J-A23030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KARL K. MYERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 403 EDA 2020

Appeal from the PCRA Order Entered December 31, 2019

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0004755-2011

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 9, 2021

Appellant Karl K. Myers appeals from the order denying, after an 

evidentiary hearing, his second petition under the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant claims that the court erred in 

denying his petition seeking relief based upon evidence that his trial counsel 

failed to inform him of a plea offer. We affirm.

This Court previously set forth the facts of the instant matter as follows:

The facts leading to Appellant’s conviction are not germane to this 

appeal. On November 7, 2013, the trial court sentenced Appellant 

to an aggregate term of 14-30 years’ incarceration, following his 

conviction for

one count each of corrupt organization, 18 Pa.C.S. §

911(b)(3); dealing in proceeds of unlawful activities, 

18 Pa.C.S. § 5111(a)(1); conspiracy, 18 Pa.C.S. § 

903(a); three counts of criminal use of a 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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communication facility, 18 Pa.C.S. § 7512(a); and 

four counts each of possession of cocaine, 35 P.S. § 

780-113(a)(16); and possession of cocaine with the 

intent to deliver[,] 35 P.S. § 780-113(a)(30).

Commonwealth v. Myers, No. 3243 EDA 2013, unpublished 

memorandum at 1 n.1 (Pa. Super. filed December 23, 2014). This 

Court affirmed Appellant’s conviction, and our Supreme Court 

declined further review. See Commonwealth v. Myers, 116 

A.3d 697 (Pa. Super. 2014) (unpublished memorandum), appeal 

denied, 114 A.3d 1039 (Pa. 2015).

Appellant filed a timely, counseled PCRA petition, his first, on 

September 21, 2015.1 Therein, Appellant raised claims asserting 

the ineffectiveness of trial counsel. The PCRA court denied his 

petition. We affirmed, and our Supreme Court denied further 

review. Commonwealth v. Myers, 2017 WL 591216 (Pa. Super. 

2017), appeal denied, 170 A.3d 1036 (Pa. 2017).

Appellant filed the current, facially untimely, pro se PCRA petition 

on July 3, 2018. The PCRA court issued notice of its intent to 

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 

907 on July 9, 2018. Appellant filed a timely response thereto on 

July 19, 2018. On July 23, 2018, the PCRA court dismissed the 

petition. Appellant filed a timely notice of appeal, and a timely, 

court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court 

issued its Rule 1925(a) opinion on October 22, 2018.

Commonwealth v. Myers, 249 EDA 2018, 2019 WL 1749045, at *1 (Pa. 

Super. filed Apr. 16, 2019) (unpublished mem.).

Appellant asserted that he met the newly-discovered facts exception 

because 

on or about May 12, 2018, he received a letter dated May 9, 2018, 

from A. Charles Peruto, Jr. Attorney Peruto at this point was the 

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1 An evidentiary hearing regarding Appellant’s first petition was heard on 

February 5, 2016, regarding whether Attorney DeSipio was ineffective due to 

a conflict of interest. See N.T., 2/5/16, at 1-20. At that hearing, Attorney 

DeSipio and Assistant District Attorney Jason Whalley testified regarding their 

plea negotiations. See id. at 15-16, 21-22.
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former employer of Mr. De[S]ipio[, Appellant’s trial attorney,] and 

[Gina] Capuano. Attorney Peruto had been the trial attorney for 

one of Appellant’s co-defendants, Anthony Dennis, who pled guilty 

three days before trial and received a 10-20 year sentence. The 

letter provided to Appellant [stated that] the previously unknown 

fact that a second plea offer for 4-8 years[’] incarceration had 

been extended by the Commonwealth prior to Appellant[’]s trial 

and that this offer was not communicated to him by Mr. DeSipio.

Id. at * 2 (citation and omitted). Following an examination of the relevant 

law, this Court concluded that Appellant satisfied the newly-discovered facts 

exception to PCRA’s time bar. Id. at * 3. Furthermore, this Court remanded 

the matter for the PCRA court to hold an evidentiary hearing “to address the 

merits of Appellant’s claim that his trial attorney provided ineffective 

assistance of counsel by failing to convey a plea offer made by the 

Commonwealth.” Id. at * 4.

