Com. v. Delarosa, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAUL DELAROSA :
:
Appellant : No. 2357 EDA 2019
Appeal from the PCRA Order Entered August 12, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003855-2017
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 14, 2020
Raul Delarosa (a/k/a Javier Cepeda Delarosa or Javier Cebeda
Delarosa,1 a/k/a Edwin Pacharto) appeals from the order, entered in the Court
of Common Pleas of Philadelphia, denying his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel seeks
to withdraw his representation on appeal pursuant to Anders v. California,
386 U.S. 738 (1967), and its progeny.2 Upon review, we affirm the PCRA
court’s order and grant counsel’s motion to withdraw.
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* Retired Senior Judge assigned to the Superior Court.
1 Delarosa spelled his name as both “C-E-B-E-D-A,” see N.T. Guilty Plea
Hearing, 1/18/18, at 7, and “C-E-P-E-D-A,” see N.T. Guilty Plea Hearing,
1/22/18, at 6.
2Counsel erroneously seeks to withdraw under Anders, supra, instead of the
proper procedure espoused in Commonwealth v. Turner, 544 A.2d 927 (Pa.
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In June of 2010, Delarosa asked Hector Rivera to assist him in the killing
of a fellow drug dealer, Candido Hidalgo. N.T. Guilty Plea Hearing, 1/22/18,
at 20-21. Rivera, in turn, recruited Jose Padilla for the job. Id. On June 13,
2010, Rivera and Padilla, armed with knives, waited at Hidalgo’s property in
Philadelphia. When Hidalgo returned home between 3:00 and 4:00 a.m.,
Rivera and Padilla ambushed him, stabbing him repeatedly in the face, neck,
and hands. Id. The two men fled, and Hidalgo’s wife called 911. Medics
arrived and pronounced Hidalgo dead at 4:07 a.m. Id. Doctor Aaron Rosen
of the Philadelphia Medical Examiner’s Office determined that the cause of
Hidalgo’s death was multiple stab wounds and that the manner of death was
homicide. Id. Delarosa subsequently made arrangements with his wife to
pay Rivera and Padilla thousands of dollars for their assistance in Hidalgo’s
murder. Id. Thereafter, Delarosa fled to the Dominican Republic, and was
extradited back to Philadelphia to stand trial. Id.
On January 18, 2018, Delarosa appeared before the trial court, with an
interpreter present, and was informed of the Commonwealth’s offer of fifteen
to thirty years of imprisonment for all charges. After the court informed
Delarosa of the maximum penalty for each offense, including the possibility of
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1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). See Commonwealth v. Smith, 700 A.2d 1301 (Pa. Super. 1977)
(counsel seeking to withdraw on direct appeal must satisfy Anders
requirements, while counsel seeking to withdraw from post-conviction
representation under PCRA must satisfy Turner and Finley). We may,
however, still review the petition to withdraw, because an Anders brief
provides a defendant greater protection than a Turner/Finley letter.
Commonwealth v. Widgins, 29 A.3d 816, 820 n.2 (Pa. Super. 2011).
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life imprisonment without parole if he was convicted at trial of first-degree
murder, Delarosa requested additional time to consider the Commonwealth’s
offer, which the court granted. N.T. Guilty Plea Hearing, 1/18/18, at 12-18.
On January 22, 2018, Delarosa reappeared before the trial court with an
interpreter present and, following a full colloquy, pled guilty to third-degree
murder,3 conspiracy to commit murder,4 and criminal solicitation of murder,5
pursuant to the plea agreement. In addition to having Delarosa execute a
written guilty plea colloquy form with the aid of an interpreter, the trial court
conducted an extensive oral colloquy with the interpreter’s assistance. N.T.
Guilty Plea Hearing, 1/22/18, at 10-11.
On February 13, 2018, Delarosa filed a motion to withdraw his guilty
plea, claiming that the plea was not knowing, intelligent, and voluntary, and
further asserting that he had insufficient time to consider the Commonwealth’s
offer. The trial court denied that motion and sentenced Delarosa on February
20, 2018 to an aggregate sentence of fifteen to thirty years of incarceration.
