J-S85025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BENJAMIN FRANCIS DEASEY

Appellant No. 1390 EDA 2016

Appeal from the PCRA Order December 21, 2015

in the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0000025-2014

BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.: FILED DECEMBER 21, 2016

Appellant, Benjamin Francis Deasey, appeals from the December 21, 

2015 order denying his petition filed under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On August 6, 2014, Appellant entered into a negotiated plea 

agreement to one count of robbery in the first degree, one count of criminal 

conspiracy to commit robbery, and one count of involuntary manslaughter. 

That same day, Appellant received an aggregate sentence of six to twelve 

years of incarceration followed by one year of probation. Appellant did not 

pursue a direct appeal from his judgment of sentence.

On August 24, 2015, Appellant timely filed, pro se, a petition seeking 

relief under the PCRA. Counsel was appointed and filed a petition seeking 

leave to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 
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(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988). On November 17, 2015, the court granted counsel’s petition to 

withdraw and gave Appellant notice pursuant to Pa.R.Crim.P. 907 that his 

petition would be dismissed within twenty days. Appellant untimely filed a 

response to the court’s notice. On December 21, 2015, the court dismissed 

Appellant’s petition.

Appellant timely appealed1and filed a court-ordered Pa.R.A.P. 1925(b) 

statement. In response, the court adopted its Order of November 17, 2015 

in lieu of a Pa.R.A.P. 1925(a) opinion.

Herein, Appellant raises five issues, which we have restated for 

clarity:2

1. Appellant’s request to withdraw his guilty plea should have 

been granted as counsel was ineffective in advising him to plead 

guilty; due to Appellant’s shock and trauma, he was not able to 

tender a knowing, intelligent, and voluntary guilty plea.

____________________________________________

1 On April 12, 2016, the court reinstated Appellant’s direct appeal rights 

nunc pro tunc, as the court’s orders giving Appellant notice of its intent to 

dismiss, and dismissing his PCRA petition, had been sent to the wrong 

prison. See Order, 4/12/16, at 1.

2 Appellant’s brief does not comply with the Pennsylvania Rules of Appellate 

Procedure, Pa.R.A.P. 2111-2133. For example, his statement of questions 

involved pursuant to Pa.R.A.P. 2116 does not list the questions he seeks to 

raise on appeal but instead, appears to attack the statement of his codefendant. His statement of the case pursuant to Pa.R.A.P. 2117 consists of 

a three-page long paragraph, devoid of citations to the record. However, as 

the general points raised in his argument section appear to correspond to 

the issues raised in his Pa.R.A.P. 1925(b) statement, we decline to find 

waiver. See Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super. 

2013) (declining to find waiver where omissions do not impede review).
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2. Appellant was entitled to a new trial based upon counsel’s 

alleged forgery of Appellant’s signature on legal documents 

waiving his right to a preliminary hearing.

3. Counsel was ineffective for failure to investigate Appellant’s 

claims of innocence.

4. Appellant was entitled to a new trial based upon newly 

discovered evidence, consisting of unspecified statements and 

police reports, that the testimony of his co-defendant had been 

tainted by detectives investigating the case.

5. Appellant’s PCRA counsel was ineffective for failure to file an

Amended PCRA and for seeking to withdraw representation.

Appellant’s Brief at 13-16.

We review an order denying a petition under the PCRA to determine 

whether the findings of the PCRA court are supported by the evidence of 

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 

1170 (Pa. 2007). We afford the court’s findings deference unless there is no 

support for them in the certified record. Commonwealth v. Brown, 48 

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 

995 A.2d 1184, 1189 (Pa. Super. 2010)). There is no absolute right to an 

evidentiary hearing. See Commonwealth v. Springer, 961 A.2d 1262, 

1264 (Pa. Super. 2008). On appeal, we examine the issues raised in light of 

the record “to determine whether the PCRA court erred in concluding that 

there were no genuine issues of material fact and denying relief without an 

evidentiary hearing.” Springer, 961 A.2d at 1264.

First, Appellant claims that his guilty plea was not voluntary, asserting 

that he was pressured by detectives and was suffering from psychological 
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trauma and shock. As a result, he argues that counsel’s advice that he 

plead guilty constituted ineffective assistance. Appellant’s Brief at 13.

We presume counsel is effective. Commonwealth v. Washington, 

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish 

the ineffective assistance of counsel, a PCRA petitioner must prove, by a 

preponderance of the evidence that: “(1) the underlying legal issue has 

arguable merit; (2) counsel’s actions lacked an objective reasonable basis; 

and (3) actual prejudice befell the petitioner from counsel’s act or omission.” 

