J.A21014/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

BRANDON STALEY, :

:

Appellant : No. 980 EDA 2014

Appeal from the PCRA Order February 27, 2014

In the Court of Common Pleas of Delaware County 

Criminal Division No(s).: CP-23-CR-0002362-2009

BEFORE: ALLEN, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2015

Pro se Appellant, Brandon Staley, appeals from the order entered in 

the Delaware County Court of Common Pleas dismissing his first Post 

Conviction Relief Act1(“PCRA”) petition. He claims his PCRA counsel was 

ineffective by, inter alia, not challenging plea counsel’s stewardship 

regarding various issues and that the PCRA court erred by not recognizing 

that Commonwealth v. Clinger, 833 A.2d 792 (Pa. Super. 2003), 

controlled the outcome of his case. We affirm. 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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We adopt the facts and procedural history as set forth in the PCRA 

court’s opinion. See PCRA Ct. Op., 4/30/14,2at 1-4. We add that the 

criminal complaint has the following handwritten statement at the end: 

“5/5/09 complaint amended to add 903 to 2501 conspiracy to murder (2 

counts) E. Courtney.” Criminal Compl., 1/6/09, at 4. A conspiracy to 

commit third degree murder charge was then listed in form AOPC 501A-99, 

dated 6/17/09, and form AOPC 501B-09, also dated 6/17/09. The criminal 

information also charged Appellant with conspiracy to commit third degree 

murder. Criminal Information, 6/25/09. On August 20, 2009, Appellant 

filed an omnibus pretrial motion referencing the charges, including 

conspiracy to commit third degree murder charge. Appellant’s Omnibus PreTrial Mot., 8/20/09, at 1. Appellant did not otherwise move to strike or 

dismiss the charge.

At the negotiated guilty plea hearing, the following exchange 

transpired:

[Appellant]: Yes, but I—from my presumption, I thought a 

Third Degree doesn’t carry Conspiracy.

The Court: Pardon?

[Appellant]: I thought the Third Degree don’t carry a 

Conspiracy.

[Commonwealth]: It’s a Conspiracy to Murder charge.

 

2 The opinion was docketed on this date, notwithstanding a typewritten 

“FILED: 4/29/14” on the opinion itself. 
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The Court: It’s a Conspiracy . . .

[Commonwealth]: And that’s . . .

The Court: . . . to Murder generally, okay? So—and in 

addition to the agreement, there has to be some overt act. 

For example, if you drove somewhere. And—or—it—for 

the purpose of committing the object crime. You don’t 

actually have to carry the crime out. You just have to 

have—either you or your co-conspirator committed an 

overt act in furtherance of the object conspiracy. Do you 

understand that?

[Appellant]: Um-hum.

N.T. Guilty Plea Hr’g, 1/21/10, at 11-12. The court accepted the plea and 

sentenced him to the negotiated sentence of twenty seven and one-half to 

fifty-five years’ imprisonment. Commonwealth v. Staley, 497 EDA 2010, 

at 2 (Pa. Super. Mar. 14, 2011) (unpublished memorandum).

On direct appeal, Appellant claimed he did not understand the charges 

against him and his plea was made under duress.3 Id. at 1-2. This Court 

affirmed, see id., and our Supreme Court denied Appellant’s petition for 

allowance of appeal on September 26, 2011. See Commonwealth v. 

Staley, 298 MAL 2011 (Pa. Sept. 26, 2011). Appellant did not file a petition 

for certiorari with the High Court.

On August 17, 2012, Appellant timely filed a pro se PCRA petition 

alleging, inter alia, that plea counsel was ineffective by negotiating a guilty 

 

3 Appellant did not pursue a claim that conspiracy to third degree murder 

was a legal impossibility on direct appeal. Staley, supra, at 4 n.4.
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plea for the nonexistent crime of conspiracy to commit third degree murder. 

Appellant’s Pro Se Mem. of [Law] in Support of PCRA Pet., 8/17/12,4at 2-3. 

PCRA counsel was appointed, and he successfully moved for numerous 

extensions of time to file an amended PCRA petition “as he awaited guidance 

from the Pennsylvania Supreme Court in Commonwealth v. Fisher, 80 

A.3d 1186 (Pa. 2013).” PCRA Ct. Op. at 3-4. After Fisher was decided, 

PCRA counsel filed several Turner/Finley5 no-merit letters and applications 

to withdraw on November 15, 2013, December 20, 2013, and January 28, 

2014. 

