J-S68003-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LAWRENCE WHITAKER,

Appellant No. 1030 EDA 2013

Appeal from the PCRA Order entered March 28, 2013,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-0012235-2009

& CP-51-CR-0012236-2009

BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED NOVEMBER 07, 2014

Lawrence Whitaker (“Appellant”) appeals from the order denying his 

petition for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

sections 9541-46. We affirm.

The PCRA court summarized the pertinent facts and procedural history 

as follows:

This case stems from a pedestrian stop of [Appellant] 

by police officers, which resulted in a violent struggle on 

September 1, 2009. At a preliminary hearing on 

September 24, 2009, [Appellant] was charged with (2) two 

counts of aggravated assault, (2) counts of simple assault, 

and resisting arrest. 

On October 15, 2010, [Appellant] consulted with [trial 

counsel], and proceeded to read and sign a written 

colloquy. After reading and signing the colloquy, 

[Appellant] entered a plea of nolo contendere in open 

court. The colloquy explained in detail the charges alleged 

against [Appellant], the maximum possible sentence, and 
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[Appellant’s] constitutionally protected rights at trial. The 

Court also described to [Appellant], at length, the 

differences between his options to either (i) proceed with 

trial, or (ii) enter a nolo contendere plea. The written 

colloquy required [Appellant] to sign in confirmation that 

he was not threated or promised anything in return for his 

plea of nolo contendere[.]

The Court explained that, by entering a nolo contendere

plea, [Appellant] was relinquishing certain pretrial rights, 

and that the information contained in the police reports 

would formally be made part of the record. The Court then 

asked [Appellant] whether he was satisfied with the 

information and advice he had received from [trial 

counsel], to which [Appellant] replied, “Yes.” The Court 

also asked [Appellant] whether he had any questions for 

the Court regarding his plea, to which he replied, “Yes.” 

After conferring with [trial counsel, Appellant] was asked 

again whether he had any questions for the Court, to 

which he replied, “No.” Lastly, the Court asked [Appellant] 

whether he understood what it meant to plead no contest, 

to which he replied, “Yes.”

After an extensive recitation of the colloquy, the Court 

determined that [Appellant] entered his plea of nolo 

contendere knowingly, intelligently, and voluntarily. The 

Court asked [Appellant] whether he intended to contest 

the facts contained in the police report[s], to which he 

replied “No.” In accordance with the nolo contendere plea, 

the Court Crier subsequently arraigned [Appellant] on (2) 

two charges of simple assault[.]

PCRA Court Opinion, 4/2/14, at 1-3 (citations to notes of testimony 

omitted). The trial court then sentenced Appellant to an aggregate term of 

three years of reporting probation, and a mandatory anger management 

course. Appellant filed neither post-sentence motions nor a direct appeal.

On October 14, 2011, Appellant filed a pro se PCRA petition. The 

PCRA court appointed counsel, and PCRA counsel subsequently filed an 
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amended petition. On February 14, 2013, the PCRA court issued 

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a 

hearing. Appellant did not file a response. By order entered March 28, 

2013, the PCRA court denied Appellant’s petition. This timely appeal 

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 

1925.

Appellant’s sole claim on appeal is that the PCRA court erred in 

denying his petition without a hearing. See Appellant’s Brief at 2. In 

reviewing the propriety of an order granting or denying PCRA relief, an 

appellate court is limited to ascertaining whether the record supports the 

determination of the PCRA court and whether the ruling is free of legal error. 

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great 

deference to the findings of the PCRA court, “but its legal determinations are 

subject to our plenary review.” Id. Moreover, a PCRA court may decline to 

hold a hearing on the petition if the PCRA court determines that petitioner’s 

claim is patently frivolous and is without a trace of support either in the 

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 

1014 (Pa. Super. 2001). Finally, to be entitled to relief under the PCRA, the 

petitioner must plead and prove by a preponderance of the evidence that the 

conviction or sentence arose from one or more of the errors enumerated in 

section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness 

of counsel.
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To obtain relief under the PCRA premised on a claim that counsel was 

ineffective, a petitioner must establish by a preponderance of the evidence 

that counsel's ineffectiveness so undermined the truth-determining process 

that no reliable adjudication of guilt or innocence could have taken place. 

Id. “Generally, counsel’s performance is presumed to be constitutionally 

adequate, and counsel will only be deemed ineffective upon a sufficient 

showing by the petitioner.” Id. This requires the petitioner to demonstrate 

that: (1) the underlying claim is of arguable merit; (2) counsel had no 

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

was prejudiced by counsel's act or omission. Id. at 533. A finding of 

"prejudice" requires the petitioner to show "that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different." Id. Counsel cannot be deemed 

ineffective for failing to pursue a meritless claim. Commonwealth v. 

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852 

A.2d 311 (Pa. 2004).

