Com. v. Rivera, C.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CARMELO RIVERA, : No. 3028 EDA 2014
:
Appellant :
Appeal from the PCRA Order, September 30, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0005579-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 05, 2015
Appellant appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 to
9546. Finding no error, we affirm.
On October 4, 2012, appellant pleaded guilty to third degree murder
and possessing an instrument of crime in connection with the death of
Wilfredo Sorrento. The following facts underlay the plea. On the evening of
July 10, 2011, appellant and the victim were patrons at the Olympico bar in
Philadelphia. Appellant and the victim became embroiled in an argument
over a woman appellant had brought to the bar. During the argument,
appellant struck the victim in the cheek with the butt of a pool cue. The
victim collapsed and died, and appellant fled the bar. The medical examiner
determined that the cause of death was homicide. However, the evidence
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indicated that the blow from the cue did not directly cause the victim’s
death, but rather induced an adrenaline rush which in turn caused a heart
attack because of the victim’s cardiovascular disease.
Immediately following the guilty plea, the court imposed the
negotiated sentence of 10 to 20 years’ imprisonment. No direct appeal was
filed. On January 24, 2013, appellant filed the instant PCRA petition.
Counsel was appointed but, on August 26, 2014, filed a petition to withdraw
and “no-merit” brief. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)
(en banc). Thereafter, on August 29, 2014, the court filed notice, pursuant
to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss
appellant’s petition without hearing. Appellant’s petition was dismissed and
counsel was permitted to withdraw on September 30, 2014. This timely
appeal followed.
Appellant raises multiple assertions of ineffective assistance of trial
counsel: 1) in failing to obtain a medical expert to show that the victim died
of a heart attack and not because appellant struck him with a pool cue; 2) in
failing to investigate and try the case, and instead inducing appellant to
plead guilty; 3) in failing to obtain an interpreter; and 4) in failing to advise
appellant of his right to withdraw his guilty plea. Finally, appellant asserts
that PCRA counsel was ineffective in seeking to withdraw pursuant to
Turner/Finley.
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Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.Moreover, as appellant’s issues on appeal are stated in terms of
ineffective assistance of counsel, we also note that appellant is required to
make the following showing in order to succeed with such a claim: (1) that
the underlying claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and (3) that, but for the
errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any
prong of this test will cause the entire claim to fail. Commonwealth v.
Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed
to be effective, and appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).
We may quickly dispose of appellant’s claims. Appellant first asserts
that counsel was ineffective in failing to obtain expert medical testimony to
prove that the victim died from a heart attack and not from being struck by
the pool cue. Appellant contends that his crime only amounted to
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involuntary manslaughter and not murder. He posits that he would not have
pleaded guilty to murder had such expert medical testimony been available.
Such testimony would have been fruitless. The medical examiner
himself stated that the victim died from the heart attack and not from blunt
force trauma. However, the heart attack was induced by the trauma. This
court has previously held in a prosecution for second-degree murder based
upon a heart attack death, that expert medical testimony that death was
due to heart disease aggravated by robbery and kidnapping and the manner
of death was homicide was sufficient to support the conviction.
Commonwealth v. Evans, 494 A.2d 383, 389-390 (Pa.Super. 1985).
Consequently, even if counsel had produced a medical expert to opine that
the victim died from a heart attack, it would not have likely changed the
result. Thus, there was no prejudice to appellant and no ineffectiveness on
the part of counsel.
Next, appellant contends that counsel was ineffective in failing to
investigate and try the case, and instead inducing appellant to plead guilty.
We note that the trial court conducted a full plea colloquy of appellant.
During that plea colloquy, appellant testified that nobody threatened or
forced him to plead guilty, and that he was satisfied with counsel’s
representation. (Notes of testimony, 10/4/12 at 13.) “A person who elects
to plead guilty is bound by the statements he makes in open court while
under oath and he may not later assert grounds for withdrawing the plea
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which contradict the statements he made at his plea colloquy.”
Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007), quoting Commonwealth v.
Pollard, 832 A.2d 517, 524 (Pa.Super. 2003) (citations omitted).
Furthermore, appellant was faced with a total maximum sentence of
45 years’ imprisonment. The incriminating facts against appellant were
compelling.1 By negotiating a plea bargain, counsel limited appellant’s
maximum sentencing exposure to 20 years’ imprisonment. Thus, counsel
had a valid strategic reason for advising acceptance of the plea and not
taking the case to trial. There is no ineffectiveness in this regard.
Next, appellant asserts that counsel was ineffective in failing to obtain
an interpreter. A Spanish interpreter was present for appellant’s guilty plea
hearing. (Notes of testimony, 10/4/12 at 3.) Furthermore, to the extent
that appellant’s claim implicates his ability to communicate with his attorney
prior to the guilty plea hearing, the trial court specifically inquired of
appellant during the plea hearing whether he was able to fully communicate
with his attorney during trial preparation despite the language difference,
and appellant answered in the affirmative. (Id. at 4-5.) Appellant is bound
by that answer. Pollard. There is no ineffectiveness on this basis.
1
The attack was apparently caught on video. (Notes of testimony, 10/4/12
at 22.)
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Next, appellant argues that trial counsel was ineffective in failing to
advise appellant of his right to withdraw his guilty plea. At the close of the
guilty plea hearing, the court alerted appellant to the possibility of
withdrawing his guilty plea when it specifically asked appellant if he would
be instructing his counsel to file a motion to withdraw the plea. (Notes of
testimony, 10/4/12 at 29-30.) Since the court alerted him to this possibility,
counsel cannot be found ineffective for failing to do so.
Finally, appellant asserts that PCRA counsel was ineffective in seeking
to withdraw pursuant to Turner/Finley. Appellant never objected to PCRA
counsel’s representation before the PCRA court either in a response to the
no-merit brief or in response to the Rule 907 notice. Consequently,
appellant may not raise this matter for the first time on appeal.
Commonwealth v. Pitts, 981 A.2d 875, 878-881 (Pa. 2009).
Accordingly, having found no merit in the issues on appeal, we will
affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
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