J

- S33019

- 21

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

COMMONWEALTH OF PENNSYLVANIA

v.

KAREEM SANDERS

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 353 EDA 2021 Appeal from the PCRA Order Entered January 8, 2021 In the Court of Common Pleas of Lehigh County Criminal Division at

No(s): CP

- 39

- CR

- 0002068

- 2018

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.: FILED JANUARY 06, 2022

Appellant Kareem Sanders appeals pro se from the order denying his

first timely Post Conviction Relief Act 1 (PCRA) petition. Appellant c ontends

that his plea counsel was ineffective result ing in an involuntary guilty plea

.
We affirm.

We summarize the facts based on the Commonwealth ’ s factual

summary at Appellant ’ s guilty plea hearing. On February 28, 201 8, the victim

Danny Cancel was involved in a “ fender bender ” with a red car, a verbal

argument ensued with the red car ’ s driver , and Mr. Cancel retrie ved a revolver

and shot the red car, which drove off. N.T. Plea Hr ’ g, 5/13/19, at 25. Mr.

Cancel dr o ve away, pull ed into a gas station, and enter ed the station to pay

_________________ __________ ______ ____ _______

1 42 Pa.C.S. § 9541

- 9546.J

- S33019

- 21

- 2

-

for his gas. Id. at 26. Inside Mr. Cancel ’ s vehicle were several passengers,
including Mr. Cancel ’ s minor daughter, who was in the back seat and testified

at the plea hearing , and Ms. Selena Perrin , who was in the front passenger

seat. Id. at 26, 47.

While Mr. Cancel was inside the store, Appellant and his friend,

Cass ieam Hicks, approached the passenger side of Mr. Cancel ’ s vehicle. Id.

at 26. Appellant open ed the front passenger door while holding a firearm and

beg a n screaming at Ms. Perrin. Id. Mr. Cancel saw the disturbance, exit ed

the store, and approache d his vehicle , where words were exchanged

. Id. Mr.

Cancel retrieve d his five

- shot revolver , 2 fired the weapon , and killed Mr. Hicks.

Id. Mr. Cancel then shot and wounded Appellant, who was attempting to flee

.
Id. at 27. Mr. Cancel emptie d his revolver, Appellant stop ped , and Mr. Cancel

turned to run. Id. at 28. Appellant fired two shots, with one bullet killing Mr.

Cancel. 3 Id. The bullet struck Mr. Cancel ’s side, travelling from his back to

his front. Id. at 29.

_________________ __________ ______ ____ _______

2 Appellant ’ s guilty plea hearing did not always detail certain events, e.g. , how Mr. Cancel retrieved his revolver.

3 At this juncture, the trial court noted the Commonwealth ’ s position that Appellant was under an unreasonable belief that self defense was justified. N.T. Plea Hr ’ g, 5/13/19, at 2 8 (referencing 18 Pa.C.S. § 2503(b)) ; id. at 29 (assistant district attorney explaining that Mr. Cancel was the aggressor after the “fender bender,” Mr. Cancel escalated by firing at Mr. Hicks, but when Mr. Cancel “had no ammu nition [and] he was no longer a threat,” Appellant shot and killed Mr. Cancel).J

- S33019

- 21

- 3

-

After the Commonwealth s ummarized the facts, the trial court

conducted an on

- the

- record guilty plea colloquy of Appellant, which we quote

in further detail below. We state the subsequent procedural history as

presented by the PCRA court:

On May 13, 2019, [Appellant] entered a guilty plea to one count of v oluntary m anslaughter, and one count of p ossession of f irearms. On the same day, he was sentenced to not less than 10
no r more than 20 years in [prison] on the voluntary manslaughter charge, and a concurrent 5

- 10 year sentence on the firearm charge.

On January 3, 2020, [Appellant] filed a pro se [PCRA] p etition. In his petition, he identified three issues: (1) unlawfull y induced plea, (2) ineffective assistance of [plea] counsel, and (3) unreasonably extensive sentence. [ 4 ] On January 30, 2020, the c ourt appointed Matthew Rapa, Esq. as counsel for [Appellant] and directed Attorney Rapa to file an a mended PCRA or appropr iate Turner / Finley [ 5 ] letter within thirty days. On February 19, 2020, Attorney Rapa filed a m otion to w ithdraw as c ounsel along with accompanying Turner / Finley Letter. On March 5, 2020, [Appellant] filed a m otion to p roceed w ithout c ounsel. On March 9, 2020, the c ourt scheduled a hearing for the m otion to w ithdraw
as c ounsel for May 14, 2020. The c ourt also issued a n otice of i ntent to d ismiss pursuant to Pa.R.Crim.P. 907 [, which stated that it “does not find that there is any basis upon whi ch a hearing is necessary to decide this matter”]

.