The PCRA court held an evidentiary hearing on September 27, 2019, 

and October 21, 2019. At the September 27, 2019 hearing, Appellant testified 

on his own behalf.2 The Commonwealth presented the testimony of Assistant 

____________________________________________

2 Appellant sought to introduce the testimony of Gina Amoriello, also known 

as Gina Capuano, who was Appellant’s counsel for his direct appeal and first 

PCRA petition; the Commonwealth moved to preclude her testimony due to 

the fact that Appellant had not included a signed certification as to her 

testimony in his PCRA petition pursuant to 42 Pa.C.S. § 9545(d)(1). N.T., 

9/27/19, at 4-7. The court stated that it would preclude Ms. Amoriello’s 

testimony until the next hearing, when a certification could be filed. Id. at 

12-13. Ultimately, Ms. Amoriello/Capuano did not testify. Attorney DeSipio 

was unavailable, having moved to Kentucky, left the practice of law, and 

contracted some form of terminal illness. Id. at 13-14. However, Attorney 

DeSipio had testified previously at the February 5, 2016 PCRA proceedings, 

and his prior testimony was incorporated by stipulation. Id. at 14.
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District Attorney Jason Whalley (ADA Whalley). At the October 21, 2019 

hearing, Appellant presented the testimony of Attorney Peruto.

Appellant testified that he was represented by Attorney DeSipio at trial, 

and that he had prior drug cases in which he had entered guilty pleas. N.T., 

9/27/19, at 15. With regard to his 2011 arrest, Appellant testified that he 

was told that if he cooperated, his bail would be lowered; after being released 

on bail, Attorney DeSipio told Appellant about an offer of three to six years of 

incarceration so long as Appellant cooperated against his co-defendants and 

testified at trial. Id. at 16-17. Appellant informed Mr. DeSipio that he was 

unwilling to testify against his friends. Id. at 17. No further offers were 

conveyed to Appellant between 2011 and the time of trial in 2013. Id. 

Appellant’s PCRA testimony was that Attorney DeSipio did not inform him of 

any other offers. Appellant testified that, if he had been informed of the four

to eight year offer that Attorney Peruto described, he would have entered a 

guilty plea, because he had taken responsibility for his actions and would not 

have had to testify against his friends. Id. at 18.

ADA Whalley testified that between the years of 2011 and 2013, he was 

employed by the Montgomery County District Attorney’s Office and assigned 

to the Drug and Narcotics Unit. Id. at 19. ADA Whalley testified that he was 

the lead prosecutor assigned to the case, and was heavily involved in the 

investigation of Appellant and his co-defendants’ involvement in a large-scale 

corrupt organization that encompassed several counties in Southeastern 

Pennsylvania. Id. at 19-20. ADA Whalley also prepared the case for trial, 
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knowing the role of each defendant and the crimes they had committed, and 

either making or possessing knowledge of all plea offers extended in the case. 

Id. at 21. He was the lead prosecutor at the jury trial of Appellant and his 

co-defendants which occurred in January 2013. Id.

ADA Whalley testified that he never extended Appellant a four to eight 

year offer given his large role in the organization; the amount of cocaine that 

he had distributed; and the mandatory minimums at issue. Id. at 21-22. ADA 

Whalley testified that the offer made to Appellant, without his testimony or 

cooperation, was seven years to fourteen years as a minimum. Id. at 23. On 

the morning of trial, Attorney DeSipio requested an offer of four to eight years, 

but ADA Whalley “unequivocally said no, we would not entertain that nor offer 

it.” Id. 

ADA Whalley characterized Attorney Peruto’s involvement in the trial as 

“peripherally involved at best.” Id. at 24. ADA Whalley testified that although 

he did not recall an offer being extended, that Peruto was not present during 

any meetings with the district attorney’s office, Attorney DeSipio, and 

Appellant. Id. at 24-27. ADA Whalley also denied making an offer of three 

to six years of incarceration with potential cooperation; he explained that he 

would have gone over the guidelines as to what Appellant could expect in an 

open plea. Id. at 27. Specifically, ADA Whalley noted that, at the time, the 

mandatory minimum for possession with intent to deliver cocaine was seven 

to fourteen years of incarceration, and Appellant’s own guideline sentence was 

seventy-two months or six years. Id. at 27, 49-50. Additionally, ADA Whalley 
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stated that he did not recall making any offer contingent upon appellant’s 

testimony, but “that could have happened earlier on. As I said, co-counsel in 

the case was Assistant District Attorney Lupinacci . . .” Id.

