J-S20030-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

JAMES EDWARD CARTER, JR., 

 Appellant No. 1651 WDA 2014 

Appeal from the PCRA Order Entered September 3, 2014 

In the Court of Common Pleas of Beaver County 

Criminal Division at No(s): CP-04-CR-0000077-2012 

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ. 

MEMORANDUM BY SHOGAN, J.: FILED MAY 22, 2015 

Appellant, James Edward Carter, Jr., appeals from the order entered 

September 3, 2014, by the Court of Common Pleas of Beaver County, which 

denied his petitions1 filed pursuant to the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm. 

The PCRA court aptly summarized facts of the underlying criminal case 

and the procedural history, as follows: 

The above-captioned matter arises out of a series of 

controlled drug transactions arranged by the Pennsylvania Office 

of the Attorney General. On August 6, 2010, Agent Ronald A. 

Pate of the Attorney General’s Office provided $1,500.00 to a 

confidential informant for the purpose of purchasing one pound 

of marijuana from Defendant James Edward Carter, Jr. 

(hereinafter, “Defendant”). Later that day, while agents of the 

____________________________________________ 

1

 Appellant’s pro se PCRA petition was incorporated by reference into the 

amended petition filed by appointed counsel. 
J-S20030-15 

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Attorney General’s Office watched, the informant provided the 

$1,500.00 to Defendant. At approximately 4:01 p.m., 

Defendant delivered to the informant a large zip-loc bag 

containing approximately one pound of green vegetable matter. 

The substance inside the bag was sent to the Greensburg Crime 

Lab for testing, and the test results revealed that the substance 

was 429 grams of marijuana. 

On August 16, 2010, the informant was supplied with

$3,200 for the purpose of purchasing cocaine from Defendant. 

Later that day, while agents watched and positively identified 

Defendant, the informant provided the $3,200 to Defendant. On 

August 30, 2010 at 1:32 p.m., Defendant delivered a baggie 

containing a light-colored powder to the informant by placing it 

in a sock by a stop sign and instructing the informant to pick it 

up. The baggie containing the powder was subsequently sent to 

the DEA Northeast Crime Lab for testing, and the test results 

revealed that the powder weighed 146.9 grams and contained 

cocaine. 

On August 9, 2011, Agent Pate from the Pennsylvania

Attorney General’s Office and Detective Todd Naylor filed a 

criminal complaint charging Defendant with four counts of 

possession with intent to deliver under 35 P.S. § 780-

113(a)(30), two counts of possession of a controlled substance 

under 35 P.S. § 780-113(a)(16), and one count of theft by 

deception under 18 Pa.C.S.A. § 3922(a)(1). Defendant was 

arrested shortly thereafter. On January 12, 2012, Defendant 

waived his right to a preliminary hearing. On February 13, 

2012, the Commonwealth filed an Information charging 

Defendant with two counts of possession with intent to deliver, 

two counts of possession, and one count of theft by deception. 

After several continuances of Defendant’s trial, Defendant 

and his attorney, Mr. Louis Emmi, completed the process of 

selecting a jury. On March 5, 2013, before the jury was sworn, 

Defendant and the Commonwealth reached an agreement in 

which Defendant pled guilty to two counts of possession with 

intent to deliver. In exchange, the Commonwealth reduced the 

weight from 146.9 grams of cocaine to 49 grams, waived the 

mandatory minimum sentence, and Defendant was not required 

to report for execution of the sentence for a period of one 

month. Defendant signed an A Information, pleading guilty to 

the amended charges under the agreement and also signed a 

waiver of arraignment. In accordance with the plea agreement, 
J-S20030-15 

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Defendant was sentenced on the same date to a term of 

imprisonment of not less than two and one-half years nor more 

than five years. The Sentence Order stated that, pursuant to 

Defendant’s plea agreement, execution of the sentence was 

deferred to April 4, 2013 at 9:00 a.m., when Defendant was to 

report to the Beaver County Jail to begin serving his sentence. 

