J-S08013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

VICTOR THOMAS, JR.,

Appellant No. 939 EDA 2018

Appeal from the PCRA Order Entered March 8, 2018

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0003966-2014

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

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 22, 2019

Appellant, Victor Thomas, Jr., appeals pro se from the post-conviction 

court’s March 8, 2018 order denying his timely-filed petition under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, 

we affirm.

A detailed recitation of the facts underlying Appellant’s convictions is not 

necessary to our disposition of his appeal. We need only note that on April 

26, 2014, Appellant and his brother committed an armed robbery of Rodney 

Jacks. See N.T. Plea/Sentencing Hearing, 8/31/15, at 4. For this act, 

Appellant was charged with [r]obbery and related offenses. 

On August 31, 2015[,] while represented by defense counsel, 

Melissa A. McCafferty, Esquire, Appellant entered into a 

negotiated guilty plea agreement to three of the nine counts 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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charged: (1) [r]obbery (18 Pa.C.S.[] §[] 3701(a)(1)(ii)); (2) 

[c]onspiracy to [commit r]obbery (18 Pa.C.S.[] § 903(3)...); and 

(3) [p]ersons [n]ot to [p]ossess a [f]irearm (18 Pa.C.S.[] § 

6105(a)(1)). As agreed, Appellant was sentenced to 51⁄2 to 16 

years of state incarceration plus 5 years of consecutive probation. 

Subsequently, Appellant filed a Pro Se Habeas Corpus Motion for 

Sentence Reconsideration on September 10, 2015. Before the 

court could address this [m]otion, Appellant filed a Pro Se Motion 

to Withdraw on September 22, 2015.

Appellant filed this present PCRA [p]etition on September 1, 

2016. The PCRA [p]etition was assigned to PCRA counsel, Robert 

Brendza, Esquire[,] on September 29, 2016[,] and [was] 

reassigned to new PCRA [c]ounsel, C. Curtis Norcini, Esquire[,] on 

February 6, 2017. The court subsequently granted [Attorney] 

Norcini’s request for additional time to investigate Appellant’s 

claims and to review the record. [Attorney] Norcini filed a Motion 

to Withdraw as PCRA Counsel on August 18, 2017[,] and attached 

a copy of his [Turner/]Finley[1]letter. 

A 20[-]day notice pursuant to Pa.R.Crim.P. 907 was 

forwarded to Appellant on September 12, 2017. Thereafter, [he] 

filed a pro se [a]mended PCRA [p]etition titled[,] “Motion for 2nd

Post Conviction Relief Act” on November 3, 2017. After reviewing 

[Appellant’s] pro se submission, this court continued to find that 

there were no genuine issues concerning any material fact, that 

Appellant was not entitled to [PCRA] relief, and that no purpose 

would be served by any further proceedings in this matter.

Appellant filed this present appeal on March 27, 2018. A 

Pa.R.A.P. 1925(b) [o]rder was issued on April 4, 2018. On April 

30, 2018, Appellant filed a “Motion For Appointment of Counsel, 

Concerning Appellate Procedures and Further PCRA Procedures in 

The Superior Court[.”] In his [m]otion, Appellant also requested 

an extension of time to file his [c]oncise [s]tatement of [e]rrors 

[c]omplained of on [a]ppeal. Appellant’s [m]otion was granted in 

part and denied in part. Appellant’s request for counsel was 

denied. His request for an extension was granted. The filing date 

was extended to May 23, 2018. Appellant filed his [c]oncise 

____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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[s]tatement on May 30, 201[8,] with proof of mailing on May 23, 

2018.

PCRA Court Opinion (PCO), 6/28/18, at 1-3 (footnotes and citation omitted).

On appeal, Appellant presents three issues for our review:

I. Whether [t]he PCRA [c]ourt erred and failed to find a conflict 

of interest giving rise to ineffective assistance of counsel?

