Com. v. Diaz-Perdomo, O. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OMAR D. DIAZ-PERDOMO,
Appellant No. 2116 MDA 2015
Appeal from the PCRA Order November 13, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001103-2012
BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 15, 2016
Appellant, Omar D. Diaz-Perdomo, appeals from the November 13,
2015 order, dismissing his petition for relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. After careful
review, we reverse the order denying PCRA relief, vacate the judgment of
sentence, and remand for resentencing.
The PCRA court summarized the salient procedural history as follows:
[Appellant] was charged with Possession with Intent to
Deliver a Controlled Substance (Count 1-morphine sulfate pills),
two counts of Possession of a Controlled Substance (Count 2-
morphine sulfate pills and Count 3-cocaine) and Possession of
Drug Paraphernalia (Count 4-plastic straw). The drugs and
paraphernalia were found during searches conducted at the
scene of [Appellant’s] arrest, at Central Booking, and at
[Appellant’s] residence on April 19, 2012. After a jury trial on
April 3, 2013, [Appellant] was convicted of all charges. He was
sentenced to an aggregate term of thirty-nine to seventy-eight
months in a state correctional institution on June 12, 2013.
Post-Sentence Motions were denied by Order of October 22,
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2013 and the Pennsylvania Superior Court affirmed on
August 15, 2014.
On October 27, 2014, [Appellant] filed a Petition pursuant
to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq.
After PCRA counsel was appointed, he filed an Amended Petition
on February 2, 2015 and a Second Amended Petition on April 8,
2015. [Appellant] asserts ineffective assistance of counsel on
the part of his trial counsel and also assigns error to our failure
to appoint conflict counsel to represent him due to his problems
in his dealings with trial counsel. We conducted a hearing on
June 25, 2015, both parties have submitted Briefs, and the
matter is now before us for resolution.
PCRA Court Opinion, 11/13/15, at 1–2 (footnote omitted).
The PCRA court denied Appellant’s request for collateral relief on
November 13, 2015. Appellant filed a notice of appeal to this Court on
December 4, 2015, and complied with the PCRA court’s order to file a
Pa.R.A.P 1925(b) concise statement of errors complained of on appeal.
Concluding that “the issues raised by [Appellant] have been previously
addressed in [its] Order and Opinion dated November 13, 2015,” the PCRA
court directed the Lebanon County Clerk of Courts to transmit the record to
this Court. Order, 12/22/15.
Appellant raises numerous questions for our review, nine challenging
trial counsel’s representation and one issue concerning the trial court’s
refusal to appoint conflict counsel:
1. Whether Trial Counsel was ineffective for failing to
introduce evidence regarding Appellant’s employment so as to
rebut the Commonwealth’s implications that Appellant was
selling drugs?
2. Whether Trial Counsel was ineffective for failing to
timely request the video footage of Central Booking so as to
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rebut the Commonwealth’s witnesses’ testimonies regarding the
money found in Appellant’s possession?
3. Whether Trial Counsel was ineffective for failing to
consult with Appellant [about] the video footage of the police car
at the time of Appellant’s arrest so as to rebut Commonwealth’s
witnesses’ testimonies regarding the money found in Appellant’s
possession?
4. Whether Trial Counsel was ineffective for failing to
obtain and thereby present Appellant’s home and job plan to
rebut Parole Officer Thomas’s and Detective Sergeant
Radwanski’s testimonies that Appellant resided in a halfway
house, and worked a part-time, minimum-waged job?
5. Whether Trial Counsel was ineffective for failing to
obtain and thereby present evidence to show that Appellant had
not patronized the bar, consumed alcohol, or spoke on a cell
phone prior to his being searched, where such evidence should
have been used to impeach Parole Officer Thomas’s credibility?
6. Whether Trial Counsel was ineffective for failing to
argue, on direct appeal, that Appellant’s verdict of Possession
with Intent to Deliver was against the weight of the evidence
presented at Trial, where Commonwealth witnesses gave
contradictory testimonies?
7. Whether Trial Counsel was ineffective for failing to
introduce evidence that the morphine pills that were allegedly in
Appellant’s possession at the time in which Appellant was
searched was small in quantity, and therefore, could not
sufficiently prove Appellant guilty of Possession with Intent to
Deliver beyond a reasonable doubt?
8. Whether Trial Counsel was ineffective for failing to
object to Parole Officer Thomas’s comment that Appellant had a
history with the Parole Board, where such comment ultimately
prejudiced Appellant?
9. Whether Trial Counsel was ineffective for failing to
subpoena and thereby present the parole/probation logs from
Parole Officer Thomas, where such evidence should have been
used to impeach Parole Officer Thomas’s testimony that he had
not been at Central Booking?
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10. Whether Trial Court erred when it failed to appoint
conflict counsel, where the Court was aware that there was a
breakdown in communication between Trial Counsel and
Appellant?
Appellant’s Brief at 4–7.
Our standard of review of an order denying PCRA relief is well settled:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015) (quoting
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal
citations omitted)). Additionally, to establish a claim of counsel’s
ineffectiveness, a petitioner is required to plead and prove: “(1) that the
underlying issue has arguable merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) actual prejudice resulted from counsel’s
act or failure to act. If a petitioner fails to plead or meet any elements of the
above-cited test, his claim must fail.” Commonwealth v. Ford, 44 A.3d
1190, 1194–1195 (Pa. Super. 2012) (quoting Commonwealth v. Burkett,
5 A.3d 1260, 1271–1272 (Pa. Super. 2010) (internal citations and
quotations omitted)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the PCRA court, we
conclude that Appellant’s ineffective representation issues merit no relief. As
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detailed below, the November 13, 2015 PCRA court opinion comprehensively
discusses and properly disposes of those questions.
The PCRA court first decided that trial counsel provided effective
assistance in regard to counsel’s approach to the Commonwealth’s evidence
of Appellant’s employment status. Appellant claimed that he provided trial
counsel with a letter indicating that he was a full-time employee in
contradiction to Commonwealth testimony that he only worked part-time.
The PCRA court concluded that Appellant failed to substantiate the claim that
he provided counsel with a letter verifying his full-time employment;
instead, it credited trial counsel’s testimony at the PCRA hearing that he did
not challenge the Commonwealth’s testimony concerning Appellant’s
employment status because that evidence was consistent with what
Appellant told counsel and what was presented to the jury. PCRA Court
Opinion, 11/13/15, at 6–7.
