J-S45025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID A. HEUER

Appellant No. 2423 EDA 2021

Appeal from the PCRA Order Entered November 3, 2021

In the Court of Common Pleas of Chester County

Criminal Division at No: CP-15-CR-0002480-2018

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.: FILED MARCH 28, 2023

Appellant, David A. Heuer, who is serving a sentence of eight to 

sixteen years’ imprisonment following a guilty plea for a series of burglaries, 

appeals from an order denying relief under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends that his guilty 

plea was not knowing, voluntary or intelligent due to ineffective assistance 

of guilty plea counsel. We affirm.

A criminal information charged Appellant with committing forty-three 

offenses, many of them felonies, during a string of burglaries between March 

10, 2018 and April 8, 2018. On March 11, 2019, Appellant entered an open 

plea of guilty to ten counts of burglary, 18 Pa.C.S.A. § 3502(a)(4), graded 

as felonies of the second degree, and one count of criminal conspiracy to 

commit burglary (no home/no person present), 18 Pa.C.S.A. §§ 903, 

3502(a)(4), also a felony of the second degree. 
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At the beginning of the guilty plea hearing, the prosecutor stated on 

the record in the presence of both parties that “this will be an open guilty 

plea today to ten counts of burglary and one count of conspiracy.” N.T., 

3/11/19, at 2. The Commonwealth recited a lengthy factual predicate for 

each of the ten burglaries. Id. at 2-11. The court colloquied Appellant to 

determine whether his plea was knowing, intelligent and voluntary. The 

court showed Appellant a document, each page of which he had signed 

and/or initialed prior to the hearing (the “Guilty Plea Document”). Id. at 11-

12. Appellant admitted that he had signed the Guilty Plea Document 

following thorough consultation with his counsel as to the meaning of every 

line on the document. Id. at 12. The court asked, “You were present in 

court and heard the lengthy facts as read into the record by the attorney for 

the Commonwealth, and again, they appear on the addendum [to the Guilty 

Plea Document] we just referenced. Do you agree to those facts?” Id. at 

14. Appellant answered, “I do, your Honor.” Id. Appellant is a career 

criminal with numerous prior convictions or adjudications for burglary, both 

as an adult and as a juvenile, in Pennsylvania and Delaware. Id. at 15. The 

court accepted Appellant’s guilty plea as knowing, intelligent and voluntary. 

Id. at 14.

The first page of the Guilty Plea Document advised Appellant of the 

offenses to which he was pleading guilty, including the identification of the 

substantive crimes, the statutes where they were codified, the number of 

offenses to which he was pleading, and the maximum sentences and fines
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for the offenses. Guilty Plea Document, 3/11/19, at 1. On the last page of 

the document, Appellant acknowledged, by placing his initials to the right of 

the statement and by signing his name at the bottom of the page, that he 

was “aware: ...[o]f the maximum sentences and fines that can be imposed 

for the offense with which I am charged; they are set forth on the cover 

pages of this form.” Id. at 8. Appellant acknowledged that he was pleading 

guilty to the charges set forth on the cover page and that he read and 

understood the cover page. Id. at 5. He acknowledged that he was 

entering an open plea of guilt. Id. at 3. He stated that (1) his lawyer had 

explained to him the elements of the offenses to which he was tendering his

plea, (2) he committed these crimes, and (3) the facts set forth on page 2 of 

the Guilty Plea Document (a short description of his crimes) indeed occurred. 

Id. at 5. He said that he was 39 years old, had obtained a GED, and was 

able to read, write and understand the English language. Id. at 5. He 

represented that he had never been treated for a mental illness. Id. at 5-6. 

He understood the charges against him and was able to work with his 

attorney in responding to the charges. Id. at 5. He agreed that he had 

adequate time with counsel for her to answer any questions that he might 

have had about the rights he was giving up. Id. Appellant initialed each 

paragraph of the addendum to the Guilty Plea Document, a detailed 

description of the facts underlying the offenses to which he was pleading 

guilty. Addendum to Guilty Plea Document, at 1-3. He also signed the 

signature line at the conclusion of the addendum. Id. at 3.
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On October 3, 2019, following a pre-sentence investigation, the court 

sentenced Appellant to consecutive sentences of two to four years’

imprisonment on four burglary counts and concurrent sentences on all other 

counts, for an aggregate term of eight to sixteen years’ imprisonment. 

Appellant did not file a direct appeal.

On October 1, 2020, Appellant filed a PCRA petition averring that 

guilty plea counsel rendered ineffective assistance by giving him false 

information about the Commonwealth’s plea offer. According to Appellant, 

prior to his guilty plea, guilty plea counsel told him that the Commonwealth 

offered to permit him to plead guilty to one count of burglary and one count 

of conspiracy in consideration for dropping the remaining forty-one charges 

against him. In reality, Appellant continued, the prosecutor told counsel that 

Appellant had to plead guilty to ten counts of burglary and one count of 

conspiracy. Appellant claimed that his guilty plea was not voluntary, 

knowing, and intelligent because counsel mischaracterized the terms of the 

plea offer.