Delarosa did not file post-sentence motions; instead, he filed a direct
appeal claiming that the trial court erred in denying his motion to withdraw
his guilty plea. On January 31, 2019, this Court affirmed his judgment of
sentence. Commonwealth v. Delarosa, 209 A.3d 543 (Pa. Super. 2019)
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3 18 Pa.C.S.A. § 2502.
4 18 Pa.C.S.A. § 903.
5 18 Pa.C.S.A. § 902.
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(Table). Delarosa did not file a petition for allowance of appeal with the
Supreme Court of Pennsylvania.
On March 26, 2019, Delarosa timely filed a pro se PCRA petition in which
he alleged plea counsel’s ineffectiveness. The PCRA court appointed counsel,
and on May 20, 2019, appointed counsel filed a “no-merit” letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On May 30, 2019,
following a Grazier6 hearing, the court permitted PCRA counsel to withdraw,
and allowed Delarosa to proceed pro se. Following an evidentiary hearing on
August 12, 2019, the PCRA court dismissed Delarosa’s petition. Subsequently,
the PCRA court appointed new counsel and Delarosa filed a timely notice of
appeal to this Court. The PCRA court did not order counsel to file a statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The court
filed its opinion on October 8, 2019.
Instantly, counsel has filed with this Court an application to withdraw
and an Anders brief. With regard to withdrawal from PCRA representation,
our Supreme Court has stated that independent review of the record by
competent counsel is required before withdrawal is permitted. Such
independent review requires proof of: (1) a “no-merit” letter by PCRA counsel
detailing the nature and extent of his review; (2) the “no-merit” letter by PCRA
counsel listing each issue the petitioner wished to have reviewed; (3) PCRA
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6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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counsel’s explanation, in the “no-merit” letter, as to why the petitioner’s issues
are meritless; (4) independent review of the record by the PCRA or appellate
court; and (5) agreement by the PCRA or appellate court that the petition was
meritless. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009);
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).
In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),7 this
Court imposed an additional requirement for counsel seeking to withdraw from
collateral proceedings:
PCRA counsel who seeks to withdraw must
contemporaneously serve a copy on the petitioner of
counsel’s application to withdraw as counsel, and must
supply to the petitioner both a copy of the “no-merit”
letter and a statement advising the petitioner that, in the
event that the court grants the application of counsel to
withdraw, he or she has the right to proceed pro se or
with the assistance of privately retained counsel.
Id. at 614.
Here, counsel has substantially complied with the Turner/Finley and
Friend requirements. Counsel has detailed the nature and extent of his
review, served a copy of his petition to withdraw and brief upon Delarosa and
informed him of his right to proceed pro se or with privately retained counsel,8
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7 This Court’s holding in Friend was subsequently overruled on other grounds
by the Supreme Court in Pitts. However, the additional requirement that
counsel provide copies of the relevant documentation to the petitioner remains
intact. Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).
8 Delarosa has not raised any additional issues, either pro se or through
private counsel.
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raised Delarosa’s issues in the form of a brief, and explained why his claims
are meritless. We now turn to an independent review of the record to
determine whether his claims merit relief.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by evidence of record and is free of legal error. Commonwealth v. Burkett,
5 A.3d 1260, 1267 (Pa. Super. 2010) (citations omitted). In evaluating a
PCRA court’s decision, our 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. Id. The PCRA court’s credibility
determinations are binding on this Court where the record supports those
determinations. Widgins, 29 A.3d at 820.
In his PCRA petition and on appeal, Delarosa asserts that plea counsel
was ineffective in the following ways: (1) failing to have an interpreter
available at each meeting with Delarosa; (2) failing to investigate an
extradition agreement between the United States and the Dominican
Republic; (3) failing to request a psychiatric evaluation for Delarosa; (4) failing
to litigate certain pretrial motions and impeach Commonwealth witnesses; and
(5) failing to object to an unlawful mandatory minimum sentence. He further
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asserts that plea counsel coerced him into entering a guilty plea, rendering
the plea involuntary and unenforceable. No relief is due.9
“It is well-established that counsel is presumed effective, and to rebut
that presumption, the PCRA petitioner must demonstrate that counsel’s
performance was deficient and that such deficiency prejudiced him.”
