J-S67032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDMUND A. SMITH, JR.,

Appellant No. 1864 MDA 2014

Appeal from the PCRA Order September 11, 2014

in the Court of Common Pleas of Luzerne County

Criminal Division at No.: CP-40-CR-0001956-2011

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 06, 2016

Appellant, Edmund A. Smith, Jr., appeals from the order dismissing, 

after a hearing, his petition for relief pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. Counsel has filed a petition to 

withdraw. We affirm the order denying relief, and grant counsel’s petition to 

withdraw. 

While the record before us is incomplete,1there is no dispute (and the 

pertinent docket entries confirm) that on May 21, 2012, Appellant entered a 

counseled, negotiated plea of no contest, or “nolo contendere,” to one count 

of involuntary deviate sexual intercourse with a minor, thirteen years of age 

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* Retired Senior Judge assigned to the Superior Court.

1 Most notably, the transcript of the nolo contendere plea hearing is not 

included in the certified record. 
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at the time of the crime. (See N.T. SVP Hearing and Sentencing, 11/19/12, 

at 1). 

There is also no dispute that in exchange for the plea, the 

Commonwealth had agreed to waive five additional remaining felony 

charges, and agreed to a sentence of ten to twenty years’ incarceration. 

(See id. at 18-19; see also Anders brief, at 5).2 

It bears noting that Appellant, at the sentencing hearing, on inquiry by 

the court, expressly acknowledged that this was the agreed-on sentence. 

(See N.T. Hearing, 11/19/12, at 18). Furthermore, neither Appellant nor his 

counsel disputed the Commonwealth’s statement for the record that if 

Appellant had been convicted after a trial, based on a prior conviction for 

aggravated assault of a child, his minimum sentence would have been 

twenty years’ incarceration. (See id. at 18-19). 

After the testimony of Sexual Offenders Assessment Board (SOAB) 

member Paula Brust, the court determined Appellant to be a sexually violent 

predator (SVP). (See id. at 15). Then, with the benefit of a presentence 

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2 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 

(1967). An Anders brief is required where counsel seeks to withdraw on 

direct appeal. In a collateral appeal from the denial of PCRA relief, a 

Turner/Finley no-merit letter is the appropriate filing. See 

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

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, because an 

Anders brief provides greater protection to a defendant, this Court may 

accept an Anders brief in lieu of a Turner/Finley “no merit” letter. See 

Commonwealth v. Widgins, 29 A.3d 816, 817 (Pa. Super. 2011). 
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investigation report, which included confirmation of the previous conviction 

for the other sexual assault in 1998 (also with a thirteen-year-old), the trial 

court imposed the agreed-on sentence of not less than ten years’ nor more 

than twenty years’ incarceration. (See id. at 19; see also PCRA Court 

Opinion, 6/26/15, at 2). 

On January 7, 2013, the trial court granted plea counsel, (Nandakumar 

Palissery, Esq.), permission to withdraw, after Appellant made written 

inquiry into obtaining alternative counsel.3 

On or about July 11, 2013, Appellant filed a facially duplicative (and by 

then moot) “Motion to Withdraw Counsel of Record and Proceed Pro-Se,” 

naming Attorney Palissery as counsel of record. Appellant filed a PCRA 

petition, pro se, on November 21, 2013, and an amended petition, also pro 

se, on August 7, 2014. 

There is no dispute, indeed Appellant’s testimony confirms, that he 

sought to represent himself, and did so, at the PCRA hearing on September 

11, 2014, and filed a timely notice of appeal pro se from the denial of PCRA 

relief. However, after a Grazier4 hearing, Appellant requested counsel. 

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3 Appellant apparently filed a pro se notice of appeal date-stamped as 

received on January 15, 2013. The notice purports to reference an order 

entered on December 19, 2012. The record does not contain such an order. 

Nor is there a corresponding docket entry. There is no indication of a 

disposition of the purported appeal.

4 This Court ordered a Grazier hearing by per curiam order, on December 

10, 2014. See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
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(See PCRA Ct. Op., 6/26/15, at 1). The trial court appointed Mary V. 

Deady, Esq. to represent Appellant. (See id. at 1 n.2). Attorney Deady 

filed a statement of errors on February 3, 2015. (See id. at unnumbered 

page 2). She also filed an Anders brief, and, on August 26, 2015, a petition 

to withdraw as counsel. 

