J-S01012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ERVIN REYES

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 991 MDA 2016

Appeal from the PCRA Order May 24, 2016

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0001001-2014

BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 09, 2017

Appellant, Ervin Reyes, appeals from the order entered in the 

Lancaster County Court of Common Pleas, which denied his first petition 

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm. 

In its opinion, the PCRA court fully and correctly sets forth the relevant 

facts and procedural history of this case. Therefore, we have no reason to 

restate them. We add only that Appellant timely filed a notice of appeal on 

June 15, 2016. On June 17, 2016, the court ordered Appellant to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Appellant timely filed his concise statement on July 6, 2016. 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
J-S01012-17

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Appellant raises the following issue for our review:

WHETHER THE [PCRA] COURT ERRED IN DENYING POSTCONVICTION RELIEF WHERE THE FAILURE OF DEFENSE 

COUNSEL TO DEVELOP AVAILABLE ALIBI EVIDENCE 

COMPELLED APPELLANT TO PLEAD GUILTY AND 

APPELLANT WAS PREJUDICED THEREBY? 

(Appellant’s Brief at 4). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the record supports the court’s determination and 

whether the court’s decision is free of legal error. Commonwealth v. Ford, 

947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 

(2008). This Court grants great deference to the findings of the PCRA court 

if the record contains any support for those findings. Commonwealth v. 

Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 

A.2d 74 (2007). If the record supports a post-conviction court’s credibility 

determination, it is binding on the appellate court. Commonwealth v. 

Dennis, 609 Pa. 442, 17 A.3d 297 (2011). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Jeffery D. 

Wright, we conclude Appellant’s issue merits no relief. The PCRA court 

opinion comprehensively discusses and properly disposes of the questions 

presented. (See PCRA Court Opinion, filed May 24, 2016, at 11-25) 

(finding: during guilty plea colloquy, Appellant admitted he committed sex 

offenses, notwithstanding his trip to New York; Appellant’s current claim 
J-S01012-17

- 3 -

contradicts his police confession, in which Appellant did not mention his trip 

to New York and in which he also stated his daughter, victim, always told 

truth; relevant date of Appellant’s purported alibi is from approximately 

December 22, 2008, to January 7, 2009; dates of alibi do not coincide with 

dates of offenses; discovery documents concerning Appellant’s return from 

New York negate Appellant’s supposed alibi; even if Appellant returned from 

New York on January 7, 2009, Appellant would have been in Lancaster and 

able to commit charged offenses within time period described in police 

reports and Affidavit of Probable Cause; plea counsel testified credibly at 

PCRA hearing that he had discussed dates of offenses and alibi claim with 

Appellant several times; plea counsel discussed with Appellant why alibi was 

without merit because alibi only covered first week of January 2009; on 

other hand, Appellant’s PCRA hearing testimony was not credible; plea 

counsel and Appellant knew of dates of charges well in advance of guilty 

plea and purported discrepancy in dates did not actually mislead, prejudice, 

or surprise Appellant; plea counsel had reasonable basis for not further 

investigating or developing alibi claim, because purported alibi was 

meritless; plea counsel’s failure to raise purported alibi caused Appellant no 

prejudice; Appellant lacks any evidence to support his claim of ineffective 

assistance of counsel beyond his bare assertion that counsel failed to pursue 

alibi claim; likewise, Appellant presented no evidence to show he would have 

elected to go to trial if plea counsel had pursued alibi claim). We accept the 
J-S01012-17

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PCRA court’s reasoning. Even though the criminal information gives a 

generic date for the offenses as “01/01/2009,” the Commonwealth did not 

have to prove the offenses actually occurred on a specific date. See 

Commonwealth v. Einhorn, 911 A.2d 960, 978 (Pa.Super. 2006), appeal 

denied, 591 Pa. 723, 920 A.2d 831 (2007) (holding exact date of offense is 

unnecessary to provide sufficient notice, where date is not essential element 

of offense). Contrary to Appellant’s proposition that the offense must be 

confined to an exact date in order for the criminal information to be valid, 

Rule 560 specifically allows “an allegation that [the offense] was committed 

on or about any date within the period fixed by the statute of limitations 

shall be sufficient” if the exact date of the alleged crime is unknown. See

Pa.R.Crim.P. 560(B)(3). 

Moreover, we observe the criminal complaint and the affidavit of 

probable cause refer to the date of the offense(s) as “January 2009” and “a 

few weeks after New Year’s Day.” So, Appellant can hardly claim he was 

misled by the criminal information, which referred to a basic offense date of 

“01/01/2009.” See Einhorn, supra (stating variance is not fatal to 

indictment “unless it could mislead the defendant at trial, impairs a 

substantial right, or involves an element of surprise that would prejudice the 

defendant’s efforts to prepare his defense”). Accordingly, we affirm on the 

basis of the PCRA court’s opinion. 
J-S01012-17

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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/9/2017
1 Def's Am. Mot. for Post-Convlction Relief ,r 7a. 

2 Def's Am. Mot. for Post-Conviction Relief ,r 7b. 

3 18 Pa. C.S.A. § 3121(c). 

418 Pa. C.S.A. § 3125(b). 

s 18 Pa. C.S.A. § 3123(b). 

Deviate Sexual Intercourse with a Child (F-1),5 Indecent Assault of a Person Less than 

of Rape of a Child (F-1 ), 3 Aggravated Indecent Assault of a Child (F-1), 4 Involuntary 

On Criminal Information 1001-2014, Petitioner was charged with one count each 

BACKGROUND 

denied. 

information."2 For the reasons that follow, Petitioner's Amended PCRA Petition is 

offenses he did not commit, and that he is "innocent of the crimes as charged in the 

Petitioner claims that his guilty plea was unlawfully induced, that he pied guilty to 

advocate" Petitioner's alibi defense.1 As a result of this allegedly ineffective assistance, 

Petitioner claims ineffective assistance of guilty plea counsel to "investigate, litigate and 

Relief pursuant to the Post Conviction Relief Act ("PCRA"). In his Amended Petition, 

Before the Court is Petitioner Ervin Reyes' Amended Petition for Post-Conviction 

BY: WRIGHT, J. 

ERVIN REYES 

v. 

COMMONWEALTH OF PENNSYLVANIA 

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OPINION 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL 

Circulated 01/19/2017 12:07 PM
2 

6 18 Pa. C.S.A. § 3126(a)(7). 

7 18 Pa. C.S.A. § 4302. 

a 18 Pa. C.S.A. § 6301 (a)(1 ). 

9 Petitioner's daughter was 11 years old when the underlying incident occurred and was 15 years old 

when she reported it to the police. 