On January 31, 2014, the court granted PCRA counsel’s motion to 

withdraw and issued a notice of intent to dismiss per Pa.R.Crim.P. 907. 

Appellant filed his pro se response to the Rule 907 notice on February 11, 

2014.6 On February 27, 2014, the court formally dismissed Appellant’s first 

PCRA petition. Appellant timely appealed, and the court did not order him to 

comply with Pa.R.A.P. 1925(b), but filed a responsive opinion.

 

4 This date reflects the docketing date, as the record did not include an 

envelope, postmark, or any other indication of when Appellant mailed the 

petition. See generally Commonwealth v. Wilson, 911 A.2d 942, 944 

n.2 (Pa. Super. 2006) (discussing prisoner mailbox rule).

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth 

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

6 The docket reflects that on February 4, 2014, Appellant filed a pro se

motion for leave to file an amended PCRA petition and an amended PCRA 

petition, but the certified record did not include either pleading. Docket, 

5/1/14, at 8.
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Appellant filed with this Court a pro se application for remand to have 

the trial court supplement the record with documents that purportedly would 

substantiate his contention that the trial court constructively added the 

conspiracy to commit third degree murder charge. Appellant’s Mot. for 

Remand to Supplement R., 3/19/15. This Court denied the motion without 

prejudice for Appellant to challenge any deficiencies in the certified record in 

his appellate brief. Order, 4/14/15.

Appellant raises the following issues:

Ineffective assistance of counsel in violation of Appellant’s 

right to counsel guaranteed by the Sixth and Fourteenth 

Amendments to the Constitution of the United States:

(i) PCRA counsel was ineffective for failing to file 

amended PCRA petition where a meritorious issue of 

appellant being induced to plead guilty to noncognizable offense at the time plea was entered and 

accepted by the court;

(ii) PCRA counsel was ineffective for failing to raise 

direct appeal counsel ineffectiveness for failing to raise 

trial counsel’s ineffectiveness for failing to raise trial 

courts [sic] error, due to legal innocence of Appellant to 

criminal conspiracy charges.

(iii) PCRA counsel was ineffective for failing to properly 

layer direct appeal counsel’s ineffectiveness for failing 

to raise trial court error, for constructively amending 

charges during guilty plea colloquy, where trial court 

informed Appellant the conspiracy charge was for 

murder generally and not third degree murder, and lack 

of subject matter jurisdiction, causing Appellant to 

plead guilty unknowingly;

(iv) PCRA counsel was ineffective for failing to properly 

layer direct appeal counsel’s ineffectiveness for failing 

to challenge the factual basis for guilty plea, where 
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Commonwealth failed to establish underlying criminal 

act, to conspiracy to commit third degree murder?

PCRA court erred in dismissing PCRA petition and failing to 

rule on amended PCRA petition filed of record raising expost facto violation of applying Fisher ruling to Appellant’s 

PCRA proceedings, where at time of plea and sentencing 

Clinger was controlling precedential case?

PCRA court erred and abused it’s [sic] discretion by 

dismissing PCRA petition without a hearing based on PCRA 

counsel’s no-merit letter, relying on Fisher, where 

Appellant’s sentence was final and Fisher was not 

declared to be retroactive to cases on collateral review, 

and failing to address amended PCRA petition?

Appellant’s Brief at 4. Appellant’s pro se response to the court’s Rule 907 

notice raised no additional issues. 

We summarize all of Appellant’s arguments together, as they are 

interrelated. At heart, Appellant contends that Clinger was in effect at the 

time of his plea, and pursuant to Clinger, the crime of conspiracy to commit 

third degree murder did not exist. Further, the subsequent Fisher decision 

by the Pennsylvania Supreme Court should not control disposition of this 

case, Appellant asserts, because it “was not declared to be retroactive . . . to 

cases on collateral review.” Id. at 8. He maintains that the offense simply 

cannot exist as it is “logically impossible.” Id. at 11. Appellant argues the 

court improperly amended the charge to include conspiracy to commit third 

degree murder at the time he entered his guilty plea. He claims the certified 

record did not include documents substantiating his contention regarding the 

court’s improper amendment. Appellant opines that because the trial court 
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misplaced but ultimately located and transmitted the signed guilty plea 

statement to this Court, it does not exist for purposes of appellate review 

and thus, he should be permitted to withdraw his plea. Accordingly, 

Appellant claims all prior counsel were ineffective. We hold Appellant is not 

due relief. 

