precedential decisions of the Superior Court filed after May
1, 2019, may be cited for their persuasive value).
-8-
J-S16038-21
Indeed, Appellant attached the police arrest report to his PCRA petition
to establish Officer Davis’ role in the investigation leading to his arrest, but
the report confirms the multi-agency effort in surveilling Appellant, preparing
the federal confidential informant, arranging and supervising the controlled
buys made with pre-recorded money supplied by the FBI, and effecting
Appellant’s arrest. Specifically, the report states:
IN JAN. 2017 TASK FORCE OFFICER DAVIS JR #9660 ALONG
WITH TASK FORCE OFFICER RAMOS #394 AND [FBI] SPECIAL
AGENT MATT KING MET WITH A FEDERAL INFORMANT WHO
PROVIDED THE ABOVE WITH SPECIFIC INFORMATION
REGARDING A B/M KNOWN AS "C" [Appellant] LIVING IN A
COUPLE BLOCK RADIUS OF HUNTING PARK AVE (BALD, GLASSES,
MED COMPL, APPROX 30'S) SELLING POWDER COCAINE AND
CRACK COCAINE FROM THE CELL PHONE NUMBER OF 215-421-
1131 IN THE AREA OF THE 39TH DISTRICT IN AND AROUND A
BAR NAMED "TENDER TOUCH" AT 1901 WEST HUNTING PARK
AVE.
ON 1-17-17 IN THE AFTERNOON HOURS TASK FORCE OFFICER
DAVIS JR # 9660 AND SPECIAL AGENT KING MET WITH THE SAME
FEDERAL INFORMANT AND THE INFORMANT WAS SEARCHED
ACCORDING TO POLICY AND PROVIDED WITH PRE-RECORDED
BUY MONEY (FEDERAL - $4300 USC) AND A PHONE CALL WAS
MADE TO THE SAME CELL NUMBER LISTED ABOVE IN REFERENCE
TO PURCHASING 4 AND ½ OUNCES OF CRACK COCAINE. A B/M
VOICE ANSWERED AND A POSITIVE NARCOTIC CONVERSATION
WAS MADE AND A MEET WAS SET UP AT THE "TENDER TOUCH
BAR" 1901 WEST HUNTING PARK AVE.
SURVEILLANCE WAS BEING CONDUCTED AT THE BAR AND THE
SURROUNDING AREAS BY TASK FORCE OFFICERS AND FBI
AGENTS IN NUMEROUS VEHICLES. AFTER THE PHONE CALL WAS
MADE A B/M BALD, GLASSES, MED COMPL (FITTING THE
DESCRIPTION GIVEN BY THE FEDERAL INFORMANT) AND
IDENTIFIED BY THE INFORMANT EXITED THE BAR AND WAS
OBSERVED ENTERING A BLACK TOYOTA CAMRY PA TAG KDM-
-9-
J-S16038-21
4799 OPERATED BY A B/M AND THE VEHICLE LEFT THE AREA
UNDER CONSTANT OBSERVATION.
THE VEHICLE WAS FOLLOWED UNTIL IT MET WITH A BLUE BUICK
NJ TAG X50 DZF LACROSSE OPERATED BY A B/M (LATER
IDENTIFIED AS RAHEEM WHITNEY 4 FLURY LANE CLEMENTON NJ)
AND A FRONT SEAT B/F PASSENGER. TARGET OF INVESTIGATION
GETS INTO THE REAR SEAT OF THE BUICK AND HANDS GREEN
USC TO WHITNEY WHO ACCEPTED THE SAME AND HANDED BACK
BLACK BAG (CONSISTANT WITH NARCOTIC TRANS-ACTION)
OBSERVED BY P/O CULLEN #7196 ALONG WITH P/O DOMICO
#4522.
NUMEROUS PHONE CALLS [WERE] MADE BY THE FEDERAL
INFORMANT BACK TO 215-421-1131 AND ANOTHER MEET WAS
SET UP FOR THE TENDER TOUCH BAR AFTER THE PRODUCT
(NARCOTICS WERE COOKED INTO CRACK COCAINE FORM).
THE BLUE BUICK WAS NEVER OUT OF SITE AND FOLLOWED TO 4
FLURY LANE CLEMENTON BOTH PARTIES WENT INSIDE AND FBI
OFFICE CAMDEN COUNTY NOTIFIED.