10 Between his arrest and the Guilty-Plea/Sentencing hearing, Petitioner filed a number of prose motions 

as follows: "Writ of Habeas Corpus," "Petition to Dismiss," "Motion to Release on Nominal Bail, all filed on 

or about July 18, 2014. "Motion for Ineffective Counsel" filed on or about July 29, 2014. Another "Writ of 

Habeas Corpus" filed on or about August 12, 2014 and a "Motion to Reduce Bail," filed on or about 

August 21, 2014. Because Petitioner was represented by Samuel Encarnacion, Esquire, when each of 

these prose filings was submitted, they were all forwarded to Attorney Encarnacion for his review. 

A Guilty-Plea/Sentencing hearing was held on December 1, 2014.10 During the 

proceeding, Petitioner was represented by Samuel Encarnacion, Esquire. N:T. fr:.1,1+yfi1a.&~me"i:·'J /./,~ oJ I· 

Petitioner indicated that he wished to plead guilty pursuant to a negotiated plea 

(Aff. Prob. Cause f 4.) 

daughter's] vagina" and to "inserting the tip of his penis into [his daughter's] vagina." 

his daughter was] telling the truth" and admitted to "insert[ing] his finger into [his 

interview. (Aff. Prob. Cause f 3.) During his own police interview, Petitioner "stated [that 

3. ) Petitioner's daughter repeated these allegations during a subsequent police 

of her ... insert[ing] his penis inside her vagina." (Campi. at 3-5; Aff. Prob. Cause ,m 1- 

vagina ... lick[ed] the inside of her vagina with his tongue ... [and] then climbed on top 

vagina with his hands ... pulled down her shorts ... inserted his finger inside her 

had "entered her room and laid down beside her on the bed" and then "rubb[ed] her 

four years ago, during the winter time, a few weeks after [New Year's Day]" her father 

2013. (Aff. Prob. Cause ,m 1-2.) Petitioner's daughter reported that "approximately (4) 

that occurred around the month of January of 2009 and was reported on August 14, 

resulted from a sexual encounter between Petitioner and his minor9 biological daughter 

13 Years of Age (F-3),6 Incest (F-2),7 and Corruption of a Minor (M-1).8 The charges 
11 18 Pa. C.S.A. § 3121(c). 

12 18 Pa. C.S.A. § 3125(b). 

13 18 Pa. C.S.A. § 3123(b). 

14 18 Pa. C.S.A. § 3126(a)(7). 

is 18 Pa. C.S.A. § 4302. 

te 18 Pa. C.S.A. § 6301 (a)(1 ). During the Guilty Plea/Sentencing Hearing, ADA King and I both incorrectly 

referred to this Count (Corruption of Minors) as a "felony of the third degree." (N.T. Guilty Plea & 

Sentencing Hr'g. at 2:19-20, 12:3-6.) The Plea Agreement, as reflected in the Guilty Plea slip, both 

Informations, the Oral Colloquy, and the Sentencing Order, indicates that the Parties agreed that this 

Count should be amended from an F-3 to a misdemeanor of the first degree (M-1 ). (lg,_ at 11 :25.) 

Specifically, on the guilty plea slip, the "F-3" is crossed off and "M-1" is written in next to it. Regardless of 

whether Count 6 is an F-3 or M-1, the sentence I ordered on that Count is proper. 

3 

discussion of the Commonwealth's invocation of the ten-year mandatory minimum 

his plea was fully knowing and voluntary. (kl at 3:16-21.) This colloquy included 

colloquy to ensure that he understood the rights he gave up by pleading guilty and that 

Before accepting Petitioner's guilty plea, I conducted an extensive, on-the-record 

Sex Offender Conditions 1-20 and no contact with the victim. (kl at 2:22-25.) 

(25) years. In addition, the Plea Agreement called for Megan's Law to apply, specifically 

receive an agreed-upon aggregate sentence of twelve and one-half (12Y2) to twenty-five 

concurrent with each other. (kl at 2:21-22.) Thus, On Counts 1-6, Petitioner would 

(4) years of incarceration. (kl at 2:19-20.) The Sentences on all Counts were to be 

incarceration on each Count. (kl at 2:7-15.) On Count 4-lndecent Assault of a Child (F3),14 Petitioner would serve two (2) to four (4) years of incarceration.fjq, at 2:16-17.) On 

Count 5-lncest (F-2),15 he would serve to ten (10) to twenty (20) years of incarceration. 

(kl at 2: 18.) On Count 6-Corruption of a Minor (M-1),16 He would serve two (2) to four 

Count 3-lnvoluntary Deviate Sexual Intercourse with a Child Less than 13 Years of Age 

(F-1),13 he would serve twelve and one-half (12 Y2) to twenty-five (25) years of 

agreement with the following terms. (See id. at 2:7-25, 3:12-14, 15:5-9.) On Count 1- 

Rape of a Child (F-1),11 Count 2-Aggravated Indecent Assault of a Child (F-1),12 and 
4 

17 The Commonwealth could also have invoked a "second-strike" ten-year mandatory minimum, due to 

Petitioner's prior conviction for robbery under 42 Pa.C.S.A. § 9714(A). (See Sentencing Guidelines 

Worksheet.) 

1e 18 Pa. C.S.A. § 3121(c). 

19 18 Pa. C.S.A. § 3125(b). 

20 18 Pa. C.S.A. § 3123(b). 

21 42 Pa.C.S.A. § 9718. 

services of Attorney Encarnacion. (lg,_ at 15:16-18.) After Petitioner addressed his 

promises. (lg,_ at 4:4-22, 14:1-15:18.) Petitioner also stated that he was satisfied with the 

fully voluntary and in no way the result of the effects of medication, force, coercion or 

trial rights he would forfeit by pleading guilty and that his decision to plead guilty was 

the actions as summarized. (lg,_ at 13:2-24.) He next indicated that he understood the 

Assistant District Attorney summarized the evidence, Petitioner admitted to performing 

unless I accepted it and that he still wished to plead guilty. (Jsl at 6:1-13:1.) After the 

he faced and that I was not bound by the terms of the negotiated agreement until and 

Petitioner then indicated that he understood the charges and maximum penalties 

with his attorney. (lg,_ at 6:23-7:18.) 

allowing Petitioner to continue with his guilty plea after he had reviewed his decision 

might have been innocent of one of the crimes charged, I stopped the Proceeding, only 

accurate. (lg,_ at 5:6-25.) Furthermore, when Petitioner hesitated and indicated that he 

legal effect and verified that his handwritten answers on the colloquy form were 

indicated that he had signed these documents fully understanding their meaning and 

plea colloquy, a signed plea agreement form, and a guilty plea slip that Petitioner had 

reviewed with his attorney before signing them. (See id. at 4:23-5:25.) Petitioner 

of age.21 (lg,_ at 6:16-19, 8:10-13, 9:23-10:1.) I also accepted a seven-page written guilty 

sentence17 on Counts 1,18 2,19 and 320 due to the victim's being less than thirteen years 
5 

22 I ordered Petitioner to have Time Credit from October 31, 2013 (the Arrest Date provided in the 

Complaint) to December 1, 2014 (the Sentencing Date). 

