J-S58028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHARY BLAIR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 491 WDA 2018

Appeal from the PCRA Order April 2, 2018

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0015391-2013

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

MEMORANDUM BY MURRAY, J.: FILED OCTOBER 16, 2018

Zachary Blair (Appellant) appeals from the order denying his petition 

seeking relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 

9541-9546. We affirm.

The PCRA court summarized the relevant factual and procedural history 

of this case as follows:

On June 23, 2016, [Appellant] appeared before [the trial court] to 

plead guilty pursuant to a negotiated plea agreement. [Appellant] 

was originally charged in three separate cases and the negotiated 

plea agreement resolved all three cases. Only two of the cases 

are germane to this appeal. In one case, [Appellant] was charged 

with criminal homicide. The Commonwealth was seeking a 

conviction for first-degree murder and a sentence of death. 

However, because [Appellant] had previously been convicted of 

homicide, a conviction of third degree murder would have carried 

a mandatory life sentence. The second case charged firearm 

possession which was part of the events giving rise to the 

homicide charge. The firearm charge was originally included in 

the same information as the criminal homicide charge but was 

later severed by [the trial court]. Under the terms of the plea 
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agreement, [Appellant] agreed to plead guilty to one count of 

conspiracy to commit third degree murder and the firearm 

offense. The Commonwealth and [Appellant] both agreed that the 

appropriate disposition of this case was a state prison sentence of 

not less than 15 years nor more than 30 years relative to the 

conspiracy charge. No further penalty was imposed at the 

firearms count.

PCRA Opinion, 7/5/18, at 1-2.

Appellant did not file post-sentence motions or a direct appeal. On May 

23, 2017, Appellant filed a pro se PCRA petition. Counsel was appointed and 

filed an amended PCRA petition on September 15, 2017. On September 20, 

2017, the PCRA court ordered the Commonwealth to file a written response 

to Appellant’s amended PCRA petition. The Commonwealth filed its answer 

on November 13, 2017. The PCRA court held a hearing on Appellant’s PCRA 

petition on April 2, 2018 and denied Appellant’s petition that same day. On 

April 6, 2018, Appellant filed this appeal. Both Appellant and the PCRA court 

have complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant presents a single issue for our review:

1. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S PCRA 

PETITION SINCE TRIAL COUNSEL THOMAS FARRELL AND 

PENALTY PHASE COUNSEL MICHAEL MACHEN WERE 

INEFFECTIVE FOR CAUSING APPELLANT TO ENTER INTO AN 

INVOLUNTARY, UNKNOWING AND UNINTELLIGENTLY 

ENTERED GUILTY PLEA SINCE APPELLANT NEVER WANTED TO 

PLEAD AND WANTED TO PROCEED TO TRIAL, BUT MR. 

FARRELL TOLD APPELLANT THAT HE WASN’T ABLE TO 

SUCCESSFULLY TRY THE CASE AND PROCEED TO TRIAL 

BEFORE A JURY (AND THEREFORE APPELLANT WAS BETTER 

OFF PLEADING GUILTY) SINCE APPELLANT WAS AFRICAN 

AMERICAN AND THUGGISH LOOKING AND A CAUCASIAN [sic], 

AND AN ALLEGHENY COUNTY JURY COULD NEVER BE 

CONVINCED TO ACQUIT HIM OF THE INSTANT CHARGES, 

BOTH ATTORNEYS TOLD HIM THAT HE COULD HAVE RECEIVED 
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AT LEAST 20 YEARS IF HIS GUN CASE(S) WERE TRANSFERRED 

TO FEDERAL COURT JURISDICTION, AND BOTH ATTORNEYS 

TOLD HIM THAT IF HE PLED ON [JUNE 23, 2016,] THEY WOULD 

ENSURE THAT THE PLEA AND SENTENCE WOULD BE QUICKLY 

WITHDRAWN SINCE A MOTION TO WITHDRAW THE PLEA 

WOULD BE FILED WITHIN 10 DAYS OF THE PLEA, AND IF THE 

TRIAL COURT WASN’T AVAILABLE TO ENTERTAIN THE MOTION 

DURING THAT 10 DAY PERIOD, AN APPEAL WOULD BE FILED 

IN THE SUPERIOR COURT TO HAVE THE PLEA WITHDRAWN. 

MOREOVER, TRIAL COUNSEL FARRELL FAILED TO ACT TO 

WITHDRAW THE PLEA AFTER RECEIVING NOTICE, THE DAY 

AFTER THE PLEA/SENTENCING, THAT APPELLANT WANTED 

THE PLEA WITHDRAWN?

Appellant’s Brief at 3-4. 

Preliminarily, we note that in reviewing the denial of PCRA relief, we 

examine whether the PCRA court’s determination is supported by the record 

and free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014) (quotations and citations omitted). “To be entitled to PCRA relief, [an] 

appellant must establish, by a preponderance of the evidence, [that] his 

conviction or sentence resulted from one or more of the enumerated errors in 

42 Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

Here, Appellant’s claim challenges plea counsel’s effectiveness as it 

relates to his guilty plea. In deciding ineffective assistance of counsel claims, 

we begin with the presumption that counsel rendered effective assistance. 

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome 

that presumption, the petitioner must establish: “(1) the underlying claim has 

arguable merit; (2) no reasonable basis existed for counsel’s action or failure 

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error, 

with prejudice measured by whether there is a reasonable probability that the 
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result of the proceeding would have been different.” Id. (citation omitted). 

To demonstrate prejudice in an ineffective assistance of counsel claim, “the 

petitioner must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the 

petitioner fails to prove any of these prongs, the claim is subject to dismissal. 

