Com. v. Virgo, J.

J-S73037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JELANIE T. VIRGO, :
:
Appellant : No. 1068 MDA 2014

Appeal from the PCRA Order entered on June 11, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, No. CP-36-CR-0003681-2012

BEFORE: BOWES, WECHT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 30, 2014

Jelanie T. Virgo (“Virgo”), pro se, appeals from the Order dismissing

his first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court thoroughly set forth the relevant facts and procedural

history underlying this appeal in its Opinion, and we incorporate the court’s

recitation herein by reference. See PCRA Court Opinion, 8/8/14, at 1-5.1

On appeal, Virgo presents the following issues for our review:

1. Did [the] PCRA court err in not finding trial counsel
ineffective for his failure to adopt and amend [Virgo’s pro
se] pre-trial motion(s), hence depriving [Virgo] of his
defense?[]

1
As noted in the PCRA court’s Opinion, Virgo was represented during the
pre-trial and guilty plea proceedings by Christopher Lyden, Esquire, who we
will hereinafter refer to as “trial counsel.”
J-S73037-14

2. Did [the] PCRA court err in not finding trial counsel
ineffective for his failure to challenge the violations of [the]
Pennsylvania Wiretapping [and Electronic Surveillance] Act[,
18 Pa.C.S.A.] § 5701 et seq. [(hereinafter “Wiretap
Act”)]?[]

3. Did [the] PCRA court err in not finding trial counsel
ineffective for his failure to adopt and amend [Virgo’s pro
se] motion(s) to impeach and challenge the record keeping
requirements of the buy money, video of crime, phone
records of Officer [Robert] Whiteford, and drugs?[]

4. Did [the] PCRA court err in not finding [that the] trial court
abused it’s [sic] discretion by not conducting [a] hearing
[concerning Virgo’s pro se] Motion to Remove Counsel?[]

Brief for Appellant at 4 (capitalization and quotation marks omitted).

The applicable standards of review regarding the dismissal of a PCRA

petition and ineffectiveness claims are as follows:

Our standard of review of a PCRA court’s [dismissal] of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is
free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the
certified record.

***

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.

-2-
J-S73037-14

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(citations omitted).

We simultaneously address Virgo’s first three issues, as they are

related and all allege ineffectiveness of trial counsel. Virgo argues that trial

counsel was ineffective for (1) failing to adopt or amend Virgo’s several pro

se pre-trial Motions, including a Motion to suppress evidence; and (2) failing

to challenge alleged violations of the Wiretap Act. See Brief for Appellant at

8-16.

In its Pa.R.A.P. 1925(a) Opinion, the PCRA court thoroughly

addressed, and rejected, Virgo’s above-mentioned ineffectiveness claims,

and adeptly discussed the applicable law in support of its determination that

trial counsel was not ineffective. See PCRA Court Opinion, 8/8/14, at 7-14.

Our review confirms that the PCRA court’s analysis is supported by the

record and the law, and we therefore affirm on this basis in rejecting Virgo’s

first three issues. See id.

In his final issue, Virgo contends that the PCRA court erred by failing

to find that the trial court abused its discretion by not conducting an

evidentiary hearing regarding Virgo’s pro se “Motion to Dismiss Counsel and

Appoint New Counsel” (hereinafter “Motion to Remove Counsel”). 2 See Brief

for Appellant at 17-18. In this Motion, Virgo requested the removal of trial

counsel, and the appointment of new counsel, based on trial counsel’s failure

2
Virgo filed the Motion to Remove Counsel two weeks prior to pleading
guilty in May 2013, at which hearing Virgo was represented by trial counsel.

-3-
J-S73037-14

to adopt or amend Virgo’s various pro se pre-trial Motions. According to

Virgo, the trial court’s error in this regard deprived him of a fair trial, and the

PCRA court thus erred by failing to grant Virgo a new trial on this basis. See

id. at 18.

The PCRA court addressed this claim in its Opinion and determined

that Virgo had waived it by failing to raise it in the trial court or on direct

appeal, and that even if it was not waived, the claim does not entitle Virgo

to relief. See PCRA Court Opinion, 8/8/14, at 14-16. We affirm with regard

to this issue based upon the PCRA court’s sound rationale, which is

supported by the law and the record. See id.3

Moreover, after reviewing the claims that Virgo presented in his

response to his PCRA counsel’s Motion to Withdraw as Counsel, and his

response to the PCRA court’s Pa.R.Crim.P. 907 Notice of intent to dismiss

Virgo’s PCRA Petition, we determine that the PCRA court properly held that

none of these claims entitles Virgo to collateral relief.

Accordingly, because we conclude that the PCRA court neither abused

its discretion nor committed an error of law by dismissing Virgo’s PCRA

Petition, we affirm the Order on appeal.

