Opinion
478 EDA 2023 J-S47042-23
01-16-2024
COMMONWEALTH OF PENNSYLVANIA v. AHMED MOSTAFA ELGAAFARY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered January 18, 2023 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003891-2018
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Appellant, Ahmed Mostafa Elgaafary, appeals from the order entered in the Court of Common Pleas of Chester County, which denied his first petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing. After a careful review, we affirm.
The relevant facts and procedural history are as follows: Appellant was arrested, and on November 13, 2018, Jonathan Altman, Esquire, entered his appearance on behalf of Appellant. On November 16, 2018, the Commonwealth filed an Information charging Appellant with numerous offenses in connection with the rape of the victim. Attorney Altman filed numerous pretrial motions on behalf of Appellant.
As discussed infra, after Attorney Altman withdrew from representing Appellant, our Supreme Court disbarred Attorney Altman on April 22, 2020. However, for the ease of discussion, and since he was a fully licensed attorney while he was representing Appellant, we shall refer to him as "Attorney Altman."
On August 6, 2019, Melissa McCaffery, Esquire, entered her appearance as co-counsel, and on August 12, 2019, represented by Attorney Altman and Attorney McCaffery, Appellant proceeded to a four-day jury trial. This Court previously summarized the testimony and evidence from Appellant's jury trial as follows:
Appellant was assisted by an interpreter fluent in English and Arabic during the trial court proceedings.
On the late night of February 9, 2018, and early the next day, the 21-year-old victim was at a casino with her mother, stepfather, and a family friend, John Mudrick. While there, she imbibed approximately six alcoholic drinks and appeared to be visibly intoxicated. Her parents left around midnight. Around 2:00 a.m., another individual, Jessica Hernandez, who was friends with Mudrick, saw that the victim was intoxicated and decided that an Uber service would provide the victim with a safe ride home. Hernandez had originally ordered the Uber ride for herself but based on the state of the victim, she decided to walk the victim out of the casino and placed her in the backseat of the vehicle. She then asked the driver, who was subsequently determined to be [Appellant], if he would let her change the route destination for the ride. [Appellant] agreed with the request.
Hernandez tried to ask the victim for her address…, but the victim was unresponsive and not able to provide any information. Hernandez then found the victim's driver's license in her purse. Hernandez put that address in her Uber account on her phone so that [Appellant] could drive the victim to her home. [Appellant] then drove off.
During the ride, [Appellant] stopped the car twice. Once, so that the victim could exit the vehicle and throw up by the side of the road. The second time, [Appellant] made a stop around the
corner from where the victim lived and raped her. Moments after he finished, the victim threw up again. [Appellant] was apparently so angered by her sickness that he took pictures of the victim lying in her own vomit while she was passed out so that he could be compensated for the damage to his car. [Appellant] thereafter drove the victim to her home.
The next morning, the victim woke up in her bedroom with a scared and panicked feeling. The victim indicated the last memory she had from the night was checking her purse to make sure she had everything before she left a casino bar. She did not remember taking the Uber ride home. She felt sore and noticed there were bruises on her thighs as well as dirt under her fingernails. She could not locate her cell phone. When she spoke with her mother and stepfather, she told them she had a "really bad gut feeling" about what had happened the night before but could not recall anything. N.T., 8/13/19, at 22.
The victim's mother told her that she had taken an Uber home, and they then contacted Mudrick to see if he could give them any information. He sent a screen shot of the Uber trip which revealed that the ride back to the victim's house, which normally would have taken 15 to 20 minutes, took approximately 58 minutes….The cost of the trip included a $150.00 cleaning fee. [After receiving the screen shot,] [t]he victim went to the hospital that day and tested for evidence that she had been raped.
State Trooper Amus Glick was the investigating officer assigned to the case. He spoke to both the victim and [Appellant], who is a citizen of Egypt.4
4 [Appellant] came to the United States from Egypt in 2010. He is not an American citizen but is a permanent resident green card holder. He was married to an American citizen, he had a ten-year-old stepdaughter, and his wife was pregnant with their own child at the time of the incident.