On cross-examination, ADA Whalley was questioned concerning his 

testimony at the PCRA hearing in 2016, when he testified that three to six 

years would have been a reasonable offer, but that the offer made, without 

cooperation, was seven to fourteen years. Id. at 30, 34. At the 2016 hearing, 

ADA Whalley testified that he did not recall making any offer contingent upon 

Appellant’s testimony. Id. at 30-31. 

Attorney DeSipio’s prior testimony was incorporated by stipulation. At 

the February 5, 2016 evidentiary hearing, Attorney DeSipio testified that 

Appellant retained him in June 2011 despite the fact that two other attorneys 

in the office were representing Appellant’s co-defendants. N.T., 2/5/16, at 6-

7. Attorney DeSipio testified that he met with Appellant to discuss an offer 

the Commonwealth made, which he described as three to six years of 

incarceration with Appellant’s cooperation. Id. at 8-9. Attorney DeSipio 

stated that he found out the morning of trial that Anthony Dennis, Appellant’s 

co-defendant, was pleading guilty, and that had he known, he would have 

advised Appellant to enter a guilty plea. Id. at 10.

Attorney DeSipio stated that the initial offer may have been seven to 

fourteen years, but the offer he remembered was three to six years of 

incarceration. Id. at 15-16. Attorney DeSipio stated that he did not recall if 

there was a plea offer without cooperation, but that if Appellant had entered 
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an open guilty plea, the mandatory minimum would have been seven years to 

fourteen years. Id. at 18-19.

Attorney Peruto testified that Attorney DeSipio was employed by his law 

firm in 2009 and was still employed by his law firm at the time of trial in 2013. 

See N.T., 10/21/19, at 4. Attorney DeSipio represented Appellant at that 

time, and Attorney Peruto represented one of Appellant’s co-defendants, 

Anthony Dennis. Id. at 4-5. 

Attorney Peruto testified that he wrote to Appellant on May 9, 2018. In 

the letter, he wrote that Attorney DeSipio had told him that the 

Commonwealth had made an offer of four to eight years of incarceration, and 

that Attorney DeSipio had not advised Appellant to take the offer. Id. at 9, 

12. Attorney Peruto testified that Attorney DeSipio insisted on taking the case 

to trial “because he thought he was going to win it.” Id. at 12. Attorney 

Peruto testified that, at the time the trial was approaching, Attorney DeSipio 

was abusing crystal methamphetamine, and that this drug use was affecting 

his judgment. Id. at 14-16.

Attorney Peruto admitted that he was not present when ADA Whalley 

communicated offers to Attorney DeSipio. Id. at 21. Following this Court’s 

remand of the case to the trial court, Attorney Peruto wrote a letter to 

Appellant, congratulating him and advising Appellant to seek court-appointed 

counsel and to contact Attorney Peruto for witness testimony. Id. at 27. 

Attorney Peruto admitted that his affidavit did not indicate that ADA Whalley 
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informed him of the offer, nor did his letter to Appellant following the remand. 

Id. at 28-29. 

At the evidentiary hearing, Attorney Peruto attempted to testify that 

ADA Whalley directly informed him of the four to eight year offer. Id. at 10-

11. The Commonwealth objected to the statement as hearsay. Id. Appellant 

argued that this was an opposing party’s statement, but the court sustained 

the objection. Id. On cross-examination, Attorney Peruto responded to 

questions regarding the extension of the four to eight year offer by stating, 

“The answer to that question is I do have an idea because [ADA Whalley] told 

me it was four to eight and so did [Attorney DeSipio].”3 Id. at 21.

On January 2, 2020, the PCRA court denied Appellant’s PCRA petition. 

Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P. 1925(b) 

statement. The PCRA court prepared a Rule 1925(a) opinion admitting that it 

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3 On cross-examination, the following was elicited:

[The Commonwealth]: But you weren’t there when Jason Whalley 

allegedly communicated this to Mr. De[S]ipio, right?

[Attorney Peruto]: He told me it was. Rich told me it was.

. . . 

[The Commonwealth]: Okay. You would have no idea if that offer 

had actually been extended, right?

[Attorney Peruto]: The answer to your question is that I do have 

an idea because Jason [Whalley] told me that it was four to eight 

and so did Rich [DeSipio].

N.T., 10/21/19, at 21-22. Despite the Commonwealth’s earlier hearsay 

objections, neither party objected to Attorney Peruto’s responses.
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had erred in excluding Attorney Peruto’s testimony regarding the offer, but 

that the exclusion was harmless error due to the fact that Attorney Peruto 

stated that ADA Whalley directly informed him of the offer while on crossexamination. Therefore, because there was credible testimony that the offer 

had not been extended, the PCRA court concluded that Appellant was not 

entitled to PCRA relief.

