J-S01012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    ERVIN REYES                                :
                                               :
                      Appellant                :       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


      Appellant raises the following issue for our review:

         WHETHER THE [PCRA] COURT ERRED IN DENYING POST-
         CONVICTION 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


                                     -2-
J-S01012-17


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


                                    -3-
J-S01012-17


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.




                                     -4-
J-S01012-17


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




                          -5-
                                                                           Circulated 01/19/2017 12:07 PM




 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
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                                               OPINION                           '   ~

BY: WRIGHT, J.                                                   May   _rl_, 2016
       Before the Court is Petitioner Ervin Reyes' Amended Petition for Post-Conviction

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

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

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

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

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

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

denied.

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

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

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




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).
13 Years of Age (F-3),6 Incest (F-2),7 and Corruption of a Minor (M-1).8 The charges

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

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

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

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

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

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

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

of her ... insert[ing] his penis inside her vagina." (Campi. at 3-5; Aff. Prob. Cause                    ,m 1-
3. ) Petitioner's daughter repeated these allegations during a subsequent police

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

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

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

(Aff. Prob. Cause f 4.)

        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




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.

                                                      2
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

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

incarceration on each Count. (kl at 2:7-15.) On Count 4-lndecent Assault of a Child (F-

3),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

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

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

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

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

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

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

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

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

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




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

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

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

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

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

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

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

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

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

       Petitioner then indicated that he understood the charges and maximum penalties

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

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

Assistant District Attorney summarized the evidence, Petitioner admitted to performing

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

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

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

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

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




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.
                                                  4
family, Attorney Encarnacion noted that, in his opinion, Petitioner acknowledged

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

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

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

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

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

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

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

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;

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

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

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

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

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


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.)
                                                       5
at 19:10-21.) Petitioner also waived his right to postpone sentencing prior to his

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

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

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

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

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

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

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

Russell Pugh, Esq. to represent Petitioner during the PCRA proceedings. On or about

December 14, 2015, Petitioner submitted a timely "Amended Petition for Post-

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

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

an evidentiary hearing was necessary.

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

represented Petitioner at the PCRA hearing while Amber Czerniakowski represented

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

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



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
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
confession and statements confirming the veracity of his daughter's account of the

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the Commonwealth then stipulated that eleven potential witnesses would testify that

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

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



26   Pennsylvania Standard Criminal Jury Instruction 3.19.
                                                      9
       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
never lied. (kl at 36:1-14.) He immediately qualified this statement about his daughter's

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

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

38:1-3.)

        After the PCRA Hearing, Petitioner submitted a timely "Brief Urging Post-

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

April 29, 2016.

                                                DISCUSSION

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

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

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

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

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

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

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

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

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



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.
                                                        11
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

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

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

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

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

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

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

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

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

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

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

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

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

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

assistance and alibi).

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

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

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


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).
                                                         12
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
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).

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

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

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

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

                  INEFFECTIVE ASSISTANCE OF GUil TY PLEA COUNSEL

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

provide a basis for relief only:

       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.

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

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

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

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

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

a defendant is aware of his rights and the consequences of his plea." Prendes, 97 A.3d
337 at 352 (citing Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa. Super. Ct. 2002));

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


                                                14
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. Reyes-

Rodriguez, 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.




                                             15
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 Post-

Conviction 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. Reyes-

Rodriguez, 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.)



                                               16
       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
       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.




                                              22
                                 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 Post-

Conviction 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
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.

                                      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:




                                             25
 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                        CRIMINAL DIVISION



COMMONWEALTH OF PENNSYLVANIA

        v.                                             No. 1001-2014

ERVIN REYES



                                        ORDER


BY: WRIGHT, J.                                                             May   '2.~ , 2016
        AND NOW, this   1£    day of May, 2016, upon consideration of Petitioner's pro

se filings, deemed to be a Petition for Post-Conviction Collateral Relief, Amended
Motion for Post-Conviction Collateral Relief, Supporting Brief, Commonwealth's Brief in

Opposition, and hearings thereon:

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

~n_the.~r~ce.ding ooinion.          .
I cam 1y trns aocument to be filed
in the Lancaster County Office of                BY TH E/~OU RT:
the Clerk of the Courts.
                                                       '~


                                                                  ·tlGHT
                                                            ..   _/



Copies to:

Amber Czerniakowski, Assistant District Attorney
Samuel Encarnacion, Esq.
Russell Pugh, Esq.


                                            26