J

### -S62028-18 NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
BASHIR A. JOHNSON 

### Appellant : No. 500 EDA 2018 Appeal

### from the PCRA 

### OrderJanuary 11, 2018 In

### the Courtof Common Pleas

### of Philadelphia 

### CountyCriminal Division at No(s): 

### CP-51-CR-0007314-2013, CP-51-CR-0007315-2013
BEFORE: LAZARUS, J., McLAUGHLIN,J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY McLAUGHLIN, J.: 

### FILEDJANUARY

### 07, 

### 2019 Bashir A. Johnson appeals 

### from the order denying him 

### relief under the Post 

### Conviction ReliefAct ("PCRA"), 42 Pa.C.S.A. §§ 

### 9541-9546. We

### affirm. On December28, 2012,Johnson 

### shottwo people in

### the backofthe head 

### while

### theywere

### sitting in 

### the

### frontof a car and he was

### sitting in 

### the rear. N.T. 

### (Guilty Plea), 

### 4/20/15, at 

### 31-35. One 

### of the 

### victims survived, and 

### later identified Johnson to 

### the police. 

### Id. Johnson told police 

### Detectives Ronald Dove and James Pitts

### that he was not in 

### the area 

### ofthe shooting and had his cell phone 

### with him 

### atthetime. 

### Id. Information garnered 

### fromJohnson's cell phone records

### contradicted his

### statement and placed his cell phone in 

### thearea ofthe shooting atthe

### time ofthe 

### shooting. 

### Id.J

### -S62028-18

Johnson was charged

### with third degree 

### murder, attempted murder, and 

### carrying a 

### firearm

### without a 

### license.' He moved to suppress

### the 

### statement he made to 

### the police, on 

### the basis

### that the police

### violated his 

### Miranda2 rights, and to suppress his cell phone records, on

### the basis

### that his phone was seized and searched 

### without a 

### warrant. The 

### court held a suppression hearing, at which Detective Pitts 

### testified but Detective Dove did not.3 The 

### court denied 

### the motion. Johnson entered a 

### negotiated plea 

### of

### guilty in 

### April 2015 to 

### the above charges. During

### the 

### guilty plea 

### colloquy,Johnson 

### admitted hewas

### guilty. N.T. at 35. He also acknowledged 

### that by pleading 

### guilty he would 

### surrender his 

### right to a

### jury trial, the 

### right to raise 

### additional 

### trial issues, and his 

### right to appeal 

### the denial of his suppression 

### motion or any 

### othertrial-related issues. 

### Id. at 

### 7-22. He 

### testified 

### that he had 

### not been 

### threatened or forced to plead 

### guilty, had discussed his decision to plead 

### guilty with his 

### trial attorney, and
was satisfied 

### with his legal 

### representation. 

### Id. at

### 40-41. The 

### court

### thereafter sentenced Johnson to 

### the negotiated aggregate 

### term of 20 to 40 

### years' incarceration. Johnson did notfile a 

### direct appeal, butfiled a

### timely PCRA

### petition. The PCRA 

### court appointed counsel, who filed an Amended PCRA Petition. 

### After

1- 

### See 18 Pa.C.S.A. §§ 

### 2502(c), 901(a), 

### 6106(a)(1).

2 

### Miranda v.

### Arizona, 384 U.S. 436 

### (1996).

3 

### Detective Frank Mullen also 

### testified.

- 2 -J

### -S62028-18
providing notice of its 

### intent to dismiss the Petition 

### without a 

### hearing, the court dismissed 

### the Petition on 

### January 11, 2018. Johnson 

### timely appealed, and raises a sole issue: "Was 

### [Johnson's] 

### [g]uilty [p]lea entered in a 

### knowing, 

### intelligent, and 

### voluntary fashion?" Johnson's Br. at 3 

### (Statementof Question 

### Involved). The issueJohnson presents in his 

### Statementof Question 

### Involved is not cognizable 

### under the PCRA. While 

### the PCRA provides 

### relief for 

### "[a] plea 

### of 

### guilty unlawfully induced 

### where the circumstances make it 

### likely 

### that the inducement caused 

### the 

### petitioner to plead 

### guilty and 

### the 

### petitioner is 

### innocent," 42 Pa.C.S.A. § 

### 9543(a)(2)(iii), Johnson's 

### Statement of Question 

### Involved does not contend 

### that his plea was 

### unlawfully induced. He instead 

### mounts a 

### direct attack on his 

### guilty plea. 