On appeal, Appellant raises the following issues for our review:

1. Whether the PCRA [c]ourt [erred] in sustaining the 

Commonwealth’s hearsay objection to Attorney Charles Peruto’s 

testimony that ADA Jason Whalley said he had extended a 4-8 

year offer to [Appellant].

2. Whether the PCRA [c]ourt [erred] in denying [Appellant’s] PCRA 

[p]etition “based upon the credible testimony of the 

Commonwealth witness, [ADA] Jason Whalley” when this 

credibility determination is not supported by the record.

See Appellant’s Brief at 2. 

Appellant first argues that the PCRA court erred in sustaining the 

Commonwealth’s hearsay objection during the direct examination of Attorney 

Peruto. Appellant contends that ADA Whalley’s statement to Attorney Peruto 

constituted an opposing party’s statement and fell within the exception 

provided by Pa.R.E. 803(25). See Appellant’s Brief at 16. Additionally, 

Appellant contends that the exclusion of Attorney Peruto’s testimony during 

direct examination was not harmless, because he was denied the opportunity 

to explore the testimony further and elicit details from Attorney Peruto 
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regarding his meeting with ADA Whalley. Id. at 18-19. Appellant seeks a 

remand for a new evidentiary hearing.

In response, the Commonwealth argues that the error was de minimis, 

because ADA Whalley unequivocally denied making a four to eight year offer, 

and that ADA Whalley’s testimony was corroborated by Mr. DeSipio’s own 

2016 testimony that he did not discuss the case with Mr. Peruto and did not 

recall an offer based on Appellant’s cooperation. See Commonwealth Brief at 

15-16. The Commonwealth contends that ADA Whalley’s 2016 testimony does 

not materially contradict his 2019 testimony. Id. at 17. Further, the 

Commonwealth contends that any error of the PCRA court was harmless and 

cumulative in excluding Attorney Peruto’s testimony on direct examination, 

because, on cross-examination Attorney Peruto testified that ADA Whalley told 

him directly of the offer, and submitted a written affidavit alleging the same. 

Id. The Commonwealth continues that Peruto’s testimony was contradicted 

by the testimony of ADA Whalley and Attorney DeSipio. Id.

The PCRA court acknowledged that it excluded Attorney Peruto’s 

testimony in error, but opined that the error was harmless, reasoning:

In this case, there was no prejudice to [Appellant] and the 

evidence that was improperly excluded was duplicative of 

evidence that had been admitted. First, [Attorney] Peruto 

conveyed the same information on cross-examination wherein he 

told this [c]ourt he heard about the 4-to-8 year offer directly from 

[Attorney] Whalley. Specifically, upon cross-examination 

questioning he was asked whether he had no idea [sic] if that if 

that 4-to-8 year offer had actually been extended, to which he 

answered, “The answer to that question is I do have an idea 

because Jason told me it was four to eight and so did Rich.” 
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Second, this testimony was given little weight because it is 

contradicted not only by [Attorney] Whalley’s credible testimony 

at both the 2016 and 2019 hearings, but also based upon the 

testimony of [Attorney] DeSipio, the only other party who was 

directly involved in this case, including any plea negotiations. 

Therefore, [Appellant] was not prejudiced by the improper 

exclusion of this evidence.

PCRA Ct. Op., 3/4/20, at 22 (record citations omitted).

Our review of the denial of a PCRA petition is limited to the examination 

of “whether the PCRA court’s determination is supported by the record and 

free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. 

Super. 2014) (quotation marks and citation omitted). “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) (citations omitted). “The PCRA 

court’s findings will not be disturbed unless there is no support for the findings 

in the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 

2014) (citation omitted). We review “the PCRA court’s legal conclusions de 

novo.” See Miller, 102 A.3d at 992 (citation omitted).

We presume that the petitioner’s counsel was effective. 

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish 

a claim of ineffectiveness, a petitioner “must show, by a preponderance of the 

evidence, 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.” Commonwealth 

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). A 
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petitioner must establish (1) that the underlying claim has arguable merit; (2) 

that counsel lacked a reasonable basis for his action or inaction; and (3) but 

for the act or omission in question, the outcome of the proceedings would 

have been different. Commonwealth v. Washington, 927 A.2d 586, 594 

(Pa. 2007). “A claim of ineffectiveness may be denied by a showing that the 

petitioner’s evidence fails to meet any of these prongs.” Id. (citation omitted).