Order affirmed.

3
We additionally observe that Virgo’s claim of trial court error is not a
cognizable claim under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2) (listing
the cognizable claims under the PCRA).

-4-
J-S73037-14

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2014

-5-
 ( Circulated 12/04/2014 03:27 PM
\

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
r-

-»
r-::>
J:> <= n
COMMONWEALTH OF PENNSYLVANIA ""-
(")
~ r
J:~ l'1
c: :;::::1
(f) C) :.::~,

No. 3681-2012 -i
vs. fT1 I 0
::u co ~,\

(")
;r::o;> n
JELANIE T. VIRGO 0 (::>
c (::
::-1.: ::0
-I --l
:< W
(j)

OPINION '"'Q
»
BY TOTARO, J.

Before the Superior Court of Pennsylvania is an appeal from the dismissal of a Motion for

Post Conviction Collateral Relief filed by Jelanie T. Virgo ("Defendant"). For the reasons stated

in this Court's Rule 907 Notice, the Court concluded that Defendant had failed to raise an issue

of arguable merit. Accordingly, the Court dismissed the Motion without a hearing and permitted

Defendant's counsel to withdraw from representation. On June 19,2014, Defendant filed a

Notice of Appeal. For the reasons that follow, Defendant's appeal should be denied.

PROCEDURAL AND FACTUAL BACKGROUND

On June 21, 2012, a Criminal Complaint was filed against Defendant charging him with

the unlawful Delivery of Cocaine within a Drug Free School Zone, as set forth in 18 Pa. C.S.A.

6317(a);1 Criminal Conspiracy (Delivery ofCocaine);2 and Criminal Use ofa Communication

Facility.3 These offenses arose out of an incident which allegedly occurred on March 23,2012,

when Defendant arranged for the delivery of cocaine with another individual over a cell phone,

I 35 P.S. § 780-1 13 (a)(3 0)

2 18 Pa. C.S.A. § 903(a)(l)

3 18 Pa. C.S.A. § 7512(a)
 ,
( Circulated 12/04/2014 03:27 PM

and thereafter sold cocaine to that individual in the vicinity of 402 West King Street, Lancaster,

Pennsylvania. On August 10,2012, the Court signed an Order appointing Christopher Lyden,

Esquire, to represent Defendant in all proceedings before the Court, effective August 1,2012.

On May 14,2013, Defendant appeared before the Honorable Judge Louis J. Farina4 and

entered into a guilty plea pursuant to a negotiated plea agreement, with the terms set forth as

follows: (Count 1) Delivery of Cocaine - a sentence of 2 to 4 years imprisonment; (Count 2)

Criminal Conspiracy (Delivery of Cocaine) - a sentence of2 to 4 years imprisonment; and (Count

3) Criminal Use ofa Communication Facility - a sentence of 1 to 2 years imprisonment. All

sentences were to run concurrent with one another, resulting in an aggregate sentence of not less

than 2 years nor more than 4 years incarceration in the State Correctional Institution.

At the conclusion of a thorough oral colloquy, the Court accepted Defendant's guilty plea

and sentence was imposed pursuant to the negotiated agreement. s (N.T. at 9). No post-sentence

motions were filed by Defendant. However, on May 29,2013, Defendant filed a Notice of

Appeal to Superior Court, which was subsequently denied on January 7,2014. 6 Thereafter, on

January 13,2014, Defendant filed apro se Motion for Post-Conviction Collateral RelieC

4 This case was assigned to Judge Donald R. Totaro after the retirement of Judge Farina.

S Defendant was made eligible for the Recidivism Risk Reduction Incentive program ("RRRl")
after serving 18 months of incarceration. (N.T. at 8, 10).

6 In his Statement of Matters Complained of on Appeal in the direct appeal, defense counsel
stated that Defendant wished to argue his arrest warrant was unlawful due to an invalid seal used by
Magisterial District Judge Scott Albert. Because he found the issue to be "wholly frivolous," Mr.Lyden
filed an Anders brief and sought leave to withdraw as counsel. On January 7, 2014, the Superior Court of
Pennsylvania, upon independent review, found no issues to arguably support an appeal. Consequently,
the judgment of sentence was affirmed and counsel's petition seeking withdrawal was granted.

7Defendant had submitted a prior PCRA Petition to the Court on June 13,2013, during the
pendency of his direct appeal, which was dismissed without prejudice in an Order entered June 18, 2013.

2
 Circulated 12/04/2014 03:27 PM

In his Motion for Post-Conviction Collateral Relief filed on January 13,2014, and in the

accompanying Memorandum of Law, Defendant claimed he was eligible for relief because: (1)

trial counsel provided ineffective assistance of counsel;8 (2) Defendant's guilty plea was

unlawfully induced; and (3) a violation of the Pennsylvania and United States Constitutions

occurred such that no reliable adjudication of guilt or innocence could have taken place.