### Therefore, his 

### only issue on appeal 

### affords him no relief. In 

### contrast, the issue he argues in 

### the 

### Argument section of his 

### brief is cognizable under the PCRA. He contends

### that his 

### trial counsel was 

### ineffective for advising him to plead 

### guilty. See Johnson's Br. at 

### 8-10. A claim 

### of ineffectiveness of counsel in 

### connection to a 

### guilty plea is cognizable under the PCRA. 

### Commonwealthex

### rel.Dadariov. 

### Goldberg, 773 A.2d 126, 130 (Pa. 

### 2001) 

### ("[A]ll constitutionally-cognizable claims 

### of ineffective assistance ofcounsel may be reviewed in a PCRA 

### petition"). However, Johnson did not include 

### this 

### argument in his 

### Statement of Question 

### Involved, and in

### failing to do so, hewaived it. 

### See Pa.R.A.P. 

### 2116(a) ("No 

### question will be considered unless it is stated in 

### the 

### statement of

- 3 -J

### -S62028-18
questions involved or is 

### fairly suggested 

### thereby"); 

### Commonwealth v. 

### Heggins, 809 A.2d 

### 908, 912 n.2 (Pa.Super. 

### 2002) ("Issues not presented in 

### the

### StatementofQuestions 

### Involved portion ofa 

### briefwill not be

### considered"). Even if he had notwaived it, we would 

### reject his 

### ineffectiveness claim
as 

### meritless. Our 

### review ofthe denial of PCRA 

### relief "is limited to

### the findings of the PCRA 

### court and 

### the evidence of record, viewed in 

### the 

### light most favorable to 

### the prevailing 

### party at 

### the PCRA 

### court level." 

### Commonwealth
v. 

### Medina, 92 A.3d 1210, 1214 (Pa.Super. 

### 2014)(enbanc). We are bound by any 

### credibility determinationsmade by 

### the PCRA 

### court and 

### supported by 

### the record, but apply a de novo standard of review to 

### the PCRA 

### court's legal conclusions. 

### Id. at 

### 1214-15. A PCRA 

### court need not hold a hearing if no 

### material issues 

### offactexist.

### Commonwealth v.

### Smith, 121 A.3d 1049, 1052 (Pa.Super. 

### 2015). "Counsel is presumed 

### effective, and [a 

### petitioner] has 

### the burden of proving 

### otherwise." 

### Commonwealth v. 

### Brown, 161 A.3d 

### 960, 965 (Pa.Super. 

### 2017). To 

### overcome this 

### presumption, a 

### petitionermust plead and prove by a 

### preponderance ofthe evidence

### that: 

### "(1)the underlying claim has 

### arguable 

### merit; (2) counsel had no reasonable basis 

### for his or her action or 

### inaction; and (3) the 

### petitioner suffered 

### prejudice because of counsel's 

### ineffectiveness." 

### Commonwealth v. 

### Paddy, 15 A.3d 

### 431, 442 (Pa. 

### 2011). An 

### allegation

### thatcounsel provided 

### ineffectiveassistance in 

### relation to 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.

- 4 -J

### -S62028-18


### Pier, 182 A.3d 

### 476, 478 (Pa.Super. 

### 2018) (quoting 

### Commonwealth v. 

### Moser, 921 A.2d 526, 531 (Pa.Super. 

### 2007)). Whether counsel was 

### ineffective turns on 

### "whether counsel's advice was 

### within the range 

### of competence demanded of 

### attorneys in 

### criminal cases," 

### id. at 479 

### (quoting 

### Moser, 921 A.2d at 

### 531), and 

### "whether the accused was misled or 

### misinformed and acted 

### under 

### that misguided influence when 

### entering the 

### guilty plea." 

### Commonwealth v. 

### Flood, 627 A.2d 1193, 1199 (Pa.Super. 

### 1993). A 

### defendant is bound by 

### the 

### statements he or she made under oath during a plea 

### colloquy. 

### Commonwealth v. 

### Muhammad, 794 A.2d 378, 384 (Pa.Super. 

### 2002). Thus, where a 

### defendant's claim 

### that a 

### guilty plea was 

### unknowing or 

### involuntary is belied by 

### the record, the claim 

### must fail. 

### Id. A 

### defendant cannot maintain a claim 

### that his plea was 

### involuntary based on an 

### allegation 

### that counsel pressured him to plead 

### guilty if he 

### testified to 

### the opposite during his 

### guilty plea 

### colloquy. 

### Commonwealth v. 

### Brown, 48A.3d 1275, 1278 (Pa.Super. 

### 2012). Johnson claims 

### "Detective Dove and 

### others 'dummied up' evidence 

### against him and lied to 

### the 

### [c]ourt at 

### [the] suppression 

### hearing." Johnson's Br. at 7; 

### see

### alsoid. at 5-6. Johnson contends

### thatfollowingthe suppression hearing, 

### "he was compelled to plead 

### guilty because of

### the nature, breadth and depth of

### the lies told by 

### the 

### police." 

### Id. at 7. Johnson argues 

### that his 

### trial counselwas

### ineffectivefor both

### "failing toknow

### thatDetective Dovewas being 

### investigated 

### [for misconduct in 

### anothercase] andwould 

### likely be 

### prosecuted,"

- 5 -J

