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

v.

FAYSAL SALIM MUHAMMAD

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 88 WDA 2021 Appeal from the PCRA Order Entered January 7, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

- 25

- CR

- 0001033

- 2017

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. * MEMORANDUM BY COLINS, J.: FILED: DECEMBER 17, 2021 Appellant, Faysal Salim Muhammad, appeals from the order of the Court of Common Pleas of Erie County (trial court) that dismissed his first petition filed under the Post Conviction Relief Act (“PCRA”)

. 1 A fter careful review, we affirm

. Appellant was arrested on March 8, 2017, for possession of a controlled substance with intent to de liver (PWID) , possession of a controlled substance, possession of drug paraphernalia, and possession of a firearm by a person prohibited , after he was found with approximately 20 grams of heroin on his
person and a loaded gun was found in his hotel room

. Appellant was initially

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541

– 9546.J

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represented by a public defender, but terminated that representation in September 2017 , and was represented by privately retained counsel until January 22, 2018

. Following the withdrawal of privately retained counsel, Appellant was again represe nted by the same public defender. Appellant, however, was dissatisfied with counsel and requested to represent himself, and, at a Grazier hearing 2 at which he was fully advised of his rights and the risks of proceeding pro se , Appellant waived his right to counsel and undertook to represent himself. N.T., 4/11/18, at 2

- 3, 11

- 15. While Appellant was representing himself, he filed a motion to dismiss asserting , inter alia , that the evidence on which the charges against him were based was illegally seized because the police did not obtain a warrant before entering his hotel room. Motion to Dismiss at 1, 5 ; N.T., 9/7/18, at 9

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. The trial court held a hearing on that motion at which the officer who conducted the hotel room search and arrested Appellant testified , and , following that testimony, deni ed Appellant’s motion . N.T., 9/7/18, at 10

- 22, 25 ; Trial Court Order, 9/10/18

. Appellant , on October 1, 20 18, filed an appeal f rom th e order denying his motion to dismiss

. On Octob er 9, 2018, Appellant requested counsel and the same public defender was appointed to represent him. N.T., 10/9/18, at 22

- 30. This Court on November 19, 2018 quashed Appellant’s appeal from the order denying the motion to dismiss as

_________________ __________ ______ ____ _______ 2 Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998)

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interlocutory. Commonwealth v. Muhammad , No. 1419 WDA 2018 Order (Pa. Super. filed November 19 , 20 18 )

. On December 5 , 201 8 , Appellant , represented by counsel, enter ed a negotiated guilty plea to PWID and possession of a firearm by a person prohibited under a plea agreement that dismissed the possession of a controlled substance and possession of drug paraphernalia charges , reduced the amount of heroin on the PWID char ge from 20 grams to 17.46 grams, and agreed for purposes of sentencing that the firearm would be treated as unloaded

. N.T., 12/5/18, at 10

- 15 ; Plea Statement; Disposition Sheet. On February 25, 2019, the trial court sentenced Appellant to 2 to 4 years’
inc arceration for the PWID conviction and a consecutive term of 3 to 6 years’ incarceration for the firearms offense, resulting in an aggregate sentence of 5 to 10 years’ incarceration. N.T., 2/25/19, at 12

- 13 ; Sentencing Order. Appellant filed a timely mot ion for reconsideration of sentence seeking modification of the sentences to concurrent sentences, which the trial court denied on March 8, 2019. Appellant did not timely appeal from his judgment of sentence, but filed a document captioned “Notice of A ppeal” on April 2 9 , 2019 asserting claims of ineffective assistance of trial counsel. The trial court ordered that this document be treated as a PCRA petition and appointed counsel to represent Appellant on this PCRA petition. Trial Court Order, 5/10/19. On July 17, 2019, PCRA counsel filed a supplemental PCRA petition that asserted that Appellant’sJ