On April 4, 2013, Defendant failed to appear at the Beaver 

County Jail as required. As a result, a bench warrant for 

Defendant’s arrest was issued on April 5, 2013. Defendant was 

subsequently arrested and incarcerated on August 4, 2013. 

On November 8, 2013, Defendant filed a pro se Motion for 

Post Conviction Collateral Relief in which he claims that his 

sentence was improperly calculated, that the “evidence is more 

than questionable[,]” that his counsel was ineffective, and that 

the “evidence [was] not at trial when [Defendant was] coerced 

into a plea bargain “‘deal.’” Pro se PCRA Pet., at 4. As this was 

Defendant’s first PCRA petition in this matter, the Court 

appointed the Beaver County Public Defender to represent 

Defendant in these proceedings. On March 14, 2014, Defendant, 

through counsel, filed an Amended Petition for Post Conviction 

Relief. In the Amended Petition, Defendant incorporates his pro 

se PCRA petition by reference, and he averred that his March 5, 

2013 guilty plea was not knowing, intelligent, and voluntary 

because he was coerced by his counsel into accepting a plea 

agreement he did not entirely understand or want. As relief, 

Defendant requests a new trial, an evidentiary hearing, or 

modification of his sentence. On April 22, 2014, the 

Commonwealth filed an Answer to Defendant’s Post Conviction 

Relief Petition in which the Commonwealth asserts that 

Defendant’s plea colloquy demonstrates that he understood the 

plea agreement and was not coerced into accepting it. The 

Answer also contains a New Matter in which the Commonwealth 

claims that Defendant failed to comply with the mandates of 42 

Pa.C.S.A. § 9545(d) and, therefore, is not entitled to a hearing 

or any relief. 

Despite the Commonwealth’s claim in its New Matter, the 

Court held a hearing in this matter on June 9, 2014. During the 

hearing, Defendant was the only witness that was available to 

testify. After Defendant testified, the Court issued an Order 

continuing the PCRA hearing to September 3, 2014. The parties 

were directed to ensure that Defendant’s prior counsel, Louis 

Emmi, Esquire, and the Assistant District Attorney that 

represented the Commonwealth during Defendant’s guilty plea, 
J-S20030-15 

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Ronald DiGiorno, appear at the hearing. On September 3, 2014, 

the Court resumed Defendant’s PCRA hearing, and heard 

testimony from Attorney Emmi, who testified that Defendant 

admitted his guilt to him and that he entered a knowing, 

intelligent, and voluntary plea in order to avoid a greater 

sentence. 

The Court entered an Order denying Defendant’s PCRA

petitions on September 4, 2014. On September 5, 2014, 

Defendant attempted to file pro se a Post-Sentence Motion to 

reverse his conviction.1 A Notice of Appeal was then filed on 

October 2, 2014. On October 6, 2014, Defendant was directed 

to file a 1925(b) Concise Statement of Matters Complained of on 

Appeal. Defendant moved for an extension of time in which to 

file his Concise Statement, and this was granted by the Court on 

October 27, 2014. On November 7, 2014, Defendant filed his 

Concise Statement. 

1 The Motion was disregarded by the Court as an 

attempt to have hybrid representation when 

Defendant was already represented by counsel. 

Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d 

282, 293 (2010) (where “appellant was represented 

by counsel on appeal,” “his pro se Rule 1925(b) 

statement was a legal nullity.”); Commonwealth v. 

Ellis, 534 Pa. 176, 626 A.2d 1137, 1139, 1141 

(1993) (“[T]here is no constitutional right to hybrid 

representation either at trial or on appeal. . . . [A 

defendant may not] confuse and overburden the 

court by his own pro se filings of briefs at the same 

time his counsel is filing briefs on his behalf.”).

PCRA Court Opinion, 11/19/14, at 1–4. 

 Appellant raises two issues for review: 

1. The Appellant argues that the Court erred in denying his 

PCRA Petition alleging ineffective assistance of counsel at the 

time of the defendant’s plea based upon the Defendant feeling 

coerced and pressured into pleading guilty. 