When Trooper Glick first spoke with [Appellant] on February 23, 2018, it was before the test results from the rape kit had come out. Trooper Glick noted [Appellant] was mostly concerned about the status of his Uber account because the company had suspended him as a driver. [Appellant] denied that he had any sexual contact with the victim and answered in the negative when asked if she made any advances towards him. The trooper asked [Appellant] for a DNA sample, to which [Appellant] voluntarily consented.
After the rape kit confirmed that [Appellant's] DNA was present, Trooper Glick spoke with [Appellant] again. This time, he admitted that he had sex with the victim but alleged that it was consensual, and that [the victim] was making advances towards him….
[At the jury trial,] [i]n addition to many other witnesses, the victim and [Appellant] both took the stand and testified about the incident.Commonwealth v. Elgaafary, No. 1178 EDA 2020, at *2-5 (Pa.Super. filed 10/12/21) (unpublished memorandum) (some footnotes omitted).
At the conclusion of the trial, the jury convicted Appellant of one count of rape of an unconscious person, one count of sexual assault, and two counts of indecent assault.
18 Pa.C.S.A. §§ 3121(a)(3), 3124.1, and 3126(a)(4), (1), respectively.
On September 17, 2019, John McMahon, Esquire, entered his appearance on behalf of Appellant, and on December 17, 2019, Appellant proceeded to a sentencing hearing. The trial court sentenced Appellant to seven years to twenty years in prison for the rape offense with the remaining offenses merging for sentencing purposes. Appellant was determined to not be a sexually violent predator ("SVP"), but he was directed to register for life as a Tier III offender under SORNA based on his conviction. Attorney McMahon filed a timely post-sentence motion on behalf of Appellant, and after the post-sentence motion was denied by operation of law, Attorney McMahon filed a timely direct appeal on behalf of Appellant.
After trial, Attorney McCaffery and Attorney Altman withdrew their appearances. In particular, on September 26, 2019, Attorney Altman withdrew his appearance as defense counsel.
Pennsylvania Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S.A. §§ 9799.10-9799.41.
On direct appeal, Appellant challenged the discretionary aspects of his sentence, and, invoking Torsilieri, he contended the lifetime registration and notification provisions of SORNA were unconstitutional. This Court found no merit to his discretionary aspects of sentencing claim; however, in accordance with Torsilieri, we held Appellant was entitled to a hearing on his SORNA challenge. Accordingly, on October 12, 2021, we affirmed his judgment of sentence but remanded for proceedings consistent with Torsilieri. See Elgaafary, supra. Appellant did not file a petition for allowance of appeal with our Supreme Court.
Commonwealth v. Torsilieri, 659 Pa. 359, 232 A.3d 567 (2020).
On remand, Attorney McMahon indicated that Appellant no longer wished to pursue the SORNA issue, which was raised on direct appeal. Accordingly, by order filed on December 15, 2021, the trial court indicated that an evidentiary hearing on the matter was unnecessary, and all SORNA terms previously imposed on Appellant remained in effect.
On September 20, 2022, represented by Attorney McMahon, Appellant filed a timely, counseled PCRA petition. Therein, Appellant alleged he was constructively denied his right to counsel under the Sixth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution.
Specifically, Appellant averred he was denied his right to counsel since he was represented by Attorney Altman, who was ultimately disbarred by our Supreme Court for substantive violations in a case unrelated to Appellant's case. In this vein, Appellant relevantly averred that Attorney Altman represented him from the preliminary hearing on November 7, 2018, through the conclusion of trial on August 19, 2019. During this time, upon the advice of Attorney Altman, Appellant rejected the Commonwealth's pretrial plea offer.
Appellant noted that, on December 3, 2018, the Hearing Committee of the Disciplinary Board of the Pennsylvania Supreme Court recommended that Attorney Altman be disbarred. Attorney Altman filed exceptions with the Disciplinary Board, and on May 30, 2019, the Disciplinary Board issued a report agreeing with the Hearing Committee's recommendation of disbarment. Attorney Altman challenged the May 30, 2019, recommendation to our Supreme Court, which, on April 22, 2020, issued an opinion disbarring Attorney Altman from the practice of law in the Commonwealth of Pennsylvania. See Office of Disciplinary Counsel v. Altman, 658 Pa. 319, 228 A.3d 508 (Pa.Super. 2020).
