J-S30026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARTINA WESTCOTT : : Appellant : No. 2559 EDA 2022 Appeal from the PCRA Order Entered September 7, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000935-2017

BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 8, 2023 Martina Westcott appeals from the order, entered in the Court of Common Pleas of Philadelphia County, dismissing her petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon our review, we affirm on the basis of the opinion authored by the Honorable Glenn B. Bronson.

On June 18, 2018, Westcott pled guilty to third-degree murder and related charges stemming from an incident in which she shot her paramour as he drove his car, in which Westcott was a passenger. On October 9, 2018, Westcott was sentenced to an aggregate term of 22 to 44 years’ incarceration.

This Court affirmed Westcott’s judgment of sentence, see Commonwealth v. Westcott, 237 A.3d 419 (Pa. Super. 2020) (Table), and our Supreme Court denied allowance of appeal. See id., 242 A.3d 635 (Pa. 2020) (Table).

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On May 11, 2021, Westcott filed a timely pro se PCRA petition. The court appointed counsel, who filed an amended petition raising claims of ineffectiveness of plea and sentencing counsel. On July 7, 2022, the PCRA court held an evidentiary hearing solely on the issue of plea counsel’s ineffectiveness, as Westcott had failed to proffer any evidence on her claim of sentencing counsel’s ineffectiveness. On July 8, 2022, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss. Westcott filed a response in which she proffered a mitigation report in support of her claim that sentencing counsel was ineffective. On September 7, 2022, the PCRA court dismissed Westcott’s petition. Westcott filed a timely notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. She raises the following claims for our review: 1. Whether the [PCRA] court committed an error of law and abused its discretion by accepting [the testimony of sentencing counsel,] James Lloyd[,] III[, Esquire,] as a cure to [the ineffectiveness of plea] counsel, Trevan Borum[, Esquire,] when [] Westcott [did not] knowingly, intelligently[,] and voluntarily enter[] her plea.

2. Whether the [PCRA] court committed an error of law and abused its discretion by not vacating [Westcott’s] guilty plea, which was not made knowingly, intelligently[,] and voluntarily[.]

Brief of Appellant, at 1.

In reviewing the denial of PCRA relief, “this Court is limited to ascertaining whether the evidence supports the determination of the PCRA court and whether the ruling is free of legal error.” Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017). In rendering our decision,

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we are bound by the credibility determinations of the PCRA court that are supported by the record. Commonwealth v. Keaton, 82 A.3d 419, 425 (Pa. 2013).

Westcott’s claims involve the ineffectiveness of her plea counsel. Where ineffective assistance of counsel is pled, counsel is presumed effective, and the petitioner bears the burden of proving ineffectiveness. Commonwealth v. Cooper, 941 A.2d 655 (Pa. 2007). In order to obtain relief, a petitioner must prove that counsel’s representation was deficient, and that she was prejudiced thereby. Strickland v. Washington, 466 U.S. 668 (1984).

Specifically, a petitioner must plead and prove, by a preponderance of the evidence, that: (1) the underlying claim has arguable merit; (2) counsel’s actions lacked any reasonable basis, and (3) counsel’s actions prejudiced the petitioner. Counsel’s actions will not be found to have lacked a reasonable basis unless the petitioner establishes that an alternative not chosen by counsel offered a potential for success substantially greater than the course actually pursued. Prejudice means that, absent counsel’s conduct, there is a reasonable probability the outcome of the proceedings would have been different.

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

Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused [A]ppellant to enter an involuntary or unknowing plea. In determining whether a guilty plea was entered knowingly and intelligently, a reviewing court must review all of the circumstances surrounding the entry of that plea.

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Commonwealth v. Mitchell, 105 A.3d 1257, 1272 (Pa. 2014) (citations omitted). In order to establish prejudice in the context of ineffectiveness of plea counsel, a petitioner must establish that there was a reasonable probability that she would have opted to go to trial rather than plead guilty had she been given legally sound advice. Commonwealth v. Barndt, 74 A.3d 185, 199–200 (Pa. Super. 2013).

Here, after reviewing the parties’ briefs, the certified record, and the relevant case law, we conclude that Judge Bronson correctly disposes of Westcott’s claims. Specifically, Judge Bronson: (1) found credible the testimony of sentencing counsel, James Lloyd, Esquire, who stated that “he [] reviewed all of the forms of homicide with [Westcott], including manslaughter, and had advised her of the option of moving to withdraw her guilty plea,” PCRA Court Opinion, 12/16/22, at 10; (2) “found, as a fact, that [Westcott] declined to move to withdraw her plea after a full explanation of all of the options [by Attorney] Lloyd,” id.; and (3) concluded that, as a result of Attorney Lloyd’s pre-sentencing advice and Westcott’s subsequent decision to proceed with a plea, Westcott suffered no prejudice from plea counsel’s failure to review with her defenses that could result in a verdict of voluntary or involuntary manslaughter.1 Accordingly, we affirm on the basis of Judge

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1 Judge Bronson specifically stated that, had Westcott moved to withdraw her guilty plea prior to sentencing on the basis that plea counsel had failed to advise her of relevant defenses, he would have “unquestionably” granted the motion. PCRA Court Opinion, 12/16/22, at 12.

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Bronson’s thorough and well-reasoned opinion, and direct the parties to attach a copy of that opinion in the event of further proceedings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2023

-5- Circulated 08/16/2023 10:15 AM