23 On Count 1-Rape of a Child (F-1 ), Count 2-Aggravated Indecent Assault of a Child (F-1 ), and Count 3 

(Involuntary Deviate Sexual Intercourse with a Child Less than 13 Years of Age (F-1) I sentenced 

Petitioner to twelve and one-half (12 %) to twenty-five (25) years of incarceration on each Count. On 

Count 4-lndecent Assault of a Child (F-3), I sentenced Petitioner to two (2) to four (4) years of 

incarceration. On Count 5-lncest (F-2), I sentenced Petitioner to ten (10) to twenty (20) years of 

incarceration. On Count 6-Corruption of a Minor (M-1 ), I sentenced Petitioner to two (2) to four (4) years 

of incarceration. The Sentences on Counts 1-6 (all counts) were concurrent with each other, in 

accordance with the Plea Agreement. 

24 Petitioner waived his right to have me read him the Megan's Law registration requirements and stated 

that he had signed the Notice of Registration Form and fully understood the requirements. (N.T. Guilty 

Plea & Sentencing Hr'g. at 18:14-23.) 

before signing the form acknowledging the same. (N.T. Guilty Plea & Sentencing Hr'g. 

that he fully understood those conditions and had reviewed them with his attorney 

Hr'g. at 18:14-19:21, Sentencing Conditions Order, 12/01/2014, at 3.) Petitioner stated 

contact with the victim (his daughter) or her family, noted that Megan's Law applied to 

Petitioner,24 and imposed Sex Offender Conditions 1-20. (N.T. Guilty Plea & Sentencing 

Sentencing Order, 12/01/2014, at 1-3.)23 In addition, I ordered Petitioner to have no 

Agreement. (19.:. at 17:15-18:6.) Specifically, on Counts 1-6, I gave Petitioner an 

aggregate sentence of twelve and one-half (12%) to twenty-five (25) years with 397 

days of time credit, with all time being concurrent.22 (See id. at 18:14, Plea Agreement; 

the pleas as presented and sentenced Petitioner according to the terms of the Plea 

I found Petitioner's pleas to have been knowingly and voluntarily made, accepted 

did Petitioner apologize to his family. (19.:. at 17:9-12.) 

difficulties that Petitioner's crimes had caused their family. (lit at 16:17-17:8.) Only then 

that, the victim-Petitioner's biological daughter-addressed the Court, noting the 

guilty plea would bring a sense of closure to Petitioner's family (kt:. at 15:22-16:16.) After 

responsibility for the charged offenses and implied that Petitioner hoped that the instant 

family, Attorney Encarnacion noted that, in his opinion, Petitioner acknowledged 
25 Petitioner's Judgment of Sentence became final on December 31, 2014, which was 30 days after the 

Judgment of Sentence was entered on December 1, 2014. See 42 Pa. C.S.A. § 9545(b)(3) (noting that, 

under the PCRA, a "judgment becomes final ... at the expiration of time for seeking the review."); 

Pa.R.Crim.P. 903 (noting that the notice of appeal from a final order like my December 1, 2014 Judgment 

of Sentence "shall be filed within 30 days after the entry of the order from which the appeal is taken). 

According to the PCRA, Petitioner had until December 31, 2015 to file his PCRA Petition. Thus, 

Petitioner's Petition filed on or about October 7, 2015 is timely. See 42 Pa.C.S.A. § 9545(b)(1) (noting 

that any PCRA Petition "shall be filed within one year of the date the judgment becomes final ... " 

6 

hearing was whether guilty plea counsel Samuel Encarnacion "properly addressed or 

the Commonwealth. (N.T. PCRA Hr'g., 02/12/2016 at 1.) The sole issue raised at the 

represented Petitioner at the PCRA hearing while Amber Czerniakowski represented 

The PCRA hearing was held on February 12, 2016. Russell Pugh, Esquire, 

an evidentiary hearing was necessary. 

or about December 18, 2015 the Commonwealth submitted its Response, agreeing that 

Conviction Collateral Relief" requesting a hearing on Petitioner's Amended Motion. On 

December 14, 2015, Petitioner submitted a timely "Amended Petition for PostRussell Pugh, Esq. to represent Petitioner during the PCRA proceedings. On or about 

Petitioner did not file any direct appeal. Petitioner filed a timely prose PCRA 

Petition on or about October 7, 2015.25 In my October 13, 2015 Order, I appointed 

signing the associated form. (kl. at 21 :5-12.) 

post-plea appeal rights and had reviewed them with Attorney Encarnacion before 

sentencing. (!sh at 20:25-21 :4.) Finally, Petitioner stated that he fully understood his 

assessment to be submitted to the District Attorney's Office within 90 days of 

undergo assessment by the Sexual Offender Assessment Board, with the report of that 

and wished to be sentenced immediately. (!sh at 18:25-19:9.) I directed Petitioner to 

Sexually Violent Predator evaluation, stating that he had signed the corresponding form 

at 19:10-21.) Petitioner also waived his right to postpone sentencing prior to his 
explored" Petitioner's alibi defense. (kl at 3:7-9.) Three witnesses testified: Samuel 

Encarnacion, Esquire; Maria Reyes, Petitioner's wife and the victim's biological mother; 

and Petitioner. 

Attorney Encarnacion testified that the Information provided to him by the 

Commonwealth listed the date of the offense as "on or about" January 1, 2009. (kl at 

4:9-15.) He added that, while he was not aware of the second Information filed in the 

case that listed the offense date as January 1, 2009, without the "on or about" language, 

he had seen that document before the PCRA Hearing. (kL. at 5:3-13.) He also noted that 

the Complaint and Affidavit of Probable Cause explicitly stated that the date of the 

offense was "a few weeks after" January 1, 2009. (kl at 5:17-25.) 

He noted that he had several discussions with Petitioner about Petitioner's 

whereabouts around the time of the offense, specifically about Petitioner's claim that he 

was in New York at a funeral during the first few days of January of 2009. (kL. at 6:1-25.) 

He indicated that, due to their conversations, Petitioner was very familiar with the 

discovery, especially the time frame of the alleged offense. (kt at 11 :1-3.) He added 

that he had reviewed the discovery with Petitioner, including, among other things, the 

Criminal Information, and Affidavit of Probable Cause, which indicated that the offense 

actually occurred a few weeks after January 1, 2009. (kl at 11 :9-15.) He further noted 

that, as a result, he had informed Petitioner that his trip to New York could not provide a 

complete alibi defense because it did not create a "legal impossibility that [Petitioner] 

could not have committed the crime" due to the fact that he returned to Lancaster from 

New York within the allegation period. (kl at 6:9-22, 11 :4-15.) He added that he also did 

not pursue an alibi defense because Petitioner had provided a detailed confession to 

7 
the crimes, which never raised the issue of a potential alibi. (~ at 11: 19-24, 13:23- 

14: 1.) He also stated that Petitioner never asked him to file any post-sentence motion to 

withdraw his guilty plea or any direct appeal. (lfl at 12:1-7.) 