“On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v. AbuJamal, 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).

[C]ounsel is presumed to have provided effective

representation unless the PCRA petitioner pleads and

proves that: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable basis for his or her conduct;

and (3) Appellant was prejudiced by counsel’s action or

omission. To demonstrate prejudice, an appellant must

prove that a reasonable probability of acquittal existed but

for the action or omission of trial counsel. A claim of

ineffective assistance of counsel will fail if the petitioner

does not meet any of the three prongs. Further, a PCRA

petitioner must exhibit a concerted effort to develop his

ineffectiveness claim and may not rely on boilerplate

allegations of ineffectiveness.

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008)

(punctuation and citations omitted).

This Court set forth the applicable law regarding counsel’s stewardship 

during guilty plea colloquies:

A criminal defendant has the right to effective counsel 

during a plea process as well as during trial. The law does 

not require that appellant be pleased with the outcome of 

his decision to enter a plea of guilty. Instead, the 
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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. 

The voluntariness of the plea depends on whether 

counsel’s advice was within the range of competence 

demanded of attorneys in criminal cases. Therefore, 

allegations of 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.

Our law is clear that, to be valid, a guilty plea must be 

knowingly, voluntarily and intelligently entered. There is 

no absolute right to withdraw a guilty plea, and the 

decision as to whether to allow a defendant to do so is a 

matter within the sound discretion of the trial court. To 

withdraw a plea after sentencing, a defendant must make 

a showing of prejudice amounting to manifest injustice. A 

plea rises to the level of manifest injustice when it was 

entered into involuntarily, unknowingly, or unintelligently. 

A defendant’s disappointment in the sentence imposed 

does not constitute manifest injustice.

In order to ensure a voluntary, knowing, and intelligent 

plea, trial courts are required to ask the following 

questions in the guilty plea colloquy:

1) Does the defendant understand the nature of the 

charges to which he or she is pleading guilty or nolo 

contendere?

2) Is there a factual basis for the plea?

3) Does the defendant understand that he or she has 

the right to a trial by jury?

4) Does the defendant understand that he or she is 

presumed innocent until found guilty?

5) Is the defendant aware of the permissible ranges of 

sentences and/or fines for the offenses charged?
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6) Is the defendant aware that the judge is not bound 

by the terms of any plea agreement tendered unless the 

judge accepts such agreement?

The guilty plea colloquy must affirmatively demonstrate 

that the defendant understood what the plea connoted and 

its consequences. 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. . . . Furthermore, nothing in the rule precludes the 

supplementation of the oral colloquy by a written colloquy 

that is read, completed, and signed by the defendant and 

made a part of the plea proceedings.

Commonwealth v. Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008) 

(punctuation and citations omitted).

In Commonwealth v. Eller, 807 A.2d 838 (Pa. 2002), our Supreme 

Court addressed whether Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 

1999), “established a new rule of [PCRA] procedure that cannot be applied 

‘retroactively’” to the defendant’s case. Eller, 807 A.2d at 839. The Eller

Court explained that because Lantzy construed the statutory language of 

the PCRA, it did not create a new rule:

[I]in deciding Lantzy, this Court was not fashioning a 

judicial rule of criminal or post-conviction procedure to 

decide the case. Instead, this Court construed the terms 

of a statute, the PCRA. As Madame Justice Newman 

noted in her recent unanimous opinion in Fiore v. White, 

562 Pa. 634, 757 A.2d 842, 847 (2000), “[n]ot every 

opinion creates a new rule of law.” This is particularly so 

when the opinion involves the construction of a statute, 

and it either adopts a view of the statute “which was not 

wholly without precedent,” id.; see also McCloskey v. 

WCAB, 501 Pa. 93, 460 A.2d 237, 239 n. 3 (1983) 

(decisions that do not “articulate a new rule but merely 

rel[y] upon a statutory interpretation which [is] not wholly 

without precedent, . . . are treated as relating back to the 
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original statute because they are nothing more than 

interpretations of existing legislation”), or it involves this 

Court’s first opportunity to construe the disputed provision. 

