J-S57041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DANNY SILVA, :
:
Appellant : No. 3701 EDA 2016
Appeal from the PCRA Order November 18, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0008101-2009
BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 27, 2017
Danny Silva (“Silva”), pro se, appeals from the Order dismissing his
first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
In its Opinion, the PCRA court set forth the relevant factual and
procedural background, which we adopt herein for the purpose of this
appeal. See PCRA Court Opinion, 3/28/17, at 1-2.
On appeal, Silva raises the following issues for our review:
1. Whether the PCRA court err[e]d in dismissing [Silva’s] PCRA
[Petition] without a[n] evidentiary hearing in light of his
[n]ewly[-d]iscovered evidence?
2. Whether [Silva] suffered ineffective assistance of counsel
where prior plea counsel failed to conduct any form of pretrial
investigation prior to STRONGLY ADVISING [Silva] to enter
such a plea of guilty where the evidence clearly demonstrates
[Silva’s] innocence?
1
See 42 Pa.C.S.A. §§ 9541-9546.
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3. Whether [Silva] suffered layered ineffective assistance of
counsel where court-appointed PCRA counsel failed to conduct
any form of interview of [Silva’s] witnesses[,] as proffered in
[Silva’s] PCRA [Petition,] to ascertain[] the circumstances of
their initial statements?
Brief for Appellant at 4 (unnumbered, emphasis in original).2
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. We grant great deference to
the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Further, where
the petitioner raises questions of law, our standard of review is
de novo and our scope of review is plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
In his first issue, Silva contends that the affidavit of Fabian Pabon
(“Pabon”) constitutes newly-discovered evidence, which satisfies the PCRA’s
timeliness exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii). Brief for
Appellant at 7-8 (unnumbered). Silva claims that the PCRA court erred by
dismissing his Petition without conducting an evidentiary hearing to assess
2 The Argument section of Silva’s brief fails to comply with the requirements
of Pa.R.A.P. 2119(a), which provides that “the argument shall be divided
into as many parts as there are questions to be argued; and shall have at
the head of each part--in distinctive type or in type distinctively displayed--
the particular point treated therein ….”
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the credibility and significance of Pabon’s recantation of his statement to
police. Id. at 8.
In its Opinion, the PCRA court addressed Silva’s first issue, set forth
the relevant law, and determined that the court lacked jurisdiction because
Silva had failed to establish the newly-discovered evidence exception to the
PCRA’s timeliness requirements. See PCRA Court Opinion, 3/28/17, at 3-6.
We agree with the reasoning of the PCRA court, which is supported by
evidence of record and is free of legal error, and affirm on this basis as to
Silva’s first issue. See id.
In his second issue, Silva contends that his plea counsel, Fortunado
Perri, Esquire (“Attorney Perri”), induced Silva to enter a guilty plea without
conducting any form of pretrial investigation, despite Attorney Perri’s access
to (1) investigative reports that challenged Pabon’s account of events; and
(2) “[Silva’s] alibi that entailed surveillance footage during the time of the
decedent being shot and killed.” Brief for Appellant at 10 (unnumbered).
Silva further asserts that Attorney Perri’s failure to investigate “implicates
trial strategy prior to inducing [Silva] to enter an unknowing guilty plea.”
Id. at 11. Silva also claims that Attorney Perri was ineffective for failing to
perfect a direct appeal, as evidenced by the affidavit of his mother, Dolores
Rios (“Rios”). Id. Silva contends that Rios’s affidavit states that, when she
inquired as to the status of Silva’s appeal for sentence reduction, Attorney
Perri told her that it was too late to file an appeal, as the 30-day period in
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which to file an appeal had expired. Id. at 12. Silva asserts that, even if
the record is insufficient to determine whether he requested that an appeal
be filed, Attorney Perri may still be deemed ineffective for failing to
adequately appraise Silva of his appellate rights. Id.
In its Opinion, the PCRA court addressed Silva’s second issue, set forth
the relevant law, and determined that the court lacked jurisdiction because
Silva had failed to specify how his ineffectiveness claim satisfied any of the
PCRA’s timeliness exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
See PCRA Court Opinion, 3/28/17, at 6-7. We agree with the reasoning of
the PCRA court, which is free of legal error, and affirm on this basis as to
Silva’s second issue. See id.
In his final claim, Silva contends that, upon receiving the affidavits of
Pabon and Rios, he forwarded them to his court-appointed PCRA counsel,
Lee Mandell, Esquire (“Attorney Mandell”), but received no response or
acknowledgment from Attorney Mandell. Brief for Appellant at 7-8
(unnumbered). Silva asserts that the PCRA court erred by “adopting
[Attorney] Mandell’s assertion of a no-merit letter without [Attorney]
Mandell[] conducting the barest of investigation[,] i.e. investigating []
Pabon.” Id. at 9. Silva also claims that Rios’s affidavit establishes Attorney
Perri’s ineffectiveness in failing to file a direct appeal. Id. at 11-12.
In its Opinion, the PCRA court addressed Silva’s third issue, set forth
the relevant law, and determined that the court lacked jurisdiction because
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Silva had failed to specify how his layered ineffectiveness claim satisfied any
of the PCRA’s timeliness exceptions set forth at 42 Pa.C.S.A.
§ 9545(b)(1)(i)-(iii). See PCRA Court Opinion, 3/28/17, at 7. The PCRA
court further determined that Silva had failed to raise his layered
ineffectiveness claim in response to the court’s Pa.R.Crim.P. 907 Notice of its
intent to dismiss Silva’s Petition. Id. We agree with the reasoning of the
PCRA court, which is free of legal error, and affirm on this basis as to Silva’s
third issue. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2017
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OPINION
PROCEDURAL HISTORY:
On June 21, 2010, Danny ilva (hereafter, petitioner) entered into a negotiated guilty plea' to
charges of murder of the third deg ee (H-3) and possessing instruments of crime (Piq (M-1).2 That
same day, consistent with the ncga['ations, petitioner wa.s sentenced to a term of not less than 18
years nor more than 36 years in pri on.3 Notes of Testimony (N.T.) 6/21/10 at 30. Petitioner did
not file post-sentence motions or notice of appeal.
On January 6, 2015, pctitio er filed an untimely PCRA petition, prose. On June 10, 2015,
Lee Mandell. Esquire was appoint d to represent petitioner on collateral attack," On June 3, 2016,
this Court issued an Order instruc g PCRA counsel to submit a filing by September 2, 2016.5 On
1 A I the time of his guilty plea, petitioner as represented by Fortunato Pcm, Esquire.
2 18 Pa.C.S. §§ 2502(c) and 907(a}, respec vdy.
l As to the charge of third.degree murder, petitioner was sentenced co not less than 18 years nor more than 36 years in
prison, with credit for time served. As to e charge of PIC, petitioner W:IS sentenced to a concurrent term of not less
than one yeir nor more than five years in rison. N.T.