Com. v. Rosa, E.

J-S53012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIKA ROSA                                 :
                                               :
                       Appellant               :   No. 941 EDA 2020

              Appeal from the PCRA Order Entered March 3, 2020
      In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-CR-0006544-2011


BEFORE:      SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                            FILED: MARCH 22, 2021

       Appellant, Erika Rosa, appeals from the March 3, 2020, order dismissing

her petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

       This Court set forth the following factual history on direct appeal:

              In December of 2010, the Thirty–Second Statewide
       Investigating Grand Jury began hearing evidence concerning a
       large scale heroin distribution ring operating in six counties within
       the      Commonwealth—Philadelphia,          Chester,     Delaware,
       Montgomery, Perry and Bucks. The Grand Jury issued three
       Presentments: Presentment No. 2, issued March 23, 2011[;]
       Presentment No. 8, issued June 21, 2011[;] and Presentment No.
       18, issued October 13, 201[1]. Those Presentments collectively
       recommended the Attorney General arrest and prosecute 31
       individuals, including [Appellant], for violations of the Controlled
       Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780–113(a),
       and other offenses under the Crimes Code. The Grand Jury

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S53012-20


       identified Fausto Ezequiel Valdez–Cordero, AKA Jose Morales, AKA
       “Prima,” AKA “Pepe,” AKA “Keka,” [(Valdez–Cordero)] as the head
       of this extensive heroin trafficking operation. The Grand Jury
       summarized the testimony as to [Appellant] as follows:
              Agent Riley interviewed [Appellant], who stated she
              was the girlfriend of [Valdez–Cordero]. She had been
              with Valdez–Cordero for eight (8) years. According to
              [Appellant], Valdez–Cordero had been selling heroin
              for the past five to six (5–6) years. [Appellant]
              admitted taking part in Valdez–Cordero’s heroin
              business by translating drug customers’ calls for
              Valdez–Cordero, a Spanish-speaking Dominican
              illegally residing in the United States. [Appellant]
              would ask the customers who they were, how much
              heroin they wanted to buy and where they needed the
              heroin delivered. [Appellant] also admitted to picking
              up drug money from customers.
       Presentment No. 8, pp. 2-3.
              At the time of her arrest, [Appellant] was charged with
       Possession with Intent to Deliver Heroin, Conspiracy to Delivery
       of Heroin, two counts of Corrupt Organizations and four counts of
       Criminal Use of a Communication Facility.[1] At the outset,
       [Appellant] agreed to fully cooperate with the investigating agents
       in identifying and arresting the others involved in this drug
       distribution ring and, initially, it appeared that she was in fact
       doing so. The extent of [Appellant’s] cooperation was set forth in
       Presentment No. 8 and was confirmed by Agent Riley at the time
       of sentencing. The Presentment states:
              According to Agent Riley, agents intercepted
              numerous telephone calls from “Jerry,” later identified
              as Gerald Felder. Felder is a mid-level dealer. Every
              few days, Felder would order between 50 and 100
              bundles of heroin. … 100 bundles, or 1,400 packets,
              equals ten (10) racks, or approximately 42 grams of
              heroin.   The cost for ten (10) racks would be
____________________________________________


1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. §§ 903, 911(b)(3,4), and 7512(a),
respectively.

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              approximately $6,000. Thus, every few days, Felder
              was distributing up to 1,400 packets through his
              street-level dealers, then using part of the proceeds
              to purchase more heroin, thereby repeating the cycle.
               On February 15, 2011, the date agents executed
              numerous     search    warrants,   [Appellant]   was
              interviewed by [agents of the Office of Attorney
              General, Bureau of Narcotics Investigation and Drug
              Control (“BNIDC”)].     [Appellant] admittedly was
              supposed to pick up $14,000 in drug money from
              Gerald Felder. [Appellant] cooperated with the agents
              and placed a recorded telephone call to Felder, in
              which Felder made arrangements with [Appellant] to
              turn over the money. At the drop-off location, agents
              arrested Felder and seized from him $15,600.
             As a result of [Appellant’s] perceived cooperation, the
       Commonwealth agreed to nol pros six counts of the criminal
       information and further agreed not to invoke applicable
       mandatory minimum sentencing provisions.

Commonwealth v. Rosa, 83 A.3d 1068, 2086 EDA 2012, at *1-2 (Pa. Super.

filed August 20, 2013) (unpublished memorandum) (citing Trial Court Opinion,

10/5/12, at 1-3).