He added that, in his opinion, Petitioner decided to plead guilty in part because 

the Commonwealth offered to reduce his minimum sentence from fifteen to twelve and 

one-half years. (~ at 13:6-17 .) Attorney Encarnacion further testified that Petitioner's 

decision to plead guilty was fully Petitioner's and that he had advised Petitioner that the 

Commonwealth had a strong case due to his detailed confession, especially Petitioner's 

statement that he had told the police that "his daughter was right; that he raised his 

daughter to tell the truth and she was right." (19.:. at 13:18-14:16.) He also stated that the 

Commonwealth had filed a Motion to introduce the prior bad act evidence of similar 

intra-family molestation with a stepdaughter that had allegedly occurred during the 

same time period as the allegations in the instant case and that the Court's ruling on 

that Motion was outstanding at the time Petitioner entered his guilty plea. (kl at 12:23- 

13: 1, 14:2-6.) He added that he believed that, had I granted the Commonwealth's 

Motion, the strong case against Petitioner would have been made even stronger and 

that the Commonwealth would have likely withdrawn the guilty plea offer as a result. (19.:. 

at 14:7-13.) Furthermore, he stated that he met with several of Petitioner's family 

members and informed them that he could not speak with them about Petitioner's case 

because he was not their attorney and did not represent their interests. (19.:. at 8:1-9:4.) 

Attorney Encarnacion then commented that he was prepared to try Petitioner's 

case and that he did not think Petitioner's alibi would have had much of an effect on the 

jury in light of the Commonwealth's overwhelming evidence, especially Petitioner's 

8 
26 Pennsylvania Standard Criminal Jury Instruction 3.19. 

9 

6 or 7, 2009. (Isl at 27:1-9.) 

Petitioner was in New York City from approximately December 22, 2008 until January 5, 

the Commonwealth then stipulated that eleven potential witnesses would testify that 

nearly always together while in New York. (kt. at 24:7-16, 25:24-26:10.) Petitioner and 

they had traveled to New York and returned to Lancaster in the same vehicle and were 

testified next. (Isl at 21:10-21.) She testified that Petitioner was in New York City for a 

funeral from around December 20, 2008 until the 5th or 7th of January, 2009, and that 

Maria Reyes, the wife of Petitioner and the biological mother of the victim 

Probable Cause and the Commonwealth's pretrial motions. (!sh at 17:18-18:7.) 

Year's Day, [20]09" and was consistent with the dates provided in the Affidavit of 

Encarnacion stated that the date of the alleged offense was "a few weeks past New 

at Lancaster County Prison. (kt. at 16:1-23.) After looking at a police report, Attorney 

colloquy and that Petitioner had no questions, and that he met frequently with Petitioner 

had thoroughly reviewed the questions and Petitioner's answers on the guilty plea 

of the crimes as charged against Petitioner. (kt. at 15:21-25.) He then confirmed that he 

applicable jury instruction,26 he was aware that the date of the offense is not an element 

were alleged to have occurred. (kt. at 15:2-20.) He also noted that, according to the 

Petitioner was not in Lancaster for at least a part of the period during which the crimes 

had an alibi, he would have raised the issue of the trip to New York to show that 

crimes. (kt. at 15:2-20.) Specifically, he testified that, while he did not think Petitioner 

confession and statements confirming the veracity of his daughter's account of the 
Petitioner testified last. (~ at 27:12-14.) In large part, his testimony directly 

contradicted that of Attorney Encarnacion, except to confirm that Attorney Encarnacion 

had spoken with his family and that the two of them had met several times to discuss 

Petitioner's potential alibi defense as well as Petitioner's options to either plead guilty or 

proceed to trial. (~ at 31 :23-33:16.) Specifically, during his PCRA Hearing, Petitioner 

claimed that he did not commit the charged offenses and that he pied guilty because 

Attorney Encarnacion supposedly told him that if he did not plead guilty, then Attorney 

Encarnacion would ensure that Petitioner would lose at trial and would receive a 

sentence of 40-80 years. (~ at 28:8-21.) He further stated that he was in New York City 

for a funeral from approximately December 22, 2008 until January 7, 2009. (kl at 29:19- 

21.) He then added that, according to his recollection, the Commonwealth's initial offer 

was not 15 to 35 years, as Attorney Encarnacion had testified, but was for 1 O to 20 

years, claiming that the discrepancy was due to the Commonwealth's supposedly 

carrying out its promise to Petitioner when he was incarcerated in Lancaster on a DUI in 

2007 that, if he ever came back to jail, the Commonwealth would "give him an extra five 

to 15." (~ at 33:17-24.) 

Next, while Petitioner claimed to be unable to remember the on-the-record guilty 

plea colloquy I conducted with him, he conceded that such a colloquy had occurred.(~ 

at 34:5-36:15.) Specifically, he stated that he did not recall telling me that his plea was 

not the result of force or coercion or that his decision to plead guilty was fully voluntary 

or that he was satisfied with the services of Attorney Encarnacion. (&) Petitioner then 

claimed that his purported confession to police was not a confession at all, but was 

simply him echoing what his daughter had said and confirming that, at the time, she 

10 
11 

27 Judgment of sentence was entered on December 1, 2014. A PCRA Petition must be filed within one 

year of the date the judgment becomes final. 42 Pa.C.S.A. § 9545{b)(1 ). Judgment becomes final at the 

conclusion of direct review, or at the expiration of time for seeking the review . .Lg.,_ §9545(b)(3). Petitioner 

did not file a direct appeal. Therefore, his sentence became final on December 31, 2014. See Pa.RAP. 

903(a) (providing that an appellant has 30 days from the entry of the Trial Court Order within which to file 

a notice of appeal). Here, Petitioner filed his prose PCRA Petition on or about October 7, 2015, and the 

Amended Petition was filed on or about December 14, 2015, both well within the one-year filing period. 

Thus, the PCRA Petition was timely. 

and was incarcerated at his assigned SCI when he filed his pro se PCRA Petition and 

relief is requested. kl§ 9543(a)(1 )(i-iii). Petitioner was convicted on December 1, 2014 

Commonwealth," and must be imprisoned, on probation, or on parole at the time that 

Second, a defendant must have "been convicted of a crime under the laws of this 

elements of the statute by a preponderance of the evidence. kl § 9543(a). First, the 

PCRA Petition must be timely. Here, Petitioner's PCRA Motion was timely filed.27 

eligible for relief under the PCRA, a petitioner must plead and prove all four of the 

serving an illegal sentence may obtain collateral relief. 42 Pa.C.S.A. § 9542. To be 

provides for an action by which a petitioner convicted of a crime they did not commit or 

This appeal is governed by the Post-Conviction Relief Act ("PCRA"). The PCRA 

DISCUSSION 

April 29, 2016. 