Fiore, 757 A.2d at 848. With respect to the latter 

circumstance, which was the circumstance facing the Court 

in Lantzy, the Fiore Court noted:

There can be no change to statutory law when there 

has been no amendment by the legislature and no 

prior decision by this Court. Only the legislature has 

the authority to promulgate legislation. Our role is to 

interpret statutes as enacted by the [General] 

Assembly. We affect legislation when we affirm, 

alter, or overrule our prior decisions concerning a 

statute or when we declare it null and void, as 

unconstitutional. Therefore, when we have not yet 

answered a specific question about the meaning of a 

statute, our initial interpretation does not announce 

a new rule of law. Our first pronouncement on the 

substance of a statutory provision is purely a 

clarification of existing law.

Id. See also Rivers v. Roadway Express, Inc., 511 

U.S. 298, 312–13, 114 S. Ct. 1510, 128 L. Ed. 2d 274 

(1994) (“judicial construction of a statute is an 

authoritative statement of what the statute meant before 

as well as after the decision of the case giving rise to that 

construction.”); Buradus v. General Cement Prods. Co., 

356 Pa. 349, 52 A.2d 205, 208 (1947) (“[i]n general, the 

construction placed upon a statute by the courts becomes 

a part of the act, from the very beginning”) (emphasis 

in original).

Eller, 807 A.2d at 844.

In Fisher, our Supreme Court addressed “whether conspiracy to 

commit third degree murder is a cognizable offense.” Fisher, 80 A.3d at 

1190. The Fisher Court initially discussed the statutory language from the 

Crimes Code and case law defining the elements for conspiracy and third 

degree murder. Our Supreme Court then cited almost four decades of 
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appellate case law affirming convictions for conspiracy to commit third 

degree murder. Id. at 1192-93 (“Our review of Pennsylvania case law 

regarding conspiracy to commit third degree murder reveals convictions for 

this crime have long been recognized as valid.”). The Fisher Court, 

however, acknowledged the sole, aberrant case of Clinger, which vacated 

the defendant’s conviction for conspiracy to commit third degree murder as 

a legal impossibility. Fisher, 80 A.3d at 1193. Our Supreme Court, 

however, essentially overruled Clinger and reaffirmed that conspiracy to 

commit third degree murder is a long recognized, cognizable offense. Id. at 

1192-93, 1195.

Instantly, the Fisher Court construed the statutory language for 

conspiracy and third degree murder and thus authoritatively stated the 

meaning of the statute prior to and subsequent to Fisher. See Eller, 807 

A.2d at 844 (citing Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-

13; Buradus v. Gen. Cement Prods. Co., 52 A.2d at 208). Thus, similar 

to the Eller Court, Fisher did not create a new rule of law, but merely 

interpreted the preexisting conspiracy and third degree murder statutes. 

See Eller, 807 A.2d at 844. Such an interpretation, bolstered by almost a 

half-century of near-unanimous precedent, merely reaffirmed a longstanding 

understanding that conspiracy to commit third degree murder is a cognizable 

offense. See id. Thus, Fisher has no retroactive effect. See id. 
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We add that the record belies Appellant’s claim that the court 

amended the charges against him at the guilty plea colloquy to include a 

conspiracy to commit third degree murder, as sufficient documentation 

exists that the charge predated his colloquy. See, e.g., Criminal 

Information. Further, we have reviewed the circumstances surrounding his 

guilty plea colloquy and conclude it was constitutionally sound.7 See 

Bedell, 954 A.2d at 1212-13. Because Appellant’s issues lack arguable 

merit, we cannot hold that his plea and PCRA counsel were ineffective for, 

inter alia, causing him to enter an involuntary plea. See Perry, 959 A.2d at 

936; Bedell, 954 A.2d at 1212.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2015

 

7 There is no merit to Appellant’s assertion that we should not consider his 

signed guilty plea statement because it was lost, but then ultimately found 

and transmitted to this Court. See generally Pa.R.A.P. 1926(b)(1).
'·~i::;·::\nc\: rs1 ·~1r,r~·/r Y])~L 

(\l:tl°J' 

E'1TEf.'~(JFi:lf;C \~Ai~~ 

I The parties stipulated to the facts in the case that formed the factual basis for Appellant's guilty plea. 

(N.T. pp.18-21). 