2. The Appellant argues that the Court erred in denying his 

PCRA Petition alleging ineffective assistance of counsel because 

counsel failed to explain by way of colloquy to the Appellant that 
J-S20030-15 

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he was entering a plea to amended information and would be 

sentenced to the amended information presented by the 

Commonwealth. 

Appellant’s Brief at 5. 

When reviewing an order denying post-conviction relief, the standard 

of review is limited to whether the record supports the PCRA court’s 

determination and whether that decision is free of legal error. The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Lawson, 90 A.3d 1, 

4 (Pa. Super. 2014). 

Both of Appellant’s issues allege that counsel’s ineffectiveness caused 

him to enter a plea that was not knowing, intelligent, and voluntary. See 

Commonwealth v. Fears, 86 A.3d 795, 806–807 (Pa. 2014) (quoting 

Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999) (allegations of 

ineffectiveness in connection with the entry of guilty plea will serve as basis 

for relief if ineffectiveness caused appellant to enter involuntary or 

unknowing plea)). To allege a cognizable ineffectiveness claim under the 

PCRA, Appellant must demonstrate: 

(1) that the underlying claim is of arguable merit; (2) that 

counsel’s course of conduct was without a reasonable basis 

designed to effectuate his client’s interest; and (3) that he was 

prejudiced by counsel’s ineffectiveness, i.e., there is a 

reasonable probability that but for the act or omission in 

question the outcome of the proceedings would have been 

different. 
J-S20030-15 

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

Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001) (citations 

omitted)). 

We have reviewed the briefs of the parties, the relevant law, the 

certified record before us on appeal, and the thorough opinion of the PCRA 

court dated November 19, 2014. We conclude that each ineffectiveness 

claim raised by Appellant lacks merit and the PCRA court’s well-crafted 

opinion adequately addresses Appellant’s claims on appeal. Accordingly, we 

affirm on the basis of the PCRA court’s opinion and adopt its reasoning as 

our own. The parties are directed to attach a copy of that opinion in the 

event of further proceedings in this matter. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 5/22/2015 

 
purchasing cocaine from Defendant. Later that day, while agents watched and positively 

On August 16, 2010, the informant was supplied with $3,200 for the purpose of 

and the test results revealed that the substance was 429 grams of marijuana. 

vegetable matter. The substance inside the bag was sent to the Greensburg Crime Lab for testing, 

delivered to the informant a large zip-loc bag containing approximately one pound of green 

informant provided the $1,500.00 to Defendant. At approximately 4:01 p.rn., Defendant 

"Defendant"). Later that day, while agents of the Attorney General's Office watched, the 

of purchasing one _pound o_f marijuana from Defendant James Edward Carter, Jr. (hereinafter, 

of the Attorney General's Office provided $1,500.00 to a confidential informant for the purpose 

by the Pennsylvania Office of the Attorney General. On August 6, 2010, Agent Ronald A. Pate 

The above-captioned matter arises out of a series of controlled drug transactions arranged 

FACTS AND PROCEDURAL HISTORY 

Edward Carter, Jr. For the reasons stated below, Defendant's petitions are denied. 

under the Post Conviction Relief Act (hereinafter, "PCRA") filed on behalf of Defendant James 

Before this Court for disposition are the petitions for post-conviction collateral relief 

Tesla, J. November 1i_, 2014 

RULE 1925(a) OPINION · 

Defendant. 

JAMES EDWARD CARTER, JR., 

No. 77 of2012 

vs. 