On January 22,2014, the Court entered an Order appointing Vincent 1. Quinn, Esquire, as

counsel to represent Defendant on his PCRA Motion.9 On May 5, 2014, after investigating

Defendant's claims, Mr. Quinn submitted a no-merit letter to the Court pursuant to

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) and Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), expressing the opinion that the issues raised in the PCRA Motion and an

independent review of the record revealed Defendant's claims were "wholly lacking in merit."

Counsel simultaneously filed a Motion to Withdraw as Counsel. lO

Pursuant to the Rules of Criminal Procedure, this Court conducted an independent review

ofthe record, and on May 21, 2014, the Court issued a Rule 907 Notice concluding that

Defendant's PCRA Motion was patently frivolous, the allegations were not supported by the

8 Defendant alleged counsel was ineffective for essentially failing to investigate or prepare for
trial, failing to challenge the validity of the Magisterial District Court seal used to issue the Criminal
Complaint and Affidavit of Probable Cause against the Defendant, failing to adopt or amend any of his
pro se motions, and for failing to share discovery.

9 Defendant filed pro se amended petitions on January 23,2014, February 6, 2014, February
10, 2014, and April 21, 2014, primarily making the additional claim that counsel was ineffective for
failing to seek suppression of evidence under the Wiretapping and Electronic Surveillance Control Act.
These pro se amended petitions were also forwarded to counsel for review and consideration.

10 On May 15,2014, following his receipt of the no-merit letter, Defendant sent a 3-page letter
directly to the Court stating he would like to proceed pro se, while repeating the same allegations that
were contained in prior filings. For the reasons stated in the Rule 907 Notice issued on May 21,2014,
the claims made by Defendant in his letter dated May 15,2014 were likewise found to be without merit.

3
 Circulated 12/04/2014 03:27 PM

record, and there were no genuine issues concerning any material fact. Pursuant to Rule 907 of

the Pennsylvania Rules of Criminal Procedure, Defendant was allowed twenty (20) days from

date of this Notice to file a response to the notice of proposed dismissal. On June 9, 2014,

Defendant filed an Objection to the dismissal. However, because Defendant's response did not

contain any new information regarding Defendant's previously filed PCRA claims, the Court

entered an Order on June 11,2014 dismissing Defendant's PCRA Petition. l1

On June 19,2014, Defendant filed a Notice of Appeal to the Superior Court of

Pennsylvania. Thereafter, on June 23, 2014, Defendant filed a Statement of Matters Complained

of on Appeal raising two specific claims. First, Defendant alleged his trial counsel was

ineffective for not adopting and amending Defendant's pro se "motion to suppression." Second,

Defendant claimed the trial court abused it's discretion when it did not conduct a "full and fair

evidentiary hearing on defendant's motion to remove counsel."

On July 10, 2014, Defendant filed an Amended Statement of Matters Complained of on

Appeal, raising four claims. Defendant's first claim is similar to the first claim in his original

Statement, but apparently is expanded to allege ineffective assistance of trial counsel for failing

to adopt or amend all motions filed by Defendant rather than just Defendant's "motion to

suppression.,,12 His second claim is that counsel was ineffective for "not challenging the

II In his Objection to dismissal, Defendant raised for the first time a claim that the trial court
abused its discretion by not addressing pro se motions he had filed prior to the guilty plea, which sought
to suppress evidence and remove trial counsel from the case. In the Order of June 11,2014, the Court
rejected Defendant's new claim by citing to the transcript which showed that Defendant never raised
these issues with the Court during the guilty plea hearing. In fact, Defendant specifically acknowledged
he was waiving his right to litigate any pre-trial motions by pleading guilty.

12 Defendant filed various pro se pre-trial motions while represented by counsel, including an
Omnibus Pre-Trial Motion on April 30, 2013, a Motion to Quash Information on May 3,2013, and a
Motion for Preservation of Evidence on May 7, 2013.

4
 Circulated 12/04/2014 03:27 PM

violation(s) of Pennsylvania's Wiretapping Act. .. " Defendant's third claim is that trial counsel

was ineffective for not adopting and amending his "Motion to impeach and challenge the

'Record Keeping Requirements' of the 'BUY MONEY', 'VIDEO OF CRIME', 'PHONE

RECORD' ofOficer [sic] Whiteford, and 'DRUGS.'" The fourth claim is the same as the

second claim in his original Statement, that the trial court abused its discretion by not conducting

a hearing on Defendant's motion to remove counsel.13

This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate

Procedure.