. . . On October 6, 2020, [Appellant] filed his response to the
c ourt ’ s n otice of i ntent to d ismiss. On October 14, 2020, the c ourt scheduled a hearing for [Appellant ’ s] motions for December 21, 2020. I n [Appellant ’ s] r esponse to the c ourt ’ s n otice of i ntent to d ismiss, he asserted that Attorney Rapa ’ s Turner / Finley l etter

_________________ __________ ______ ____ _______

4 The PCRA court essentially quoted Appellant ’ s PCRA petition verbatim. See Pro Se PCRA Pet., 1/3/20, at 1.

5 Commonwealth v. Turner , 544 A.2d 927 ( Pa. 1988) ; Commonwealth v. Finley , 550 A.2d 213 ( Pa. Super. 1988) ( en banc )

.J

- S33019

- 21

- 4

-

was defective and that the c ourt should not have permitted him to withdraw as counsel.

PCRA Ct. Order, 1/11/21, at 1 n.1 (citations omitted and formatting altered).
Appellant’s Rule 907 response also claimed that PCRA counsel was ineffective
by not raising plea counsel’s ineffectiveness because Appellant denied that he

intentionally killed Mr. Cancel. Rule 907 Resp., 10/6/2 0, at 1. The PCRA

court, however, did not immediately enter an order granting Attorney Rapa

permission to withdraw. 6

On January 11, 2021, the PCRA court denied Appellant ’ s PCRA petition.

Order, 1/11/21. Appellant timely appealed and timely filed a cour t

- ordered

Pa.R.A.P. 1925(b) statement. 7

A ppellant raises the following issues on appeal :

1. Did the PCRA court err[] by denying PCRA relief where Appe llant established by a preponderance of evidence that he received ineffective assistance of counsel when co unsel failed to object to defective colloquy and protect [Appellant] from pleading guilty to a crime he is innocent of committing?

_________________ __________ ______ ____ _______

6 D uring the pendency of this appeal, the PCRA court notified this Court that it failed to enter an order granting Attorney Rapa permission to withdraw. PCRA Ct. Op., 3/9/21, at 1. On Apri l 14, 2021, this Court remanded, while retaining jurisdiction, to have the PCRA court enter the order granting Attorney Rapa permission to withdraw, which the trial court entered on May 7, 2021.

7 On February 4, 2021, the PCRA court directed Appellant to f ile his Rule 1925(b) statement within twenty

- one days. Appellant ’ s Rule 1925(b) statement was postmarked on February 24, 2021 , but docketed on March 1, 2021. See Commonwealth v. Wilson , 911 A.2d 942, 944 n.2 (Pa. Super. 2006) ( stating, “[p] ursuant to the prisoner mailbox rule, a document is deemed filed when placed in the hands of prison authorities for mailing ” (citation omitted and formatting altered)).J

- S33019

- 21

- 5

-

2. Was [plea] counsel ineffective for not properly informing [Appellant] of defenses as well as the elements of voluntary manslaughter so [Appellant] could make a knowing[] and intelligent plea; [Appellant] expressed protestation of innocence during colloquy?

3. Did the trial court abuse its discretion for not advising [Appellant] of the elements of the crime or distinguishing the plea from an Alford 8 type of plea when Appellant asserts factual innocence?

Appellant ’ s Brief at 3.
We summarize Appellant’s arguments for his first two issues together,

as they are interrelated. In support of his first issue, Appellant argues that

plea counsel was ineffective by failing to object to a defective colloquy. Id.

at 16. In support of his second issue, Appellant argues that plea counsel was

ineffective by not discussing potential defenses and stating the elements of

voluntary manslaughter. Id. at 21.
By way of background, the trial court stated the elements of voluntary

manslaughter, incl uding an unreasonable belief of self defense, and Appellant

repeatedly indicated he understood the trial court. N.T. Plea Hr’g, at 18

- 2 2.
After the Commonwealth recited the factual basis for Appellant’s plea, the

following exchange occurred:

_________________ __________ ______ ____ _______

8 North Carolina v. Alford , 400 U.S. 25 (1970). “ An Alford plea is a nolo contendere plea in w hich the defendant does not admit guilt but waives trial and voluntarily, knowingly and understandingly consents to the imposition of punishment by the trial court. ” Commonwealth v. Snavely , 982 A.2d 1244, 1244 n.1 (Pa. Super. 2009) (citation omitted).J

- S33019

- 21

- 6

-

The court:

. . . Now, you heard what the D istrict A ttorney stated, correct?

