J-S13011-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MERLE ALAN PAGE, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 678 WDA 2023

Appeal from the PCRA Order Entered May 19, 2023

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0001439-2017

BEFORE: KUNSELMAN, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: May 29, 2024

Merle Alan Page, Jr. appeals from the May 19, 2023 order dismissing his 

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546. After careful review, we affirm. 

A detailed recitation of the factual background is not relevant to our 

disposition and need not be reiterated in full here. In sum, Appellant was 

captured on video surveillance shooting the decedent, Marcell Jakeem 

Flemings, at a gas station on the evening of January 15, 2017, killing him. 

See notes of testimony, 1/8/18, at 110-115. 

The PCRA court summarized the procedural history of this case as 

follows:

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* Former Justice specially assigned to the Superior Court.
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Following a jury trial, [Appellant] was convicted of 

[third-degree murder, recklessly endangering another 

person, possessing instruments of crime, and firearms 

not to be carried without license, 18 Pa.C.S.A. 

§§ 2502(c), 2705, 907, and 6106(a)(1), 

respectively,] on January 8, 2018. On February 21, 

2018, [Appellant] was sentenced to an aggregate 25 

years and 8 months to 51 years and 4 months 

incarceration. A post-sentence motion was denied on 

February 28, 2018. [Appellant’s] direct appellate 

rights were reinstated on December 11, 2018. 

Following a remand from the Superior Court, a time 

credit issue was corrected. The Superior Court 

otherwise affirmed [Appellant’s] convictions, his 

sentence, and the trial court’s decision to not give a 

jury instruction for voluntary manslaughter. The 

Pennsylvania Supreme Court denied [Appellant’s]

Petition for Allowance of Appeal on July 16, 2020. 

[See Commonwealth v. Page, 227 A.3d 380

(Pa.Super. 2020), appeal denied, 237 A.3d 388 (Pa. 

2020).] The instant PCRA Petition was filed on 

October 11, 2021.

PCRA court opinion, 5/19/23 at 1 (footnotes omitted).

On April 25, 2022, the PCRA court conducted an evidentiary hearing on 

this matter, during which Appellant’s trial and appellate counsel1testified. 

Thereafter, on May 19, 2023, the PCRA court entered an opinion and order 

dismissing Appellant’s petition. This timely appeal followed on June 13, 2022.

2

Appellant raises the following issue for our review:

I. Did the [PCRA court] commit an abuse of 

discretion and reversible error by failing to grant 

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1 Appellant was represented at his jury trial by Stephen Sebald, Esq. and Eric 

Hackwelder, Esq.; Jessica Fiscus, Esq. represented Appellant on direct appeal. 

2 Appellant and the PCRA court have complied with Pa.R.A.P. 1925. 
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[Appellant] a new trial due to ineffective 

assistance of trial and appellate counsel?

Appellant’s brief at 1 (extraneous capitalization omitted).

Proper appellate review of a PCRA court’s dismissal of a PCRA petition 

is limited to the examination of “whether the PCRA court’s determination is 

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

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “This Court grants 

great deference to the findings of the PCRA court, and we will not disturb those 

findings merely because the record could support a contrary holding.” 

Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation 

omitted). In order to be eligible for PCRA relief, a defendant must plead and 

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

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). 

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. 

§ 9543(a)(3).

I.

Appellant first argues that his trial counsel were ineffective for failing to 

properly advise him on his right to testify on his own behalf nor call him as a 

witness “in an effort to substantiate the request for a voluntary manslaughter 

instruction.” Appellant’s brief at 5. 

To prevail on a claim of ineffective assistance of counsel under the PCRA, 

a petitioner must establish the following three factors: “first[,] the underlying 

claim has arguable merit; second, that counsel had no reasonable basis for 
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his action or inaction; and third, that Appellant was prejudiced.” 

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014) 

(citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014). 