COMMONWEALTH OF PENNSYLVANIA, 

IN TijE COURT OF COMMON PLEAS OF BEA VER COUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION - LAW 

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2 

more than five years. The Sentence Order stated that, pursuant to Defendant's plea agreement, 

sentenced on the same date to a term of imprisonment of not less than two and one-half years nor 

and also signed a waiver of arraignment. In accordance with the plea agreement, Defendant was 

Defendant signed an A Information, pleading guilty to the amended charges under the agreement 

Defendant was not required to report for execution of the sentence for a period of one month. 

from 146.9 grams of cocaine to 49 grams, waived the mandatory minimum sentence, and 

Defendant and the Commonwealth reached an agreement in which Defendant pied guilty to two 

counts of possession with intent to deliver. In exchange, the Commonwealth reduced the weight 

Emmi, completed the process of selecting ajury. On March 5, 2013, before the jury was sworn, 

After several continuances of Defendant's trial, Defendant and his attorney, Mr. Louis 

. . 

two counts of possession, and one count of theft by deception. 

filed an Information charging Defendant with two counts of possession with. intent to deliver, 

Defendant waived his right to a preliminary.hearing, On February 13, 2012, the Commonwealth 

18 Pa.C.S.A. § 3922(a)(l). Defendant was arrested shortly thereafter. On January 12, 2012, 

controlled substance under 35 P.S. § 780-113(a)(16), and one count of theft by deception under 

possession with intent to deliver under 35 P .S. § 780-113(a)(30), two counts of possession of a 

Detective Todd Naylor filed a criminal complaint charging Defendant with four counts of 

On August 9, 2011, Agent Pate from the Pennsylvania Attorney General's Office and 

the test results revealed that the powder weighed 146.9 grams and. contained cocaine. 

containing the powder was subsequently sent to the DEA Northeast Crime Lab for testing, and 

placing it in a sock by a stop sign and instructing the informant to pick it up. The baggie 

1 :32 p.m., Defendant delivered a baggie containing a light-colored powder to the informant by 

identified Defendant, the informant provided the $3,200 to Defendant. On August 30, 2010 at 

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3 

execution of the sentence was deferred to April 4, 2013 at 9:00 a.m., when Defendant was to 

report to the Beaver County Jail to begin serving his sentence. On April 4, 2013, Defendant 

failed to appear at the Beaver County Jail as required. As a result, a bench warrant for 

Defendant's arrest· was issued on April 5, 2013. Defendant was subsequently arrested and 

incarcerated on August 4, 2013. 

On November 8, 2013, Defendant filed a prose Motion for Post Conviction Collateral 

Reliefin which he claims that his sentence was improperly calculated, that the "evidence is more 

than questionable[,]" that his counsel was ineffective, and that the "evidence [wasJ not at trial 

when [Defendant was] coerced into a plea bargain 'deal."' Prose PCRA Pet., at 4. As this was 

Defendant's first PCRA petition in this matter, the Court appointed the Beaver County Public 

Defender to represent Defendant in these proceedings, On March 14, 2014, Defendant, through 

counsel, filed an Amended Petition for Post Conviction Relief. In the Amended Petition, 

Defendant incorporates his prose PCRA petition by reference, and he averred that his March 5, 

2013 guilty plea was not knowing, intelligent, and voluntary because he was coerced by his 

counsel into accepting a plea agreement he did not entirely understand or want. As relief, 

Defendant requests a new trial, an evidentiary hearing, or modification of his sentence. On April 

22, 2014, the Commonwealth filed· an Answer to Defendant's Post Conviction Relief Petition in 

which the Commonwealth asserts that Defendant's plea colloquy· demonstrates that he 

understood the plea agreement and was not coerced into accepting it. The Answer also contains a 

New Matter in which the Commonwealth claims that Defendant failed to comply with the 

mandates of 42 Pa.C.S.A. § 9545(d) and, therefore, is not entitled to a hearing or any relief. 

Despite the Commonwealth's claim in its New Matter, the Court held a hearing in this 

matter on June 9, 2014. During the hearing, Defendant was the only witness that was available to 

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4 

I The Motion was disregarded by the Court as an attempt to have hybrid representation when Defendant was already 

represented by counsel. Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d 282, 293 (2010) (where "appellant was 

represented by counsel on appeal," "his pro se Rule 1925(b) statement was a legal nullity."); Commonwealth v. 