[Appellant]: Yes.

The court: A nd you understand this is his summary of the facts of this case; d o you understand that?

[Appellant] : Y es

.
The court: T his is what he ’ s saying the C ommonwealth can prove in this c ase?

[Appellant] : Y es.

The court: D o you admit to firing two shots at D anny C ancel on February 28th, 2018 in L ehigh C ounty?

[Appellant] : Y es.

The court: D o you admit that one of these shots struck him and killed him?

[Appellant] : Y es.

The court: A nd do you admit to all the facts and circumstances that [the assistant district attorney] and y our attorney placed on the record as to how it was told?

[Appella nt] : N o.

The court: W ell, okay. Do you admit that [ Mr. Cancel ] shot and killed your friend M r. Hicks, correct?

[Appellant] : Y es.

The court: A ll right. And do you admit that you, after that, you pointed your w eapon at him and fired two shots at him, correct?

[Appellant] : Y es.

The court: A ll right. Now, is there any part of the facts that you take issue w ith?J

- S33019

- 21

- 7

-

[Appellant] : Y eah. [The assistant district attorney] said it was a fact that I had my gun out; it wasn ’ t. And h e said it was a fact what I said to M s. Perrin. I didn ’ t say that.

The c o urt: O kay. All right. But you did pull your gun out at some point?

[Appellant] : A fter I got shot, yes.

The court: A fter you got shot?

[Appellant] : Y es.

The court: H e struck you?

[Appellant] : Y es.

The court: O kay. All right.

[Appellant ’ s counsel] : T he problem we have is that with [Mr.] C ancel ’ s child

-- I b elieve she was 14 or 15 at the time

-- indicates that [Appellant] had the gun out, [ 9 ] a nd

--

The court: I understand that.

[Appellant ’ s coun sel] : S o t hat ’ s where

--

The court: W hat injuries did you sustain?

[Appellant] : T wo fractured ribs and a collapsed lung and a gunshot wound to m y chest.

The court: O kay. So that was after C ancel shot you?

[Appellant] : Y es.

The court: O kay. All right. And then

-- but at some point, his weapon was e mpty and you shot him, correct?

_________________ __________ ______ ____ _______

9 Appellant’s counsel noted that if Mr. Cancel’s daughter’s testimony was believed, Appellant’s “provocation would negate self defense, and that would have been a jury question.” N.T. Plea Hr’g at 34.J

- S33019

- 21

- 8

-

[Appellant] : Y es.

The court: A ll right. So you admit to that, right?

[Appellant] : Y es.

The court: O kay. Is that sufficient?

[Assistant district attorney] : Y es.
[Appellant] : N o, I didn ’ t know his gun was empt y. How was I supposed to k now that?

The court: A ll right. Well, you admit that you shot him?

[Appellant] : Y es.

The court: A nd you admit that at least one of those rounds that you shot, one o f the two rou nds that you shot him with killed him, correct?

[Appellant] : Y es.

The court: A nd you admit it was your intent to kill him when you fired at h im, correct?

[Appellant] : N o. No. That wasn ’ t my intent to kill him. I was
s hooting in self d efense. Imperfect self defense.

The court: W ell, yeah, I understand that, but you can intend to kill somebody a nd still have imperfect self defense. I mean, you usually don ’ t point a gun and f ire it at somebody unless you intend to kill them. That ’ s why I ’ m ask ing the q uestion.

[Appellant] : O kay.

The court: A ll right. So, you weren ’ t shooting at him with the intent to w ounding him ; am I correct?

[Appellant] : I mean, I didn ’ t have no intent at the time.

The court: Y ou were reacting?J

- S33019

- 21

- 9

-

[Appellant] : Y es.

The court: I get it. I get it.

[Appellant] : I wasn ’ t thinking let me kill him.

The court: I understand. He was struck

- it went into his

-- [Assistant district attorney] : I t went into his

-- there was a n injury to his arm.

The court: T he left arm?

[Assistant district attorney] : T he left arm and through his chest.

T he court: S o it went through the left arm into the chest?

[Assistant district attorney] : T he most likely scenario is it goes into the left arm and into t he chest and it goe s to the lung, the pulmonary artery, and

--

The court: S o it was a side shot. It shot into the side?

