J-S19025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT MERK

Appellant No. 2337 EDA 2014

Appeal from the PCRA Order July 10, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001517-2009

 CP-51-CR-0015427-2009

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

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

Appellant Robert Merk appeals from the order entered in the 

Philadelphia County Court of Common Pleas, which dismissed his petition 

filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We 

affirm.

The relevant facts and procedural history of this appeal are as follows. 

On January 26, 2009, at approximately 3:00 a.m., Appellant entered a 

Wawa store, approached the cashier, and directed him to give Appellant all 

of the money in the register. Appellant told the cashier he had a gun 

pointed at him, and the cashier gave him the contents of the register, about 

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1 42 Pa.C.S. §§ 9541-9546.
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two hundred dollars. After the cashier handed him the money, Appellant 

demanded a carton of Kool cigarettes, which the cashier also gave him. 

Appellant then got into a dark-colored Chevy pick-up truck. The Wawa 

manager called 9-1-1, and Officer Buckman responded to the location and 

apprehended Appellant in his vehicle. 

On October 7, 2009, at approximately 7:00 a.m., Appellant entered a 

7-11 store, approached the cashier, and demanded the cashier give him the 

contents of the register. The cashier told Appellant that he was standing 

next to a police officer, and Appellant fled the store. Officer Mather followed 

Appellant and watched him get into a Chevy Lumina. Officer Mather wrote 

down the license plate number, and discovered the vehicle was registered to 

Appellant’s home. Officers later apprehended Appellant. 

Several witnesses identified Appellant shortly after each incident. 

Wawa video surveillance captured the January 26, 2009 event, and 

Appellant admitted to the above facts during Appellant’s guilty plea and 

sentencing. See N.T., 3/27/12, at 13-19. 

On March 27, 2012, Appellant entered a non-negotiated guilty plea to 

two counts of both robbery and possessing an instrument of crime (“PIC”) 

for his combined offenses. The court sentenced Appellant to an aggregate 

sentence of 121⁄2-25 years’ incarceration. On November 20, 2012, Appellant 

filed a timely pro se PCRA petition. The court appointed counsel, who filed a 
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no-merit letter pursuant to Turner2/Finley3 with a petition to withdraw on 

May 28, 2014. The court granted counsel’s petition and issued a Rule 907 

notice of intent to dismiss the PCRA petition without a hearing. On June 26, 

2014, Appellant filed a response to the Rule 907 notice. On July 10, 2014, 

the court denied Appellant’s PCRA petition without a hearing. On August 4, 

2014, Appellant filed a notice of appeal. The court did not order Appellant to 

file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). On September 17, 2014, the court filed its Pa.R.A.P. 

1925(a) opinion.4 

Appellant raises the following issues for our review:

1. WHETHER PCRA COUNSEL WAS INEFFECTIVE FOR 

FAILING TO PROPERLY REVIEW AND PRESENT 

MERITORIOUS ISSUES, INCLUDING SPECIFICALLY THE 

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL (“IATC”) 

CLAIMS WITHOUT AN EVIDENTIARY HEARING FOR 

[APPELLANT’S] TESTIMONY TO FULLY EXPLAIN WHAT 

ISSUE HE TAKES WITH TRIAL/PLEA COUNSEL?

2. WHETHER TRIAL/PLEA COUNSEL PROVIDED DEFICIENT 

PREPARATION FOR TRIAL PREJUDICING [APPELLANT] BY 

REFUSING TO PRESENT A VALID ALIBI DEFENSE?

3. WHETHER THE FAILURE TO NEGOTIATE A PLEA, ADVISE 

[APPELLANT] TO ENTER AN OPEN GUILTY PLEA, AND 

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

3 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).

4 Appellant filed a “Motion to Strike 1925(a) Opinion,” which the court denied 

on October 28, 2014.
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OTHERWISE CHALLENGE IMPOSITION OF THE INSTANT 

MANDATORY SENTENCE CONSTITUTED IATC?

4. WHETHER TRIAL/PLEA COUNSEL’S FAILURE TO FILE A 

REQUESTED POST-SENTENCE MOTION TO WITHDRAW THE 

PLEA CONSTITUTED IATC?

Our well-settled standard of review for orders denying PCRA relief is 

“to determine whether the determination of the PCRA court is supported by 

the evidence of record and is free of legal error. The PCRA court’s findings 

will not be disturbed unless there is no support for the findings in the 

certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192 

(Pa.Super.2013) (internal quotations and citations omitted).

To be eligible for PCRA relief, a petitioner must plead and prove, by a 

preponderance of the evidence, that his conviction or sentence was the 

result of one or more of the following:

(i) A violation of the Constitution of this 

Commonwealth or the Constitution or laws of the United 

States 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.

(ii) Ineffective 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.

(iii) 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.
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(iv) The improper obstruction by government officials 

of the petitioner's right of appeal where a meritorious 

appealable issue existed and was properly preserved in 

the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of 

exculpatory evidence that has subsequently become 

available and would have changed the outcome of the 

trial if it had been introduced.

(vii) The imposition of a sentence greater than the 

lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2). 

In all four issues on appeal, Appellant argues that ineffective 

assistance of counsel entitles him to a new trial. We disagree. 

