J-S77035-16 

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

COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

Appellee 

v. 

GREGORY MAURICE WYATT, 

Appellant No. 1982 MDA 2015 

Appeal from the PCRA Order October 13, 2015 

in the Court of Common Pleas of Dauphin County 

Criminal Division at No.: CP- 22 -CR- 0003361 -2013 

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.* 

MEMORANDUM BY PLATT, J.: FILED OCTOBER 24, 2016 

Appellant, Gregory Maurice Wyatt, appeals, pro se, from the order of 

October 13, 2015, which dismissed, without a hearing, his first counseled 

petition brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. 

§§ 9541 -9546. We affirm. 

We take the underlying facts and procedural history in this matter 

from the PCRA court's July 6, 2016 opinion and our independent review of 

the certified record. 

The facts underlying Appellant's conviction stem from his May 27, 

2013 murder and robbery of an acquaintance. (See N.T. Guilty Plea 

Hearing, 6/02/14, at 8 -9). On July 26, 2013, the Commonwealth filed a 

* Retired Senior Judge assigned to the Superior Court. 
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criminal information charging Appellant with murder, robbery, possession of 

a firearm prohibited, and carrying a firearm without a license.' (See 

Criminal Information, 7/26/13, at unnumbered page 1). On June 2, 2014, 

Appellant entered a negotiated guilty plea to one count each of murder of 

the third degree, robbery, possession of a firearm prohibited, and carrying a 

firearm without a license. (See N.T. Guilty Plea Hearing, at 10). In 

accordance with the terms of the plea, the trial court immediately sentenced 

Appellant to an aggregate term of incarceration of not less than twenty -five 

nor more than fifty years. (See id. at 14 -15). 

On June 12, 2014, Appellant filed a motion to withdraw his guilty plea. 

A hearing took place on July 11, 2014. At the hearing, Appellant indicated 

that, when he filed the motion to withdraw his guilty plea to murder of the 

third degree, he did not understand that the information had charged him 

with murder generally, and that, if he withdrew his guilty plea, he would 

expose himself to charges including murder of the first or second degree. 

(See N.T. Motion Hearing, 7/11/14, at 6 -7). Based upon this information, 

Appellant withdrew his motion to withdraw his guilty plea. (See id. at 7). 

Appellant did not file a direct appeal. 

On June 1, 2015, Appellant, acting pro se, filed a timely PCRA petition. 

On June 29, 2015, the PCRA court appointed counsel to represent Appellant. 

' See 18 Pa.C.S.A. §§ 2502, 3701(a)(1)(i) and (ii), 6105(a)(1), and 

6106(a)(1), respectively. 

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On July 21, 2015, PCRA counsel submitted a Turner /Finley2 letter. On 

September 4, 2015, the PCRA court issued notice of its intent to dismiss the 

petition and allow PCRA counsel to withdraw, pursuant to Pennsylvania Rule 

of Criminal Procedure 907(1). Appellant did not file a response to the Rule 

907 notice but did file a motion seeking appointment of new counsel, which 

the PCRA court denied. On October 13, 2015, the PCRA court dismissed 

Appellant's PCRA petition.3 

The instant, timely appeal followed. On December 29, 2015, the PCRA 

court ordered Appellant to file a concise statement of errors complained of 

on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) 

statement on January 15, 2016. On July 6, 2016, the PCRA court issued an 

opinion. See Pa.R.A.P. 1925(a) 

On appeal, Appellant raises the following questions for our review. 

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

3 In its October 13, 2015 order, the trial court did not address counsel's 

petition to withdraw. (See Order, 10/13/15, at unnumbered page 1). 

However, in its Rule 907 notice, the trial court specifically found that counsel 

had complied with the dictates of Turner /Finley and announced its 

intention to allow counsel to withdraw. (See Order, 9/04/15, at 

unnumbered page 1). Given this, in the interest of judicial economy we will 

regard as done what ought to have been done and deem the trial court's 

September 4, 2015 order as granting counsel's petition to withdraw. See 

Zitney v. Appalachian Timber Products, Inc., 72 A.3d 281, 285 (Pa. 

Super. 2013). 

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1. Whether the [PCRA] court erred for dismissing Appellant's 

[PCRA petition] based on counsel's [Turner /Finley] letter, 

when Appellant's claims had merit and the trial court failed to 

make an independent review of the record[,] which violated 

the mandates of [Turner /Finley]? 

2. Whether the [PCRA] court erred for dismissing Appellant's 

[PCRA petition] based on counsel's [Turner /Finley] letter, 

when Appellant's claim not only had merit but the [PCRA] 

court failed to conduct [an] evidentiary hearing to determine 

if Appellant's [guilty] plea was invalid and undermined by 

counsel's erroneous advice[ ?] 

(Appellant's Brief, at 5) (unnecessary capitalization omitted).4 

Appellant appeals from the denial of his first PCRA petition. We review 

the denial of a post- conviction petition to determine whether the record 

supports the PCRA court's findings and whether its order is otherwise free of 

legal error. See Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super. 

