Com. v. Robertson, T.
CourtSuperior Court of Pennsylvania
Date FiledNovember 6, 2026
Docket343 WDA 2026
JudgeFord Elliott
StatusUnpublished
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Full Opinion
J-S40041-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAMMY LYNN ROBERTSON :
:
Appellant : No. 343 WDA 2026
Appeal from the PCRA Order Entered January 30, 2026
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000380-2023
BEFORE: OLSON, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: November 6, 2026
Appellant, Tammy Lynn Robertson, appeals from the order of the Court
of Common Pleas of McKean County that dismissed, after an evidentiary
hearing, her petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§
9541-9546 (“PCRA”). She challenges the PCRA court’s denial of her claim
alleging ineffective assistance of counsel in connection with her rejection of a
guilty plea offer and the PCRA court’s credibility determinations made after
the evidentiary hearing. Upon review, we affirm.
John Jacobus had been in a relationship with Appellant since about 2021.
See N.T. Trial, 12/16/24, 44-45. Between 5:30 p.m. and 6:00 p.m. on March
3, 2022, Jacobus arrived at Appellant’s apartment in the 600 block of North
Fraley Street in McKean County. See id. at 53, 68, 111. Appellant was sitting
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* Retired Senior Judge assigned to the Superior Court.
J-S40041-26
at her kitchen table, consuming alcoholic beverages (a combination of beer
and wine) with Scott Sanders. See id. at 53-56, 58. Appellant’s minor son
was present upstairs in the apartment. See id. at 53-55. Jacobus said
something about eating dinner and Appellant said that the dinner was in the
oven. See id. at 55. Jacobus asked Sanders to leave the apartment, and
Sanders did so after he “hem[med and] hawed around about that.” Id. at 55,
59. Appellant said that she was not hungry and was not going to eat, and
Jacobus proceeded to eat dinner and drink beer with Appellant. See id. at
55, 57-58. Jacobus sensed “some tension” and that Appellant “was irritated
about something” as he sat at the table talking with her. Id. at 59.
On the kitchen table was a gun, but Jacobus did not see it; he suggested
at trial that “there might have been some papers or something on top [of it],
like mail and things like that.” N.T. Trial, 12/16/24, 60. Sometime between
11:00 p.m. and 11:30 p.m., Jacobus was looking out the kitchen window,
faced away from Appellant, when he heard two “click” noises and then, “bam,
[he] was on the floor.” Id. at 61. Jacobus had been struck by a gunshot on
the left side of his neck and the bullet exited below his right scapula on the
other side of his body. See id. at 62. At that point, he could no longer feel
his legs. See id. at 63. Appellant put a dish towel on top of the wound and
applied pressure to it. See id. at 66, 74. Multiple 911 calls were made with
respect to the shooting, including one by Appellant. See id. at 66, 74.
Paramedics, including James Kenworthy, were dispatched to the scene
from a station “nearly across the street” and arrived in less than a minute.
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N.T. Trial, 12/16/24, 24. They found Jacobus on the floor in front of the
kitchen table on his left side holding himself up with his arms with his legs
behind him in an unnatural position. See id. at 24-26. Appellant was kneeling
by him and holding onto his neck. See id. at 25, 28. Jacobus informed the
paramedics that he could not feel his legs. See id. at 25. After evaluating
Jacobus, finding a wound between Jacobus’s collarbone and the back part of
his neck, and discovering a bullet that fell out of his sweatshirt, the paramedics
secured Jacobus to prepare him to be airlifted to a trauma center. See id. at
29-31, 63.
After arriving by ambulance to a landing zone behind Kane Community
Hospital, Jacobus told Paramedic Kenway, “I can’t believe she pulled the
trigger,” and stated that “she had the gun up to his neck” and “she said the
gun was[ not] loaded, and that he did[ not] believe it.” N.T. Trial, 12/16/24,
34-35, 40. A paramedic treating Jacobus called the police. See id. at 34-35.