Second, the PCRA court determined ineffective assistance did not
result from trial counsel’s efforts in attempting to obtain (from Central
Booking) and in obtaining (police vehicle) video footage that Appellant
claimed would rebut the Commonwealth’s witnesses’ testimony regarding
money found in Appellant’s possession. Appellant avers that the money was
taken from him during a search performed by Lebanon City Police
Officer Adam Rusz at the arrest scene. However, Appellant contends that
Officer Rusz’s police report states the money was found at Central Booking
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while that same officer’s inventory report relates that the money was found
at the scene. Noting this discrepancy, on January 22, 2013, Appellant
requested trial counsel to obtain the video footage from Central Booking for
the date of his arrest, April 19, 2012. Trial counsel submitted a request for
the footage by email to the Lebanon County District Attorney on February 1,
2013. The District Attorney responded that the Central Booking video
footage is retained only for thirty days and that the footage requested no
longer existed. Trial counsel was able to obtain the in-car video footage of
Appellant in the city police vehicle, but it did not include footage of activity
occurring outside of the vehicle. N.T., 6/25/15, at 33–36. Appellant asserts
that trial counsel was ineffective by virtue of his failure to timely request the
Central Booking video footage and then to utilize it to cast doubt on the
credibility of the law enforcement officer’s testimony concerning the money
confiscated from Appellant.
In addition to finding that trial counsel attempted to comply with
Appellant’s request for the Central Booking video footage and should not be
faulted for its unavailability, the PCRA court also concluded Appellant did not
demonstrate any prejudice resulting from trial counsel’s actions with regard
to the videos. The PCRA court observed:
[Appellant] did not dispute that he was in possession of this
money. Even if the footage had shown what [Appellant]
claimed, the location where that money was found, and Officer
Thomas’s presence at Central Booking are inconsequential facts
which would have had no bearing on the jury’ s verdict. Such
facts had no relevance to the elements of [Appellant’s] charges
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and, even if proven, would not have negated the facts relevant
to the Commonwealth’s proof of those elements. We believe the
jury would have found them to be minor details which would not
have had any impact on the credibility attributed to these two
witnesses. Trial counsel was able to obtain the police vehicle
footage and gave [Appellant] an opportunity to view it.
[Appellant] agreed that it showed nothing of the search
conducted at the scene at Ninth and Mifflin Streets. He has
identified nothing which would have been helpful to his case and
trial counsel cannot be faulted for failing to present irrelevant
evidence at trial.
PCRA Court Opinion, 11/13/15, at 9–10.1
The PCRA court next dismissed Appellant’s fourth claim that trial
counsel was ineffective for failing to procure and present documents from
Appellant’s home and job plan that Appellant proposed would shed light on
his employment status and his place of residence and contradict testimony
presented by the Commonwealth’s witnesses. The PCRA court credited trial
counsel’s explanation that the subject records would not have been helpful
to the defense and that counsel “did not want to ‘open the door’ to
[Appellant’s] supervision history as he had a number of previous [parole]
violations and was behind in the payment of his fines and costs.” PCRA
Court Opinion, 11/13/15, at 12. Trial counsel also explained that he “feared
that [these records] might suggest to the jury that [Appellant] did not have
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1
Appellant’s third issue is that trial counsel was ineffective by failing to
consult with Appellant about the video footage from the police car.
Appellant does not develop this argument nor could it have merit in that trial
counsel did obtain that video footage and showed it to Appellant. N.T.,
6/25/15, at 10.
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the money for these payments and had been selling drugs because he
needed cash.” Id. at 13. The PCRA court found “no error of judgment on
the part of trial counsel in his attempt to minimize any potential prejudice
posed by [Appellant’s] supervision history.” Id.
Appellant’s fifth allegation is that trial counsel was ineffective for failing
to obtain and present certain evidence that would rebut the
Commonwealth’s testimony that Appellant was patronizing a bar, had
consumed alcohol, or had spoken on a cell phone prior to his being stopped
and searched by Parole Officer Ralph Thomas, where such evidence should
have been used to impeach Parole Officer Thomas’s credibility. The PCRA
court summarized and resolved this issue as follows:
[Appellant] further claims that he was not using a
cellphone prior to being approached by Officer Thomas, that he
had not been inside the Liberty Bar, and that he had not
consumed any alcohol prior to his arrest. He complains that trial
counsel failed to conduct an investigation regarding these facts
and failed to “ask the right questions” of Officer Thomas and
Officer Rusz regarding these matters in order to show their lack
of credibility. He asserts that trial counsel should have
questioned these witnesses as to why no cellphone was
introduced as evidence and why there had been no blood or
urine tests to determine whether [Appellant] had consumed
alcohol. [Appellant] wanted these subjects brought up during
trial so that the jury could “know exactly what happened.” (N.T.
6/25/15 at 25) However, he could not recall whether he even
requested trial counsel to conduct such an investigation. He also
admitted that he knew of no witnesses who could have testified
to these facts and had no other evidence to demonstrate that his
version of the facts was accurate.
Trial counsel noted that he did refer to the
Commonwealth’s failure to produce a cellphone during his
closing argument. He further explained that he could not follow
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up on these matters because [Appellant] could not give him the
names of any witnesses. He also did not want to go too much
into what was going on at the scene because the police report
had indicated that another individual was with [Appellant] when
he was first observed by Officer Thomas. As Officer Thomas
approached, [Appellant] kicked something that looked like drugs
to that individual, and that individual picked up the item and ran
into a building. Trial counsel was concerned that if he went into
what was going on outside the bar, this would come up and it
would suggest to the jury that [Appellant] had been selling
drugs. We believe that this was a reasonable basis for trial
counsel to avoid bringing up matters from the scene which would
not have been helpful to [Appellant] in the long run.
PCRA Court Opinion, 11/13/15, at 10–11.
Next, contrary to the argument raised in Appellant’s sixth appellate
issue, the PCRA court concluded that trial counsel acted reasonably when he
did not pursue a weight to the evidence challenge in the post-sentence
motion filed on Appellant’s behalf. The PCRA court reviewed trial counsel’s
testimony at the PCRA hearing describing counsel’s evaluation of a possible
weight of the evidence issue and agreed that such an argument would be
unavailing. The PCRA court noted:
Trial counsel explained that he saw no merit in including a
challenge to the weight of the evidence because the
determination of what credibility to give to the testimony of
these two witnesses was for the jury and he saw no chance that
such an argument would be successful. After reviewing the
transcript of the jury trial, we agree with trial counsel that this
argument would have been unsuccessful and that he was not
required to pursue a meritless avenue at the post-sentence
stage of these proceedings. The claimed inconsistencies were of
insignificant matters and were irrelevant to the elements of the
offenses with which [Appellant] was charged. We find nothing
that would indicate lack of credibility on any of the
Commonwealth witnesses to such a degree that their testimony
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should not have been given the credibility attributed to it by the
jury.