4 We direct Appellant's attention to Pa.R.A.P. 2119, which addresses the 

requirements for the argument section of appellate briefs and provides, in 

relevant part as follows: 

Rule 2119. Argument 

(a) General Rule. The argument shall be divided into 

as many parts as there are questions to be argued[.] 

Pa.R.A.P. 2119(a). "The Rules of Appellate Procedure state unequivocally 

that each question an appellant raises is to be supported by discussion and 

analysis of pertinent authority." Estate of Haiko v. McGinley, 799 A.2d 

155, 161 (Pa. Super. 2002). Here, Appellant's "Statement of Matters" lists 

two issues. (Appellant's Brief, at 5). However, the argument portion of his 

brief combines the issues in violation of Rule 2119. (See id. at 14 -18). 

Appellant's combination of issues presents a confusing format, but does not 

hamper appellate review, and we shall proceed with our discussion. 

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2011). To be eligible for relief pursuant to the PCRA, Appellant must 

establish, inter a /ia, that his conviction or sentence resulted from one or 

more of the enumerated errors or defects found in 42 Pa.C.S.A. § 

9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He must also establish that 

the issues raised in the PCRA petition have not been previously litigated or 

waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error "is waived if 

the petitioner could have raised it but failed to do so before trial, at trial, 

during unitary review, on appeal or in a prior state postconviction 

proceeding." 42 Pa.C.S.A. § 9544(b). Further, 

. . . a PCRA petitioner is not automatically entitled to an 

evidentiary hearing. We review the PCRA court's decision 

dismissing a petition without a hearing for an abuse of 

discretion. 

[T]he right to an evidentiary hearing on a post - conviction petition is not absolute. 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. 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. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations 

omitted). 

In the argument section of his brief, Appellant claims he received 

ineffective assistance of plea counsel because counsel gave him erroneous 

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advice that the trial court would only sentence him to a term of incarceration 

of not less than fifteen nor more than thirty years. (See Appellant's Brief, at 

17). Appellant also appears to contend that he was coerced into 

withdrawing his motion to withdraw his guilty plea because the 

Commonwealth threatened to charge him with murder of the first degree. 

(See Appellant's Brief, at 17). However, Appellant has waived these claims. 

Appellant did not include these claims in his statement of the questions 

involved. (See Appellant's Brief, at 8). The Rules of Appellate Procedure 

provide that issues to be resolved must be included in the statement of 

questions involved or "fairly suggested" by it. Pa.R.A.P. 2116(a). These 

issues are not included in the statement of questions involved, nor are they 

"fairly suggested" by it. Thus, we hold that Appellant has waived these 

claims. See Commonwealth v. Harris, 979 A.2d 387, 397 (Pa. Super. 

2009) (holding claim waived when not included in statement of questions 

involved). In any event, the claims lack merit 

"A criminal defendant has the right to effective counsel during a plea 

process as well as during trial." Commonwealth v. Rathfon, 899 A.2d 

365, 369 (Pa. Super. 2006) (citation omitted). Further, "[a]llegations 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. Hickman, 799 A.2d 

136, 141 (Pa. Super. 2002) (citation omitted). Also, "[w]here the defendant 

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enters his plea on the advice of counsel, the voluntariness of the plea 

depends upon whether counsel's advice was within the range of competence 

demanded of attorneys in criminal cases." Id. (internal quotation marks and 

citations omitted). 

We presume that counsel is effective, and Appellant bears the burden 

to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 

(Pa. 2012). The test for ineffective assistance of counsel is the same under 

both the Federal and Pennsylvania Constitutions. See Strickland v. 

Washington, 466 U.S. 668, 687 -88 (1984); Commonwealth v. Jones, 

815 A.2d 598, 611 (Pa. 2002). An appellant must demonstrate that: (1) his 

underlying claim is of arguable merit; (2) the particular course of conduct 

pursued by counsel did not have some reasonable basis designed to 

effectuate his interests; and (3) but for counsel's ineffectiveness, there is a 

reasonable probability that the outcome of the proceedings would have been 

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001), 

abrogated on other grounds, Commonwealth v. Grant, 813 A.2d 726 (Pa. 

2002). A failure to satisfy any prong of the test for ineffectiveness will 

require rejection of the claim. See Jones, supra at 611. Where, as here, 

Appellant pleaded guilty, in order to satisfy the prejudice requirement, he 

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." Rathfon, supra at 370 (citation omitted). Here, Appellant has not 

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shown that there is arguable merit to his claim that he received erroneous 

advice from counsel with respect to the prospective sentence. 

We have held that where the record clearly shows that the court 

conducted a thorough guilty plea colloquy and that the defendant 

understood his rights and the nature of the charges against him, the plea is 

voluntary. See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. 

