J-S19022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUSTIN HEARD

Appellant No. 2154 EDA 2014

Appeal from the PCRA Order July 11, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003926-2010

BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 07, 2015

Appellant Justin Heard appeals from the dismissal of his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et 

seq. We affirm.

On May 7, 2012, Appellant pled guilty to third degree murder,1

aggravated assault,2and possession of a firearm prohibited.3 The parties 

agreed to, and the trial court imposed, an aggregate sentence of thirty to 

sixty years’ incarceration, to run concurrent to a sentence imposed at a 

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1 18 Pa.C.S. § 2502(c).

2 18 Pa.C.S. § 2702(a).

3 18 Pa.C.S. § 6106(a)(1).
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separate docket for 17 1⁄2 to 35 years’ incarceration. N.T., 5/7/2012, at 32, 

34. Appellant did not file post-sentence motions or a direct appeal.

On March 31, 2013, Appellant filed a timely pro se PCRA petition. The 

PCRA court appointed counsel. On April 29, 2014, counsel filed a no-merit 

letter pursuant to Turner4and Finley5and filed a motion to withdraw as 

counsel. On May 23, 2014, the PCRA court issued notice of its intent to 

dismiss the PCRA petition pursuant to Pennsylvania Rule of Criminal 

Procedure 907. On June 9, 2014, Appellant filed a timely response to the 

notice of intent to dismiss.6 On July 9, 2014, the PCRA court granted 

counsel’s motion to withdraw and dismissed Appellant’s PCRA petition. On 

July 25, 2014, Appellant filed a timely notice of appeal. Both Appellant and 

the trial court complied with Pennsylvania Rule of Appellant Procedure 1925.

Appellant raises the following issues on appeal:

1. Did the trial court err in dismissing Appellant’s PCRA 

petition where it is clear that counsel of record (James A. 

Lammendola) failed to adequately review Appellant’s 

record and investigate pursuant to the requirements in 

[Finley] and Commonwealth v. Mosteller, 633 A.2d 615 

([Pa.Super.]1993)?

____________________________________________

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

5 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1987).

6 Appellant titled his response “Motion to Deny PCRA Counsel’s Motion to 

Withdraw and Petitioner’s Response to the Court’s Notice Pursuant to 

Pa.R.Crim.P. 907 Filed May 23, 2014.”
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2. Did the trial court err in dismissing Appellant’s PCRA 

petition since trial counsel was ineffective for 

advising/coercing Appellant to plead guilty to the charge of 

third degree murder when the nature of the charges and 

the lack of communication with counsel pursuant to 

[Pa.R.Crim.P.] 590?

3. Did the trial court err in dismissing Appellant’s PCRA 

petition since based upon the totality of the circumstances 

test, Appellant did not plead guilty to the charge of third 

degree murder in a knowingly, voluntarily, or intelligent 

manner?

Appellant’s Brief at 7.7

Appellant’s first issue challenges the effectiveness of PCRA counsel. 

Because Appellant alleged PCRA counsel ineffectiveness in his response to 

the PCRA court’s notice of intent to dismiss the petition, we will review the 

PCRA court’s determination that counsel complied with Turner/Finley and 

review whether the PCRA court properly granted counsel’s petition to

withdraw. See Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super.2012) 

(reviewing PCRA Court’s grant of withdrawal and Turner/Finley analysis 

where appellant challenged it in opposition to notice of intent to dismiss). 

Turner/Finley provides a mechanism for post-conviction counsel to 

withdraw. Rykard, 55 A.3d at 1184. Competent PCRA counsel must 

conduct an independent review of the record before a PCRA or appellate 

court can authorize counsel’s withdrawal. Id. This independent review:

____________________________________________

7 Appellant’s Brief does not contain page numbers. All page numbers are 

supplied by this Court.
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[R]equires counsel to file a “no-merit” letter detailing the 

nature and extent of his review[,] [listing] each issue the 

petitioner wishes to have examined, [and] explaining why 

those issues are meritless. The PCRA court, or an 

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

must conduct its own independent evaluation of the record 

and agree with counsel that the petition is without merit.