[Assistant district attorney] : I t was a side shot, but the forensic pathology indicates the d irection is back. The anatomical direction is back. So, yes. It was a side shot.

The court: A ll right. Right? Do you admit to that?

[Appellant] : Y es.

The court: Y ou satisfied with that?

[Appellant ’ s plea counsel] : Y es, Y our H onor.
[Assistant district attorney] : Y es.

The court: A n d once again, just so you understand, the agreement is v oluntary manslaughter and possession of a firearm prohibited with a fixed 10 t o 20 sentence.

[Appellant] : Y es.

The court: D o you understand that?J

- S33019

- 21

- 10

-

[Appellant] : Y es.

The court: A ll right. Based on what I ’ ve heard, I find the plea is voluntary and u nderstandingly tendered, and I will accept the plea. Please have [Appellant] e ndorse the plea on the information for each count. I have reviewed the guilty p lea colloquy form. I ’ m satisfied [Appellant] has answered all the questi ons on t he form and has signed the form.

N.T. Plea Hr ’ g, at 39

- 4 3 (formatting altered). Appellant stated that no one
threatened him to plead guilty and that he was pleading guilty of his own free

will. Id. at 43.
With respect to the guilty plea colloquy form referenced above,

Appellant initialed and signed the guilty plea colloquy form, which among

other questions, asked Appellant if his lawyer explained “the elements of the

crime or crimes that [he was] pleading g uilty to?” Guilty Plea Colloquy,
5/13/19, at 3. Appellant checked “Yes” and initialed the page. Id. Having
summarized the relevant background, we next summarize Appellant’s

argument s

. In support of his first issue, Appellant argues that he denied inten tionally

kill ing the victim and maintains that he only acted in self defense. Appellant’s

Brief at 16. Appellant asserts that given his claim of self defense, plea counsel
should have objected, the trial court should have refused the plea, and the

PCRA c ourt erred by dismissing his petition. Id. at 19. With respect to his

second issue, Appellant argues that plea counsel was ineffective by not statingJ

- S33019

- 21

- 11

-

the elements of voluntary manslaughter or informing him of any alternative

defenses

. Id. at 20

- 21

.

In reviewing Appellant’s claims, we are guided by the following

principles:

[O]ur standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is fr ee 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.

* * *

We have explained that a claim has arguable merit where the factual averments, if accurate, could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination.

* * *
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.

Commonwealth v. Sandusky , 203 A.3d 1033, 1043

- 44 (Pa. Super. 2019)

(citations omitted and formatting altered), appeal denied , 216 A.3d 10 29 (Pa.

2019).

A criminal defendant ’ s right to effective counsel extends to the plea process, as well as during trial. Under the PCRA, 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 petitioner 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 demande d of attorneys in criminal cases.J

- S33019

- 21

- 12

-

To establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel ’ s errors, he would not have pleaded guilty and would have insisted on going to trial. This is not a stringent r equirement. The reasonable probability test refers to a probability sufficient to undermine confidence in the outcome.

Commonwealth v. Brown , 235 A.3d 387, 391 (Pa. Super. 2020) (citations
omitted and formatting altered).

In Commonwealth v. McCauley , 797 A.2d 920 (Pa. Super. 2001) , this

Court explained the prejudice required as

similar to the “ manifest injustice ” standard applicable to all post

sentence attempts to withdraw a guilty plea. The law does not require that appellant be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that [ the defendant’s ] decision to plead g uilty be knowingly, voluntarily and intelligently made.
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 demon strates 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. A defendant is bound by the statements he makes during his plea colloquy, and may not assert grounds for withdrawing the plea that contradict statements made when he pled.

McCauley , 797 A.2d at 922 (citations omitted and formatting altered). We

add that a valid guilty plea colloquy inquires into the factual bas is for the plea

and the nature and elements of the charges. See id.
Criminal homicide includes voluntary manslaughter, which is defined by

the Crimes Code in relevant part as follows:J

- S33019

- 21

- 13

-

(a) General rule.

— A person who kills an individual without lawful justi fication commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) the individual killed

. . . (b) Unreasonable belief killing justifiable.

— A person who intent ionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

18 Pa.C.S. § 2503(a)

- (b); s ee also id. § 2501.

Under Chapter 5, self defense falls under the defense of justification,

which is a complete defense to criminal liability. See id. § 502. Section
505(a) of the Code provides:
(a) Use of force justifiable for protection of the person.

