J-S08003-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

RICKY L. MILLER, JR.

Appellant No. 907 MDA 2020

Appeal from the PCRA Order entered June 12, 2020

In the Court of Common Pleas of Cumberland County

Criminal Division at No: CP-21-CR-0002605-2009

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

MEMORANDUM BY STABILE, J.: FILED MAY 26, 2021

Appellant, Ricky L. Miller, Jr., appeals from the June 12, 2020 order 

entered in the Court of Common Pleas of Cumberland County, denying his 

petition for collateral relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant raises issues relating to his 

guilty plea colloquy and Pa.R.Crim.P. 590(C), and claims ineffectiveness of 

plea counsel with respect to the colloquy, the failure to present expert 

testimony regarding his mental state, and the failure to seek the return of 

property. Upon review, we affirm. 

In its Rule 1925(a) opinion, the PCRA court explained:

At times, the post-conviction relief process can cause us to lose 

sight of the events that brought us here. Let us not forget that 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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on July 26, 2009, Ricky L. Miller, Jr. stuck his Glock pistol through 

his wife’s driver’s side window, past her face, and fired one round 

into the head of her boyfriend, Kenneth Geiger. Initially, the 

Commonwealth pursued this killing as a capital offense, but after 

three years of maneuvering, the parties agreed that Miller would 

enter a plea of guilty to “murder generally” and proceed to a 

degree-of-guilt hearing before a judge.[1] This plea removed the 

possibility of a sentence of death and left the court with three 

options: the defendant would be found guilty of murder in the 

first degree, murder in the third degree, or voluntary 

manslaughter. After a three-day hearing in August 2012, the 

undersigned found Miller guilty of first degree murder.

PCRA Court Opinion, 6/12/20, at 1.

At the conclusion of Appellant’s August 2012 degree of guilt hearing, the 

court imposed a sentence of life in prison without possibility of parole. N.T., 

Degree of Guilt Hearing, 8/3/12, at 663-64. Appellant did not file postsentence motions but did file a timely direct appeal. This Court affirmed his 

judgment of sentence on February 19, 2014 (No. 1571 MDA 2012), and our 

Supreme Court denied his petition for allowance of appeal on September 19, 

____________________________________________

1 Appellant entered his guilty plea during a July 19, 2012 hearing, as reflected 

in the following exchange.

THE COURT: [I]t’s my understanding, as stated by counsel, that 

you intend to enter a plea of guilty to murder generally. This 

means that you will admit that you committed the act that caused 

the death of Kenneth Geiger on July 26, 2009, and the act was 

some form of criminal homicide. I will then hold a hearing and 

determine what degree of murder or manslaughter you 

have committed. Is that what you wish to do? 

APPELLANT: Yes, Your Honor.

N.T., Guilty Plea Hearing, 7/19/12, at 6 (emphasis added).
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2014 (No. 181 MAL 2014). Appellant filed a timely PCRA petition on 

September 17, 2015. As the PCRA court aptly noted, “Following appointment 

of counsel, this matter proceeded sluggishly.” PCRA Court Opinion, 6/12/20, 

at 5. 

The PCRA court dismissed Appellant’s petition on June 12, 2020. 

Appellant filed this timely appeal. Both Appellant and the PCRA court complied 

with Pa.R.A.P. 1925. As the PCRA court observed, 

Miller now contends that his plea of guilty to “murder generally” 

was unknowing and defective. At the heart of the dispute are the 

nature and ramifications of the parties’ agreement to proceed with 

a hearing before a judge as opposed to a jury trial. The events 

that led to the killing have been fully recounted in previous 

opinions.[fn]

[fn] In Re: Opinion Pursuant to Pennsylvania Rule of Appellate Procedure 

1925, February 12, 2013, at 2-9. See also, Com[.] v. Ricky L. Miller, 

Jr., No. 1571 MDA 2012 (Pa. Super.), at 2-6. 

PCRA Court Opinion, 6/12/20, at 1-2.