LATER THAT EVENING "C" WAS OBSERVED EXITING THE BAR AND
WALKING AND ENTERING 3938 ALFRED ST. HE THEN EXITED
WALKING DIRECTLY TO THE BAR (1901 WEST HUNTING PARK
AVE) AND ENTERED THE INFORMANTS VEHICLE AND THE
EXCHANGE BUY MONEY FOR 4 ½ OUNCES OF CRACK COCAINE
WAS COMPLETED. CONVERSARTION WAS CONDUCTED ABOUT
THE PURCHASE OF 1 KILO OF POWDER COCAINE OR CRACK
COCAINE IN THE FUTURE. C EXITED AND WENT INSIDE THE BAR
AND THE INFORMANT WAS FOLLWED OUT OF THE AREA TO A
PRE-DETERMINED MEET AREA (NEVER OUT OF SIGHT AND
TURNED OVER 122.25 GRAMS OF CARCK COCAINE TO SPECIAL
AGENT KING AND TASK FORCE OFFICER DAVIS JR # 9660. THE
INFORMANT WAS SEARCHED AGAIN WITH NEGATIVE RESULTS
(ALONG WITH THE VEHICLE) P/O DAVIS JR # 9660 CONDUCTED
A NIK TEST: "G" ON A SAMPLE OF THE NARCOTICS PURCHASED
WITH POSITIVE RESULTS FOR COCAINE BASE AND THE
NARCOTICS WERE PLACED ON PR # 3274981 AND SUBMITTED
TO THE CHEM LAB FOR FURTHER PROCESSING.
ON 1-19-17 IN THE AFTERNOON HOURS SGT ROBERT FRIEL #
578 (TASK FORCE SGT FBI SQ C # 3) SET UP A SURVEILLANCE
ON 3938 ALFRED STAND OBSERVED "C" ALONG WITH ANOTHER
- 10 -
J-S16038-21
UNKNOWN LARGE B/M MAKING HAND TO HAND TRANSACTIONS
ON THE PORCH AND AT THE FRONT DOOR. NOBODY STOPPED
NOT TO COMPROMISE THE INVESTIGATION.
"C" WAS ALSO OBSERVED GOING FROM THE RESIDENCE TO THE
BAR NUMEROUS TIMES. P/O DAVIS JR # 9660 ALONG WITH
SPECIAL AGENT KING MET WITH THE SAME FEDERAL INFORMANT
IN THE AFTERNOON HOURS AND A CELL PHONE CALL WAS MADE
TO "C" # 215-421-1131 AND THE INFORMANT WAS INSTRUCTED
TO GO TO THE BAR FOR CONVESATION [sic] IN REFERENCE TO
THE PURCHASE OF 1 KILO OF COCAINE ON 1-20-17. THE
INFORMANT DID MET WITH "C" AND A PURCHASE PRICE OF
$43,000 DOLLARS WAS DETERMINED.
WARRANT # 198578 WAS PREPARED BY P/O DAVIS JR # 9660
FOR 3938 ALFRED ST AND SIGNED AT CJC ON 1-20-17. SGT
FRIEL # 578 OBSERVED TWO FED PROBATION OFFICERS GO TO
3938 ALFRED ST AND ENTERED FOR APPROX 5 MINUTES AND IT
WAS DETERMINED BY SUPERVISORY SPECIAL AGENT JAMES
CROWLEY THAT ANTHONY ROBUCK 7-31-69 3938 ALFRED ST IS
ON ACTIVE FEDERAL PROBATION.
ON 1-20-17 IN THE AFTERNOON HOURS P/O DAVIS JR # 9660
ALONG WITH P/O SLATER # 3687 AND FBI AGENT MATT KING
MET WITH SAME INFORMANT UTILIZED ABOVE AND A PHONE
CALL WAS MADE TO "C" 215-421-1131 FOR ANOTHER PURCHASE
OF NARCOTICS AT THE BAR "TENDER TOUCH" 1901 WEST
HUNTING PARK AVE. THE INFORMANTS [sic] CAR WAS SEARCHED
PRIOR TO HEADING TO THE LOCATION WITH NEGATIVE
RESULTS. SGT FRIEL # 578 OBSERVED THE DEFT "C" (LATER
IDENTIFIED AS COREY TAYLOR DOB 1-15-79) ENTER 3938
ALFRED ST FOR APPROX 5 MINUTES AND EXITED WITH THE
LARGER BLK MALE (LATER IDENTIFIED AS ANTHONY ROBUCK
DOB 7-31-69).
SURVEILLANCE WAS SET UP WITH NUMEROUS FBI AGENTS PHILA
PLAINCLOTHES OFFICERS AND UNIFORM HIGHWAY PATROL #
52. AGENT KING ALONG WITH TFO DAVIS JR # 9660 FOLLOWED
THE FED INFORMANT DIRECTLY TO 1901 WEST HUNTING PARK
AVE (NEVER OUT OF SIGHT). THE INFORMANT PARKED OUT
FRONT FOR APPROX A COUPLE OF MINUTES. SGT FRIEL # 578
OBSERVED THEM BOTH ENTERING THE BLK TOYOTA CAMRY
LISTED ABOVE PA TAG KDM-4799 AND IT PULLED DIRECTLY
AROUND THE CORNER AND TAYLOR GOT OUT AND ENTERED THE
- 11 -
J-S16038-21
INFORMANTS [sic] CAR WHILE ROBUCK PARKED ON 1900 BLK OF
WEST HUNTING PARK.