— The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

Id. § 505(a).

However, Section 505(a) is limited by Secti on 505(b)(2):
(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:

(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating

. . . .J

- S33019

- 21

- 14

-

Id. § 505(b) (2). Finally, a “specific intent to kill can be inferred from the use

of a deadly weapon upon a vital part of the victim ’ s body.” Commonwealth

v. Jones , 610 A.2d 931, 938 ( Pa. 1992) ( citation omitted and formatting

altered).

Instantly, f ollowing our review of the record and the parties’ briefs, we

conclude t hat the record supports the PCRA court’s order denying relief.

Firstly, with respect to App ellant’s argument that he denied inten tionally killing

Mr. Cancel , he fails to recognize that even when acting in self defense, a

specific intent to kill can be inferred from firing a gun at the victim. See id.

Therefore , to the extent Appellant denies shooting Mr. Cancel with an intent

to k ill, because Appellant failed to establish an error of law, he did not establish
plea counsel’s ineffectiveness. See id. ; Brown , 235 A.3d at 391 (explaining

that a defendant must plead and prove counsel’s error caused him to enter an
involuntary plea). S econd, the record , as summarized herein, reflects that

the trial court and Appellant’s lawyer explained , and Appellant understood , all

of the elements of the crimes at issue. See , e.g. , N.T. Plea Hr’g, at 18

- 22;

Guilty Plea Colloquy at 3

. Third, Appellant failed to identify any alternative

defense such that his plea was involuntary or unknowing. See Brown , 235
A.3d at 391. Therefore, Appellant’s boilerplate allegation does not satisfy his

burden that plea counsel was ineffective. See San dusky , 203 A.3d at 1043

-

44. In sum, Appellant’s first two issues are generally premised on a
misunderstanding of the legal definition of an intentional killing and imperfectJ

- S33019

- 21

- 15

-

self defense

. For these reasons, because Appellant failed to establish plea

coun sel should have objected on the basis of a misstatement of the law , a
defective colloquy, and by not stating the elements of voluntary

manslaughter, Appellant did not establish plea counsel was ineffective. See

Brown , 235 A.3d at 391 ; McCauley , 797 A.2d a t 922 (stating requirements

for a valid guilty plea colloquy).

Lastly, Appellant argues that the trial court abused its discretion by not

stating the eleme nts of persons not to possess a firearm and voluntary

manslaughter. Appellant ’ s Brief at 24

- 2 6

. Appellant further argues that his

plea was involuntary under Alford , and that plea counsel threatened Appellant

that he would receive a life sentence if he did not accept the plea. Id. at 28.

Init ially, to the extent that Appellant argues the trial court erred by not

stating the elements, such a claim could have been raised in a pre

- or post

sentence motion to withdraw his guilty plea or on direct appeal. Appellant did

neither and therefore he can not raise this issue for the first time in his PCRA

petition. See 42 Pa.C.S. § 9544(b)

. Further, the record establishes that the

trial court actually state d the elements for voluntary manslaughter, and that

Appellant signed a written guilty plea colloquy indicating that his counsel

explained all of the elements of the offenses at issue and no one forced him

to accept the plea

. See N.T. Plea Hr’g, at 18

- 22; Guilty Plea Colloquy at 3 , 8

. Appellant is bound by , and cannot contradict, his colloquy

. See McCauley ,
797 A.2d at 922. Further , Appellant waived his Alford plea argument as itJ

- S33019

- 21

- 16

-

was not within his Rule 1925(b) statement or otherwise raised in his PCRA

petition

. See Pa.R.A.P. 1925(b) (4). Finally, to the extent that Appellant
argued that PCRA counsel was ineffective by not arguing plea counsel’s

ineffectiveness , PCRA counsel cannot be ineffective for raising a meritless

claim. See Commonwealth v. Bradley , --- A.3d

--- , --- , 2021 WL 4877232,

at *7, 19 (Pa

. filed Oct. 20, 2021) (providing that a PCRA petitioner may raise

claims of ineffectiveness of PCRA counsel for the first time on appeal) ;
Commonwealth v. Spotz , 896 A.2d 1191, 1210 (Pa. 2006) (stating

“[c] ounsel will not be deemed ineffective for failing to raise a meritless claim ”)

. For these reasons, because Appellant failed to establish his plea counsel was

ineffective, the PCRA court correctly denied relief. See Sandusky , 203 A.3d

at 1043

- 44.

Order affirmed

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/06/2022