Appellant presents five issues for our consideration:

I. Is a defendant entitled to post-conviction relief when the 

colloquy that preceded his plea to murder generally did not 

adhere to the requirements of Pennsylvania Rule of Criminal 

Procedure 590(C)?

II. Was trial counsel ineffective for failing to properly advise 

[Appellant] about the possibility of having a jury determine 

the degree of guilt and for failing to object to the deficient 

colloquy?

III. Does Pennsylvania Rule of Criminal Procedure 590(C) 

violate Pennsylvania and federal constitutional protections 

that protect a defendant’s right to have a jury determine 

any element of an offense which triggers a mandatory 

minimum sentence?
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IV. Is [Appellant] entitled to post-conviction relief on the basis 

that trial counsel was ineffective for failing to have 

[Appellant] evaluated by an expert witness concerning his 

mental state as it related to the element of a sudden and 

intense passion?

V. Did trial counsel’s failure to seek or to properly advise 

[Appellant] about the return of [Appellant’s] property 

constitute ineffective assistance of counsel?

Appellant’s Brief at 4-5. 

As this Court reiterated in Commonwealth v. Beatty, 207 A.3d 957 

(Pa. Super. 2019), “Our standard of review of the denial of a PCRA petition is 

limited to examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error.” Id. at 960-61 

(citing Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011), appeal 

denied, 29 A.3d 795 (Pa. 2011)). “The PCRA court’s credibility 

determinations, when supported by the record, are binding on this Court; 

however, we apply a de novo standard of review to the PCRA court’s legal 

conclusions.” Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. 

Super. 2019) (quotation marks and citations omitted), appeal denied, 216 

A.3d 1029 (Pa. 2019)). “This Court grants great deference to the findings of 

the PCRA court if the record contains any support for those findings.” Beatty, 

207 A.3d at 961 (citing Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 

2007), appeal denied, 932 A.2d 74 (Pa. 2007)). 

When analyzing claims of ineffectiveness under the PCRA,
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we begin with the presumption counsel is effective. 

Commonwealth v. Robinson, 623 Pa. 345, 82 A.3d 998, 1005 

(2013). To prevail on an ineffectiveness claim, appellant must 

satisfy, by a preponderance of the evidence, the performance and 

prejudice standard set forth in Strickland v. Washington, 466 

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

Pennsylvania, we have applied Strickland by looking to three 

elements an appellant must establish: (1) the underlying claim 

has arguable merit; (2) no reasonable basis existed for counsel’s 

actions or failure to act; and (3) appellant suffered prejudice as a 

result of counsel’s error, with prejudice measured by whether 

there is a reasonable probability that the result of the proceeding 

would have been different. See Commonwealth v. Pierce, 515 

Pa. 153, 527 A.2d 973, 975 (1987).

Commonwealth v. Hannibal, 156 A.3d 197, 206-07 (Pa. 2016). “A court is 

not required to analyze the elements of an ineffectiveness claim in any 

particular order of priority; if a claim fails under any necessary element of the 

Strickland test, the court may proceed to that element first.” Id. at 207

(citations omitted). The failure to satisfy any prong of the ineffectiveness test 

defeats the claim. Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 

2011) (citations omitted).

When a guilty plea has been entered, 

all grounds of appeal are waived other than challenges to the 

voluntariness of the plea and the jurisdiction of the sentencing 

court. Thus allegations of ineffective assistance of counsel in 

connection with entry of the guilty plea will serve as a basis for 

relief only if the ineffectiveness caused appellant to enter an 

involuntary or unknowing plea.

Commonwealth v. Williams, 437 A.2d 1144, 1146 (Pa. 1981) (internal 

citations omitted). See also Commonwealth v. Hickman, 799 A.2d 136, 
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141 (Pa. Super. 2002) (defendant must demonstrate that counsel’s 

ineffectiveness caused defendant to enter an involuntary or unknowing plea). 

