J-S74018-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEITH NORWOOD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 913 EDA 2019

Appeal from the PCRA Order Entered March 4, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0016048-2010

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 25, 2020

Keith Norwood (Appellant) appeals from the order dismissing his petition 

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

The trial court summarized the relevant facts and procedural history:

On April 26, 2009, [Appellant] obtained possession of a .38 

caliber handgun owned by the [c]o-[d]efendant, Khayan 

Harris. [Appellant] and the [c]o-defendant approached the 

decedent on his bike at the intersection of 32nd and Morris 

Streets. [Appellant] shot the decedent three times, and the 

[c]o-defendant shot the decedent six times. The decedent 

then began to beg for his life, and the [c]o[-]defendant fired 

one more shot at the decedent’s head.

[Trial Court Opinion, 6/24/16, at 1-2 n.1]. [Appellant] was 

subsequently charged with murder-generally and related VUFA 

offenses. On December 29, 2003, [Appellant] entered a 

negotiated guilty plea to the charges of third-degree murder, 

conspiracy, and possessing an instrument of a crime. On the 

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* Former Justice specially assigned to the Superior Court.
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same day, the [trial court] sentenced [Appellant] to 20 to 40 years 

[of] imprisonment on the charge of third-degree murder and 5 to 

10 years [of] imprisonment on the charge of conspiracy, to run 

consecutively. No further penalty was given on the charge of 

possession of an instrument of crime. No post-sentence motion 

or notice of appeal was filed.

On October 09, 2013, [Appellant] filed a timely pro se PCRA 

petition. On May 19, 2014, counsel was appointed. On October 

21, 2014, [Appellant] filed an amended PCRA petition, in which he 

claimed that trial counsel failed to protect his post-sentence or 

direct appeal rights. On January 15, 2015, [the PCRA court]

reinstated [Appellant]’s direct appeal rights nunc pro tunc, but did

not address [Appellant]’s request for post-sentence rights to be 

reinstated. On January 20, 2015, [Appellant] filed a Notice of 

Appeal. On January 12, 2017, the Pennsylvania Superior Court

affirmed [Appellant]’s judgment of sentence. On June 5, 2017, 

the Pennsylvania Supreme Court denied [Appellant]’s application 

for allocatur.

On March 28, 2018, [Appellant] filed a pro se PCRA petition in 

which he claimed that he did not voluntarily enter into his 

negotiated guilty plea and, therefore, Trial Counsel was ineffective 

for failing to file a post-sentence motion to withdraw his guilty 

plea. On July 10, 2018, [counsel] was appointed to represent 

[Appellant]. On October 23, 2018, [Appellant] filed an amended 

PCRA petition. On February 4, 2019, [the] Commonwealth filed a 

motion to dismiss.

On February 5, 2019, the [PCRA court] sent [Appellant] a 907 

Notice of Intent to Dismiss. [Appellant] did not file a response to 

the 907 Notice. On March 4, 2019, following a thorough review 

of the record, [the PCRA court] dismissed [Appellant]’s PCRA 

petition for lack of merit. On March 19, 2019, [Appellant] filed a 

Notice of Appeal.

PCRA Court Opinion, 6/28/19, at 2-3 (footnote omitted).

On appeal, Appellant presents the following issue for review:

Did the [PCRA court] err in dismissing the Post-Conviction Relief 

Act (PCRA) petition, without a hearing, even though Appellant 

pled, and would have been able to prove that he was entitled to 
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relief due to ineffective assistance of trial counsel and should have 

been allowed to withdraw his guilty plea and go to trial?

Appellant’s Brief at 3.

We review the denial of PCRA relief by “examining whether the PCRA 

court’s findings of fact are supported by the record, and whether its 

conclusions of law are free from legal error.” Commonwealth v. Busanet, 

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light most favorable 

to the party who prevailed in the PCRA court proceeding.” Id.

We begin by recognizing:

To be eligible for relief under the PCRA, [a PCRA petitioner] must 

prove by a preponderance of the evidence that his conviction or 

sentence resulted from one or more of the enumerated 

circumstances found in Section 9543(a)(2) (establishing the bases 

for relief). These circumstances include . . . ineffective assistance 

of counsel that “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)]; Commonwealth v. 

Blakeney, 108 A.3d 739, 749 ([Pa.] 2014). [A PCRA petitioner]

also must demonstrate that the issues included in his PCRA 

petition have not been previously litigated or waived. 42 Pa.C.S.A.

§§ 9543(a)(3), 9544(a)-(b) (defining circumstances that lead to 

waiver and a finding that a claim is previously litigated).

Commonwealth v. Crispell, 193 A.3d 919, 927-28 (Pa. 2018).

Appellant’s sole issue on appeal challenges the effectiveness of Trial 

Counsel. In deciding ineffective assistance of counsel claims, we begin with 

the presumption that counsel rendered effective assistance. Commonwealth 

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption, 

the petitioner must establish: “(1) the underlying claim has arguable merit; 
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(2) no reasonable basis existed for counsel’s action or failure to act; and (3) 

the petitioner suffered prejudice as a result of counsel’s error, with prejudice 

measured by whether there is a reasonable probability that the result of the 

proceeding would have been different.” Id. (citation omitted). If the 

petitioner fails to prove any of these prongs, the claim is subject to dismissal. 

Id. at 1188.

“Allegations 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.” Commonwealth v. 