When a PCRA petitioner contends that a plea offer was not conveyed to 

him by counsel, the petitioner has the burden of proving that: “(1) a [plea 

offer] was made; (2) trial counsel failed to inform him of such [an] offer; (3) 

trial counsel had no reasonable basis for failing to inform him of the plea offer; 

and (4) he was prejudiced thereby.” Commonwealth v. Chazin, 873 A.2d 

732, 735 (Pa. Super. 2005) (citation omitted). “Where the PCRA court’s 

determination of credibility is supported by the record, [this Court] will not 

disturb it on appeal.” Commonwealth v. Marinez, 777 A.2d 1121, 1124 

(Pa. Super. 2001) (citation omitted).

With regard to Appellant’s further claims

[t]he admission of evidence is solely within the discretion of the 

trial court, and a trial court’s evidentiary rulings will be reversed 

on appeal only upon an abuse of that discretion. An abuse of 

discretion will not be found based on a mere error of judgment, 

but rather occurs where the court has reached a conclusion that 

overrides or misapplies the law, or where the judgment exercised 

is manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will.
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Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation 

marks and citations omitted). With regard to evidentiary rulings, any error is 

harmless4 where:

(1) the error did not prejudice the defendant or the 

prejudice was de minimis; (2) the erroneously 

admitted evidence was merely cumulative of other 

untainted evidence which was substantially similar to 

the erroneously admitted evidence; or (3) the 

properly admitted and uncontradicted evidence of 

guilt was so overwhelming and the prejudicial effect 

of the error was so insignificant by comparison that 

the error could not have contributed to the verdict.

An error will be deemed harmless where the appellate court 

concludes beyond a reasonable doubt that the error could not 

have contributed to the verdict.

Commonwealth v. Yockey, 158 A.3d 1246, 1254 (Pa. Super. 2017) (quoting

Commonwealth v. Chmiel, 889 A.2d 501, 521, 528 (Pa. 2005)) (quotation 

marks omitted).

As the PCRA court admits that it excluded the testimony in error, we 

need not examine whether or not the testimony was inadmissible hearsay. 

Rather, we must determine whether the error was harmless. Here, Appellant 

contends that the exclusion of evidence resulted in a one-sided record and the 

court finding ADA Whalley’s unchallenged testimony credible. In support of 

this contention, Appellant points to Commonwealth v. Greene, 366 A.2d 

____________________________________________

4 We note that the harmless error standard generally applies to evidentiary 

rulings at criminal trials while the present case involves a PCRA hearing. 

However, all parties and the trial court refer to the harmless standard without 

further distinction. 
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234 (Pa. 1976), where the Pennsylvania Supreme Court concluded that the 

trial court had improperly excluded testimony from a defense witness that 

would have corroborated the defendant’s theory of defense, i.e., that he had 

been intending to illegally buy drugs rather than commit a murder. Greene,

366 A.2d at 237. 

In Greene, the defendant was convicted of second-degree felony 

murder. Id. at 235. At trial, he sought to introduce the testimony of a witness 

who would have corroborated his testimony that the victim’s husband illegally 

sold drugs without prescriptions, and had observed young men obtaining pills 

without prescriptions, and had consulted with authorities for the purpose of 

watching the store. Id. at 237. Our Supreme Court observed that

Although it was the jury’s prerogative to assess the credibility of 

the witness and the weight to be attributed to his testimony, the 

proffered testimony definitely was relevant to the proposition 

upon which the defense was building its case. The exclusion of 

this testimony, therefore, was improper. Commonwealth v. 

Bailey, [299 A.2d 298 (Pa. 1973)]; Commonwealth v. Collins, 

[290 A.2d 121 (Pa. 1972)]. 

In Bailey, supra, the trial court excluded testimony of two 

witnesses who had borrowed money from a money-lender named 

Robinson. We held that this was reversible error because the 

testimony would have supported Bailey’s version as to his own 

dealings with Robinson and his reason for going to his house. We 

find the instant case to be indistinguishable from the situations 

present in Bailey and Collins. An accused has a fundamental 

right to present defensive evidence so long as such evidence is 

relevant and not excluded by an established evidentiary rule. 