The Anders brief presents two questions for our review:

I. Whether [Appellant’s] plea of guilty was unlawfully 

induced and therefore not knowing and voluntary?

II. Whether [Appellant’s] mandatory minimum sentence of 

ten to twenty years was greater than the lawful maximum based 

on the decision of the United States Supreme Court in Alleyne 

v. United States, 133 S. Ct. 2151 (2013)?

(Anders Brief, at 4) (most capitalization omitted).5

Before we may review the merits of Appellant’s claims, we must 

determine if counsel has satisfied the requirements to be permitted to 

withdraw from further representation.

The Turner/Finley decisions provide the manner for 

post-conviction counsel to withdraw from representation. 

The holdings of those cases mandate an independent review 

of the record by competent counsel before a PCRA court or 

appellate court can authorize an attorney’s withdrawal. The 

necessary independent review requires counsel to file a “no-

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5 The Commonwealth did not submit a brief in this appeal. In its notification 

letter, the Assistant District Attorney agreed with the Anders brief “that any 

appeal is entirely frivolous and without merit.” (Letter of Assistant District 

Attorney of Luzerne County to Jennifer Traxler, Esq., Superior Court Deputy 

Prothonotary, 9/17/15). 
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merit” letter detailing the nature and extent of his review 

and list each issue the petitioner wishes to have examined, 

explaining why those issues are meritless. The PCRA court, 

or an appellate court if the no-merit letter is filed before it, 

see Turner, supra, then must conduct its own independent 

evaluation of the record and agree with counsel that the 

petition is without merit. See [Commonwealth v.] Pitts

[603 Pa. 1, 981 A.2d 875, 876 (2009)], supra at [ ] n.1. 

In Commonwealth v. Friend, 896 A.2d 607 (Pa. 

Super. 2006) abrogated in part by Pitts, supra, this Court 

imposed additional requirements on counsel that closely 

track the procedure for withdrawing on direct appeal. 

Pursuant to Friend, counsel is required to 

contemporaneously serve upon his client his no-merit letter 

and application to withdraw along with a statement that if 

the court granted counsel’s withdrawal request, the client 

may proceed pro se or with a privately retained attorney. 

Though [then] Chief Justice Castille noted in Pitts that this 

Court is not authorized to craft procedural rules, the Court 

did not overturn this aspect of Friend as those 

prerequisites did not apply to the petitioner in Pitts. See

Pitts, supra at 881 (Castille, C.J., concurring). 

After the decision in Pitts, this Court held in [ ]

Widgins, [supra at] 816 [ ], that the additional procedural 

requirements of Friend were still applicable during 

collateral review.

Commonwealth v. Freeland, 106 A.3d 768, 774-75 (Pa. Super. 2014) 

(citation omitted). 

Here, in addition to submitting her petition to withdraw, counsel 

provided a copy of her Anders brief, and attached a copy of a letter sent to 

Appellant informing him of his rights, pursuant to Friend, supra at 615. 

Counsel provided her review of the record and her conclusion that 

Appellant’s claims are meritless. (See Letter of Mary V. Deady, Esq. to 

Appellant, 8/25/15). We conclude that counsel has substantially complied 
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with the requirements of Turner, Finley, and Friend. Accordingly, we will 

grant counsel’s petition to withdraw. 

Next, we will proceed to our independent review of Appellant’s claims. 

Our standard of review is well-settled. 

Our standard of review from the grant or denial of postconviction relief is limited to examining whether the PCRA court’s 

determination is supported by the evidence of record and 

whether it is free of legal error. We will not disturb findings that 

are supported by the record. 

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011), appeal 

denied, 30 A.3d 487 (Pa. 2011) (citations omitted). 

The first claim of the Anders brief is that Appellant’s “plea of guilty” 

was unlawfully induced, and therefore not knowing and voluntary. (See 

Anders Brief, at 4). We disagree. 

Preliminarily, we note for clarity that Appellant actually entered a plea 

of “no contest.” 6 

In the first place a plea of nolo contendere does not, by its very 

nature, require the pleading defendant to concede his or her 

guilt. As the United States Supreme Court has held, a plea of 

nolo contendere is “a plea by which a defendant does not 

expressly admit his guilt, but nonetheless waives his right to a 

trial and authorizes the court for purposes of sentencing to treat 

him as if he were guilty.” North Carolina v. Alford, 400 U.S. 