Moser, 921 A.2d 526, 531 (Pa. Super. 2007) (quotations and citation 

omitted). “Where the defendant enters his plea on the advice of counsel, the 

voluntariness of the plea depends on whether counsel’s advice was within the 

range of competence demanded of attorneys in criminal cases.” Id.

(quotations and citations omitted). “Thus, to establish prejudice, the 

defendant must show that there is a reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty and would have insisted on 

going to trial.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 

2013) (quotations and citations omitted). “The reasonable probability test is 

not a stringent one; it merely refers to a probability sufficient to undermine 

confidence in the outcome.” Id. (quotations and citations omitted).

With respect to valid guilty pleas, this Court has explained:

A valid guilty plea must be knowingly, voluntarily and intelligently 

entered. The Pennsylvania Rules of Criminal Procedure mandate 
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that pleas be taken in open court, and require the court to conduct 

an on-the-record colloquy to ascertain whether a defendant is 

aware of his rights and the consequences of his plea. Specifically, 

the court must affirmatively demonstrate the defendant 

understands: (1) the nature of the charges to which he is pleading 

guilty; (2) the factual basis for the plea; (3) his right to trial by 

jury; (4) the presumption of innocence; (5) the permissible ranges 

of sentences and fines possible; and (6) that the court is not 

bound by the terms of the agreement unless the court accepts the 

agreement. This Court will evaluate the adequacy of the plea 

colloquy and the voluntariness of the resulting plea by examining 

the totality of the circumstances surrounding the entry of that 

plea.

Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations 

omitted); see also Pa.R.Crim.P. 590.

Appellant argues that Trial Counsel was ineffective for failing to file a 

post-sentence motion to withdraw his guilty plea and that consequently, the 

PCRA court abused its discretion in dismissing his PCRA petition without a 

hearing. We disagree.

Appellant’s challenge to the voluntariness of his guilty plea is not 

cognizable under the PCRA because he raised the claim on direct appeal. As 

this Court has explained, “[a] claim that has been previously litigated is not 

cognizable for collateral relief.” Commonwealth v. Roane, 142 A.3d 79, 94 

(Pa. Super. 2016) (citing 42 Pa.C.S.A. § 9544(a)(2)). The PCRA defines a 

matter as having been previously litigated when “the highest appellate court 

in which the petitioner could have had review as a matter of right has ruled 

on the merits of the issue.” Id. (quotations and citation omitted).
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Before a prior panel of this Court, Appellant argued that his plea was 

not knowing, voluntary, and intelligent because the trial court misinformed 

him of the elements of conspiracy to commit third-degree murder. 

Commonwealth v. Norwood, 319 EDA 2016 at 4 (Pa. Super. Jan. 12, 2017) 

(unpublished memorandum). In rejecting this claim, we explained:

During the guilty plea hearing, the Commonwealth defined the 

elements of conspiracy to commit third[-]degree murder.

You are also pleading guilty to a charge of conspiracy to 

commit third-degree murder, and that, in this case, that

means the Commonwealth has to prove beyond a

reasonable doubt that you made some kind of an agreement 

with another person and took at least one step towards 

completing this agreement. In this case, the agreement to 

commit third-degree murder would mean that you, in 

essence, agreed with someone to commit at least serious 

bodily injury upon another person. In this case, that serious 

bodily injury resulted in someone’s death.

N.T. Guilty Plea, 10/9/2012, at 19. Conspiracy requires that the 

defendant have the intent of promoting or facilitating a crime and 

engaging in conduct which constitutes such crime. 18 Pa.C.S.A. 

§ 903(a). In Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 

2013), our Supreme Court held that conspiracy to commit third 

degree was a cognizable offense and “if a defendant acts with his 

co-conspirators in brutally attacking the victim . . . but does not 

care whether the victim dies or not, he conspires to commit third 

degree murder.” Fisher, 80 A.3d at 1195. As this factual 

scenario is practically identical to the description given to 

Appellant during his guilty plea colloquy, Appellant’s claim fails.

Id. at 4-5.

Thus, Appellant challenged the voluntariness of his guilty plea on direct 

appeal, and we determined that Appellant entered a knowing, voluntary, and 

intelligent plea. See id. Our Supreme Court subsequently denied Appellant’s
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petition for allowance of appeal. We therefore conclude that Appellant 

previously litigated his challenge to the voluntariness of his guilty plea and 

this claim is not cognizable under the PCRA.

Because Appellant’s challenge to the voluntariness of his guilty plea 

serves as the basis for his ineffective assistance of counsel claim, that claim 

must likewise fail. It is well-settled that “counsel will not be deemed 

ineffective for failing to raise a meritless claim.” Commonwealth v. Spotz, 

896 A.2d 1191, 1211 (Pa. 2006).

Finally, with respect to Appellant’s argument that the PCRA court abused 

its discretion in dismissing his PCRA petition without a hearing, we 

acknowledge the following:

[T]he right to an evidentiary hearing on a post-conviction petition 

is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 

1014 (Pa. Super. 2001). 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. 

Id. 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.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations 

omitted).

As Wah states, the PCRA court may decline to hold a hearing if the 

petitioner’s claim is patently frivolous and without support in the record. 

Because this Court previously determined that Appellant’s challenge to the 
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voluntariness of his guilty plea was without merit, we discern no abuse of 

discretion in the PCRA court’s determination that Appellant’s ineffective 

assistance of counsel claim, based on trial counsel’s failure to challenge his 

guilty plea, was frivolous and did not warrant a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/25/20