Patrolman William Nichols of the Kane Borough Police Department
responded to the shooting scene at 11:30 p.m. See N.T. Trial, 12/16/24,
111. Jacobus was still laying on the apartment floor at the time of Patrolman
Nichols’s arrival. See id. at 112. Patrolman Nichols recovered the gun, which
was loaded “minus one shell.” Id. at 113. At trial, he confirmed that a shell
casing was located in the kitchen and that a bullet was found underneath
Jacobus when the paramedics rolled Jacobus over. See id. at 113. He also
confirmed at trial that gunshot residue analysis indicated that Appellant “may
have recently discharged a firearm [or] was in close proximity to a firearm
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when it was discharged or came into contact with [] gun residue [from]
another surface object.” Id. at 114.
Jacobus was airlifted to Hamot Medical Center, where he remained for
four weeks. See N.T. Trial, 12/16/24, 64, 117. He was then transferred to
Mercy Rehabilitation Hospital in Pittsburgh for four more weeks of treatment.
See id. at 64. Approximately two weeks after Jacobus was discharged from
Mercy, Appellant started coming to Jacobus’s home to render care to him.
See id. at 65, 74. During a police welfare check on May 27, 2022, Jacobus
referenced the fact that he had Appellant at his home on the preceding day.
See id. at 81-82. At trial, Jacobus testified that Appellant had given the
impression that “she was concerned [about him] at the beginning, but it fizzled
out real fast.” Id. at 82. In another interaction with the police, Jacobus said
that Appellant “had been a very big help and had been taking care” of him
and that Appellant “genuinely cared about [him] and felt horrible about the
[shooting] incident.” Id. at 87-88. As a result of the shooting, Jacobus was
partially paralyzed with no sensory feeling or motor function below his chest.
See N.T. Trial, 12/16/24, 52.
On March 4, 2022, Patrolman Nichols conducted a voluntary interview
of Appellant that was audio and video recorded. See N.T. Trial, 12/16/24,
116. Appellant described for the patrolman her alleged acts of “picking up the
gun to take it upstairs [and] going to make sure that it was empty, and then
it discharging.” Id. at 126. In a follow-up interview, Appellant described
“pulling the slide [of the gun] back to make sure there was not a round [in it],
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[it] slipping, and the gun discharging.” Id. at 127, 131. She also indicated
that she thought the gun was pointed at the wall when it discharged. See id.
at 131-33. Patrolman Nichols also spoke with Jacobus on three occasions:
“right after the incident,” at Hamot Medical Center, and finally on September
28, 2022. N.T. Trial, 12/16/24, 117, 133. Jacobus indicated in the September
interview that there was no reason “for him to suggest that the incident was
anything but an accident.” Id. at 136. He also said that, “if [Appellant] did
something wrong, she should be punished for it.” Id. at 141. On May 24,
2023, Patrolman Nichols filed charges against Appellant. See id. at 119.
An expert firearm and tool mark examiner, Corporal Dale Wymer of the
Pennsylvania State Police, determined that the recovered gun was a nine-
millimeter-caliber Ruger semi-automatic pistol, it had a total capacity for
holding seven rounds of ammunition, and six rounds were found in it. See
N.T. Trial, 12/16/24, 154. He also determined that the recovered gun required
an approximate weight of 5.1 pounds of force on the trigger to cause it to
discharge, and that it would not discharge during a shock and drop
examination. See id. at 161-63, 170. At trial, he opined that the gun would
not discharge “simply [by] rack[ing it],” and that its trigger had “to be pulled
in order to cause” it to discharge. Id. at 163-64.
On May 2, 2024, the trial court explained Appellant’s right to proceed
with a guilty plea. See “Last Day to Plea” Hearing, 5/2/24, 2-5. Appellant
acknowledged her rejection of an offer for a guilty plea to recklessly
endangering another person (“REAP”) as a misdemeanor of the second
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degree, with the application of a sentencing weapon enhancement, in
exchange for a sentencing recommendation of six to fifteen months’
imprisonment. See id.
On December 16-17, 2024, Appellant proceeded to be tried by a jury.
The Commonwealth presented testimony from four witnesses: Jacobus,
Paramedic Kenway, Patrolman Nichols, and Corporal Wymer. Among its
exhibits, it presented a 911-call recording and a recording of Appellant’s March
4, 2022 police interview. See N.T. Trial, 12/16/24, 20-22; N.T. Trial,
12/17/24, 3-8. Appellant declined to present any testimony or evidence. See
N.T. Trial, 12/17/24, 11-12. The jury found Appellant guilty of REAP.1 See
id. at 53. In a bifurcated proceeding, the trial court found Appellant guilty of
a summary offense for violating a local ordinance involving the discharge of a
firearm.2 See id. at 54.
