J-A22029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD EUGENE GROSSO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 69 WDA 2022

Appeal from the PCRA Order Entered April 5, 2022

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0001568-2019

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED: OCTOBER 13, 2022

Appellant, Richard Eugene Grosso, appeals from the order denying relief

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46, entered 

by the Court of Common Pleas of Erie County (PCRA Court) on April 5, 2022.

1

 

Appellant challenges the validity of his guilty plea and raises related claims of 

prosecutorial misconduct and ineffective assistance of counsel. He 

additionally asserts that his counsel was ineffective for failing to preserve a 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellant purported to appeal from the PCRA Court’s December 20, 2021 

Opinion. However, the appeal lies properly from the order denying relief filed 

on April 5, 2022. While technically premature, we deem his notice of appeal 

timely filed and have changed the caption accordingly. See Commonwealth 

v. McGarry, 172 A.3d 60, 63 n.1 (Pa. Super. 2017) (deeming appeal proper

despite premature notice of appeal where the PCRA court subsequently 

entered a final order dismissing the PCRA petition); Pa.R.A.P. 905(a)(5).
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sentencing claim. Upon review, we affirm the PCRA court’s order denying 

relief.

On March 15, 2019, Appellant attempted to escape from SCI-Albion by 

scaling fences and moving between prison yards before guards apprehended 

him in an unauthorized area of the prison.

2

 On April 8, 2019, the 

Commonwealth filed a Criminal Complaint charging him with Criminal Attempt 

- Escape.

3

 Public defender Alan Natalie, Esq., entered his appearance on 

behalf of Appellant prior to the June 4, 2019 preliminary hearing. On July 24, 

2019, the Commonwealth filed a Criminal Information charging Appellant with 

Escape, but not Attempted Escape, stating that Appellant “did attempt to 

escape from Albion State Correctional Institute . . . ; thereby [Appellant] did 

commit the crime of Escape[.]”

4 The complaint and the information 

additionally charged Appellant with Disorderly Conduct5 because his conduct 

forced the prison “to go into lock down causing disruption to the normal 

routine of the facility.”6 

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2 Appellant claimed that he changed his mind about escaping prior to his 

apprehension. Appellant’s Br. at 4.

3 18 Pa.C.S. §§ 901(a), 5121(a).

4 Criminal Information, 7/24/19. The Commonwealth acknowledged that the 

change in the crimes charged resulted from a “clerical error.” Com. Resp. to 

Suppl. PCRA Pet., 12/17/20, at 3. 

5 18 Pa.C.S. § 5503(a)(4).

6 Criminal Information.
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On February 28, 2020, counsel filed a motion to withdraw, citing a 

breakdown in the attorney-client relationship based upon Appellant’s 

numerous pro se filings, which included allegations of counsel ineffectiveness. 

The trial court granted counsel’s request to withdraw on March 2, 2020, and 

Appellant waived his right to counsel on March 5, 2020. 

On March 11, 2020, the court held a plea hearing at which the Assistant 

District Attorney (ADA) reviewed Appellant’s waiver of his right to counsel and 

clarified, among other things, that “if any errors or rule violations occur and 

you don’t object to them at the right time, you’ll lose your right to object 

permanently.”

7

 Appellant reiterated that he voluntarily waived his right to 

counsel. The ADA then described the charges as set forth in the Criminal 

Information, stating that as a result of his “attempt to escape,” he committed 

“the crime of [E]scape.”

8

 

During the plea colloquy, the trial court asked Appellant if he understood 

the charges. When Appellant indicated that he was being charged with 

Attempted Escape, the court corrected him explaining that Escape “is the 

official term[.]”

9

 At the conclusion of the colloquy, the court accepted

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7 N.T. Plea Hr’g, 3/11/20, at 8.

