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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ERIK LOPEZ TORRALBA
Appellant No. 2434 EDA 2018
Appeal from the PCRA Order Dated June 8, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-3427-2015
BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JUNE 25, 2019
Appellant Erik Lopez Torralba pro se appeals from the June 8, 2018
order of the Court of Common Pleas of Montgomery County (“PCRA court”),
which denied, without an evidentiary hearing, his request for collateral relief
under the Post Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-46.
Upon review, we vacate and remand.
The facts and procedural history underlying this appeal are undisputed.
As recounted by a prior panel of this Court on direct review:
Detective James Wood testified that, on April 14, 2015, he was
participating in the investigation of a large-scale heroin trafficking
operation in Norristown, Montgomery County, Pennsylvania. At
approximately 1:10 p.m. on that date, Detective Wood was sitting
in an unmarked car in the vicinity of Marshall and Arch Streets,
waiting for uniformed officers to make a traffic stop of a 2005
Acura suspected to be transporting a large quantity of heroin.
Before the traffic stop could take place, the Acura pulled into a
parking spot on Arch Street. There were three people inside the
vehicle: the driver—subsequently identified as [Appellant]—and
two passengers.
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Accompanied by two uniformed officers, Detective Wood—who
was in plain clothes with a bullet-proof vest with the word “Police”
written on the front—approached the Acura. While the uniformed
officers dealt with the passengers, Detective Wood went to the
driver’s side of the Acura, where he encountered [Appellant]. The
detective identified himself, informed [Appellant] that he was
conducting a drug investigation, and directed [Appellant] to get
out of the Acura, following which the detective performed a “pat
down” of [Appellant] for officer safety. The “pat down” did not
lead to the discovery of any weapons. Detective Wood testified
that, although he was armed himself, his gun was concealed inside
his police vest. The detective testified that he did not display his
weapon at any point during his entire encounter with [Appellant].
Detective Wood testified that his conversation with [Appellant] on
Arch Street was conducted in a calm manner, with no threats
made and no raised voices. The detective testified that he did not
put his hands on [Appellant] apart from the “pat down.” The
detective testified that, during the course of this conversation, he
asked [Appellant] for permission to search the Acura, and that
[Appellant] verbally consented to the search.
Detective Wood, however, did not search the Acura at this point,
but instead directed that [Appellant] be placed inside a marked
police vehicle and transported to the Norristown Police Station.
The detective himself then drove [Appellant’s] Acura to the police
station, a trip of approximately one minute.
Arriving at the police station at approximately 1:25 p.m.,
Detective Wood retrieved a pre-printed “consent to search form”
from another officer. The detective then directed [Appellant] to
sit in the front passenger seat of the Acura while the detective sat
in the driver’s seat. Detective Wood testified that he did this so
that [Appellant] would not feel intimidated by all of the other
officers moving around the station. Inside the Acura, Detective
Wood asked [Appellant] if he would be willing to provide a written
consent to searches of his car, residence and cellular telephone.
[Appellant] agreed to provide a written consent to search.
Detective Wood handwrote on the form specific identifying
information for [Appellant’s] Acura, his address, and his cellular
telephone. The detective did not testify as to his asking
[Appellant] for any identifying information concerning the Acura
(i.e., the VIN number or registration number), and plainly had no
reason to do so, as the license number and VIN number were
readily apparent on the vehicle itself. In regard to [Appellant’s]
phone, the detective testified that he had noted the presence of
an iPhone on the center console of the vehicle and had asked
[Appellant] if it was his. [Appellant] had replied that it was. The
[Appellant] also provided Detective Wood with his address.
Detective Wood testified that—prior to having [Appellant] sign the
consent to search form—he read the form aloud to [Appellant] and
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also asked [Appellant] to read it himself. On its face, the form
stated in pre-printed language:
I understand that I have the right to refuse the
consent to search described above and the right to
refuse to sign this form.
I further state that no promises, threats, force,
physical or mental coercion of any kind whatsoever
have been used against me to get me to consent to
the search described above or to sign this form.