       This Court set forth the following procedural history in its August 28,

2019 Judgment Order:

       On February 13, 2012, Appellant entered an open guilty plea to
       corrupt organizations, conspiracy, and criminal use of a
       communication facility.[2] The court sentenced her on June 18,
       2012, to an aggregate 13 to 26 years’ imprisonment, and this
       Court affirmed the judgment of sentence on August 20, 2013.
       See [Rosa, 2086 EDA 2012].


____________________________________________


2   18 Pa.C.S § 903(c) (as to 35 P.S.§ 780-113(a)(30)), 18 Pa.C.S.
§§ 911(b)(4), and 7512(a), respectively.

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       Appellant filed a timely, counseled PCRA petition on April 24,
       2014. The court subsequently let original PCRA counsel withdraw,
       appointed new PCRA counsel, and granted Appellant in forma
       pauperis status.      On December 30, 2014, counsel filed an
       amended petition. The court held a hearing on June 3, 2016[,]
       and denied relief on December 22, 2016. The court sent its order
       to counsel for the Commonwealth and to PCRA counsel, who was
       still counsel of record. On July 31, 2017, Appellant filed a pro se
       application for speedy disposition of her PCRA petition, which
       suggested she did not know the outcome of her petition. The
       court responded on August 15, 2017, informing Appellant that it
       had denied her petition on December 22, 2016, and sent a copy
       of that letter to PCRA counsel. Nothing in the record shows PCRA
       counsel contacted Appellant.       Appellant then filed pro se
       correspondence asserting PCRA counsel had abandoned her,
       seeking appointment of new counsel, and requesting a copy of the
       order denying her petition. The court did not respond.
       On March 1, 2018, Appellant filed a notice of appeal. This Court
       issued a rule to show cause why the appeal should not be
       dismissed as untimely. Appellant responded that she did not know
       the court had denied her petition until she received the court’s
       letter. On November 9, 2018, this Court discharged the rule and
       referred the issue to the merits panel.

Commonwealth v. Rosa, 221 A.3d 321, 2095 EDA 2018, at *1 (Pa. Super.

filed August 28, 2019) (non-precedential judgment order) (footnotes

omitted). On appeal, this Court found the record supported Appellant’s claim

of abandonment by counsel and held she had the right to counsel for her first

PCRA    petition   through   the   entire   appellate   process.    Id.   (citing

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en

banc)). This Court found that “under these circumstances, the best resolution

of the case is to vacate and remand for a full hearing per Commonwealth v.

Grazier, 552 Pa. 9, 713 A.2d 81 (1998).”         Rosa, 2095 EDA 2018 (non-

precedential judgment order at *2).

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      Pursuant to this Court’s instructions, the trial court appointed counsel to

represent Appellant and held a Grazier hearing on February 14, 2020. At the

hearing, Appellant informed the court that she wanted to proceed with

appointed counsel.

      Following remand, no additional claims were raised by Appellant, and

the PCRA court reinstated the December 22, 2016 order denying Appellant’s

PCRA petition on March 3, 2020. Appellant filed a timely appeal. The PCRA

Court directed Appellant to file a Statement of Matters Complained of on

Appeal by order dated April 6, 2020. Appellant filed her statement on April

28, 2020. On May 18, 2020, the PCRA court filed its opinion, in which it noted

that Appellant had not raised any new issues in the current appeal that were

not addressed in the court’s earlier PCRA opinion filed on April 11, 2019.

Therefore, the PCRA court attached the April opinion and noted Appellant’s

PCRA petition was denied for the reasons discussed therein.

      Appellant presents the following questions for our review:

      1. Did the trial court err in denying Appellant’s Post Conviction
         Relief Act claim that her guilty plea was unlawfully induced due
         to the ineffective assistance of counsel, given that her counsel
         was unprepared, and gave erroneous and factually insufficient
         information regarding potential outcome[s] of her guilty plea?

      2. Did the trial court err in denying Appellant’s Post Conviction
         Relief Act claim that her guilty plea was involuntary because
         the Commonwealth [breached] the plea agreement by playing
         a tape that inflamed the Judge to give a maximum sentence,
         rather than a mitigating sentence?

Appellant’s Brief at 4.



