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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JOSEPH McGRATH, : No. 1354 EDA 2016

:

 Appellant :

Appeal from the PCRA Order, April 15, 2016,

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos. CP-51-CR-0000658-2011,

CP-51-CR-0000698-2011, CP-51-CR-0006929-2010

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 22, 2017

Joseph McGrath appeals from the April 15, 2016 order dismissing his 

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

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1

The PCRA court summarized the relevant facts and procedural history 

of this case as follows:

In separate proceedings on March 3, 2011 and 

April 29, 2011, [a]ppellant appeared before th[e trial 

c]ourt and entered an open guilty plea to aggravated 

assault, criminal conspiracy to commit aggravated 

assault, criminal solicitation of murder, witness 

intimidation, and criminal conspiracy to commit 

witness intimidation.

Prior to accepting [a]ppellant’s plea, th[e trial 

c]ourt conducted a proper and thorough colloquy in 

 

1 The Commonwealth has not filed a brief in this matter.
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accordance with [Pa.R.Crim.P.] 590. During each 

colloquy, [a]ppellant testified that he understood all 

of the rights he was waiving and that he was acting 

on his own free will. Appellant was shown his 

written, guilty plea colloquy form and [a]ppellant 

confirmed his signature. Appellant affirmed that he 

was making a voluntary, knowing, and intelligent 

guilty plea by his oral responses and his signature on 

the written colloquy form.

Having knowingly and understandingly 

completed the colloquy, [a]ppellant then pleaded 

guilty to the following facts:

A. Aggravated Assault and Related Criminal 

Conspiracy.

On March 9, 2010, [a]ppellant attacked his 

neighbor Neil Lawn around 5:15 p.m. on the 

1800 block of East Airdrie Street in Philadelphia, 

Pennsylvania. Appellant walked over to Mr. Lawn, 

grabbed him, punched him in the face, and knocked 

him to the ground. Appellant started kicking and 

stomping at Mr. Lawn, repeating the word, “[g]ive 

me the money,” in reference to a $50 drug debt. 

Appellant also engaged an unidentified 

co-conspirator in stomping and kicking Mr. Lawn. 

Mr. Lawn’s neighbor Amber Pratt yelled at the 

perpetrators to stop and said that she was calling the 

police. Appellant threatened to kill Ms. Pratt if she 

called the cops. Thereafter, [a]ppellant and the 

unidentified co-conspirator departed the scene in a 

vehicle. Mr. Lawn was admitted to the ICU at Erie 

Torresdale Hospital in critical condition. Mr. Lawn 

suffered from two broken ribs, four broken vertebrae 

in his back, a broken right orbital bone, a broken 

jaw, multiple facial fractures, and a punctured lung. 

Mr. Lawn was placed on a ventilator due to 

respiratory failure. Additionally, a doctor informed 

Mr. Lawn that had he sustained one more punch, he 

would have died. 
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B. Criminal Solicitation of Murder.

On May 1, 2010, Nicole Rosa assisted the First 

Judicial District Warrant Unit officers in setting up a 

drug purchase with [a]ppellant in order for the 

officers to apprehend him. Ms. Rosa sent [a]ppellant 

several text messages stating that she wished to 

purchase Xanax at his residence. After an exchange 

of text messages, two officers knocked on 

[a]ppellant’s door, came in the house, and arrested 

[a]ppellant.

Appellant made several phone calls from 

prison. The calls were recorded and authenticated 

by the Philadelphia Prisons and Public Call, 

Incorporated. On May 3, 2010, [a]ppellant called his 

nephew and informed him that “Nicky set me up” 

and that he wanted her dead. He directed his 

nephew to mix battery acid with a batch of heroin. 

That mixture was to be given to [a]ppellant’s 

accomplice in drug dealing, who would then sell it to 

Ms. Rosa. On May 11, 2010, [a]ppellant followed up 

with his nephew and the accomplice to check if the 

order was carried out. On May 19, 2010, [a]ppellant 

further communicated to his sister on how he wanted 

Ms. Rosa dead: “I want her dead—to die.”

In August 2010, [a]ppellant realized the calls 

were recorded and declared to Lieutenant Knight, “I 

told somebody I wanted to have someone killed and 

I just found out that the telephone conversations are 

monitored. I got to see how I can get out of this.” 

Afterwards, [a]ppellant was taken to the Psych Unit. 

C. Witness Intimidation and Related Criminal 

Conspiracy.