Appellant contended that, since Attorney Altman represented him while his disbarment was pending, his representation was tantamount to Appellant having no counsel at all. Accordingly, Appellant contended Attorney Altman was per se ineffective, and prejudice is presumed. Alternatively, Appellant averred he suffered actual prejudice since he erroneously trusted the advice of Attorney Altman when he rejected the Commonwealth's plea offer, and, if he had been fully aware of the pending disciplinary proceedings pending against Attorney Altman, he would not have listened to his advice.
On December 28, 2022, the PCRA court provided Appellant with notice of its intent to dismiss the PCRA petition without an evidentiary hearing pursuant to Pa.R.Crim.P. 907(1), and on January 13, 2023, Attorney McMahon filed an answer in opposition on behalf of Appellant.
By order entered on January 18, 2023, the PCRA court denied Appellant's PCRA petition, and this timely, counseled appeal followed. All Pa.R.A.P. 1925 requirements have been adequately met.
On March 13, 2023, Attorney McMahon filed with this Court a petition to withdraw as counsel due to Appellant's failure to fulfill his obligations under the legal fee agreement, and on April 3, 2023, this Court granted Attorney McMahon's petition. On May 3, 2023, Maria Heller, Esquire, from the Chester County Public Defender's Office, entered her appearance on behalf of Appellant. Attorney Heller filed the instant appellate brief on behalf of Appellant.
On appeal, Appellant sets forth the following issues in his "Statement of the Questions Involved" (verbatim):
I. Whether Appellant was constructively denied his right to counsel under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution by relying upon the advice of his disbarred attorney to reject a plea offer where his counsel failed to fully disclose the details and specific nature of his dishonest conduct underlying his disbarment, as well as the Disciplinary Board's specific finding that he posed a danger to his potential and current clients?
II. Whether the Post Conviction Relief Act court erred in denying Appellant's petition without a hearing on the issue raised in the petition for Post Conviction Relief that he was denied his constitutional right to counsel?Appellant's Brief at 3 (suggested answers omitted).
In his first issue, Appellant contends that he was constructively denied his right to counsel during a "critical stage," i.e., during the plea bargain negotiations stage, because his attorney was disbarred for "substantive violations." Appellant's Brief at 16. Specifically, relying upon Commonwealth v. Grant, 992 A.2d 152 (Pa.Super. 2010), Appellant contends the Supreme Court's disbarment of Attorney Altman renders counsel ineffective.
Initially, we note our standard of review for an order denying PCRA relief is limited to whether the record supports the PCRA court's determination, and whether that decision is free of legal error. Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 652 (2008). "We must accord great deference to the findings of the PCRA court, and such findings will not be disturbed unless they have no support in the record." Commonwealth v. Scassera, 965 A.2d 247, 249 (Pa.Super. 2009) (citation omitted).
It is well settled that the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution guarantee that the accused shall enjoy the right to effective assistance of counsel at all critical stages of a criminal proceeding. Grant, 992 A.2d at 156. The right to effective assistance of counsel "is mandated by the [Constitution] because lawyers 'are the means through which the other rights of the person on trial are secured,' and through which the prosecution's case is subjected to 'meaningful adversarial testing.'" Grant, 992 A.2d at 156 (citing U.S. v. Cronic, 466 U.S. 648, 653-56 (1984)). Moreover, plea negotiations are a critical stage of a criminal proceeding where "criminal defendants require effective counsel." Missouri v. Frye, 566 U.S. 134, 144 (2012). During plea negotiations, anything less than effective counsel "might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." Id. (quotation marks and quotation omitted).
In reviewing an allegation of ineffective assistance of counsel, a court starts with the presumption that counsel was effective. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987). "To merit relief based on an ineffectiveness claim under the PCRA, a petitioner must show that such ineffectiveness 'in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.'" Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008) (quoting 42 Pa.C.S.A. § 9543(a)(2)(ii)). This standard requires a petitioner to prove that: "(1) the underlying claim is of arguable merit; (2) counsel's performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice." Commonwealth v. Cam Ly, 602 Pa. 268, 980 A.2d 61, 73 (2009) (internal quotation marks and citations omitted). See Strickland v. Washington, 466 U.S. 668 (1984); Pierce, supra.