On August 23, 2021, the PCRA court held an evidentiary hearing in 

which guilty plea counsel and Appellant testified. Guilty plea counsel 

testified that well in advance of the guilty plea hearing, the Commonwealth 

offered to allow Appellant to plead guilty to just one count of conspiracy and 

one count of burglary. N.T., 8/23/21, at 6-7. Counsel notified Appellant 

about this offer. Id. About one month before the guilty plea hearing, 

however, the Commonwealth notified counsel that the offer was for 
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Appellant to plead guilty to one count of conspiracy and ten counts of 

burglary. Id. at 8. Counsel discussed the revised offer with Appellant. Id. 

at 9. Before the guilty plea hearing, counsel went over “every page and 

every paragraph” of the Guilty Plea Document with Appellant. Id. at 9. 

Counsel signed the end of the Guilty Plea Document, signifying her belief 

that Appellant understood what he was pleading guilty to and what rights he 

was giving up in his plea. Id. Before the guilty plea, she advised Appellant 

that he faced the possibility that the court could impose consecutive 

sentences if he entered an open plea of guilty. Id. at 11. In her belief,

Appellant entered a knowing, voluntary and intelligent plea, and at the time 

of his guilty plea, he understood the maximum sentences he could face and 

that the sentences could run consecutively to one another. Id. at 11. 

Counsel added that between the time of Appellant’s guilty plea and 

sentencing, Appellant did not ask counsel to file a motion to withdraw his 

guilty plea. Id. at 12. 

Appellant testified on his own behalf. According to Appellant, guilty 

plea counsel led him to believe that he was pleading guilty to only two 

charges, one count of burglary and one count of conspiracy. Counsel did not 

advise before his plea that the Commonwealth had revised its offer to ten 

counts of burglary and one count of conspiracy. Id. at 64-65, 70. On the 

day of the guilty plea hearing, he “was basically just advised to sign” the 

plea agreement, and he signed it because he “thought [he] was doing what 

[he] was advised to do.” Id. at 68. He said, “You know, I breezed 
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through—I didn’t read every word, but I breezed through the plea colloquy 

and, you know, everything on here led to two felonies. Like everything that 

she had said had lined up for two felonies.” Id. at 68, 78-79. He stated, 

“The maximum time is the exact same time as the one conspiracy count. 

Like I didn’t see the Counts 1 through 10 in here.” Id. at 69. He signed the 

addendum detailing the ten burglaries because he believed this would allow 

“the case [to] be closed, and I could also pay restitution . . .” Id. at 72-73. 

Counsel did not tell him about the maximum penalties he faced, and had she 

done so, he would have insisted on going to trial. Id. at 73-75. He never 

asked counsel a question during the guilty plea hearing because he thought 

that he understood everything “perfectly,” that is, he was “taking a plea to 

two felonies and the most I could get was two to four for each charge less or 

plus the aggregate.” Id. at 76. He did not ask counsel to file a motion to 

withdraw his guilty plea between the plea hearing and sentencing because 

he did not realize until sentencing that he had pleaded guilty to more than 

two counts. Id. at 76-77. He knew at the time of his guilty plea hearing 

that he faced possible consecutive sentences, but only for two charges (one 

burglary and one conspiracy charge). Id. at 80. 

On November 3, 2021, the PCRA court entered an order denying PCRA 

relief. Appellant filed a timely appeal, and both Appellant and the PCRA 

court complied with Pa.R.A.P. 1925. Appellant raises the following issues in 

this appeal:
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I. Did the PCRA court err in not finding plea counsel ineffective 

for falsely advising Appellant that the Commonwealth was going 

to allow him to plead guilty to only two of the multiple felony 

counts he was charged with in exchange for his open guilty plea 

and then allowing him to enter an open guilty plea to ten felony 

burglary counts and one conspiracy count?

II. Did the PCRA court err in not finding that plea counsel was 

ineffective for failing to inform Appellant of the maximum 

potential sentence that he faced when he entered his guilty plea 

where the court also did not inform him of the maximum penalty 

he might receive such that his plea was not knowingly, 

intelligently, and voluntarily entered?

Appellant’s Brief at 4.

“On appeal from the denial of PCRA relief, our standard of review 

requires us to determine whether the ruling of the PCRA court is supported 

by the record and free of legal error.” Commonwealth v. Widgins, 29 

A.3d 816, 819 (Pa. Super. 2011). As this Court has explained:

We review an order dismissing a petition under the PCRA in the 

light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court and the 

evidence of record. We will not disturb a PCRA court’s ruling if it 

is supported by evidence of record and is free of legal error. 