[A] PCRA petitioner will be granted relief only when he 

proves, by a preponderance of the evidence, that his 

conviction or sentence resulted from the [i]neffective 

assistance of counsel which, in the circumstances of 

the particular case, so undermined the 

truth-determining process that no reliable 

adjudication of guilt or innocence could have taken 

place. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (internal quotation 

marks omitted; some brackets in original), citing 42 Pa.C.S.A. 

§ 9543(a)(2)(ii).

“[C]ounsel is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 

1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 30 A.3d 487 

(Pa. 2011). 

Upon review, we find that Appellant’s claim fails because he failed to 

satisfy the first and second prongs of the aforementioned ineffectiveness test; 

namely, that the claim had arguable merit and that trial counsel had no 

reasonable strategic basis for their inaction. The record reflects that Attorney 

Hackwelder testified at the PCRA hearing that he instructed Appellant on his 

right to testify and specifically advised him not to do so. See notes of 

testimony, 4/25/22 at 49.
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Attorney Hackwelder intimated that due to Appellant’s prior convictions 

and the surveillance video of the shooting, it was his belief that testifying 

would not have been in Appellant’s best interests:

Q. Why would it have been disastrous [if Appellant 

testified]?

A. He had crimen falsi. I thought with the facts

of this case, the video, that we were lucky to get 

a third degree. We fought very hard for it. I 

wanted to get the voluntary manslaughter 

instruction, I thought it was appropriate, but we 

didn’t. But, no, I mean, had he testified I feared 

that we wouldn’t have got the result that we did, 

to be honest with you. Not just because of the

crimen falsi, but for other reasons I felt that 

had he testified it wouldn't have been in his best 

interest. And he was aware of that.

Notes of testimony, 4/25/22 at 49-50.

The PCRA court found Attorney Hackwelder’s testimony credible. PCRA 

court opinion, 5/19/23 at 2. Based on the foregoing, Appellant’s first 

ineffectiveness claim must fail. 

II.

Appellant next argues that his trial counsel were ineffective for failing to 

request that the trial court conduct a colloquy on whether he desired to testify

on his behalf, nor object to the trial court’s failure to do so. Appellant’s brief 

at 12. This claim is meritless.

Our review of the record establishes that Appellant has failed to 

demonstrate that this claim had arguable merit. It is undisputed that the trial 
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court instructed Appellant with regard his right to testify on multiple occasions

at trial, and Appellant acknowledged that he understood these rights:

THE COURT: That means you don't have to testify or

you don’t have to present evidence. That’s entirely 

up to you. Do you understand that?

[Appellant]: Yes. 

THE COURT: Now, the decision whether or not to 

testify has to be your decision. Your lawyer can advise 

you one way or the other, but this is your trial so it 

has to be your decision whether or not to testify. I’m 

not going to put you on the spot and ask you now. But 

when the Commonwealth rests its case, assuming 

that it goes to jury, I’ll be asking you if you want to

testify. So just give it some thought.

[Appellant]: Okay. 

Notes of testimony, 1/5/18 at 178-179

THE COURT: All right. Now, if you elect not to testify, 

which is entirely up to you, the jury will be instructed 

that you have an absolute right founded on the 

constitution not to testify. Do you understand that?

[Appellant]: Yes.

THE COURT: And that they cannot draw any adverse 

inference from the fact that you didn't testify. In other 

words, they can’t hold it against you and say you must 

be guilty because you didn’t testify. Do you 

understand that?

[Appellant]: Yes sir.

THE COURT: Do you have any questions about 

anything that I’ve just explained to you?

[Appellant]: No sir.

Notes of testimony, 1/8/18 at 86-87.
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Based on the foregoing, it is clear that Appellant was sufficiently 

informed of this right to testify and that Appellant’s ineffectiveness claim in 

this regard must fail. 

III.

Appellant next argues that his trial counsel were ineffective in failing to 

have him reevaluated for competency or raise a mental infirmity defense at 

trial. Appellant’s brief at 13-14.3 Appellant further avers that both his trial 

and appellate counsel were ineffective in failing to challenge the trial court’s 

initial competency determination in post-sentence motions and/or on direct 

appeal. Id. 