Ellis. 534 Pa. 176, 626 A.2d 1137, 1139, 1141 (1993) ("(T]here is no constitutional right to hybrid representation 

either at trial or on appeal. ... (A defendant may not] confuse and overburden the court by his own pro se filings of 

briefs at the same time his counsel is filing briefs on his behalf."). 

because counsel failed to explain by way of colloquy to the Appellant that he was entering a pl_ea 

and (2) "the Court erred in denying his PCRA Petition alleging ineffective assistance of counsel 

defendant's plea based upon the Defendant feeling coerced and pressured into pleading guilty"; 

in denying his PCRA Petition alleging ineffective assistance of counsel at the time of the 

.. 

In his Concise Statement, Defendant raises the following two issues: (1) "the Court erred 

ANALYSIS 

Concise Statement. 

this was granted by the Court on October 27, 2014. On November 7, 2014, Defendant filed his 

Appeal. Defendant moved for an extension of time in which to file his Concise Statement, and 

Defendant was directed to file a 1925(b) Concise Statement of Matters Complained of on 

The Court entered an Order denying Defendant's PCRA petitions on September 4, 2014. 

On September 5, 2014, Defendant attemptedto file prose a Post-Sentence Motion to reverse his 

conviction.1 A Notice of Appeal was then filed on October 2, 2014. On October 6, 2014, 

voluntary plea in order to avoid a greater sentence. 

testified that Defendant admitted his guilt to him and that he entered a knowing, intelligent, and 

Court resumed Defendant's PCRA hearing, and heard testimony from Attorney Emmi, who 

Defendant's guilty plea, Ronald DiGiomo, appear at the hearing. On September 3, 2014, the 

Emmi, Esquire, and the Assistant District Attorney that represented the Commonwealth during 

September 3, 2014. The parties were directed to ensure that Defendant's prior counsel, Louis 

testify. After Defendant testified, the Court issued an Order continuing the PCRA hearing to 

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5 

to an amended information and would be sentenced to the amended information presented by the 

Commonwealth." 

To be eligible for relief-under the Commonwealth of Pennsylvania's Post Conviction 

Relief Act (hereinafter the "PCRA"), the petitioner must plead and prove by a preponderance of 

the evidence four general requirements. 42 Pa.C.S.A. §§ 9541M9546. First, the petitioner must 

have been convicted of a crime under Pennsylvania law and subsequently sentenced to either 

incarceration or probation. 42 Pa.C.S.A. § 9543(a)(l). Second, the conviction and sentence must 

have resulted from at least one of the errors and/or violations elucidated in § 9543(a)(2) of the 

PCRA. Third, the allegation of error must not have been previously litigated or waived by the 

petitioner. Id. ~t § 9543(a)(3). An issue has been previously litigated if "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. at§ 9544(a)(2). A PCRA claim 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." Id. at§ 9544(b). "'A petitioner can avoid a finding of waiver under 

the PCRA by making an adequate and properly layered claim of ineffective assistance of counsel 

at his first available opportunity to do so.!" Commonwealth v. Rivera, 2003 Pa.Super. 29, 816 

A.2d 282, 287 (Pa.Super. 2003) (citing Commonwealth v. AbdulMSalaam, 808 A.2d 558, 560 n. 3 

(Pa. 2001)). Finally, the petitioner must demonstrate that the failure to litigate the claim could 

not have been "the result of any rational, strategic or tactical decision by counsel." Id at § 

9543(a)(4). . 

Neitherparty disputes that Defendant meets the first requirement for eligibility for relief, 

as he was convicted of a crime under Pennsylvania law and· subsequently sentenced to 

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2 Defendant had raised other arguments in his PCRA Petitions regarding the weight and sufficiency of the evidence 

and of the calculation of his sentence under the Sentencing Guidelines. By failing to include any of these in his 

Concise Statement they are waived and so unaddressed in this Opinion. Conunonwealth v. Butler, 571 Pa. 441, 446, 

812 A.2d 631, 633-34 (2002) ("PCRA appellants, in order to preserve their claims for appellate review, must 

comply whenever the PCRA court orders them to file a Statement of Matters Complained of on Appeal under Rule 

1925. Accordingly, any issues not raised in a Rule 1925(b) statement are waived."). 

former counsel, Louis Emmi, was ineffective. In his first claim, Defendant alleges that he was 

must consider whether error actually occurred.2 Both of Defendant's arguments allege that his 

considering whether any of the allegations of error were previously litigated or waived, the Court 

Defendant's two issues meet these criteria. 42 Pa.C.S.A. § 9543 (a)(2)(ii), (iii). Before 

42 Pa.C.S.A. § 9543(a)(2). 

(viii) A proceeding in a tribunal without jurisdiction. 

