Com. v. Conigliaro, S. ( 2017 )

J-S09036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SALVATORE CONIGLIARO,
Appellant No. 2809 EDA 2016
Appeal from the PCRA Order August 4, 2016
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0001216-2014
BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 17, 2017
Appellant, Salvatore Conigliaro, appeals from the order of August 4,
2016, which dismissed, without a hearing, his first, counseled petition
brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. For the reasons discussed below, we affirm the dismissal of the PCRA
petition.
We take the underlying facts and procedural history in this matter
from the PCRA court’s October 11, 2016 opinion, and our independent
review of the certified record.
The Commonwealth charged [A]ppellant with sixteen
offenses, including aggravated indecent assault on a child, 18
[Pa.C.S.A.] § 3125(b), corruption of minors, 18 [Pa.C.S.A.] §
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S09036-17
6301 (a)(1)(i) and indecent assault of a child, 18 [Pa.C.S.A.] §
3126(a)(8). With the assistance of his lawyer, James P. Lyons,
Esquire, [A]ppellant negotiated an agreement with the
[Commonwealth] in which he agreed to waive his right to
present witnesses and allowed the Commonwealth to restrict its
proof to documentary evidence and other stipulated facts, thus
sparing the child-complainants from having to testify in court.
In exchange, the [Commonwealth] dropped all but two of the
sixteen charges [it] had filed against him. After a bench trial
decided upon stipulated evidence, the [trial court] convicted
[A]ppellant of corruption of minors, 18 [Pa.C.S.A.] § 6301
(a)(1)(i) and indecent assault of a child, 18 [Pa.C.S.A.] §
3126(a)(8). On the charge of corruption of minors, the [trial
court] sentenced [A]ppellant to serve a term of incarceration of
[not less than] eleven [nor more than] twenty-three months plus
a term of three years’ probation, and on the charge of indecent
assault of a child, [A]ppellant was sentenced to serve a
consecutive term of five years’ probation.
On May 29, 2015, Holly C. Dobrosky, Esquire, entered her
appearance on behalf of [A]ppellant. She filed a direct appeal to
the Superior Court of Pennsylvania on June 22, 2015. That
appeal was premature and was eventually dismissed by the
Superior Court of Pennsylvania. Next, [on April 8, 2016,] with
the assistance of Ms. Dobrosky, [A]ppellant filed a petition under
the [PCRA]. The petition raised several grounds for relief, all
based on claims that [Appellant received] ineffective legal
assistance.
In paragraphs five through twelve of the PCRA petition,
[A]ppellant pled facts in support of a claim that [trial counsel]
was ineffective for having advised him to waive his right to a
jury trial and stipulate to the evidence to be considered by the
trial judge. More specifically, paragraph nine averred that
[Appellant] “entrusted counsel to . . . proceed by way of a jury
trial. . . .” Likewise, paragraph ten averred that [Appellant]
“reasonably believed that he was proceeding . . . by a fair and
impartial jury. . . .” Paragraph eleven averred that [trial counsel]
advised him that participating in a stipulated waiver trial “would
afford him the exact same rights and protections that would be
afforded to him if he proceeded by way of the jury trial that [he]
desired. . . .” Paragraph twelve averred that [Appellant] did not
understand that he was about to “engage[ ] in a proceeding
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which deprived [him] of a jury trial” because he was not
educated in the law.
Paragraph fourteen of the petition made a vague allegation
that [trial counsel] failed to adequately prepare for trial. . . .
Paragraph fifteen complained that [trial counsel] “failed to
subpoena witnesses . . . who could have testified in favor of
[Appellant] at trial. . . .” Likewise, paragraph sixteen complained
that [trial counsel] “failed to call defense witnesses. . . .”
Paragraphs thirteen and seventeen raised distinct claims of
ineffective assistance of counsel. Paragraph thirteen alleged that
[trial counsel] failed to obtain a Spanish language interpreter.
Paragraph seventeen alleged that [trial counsel] “failed to
adequately advise [Appellant] of his right to testify on his own
behalf, and, as a result thereof, denied him the opportunity to
testify on his own behalf.”
On June 1[6], 2016, the [PCRA court] filed an order
notifying [A]ppellant that [it] intended to deny his counseled
PCRA petition without a hearing. In compliance with
Pa.R.Crim.P. 907(1), the notice stated the reasons for denying
the petition, and included a discussion of the claims raised in the
petition and the legal authority applicable to the disposition of
each claim. Also in compliance with Rule 907(1), the notice
granted [Appellant] and his lawyer leave to respond within
twenty days.