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      We apply the following standard and scope of review when reviewing

the propriety of a denial of a PCRA petition:

      “An appellate court reviews the PCRA court’s findings to see if they
      are supported by the record and free from legal error. The court’s
      scope of review is limited to the findings of the PCRA court viewed
      in the light most favorable to the prevailing party.”
      Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super.
      2009) (quoting Commonwealth v. Hammond, 953 A.2d 554,
      556 (Pa. Super. 2008)) (citation omitted). “Because most PCRA
      appeals involve questions of fact and law, we employ a mixed
      standard of review. We defer to the PCRA court’s factual findings
      and credibility determinations supported by the record.           In
      contrast, we review the PCRA court’s legal conclusions de novo.”
      Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa.
      Super. 2015) (citations omitted).

Commonwealth v. Sarvey, 199 A.3d 436, 445-446 (Pa. Super. 2018).

      In support of her first issue on appeal, Appellant argues that the PCRA

court erred when it found that her guilty plea was not unlawfully induced due

to the ineffectiveness of her counsel. Appellant’s Brief at 25. Specifically,

Appellant avers that counsel was unprepared and provided factually

insufficient information regarding the potential outcome of her plea. Id.

      When reviewing a claim of ineffective assistance of counsel, we apply

the following tenets and test:

      Counsel is presumed effective, and to rebut that presumption, the
      PCRA petitioner must demonstrate that counsel’s performance
      was deficient and that such deficiency prejudiced him.           In
      Pennsylvania, we have refined the Strickland [v. Washington,
      466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]
      performance and prejudice test into a three-part inquiry. Thus, to
      prove counsel ineffective, the petitioner must show that: (1) his
      underlying claim is of arguable merit; (2) counsel had no
      reasonable basis for his action or inaction; and (3) the petitioner
      suffered actual prejudice as a result. See [Commonwealth v.]

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      Pierce[, 515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. If a petitioner
      fails to prove any of these prongs, his claim fails. Generally,
      counsel’s assistance is deemed constitutionally effective if he
      chose a particular course of conduct that had some reasonable
      basis designed to effectuate his client’s interests. Where matters
      of strategy and tactics are concerned, a finding that a chosen
      strategy lacked a reasonable basis is not warranted unless it can
      be concluded that an alternative not chosen offered a potential for
      success substantially greater than the course actually pursued. To
      demonstrate prejudice, the petitioner must show that there is a
      reasonable probability that, but for counsel’s unprofessional
      errors, the result of the proceedings would have been different. A
      reasonable probability is a probability that is sufficient to
      undermine confidence in the outcome of the proceeding.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014).

Further, “[a] court is not required to analyze the elements of an

ineffectiveness claim in any particular order of priority; instead, if a claim fails

under any necessary element of the ineffectiveness test, the court may

proceed to that element first.” Commonwealth v. Tharp, 101 A.3d 736,

747 (2014) (citation omitted).        “Moreover, prejudice in the context of

ineffective assistance of counsel means demonstrating that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different.” Commonwealth v. Spotz, 896 A.2d

1191, 1226 (Pa. 2006). As our Supreme Court has long stated, claims of

ineffective assistance of counsel are not self-proving.      Commonwealth v.

Wharton, 811 A.2d 978, 986 (Pa. 2002). A PCRA petitioner must present

appropriate argumentation relative to all three prongs of the ineffectiveness

standard. Commonwealth v. D’Amato, 856 A.2d 806, 812 (Pa. 2004).




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      The right to effective assistance of counsel extends to the plea process.

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). We

have clarified, however, that:

      allegations of ineffectiveness with the entry of a guilty plea will
      serve as a basis for relief only if the ineffectiveness caused the
      defendant to enter an involuntary or unknowing plea. Where the
      defendant enters his plea on the advice of counsel, the
      voluntariness depends on whether counsel’s advice was within the
      range of competence demanded of attorneys in criminal cases.

Commonwealth v. Wah, 42 A.3d 335, 338-339 (Pa. Super. 2012) (citations,

brackets, and quotation marks omitted). “Thus, to establish prejudice, the

defendant must show that there is a reasonable probability but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to

trial.” Commonwealth v. Brandt, 74 A.3d 185, 192 (Pa. Super. 2013).

      Appellant avers that pursuant to Hickman, counsel was ineffective.

Appellant’s Brief at 31. We disagree. In Hickman, this Court found that in

order to show prejudice, “the defendant must show that it is reasonably

probable that, but for trial counsel’s errors, he would not have pleaded guilty

and would have gone to trial.” Hickman, 799 A.2d at 141. Appellant has not

shown that but-for counsel’s alleged errors, she would not have pled guilty.