On April 8, 2025, the trial court sentenced Appellant to ten to twenty-
four months’ imprisonment for REAP, with a $100.00 fine for the local
ordinance offense and the imposition of an order for restitution in the amount
of $7,244.69. See Order (sentencing), 4/8/25, 1-2; Order (fines and court
costs), 4/8/25, 1; Order (restitution), 3/24/25, 1; N.T. Sentencing Hearing,
4/8/25, 15. Appellant timely filed a post-sentence motion for reconsideration
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1 18 Pa.C.S. § 2705.
2 Kane Borough Code § 134-1 (“Except in necessary defense of person and
property, and except as provided in § 134-6 of this chapter, it shall be
unlawful, within the Borough of Kane, for any person to use, fire or discharge
any gun or other firearm.”), available at https://ecode360.com/7109075.
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of her sentence, which the trial court denied on April 17, 2025. See Post-
Sentence Motion, 4/16/25, 1-2; Order (denial of post-sentence motion),
4/17/25, 1. Appellant did not file a direct appeal.
On August 14, 2025, Appellant timely filed a pro se PCRA petition. See
Pro Se PCRA Petition, 8/14/25, 1-9. The PCRA court appointed present
counsel, who filed a counseled amended PCRA petition. See Order (counsel
appointment), 4/27/25, 1-2; Amended PCRA Petition, 12/1/25, 1-32.
In the counseled petition, Appellant asserted that her trial counsel
caused her to reject a plea offer of “‘6 to 7 months’ incarceration in the county
jail” by “improperly advis[ing] her regarding her sentence exposure, leading
her to believe that, even if she was convicted at trial, she could not receive
more time than that which had been offered by the prosecution” and thus “she
had ‘nothing to lose’ in rejecting the offer and taking the case to trial.”
Amended PCRA Petition, 12/1/25, 1-2, 15. She alleged that, if not for that
“improper advice, there is a reasonable probability that she would have
accepted the plea as initially offered and it would have been presented to and
accepted by [the trial c]ourt.” Id. at 2. She alleged that this initial offer was
made sometime between March 14, 2024, and May 1, 2024, and was replaced
with the offer rejected in court on May 2, 2024, and she was “still not advised
of her full exposure” (i.e., she faced a potential maximum imprisonment term
of two years for a misdemeanor of the second degree charge) at the time of
the in-court rejection of the plea offer. See id. at 15 & n.5. Accordingly, she
challenged the effectiveness of her trial counsel in connection with the
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rejection of the alleged “6 to 7 months” plea offer and requested an
evidentiary hearing. See id. at 2-3, 13-30. She attached to her amended
petition signed witness certifications from trial counsel and her husband. See
Intended Witness Certification (Trial Counsel), 11/25/25, 1-2; Intended
Witness Certification (Husband), 11/25/25, 1-2.
The Commonwealth filed an answer to the petition, conceding the need
for an evidentiary hearing. See Commonwealth’s Answer, 12/30/25, 3. The
PCRA court scheduled a hearing for January 30, 2026, and granted an
unopposed motion to permit trial counsel to testify by two-way video
conferencing. See Commonwealth Motion to Allow Witness to Appear by
Video, 1/26/26, 1-2; Order (granting motion to allow witness to appear by
video and scheduling hearing), 1/27/26, 1. At the evidentiary hearing, the
PCRA court heard testimony from trial counsel, Appellant, and Appellant’s
husband (Scott Sanders).
Trial counsel testified that the offer made by the Commonwealth was for
“six to fifteen months of incarceration” for a guilty plea to REAP as a
misdemeanor of the second degree. N.T. PCRA Hearing, 1/30/26, 6. When
asked to clarify whether that meant an agreement for a “six to seven months”
sentence or a “six to fifteen months” sentence, the court interjected that the
former term would be an illegal sentence because the maximum term would
at least need to be double the minimum term. Id. at 8. Trial counsel agreed
with the court and stated that the “six to seven standard range” term would
only reflect the minimum portion of the incarceration sentence. Id. at 9. He
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noted that that term was not communicated to Appellant as the maximum
term she faced and that was explained to Appellant “several times.” Id. at 9.
