J-S45033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAWN CHRISTOPHER MCSHANE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 134 EDA 2019

Appeal from the PCRA Order Entered December 11, 2018

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

No(s): CP-09-CR-0001661-2016

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

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 16, 2019

Shawn Christopher McShane (McShane) appeals from the order of the 

Court of Common Pleas of Bucks County (PCRA court) denying his petition 

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

9546, after a hearing. We affirm.

We take the following facts and procedural background from the PCRA 

court’s February 15, 2019 opinion and our independent review of the certified 

record. On June 6, 2018, McShane entered an open guilty plea to two counts 

of Robbery and one count each of Prohibited Possession of a Firearm and 

Aggravated Assault1in exchange for the Commonwealth’s agreement not to 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701(a)(1)(ii), 6105(a)(1), and 2702(a)(3), respectively.
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invoke the deadly weapon enhancement and to nol-pros twenty other charges 

against him. (See N.T. PCRA Hearing, 10/11/18, at 56, 58). The charges 

related to McShane’s armed robbery of two separate victims after luring each 

of them to specific locations for the purchase of a vehicle he listed on 

Craigslist. Shortly thereafter, the police located him at a bar near where the 

armed robberies happened by obtaining a “ping” for the cellphone number 

listed on the Craigslist ad without a warrant.2 (See id. at 37). McShane 

possessed the cellphone, money and identification at the time of his arrest. 

After police apprehended him and brought him to the Bristol Township Police 

station, he attacked an officer who was removing his handcuffs and attempted 

to escape, injuring the officer in the ensuing struggle.

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2 The Wiretap Act requires a probable cause showing to conduct a search for 

real-time cell site location (a “ping”). See 18 Pa.C.S. § 5773(a). However, 

under the Wiretap Act, when exigent circumstances exist, “the court may 

verbally authorize the disclosure of mobile communications tracking 

information,” with written authorization to follow within 72 hours of the court’s 

verbal authorization. 18 Pa.C.S. § 5773(a).

Here, after obtaining the “ping,” the Commonwealth filed a probable cause 

affidavit and received an order from the court authorizing the use of the 

evidence. (See N.T. PCRA Hearing, at 67-68). The court found that the 

Commonwealth had sufficient probable cause and exigent circumstances to 

justify the order. The order further stated that, had the court been contacted 

before the cellphone “ping,” it would have given the Commonwealth verbal 

authorization to obtain the information. (See id. at 68). After McShane’s 

arrest, the Commonwealth obtained a warrant for a search of the records of 

the cellphone number used in the Craigslist ad, which linked to McShane and 

the robbery victims. (See id. at 71-72).
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The trial court sentenced McShane to a term of incarceration of not less 

than twelve nor more than twenty-four years. Post-trial motions for 

reconsideration of sentence and direct appeals did not afford McShane relief.

On March 28, 2018, McShane filed pro se the instant PCRA petition and 

appointed counsel filed an amended petition on July 27, 2018, alleging 

ineffective assistance of plea counsel. The amended petition averred that plea 

counsel was ineffective because she failed to provide McShane with discovery 

that would have made him aware that the Commonwealth tracked his cell 

phone without first obtaining a warrant and for failing to file a motion to 

suppress evidence on this basis. (See Amended PCRA Petition, 7/27/18, at 5 

¶ 10) (page numbering provided).

The PCRA court held a hearing on McShane’s PCRA petition and after 

consideration of the testimony and evidence presented at the hearing, the 

court denied the PCRA petition. McShane timely appealed.3 He and the court 

have complied with Rule 1925. See Pa.R.A.P. 1925.

In considering an ineffective assistance of counsel claim:

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3 “This Court analyzes PCRA appeals in the light most favorable to the 

prevailing party at the PCRA level.” Commonwealth v. Rigg, 84 A.3d 1080, 

1084 (Pa. Super. 2014) (citation and internal quotation marks omitted). “Our 

review is limited to the findings of the PCRA court and the evidence of record 

and we do not disturb a PCRA court’s ruling if it is supported by evidence of 

record and is free of legal error.” Id. (citation and internal quotation marks 

omitted). “Similarly, we grant great deference to the factual findings of the 

PCRA court and will not disturb those findings unless they have no support in 

the record.” Id. (citation, brackets, and internal quotation marks omitted).
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Counsel is presumed effective, and a PCRA petitioner 

asserting otherwise bears the burden of proof. Specifically, the 

petitioner must prove by a preponderance of the evidence that (1) 

the underlying claim is of arguable merit; (2) counsel had no 

reasonable strategic basis in support of the action or inaction; and 

(3) the petitioner suffered prejudice, i.e., the outcome of the 

proceeding in question would have been different but for counsel’s 

error. A petitioner’s failure to prove any one of these three prongs 

is fatal to the claim.

Commonwealth v. Isaac, 205 A.3d 358, 362-63 (Pa. Super. 2019) (citations 

omitted).