Indeed, in the summary of her argument in her brief before this Court,

Appellant acknowledges that the evidence was overwhelming.         Appellant’s

Brief at 22. Thus, she cannot show prejudice as required by Hickman and

our ineffective assistance of counsel jurisprudence.




                                     -8-
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       Moreover, in Hickman, we found that the appellant’s counsel’s

performance was not within “the wide range of professionally competent

assistance,” where counsel’s advice was based on counsel’s ignorance of

relevant sentencing law. We stated:

       [P]lea counsel gave Appellant reason to believe he could be
       released from prison in two years and be eligible for parole six
       months later, when, in fact, Appellant was statutorily ineligible for
       release into the boot camp program and could not receive parole
       until he had served four years imprisonment.”

Hickman, 799 A.2d at 141. Here, Appellant does not argue that counsel was

unaware of the relevant sentencing law.          Instead, she avers counsel was

ineffective because he failed to: explain the sentencing guidelines and

outcomes to Appellant; inquire as to what the Commonwealth intended to

present at sentencing; argue the lack of cooperation was prior to the guilty

plea; appreciate the Commonwealth’s position on sentencing; and “in all

material ways to prepare himself for sentencing.” Appellant’s Brief at 31-32.3




____________________________________________


3   Appellant posits that her plea counsel “fumbled the ball when it came to
sentencing.” Appellant’s Brief at 28. Appellant admits that her trial counsel
discussed Appellant’s sentence with the Commonwealth in an attempt to
negotiate the terms of her sentence, but the Commonwealth refused to
negotiate. Id. (citing N.T. (PCRA), 6/3/16, at 29)). Although Appellant may
not be pleased with her sentence and believes counsel “fumbled the ball,” it
is well established that “[t]he law does not require than an appellant be
pleased with the results of the decision to enter a guilty plea; rather all that
is required is that Appellant’s decision to plead guilty be knowingly, voluntarily
and intelligently made.” Commonwealth v. Brown, 48 A.3d 1275, 1277
(Pa. Super. 2012).

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       A review of the record addresses a number of Appellant’s allegations of

counsel’s ineffectiveness and error. We have repeatedly held a “defendant is

bound by statements made during the plea colloquy, and a defendant may not

later offer reasons for withdrawing the plea that contradict statements made

when he pled.” Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super.

2012). During her plea, Appellant agreed that she understood the elements

of the charges against her, that the court could sentence her to the maximum

sentence for each count, and that those sentences could run consecutively to

one another and not concurrently.              N.T. (Guilty Plea), 2/13/12, at 72, 79.

Appellant further responded that no one forced her or made promises to her

to plead guilty, that she was guilty of the crimes to which she pled and she

pled guilty voluntarily and of her own free will. Id. at 80. Appellant also

affirmed that she and her counsel discussed the sentences and charges she

faced, that counsel provided her with the information necessary to determine

whether to plead guilty, and that she was satisfied with counsel’s

representation. Id. at 81-82.4 Further, at the PCRA hearing, Appellant stated

that she was aware that there was no agreement as to her sentence. N.T.



____________________________________________


4 During her guilty plea, Appellant also agreed that her voice was intercepted
on several telephone calls regarding heroin trafficking and that she has a
distinctive and recognizable voice. N.T. (Guilty Plea), 2/13/12, at 89-90. She
further admitted that upon being arrested, she admitted some involvement in
translating and picking up drug proceeds. Id. at 90.



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J-S53012-20


(PCRA), 6/3/16, at 9.5 We also note that counsel, who the trial court found

to be credible, testified that he was sure he went through the sentencing

guidelines with her, as that was his practice, although he could not recall

specifically doing so. Id. at 34. Finally, counsel testified that he believed

Appellant was aware that the Attorney General’s office was not going to “be

friendly” with her due to her failure to fully cooperate.       Id.   Appellant’s

statement given during her colloquy evidenced that her plea was entered

knowingly, intelligently, and voluntarily.

       We also find that counsel’s advice was “within the range of competence

demanded of attorneys in criminal cases.” Hickman, 799 A.2d at 141. At

the PCRA hearing, counsel testified regarding the advice he gave Appellant

and why:

              I said because you had cooperated and because already you
       had essentially advised the agents of [the Attorney General] of
       her role in the offense and that she had already actually picked up
       money, I said “you have already implicated yourself to such an
       extent that it would be foolhardy -- to go the other way and try to
       fight this case.”