PCRA Court Opinion, 11/13/15, at 17–18.
Appellant’s seventh assertion of ineffective representation concerns
trial counsel’s failure to introduce evidence that the small amount of
morphine pills (thirty-six pills) found in his possession was not consistent
with a possession with intent to deliver offense. The PCRA court rejected
this allegation of ineffectiveness, reasoning:
At the PCRA hearing, [Appellant] gave confusing testimony
in this regard. [Appellant] acknowledged that he did not request
trial counsel to present any evidence that the pills were for
personal use. [Appellant] insisted that he had a prescription, but
claimed that he did not tell trial counsel why he had the pills in
his possession because he had already told prison officials that
he was not using any drugs in his intake form. In the next
breath, however, he testified that he told trial counsel that he
was taking the pills for leg pain and was not selling them.
[Appellant] admitted that the only evidence which could
have been presented on this issue was his own testimony.
However, on the morning of trial, [Appellant] told both trial
counsel and the Trial Judge that he would not testify[.]
* * *
Trial counsel testified [Appellant] had acknowledged to him
that he was using the morphine pills, and had told him they were
in his possession for his personal use. However, [Appellant] did
not tell trial counsel that he was using the pills for pain. If
[Appellant] had told him that he was using them for pain, trial
counsel would have followed up to obtain evidence of his medical
condition and the details of his treatment.
Trial counsel also explained that he had defended felony
drug cases in the past and was familiar with presenting defenses
in such cases. He was familiar with Sergeant Radwanski, the
Commonwealth’s expert on possession with intent to deliver, and
had dealt with him in his past cases. Trial counsel conducted
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extensive questioning of Sergeant Radwanski regarding the
factors relevant to a possession with intent to deliver case and
felt that he asked all questions pertinent to the defense of this
charge.
We agree with the Commonwealth that [Appellant] cannot
now complain that no evidence was presented to support his
position that he was in possession of the morphine pills for
personal use due to pain when he provided trial counsel with no
information regarding this issue prior to trial. Moreover,
although [Appellant] had the absolute right to decline the
opportunity to testify on his own behalf at trial, he admitted that
this was the only evidence available on this point.
PCRA Court Opinion, 11/13/15, at 13–16 (record references omitted).
The PCRA court additionally observed that its review of the trial
transcript revealed that:
trial counsel conducted a rigorous cross-examination of
Sergeant Radwinski regarding his opinion. Trial counsel asked
numerous questions regarding the money in [Appellant’s]
possession, the prison intake form, the way in which the pills
were packaged, the lack of necessity of paraphernalia for
ingesting such pills, and other issues which would have been
relevant to the issue of an intent to distribute. We find nothing
more that he could have done under the circumstances.
PCRA Court Opinion, 11/13/15, at 17.
Appellant’s eighth argument is that trial counsel was ineffective for
failing to object to Parole Officer Thomas’s comment at trial that Appellant
had a history with the Parole Board because such comment unduly
prejudiced Appellant in the eyes of the jury. The PCRA court did not find this
allegation of ineffectiveness to be meritorious:
At the jury trial, Officer Thomas had noted that [Appellant] was
on state parole at the time and was not permitted to be in an
establishment that sells alcohol. In addition, Officer Thomas also
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indicated that he would be familiar with the home address of a
supervisee. [Appellant] claims that this testimony implied that
Officer Thomas was familiar with [Appellant] because he was on
supervision, thereby causing prejudice in the eyes of the jury.
Trial counsel explained that this testimony was offered by
the Commonwealth as an explanation for why Officer Thomas
was making contact with [Appellant]. Trial counsel knew that
under the circumstances of the case, there would be no way to
avoid the subject of [Appellant’s] supervision. He believed that
the jury was well aware that [Appellant] was on state parole at
the time because he was detained by a state parole officer.
Since there was no way to avoid this subject, he did not object.
We find it highly doubtful that the jury would have reached a
different verdict had it not known this information.
PCRA Court Opinion, 11/13/15, at 11–12 (record reference omitted).
Appellant’s last complaint concerning trial counsel’s representation is
that counsel was ineffective for failing to subpoena Parole Officer Thomas’s
parole logs to impeach the officer’s testimony that he was present when
Appellant was brought to Central Booking. While the PCRA court did not
specifically address whether trial counsel should have subpoenaed these
documents, it did determine that:
Officer Thomas’s presence at Central Booking [is an]
inconsequential fact[] which would have had no bearing on the
jury’s verdict. Such fact[] ha[s] no relevance to the elements of
[Appellant’s] charges and, even if proven, would not have
negated the facts relevant to the Commonwealth’s proof of those
elements. We believe the jury would have found [it] to be [a]
minor detail[] which would not have had any impact on the
credibility attributed to [Officer Thomas].
PCRA Court Opinion, 11/13/15, at 9. The PCRA court thus concluded that
Appellant did not suffer any prejudice by trial counsel’s failure to contest the
fact of Officer Thomas’s presence at Central Booking. Id.
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Appellant’s final issue is that the trial court erred when it failed to
appoint conflict counsel when the court became aware that there was a
breakdown in communication between Appellant and trial counsel. This
assertion of error is not cognizable in this proceeding. To be eligible for
PCRA relief, a petitioner must demonstrate that “the allegation of error has
not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). Under
42 Pa.C.S. § 9544(b), “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 postconviction proceeding.” The PCRA court found that
Appellant “made no mention of any complaint regarding trial counsel
throughout the pretrial period, at the time of the jury trial, or in post-
sentence proceedings.” PCRA Court Opinion, 11/13/15, at 20. Nor did
Appellant raise the conflict counsel issue in his direct appeal. See
Appellant’s Pa.R.A.P. 1925(b) statement, 12/11/13, at 1 (claiming error in
the trial court’s denial of his pretrial motion to suppress and challenging the
sufficiency of the evidence to support his conviction for possession with
intent to distribute). Thus, this claim is waived for appellate review.
Commonwealth v. Bond, 819 A.2d 33, 39 (Pa. 2002) (“[C]laims that could
have been raised on direct appeal but were not are waived under the
PCRA.”).
To summarize, the PCRA court’s opinion thoroughly and cogently
addressed each allegation of ineffectiveness. The record supports the PCRA
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court’s determinations, and the PCRA court’s decision is free of legal error.