To demonstrate "actual" prejudice under the third element of the Strickland/Pierce test, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. See Pierce, supra. However, in some cases, the petitioner need not establish actual prejudice "because there are situations that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Cronic, 466 U.S. at 658 (footnote omitted).
As this Court noted in Grant, supra:
In Cronic, a case decided on the same day as Strickland, the Supreme Court concluded that when there has been an actual or constructive denial of counsel, i.e., when counsel's failure has been complete and it is as if the right to counsel has been wholly denied, prejudice may be presumed. Cronic, 466 U.S. at 659-62.
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[In] Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1128 (2007), our Supreme Court recognized that the presumption of prejudice has been found to apply in three
circumstances: (1) where there was an actual or constructive denial of counsel, (2) where the state has interfered with counsel's assistance, and (3) where counsel had an actual conflict of interest. Id.Grant, 992 A.2d at 156 (some citations omitted).
With respect to whether there was an actual or constructive denial of counsel, as alleged by Appellant in the case sub judice, this Court recognized as follows in Grant:
Courts have consistently distinguished between technical licensing defects and serious violations of bar regulations reflecting an incompetence to practice law. Where the attorney's license has been suspended or his/her credentials to practice have otherwise been impaired as a result of mere technical defects, the constitutional right to counsel is not violated and prejudice is not presumed. Where the attorney's license has been suspended or he/she has been disbarred for substantive violations, however, constitutional rights to counsel are violated and harm is presumed. See Ex Parte Williams, 870 S.W.2d 343, 348 (Texas Ct.App. 1994) ("Representation by a disbarred lawyer is tantamount to no legal representation at all. If a criminal defendant has no lawyer, prejudice is legally presumed in every case."); People v. Hinkley, 193 Cal.App.3d 383, 389, 238 Cal.Rptr. 272, 275 (1987) (attorney had been placed on an "inactive" list prior to defendant's trial after both the state bar and an appellate court had determined that he was "incompetent to represent clients").Grant, 992 A.2d at 159-60 (some citations omitted).
Accordingly, in Grant, supra, this Court held that, since the defendant was represented at trial by an attorney, who had committed substantive violations and was at the time he represented the defendant unlicensed/on inactive status, the defendant was constructively denied the right to counsel under the U.S. and Pennsylvania Constitutions. We held prejudice was presumed per se, and it was unnecessary for the defendant to demonstrate actual prejudice. Id.
However, as the Commonwealth notes, in cases distinguishable from Grant, this Court has held that prejudice is not presumed where the defendant was represented by counsel, who was suspended or disbarred after representing the defendant based upon unrelated conduct. For example, in Commonwealth v. Vance, 546 A.2d 632 (Pa.Super. 1988), the defendant was arrested and charged with murder and possession of an instrument of crime. He was represented by Richard Polack from April of 1985 until he was sentenced on February 5, 1986. Id. The defendant eventually pled guilty to murder, and while his pro se post-sentence motions were pending, the Pennsylvania Supreme Court revoked Mr. Polack's admission to the bar on April 16, 1986, for conduct occurring prior to and unrelated to the defendant's criminal proceedings. Id. The trial court granted the defendant a new trial on the basis the defendant had been represented by an attorney, who was disbarred after the defendant entered his guilty plea.
However, in Vance, the Commonwealth filed an appeal. Id. Initially, this Court noted "there is nothing in the law that states a grant of a petition to revoke admission to the bar is equivalent to a person never having been a member of the bar." Id. at 636. We then concluded that "the defendant was at all times during the course of his trial and sentencing procedures represented by a member of the bar." Id. at 637.