Affidavit of Probable Cause attached to the Criminal Complaint alleged as follows 1: three 

Chester Deli at 60 West 9th Street in Chester, Delaware County, Pennsylvania. The 

Michael P. Jackson which took place on January 2, 2009, at 3 :30 p.m. in front of the New 

The Appellant, Brandon D. Staley, was arrested and charged with the murder of 

follows: 

Appellant's Post Conviction Relief Act Petition. The nature and history of the case are as 

This is an appeal from this Court's Order of February 27, 2014 denying 

I. FACTUAL AND PROCEDURAL HISTORY: 

contentions are meritless. 

inter alia, that he tendered his negotiated guilty plea under duress. Appellant's 

Counsel and an independent review of the record by the Trial Court. Appellant claims, 

Relief Act ("PCRA") petition after submission of a Finley "no merit" letter by PCRA 

This is an appeal of the dismissal of Brandon D. Staley's first Post Conviction 

NILON, J. FILED: 4/29/14 

OPINION 

William R. Toal, III, Esquire, Assistant District Attorney for the Commonwealth 

Brandon Staley, pro se 

COMMONWEALTH OF PENNSYLVANIA Trial Court Docket No. CP-23-CR--2362-09 

v. Superior Court No. 980 EDA 2014 

BRANDON D. STALEY 

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 07/02/2015 01:37 PM
2 

witnesses observed Appellant shoot the victim multiple times. The first witness went to 

the Chester Police Department and asked to speak to the detectives assigned to the 

shooting. He stated that on January 2, 2009, he was with a friend on 9th Street and they 

were talking to another friend, Michael P. Jackson, a/k/a "Sexy Chocolate". As they were 

walking home, his friend realized that she did not have her cell phone. When he arrived 

home, he called Jackson and asked him about the cell phone. While he was on the phone, 

his sister's boyfriend, Appellant Staley, grabbed the phone and spoke with Jackson. They 

agreed to .meet. The witness and Appellant drove to 9th Street to meet Jackson. Appellant 

left the car and went into the New Chester Deli. The witness saw Appellant talking to 

Jackson, and saw Jackson push Appellant. Then, Appellant pulled out his gun and went 

crazy shooting Jackson at least six times. Appellant fled the scene in a car. The second 

witness confirmed the above and stated she was forced at gun-point to drive .Appellant 

from the scene. She drove away and Appellant jumped out of the car and fled the area in 

an unknown direction. A third witness observed Appellant at the Deli talking with 

Jackson, then Appellant grabbed Jackson's phone and began to walk away. Jackson then 

began to walk toward Appellant. Appellant pulled out his gun and shot Jackson multiple 

times. Each witness positively identified Appellant as the shooter in a photo array. Police 

found Mr. Jackson at the scene suffering from nine gunshot wounds and he was taken to 

Crozer-Chester Medical Center. Two hours later, Mr. Jackson was pronounced dead at 

Crozer Chester Medical Center. 

On March 19, 2009, the Appellant was arrested by United States Marshals inside 

a hotel room in Laurel, Maryland. 

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3 

2 18 P.S. § 2502. 

3 18 P.S. § 903. 

4 18 P.S. § 907. 

Esquire, requested numerous extensions to file an amended Post Conviction Relief Act 

amended PCRA within sixty days. Court-appointed counsel, Mr. Stephen Molineux, 

2012, Mr. Stephen Molineux, Esquire was appointed to represent Appellant and to file an 

On August 17, 2012, Appellant filed a pro se PCRA petition. On September 13, 

Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court. 

Superior Court affirmed his judgment of sentence. On September 28, 2011, Appellant's 

him and was not informed of the possible sentences he faced. On March 14, 2011, the 

entered into under duress as he did not have adequate time to review the evidence against 

he did not understand the nature and consequences of his plea. He also claimed it was 

withdraw his guilty plea because he claimed it was neither knowing nor voluntary in that 

On February 18, 2010, Appellant filed a timely direct appeal. Appellant sought to 

and 82. The Appellant is to receive credit for time served. (N.T. 1/21/10 pp.25-26). 