Appellant’s first three issues involve Pa.R.Crim.P. 590(C) and are 

interrelated. Therefore, we shall consider them together. Stated in summary 

form:

On his Rule 590(c) claim, [Appellant] alleges the court’s colloquy 

was deficient because it deviated from Rule 590(c) and did not 

inform him it was possible to have a jury determine his degree of 

guilt. Counsel did not object to the colloquy and had not advised 

him a jury could determine the degree of guilt. He challenges the 

constitutionality of rule 590(c) as it denies a defendant’s right to 

have a jury determine an element that triggers a mandatory 

minimum life sentence. 

Appellant’s Brief, Summary of Argument, at 15.2 

Rule of Criminal Procedure 590 (Pleas and Plea Agreements) 

provides, in relevant part:

(C) Murder Cases. In cases in which the imposition of a sentence 

of death is not authorized, when a defendant enters a plea of 

guilty [] to a charge of murder generally, the degree of guilt shall 

be determined by a jury unless the attorney for the 

Commonwealth elects to have the judge, before whom the plea 

was entered, alone determine the degree of guilt.

____________________________________________

2 At his PCRA hearing, Appellant suggested that a colloquy in complete 

compliance with Rule 590(C) would have educated him “that I could have 

requested a jury at least. Whether it would have been granted, I don’t know.” 

N.T., PCRA Hearing, 10/25/17, at 17. He explained that he was not seeking 

to withdraw his plea, but rather was asking for a new degree of guilt hearing 

in front of a jury. Id. at 18. However, Appellant has no right to demand a 

degree of guilt hearing before a jury, having waived his right to a jury by 

virtue of his guilty plea. Commonwealth v. White, 910 A.2d 648, 662 (Pa. 

2006). 
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Pa.R.Crim.P. 590(C). The portion of the Comment to Rule 590 relevant to our 

analysis recognizes: 

It is difficult to formulate a comprehensive list of questions a judge 

must ask of a defendant in determining whether the judge should 

accept the plea of guilty[.] Court decisions may add areas to be 

encompassed in determining whether the defendant understands 

the full impact and consequences of the plea, but is nevertheless 

willing to enter that plea. At a minimum the judge should ask 

questions to elicit the following information:

(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 

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 range of sentences 

and/or fines for the offenses charged?

(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?

(7) Does the defendant understand that the 

Commonwealth has a right to have a jury decide the degree 

of guilt if the defendant pleads guilty to murder generally?

The Court in Commonwealth v. Willis, 369 A.2d 1189 (Pa. 

1977), and Commonwealth v. Dilbeck, 353 A.2d 824 (Pa. 

1976), mandated that, during a guilty plea colloquy, judges must 

elicit the information set forth in paragraphs (1) through (6) 

above. In 2008, the Court added paragraph (7) to the list of 

areas of inquiry.

Many, though not all, of the areas to be covered by such questions 

are set forth in a footnote to the Court’s opinion in 

Commonwealth v. Martin, 282 A.2d 241, 244-245 (Pa. 1971), 

in which the colloquy conducted by the trial judge is cited with 

approval. See also Commonwealth v. Minor, 356 A.2d 346 

(Pa. 1976), and Commonwealth v. Ingram, 316 A.2d 77 (Pa. 

1974). 

Pa.R.Crim.P. 590, Comment (emphasis added).
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In Commonwealth v. Yeomans, 24 A.3d 1044 (Pa. Super. 2011), this 

Court reiterated that “[t]he entry of a guilty plea is a protracted and 

comprehensive proceeding wherein the court is obliged to make a specific 

determination after extensive colloquy on the record that a plea is voluntarily 

and understandingly tendered.” Id. at 1046 (quoting Commonwealth v. 

Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993) (citation omitted)). This 

Court explained that the guilty plea is to be offered in open court and that 

“[a]s noted in the Comment to Rule 590, at a minimum the trial court should 

ask questions to elicit [responses to the questions listed in the Comment].” 

Id. at 1046-47. The Yeomans Court noted:

In order for a guilty plea to be constitutionally valid, the guilty 

plea colloquy must affirmatively show that the defendant 

understood what the plea connoted and its consequences. This 

determination is to be made by examining the totality of the 

circumstances surrounding the entry of the plea. Thus, even 

though there is an omission or defect in the guilty plea 

colloquy, 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.

