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*Retired Senior Judge assigned to the Superior Cour t. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. FRANK PEKULAR, Appellant No. 883 WDA 2014

Appeal from the PCRA Order of May 12, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005537-2010

BEFORE: OLSON, STABILE and STRASSBURGER,* JJ. MEMORANDUM BY OLSON, J.: FILED JANUARY 05, 2016 Appellant, Frank Pekular, appeals from an order en tered on May 12, 2014 that denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm. We glean the historical facts in this case from th e summary of the evidence proffered by the Commonwealth at Appellant ’s plea hearing. On November 28, 2009, at approximately 8:00 p.m., Appe llant entered the BP filling station and convenience store at 910 Sawmil l Run Boulevard in Allegheny County. He approached the counter and pu rchased a pack of crackers with loose change. Appellant then left th e convenience store and walked outside. He paced around the store, returne d, and selected another package of crackers.J-S66003-15

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When Appellant came up to the purchase window, Luci nda Wetzel was the cashier. As Ms. Wetzel opened the drawer to th e cash register, Appellant dove underneath a security barrier and un successfully attempted to grab cash from the open register. Appellant the n fled outside and attempted to rob Ms. Wetzel. Next, Walter Wetzel c hased Appellant and brandished a firearm. If the case had proceeded to trial, the Commonwealth’s witnesses were prepared to testify t hat Mr. Wetzel was acting within the scope of his employment at the BP station when he brandished a firearm in an attempt to stop Appellan t’s efforts to commit robbery. Mr. Wetzel then got in front of the driver’s side o f Appellant’s vehicle. After a three- or four-second pause, Appellant acce lerated his vehicle forward at a high rate of speed. Appellant’s vehic le struck Mr. Wetzel, causing him to go onto and over the hood of the car . Appellant never attempted to decelerate his vehicle and Mr. Wetzel was dragged for some distance and later run over by Appellant. Appellan t fled the scene without stopping. Mr. Wetzel suffered severe brain injuries as a res ult of these events and succumbed to these injuries on April 2, 2010. The Commonwealth was prepared to establish at trial that the cause of Mr . Wetzel’s death was blunt force trauma to the head, consistent with a motor v ehicle accident and a pedestrian strike. At the time, Appellant was not properly licensed toJ-S66003-15

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operate a motor vehicle in Pennsylvania. See Trial Court Opinion, 5/29/15,

at 3-4. On January 28, 2011, Appellant pled guilty to one count of third-degree murder 1 and one count of accident involving death or perso nal injury. 2 On September 28, 2011, the trial court sentenced Appellant to serve an aggregate sentence of 22 to 44 years in pr ison. Counsel for Appellant subsequently filed a petition to reconsid er sentence and on March 1, 2012, after a hearing, the court modified Appell ant’s sentence to an aggregate term of ten to 20 years’ imprisonment. T hereafter, the

Commonwealth moved the court to reconsider the modi fied sentence. The court denied the Commonwealth’s motion on March 23, 2012. The Commonwealth subsequently filed an appeal, which th is Court dismissed on May 28, 2013 for failure to file a brief. Appellant initiated collateral proceedings on Augu st 19, 2013. The PCRA court appointed counsel and convened an eviden tiary hearing on March 19, 2014. The PCRA court dismissed Appellant ’s petition on May 12, 2014 and Appellant filed a timely notice of appeal. On June 5, 2014, the PCRA court directed Appellant to file a concise sta tement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant timely

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1 18 Pa.C.S.A. §2502(c).

2 75 Pa.C.S.A. §3742(a).J-S66003-15

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complied and the PCRA court issued its Rule 1925(a) opinion on May 29,

2015. On appeal, Appellant raises the following issues fo r our review: [1.] Did the lower court err by finding that trial counsel was not ineffective by failing to meet with the appellant a nd discuss his decision to withdraw the guilty plea, failing to ar gue the motion to withdraw the guilty plea, giving appellant erron eous advice as to the sentence that would be imposed and failing t o describe the elements of third degree murder? [2.] Was the plea of guilty unlawfully induced by t rial counsel? Appellant’s Brief at 4. Appellant raises interrelated claims challenging an order that denied collateral relief; hence, we shall address Appellan t’s claims in a single discussion. “Under the applicable standard of revi ew, we must determine whether the ruling of the PCRA court is supported b y the record and is free of legal error.” Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011) (citation omitted). In conducting this inquiry, “[ t]he PCRA court's credibility determinations, when supported by the record, are b inding on this Court[; h]owever, this Court applies a de novo standard of review to the PCRA court's legal conclusions.” Id . (citations omitted). Appellant contends that plea counsel’s ineffective ness unlawfully induced him to enter an invalid guilty plea. Speci fically, Appellant claims that counsel only met with him on one occasion befo re entry of the plea, that counsel advised Appellant that he would receiv e a four- to eight-yearJ-S66003-15