Crime, 1 to 2 years, to run concurrently with the sentence imposed under Informations A 

consecutively to Information A; and on Information D, Possessing an Instrument of 

count 2, Conspiracy to conunit Murder of the third degree, 7-1/2 to 15 years to run 

Information A, Murder in the third degree, 20 years to 40 years SCI; Information B, 

and Possessing an Instrument of Crime4• Appellant was sentenced as follows: 

negotiated guilty plea to Murder in the Third Degree,2 Conspiracy to Conunit Murder,3 

June 25, 2009, the Appellant was arraigned. On January 21, 2010, Appellant entered a 

Justice Dawn Vann and all charges were held over to the Court of Common Pleas. On 

On June 16, 2009, a Preliminary Hearing was conducted by Magisterial District 

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4 

Petition as he awaited guidance from the Pennsylvania Supreme Court in Commonwealth 

v. Fisher, 80 A.3d 1186 (Pa. 2013) on one of the Appellant's PCRA issues. 

Fisher held that conspiracy to commit third-degree murder was a cognizable 

offense in Pennsylvania. Accordingly, Appellant's claims that his counsel was ineffective 

because he allowed Appellant to plead guilty to conspiracy to commit third-degree 

murder, asserting that it was not a cognizable offense, were without merit. 

On November 15, 2013, Mr. Molineux, Esquire, filed his initial no merit letter. 

On December 20, 2013, counsel filed a numeric letter superseding the November filing. 

On January 28, 2014, Mr. Molineux, Esquire, filed a more detailed letter advising that the 

PCRA petition was devoid of merit and filed an application to withdraw pursuant to 

Pennsylvania v. Finley, 481 U.S. 551 (1987), and Commonwealth v. Turner, 544 A.2d 

927 (Pa. 1988). Appellant was served with a copy of the Application to Withdraw 

Appearance. 

On January 31, 2014, the Court issued a notice of intent to dismiss the petition 

without a hearing. On February 4, 2014, the Appellant filed an "Amended Pro Se 

Petition". On or about February 14, 2014, the Appellant filed pro se objections to the 

Court's notice. On February 27, 2014, the Court denied the PCRA petition without a 

hearing. 

On March 26, 2014, Appellant filed a timely notice of appeal to the Superior 

Court from the denial of his PCRA petition. 

The following issues are raised by Appellant as outlined m Mr. Molineux' s 

Application to Withdraw: 

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5 

proceedings would have been different. Id.; see also Commonwealth v. Kimball, 724 

omissions of counsel, there is a reasonable probability that the outcome of the 

strategic basis for his action or inaction, and (3) prejudice, i.e., but for the errors and 

prove: (1) that the claim(s) are of arguable merit, (2) that counsel had no reasonable 

973 (Pa. 1987); citing Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must 

counsel was ineffective is composed of three prongs. Commonwealth v. Pierce, 527 A.2d 

ineffectiveness of counsel. 42 Pa.C.S. § 9543 (a)(2)(ii). The test for determining whether 

The PCRA provides relief for petitioners whose convictions resulted from 

Super 2008). 

of record and free of legal error. Commonwealth v. Boyer, 962 A.2d 1213, 1214 (Pa. 

to a determination of whether the PCRA court's conclusion is supported by the evidence 

The standard of review of a PCRA court's dismissal of a PCRA petition is limited 

purpose would be served by further proceedings. Pa.R.Crim.P. 907. 

the record shows that there are no genuine issues concerning any material fact, and no 

petition was dismissed without a hearing because a thorough review of the pleadings and 

The issues raised by Appellant in his PCRA petition are without merit. The PCRA 

II. DISCUSSION: 

3. Whether defendant's sentencing guidelines were incorrectly calculated, and 

counsel was ineffective for not objecting to preserve issue for appeal? 

2. Whether Appellant's guilty plea was made under duress? 

1. Whether conspiracy to commit third-degree murder is a non-cognizable crime 

and therefore it was ineffective for his counsel to allow him to enter a guilty 

plea to a nonexistent crime? 

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6 

v. Pierce, 645 A.2d 189, 194-195 (Pa. 1994). 

The petitioner bears the burden during PCRA proceedings of proving all elements 

of ineffective assistance, including prejudice. Commonwealth v. Spatz, 870 A.2d 822, 

834 (Pa. 2005). The test for prejudice at the PCRA stage is more exacting than the 

harmless en-or standard applied on direct appeal. Id. 

A.2d 326, 333 (Pa. 1999). The failure to satisfy any prong of Pierce's three-part test will 

cause the claim to fail. Commonwealth v.Gonzalez, 858 A.2d at 1222 (Pa. Super. 2004). 

The law presumes counsel has rendered effective assistance, and it is the 

petitioner's burden to prove otherwise. 42 Pa.C.S. § 9543 (a)(2)(ii); Commonwealth v. 