DISCUSSION

A. Whether trial counsel provided ineffective assistance of counsel for not adopting or
amending motions filed by Defendant, for not challenging alleged violations of the
Pennsylvania Wiretap Act, and for not adopting or amending Defendant's Motion
to impeach and challenge the Record Keeping Requirements of the Buy Money,
Video of Crime, Phone Record of Officer Whiteford. and Drugs.

Defendant's first three allegations involve claims of ineffective assistance of counsel,

which the Court will consolidate for purposes of clarity. As a preliminary matter, because

Defendant in his Statement of Matters Complained of on Appeal has failed to indicate precisely

which motions he is referencing, or how he was prejudiced by trial counsel "not adopting and

amending motion(s) filed by defendant," Defendant's vague and abstract allegations must fail

under the PCRA. See Commonwealth v. Lassen, 659 A.2d 999, 1007 (Pa. Super 1995).14

13 On April 30, 2013, Defendant filed apro se "Motion to dismiss counsel and appoint new
counsel."

14 The Court was unable to locate in the record a specific "Motion to impeach and challenge the
'Record Keeping Requirements' of the 'BUY MONEY', 'VIDEO OF CRIME', 'PHONE RECORD' of
Oficer [sic] Whiteford, and 'DRUGS,''' as referenced in the third claim of Defendant's Amended
Statement of Matters Complained of on Appeal.

5
 Circulated 12/04/2014 03:27 PM

Assuming arguendo, Defendant's claims are not vague or abstract, the Court will attempt

to address his allegations on the merits. A defendant seeking PCRA relief is eligible only if he

shows by a preponderance of the evidence that: (1) he has been convicted of a crime under the

laws of the Commonwealth of Pennsylvania and is currently serving a sentence of imprisonment,

probation or parole for the crime; (2) his conviction has resulted from one ofthe enumerated

errors listed in § 9543(a)(2); (3) he has not waived or previously litigated the issues he raises; and

(4) the failure to litigate the issue prior to and during trial, or on direct appeal, could not have

been the result of any strategic decision by counsel. 42 Pa. C.S.A. § 9543(a)(I)-(4).

To prevail on a claim alleging ineffective assistance of counsel, a defendant must prove

that: (1) the underlying claim is of arguable merit, (2) counsel had no reasonable strategic basis

for his or her action or inaction, and (3) but for the act or omission of counsel there is a

reasonable probability that the outcome of the proceeding would have been different.

Commonwealth v. Kimball, 724 A.2d 326,333 (Pa. 1999); 42 Pa. C.S.A. § 9543(a)(2)(ii).

Failure to prove any prong ofthis test will defeat an ineffectiveness claim. Commonwealth v.

Fears, 86 A.3d 795, 804 (Pa. 2014).

"Counsel is presumed effective, and [appellant] bears the burden of proving otherwise."

Commonwealth v. Fears, 86 A.3d at 804 (quoting Commonwealth v. Steele, 961 A.2d 786, 796

(Pa. 2008» (internal quotation marks omitted). Defense counsel is accorded broad discretion in

determining trial tactics and strategy. Commonwealth v. Fowler, 703 A.2d 1027, 1029 (Pa.

1997). The applicable test is not whether alternative strategies were more reasonable employing

a hindsight evaluation of the record, but whether counsel's decision had any reasonable basis to

advance the interests of the defendant. Commonwealth v. Speight, 677 A.2d 317,322 (Pa. 1996).

6
 Circulated 12/04/2014 03:27 PM

The defendant carries the burden of proving that counsel did not act in his best interests.

Commonwealth v. Cook, 676 A.2d 639, 647 (Pa. 1996).

Even if an underlying claim is of arguable merit, a defendant's claim of ineffective

assistance of counsel will fail if that defendant fails to establish resulting prejudice.

Commonwealth v. Neal, 713 A.2d 657,662 (Pa. Super. 1998). The defendant must demonstrate

that ineffective assistance of counsel so undermined the truth determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth v. Whitney, 708 A.2d

472,475 (Pa. 1998).

Defendant in the instant case contends trial counsel was ineffective for failing to adopt or

amend Defendant's pro se motions, including a motion to suppress evidence, and for failing to

challenge alleged violations ofthe Wiretap Act. However, on May 14,2013, Defendant

appeared before the Court to enter into a negotiated guilty plea on the charged criminal offenses.

Prior to appearing before the Court for the guilty plea, Defendant reviewed with his attorney and

signed a seven-page Guilty Plea Colloquy and Post-Sentence Rights Form containing a thorough

list of Defendant's pre-trial, trial, and post-sentence rights. (N.T. at 5). Later, during the guilty

plea proceeding, Defendant stated to the Court that he had reviewed all of his rights with trial

counsel and he understood all rights contained in the form. Id On Question #23 of the colloquy,

Defendant was asked whether he understood that ifhe filed "any pre-trial motions (such as a

suppression motion), that you are giving up your right to be heard on them by pleading guilty?"

