J-S38044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JOHN LEE

 Appellant No. 2610 EDA 2016

Appeal from the PCRA Order July 13, 2016

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0011788-2009, CP-51-CR-0011789-2009, 

CP-51-CR-0014002-2009

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 25, 2017

Appellant, John Lee, appeals from the order entered in the Philadelphia 

County Court of Common Pleas denying his first Post Conviction Relief Act1

(“PCRA”) petition without a hearing. Appellant claims that his plea counsel’s 

ineffectiveness caused him to enter an unknowing, involuntary, and 

unintelligent plea, and that he was entitled to an evidentiary hearing on this 

claim. We affirm. 

The PCRA court summarized the procedural and factual history of this 

appeal as follows: 

On September 7, 2009, [A]ppellant was arrested and 

charged with a host of crimes including Rape and 

Involuntary Deviate Sexual Intercourse, Criminal 

Solicitation, Sexual Assault, Criminal Conspiracy and 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. 
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related offenses.[2] On March 20, 2012, [A]ppellant 

appeared before th[e trial c]ourt and entered an open 

guilty plea to Criminal Conspiracy (2 counts), Unlawful 

Restraint (2 counts), Simple Assault (2 counts), Criminal 

Solicitation and Possession with Intent to Deliver. 

Appellant was sentenced on August 1, 2012, to an 

aggregate sentence of fifteen (15) to thirty (30) years 

incarceration.[3] A Motion to Reconsider Sentence was filed 

by [A]ppellant on August 13, 2012. This [c]ourt denied 

the Motion on September 4, 2012. Appellant did not file 

an appeal. However, on July 15, 2013, [A]ppellant filed a 

petition for relief under the [PCRA]. Counsel was 

appointed to assist [A]ppellant in the preparation of an 

Amended PCRA petition. An Amended PCRA petition was 

filed on February 2, 2015. The Commonwealth responded 

with a Motion to Dismiss which was filed on April 7, 2016. 

This [c]ourt took the matter under advisement. Following 

a review of the record and the various pleadings, this 

[c]ourt dismissed the [A]ppellant’s Amended PCRA petition 

on July 13, 2016.[4] . . . 

***

 

2 The charges were listed in three separate dockets: CP-51-CR-0011788-

2009 (“11788-2009”); CP-51-CR-0011789-2009 (“11789-2009”); and CP51-CR-0014002-2009 (“14002-2009”). 

3 The trial court sentenced Appellant to the following individual terms of 

imprisonment. In 11788-2009, five to ten years for conspiracy, a 

consecutive two to four years each for unlawful restraint and criminal 

solicitation, and a concurrent one to two years for simple assault. In 11789-

2009, a consecutive five to ten years’ imprisonment for conspiracy, a 

concurrent two to four years for unlawful restraint, and a concurrent one to 

two years for simple assault. In 14002-2009, a consecutive one to two 

years for possession with intent to deliver. 

4 The PCRA court did not issue a Pa.R.Crim.P. 907(1) notice of intent to 

dismiss the petition. However, Appellant does not challenge this procedural 

misstep in this appeal. See Commonwealth v. Taylor, 65 A.3d 462, 468 

(Pa. Super. 2013) (noting that the “failure to challenge the absence of a 

Rule 907 notice constitutes waiver” (citation omitted)).
J-S38044-17

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The facts of [A]ppellant’s case were detailed at great 

length by the Commonwealth at the guilty plea hearing on 

March 20, 2012. Essentially [A]ppellant engaged in a 

human trafficking ring that operated out of a Ramada Inn 

on Roosevelt Boulevard in Philadelphia. In the months 

leading up to [A]ppellant’s arrest, he and others engaged 

in a large scale prostitution operation. Appellant’s 

associates went throughout Northeast Philadelphia and 

lured women with promises of food, shelter and drugs. 

Once the victims agreed to go with [A]ppellant’s 

associates, they were brought to the Ramada Inn where 

they were sold to [A]ppellant and forced into prostitution. 

[Appellant was found with controlled substances in his 

possession at the time of his arrest. Two complainants 

gave statements to police implicating Appellant in the 

operation. Although Appellant suggests that one of the 

complainants recanted her allegations at the preliminary 

hearing,5 the Commonwealth’s asserted that the

complainant was prepared to testify against Appellant at 

trial.]

PCRA Ct. Op., 10/17/16, at 1-2. 

Appellant timely appealed the order denying his PCRA petition without 

a hearing. The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) 

statement. However, the PCRA court issued Pa.R.A.P. 1925(a) opinion 

concluding that Appellant’s plea was knowing, intelligent, and voluntary 

based on its colloquy advising him of the nature of offenses, his rights to a 

trial, and the permissible range of sentences in each case. PCRA Ct. Op. at 

4. 

 

5 Appellant extensively cites to the transcript of the preliminary hearing, 

which is not included in the certified record. However, the Commonwealth 

does not object to the accuracy of Appellant’s recitation of the preliminary 

hearing testimony. 
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Appellant presents two questions that we have reordered for the 

purposes of our review:

Whether the court erred in not granting relief on the PCRA 

petition alleging counsel was ineffective[?]