This Court may affirm a PCRA court’s decision on any grounds if 

the record supports it. Further, we grant great deference to the 

factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). Further, 

“[a] PCRA court passes on witness credibility at PCRA hearings, and its 

credibility determinations should be provided great deference by reviewing 

courts.” Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009). 
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When issues of credibility are concerned, it is not the function of an 

appellate court to substitute its judgment based on a cold record for that of 

the court of common pleas. Commonwealth v. King, 271 A.3d 437, 443 

(Pa. Super. 2021).

When a petitioner asserts an ineffectiveness claim, he is entitled to 

relief if he pleads and proves that prior counsel rendered ineffective

assistance of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). “To prevail on an 

[ineffectiveness] claim, a PCRA petitioner must plead and prove by a 

preponderance of the evidence that (1) the underlying legal claim has 

arguable merit; (2) counsel had no reasonable basis for acting or failing to 

act; and (3) the petitioner suffered resulting prejudice.” Commonwealth 

v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). “A 

petitioner must prove all three factors of [this] test, or the claim fails.” Id.

“The burden of proving ineffectiveness rests with Appellant.”

Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005). 

In his first claim of ineffective assistance, Appellant claims that his 

plea was unknowing, involuntary or unintelligent because guilty plea counsel

falsely advised him that he was pleading guilty to only two charges but then 

allowed him to plead guilty to ten burglaries and one conspiracy charge. The 

PCRA court correctly denied this claim due to lack of arguable merit.

To be valid, a plea must be voluntary, knowing, and intelligent. 

Commonwealth v. Persinger, 615 A.2d 1305, 1307 (Pa. 1992). In other 
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words, “[t]he law 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. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996)

(en banc). 

Pennsylvania Rule of Criminal Procedure 590 governs guilty pleas and 

plea agreements. Under Rule 590, in order for a guilty plea to be voluntary 

and knowing, the plea colloquy must, at a minimum, ascertain the following:

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?

Comment, Pa.R.Crim.P. 590. 

The law presumes that a defendant who enters a guilty plea is aware 

of what he is doing. Commonwealth v. Hart, 174 A.3d 660, 665 (Pa. 

Super. 2017). The defendant is bound by the statements he makes during 

his plea colloquy. Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. 
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Super. 2017). A defendant who elects to plead guilty has a duty to answer 

questions truthfully and is bound by statements he makes under oath. 

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003). He may 

not assert grounds for withdrawing a guilty plea that contradict the 

statements he made when he entered the plea. Id.

“[A] criminal defendant’s right to effective counsel extends to the plea 

process, as well as during trial.” Commonwealth v. Wah, 42 A.3d 335, 

338 (Pa. Super. 2012). Thus, “[i]n the context of a plea, a claim of 

ineffectiveness may provide relief only if the alleged ineffectiveness caused 

an involuntary or unknowing plea.” Orlando, 156 A.3d at 1281. “Where 

the defendant enters his plea on the advice of counsel, the voluntariness of 

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

competence demanded of attorneys in criminal cases.” Wah, 42 A.3d at 

338-39; see also Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa. 

Super. 2005) (when asserting claim of ineffectiveness of counsel in 

connection with guilty plea, defendant must show that plea counsel’s 

ineffectiveness induced him to enter the plea).

Appellant argues that guilty plea counsel was ineffective for failing to 

inform him that he was pleading guilty to ten burglary and one conspiracy 

charge, not just one burglary and one conspiracy charge. The PCRA court 

correctly rejected this argument because the record establishes that 
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Appellant fully understood the nature of the charges at the time of his guilty 

plea.

Appellant is a career criminal with numerous prior convictions or 

adjudications for burglary, both as an adult and as a juvenile, in 

Pennsylvania and Delaware. The record establishes that guilty plea counsel 

advised Appellant that he was pleading guilty to ten burglaries and one 

conspiracy charge, not merely one burglary and one conspiracy charge, as 

Appellant alleges. The first page of the Guilty Plea Document sets forth the 

elements of burglary and conspiracy. Appellant signed this page and signed 

an acknowledgement on the final page of the Guilty Plea Document that he 

read and understood the cover page and the charges against him. Appellant 

initialed each paragraph of the addendum to the Guilty Plea Document that 

detailed the facts underlying all ten charges. He also signed the signature 

line at the conclusion of the addendum. Appellant also acknowledged in the 

Guilty Plea Document that he had enough time to discuss his charges with 

his lawyer, that he was satisfied with the advice that she gave him and with 

her representation of him, that he had gone over the entire document with 

his lawyer, and that she explained it to him and answered his questions. 