Id. at 1047 (emphasis added) (quoting Fluharty, 632 A.2d at 314–15). 

Previously, in a case decided before the seventh area of inquiry—i.e., the one 

at issue here—was added to the Comment to Rule 590, our Supreme Court 

acknowledged:

[W]hile the Court has admonished that a complete failure to 

inquire into any one of the six, mandatory subjects generally 

requires reversal, . . . it has in more recent cases moved to a more 
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general assessment of the knowing, voluntary, and intelligent 

character of the plea, considered on the totality of the 

circumstances. 

Commonwealth v. Flanagan, 854 A.2d 489, 500 (Pa. 2004) (citations 

omitted). See also Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. 

Super. 2016) (“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.”).3

After considering Appellant’s contention that he did not enter his plea 

knowingly, the PCRA court rejected that assertion, explaining:

A defect in pre-plea disclosures to a defendant does not void a 

plea of guilty unless the defect was material to the defendant’s 

decision to enter the plea. We do not find credible [Appellant’s] 

recent, rather too convenient claim that he wanted a jury to sit as 

trier-of-fact in his degree hearing, given the evidence in the record 

to the contrary. Far more credible is the testimony of [Appellant’s] 

trial counsel, Heidi F. Eakin, Esquire[4]:

____________________________________________

3 While Appellant’s failure to challenge the adequacy of the colloquy at the 

time of the guilty plea, in a post-sentence motion, or on direct appeal might 

support a finding of waiver under 42 Pa.C.S.A. § 9544(b)—as the 

Commonwealth suggests—we elect to examine the issue in light of the 

interrelationship between Appellant’s claims of a defective colloquy and 

ineffectiveness of counsel with respect to the colloquy. 

4 Attorney Eakin represented Appellant on a pro bono basis. She requested, 

and was granted, a special appointment to the Office of the Public Defender 

so that she could provide pro bono representation while having certain 

expenses, such as costs of expert services and services of an investigator, 

paid through that office. The appointment also enabled her to utilize the 

services of First Public Defender Linda Hollinger as second chair. N.T., PCRA 

Hearing, 10/25/17, at 41-42. Attorney Eakin represented Appellant through 

sentencing only. The Public Defender’s Office represented Appellant on direct 

appeal. 
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Ricky had repeatedly expressed concerns about jury trials. 

. . . [T]he discussions about [a] jury trial, and who was going 

to be in the courtroom, and his anxiety, was paramount on 

his mind at times. And understand, I saw him over three 

years. I was probably at this prison at least once a month. 

And, I mean, when his behavior became erratic, and he got 

upset, it was clear. And that was one of those things that I 

don’t think I would even have said anything to him, because 

it would have been, it was get rid of that jury. . . . I can’t 

say that had I said well you can have a jury if you want, he 

would have said yes. I don’t believe that for a minute.

PCRA Court Opinion, 6/12/20, at 9 (quoting N.T., PCRA Hearing, 10/25/17, at 

45-46) (footnotes omitted).

As the PCRA court observed, 

Miller argues that his ignorance of the Commonwealth’s right to 

pursue a jury trial was in and of itself a defect. This is logically 

meritless because he had no desire for a jury trial and would not 

have made such a request in any event. Nevertheless, under the 

assumption that, improbably, Miller truly did desire a jury hearing, 

the alleged defect was still immaterial. Quite simply, as the 

Commonwealth contends, and nothing in the record contradicts, 

the Commonwealth would have refused any request for a jury 

hearing, leaving Miller with exactly the same choices that he 

actually had (i.e. risk the death penalty in a jury trial or plead 

guilty to murder generally and have a judge sit as the trier-of-fact 

in his degree hearing). Given those alternatives, Miller would have 

made exactly the same choice that he actually made. Hence, any 

defect in the colloquy was immaterial to Miller’s decision to enter 

his plea of guilty to murder generally, and thus does not constitute 

grounds for withdrawal of the plea. 

Id. at 10. We agree with the PCRA court’s analysis. Simply stated, once 

Appellant entered a guilty plea, he waived his right to a jury trial. 