Detective Wood testified that he verbally informed [Appellant]
that he was free to revoke his consent to search. Pressed on this
issue in cross-examination by [defense counsel], Detective Wood
testified: “I told him that he could stop the search at any time.”
[The trial court] fully credited Detective Wood’s testimony in its
entirety.
[Appellant] signed the “consent to search” form, which was
entered into evidence as CS-1. The detective testified that the
handwritten identification information for the Acura, [Appellant’s]
address, and the cell phone [were] all written on the form at the
time [Appellant] signed it[.]
Detective Wood testified that his entire discussion with [Appellant]
inside the Acura was conducted calmly, with no threats, raised
voices, or weapons displayed, and that [Appellant] was not
handcuffed during the discussion.
After [Appellant] signed the “consent to search” form, [Appellant]
and Detective Wood exited the Acura. With [Appellant] standing
to the side, Detective Wood and another officer conducted a
fifteen minute search of the Acura, discovering nothing illegal at
that time.
Retaining [Appellant’s] cellular telephone for a subsequent search,
Detective Wood then gave [Appellant] the keys to his Acura and
asked him to drive to his residence for the search to which
[Appellant] had consented. [Appellant] agreed, and Detective
Wood and other officers followed [Appellant] to his home in
separate vehicles. After arriving at [Appellant’s] home, Detective
Wood and other officers searched the residence, ultimately
discovering a large amount of what [] transpired to be heroin. A
subsequent follow-up search of the Acura led to the discovery of
more heroin concealed in the vehicle.
Commonwealth v. Lopez-Torralba, No. 2769 EDA 2016, unpublished
memorandum at 2-4 (Pa. Super. filed July 3, 2017) (citing Trial Court Opinion,
12/15/16, at 4-8) (internal citations omitted). Appellant was charged with
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two counts of possession of heroin with intent to deliver (35 P.S. § 780-
113(a)(30)), two counts of conspiracy to possess heroin with intent to deliver
(18 Pa.C.S.A. § 903(a)(1)), and one count of possession of drug paraphernalia
(35 P.S. § 780-113(a)(32)). On February 26, 2016, Appellant filed an
omnibus pretrial motion, which included a motion to suppress the evidence
found in his vehicle, cellular telephone, and residence. On March 22, 2016,
the trial court conducted a suppression hearing, following which it denied
Appellant’s motion to suppress. On March 30, 2016, a jury convicted
Appellant on all charges. On August 4, 2016, the trial court sentenced
Appellant to an aggregate term of nine to eighteen years’ imprisonment. As
noted earlier, on July 3, 2017, a panel of this Court affirmed Appellant’s
judgment of sentence. Appellant did not file a petition for allowance of appeal
in our Supreme Court. As a result, Appellant’s judgment of sentence became
final on August 2, 2017.
On November 21, 2017, Appellant pro se filed the instant PCRA petition,
raising claims for ineffective assistance of trial counsel. The PCRA court
eventually appointed counsel, Attorney Robert Adshead, who then filed a 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)
and petitioned to withdraw from the case. The PCRA court granted counsel’s
petition on April 18, 2018. The PCRA court subsequently issued a Pa.R.Crim.P.
907 notice of its intent to dismiss the petition without a hearing. Appellant
filed a response to the PCRA court’s Rule 907 notice, raising an ineffectiveness
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claim against his PCRA counsel, Attorney Adshead. On June 8, 2018, the PCRA
court denied Appellant PCRA relief without a hearing. Appellant timely
appealed to this Court.
The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal. Appellant complied. On July 31, 2018,
Appellant pro se filed a Rule 1925(b) statement, raising the following issues,
as reproduced verbatim:
A. The PCRA Court abused its discretion in summarily
dismissing the instant Post-Conviction petition without a hearing
where Petitioner raised genuine issues of trial counsel’s
ineffectiveness which, if resolved in his favor, would clearly entitle
him to relief. It is axiomatic, our Appellate Courts have
admonished that the point in time at which a PCRA court may
determine that a Petitioner’s claims are meritless or frivolous is
“after the petitioner has been afforded a full and fair opportunity
to present those claims.” Id. Commonwealth v. Kaufmann,
592 A.2d 691, 695 (Pa. Super. 1991).
In the instant PCRA proceeding, where PCRA counsel
submitted a “no merit letter” and attached an “explanation letter”
from trial counsel purportedly addressing the claims of trial
counsel’s ineffectiveness raised in the initial-review post-
conviction petition, and trial counsel fails to address or proffer a
reasonable basis for his action or inaction alleged in the petition,
then the PCRA court [must] conduct an evidentiary hearing. See
Commonwealth v. Cousar, 154 A.2d 287, 297 (Pa. 2017)
(“where PCRA counsel attaches an ‘affidavit’ from trial counsel
that fails to proffer a ‘strategy’ pertaining to the claims of trial
counsel’s ineffectiveness raised in the Post-Conviction petition,
the PCRA court must conduct an evidentiary hearing to determine
whether counsel can proffer a trial strategy for the alleged
omissions”). Id.
Without granting Appellant meaningful procedural tools,
such as, PCRA discovery requested in his petition and an
evidentiary bearing to prove he is entitled to relief, the instant
PCRA proceeding was essentially delineated to nothing more than
a meaningless exercise with no chance of success.
B. Court Appointed PCRA Counsel, Robert Adshead, failed to
fulfill his duty once he accepted appointment to provide Appellant
meaningful assistance to afford him a full and fair opportunity to
prove the meritorious claims of trial counsel’s ineffective
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assistance raised for the first time in the instant initial-review
post-conviction petition. Appellant raised in his pro se post-
conviction petition genuine meritorious issues of trial counsel’s
ineffectiveness which were clearly supported by the record. Here,
it was impossible to discern whether a reasonable basis existed
for trial counsel’s omissions alleged in Appellant’s pro se petition.
It was improper for Attorney Adshead to divine alternative choices
or strategy trial counsel could of had when trial counsel had not
stated his reasons for the action or inaction. This is particularly
true where Attorney Adshead attached an “explanation letter”
from trial counsel to his “no merit letter” and trial counsel did not
even address the issues raised in tie PCRA petition. It is not
enough to take a cold record and submit a “no merit letter” and
speculate or state alternative choices counsel could have made.
C. The PCRA court erred in summarily dismissing the instant
petition without addressing Appellant’s specific discovery request
set forth in the petition in accordance with Pa.R.Crim.P.
902(A)(16) and (E)(1). The discovery request specifically sought
material evidence related to two of the claims raised, i.e.,
“exploitation of an unlawful arrest” and “statements and audio
phone recordings” between the confidential informant and
Commonwealth key witness, Gladiz Basurto Leal. Basurto Leal did
a one-on-one drug negotiation with the informant for the purchase
of one kilogram of heroin. This discovery material was relevant
to prove the “merits” and “prejudice” for counsel’s inexcusable
failure to file a motion for the identity of the informant. Moreover,
the informant’s statements and telephone recordings with Basurto
Leal may have possibly revealed core Brady material. It was
error for the PCRA court to summarily dismiss the instant petition
without addressing Appellant’s specific discovery request set forth
in his petition.
D. The PCRA court denied Appellant a fundamental fair
post–conviction process in violation of the Fourteenth Amendment
to the United States Constitution and Article I, Section 9 of the
Pennsylvania Constitution—where he was denied constitutionally
guaranteed effective assistance of counsel as he would have
enjoyed had he raised the instant claims of trial counsel’s
ineffective assistance on direct appeal. As the PCRA court is
aware, in accordance with the Pennsylvania Supreme Court’s
decision in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
2002), Appellant was required to defer raising claims of trial
counsel’s ineffective assistance until the filing of an initial-review
post-conviction proceeding. Thus, given this is the first
designated proceeding for raising trial counsel’s ineffective
assistance, the instant collateral proceeding is in many ways the
equivalent of Appellant’s direct appeal as to the ineffective
assistance of trial counsel claims. As such, Appellant is entitled to
the full procedural due process protections he would have been
guaranteed had he been permitted to raise the instant claims of
trial counsel’s ineffective assistance on direct appeal.