In Vance, this Court specifically held that, where trial counsel's admission to the bar is subsequently revoked for activities not related to his conduct while representing a defendant, the defendant is not deemed unrepresented by counsel at trial. Id. Furthermore, we held counsel's subsequent disbarment would not per se render him ineffective absent a finding that the conduct which caused the disbarment affected counsel's representation of the defendant, and the defendant established actual prejudice by counsel's ineffectiveness. Id. See Commonwealth v. Allen, 48 A.3d 1283, 1288 (Pa.Super. 2012) (holding prejudice not presumed where counsel was suspended from the bar after representing the appellant based upon conduct that occurred prior to his representation of him); Commonwealth v. Weeks, 554 A.2d 68 (Pa.Super. 1989) (holding subsequent events which bear upon a lawyer's competence are inadequate to warrant a new trial unless it can be demonstrated the individual on trial suffered actual prejudice as a result of the challenged behavior). See also Commonwealth v. Parker, No. 1251 EDA 2019, 2019 WL 5887453 (Pa.Super. filed 11/12/19) (unpublished memorandum) (holding prejudice is not presumed where counsel is disbarred after representing the defendant based upon conduct occurring prior to and unrelated to the defendant's representation).
We note that unpublished non-precedential decisions of this Court filed after May 1, 2019, may be cited for their persuasive value. See Pa.R.A.P. 126(b). We find Parker to be persuasive in the case sub judice.
In the case sub judice, Attorney Altman was a fully licensed attorney during the entire time he represented Appellant, and he was disbarred after he withdrew from representing Appellant. Further, Attorney Altman's disbarment was not related to any conduct occurring during Appellant's criminal proceedings; but rather, the disbarment pertained to unrelated, prior behavior. See Altman, supra.
Specifically, Attorney Altman represented a client, Maria Cahill, in civil matters from December 21, 2012, to August of 2015. His actions during the representation of Ms. Cahill prompted the Office of Disciplinary counsel to file a petition for discipline on October 11, 2017. As indicated, our Supreme Court ordered his disbarment on April 22, 2020.
Accordingly, based on Vance and its progeny, we conclude Appellant was not constructively unrepresented by counsel, particularly during the pretrial stages as alleged by Appellant. "On the contrary, [Appellant] was at all times…represented by a member of the bar." Vance, 546 A.2d at 637. The fact that Attorney Altman was subsequently disbarred for activities not related to his conduct while he was representing Appellant does not mean that Appellant was unrepresented. Id. Accordingly, Appellant must demonstrate the traditional Strickland/Pierce prongs for ineffectiveness, including actual prejudice, as it relates to Attorney Altman's representation of Appellant during the pretrial plea negotiations with the Commonwealth. Vance, supra.
Regarding actual prejudice, Appellant baldly contends that, since he was unaware Attorney Altman was the subject of ongoing disciplinary proceedings, he erroneously trusted him and relied on his advice during plea negotiations. He contends that, had he known about the nature of the disciplinary proceedings, he would have disregarded Attorney Altman's poor advice and accepted "the Commonwealth's generous plea offer, which consisted of a minimum term of four years' imprisonment." Appellant's Brief at 17.
Accordingly, Appellant contends that, but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. Id.
However, the record belies Appellant's claim that he was unaware of the disciplinary proceedings against Attorney Altman. Specifically, on January 18, 2019, the following relevant exchange occurred during a pretrial hearing:
THE COURT: We're here in the matter of Commonwealth versus [Appellant]. And the reason we're here is because I wanted to make sure [Appellant] knew that-I wanted to make sure that you had talked to your attorney and knew that he had a personal investigation in front of the Pennsylvania Disciplinary Board where he's examined by attorneys to see-they examine to see if he committed any violations as an attorney. Have you discussed this pending investigation of [Attorney] Altman with him?
[APPELLANT]: This morning my attorney spoke with me about that matter.
THE COURT: Okay, do you have any questions about it?
[APPELLANT]: I don't know anything as long as this procedure is not affecting me in any way.
