Com. v. Colon, J. ( 2016 )

J-S49033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE A. COLON,
Appellant No. 3756 EDA 2015
Appeal from the PCRA Order November 17, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000850-2013
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 13, 2016
Appellant Jose A. Colon appeals from the order entered in the Court of
Common Pleas of Delaware County (PCRA court) on November 17, 2015,
dismissing his first petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). 1 Following a review of the record, we affirm.
The PCRA court made the following, relevant findings of fact following
its independent review of Appellant’s pro se and counselled PCRA petitions,
the Commonwealth’s response thereto, and hearings held thereon on July
17, 2015, and August 15, 2015:
1. [Appellant] was taken into custody by members of the
Pennsylvania State Police (PSP) on July 16, 2009 after State
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1
42 Pa.C.S.A. §§ 9541-46.
*Former Justice specially assigned to the Superior Court.
J-S49033-16
Troopers witnessed him deliver a large quantity of
methamphetamine to another. N.T. 7/17/15, pp. 25-26.
2. [Appellant] was transported back to the PSP Media
barracks and interviewed by PSP Troopers Skahill and
Miscannon. N.T. 7/17/15, p. 26. During the interview,
[Appellant] was given an opportunity to cooperate with
investigators in return for future judicial consideration in order to
further their investigation into the source of the large amount of
methamphetamine. N.T. 7/17/15, p. 27. With [Appellant’s]
cooperation, the investigation had the potential to reach a
national scale involving persons from Pennsylvania to California.
N.T. 7/17/15, pp. 27-28.
3. No charges were filed against [Appellant] on July 16, 2009
and he was released from custody in order to facilitate his
cooperation and further the police investigation. N.T. 7/17/15,
pp. 29. [Appellant] was informed that he would be charged with
delivering a controlled substance at a later date. Id. Trooper
Miscannon and [Appellant] exchanged cellular telephone
numbers with the understanding that Trooper Miscannon would
follow up with [Appellant] with respect to cooperation with the
investigation. N.T. 7/17/15, pp. 29-30.
4. In the months following July 16, 2009, Trooper Miscannon
attempted on numerous occasions to contact [Appellant] via
cellular phone. N.T. 7/17/15, pp. 30. Although Trooper
Miscannon spoke to [Appellant] several times over the phone, he
was unable to establish a face to face meeting with him. Id.
After a period of time, the cellular telephone number provided to
Trooper Miscannon by [Appellant] was taken out of service. Id.
Miscannon also went to [Appellant’s] last known address “a
couple times” in order to make contact with him. Id. This too
was unsuccessful. N.T., 7/17/15, pp. 31.
5. On March 16, 2012 Trooper Miscannon filed a criminal
complaint and affidavit of probable cause charging [Appellant]
with delivery of a controlled substance and related offenses. Id.
On the same date, a warrant was issued for [Appellant’s] arrest.
Id. On or about the same date, Trooper Miscannon entered the
warrant into the National Crime Information Center (NCIC)
database. N.T. 7/17/15, pp. 31; 38.
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6. On or about March 23, 2012 Trooper Miscannon and other
members of the Pennsylvania State Police went to 3434 F Street
in Philadelphia, [Appellant’s] last known address, in an attempt
to locate and arrest him. N.T. 7/17/15, pp. 31. While
conducting surveillance on that address, Trooper Miscannon
recognized a woman whom he knew to have a past relationship
with [Appellant]. Id. Trooper Miscannon made contact with this
woman who indicated that she had not seen [Appellant] in a long
time and had heard he moved to Ft. Lauderdale, Florida. N.T.
7/17/15, pp. 31[-]32. She also provided Trooper Miscannon
with a cellular telephone number she claimed belonged to
[Appellant]. N.T. 7/17/15, pp. 32.
7. Trooper Miscannon continued to search for [Appellant]. In
the proceeding weeks he ran several Pennsylvania Criminal
Intelligence Center reports for [Appellant]. N.T. 7/17/15, pp. 34.
He also searched for subscriber information for the cellular
telephone number provided to him. N.T. 7/17/15, pp. 33. None
of his subsequent investigation generated further credible
information as to the specific whereabouts of Petitioner. N.T.
7/17/15, pp. 35.