He testified that he told Appellant that the standard range was “six to seven”
months, the agreement was for “six to fifteen months,” that the aggravated
and mitigated ranges “would be plus or minus three months to the standard
range,” and the maximum possible sentence for a misdemeanor of the second
degree was two years’ imprisonment. Id. at 9-10. He noted, “[W]e had this
conversation many times,” including during in-person discussions and “some
over the phone.” Id. at 10. He also recalled that he told Appellant that the
guidelines were not mandatory upon the sentencing court. See id. at 12.
When asked whether he told Appellant “if she … went to trial [] she was facing
prison time,” trial counsel answered, “Certainly.” Id. at 12.
On cross-examination, trial counsel testified that Appellant “several
times rejected any plea offer that included an agreed[-]upon jail sentence[.]”
N.T. PCRA Hearing, 1/30/26, 15. He elaborated that Appellant “made clear to
[him] several times that she would not accept any offer that included an
agreement to a jail sentence, and so [he] did not request that the plea offer
be reduced to a formal written plea agreement.” Id. at 15; see also id. at
17 (“She was not willing to accept an offer that included a sentence of
incarceration.”). Counsel agreed that Appellant “made an informed decision
when rejecting the Commonwealth’s plea offer.” Id. at 15. The court asked
trial counsel if he ever made statements to Appellant “that she should go to
trial because she likely would[ not] get a sentence greater than what was
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offered in the plea agreement,” and counsel responded, “No,” explaining that
“[t]here was no promise or guarantee … regarding the outcome of the trial or
… what the sentence might be upon conviction.” Id. at 16. He also testified
that he told Appellant that the plea agreement was no longer available after
the “Last Day to Plea” hearing (which occurred on May 2, 2024). See id. at
17.
On redirect examination, trial counsel explained that he advised
Appellant that, if she was convicted at trial, they “could ask for a sentence
that did not include incarceration,” but that he “certainly did not promise her
that a sentence that did not include incarceration would be imposed.” N.T.
PCRA Hearing, 1/30/26, 18. He also testified that he did not give her advice
or an indication that he believed one outcome was more likely than another
at sentencing, explaining that he does not “engage in predicting the likelihood
of … outcomes,” Appellant “was aware of the potential range of outcomes,”
and she “chose to reject the plea offer and proceed to trial.” Id. at 19. He
again confirmed that Appellant repeated “several times over several months
that she would not be pleading to anything that included incarceration,”
pointing out that her stated reason for that was “mostly the care of her son.”
Id. at 19.
Appellant testified that “the District Attorney threw out the offer for six
to seven months[’] jail time” but that trial counsel told her “not to accept it
yet, [be]cause he was go[ing] to try to get [her] out of it.” N.T. PCRA Hearing,
1/30/26, 22. She asserted that trial counsel never told her that she “could
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receive more time” if she did not accept that plea offer, or that she “could go
to prison if [she] did not accept” the plea offer. Id. at 22. She denied that
trial counsel ever told her that she could receive a sentence as long as two
years’ imprisonment if she did not accept the plea offer. See id. at 22-23.
As for whether trial counsel told her about an expiration date for the
Commonwealth’s offer, Appellant testified, “He told me a date that it would
expire but then it kept getting continued[,] so [she] didn’t know when it
expired after that.” Id. at 23. She testified that she only learned about the
expiration of the plea offer when she texted him that she “wanted to take the
plea deal because [the Commonwealth] refused house arrest, and [trial
counsel] ended up calling [her] right as soon as [she] sent the text and he
said that the plea deal was no longer on the table.” Id. at 23-24. She
confirmed that no plea offer was put in writing for her. See id. at 24. She
testified that her decision not to take the Commonwealth’s offer was based on
trial counsel telling her that she “would[ not] get any longer than the time[ in
the] plea deal, the six to seven months,” and that she “had nothing to lose so
[she] might as well take it to trial.” Id. at 24. She claimed that she would
have taken the plea offer “[e]ven if [trial counsel] had advised [her] that he
believed [that she was] going to be successful at trial.” Id. at 25.
On cross-examination, Appellant agreed that she appeared in court for
the “Last Day to Plea” hearing and, “at that point[, she] advised the [c]ourt
that [she] wished to reject the plea deal from the Commonwealth[.]” N.T.
