J-S33039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GEROME NELSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 603 EDA 2022

Appeal from the PCRA Order Entered January 27, 2022

In the Court of Common Pleas of Bucks County Criminal Division at 

No(s): CP-09-CR-0006289-2018

BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 1, 2023

Gerome Nelson (“Nelson”) appeals from the order denying his first 

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

We affirm.

The PCRA court provided the following factual and procedural history:

[In] December [] 2017, a backpack containing a large 

quantity of heroin was discovered on the property of a middle 

school in Bensalem Township, Bucks County. The backpack 

contained approximately 10,000 bags of heroin which had an 

estimated street value of $100,000.00. The heroin packaging was 

later swabbed for DNA evidence. Those swabs were then sent to 

the Bode Cellmark Forensics laboratory for analysis. 

Subsequent investigation revealed that a woman 

inadvertently left the backpack at the school. That woman was 

later identified and, when interviewed, admitted to conspiring with 

[Nelson] to distribute the heroin found in the backpack. 

Specifically, she advised police that she received the backpack of 

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1 See 42 Pa.C.S.A. §§ 9541-9546.
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heroin from [Nelson] and agreed to hold it for him. She stated 

that she thereafter met him at various locations with the bag so 

that he could complete drug transactions. She further stated that 

after she misplaced the heroin, [Nelson] sent her text messages 

threatening to kill her and “knock her head off” in an attempt to 

recover his “shit.” Those threatening messages were ultimately 

traced to [Nelson’s] cellphone.

Police then conducted surveillance of [Nelson] and observed 

him participate in multiple heroin transactions, including a handto-hand transaction in Morrisville, Falls Township[ in] August []

2018. [Nelson] was arrested on August 30, 2018. Following his 

arrest, [Nelson] was transported to the Bensalem Township Police 

Department. During processing, [Nelson] made several 

[inculpatory] statements. After apologizing to his mother several 

times, he stated that “he’s not a big-time guy” and that he “sells 

to junkies and nobody’s putting a gun to their head.” He further 

stated that he was “not Nino Brown,” referring to the character of 

a rising drug lord in the film “New Jack City.” While at the police 

station, [officers took a buccal swab of the inside of Nelson’s 

mouth.] [In] September [] 2018, Bensalem Township Police 

obtained a search warrant to have [the afore-mentioned] buccal 

swab submitted for DNA analysis. That analysis determined that 

the DNA found on the heroin packaging matched that of [Nelson].

[In] March [] 2019, [plea] counsel . . . filed a motion to 

suppress the buccal swab DNA sample obtained from [Nelson] at 

the time of his arrest and to suppress statements [he] made . . ., 

including those made during processing. 

* * * *

[In] October [] 2019, [following hearings on the suppression 

motion, and] while a decision on the motion was pending, 

Bensalem police obtained two search warrants [to] obtain[]

[Nelson’s] DNA[:] one search warrant for [Nelson’s] personal 

effects in his cell in the restricted housing unit at Bucks County 

Correctional Facility[,] and one search warrant to obtain a buccal 

swab from [his] person. Pursuant to the search warrant for 

[Nelson’s] personal effects, police seized [his] toothbrush. 

Pursuant to the search warrant for [Nelson’s] person, police 

obtained a second buccal swab. The second buccal swab was 

submitted for DNA analysis and comparison with the DNA found 

on the heroin discovered at the middle school. Bode Cellmark 
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Forensics later determined that the sample of [Nelson’s] DNA 

matched the DNA on tape securing a bundle of heroin . . ..

On November 12, 2019, [the court] granted [Nelson’s]

motion to suppress the [first] buccal swab DNA sample [obtained]

on the date of [Nelson’s] arrest, finding that [his] consent to 

provide the sample was not voluntary[, and that the swab 

occurred prior to the issuance of a warrant]. [The court] denied 

[Nelson’s] motion to suppress the incriminating statements [he]

made during processing. 