Commonwealth v. White, 910 A.2d 648, 662 (Pa. 2006) (citations omitted). 
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Clearly, under Rule 590(C), the Commonwealth could have requested a jury 

trial, but Appellant had no right to demand one. 

While the colloquy may have fallen short of strict compliance with Rule 

590(C), we find any defect immaterial under the totality of the circumstances 

of this case. Moreover, Appellant has failed to demonstrate that he suffered 

any prejudice from plea counsel’s failure to object to the colloquy or her failure 

to advise Appellant on the record that, while he waived the right to a jury trial 

by virtue of his plea to murder generally, the Commonwealth retained the 

right to a jury trial for the degree of guilt hearing—a right not exercised in this 

case. As the PCRA court observed, if Appellant wanted a jury trial, he could 

have had one. Yet, he waived that right when he entered a plea of guilty to 

murder generally, thereby foreclosing the possibility of receiving a death 

penalty sentence. Again, as noted above, Appellant testified that he was not 

seeking to withdraw his plea. See n. 2, supra (quoting N.T., PCRA Hearing, 

10/25/17, at 18). Rather, he was seeking a new degree of guilt hearing before 

a jury, despite having waived the right to a jury by virtue of his plea. 

As the Commonwealth argues:

Even if the plea colloquy read by the Court was defective and that 

defect was material, a defective plea colloquy, in and of itself, 

does not mean trial counsel was ineffective. In Commonwealth 

v. Spotz, the Pennsylvania Supreme Court dealt with a similar 

issue regarding the waiver of important constitutional rights, and 

stated: 

The petitioner cannot prevail merely by establishing that the 

waiver colloquy was indeed defective in some way. Rather, 

the petitioner must prove that because of counsel’s 
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ineffectiveness, he waived the constitutional right at issue 

unknowingly or involuntarily, and that he was prejudiced. 

To establish prejudice, the petitioner must demonstrate a 

reasonable probability that but for counsel’s ineffectiveness, 

he would not have waived the right at issue. In considering 

such a claim of ineffectiveness, the court considers the 

totality of the circumstances and the entire record, not just 

the colloquy itself. 

Commonwealth Brief at 20-21 (quoting Spotz, 18 A.3d 244, 263-64 (Pa. 

2011). 

As reflected above, the PCRA court did not find credible Appellant’s 

“recent, rather too convenient claim that he wanted a jury to sit as trier-offact in his degree hearing[.]” PCRA Court Opinion, 6/12/20, at 9. Again, 

“credibility determinations, when supported by the record, are binding on this 

Court[.]” Sandusky, 203 A.3d at 1043. We find that the court’s credibility 

determination in this regard is supported by the record and, therefore, we are 

bound by it. Further, as Attorney Eakin explained, the Commonwealth never 

offered to conduct the degree of guilt hearing before a jury and the only 

agreement proffered by the Commonwealth was to withdraw the possibility of 

the death penalty if Appellant entered a plea to murder generally. N.T., PCRA 

Hearing, 10/25/17, at 62-63. 

Because any defect in the colloquy was immaterial, and because 

Appellant cannot satisfy the prejudice prong of the ineffectiveness test, 

Appellant cannot prevail on his claim the colloquy was defective or that plea 

counsel was ineffective for failing to object to the colloquy. 
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As to Appellant’s assertion that Rule 590(C) is unconstitutional, we 

agree with the Commonwealth that this claim could have been raised at the 

time of his plea, in post-sentence motions, or on direct appeal. Because 

Appellant did not do so, the issue is waived under 42 Pa.C.S.A. § 9545(a)(3). 

Whether for lack of merit or by virtue of waiver, Appellant is not entitled 

to any relief on his issues involving the colloquy and Pa.R.Crim.P. 590(C). 

Appellant’s first three issues fail.

In his fourth issue, Appellant contends counsel was ineffective for failing 

to present expert testimony regarding Appellant’s mental state at his degree 

of guilt hearing. Appellant suggests that his “mental state was known to 

counsel” and that such expert testimony would have established his “proclivity 

to a sudden and intense provocation.” Appellant’s Brief at 15. 