PCRA Hearing, 1/30/26, 26. When the Commonwealth asked her if her alleged
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text message to trial counsel “saying that [she] wanted to accept the plea
offer” was before or after the “Last Day to Plea” hearing, she testified, “I don’t
know. [Be]cause I d[id not] know when the Last Day to Plea [hearing] was.”
Id. at 27. After the prosecutor asked her to recall appearing in court for the
“Last Day to Plea” hearing, Appellant testified that her text message to trial
counsel “was before [she] ever went to a hearing.” Id. at 27. She agreed
that she had sent the text message to trial counsel stating that she wished to
accept the plea offer but that she then advised the court at the “Last Day to
Plea” hearing that she wished to reject the plea offer and have the case listed
for trial. Id. at 27.
On redirect examination, when Appellant was asked about the offer that
she rejected at the “Last Day to Plea” hearing, she testified, “The six or seven
month [offer] was expired. That’s the one I wanted to accept. When I went
to the hearing[,] it was six to fifteen months[.] I rejected [it].” N.T. PCRA
Hearing, 1/30/26, 28. She claimed that she had not heard about that “six to
fifteen months” offer prior to that hearing and that trial counsel “never told
[her] that there was a six[-]to[-]fifteen[-]month offer.” Id. at 28.
Appellant’s husband, who married her in August 2024, testified that he
“would listen when [trial counsel] would call and [Appellant and trial counsel
would] have conversations.” N.T. PCRA Hearing, 1/30/26, 31. As a result, he
“was aware, pretty much, of all their conversations.” Id. at 31. He testified
that, during these conversations, there was discussion of a plea agreement
that was for “six to seven months.” Id. at 31. He testified that trial counsel
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“did not say [that] she[ would] get any more time by going to trial.” Id. at
31. He testified that he did not recall trial counsel telling Appellant that she
could receive up to two years of imprisonment if she was convicted or that
she could go to prison if convicted. See id. at 31-32. He testified that
Appellant’s reason for rejecting the plea offer was because trial counsel
“advised her to take it to trial because she had nothing to lose. She would[
not] gain any more time than the six to seven months and [she] had a decent
chance of winning.” Id. at 32. He agreed that Appellant’s choice not to take
the plea offer “was based on her attorney’s advice.” Id. at 32. He denied
that Appellant told him that she was unwilling to take a plea offer if she had
to go to jail or that he heard her say that to trial counsel. See id. at 32.
Appellant’s husband testified that there was one point when Appellant
wanted to accept a plea offer. See N.T. PCRA Hearing, 1/30/26, 34. When
he was asked to elaborate on those circumstances, he testified, “When she
wanted to accept the plea to the six to seven months[,] she was advised not
to take it[] because [trial counsel] recommended [her] to take it to trial
because [she was not going to] gain any time and [] could possibly win” and
thus would not “go to prison or jail at all.” Id. at 36. He alleged that, when
Appellant expressed that she wanted to accept the plea offer, trial counsel
“phone called her directly back and said it was[ not] on the table.” Id. at 36.
After hearing the arguments of counsel, the PCRA court denied
Appellant’s ineffective assistance claim. The court noted, inter alia, that the
testimony that trial counsel would say, “Oh[,] do[ not] worry if you go to trial
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… you’re likely not [going to] be convicted and you w[ould not] face anything
more,” was incredible. N.T. PCRA Hearing, 1/30/26, 41. The judge elaborated
that Appellant’s version of trial counsel’s advice to her did not “make sense,”
and made a credibility finding in favor of trial counsel’s testimony, as follows:
[T]hat’s absurd in that someone would think that the [j]udge
does[ not] do anything. That the [j]udge does[ not] sit up there
to decide what the sentence would be. [I]t just doesn’t make any
sense. It does[ not] make sense that even a brand[-]new
attorney would do that. It does[ not], it certainly does[ not] make
sense that someone with experience, [who had] worked in the
[District Attorney’s] Office, would indicate that. [Trial counsel]
indicated he did[ not] say that. [F]rom a practical matter, [it is]
just extreme basic knowledge that the [j]udge sets the
sentence[.] [T]o say well[, ]I was[ not] worried … I knew the
Judge would[ not] give me more. That just does[ not] make any
sense. [J]udge[s] are unpredictable sometimes and if you go to
trial and you do[ not] know. Could it be the [j]ury found the
[d]efendant not guilty? Of course[,] it could[ have] been. [B]ut
to say, well, if I[ am] found guilty[,] I know what the [j]udge will
do, that doesn’t make sense. … I accept [trial counsel’s] testimony
that … he did[ not] say that[, t]hat he did[ not] indicate, well, you[
are] not taking the plea, … you[ are] go[ing] to go to trial.