On May 10, 2010, [a]ppellant met with two 

co-conspirators in prison and instructed them to 

“take care of the victim” in the aggravated assault 

case, Mr. Lawn. Appellant instructed his nephew to 

pay Mr. Lawn $500 every time he did not appear in 

court, until three times when [a]ppellant’s case 

would be thrown out per the Three Strikes Rule. 
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Mr. Lawn gave a statement to the District Attorney’s 

Office corroborating the recorded phone 

conversations and confirmed that he was physically 

approached by the nephew on three separate 

occasions and was offered $500 not to appear in

court. Mr. Lawn also stated that on one occasion, a 

second co-conspirator pulled up his shirt, exposed 

bullet holes on his body, and told Mr. Lawn, “[t]his is 

what can happen.”

Trial court opinion, 6/29/16 at 2-4 (citations and footnotes omitted).

At the March 3 and April 29, 2011 guilty plea hearings, the trial court 

informed appellant of his right to withdraw his guilty plea, but he failed to 

invoke this right.2 Thereafter, on August 26, 2011, the trial court sentenced 

appellant to an aggregate term of 20 to 40 years’ imprisonment, followed by 

10 years’ probation. On September 1, 2011, appellant filed timely 

post-sentence motions to withdraw his guilty plea and for reconsideration of 

his sentence. The trial court denied both motions that same day.

On May 10, 2013, a panel of this court affirmed appellant’s judgment 

of sentence. See Commonwealth v. McGrath, 81 A.3d 993 (Pa.Super. 

2013) (unpublished memorandum). Appellant did not file a petition for 

allowance of appeal with our supreme court. On May 21, 2013, appellant 

filed a timely pro se PCRA petition, and Sharon Meisler, Esq. 

(“Attorney Meisler”) was appointed to represent him. Following 

Attorney Meisler’s removal, Sandjai Weaver, Esq. (“Attorney Weaver”) was 

 

2 Appellant was represented during his guilty plea hearings and on direct 

appeal by Robert Trimble, Esq. (hereinafter, “plea counsel”).
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appointed on January 14, 2015. On June 23, 2015, Attorney Weaver filed 

an amended PCRA petition on appellant’s behalf. Thereafter, on 

November 9, 2015, the PCRA court provided appellant with notice, pursuant 

to Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a 

hearing. Appellant did not respond, and on April 15, 2016, the PCRA court 

dismissed appellant’s petition without a hearing. On April 28, 2016, 

appellant filed a timely notice of appeal.3

Appellant raises the following issue for our review:

Whether the [PCRA] court abused its discretion by 

failing to grant an evidentiary hearing, and for failing 

to permit [a]ppellant to withdraw his guilty plea 

where [plea] counsel inaccurately advised him he 

would receive a ten (10) year sentence if he entered 

a guilty plea, and where such advice caused 

[a]ppellant to enter involuntary, unknowing, and 

unintelligent guilty pleas in violation of his 

constitutional rights under the U.S. Const. Amend., 

V, VI, and XIV and see, PA.Const. art. I, sec. 9?

Appellant’s brief at 4.

Proper appellate review of a PCRA court’s dismissal 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) (citation omitted). “The PCRA court’s 

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

 

3 The record reflects that appellant was not directed to file a concise 

statement of errors complained of on appeal, in accordance with 

Pa.R.A.P. 1925(b). Nonetheless, the PCRA court filed an opinion that 

comports with the requirements of Rule 1925(a) on June 29, 2016.
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the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 

2014) (citations omitted). “This Court grants great deference to the findings 

of the PCRA court, and we will not disturb those findings merely because the 

record could support a contrary holding.” Commonwealth v. Hickman, 

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted). In order to be 

eligible for PCRA relief, a defendant must plead and prove by a 

preponderance of the evidence that his conviction or sentence arose from 

one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). Further, 

these issues must be neither previously litigated nor waived. 42 Pa.C.S.A. 

§ 9543(a)(3).

Where the PCRA court has dismissed a petitioner’s petition without an 

evidentiary hearing, as was the case here, we review the PCRA court’s 

decision for an abuse of discretion. See Commonwealth v. Roney, 79 

A.3d 595, 604 (Pa. 2013), cert. denied, 135 S.Ct. 56 (2014) (citation 

omitted). Moreover, 

the 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 

determination that there were no genuine issues of 

material fact in controversy and in denying relief 

without conducting an evidentiary hearing.
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Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal 

citations omitted).

Appellant contends that his guilty plea was unlawfully induced due to 

plea counsel’s ineffectiveness in “advis[ing] him he would receive a ten (10) 

year sentence if he entered a guilty plea[.]” (Appellant’s brief at 10.) We 

disagree.