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trial counsel was ineffective in fail ing to properly advise Appellant concerning the severity of the sentence he could receive and in fail ing to file a suppr ession motion. Supplement al PCRA Petition at 1

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. T he trial court, on September 24, 2019, issued a n otice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s PCRA petition without a hearing on the ground that it was without merit, and on D ecember 10 , 2019, entered an order dismissing the PCRA petition

. Trial Court Order, 9/24/19; Trial Court Order, 12/10/19. Appellant timely appealed the dismissal of his PCRA petition and this Court , on August 14, 2020, vacated the dismissal of Appellant’s PCRA petition on the ground that the trial court had not held a hearing to determine whether Appellant, who had filed pa pers requesting to proceed pro se , knowingly, intelligently , and voluntarily waived his right to representation on his PCRA petition

. Commonwealth v. Muhammad , No. 33 WDA 2020, unpublished memorandum at 9

- 11 (Pa. Super. filed August 14, 2020 ). This Court remanded the case with instructions that the trial court hold a Grazier hearing and provide Appellant or his counsel 20 days to respond to the notice of intent to dismiss following that hearing

. Id. at 11

. On remand, the trial court held a Grazier hea ring at which Appellant confirmed that he wished to be represented by PCRA counsel. N.T., 9 / 25 /20,
at 2

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. On October 26, 2 020, PCRA counsel filed a response to the trial court’s notice of intent to dismiss in which he asserted that Appellant’s trial cou nsel was ineffective because she did not pursue a motion to suppress, that thereJ

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was no litigation of a suppression motion , that the suppression issue had been waived by trial cou n sel’ s conduct , that Appellant was unaware at the time that he entered his guilty plea that there were grounds for suppression of evidence , and that his guilty plea was the result of trial counsel’s waiver of the suppression issue

. PCRA Counsel’s Response to Rule 907 Notice at 2

- 3. On January 7, 2021 , the trial court dismissed Appellant’s PCRA petition. Trial Court Memorandum Order , 1/7/21. This timely appeal followed. Appellant raises the following single issue for our review: Whether the appellant was afforded ineffective assistance of counsel in that defense counsel failed to pursue a suppression motion on his behalf thereby rendering his subsequent guilty pleas as invalid in that the appellant could not enter an intelligent and voluntary plea under the circumstances of counsel negli[g]ently relinquishing a meritorious defe nse? Appellant’s Brief at 2 (unnecessary capitalization omitted)

. We review the d ismiss al of a PCRA p etition to determine whether the
court ’ s decision is supported by the record and free of legal error

. Commonwealth v. Staton , 120 A.3d 277, 2 83 (Pa. 2015) ; Commonwealth v. Wah , 42 A.3d 335 , 338 (Pa. Super. 2012)

. To be entitled to relief under the PCRA on a claim of ineffective assistance of counsel, the defendant must prove: (1) that the underlying legal claim is of arguable merit; (2) that counsel ’ s action or inaction had no reasonable basis designed to effectuat e his client ’ s interests; and (3) that he suffered prejudice as a result of counsel’s
action or inaction

. Commonwealth v. Mason , 130 A.3d 601 , 618 (Pa. 2015) ; Commonwealth v. Velazquez , 216 A.3d 1146, 1149 ( Pa. Super.J

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20 19 ) ; Wah , 42 A.3d at 338 . T he defen dant must satisfy all three prongs of this test to obtain relief under the PCRA. Mason , 130 A.3d at 618; Velazquez , 216 A.3d at 1149

. Where the defendant plead s guilty, i neffective assistance of counsel prior to or at the time of the plea can be a basis for PCRA relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Commonwealth v. Mitchell , 105 A.3d 1257, 127 2 (Pa. 2014) ; Velazquez , 216 A.3d at 1149; Wah , 42 A.3d at 338; Commonwealth v. Bedell , 954 A.2d 1209 , 1212 (Pa. Super. 2008 )