Bomar, 104 A.3d at 1188.

“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.” Commonwealth v. 

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation 

omitted). “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.” Id.

(quotations and citations omitted). “Thus, 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.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 

2013) (quotations and citations omitted). “The reasonable probability test is 

not a stringent one; it merely refers to a probability sufficient to undermine 

confidence in the outcome.” Id. (quotations and citations omitted).

With respect to valid guilty pleas, this Court has explained:
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A valid guilty plea must be knowingly, voluntarily and intelligently 

entered. The Pennsylvania Rules of Criminal Procedure mandate 

that pleas be taken in open court, and require the court to conduct 

an on-the-record colloquy to ascertain whether a defendant is 

aware of his rights and the consequences of his plea. Specifically, 

the court must affirmatively demonstrate the defendant 

understands: (1) the nature of the charges to which he is pleading 

guilty; (2) the factual basis for the plea; (3) his right to trial by 

jury; (4) the presumption of innocence; (5) the permissible ranges 

of sentences and fines possible; and (6) that the court is not 

bound by the terms of the agreement unless the court accepts the 

agreement. This Court will evaluate the adequacy of the plea 

colloquy and the voluntariness of the resulting plea by examining 

the totality of the circumstances surrounding the entry of that 

plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations 

omitted).

Appellant argues that his guilty plea was not knowing, voluntary, and 

intelligent because plea counsel was ineffective. Specifically, Appellant 

contends that “he wanted to proceed to a jury trial and never wanted to plead 

guilty to any of the instant crimes, but that he was manipulated and coerced 

into doing so by [t]rial [c]ounsel Thomas Farrell and [p]enalty [p]hase 

[c]ounsel Michael Machen. . .” Appellant’s Brief at 14-15. Appellant asserts 

that Attorney Farrell and Attorney Machen informed him that if he did not 

plead guilty, the prosecutor would transfer Appellant’s firearm charge to 

federal court where he would face an additional prison sentence of 25 to 30 

years; Attorney Farrell told Appellant that he was not qualified to try the case 

before a jury; both attorneys promised Appellant that they would withdraw 

the guilty plea within 10 days; and Attorney Farrell warned Appellant that his 
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“thuggish” appearance would cause a jury to find him guilty. Id. at 15-17. 

The record does not support Appellant’s argument.

Based upon our review of the certified record, including Appellant’s

written colloquy and the transcripts of his guilty plea and PCRA hearing, we 

conclude that Appellant’s guilty plea was knowing, voluntary, and intelligent. 

The record reflects that the trial court informed Appellant of the nature of the 

charges to which he pled guilty, the factual basis for the plea, his right to trial 

by jury, the presumption of innocence, the sentences, and that the court was 

accepting the negotiated sentence. N.T., 6/23/16, at 31-60; Explanation of 

Defendant’s Rights, 6/23/16, at 1-11.

During the PCRA hearing, Attorney Farrell acknowledged that he 

communicated to Appellant his concerns regarding Appellant’s appearance. 

N.T., 4/2/18, at 45. However, Attorney Farrell explained that he wanted 

Appellant to make a good impression during jury selection and discussed with 

Appellant ways to soften his appearance for trial. Id. at 45, 57-61. Attorney 

Farrell testified that the conversations relating to Appellant’s appearance were

part of trial strategy discussions and not about inducing Appellant to plead 

guilty. Likewise, both Attorney Farrell and Attorney Machen testified that they 

discussed the threat of federal prosecution with Appellant. Id. at 40-44, 52. 

Both attorneys explained that these discussions were to ensure that Appellant 

was fully informed of all the risks of proceeding to trial. Id. Both attorneys 

denied promising Appellant that they would withdraw his guilty plea. Id. at 
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38-39, 52-53. The PCRA court found Attorney Farrell and Attorney Machen’s 

testimony credible. PCRA Court Opinion, 7/5/18, at 4.

Importantly, during the oral colloquy, Appellant indicated that he was 

not forced into pleading guilty, and that he was satisfied with counsel’s 

representation. Id. at 42-45. Appellant acknowledged that he decided to 

exchange his rights, including the right to defend the charges brought against 

him, for a favorable sentence of 15 to 30 years of incarceration, where, if 

convicted following a jury trial, Appellant would have faced a life sentence or 

possibly the death penalty. Id. at 33-36, 40-41. Appellant stated that he

understood the ramifications of pleading guilty and that he was entering his 

plea on his own volition. Id. at 44. 

By arguing that plea counsel’s ineffectiveness forced him to plead guilty, 

Appellant implies that his responses to the plea colloquies were untruthful. A 

defendant who elects to plead guilty “is bound by the statements he makes in 

open court while under oath and he may not later assert grounds for 

withdrawing the plea which contradict the statements he made at his plea 

colloquy.” Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 

2007) (quotations and citations omitted). “A criminal defendant who elects 

to plead guilty has a duty to answer questions truthfully.” Id. Likewise, in 

cases where a PCRA court passes on witness credibility, its credibility 

determinations should be provided great deference by reviewing courts. See, 

e.g., Commonwealth v. (Damon) Jones, 912 A.2d 268, 293 (Pa. 2006); 
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Commonwealth v. Santiago, 855 A.2d 682, 694 (Pa. 2004) (Opinion 

Announcing the Judgment of the Court) (“[W]e are bound by the PCRA court’s 

credibility determinations where there is record support for those 

determinations.”); Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 

1998) (“Just as with any other credibility determination, where the record

supports the PCRA court’s credibility determinations, those determinations are 

binding on this [C]ourt.”). For these reasons, we conclude that the PCRA court 

did not err in denying Appellant’s petition seeking post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2018