THE COURT: The only conceivable thing is I don't know when this case will be ultimately tried. And who knows, in six months from now something happens involving your attorney, we possibly
could have to get you a whole new attorney and start all over again. His own attorney-[Attorney] Altman has his own attorney, and he says he thinks it will take eight months to a year to resolve this, not your case, his case. But I wanted you aware, because there have been issues about bail or where you were at bail, the DA wants you in jail. I'm letting you stay out under these circumstances. I will do everything I can to try your case sooner, but there are two concerns here: One is the timing, when [Attorney] Altman's situation, you know whatever happens; and two, it's just that you be aware that there have been some complaints made about him. He's like you are, he's presumed innocent, and he will have his day in court, but I want you to know about it to see if you are comfortable proceeding with him as your attorney. What would you like to do? Why don't the three of you talk more among yourselves, come back, and we will talk at sidebar. Talk to your client and come back to sidebar.
DA, anything that you want to weigh in on this whole issue?
[DISTRICT ATTORNEY]: The only concern has been I know you just discussed with him about his current, whether that's at issue pretrial, but one of the issues is the appeal issue. If, you know, for example, something does happen with [Attorney] Altman's license and [Appellant] just had a trial, his question to your Honor was: Will that affect me and-
THE COURT: If you got convicted, the case would not be resolved in a year's time because you have appeals going on besides the trial in this case. If you were convicted, then there's a possibility of appeals down the line. Who knows what your attorney's status is. Who knows what his status is then. That's something you should discuss, too. It's not when you try the case. It's in the long run of, say, the case, it didn't go the way you wanted it to, then you have to explain to a whole other attorney what went on. I will give you some time to talk to your attorney about each issue….I will allow you, your interpreter, and [Attorney] Altman to talk through your interpreter to clear up anything.
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THE COURT: Back on the record….[Attorney] Altman, have you had a chance to talk to your client?
[ATTORNEY ALTMAN]: Extensively.
THE COURT: What's your feeling about his comfort level with proceeding with you as his attorney?
[ATTORNEY ALTMAN]: He's completely comfortable and trusting.
THE COURT: [Appellant], did you talk to your attorney about the pending disciplinary matter he has hanging over his head?
[APPELLANT]: Yes, I did. I spoke with him.
THE COURT: Are you comfortable with him representing you in this case?
[APPELLANT]: Yes.N.T., 1/18/19, at 3-7.
Moreover, on July 30, 2019, during another pretrial hearing, which addressed additional pretrial motions, the following relevant exchange occurred:
THE COURT: Okay, [Appellant], you can have a seat. I will ask you a couple more questions. Previously, I had you talk to your attorney about a legal action brought against him. Do you remember talking about that?
[APPELLANT]: Yes.
THE COURT: I will review it with you to make sure that you understand what's going on. First, there was a hearing from the disciplinary board of the Supreme Court in Pennsylvania that recommended that [Attorney] Altman be disbarred, and disbarred means basically no longer able to practice as an attorney. They take away his license to practice. Similar example would be taking away your license to drive a car. Do you understand that a hearing board made that decision before?
[APPELLANT]: Yes.
THE COURT: Then it went to an appeals board. That board also recommended that he be disbarred. Do you understand that?
[APPELLANT]: Yes.
THE COURT: Those decisions are on appeal to the Pennsylvania Supreme Court.
[APPELLANT]: That is correct.
THE COURT: So, we're in the in-between area. He's still allowed to practice law, but some day the Supreme Court might say he's no longer allowed to practice law. Do you understand that sir?
[APPELLANT]: Yes.
THE COURT: So that means, for example, worse case scenario for you, is if we try this case in August, within the next two weeks and [Attorney] Altman's appeal fails, he will no longer be able to represent you. Do you understand that?
[APPELLANT]: Yes.
THE COURT: And I don't want you complaining later that, well, my attorney was under, you know, he had been disbarred. He was under appeal, and I'm not satisfied with his representation. Do you have any complaints about [Attorney] Altman's representation up to this point?
[APPELLANT]: No.
THE COURT: Do you want him to continue to represent you in this case?
[APPELLANT]: Yes.
THE COURT: Are you comfortable with the fact that, I mean, are you okay with the fact that he has these appeals to the Pennsylvania Supreme Court? Are you okay with him still representing you?
[APPELLANT]: Yes.
THE COURT: In a way, he's kind of like you that he still has his right to fight the case. Do you understand that?
[APPELLANT]: Yes.
