Com. v. Rodriguez, J.

J-S12005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE ALBERTO RODRIGUEZ JR. :
:
Appellant : No. 1761 EDA 2020
Appeal from the PCRA Order Entered August 11, 2020
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0000419-2019
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 14, 2022
Appellant, Jose Alberto Rodriguez Jr., appeals from the post-conviction
court’s August 11, 2020 order denying his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The facts and procedural history of Appellant’s case can be summarized
as follows. On November 1, 2018, Detective Sergeant Michael Mish, a
member of the Bethlehem Police Department’s Special Operations/Vice Unit,
was conducting surveillance in an area known for drug trafficking. See Order
of Court (OOC), 6/18/19, at 2, 3.
At approximately 7:45 p.m. …, during his surveillance, [Detective]
Mish observed a blue Chrysler pull up to the curb in front of him
at 10th Street and Lynn Avenue…. No one entered or exited the
vehicle for several minutes. [Detective] Mish then ran the
registration of the vehicle, bearing Pennsylvania plate number
KBY7902, and learned that the vehicle was registered to Oscar
York, an individual known to [Detective] Mish as a narcotics dealer
with two prior convictions, who was known to be selling drugs of
J-S12005-22
late in the Bethlehem area. Several minutes after the vehicle had
arrived, [Detective] Mish observed an individual, only later
identified as [Appellant], approach the Chrysler on foot and enter
the passenger door. The vehicle then drove down Lynn Avenue,
and was followed by Detective Casella, a member of [Detective]
Mish’s team on the Special Operations Vice Unit. The vehicle was
followed as it drove for approximately one minute in a circle from
its starting position along Argus Street, coming to rest on 9th
Street approximately two blocks from where it had begun, in
[Detective] Mish’s line of sight down 9th Street. [Detective] Mish
testified that this type of conduct — an individual entering a
vehicle and then riding in the vehicle for a very short distance in
a circular route — is very typical of drug transactions, in his
experience. The same individual seen entering the vehicle then
exited the vehicle and began walking down 9th Street towards
[Detective] Mish, passing in front of him. [Detective] Mish then
exited his vehicle and requested to speak with the individual, at
which time the man moved as though to flee. Detective Marques,
another member of [Detective] Mish’s team, had just entered the
scene at [Detective] Mish’s request and apprehended the
individual, having been advised by [Detective] Mish via ongoing
radio transmissions of his observations of the individual. As the
man was apprehended, a white pill fell from his person onto the
ground. He was then patted down[,] and a bag of cocaine was
found on his person, as well as another pill. The quantity of
cocaine found on his person had a street value of approximately
$400. After placing the individual under arrest, [Detective] Mish
was able to identify him as [Appellant].
Id. at 3-4.
Based on the information regarding Appellant’s arrest, as well as
information provided by a confidential informant, police obtained and
executed a search warrant at a residence located at 1834 Lynfield Drive.
There, officers “located a bag containing approximately [110] grams of
cocaine in a kitchen cabinet…, as well as some other contraband and [$200]
of U.S. [c]urrency found in a master bedroom dresser drawer. [Police] also
-2-
J-S12005-22
located mail and an ID belonging to [Appellant] at 1834 Lynfield Drive.”
Appellant’s Brief at 10.
In light of this evidence, Appellant was charged with two counts of
possession with intent to deliver (PWID), 35 P.S. § 780-113(A)(30). Prior to
trial, Appellant’s counsel filed a motion to suppress, contending “that the stop,
arrest, and searches of his person and … residence … were unconstitutional,
insofar as they were made without the requisite level of suspicion required in
order for law enforcement officers to validly stop, arrest, or search an
individual, or to search a particular location.” OOC at 1. After a hearing, the
trial court denied Appellant’s motion to suppress.
On September 30, 2019, Appellant entered a guilty plea to one count of
PWID in exchange for the Commonwealth’s withdrawing the remaining PWID
charge and stipulating that the weight of the cocaine found was under 100
grams, although the actual weight of the drugs was 110 grams. See
Commonwealth’s Brief at 2. Additionally, “[t]he parties agreed to a sentence
… of a period of incarceration in a state correctional institution of 60 months
(5 years) to 120 months (10 years).” Id. (citation to the record omitted).
The court accepted Appellant’s guilty plea and imposed the agreed-upon
sentence.