In Commonwealth v. Willis, 68 A.3d 997 (Pa.Super. 2013), a panel 

of this court explained that the PCRA will provide relief to an appellant if 

ineffective assistance of counsel caused him to enter an involuntary guilty 

plea. Id. at 1001-1002. We conduct our review of such a claim in 

accordance with the three-pronged ineffectiveness test under 

Section 9543(a)(2)(ii) of the PCRA. To prevail on a claim of ineffective 

assistance of counsel under the PCRA, a petitioner must plead and prove 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). 

Specifically, a petitioner must establish that “the underlying claim has 

arguable merit; second, that counsel had no reasonable basis for his action 

or inaction; and third, that [a]ppellant was prejudiced.” Commonwealth v. 

Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014), appeal denied, 104 

A.3d 523 (Pa. 2014) (citation omitted). “[C]ounsel is presumed to be 

effective and the burden of demonstrating ineffectiveness rests on 
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[a]ppellant.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 

2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citation omitted). 

Additionally, we note that “counsel cannot be held ineffective for failing to 

pursue a meritless claim[.]” Commonwealth v. Hall, 867 A.2d 619, 632 

(Pa.Super. 2005), appeal denied, 895 A.2d 549 (Pa. 2006).

This court has explained that the entry of a guilty plea constitutes a 

waiver of all defects and defenses except lack of jurisdiction, invalidity of the 

plea, and illegality of the sentence. See Commonwealth v. Zeigler, 112 

A.3d 656, 660 (Pa.Super. 2015) (citation omitted). Before a withdrawal of a 

plea will be permitted after sentencing, the appellant “must make a showing 

of prejudice amounting to manifest injustice. A plea rises to the level of 

manifest injustice when it was entered into involuntarily, unknowingly, or 

unintelligently.” Commonwealth v. Bedell, 954 A.2d 1209, 1212 

(Pa.Super. 2008), appeal denied, 964 A.2d 893 (Pa. 2009) (internal 

quotation marks and citation omitted). In order to ensure a voluntary, 

knowing, and intelligent plea, the trial court, at a minimum, must ask the 

following questions during the guilty plea colloquy:

1) Does the defendant understand the nature of 

the charges to which he or she is pleading 

guilty or nolo contendere?

2) Is there a factual basis for the plea?

3) Does the defendant understand that he or she 

has the right to a trial by jury?
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4) Does the defendant understand that he or she 

is presumed innocent until found guilty?

5) Is the defendant aware of the permissible 

ranges of sentences and/or fines for the 

offenses charged?

6) Is the defendant aware that the judge is not 

bound by the terms of any plea agreement 

tendered unless the judge accepts such 

agreement?

Zeigler, 112 A.3d at 660 (citation omitted); see also Pa.R.Crim.P. 590(C). 

Moreover, a defendant is bound by the statements that he makes during his 

plea colloquy. See Commonwealth v. Yeomans, 24 A.3d 1044, 1047 

(Pa.Super. 2011).

Upon review, we find that appellant’s claim that he was induced to 

plead guilty because of counsel’s purported ineffectiveness is belied by the 

record. As noted, a panel of this court on direct appeal found that appellant 

entered into his guilty plea “voluntarily, knowingly, and intelligently.” 

McGrath, 81 A.3d 993 (unpublished memorandum at 9). This court 

reasoned as follows:

With respect to the requirements set forth in 

Rule 590, the record indicates the following: 

(1) [appellant] understood the charges against him; 

(2) he agreed to the Commonwealth’s summary of 

the case against him; (3) he understood his right to 

a trial by jury; (4) he understood that he was 

presumed innocent unless the Commonwealth 

proved his [sic] guilty beyond a reasonable doubt; 

(5) the court informed [appellant] that the maximum 

aggregate sentence that could be imposed for the 

crimes he was charged with was 100 years’ 

incarceration and a fine of $125,000; and (6) the 
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court informed him that it was not bound by the 

terms of the plea agreement unless it accepted the 

agreement.

Id. (unpublished memorandum at 9-10) (citations to notes of testimony 

omitted).

This court has long recognized that “[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. 

Anderson, 995 A.2d 1184, 1192 (Pa.Super. 2010), appeal denied, 9 A.3d 

626 (Pa. 2010) (citation omitted). Because appellant’s plea was found to 

have been entered voluntarily, knowingly, and intelligently, and not due to 

any ineffectiveness on the part of plea counsel, allegations of ineffectiveness 

related to his plea may not be raised as a basis for relief. See Willis, 68 

A.3d at 1001-1002 (stating, “[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.” (citation omitted; brackets in original; emphasis added)); see also

Bedell, 954 A.2d at 1212 (same). Accordingly, we affirm the PCRA court’s 

April 15, 2016 order dismissing his petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2017