J-S56037-18, J-S56038-18 & J-S56039-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LASHAWN AUBREY MORTON,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 684 MDA 2018

Appeal from the PCRA Order April 9, 2018

in the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001713-2014

COMMONWEALTH OF PENNSYLVANIA

v.

LASHAWN AUBREY MORTON,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 685 MDA 2018

Appeal from the PCRA Order April 9, 2018

in the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001714-2014

COMMONWEALTH OF PENNSYLVANIA

v.

LASHAWN AUBREY MORTON,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 686 MDA 2018

Appeal from the PCRA Order April 9, 2018

in the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001716-2014

BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.
J-S56037-18, J-S56038-18 & J-S56039-18

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MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 12, 2018

Lashawn Aubrey Morton (“Morton”), pro se, appeals from the Order 

dismissing his Petition for relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

On September 23, 2015, Morton, represented by Brian Williams, Esquire 

(“trial counsel”), entered an open guilty plea, at three separate docket 

numbers (collectively “the three docket numbers”), to four counts of 

possession with intent to deliver a controlled substance (“PWID”)1 and one 

count of criminal use of a communication facility.2 On October 14, 2015, the 

trial court imposed an aggregate sentence of 75 to 180 months in prison. 

Morton did not file a direct appeal.

On December 14, 2015, Morton filed a pro se PCRA Petition. Following 

the appointment of PCRA counsel, however, Morton withdrew the Petition. On 

July 13, 2016, Morton filed another pro se PCRA Petition. Following a 

procedural history that is not relevant to the instant appeal, the PCRA court 

appointed Matthew Sembach, Esquire (hereinafter “PCRA counsel”) to 

represent Morton. On May 3, 2017, Morton filed a pro se Amended PCRA 

Petition. In July 2017, PCRA counsel filed a Petition to Withdraw as counsel 

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1 35 P.S. § 780-113(a)(30).

2 18 Pa.C.S.A. § 7512(a).
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and a Turner/Finley3 “no-merit” letter. Morton filed a pro se Response in 

opposition to the Turner/Finley letter. By an Opinion and Order entered on 

February 5, 2018 (hereinafter the “Rule 907 Notice”), the PCRA court 

permitted PCRA counsel to withdraw and notified Morton of the court’s 

intention to dismiss his Petition without a hearing, pursuant to Pa.R.Crim.P. 

907(1). Morton filed a pro se Response in opposition to the Rule 907 Notice. 

By an Opinion and Order entered on April 9, 2018 (hereinafter the “PCRA 

Dismissal Opinion”),

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the PCRA court dismissed Morton’s PCRA Petition. On 

April 18, 2018, Morton timely filed a pro se Notice of Appeal,5, 6followed by a 

court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of 

on appeal. The PCRA court then issued a Rule 1925(a) Opinion, relying upon 

its reasoning advanced in the PCRA Dismissal Opinion.

Morton now presents the following issues for our review:

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

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

4 This PCRA Dismissal Opinion listed all of the three docket numbers. 

5 The Notice of Appeal listed all of the three docket numbers. This Court’s 

Prothonotary docketed the single Notice of Appeal at three separate dockets, 

each of which listed, respectively, only one of the three trial court docket 

numbers. We will dispose of all the appeals via this Memorandum.

6 We note that the holding of our Pennsylvania Supreme Court in 

Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (decided on June 

1, 2018, and holding that “prospectively, where a single order resolves issues 

arising on more than one docket, separate notices of appeal must be filed for 

each case”), is inapplicable to the instant case, where Morton filed his Notice 

of Appeal on April 18, 2018.
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1. Did the PCRA court misapply the law concerning [Morton’s] 

claim that [trial] counsel induced him to plead guilty rather 

than filing a motion to suppress evidence obtained from an 

illegal wiretap?

2. Did the PCRA court err when it denied [Morton’s] claim [that 

trial] counsel incompetently advised him to plead guilty to 

avoid receiving an illegal mandatory minimum sentence?

3. Did the PCRA court err in its conclusion that PCRA counsel was 

not ineffective for filing a [Turner/]Finley letter rather than 

litigating the merit of [Morton’s] PCRA claims?

