J-S69043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ADAM MICHAEL SCOTT

Appellant No. 903 EDA 2015

Appeal from the PCRA Order March 12, 2015

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0001240-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.: FILED December 17, 2015

Appellant, Adam Michael Scott, appeals, pro se, from the order 

entered on March 12, 2015, dismissing his petition filed under the PostConviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Appellant was arrested and subsequently charged with numerous 

crimes, including: three counts of robbery (threatens another with or 

intentionally puts him in fear of immediate serious bodily injury), three 

counts of receiving stolen property, four counts of possessing instruments of 

crime, five counts of simple assault, five counts of recklessly endangering 
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another person, and one count of both criminal mischief and driving under 

the influence of a controlled substance.1 

Prior to trial, Appellant and the Commonwealth entered into an 

agreement whereby, if Appellant pleaded guilty to the above three robbery 

counts, the Commonwealth agreed to withdraw the remaining charges, 

waive the mandatory minimum sentences for two of the three robbery 

counts, and recommend that Appellant serve an aggregate sentence of 

seven-and-a-half to 15 years in prison, followed by five years of probation. 

Specifically, the Commonwealth agreed to recommend that Appellant serve: 

the mandatory minimum sentence of five to ten years in prison, pursuant to 

42 Pa.C.S.A. § 9712,2for the first robbery count; a consecutive term of two-

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1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3925(a), 907(a), 2701(a)(3), 2705, and 

3304(a)(5), and 75 Pa.C.S.A. § 3802(d)(1)(i) respectively. 

2 42 Pa.C.S.A. § 9712 was entitled “[s]entences for offenses committed with 

firearms” and generally provided:

any person who is convicted in any court of this 

Commonwealth of a crime of violence . . . shall, if the 

person visibly possessed a firearm or a replica of a firearm . 

. . that placed the victim in reasonable fear of death or 

serious bodily injury, during the commission of the offense, 

be sentenced to a minimum sentence of at least five years 

of total confinement. . . .

42 Pa.C.S.A. § 9712(a). We note that, on June 4, 2013, the Supreme Court 

of the United States decided Alleyne v. United States, ___ U.S. ___, 133 

S.Ct. 2151 (2013) and held that, where an “aggravating fact” increases a 

mandatory minimum sentence, “the fact is an element of a distinct and 

aggravated crime. [The fact] must, therefore, be submitted to the jury and 

(Footnote Continued Next Page)
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and-a-half to five years in prison for the second robbery count; and, a 

consecutive term of five years of probation for the third robbery count. See

Guilty Plea Colloquy, 9/5/12, at 3-4.

Appellant proceeded to a guilty plea hearing, where the 

Commonwealth summarized the factual basis for Appellant’s plea:

The facts in support of the plea are that starting on . . . 

February [5,] 2012 at the location of the Sunoco station at 

2200 Pottstown Pike in [] Chester County, the troopers 

involved in this case were called on that date to report an 

armed robbery that had occurred at that station.

The investigation showed that [Appellant] walked into the 

Sunoco station entered with a golf club and silver in color 

handgun/revolver as described by the clerk, took the golf 

club and struck and disabled the camera system inside the 

Sunoco station. He then asked for and left with [$575.00] 

worth of cash . . . and stolen merchandise[,] specifically 

Newport and Marlboro Red brand cigarettes [and] lottery 

tickets. . . . [Appellant], at that time, wore black clothing, 

gloves, shoes[,] and a white mask or cloth that was 

covering his face and had eyes cut out. 

Another armed robbery at this location occurred on March 

[19,] 2012. That that time [Appellant] walked into the 

same Sunoco station using what looked to be the same 

silver in color handgun/revolver described by the clerk. On 

that day the total value of stolen merchandise is $426.64[,] 

which includes the value of cash, cigarettes, and, again, 

specifically Newport brand. And during the commission of 

that crime he wore a brown colored hooded sweatshirt, 

(Footnote Continued) _______________________

found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2162-2163. We 

also note that, on October 3, 2014, this Court concluded that Alleyne

rendered 42 Pa.C.S.A. § 9712 unconstitutional in its entirety. 

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).
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black knit cap, white mask or cloth covering his face with 

the same eyes cut out.

On March [21,] 2012[, Appellant] walked into the same 

Sunoco station, used the same silver handgun/revolver at 

the cashier. He robbed the store of $653.54, involving 

cash, cigarettes, same specific brands that were mentioned 

earlier. He wore the same dark brown in color hooded 

sweatshirt, blue gloves[,] and a white mask or cloth 

described to be covering his face with the same eyes cut 

out. 