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations 

omitted). “A petitioner establishes prejudice when he demonstrates that 

there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Id. A claim 

will be denied if the petitioner fails to meet any one of these requirements. 

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008) 

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007)); 

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

We review allegations of counsel’s ineffectiveness in connection with a 

guilty plea as follows:

The standard for post-sentence withdrawal of guilty pleas 

dovetails with the arguable merit/prejudice requirements for 

relief based on a claim of ineffective assistance of counsel under 

which the defendant must show that counsel’s deficient 

stewardship resulted in a manifest injustice, for example, by 

facilitating entry of an unknowing, involuntary, or unintelligent 

plea. See, e.g., [Commonwealth v.] Allen, 558 Pa. [135,] 

144, 732 A.2d [582,] 587 [(1999)]).” Allegations of 
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ineffectiveness in connection with the entry of a guilty plea will 

serve as a basis for relief only if the ineffectiveness caused 

appellant to enter an involuntary or unknowing plea.”...

The standard is equivalent to the ‘manifest injustice’ standard 

applicable to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005) (some 

citations omitted; brackets in original). Where a defendant enters a plea on 

the advice of counsel, the voluntariness of the plea depends on whether the 

advice was within the range of competence demanded of attorneys in 

criminal cases. Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 

2013). In determining whether a plea was entered knowingly and 

voluntarily, this Court considers the totality of the circumstances 

surrounding the plea. Commonwealth v. Flanagan, 854 A.2d 489, 513 

(Pa. 2004).

The record reflects that Appellant entered into a negotiated guilty plea. 

He signed a guilty plea colloquy, indicating that he was aware of the 

charges, the maximum sentence for the offense, and the circumstances 

surrounding the charges. Notes of Testimony (N. T.), 8/6/14, at 2-3; see 

also Written Guilty Plea Colloquy, 8/5/14, at 1-2. He admitted to 

committing the crimes and acknowledged that plea counsel had adequately 

explained the charges to him. N. T. at 2-3, 8-9; Colloquy at 5-6. He 

understood the rights he was foregoing with his plea and stated that no one 

had coerced him into pleading guilty. N. T. at 9; see also Colloquy at 6; 

see also Commonwealth v. Muhammad, 74 A.2d 378, 384 (Pa. Super. 
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2002) (stating that an appellant cannot claim that he involuntarily entered a 

guilty plea where he stated that no one threatened him to plead guilty); see 

also Commonwealth v. Tareila, 895 A.2d 1266, 1267 (Pa. Super. 2006) 

(stating that “[t]he entry of a guilty plea constitutes a waiver of all defects 

and defenses except lack of jurisdiction, invalidity of the plea, and illegality 

of the sentence.”); see also Commonwealth v. Myers, 642 A.2d 1103, 

1107 (Pa. Super. 1994) (noting that an appellant’s claim he was under 

pressure at the time he entered a plea will not invalidate that plea, absent 

proof he was incompetent at the time the plea was entered).

Thus, despite Appellant’s claim of coercion and trauma, he is bound by 

his denials of the same at the guilty plea colloquy, as he has not introduced 

evidence of incompetence at the time of the plea. See Muhammad, 74 

A.2d at 384; see also Myers, 642 A.2d at 1107. Thus, he has not 

established a manifest injustice that would require the withdrawal of his 

guilty plea. See Morrison, 878 A.2d at 105. Accordingly, Appellant has not 

established ineffective assistance of counsel in connection with his guilty 

plea. See Timchak, 69 A.3d at 769.

Appellant’s next three claims are waived. First, Appellant claims that 

trial counsel forged Appellant’s signature on the waiver of preliminary 

hearing form. Appellant’s Brief at 13-14. Next, he claims that trial counsel 

was ineffective in refusing to research, investigate, or prove the validity of 

“any successful claims of innocence.” Appellant’s Brief at 14. Finally, 
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Appellant claims that newly obtained evidence was withheld from Appellant 

at and during the time of defense planning. Appellant’s Brief at 15-16.

As Appellant did not raise these claims in his PCRA petition or in a 

response to the court’s Pa.R.Crim.P. 907 notice, they are waived for 

purposes of appeal. Washington, 927 A.2d at 601; see also Pa.R.A.P. 302 

(stating “issues not raised in the lower court are waived and cannot be 

raised for the first time on appeal”).

Additionally, Appellant claims that PCRA counsel was ineffective in his 

representation. However, claims of PCRA counsel's ineffectiveness may not 

be raised for the first time on appeal. Commonwealth v. Henkel, 90 A.3d 

16, 20 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014).

Accordingly, we discern no error in the PCRA court’s decision to 

dismiss Appellant’s petition without an evidentiary hearing. Appellant’s 

claims are without merit, and he is entitled to no relief. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2016