. To establish that a guilty plea is voluntary and knowing, the plea colloquy must ascertain the factual basis for the plea and that the defendant understands the nature of the charges to which he is pleading guilty , his right to a jury trial, the presumption of innocence, the sentencing ranges for the charges against him , and the plea court’s power to deviate from any recommended sentence. Commonwealth v. Flanagan , 854 A.2d 489, 500 & n.8, 504 ( Pa. 2004); Commonwealth v. Reid , 117 A.3d 777, 78 2 (Pa. Super. 2015) ; Bedell , 954 A.2d at 1212; Commonwealth v. Morrison , 878 A.2d 102 , 107 (Pa. Super. 2005) ( en banc ) ; Comment to Pa.R.Crim.P. 590(A)(2) . These matters may also be shown by a wri tten plea colloquy read and signed by the defendant and made part of the record when supplemented by an oral, on

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- record examination. Reid , 117 A.3d at 78 2; Morrison , 878 A.2d at 108 ; Comment to Pa.R.Crim.P. 590 (A)(2)

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Here, the record shows that Appe llant’s guilty plea was voluntary and knowing. At the guilty plea hearing, the Commonwealth set forth the factual basis for the plea , the nature of the two charges to which Appellant was pleading guilty , the maximum possible sentenc es for those charges, and the nature of the plea agreement, and Appellant stated that he underst oo d the charges , the plea agreement, and the maximum sentenc e that he could
receive . N.T., 12/5/18, at 10

- 14. Appellant was also advised of his right to a jury trial and t he presumption of innocence , that he was giving up those rights by pleading guilty , and that the plea court had the power to deviate from any recommended sentence , and he confirmed his understanding of those rights and that information

. Id. at 5

- 7, 10. Appellant does not claim in his brief in this Court that trial counsel gave him any inaccurate information or inadequate advice concerning his plea or its consequences that caused him to plead guilty. Rather, the claim of ineffective assistance of counse l that Appellant argues is that trial counsel ’s fail ure to file a motion to suppress evidence had deprived him of the ability to have the evidence against him excluded

. Counsel’s failure to seek suppression of evidence, however, does not automatically ren der a guilty plea involuntary or unknowing

. Commonwealth v. Jones , 566 A.2d 893, 89 6 (Pa. Super. 1989)

. Moreover,
t h e claim that Appellant was forced to plead guilty by waiver of the suppression issue or lack of awareness of this issue is contradicted by the record. The record shows that a motion to suppress was in fact filed byJ

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Appellant when he was acting pro se and that the right to seek suppression had not been waived at the time that Appellant chose to acce pt a favorable plea deal. Motion to Dismiss at 1, 5; N.T., 9/7/18, at 9

- 25. The record also shows that A ppellant believed in September 2018, less than three months before he chose to plead guilty, that he had a viable challenge to the evidence against hi m on the grounds that police lacked probable cause and failed to obtain a warrant for the search of his hotel room. N.T., 9/7/18, at 20

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- 26. Appellant d id not allege in his PCRA petition that trial counsel gave him
any subsequen t advice that he sh ould plead guilty because he was unlikely to succeed on appeal in suppressing the evidence. To the contrary, the only advice of counsel that Appellant claimed misl ed him concerning his guilty plea consisted of alleged representations concerning the senten ce he would receive. Supplemental PCRA Petition at 1

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. Appellant does not contend in this appeal that counsel’s alleged advice concerning his sentence constitute s grounds for reversing the trial court’s dismissal of his PCRA.
Because the record is clear that Appellant’s guilty plea was voluntary and knowing and that Appellant’s right to seek suppression of the evidence against him had not been waived and was know n to him when he chose to plead guilty, trial counsel’s alleged ineffectiveness for failure to file a motionJ

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to suppress does not constitute grounds for PCRA relief. Accordingly, we affirm the trial court’s dismissal of Appellant’s PCRA petition. Order a ffirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/17/2021