4. Did the PCRA court err by not scheduling an evidentiary hearing 

despite the existence of genuine issues of material fact 

concerning [trial] counsel’s advice inducing [Morton] to plead 

guilty?

Brief for Appellant at 5 (issues renumbered, capitalization omitted).

“Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is 

supported by the record and free of legal error.” Commonwealth v. Spotz, 

171 A.3d 675, 678 (Pa. 2017).

In his first issue, Morton argues that the PCRA court erred, and applied 

an incorrect legal standard, when it rejected his claim that trial counsel was 

ineffective for inducing Morton to plead guilty, rather than filing a motion to 

suppress evidence obtained from an illegal wiretap. See Brief for Appellant 

at 8-10.

Our Pennsylvania Supreme Court has explained that

[t]o be entitled to relief on an ineffectiveness claim, a PCRA

petitioner must establish: (1) the underlying claim has arguable

merit; (2) no reasonable basis existed for counsel’s action or
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failure to act; and (3) he suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable

probability the result of the proceeding would have been different. 

Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127

(Pa. 2011) (employing ineffective assistance of counsel test from

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76

(Pa. 1987)). Counsel is presumed to have rendered effective

assistance. Additionally, counsel cannot be deemed ineffective for

failing to raise a meritless claim. Finally, because a PCRA

petitioner must establish all the Pierce prongs to be entitled to

relief, we are not required to analyze the elements of

an ineffectiveness claim in any specific order; thus, if a claim fails

under any required element, we may dismiss the claim on that

basis.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (some internal 

citations omitted).

This Court has further stated 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).] “A defendant

is permitted to withdraw his guilty plea under the PCRA if

ineffective assistance of counsel caused the defendant to enter an

involuntary plea of guilty.” Commonwealth v. Kersteter, ... 877

A.2d 466, 468 (Pa. Super. 2005). We conduct our review of such

a claim in accordance with the three-pronged ineffectiveness test

under section 9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. 

§ 9543(a)(2)(ii). See [Commonwealth v.] Lynch[, 820 A.2d

728, 732 (Pa. Super. 2003)]. “The voluntariness of the plea

depends on whether counsel’s advice was within the range of

competence demanded of attorneys in criminal cases.” Id. at

733 (quoting [Hickman, 799 A.2d at 141]).

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) 

(paragraph break omitted).

The PCRA court, in its Rule 907 Notice, addressed and rejected Morton’s 

claim as follows: 
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Preliminarily, the [c]ourt notes that [a] review of the 

transcript from the guilty plea hearing plainly indicates that 

[Morton] was not threatened or coerced into entering the guilty 

plea. See [N.]T. Guilty Plea, [9/23/15,] at 3-10 ....

As noted above, to prevail on an ineffective assistance of 

counsel (“IAC”) claim, [Morton] must meet each of the three 

prongs of the Pierce analysis. Most significant to the instant

issue, a petitioner must demonstrate actual prejudice resulted

from counsel’s inadequate performance. ...

* * *

In this instance, even if [the PCRA c]ourt were to find that 

[Morton] had met the first two Pierce prongs on the instant IAC 

claim, [Morton] has failed to show there was actual prejudice.

Even disregarding the wiretapped telephone calls, the 

Commonwealth in the instant case had several other pieces of 

evidence that could have been presented to a jury to convict 

[Morton]. Specifically, a confidential informant was used to take 

part in controlled purchases of drugs from [Morton]. [Morton] was 

not only photographed alongside the confidential informant during 

these purchases, but also positively identified by detectives on the 

task force during the course of the controlled purchases. 

Moreover, at trial[,] the Commonwealth could have presented the 

testimony of the confidential informa[nt] as evidence of [Morton’s] 

criminal actions. Perhaps most significantly, a search warrant was 

executed at [Morton’s] residence ... [in] Chambersburg, 

Pennsylvania. During the execution of the search, [Morton] was 

found in bed, with a pair of jeans laying next to the bed; a wallet 

was found in the back pocket of the jeans[,] containing $336[,] 

along with [Morton’s] identification. The money was seized from 

[Morton’s] wallet, and was later compared to the previously 

recorded buy money. Two bills seized matched the previously 

recorded buy money .... ...