See Guilty Plea Colloquy and Post-Sentence Rights Form. Defendant replied "Yes." Id

Once a defendant has entered a guilty plea, it is presumed that he was aware of his actions

and the burden of demonstrating involuntariness is upon him. Commonwealth v. McCauley, 797

7
 Circulated 12/04/2014 03:27 PM

A.2d 920, 922 (Pa. Super. 2001). A guilty plea is an acknowledgment by a defendant that he

participated in the charged offense. Commonwealth v. Zorn, 580 A.2d 8, 9 (Pa. Super. 1990).

In order to withdraw a guilty plea under the PCRA, a defendant must show that

ineffective assistance of counsel caused the petitioner to enter an involuntary plea of guilty.

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006). Furthermore, to prove

prejudice, appellant must prove "he would not have pled guilty and would have achieved a better

outcome at trial." Fears, 86 A.3d at 807 (quoting Commonwealth v. Mallory, 941 A.2d 686, 703

(Pa. 2008)) (internal quotation marks omitted).

As the Supreme Court of Pennsylvania recently noted in Commonwealth v. Fears:

[a]llegations of ineffectiveness in connection with the entry of a guilty plea will serve
as the basis for relief only if the ineffectiveness caused appellant to enter an
involuntary or unknowing plea. In determining whether a guilty plea was entered
knowingly and intelligently, a reviewing court must review all ofthe circumstances
surrounding the entry ofthat plea.

Fears, 86 A.3d at 806-07 (quoting Commonwealth v. Allen, 732 A.2d 582, 587 (Pa. 1999))

(internal quotation marks omitted). The bottom line inquiry is whether the defendant understood

what he was doing when he entered the guilty plea. Commonwealth v. Blackwell, 647 A.2d 915,

922 (Pa. Super. 1994) overruled on other grounds, Commonwealth v. Taylor, 65 A.3d 462, 467

n.4 (Pa. Super. 2013).

When determining whether a defendant has entered into a guilty plea knowingly,

voluntarily and intelligently, the Court should consider the oral and written plea colloquy and off-

the-record communications between the defendant and counsel. Commonwealth v. Allen, 732

A.2d 582, 588-89 (Pa. 1999). During a guilty plea, the court must conduct an inquiry with a

defendant on the record which addresses the following: (1) does the defendant understand the

8
 ,,~ . Circulated 12/04/2014 03:27 PM

nature of the charges; (2) is there a factual basis for the plea; (3) does the defendant understand

his right to a jury trial; (4) does the defendant understand he is presumed innocent until proven

guilty; (5) is the defendant aware of the permissible range of sentences; and (6) is the defendant

aware the judge is not bound by the terms of any plea agreement. Commonwealth v. Muhammad,

794 A.2d 378, 383 (Pa. Super. 2002); Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa. Super.

1998); Pa. R. Crim. P. 590 Comment. The express purpose for conducting this colloquy is to

ensure a defendant understands the nature of the charges to which he is pleading guilty and the

rights he is waiving by pleading guilty. Commonwealth v. Carter, 656 A.2d 463,465 (Pa. 1995).

The questioning of a defendant may be conducted by the judge, an attorney for either

party, or by written colloquy. Commonwealth v. Harris, 589 A.2d 264,265 (Pa. Super. 1991). If

the written colloquy is used, it must be completed and signed by the defendant and made part of

the record. It must also be supplemented by some oral explanation. Id

A defendant has the duty to truthfully answer all questions at the time of the guilty plea.

Commonwealth v. Vesay, 464 A.2d 1363, 1368 (Pa. Super. 1983). Consistent with this principle,

defendants are bound by the statements they make during their plea colloquy, and may not assert

grounds for withdrawing the plea that contradict statements made when they pleaded guilty.

Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. Super. 1999); Commonwealth v. Barnes, 687

A.2d 1163, 1167 (pa. Super. 1996).

As the record clearly establishes, Defendant entered into a knowing, intelligent and

voluntary guilty plea, at which time he clearly acknowledged he was giving up his right to litigate

any pretrial motions. During the proceeding, the trial court specifically advised Defendant that

he did not have to plead guilty, but he had the right to plead not guilty and proceed to trial. (N.T.