Moreover, during the guilty plea hearing, in Appellant’s presence, the 

prosecutor stated that Appellant was entering an open guilty plea to ten 

counts of burglary and one count of conspiracy. The prosecutor read into 

the record the summary of all charges in the addendum to the Guilty Plea 
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Document. Appellant testified that he signed the Guilty Plea Document 

following thorough consultation with his counsel as to the meaning of every 

line on the document. He further testified that he heard the lengthy 

recitation of facts by the Commonwealth and agreed to those facts. 

During the PCRA hearing, guilty plea counsel testified that she had 

numerous conversations with Appellant about the charges he faced and what 

he could expect if he agreed to the Commonwealth’s offer. N.T., 8/23/21, at 

8. Counsel told Appellant that the initial offer from the Commonwealth was 

a guilty plea to one count of burglary and one count of conspiracy. Id. at 8. 

Approximately one month before the guilty plea hearing, however, counsel 

advised Appellant that the Commonwealth revised its offer to a guilty plea to 

ten counts of burglary and one count of conspiracy. Id. at 9. Counsel 

reviewed with Appellant “[e]very page and every paragraph” of his written 

Guilty Plea Document. Id. at 9-10. The PCRA court credited counsel’s 

testimony, PCRA Ct. Op., 5/17/22, at 58, and we accord great deference to 

this credibility determination. Johnson, 966 A.2d at 539. 

The PCRA court also found Appellant’s testimony incredible. Appellant 

claimed during the PCRA hearing that he simply “breezed through” the Guilty 

Plea Document and believed he was pleading guilty to only one charge of 

burglary and the conspiracy charge. The PCRA court carefully explained why

it did not believe this testimony:

If [Appellant] did not pay attention to counsel as she went over 

each and every page with him and did not specifically attend to 
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the terms of the agreement, [Appellant]’s alleged confusion, the 

notion of which we reject, would have been due to his own 

nonfeasance and no inadequacy in counsel’s stewardship. 

Additionally, [Appellant] did not raise any concerns about the 

alleged discrepancy in his peculiar understanding of the terms of 

the plea and the actual terms as set forth on the record either at 

the verbal guilty plea colloquy or at sentencing. To the contrary, 

[Appellant] affirmed that he understood the terms of the plea, 

that he had had enough time to go over the plea with counsel, 

that he was satisfied with her services, and that she had 

answered any questions he might have had.

PCRA Court Opinion, 5/17/22, at 65. 

Appellant complains that “there is no record support for the court’s 

decision to credit [guilty plea counsel’s] testimony over [A]ppellant’s.” 

Appellant’s Brief at 21 n.2. As stated above, we cannot substitute our own 

judgment on credibility issues for the PCRA court’s judgment. Credibility 

determinations rest not only upon the substance of the witnesses’ testimony 

but also on their demeanor. The PCRA court had the opportunity to observe 

the witnesses’ demeanor during the evidentiary hearing. This Court does 

not have that opportunity; all that we have is the cold record. Therefore, we 

do not accept Appellant’s invitation to find him more credible than guilty plea 

counsel. 

Based on the Guilty Plea Document, Appellant’s testimony during the 

guilty plea, and the evidence adduced during the PCRA evidentiary hearing, 

the PCRA court had ample reason to conclude that Appellant’s claim of 

ineffective assistance lacks arguable merit. The record supports the PCRA 

court’s determination that Appellant understood that he was pleading guilty 
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to ten burglaries and one count of conspiracy, and that his guilty plea was 

knowing, voluntary and intelligent.

In his second and final argument, Appellant asserts that guilty plea 

counsel was ineffective because she failed to make him aware that the court 

could impose consecutive sentences. The PCRA court properly rejected this 

argument. 

The court imposed consecutive sentences on four of the eleven counts 

to which Appellant pleaded guilty. Concededly, the Guilty Plea Document

stated the maximum possible sentence for burglary and conspiracy, it did 

not state that the court could impose consecutive sentences. Nor was the 

subject of consecutive sentences discussed during the guilty plea hearing. 

Nevertheless, the record demonstrates that at the time of the guilty plea 

hearing, Appellant was fully aware that the court could impose consecutive 

sentences on all charges. Guilty plea counsel testified during the PCRA 

hearing that prior to the guilty plea, she advised Appellant that by pleading 

guilty to ten counts of burglary and a single count of conspiracy, he faced 

consecutive sentences on these charges. The PCRA court found this 

testimony credible. Furthermore, during the PCRA hearing, Appellant 

admitted knowing at the time of his guilty plea that he faced possible 

consecutive sentences. He claimed, however, that he believed he was 

pleading guilty to only two offenses and therefore faced consecutive 

sentences on only two charges. The PCRA court found guilty plea counsel’s 
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testimony credible and Appellant’s testimony incredible, as it had the right to 

do as the finder of fact. King, 271 A.3d at 443. 

For these reasons, we affirm the PCRA court’s order denying relief to 

Appellant.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/28/2023