In viewing trial counsel’s [representation] as a whole, 

[Morton] has failed to persuade [the PCRA c]ourt that [trial] 

counsel’s conduct “had an actual adverse effect on the outcome 

of the proceedings.”

Rule 907 Notice, 2/5/18, at 23-26. 
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We agree with and adopt the PCRA court’s above reasoning in 

concluding that Morton’s instant claim of trial counsel’s ineffectiveness fails. 

See id.; see also Treiber, supra (stating that an ineffectiveness claim will 

fail if the petitioner does not establish all three prongs of the ineffectiveness 

test). Moreover, in light of the abovementioned incriminating evidence 

against Morton, we conclude that trial counsel had a sound strategic reason 

for advising Morton to plead guilty, and there is nothing in the record to 

indicate that trial counsel induced the plea. See Rathfon, supra (stating that 

the voluntariness of a guilty plea depends on whether counsel’s advice was

within the range of competence demanded of attorneys in criminal cases);

see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (stating 

that trial counsel will not be deemed ineffective where the strategy employed 

by counsel had some reasonable basis designed to effectuate his or her client’s 

interests). Finally, there is no merit to Morton’s claim that the PCRA court 

applied an incorrect legal standard in rejecting his ineffectiveness claim. See

Brief for Appellant at 8 (averring that the PCRA court’s above-listed rationale 

“is flawed because this claim is governed by the rule and standard of review 

established in [Commonwealth] v. Nelson[,] 574 A.2d 1107 (Pa. Super. 

1990).”). Indeed, the PCRA court properly applied the three-prong 

ineffectiveness test in evaluating this claim of trial counsel’s ineffectiveness. 

See Rathfon, supra (clarifying that a claim of ineffectiveness of guilty plea 
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counsel for inducing an involuntary or unknowing plea is governed by the 

three-pronged ineffectiveness test). 

In his second issue, Morton contends that the PCRA court erred in 

rejecting his claim that trial counsel was ineffective for inducing Morton to 

plead guilty based upon the possibility of receiving an illegal mandatory 

minimum sentence. See Brief for Appellant at 11-14. Morton asserts that 

“[a]s a matter of law, it was manifestly unreasonable for [trial] counsel to 

advise [Morton] to plead guilty to avoid receiving mandatory minimum 

sentences that are now unconstitutional[,]” id. at 13, i.e., pursuant to Alleyne 

v. U.S., 570 U.S. 99, 108 (2013) (holding that, under the Sixth Amendment’s 

right to a jury trial, facts that increase mandatory minimum sentences must 

be submitted to the jury and found beyond a reasonable doubt).

Initially, Morton does not identify any mandatory minimum sentencing 

statute that was applicable to his case,7 nor did the trial court sentence him 

to a mandatory minimum. Additionally, at the guilty plea hearing, Morton 

confirmed that 

(1) he was “not threatened or coerced in any way by anyone” 

into entering a plea, N.T., 9/23/15, at 6;

(2) no one had made him any promises in return for his plea, 

id. at 7; and

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7 Morton also fails to identify the mandatory minimum prison term that trial 

counsel had purportedly informed Morton he could face if he did not enter a 

plea.
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(3) he understood that he was entering an open guilty plea, 

which gave the trial court full discretion to impose an 

appropriate sentence. Id. at 4; see also Guilty Plea 

Colloquy, 9/23/15, at 2 (unnumbered) (wherein Morton 

acknowleged in his own writing that he was entering an 

open guilty plea).

Though Morton correctly points out in his brief that the prosecutor had 

made a passing comment at the guilty plea hearing concerning “mandatory 

minimums,” the prosecutor clarified in open court that mandatory minimum 

sentences did not apply to Morton’s case.8 Moreover, the trial court then 

immediately informed Morton of the sentencing guideline ranges that would 

apply to him, without any mention of mandatory minimum sentences. N.T., 

9/23/15, at 5. Finally, at sentencing, there was no mention of mandatory 

minimum sentences, and the trial court imposed standard-range sentences. 

See generally N.T., 10/14/15. Accordingly, as there is nothing in the record 

to provide any arguable merit to Morton’s claim that trial counsel had induced 

him to plead guilty based upon the possibility of receiving an illegal mandatory 

minimum sentence, the PCRA court properly rejected Morton’s ineffectiveness 

claim in this regard. 

