J-S66003-15 

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 entered 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 the summary of the 

evidence proffered by the Commonwealth at Appellant’s plea hearing. On 

November 28, 2009, at approximately 8:00 p.m., Appellant entered the BP 

filling station and convenience store at 910 Sawmill Run Boulevard in 

Allegheny County. He approached the counter and purchased a pack of 

crackers with loose change. Appellant then left the convenience store and 

walked outside. He paced around the store, returned, and selected another 

package of crackers. 
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When Appellant came up to the purchase window, Lucinda Wetzel was 

the cashier. As Ms. Wetzel opened the drawer to the cash register, 

Appellant dove underneath a security barrier and unsuccessfully attempted 

to grab cash from the open register. Appellant then fled outside and 

attempted to rob Ms. Wetzel. Next, Walter Wetzel chased Appellant and 

brandished a firearm. If the case had proceeded to trial, the 

Commonwealth’s witnesses were prepared to testify that Mr. Wetzel was 

acting within the scope of his employment at the BP station when he 

brandished a firearm in an attempt to stop Appellant’s efforts to commit 

robbery. 

Mr. Wetzel then got in front of the driver’s side of Appellant’s vehicle. 

After a three- or four-second pause, Appellant accelerated his vehicle 

forward at a high rate of speed. Appellant’s vehicle 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. Appellant fled the scene without 

stopping. 

 Mr. Wetzel suffered severe brain injuries as a result 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 vehicle accident and a 

pedestrian strike. At the time, Appellant was not properly licensed to 
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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 murder1 and one count of accident involving death or personal 

injury.2 On September 28, 2011, the trial court sentenced Appellant to 

serve an aggregate sentence of 22 to 44 years in prison. Counsel for 

Appellant subsequently filed a petition to reconsider sentence and on March 

1, 2012, after a hearing, the court modified Appellant’s sentence to an 

aggregate term of ten to 20 years’ imprisonment. Thereafter, the 

Commonwealth moved the court to reconsider the modified sentence. The 

court denied the Commonwealth’s motion on March 23, 2012. The 

Commonwealth subsequently filed an appeal, which this Court dismissed on 

May 28, 2013 for failure to file a brief. 

 Appellant initiated collateral proceedings on August 19, 2013. The 

PCRA court appointed counsel and convened an evidentiary 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 statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant timely 

____________________________________________ 

1

 18 Pa.C.S.A. §2502(c). 

2

 75 Pa.C.S.A. §3742(a). 
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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 for our review: 

[1.] Did the lower court err by finding that trial counsel was not 

ineffective by failing to meet with the appellant and discuss his 

decision to withdraw the guilty plea, failing to argue the motion 

to withdraw the guilty plea, giving appellant erroneous advice as 

to the sentence that would be imposed and failing to describe 

the elements of third degree murder? 

[2.] Was the plea of guilty unlawfully induced by trial counsel? 

Appellant’s Brief at 4. 

Appellant raises interrelated claims challenging an order that denied 

collateral relief; hence, we shall address Appellant’s claims in a single 

discussion. “Under the applicable standard of review, we must determine 

whether the ruling of the PCRA court is supported by 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 binding 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 ineffectiveness unlawfully 

induced him to enter an invalid guilty plea. Specifically, Appellant claims 

that counsel only met with him on one occasion before entry of the plea, 

that counsel advised Appellant that he would receive a four- to eight-year 
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sentence, that counsel failed to adequately explain the elements of 

third-degree murder, and that counsel failed to litigate 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 petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from one or more of the circumstances enumerated in 42 Pa.C.S.A. 

§ 9543(a)(2). Spotz, supra. These circumstances include the 

ineffectiveness of counsel, which “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). 

Our analysis of an ineffectiveness claim begins with the presumption 

that counsel is effective. Spotz, supra. To overcome this presumption and 

prevail on such a claim, Appellant must plead and prove, by a 

preponderance of the evidence, three elements: (1) the underlying legal 

claim has arguable merit; (2) counsel had no reasonable basis for his action 

or inaction; and (3) Appellant suffered prejudice because of counsel's action 

or inaction. Moreover, 

claims of counsel's ineffectiveness in connection with a guilty 

plea will provide a basis for relief only if the ineffectiveness 

caused an involuntary or unknowing plea. This is similar to the 

‘manifest injustice’ standard applicable to all post-sentence 

attempts to withdraw a guilty plea. The law does not require 

that appellant be pleased with the outcome of his decision to 

enter a plea of guilty: All that is required is that [appellant's] 
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decision to plead guilty be knowingly, voluntarily and intelligently 

made. 

Once a defendant has entered a plea of guilty, it is presumed 

that he was aware of what he was doing, and the burden of 

proving involuntariness is upon him. Therefore, where the 

record clearly demonstrates that a guilty plea colloquy was 

conducted, during which it became evident that the defendant 

understood the nature of the charges against him, the 

voluntariness of the plea is established. A defendant is bound by 

the statements he makes during his plea colloquy, and may not 

assert grounds for withdrawing the plea that contradict 

statements made when he pled. 

Determining whether a defendant understood the connotations 

of his plea and its consequences requires an examination of the 

totality of the circumstances surrounding the plea.

[I]n order to determine the voluntariness of the plea and 

whether the defendant acted knowingly and intelligently, the 

trial court must, at a minimum, inquire into the following 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 right to 

trial by jury? 

(4) Does the defendant understand that he is presumed 

innocent until he is 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? 

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001) 

(internal citations omitted). 
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 We carefully reviewed the certified record, the parties’ 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 Opinion, 5/29/15, at 5. The 

court’s reasons were as follows: 

Next, [Appellant] alleges that [plea] counsel was ineffective. 

[Appellant] completed a written guilty plea colloquy, and the 

[c]ourt also explained [Appellant’s] rights. The [c]ourt advised 

[Appellant] of the maximum penalty that could be imposed, 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 answered the 

questions in his colloquy truthfully . . . and that it was his 

knowing, intelligent and voluntary decision to plead guilty. The 

court also asked if [Appellant] was promised anything in 

exchange for pleading guilty other than the terms of 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 sentence.” 

 

During the PCRA hearing in this matter, [Appellant’s plea 

counsel] testified that he did in fact[] explain the difference 

between [t]hird[-d]egree [m]urder and [m]anslaughter to 

[Appellant], and that he met with his client on numerous 

occasions. [Plea counsel] also testified that he went through the 

written colloquy with [Appellant] who understood and answered 

the questions. [Counsel] denied representing to [Appellant] that 

he would receive a sentence of [four to eight] years[’ 

imprisonment.] The [PCRA c]ourt found [counsel’s]testimony to 

be credible. 

Id. at 4-5. 

Under the totality of circumstances, we conclude that the PCRA court’s 

findings are supported by the record and that its legal conclusions are free of 
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error.3 We therefore agree that Appellant knowingly, intelligently, and 

voluntarily entered his guilty plea. Accordingly, we affirm. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 1/5/2016 

____________________________________________ 

3

 We are unpersuaded by Appellant’s contention that plea counsel was 

ineffective in failing to discuss Appellant’s decision to withdraw his guilty 

plea. The PCRA court found that plea counsel testified 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 record squarely rebuts 

Appellant’s claim that his use of prescription medication 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 claims are unavailing.