This Court follows the Pierce5test adopted by our Supreme Court to 

review claims of ineffective assistance of counsel:

When a petitioner alleges trial counsel’s ineffectiveness in 

a PCRA petition, he must prove by a preponderance of the 

evidence that his conviction or sentence resulted from 

ineffective 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. We have 

interpreted this provision in the PCRA to mean that the 

petitioner must show: (1) that his claim of counsel’s 

ineffectiveness has merit; (2) that counsel had no 

reasonable strategic basis for his action or inaction; and 

(3) that the error of counsel prejudiced the petitioner-i.e., 

that there is a reasonable probability that, but for the error 

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5 Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).
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of counsel, the outcome of the proceeding would have 

been different. We presume that counsel is effective, and 

it is the burden of Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal 

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029, 

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). The 

petitioner bears the burden of proving all three prongs of this test. 

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an 

appellant fails to prove by a preponderance of the evidence any of the 

Pierce prongs, the Court need not address the remaining prongs of the 

test.” Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009), 

appeal denied, 990 A.2d 727 (2010) (citation omitted). 

Appellant fails to prove any prongs of the Pierce test for his 

ineffective assistance of counsel claims. For purposes of disposition, we will 

address Appellant’s third issue first. In his third issue, Appellant argues trial 

counsel was ineffective for advising him to enter an open guilty plea. 

Further, he alleges his guilty plea was involuntary because he did not know 

that his sentences could be imposed consecutively. Appellant claims his 

involuntary guilty plea has resulted in manifest injustice, which entitles him 

to a new trial. We disagree.

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

Allen, 557 Pa. 135, 732 A.2d 582 (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), appeal denied, 835 A.2d 709 (Pa.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. 

Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)). 

Whether a defendant is competent to plead guilty “requires a finding 

that the defendant comprehends the crime for which he stands accused, is 

able to cooperate with his counsel in forming a rational defense, and has a 

rational and factual understanding of the proceedings against him.” Willis, 
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68 A.3d at 1002 (citing Commonwealth v. Turetsky, 925 A.2d 876 

(Pa.Super.2007)). “[T]he mere fact [a defendant] was taking prescribed 

psychotropic medication at the time of [a] plea does not, of itself, result in 

the conclusion he was unable to enter a knowing, voluntary, and intelligent 

guilty plea.” Id., at 1009. 

Here, the court conducted a thorough colloquy before Appellant 

entered his guilty plea. See N.T., at 3-12. Appellant was competent to 

enter his plea and stated that the only medication he was taking, Strattera, 

for depression, did not affect his understanding of the proceedings. The 

court explained to Appellant that he could go to jail for up to sixty years and 

that he did not have to plead guilty. Appellant demonstrated that he 

entered the plea with a full understanding of what it connoted and its 

consequences. See Willis, supra. Based on Appellant’s responses to its 

questions, the court was satisfied that Appellant entered the guilty plea 

knowingly, intelligently and voluntarily. Further, given the eyewitnesses to 

the crimes and the video surveillance of Appellant, it was in the range of 

competence of a criminal attorney to suggest Appellant enter into an open 

guilty plea. See Lynch, supra. Thus, Appellant’s guilty plea was not 

unlawfully induced, and his claim of ineffectiveness lacks merit.

In his second issue, Appellant argues trial counsel was ineffective for 

failing to present a valid alibi defense. Appellant claims his wife was able 

and willing to testify that she was with him at a different location during the 
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time the crimes were committed. Given the eyewitness testimony, the video 

surveillance, and Appellant’s guilty plea, there was no basis to present an 

alibi defense. Accordingly, this claim of ineffectiveness lacks merit.

In his fourth issue, Appellant claims his counsel was ineffective for 

failing to file post-sentence motions to withdraw the guilty plea.

The standard for withdrawal of a guilty plea after the imposition of 

sentence is much higher than the standard applicable to a pre-sentence 

motion to withdraw. Commonwealth v. Byrne, 833 A.2d 729, 737 

(Pa.Super.2003). A defendant must demonstrate that manifest injustice 

would result if the court were to deny his post-sentence motion to withdraw 

the plea. Id. “Manifest injustice may be established if the plea was not 

tendered knowingly, intelligently, and voluntarily.” Commonwealth v. 

Hodges, 789 A.2d 764, 765 (Pa.Super.2002); see also Pa.R.Crim.P. 

590(A)(3). “[D]isappointment by a defendant in the sentence actually 

imposed does not represent manifest injustice.” Byrne, 833 A.2d at 737 

(citation omitted); see also Commonwealth v. Moser, 921 A.2d 526, 528-

529 (Pa.Super.2007) (“The law does not require that appellant be pleased 

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

is that [appellant’s] decision to plead be knowingly, voluntarily and 

intelligently made.”).

Here, Appellant entered his guilty plea intelligently, knowingly, and 

voluntarily. Appellant’s disappointment in his sentence does not represent 
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manifest injustice. See Byrne, supra. If Appellant had filed a postsentence motion to withdraw his guilty plea, he would not have been able to 

demonstrate manifest injustice, and the court would have denied the 

motion. Thus, Appellant suffered no prejudice from his counsel’s failure to 

file a post-sentence motion to withdraw the guilty plea. See Pierce, supra;

see also Commonwealth v. Edwards, 612 A.2d 1077, 1079-80 

(Pa.Super.1992), appeal denied, 625 A.2d 1191 (Pa.1993) (dismissing 

appellant’s ineffective assistance of counsel claim because appellant could 

not show prejudice for counsel failing to file post-sentence motions to 

withdraw guilty plea when guilty plea was voluntary and knowing).

In Appellant’s remaining issue, the first issue in his brief, he argues 

PCRA counsel was ineffective for failing to present meritorious issues, 

specifically the ineffectiveness of trial counsel. Because we have determined 

trial counsel was not ineffective, this issue lacks merit. The determination of 

the PCRA court is supported by the evidence of record and is free of legal 

error. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015