Appellant claims that trial counsel unlawfully induced him into entering 

his no contest pleas. According to Appellant, he did not enter his nolo 

contendere plea voluntarily, but did so because trial counsel “refused to call 

witnesses who would have shown that [Appellant] was innocent of the 

offenses and [trial] counsel also refused to show a video of the incident 

which was taken by [Appellant] which also shows that he in fact was the 
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victim of an assault perpetrated by the two police officers.” Appellant’s Brief 

at 5. Additionally, Appellant asserts that he produced evidence following the 

entry of his plea that showed one of the police officers involved in the 

incident was no longer being used as a witness in criminal cases prosecuted 

by the Commonwealth. Id. According to Appellant, he has “alleged and 

demonstrated that [trial counsel] abandoned him and he, [Appellant], had 

no option but to plead no contest.” Id. Appellant therefore argues that, 

because his PCRA petition raised an issue of material fact, this case should 

be remanded for an evidentiary hearing. We disagree.

When asserting a claim of ineffectiveness of counsel in the context of a 

guilty plea1, a defendant must show that plea counsel’s ineffectiveness 

induced him to enter the plea. Commonwealth v. Johnson, 875 A.2d 328, 

331 (Pa. Super. 2005). This Court stated:

Because a plea of guilty effectively waives all nonjurisdictional defects and defenses, after sentencing, 

allegations of ineffectiveness of counsel in this context 

provide a basis for withdrawal of the plea only where there 

is a causal nexus between counsel’s ineffectiveness, if any, 

and an unknowing or involuntary plea. The guilty plea 

hearing becomes the significant procedure under scrutiny. 

The focus of the inquiry is whether the accused was misled 

or misinformed and acted under that misguided influence 

when entering the guilty plea.

____________________________________________

1 Appellant’s nolo contendere plea is treated the same as a guilty plea. 

Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super. 2004).

 
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Commonwealth v. Flood, 627 A.2d 1193, 1199 (Pa. Super. 1993) 

(citations omitted).

Further, this Court summarized: 

Our law presumes that a defendant who enters a guilty plea 

was aware of what he was doing. He bears the burden of 

proving otherwise.

 * * *

The long standing rule of Pennsylvania law is that a 

defendant may not challenge his guilty plea by asserting 

that he lied while under oath, even if he avers that counsel 

induced the lies. A person who elects to plead guilty is 

bound by the statements he makes in open court while 

under oath and may not later assert grounds for 

withdrawing the plea which contradict the statements he 

made at his plea colloquy.

 * * *

[A] defendant who elects to plead guilty has a duty to 

answer questions truthfully. We [cannot] permit a 

defendant to postpone the final disposition of his case by 

lying to the court and later alleging that his lies were 

induced by the prompting of counsel.

Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003) 

(citations omitted).

The PCRA court found no merit to Appellant’s claim, and explained as 

follows:

In the instant case, the Court found that [Appellant] 

failed to show that there was [a] genuine issue concerning 

any material fact. Although [Appellant’s] PCRA petition 

alleges that [trial counsel] “refused to call certain 

witnesses” and “failed to show a video of the incident,” the 

petition does not [allege] any facts indicating how 
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[Appellant] was induced to enter his plea. At trial, the 

Court thoroughly assessed [Appellant’s] competence, and 

specifically asked [Appellant] whether he was satisfied with 

the information and advice he had received from [trial 

counsel]. The Court determined [Appellant] to be 

competent, and [Appellant] indicated that he, in fact, was 

satisfied with the information and advice he had received 

from [trial counsel]. Based on [Appellant’s] responses to 

the extensive colloquy, the Court determined that 

[Appellant] entered his plea of nolo contendere knowingly, 

intelligently, and voluntarily.

[Appellant’s] PCRA petition fails to show that 

[Appellant] entered his plea unknowingly, unintelligently, 

or by inducement. [Appellant’s] claim the he was induced 

by [trial counsel] to enter the plea of nolo contendere is 

not supported by any allegations in the PCRA petition that 

would rise to the level of ineffective assistance of counsel. 

[Appellant] merely claims that two eyewitnesses to the 

incident were not called to testify, and that a video was 

not shown to the Court.

After thoroughly reviewing the record and [Appellant’s 

PCRA] petition, the Court found that [Appellant] neither 

established any genuine issue of material fact nor an 

entitlement to post-conviction collateral relief.

PCRA Court Opinion, 4/2/14, at 6-7 (footnote and citations omitted).

Our review of the record supports the PCRA court’s conclusions. 

Appellant’s answers to the court’s questions during the oral plea colloquy, as 

well as those provided in the written colloquy, contradict Appellant’s claims 

in his PCRA petition. Thus, his ineffectiveness claim fails. See Pollard, 

supra. Additionally, given this conclusion, the PCRA court did not err in 

dismissing Appellant’s PCRA petition without first holding an evidentiary 

hearing. See Jordan, supra.
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With regard to Appellant’s “after-discovered evidence claim” involving 

one of the police officers involved in the incident giving rise to Appellant’s 

convictions, our review of the record supports the PCRA court’s conclusion 

that Appellant failed to raise this claim in his amended petition. See PCRA 

Court Opinion, 4/2/14, at 6. Thus, Appellant’s claim is not properly before 

us. See Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013) 

(concluding ineffectiveness claim was waived when the PCRA petitioner 

failed to raise it in his PCRA petition and did not obtain permission to amend 

his petition).

Based on the foregoing, we affirm the PCRA court’s order denying 

Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/7/2014