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland
v. Washington, 466 U.S. 668, 687–91 (1984). To prove that counsel was
ineffective, a petitioner must demonstrate that: (1) the underlying legal issue
has arguable merit; (2) counsel’s actions lacked an objective reasonable
basis; and (3) he was prejudiced by counsel’s act or omission. Koehler,
supra at 132. Failure to prove any prong of this test will defeat an
ineffectiveness claim. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.
2014).
We begin by addressing Delarosa’s claim that plea counsel coerced him
into pleading guilty. In order to invalidate a plea10 on the basis of
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9“Generally, a plea of guilty amounts to a waiver of all defects and defenses
except those concerning the jurisdiction of the court, the legality of the
sentence, and the validity of the guilty plea.” Commonwealth v. Reichle,
589 A.2d 1140, 1141 (Pa. Super. 1991).
10 The trial court must conduct an on-the-record colloquy in open court to
ascertain whether the defendant is aware of his rights and the consequences
of his plea. Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super.
2008). The trial court must be satisfied that the defendant understands: (1)
the nature of charges to which he pleads guilty; (2) the factual basis for the
plea; (3) his right to trial by jury; (4) the presumption of his innocence; (5)
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ineffectiveness of counsel, a petitioner must plead and prove that the
ineffectiveness caused an involuntary or unknowing plea. Commonwealth
v. D’Collanfield, 805 A.2d 1244, 1246 (Pa. Super. 2002). To be eligible for
relief based on an unlawful inducement claim, as Delarosa claims here, a
petitioner must plead and prove by the preponderance of the evidence that
his conviction resulted from “a plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the petitioner to
plead guilty and the petitioner is innocent.” See Pa.C.S.A. § 9543(a)(2)(iii).
Where a defendant enters his plea on the advice of counsel, the voluntariness
of the plea depends on whether the advice was within the range of competence
demanded of attorneys in criminal cases. Commonwealth v. Pier, 182 A.3d
476, 478-79 (Pa. Super. 2018).
Instantly, there is no support in the record for Delarosa’s claim that plea
counsel coerced him to plead guilty despite his innocence. During extensive
guilty plea colloquies, between which the court granted Delarosa’s request for
additional time to consider the Commonwealth’s offer, Delarosa testified that
he understood the nature of the charges against him, the factual basis for his
plea, his right to trial by jury, the presumption of his innocence, the
permissible ranges of sentences, and the fact that the trial judge would not
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the permissible ranges of sentences and fines; and (6) that the judge is not
bound by an agreement unless the Defendant accepts it. Pa.R.Crim.P. 590
Comment.
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be bound by the Commonwealth’s offer unless Delarosa accepted it. N.T.
Guilty Plea Hearing, 1/18/18, at 12-13. Delarosa testified that plea counsel
answered all of his questions, that he wished to enter a negotiated plea
because he was guilty, and that the decision to plead guilty was his decision
alone, borne of his own free will. Id. at 9-14; N.T. Guilty Plea Hearing,
1/22/18, at 13, 20-22. Delarosa is bound by those statements, and cannot
obtain relief on grounds that contradict his prior assertions made under oath.
Commonwealth v. Barndt, 74 A.3d 185, 201 (Pa. Super. 2013). In addition,
plea counsel testified at the PCRA hearing that, “[Y]es, I advised [Delarosa]
to [accept the Commonwealth’s offer], 15 to 30 years on a contract killing[
because, i]f he’s found guilty, he’s looking at life in prison without parole.”
N.T. PCRA Hearing, 8/12/19, at 35-36. Thus, Delarosa cannot establish that
counsel lacked a reasonable basis for advising Delarosa to accept the
Commonwealth’s offer; this recommendation was within the range of
competence demanded from attorneys in criminal cases. Koehler, supra;
Pier, supra. Accordingly, we reject the notion that Delarosa’s plea was
entered into involuntarily, unknowingly, or unintelligently.
We now turn to the remainder of Delarosa’s claims, which also implicate
the effectiveness of counsel.
First, Delarosa claims that plea counsel “failed when he presented
himself in front of [Delarosa] without the assistance of an interpreter. . . .
Counsel never utilized the services of an interpreter in the jail.” N.T. PCRA
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Hearing, 8/12/19, at 12; Anders Brief, at 12. Because Delarosa cannot show
that he was prejudiced by counsel’s actions, his first claim fails. Koehler,
supra at 132; see also Commonwealth v. Mason, 130 A.3d 601, 618 (Pa.