Id. at 41-42. The court found that Appellant “knowingly and voluntarily
rejected” the plea offer at the “Last Day to Plea” hearing, “as reflected in the
transcript” for that hearing. Id. at 42. The court also took judicial notice that
it was “standard practice from the [District Attorney’s] Office” that plea offers
“are only open” until the “Last Day to Plea” hearing. Id. at 42. The court
noted that it did not find credible “the testimony … that [Appellant] was misled
or misunderstood, [or] that she thought” that she would not “get any more
than what was in the plea offer.” Id. at 42.
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The PCRA court issued its order dismissing the PCRA petition on the
same day as the evidentiary hearing. See Order (dismissing PCRA petition),
1/30/26, 1. Appellant timely filed a notice of appeal. See Notice of Appeal,
2/27/26, 1. Appellant and the PCRA court thereafter satisfied their obligations
under Pennsylvania Rule of Appellate Procedure 1925. See Order (Rule
1925), 3/2/26, 1; Rule 1925(b) Statement, 3/20/26, 1-3; PCRA Court
Opinion, 3/24/26, 1-8.
Appellant presents the following questions for our review:
1. Whether the PCRA court erred as a matter of law in
concluding that Appellant’s pre-trial statements that her
rejection of the Commonwealth’s plea offer was voluntary,
knowing, and made after consultation with her attorney
thereafter precluded her from bringing a claim that her
attorney was ineffective in advising her regarding such plea,
causing such rejection?
2. Whether the PCRA [c]ourt’s credibility determinations as to
Appellant and trial counsel … were contradicted by the
record, requiring [that] they [should] be overturned?
Appellant’s Brief, 4 (suggested answers omitted).
The PCRA court’s denial of Appellant’s ineffectiveness claim addressing
her failure to accept a guilty plea offer was two-fold. The court first concluded
that the claim lacked arguable merit because the combination of trial counsel’s
testimony, which the court found to be credible, and the colloquy the trial
court conducted at the “Last Day to Plea” hearing demonstrated that Appellant
made a fully informed decision to reject the Commonwealth’s plea offer:
[W]e found [trial counsel’s] testimony to be straightforward and
credible. He testified that he advised [Appellant] of the maximum
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penalty of two years[’] incarceration, that he discussed the
guideline ranges with [Appellant], [and] that he discussed the
case and evidence and the plea offer with [Appellant] numerous
times. He explained that, because [Appellant] had a minor child,
she repeatedly indicated to him that she would not accept any
plea that required any period of incarceration. [Trial counsel] has
practiced criminal law since 2017 and he, as “a rule of thumb,”
never makes promises to a defendant on the outcome at trial or
the sentence that the court will impose. [Trial counsel’s]
testimony demonstrates that [Appellant] was fully aware of the
plea offer, she rejected it because she was unwilling to accept any
plea offer that included any jail time, and[] this was her position
up until the jury issued their guilty verdict.
Even without the court’s colloquy to [Appellant] at the May 2,
2024 [“Last Day to Plea” hearing], we would find that [Appellant]
was fully aware of the plea offer and knowingly and voluntarily
rejected it. However, the colloquy resolves any doubt. During the
court’s colloquy of [Appellant,] she agreed that she was advised
of the plea offer of 6-15 months, that she had enough time to
discuss it and her options with her attorney[,] and she was
knowingly and voluntarily rejecting it. It makes no sense that she
would have texted her attorney before her [“Last Day to Plea”
hearing] that she wanted to accept the plea offer and then
appeared before the court and advised the court on [the] last day
to [enter a guilty] plea that she did[ not] want to [enter a guilty
plea] and had had enough time to think about it. What makes
more sense, and what [the court] find[s] is that, as [trial counsel]
testified, [Appellant] was unwilling[,] under any circumstances[,]
to accept a plea that called for any period of incarceration.