9
 Circulated 12/04/2014 03:27 PM

at 3). The Court infonned Defendant that if the case proceeded to trial the Commonwealth

would have the burden of proving his guilt beyond a reasonable doubt to the unanimous

satisfaction of 12 jurors. Id at 3-4. Furthennore, the Court made very clear to Defendant that by

pleading guilty he was waiving those rights, and the Court would find him guilty on his plea

alone. Id at 4. Defendant stated he understood those rights and further acknowledged he was

waiving those rights. Id When asked whose decision it was for him to plead guilty, Defendant

stated "Mine." Id at 5. When asked whether he was forced or threatened in any way to get him

to plead guilty, Defendant replied "No, Your Honor." Id

Prior to this on-the-record colloquy conducted by the Court, Defendant reviewed with his

attorney and signed a seven-page Guilty Plea Colloquy and Post-Sentence Rights Fonn,

containing a thorough list of Defendant's pre-trial, trial, and post-sentence rights. (N.T. at 5).

Included on this colloquy fonn was a question which asked Defendant whether he had sufficient

time to review the infonnation contained therein with his attorney. See Guilty Plea Colloquy and

Post-Sentence Rights Fonn at Question 76. Defendant replied "Yes." Id Defendant was asked

whether his attorney explained all of the rights on the fonn so he understood all his rights, and

Defendant replied "Yes." Id at Question 77. When asked whether he still wished to plead guilty

after reviewing all infonnation on the colloquy fonn, Defendant replied "Yes." Id at Question

78. Defendant further acknowledged he understood all of the rights contained therein during the

guilty plea proceeding, when asked by the Court. (N.T. at 5).

Thereafter, Defendant admitted to the Court that he did commit the criminal offenses as

charged. (N.T. at 4-5). When asked by the Court whether there was anything he wanted to say to

help decide whether to accept the guilty plea, Defendant stated "No. I'm all right. Thank you."

10
 Circulated 12/04/2014 03:27 PM

Id. at 7. When asked whether he understood he was going to state prison, Defendant replied

"Yeah." Id. When asked whether he had been through this before, Defendant acknowledged that

he had and he was getting tired of it. Id. at 8. Additionally, defense counsel stated that he had

been representing Defendant on these charges since the preliminary hearing, Defendant had an

opportunity to view testimony from the undercover officer at the preliminary hearing, counsel

filed for and received all discovery; which included incriminating evidence against Defendant,

counsel reviewed evidence with Defendant, counsel reviewed possible defenses with Defendant,

and Defendant was making a knowing and voluntary decision to plead guilty. Id. at 6.

Moreover, regarding Defendant's claim that trial counsel provided ineffective assistance

of counsel for not adopting or amending unidentified pro se motions, where a defendant is

represented by counsel;there is no right to hybrid representation and no right to file pro se

motions. Commonwealth v. Nischan, 928 A.2d 349,355 (Pa. Super. 2007). Thus, when a

defendant represented by counsel does file a pro se motion, such motions are deemed a "nullity,

having no legal effect." Id. (citing Commonwealth v. Piscanio, 608 A.2d 1027, 1029 n. 3 (Pa.

1992)). In the present case, Defendant was represented by counsel when he filed his pro se

motions. Therefore, Defendant did not have a right to file such motions, the motions did not

have any legal effect, and trial counsel was not required to adopt or amend those pro se filings.

Furthennore, trial counsel did not provide ineffective assistance of counsel by declining

to file separate motions on Defendant's behalf. In his Omnibus Pretrial Motion and Motion to

Quash Infonnation, Defendant requested that the evidence of drugs be suppressed or the

Infonnation quashed in part because the seal used by the Magisterial District Court in issuing the

Criminal Complaint and Affidavit of Probable Cause was invalid. However, the record clearly

11
 1. Circulated 12/04/2014 03:27 PM

establishes that this claim is wholly frivolous. As shown in Exhibit "c" of the No-Merit Letter

prepared by Defendant's PCRA counsel, both documents were signed by Magisterial District

Judge Scott Albert, and both were stamped with a Magisterial District Judge seal. See Finley

Letter, Exhibit "c." Both the Criminal Complaint and Affidavit of Probable Cause met the

requirements as set forth in Pa. R. Crim. P. 504. Furthermore, assuming arguendo, some portion

of one of these documents was invalid, Pa. R. Crim. P. 109 provides as follows:

[a] defendant shall not be discharged nor shall a case be dismissed because of a
defect in the form or content of a complaint, citation, sUmnlons, or warrant, or a
defect in the procedures of these rules, unless the defendant raises the defect
before ... the conclusion of the preliminary hearing in a court case, and the defect is
prejudicial to the rights of the defendant.

Pa. R. Crim. P. 109.

To succeed on a claim under the PCRA, a defendant must "plea and prove" a valid claim

by a preponderance of the evidence. 42 Pa. C.S.A. § 9543. In the case sub judice, this claim was

not adopted or advanced by trial counsel in the trial court because counsel rightfully viewed the

basis for suppression as frivolous. "The failure to file a suppression motion under some

circumstances may be evidence of ineffective assistance of counsel. However, if the grounds

underpinning that motion are without merit, counsel will not be deemed ineffective for failing to

so move." Commonwealth v. Metzger, 441 A.2d 1225, 1228 (Pa. Super. 1981); see also

Commonwealth v. Graves, 463 A.2d 467, 471 (Pa. Super. 1983) ("Counsel cannot be deemed

ineffective for failing to file a frivolous motion ... ").

