J-S05006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAIVON TURNER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 316 EDA 2020

Appeal from the PCRA Order Entered November 6, 2018

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

No(s): CP-51-CR-0006211-2015

BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.: FILED MARCH 16, 2021

Daivon Turner appeals pro se from the order that dismissed his petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm. 

We glean the following case history from the PCRA court’s opinion. On 

the afternoon of May 25, 2015, Basil Scott was riding a dirt bike he had taken 

the day before from Appellant. Appellant arrived at the scene in a minivan 

and shot Mr. Scott four times, once in the head, killing him. Appellant fled 

the state, was brought back to Philadelphia by his mother, and confessed to 

the shooting after surrendering to police. He was arrested and charged with 

murder and crimes related to possession of a firearm.

Appellant retained counsel, who filed an omnibus pretrial motion seeking 

to suppress Appellant’s statements, physical evidence, and out-of-court 

identification evidence. After the plan for payment fell through, counsel 

sought and was granted permission to withdraw. New counsel entered an 
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appearance and also filed an omnibus pretrial motion seeking suppression of 

Appellant’s statement to police, physical evidence, and out-of-court 

identification evidence. 

Before the court ruled upon the suppression issues, Appellant opted to 

enter a negotiated guilty plea to third-degree murder and one firearms charge

in exchange for a sentence of fifteen to thirty years of imprisonment and the 

dismissal of the remaining charges. In the plea colloquy signed by Appellant, 

he acknowledged that by pleading guilty he was giving up his pretrial rights, 

including the right to pursue suppression of statements he made to police, 

identifications of him made by third parties, and seized evidence. After 

confirming Appellant’s understanding though an oral plea colloquy, the trial 

court accepted the plea and imposed the agreed-upon sentence. Appellant 

did not file a direct appeal. 

Appellant filed a timely PCRA petition on February 13, 2018. Therein, 

he raised three bases for claiming that his confession to the police was 

involuntary, as well as a claim that trial counsel rendered ineffective 

assistance by failing to challenge the admissibility of his confession. Counsel 

was appointed and filed a motion to withdraw and no-merit letter pursuant to 

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

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court issued 

notice of its intent to dismiss Appellant’s PCRA petition without a hearing, and 
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Appellant filed no response. By order of November 8, 2018, the PCRA court 

dismissed the petition and granted counsel’s request to withdraw.

Appellant filed a timely pro se notice of appeal, and both Appellant and 

the PCRA court complied with Pa.R.A.P. 1925. Appellant presents one 

question for our consideration: “Did the PCRA court err, when it denied 

Appellant’s PCRA petition alleging he waived his right to post-conviction relief 

which is the- first cognizable avenue to raise ineffective assistance of counsel 

arising out of plea process?” Appellant’s brief at 4 (unnecessary capitalization

omitted).

We begin with a review of the applicable law. “This Court’s standard of 

review regarding an order denying a petition under the PCRA is whether the 

determination of the PCRA court is supported by the evidence of record and is 

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super. 

2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA 

court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684, 

688 (Pa.Super. 2012). 

Counsel is presumed to be effective, and a PCRA petitioner bears the 

burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112 

(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal 

claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s 

decision to act (or not) lacked a reasonable basis designed to effectuate the 

petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish 
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any prong is fatal to the claim. Id. at 113. Further, “[i]n the context of a 

plea, a claim of ineffectiveness may provide relief only if the alleged 

ineffectiveness caused an involuntary or unknowing plea.” Commonwealth 

v. Orlando, 156 A.3d 1274, 1281 (Pa.Super. 2017). 

In his PCRA petition, Appellant alleged that counsel was ineffective in 

“allowing [Appellant’s] constitutionally protected and guaranteed rights to be 

violated” by not pursuing suppression. See PCRA Petition, 2/13/18, at 7. See 

also id. at 16 (stating that counsel failed to be a zealous advocate and allowed 

unconstitutionally-obtained evidence “to be used against his client at trial”). 

On appeal, he presents this Court with additional averments not pled in the 

PCRA court. Specifically, he contends that trial counsel advised Appellant that 

counsel withdrew the suppression motion because the trial court would never 

grant it, and that Appellant had to accept the plea deal or he would end up 

with a life sentence. See Appellant’s brief at 11-12. Appellant further alleged 

on appeal that counsel instructed him to represent during the oral plea 

colloquy that he was pleased with his attorney’s representation and that no 

one had forced him to plead guilty, otherwise the trial court would not accept

the plea and Appellant would end up with a life sentence. Id. at 12. 

Appellant’s claims entitle him to no relief. First, specific allegations of 

trial counsel ineffectiveness not raised in the PCRA petition or an authorized 

amendment are waived. See, e.g., Commonwealth v. Jones, 811 A.2d 

994, 1003 (Pa. 2002) (citing Pa.R.A.P. 302(a) in holding issue not raised in 
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the PCRA court could not be raised for the first time on appeal). See also 

Commonwealth v. Reid, 99 A.3d 470, 519-20 (Pa. 2014) (“Appellant’s 

specific allegations regarding trial counsel's failure [to obtain certain evidence] 

were raised for the first time in his Supplemental Amended PCRA Petition, 

which the PCRA court does not appear to have authorized. Thus, Appellant’s 

claim is waived on this basis.”). Appellant never presented to the PCRA court 

his allegations that trial counsel pressured him to enter his plea and lie about 

being coerced to do so. Accordingly, the contentions cannot serve as a basis 

for this Court to grant relief. 

Second, “[a] person who elects to plead guilty is bound by the 

statements he makes in open court while under oath and he may not later 

assert grounds for withdrawing the plea which contradict the statements he 

made at his plea colloquy.” Commonwealth v. Pier, 182 A.3d 476, 480 

(Pa.Super. 2018). Here, Appellant represented to the trial court, under oath, 

that he completed and understood the written plea colloquy which indicated 

that, by entering a guilty plea, he gave up his right to appeal the denial of his 

pre-trial suppression motion. The certified record clearly evidences his 

subsequent oral confirmation of the voluntary waiver of his pretrial rights:

THE COURT: . . . You’re giving up your right -- you[r] pretrial 

rights as well. I understand there was a statement made in this 

case. And that the Commonwealth has told me, and your attorney 

has told me, that if you were to proceed to trial, he would have 

filed -- or we would have litigated, I should say, because he did 

file -- we would have litigated a motion to suppress the statement 

that you gave.
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When you plead guilty, we are not going to litigate that 

motion. And you will forever give up your right to say that that 

statement was taken in any other way except lawful.

Do you understand that?

[APPELLANT]: Yes.

THE COURT: You’re also giving up your right to challenge any 

identifications made of you and anything that was seized by the 

police, like any guns that were recovered or any clothing or cars, 

anything that the police recovered from you.

Do you understand that?

[APPELLANT]: Yes.

N.T. Guilty Plea, 1/23/18, at 7-8. Thus, the record belies Appellant’s claim 

that counsel withdrew the suppression motion and coerced him into entering 

an involuntary plea. 

Accordingly, Appellant has failed to convince us that the PCRA court 

erred in dismissing his PCRA petition and that he is entitled to relief from this 

Court. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2021