(vii) The imposition of a sentence greater than the lawful maximum. 

(vi) The unavailability at the time of trial of exculpatory evidence that has 

subsequently become available and would have changed the outcome of the trial 

if it had been introduced. 

(v) Deleted. 

(iv) The improper obstruction by government officials of the petitioner's right of 

appeal where a meritorious appealable issue existed and was properly preserved 

in the trial court. 

(iii) A plea of guilty unlawfully induced where the circumstances make it likely 

that the inducement caused the petition to plead guilty and the petitioner is 

innocent. · 

(ii) Ineffective 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. 

(i) A violation of the Constitution of this Commonwealth or the Constitution or 

laws of the United States 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. 

or more of the following: 

incarceration. The next requirement mandates that the conviction and sentence resulted from one 

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coerced into entering a guilty plea. In his second claim, Defendant alleges that his counsel failed 

to explain to him that he was pleading to, and would be sentenced under, an amended 

information, In other words, under either of Defendant's claims, Attorney Enuni's alleged 

ineffectiveness stems from his efforts to coerce Defendant into entering a plea that was not 

knowing, voluntary, and intelligent. 

The PCRA permits a petitioner to seek post-conviction relief for a claim of the ineffective 

assistance of trial counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). Under Pennsylvania law, there is a 

basic presumption that counsel acted effectively. Commonwealth v. Jones, 942 A.2d 903, 906 

(Pa.Super, 2008). Thus, the burden rests on the petitioner to demonstrate ineffectiveness. Id. To · 

do so, the petitioner ''must plead and prove by a preponderance of evidence that his conviction 

· resulted from ineffective assistance of counsel which, in the circumstances of the particular case, 

so undermined the truth-determining process that no reasonable adjudication of guilt or 

innocence could have taken place." Conunonwealth v. Granberry, 644 A.2d· 204, 207 (Pa.Super. 

1994) (citing Commonwealth v. Dukeman, 565 A.2d 1204 (Pa.Super. 1989)). 

Pennsylvania courts apply a three-prong test to determine whether the petitioner has 

established ineffectiveness of counsel. Commonwealth v. Sneed, 899 A.2d 1067, 1076 (Pa. 

2006). The petitioner must first demonstrate that the issue underlying the claim has arguable 

merit. Id. Next, if the claim does have arguable merit, it must then be determined whether 

counsel's acts or omissions had some reasonable basis designed to serve the interests of his 

client. Id. "Once it has been determined that the particular course of action chosen by counsel 

had some reasonable basis designed to effectuate his client's interests, counsel will be deemed 

constitutionally effective.'' Commonwealth v. Miller, 431 A.2d 233, 235 (Pa. 1981) (citing 

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa. 1978)). If a reasonable basis 

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for counsel's actions cannot be found, the petitioner must show that the ineffectiveness of 

counsel resulted.in prejudice to him. Sneed, 899 A.2d at 1076. Failure to satisfy any of the three 

prongs will require rejection of the claim. Commonwealth v. !1ammond, 953 A.2d 544, 556 

(Pa.Super. 2008). 