Additionally and remarkably, Appellant does not challenge any of the PCRA
court’s factual findings or claim that the PCRA court’s legal conclusion are
erroneous. For these reasons, as to the nine claims of ineffective assistance
of counsel, we affirm on the basis of the PCRA court’s November 13, 2015
opinion and adopt it as our own. Accordingly, we direct the parties to
include the PCRA court’s opinion in all future filings relating to our
examination of the merits of this appeal. Furthermore, Appellant’s claim
that the trial court erred when it denied his request to appoint conflict
counsel is waived. See 42 Pa.C.S. § 9544(b) (for purposes of collateral
relief, issue is waived if the petitioner could have previously raised the issue
but failed to do so).
These conclusions, however, do not discharge our appellate obligation
in this matter. In his appellate brief, albeit in a footnote, Appellant, for the
first time, challenges the legality of his sentence under Alleyne v. United
States, 133 S.Ct. 2151 (2013). While ordinarily Appellant’s effort to raise
an issue for review that was not included in his Pa.R.A.P. 1925(b)
statements, either in his direct appeal or his present appeal from denial of
PCRA relief, would be unsuccessful and subject to waiver, an Alleyne claim
is a non-waivable challenge to the legality of sentence, which is cognizable
under the PCRA. See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.
Super. 2014) (en banc) (an Alleyne challenge to a sentence implicates the
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legality of the sentence and such a challenge cannot be waived).2 But see
Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (Alleyne does
not invalidate a mandatory minimum sentence when presented in an
untimely PCRA petition). We will, therefore, address whether Appellant’s
legality of sentence challenge is cognizable in light of the procedural posture
in which the claim was raised.
At the time Appellant was sentenced, 18 Pa.C.S. § 6317(a) imposed a
mandatory minimum sentence of two years of confinement upon a
defendant for, inter alia, a conviction of possession with intent to deliver, 35
P.S. § 780-113(a)(30), if the possession with intent to deliver a controlled
substance occurred within 1,000 feet of a school. Additionally, section
6317(b) instructed that “the provisions of this section shall not be an
element of the crime” and the applicability of the statute shall be determined
at sentencing by a “preponderance of the evidence.” 18 Pa.C.S. § 6317(b).
In Alleyne, the United States Supreme Court held that “[a]ny fact
that, by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133
S.Ct. at 2155 (citation omitted). Three years later, in Commonwealth v.
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2
On September 18, 2015, the Pennsylvania Supreme Court granted the
petition for allowance of appeal in Commonwealth v. Barnes, 350 EAL
2014, 122 A.3d 1034 (2015) (per curiam), to address the question of
whether an Alleyne violation implicates the legality of a sentence and thus
renders a challenge non-waivable.
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Hopkins, 117 A.3d 247 (Pa. 2015), the Pennsylvania Supreme Court
applied the Alleyne mandate and held that the mandatory minimum
sentencing scheme set forth in 18 Pa.C.S. § 6317 was unconstitutional in its
entirety. Hopkins, 117 A.3d at 262.
In Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015), this
Court reiterated its prior declarations in Newman that: (1) an Alleyne
claim is a non-waivable challenge to the legality of sentence; and
(2) Alleyne announced a new constitutional rule that applied to all cases
pending on direct review when Alleyne was decided. Ruiz, 131 A.3d at 59–
60 (citing Newman, 99 A.3d at 90). Based on those premises, Ruiz held
that a defendant could raise an Alleyne challenge in a timely PCRA petition
so long as his direct appeal from the judgment of sentence was still pending
when Alleyne was decided. Ruiz, 131 A.3d at 60.
Recently, in Commonwealth v. Washington, ___ A.3d ___, 2016
WL 3909088 (Pa. filed July 19, 2016), the Pennsylvania Supreme Court
addressed an Alleyne claim raised in a timely PCRA petition where the
judgment of sentence had become final prior to the Alleyne decision. In
doing so, the Court stated:
[A] new rule of law does not automatically render final, pre-
existing sentences illegal. A finding of illegality concerning such
sentences may be premised on such a rule only to the degree
that the new rule applies retrospectively. In other words, if the
rule simply does not pertain to a particular conviction or
sentence, it cannot operate to render that conviction or sentence
illegal. . . .
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* * *
[N]ew constitutional procedural rules generally pertain to future
cases and matters that are pending on direct review at the time
of the rule’s announcement.
Id. at *3-4 (emphasis added). See also id. at *4 (stating: “[I]f a new
constitutional rule does not apply, it cannot render an otherwise final
sentence illegal”). The Washington Court applied the retroactivity analysis
delineated in Teague v. Lane, 489 U.S. 288 (1989), and determined the
new constitutional rule announced in Alleyne is not a substantive or
watershed procedural rule that would warrant retroactive application.
Washington, id. at *7. The Court held the defendant was not entitled to
retroactive application of Alleyne because his judgment of sentence became
final before Alleyne was decided. Id.
Here, Appellant’s judgment of sentence had not become final prior
to the Alleyne decision, thus Washington is distinguishable. Appellant’s
sentencing proceeding was held on June 12, 2013. At the hearing, the
sentencing court determined that the school zone sentencing enhancement
then codified at 18 Pa.C.S. § 6317 applied. N.T. (Sentencing), 6/12/13, at
19. Appellant was then sentenced to an aggregate term of thirty-nine to
seventy-eight months of incarceration.
On June 17, 2013, three days after Appellant’s sentence was imposed,
the United States Supreme Court issued its decision in Alleyne. Appellant
timely filed a post-sentence motion which the trial court denied on
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October 22, 2013. Appellant filed a timely direct appeal on November 23,
2013. Appellant, however, did not present an Alleyne challenge in these
pleadings; nor did the panel of this Court raise it sua sponte in its decision
affirming Appellant’s judgment of sentence. See Commonwealth v. Diaz-
Perdomo, 106 A.3d 162, No. 2108 MDA 2013 (Pa. Super. filed August 15,
2014) (unpublished memorandum). Appellant did not petition the
Pennsylvania Supreme Court for review; accordingly, his judgment of
sentence became final on September 15, 2014.3 See 42 Pa.C.S.
§ 9545(b)(3) (providing “a judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.”). Accordingly, because Appellant’s judgment
of sentence was pending when Alleyne was decided, under Ruiz, Alleyne
applies and Appellant is entitled to review and relief. See also Hopkins,
117 A.3d at 262.
Based on the foregoing, we conclude Appellant is entitled to a remand
for resentencing without application of any unlawful mandatory minimum
statute. Accordingly, we reverse the order denying PCRA relief, vacate the
judgment of sentence, and remand for resentencing without imposition of
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3
The thirtieth day, September 14, 2014, fell on a Sunday. Therefore,
Appellant’s judgment of sentence became final on Monday, September 15,
2014. See 1 Pa.C.S. § 1908.
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the mandatory minimum term. See Commonwealth v. Bartrug, 732 A.2d
1287 (Pa. Super. 1999) (holding sentencing error in multi-count case
normally requires appellate court to vacate entire judgment of sentence so
trial court can restructure its sentencing scheme on remand).
Order reversed; judgment of sentence vacated; case remanded for
resentencing. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2016
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IN THE COURT OF COMMON PLEAS OF LEBdN'0({iftrolJ1.Ji¥P1 3 32
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO. CP-3CR-1103-2012
v.
OMAR D. DIAZ-PERDOMO
APPEARANCES:
NICHOLE EISENHART, ESQUIRE FOR THE COMMONWEALTH
ASSISTANT DISTRICT ATIORNEY
ERIN ZIMMERER, ESQUIRE FOR OMAR D. DIAZ-PERDOMO
MONTGOMERY & ZIMMERER, LLC
OPINION, TYL``LK, P.J., NOVEMBER ~3.~_2.01`` .
Defendant was charged with Possession with Intent to Deliver a Controlled
---------·---·----------~-----··-----·--------------------- --
Substance (Count 1- morphine sulfate pills), two counts of Possession of a
Controlled Substance (Count 2 - morphine sulfate pills and Count 3 - cocaine)
and Possession of Drug Paraphernalia (Count 4- plastic straw).1 The drugs and
paraphernalia were found during searches conducted at the scene of Defendant's
arrest, at Central Booking, and at Defendant's residence on April 19, 2012. After a
135
P.S. §780-113(a)(30),35 P.S. §780-113(a)(16) and 35 P.S. §780-113(a)(32), respectively.
1
jury trial on April 3, 2013, Defendant was convicted of all charges. He was
sentenced to an aggregate term of thirty-nine to seventy-eight months in a state
correctional institution on June 12, 2013. Post-Sentence Motions were denied by
Order of October 22, 2013 and the Pennsylvania Superior Court affirmed on
August 15, 2014. i
1
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On October 27, 2014, Defendant filed a Petition pursuant to the Post i
Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq. After PCRA counsel was
appointed, he filed an Amended Petition on February 2, 2015 and a Second
Amended Petition on April 8, 2015. Defendant asserts ineffective assistance of
counsel on the part of his trial counsel and also assigns error to our failure to
appoint conflict counsel to represent him due to his problems in his dealings with
trial counsel. We conducted a hearing on June 25, 2015, both parties have
sUbmittea-Briefs,ancf tne matter'"isnovibefore us for resolution. ·-·· .
To prevail on a claim of ineffectiveness of counsel, a defendant must show
that his claim was of arguable merit, there was no reasonable basis for counsel's
conduct, and counsel's conduct prejudiced the defendant. Commonwealth v.
Johnson, 874 A.2d 66, 73 (Pa. Super. 2005). If a defendant fails to satisfy any
prongs of the test, he is not entitled to relief. Commonwealth v. Natividad, 938
A.2d 310 (Pa .. 2007). If the defendant fails to demonstrate that the underlying
2
claim is of arguable merit, the ineffectiveness claim may be dismissed on that
ground alone and it is not necessary to consider the other two factors.
Commonwealth v. DINicola, 751 A.2d 197, 198 (Pa. Super. 2000). If a defendant
fails to demonstrate that he was prejudiced by counsel's actions, the
Ineffectiveness claim may be dismissed on that ground alone and it is not
necessary to consider the first two factors. Commonwealth v. Sararichak, 866
l
i
A.2d 292, 300 (Pa. 2005). 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
pursued. Id. Prejudice means that, absent counsel's conduct, there is a
reasonable probability that the outcome of the proceedings would have been
. ... .. . . .· .. ....
. ................
. . ...... :- .. . .. . . . . . .. ~ ..
different. Id.. On April 19, 2012, at approximately 8:00 p.m. (State Parole Officer)
Thomas observed Defendant standing on the front steps of the Liberty Bar
talking on a cellphone. Defendant's conditions of parole supervision
prohibit the consumption of alcohol. ... Thomas knew the Liberty Bar to be
an establishment which serves alcohol and which is well-known for drug-
trafficking location. Thomas had previously supervised Defendant on
parole and during that time had searched him and found that he possessed
controlled substances. In addition, Thomas noted that Defendant's
criminal history contained five convictions for felony drug offenses dating
back to the 1980's.
3
' .
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Defendant remained on the steps while Thomas parked his vehicle.
As Thomas approached the bar, Defendant began to walk toward Thomas.
Thomas detected the odor of alcohol coming from Defendant's person.
I
· Defendant did not appear visibly intoxicated to Thomas. Thomas ordered
Defendant to place his hands on the wall of the bar and conducted a search
I I
of his body. A bag of pills and a roll of money was found in Defendant's
right-front pocket. Thomas also confiscated the keys to Defendant's I
residence. When Thomas attempted to search Defendant's left-front
pocket, he resisted and Thomas called for backup. Two officers responded
to his call and Defendant was taken into custody. Thomas testified that he
had conducted the search to ensure Defendant's compliance with his
conditions of supervision. t I
'
Thomas testified that he lodged a parole detainer on Defendant
based on the contraband obtained during the search of his person. When
Defendant was taken to Central Booking, he was searched a second time.
That search resulted in confiscation of $280.70, a small plastic straw and
two small plastic bags containing a white powdery substance. Once he was
arrested, Defendant asked to make a phone call and indicated that there
were items which he wanted to have removed from his apartment.
Thomas and one of the other officers then used the key taken from
. . ... . .. . ·.' . ;.. . . ~ ...
Defenda ntto enter and .search Defendant' s residence in order toflnd
additional evidence of drug possession or sales. No search warrant was
obtained prior to the search of the residence. That search ~ielded _$80_0.00. · ···--··--·-·--
----·-··----- · -- ·-------- -·--·--.------------ ·----- ------~---------- -·------
'
(Slip Opinion dated December 18, 2012 at 2-4). 1;
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At Defendant's jury trial, the Commonwealth presented testimony as to the
I!
amount of cash in Defendant's possession at the time of his arrest. This evidence
was directed to the allegation that Defendant was involved in the sale of Ii
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controlled substances (the morphine pills). The cash referred to was the $280.70
found on Defendant's person and the $800.00 found in his residence. Defendant
4
claims that the money was unrelated to any drug activity and that he was in
possession of the cash because he was working full-time at Triangle Car Wash at
the time and had just received his pay. At the jury trial, Officer Thomas testified
that Defendant was employed part-time at the Car Wash earning $8.00 per hour.
Defendant complains that trial counsel offered no contradictory evidence as to
Defendant's employment status at the trial.
At the PCRA hearing, Defendant testified that prior to the jury trial, he had
obtained a letter from his employer which indicated his employment status as
"full-time." Defendant insisted that prior to trial, he had sent a letter informing
trial counsel that he had this letter and that he asked him to use it to refute the
Commonwealth's evidence with regard to his employment status. He claims that
he had also requested trial counsel to obtain his employment records for use at
trial. At the PCRA hearing,-Defendant did not present the letter nor did he --------
identify any witnesses who could have testified as to his employment status at
the jury trial.
Trial counsel testified that he could not recall having received any letter
about Defendant's employment status from Defendant prior to the trial, and that
the PCRA hearing was the first time he was hearing about it. Trial counsel
checked his file, and although it contained the other letters he had received from
5
Defendant, it did not contain the one referred to by Defendant. Trial counsel
recalled that Defendant had told him that he was working full-time; however,
when defining his work hours, Defendant had explained that he only worked "on
and off." Trial counsel explained that he did not delve any further into the
subject of Defendant's employment status at trial because the Commonwealth's
testimony was consistent with the information he had been given by Defendant.
Trial counsel explained that if he had any other information about Defendant's
employment, he would have discussed the subject with Defendant prior to trial.
However, based on the information given to him by Defendant, he was not made
aware of any additional relevant information regarding Defendant's employment
which would warrant further investigation or clarification.
We find no merit to this argument as we believe trial counsel acted
-·-- reasonably under the circumstances·. He had no reason to question o~ co.nduct
any pretrial investigation as a result of the information given to him by
Defendant. He also had no reason to believe that there was a need to challenge
the Commonwealth's evidence regarding Defendant's employment status as that
evidence was consistent with what he had been told by Defendant. In fact, he
did bring up the fact that Defendant received tips in addition to his hourly wage at
his employment. (N.T. 6/25/15 at 24) The jury was given the same information
6
about Defendant's work hours and wages as Defendant gave to trial counsel. At
the PCRA hearing, Defendant did not present any evidence of the letter he
allegedly sent to trial counsel, the letter regarding his employment status, or any
other documentation or witnesses to substantiate his claim. Therefore, he is not
entitled to collateral relief on this basis.
Defendant next complains that Defendant failed to take various measures
to attack the credibility of two Commonwealth witnesses, State Parole Officer
Thomas and Adam Rusz, a Lebanon City Police Officer who responded to assist
Officer Thomas at the scene. Defendant first points to a discrepancy over where
the $280.70 was confiscated on the date of his arrest. Defendant contends that
the money was taken from him during the search conducted by Officer Thomas at
the scene at Ninth and Mifflin Streets. Officer Rusz indicated in the police report . . .. j
-----·· that it wasfound at CenfraTBooking, while the inventory report prepared by · --- I
Office Rusz states that it was found at the scene. In addition, Defendant II
complains that Officer Thomas testified that he was not present at Central
Booking, but that he was actually present there.
Prior to the jury trial, Defendant had requested trial counsel to obtain the
video footages from both the Lebanon City police vehicle and Central Booking in
the hope that these videos would reveal these inconsistencies and suggest that
7
the testimony given by these two witnesses was unreliable. Trial counsel
explained that nothing he had received in discovery had indicated that these
items would be relevant and that he would have sought them prior to receiving
Defendant's request if he had any belief that they would aid in the defense.
With regard to the footage from Central Booking, trial counsel explained
that Defendant first made this request during a meeting at the Lebanon County
Correctional Facility on January 22, 2013. Trial counsel submitted this request via
an email to the District Attorney on February 1, 2013; however, he was Informed
that the footage was only kept for thirty days and that since the incident had
occurred in April 2012, it had already been destroyed.
We find no fault on the part of trial counsel on this point. It was
!I
reasonable for him not to obtain the footage prior to receiving Defendant's
------reqUesfsince-nis rev1ew-ofdiscovery revealed nothing to suggest that it might Ii
contain something helpful to the defense. Despite his opinion that the footage
would not be relevant, trial counsel did attempt to comply with Defendant's
request promptly and he cannot be faulted for its unanvailability.
Defendant had also hoped that there would be footage of the search
conducted by Officer Thomas to show that the $280. 70 had been found at the
scene. For that reason, he had trial counsel obtain the footage from the police
8
vehicle which had responded to assist Officer Thomas. After viewing it,
Defendant and trial counsel agreed that the footage showed only the interior of
the police vehicle while Defendant was being transported from the scene to
Central Booking. There was no footage of anything which occurred outside prior
to Defendant being placed inside the vehicle. Since nothing occurred during the
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trip to Central Booking which was relevant to Defendant's case, trial counsel did
I
not play the footage for the jury at trial. \
We fail to see any prejudice suffered by Defendant by trial counsel's actions
I
I
with regard to either of these videos. Defendant did not dispute that he was in I
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possession of this money. Even if the footage had shown what Defendant I
I
claimed, the location where that money was found, and OfficerThomas's
-· .
presence at Central Booking are inconsequential facts which would have had no
------bearing on the jury's verdict: Such facts had no relevance to the elements of -·--·---
Defendant's charges and, even if proven, would not have negated the facts
relevant to the Commonwealth's proof of those elements. We believe the jury
would have found them to be minor details which would not have had any impact
. on the credibility attributed to these two witnesses. Trial counsel was able to
obtain the police vehicle footage and gave Defendant an opportunity to view it.
Defendant agreed that it showed nothing of the search conducted at the scene at
9
Ninth and Mifflin Streets. He has identified nothing which would have been
helpful to his case and trial counsel cannot be faulted for failing to present
irrelevant evidence at trial.
Defendant further claims that he was not using a cellphone prior to being
approached by Officer Thomas, that he had not been inside the Liberty Bar, and
that he had not consumed any alcohol prior to his arrest. He complains thattrial
counsel failed to conduct an investigation regarding these facts and failed to "ask
the right questions" of Officer Thomas and Officer Rusz regarding these matters in
order to show their lack of credibility. He asserts that trial counsel should have
questioned these witnesses as to why no cellphone was introduced as evidence
and why there had been no blood or urine tests to determine whether Defendant
. . . .
............... .. .. : . : .
had consumed alcohol. Defendant wanted these subjects brought up during trial
------ so that the jury could "know exactly what happened." (N.T. 6/25/15 at 25) ----
However, he could not recall whether he even requested trial counsel to conduct
such an investigation. He also admitted that he knew of no witnesses who could
have testified to these facts and had no other evidence to demonstrate that his
version of the facts was accurate.
Trial counsel noted that he did refer to the Commonwealth's failure to
produce a cellphone during his closing argument. He further explained that he
10
could not follow up on these matters because Defendant could not give him the
names of any witnesses. He also did not want to go too much into what was
going on at the scene because the police report had indicated that another
individual was with Defendant when he was first observed by Officer Thomas. As
Officer Thomas approached, Defendant kicked something that looked like drugs
to that individual, and that individual picked up the item and ran into a building.
Trial counsel was concerned that if he went into what was going on outside the
bar, this would come up and it would suggest to the jury that Defendant had been
selling drugs. We believe that this was a reasonable basis for trial counsel to
avoid bringing up matters from the scene which would not have been helpful to
Defendant in the long run. . . . - .. -· .... -· . - - •· -· ····-·· -- .
,; : .. : ... :· ..... ·--·· ....
Defendant also complains of trial counsel's failure to object to testimony
---------···-·-·
offered by Officer Thomas which indicated that Defendant was ``-par-ole. At the
jury trial, Officer Thomas had noted that Defendant was on state parole at the
time and was not permitted to be in an establishment that sells alcohol. In
addition, Officer Thomas also lndlcated that he would be familiar with the home
address of a supervisee. (N.T. Jury Trial 4/3/13 at 14~15} Defendant claims that
this testimony implied that Officer Thomas was familiar with Defendant because
he was on supervision, thereby causing prejudice in the eyes of the jury.
11
Trial counsel explained that this testimony was offered by the
Commonwealth as an explanation for why Officer Thomas was making contact
with Defendant. Trial counsel knew that under the circumstances of the case,
there would be no way to avoid the subject of Defendant's supervision. He
believed that the jury was well aware that Defendant was on state parole at the
,
!
time because he was detained by a state parole officer. Since there was no way
I
to avoid this subject, he did not object. We find it highly doubtful that the jury
would have reached a different verdict had it not known this information.
Despite Defendant's complaints about trial counsel's failure to raise an
objection to Officer Thomas's testimony indicating his parole status, he also
complains that trial counsel failed to obtain and present documents from
.. ·.. · ..
. -:· .... ·. • • • •· • • • •" • • ' • • •. • • • '> • • ·~ ' • •• • 'I '• .·• .. • ' •
Defendant's home and job plan. Defendant contends that this information
-----·- ..·---·-·---------------~- ------
-- would-have been usefuffo shed light on his employment status and to show that
he was not living in a halfway house.
Trial counsel explained that these records would not have been helpful to
the defense and that he did not want to bring up more information regarding
Defendant's background with probation and parole. He did not want to "open
the door" to Defendant's supervision history as he had a number of previous
violations and was behind in the payment of his fines and costs. Trial counsel
12
feared that this might suggest to the jury that Defendant did not have the money
for these payments and had been selling drugs because he needed cash. We find
no error of judgment on the part of trial counsel in his attempt to minimize any
potential prejudice posed by Defendant's supervision history.
Defendant also charges trial counsel's ineffectiveness on the basis that he
I
!
failed to argue that the number of morphine pills in his possession (thirty-six) was [
insufficient to sustain a verdict of possession with intent to deliver. He further
complains that trial counsel failed to offer any evidence at the jury trial to show
that the pills were for Defendant's personal use.
At the PCRA hearing, Defendant gave confusing testimony in this regard.
Defendant acknowledged that he did not request trial counsel to present any
.·.··. : .. · .... · .... .'."
evidence that the pills were for personal use. Defendant insisted that he had a
----·- prescription, but claimed that he did not tell trial c~uns;I why he had the pills in . . .
his possession because he had already told prison officials that he was not using
any drugs In his intake form. (N.T. 6/25/15 at 14) In the next breath, however, he
testified that he told trial counsel that he was taking the pills for leg pain and was
not selling them. (N.T. 14)
Defendant admitted that the only evidence which could have been
13
I
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presented on this issue was his own testimony. (N.T. 21) However, on the I
morning of trfal, Defendant told both trial counsel and the Trial Judge that he \
would not testify:
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Q. Okay. You also indicated that you believe there should have been I I
testimony on your behalf that the pills were for personal use, not sale, f
!
correct?
I
A. Yes. \
i
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Q: And what testimony would you have presented?
A. I was ready to testify at my trial.
Q: You were or you were not?
A: I was. But somebody from the DA's Office talked to Ms. Verna and she
said that I wasn't sick or dying. At the morning of the trial, he asked me do
you want to testify or not that's when I said no, I'm not testifying. Okay. I
. '. · ..don't know.what's thepolntwhen but+said+wasn't sickor anaddlct: :That .. r • .... .' .. : ........ •
was a good move.
--·-----q:··so-you-rfestimonyis that Ms. Verna was not going to testify that you
had pain problems?
A: No she cannot testify to nothing. I said to her when she asked me
and she wrote it down that I wasn't an addict that was the question. I
said no, I'm not an addict, and that's not on the paper the prosecution
presented at my trial.
Q: And so you decided you weren't going to testify on you own behalf
to that information.
A: What was the point? I already said that I wasn't an addict.
14
Q: You recall Judge Tylwalk asking you questions on a recess to make
sure you understood you had the right to testify, correct?
A: Yes I do remember that.
Q: And during that, you indicated to him that you did not want to
testify?
A: Exactly.
Q: And there were no other witnesses that would have testified for you
that you these medical problems and pills for your personal use?
A: No there was no use for any witnesses because I already said that I
wasn't an addict and that I wasn't using.
(N.T. 6/25/15 at 21-23)
Trial counsel testified the Defendant had acknowledged to him that he was
'
using the morphine pills, and had told him they were in his possession for his I
. .. . .
personal use. However, Defendant did not tell trial counsel that he was using the
-----·15ms-forpain:-1rcretenaant ha-dtolcfhim that he was usin-g them for pain, trial
counsel would have followed up to obtain evidence of his medical condition and
the details of his treatment.
Trial counsel also explained that he had defended felony drug cases in the
past and was familiar with presenting defenses in such cases. He was familiar
with Sergeant Radwanski, the Commonwealth's expert on possession with intent
to deliver, and had dealt with him in his past cases. Trial counsel conducted
15
extensive questioning of Sergeant Radwanski regarding the factors relevant to a
possession with intent to deliver case and felt that he asked all questions
pertinent to the defense of this charge.
We agree with the Commonwealth that Defendant cannot now complain
that no evidence was presented to support his position that he was in possession
of the morphine pills for personal use due to pain when he provided trial counsel t
I
with no information regarding this issue prior to trial. Moreover, although
Defendant had the absolute right to decline the opportunity to testify on his own
behalf at trial, he admitted that this was the only evidence available on this point.
At the jury trial, Sergeant Radwinski explained that morphine is a highly-
addictive controlled substance and that the amount of pills possessed by
Defendant is typically prescribed only for someone who is in extreme pain and
-·---·-1nat-ifwas-i.m"usuarfcir-someone outside of a care or hospital setting to be in
possession of such an amount. Sergeant Radwinski also noted that an individual
who was addicted would suffer severe withdrawal symptoms, would require
treatment for withdrawal, and would be unlikely to state that he was not
dependent so that he could obtain treatment for withdrawal symptoms when
entering prison. Since Defendant had informed prison officials that he had no
drug dependencies, it appearedthat he did not have the pills for personal use.
16
Our review of the trial transcript reveals that trial counsel conducted a
rigorous cross-examination of Sergeant Radwinski regarding his opinion. Trial
counsel asked numerous questions regarding the money in Defendant's
possession, the prison intake form, the way in which the pills were packaged, the
lack of necessity of paraphernalia for ingesting such pills, and other issues which
would have been relevant to the issue of an intent to distribute. We find nothing
more that he could have done under the circumstances.
Defendant's last complaint with trial counsel's performance centers on the
post-trial motions and appeal pursued by trial counsel after Defendant was found
guilty on these charges. ·tn the Post-Sentence Motion, trial counsel argued that
we had erred in denying Defendant's pre-trial suppression motion and challenged
the sufficiency of the evidence to support the conviction. Defendant now
--~-----·conten-a-s-th-at triarco"urisershouM have challenged the weight of the evidence. ---·-
He argues that the discrepancy as to where the $280.70 was found and the lack of
any evidence of Defendant's use of a cellphone casted significant doubt on the
credibility of Officer Thomas and Officer Rusz.
Trial counsel explained that he saw no merit in including a challenge to the
weight of the evidence because the determination of what credibility to give to
the testimony of these two witnesses was for the jury and he saw no chance that
17
such an argument would be successful. After reviewing the transcript of the jury
trial, we agree with trial counsel that this argument would have been
unsuccessful and that he was not required to pursue a meritless avenue at the
post-sentence stage of these proceedings. The claimed inconsistencies were of
insignificant matters and were irrelevant to the elements of the offenses with
which Defendant was charged. We find nothing that would indicate lack of
credibility on any of the Commonwealth witnesses to such a degree that their
testimony should not have been given the credibility attributed to it by the jury.
Defendant's final complaint is with the Court. He asserts that we erred in
falling to appoint conflict counsel when we became aware of a breakdown in the
relationship between Defendant and trial counsel prior to the jury trial.2
Defendant notes that he wrote to the Trial Judge about his trial counsel's
-----1rerceivecnaclfl5fcorrfmunical:ion 6ut that we referred him to-trial counsel and
failed to take any action to alleviate his problems.
Defendant points us to the holding in Commonwealth v. Tyler, 360 A.2d
617 (Pa. 1976) for the proposition that although indigent defendants are not
entitled to their choice of appointed counsel, they may be entitled to new
2
We do not address the Issue raised by the Commonwealth as to whether this claim is cognizable under the PCRA
as we find no merit to this complaint.
18
counsel upon a showing of "good cause" in the nature of a conflict of interest or
irreconcilable differences between the defendant and his attorney. He claims
that he was entitled to new counsel due to a complete breakdown in
communication between himself and trial counsel, claiming that he repeatedly
requested trial counsel to investigate his case and to produce evidence to refute
the Commonwealth's allegations that he had been selling drugs and to show the
unreliability of the testimony of Officer Rusz and Officer Thomas.
The situation in Tyler is different from this case. In Tyler, the defendant
complained to the court of an irreconcilable difference between himself and his
···attorney-immediately prior to trial and the breakdown in the relationship was i
;
confirmed by the defense attorney. The defendant ended up representing
himself at trial after the court gave him the choice of proceeding with appointed I !
· ---·-------·---- -·--··-- -· ..
-·--·- counsel or proceeding without an attorney. On appeal, the defendant was
awarded a new trial:
In the instant case, court appointed counsel agreed with appellant
that a difference of opinion did exist as to the manner in which the trial
should be conducted. Moreover, there is no evidence that appellant's
request for appointment of new counsel was arbitrarily made, or made for
the sole purpose of delaying the trial. It is therefore clear to us that the
court's refusal to appoint new counsel was an abuse of discretion, and
appellant is entitled to a new trial, with new counsel, on that basis.
19
Alternatively, we conclude that the trial court committed reversible
error by allowing appellant to proceed with the trial under his own
representation, without first conducting a thorough on-the-record colloquy
to determine whether appellant knowingly and understandingly made a
decision to represent himself and also to determine the validity of his
waiver of the constitutional right to representation by counsel.
Id. at 619-620.
Here, Defendant made no mention of any complaint regarding trial counsel
throughout the pretrial period, at the time of the jury trial, or in post-sentence
proceedings. In fact, when questioned by the Court, he stated that he had no
complaints about trial counsel's performance. Without knowledge of the
existence of any problem, we had no reason to take any measures in this regard.
Moreover, our review of the entire record confirms that Defendant had no basis
. ... . .....
. upOn which to compl,ifri about trial counsel's performance. Thus, even if more
------Com plaints-ha d-bee n-d i reeted-to-ou r--atte ntio nrthe re-wa s-n-o-rea so rrtoappojnt ------ . ·-·-·---
new counsel to represent Defendant.
For these reasons, we will deny Defendant's request for collateral relief.
20
IN.THE SUPERIOR COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF ••
PENNSYLVANIA ••
••
vs. 2116 MDA 2015
OMAR DIAZ-PERDOMO ••
PROOFOF SERVICE
I hereby certify that I am this day serving two (2) copies of
the foregoing "Brief for Appellant" upon the persons and in the
manner indicated below which service satisfies the requirements
of Pa.R.A.P. 121:
Service by First Class Mail:
The Honorable John C. Tylwalk, President Judge
···· ····Lebanon County Municipal Buildh1g ·
400 South Eighth Street
Lebanon, PA 17042
Office of the District Attorney
Lebanon County Municipal Building
400 South Eighth Street
Room 11
Lebanon, PA 17042
DATED: ..'!)/a\ / ~()t \o
Erin Zimm
60 South
Manheim, 7545
(717) 665-1315
I. D.#: 91392
50