Id.

Here, PCRA counsel submitted a no-merit letter which states that he 

“reviewed the quarter sessions filed, attempted to correspond with the 

petitioner,[8]reviewed all relevant notes of testimony, and reviewed the 

applicable law.” Letter from James A. Lammendola, Esq. to the Honorable 

Lillian H. Ransom docketed April 29, 2014, at 1 (“No-Merit Letter”). Counsel 

then provides the case’s background, lists the issues the petitioner would 

like examined, explains why those issues are meritless, and states there are 

no additional issues of arguable merit. Id. at 2-11. In addition, PCRA 

counsel sent the No-Merit Letter to Appellant, along with a copy of the 

motion to withdraw, and informed Appellant he had the right to retain 

private counsel or proceed pro se to raise any issues he believed have merit. 

Letter from James A. Lammendola, Esq. to Justin Heard dated April 24, 

2014. Although the PCRA court merely adopted the No-Merit Letter in its 

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8 Appellant maintains counsel did not consult or communicate with him. 

Appellant’s Brief at 12-13. PCRA counsel does not clarify how he “attempted 

to correspond” with Appellant. Regardless, PCRA counsel conducted a 

review of the record and, because the issues Appellant raised could be found 

in the record, he was not required to communicate with Appellant.
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notice of intent to dismiss the PCRA petition, it provided a 1925(a) opinion 

discussing the issues raised and explaining why they lacked merit.9 PCRA 

counsel followed the dictates of Turner/Finley in filing his No-Merit Letter 

and motion to withdraw, and the PCRA court properly dismissed the PCRA 

petition and granted counsel’s motion to withdraw. Appellant’s first claim is 

meritless.

Appellant’s second and third issues allege ineffective assistance of trial 

counsel. The claims lack merit.

Our standard of review from the denial of post-conviction relief “is 

limited to examining whether the court’s determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 

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

Morales, 701 A.2d 516, 520 (Pa.1997)).

For ineffective assistance of counsel claims, the petitioner must 

establish: “(1) that the underlying claim has merit; (2) counsel had no 

reasonable strategic basis for his or her action or inaction; and (3) but for 

the errors or omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different.” Ousley, 21 A.3d at 

1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 

____________________________________________

9 We note the PCRA court failed to certify that it conducted an independent 

review of the record to ensure no claims of arguable merit existed. We, 

however, have conducted such a review, and find there are no issues of 

arguable merit.
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(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of 

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove 

any one of the three [ineffectiveness] prongs results in the failure of 

petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279). 

“Allegations of ineffectiveness in connection with the entry of 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.

Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v. 

Allen, 732 A.2d 582 (Pa.1999)). Whether a plea was voluntary “depends on 

whether counsel’s advice was within the range of competence demanded of 

attorneys in criminal cases.” Commonwealth v. Lynch, 820 A.2d 728, 733 

(Pa.Super.2003) (quoting Hickman, 799 A.2d at 141). 

“[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. Willis, 68 A.3d 997, 1001 (Pa.Super.2013) 

(quoting Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super. 

2010) (alterations in original)). A guilty plea colloquy must “affirmatively 

demonstrate the defendant understood what the plea connoted and its 

consequences.” Id. at 1002 (quoting Commonwealth v. Lewis, 708 A.2d 

497, 501 (Pa.Super.1998)). After a defendant enters a guilty plea, “it is 

presumed that he was aware of what he was doing, and the burden of 

proving involuntariness is upon him.” Id. (quoting Commonwealth v. 
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Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)). Further, “where the totality 

of the circumstances establishes that a defendant was aware of the nature of 

the charges, the plea court’s failure to delineate the elements of the crimes 

at the oral colloquy, standing alone, will not invalidate an otherwise knowing

and voluntary guilty plea.” Commonwealth v. Morrison, 878 A.2d 102, 

107 (Pa.Super.2005) (citing Commonwealth v. Schultz, 477 A.2d 1328 

(Pa.1984)).