Conviction Relief on April 21, 2016 and the Commonwealth filed a timely response on 

After the PCRA Hearing, Petitioner submitted a timely "Brief Urging Post38:1-3.) 

had admitted to the factual basis of the charges during the guilty plea hearing. (kl at 

habit for veracity, claiming that he does not "recognize [his] daughter these days 

because she has been lying." (kl at 36:10-14.) Finally, Petitioner acknowledged that he 

never lied. (kl at 36:1-14.) He immediately qualified this statement about his daughter's 
12 

zs "An issue has been previously litigated when 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 or the issue has been raised and 

decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S.A. § 9544(a) 

(internal punctuation omitted). An issue 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 post-conviction proceeding." 19:. § 

9544(b). 

4.) The Commonwealth further argues that Petitioner's guilty plea counsel had a 

arguable merit because the trip to New York does not cover the time period when the 

crimes occurred. (Commw.'s Br. Opposing Pet's.' Br. Urging Post-Conviction Relief at 

The Commonwealth responds that Petitioner's claim of alibi does not have 

assistance and alibi). 

Commonwealth v. Elliott, 466, A.2d 666, 667 (Pa. Super. Ct. 1983) (ineffective 

Commonwealth v. Casner, 461 A.2d 324, 328-29 (Pa. Super. Ct. 1983), accord 

Super. Ct. 2013) (citation omitted) (ineffective assistance and guilty plea); 

2014) (guilty plea generally); Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. 

PCRA. See, e.g., Commonwealth v. Prendes, 97 A.3d 337, 351-52 (Pa. Super. Ct. 

(Pet.'s Br. Urging Post-Conviction Relief at 5.) Such a claim is cognizable under the 

assistance by failing to adequately investigate or develop Petitioner's alibi defense. 

Petitioner raises one issue, claiming that his trial counsel provided ineffective 

errors enumerated in the statute. ~ § 9543(a)(2). 

defendant must prove that his sentence or conviction was the result of one or more 

been raised previously by Petitioner. Thus, this element is established. Finally, a 

been previously raised or decided in a prior collateral proceeding, and could not have 

The issue here has not been reviewed by the highest potential appellate court, has not 

the Amended PCRA Petition. Accordingly, this element is established. Third, Petitioner 

must show that the issue has not been previously litigated or waived.~§ 9543(a)-(b).28 
reasonable basis for not further investigating Petitioner's alibi claim because both 

Petitioner and guilty plea counsel were aware of the dates Petitioner was in New York 

and further investigation would not have expanded or altered that date range to cover 

the time period when the crimes occurred. (~) In other words, the Commonwealth 

argues that any further investigation into Petitioner's claim of alibi would have been a 

waste of time. (~) 

The Commonwealth adds that Petitioner's attempt to bind the Commonwealth to 

January 1 , 2009 as the date of the offense is of no moment because Petitioner waived 

any challenge to date of offense as listed in the Information by not raising that issue on 

direct appeal, but by waiting until the PCRA Petition to do so. (kt. at 7 n.7.) The 

Commonwealth further contends that, even if Petitioner's claim in this regard is not 

waived, it is meritless because, under the applicable case law, any variance in the dates 

provided on an Information is fatal only if it would mislead Petitioner or impair a 

substantial right of his and that, in the case sub judice, the discrepancy would not have 

misled Petitioner or impaired one of his substantial rights because both Petitioner and 

Attorney Encarnacion were well aware of the dates of the offenses as alleged and as 

described in the lnformations.fjd.) (citing Commonwealth v. Einhorn, 911 A.2d 960, 978 

(Pa. Super. Ct. 2006)); see Commonwealth v. Ohle, 470 A.2d 61, 73 (Pa. 1983.) 

At the outset, I note that "[a]fter an accused enters a guilty plea, appellate rights 

are limited to challenges to the validity of the plea, the legality of the sentence imposed, 

or the trial court's jurisdiction." Commonwealth v. Flood, 627 A.2d 1193, 1198-99 (Pa. 

Super. Ct. 1993) (citing Commonwealth v. Harvey, 595 A.2d 1280, 1282 (Pa. Super. Ct. 

1991), appeal denied, 608 A.2d 28 (Pa. 1991). In other words, "[w]hen a defendant 

13 
14 

see Pa.R.Crim.P. 590. To evaluate the voluntariness of the plea, a reviewing court 

337 at 352 (citing Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa. Super. Ct. 2002)); 

a defendant is aware of his rights and the consequences of his plea." Prendes, 97 A.3d 

Procedure "require the court to conduct an on-the-record colloquy to ascertain whether 

To determine the voluntariness of a guilty plea, the Pennsylvania Rules of Criminal 

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. Ct. 2014) (citation omitted). 

when a plea is not tendered knowingly, intelligently, voluntarily, and understandingly." 

Commonwealth v. Diaz, 913 A.2d 871, 872 (Pa. Super. Ct. 2006) (citing Commonwealth 

v. Lewis, 708 A.2d 497, 500-01 (Pa. Super. Ct. 1998)). "[A] manifest injustice occurs 

if the ineffectiveness caused an involuntary or unknowing plea. This is 

similar to the 'manifest injustice' standard applicable to all post-sentence 

attempts to withdraw a guilty plea. The law does not require that the 

appellant be pleased with the outcome of his decision to enter a plea of 

guilty. All that must be shown is that the appellant's decision to plead guilty 

be knowing, voluntary and intelligently made. 

provide a basis for relief only: 

Under the PCRA, a guilty plea resulting from allegedly ineffective assistance will 

INEFFECTIVE ASSISTANCE OF GUil TY PLEA COUNSEL 

"no." These two related but separate claims will be addressed in turn. 

whether Petitioner's guilty plea was otherwise invalid. The answer to both questions is 

ineffective assistance by his guilty plea counsel, Samuel Encarnacion, Esq.; and (2) 

Therefore, two questions remain: (1) whether Petitioner's guilty plea resulted from 

enters a guilty plea[,] the only legally cognizable issues in a post[-]conviction proceeding 

are those [that] affect either the voluntariness of the guilty plea or the legality of the 

sentence. Commonwealth v. Casner, 461 A.2d 324, 325 (Pa. Super. Ct. 1983). 
15 

should consider "the totality of the circumstances surrounding the plea." Commonwealth 

v. Allen, 732 A.2d 582, 588-89 (Pa. 1999). 