II. Whether [t]he PCRA [c]ourt erred and failed to find that 

[t]rial [c]ounsel was ineffective for giving false legal advice 

and inducing Appellant to plead guilty?

III. Whether [PCRA] [c]ounsel was ineffective for failing to raise 

[t]rial [c]ounsel’s ineffectiveness on all the above issues?

Appellant’s Brief at 3.

We begin by recognizing the following legal principles, which guide our 

review of Appellant’s issues:

Our standard in reviewing a PCRA court order is abuse of 

discretion. We determine only whether the court’s order is 

supported by the record and free of legal error. 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. We will not disturb the PCRA court’s findings 

unless the record fails to support those findings. 

A criminal defendant has the right to effective counsel

during a plea process as well as during trial. A defendant is 

permitted to withdraw his guilty plea under the PCRA if ineffective

assistance of counsel caused the defendant to enter an 

involuntary plea of guilty.

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. The voluntariness of the plea 

depends on whether counsel’s advice was within the range 

of competence demanded of attorneys in criminal cases. 

In order for [the] [a]ppellant to prevail on a claim of 

ineffective assistance of counsel, he must show, by a 

preponderance of the evidence, ineffective assistance of 
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counsel which, in the circumstances of the particular case, 

so undermined the truth-determining process that no 

reliable adjudication of guilt or innocence could have taken 

place. [The] [a]ppellant must demonstrate: (1) the 

underlying claim is of arguable merit; (2) that counsel had 

no reasonable strategic basis for his or her action or 

inaction; and (3) but for the errors and omissions of counsel, 

there is a reasonable probability that the outcome of the 

proceedings would have been different. The petitioner 

bears the burden of proving all three prongs of the test. 

Moreover, trial counsel is presumed to be effective. 

Commonwealth v. Patterson, 143 A.3d 394, 397-98 (Pa. Super. 2016) 

(internal citations and quotation marks omitted).

Appellant first contends that his trial counsel, Attorney McCafferty, was 

ineffective because she had a conflict of interest that she did not disclose to 

Appellant, and which compelled her to induce him into pleading guilty rather 

than going to trial. Before addressing Appellant’s specific arguments, we note 

that our Supreme Court,

has held that an appellant cannot prevail on a preserved conflict

of interest claim absent a showing of actual prejudice. We 

presume prejudice when the appellant shows that trial counsel

was burdened by an “actual” — rather than mere “potential” —

conflict of interest. To show an actual conflict of interest, the 

appellant must demonstrate that: (1) counsel “actively 

represented conflicting interests”; and (2) those conflicting

interests “adversely affected his lawyer’s performance.” 

Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 251 

(2008). Clients’ interests actually conflict when “during the course 

of representation” they “diverge with respect to a material factual 

or legal issue or to a course of action.” Id.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa. 2012).

In this case, Appellant claims that Attorney McCafferty had a conflict of 

interest because at the time she was representing him, she was also 
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representing a man named Elliot McDonald, who is friends with Rodney Jacks, 

the victim of Appellant’s armed robbery. Appellant further explains that, on 

April 25, 2014, Jacks and McDonald had shot at Appellant’s house (and 

Appellant apparently returned fire), which was Appellant’s motive for robbing 

Jacks the following day. Appellant claims that Attorney McCafferty induced 

him to plead guilty in this case because, had Appellant gone to trial, he would 

have testified that McDonald and Jacks had shot at his home, thus implicating 

McDonald in that criminal activity. Appellant insists that Attorney McCafferty 

advised him to plead guilty because his doing so would benefit McDonald by 

keeping the shooting a secret, thus constituting a conflict of interest 

amounting to ineffective representation.

The PCRA court offered several sound reasons for rejecting this 

ineffectiveness claim. First, the PCRA court stressed that, according to 

documents attached to Appellant’s amended petition, it was clear that the 

police knew about the shooting between McDonald, Jacks, and Appellant. See 

PCO at 5 (citing Amended Petition, 11/3/17, at Exhibit 2 (Coatesville Police 

Department Incident Report)). Thus, the PCRA court concluded that “defense 

counsel had no motive to hide facts that were already known to the 

Commonwealth.” Id. 