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8 Specifically, in response to a question by the trial court inquiring into the 

standard-range sentencing guidelines applicable to Morton’s case, the 

prosecutor stated as follows: “The standard range for one of the [PWID] 

counts, which is, I believe, the delivery of cocaine which is greater than 5 

grams[,] is the next one up. I apologize. These were prepared before with 

the mandatory minimums still applicable. They don’t have the proper one on 

that.” N.T., 9/23/15, at 5. Aside from this remark, there was no other 

mention of mandatory minimum sentences at the guilty plea hearing. 
J-S56037-18, J-S56038-18 & J-S56039-18

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In his third issue, Morton argues that the PCRA court erred in rejecting 

his claim that PCRA counsel was ineffective for filing a Turner/Finley nomerit letter, as opposed to litigating the merits of Morton’s claims. See Brief 

for Appellant at 16-18.9 Morton challenges and characterizes as “flawed”

PCRA counsel’s analysis and rejection of Morton’s claims that trial counsel was 

ineffective for (1) failing to file a motion to suppress evidence obtained from 

an illegal wiretap; and (2) inducing Morton to plead guilty based upon the 

possibility of receiving an illegal mandatory minimum sentence. See id. at 

16-17.

As we have already concluded that Morton’s underlying claims of trial 

counsel’s ineffectiveness lack merit, his ineffectiveness claim against PCRA 

counsel is frivolous. See Commonwealth v. McGill, 832 A.2d 1014, 1024-

25 (Pa. 2003) (explaining that a “layered” claim of appellate counsel’s

ineffectiveness cannot be sustained where the underlying claim of trial 

counsel’s ineffectiveness lacks merit); see also PCRA Dismissal Opinion, 

4/9/18, at 12, 13 (finding that PCRA counsel properly (1) “addressed the 

issues raised by [Morton] in his pro se Amended PCRA Petition filed on May 3, 

2017[,]” and (2) “set forth the nature and extent of his review [in the 

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9 Morton raised his instant claim of PCRA counsel’s ineffectiveness in his pro 

se Response in opposition to the Turner/Finley letter and, thus, it is 

preserved for our review. See Commonwealth v. Ousley, 21 A.3d 1238, 

1245 (Pa. Super. 2011) (stating that an appellant must raise a claim of PCRA 

counsel’s ineffectiveness and inadequacy of counsel’s no-merit letter when the 

matter was still before the PCRA court).
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Turner/Finley letter], and explained why the issues raised by [Morton] are 

meritless. Similarly, this [c]ourt found those issues to be without merit.”). 

Accordingly, Morton’s third issue does not entitle him to relief. 

In his fourth and final issue, Morton asserts that the PCRA court 

improperly failed to conduct an evidentiary hearing prior to ruling on his PCRA 

Petition, where Morton had “alleged genuine issues of material fact concerning 

the substance and competency of [trial] counsel’s advice that induced 

[Morton] to plead guilty.” Brief for Appellant at 14. Morton avers that his 

ineffectiveness claims “cannot be negated by the record or dismissed without 

an evidentiary hearing to determine whether [Morton’s] guilty plea was 

induced by erroneous advice of [trial] counsel to avoid receiving an illegal 

mandatory minimum sentence.” Id. at 15. We disagree.

The right to an evidentiary hearing on a post-conviction 

petition is not absolute. It is within the PCRA court’s discretion to 

decline to hold a hearing if the petitioner’s claim is patently 

frivolous and has no support either in the record or other evidence. 

It is the responsibility of the reviewing court on appeal to examine 

each issue raised in the PCRA petition in light of the record 

certified before it in order to determine if the PCRA court erred in 

its determination that there were no genuine issues of material 

fact in controversy and in denying relief without conducting an 

evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations and 

brackets omitted).

As we discussed above, there is no merit to Morton’s claim of trial 

counsel’s ineffectiveness for inducing Morton to plead guilty. Accordingly, the 

PCRA court did not abuse its discretion in declining to hold an evidentiary 
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hearing on this issue, and Morton’s fourth issue entitles him to no relief. See 

Wah, supra.

Accordingly, the PCRA court did not err or abuse its discretion in 

dismissing Morton’s PCRA Petition without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2018