Appellant thereafter filed a timely, pro se post-sentence motion, which
was forwarded to his counsel. His counsel then filed an untimely post-
sentence motion, as well as a petition to withdraw from representing
-3-
J-S12005-22
Appellant. The court denied Appellant’s post-sentence motion and granted
counsel’s petition to withdraw. Appellant did not file a direct appeal.
Instead, on November 12, 2019, he filed the pro se PCRA petition
underlying the present appeal. Therein, Appellant alleged that his trial counsel
was ineffective for coercing him to plead guilty by telling him that he “would
be found guilty by a jury of white people” if he proceeded to trial. Pro Se
PCRA Petition, 11/12/19, at 3. Appellant also claimed that counsel was
ineffective for withholding discovery from Appellant, and for failing to present
evidence at the suppression hearing to disprove that Appellant resided at 1834
Lynfield Drive. Id. Counsel was appointed and an amended petition was filed
on January 15, 2020, reiterating the claims raised in Appellant’s pro se
petition, and adding that trial counsel was ineffective for not arguing at the
suppression hearing that Appellant was merely a buyer of drugs and not a
seller, and that Appellant’s plea was involuntary and/or unknowing because
he was under the influence of drugs when he entered the plea. See Amended
PCRA Petition, 1/15/20, at 1-2 (unnumbered).
The court conducted an evidentiary hearing on Appellant’s petition on
March 11, 2020. At the hearing, Appellant and his trial counsel both testified.
Following the hearing, Appellant filed a petition requesting the appointment of
new PCRA counsel, which was denied following a hearing. Appellant’s PCRA
counsel then filed a petition to withdraw and “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 August 11, 2020,
-4-
J-S12005-22
the court granted counsel’s petition to withdraw and denied Appellant’s PCRA
petition.
Appellant filed a timely notice of appeal. The court ordered him to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, but
Appellant failed to comply. Accordingly, the PCRA court issued a statement
indicating that Appellant’s issues were waived on appeal. Thereafter,
Appellant retained private counsel, who filed an application for relief with this
Court, requesting permission to file a Rule 1925(b) statement nunc pro tunc.
On April 6, 2021, we granted that application and remanded for Appellant to
file a concise statement, which he did on April 27, 2021. The PCRA court filed
its Rule 1925(a) opinion on May 4, 2021.
Herein, Appellant states two issues for our review:
A. Whether the PCRA court erred in finding [Appellant’s] trial/plea
counsel did not render ineffective assistance of counsel in advising
[Appellant] to proceed to a guilty plea[?]
B. Whether the PCRA court’s denial of relief to [Appellant] and
memorandum opinion thereto was proper based on the “no-merit”
letter filed by PCRA counsel[?]
Appellant’s Brief at 4 (unnecessary capitalization omitted).
Initially, we note that:
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the
record supports the determination of the PCRA court and whether
the ruling is free of legal error.” Commonwealth v. Johnson, …
966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the
findings of the PCRA court, “but its legal determinations are
subject to our plenary review.” Id.Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).
-5-
J-S12005-22
Appellant first argues that the PCRA court erred by denying his claim
that his trial counsel acted ineffectively.
It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations
omitted).
In this case, Appellant
[c]ontends that his plea was unknowing and involuntary due to
hi[s] being under the influence of drugs at the time of the plea.
[Appellant] also contends that trial counsel was ineffective in
pursuing a motion to suppress evidence, which was filed, argued,
and briefed by counsel, and thereafter denied by the trial court.
In reviewing these issues together, [Appellant’s] assertions can
be framed as follows: that trial counsel was ineffective in advising
[Appellant] to proceed with a guilty plea[,] as doing so waive[d
Appellant’s] right to file a direct appeal as to the sufficiency of the
evidence regarding the trial court’s refusal to grant [Appellant’s]
motion to suppress.
Appellant’s Brief at 21 (unnecessary capitalization and citation to the record
omitted). Appellant further avers that “his counsel ‘stated unequivocally and
repeatedly that [Appellant] would be found guilty by a jury of white people
and [advised Appellant] not to exercise [his] right to such [a] jury.’” Id. at
23 (citation to the record omitted). According to Appellant, “[t]his statement,
-6-
J-S12005-22
in conjunction with the presence of the evidence the [c]ourt refused to
suppress, suggests an inducement of a guilty plea by [Appellant], as his
chances of success at trial appear[ed] slim, according to his counsel.” Id.
