J-S54029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

BRIAN EDWARD BOYER 

 Appellant No. 147 MDA 2014 

Appeal from the PCRA Order January 21, 2014 

In the Court of Common Pleas of Berks County 

Criminal Division at No(s): CP-06-CR-0002326-2012 

BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 16, 2014 

 Appellant, Brian Edward Boyer, appeals pro se from the January 21, 

2014 order dismissing his first petition for relief filed pursuant to the Post 

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review, we 

affirm. 

 We summarize the factual and procedural background of this case as 

follows. On June 8, 2012, the Commonwealth filed an information charging 

Appellant with 17 counts of sexual abuse of children.1

 On January 16, 2013, 

Appellant entered into a negotiated guilty plea for one count of sexual abuse 

of children. Pursuant to said agreement, the same day, the trial court 

imposed a sentence of 18 months to five years’ imprisonment and the 

____________________________________________ 

1 18 Pa.C.S.A. § 6312(d)(1). 
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remaining 16 counts were dismissed. Appellant did not file a post-sentence 

motion with the trial court, nor did he file a direct appeal with this Court. 

 On May 7, 2013, Appellant filed a timely pro se PCRA petition. The 

PCRA court appointed counsel. After several extensions, on October 30, 

2013, PCRA counsel filed a petition to withdraw as counsel along with a nomerit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 

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

banc), and their progeny. On December 20, 2013, the PCRA court entered 

an order notifying Appellant of its intent to dismiss his PCRA petition without 

a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907, and 

granted PCRA counsel’s petition to withdraw. Appellant did not file any 

response. The PCRA court entered a final order dismissing Appellant’s PCRA 

petition without a hearing on January 21, 2014. On January 21, 2014, 

Appellant filed a timely pro se notice of appeal.2

 On January 27, 2014, 

Appellant filed a timely amended pro se notice of appeal.3

____________________________________________ 

2 Appellant’s notice of appeal was docketed on January 22, 2014. We note, 

however, that the certified record contains the envelope in which Appellant 

mailed the motion, which is postmarked January 21, 2014. Under the 

prisoner mailbox rule, “a pro se prisoner’s document is deemed filed on the 

date he delivers it to prison authorities for mailing.” Commonwealth v. 

Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal 

denied, 46 A.3d 715 (Pa. 2012). Therefore, we treat January 21, 2014 as 

the filing date. 

3 Appellant’s amended notice of appeal is docketed on January 30, 2014; 

however, the certified record contains the postmark bearing the date of 

(Footnote Continued Next Page) 
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 On appeal, Appellant raises four issues for our review. 

1. Was Appellant’s guilty plea entered in an 

involuntary and unknowing manner? 

2. Was [] Appellant’s guilty plea induced by the 

coercive tactics of his trial counsel? 

3. Was trial counsel ineffective for failing to move 

for withdrawal of [] Appellant’s guilty plea 

when requested to do so? 

4. Was trial counsel ineffective for failing to 

properly investigate, subpoena police and 

parole records concerning issues related to the 

search and interview of Jeff Fink as a possible 

alternative suspect and/or witness and 

subpoena potential witnesses and investigate 

[] Appellant’s alibi?

Appellant’s Brief at 2.

 We begin by noting our well-settled standard of review. “In reviewing 

the denial of PCRA relief, we examine whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation 

marks and citation omitted). “The scope of review is limited to the findings 

of the PCRA court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the trial level.” Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled 

(Footnote Continued) _______________________ 

January 27, 2014. Therefore, pursuant to the prisoner mailbox rule we treat 

January 27, 2014 as the filing date. See Chambers, supra. We also note 

that Appellant and the PCRA court have complied with Pa.R.A.P. 1925. 
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that a PCRA court’s credibility determinations are binding upon an appellate 

court so long as they are supported by the record.” Commonwealth v. 

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this 

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth 

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted). 

 The Sixth Amendment to the Federal Constitution provides in relevant 

part that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... 

to have the Assistance of Counsel for his defence.”4

 U.S. Const. amend. vi. 

The Supreme Court has long held that the Counsel Clause includes the right 

to the effective assistance of counsel. See generally Strickland v. 

Washington, 466 U.S. 668, 686; Commonwealth v. Pierce, 527 A.2d 

973, 975 (Pa. 1987). 

In analyzing claims of ineffective assistance of counsel, “[c]ounsel is 

presumed effective, and [appellant] bears the burden of proving otherwise.” 