AGENTS AND OFFICERS CAME IN FOR THE TAKE DOWN AND
TAYLOR WAS ARRESTED BY SEPTA OFFICER RAMOS # 394 AND
RECOVERED FROM THE FRONT OF HIS PANTS WAS 245.5 GRAMS
OF CRACK COCAINE, AND 1 WHITE BAG OF POWDER. (PR #
3274984). ALSO IN POSSESSION OF TAYLOR WAS $ 110 USC
(PR # 3274985)
ROBUCK WAS ARRESTED BY HIGHWAY OFFICERS RUTH # 1295
(232672) AND HOLMES # 2135 (237955) ALONG WITH P/O
SLATER # 3687 AND P/O MYERS # 2103 AFTER THE CAMRY WAS
BLOCKED IN THE PARKING SPOT. RECOVERED FROM HIS
PERSON WAS $ 66 USC (PR # 3288422). ONE CELL PHONE AND
KEY THAT OPENED FRONT DOOR OF 3938 ALFRED ST.
AT THIS POINT WARRANT # 198578 WAS EXECUTED ON 3938
ALFRED ST AND FORCE WAS USED FOR ENTRY. INSIDE WAS A
B/M LATER IDENTIFIED ROBERT ARTIS (ROBUCKS COUSIN) DOB
8-27-69 WHO WAS CLEARED BY INVESTIGATION.
Philadelphia Police Department Arrest Report, 1/21/17, at 1-3.
This very record upon which Appellant relies, therefore, undercuts his
claim that he would have experienced a more favorable outcome had counsel
informed him of Officer Davis’ indictment. The police report confirms that
numerous federal and Philadelphia law enforcement officers and drug task
force agents were present at and participated in each critical stage leading to
Appellant’s arrest, thus minimizing the importance of Officer Davis’
contributions as those of but one member of a large team who worked in the
presence of others.
Furthermore, Appellant overlooks that he pleaded guilty to the charges
and is, thus, bound by the statements he made in both his written plea
agreement and during his plea, including his agreement with the
- 12 -
J-S16038-21
Commonwealth's recitation of the facts. See Commonwealth v.
Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002) (a defendant is bound by
his statements made during a plea colloquy, and cannot assert claims that
contradict those statements).
Finally, we find the opinion of the Honorable Lillian Ransom, Senior
Judge of the Court of Common Pleas of Philadelphia County, salient on the
question of whether Appellant presented any claim or argument in support of
his PCRA petition that merited an evidentiary hearing on his ineffective
assistance of counsel/after-discovered evidence claim. Specifically, Judge
Ransom reviewed the record before the PCRA court and indicated:
The email [between defense counsel and the prosecution] sent
more than two months before the Appellant pled guilty . . .
demonstrates that Appellant’s trial counsel considered the
possible implications of Officer Davis’ termination from the
Philadelphia Police Department and possible criminal charges, and
spoke with opposing counsel about whether his client’s case would
be nolle prossed [as was the case with Appellant’s co-defendant,
Anthony Roebuck]. This email suggests that counsel was aware
of the issue but that the Commonwealth was not willing to nolle
prosse or felt that Officer Davis was not an integral part of
Appellant’s investigation.
This inference was further supported at the mass police
misconduct PCRA hearing held on November 1, 2019, where
testimony provided by the Commonwealth asserted that Officer
Davis was not a material or critical witness in the arrest of
Appellant. No contrary evidence was presented on behalf of
Appellant. As such, . . . because no testimony was presented on
behalf of Appellant at the November 1, 2019 PCRA hearing, this
court dismissed Appellant’s petition as meritless.
...
- 13 -
J-S16038-21
Based on the pleadings submitted by both parties, and the
testimony during the mass police misconduct PCRA hearing, this
court dismissed the PCRA petition and now enters a finding that
the petition is without merit. This court further finds that any
testimony provided by Officer Davis would not have compelled a
different verdict in this case because Appellant did not allege that
Officer Davis committed any of the criminal conduct in Appellant’s
case. Additionally, because this court finds no genuine issue of
material fact, the Appellant was not entitled to an evidentiary
hearing to further develop the record.
Opinion, at 6-7.
The PCRA court’s rationale in support of its order denying relief is
appropriate, as it outlines both the lack of a predominant or superseding
position assumed by Officer Davis in the narcotics investigation and the failure
of Appellant to allege any fact suggesting official misconduct in his case.
For the foregoing reasons, we conclude Appellant has made no
demonstration that had he withdrawn his plea and opted for trial on the basis
of this evidence he likely would have experienced a different or more favorable
result. With his after-discovered evidence claim thus failing, it follows that his
ineffective assistance of counsel claim predicated on plea counsel’s failure to
inform him of Officer Davis’ legal issues in other cases necessarily lacks
arguable merit. That is, counsel did not act ineffectively by failing to advise
Appellant about a meritless defense before Appellant pled guilty. See
Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013) (“[C]ounsel
obviously cannot be deemed ineffective for failing to raise a meritless claim.”).
Accordingly, as the PCRA court was confronted with no issue of material
fact regarding the adequacy of plea counsel’s representation of Appellant, we
- 14 -
J-S16038-21
discern no error with the order denying PCRA relief without an evidentiary
hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2021
- 15 -