Defendant further alleges trial counsel was ineffective for not challenging a violation of

the Pennsylvania Wiretap Act. However, this allegation is also without merit. The Wiretap Act

declares it a felony of the third degree when a person "intentionally intercepts, endeavors to

12
 Circulated 12/04/2014 03:27 PM

intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic

or oral communication." 18 Pa. C.S.A. § 5703(1). This broad prohibition carries a notable

exception for law enforcement officials investigating suspected criminal activity, where one party

to the interception consents and the interception is authorized by a designated attorney-authority

for the Commonwealth. 18 Pa. C.S.A. § 5704(2)(ii). To make a claim for an unlawfully

intercepted communication, a party must be an "aggrieved person" under the Wiretap Act, which

is defined as "[a] person who was a party to any intercepted wire, electronic or oral

communication or a person against whom the interception was directed." 18 Pa. C.S.A. § 5702.

In the instant case, Officer Robert Whiteford of the Lancaster City Bureau of Police was

operating as an undercover police officer during the drug transaction which resulted in

Defendant's arrest. See Finley Letter, Exhibit "A." According to a police report prepared by

Officer Whiteford, the officer was equipped with a wire transmitter which monitored and

recorded the officer's conversations. Id. During the course of this investigation, Officer

Whiteford made contact with an individual known as David Choquette Jr. ("Choquette"), and the

officer gave Choquette a cell phone in order to set up a drug transaction. Id Choquette used the

cell phone to contact Defendant, at which time Choquette's statements during the telephone

conversation were recorded by Officer Whiteford's wire transmitter. Id However, Defendant's

statements to Choquette during the cell phone conversation were not intercepted. Id

Thereafter, a drug transaction was arranged and carried out between Choquette and

Defendant, with Officer Whiteford and other officers conducting surveillance. See Finley Letter,

Exhibit "A." No communication of Defendant, electronic or oral, was intercepted at any point

during the transaction. Id In fact, Defendant acknowledged as such in Exhibit "F" of his April

21, 2014 Memorandum!Amended Petition, where the Memorandum of Interception involving

13
 Circulated 12/04/2014 03:27 PM

Officer Whiteford and Choquette clearly shows Defendant's communications were not

intercepted. See Defendant's April 21, 2014 Memorandum/Amended Petition, Exhibit "F."

Because Defendant is not an "aggrieved person" within the meaning of the Wiretap Act,

he cannot claim any of its protections. Further, because none of Defendant's statements were

intercepted, there is an absence of particular evidence that could have been suppressed.

Therefore, a motion to suppress would have been patently frivolous and no prejudice could

possibly result from the failure to pursue such a motion. Consequently, trial counsel could not be

deemed ineffective for failing to seek suppression on this ground and Defendant's claim of

ineffectiveness must fail. See Commonwealth v. Metzger; Commonwealth v. Graves, supra. IS

B. Whether the trial court abused its discretion by not conducting a hearing on
Defendant's "Motion to Remove Counsel."

In his fourth allegation, Defendant claims the trial court abused its discretion when it did

not conduct a full and fair evidentiary hearing on his pro se motion to remove counsel. It is well-

established that an issue that has been waived through failure to raise it in the trial court or on

direct appeal cannot be addressed for the first time in a PCRA petition. 42 Pa. C.S.A. § 9544(b).

Moreover, in an appeal from a denial ofPCRA relief, an issue is waived ifit is not raised in the

original or amended PCRA petition. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).

IS In previous filings, Defendant contended that trial counsel was ineffective for failing to share
discovery with Defendant. However, Defendant's allegations were fatally undercut by his subsequent
admission that shortly after December 4,2012, he did in fact receive discovery from his girlfriend that
had been provided by trial counsel. See "In Corporated in Reference with PCRA Petition," dated May
15,2014. Moreover, in his Amended Ineffective Assistance of Counsel Memorandum of Law filed on
April 21, 2014, Defendant included Lancaster City Bureau of Police electronic surveillance interception
documents as Exhibits "E" and "F", thus evidencing Defendant's receipt of said documents in discovery.
Defendant also previously claimed in various PCRA filings that his guilty plea was not knowing,
intelligent or voluntary. However, as the record cited in this Opinion clearly illustrates, Defendant's
guilty plea was knowing, intelligent and voluntary.