Fears, supra at 804 (brackets in original; citation omitted). To prevail on 

any claim of ineffective assistance of counsel, a PCRA petitioner must allege 

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel 

had no reasonable strategic basis for his action or inaction; and (3) the 

____________________________________________ 

4

 Likewise, Article I, Section 9 of the Pennsylvania Constitution states in 

relevant part, “[i]n all criminal prosecutions the accused hath a right to be 

heard by himself and his counsel ....” Pa. Const. art. I, § 9. Our Supreme 

Court has held that the Pennsylvania Constitution does not provide greater 

protection than the Sixth Amendment. Pierce, supra at 976.
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petitioner was prejudiced—that is, but for counsel’s deficient stewardship, 

there is a reasonable likelihood the outcome of the proceedings would have 

been different.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence 

fails to satisfy any one of these prongs.” Commonwealth v. Elliott, 80 

A.3d 415, 427 (Pa. 2013) (citation omitted). 

We also note that 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. Commonwealth v. 

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted). 

[T]he right to an evidentiary hearing on a postconviction 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. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal 

citations omitted). “[A]n evidentiary hearing is not meant to function as a 

fishing expedition for any possible evidence that may support some 

speculative claim of ineffectiveness.” Roney, supra at 605 (citation 

omitted). 
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We elect to address Appellant’s first, second, and fourth issues 

together. In his first two issues, Appellant avers that his guilty plea was not 

knowing and involuntary and that this was the result of allegedly “coercive” 

tactics of counsel. Appellant’s Brief at 8. In Appellant’s view, these tactics 

included the following. 

Appellant repeatedly contacted counsel and 

requested that she perform services on his behalf 

that would actually form a valid defense at trial. 

Included in these requests were (1) subpoenaing 

police and parole records; (2) establishing a chain of 

custody on the cell phone in which the pornographic 

pictures were found; (3) interviewing Jeff Fink ... to 

establish an illegal search and seizure argument, as 

well as determining whether or not he possessed the 

cell phone prior to it’s [sic] being turned over to the 

parole authorities; (4) failing to obtain prior 

statements made by Debra Mohring to use as 

impeachment to her testimony; (5) failing to 

interview Carol Boyer as a potential defense witness; 

and (6) failing to investigate [Appellant]’s alibi.

Id. at 9-10. In his fourth issue, Appellant avers that counsel was ineffective 

for not performing some of the above-listed tasks at Appellant’s request. 

Appellant made voluminous requests for [counsel] to 

contact him concerning a trial strategy, specifically, 

to seek certain parole and police records that would 

have proven that Jeff Fink, [] Appellant’s landlord,

had a prior conviction for invasion of privacy, and did

in fact possess the cell phone in question prior to it 

being discovered with child pornography on it. 

Further, [] Appellant sought for [counsel] to 

subpoena certain witnesses that would have cast 

doubt on the veracity of the Commonwealth’s main 

witness, Debra Mohring. 

 

Id. at 13. 
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 In order to be eligible for relief under the PCRA, the statute requires 

the petitioner to show the following by a preponderance of the evidence. 

§ 9543. Eligibility for relief

(a) General rule.--To be eligible for relief under 

this subchapter, the petitioner must plead and prove 

by a preponderance of the evidence all of the 

following: 

...

(2) That the conviction or sentence resulted from 

one or more of the following: 

(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. 

(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. 

(iii) A plea of guilty unlawfully induced where 

the circumstances make it likely that the 

inducement caused the petitioner to plead 

guilty and the petitioner is innocent. 

...

(3) That the allegation of error has not been 

previously litigated or waived. 

...
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42 Pa.C.S.A. § 9543(a). An issue is 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.

§ 9544(b). It is also axiomatic that when a defendant pleads guilty he or 

she “waives the right to challenge anything but the legality of his sentence 

and the validity of his plea.” Commonwealth v. Barbaro, 94 A.3d 389, 

391 n.2 (Pa. Super. 2014) (citation omitted). 

 In the case sub judice, Appellant did not file a direct appeal in this 

Court after his guilty plea was entered and his sentence imposed. Appellant 

could have raised the issue of the voluntariness of his plea directly in such 

an appeal, but he did not. Therefore, the issue is waived under the 

parameters of the PCRA. See 42 Pa.C.S.A. §§ 9543(a), 9544(b); accord 

Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal 

denied, 67 A.3d 796 (Pa. 2013). Therefore, Appellant’s first issue does not 

warrant relief. 

Appellant’s second issue regarding counsel’s allegedly “coercive” 

tactics is more properly viewed as a claim that counsel was ineffective for 

not performing those tasks. See Appellant’s Brief at 8-10 (analyzing claim 

under the ineffective assistance of counsel rubric). As noted above, 

Appellant’s fourth issue also raises ineffective assistance of counsel claims. 

Id. at 13-14.
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“[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.” Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013) 

(internal quotation marks and citations omitted). “Thus, to establish 

prejudice, the defendant 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.” Commonwealth v. Lippert, 85 A.3d 1095, 

1100 (Pa. Super. 2014) (citation omitted), appeal denied, --- A.3d ---, 95 

WAL 2014 (Pa. 2014). 

In addition, we note “[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.” 