Super. 2001). In examining whether the defendant understood the nature 

and consequences of his plea, we look to the totality of the circumstances. 

See id. At a minimum, the trial court must 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 offense 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? 

Id. (citation omitted); see also Pa.R.Crim.P. 590, Comment. 

Defense counsel or the attorney for the Commonwealth, as permitted 

by the court, may conduct this examination. See Pa.R.Crim.P. 590, 

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Comment. Moreover, the examination may consist of both a written 

colloquy that the defendant read, completed, and signed, and made a part of 

the record; and an on- the -record oral examination. See id. 

Appellant contends that he received erroneous advice from counsel 

that the trial court would sentence him to a term of incarceration of not less 

than fifteen nor more than thirty years. (See Appellant's Brief, at 17). 

However, the record does not support this assertion. 

At the plea hearing, the Commonwealth informed Appellant of the 

maximum possible for sentence for each offense, and Appellant agreed that 

he understood them. (See N.T. Guilty Plea Hearing, at 3 -5). The 

Commonwealth specifically stated that, under the negotiated plea 

agreement, the trial court would sentence Appellant to an aggregate term of 

incarceration of not less than twenty -five nor more than fifty years. (See 

id. at 7). Appellant agreed that he understood that. (See id.). Following 

sentencing, the trial court asked if the sentence was in accord with the 

negotiated plea, defense counsel said it was, and Appellant did not object to 

this statement. (See id. at 14 -15). 

On July 11, 2014, the trial court held a hearing on Appellant's motion 

to withdraw his guilty plea. At no point during that hearing did Appellant 

object to his sentence or indicate that plea counsel had misled him with 

respect to his sentence. (See N.T. Motion Hearing, at 2 -10). Further, there 

is nothing in the record which demonstrates that the Commonwealth coerced 

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Appellant into withdrawing his motion to withdraw his guilty plea. Rather, 

the Commonwealth specifically stated that it had "no objection" to Appellant 

withdrawing the guilty plea. (See id. at 2). Defense counsel then stated 

that he had explained to Appellant that if he withdrew his guilty plea, the 

Commonwealth would pursue a charge of murder of the first degree. (See 

id. at 3). When questioned, Appellant affirmatively stated that he wished to 

withdraw his motion because he had not previously understood that he could 

be facing charges of murder of the first or second degree. (See id. at 7). 

Thus, Appellant's claims that he received incorrect advice from counsel with 

respect to his sentence and that he was threatened and /or coerced into 

withdrawing his motion to withdraw his guilty plea lack merit. 

Moreover, the record demonstrates that, in the totality of the 

circumstances, Appellant's guilty plea was voluntary, knowing and 

intelligent. Appellant, after being informed of all his rights, stated that he 

wished to plead guilty. (See N.T. Guilty Plea Hearing, at 7). He 

acknowledged at the plea colloquy that he understood that he was giving up 

his right to trial by jury or by the court sitting as the finder of fact; 

relinquishing his right to file pre -trial motions; and knew the sentencing 

ranges. (See id. at 3 -7). He stated that no one forced or threatened him. 

(See id. at 8). Appellant agreed that he understood that the trial court 

could sentence him to consecutive sentences and that he would have limited 

appellate rights. (See id. at 4 -7). 

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The statements made during a plea colloquy bind a criminal defendant. 

See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 

2002). Thus, a defendant cannot assert grounds for withdrawing the plea 

that contradict statements made at that time. See Commonwealth v. 

Stork, 737 A.2d 789, 790 -91 (Pa. Super. 1999), appeal denied, 764 A.2d 

1068 (Pa. 2000). Further, "[t]he 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] decision to plead guilty be knowingly, 

voluntarily and intelligently made. ' Commonwealth v. Yager, 685 A.2d 

1000, 1004 (Pa. Super. 1996) (en banc), appeal denied, 701 A.2d 577 (Pa. 

1997) (citation omitted). Here, there is nothing on the record to support 

Appellant's contention that his plea was either coerced or invalid. See 

McCauley, supra at 922. Thus, his claim that he received ineffective 

assistance of plea counsel lacks merit. See Jones, supra at 611. 

Appellant also argues that the PCRA court erred in dismissing his 

petition without an evidentiary hearing. (See Appellant's Brief, at 5, 18). 

The Pennsylvania Rules of Criminal Procedure provide the PCRA court with 

the discretion to dismiss a PCRA petition without an evidentiary hearing if it 

is patently without merit. See Pa.R.Crim.P. 907. Because Appellant's 

ineffective assistance of counsel claims lack merit, the PCRA court properly 

found that he was not entitled to an evidentiary hearing. See Miller, supra 

at 992. 
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Accordingly, for the reasons discussed above, we affirm the PCRA 

court's dismissal of Appellant's PCRA petition without a hearing. 

Order affirmed. 

Judgment Entered. 

/ 

J seph D. Seletyn, 

Prothonotary 

Date: 10/24/2016 

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