***
In the current case[,] we find that [trial counsel] did provide
[Appellant] with competent advice regarding the plea offer.
PCRA Court Opinion, 3/24/26, 6-7. In the alternative, the PCRA court
concluded that Appellant could not prevail on her ineffectiveness claim
because she could not prove prejudice for the claim where the court accepted,
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as credible, trial counsel’s testimony that Appellant refused to accept any plea
offer that entailed the imposition of an imprisonment sentence. See id. at 7.
In her first issue for our review, Appellant asserts that the PCRA court
made an error of law by concluding that her statements during the colloquy
at the “Last Day to Plea” hearing precluded her from challenging the
effectiveness of her trial counsel in connection with her rejection of a plea
offer. See Appellant’s Brief, 16-25. In her second issue, she argues that we
should overturn the credibility determinations of the PCRA court. See
Appellant’s Brief, 25-41. After addressing our standard of review and the
controlling law applicable to consideration of Appellant’s ineffective assistance
of counsel claim, we will address Appellant’s issues and the arguments she
makes in support of them in the order in which they are raised.
Our “standard of review regarding an order denying a petition under the
PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error.” Commonwealth v. Davis, 86
A.3d 883, 887 (Pa. Super. 2014). “The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.”
Id. Our scope of review is limited to the findings of the PCRA court and the
evidence of record, viewed in the light most favorable to the party who
prevailed before the PCRA court. See Commonwealth v. Hanible, 30 A.3d
426, 438 (Pa. 2011). “We apply a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Davis, 326 A.3d 988, 992 (Pa.
Super. 2024) (citation omitted). “Appellant has the burden to persuade this
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Court that the PCRA court erred and that such error requires relief.”
Commonwealth v. Wholaver, 177 A.3d 136, 144-45 (Pa. 2018) (internal
citations omitted).
A defendant is entitled to competent advice of counsel concerning the
consideration of plea offers. See Lafler v. Cooper, 566 U.S. 156, 162 (2012)
(“Defendants have a Sixth Amendment right to counsel, a right that extends
to the plea-bargaining process.”). When reviewing a claim of ineffective
assistance of counsel, “[c]ounsel is presumed effective, and [the PCRA
petitioner] bears the burden of proving otherwise.” Commonwealth v.
Fears, 86 A.3d 795, 804 (Pa. 2014) (citation omitted). To prevail on an
ineffectiveness claim, the PCRA petitioner must establish that:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3) [the
PCRA petitioner] suffered prejudice as a result of counsel’s error
such that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Id. (citations omitted). The “[f]ailure to prove any prong of this test will
defeat an ineffectiveness claim,” and “counsel cannot be deemed ineffective
for failing to raise a meritless claim.” Id.
Moreover, a PCRA petitioner seeking relief on the basis that ineffective
assistance of counsel caused the petitioner to reject a guilty plea must
demonstrate the following circumstance:
[B]ut for the ineffective advice of counsel[,] there is a reasonable
probability that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of intervening
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circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer’s terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
Lafler, 566 U.S. at 164. This prejudice analysis is not considered under an
“objective reasonable person standard. Instead, reviewing courts are to look
to the specific facts and circumstances of the defendant.” Commonwealth
v. Rizor, 304 A.3d 1034, 1059 (Pa. 2023) (citing Lafler, 556 U.S. at 164)
(footnote omitted).
“[C]ounsel has a duty to communicate plea bargains to his client, as
well as to explain the advantages and disadvantages of the offer.”
Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super. 2001).
“Failure to do so may be considered ineffectiveness of counsel if the defendant
is sentenced to a longer prison term than the term [s]he would have accepted
under the plea bargain.” Id.