The law does not require that an appellant be pleased with 

the results of the decision to enter a guilty plea; rather all that is 

required is that appellant’s decision to plead guilty be knowingly, 

voluntarily and intelligently made.

A defendant is bound by the statements made during the 

plea colloquy, and a defendant may not later offer reasons for 

withdrawing the plea that contradict statements made when he 

pled. Claims of counsel’s ineffectiveness in connection with a 

guilty plea will provide a basis for relief only if the ineffectiveness 

actually caused an involuntary or unknowing plea.

Commonwealth v. Brown, 48 A.2d 1275, 1277-78 (Pa. Super. 2012), 

appeal denied, 63 A.3d 773 (Pa. 2013) (citations, quotation marks, and 

brackets omitted). “[A] plea of guilty is unlawfully induced where the 

circumstances make it likely that the inducement caused the petitioner to 

plead guilty and the petitioner is innocent.” Commonwealth v. Rachak, 62 

A.3d 389, 394 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013) 

(citing 42 Pa.C.S.A. § 9543(a)(iii)).

In this case, during the guilty plea hearing, McShane confirmed that he 

was entering his plea voluntarily and he admitted that he committed the 
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crimes with which he was charged. (See N.T. Guilty Plea and Sentencing, 

6/06/16, at 3, 11). He also agreed that nobody made any threats or promises 

to force him to plead guilty, and he understood that he had a right to a trial 

and he would be giving up all associated trial and pre-trial rights if he pleaded 

guilty. (See id. at 3-6). He affirmed that he was satisfied with counsel’s 

representation and that counsel was “familiar with the evidence and issues in 

[his] case and [had] gone over them with [him].” (Id. at 4). The court 

inquired about the highest level of education McShane had received and 

confirmed that he was not taking any medication at the time of the hearing. 

(See id. at 15).

McShane also initialed and signed a written plea agreement that 

contained all of the information to which he testified at the hearing. (See id.

at 16; see also Written Guilty Plea, 6/06/16, at 1-8). For example, he 

confirmed that he could read, write and understand the English language. 

(See id. at 2). He affirmed that counsel had explained to him “all the things 

a person must have done to be guilty of the . . . crimes to which [he was] 

pleading guilty.” (Id. at 3). McShane indicated that he had sufficient time to 

speak with his attorney before he decided to plead guilty, and that he was 

satisfied with counsel’s representation. (See id. at 6).

Further, at the PCRA hearing, plea counsel testified that McShane 

communicated from the time of the preliminary hearing that he wanted to 

enter a guilty plea, in part because “the victims didn’t need any more of his, 
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quote, shit[.]” (N.T. PCRA Hearing, at 56). Counsel acknowledged that at the 

time of sentencing, she informed the court that “from early on in this case[, 

McShane] was remorseful and wanted to enter a guilty plea[.]” (Id. at 56-

57); (see id. at 65 (“After the preliminary hearing and prior to the guilty plea 

. . . [McShane] remained remorseful [for] his crimes[.]”)). She confirmed that 

prior to McShane entering his guilty plea, she met with him at the jail to review 

discovery and discuss possible suppression motions. (See id. at 63-64). This 

discovery included the court’s order filed after the Commonwealth had 

obtained the “ping” of McShane’s cellphone, which stated that, had it been 

contacted before the Commonwealth obtained this information, it would have 

verbally authorized it to do so because there was sufficient probable cause 

and exigency. (See id. at 68). While counsel discussed possible suppression 

of this cellphone “ping” and resulting arrest with McShane, she also advised 

him that all three victims were able to identify him and suppression of this 

information would not have resulted in a different trial outcome. (See id. at 

70-71). Counsel also confirmed that after McShane’s arrest, the 

Commonwealth was granted court orders to obtain records for the cellphone 

number used in this crime, which linked back to McShane, the Craigslist ad 

and the robbery victims, all of which was independent of the “ping.” (See id.

at 71-72). 

Based on the foregoing, the PCRA court found that:

Given [McShane’s] long-standing intent to plead, his plea 

counsel acted well within the range of competence expected of 
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criminal defense attorneys when she negotiated with the 

Commonwealth to nol-pros twenty of [McShane’s] charges in 

exchange for his . . . guilty plea[.] . . .

* * *

There is no indication in the record that [McShane] ever 

intended that this case conclude with anything other than a guilty 

plea. Thus, plea counsel was not ineffective for failing to file a 

Motion to Suppress with respect to the location information that 

was used to locate and arrest [him]. [McShane] suffered no 

prejudice as a result of plea counsel’s failure to file a Motion to 

Suppress given his marked intent to plead guilty, and he also fails 

to prove that such a Motion would have been successful. . . .