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sentence, that counsel failed to adequately explain the elements of third-degree murder, and that counsel failed to lit igate a motion to withdraw Appellant’s guilty plea. Appellant maintains that this Court should allow him to withdraw his guilty plea and order a new trial. To prevail on a petition for PCRA relief, a petitio ner must plead and prove by a preponderance of the evidence that his c onviction or sentence

resulted from one or more of the circumstances enum erated in 42 Pa.C.S.A. § 9543(a)(2). Spotz , supra . These circumstances include the ineffectiveness of counsel, which “so undermined th e truth-determining process that no reliable adjudication of guilt or i nnocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Our analysis of an ineffectiveness claim begins wit h the presumption

that counsel is effective. Spotz , supra . To overcome this presumption and prevail on such a claim, Appellant must plead and p rove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reason able basis for his action or inaction; and (3) Appellant suffered prejudice b ecause of counsel's action or inaction. Moreover,

claims of counsel's ineffectiveness in connection w ith a guilty plea will provide a basis for relief only if the in effectiveness caused an involuntary or unknowing plea. This is s imilar to the ‘manifest injustice’ standard applicable to all pos t-sentence attempts to withdraw a guilty plea. The law does n ot require that appellant be pleased with the outcome of his d ecision to enter a plea of guilty: All that is required is th at [appellant's]J-S66003-15

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decision to plead guilty be knowingly, voluntarily and intelligently made. Once a defendant has entered a plea of guilty, it i s presumed that he was aware of what he was doing, and the bur den of proving involuntariness is upon him. Therefore, wh ere the record clearly demonstrates that a guilty plea coll oquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, t he voluntariness of the plea is established. A defend ant is bound by the statements he makes during his plea colloquy, a nd may not assert grounds for withdrawing the plea that contra dict statements made when he pled. Determining whether a defendant understood the conn otations of his plea and its consequences requires an examin ation of the totality of the circumstances surrounding the plea. [I]n order to determine the voluntariness of the pl ea and whether the defendant acted knowingly and intellige ntly, the trial court must, at a minimum, inquire into the fo llowing six areas: (1) Does the defendant understand the nature of the charges to which he is pleading guilty? (2) Is there a factual basis for the plea? (3) Does the defendant understand that he has a rig ht to trial by jury? (4) Does the defendant understand that he is presum ed innocent until he is found guilty? (5) Is the defendant aware of the permissible range s of sentences and/or fines for the offenses charged? (6) Is the defendant aware that the judge is not bo und by the terms of any plea agreement tendered unless the judge accepts such agreement? Commonwealth v. McCauley , 797 A.2d 920, 922 (Pa. Super. 2001) (internal citations omitted).J-S66003-15

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We carefully reviewed the certified record, the pa rties’ appellate submissions, and the PCRA court’s opinion. In its opinion, the court reviewed the transcript of Appellant’s plea hearing and concluded that, based upon the totality of circumstances, Appellant entered a knowing, voluntary, and intelligent plea. PCRA Court Opinio n, 5/29/15, at 5. The

court’s reasons were as follows: Next, [Appellant] alleges that [plea] counsel was i neffective. [Appellant] completed a written guilty plea colloqu y, and the [c]ourt also explained [Appellant’s] rights. The [ c]ourt advised [Appellant] of the maximum penalty that could be im posed, after which [Appellant] indicated in the affirmative that he understood the nature of the charges and the maximum penalty. [Appellant] also admitted his guilt and that he was satisfied with his lawyer. [Appellant] also indicated that he ans wered the questions in his colloquy truthfully . . . and that it was his knowing, intelligent and voluntary decision to plea d guilty. The court also asked if [Appellant] was promised anythi ng in exchange for pleading guilty other than the terms o f the plea agreement[.] Appellant replied, “No, your Honor.” The Assistant District Attorney, in outlining the plea agreement, had earlier indicated there was, “No agreement as to se ntence.” During the PCRA hearing in this matter, [Appellant’ s plea counsel] testified that he did in fact[] explain th e difference between [t]hird[-d]egree [m]urder and [m]anslaughte r to [Appellant], and that he met with his client on num erous occasions. [Plea counsel] also testified that he w ent through the written colloquy with [Appellant] who understood an d answered the questions. [Counsel] denied representing to [A ppellant] that he would receive a sentence of [four to eight] year s[’ imprisonment.] The [PCRA c]ourt found [counsel’s]t estimony to be credible.

Id . at 4-5. Under the totality of circumstances, we conclude th at the PCRA court’s findings are supported by the record and that its l egal conclusions are free ofJ-S66003-15

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error. 3 We therefore agree that Appellant knowingly, inte lligently, and voluntarily entered his guilty plea. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/5/2016

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3 We are unpersuaded by Appellant’s contention that plea counsel was ineffective in failing to discuss Appellant’s decis ion to withdraw his guilty plea. The PCRA court found that plea counsel testi fied credibly at Appellant’s PCRA hearing that he never discussed this decision with Appellant because he never received a copy of Appellant’s pro se motion to withdraw. See N.T. PCRA Hearing, 3/19/14, at 34. Similarly, the recor d squarely rebuts Appellant’s claim that his use of prescription medi cation diminished his understanding of events at the plea hearing. See N.T. Plea Hearing, 6/28/11, at 5 (Appellant denying the use of drugs, prescription medication, and alcohol within the last day). Both of these cl aims are unavailing.