8. On or about December 28, 2012, Trooper Miscannon was
contacted by Detective Kevin Hancock of the Light House Point
Police Department in Florida. N.T. 7/17/15, pp. 35. Det.
Hancock informed Trooper Miscannon that they had Petitioner in
custody for a separate investigation, but had become aware of
Trooper Miscannon’s warrant through NCIC. N.T. 7/17/15, pp.
35-36. Trooper Miscannon immediately contacted the Delaware
County District Attorney’s Office to arrange for extradition of
Petitioner. Id. [Appellant] was thereafter extradited and
transported back to Pennsylvania on February 1, 2013.
9. On or about June 14, 2013, Daniel Pallen, Esquire entered
his appearance on behalf of [Appellant]. N.T. 7/17/15, pp. 43.
Attorney Pallen requested and was provided full discovery by the
Delaware County District Attorney’s Office. N.T. 7/17/15, pp.
44. Among the discovery items was a fugitive notice completed
by Trooper Miscannon and filed with the district court N.T.
7/17/15, pp. 45; Commonwealth PCRA Exhibit 43.
10. Attorney Pallen met with [Appellant] at least two but not
more than four times prior to July 10, 2013. N.T. 7/17/15, pp.
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46. During one or more of these meetings, Attorney Pallen
specifically discussed with [Appellant] his speedy trial rights
under Pa.R.Crim.P. 600. N.T. 7/17/15, pp. 46-47; 53. At no
time during his meetings with [Appellant] did [Appellant]
indicate a desire to file or litigate a motion to dismiss under Rule
600. N.T. 7/17/15, pp. 48. Attorney Pallen did not file a motion
to dismiss under Rule 600 because based on his review of
discovery, specifically the fugitive notice, such a motion lacked
merit. N.T. 7/17/15, pp. 48-49; 54.
***
PCRA Court’s Order Denying [Appellant’s] PCRA Petition After Hearing, filed
11/17/15, at 1-4.
On July 10, 2013, Appellant entered a negotiated guilty plea to
Possession with Intent to Deliver a Controlled Substance.2 Appellant was
sentenced on September 13, 2013, to a term of 96 months to 192 months in
prison. Thereafter, he filed a Motion for Reconsideration of Sentence which
the trial court granted. The trial court resentenced Appellant on October 24,
2013, to a term of incarceration of 72 months to 144 months. Appellant did
not file a direct appeal.
On November 15, 2014, Appellant filed a timely PCRA petition, pro se.
Counsel was appointed and filed an amended petition on March 6, 2015.
Following hearings thereon, the PCRA court denied relief on November 17,
2015. Appellant filed a timely notice of appeal with this Court on December
14, 2015. The PCRA court ordered Appellant to file a concise statement of
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2
35 P.S. § 780-113(A)(30).
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
timely complied. The PCRA court issued an opinion in accordance with
Pa.R.A.P. 1925(a) on February 16, 2016, wherein it found Appellant had
waived his derivative claim counsel had been ineffective for failing to raise a
Rule 600 objection when he entered his guilty plea.
In his brief, Appellant presents the following issue for our review:
Was the trial court in error in denying [Appellant’s] petition
for post conviction relief alleging that trial counsel was
ineffective for failing to file and litigate a motion to dismiss
pursuant to Pa.R.Crim.P. Rule 1100? 3
Brief for Appellant at 4.
Our well-settled standard of review is as follows: “In reviewing the
denial of PCRA relief, we examine whether the PCRA court's determination is
supported by the record and free of legal error.” Commonwealth v. Fears,
624 Pa. 446, 460, 86 A.3d 795, 803 (2014) (internal quotation marks and
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3
Appellant interchangeably refers to “Rule 1100” and to “Rule 600;”
however, effective April 1, 2001, Pa.R.Crim.P. 1100 was amended and
renumbered as Pa.R.Crim.P. 600. As such, the language of Rule 1100 is
now Rule 600 and despite being amended several times, the relevant
language under both versions of the rule is substantially the same.