The record reflects that counsel did retain the services of John Hume, 

M.D., who prepared two reports for purposes of supporting a theory of 

provocation and/or imperfect self-defense. As the PCRA court stated, “The 

record suggests that Dr. Hume’s reports contained information which might 

have been of some value in supporting one or both of those theories, but also 

[contained] highly inflammatory statements on the part of [Appellant] which 

would have tended to undermine the same.” PCRA Court Opinion, 6/12/20, 

at 14. The court concluded that counsel’s decision not to present Dr. Hume’s 

testimony—which would have required that his reports be turned over to the 

Commonwealth—was a reasonable, strategic decision guided by the fact 
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“counsel made a valiant and concerted effort to paint her client as the true 

victim, the wronged spouse[.]” Id. Inconsistent with that picture were some 

statements Appellant made to Dr. Hume that were, according to counsel, 

“pretty not good” for Appellant who “was blasting the victim, blasting his 

wife[.]” Id. (quoting N.T., PCRA Hearing, 10/25/17, at 56-57). 

The court concluded:

At best, Dr. Hume’s evaluation would have been cumulative of 

other lay testimony presented of [Appellant’s] generally agitated 

state of mind in the days preceding the murder. “Expert” 

testimony on this matter was unnecessary and offering such 

evidence would not have changed the outcome for [Appellant]. At 

worst, Dr. Hume’s testimony and reports would have been 

damning[.]

Id. We agree with the court’s assessment. As our Supreme Court has 

acknowledged, “[g]enerally, where matters of strategy and tactics are 

concerned, counsel’s assistance is deemed constitutionally effective if he 

chose a particular course that had some reasonable basis designed to 

effectuate his client's interests.” Commonwealth v. Koehler, 36 A.3d 121, 

132 (Pa. 2012) (quoting Commonwealth v. Colavita, 993 A.2d 874, 887 

(Pa. 2010) (additional citation omitted)). Because counsel had a reasonable 

basis designed to effectuate Appellant’s interests, Appellant’s claim of 

ineffectiveness with respect to expert testimony fails.

In his final claim, Appellant argues that trial counsel’s failure to seek or 

properly advise Appellant about the return of his property constitutes 

ineffectiveness. At issue in this regard is $4,725 found on Appellant’s person, 
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in his wallet, and in his briefcase, which was seized following his arrest. As 

our Supreme Court recognized in Commonwealth v. Descardes, 136 A.3d 

493 (Pa. 2016):

A claim is cognizable under the PCRA if the petitioner pleads and 

proves by a preponderance of the evidence that: (1) he has been 

convicted of a crime under the laws of this Commonwealth; (2) he 

is serving a sentence of imprisonment, probation, or parole for the 

crime; and (3) his conviction resulted from one of seven 

enumerated errors set forth in 42 Pa.C.S. § 9543(a)(2)[.]

Id. at 499 (emphasis added). For a claim under Section 9543(a)(2)(ii), 

Appellant was required to plead and prove that his conviction or sentence

resulted from “[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[.]” 42 

Pa.C.S.A. § 9543(a)(2)(ii). As applied here, Appellant would have to 

demonstrate that his conviction or sentence resulted from counsel’s 

ineffectiveness in failing to move for return of his money. 

As the PCRA court observed, while the money was likely “getaway” cash, 

“this matter is entirely unrelated to [Appellant’s] criminal conviction. A finding 

of ineffectiveness of counsel in this respect would have no effect on that 

conviction and is not litigable in this PCRA proceeding.” PCRA Court Opinion, 

6/12/20, at 15. We agree. Simply stated, his conviction and/or sentence was 

not the result of any failure of counsel to seek return of the property and,

therefore, his claim is not cognizable under Section 9543(a)(2)(ii). 
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Based on our examination of the evidence of record, we conclude that 

the evidence supports the PCRA court’s determinations. Further, we find the 

court’s decision to be free of legal error. Therefore, we shall not disturb the 

PCRA court’s order dismissing Appellant’s PCRA petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2021