"It is clear that a criminal defendant's right to effective counsel extends to the plea 

process, as well as during trial.'' Commonwealth v. Wah, 2012 Pa.Super. 54; 42 A.3d 335, 338 

(2012) (citing Commonwealth v. Allen, 833 A.2d 800, 802 (Pa.Super. 2003)). "However, 

[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. Willis, 2013 Pa.Super. 143, 68 A.3d 997, 1001-02 (citing Wah, 42 A.3d 

at 338). "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." Willis, 68 A.3d at 1002-(citing Wah, 42 A.3d at 338). "[T]he law 

does not require that [the defendant] be pleased with the outcome of his decision to enter a plea 

of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily, and 

intelligently made." Willis, 68 A.3d at 1002 (citing Commonwealth v. Anderson, 995 A.2d 1184, 

1192 (Pa.Super, 2010)). Having stated the relevant law, the Court turns now to Defendant's 

arguments. 

Defendant's argues that his counsel was ineffective in allegedly compelling him to accept 

a guilty plea, and in failing to properly inform him that he was pleading to an amended 

information, and therefore that these caused him to enter a guilty plea that was not knowingly, 

intelligently, or voluntarily made. These issues may have had arguable merit if Defendant had 

presented credible evidence to prove his allegations. But Defendant has failed to do this. The 

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3 On Defendant's written and signed guilty plea, under the question, "Has anybody forced you to enter this plea of 

guilty and/or plea agreement?" The letters "Ye" are struck out, followed by "no" and Defendant's initials. This 

question was preceded by 19 consecutive questions which Defendant answered "Yes." Defendant admitted during 

the PCRA hearing that he wrote his initials by this change. Defendant also initialed the bottom of the page 

containing the question, and signed the guilty plea on the final page. 

4 When asked whether he answered the questions asked of his attorney during his colloquy under oath, Defendant 

stated, "Right. But when I took the deal, I lied." N.T. 6/9114, at 49. When later asked whether he acknowledged the 

facts under oath to the District Attorney's Office during the plea colloquy, Defendant stated, "Yeah, I lied, I lied 

under oath." N.T. 6/9/14, at 91. 

witness. Mr. Emmi testified that Defendant's plea was knowingly, intelligently, and voluntarily 

Attorney Emmi's demeanor and listening carefully to his testimony, found him to be a credible 

voluntary. 

In contrast to Defendant's incredible testimony, this Court, after closely observing 

which he claimed that he perjured himself at the plea hearing with regard to his plea being 

to file any motion to withdraw his plea, cast considerable doubt on his recanted testimony in 

any way to the court that he was being compelled against his will to enter a plea, and his failure 

with his oral admission of guilt to the facts of the crimes, his failure at that time to indicate in 

colloquy."). 

Defendant's answers and written initialed corrections at the time of the plea, combined 

assert grounds for withdrawing the plea which contradict the statements he made at his plea 

guilty is bound by the statements he makes in open court while under oath and he may not later 

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003) ("A person who elects to plead 

(external citations omitted). See also Willis, 2013 PA Super 143, 68 A.3d at 1009; 

· admission of perjury." Commonwealth v. Coleman, 438 Pa. 373, 377, 264 A.2d 649, 651 (1970) 

testimony is true. There is no less reliable form of proof, especially when it involves an 

unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such 

claimed to have lied under oath when he made his plea.4 "Recanting testimony is exceedingly 

evidence presented by Defendant was his written guilty plea' and his own testimony, in which he 

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made, that at no point did he tell Defendant he would not return to represent him at trial, and that 

Defendant had actually admitted his guilt to him. Further, Mr. Emmi's testimony that he never 

told Defendant he would not return to represent him at trial is bolstered by the fact that he and 

Defendant had actually already selected a jury. In addition to this factual determination as to the 

credibility of Mr. Emmi's testimony and the incredibility of Defendant's testimony, this Court 

also notes the substantial benefit Defendant obtained by his plea agreement. This Court informed 

Defendant that it was against the offered plea agreement, and that it ultimately only accepted it 

upon in-person approval from the Attorney General's office. 