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6 Although appointed counsel, the Commonwealth, and occasionally the trial 

court, refer informally to a “guilty plea,” the certified record consistently 

confirms Appellant’s claim that he entered a plea of nolo contendere or “no 

contest.” (See e.g., Plea Agreement, 5/21/12; N.T SVP/Sentencing, 

11/19/12, at 2; Commonwealth’s Response to . . . Statement of Errors . . ., 

5/20/15, at 2 ¶ 3). 
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25, 36, 91 S. Ct. 160, 167, 27 L.Ed.2d 162, 170 (1970). The 

Supreme Court further noted in Alford that “[T]he Constitution 

does not bar imposition of a prison sentence upon an accused 

who is unwilling expressly to admit his guilt but who, faced with 

grim alternatives, is willing to waive his trial and accept the 

sentence.” Id. at 36, 91 S. Ct. at 167, 27 L.Ed.2d at 171. 

Accord Commonwealth v. Boyd, 221 Pa. Super. 371, 292 

A.2d 434 (1972).

Commonwealth v. Lewis, 791 A.2d 1227, 1234 (Pa. Super. 2002), appeal 

denied, 806 A.2d 859 (Pa. 2002). 

Where a plea of nolo contendere is tendered by the 

defendant and accepted by the court, it is not the province of the 

court to occupy itself with the question of guilt or innocence. 

Such a plea when accepted is, in its effect upon the case, 

equivalent to a plea of guilty, testimony being taken thereafter 

only as an aid to the judge in fixing sentence. 

Boyd, supra 292 A.2d at 435 (citations omitted). Similarly, 

In terms of its effect upon a case, a plea of nolo 

contendere is treated the same as a guilty plea. Thus, as with a 

guilty plea, in order for a defendant to prevail on a post sentence 

motion to withdraw a plea of nolo contendere, requires that the 

defendant demonstrate manifest injustice. Manifest injustice can 

be shown if the defendant establishes that he or she did not 

tender the plea voluntarily. 

Lewis, supra at 1230-31 (citations and some internal punctuation omitted). 

“[A] plea of guilty will not be deemed invalid if the circumstances 

surrounding the entry of the plea disclose that the defendant had 

a full understanding of the nature and consequences of his plea 

and that he knowingly and voluntarily decided to enter the plea.” 

Commonwealth v. Fluharty, 429 Pa. Super. 213, 632 A.2d 

312, 315 (1993). “Our law presumes that a defendant who 

enters a guilty plea was aware of what he was doing. He bears 

the burden of proving otherwise.” Commonwealth v. Pollard,

832 A.2d 517, 523 (Pa. Super. 2003) (internal citation omitted). 

The entry of a negotiated plea is a “strong indicator” of the 

voluntariness of the plea. Commonwealth v. Myers, 434 Pa. 

Super. 221, 642 A.2d 1103, 1106 (1994). Moreover, “[t]he law 
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does not require that [the defendant] be pleased with the 

outcome of his decision to enter a plea of guilty: All that is 

required is that [his] decision to plead guilty be knowingly, 

voluntarily and intelligently made.” Commonwealth v. 

Anderson, 995 A.2d 1184, 1192 (Pa. Super. 2010).

Commonwealth v. Reid, 117 A.3d 777, 783 (Pa. Super. 2015).

Here, Appellant argues that his plea was due to the ineffective 

assistance of counsel. (See e.g., Amended [PCRA] Petition, 8/07/14, 3-13; 

Anders Brief, at 13; N.T. PCRA Hearing, 9/11/14, at 7). 

The governing legal standard of review of ineffective assistance 

of counsel claims is well-settled:

[C]ounsel is presumed effective, and to rebut that 

presumption, the PCRA petitioner must demonstrate that 

counsel’s performance was deficient and that such 

deficiency prejudiced him. Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). 

This Court has described the Strickland standard as 

tripartite by dividing the performance element into two 

distinct components. Commonwealth v. Pierce, 515 Pa. 

153, 527 A.2d 973, 975 (1987). Accordingly, to prove 

[plea] counsel ineffective, the petitioner must demonstrate 

that: (1) the underlying legal issue has arguable merit; (2) 

counsel’s actions lacked an objective reasonable basis; and 

(3) the petitioner was prejudiced by counsel’s act or 

omission. Id. A claim of ineffectiveness will be denied if 

the petitioner’s evidence fails to satisfy any one of these 

prongs.

Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 45 (2012) 

(citations formatted). Furthermore, “[i]n accord with these wellestablished criteria for review, [an appellant] must set forth and 

individually discuss substantively each prong of the [Pierce] 

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. 

Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-72 (Pa. Super. 2015). 
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“Counsel’s assistance is deemed constitutionally effective once this Court 

determines that the defendant has not established any one of the prongs of 

the ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d 398, 406 

(Pa. Super. 2008) (citations omitted) (emphasis in original).

On independent review, we agree with the PCRA court that Appellant 

“did not present a scintilla of evidence to suggest that he was coerced into 

entering a no contest plea or to suggest that his trial counsel was ineffective 

in any fashion.” (PCRA Ct. Op. at unnumbered pages 2-3). Appellant 

offered no credible facts to support any of the three Pierce prongs, let alone 

all of them. 

Instead, at the PCRA hearing, Appellant attempted to argue various 

evidentiary claims, (victim posed in wedding gown for Facebook photo, 

allegedly giving her an older appearance; victim’s family “set him up”, etc.), 

of dubious relevance, with a view to undermining the credibility of the victim 

and her family.7 (See PCRA Hearing, 9/11/14, at 8, 11-12). 

Among numerous obvious defects, not the least of which being the 

ultimate admissibility of the purported evidence, Appellant’s argument 

overlooks the critical fact that his hearing was not a trial. He entered a plea. 

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7 Notably, Appellant did not present any testimony from his plea and 

sentencing counsel at the PCRA hearing. (See N.T. PCRA Hearing, 9/11/14, 

Anders Brief, at 7). 
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By entering a plea of no contest, Appellant agreed not to contest the 

evidence the Commonwealth had against him. 

Further, Appellant offered no evidence in support of any of the three 

Pierce prongs. Therefore, Appellant has failed to overcome the 

presumption of effectiveness. See Rolan, supra at 408. He also failed to 

meet the burden of proving manifest injustice. Appellant’s first claim fails. 

In the second issue, the Anders brief raises the claim of illegality of 

sentence, citing Alleyne, supra. (See Anders Brief, at 4). “In reviewing 

an illegal sentence claim, ‘[t]he issue ... is a question of law and, as such, 

our scope of review is plenary and our standard of review is de novo.’. . .” 

Ousley, supra at 1242.

Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Alleyne

decided that “[a]ny fact that, by law, increases the penalty for a crime is an 

“element” that must be submitted to the jury and found beyond a 

reasonable doubt.” Alleyne, supra at 2155.

Here, Appellant’s claim relies on a major misconception. His case was 

never submitted to a jury. His sentence did not depend on an additional 

element which was found by a trial judge after a jury conviction. To the 

contrary, his sentence was negotiated and agreed-on by counsel, as 

confirmed by Appellant himself. (See N.T. Hearing, 11/19/12, at 18). The 

constitutional right sought to be protected by Alleyne has no application to 

Appellant’s case. 
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Moreover, this Court has held that even if Alleyne is interpreted as 

enunciating a newly recognized constitutional right, such right is not 

applicable retroactively to cases on PCRA review. 

Even assuming that Alleyne did announce a new constitutional 

right, neither our Supreme Court, nor the United States 

Supreme Court has held that Alleyne is to be applied 

retroactively to cases in which the judgment of sentence had 

become final. This is fatal to Appellant’s argument regarding the 

PCRA time-bar. This Court has recognized that a new rule of 

constitutional law is applied retroactively to cases on collateral 

review only if the United States Supreme Court or our Supreme 

Court specifically holds it to be retroactively applicable to those 

cases. 

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations 

omitted).8

On independent review, we find no other issues which would merit 

relief. Because our review disposes of the issues Appellant and his counsel 

have raised, we need not address the numerous other errors and defects in 

Appellant’s arguments which would also preclude relief, and we decline to do 

so. 

Order affirmed. Petition to withdraw granted.

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8 All of these factors distinguish this appeal from the panel decision in 

Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal 

granted, 121 A.3d 433 (Pa. 2015), which addressed the constitutionality of a 

mandatory minimum sentence (following a jury conviction) in the context of 

a direct appeal. Our Supreme Court has granted the Commonwealth’s 

request for an expedited appeal in Wolfe. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/6/2016