There are three different victims in this case, three different 

clerks that were robbed at the hand of [Appellant]. On that 

same day the investigation was able to pin, based on the 

description matching [Appellant]. The trooper went to 

[Appellant’s] house, saw [Appellant] arrive in a car. He 

looked under the influence. . . . 

When they stopped [Appellant,] they immediately noticed 

stolen merchandise matching what was described to be 

stolen from the Sunoco station as well as dark in color 

sweatshirt and white cut out mask over his face that he 

used in all three of the armed robberies.

N.T. Guilty Plea and Sentencing, 9/5/12, at 2-4.

On September 5, 2012, the trial court accepted Appellant’s guilty plea 

and sentenced Appellant in accordance with the negotiated terms. Id. at 

22-26. Appellant did not file a post-sentence motion or a notice of appeal 

from his judgment of sentence.

On September 3, 2013, Appellant filed a timely, pro se PCRA petition 

and the PCRA court appointed counsel to represent Appellant. However, on 

September 25, 2013, Appellant filed a pro se petition entitled “Motion for 
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Grazier Hearing,”3 demanding that the PCRA court allow him to proceed pro 

se during the post-conviction proceedings. 

Following a Grazier hearing, the PCRA court concluded that Appellant 

knowingly, intelligently, and voluntarily waived his right to counsel during 

the post-conviction proceedings. The PCRA court thus granted Appellant’s 

petition to proceed pro se and directed that appointed counsel “remain as 

stand-by counsel to assist [Appellant], if requested to do so.” PCRA Court 

Order, 12/2/13, at 1-2.

On August 24, 2014, Appellant filed a pro se amended PCRA petition. 

Within the petition, Appellant claimed that he was entitled to post-conviction 

collateral relief because: 1) his trial counsel provided him with ineffective 

assistance by failing to “request[] a suppression hearing for the purpose of 

suppressing the evidence discovered following the unlawful seizure of 

[Appellant’s] car” and 2) his sentence is illegal, as the trial court sentenced 

him to serve an unconstitutional mandatory minimum sentencing term. 

Appellant’s Amended PCRA Petition, 8/24/14, at 4 and 7-8 (some internal 

capitalization omitted). 

On October 22, 2014, the PCRA court held a hearing on Appellant’s 

PCRA petition. At the hearing, Appellant called no witnesses other than 

himself and Appellant offered no exhibits. Regarding Appellant’s claim that 

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3 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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trial counsel was ineffective for failing to file a suppression motion, 

Appellant’s testimony was merely:

One thing I found in discovery and the affidavit of probable 

cause is that my car was seized, impounded, and there was 

no warrant issued. And the car was on my property at the 

time of the seizure of it.

I – I believe defense counsel, . . . he should have filed for a 

suppression of the evidence hearing to suppress evidence 

that was found during the unlawful seizure of the vehicle. 

And I think it was – it was, so to say, the fruit of the poison 

tree and detrimental to my case. Minus the guilty plea 

there was no reliable adjudication of guilt or innocence. 

N.T. PCRA Hearing, 10/22/14, at 19 (some internal capitalization omitted).

Appellant did not provide any evidence regarding the underlying facts 

or the potential merits of his alleged suppression claim. See id. at 19-50. 

Further, although the Commonwealth called Appellant’s trial counsel as a 

witness during the hearing, Appellant’s trial counsel did not elaborate on the 

underlying facts or potential merits of the alleged suppression claim – except 

to say that Appellant’s suppression claim had no merit. Id. at 59.

On March 12, 2015, the PCRA court denied Appellant post-conviction 

collateral relief. Appellant filed a timely notice of appeal. 

Appellant raises two claims on appeal:

[1.] Whether the PCRA court erred in finding that trial 

counsel was not ineffective for failing to file a suppression 

motion on the grounds that the trooper lacked reasonable 

suspicion to stop Appellant and that the search of his 

vehicle was executed without a warrant?
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[2.] Whether Appellant’s sentence is illegal and subject to 

correction, mandated by PCRA provisions as such challenge 

was asserted in a timely PCRA and the interpretation in 

[Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015)] 

provides relief?

Appellant’s Brief at 3.

As we have stated:

[t]his Court’s standard of review regarding an order 

dismissing a petition under the PCRA is whether the 

determination of the PCRA court is supported by evidence of 

record and is free of legal error. In evaluating a PCRA 

court’s decision, our scope of review is limited to the 

findings of the PCRA court and the evidence of record, 

viewed in the light most favorable to the prevailing party at 

the trial level. We may affirm a PCRA court’s decision on 

any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal 

citations omitted).