Second, the court also found that Appellant had failed to show an ‘actual 

conflict’ in counsel’s concurrently representing McDonald and Appellant. The 

court recognized that Attorney McCafferty had represented McDonald on a 

criminal matter filed against him on May 17, 2015. Rule 907 Notice, 3/8/18, 
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at 1 n.1. Attorney McCafferty’s representation of McDonald had commenced 

“26 days prior to [Appellant’s] guilty plea.” Id. However, Appellant 

“admit[ted] that [] McDonald’s 2015 criminal case [was] unrelated to the 

underlying criminal matter in [Appellant’s] case.” Id. (citing Amended 

Petition at 2). Thus, the PCRA court concluded that there was “no conflict of 

interest in a Chester County criminal attorney ... representing two Coatesville 

residents who know each other[,]” as “[Appellant’s] present case and [] 

McDonald’s 2015 case [were] entirely unrelated.” Id. 

Third, the PCRA court concluded that Attorney McCafferty’s dual 

representation of Appellant and McDonald did not adversely affect her 

representation of Appellant. The court stressed that,

[Attorney] McCafferty took great pains to conduct discovery and 

file pre-trial motions. In the end, she obtained a very favorable 

outcome, a mitigated sentence for serious charges.[2] Under the 

facts presented, [Appellant] cannot meet his burden to show that 

[Attorney] McCafferty’s representation of him created a[n actual]

conflict of interest or that she was ineffective in her legal 

representation of [Appellant].

____________________________________________

2 The court notes in its Rule 1925(a) opinion that,

Appellant had a prior record score of 5 as a result of two prior F3 juvenile adjudications, two F-3 convictions for [c]arrying [a 

firearm] [w]ithout a [l]icense, and one conviction for [p]ossession 

[w]ith [i]ntent to [d]eliver. If convicted on the charges in this 

matter, Appellant was facing a minimum aggregate sentence of 

15 years (180 months) +/- three years of incarceration. Appellant 

reduced his sentence by 63% in accepting the negotiated plea 

agreement of 66 months. This is a sentence at the bottom of the 

mitigated range of the sentencing guidelines.

PCO at 5 n.3.
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Rule 907 Notice at 1 n.1. We discern no error in the PCRA court’s rationale 

for denying Appellant’s first ineffectiveness claim. 

Next, Appellant contends that Attorney McCafferty ineffectively induced 

him to plead guilty by promising him that if he did, the Commonwealth would 

not charge him with offenses relating to the April 25, 2014 shooting between 

him and McDonald, yet Appellant was charged in that incident several months 

after he entered his plea. Appellant also claims that Attorney McCafferty 

promised him a sentence of 5 to 10 years’ incarceration if he pled guilty, but 

he received a sentence of 51⁄2 to 16 years’ imprisonment instead.

Our review of the record reveals that Appellant waived these claims. 

Initially, in his amended petition, Appellant did not assert that counsel 

promised him a sentence of 5 to 10 years. Thus, that claim is waived. See 

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.”). Additionally, while Appellant did 

mention, in his amended petition, that counsel purportedly told him that no 

charges would be filed against him if he pled guilty, he embedded that claim 

within his argument pertaining to counsel’s purported conflict of interest. 

Appellant also did not separately or specifically set forth this claim in his Rule 

1925(b) statement. See Rule 1925(b) Statement, 5/30/18, at 1 (“Whether 

private counsel [Attorney] McCafferty ... was ineffective, giving false legal 

advice in contemplation of guilty plea.”). Thus, the PCRA court presumed that 

Appellant’s vague statement of this issue in his Rule 1925(b) statement was 

referring only to an ineffectiveness claim (which Appellant has abandoned on 
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appeal) that was set forth in a section of his amended petition entitled, “Advice 

relating to plea agreement.” See Amended Petition at 7 (arguing that counsel 

misinformed him about certain consequences of his probationary sentence). 