On November 13, 2019, the day the case was scheduled for 

trial, [Nelson] filed a motion to suppress the search warrant for 

[his] person and the DNA evidence obtained [from the second 

buccal swab] on the basis that his DNA was not procured from an 

independent origin so as to permit its admission under the 

inevitable discovery rule/independent source rule . . .. That 

motion was not litigated. Rather, [Nelson] decided to accept the 

Commonwealth’s plea offer. Pursuant to the terms of the plea 

agreement, [Nelson] pleaded guilty to one count of possession 

with intent to deliver heroin . . ., and was sentenced to a term of 

incarceration of six to twelve years with a concurrent term of 

probation. The Commonwealth nol prossed the remaining four 

counts on the criminal information[:] criminal conspiracy to 

deliver/possess with intent to deliver heroin . . ., criminal use of a 

communication facility . . ., terroristic threats . . ., and use and/or 

possession with intent to use drug paraphernalia . . .. [Nelson]

did not file a post-sentence motion or a direct appeal. [This plea 

was an improvement upon the Commonwealth’s prior offer of 

seven and one-half to twenty years of imprisonment.]

On December 8, 2020, [Nelson] filed a pro se [PCRA 

petition. The PCRA court appointed counsel.] [In] April [] 2021, 

PCRA counsel filed a “no merit” letter pursuant to 

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

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

banc) and a petition to withdraw as counsel. 

* * * *

After conducting an independent review of the record, [the 

PCRA c]ourt determined that a hearing was required to resolve 

the claim that trial counsel was ineffective in advising [Nelson] to 

accept the plea offer. . . . [In] August [] 2021, PCRA [c]ounsel 
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filed an amended PCRA petition and a hearing [occurred]. 

[Following the evidentiary hearing, the PCRA court denied 

Nelson’s petition b]y order dated January 27, 2022 . . ..

PCRA Court Opinion, 5/18/22, at 1-5 (footnotes, internal citations to the 

record, and unnecessary capitalization omitted). Nelson timely appealed.

Nelson raises the following issue for our review:

Did the PCRA court err in denying post-conviction relief, and 

in so doing determine that trial counsel was not ineffective in 

advising and recommending to [Nelson] that he plead guilty rather 

than litigat[e] a pre-trial motion to suppress DNA evidence that 

[Nelson] believe[s] was illegally obtained, tainted by police 

misconduct, and [not] subject to the independent source doctrine?

Nelson’s Brief at vi (unnecessary capitalization omitted).

Our standard of review for an order denying PCRA relief 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.” Commonwealth v. 

Parker, 249 A.3d 590, 594 (Pa. Super. 2021) (internal citation omitted). 

Further, to prevail on a claim of ineffective assistance of counsel, a PCRA 

petitioner must demonstrate:

(1) that the underlying claim has arguable merit; (2) that no 

reasonable basis existed for counsel’s actions or failure to act; and 

(3) that the petitioner suffered prejudice as a result of counsel’s 

error. To prove that counsel’s chosen strategy lacked a 

reasonable basis, a petitioner must prove that an alternative not 

chosen offered a potential for success substantially greater than 

the course actually pursued. Regarding the prejudice prong, a 

petitioner must demonstrate that there is a reasonable probability 

that the outcome of the proceedings would have been different 

but for counsel’s action or inaction. Counsel is presumed to be 

effective; accordingly, to succeed on a claim of ineffectiveness[,] 
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the petitioner must advance sufficient evidence to overcome this 

presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal 

citations and quotations omitted).

Nelson argues that the PCRA court erred in denying his petition because 

plea counsel failed to litigate the suppression motion he had filed and instead 

advised Nelson to plead guilty. Nelson’s Brief at 9, 18, 23, 24. An allegation 

of ineffectiveness based on counsel’s failure to file or litigate a suppression 

motion is distinct from whether counsel was ineffective for advising a 

defendant to accept a plea. The decision to litigate a suppression motion is a 

matter of counsel’s professional judgment, and “[s]trategic choices made after 

thorough investigation of law and facts relevant to plausible options are 

virtually unchallengeable.” Commonwealth v. Johnson, 179 A.3d 1153, 

1160 (Pa. Super. 2018) (internal citation, quotations, and brackets omitted).2 

On the other hand, the “decision to enter a guilty plea is one of the 

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2 When an allegation of ineffectiveness rests on a failure to file a suppression 

motion, the inquiry is “whether the failure to file the motion is itself objectively 

unreasonable, which requires a showing that the motion would be meritorious.