In an ineffectiveness claim, a court presumes that defense counsel provided 

effective assistance. Commonwealth v. Rollins, 738 A.2d 435, 441 (Pa. 1999); accord 

Strickland v. Washington, 466 U.S. 668, 689 (1984), Commonwealth v. ReyesRodriguez, 111 A.3d 775, 779-80 (Pa. Super. Ct. 2015). To overcome the presumption, 

a defendant must demonstrate by a preponderance of the evidence that: (1) the 

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

or inaction; and (3) the defendant has been prejudiced by the ineffectiveness of 

counsel. Reyes-Rodriguez, 111 A.3d 775 at 780. A defendant's claim of ineffectiveness 

fails if he is unable to prove one or more of the three prongs. Commonwealth v. Reyes, 

870 A.2d 888, 896-97 (Pa. 2005); accord Commonwealth v. Fears, 86 A.3d 795, 804 

(Pa. 2014). Regarding prong (1), "counsel cannot be deemed ineffective for failing to 

raise a meritless claim." Commonwealth v. Rivera, 108 A.3d 779, 789 (Pa. 2014) 

(citation omitted). Regarding prong (2), counsel will not be deemed ineffective if any 

reasonable basis exists for his actions. Commonwealth v. Diehl, 61 A.3d 265, 268 (Pa. 

Super. Ct. 2013) (citing Commonwealth v. Carter, 656 A.2d 463, 465 (Pa. 1995)). 

Regarding prong (3), "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. Barndt, 74 A.3d 185, 191 

(Pa. Super. Ct. 2013) (internal quotation marks and citation omitted). "Failure to 

establish any prong of the test will defeat an ineffectiveness claim." Commonwealth v. 
16 

Walker, 36 A.3d 1, 7 (Pa. 2011) (quoting Commonwealth v. Basemore, 744 A.2d 717, 

738 n.23 (Pa. 2000)); see Commonwealth v. Rollins. 738 A.2d 435, 441 (Pa. 1999). 

Petitioner argues that his guilty plea counsel provided ineffective assistance by 

failing to investigate or develop Petitioner's alibi defense. (Pet. 's Br. Urging PostConviction Relief at 5.) This claim is meritless under the PCRA because it fails all three 

prongs of the PCRA's ineffective assistance test: (1) the underlying claim has no 

arguable merit, (2) guilty plea counsel had a reasonable basis for his action or inaction, 

and (3) Petitioner did not suffer prejudice as a result. Commonwealth v. ReyesRodriguez, 111 A.3d 775, 779-80 (Pa. Super. Ct. 2015) (establishing requirements for 

to sustain claim under PCRA for ineffective assistance by guilty plea counsel). 

Initially, Petitioner's claim must fail because his claim is meritless and "counsel 

cannot be deemed ineffective for failing to raise a meritless claim." Commonwealth v. 

Rivera, 108 A.3d 779, 789 (Pa. 2014) (citation omitted). During the guilty plea, Petitioner 

admitted that he had committed the crimes as described by the Commonwealth and the 

statements of his daughter. notwithstanding his trip to New York. (N.T. Guilty Plea & 

Sentencing Hr'g. at 13:2-24, 16:17-17:8.) Moreover, Petitioner apologized to his family 

for those offenses after his daughter, the victim of his crimes, related the pain and 

suffering that Petitioner's crimes had caused her and their family. (kl at 16:17-17:12.) 

Critically, Petitioner's instant claim also flatly contradicts his detailed confession to 

police, during which Petitioner never mentioned his trip to New York, and his statement 

that that his daughter, who reported the crimes, always told the truth. (kl at 15:2-20, 

11:19-24, 13:23-14:1.) 
Put differently, Petitioner's purported alibi was no alibi. It is settled law that "[a]n 

alibi is 'a defense that places the defendant at the relevant time in a different place than 

the scene involved and so removed therefrom as to render it impossible for him to be 

the guilty party."' Commonwealth v. Rainey, 928 A.2d 215, 234 (Pa. 2007) (quoting 

Commonwealth v. Roxberry, 602 A.2d 826, 827 (Pa. 1992)) (internal quotation omitted), 

accord Commonwealth v. Pounds, 417 A.2d 597, 602 (Pa. 1980) (internal quotation 

omitted.) Furthermore, '"[a]t the core of an alibi defense is, of course, consistency 

between the date and time of the crime and that of the defendant's alibi."' 

Commonwealth v. Ali, 10 A.3d 282, 316 (Pa. 2010) (quoting Commonwealth v. 

[Raymond] Johnson, 966 A.2d 523, 538 & n.5 (2009)). Here, the relevant "date and time 

of the crime" is a few weeks after January 1, 2009, as indicated in the discovery 

documents. (N.T. PCRA Hr'g. at 5:17-25); Commonwealth v. Ali, 10 A.3d 282, 316 (Pa. 

2010). The relevant "date and time of [Petitioner's] alibi" is from approximately 

December 22, 2008 until, at the latest, January 7, 2009. (N.T. PCRA Hr'g. at 27:1-9, 

29:19-21); Ali, 10 A.3d 282 at 316. Thus, there is absolutely no "consistency between 

the date and time of the crime and that of [Petitioner's] alibi." Ali, 10 A.3d 282 at 316. 

That the Commonwealth need not prove the time of the offense as an element of the 

crimes charged only strengthens this conclusion. (N.T. PCRA Hr'g. at 15:21-25) (noting 

Pennsylvania Standard Criminal Jury Instruction 3.19.) 

In other words, Petitioner's claim has absolutely no merit, let alone "reasonable 

merit," because the discovery documents in concert with Petitioner's own testimony 

about his return date from New York explicitly negate that alibi. (~ at 5: 17-25) 

(discovery documents),(~ at 27:1-9) (stipulation), (JJ;L at 29:19-21) (Petitioner's 

17 
testimony.) Even if Petitioner returned to Lancaster on the latest possible date of 

January 7, 2009, he would have been in Lancaster and thus able to commit the 

offenses as charged within the time period described in the police reports and Affidavit 

of Probable Cause. (kl at 5:17-25, 6:9-22, 11 :4-15, 17:18-18:7.) Moreover, Attorney 

Encarnacion provided credible testimony confirmed by Petitioner that he had discussed 

the dates of the offenses at least several times with Petitioner, that Petitioner was quite 

familiar with that discovery, and that they had discussed Petitioner's alibi claim and why 

Petitioner's absence from Lancaster was not a true alibi because it only covered the first 

week in January 2009, when the offenses were alleged to have been committed weeks 

later. (kl at 6:1-25, 11 :1-15, 16:1-23) (Attorney Encarnacion's statements),(~ at 

31 :23-33:16) (Petitioner's Statements); see Commonwealth v. Ali, 10 A.3d 282, 316 

(Pa. 2010) (no ineffective assistance for guilty plea counsel's failure to develop 

meritless alibi claim). 

I find Attorney Encarnacion's testimony in this regard at the PCRA Hearing to be 

credible because he remembered when and where his conversations with Petitioner 

occurred and because his account is confirmed in the Guilty Plea Hearing transcript. (kl 

at 16: 1-23 .. ) On the other hand, I find Petitioner's testimony to the contrary to be not 

credible because it is entirely self-serving and at variance with the record. Initially, his 

statement that the minimum offer from the Commonwealth was suddenly increased by 

five years as a result of incarceration for DUI in 2007 defies belief. (See id. at 33:17-24.) 