Gonzalez, 858 A2.d 1219, 1222 (Pa. Super. 2004), appeal denied, 871 A.2d 189 (Pa. 

2005). The petitioner must prove the ineffectiveness by a preponderance of the evidence. 

42 Pa.C.S. § 9543; Commonwealth v. Banks, 656 A.2d 467, 469 (Pa. 1995). The 

reasonableness of counsel's decisions cannot be based on a distorted hindsight review. 

Commonwealth v. Saranchak~ 866 A.2d 292, 304 (Pa. 2005). 

The threshold inquiry in ineffectiveness claims is whether the basis for counsel's 

action or inaction, which forms the basis for the ineffectiveness claim, is of arguable 

merit. Commonwealth v. Pierce, 645 A.2d 189, 194 (Pa. 1994). Counsel cannot be 

found ineffective for failing to pursue a baseless or meritless claim. Commonwealth v. 

Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004). 

Once the threshold inquiry is met, the "reasonable basis" test is used to 

"determine whether counsel's chosen course was designed to effectuate his client's 

interest. If we conclude that the particular course chosen by counsel had some reasonable 

basis, our inquiry ceases and counsel's assistance is deemed effective." Commonwealth 

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7 

PCRA counsel is not required to perform a broad extra-record investigation where 

the record belies the petitioner's factual allegations, the petitioner offers no facts to 

support his claim, and counsel is therefore able to conclude that the issues petitioner 

seeks to raise have no merit. See, Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890 

(1999). Furthermore, bald, undeveloped allegations fail to satisfy Appellant's burden of 

establishing entitlement to PCRA relief when such allegations are mere boilerplate 

constitutional claims. Commonwealth v. Hall, 872 A.2d 1177 (Pa. 2005); Commonwealth 

v. Washington, 880 A.2d 536 (Pa. 2005). 

In order for PCRA counsel to withdraw, a request to withdraw must be 

accompanied by a "no merit" letter, which details the nature and extent of PCRA 

counsel's review, lists each issue the petitioner wished to have reviewed, and explains 

why the petitioner's issues are meritless. In the case sub Judice, the Court determined 

that PCRA counsel's Finley "no merit" letter was issued in compliance ·with the 

provisions set forth in Pennsylvania v. Finley, 481 U.S. 551 (1987), and Commonwealth 

v. Turner, 544 A.2d 927 (Pa. 1988). In Finley, the United States Supreme Court held that 

a PCRA petitioner is entitled to an independent review of the record by competent 

counsel. Finley, 481 U.S. 551. The independent review was described more fully by the 

Pennsylvania Superior Court in Turner, wherein the court opined that counsel had to 

present a "no merit" letter detailing the nature and extent of counsel's review and listing 

each issue petitioner wished to have raised and explaining why the issues were meritless. 

Commonwealth v. Turner, 479 A.2d 568, 569-570 (Pa.Super. 1984). 

This Court conducted its own independent review of the record and agrees with 

counsel that the petition was meritless. See, Turner, 544 A.2d at 928. 

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8 

1. Appellant claims that Conspiracy to Commit Third-Degree Murder is a 

non-cognizable crime and therefore it was ineffective for his counsel to 

allow him to enter a guilty plea to a non-existent crime. 

ineffectiveness. 

Guided by these standards, the court turns to Appellant's claims of 

injustice." Commonwealth v. Pollard, 830 A.2d 517, 522 (Pa. Super. 2003). 

sentencing, a defendant must make a showing of prejudice amounting to "manifest 

(citing Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999)). To withdraw a plea after 

involuntary or unknowing plea. Commonwealth v. Fears, 836 A.2d 52, 60 (Pa. 2003) 

will entitle the petitioner to relief only if the ineffectiveness caused him to enter an 

Allegations of ineffective assistance in connection with the entry of a guilty plea 

plea). 

manifest injustice would result from refusal to allow petitioner to withdraw his guilty 

material fact, where a Petitioner was not entitled to relief as matter of law and no 

entitled to hearing on his PCRA petition in absence of genuine issue concerning any 

v. Morrison, 878 A.2d 102, 109 (Pa. Super. 2005) (post-conviction petitioner was not 

terms of their guilty pleas assert baseless claims of ineffectiveness. See Commonwealth 

This rule applies when, as here, criminal defendants who are dissatisfied with the 

If the judge is satisfied from ... review [of a PCRA petition] that there are no 

genuine issues concerning any material fact and that the defendant is not entitled 

to post-conviction collateral relief, and no purpose would be served by any further 

proceedings, the judge shall give notice to the parties of the intention to dismiss 

the petition and shall state in the notice the reasons for the dismissal. The 

defendant may respond to the proposed dismissal within 20 days of the date of the 

notice. The judge thereafter shall order the petition dismissed, grant leave to file 

an amended petition, or direct that the proceedings continue. 