Appellant’s second issue maintains his trial counsel was ineffective 

because counsel coerced Appellant to plead guilty. He claims counsel did 

not provide Appellant with sufficient time to consider the guilty plea. 

Based on the totality of the circumstances, Appellant entered a 

knowing, intelligent, and voluntary guilty plea. He informed the trial court 

that no one forced him to plead guilty. N.T., 5/7/2012, at 9, 13. He 

completed the written guilty plea colloquy form, which included an 

explanation of the proceedings and detailed the rights he waived by pleading 

guilty. Id., Written Guilty Plea Colloquy.10 Further, contrary to Appellant’s 

contention, he had sufficient time to consider the guilty plea. Appellant 

spoke with counsel on the morning of the guilty plea and the guilty plea 

hearing was suspended to permit Appellant additional time to discuss the 

____________________________________________

10 Appellant is bound by the statements made at the time of the guilty plea. 

See Commonwealth v. Willis, 68 A.3d 997, 1009 (Pa.Super.2013) 

(appellant bound by statements made in open court under oath).
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plea with his sister and counsel. N.T., 5/7/2012, 9-12. Several hours 

passed before the guilty plea hearing resumed.11 Id. at 12. Appellant’s 

second claim, therefore, lacks merit.

Appellant’s third claim alleges his counsel was ineffective for failing to 

adequately define the elements of third-degree murder during the guilty plea 

colloquy. This claim is meritless. 

During the guilty plea colloquy, trial counsel stated that the elements 

of third-degree murder are “a purposeful, knowing killing of another 

human.” N.T., 5/7/2012, at 21. This definition was inaccurate; third-degree 

murder is defined as a “killing done with malice,” which does not require an 

intent to kill. Commonwealth v. Kimbrough, 872 A.2d 1244, 1252, 1263 

(Pa.Super.2005). This misstatement, however, did not cause Appellant to 

enter an unknowing, unintelligent, or involuntary plea. The facts to which he 

agreed established third-degree murder. N.T., 5/7/2012, at 25-27. 

Further, the totality of the circumstances establish the plea was knowing, 

intelligent, and voluntary. Appellant understood that the trial court would be 

required to sentence him to life imprisonment if the jury convicted him of 

____________________________________________

11 The court stated it would commence jury selection, take a break for lunch, 

and, when court reconvened after lunch, it would determine whether 

Appellant wished to plead guilty. N.T., 5/7/2012, at 11.
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first-degree murder or third-degree murder,12 and the elements as stated 

included an additional element, intent, that a third-degree murder conviction 

does not require. N.T., 5/7/2012, at 7. See Commonwealth v. Morrison, 

878 A.2d 102, 109 (Pa.Super.2005) (plea valid where oral colloquy did not 

outline the elements of the crimes, but it was apparent appellant was aware 

of the nature of the offenses because he executed a document admitting 

that he was advised of the offenses outlined in the information, which 

detailed the elements of those offenses); Commonwealth v. Schultz, 477 

A.2d 1328 (Pa.1984) (plea valid even though defendant not told theft was 

element of robbery and he had not completed the armed robbery where 

evidence presented at colloquy established armed robbery, he agreed the 

government alleged he entered the store and put the employees in threat of 

immediate bodily injury, knew he was accused of trying to hold up the store, 

and had three prior robbery convictions). This claim is meritless.

Order affirmed and motion for stay and abeyance denied.13

____________________________________________

12 Because Appellant had a prior third-degree murder conviction, he faced a 

mandatory sentence of life imprisonment if convicted of third-degree 

murder. 42 Pa.C.S. § 9715(a).

13 On March 9, 2015, Appellant filed a motion for stay and abeyance 

requesting that this Court stay the appellate proceedings to permit him to 

exhaust a new ineffective assistance of counsel claim, i.e., that counsel was 

ineffective for failing to investigate whether a pre-sentence investigation 

should have been conducted to determine if Appellant had any psychiatric 

history. Motion for Stay and Abeyance at ¶¶ 7, 11. We deny this motion. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015