Id. at 237 (some citations omitted).
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This case is distinguishable from Greene as the testimony proffered by 

Attorney Peruto was in fact introduced in several forms, by his written 

affidavit, which was introduced into evidence as Defendant’s Exhibit 3, as well 

as his testimony, on cross-examination, that ADA Whalley had directly 

informed him of the offer to appellant. See N.T., 10/21/19, at 21-22; see 

also N.T., 10/21/19, Def. Ex. 3. Specifically, on cross examination he stated 

that ADA Whalley “told me what the offer was to my face . . . [ADA Whalley] 

told me it was four to eight and so did [Attorney DeSipio]” and “the answer to 

your question is that I do have an idea because [ADA Whalley] told me that it 

was four to eight and so did [Attorney DeSipio].” N.T., 10/21/19, at 21-22. 

Attorney Peruto’s affidavit stated that he complained to ADA Whalley about 

the offer to his own client, and was informed about offers to other defendants. 

Id. at Def. Ex. 3. The affidavit further stated, “I am positive I learned at that 

time the offer for [Appellant] was 4-8 years [sic] incarceration . . . because of 

his record.” Id.

Based on our review, we agree with the PCRA court that while it erred 

in sustaining the Commonwealth’s hearsay objection, the objected to 

testimony was cumulative of Attorney Peruto’s other properly admitted 

testimony, on cross-examination and in his affidavit, describing the four to 

eight year plea offer and the circumstances under which Attorney Peruto 

believed that the Commonwealth extended that offer to Appellant. Ultimately, 

however, the PCRA court stated in its opinion that it did not afford the 

testimony much weight, given that it was directly contradicted by Attorney 
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DeSipio’s own testimony that the only offer he recalled was a three to six year 

offer with cooperation and testimony. See PCRA Ct. Op., 3/4/20, at 22. 

Additionally, the court found that Attorney Peruto’s testimony was directly 

contradicted by the credible testimony of ADA Whalley. Id. Accordingly, no 

relief is due.

Appellant’s second argument avers that the testimony of ADA Whalley 

was not credible. See Appellant’s Brief at 23. Specifically, Appellant points 

to ADA Whalley’s 2016 testimony that an offer based on Appellant’s 

cooperation “could have happened early on,” because another ADA was also 

assigned to the case, but later testified that such an offer was “something we 

wouldn’t have done.” Id. at 23-24. Appellant additionally argued that ADA 

Whalley’s prior testimony, namely, that he worked with another ADA on the 

case and that a three to six year offer with cooperation was reasonable, was 

inconsistent with his testimony at the hearing in 2019. Id. at 25-26. 

Again, we note that “[a] PCRA court passes on witness credibility at 

PCRA hearings, and its credibility determinations should be provided great 

deference by reviewing courts.” Johnson, 966 A.2d at 539. 

Here, a review of the record establishes that ADA Whalley’s 2019 

testimony does not materially contradict his prior testimony. Initially, in 2016, 

ADA Whalley was asked whether he remembered making an offer contingent 

on the defendant testifying. He responded, “That could have happened early 

on. As I said, co-counsel in the case was [ADA] Lupinacci. As I sit here, I 

don’t remember, no.” N.T., 2/5/16, at 22. Similarly, though he conceded 
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that a lower offer contingent upon cooperation “sound[ed] reasonable,” he 

again stated he did not recall making a three to six year offer. Id. at 21-22. 

In 2019, ADA Whalley testified that he would not have agreed to a specific 

sentence in exchange for cooperation; “at that time, we would offer people 

open pleas . . . we can go over the guidelines with them to determine what 

they could be facing. But that was entirely up to the judge.” N.T., 9/27/19, 

at 22-23. Unequivocally, ADA Whalley denied making a four to eight year 

offer. Id. at 22-27, 54-55. Regardless, it is clear in 2016 and 2019 that ADA 

Whalley testified that he did not make a four to eight year offer. 

In sum, ADA Whalley testified that he had not made an offer, while 

Attorney Peruto testified that there was an offer for four-to-eight years 

without cooperation. However, Attorney Peruto admitted he was not present 

when an offer was extended to Appellant. At the conclusion of the testimony,

the PCRA court made its credibility determination in favor of the 

Commonwealth. Thus, because the PCRA court’s credibility determination is 

supported by the record, we will not disturb it on appeal. See Johnson, 966 

A.2d at 539; Marinez, 777 A.2d at 1124. Appellant has failed to establish 

that his underlying claim is of arguable merit, he is not entitled to relief on the 

claim. Thus, we affirm the order below.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/09/2021