Additionally, Petitioner's bald, unsupported allegation that Attorney Encarnacion would 

deliberately sabotage Petitioner's case if Petitioner chose to go to trial in order to ensure 

that Petitioner would receive a sentence of 40-80 years is equally ludicrous. (See id. at 

18 
28:8-21.) Furthermore, Petitioner's contentions that he could not recall his answers 

during the guilty plea colloquy despite the transcript and written waiver form to the 

contrary are similarly self-serving. (19.:. at 34:5-36: 15.) Finally, I find his attacks on the 

integrity of his own daughter, the victim of his crimes, by claiming that her allegations 

are now suddenly false despite his prior, repeated statements to the contrary 

untrustworthy and, frankly, under the circumstances, repugnant. (See id. at 36:1-14.) 

I agree with the Commonwealth that, to the extent that Petitioner's argument 

depends exclusively on the Information providing the date of the offense as January 1, 

2009 rather than "on or about" January 1, 2009, that argument is meritless. (See Pet's. 

Br. Urging Post-Conviction Relief at 4-5.) In Pennsylvania, "'indictments must be read in 

a common sense manner and are not to be construed in an overly technical sense."' 

Commonwealth v. Einhorn, 911 A.2d 960, 978 (Pa. Super. Ct. 2006) (quoting 

Commonwealth v. Ohle, 470 A.2d 61, 73 (Pa. 1983)). A difference between 

Informations is not "fatal unless it could mislead the defendant at trial, impairs a 

substantial right or involves an element of surprise that would prejudice the defendant's 

efforts to prepare his defense" because "[t]he purpose of the indictment is to provide the 

accused with sufficient notice to prepare a defense." Einhorn, 911 A.2d 960 at 978. 

Here, the record makes abundantly clear that Guilty Plea Counsel and Petitioner knew 

the dates of the alleged offenses well in advance of Petitioner's guilty plea and that 

Petitioner was not misled, prejudiced or surprised by the discrepancy in any way. (N.T. 

PCRA Hr'g. at 6:1-25, 11: 1-15, 16:1-23) (Attorney Encarnacion's statements); (19.:. at 

31:23-33:16) (Petitioner's Statements). Simply put, Petitioner's claim is meritless 

because Attorney Encarnacion "cannot be faulted for failing to pursue an alibi defense . 

19 
.. that would not even establish alibi." Commonwealth v. Ali, 10 A.3d 282, 316 (Pa. 

2010.) Accordingly, Petitioner's claim must fail the first prong of the PCRA's ineffective 

assistance test. 

Turning to prong (2) of the PCRA's ineffective assistance test, counsel will not be 

deemed ineffective if any reasonable basis exists for his actions. Commonwealth v. 

Diehl, 61 A.3d 265, 268 (Pa. Super. Ct. 2013) (citing Commonwealth v. Carter, 656 

A.2d 463, 465 (Pa. 1995)). Specifically, "[t]o show ineffectiveness for not presenting alibi 

evidence, [Petitioner] must establish that [guilty plea] counsel could have no reasonable 

basis for his act or omission." Commonwealth v. Rainey, 928 A.2d 215, 234 (Pa. 2007). 

I conclude that Attorney Encarnacion had a reasonable basis for his action or 

lack thereof in Petitioner's case. Initially, Attorney Encarnacion testified that he knew 

that Petitioner's absence from Lancaster failed to establish alibi and, accordingly, that 

his alibi claim was meritless. (N.T. PCRA Hr'g. at 15:2-20.) Thus, on that ground alone, 

Attorney Encarnacion had a reasonable basis for not investigating or developing a 

meritless claim. Moreover, Attorney Encarnacion asserted additional reasonable bases 

for not investigating or developing Petitioner's alibi claim. Namely, he did not think 

providing evidence of Petitioner's trip to New York would have held much weight with 

the jury because it did not cover dates of the alleged offenses, because the 

Commonwealth did not have to prove that the offense occurred on a specific date, and 

especially because of the Commonwealth's overwhelming evidence, including 

Petitioner's confession and the potential admission of evidence of similar allegations 

against another family member.jjq, at 12:23-13:1, 14:2-13) (prior bad acts evidence), 

(~ at 15:2-25) (strength of alibi and elements of offense.) Attorney Encarnacion further 

20 
testified that, nevertheless, he was prepared to raise the issue of Petitioner's absence 

from Lancaster at trial insofar as he believed helpful to show inconsistencies in the 

dates of the offenses alleged by the Commonwealth. (lg,_ at 15:2-20.) Thus, Attorney 

Encarnacion had a reasonable basis for not investigating or developing Petitioner's alibi 

claim.Therefore, Petitioner's claim also fails the second prong of the PCRA's ineffective 

assistance test. 

The third prong of the PCRA's ineffective assistance test is just as easily 

satisfied. Under the PCRA, "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. Barndt, 74 A.3d 185, 

1q2 (Pa. Super. Ct. 2013) (internal quotation marks and citation omitted). As described 

above, Attorney Encarnacion did not commit any errors in handling Petitioner's guilty 

plea, but, even if he had, his behavior did not "prejudice" Petitioner under the PCRA. 

Again, Petitioner fails to present any evidence to support his claim of ineffective 

assistance beyond the bare assertion that Attorney Encarnacion failed to pursue 

Petitioner's alibi claim. (Pet's. Br. Urging Post-Conviction Relief at 4-6.) Moreover, 

Petitioner has failed to present a scintilla of evidence that, had Attorney Encarnacion 

more vigorously pursued Petitioner's alibi claims, Petitioner would have elected to go to 

trial instead of pleading guilty. In fact, Attorney Encarnacion provided credible testimony 

to the contrary. Specifically, Attorney Encarnacion noted (and Petitioner conceded) that 

they had thoroughly discussed Petitioner's alibi claim as well as the limited utility of such 

a defense, especially in light of Petitioner's confession, which would have almost 

certainly been admissible at trial. (N.T. PCRA Hr'g. at 6:9-22, 11 :1-24, 13:23-14:1.) 

