J-S34022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERTO MONTALVO
Appellant No. 1652 MDA 2014
Appeal from the PCRA Order August 28, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001253-2011
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 09, 2015
Roberto Montalvo appeals from the order entered on August 28, 2014,
in the Court of Common Pleas of Lebanon County denying him relief on his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §
9541 et seq. In his underlying trial, Montalvo was convicted of a variety of
crimes associated with the sexual assault of a minor as well as a variety of
drug charges related to the police having discovered 51 grams of cocaine
and 28 grams of marijuana hidden in Montalvo’s apartment. Montalvo
received an aggregate sentence of ten years, three months to thirty-two
years’ incarceration. In this timely appeal, Montalvo raises three issues,
J-S34022-15
none of which is meritorious.1 We affirm based upon the sound analysis of
the PCRA court’s 1925(a) opinion, dated November 4, 2014.
Our standard of review for this matter is well settled.
This Court's standard of review regarding an order granting or
denying a petition under the PCRA is whether the determination
of the PCRA court is supported by the evidence of record and is
free of legal error. Commonwealth v. Ragan, 592 Pa. 217, 923
A.2d 1169, 1170 (2007). The PCRA court's findings will not be
disturbed unless there is no support for the findings in the
certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166
(Pa.Super.2001). “However, this Court applies a de novo
standard of review to the PCRA court's legal conclusions.”
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259
(2011).
Com. v. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015)
The facts and procedural history of this matter are thoroughly
recounted in the PCRA court’s opinion, and do not need to be restated
herein.2 Montalvo has raised three issues in this appeal. They are:
1) Was trial counsel’s failure to (A) interview proffered character
witnesses and (B) eyewitnesses, (C) to [sic] seek to impeach the
complainant, or (D) to [sic] file a pre-trial motion “ineffective
assistance” such that the trial court erred in failing to make this
finding?
2) Did the Court abuse its discretion in finding that the plea offer
was properly communicated to [Montalvo]?
3) Was [Montalvo’s] right to trial by jury compromised under
these circumstances?
____________________________________________
1
Montalvo’s first issue contained four subparts.
2
Montalvo was denied relief in his direct appeal at Commonwealth v.
Montalvo, 82 A.3d 467 (Pa. Super. 2013) (unpublished memorandum).
-2-
J-S34022-15
Montalvo’s Brief at 5.
As noted above, the PCRA court has thoroughly addressed all the
properly preserved claims in its Pa.R.A.P. 1925(a) opinion. We rely upon
that analysis in denying Montalvo relief.
We write separately to note that two of the four sub-issues raised in
this appeal were not in the amended PCRA petition filed by counsel nor were
they argued before the PCRA court at the August 28, 2014 PCRA hearing.
The two issues are 1(B) and (D), as listed in the Appellant’s Brief, supra.
Because neither claim was presented to or developed before the PCRA court,
they have been waived.3 See Commonwealth v. Knox, 105 A.3d 1194,
1199 (Pa. 2014) (Issues not raised before the lower court are waived and
cannot be raised for the time on appeal.)
The parties are directed to attach a copy of the PCRA court’s
November 4, 2014 Pa.R.A.P. 1925(a) opinion in the event of further
proceedings.
____________________________________________
3
At the beginning of the PCRA hearing, Judge Bradford H. Charles asked
counsel to identify all the issues Montalvo wished to pursue. See N.T. PCRA
Hearing, 8/28/2014, at 4. As noted, these issues were not identified or
argued.
-3-
J-S34022-15
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
-4-
Circulated 08/14/2015 03:37 PM
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