Commonwealth v. Brock, 619 Pa. 278, 285-86, 61 A.3d 1015, 1019
(2013). In addition, effective July 1, 2013, the Supreme Court adopted a
new Rule 600 that reflects prevailing case law. See Pa.R.Crim.P. 600,
Comment. However, inasmuch as the Commonwealth filed the criminal
complaint in this case prior to the effective date of the revisions, the former
rule guides our review. Brock, 619 Pa. at 281 n. 2, 61 A.3d at 1016 n.2.
Therefore, all references in this decision are to former Rule 600.
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citation omitted). “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. Spotz, 624 Pa. 4, 33,
84 A.3d 294, 311 (2014) (citation omitted). “It is well-settled that a PCRA
court's credibility determinations are binding upon an appellate court so long
as they are supported by the record.” Commonwealth v. Robinson, 623
Pa. 345, 370, 82 A.3d 998, 1013 (2013) (citation omitted). However, this
Court reviews the PCRA court's legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa.Super. 2014) (citation omitted).
We further note that counsel is presumed effective, and an appellant
bears the burden of proving otherwise. Fears, 624 Pa. at 460, 86 A.3d at
804. As such, to prevail on any claim of ineffective assistance of counsel, a
PCRA petitioner must allege and prove “(1) the underlying legal claim was of
arguable merit; (2) counsel had no reasonable strategic basis for his action
or inaction; and (3) the petitioner was prejudiced—that is, but for counsel's
deficient stewardship, there is a reasonable likelihood the outcome of the
proceedings would have been different.” Commonwealth v. Simpson, 620
Pa. 60, 72, 66 A.3d 253, 260 (2013) citing Commonwealth v. Pierce, 567
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Pa. 186, 203, 786 A.2d 203, 213 (2001).4 A claim of ineffectiveness fails if
the petitioner fails to prove any of these prongs. Id.Although he couches his issue for this Court’s review in terms of trial
counsel’s ineffectiveness, in his two and one-half page argument, Appellant
generally maintains that police knew he was in Florida and did not exercise
due diligence in ensuring he was brought back to this Commonwealth when
a warrant was issued on March 16, 2012. Brief for Appellant at 9-11. In
doing so, Appellant does not even attempt to establish a valid Rule 600
claim. In addition, the entirety of Appellant’s argument regarding trial
counsel’s ineffectiveness is comprised of only one sentence: “Accordingly, it
is argued that Trial Counsel should have filed and litigated a Motion to
Dismiss pursuant to failure to comply with Rule 1110.” Brief for Appellant at
11. Clearly, Appellant has failed to address the three prongs of the Pierce
test for ineffectiveness analysis. Accordingly, Appellant’s claim is waived for
lack of development. See Commonwealth v. Charleston, 94 A.3d 1012,
1025 (Pa.Super. 2014), reargument denied, (Aug. 7, 2014), appeal denied,
628 Pa. 636, 104 A.3d 523 (2014).
Moreover, Appellant’s claim would not merit relief, for he fails to
acknowledge that “[a] plea of guilty effectively waives all nonjurisdictional
defects and defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242
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4
This well-settled, three-pronged test is commonly referred to as the
“Pierce test.”
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(Pa.Super. 1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990). A
defendant who pleads guilty cannot successfully raise a Rule 600 challenge
unless he can show that the Rule 600 violation affected the voluntariness of
the plea itself. Id. Where an underlying claim was waived by a guilty plea, a
derivative claim of ineffective assistance of counsel must necessarily fail.
Commonwealth v. Bauer, 604 A.2d 1098 (Pa.Super. 1992).
Significantly, as the PCRA notes, Appellant failed to raise a Rule 600
claim at any time before the trial court, and he never moved to withdraw his
negotiated guilty plea. In addition, Appellant has not claimed his plea was
coerced by the alleged deprivation of his speedy trial rights. Indeed,
Appellant indicated he understood that by pleading guilty he was “giving up
all of the rights contained in the Guilty Plea Statement except for [his]
limited right to appeal to a higher Court, and file Motions to change the
sentence [the trial court] may impose, and withdraw [his] plea[.]” See
N.T., 7/10/13, at 15. Appellant did not pursue a direct appeal; therefore,
Appellant's guilty plea provides an additional basis for waiver of an
ineffective assistance of counsel challenge. See Gibson, supra.Therefore, we affirm the denial of Appellant's PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2016
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