. . . [Further, the] prejudice inquiry [] requires the defendant to establish []

he would have filed the motion and proceeded to trial instead of accepting 

the plea . . ..” Johnson, 179 A.3d at 1160 (emphasis added); accord 

Commonwealth v. Vealey, 581 A.2d 217, 219 (Pa. Super. 1990) (noting 

that where the petitioner asserted that “trial counsel was ineffective in failing 

to file a pretrial motion to suppress an illegally obtained confession,” the 

petitioner needed to demonstrate the confession was involuntary, the guilty 

plea was motivated by the confession, and that counsel “incompetently” 

advised him to plead guilty) (emphasis added).
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fundamental decisions that must be decided by the criminal defendant.” Id. 

at 1160. Thus, when the issue is not whether counsel failed to file or litigate 

a suppression motion, but instead that counsel ineffectively advised the 

defendant to accept a plea, the question is whether the advice itself is 

constitutionally sound. As this Court has explained, 

[w]here 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. In other words, a defendant need not be apprised 

of every possible suppression motion as a predicate to a finding 

that the plea was voluntary, because the decision to seek 

suppression is left to counsel as a matter of strategy in the event 

a plea bargain is not reached.

Id. (internal citation and quotations omitted). Following successful plea 

negotiations and a plea of guilty, a defendant is bound by his statements made 

during the plea colloquy. See Commonwealth v. Reid, 117 A.3d 777, 783 

(Pa. Super. 2015).

Nelson argues that plea counsel filed a meritorious suppression motion, 

but “prior to litigating the issue, counsel recommended to [Nelson] to abandon 

what [Nelson] felt was the most important issue in the case and to plead 

guilty.” Nelson’s Brief at 21. Nelson maintains that this advice was 

unreasonable as it relied on a misapprehension of the independent source 

rule. See id. Accordingly, Nelson contends that, had plea counsel “correctly” 

discussed the law with him, he would not have pleaded guilty but instead gone 

to trial. See id. at 23-24.
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The PCRA court considered Nelson’s first issue and determined that this 

ineffectiveness claim merited no relief. The court explained:

* * * *

In the instant case, [Nelson] has made . . . no showing 

whatsoever that the advice to accept the plea was not within the 

range of constitutionally competent advice. . . ..

The appropriateness of [plea] counsel’s advice must be 

considered in the context of three very important circumstances. 

First, [plea] counsel had successfully negotiated an extremely 

favorable plea offer. . . . Since none of the[ charged] offenses 

merged for sentencing purposes, [Nelson] faced a maximum 

sentence of [twenty-one and a half to forty-three] years [of 

incarceration]. His sentencing guidelines called for an aggregate 

minimum sentence of [thirteen and a half to eighteen years and 

four months of imprisonment] in the standard range. 

Second, the specific facts and circumstances of [Nelson’s]

case involved a multitude of factors that could be considered 

aggravating factors by a sentencing court[, should Nelson proceed 

to trial and be convicted, including Nelson’s criminal history, the 

nature of the controlled substance, i.e., heroin, and the fact that 

the drugs were found in the vicinity of a school, thereby 

endangering children]. 

* * * *

Third, the likelihood of conviction was extremely high. The 

evidence against [Nelson], with or without the DNA evidence, was 

overwhelming. [Nelson’s] co-defendant had agreed to testify as 

a Commonwealth witness. Her testimony regarding their 

conspiracy to distribute heroin would have been corroborated by 

[Nelson’s] text messages wherein he admitted that the $100,000 

worth of heroin was his and wherein threatened to harm his coconspirator if the drugs were not returned to him. His coconspirator’s testimony, the quantity of heroin involved, evidence 

regarding police surveillance of [Nelson] engaging in the sale of 

heroin, and [Nelson’s] admission during processing that he “sells 

to junkies” would be more than sufficient to convict [him] of each 

of the crimes charged.
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Under these circumstances, [plea] counsel’s 

recommendation that [Nelson] accept a plea offer whereby he 

would only be required to plead to one count of [p]ossession with 

[i]ntent to [d]eliver and would receive a minimum sentence of 

[six] to [twelve] years [of imprisonment] was clearly designed to 

effectuate [Nelson’s] interests. Since counsel had a reasonable 

basis for his advice, he cannot be deemed to have been 

ineffective. 

* * * *

Moreover, the prejudice prong of the ineffective assistance 

of counsel inquiry requires [Nelson] to establish that he plead 

guilty due to [plea] counsel’s ineffective assistance and that 

absent that ineffective assistance he would have pursued the 

motion and proceeded to trial instead of accepting the plea. . . . 

In the instant case, [Nelson] did not meet this burden of proof. 