8 Id. at 9-10.

9 Id. at 12.
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Appellant’s plea to Escape and Disorderly Conduct, finding it “knowing and 

voluntary.”10 

Subsequently, the trial court reappointed Attorney Natalie upon 

Appellant’s request for sentencing counsel. The court sentenced Appellant to 

27 to 54 months of incarceration for Escape and one year of probation on the 

Disorderly Conduct charge, to be served consecutively. The court stated that 

the sentence imposed for Escape was “at the lowest end of the standard 

range.”11 

Attorney Natalie filed a notice of appeal in this Court on behalf of 

Appellant and a “Statement of Intent to File an Anders/McClendon Brief, 

pursuant to Pa.R.[A.]P. 1925(c)(4), in Lieu of a Statement of Matters 

Complained of on Appeal” (Anders12 Statement). Counsel indicated that 

Appellant maintained that he should have been prosecuted for Attempted 

Escape rather than Escape because he “did not achieve full removal” from the 

prison.

13 Counsel additionally acknowledged that Appellant sought to 

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10 Id. at 13-14. 

11 N.T. Sentencing, 6/18/20, at 15.

12 An Anders Brief “accompanies court-appointed appellate counsel's petition 

to withdraw” and, inter alia, must “state counsel’s reasons for concluding that 

the appeal is frivolous.” Commonwealth v. Santiago, 978 A.2d 349, 361 

(Pa. 2009) (referencing Anders v. California, 386 U.S. 738 (1967)).

13 Anders Statement, 7/8/20, at 2.
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challenge the consecutive aspect of his probationary sentence for Disorderly 

Conduct.

In its Pa.R.A.P. 1925(a) Opinion, the trial court opined that Appellant’s 

allegations of error related to his guilty plea were “belied by the record,” given 

that Appellant entered his plea “knowingly, voluntarily, and intelligently.”14 

The trial court additionally rejected Appellant’s challenge to the consecutive 

nature of his Disorderly Conduct sentence, which the court deemed to be

within the discretion of the court. Thereafter, Appellant filed a document pro 

se seeking to discontinue his appeal, and this Court issued an order to that 

effect on October 7, 2020. 

Within weeks, Appellant filed a pro se PCRA petition on October 19, 

2020. Following his appointment as PCRA counsel, Attorney William 

Hathaway, Esq., filed a supplemental PCRA petition setting forth Appellant’s 

challenge to the “integrity of the plea proceeding” due to the confusion 

regarding the charges.

15

 The Supplemental PCRA Petition additionally alleged

that the ADA committed prosecutorial misconduct in allowing the charge of 

Escape to proceed when the facts supported only Attempted Escape and that 

Attorney Natalie provided ineffective assistance of counsel by failing to file a 

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14 Trial Ct. Op., 9/1/20, at 4 (unpaginated).

15 Suppl. Pet. for PCRA Relief, 11/19/20, at 1 (unpaginated).
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petition to withdraw Appellant’s plea prior to sentencing.

16

 It also asserted a 

claim of ineffective assistance of counsel based upon counsel’s alleged failure 

to challenge the discretionary aspects of Appellant’s sentence for Disorderly 

Conduct. 

In response to Appellant’s supplemental petition, the Commonwealth 

conceded the arguable merit of Appellant’s ineffectiveness claim related to his 

plea given Appellant’s “facially valid concern for confusion and 

misunderstanding,” regarding the “precise crime to which he entered a guilty 

plea.”17 The Commonwealth emphasized, however, that Appellant could not 

demonstrate ineffective assistance of counsel because Appellant represented 

himself at the plea hearing. The Commonwealth further noted that Attorney 

Natalie was “not ineffective in failing to go against [Appellant’s] own willful 

acts or failing to override [Appellant’s] own missteps at his guilty plea,” and 

rejected claims of prejudice resulting from the plea given that Attempted 

Escape and Escape are both felonies of the third degree that resulted in the 

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16 The Supplemental Petition for PCRA Relief vaguely faulted counsel for 

“unduly relinquish[ing] the opportunity to challenge the factual and legal 

sufficiency of [the escape] charge.” Suppl. Pet. for PCRA Relief, at 2. His 

post-argument brief in support elaborated that Attorney Natalie should have 

petitioned to withdraw the plea, prior to sentencing, based on the absence of 

supporting facts. Suppl. Br. in Support of Pet. for PCRA Relief, 10/5/21, at 5.