Initially, Appellant fails to offer any developed discussion or legal
authority to support his claim that his plea was involuntary because he was
allegedly under the influence of drugs, or because his plea counsel advised
him that he was unlikely to prevail before a jury. Thus, these assertions are
waived. See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.
2007) (“When briefing the various issues that have been preserved, it is an
appellant’s duty to present arguments that are sufficiently developed for our
review. The brief must support the claims with pertinent discussion, with
references to the record and with citations to legal authorities. … [W]hen
defects in a brief impede our ability to conduct meaningful appellate review,
we may dismiss the appeal entirely or find certain issues to be waived.”).1
Within his first issue, Appellant also argues that his trial counsel acted
ineffectively by not ensuring that he understood that by pleading guilty, he
was waiving his right to file an appeal challenging the trial court’s denial of his
motion to suppress. Appellant insists that, because he did not understand
that he was giving up his ability to challenge the suppression ruling on appeal,
his plea was involuntary and his counsel was ineffective.
____________________________________________
1 Notwithstanding, we would conclude that no relief is due on these claims for
the reasons set forth by the PCRA court in its Rule 1925(a) opinion. See PCRA
Court Opinion (PCO), 5/4/21, at 2-11.
-7-
J-S12005-22
The PCRA court concluded that this issue was waived, as it was not
raised in Appellant’s petition or at the PCRA hearing. See PCO at 2. After
reviewing the record in this case, we agree. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”).2
Appellant next contends that the PCRA court erred by granting his PCRA
counsel’s petition to withdraw, as counsel’s Turner/Finley “no-merit” letter
did “not address, in any meaningful way, the initial stop [and] search of
[Appellant’s] person, a factor later used to support the probable cause in
obtaining the warrant. The letter fails to detail the nature and extent of review
on that issue, and likewise fails to address any lack of merit [Appellant’s]
argument may have.” Appellant’s Brief at 30-31. Accordingly, Appellant
contends that his PCRA counsel rendered ineffective representation.
____________________________________________
2 In any event, we note that Appellant’s written plea colloquy explicitly
informed him that if he pled guilty, any appeal he filed would be “limited to
four grounds[,]” including the voluntariness of his plea, the jurisdiction of the
court to accept the plea, his sentence, and/or whether his plea counsel was
incompetent or ineffective. See Written Plea Colloquy at 5. Appellant initialed
that paragraph of the written plea colloquy indicating he understood. Id.Then, during the oral plea colloquy, Appellant stated that his trial counsel had
reviewed with him the entire written plea colloquy, had answered all his
questions, and that he understood “all the rights that [he was] waiving by
entering into [the] guilty plea[.]” N.T. Plea/Sentencing, 9/30/19, at 9. This
record demonstrates that Appellant understood that he was waiving his right
to appeal the denial of his suppression motion by entering his guilty plea.
Consequently, even if Appellant had not waived his assertion that his plea
counsel ineffectively failed to ensure he understood this consequence of
pleading guilty, we would conclude that he has not demonstrated his claim
has arguable merit.
-8-
J-S12005-22
Preliminarily, we note that Appellant raised his challenge to PCRA
counsel’s representation for the first time in his Rule 1925(b) statement. As
this was Appellant’s first opportunity to do so after his ostensibly ineffective
counsel withdrew, it is permissible under our Supreme Court’s recent holding
in Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (holding “that
a PCRA petitioner may, after a PCRA court denies relief, and after obtaining
new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness
at the first opportunity to do so, even if on appeal”).
Nevertheless, Appellant has not demonstrated that his PCRA counsel
acted ineffectively. Our review of Appellant’s pro se petition, and counsel’s
amendment thereto, shows that at no point did Appellant raise a claim
involving the legality of his initial stop and arrest. Instead, he alleged that his
trial counsel was ineffective for coercing him to plead guilty, for withholding
discovery from him, and for failing to present evidence at the suppression
hearing that Appellant did not reside at the searched residence and was simply
a buyer of drugs, not a seller. Appellant also claimed his plea was invalid
because he was under the influence of drugs. None of these assertions
explicitly or implicitly suggested that Appellant wished to challenge the legality
of his initial stop and arrest or argue that his counsel was ineffective in
litigating that issue at the suppression hearing. Thus, it was reasonable for
PCRA counsel to not provide a detailed assessment of that claim in his
Turner/Finley no merit letter.
Order affirmed.
-9-
J-S12005-22
Judge Dubow joins this memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2022
- 10 -