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) 

(citations omitted; brackets in original), appeal denied, 63 A.3d 773 (Pa. 

2013). 

The longstanding rule of Pennsylvania law is that a 

defendant may not challenge his guilty plea by 

asserting that he lied while under oath, even if he 

avers that counsel induced the lies. ... A criminal 

defendant who elects to plead guilty has a duty to 

answer questions truthfully. We [cannot] permit a 

defendant to postpone the final disposition of his 

case by lying to the court and later alleging that his 

lies were induced by the prompting of counsel. 
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Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007) 

(citations omitted; brackets in original), appeal denied, 940 A.2d 365 (Pa. 

2007); see also Brown, supra. 

 In this case, when Appellant entered his guilty plea, the trial court 

engaged in a plea colloquy as required by Pennsylvania Rule of Criminal 

Procedure 590. See generally N.T., 1/16/13, at 2-5; Pa.R.Crim.P. 590, 

cmt.; Commonwealth v. Prendes, --- A.3d ---, 2014 WL 3586262, *10 

(Pa. Super. 2014) (stating, “[u]nder Rule 590, the court should confirm ... 

that a defendant understands: (1) the nature of the charges to which he is 

pleading guilty; (2) the factual basis for the plea; (3) he is giving up his 

right to trial by jury; (4) and the presumption of innocence; (5) he is aware 

of the permissible ranges of sentences and fines possible; and (6) the court 

is not bound by the terms of the agreement unless the court accepts the 

plea[]”). Among the questions asked of Appellant was whether he was 

“satisfied with [his] lawyer[.]” Id. at 3. Appellant answered this question in 

the affirmative. Id. As a result, Appellant cannot now claim that he was not 

satisfied with counsel’s performance insofar that counsel failed to perform all 

of these tasks that “coerced” him into pleading guilty. See Brown, supra

(rejecting plea counsel ineffectiveness claim where “[Brown] felt coerced, at 

the time of his plea hearing, to enter a guilty plea[, but] ... at that hearing, 

[he] testified that it was his decision to plead guilty, and that he was 

satisfied with the representation provided by counsel[]”) (emphasis 
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added). Therefore, Appellant is not entitled to relief on his second and 

fourth issues. 

We now turn to Appellant’s third issue, in which he argues that counsel 

was ineffective for not filing a motion to withdraw his guilty plea when being 

asked to do so. Appellant’s Brief at 11. Appellant claims that he wrote a 

letter to counsel on February 1, 2013 asking her to file a motion to withdraw 

a guilty plea. Id. at 11. The letter, in relevant part, asks counsel “[c]an I 

withdraw my guilty plea?” Appellant’s Brief at Exhibit B.5

Pennsylvania Rule of Criminal Procedure 720 states, “a written postsentence motion shall be filed no later than 10 days after imposition of 

sentence.” Pa.R.Crim.P. 720(A). This includes claims pertaining to “the 

validity of a plea of guilty[.]” Id. at 720(B)(1). In this case, Appellant was 

sentenced on January 16, 2013. As a result, any post-sentence motion 

requesting that Appellant be permitted to withdraw his guilty plea was 

required to be filed by January 28, 2013.6

 Appellant did not make any other 

request for counsel to file a motion to withdraw his guilty plea. Therefore, 

____________________________________________ 

5

 We note that this letter does not appear in the certified record, nor is there 

any indication that this letter was mailed to counsel, much less received by 

counsel. However, even assuming arguendo that it was, for the reasons 

discussed infra, it would not entitle Appellant to relief. 

6

 We note that the tenth day, January 26, 2013, was a Saturday. It is 

axiomatic that when calculating a filing period, weekends are excluded from 

this computation. 1 Pa.C.S.A. § 1908. Therefore, Appellant had until 

Monday, January 28, 2013 to timely file his post-sentence motion. 
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even construing Appellant’s February 1, 2013 letter to counsel as a request 

to file a motion to withdraw his guilty plea, the filing period for such a 

motion had already expired. See id. at 720(A). It is axiomatic that counsel 

cannot be ineffective for failing to raise an issue that cannot be addressed by 

the trial court. See, e.g., Fears, supra (stating, “counsel cannot be 

deemed ineffective for failing to raise a meritless claim[]”) (citation 

omitted). As a result, Appellant’s claim lacks arguable merit, and the PCRA 

court properly refused to grant relief. See Simpson, supra. 

Based on the foregoing, we conclude all of Appellant’s issues on appeal 

are waived or devoid of merit. We further conclude the PCRA court did not 

abuse its discretion in dismissing Appellant’s PCRA petition without a 

hearing. See Roney, supra. Accordingly, the PCRA court’s January 21, 

2014 order is affirmed. 

 Order affirmed. 

 Judge Lazarus joins the memorandum. 

 Judge Stabile concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/16/2014