By entering the plea agreement, which reduced the weight of cocaine from 146.9 grams 

to 49 grams, Defendant received a sentence of thirty to sixty months, substantially less than the 

seventy-two to ninety months indicated by the Guidelines for the 146.9 grams weight or receive 

the fifteen year statutory maximum. Additionally, the Commonwealth did not request the 

application of the mandatory minimum sentence of seven years that would apply in this case 

because of Defendant's prior drμg convictions. Additionally, through the advocacy of Mr. Emmi, 

Defendant W11$ provided a one month period before being required to report to the Beaver 

County Jail. See Pollard, 832 A.2d 517, 524 (Pa.Super. 2003) ("The desire of an accused to 

benefit from a plea bargain is a strong indicator of the voluntariness of his plea."). 

Based on the Court's observation of Defendant's demeanor and testimony at the time of 

his plea compared with his later incredible recanted testimony, based on the credibility of Mr. 

Emmi's testimony, and considering the favorable terms of the plea agreement Mr. Emmi secured 

for Defendant, this Court finds that Defendant has not met his burden of proving that he was 

unlawfully induced into entering his plea. Nor is the Court convinced that Defendant did not 

understand that he was pleading to reduced charges as outlined in the plea agreement, placed on 

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Thus, to the extent that Defendant's second argument differs from his first and the issue of his entering a knowing, 

intelligent, and voluntary waiver, it is waived by Defendant's failure to assert it within a PCRA Petition below. Id. 

11 

Even if the PCRA court had ordered Appellant to file a Concise Statement and Appellant had 

raised the allocution issue therein, that process would not avoid waiver. Generally, including an 

issue in a Concise Statement does not revive issues that were waived in earlier proceedings. 

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super.2004), appeal denied, 580 Pa. 695, 860 

A.2d 122 (2004). 

5 In any event, Defendant did not include within any of his PCRA Petitions, nor amend any of his PCRA Petitions to 

include, his second argument of ineffective assistance of counsel with regard to the issue of his plea to an Amended 

Information. By failing to include this within his PCRA Petitions, this particular issue should be treated as waived, 

and including it within his Concise Statement is not effective to preserve the issue for appeal. Commonwealth v. 

Williams, 2006 Pa.Super. 121, 900 A.2d 906, 909 (2006). In Williams, the court stated: 

To the extent that Appellant's issue is couched in terms of trial counsel's and/or appellate counsel's 

ineffectiveness, our analysis is as follows. Under Pa.R.Crim.P. 902(B), ''[e]ach ground relied upon 

in support of the relief requested shall be stated in the [PCRAJ petition. Failure to state such a 

ground in the petition shall preclude the defendant from raising that ground in any proceeding for 

post-conviction collateral relief." See also Commonwealth v. Wharton, 571 Pa. 85, 811 A.2d 978, 

987 (2002). In the instant case, Appellant failed to raise, in his PCRA petition, ineffectiveness of 

trial counsel or appellate counsel with respect to allocution. Thus, those issues are waived. 

intelligently; and voluntarily made, Defendant's arguments that he was ineffectively represented 

indeed knowingly, intelligently, and voluntarily made. Because his plea was knowingly, 

ineffective assistance counsel. See Sneed, 899 A.2d at 1076. 

was pleading to an amended Information does not even meet the arguable merit prong for 

Rather, based on the evidence and the record, this Court finds that Defendant's plea was 

clearly present in the record, Defendant's argument that Mr. Emmi did not explain to him that he 

himself signed the ·amended Information and waived -his arraignment. Based on these facts 

weight and avoidance of them mandatory minimum· sentence was explained to him, and he 

substantial benefit he obtained from pleading to those reduced charges in terms of the reduced 

shows that Defendant was informed in open court of the reduced charges he was pleading to, the 

the record, and memorialized by Defendant when he signed the amended Information in open 

court, waiving his arraignment to the reduced charges. N.T. 3/5/13, at 22-24.5 The record clearly 

Circulated 04/30/2015 04:31 PM
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BY THE COURT 

12 

For the aforementioned reasons, Defendant's appeal should be denied. 

CONCLUSION 

143, 68 A.3d at 1001-02. 

by counsel with regard to his entering a guilty plea have no merit. See Willis, 2013 Pa.Super. 

Circulated 04/30/2015 04:31 PM