Ms. Dobrosky did not file a response. On July 18, 2016,
Oliver C. Inslee, Esquire, filed an entry of appearance on behalf
of [Appellant]. Like Ms. Dobrosky, Mr. Inslee did not file a
response to the notice and order of June 1[6], 2016. On August
4, 2016, the [PCRA court] filed an order denying [A]ppellant’s
PCRA petition. Mr. Inslee then filed the instant appeal on behalf
of [A]ppellant. The [PCRA court] ordered Mr. Inslee to file a
[concise] statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b), and Mr. Inslee complied in a timely
manner. [On October 11, 2016, the PCRA court issued an
opinion. See Pa.R.A.P. 1925(a).]
(PCRA Court Opinion, 10/11/16, at 1-4) (record citations omitted).
On appeal, Appellant raises the following question for our review.
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Did the [PCRA] court err in denying the claim of ineffective
assistance of trial counsel when trial counsel failed to advise the
Appellant of adverse immigration consequences that would result
from accepting a bench trial with stipulated facts supporting the
Commonwealth’s case against him?
(Appellant’s Brief, at 2).
We review the denial of a post-conviction petition to determine
whether the record supports the PCRA court’s findings and whether its order
is otherwise free of legal error. See Commonwealth v. Faulk, 21 A.3d
1196, 1199 (Pa. Super. 2011). To be eligible for relief pursuant to the
PCRA, Appellant must establish, inter alia, that his conviction or sentence
resulted from one or more of the enumerated errors or defects found in 42
Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He must also
establish that the issues raised in the PCRA petition have not been
previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An
allegation of error “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.” 42 Pa.C.S.A. § 9544(b). Further,
. . . a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision
dismissing a petition without a hearing for an abuse of
discretion.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
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light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
In his only issue on appeal, Appellant contends that he received
ineffective assistance of trial counsel because counsel did not advise him of
the adverse immigration consequences of a stipulated bench trial. (See
Appellant’s Brief, at 5-7). However, Appellant waived this claim.
We note that counsel is presumed effective, and an appellant bears
the burden to prove otherwise. See Commonwealth v. McDermitt, 66
A.3d 810, 813 (Pa. Super. 2013). The test for ineffective assistance of
counsel is the same under both the United States and Pennsylvania
Constitutions. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
Commonwealth v. Jones, 815 A.2d 598, 611 (Pa. 2002). An appellant
must demonstrate that: (1) his underlying claim is of arguable merit; (2)
the particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the proceedings would have been different. See Commonwealth v.
Pierce, 786 A.2d 203, 213 (Pa. 2001), abrogated on other grounds by
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). “A failure to satisfy
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any prong of the test for ineffectiveness will require rejection of the claim.”
Jones, supra at 611 (citation omitted).
Prior to addressing the merits of the claim, we must decide if it is
properly before us. It is long settled that issues not raised in a PCRA
petition or amended PCRA petition are waived on appeal. See
Commonwealth v. Lauro, 819 A.2d 100, 103 (Pa. Super. 2003), appeal
denied, 830 A.2d 975 (Pa. 2003) (finding five issues not in original or
amended PCRA petition waived). Also, as amended in 2007, Rule 1925
provides that issues that are not included in the Rule 1925(b) statement or
raised in accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P.
1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998), superseded by rule on other grounds as stated in Commonwealth v.
Burton, 973 A.2d 428, 430 (Pa. Super. 2009). Lastly, an appellant cannot
raise a subject for the first time on appeal. See Commonwealth v.
Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007), appeal denied, 956
A.2d 432 (Pa. 2008) (new legal theories cannot be raised for first time on
appeal); Pa.R.A.P. 302(a).
In the instant matter, while Appellant raised many claims of ineffective
assistance of counsel in his PCRA petition, he did not claim that counsel was
ineffective for failing to advise him of adverse immigration consequences.
(See Petition for Relief Under the Post Conviction Hearing Relief Act,
4/08/16, at unnumbered pages 2-4). Moreover, even if he had raised this
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issue in his petition, Appellant did not raise this claim in his Rule 1925(b)
statement, raising it for the first time in his appellate brief. (See Concise
Statement of Errors Complained of on Appeal, 9/29/16, at unnumbered
pages 1-2). Thus, Appellant waived his claim on appeal and we therefore
affirm the PCRA court’s dismissal of his PCRA petition without a hearing.
See Handford, supra at 1098 n.3; Lauro, supra at 103; Lord, supra at
309.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2017
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