Appellant first claims that the PCRA court erred by “concluding that [her]
pre-trial statements” in her colloquy at the “Last Day to Plea” hearing
“precluded her from challenging her counsel’s effectiveness in the plea-
bargaining process.” Appellant’s Brief, 16-25 (unnecessary capitalization
omitted). She addresses the PCRA court’s review of the “Last Day to Plea”
hearing transcript at the PCRA evidentiary hearing, and offers an edited block
quote of the PCRA court’s ruling at the evidentiary hearing to suggest that the
PCRA court rested its review of her claim on the content of the “Last Day to
Plea” colloquy:
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[T]hat’s what was in court on Last Day to Plea. … [T]he Plea
Agreement was read into the record. She was asked[,] have you
had enough time to discuss that and your options with your
attorney. She said yes. She could have had more time to talk to
him then. She didn’t ask for it. She said she was knowingly and
voluntarily rejecting the Plea. That in and of itself is enough to
deny the Motion for PCRA Relief. I would have to find that she
lied to the Court on that day. That when I said, “do you need
more time? Are you knowingly and voluntarily rejecting it?”, that
that was inaccurate. …[T]hat’s enough basis to reject the
assertions.
Appellant’s Brief, 17 (quoting N.T. PCRA Hearing, 1/30/26, 40-41) (bracketed
content and ellipses added by Appellant). She then argues that the existence
of that colloquy reflecting the rejection of a plea offer does not preclude the
consideration of an ineffective assistance claim that alleges that the rejection
of the plea offer was based on improper advice from counsel. See Appellant’s
Brief, 18-25.
After our review, we conclude that, if the PCRA court rested its denial of
Appellant’s ineffective assistance of counsel claim only on the content of the
colloquy at the “Last Day to Plea” hearing, we would agree that Appellant’s
claim was erroneously rejected because the colloquy did not address the
substance of counsel’s advice to Appellant. Instead, the colloquy only focused
on whether Appellant had “enough time” to consider the “plea offer and [her]
options” and whether Appellant believed that she was “knowingly and
voluntarily” rejecting the offer presented. N.T. “Last Day to Plea” Hearing,
5/2/24, 4-5. The PCRA court’s reasons for denying Appellant’s ineffectiveness
claim, however, were not based solely on the content of that colloquy.
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In its proper context, the unedited quote that was conspicuously tailored
by Appellant demonstrates that the PCRA court’s denial was also based on the
court’s finding that Appellant’s testimony about the substance of trial counsel’s
advice concerning the plea offer was incredible: “Now, the second part of
it, that’s enough basis to reject the assertions, but even if it wasn’t, I find
that the testimony is incredible…” N.T. PCRA Hearing, 1/30/26, 41 (bold
portions omitted in Appellant’s block quote). Additionally, the PCRA court’s
Rule 1925(a) opinion explicitly makes clear that the claim was denied because
the court credited trial counsel’s testimony reflecting that he properly advised
Appellant in connection with her rejection of the Commonwealth’s plea offer
and, as a result, Appellant’s rejection of the offer was knowing and voluntary.
See PCRA Court Opinion, 3/24/26, 6 (“In contrast, we found [trial counsel’s]
testimony to be straightforward and credible. … [Trial counsel’s] testimony
demonstrates that [Appellant] was fully aware of the plea offer … [and] we
would find that [Appellant] was fully aware of the plea offer and knowingly
and voluntarily rejected it.”); id. at 7 (“In the current case[,] we find that
[trial counsel] did provide [Appellant] with competent advice regarding the
plea offer.”).
Here, the PCRA court properly denied Appellant’s ineffective assistance
of counsel claim because the testimony of trial counsel, which the PCRA court
credited, revealed that counsel adequately advised Appellant by providing her
with sufficient information to allow her to make an informed decision about
whether she wanted to reject the Commonwealth’s plea offer at the “Last Day
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to Plea” hearing. Trial counsel testified that he informed Appellant of: her
overall sentencing exposure, which in this case was two years’ imprisonment;
the possibility that she would be “facing prison time” if she unsuccessfully
proceeded to trial; the trial court’s general policy of not accepting a plea after
the “Last Day to Plea” hearing; the nature of the evidence that would be
presented against her at trial; and “the potential range of outcomes.” See
N.T. PCRA Hearing, 1/30/26, 9-12, 14-15, 17, 19-20. Moreover, trial
counsel’s testimony made clear that trial counsel did not make any promises
of any particular trial or sentencing outcome that could have improperly
induced Appellant to reject the Commonwealth’s offer. See id. at 16 (“There
was no promise or guarantee, number one, regarding the outcome of the trial
or, number two, what the sentence might be upon conviction.”); id. at 18 (“I
certainly did not promise her that a sentence that did not include incarceration
would