THE COURT: The difference is that he is not presumed innocent. He has been found-recommended to be disbarred twice now.
[APPELLANT]: Yes.
THE COURT: But he has his right to appeal it.
[APPELLANT]: Yes.
THE COURT: Do you have any questions about any of this?
[APPELLANT]: As long as this will not affect my trial, I'm fine.
THE COURT: Okay, well, if the Pennsylvania Supreme Court decides to uphold the appeal before your trial, [Attorney] Altman, obviously, cannot represent you.
[APPELLANT]: Yes.
THE COURT: But it won't affect trying your case other than you have an attorney whose conduct had been called into question by the disciplinary board of the Supreme Court. Do you understand that?
[APPELLANT]: Yes.
THE COURT: The jury will not hear anything about any of this, but I want to make sure you are comfortable with [Attorney] Altman representing you.
[APPELLANT]: Yes.
THE COURT: Are you comfortable with him continuing to represent you?
[APPELLANT]: Yes.
***
THE COURT: Do you want [Attorney] Altman to continue to represent you?
[APPELLANT]: Yes.
THE COURT: And you are satisfied with him representing you despite the fact that he has these things hanging over his head?
[APPELLANT]: Yes.
TRIAL COURT: [District Attorney], anything else that you want me to inquire about in this particular area?
[DISTRICT ATTORNEY]: Not regarding this issue.
THE COURT: Okay, [Attorney] Altman, anything else you want to clarify?
[ATTORNEY] ALTMAN: Yes, Your Honor.
THE COURT: Why don't you put what you discussed with your client on the record.
[ATTORNEY] ALTMAN: Your Honor, I mentioned every single stage of my disciplinary proceedings with my client as they occurred. I have told him that the Supreme Court takes some time to schedule a brief argument…that would go beyond the trial, and that it was extremely unlikely that something would happen before the trial since it's now [scheduled for] the 12th of August. I have explained to him that if the Supreme Court upholds my disbarment recommendation, then I would not be able to handle his appeal. I think that's what [the district attorney] wanted to make certain that he understood.
[DISTRICT ATTORNEY]: That's correct.N.T., 7/30/19, at 38-44.
Here, the record is clear that Attorney Altman "mentioned every single stage of [his] disciplinary proceedings with [Appellant] as they occurred." Id. at 43. Also, Appellant was advised by the trial court of the disciplinary case against Attorney Altman during the January 18, 2019, pretrial hearing, as well as again during the July 30, 2019, pretrial hearing.
Each time, Appellant indicated his awareness of the disciplinary proceedings against Attorney Altman and stated his desire to proceed with Attorney Altman as his counsel. In fact, during the July 30, 2019, hearing, Appellant confirmed he had "no complaints about Attorney Altman's representation up to this point," and he expressed his desire to have Attorney Altman continue to represent him. N.T., 7/30/19, at 40. Appellant is bound by his statements, which he made on the record. Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003) (holding a person is bound by the statements he makes in open court while under oath).
Accordingly, we conclude the PCRA court properly rejected Appellant's ineffectiveness claim. Specifically, the PCRA court did not err in concluding that Appellant failed to demonstrate actual prejudice. That is, since the record refutes Appellant's claim that he was unaware of the disciplinary proceedings against Attorney Altman, Appellant failed to demonstrate that, but for an alleged lack of knowledge, he would have accepted the Commonwealth's plea offer. See Strickland, supra; Pierce, supra.
In his final issue, Appellant contends the PCRA court erred in denying his ineffective assistance of counsel claim absent an evidentiary hearing.
There is no absolute right to an evidentiary hearing on a PCRA petition. See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super. 2008). "To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. Brown, 649 Pa. 293, 196 A.3d 130, 193 (2018) (cleaned up).
In the case sub judice, given the record demonstrates that, contrary to Appellant's assertion, he was aware of the disciplinary proceedings pending against Attorney Altman, including during the pretrial plea negotiation stage, we conclude Appellant has not raised a genuine issue of material fact warranting an evidentiary hearing. See id. As such, the PCRA court did not abuse its discretion in denying Appellant's PCRA petition without an evidentiary hearing.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.