### -S62028-18

and advising Johnson to plead 

### guilty ratherthan challenge the denial of his 

### motion to suppress on appeal or 

### otherwise challenge the evidence against him. 

### Id. at 9. Johnson concedes

### thatthe 

### guilty plea 

### colloquy was not 

### "legally inadequate,"but 

### vaguelyasserts

### that "there were many 

### things lying 

### 'behind' the 

### colloquy."

### Id. Johnson asks us to remand 

### the case to

### the PCRA 

### courtfor
an 

### evidentiary hearing. 

### Id. at 10. The PCRA 

### court rejected this 

### argument because Johnson 

### "offer[ed] no evidence

### that the detectives involved in 

### this case 

### fabricated any evidence or 

### that this alleged 

### misconduct forced his 

### guilty plea." PCRA 

### Court Opinion,filed April 6, 

### 2018, at 5. The 

### court observed 

### that Detective Dove did not 

### testify at the suppression hearing and 

### "there was no 

### way Detective Dove's 

### misconduct in an 

### unrelated 

### matter would have 

### [led] to a 

### different result in 

### the subject case."

### Id. The PCRA 

### courtfound no 

### meritto Johnson's claim 

### that his counsel had not known 

### about the investigation into 

### Detective Dove because 

### trial counsel had 

### cross-examined Detective Pitts 

### about it. 

### Id. The PCRA 

### court also found 

### that the 

### guilty plea 

### colloquy reflected 

### that Johnson 

### entered his plea 

### knowingly, 

### intelligently, and 

### voluntarily. 

### Id. at

### 4-5. We agree 

### with the PCRA 

### court's analysis. Johnson fails to allege 

### what evidence Detective Dove or anyone else 

### fabricated in his case. Nor does he 

### offer to prove facts 

### substantiating this allegation at an 

### evidentiary hearing. Rather, the record 

### reflects 

### that Detective Dove offered no evidence 

### against Johnson atthe suppression hearing, and nothing suggests

### that Detective Dove would have 

### testified at Johnson's

### trial. Moreover, the record beliesJohnson's

- 6 -J

### -S62028-18

claim 

### that his 

### trial attorney was unaware ofthe 

### investigation into 

### Detective Dove 

### for misconduct in an 

### unrelated case, and did not considerthe 

### potential
successor

### failure of 

### pursuitof a false

### -evidence claim on

### the basis of

### Detective Dove's 

### involvement with Johnson's case. 

### See N.T., 

### 1/26/15 (Suppression Hearing), at 118-20. Johnson has 

### therefore failed to convince us 

### that pursuit of a false

### -evidence claim 

### either at 

### trial or on 

### direct appeal would have been successful, such 

### that counsel's advice to forego such a claim and plead 

### guilty
was 

### incompetent. See 

### Pier, 182 A.3d at 478. In 

### addition, the record belies Johnson's assertion 

### that he was 

### misinformed or misguided regarding his

### appellate rights. Rather,Johnson was apprised of all 

### the rights he was 

### relinquishing by pleading 

### guilty; stated 

### that he was not being coerced; stated

### that he had been advised by and was happy 

### with his counsel; and 

### confirmed his 

### guilt. Johnson 

### cannot recant those statements on 

### the bald claim 

### that"therewere many 

### things lying 

### 'behind'the 

### colloquy."See

### Brown, 48A.3d at 1278. In sum,Johnson has failed to 

### carry his burden to plead 

### facts necessary to 

### substantiate a claim 

### that his 

### attorney misled him into pleading 

### guilty such 

### that it rendered his plea 

### unknowing or 

### involuntary. We 

### therefore affirm the 

### orderofthe PCRA 

### court denying relief. Order

### affirmed.



## -7J

### -S62028-18

Judgment Entered.

seph D. 

### Seletyn, Prothonotary

Date: 

### 1/7/19



## -8