To be eligible for relief under the PCRA, the petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from “one or more” of the seven, specifically enumerated 

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily 

enumerated circumstances is the “[i]neffectiveness 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

Counsel is, however, presumed to be effective and “the burden of 

demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v. 
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Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden, 

Appellant must plead and prove by a preponderance of the evidence that:

(1) his underlying claim is of arguable merit; (2) the 

particular course of 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 challenged 

proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to 

satisfy any prong of the test for ineffectiveness will require rejection of the 

claim.” Id. 

We also note that “[a] criminal defendant has the right to effective 

counsel during a plea process as well as during trial.” Commonwealth v. 

Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). Yet, where the 

ineffectiveness of counsel is claimed in connection with the entry of a guilty 

plea, a petitioner may only obtain relief where “counsel’s deficient 

stewardship resulted in a manifest injustice, for example, by facilitating [the] 

entry of an unknowing, involuntary, or unintelligent plea.” Commonwealth 

v. Moser, 921 A.2d 526, 530 n.3 (Pa. Super. 2007) (en banc) (internal 

citations and quotations omitted). As we have explained:

once a defendant has entered a plea of guilty, it is 

presumed that he was aware of what he was doing, and the 

burden of proving involuntariness is upon him. Therefore, 

where the record clearly demonstrates that a guilty plea 

colloquy was conducted, during which it became evident 

that the defendant understood the nature of the charges 

against him, the voluntariness of the plea is established.
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Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal 

quotations, citations, and corrections omitted), quoting Commonwealth v. 

Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an] 

appellant must prove he would not have [pleaded] guilty and would have 

achieved a better outcome at trial.” Commonwealth v. Fears, 86 A.3d 

795 (Pa. 2014) (internal quotations and citations omitted).

On appeal, Appellant first claims that his trial counsel was ineffective 

for failing to file a pre-trial suppression motion. This claim fails for a variety 

of reasons, one of which is that, during the PCRA hearing, Appellant failed to 

satisfy his burden of production to demonstrate that his underlying claim 

had arguable merit. Indeed, as was explained above, with the exception of 

Appellant’s own testimony, Appellant did not present any evidence during 

the PCRA hearing. Further, during the PCRA hearing, no evidence was 

presented regarding the underlying facts or the potential merits of 

Appellant’s suppression claim. N.T. PCRA Hearing, 10/22/14, at 19-50. 

Therefore, Appellant’s ineffective assistance of counsel claim immediately 

fails, as Appellant failed to “prove by a preponderance of the evidence that . 

. . his underlying claim is of arguable merit.” Fulton, 830 A.2d at 572.

Second, Appellant claims that he is entitled to post-conviction 

collateral relief because his sentence is illegal. In particular, Appellant 

claims that his sentence is illegal, as he was sentenced to a mandatory 

minimum term of five to ten years in prison under 42 Pa.C.S.A. § 9712 –

and we have since held that Section 9712 is unconstitutional in light of 
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Alleyne. Appellant’s Brief at 13. This claim fails because we have held that 

the rule of law announced in Alleyne does not apply retroactively to cases 

on collateral review. Commonwealth v. Riggle, 119 A.3d 1058 (Pa. 

Super. 2015) (“the Alleyne ruling does not prohibit punishment for a class 

of offenders nor does it decriminalize conduct. Rather, Alleyne procedurally 

mandates the inclusion of facts in an indictment or information, which will 

increase a mandatory minimum sentence, and a determination by a 

factfinder of those facts beyond a reasonable doubt. Alleyne, therefore, is 

not substantive. Nor does Alleyne constitute a watershed procedural rule. . 

. . Hence, the fundamental fairness of the trial or sentencing is not seriously 

undermined, and Alleyne is not entitled to retroactive effect in this PCRA 

setting”).4 Since Appellant’s judgment of sentence became final on October 

5, 2012 (30 days after he entered his guilty plea and was sentenced) and 

Alleyne was not decided until June 4, 2013, Appellant cannot rely on 

Alleyne for relief.

Order affirmed.

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4 To the extent Appellant relies upon our Supreme Court’s opinion in 

Hopkins – wherein our Supreme Court held that the mandatory minimum 

sentencing statute at 18 Pa.C.S.A. § 6317(a) was unconstitutional in its 

entirety – we note that Hopkins was decided on direct appeal. Hopkins, 

117 A.3d at 249. Thus, Hopkins does not speak to whether the procedural 

rule announced in Alleyne is retroactive to cases on collateral review.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/17/2015