17 Com. Resp. to Suppl. PCRA Pet., at 8.
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same offense gravity score for sentencing purposes.18 It additionally

countered Appellant’s challenge to his sentence for Disorderly Conduct by 

asserting that the sentence was within the discretion of the trial court.

Following an evidentiary hearing, the PCRA Court issued an opinion in 

support of denying PCRA relief on December 20, 2021, and Appellant filed a 

notice of appeal on January 9, 2022.

19

 The record does not indicate that the 

PCRA Court requested Appellant to file a Pa.R.A.P. 1925(b) Statement. On 

January 14, 2022, the PCRA Court entered an order indicating that it would 

not file an additional opinion, relying instead on its prior orders and opinions. 

Appellant raises the following issues on appeal:

A. Whether the appellant’s entry of a guilty plea to escape was 

invalid in that the charging documents and all relevant notice 

afforded to the appellant referenced that he was charged with 

attempted escape? 

B. Whether the guilty plea was rendered void due to the combined 

prosecutorial misconduct and ineffective assistance of counsel in 

permitting the appellant to enter a guilty plea to a criminal offense 

that he was not charged with and then failing to seek to withdraw 

that ill-gotten plea after reassuming legal representation?

C. Whether the appellant was afforded ineffective assistance of 

counsel in that the conduct of the appellant factually and legally 

supported an attempted escape or arguably a mere administrative 

violation of the institution given that he was detained within the 

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18 Id. at 9 (citing 204 Pa. Code § 303.3(c)(2) (“Convictions for attempt, 

solicitation, or conspiracy to commit any offense which is not a Felony 1 

offense, receive the Offense Gravity Score of the offense attempted, solicited, 

or which was the object of the conspiracy.”)).

19 As noted supra, the PCRA Court filed an order on April 5, 2022, denying 

PCRA relief for the reasons set forth in its December 20, 2021 Opinion.
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confines of the institution in an unauthorized area without any 

substantial step undertaken toward escaping?

D. Whether the appellant was afforded ineffective assistance of 

counsel in that defense counsel failed to preserve and present a 

sentencing claim on his behalf that the conviction for disorderly 

conduct should have merged for purposes of sentencing? 

Appellant’s Br. at 2.

A.

When reviewing a decision denying PCRA relief, we are limited to 

determining “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. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (citation 

omitted). While the PCRA court’s credibility determinations are binding when 

supported by the record, we review the court’s legal conclusions utilizing a de 

novo standard of review. Id.

A petitioner may obtain PCRA relief by pleading and proving by a 

preponderance of evidence “[t]hat the conviction or sentence resulted 

from . . . [i]neffective assistance of 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.” 42 Pa.C.S. 

§ 9543(a)(2)(ii). Counsel is presumed effective, and a petitioner has the 

burden to overcome that presumption by establishing that “(1) his underlying 

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

or inaction; and (3) the petitioner suffered actual prejudice as a result.” 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “To demonstrate 
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prejudice, the petitioner must show that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceedings would 

have been different.” Id. at 312 (citation and internal quotation marks 

omitted). Notably, a defendant who waives his right to counsel and proceeds 

pro se “cannot later seek to revive defaulted trial claims by alleging his own 

ineffectiveness[.]” Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 

2014).

When a defendant pleads guilty, it is well-settled that that decision 

results in the waiver of all defenses other than those challenging the 

jurisdiction of the court, the legality of the sentence, or the validity of the plea. 

See Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). In attempting 

to challenge a guilty plea, a defendant is “bound by the statements” he made 

under oath during the plea colloquy and “may not later assert grounds for 

withdrawing the plea which contradict [those] statements[.]” 

Commonwealth v. Pier, 182 A.3d 476, 480 (Pa. Super. 2018) (citation 

omitted). 

Under the PCRA, a petitioner may obtain relief by proving that his guilty 

plea was “unlawfully induced where the circumstances make it likely that the 

inducement caused the petitioner to plead guilty and the petitioner is 

innocent.” 42 Pa.C.S. § 9543(a)(2)(iii). When claiming ineffectiveness of 

counsel “in connection with the entry of a guilty plea[,]” a defendant has the 

burden of demonstrating that the alleged ineffectiveness “caused the 
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defendant to enter an involuntary or unknowing plea.” Pier, 182 A.3d at 478

(citation omitted). 

Importantly, the PCRA does not countenance claims that have “been 

previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). An issue is deemed 

waived under the PCRA “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.” Id. at § 9544(b). Thus, claims of prosecutorial 

misconduct that could have been raised on direct appeal will be deemed 

waived for purposes of the PCRA. See Commonwealth v. Wholaver, 177 

A.3d 136, 174 (Pa. 2018).

Moreover, we will deem a preserved issue waived if the Appellant’s brief

does not provide citation to relevant legal authority or meaningful discussion 

of the issue such that it impedes “our ability to conduct meaningful appellate 

review[.]” In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012); see Pa.R.A.P. 

2101 (instructing that an appeal “may be quashed or dismissed” for failure to 

conform to the rules); Pa.R.A.P. 2119(a) (requiring that each point in an 

argument be “followed by such discussion and citation of authorities as are 

deemed pertinent”).

B.

Appellant lists three questions for our review relating to his plea but 

addresses them in a single argument section raising two primary issues: (1) 

prosecutorial misconduct for charging him with Escape when the underlying 

circumstances supported only an Attempted Escape charge; and (2) 
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sentencing counsel ineffectiveness for counsel’s failure to seek to withdraw 

Appellant’s guilty plea before sentencing. First, Appellant alleges prosecutorial 

misconduct, asserting that the ADA’s decision to charge him with Escape

involved “an abuse of discretion and authority and constituted overcharging 

given the underlying circumstances of an interrupted effort at escape.” 

Appellant’s Br. at 6. He also faults the Commonwealth for misleading him into 

believing that he was pleading to Attempted Escape rather than Escape. 

Second and relatedly, Appellant contends that his counsel, upon 

reappointment, should have filed to withdraw his plea prior to sentencing upon 

recognizing that the facts of the case did not support the charge of Escape. 

Notably, in asserting his ineffectiveness claim, Appellant neither cites nor

addresses the requisite three elements of ineffective assistance of counsel. 

See Spotz, 84 A.3d at 311. Nevertheless, Appellant asks the Court to “strike 

the entry of the guilty plea and grant leave to withdraw the ill-gotten guilty 

plea to [E]scape or to outright issue an arrest of judgment as to that criminal 

count.” Appellant’s Br. at 8.

In its December 20, 2021 Opinion, the PCRA Court emphasized that 

Appellant waived his challenge to the validity of the plea when he withdrew 

his direct appeal despite counsel’s attempt to preserve the issue in the Anders

Statement.

20 PCRA Ct. Op., 12/20/21, at 8. The PCRA court further reasoned 

____________________________________________

20 The PCRA court additionally deemed Appellant’s challenge to the plea 

meritless, opining that his plea was knowingly, voluntarily, and intelligently 

made. PCRA Ct. Op. at 8-9.
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that Appellant cannot claim counsel ineffectiveness relating to the plea when 

he waived his right to counsel for the plea proceeding. Id. at 10. Similarly, 

the court rejected Appellant’s prosecutorial misconduct claim, deeming 

Appellant bound by his statements at the plea hearing expressing his 

understanding of the charges and his plea. Id. at 10-11. Finally, the court 

dismissed Appellant’s allegation that appellate counsel was ineffective for 

failing to raise claims related to the plea by emphasizing that counsel 

challenged the plea in the Anders Statement. Id. at 10. The court, however,

did not specifically address Appellant’s claim that counsel should have sought 

to withdraw Appellant’s guilty plea when he was reinstated as counsel prior to 

sentencing. 