Upon review, we find that Appellant has failed to demonstrate that his

trial and appellate counsel had no reasonable strategic basis for their 

inactions. Specifically, the record reflects that Attorney Sebald testified at the 

PCRA hearing that when he met Appellant prior to trial, he seemed to 

“understood what was going on when we went over where he was at with the 

case and trial strategy.” Notes of testimony, 4/25/22 at 35-36. Attorney 

Sebald further testified that he did not have Appellant reevaluated for 

competency because he did not believe the issue had merit. Id. at 37.

Attorney Hackwelder, in turn, testified that although he was aware of 

Appellant’s mental health history, they had a reasonable strategic basis for 

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3 The record reflects that the trial court found Appellant competent to stand 

trial following the completion of a March 31, 2017 competency hearing.
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electing not to seek another competency evaluation or pursue an insanity or

metal infirmity defense:

Q. ... [Appellant’s] claim that you should have or 

could have raised a mental health -- mental 

infirmity defense or insanity defense; did you 

ever consider that?

A. No. An insanity defense is very difficult to win, 

number one, and we had a different strategy 

had the competency evaluation -- which ended 

up being denied, he was found competent -- we 

knew where we were going after that. But 

insanity wasn’t considered because of the very 

slim possibility of ever achieving a not guilty 

verdict. And because he was found competent I 

think the chances of us convincing the Court or 

finding somebody that he was insane at the time 

would have just been ridiculous.

Id. at 47-48.

Appellant’s direct appeal counsel, Attorney Fiscus, also testified at the 

PCRA hearing that she could have raised Appellant’s competency on appeal, 

but made the strategic decision to only raise those issues that were most likely 

to prevail. Id. at 69. The PCRA court found the testimony of Attorneys 

Sebald, Hackwelder, and Fiscus credible. PCRA court opinion, 5/19/23 at 2, 

7-8. 

It is well settled that “counsel is entitled, as a matter of strategy, to 

forego even meritorious issues in favor of issues he believes pose a greater 

likelihood of success.” Commonwealth v. Johnson, 139 A.3d 1257, 1276 

n.9 (Pa. 2016). Based on the foregoing, Appellant’s contention that his trial 
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and appellate counsel rendered ineffective assistance in failing to pursue these

claims must fail.

IV.

In his final claim, Appellant argues that his consecutive, standard range 

sentences were excessive and his trial and appellate counsel were ineffective 

in failing to raise this argument on his behalf. Appellant’s brief at 14-15. 

Preliminarily, we note that as a general rule, the PCRA does not provide 

relief for discretionary aspects of sentence claims. See Commonwealth v.

Fowler, 930 A.2d 586, 593 (Pa.Super. 2007), appeal denied, 944 A.2d 756 

(Pa. 2008) (“Challenges to the discretionary aspects of sentencing are not 

cognizable under the PCRA.” (citations omitted)).

Herein, we find Appellant’s ineffectiveness claims fail as he has again 

failed to demonstrate that the underlying sentencing claim is of arguable 

merit. The PCRA court comprehensively discussed this issue in its May 19, 

2023 opinion, reasoning as follows:

Judge [William R.] Cunningham presided over the 

trial, had the benefit of a presentence report and took 

into account all relevant factors at the time of 

sentencing, as well as the seriousness of the offenses 

and the protection of the community. Specifically, the 

sentences were all in the standard range and it is 

always within the court’s discretion to make sentences 

consecutive or concurrent.

PCRA court opinion, 5/19/23 at 12-13 (citation omitted). 
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The PCRA court’s rationale is supported by competent evidence and is 

clearly free of legal error. Accordingly, we adopt the PCRA court’s analysis as 

our own for purposes of appellate review of this issue. 

Based on all of the foregoing, we affirm the May 19, 2023 order of the 

PCRA court dismissing Appellant’s PCRA petition. 

Order affirmed.

DATE: 05/29/2024