Pennsylvania Rule of Criminal Procedure 907 (1) provides in relevant part: 

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9 

Appellant seeks to withdraw his guilty plea to Third-Degree Murder because he 

alleges that the guilty plea was entered under duress for a number of reasons. Appellant 

felt he had no choice but to enter the guilty plea even though he asserts his innocence. 

Appellant asserts that his plea counsel was in possession of a statement of an eyewitness 

Donya McCoy Johnson, who labeled the victim as the aggressor. Also, plea counsel was 

in possession of the toxicology report which showed that the victim had a BAC of .10% 

and supported the Appellant's self defense theory. Moreover, all of Appellant's claims 

2. Appellant claims that his guilty plea was made under duress. 

Appellant seeks to withdraw his guilty plea for several reasons. Initially, 

Appellant's main argument is that Conspiracy to Commit Third Degree Murder is a noncognizable crime and therefore it was ineffective for his counsel to allow him to enter a 

guilty plea to a non-existent crime. 

Several of Appellant's other arguments flow from his basic premise that 

Conspiracy to Commit Third Degree Murder was a non-cognizable crime, including that 

counsel was ineffective for failing to challenge this charge and that the sentence for this 

charge was illegal since it stems from a non-existent crime. Appellant's claims that stem 

from this assertion are without merit. The Pennsylvania Supreme Court has held that 

Conspiracy to Commit Third-Degree Murder is a cognizable offense, abrogating 

Commonwealth v. Clinger, 833 A.2d 792. Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 

2013). Accordingly, Appellant's claims that his counsel was ineffective because counsel 

allowed him to plead guilty to Conspiracy to Commit Third Degree Murder, asserting 

that it is not a cognizable offense, are without merit. 

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10 

Appellants' claim, the guidelines were calculated based on Appellant having a zero (0) 

A review of the applicable sentencing guideline forms indicates that, contrary to 

score a zero (0). 

had one prior misdemeanor offense at the time of sentencing which made his prior record 

guidelines were calculated to make him a (revoc) repeat violent offender when in fact he 

incorrect sentencing guidelines is without merit. Appellant claims that his sentencing 

Appellant's claim that his counsel was ineffective for failing to object to the use of 

3. Appellant claims that his trial counsel was ineffective for not challenging 

the use of incorrect sentencing guidelines. 

litigated." 

the merits of the issue." Thus, the voluntariness of the plea issue is barred as "previously 

could have had review as a matter of right"-in this case, the Superior Court- "has ruled on 

An issue is "previously litigated" if "the highest appellate court in which the Petitioner 

prohibition against raising "previously litigated" issues. 42 Pa.C.S.§§9543(a), 9544(a)(2). 

Super. 2011) (unpublished opinion). Thus, these issues fail because of the PCRA's 

intelligent and voluntary. See Commonwealth v. Staley, No. 497 EDA 2010, pp.4-5 (Pa. 

Superior Court rejected his arguments and found that his guilty plea was knowing, 

evidence against him and was not informed of the possible sentences he faced. The 

that the guilty plea was entered under duress as he did not have the time to review the 

his guilty plea was not entered knowingly, voluntarily, and intelligently. He also claimed 

Appellant's direct appeal sought to withdraw his guilty plea and contended that 

Superior Court and the plea was found to be voluntary. 

regarding the involuntariness of his guilty plea were already litigated in the Pennsylvania 

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; ·~ ,,.,.... __ 

. . 

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11 

BY/OURT: 

c==b,4<'=~ / 

JAMES F. NILON, JR., J. <, 

should be affirmed. 

For the foregoing reasons, the court's order denying Appellant's PCRA petition 

III. CONCLUSION: 

guidelines is frivolous. 

accurately calculated sentencing guideline form. Appellant's claim of incorrect sentencing 

prior record score. As a result, the sentence Appellant received was based upon an 

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