Com. v. Morales-Gasparini, J. ( 2020 )

J-S13031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORGE MORALES-GASPARINI :
:
Appellant : No. 1303 MDA 2019
Appeal from the PCRA Order Entered July 16, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003144-2014
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED MARCH 27, 2020
Jorge Morales-Gasparini (Morales-Gasparini) appeals pro se from the
order entered by the Court of Common Pleas of Berks County (PCRA court)
dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
In April 2015, after Jorge Morales-Gasparini waived his right to a jury
trial, the trial court held a bench trial. The court convicted Morales-Gasparini
of four counts each of delivery of a controlled substance, possession with
intent to deliver a controlled substance and possession of a controlled
substance, three counts of corrupt organizations, and one count each of
criminal use of a communication facility and dealing in proceeds of unlawful
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S13031-20
activities. The conviction stems from Morales-Gasparini’s participation in a
narcotics organization, including providing transportation to and from drug
transactions, answering the organization’s phones to facilitate drug
transactions, taking instructions from superiors, and being present when
customers arrived to purchase drugs.
On May 21, 2015, the trial court sentenced Morales-Gasparini to an
aggregate term of not less than 13 nor more than 30 years’ imprisonment.
This Court affirmed the judgment of sentence on October 11, 2017, and our
Supreme Court denied his petition for allowance of appeal on March 21, 2018.
(See Commonwealth v. Morales-Gasparini, 179 A.3d 552 (Pa. Super.
2017), appeal denied, 182 A.3d 994 (Pa. 2018)).
On August 3, 2018, Morales-Gasparini, acting pro se, filed the instant
PCRA petition, arguing that trial counsel was ineffective for failing to raise the
issue of lack of subject matter jurisdiction over his criminal proceeding. (See
PCRA Petition, 8/03/18, at 4-12). Appointed counsel filed a motion to
withdraw as counsel with a Turner/Finley1 no merit letter averring that his
review of the record revealed no meritorious issues that he could raise on
Morales-Gasparini’s behalf. On June 24, 2019, the PCRA court granted
counsel’s motion to withdraw and issued notice of its intent to dismiss the
PCRA petition without a hearing. See Pa.R.Crim.P. 907(1).
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
-2-
J-S13031-20
Morales-Gasparini then filed a response to the Rule 907 Notice
acknowledging his claim concerning the subject matter jurisdiction of the trial
court was meritless because it was based on his misunderstanding of the law.
(See Rule 907 Response, 7/05/19, at 4-6). Morales-Gasparini also requested
leave to amend his PCRA petition to raise a cognizable claim but he did not
identify that claim. On July 16, 2019, the PCRA court denied the request for
leave to amend because Morales-Gasparini had substantial time to raise any
arguments and entered the order dismissing the petition. (See Order,
7/16/19). This timely appeal followed. The PCRA court did not order Morales-
Gasparini to file a Rule 1925(b) statement; it filed an opinion on August 19,
2019. See Pa.R.A.P. 1925(a)-(b).
“We review an order granting or denying a petition for collateral relief
to determine whether the PCRA court’s decision is supported by the evidence
of record and free of legal error.” Commonwealth v. Velazquez, 216 A.3d
1146, 1149 (Pa. Super. 2019) (citation omitted). “We will not disturb the
findings of the PCRA court unless there is no support for those findings in the
record.” Id. (citation omitted).
In his appellate brief, Morales-Gasparini raises for the first time that (1)
his counsel presented a deficient performance and rendered ineffective
assistance of counsel; (2) his trial counsel and the Commonwealth attempted
to make a plea agreement to avoid a bench or jury trial; (3) Counsel did not
present an “actual innocence” defense; (4) counsel was ineffective because
-3-
J-S13031-20
he did not give Morales-Gasparini his discovery packet while the case was
pending; (5) his sentence was an unbalanced mix of consecutive and
concurrent sentences; (6) the evidence was not sufficient to prove the
charges; and (7) other suspects were rounded up and entered plea
agreements that “pointed the finger” at him.
At the outset, we note that because none of those issues was raised
before the PCRA court, the claims are waived because they cannot be raised
for the first time on appeal. See Pa.R.A.P. 302(a) (issues not raised in lower
court are waived and cannot be raised for first time on appeal). We also note
that issues 5, 6 and 7 are waived for the additional reason that they had to
be raised in Morales-Gasparini’s direct appeal. (“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 . . .”). 42 Pa. C.S. § 9544 (b).
Even if they had been raised, Morales-Gasparini’s pro se brief is so
rambling, disjointed and difficult to follow that we could not have conducted
meaningful appellate review. It contains no coherent legal argument and lacks
an argument section mirroring the seven questions raised in the statement of
questions involved. See Pa.R.A.P. 2116(a); 2119(a)-(c). It makes vague,
generalized, undeveloped claims that his counsel was ineffective, but does not
develop them or show the actions complained of that prejudiced him. See
Commonwealth v. Jones, 815 A.2d 598, 612 (Pa. 2002) (mere boilerplate
-4-
J-S13031-20
allegations are inadequate to meet the affirmative burden to rebut the
presumption that lawyers are competent and effective).
“Although this Court is willing to liberally construe materials filed by a
pro se litigant, pro se status confers no special benefit upon the appellant.”
Commonwealth v. Vurimindi, 200 A.3d 1031, 1037 (Pa. Super. 2018),
appeal denied, 217 A.3d 793 (Pa. 2019), cert. denied sub nom. Vurimindi v.
Pennsylvania, 2020 WL 873220 (U.S. 2020) (citation omitted). Accordingly,
pro se litigants must comply with this Court’s procedural rules; if there are
considerable defects, the issues will be waived. See id.; see also Pa.R.A.P.
2101. Accordingly, Morales-Gasparini’s issues are waived on this basis as
well.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2020
-5-