14
 Circulated 12/04/2014 03:27 PM

In the present case, Defendant first waived review of this challenge by pleading guilty and

failing to raise this issue during the guilty plea hearing. On April 30, 2013, Defendant filed apro

se "Motion to dismiss counsel and appoint new counsel." On May 14,2013, just fourteen days

later, Defendant appeared before the Court to enter a guilty plea on said charges. Despite

repeated opportunities, at no time during the guilty plea hearing did Defendant make reference to

the motion to appoint new counsel he had filed, nor did Defendant express any dissatisfaction to

the Court about his trial counsel. Therefore, Defendant waived the right to challenge anything

but the legality of his sentence and the validity of his plea on direct appeal. See Commonwealth

v. Jones, 929 A.2d 205, 212 CPa. 2007). This specific challenge was again waived when

Defendant failed to raise the issue on direct appeal. Finally, Defendant waived consideration of

this issue by failing to include it in his original or any of his amended PCRA Petitions. 16

Assuming arguendo, Defendant has not waived this issue, Defendant in his motion was

requesting a change of counsel. A court's obligation when a defendant requests a change of

counsel is quite distinct from when a defendant requests a waiver of counsel. When a defendant

wishes to waive his right to counsel and proceed pro se, a court must conduct an on-the-record

16 Defendant first raised this claim in his Objection to the dismissal, which was filed on June 9,
2014, in response to the Rule 907 Notice stating that Defendant's PCRA Motion was frivolous and would
be dismissed without a hearing. However, a defendant may only address new issues following the PCRA
court's Notice of Dismissal by requesting leave to amend his PCRA Petition. See Commonwealth v.
Rykard, 55 A.3d 1177, 1192 (Pa. Super. 2012) appeal denied, 64 A.3d 631 (Pa. 2013). The PCRA court
is not required to address new claims raised in a response when there has been no request for leave to
amend the Petition. Id. Moreover, even when a request for leave to amend has been raised, the
circumstances are heavily in favor of denial of that request after a 907 Notice of Dismissal has been
issued and a full independent investigation has been undertaken. Id. Furthermore, in Commonwealth v.
Baumhammers, 92 A.3d 708, 730 (Pa. 2014), the Supreme Court of Pennsylvania recently held that
although the trial court may grant leave to amend a PCRA petition at any time, leave to amend must be
sought and obtained; and hence, amendments are not "self-authorizing." Id. Because the court retains
discretion on whether to grant a motion to amend a PCRA petition, "[i]t follows that petitioners may not
automatically 'amend' their PCRA petitions via responsive pleadings." Id.

15
 Circulated 12/04/2014 03:27 PM

colloquy in order to ascertain whether the waiver is knowing, intelligent, and voluntary.

Commonwealth v. Patterson, 931 A.2d 710, 715 CPa. Super. 2007). It is reversible error for a

court to fail to conduct this colloquy before allowing a defendant to proceed pro se. Id When a

defendant requests a change of counsel, the matter falls within the sound discretion of the trial

court. Commonwealth v. Basemore, 582 A.2d 861, 865 CPa. 1990). While a defendant generally

has a right to counsel of his choosing, such a right is not afforded to defendants who receive

court-appointed counsel at the expense of the public. Commonwealth v. Rucker, 761 A.2d 541,

542 n. 1 CPa. 2000).

In the present case, because Defendant's pro se motion requested a change of counsel

rather than a waiver of counsel, an on-the-record colloquy by the court was not required.

Furthermore, because Defendant's counsel was appointed by the court, Defendant was not

entitled to counsel of his choice. Consequently, the Court was not required to act on Defendant's

pro se motion, particularly where Defendant never brought his motion to the attention of the

Court at the time of the guilty plea.

In conclusion, Defendant faced overwhelming evidence implicating him in the crimes for

which he was charged, and he did not have any viable defenses. Moreover, the issues raised in

his pro se Omnibus Pretrial motion and Motion to Quash Information were without merit.

Therefore, in order to minimize his jail sentence, trial counsel advised Defendant to accept the

Commonwealth's plea offer. During the guilty plea hearing that followed, Defendant never

objected to the continued representation of his trial counsel, nor did he address with the Court the

existence of his pro se motion for new counsel. Rather, Defendant made the decision to enter a

knowing, intelligent and voluntary guilty plea. Therefore, Defendant's appeal should be denied.

16
 Circulated 12/04/2014 03:27 PM

BY THE COURT:

DONALD R. TOTARO, JUDGE

t-
r--..J
~ = ,....-
z ' .J
r
n ..l:"""

:t> ~
c::
t·"
::::0
en (7) .....,..
--I
I
-'~ ..
fTI 0
;0 Q;)
IJ
n :l::::. (")
0 :::g 0
c:: c:
z :::0
--I
-j
:< (J)
-.J
i3?

17