2015) (to satisfy prejudice element of ineffective assistance of counsel claim,
appellant must show that reasonable probability that, but for counsel’s error,
result of proceeding would have been different).
At the PCRA hearing, plea counsel testified that he met with Delarosa “a
number of times” and “[n]ever needed an interpreter.” N.T. PCRA Hearing,
8/12/19, at 34.11 He maintained that an interpreter was unnecessary because
counsel “never had a communication problem” with Delarosa. Id. Indeed,
throughout the proceedings, Delarosa never claimed that he was confused
about pleading guilty; he stated unequivocally that plea counsel “explained
everything to [him]” and had answered “all [of his] questions.” N.T. Guilty
Plea Hearing, 1/22/18, at 8-11. At the guilty plea hearing, the Commonwealth
read the allegations of fact that formed the basis of the negotiated guilty plea.
The court then asked Delarosa whether he listened and whether he was
entering the plea because he was, in fact, guilty. Id. at 20-22. Delarosa
confirmed that he heard and understood the recitation of facts and wished to
enter a negotiated plea because he was guilty. Id. at 22.
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11 Nevertheless, in an abundance of caution, Delarosa was provided an
interpreter each time he appeared before the court.
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Based on the foregoing, Delarosa cannot show a reasonable probability
that, but for counsel’s failure to obtain an interpreter for their pretrial
meetings in jail, the results of the proceeding would have been different.
Thus, this claim fails. Mason, supra.
Delarosa next claims that plea counsel was ineffective for failing to
investigate an extradition agreement between the United States and
Dominican Republic. This claim is belied by the record and, thus, without
merit.
Instantly, the record shows that despite Delarosa’s assertion, plea
counsel investigated the extradition agreement and leveraged it to reduce
Delarosa’s negotiated sentence. At the PCRA hearing, counsel testified that
the Commonwealth’s initial offer in exchange for Delarosa’s guilty plea was a
period of twenty-five to fifty years’ imprisonment. N.T. PCRA Hearing,
8/22/19, at 33. After Delarosa informed counsel that, under the terms of the
extradition agreement, his maximum sentence could not exceed thirty years,
counsel conducted further investigation and obtained a copy of the agreement.
Id. Counsel reviewed the extradition agreement with Delarosa and thereafter
with the Commonwealth. Id. at 33-34. As a result of counsel’s investigation,
the Commonwealth changed its offer to a period of fifteen to thirty years’
imprisonment, which Delarosa ultimately accepted. Id.
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Accordingly, the record demonstrates that plea counsel did not fail to
investigate the extradition agreement. Because Delarosa’s claim lacks
arguable merit, this claim fails. Koehler, supra.
Delarosa next argues that plea counsel was ineffective for not
requesting an evaluation by a psychiatric expert before he pled guilty. This
claim, too, lacks arguable merit.
To establish counsel’s ineffectiveness for failing to call an expert witness,
a petitioner must plead and prove that an expert witness was willing and
available to testify on the subject of the testimony, that counsel knew or
should have known about the witness, and that the petitioner was prejudiced
by the absence of the testimony. Commonwealth v. Williams, 141 A.3d
440, 460 (Pa. 2016). Prejudice requires the petitioner to show how the
uncalled witness’ testimony would have been beneficial under the
circumstances of the case. Id.
Here, Delarosa fails to identify a witness that was willing and available
to testify regarding his allegedly infirm mental health. He has not submitted
any documentation of, nor does he make claims about, a history of mental
illness. Plea counsel, who met with Delarosa on several occasions, explained
that “[based on his] interaction[s] with [Delarosa, he] didn’t feel [a mental
health evaluation] was necessary.” N.T. PCRA Hearing, 8/12/19, at 38. In
fact, during the oral plea colloquy, the court asked Delarosa if he suffered
from any mental health issues, and Delarosa testified unequivocally that he
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did not. N.T. Guilty Plea Hearing, 1/22/18, at 13.12 Accordingly, his claim
that counsel was ineffective for failing to request a psychiatric evaluation
cannot succeed. Koehler, supra; see also Commonwealth v. Vesay, 464
A.2d 1363, 1368 (Pa. Super. 1983) (defendant must honestly answer all
questions at time of guilty plea); Commonwealth v. Stork, 737 A.2d 789,
790-91 (Pa. Super. 1999) (defendant may not assert grounds for withdrawing
guilty plea that contradict statements made when pleading guilty).
Next, Delarosa alleges plea counsel was ineffective for failing to “raise
an objection when[] the [c]ourt imposed a[n unlawful] mandatory minimum
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12 The exchange proceeded as follows:
[The Court]: Now, I asked you last week, but I have to ask you
again, about whether you were suffering from any mental health
issues.
[Delarosa]: No.
[The Court]: So there’s nothing preventing you from making a
knowing, intelligent, and voluntary decision today?
[Delarosa]: Correct.
[The Court]: So you are doing this of your own free will?
[Delarosa]: Yes.
N.T. Guilty Plea Hearing, 1/22/18, at 13; see also N.T. Guilty Plea Hearing,
1/18/18, at 12-13 (When asked whether he understood nature and charges
against him, factual basis for plea, his right to trial by jury, the presumption
of his innocence, the permissible ranges of sentences, and that judge is not
bound by Commonwealth’s offer if he rejected it, Delarosa answered “Yes.”
When asked whether he was taking any medication that would interfere with
his ability to understand, Delarosa answered “No.”).
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[sentence]” under Allenye v. United States, 133 S. Ct. 2151 (2013). N.T.
PCRA Hearing, 8/12/19, at 19-20; Anders Brief, at 18. This claim is without
merit, as the court did not impose such a sentence.
In Alleyne, the United States Supreme Court held “[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.” Id. at 2155. See also
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),
(Court concluded Alleyne rendered mandatory minimum sentencing
provision at 42 Pa.C.S.A. § 9712.1 unconstitutional because “it permits the
trial court, as opposed to the jury, to increase a defendant’s minimum
sentence based upon a preponderance of the evidence” standard);
Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015) (Court
determined mandatory minimum sentencing statue, 18 Pa.C.S.A. § 6317, was
also unconstitutional under Alleyne where “numerous provisions of [§] 6317
[were] constitutionally infirm [and] remaining provisions . . ., standing alone,
[were] incomplete and [were] incapable of being vindicated in accord with
the intent of the General Assembly.”).
Here, Delarosa’s sentence of fifteen to thirty years’ incarceration was
imposed pursuant to a negotiated plea agreement following a full colloquy.
The instant record makes clear that the trial court did not impose a mandatory
minimum sentence; instead, it imposed the sentence that Delarosa himself
negotiated. See N.T Sentencing, 2/20/18, at 22 (“I am imposing that
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sentence [of fifteen to thirty years’ incarceration] that I just referred to that
you negotiated.”). In fact, the sentencing order specifically indicates that no
mandatory sentence was imposed. See Order of Sentencing, 2/20/18, at 3.
Because the trial court did not impose a statutory mandatory minimum
sentence in violation of Alleyne, Delarosa’s ineffectiveness claim based on
counsel’s failure to object to an unlawful sentence is without merit and,
accordingly, fails. Koehler, supra.
Lastly, Delarosa alleges plea counsel was ineffective for failing to take
the following actions: (1) moving to quash Delarosa’s indictment on the basis
that his name was incorrect; (2) impeaching Commonwealth witnesses Rivera
and Padilla using prior bad acts; and (3) moving to suppress statements made
by Rivera, Padilla, and Delarosa’s wife. Each of these claims is devoid of
arguable merit.
During the oral guilty plea colloquy, Delarosa acknowledged the fact that
he was giving up his right to litigate pretrial motions, including the motion for
quashal and “any suppression motions.” N.T. Guilty Plea Hearing, 1/22/18,
at 19. Furthermore, as discussed above, Delarosa knowingly, voluntarily, and
intelligently waived his right to a trial at which he could have impeached the
Commonwealth’s witnesses. Therefore, these claims of counsel’s
ineffectiveness warrant no relief. Koehler, supra.
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In short, Delarosa has failed to establish the involuntariness of his guilty
plea or the ineffectiveness of plea counsel. Accordingly, the PCRA court
properly denied relief.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/20
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