Whether the court erred in denying the Appellant’s PCRA 

petition without an evidentiary hearing on the issues raised 

in the amended PCRA petition regarding trial counsel’s 

ineffectiveness[?]

Appellant’s Brief at 8. 

Appellant initially claims that the PCRA court erred in dismissing his 

claim of ineffective assistance of counsel. In support, Appellant presents 

three arguments that counsel’s ineffectiveness caused him to enter an 

invalid guilty plea, which we address in detail below. 

It is well-settled that:

This Court’s standard of review regarding an order denying 

a petition under the PCRA is 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. 

***

To prevail on a claim alleging counsel’s 

ineffectiveness under the PCRA, [the petitioner] 

must demonstrate (1) that the underlying claim is of 

arguable merit; (2) that counsel’s course of conduct 

was without a reasonable basis designed to 

effectuate his client’s interest; and (3) that he was 

prejudiced by counsel’s ineffectiveness, i.e. there is a 

reasonable probability that but for the act or 

omission in question the outcome of the proceeding 

would have been different. 
J-S38044-17

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It is clear that a criminal defendant’s right to effective 

counsel extends to the plea process, as well as during trial. 

However, “[a]llegations 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. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations 

omitted). The prejudice required to prevail on a claim of counsel’s 

ineffectiveness during the plea process “is similar to the ‘manifest injustice’ 

standard applicable to all post-sentence attempts to withdraw a guilty plea.” 

Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa. Super. 2006) (citation 

omitted). 

First, Appellant argues that plea counsel promised him there was a 

plea deal for three to six years’ imprisonment in exchange for his guilty plea 

to a single count of possession with intent to deliver, and that he was 

unaware of the maximum sentences for the offenses to which he pleaded 

guilty. Appellant’s Brief at 17-18. We find no support for this argument. 

It is well settled that “[a] person who elects to plead guilty is bound 

by the statements he makes in open court while under oath and he may not 

later assert grounds for withdrawing the plea which contradict the 

statements he made at his plea colloquy.” Commonwealth v. Turetsky, 

925 A.2d 876, 881 (Pa. Super. 2007) (citations omitted). This Court has 

stated “we should be hesitant to set aside the trial court’s determination that 

a hearing is unnecessary[,]” when an alleged promise of a lenient sentence 

“in support of withdrawal is clearly contradicted by the unambiguous 
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language of a guilty plea colloquy[.]” Commonwealth v. Cappelli, 489 

A.2d 813, 819 (Pa. Super. 1985) (en banc).

Instantly, Appellant signed three separate written colloquies, which 

each indicated the offenses charged, the offenses to which Appellant pleaded 

guilty, and the maximum sentences for the individual offenses subject to the 

plea.6 Written Guilty Plea Colloquy, 11788-2009, 11789-2009 & 14002-

2009, at 1. The trial court also informed Appellant there were no 

agreements regarding sentencing, except for the Commonwealth’s decision 

not to pursue a mandatory minimum sentence for the drug offense in 

14002-2009. Id. Thus, the record clearly contradicts Appellant’s allegation 

that he pleaded guilty based on an alleged promise of a three to six year 

sentence, or that plea counsel failed to advise him of the maximum 

sentences of the remaining offenses. Accordingly, we agree with the PCRA 

court that these arguments lacked arguable merit. See Wah, 42 A.3d at 

338-39; Cappelli, 489 A.2d at 819.

 

6 The written colloquy in 11788-2009 did not include the maximum range of 

sentences for several individual offenses. However, the written colloquies in 

11789-2009 included the same offenses and indicated the maximum range 

of sentences for those offenses. 

 
J-S38044-17

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Appellant next argues that plea counsel failed to explain the nature of 

an open plea and the trial court’s authority to impose consecutive sentences 

in all three cases.7 No relief is due. 

In Commonwealth v. Carter, 656 A.2d 463 (Pa. 1995), the 

Pennsylvania Supreme Court acknowledged that a plea could be withdrawn 

where the defendant was not advised that the trial court could impose 

consecutive sentences on his plea to multiple counts of burglary. Id. at 466 

(discussing Commonwealth v. Persinger, 615 A.2d 1305 (Pa. 1992)). 

However, the Carter Court held that “where the aggregate sentence 

[actually imposed] falls within the minimum and maximum sentence that 

can be imposed on a single count of the crimes charged, [the defendant is] 

not prejudiced for not being informed of the maximum total sentence he 

risked by pleading nolo contendere.” Id. 

Here, the written and oral plea colloquies did not expressly advise 

Appellant of the trial court’s ability to sentence consecutively on all counts, 

or of his total exposure to 155 years’ imprisonment. However, both the 

written and oral colloquies apprised Appellant that the maximum exposure of 

his plea in 11788-2009 was fifty-five years. See Written Guilty Plea 

Colloquy, 11788-2009, at 1; N.T., 3/20/12, at 3. The trial court ultimately 

imposed an aggregate sentence of fifteen to thirty years’ imprisonment, 

 

7 Although the PCRA court did not address this issue in its Pa.R.A.P. 1925(a) 

opinion, this Court may affirm on any basis apparent in the record. 

Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000). 
J-S38044-17

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which fell within the range imposed in that single case. Consequently, 

Appellant cannot establish manifest injustice based on plea counsel’s alleged 

failure to inform him of the nature of his open plea or the possibility that 

consecutive sentences could be imposed on all offenses. See Diaz, 913 

A.2d at 874; Carter, 656 A.2d at 466. Thus, this argument fails. 

Appellant next argues that plea counsel was ineffective for refusing to 

investigate or present possible defense witnesses. Appellant’s Brief at 18. 

According to Appellant, 

These witnesses, Millicient Fluck, and Kate Taylor were 

arrested together with him in the case. These witnesses 

were available but [counsel] refused to talk to them or add 

to the defense Appellant asserts. Appellant claims 

[counsel] told [him], without even talking to them, “They 

were lying anyway.” These witnesses were available and 

had no less credibility than [one of the complainants].

Id. at 18. Appellant asserts plea counsel “did not want to go to trial[,]” and 

“[t]his strategy was also demonstrated when trial counsel refused to 

interview available witness[es] that could have demonstrated Appellant’s 

innocence.” Id. at 18-19. We conclude that this claim is inadequately 

developed.8 

The following precepts govern our review:

Counsel has a general duty to undertake reasonable 

investigations or make reasonable decisions that render 

particular investigations unnecessary. Counsel’s 

unreasonable failure to prepare for trial is “an abdication of 

the minimum performance required of defense counsel.”

 

8 See supra note 7. 
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The duty to investigate, of course, may include a duty to 

interview certain potential witnesses; and a prejudicial 

failure to fulfill this duty, unless pursuant to a reasonable 

strategic decision, may lead to a finding of ineffective 

assistance. Recently summarizing cases . . ., this Court 

stated that:

These cases . . . arguably stand for the proposition 

that, at least where there is a limited amount of 

evidence of guilt, it is per se unreasonable not to 

attempt to investigate and interview known 

eyewitnesses in connection with defenses that hinge 

on the credibility of other witnesses. They do not 

stand, however, for the proposition that such an 

omission is per se prejudicial. 

Indeed, such a per se failing as to performance, of course, 

does not make out a case of prejudice, or overall 

entitlement to Strickland relief.

When raising a failure to call a potential witness claim, the 

PCRA petitioner satisfies the performance and prejudice 

requirements of the Strickland test by establishing that:

(1) the witness existed; (2) the witness was 

available to testify for the defense; (3) counsel knew 

of, or should have known of, the existence of the 

witness; (4) the witness was willing to testify for the 

defense; and (5) the absence of the testimony of the 

witness was so prejudicial as to have denied the 

defendant a fair trial.

To demonstrate Strickland prejudice, the PCRA petitioner 

“must show how the uncalled witnesses’ testimony would 

have been beneficial under the circumstances of the case.” 

Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009) (citations 

omitted); see also Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. 

Super. 2007) (applying a similar standard to a claim of ineffectiveness of 

plea counsel for refusing to call witnesses). 
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In his amended PCRA petition, Appellant essentially pleaded that (1) 

witnesses existed, (2) witnesses were available, and (3) plea counsel knew 

of, or should have known of, the existence of the witnesses. Appellant, 

however, failed to establish that the witnesses were willing to testify for the 

defense. See Johnson, 966 A.3d at 535-36. More significantly, Appellant’s 

boilerplate assertion that the witnesses “could have demonstrated [his] 

innocence” did not establish the witnesses would have testified favorably 

regarding an offense to which he pleaded guilty. Appellant’s Brief at 19. 

Therefore, Appellant failed to plead or prove that plea counsel’s alleged 

refusal to investigate or call defense witnesses caused him to enter an 

unknowing, involuntary, or unintelligent guilty plea.9 See Johnson, 966 

A.3d at 535-36; see also Turetsky, 925 A.2d at 881. Accordingly, this 

argument warrants no relief. 

Lastly, Appellant claims that he was entitled to an evidentiary hearing 

regarding his claims of plea counsel’s ineffectiveness. Appellant’s Brief at 

15-16. However, it is well settled that 

[t]he right to an evidentiary hearing on a post-conviction 

petition is not absolute. It is within the PCRA court’s 

discretion to decline to hold a hearing if the petitioner’s 

claim is patently frivolous and has no support either in the 

record or other evidence. It is the responsibility of the 

reviewing court on appeal to examine each issue raised in 

the PCRA petition in light of the record certified before it in 

order to determine if the PCRA court erred in its 

 

9 Appellant also affirmed that he was satisfied with plea counsel during the 

oral guilty plea colloquy. N.T. at 11-12. 
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determination that there were no genuine issues of 

material fact in controversy and in denying relief without 

conducting an evidentiary hearing.

Turetsky, 925 A.2d at 882 (citations omitted). 

Following our review of the record, the PCRA court’s opinion, and 

Appellant’s arguments, we discern no basis to disturb the PCRA court’s 

determination that an evidentiary hearing was not warranted. Therefore, we 

affirm the PCRA court’s decision to dismiss the petition without an 

evidentiary hearing. See id. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/25/2017