21 
22 

Moreover, Petitioner here pied guilty pursuant to a negotiated plea agreement 

that he had signed, indicating that he was aware of the charges and the potential 

sentences he faced. (See Plea Agreement.) Furthermore, at the Guilty Plea Hearing, 

Petitioner was made aware of the charges, his absolute right to a jury trial on those 

charges and the possible sentences he faced, including the mandatory minimum, but 

chose to enter the negotiated guilty plea anyway. (N.T. Guilty Plea Hr'g. at 6:1-13:1) 

(describing charges and sentencing), (id. at 3:9-5:25, 14:6-15:18) (trialrights and desire 

to plead guilty.) Furthermore, Petitioner had multiple opportunities both before and 

during the Guilty Plea Hearing to insist on going to trial instead of pleading guilty, but 

chose to not avail himself of those opportunities. Put differently, deeper investigation by 

Attorney Encarnacion into Petitioner's alibi claim, such as contacting potential 

corroborating witnesses, would not have changed the date Petitioner returned to 

Lancaster, which was long before the crimes occurred. Thus, such investigation would 

not have provided Petitioner with any additional information that could have caused him 

to decide to go to trial instead of pleading guilty. Simply stated, it would have been a 

waste of time for Attorney Encarnacion and would not have revealed any new 

information that could have impacted the voluntariness of Petitioner's guilty plea. Thus, 

Petitioner has failed to show any probability, let alone a reasonable probability, that he 

would have insisted on a jury trial instead of a guilty plea as a result of that request. In 

short, Petitioner here was not prejudiced. Therefore, he has failed to show that his guilty 

plea resulted from ineffective assistance of counsel. Accordingly, his claim fails the third 

prong of the PCRA's ineffective assistance test. 
INVOLUNTARY GUil TY PLEA 

I find now, as I did at that time, that Petitioner entered a knowing, voluntary, and 

intelligent guilty plea as demonstrated by the extensive on-the-record colloquy. During 

this colloquy, Petitioner indicated that he had voluntarily signed all documents 

associated with his guilty plea after he understood their meaning and legal effect, 

acknowledged that he understood the charges against him, listened to the Assistant 

District Attorney describe the factual basis for the charges, stated that he understood 

that he was forfeiting his right to trial by jury, understood that he was presumed innocent 

and that the Commonwealth had the burden of proving his guilt beyond a reasonable 

doubt, that he understood the permissible ranges of sentences and fines, and that I was 

not bound by the terms of the negotiated plea agreement unless and until I accepted the 

plea. (See generally, N.T. Guilty Plea & Sentencing Hr'g); See Commonwealth v. 

Prendes, 97 A.3d 337, 352 (Pa. Super. Ct. 2014) (stating requirements for adequate 

guilty-plea colloquy). 

Furthermore, it is settled law that "one is bound by one's statements made during 

a plea colloquy, and may not [later] successfully assert claims that contradict such 

statements." Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. Ct. 2002) 

(citation omitted); accord Commonwealth v. Capelli, 489 A.2d 813, 819 (Pa. Super. Ct. 

1985). In other words, a "defendant may not knowingly lie to the court while under oath" 

while entering a guilty plea. Commonwealth v. Pollard, 832 A.2d. 517, 524 (Pa. Super. 

Ct. 2003). Statements that may not be later contradicted include assertions that one is 

satisfied with the services of one's attorney and that one's plea has been voluntarily 

entered. See Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. Ct. 1999). Mere 

23 
"disappointment by a defendant in the sentence actually imposed does not represent 

manifest injustice" warranting the relief of withdrawal of a guilty plea. Muhammad, 794 

A.2d at 384 (quoting Commonwealth v. Munson, 615 A.2d 343 (Pa. Super. Ct. 1992)). 

In other words, Pennsylvania "does not require that a defendant be totally pleased with 

the outcome of his decision to plead guilty, only that his decision be voluntary, knowing, 

and intelligent." Pollard, 832 A.2d 517 at 524. Finally, "the desire of an accused to 

benefit from a plea bargain is a strong indicator of the voluntariness of the plea." ].!h 

Here, Petitioner signed the guilty plea colloquy form, guilty plea slip, and plea 

agreement form, told me that his decision to plead guilty was voluntary and was his own 

decision, that he fully understood what he was doing and the rights he was forfeiting, 

and that he was fully satisfied with the services of Attorney Encarnacion. (N.T. Guilty 

Plea & Sentencing Hr'g. at 4:23-5:25) (Guilty Plea Colloquy Form and Guilty Plea Slip); 

(!!hat 3:12-15) (desire to plead guilty); (kl at 14:6-15:18) (trial rights, voluntariness of 

plea and satisfaction with attorney's services.) He cannot later implicitly contradict these 

statements in his PCRA Petition and Brief. (See generally Def.'s Am. Mot. for PostConviction Relief; Pet's. Br. Urging Post-Conviction Relief.) While Petitioner may not be 

happy with the outcome of his guilty plea and might now regret his decision, he is bound 

by the statements that he made during the Guilty Plea Hearing. See Commonwealth v. 

Muhammad, 794 A.2d 378, 384 (Pa. Super. Ct. 2002). Petitioner was of sufficient age 

and intelligence to understand what he was doing when he pied guilty and cannot, in 

hindsight, assert that his guilty plea was not voluntary or that he was not satisfied with 

Attorney Encarnacion's representation. See Commonwealth v. Stork, 737 A.2d 789, 791 

(Pa. Super. Ct. 1999). Finally, Petitioner's demonstrating a desire to benefit from the 

24 
25 

CONCLUSION 

For the reasons set forth above, I conclude Attorney Encarnacion did not provide 

Petitioner ineffective assistance of counsel and that Petitioner's guilty plea was not 

involuntary. 

Accordingly, I enter the following: 

negotiated plea agreement is a strong indicator of the voluntariness of the guilty plea. 

See Commonwealth v. Pollard, 832 A.2d. 517, 524 (Pa. Super. Ct. 2003) Under the 

Plea Agreement, Petitioner received a minimum sentence of twelve and one-half (12%) 

years, which was less than the Commonwealth's original minimum offer of fifteen (15) 

years and a mere two and one-half (2%) years above the mandatory minimum of ten 

years. (N.T. Guilty Plea & Sentencing Hr'g. at 2:7-25) (Plea Agreement); (N.T. PCRA 

Hr'g. at 13:6-17) (Commonwealth's original offer.) Critically, all sentences on both 

Dockets were concurrent, rather than consecutive. (N.T. Guilty Plea & Sentencing Hr'g. 

at 2:21.) It is unconscionable that Petitioner could accept these very real benefits of the 

bargain while simultaneously avoiding its burdens. In short, Petitioner got a fair deal 

considering the serious charges, strong evidence and his criminal history. Therefore, 

Petitioner's guilty plea was valid and was the product of Attorney Encarnacion's 

effective representation. 
26 

Amber Czerniakowski, Assistant District Attorney 

Samuel Encarnacion, Esq. 

Russell Pugh, Esq. 

Copies to: 

·tlGHT 

.. _/ 

BY TH E/~OU RT: 

'~ 

~n_the.~r~ce.ding ooinion. . 

I cam 1y trns aocument to be filed 

in the Lancaster County Office of 

the Clerk of the Courts. 

IT IS HEREBY ORDERED that said Petition is DENIED for the reasons set forth 

Opposition, and hearings thereon: 

Motion for Post-Conviction Collateral Relief, Supporting Brief, Commonwealth's Brief in 

se filings, deemed to be a Petition for Post-Conviction Collateral Relief, Amended 

BY: WRIGHT, J. May '2.~ , 2016 

AND NOW, this 1£ day of May, 2016, upon consideration of Petitioner's pro 

ORDER 

ERVIN REYES 

v. No. 1001-2014 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION