Com. v. Borrero-Bejerano, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SANTO BORRERO-BEJERANO
Appellant No. 451 MDA 2014
Appeal from the PCRA Order February 11, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003523-2009
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED APRIL 14, 2015
Santo Borrero-Bejerano appeals pro se from the order entered in the
Dauphin County Court of Common Pleas, dated February 11, 2014,
dismissing his first petition filed under the Post-Conviction Relief Act
(“PCRA”),1 without a hearing. Borrero-Bejerano was sentenced to an
aggregate term of 100 to 200 months’ imprisonment imposed on July 8,
2011, following a jury trial in which he was convicted of one count of
delivery of cocaine and one count of possession with intent to deliver
cocaine.2 On appeal, he raises ten issues concerning PCRA and appellate
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1
42 Pa.C.S. §§ 9541-9546.
2
35 P.S. § 780-113(a)(30).
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court error, as well as ineffective assistance of counsel. Based on the
following, we dismiss the appeal.
The facts underlying Borrero-Bejerano’s convictions are well known to
the parties, and have been fully discussed in our decision filed in connection
with the direct appeal. See Commonwealth v. Borrero-Bejerano, 46
A.3d 830 [1255 MDA 2011] (Pa. Super. 2012) (unpublished memorandum at
1-2). Therefore, we need only state that Borrero-Bejerano’s convictions
arose out of a drug transaction on June 19, 2009, in which he sold cocaine
to a confidential informant.
The PCRA court set forth the procedural history as follows:
On May 17, 2011, a jury found [Borrero-Bejerano] guilty of one
count of delivery of cocaine and one count of possession with
intent to deliver cocaine. On July 8, 2011, [Borrero-Bejerano]
was sentenced to an aggregate of 100 to 200 months[’]
imprisonment. The Pennsylvania Superior Court affirmed the
judgment of sentence on February 28, 2012.
[Borrero-Bejerano] filed a pro se PCRA petition on April 17,
2012. Counsel was appointed, who filed a motion to withdraw
on July 23, 2012. Because counsel did not address every issue
[Borrero-Bejerano] raised in his pro se petition, the motion to
withdraw was denied without prejudice on December 31, 2012.
Counsel then filed a “Motion for Court Order Pursuant to 18
Pa.C.S.A. § 5742” to obtain [Borrero-Bejerano]’s phone records
in preparation for filing an Amended PCRA Petition, which was
granted on March 20, 2013.
On April 30, 2013, counsel filed an Amended PCRA
Petition, which was denied without prejudice because it was not
accompanied with evidence that he contemporaneously served
[Borrero-Bejerano] with a copy of the petition, no-merit letter,
and a statement advising that if the trial court granted the
petition to withdraw, the defendant had the right to proceed pro
se or with privately retained counsel. See Commonwealth v.
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Friend, 896 A.2d 607, 614 (Pa. Super. 2006); Commonwealth v.
Lasky, 934 A.2d 120 (Pa. Super. 2007). Before the Amended
PCRA Petition was denied without prejudice, however, the
Commonwealth filed an Answer.
Counsel then filed a Second Amended PCRA Petition on
September 23, 2013, which was granted in part by Order dated
November 26, 2013. [Borrero-Bejerano] was given eight days of
time credit, and the remaining claims were to be dismissed by
the Court [pursuant to Pa.R.Crim.P. 907]. [The court also
granted counsel’s right to withdraw.] By Order dated February
11, 2013, this Court denied [Borrero-Bejerano]’s remaining
claims.
PCRA Court Opinion, April 14, 2014, at 1-2 (footnote omitted). This appeal
followed.3
Borrero-Bejerano raises ten questions for our review:
Whether the PCRA court abuse[d] it’s [sic] discretion by not
finding that the trial attorney who would not put forth the
entrapment defense is ineffective.
Whether the PCRA court abuse[d] it’s [sic] discretion by finding
that the trial attorney is not ineffective by not filing [a] Rule 600
[motion] when ask[ed] to.
Whether the PCRA court abuse[d] it’s [sic] discretion by not
finding that the trial attorney is ineffective by not filing a
suppress[ion] motion or otherwise quash the search warrant.
Whether the PCRA/Trial court erred by allowing the trial attorney
to continue with the trial after [Borrero-Bejerano] told the court
that the trial attorney refusing [sic] to put forth the entrapment
defense.
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3
On March 12, 2014, the PCRA court ordered Borrero-Bejerano to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Borrero-Bejerano filed a concise statement on March 27, 2014.
The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) on April 14,
2014.
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Whether the PCRA court abuse[d] it’s [sic] discretion or erred by
prohibiting [Borrero-Bejerano] to file his own direct appeal and
keep the ineffective trial attorney who would not properly
question the Affiant having a search warrant for a totally
different address.
Not [sic] the PCRA court abused it’s [sic] discretion by not
finding that the trial attorney is ineffective by refusing to file the
trial court [o]rder.
Not [sic] the PCRA court abuse[d] it’s [sic] discretion and erred
by not finding the trial attorney ineffective by not objecting to
the [C]ommonwealth trying to use [Borrero-Bejerano’s] over 20-
Year record to predispose [Borrero-Bejerano] during trial.
Whet[h]er the [S]uperior [C]ourt erred by allowing the trial
attorney to withdraw during the direct appeal since there is no
such thing as no merit issue during direct appeal and further
where it was [a] suppressible issue that the trial attorney did not
supres[s].
Not [sic] the PCRA court abused it’s [sic] discretion and erred by
accepting the appoint[ed] PCRA attorney to withdraw when the
PCRA appoint[ed] attorney should h[a]ve been looking for
additional issues such as the error of the [S]uperior [C]ourt
allowing the trial attorney to withdraw from the direct appeal
when there was suppressible issue[s] that the trial attorney
never suppress[ed].
Not [sic] the PCRA court abused it’s [sic] discretion and erred by
after the trial court bec[a]me [aware] of the violation of the
United State[s] Constitution and the Pennsylvania Constitution
and the PCRA court still would not act on the violations of the
Constitution when the PCRA court is obliged to act on.
Borrero-Bejerano’s Brief at 2-3.
Our standard and scope of review for the denial of a PCRA petition is
well-settled:
[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and
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reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014)
(citation omitted).
Preliminarily, we observe that Borrero-Bejerano’s pro se brief fails to
comply with the applicable Pennsylvania Rules of Appellate Procedure,
insofar as it does not comport with Pa.R.A.P. 2119(a). Rule 2119(a)
provides:
(a) General rule. The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the
head of each part--in distinctive type or in type distinctively
displayed--the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). See Borrero-Bejerano’s Brief at 31-46. Likewise,
Borrero-Bejerano’s brief fails to conform with the requirements of Pa.R.A.P.
2119(c), regarding reference to the record.4
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4
Rule 2119(c) provides:
(c) Reference to record. If reference is made to the pleadings,
evidence, charge, opinion or order, or any other matter
appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a
reference to the place in the record where the matter referred to
appears (see Rule 2132) (references in briefs to the record).
Pa.R.A.P. 2119(c). We note Borrero-Bejerano does point to exhibits that he
has attached to his appellate brief but he fails to make reference to the
certified record.
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Furthermore, our review of the brief reveals that because there is no
division of issues, it appears Borrero-Bejerano has abandoned some of his
arguments, i.e., his claim that this Court erred in permitting trial counsel to
withdraw on direct appeal. This problem is exacerbated by the fact that
Borrero-Bejerano’s brief is rambling, disjointed, and often indecipherable.5
Borrero-Bejerano largely focuses on his ineffective assistance of counsel
claims. However, he fails to develop his discussion regarding the three
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5
For example, as quoted directly from his brief, Borrero-Bejerano states, in
support of one of his ineffectiveness claims, the following:
The reason why the Affiant made the carefully statement of the
possibility that the Affiant possibly had met with the informant
Gary Cort,z on previous occasion was because when the appoint
trial attorney Grella had came to visit [Borrero-Bejerano] to tell
[him] that she is not filing the motion to suppress the evidence
or quash the [s]earch warrant since the trial attorney Wendy J.F.
Grella wasn’t going to do the entrapment defence [Borrero-
Bejerano] told the trial attorney Grella how possibly she would
not suppress the evidence or quash the search warrant if trooper
Scott Fidler had in all document that trooper Fidler had meet
with the confidential informant on June 19/2009 when [Borrero-
Bejerano] went to pick up the 13,000 dollars to get the drug at
[Borrero-Bejerano]’s house.
Borrero-Bejerano’s Brief at 18-19.
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prongs of the ineffective test,6 as his arguments are mainly bald assertions
with insufficient evidentiary support.7
[A]lthough this Court is willing to construe liberally materials
filed by a pro se litigant, pro se status generally confers no
special benefit upon an appellant. Accordingly, a pro se litigant
must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court. This Court may quash or
dismiss an appeal if an appellant fails to conform with the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. 2101.
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal
denied, 879 A.2d 782 (Pa. 2005) (some citations omitted). As such, we
cannot serve as Borrero-Bejerano’s counsel and litigate his claims for him.
Because Borrero-Bejerano’s brief is substantially defective and fails to
conform to the requirements of the Rules of Appellate Procedure, we are
unable to conduct a meaningful review of the issues; therefore, we are
compelled to dismiss this appeal.8
Appeal dismissed with prejudice. Jurisdiction relinquished.
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6
See Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008).
7
See Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa. Super. 2012)
(failure to develop argument with citation to and analysis of relevant
authority waives issue on appeal); Pa.R.A.P. 2119(b).
8
Although we find Borrero-Bejerano’s brief to be largely incomprehensible,
to the extent that it addressed Borrero-Bejerano’s claims, the PCRA court
opinion appears to adequately discuss and properly dispose of those issues.
See PCRA Court Opinion, 4/14/2014, 2-5. Based upon that opinion, we
conclude that even if Borrero-Bejerano had properly preserved his issues for
our review, his current appeal would be without merit.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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