. . . [T]he Commonwealth attempted to comply with the probable 

cause requirement of the Wiretap Act by submitting an affidavit 

establishing probable cause after the search. The Honorable 

Wallace H. Bateman of this court agreed that the Commonwealth 

had, in fact, established sufficient probable cause to obtain the 

real-time tracking information on [McShane’s] phone. See id. 

Although the Commonwealth failed to obtain verbal authorization 

from the court before receiving the location of the cell phone from 

the carrier, suppression would not have been warranted on the 

basis of exigency and inevitable discovery anyway.[

4]

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4 “Exigent circumstances arise where the need for prompt police action is 

imperative, either because evidence is likely to be destroyed . . . or because 

there exists a threat of physical harm to police officers or other innocent 

individuals.” Commonwealth v. Copeland, 955 A.2d 396, 400 (Pa. Super. 

2008), appeal denied, 762 A.2d 1194 (Pa. 2008) (citation omitted). Here, 

McShane arranged two armed robberies within hours of each other by using a 

Craigslist ad for a car sale that listed a cellphone number for interested buyers 

to call. The ad remained active after the second robbery and the police 

prevented additional innocent individuals from harm by locating the cellphone 

and the individual using it.

Under the inevitable discovery rule, “if the prosecution can establish by a

preponderance of the evidence that illegally obtained evidence ultimately or 

inevitably would have been discovered by lawful means, the evidence is

admissible.” Commonwealth v. Gatlos, 76 A.3d 44, 60 n.13 (Pa. Super. 

2013) (citation omitted). Here, after McShane’s arrest, the Commonwealth 
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* * *

Moreover, plea counsel testified that evidence existed which 

would have led to [McShane’s] arrest even if police had not 

contacted the cell phone carrier. “[McShane] had posted an ad 

on Craigslist and he had put his phone number and I believe some 

other identifying information on Craigslist when he posted the ad 

to sell the car. The victims then contacted him on that cellphone 

through that number, and that’s how the meeting was arranged. 

[After the police arrested McShane, they obtained a warrant for 

these cellphone records, which linked McShane, the cellphone, 

and the victims.] The victims obviously saw his face and so they 

could identify him.” (N.T. PCRA Hearing, at 39). . . . Therefore, 

plea counsel cannot be deemed ineffective for her failure to pursue 

suppression in this case especially given [McShane’s] desire to 

plead guilty and the unlikelihood of success on a Motion to 

Suppress.

In addition, [McShane’s] contention that he did not review 

discovery until after he entered his plea is plainly contradicted by 

plea counsel’s testimony in this case.

(PCRA Court Opinion, 2/15/19, at 9-13) (some citation formatting provided).

We agree with the PCRA court. McShane’s argument that he 

involuntarily pleaded guilty because of his counsel’s ineffective representation 

is belied by his own statements made during the guilty plea hearing and in 

the written guilty plea statement, which he cannot now contradict. See 

Brown, supra at 1277. Additionally, there is no evidence that an 

“inducement caused [McShane] to plead guilty and [he] is innocent[]” where 

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obtained a warrant for the records of the cellphone number listed in the 

Craigslist ad, which resulted in the lawful discovery that the cellphone was 

McShane’s and that the victims had contacted him on it.
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the record reflects that McShane was remorseful and always intended to plead 

guilty, and counsel provided him with the subject discovery and discussed the 

possibility of a motion to suppress with him before he pleaded guilty. Rachak, 

supra at 394. Further, the outcome of the proceeding would not have been 

any different if plea counsel did file a motion to suppress where there was 

other evidence, independent of the “ping” that would have established 

McShane’s guilt. Therefore, McShane’s claim lacks merit because he has failed 

to establish that his underlying claim has arguable merit, that plea counsel’s 

actions were unreasonable, or that he suffered prejudice from them. See 

Isaac, supra at 362-63. Accordingly, we affirm the decision of the PCRA 

court.5

Order affirmed.

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5 McShane also claims that the court erred by not providing him with notice 

before denying his PCRA petition. However, because the court held a hearing 

on this matter, no such notice was required. See Pa.R.Crim.P. 908; compare

Pa.R.Crim.P. 907 (Where court can dispose of PCRA petition without a hearing, 

the judge shall give notice to the parties of the intention to dismiss the petition 

and shall state in the notice the reasons for the dismissal.).

Neither are we legally persuaded by McShane’s reliance on the recently 

decided cases, Carpenter v. United States, 138 S.Ct. 2206 (U.S. 2018)

(plurality decision), and Commonwealth v. Fulton, 179 A.3d 475 (Pa. 

2018), for the probable cause required for a cellphone search. (See 

McShane’s Brief, at 21-24). As acknowledged by McShane, both of these 

cases were decided after his arrest and prosecution. (See McShane’s Brief, 

at 21-24). Plea counsel cannot be found ineffective for failing to anticipate 

changes in the law. See Commonwealth v. Hughes, 865 A.2d 761, 782 

n.19 (Pa. 2009).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/16/19