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The Superior Court’s decision in Finley and the
Pennsylvania Supreme Court’s decision in Turner pre-dated the
decision in Commonwealth v. Grant, supra, by 14 years and it
denies a Petitioner a fundamentally fair procedure to vindicate
meritorious claims of trial counsel’s ineffective assistance raised
for the first time in an initial-review collateral proceeding. Under
the rule-based right to counsel in a first PCRA proceeding, and the
Turner/Finley methodology, Attorney Adshead was permitted to
take a cold record and file a “no merit letter” and argue against
Appellant’s interest to support a request to withdraw. All too
often, PCRA court’s routinely mechanically defer to PCRA counsel’s
“no merit letter” and grant appointed counsel’s withdrawal
request, thus, leaving Appellant proceeding pro se before the
PCRA court and on appeal. The fundamentally unfair procedure
employed here makes the rule based right to appointed counsel
on a first PCRA petition and on appeal an illusion.
Appellant’s Rule 1925(b) Statement, 7/31/18 at 1-4 (sic). In response, the
PCRA court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant’s
assertions of error lacked merit.
On appeal,1 Appellant raises four issues for our review:
[I.] Did the post-conviction court abuse its discretion in summarily
dismissing Appellant’s petition without a hearing when there was
arguably meritorious issues of trial counsel’s ineffective assistance
on the face of the record?
[II.] Did court-appointed post-conviction counsel provide
meaningful assistance in filing a “no-merit letter” when there was
genuine issues of trial counsel’s ineffective assistance on the face
of the record, if proven, would clearly entitle Appellant to post-
conviction relief?
[III.] Did the post-conviction court err in summarily dismissing the
post-conviction relief act petition pursuant to counsel’s “no merit
letter” without determining whether the specific discovery request
set forth in the petition would give support to Appellant’s issues
of trial counsel’s ineffectiveness assistance?
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1“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
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[IV.] Did the post-conviction court deny Appellant a fundamentally
fair procedure to afford him an opportunity to prove the issues of
trial counsel’s ineffective assistance which were deferred from
direct review and designated to be raised for the first time in an
initial-review post-conviction relief action petition essentially
making it the equivalent of direct appeal as to the ineffective
assistance of trial counsel issues?
Appellant’s Brief at 4 (unnecessary capitalizations omitted) (sic).
Appellant essentially asserts six distinct issues, four of which relate to
ineffectiveness claims. Appellant argues that his trial counsel was ineffective
for: first, failing to challenge as illegal Appellant’s detention by the police
because the police allegedly lacked both reasonable suspicion and probable
cause and as a result, all evidence, including statements, obtained by the
police should have been suppressed as fruits of the poisonous tree; second,
failing to file motion to compel disclosure of the confidential informant’s
identity because the informant allegedly possessed information material and
favorable to Appellant’s case; third, failing to provide Appellant with adequate
and competent advice relating to a guilty plea offer that Appellant rejected;
and fourth, failing to object at the time of sentencing to the trial court’s alleged
error in not giving Appellant credit for time served while awaiting trial in this
case. Fifth, Appellant argues that his appointed PCRA counsel was ineffective
insofar as counsel failed to pursue the claims raised in his pro se PCRA petition
and as detailed above. Sixth, the PCRA court erred in failing to grant
Appellant’s discovery requests.
Instantly, given the complexity of the claims raised and the dearth of a
record below, we are unable to engage in any meaningful appellate review.
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Specifically, as Appellant notes, the PCRA court failed to conduct an
evidentiary hearing on Appellant’s ineffectiveness claims and render
necessary factual findings. We therefore cannot assess the merits of
Appellant’s claims or trial counsel’s tactical reasons for his trial decisions. As
a result, we must vacate the PCRA court’s order denying Appellant’s PCRA
petition and remand the matter to the PCRA court to conduct an evidentiary
hearing to address fully the claims identified above.2 If Appellant determines
other issues must be raised in response to the trial court’s decision, Appellant
shall be given the opportunity to amend his Rule 1925(b) statement, and
thereafter, the trial court shall supplement its decision to address these other
issues.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/19
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2 We express no opinion as to the merits of Appellant’s ineffectiveness claims.
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