After careful review, we affirm the PCRA court’s denial of PCRA relief in 

regard to Appellant’s issues related to his guilty plea. We conclude that

Appellant waived his challenge to the validity of his plea, as well as claims of

prosecutorial misconduct, because these issues could have been raised on 

direct appeal. 42 Pa.C.S. § 9544(b). Indeed, counsel attempted to preserve 

a challenge to his plea based upon the distinction between Escape and 

Attempted Escape in the Anders Statement, which was rendered moot by 

Appellant’s withdrawal of his direct appeal. 

We additionally deem waived Appellant’s claims of counsel 

ineffectiveness for failure to seek withdrawal of the plea because he neither 

cites nor provides meaningful analysis of the necessary elements of counsel 

ineffectiveness claims: arguable merit, lack of a reasonable basis, and
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prejudice. Spotz, 84 A.3d at 311.

21

 Accordingly, as Appellant failed to plead 

and prove counsel’s ineffectiveness by a preponderance of the evidence, we 

affirm the PCRA court’s denial of PCRA relief on these claims. See 42 Pa.C.S. 

§ 9543(a)(2)(ii).

C.

Finally, in a single paragraph, Appellant contends in his fourth issue that 

his trial counsel was ineffective for failing to preserve his claim that his 

convictions for Disorderly Conduct and Escape should have merged for 

purposes of sentencing, alleging that Disorderly Conduct is a lesser included 

offense of Escape. Appellant’s Br. at 11-12. Appellant does not provide any 

analysis as to why the charges should merge. 

In its December 20, 2021 Opinion, the PCRA Court dismissed as waived 

Appellant’s claim that his trial counsel was ineffective for failing to challenge 

his sentence for Disorderly Conduct. The court interpreted Appellant’s claim 

as a challenge to the discretionary aspects of his sentence. As with the plea 

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21 Moreover, we agree with the PCRA court’s conclusion that any claims of 

ineffective assistance of counsel relating to Appellant’s entry of his plea are 

meritless, given that Appellant waived his right to counsel and represented 

himself at the plea hearing. 

In regard to his plea withdrawal claim, even if Appellant could prove that 

(1) his ineffectiveness claim has arguable merit because the trial court might 

have granted withdrawal given the confusion in the crimes charged and (2) 

counsel did not have a reasonable basis for not seeking withdrawal, Appellant 

fails to refute the Commonwealth’s argument that the substitution of Escape 

for Attempted Escape did not prejudice him given that he would have been 

subject to the same offense gravity score for sentencing purposes, pursuant 

to 204 Pa. Code § 303.3. See Com. Resp. to Suppl. PCRA Pet., at 9.
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claims, the court observed that Appellant’s counsel had preserved this claim 

in his Anders Statement, which Appellant undermined when he withdrew his 

direct appeal. 

We agree with the PCRA Court that Appellant waived his challenge to

his Disorderly Conduct sentence when he withdrew his direct appeal.

22

 

Accordingly, we affirm the PCRA Court’s denial of relief on this issue. See 42 

Pa.C.S. § 9543(a)(3) (providing that PCRA relief is only available on issues 

that have “not been previously litigated or waived”).

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/13/2022

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22 Moreover, to the extent Appellant’s claim sounds in merger, his claim fails 

on the merits because the statutory elements of Disorderly Conduct, 18 

Pa.C.S. § 5503(a)(4), are not “included in the statutory elements” of Escape, 

id. § 5121(a), for purposes of merger. 42 Pa.C.S. § 9765.