At the time the plea was entered[,] and at the PCRA hearing[,]

[Nelson] testified that he entered his plea, not due to any 

inadequacy in [plea] counsel’s representation but rather to receive 

a reduced sentence and to put the matter behind him. At the time 

he entered the plea[, Nelson] testified that no one was forcing him 

to accept the plea offer[,] stating, “I got family that I need to get 

back home to. I need to put this behind me.” At the PCRA 

hearing, [Nelson] testified that prior to entering his plea, [plea]

counsel had advised him that they had a chance to win the case. 

He was then asked why he “ultimately plead guilty.” In response, 

he testified, “It was Bucks County. I know the Commonwealth 

and I know – I don’t want to go to jail for that long. I don’t want 

to waste my life rotting in prison.” He further testified that he just 

wanted to “get everything over.” This testimony is consistent with 

that of trial counsel who testified that “[Nelson] wanted to try to 

get the best deal he could, and that’s what we did.”

Th[e PCRA c]ourt did not find [Nelson’s] testimony [at the 

PCRA hearing] that trial counsel forced him to plead guilty 

and . . . [that] he felt that trial counsel “gave up on [him]”

credible. Not only were these assertions unsupported and 

inconsistent with his testimony [at that same hearing] that he 

entered the plea to avoid a longer jail sentence and to “get 

everything over,” they were also inconsistent with his answers in 

the written guilty plea colloquy he executed and his responses 

during the on-the-record guilty plea colloquy. 
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* * * *

Here, [Nelson’s] PCRA claims are belied by his guilty plea 

colloquies and therefore cannot serve as a basis for relief.

PCRA Court Opinion, 5/18/22, at 7-11 (footnotes and citations to the record

omitted).

Following our review, we conclude the PCRA court’s determination is 

supported by the record and free of legal error. We note initially that plea 

counsel apprehended Nelson’s suppression issue and accordingly filed a 

suppression motion arguing that the fruits of the second search, should be 

suppressed as fruit of the poisonous tree following the first warrantless search. 

See generally Motion to Suppress Physical Evidence, 11/18/19; accord N.T., 

8/9/21, at 9 (counsel explaining, “Well, I gave it a shot. I thought that 

perhaps we could argue the new warrant was tainted by the illegal procedure 

from the first search, which was done without a warrant . . ..”). Counsel 

explained that the first swab occurred without a warrant, and though police

“got the warrant later,” the trial court suppressed that swab because it had 

been obtained non-consensually and prior to the warrant being issued. See 

N.T., 8/9/21, at 86. However, officers “got a second warrant based – not 

upon anything found by the illegal first search. They had plentiful probable 

cause to get a warrant the first time. They just didn’t get it.” Id. at 86-87. 

Counsel further explained that even if the motion had been successful, the 

Commonwealth could have appealed it. See id. at 28. Saliently, counsel also 

opined that, even though the DNA evidence was “the most important piece of 
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evidence [the Commonwealth] had,” if the Commonwealth had opted to try 

Nelson without the DNA evidence—the evidence “could have been” sufficient 

for a jury to convict Nelson. Id. at 28-29. Counsel noted that the evidence 

apart from the DNA included Nelson’s inculpatory statements, testimony by 

the “female witness,” evidence from a controlled buy, and text messages from 

Nelson demonstrating his possession of the heroin with intent to deliver. See 

id. at 19. In light of the above, the parties “did not quite get around to 

litigating [the motion] because [counsel] was trying to negotiate a plea with

the prosecution.” Id. at 10. 

Plea counsel further explained that he discussed with Nelson the facts 

of, and law applicable to, this case, and that, had Nelson so desired, “[w]e 

would have litigated to suppression, and then presumably we would have had 

a jury trial.” Id. at 17-18. Prior to Nelson’s guilty plea, counsel reviewed 

Nelson’s options with him, and it was “[a]bsolutely” Nelson’s decision, 

ultimately, to plead guilty. Id. at 20. Counsel negotiated the Commonwealth 

down from its initial plea offer of seven to twenty years of incarceration to six 

to twelve years. See id. at 22.3 We also note that, at Nelson’s plea hearing, 

he agreed he had had sufficient time to talk to counsel prior to entering his 

plea, and that he understood, when advised by the court, that he was “giving 

up . . . the right to litigate and appeal pretrial motions.” See N.T., 11/13/19, 

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3 The maximum penalty for the charged offenses was forty-three years. See 

N.T., 10/1/19, at 8.
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at 5, 22-23 (unnumbered); accord id. at 10, Ex. D-1, Guilty Plea Colloquy, 