The court did not address Appellant’s allegation that counsel misinformed him 

that he would not be charged with crimes stemming from the April 25, 2014 

shooting because Appellant did not clearly delineate that as a separate 

ineffectiveness claim in his amended petition, nor in his Rule 1925(b) 

statement. Given this record, we deem this claim waived.3 

Next, Appellant avers that Attorney McCafferty ineffectively ignored his

request to obtain video evidence that would have shown McDonald and Jacks 

shooting at Appellant’s house on March 27, 2014. Appellant claims that this 

video “would have contradicted [t]he Commonwealth’s case, and prove[n 

that] Rodney Jacks and Elliot[] McDonald [were] perpetrator’s [sic] and not 

victims.” Appellant’s Brief at 16. Appellant’s argument is unconvincing. We 

____________________________________________

3 Notwithstanding waiver, we would deem meritless Appellant’s two waived 

ineffectiveness claims. At the plea proceeding, Appellant stated that “no 

promises or threats were made” to compel him to plead guilty, thus belying 

his current argument that Attorney McCafferty had promised him that he 

would not be charged based on the April 25, 2014 shooting. N.T. 

Plea/Sentencing, 8/31/15, at 8. Additionally, at the outset of the plea 

proceeding, the Commonwealth stated that the agreed-upon sentence was 

“66 months to 16 years” with “two probationary tails running concurrent with 

each other of five years ... that would be consecutive to the 66 months to 16 

years” of incarceration. Id. at 4. Appellant did not indicate that he was 

promised a lesser sentence by Attorney McCafferty, nor express any 

reservation or confusion about the sentence he would receive. Accordingly, 

the record does not support his waived claims that he was induced to plead 

guilty based on promises erroneously made to him by Attorney McCafferty. 
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fail to see how a video of an unrelated shooting would have demonstrated 

Appellant’s innocence in the subsequent armed robbery of Jacks. At best, the 

video might have demonstrated Appellant’s motive for committing the 

subsequent armed robbery of Jacks. However, possessing a motive to commit 

a criminal act does not exonerate one from criminal liability therefore. Thus, 

Appellant has not proven that he was prejudiced by counsel’s failure to obtain 

this alleged video evidence.

We also reject Appellant’s bald assertion that Attorney McCafferty acted 

ineffectively by failing to interview witnesses. Appellant does not name any 

individual(s) that counsel failed to contact, nor discuss what they would have 

told her if she had. Thus, he has failed to establish that these ostensible 

witnesses existed, or that Attorney McCafferty’s failure to contact them caused 

him prejudice. See Commonwealth v. Brown, 767 A.2d 576, 581-82 (Pa. 

Super. 2001) (“To prevail on a claim of trial counsel’s ineffectiveness for failure 

to call a witness, the [appellant] must show: (1) that the witness existed; (2) 

that the witness was available; (3) that counsel was informed of the existence 

of the witness or should have known of the witness’s existence; (4) that the 

witness was prepared to cooperate and would have testified on appellant’s 

behalf; and (5) that the absence of the testimony prejudiced appellant.”). 

Lastly, within his third issue, Appellant argues that his PCRA counsel 

(whom he incorrectly refers to as ‘appellate counsel’) acted ineffectively by 

filing a petition to withdraw and no-merit letter. In Appellant’s amended 

petition, he preserved this claim for our review. See Amended Petition at 8 
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(“PCRA counsel ... failed to investigate these facts [that Appellant] provided 

him with, which led ... PCRA [c]ounsel to prepare a no[-]merit/Finley letter.”). 

However, given our conclusion that Appellant’s issues are either waived and/or 

meritless, he has not demonstrated that his PCRA counsel acted ineffectively 

by seeking to withdraw. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/22/19