11/13/19, at ¶ 26 (Nelson indicating his understanding that, “by pleading 

guilty you are giving up your right to litigate any pretrial motions, including 

suppression motions, as well as any issues regarding what evidence would be 

admissible at trial”).4 

We further note that Nelson admitted at the PCRA hearing that his plea 

was not motivated by counsel’s advice about the suppression motion; instead, 

although his attorney represented to him that “we have a chance to win,” 

Nelson ultimately pleaded guilty because, “[i]t was Bucks County. I know the 

Commonwealth and I . . . don’t want to go to jail for that long.” N.T., 8/9/21, 

at 37. Because plea counsel filed the suppression motion challenging the 

evidence of which Nelson complains, the issue here is not whether counsel 

was ineffective for failing to pursue the suppression motion, but instead 

whether plea counsel’s advice to Nelson, concerning his guilty plea, was 

constitutionally infirm. See Johnson, 179 A.3d at 1160. Under this standard, 

Nelson failed to carry his burden of demonstrating plea counsel’s 

ineffectiveness. Plea counsel filed the second suppression motion, informed 

Nelson he would litigate it if Nelson desired, expressed doubt that it would be 

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4 Nelson is bound by his testimony and colloquy at his plea hearing. See 

Reid, 117 A.3d at 783.
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successful,5 but noted that even if successful, the Commonwealth could appeal 

the determination; alternatively, even if the parties proceeded to trial 

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5 We observe that Nelson maintains his suppression would have been granted 

because the independent source rule requires “true independence” of both the 

source of the evidence and the investigative team where there was “willful 

misconduct and malfeasance.” See, e.g., Nelson’s Brief at 20 (citing, inter 

alia, Commonwealth v. Melendez, 676 A.2d 266 (Pa. 1996)). However, 

while the trial court suppressed the first buccal swab because it was obtained 

non-consensually and prior to the issuance of a warrant, the court notably did 

not conclude there was willful misconduct or malfeasance. See generally 

Findings of Fact and Conclusions of Law, 11/12/19. The record reveals that, 

at the suppression hearing, Officer David Clee explained that, for the first 

buccal swab, he “handed the swab in its paper form out to Mr. Nelson [and]

Mr. Nelson removed the two swabs, swabbed the inner cheek of his mouth as 

directed by me, and he placed the items back in the container[,] at which time 

I advised Mr. Nelson that he was giving this on his own free will, his consent, 

and I needed a signature for that.” N.T., 10/1/19, at 73. Officer Clee testified 

that he had not intended to take a non-consensual buccal swab. He explained,

“[Nelson] took the swab, he swabbed his mouth. I . . . believed that he wanted 

to give a sample of his DNA. . . . And it wasn’t until I read him the back of 

the paperwork that he refused, and I recorded that.” Id. at 122. Following

Nelson’s refusal to consent, Officer Clee obtained a warrant. Officer Clee 

explained, “I could have went [to the county prison] after I got the search 

warrant and obtained [another] sample, but I already had a sample.” Id. at 

121. 

It is not a fait accompli that Officer Clee’s mistaken belief—i.e., that, following 

issuance of the first warrant for Nelson’s DNA, he was not required to obtain 

a new buccal swab, but could instead use the prior swab—rises to the level of 

willful misconduct or malfeasance, thereby requiring an independent 

investigative team for the second warrant. See Commonwealth v. Katona, 

240 A.3d 463, 478, 481 (Pa. 2020) (limiting the “the independent police team 

requirement to situations in which the rule prevents police from exploiting the 

fruits of their own willful misconduct,” and holding, otherwise, that the 

“ultimate question . . . is whether the search pursuant to warrant was in fact 

a genuinely independent source of the information and tangible evidence at 

issue here”) (internal citations and quotations omitted; emphasis added). 

Further, there is no question that the police did not rely on the fruits of the 

first buccal swab in obtaining the second warrant. Compare N.T., 8/9/21, at 

(Footnote Continued Next Page)
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following successful suppression, the evidence could still be sufficient to 

sustain convictions for the charged offenses, which carried a maximum 

penalty of forty-three years. With this information, Nelson chose to plead 

guilty. He is therefore due no relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/01/2023

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12 (plea counsel indicating that “my research indicated that in order to be 

successful, you have to show some evidence from the illegal warrant was used 

to get the new warrant, and that just was not the truth”) with Katona, 240 

A.3d at 481 (stating that “[t]he ultimate question . . . is whether the search 

pursuant to warrant was in fact a genuinely independent source of the 

information and tangible evidence at issue here”).