             In addition, after I received some discovery and some tapes
       which she conceded was her on the tapes -- there weren’t many.
       But she conceded that that was her voice and what was her and
       that was her talking, that it really would be difficult for us to win
       the case. And the calls came from her home phone number.
____________________________________________


5 At one point during the PCRA hearing, Appellant testified that the Attorney
General’s office told her that if she cooperated with it, she would be fined and
receive no jail time. N.T. (PCRA), 6/3/16, at 10. When the court asked if that
statement was different than what she said during her plea, she said she could
not recall and then agreed that there was nothing on the record at the time of
sentencing regarding any specific deal or agreement.

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       There was a wiretap, extensive wiretap by [BNIDC], and it would
       be foolhardy to go trial, and that she could get a really lengthy
       sentence given the nature of this crime.

N.T. (PCRA), 6/3/16, at 27-28. Counsel also testified that prior to the plea

agreement, the Commonwealth became aware of the fact that Appellant was

not fully cooperating. Id. at 33.6


____________________________________________


6 In its opinion, the PCRA court set forth the following discussion of Appellant’s
cooperation:
       To the extent [Appellant] actually cooperated, the court noted that
       her minimal cooperation was already taken into account in the
       plea negotiation. Moreover, … [Appellant’s] cooperation was
       largely, if not wholly, illusory. While assisting in the arrest of one
       already identified “mid-level dealer,” [Appellant], positioned at the
       top of the organization, lied about her own participation in and
       knowledge of the drug operation. During the course of her alleged
       cooperation, [Appellant] denied that her voice was captured
       during one of her electronically intercepted telephone calls and
       denied that she knew that the organization was distributing
       heroin. N.T. 6/18/12, p. 7. While [Appellant] claimed to be trying
       to assist agents with locating the head of the organization, her
       boyfriend, [Valdez-Cordero], she was, in fact, not only concealing
       his whereabouts, but she continued to assist him in his drug
       distribution efforts. Despite her claim that she had not been in
       contact with [Valdez-Cordero, Appellant] had telephone contact
       with him throughout the entire summer. [Appellant] gave [Valdez-
       Cordero’s] telephone number to another co-defendant so that he
       could purchase more heroin.            [Valdez-Cordero] was only
       apprehended after another co-defendant in the case gave that
       telephone number to the investigators. N.T. 6/18/12, p. 8.
PCRA Opinion, 5/18/20, at 4 (citing Trial Court Direct Appeal Opinion,

10/5/12, at 8-9).




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       Although Appellant is not pleased with her sentence, she has failed to

show that her plea was entered involuntarily or unknowingly or proven that

she has suffered prejudice. At the time of her arrest, Appellant was charged

with Possession with Intent to Deliver Heroin, Conspiracy to Deliver Heroin,

two counts of Corrupt Organizations, and four counts of Criminal Use of a

Communication Facility. Appellant made numerous inculpatory statements to

agents of the Commonwealth.             Given the information and overwhelming

evidence that the Commonwealth had amassed against her, we conclude that

counsel’s advice that Appellant enter a guilty plea was within the standard of

competence required by the Sixth Amendment, and Appellant is due no relief.7

       In support of her second issue, Appellant avers that her plea was

involuntary because the Commonwealth breached the plea agreement when

it played a tape of Appellant that she alleges “inflamed the Judge to give a

maximum sentence, rather than a mitigating sentence.”8 Appellant’s Brief at


____________________________________________


7 In addition to failing to establish prejudice as set forth in Hickman, we find,
as the PCRA court found it its opinion, Appellant has failed to show that counsel
did not have a reasonable basis for advising Appellant she should enter a plea.
Thus, Appellant has also failed to satisfy the second prong of our
ineffectiveness test. Charleston, 94 A.3d at 1019.

8 In the tape, Appellant had the following conversation with Ballard, a co-
defendant in the case:
       [Appellant]: “Don’t make me take my belt and whip it right across
       your face. You’re worse than a kid. I always gotta be telling you
       shit and you never understand.”



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32. Preliminarily, we find Appellant has waived this issue for failing to raise it

on direct appeal. Commonwealth v. Rachack, 62 A.3d 389, 391 (Pa. Super.

2012) (“While Appellant focuses on the voluntariness of his guilty plea, that

issue should have been raised on direct appeal; it was not. Therefore the

issue is waived.”) (footnote omitted); 42 Pa.C.S. § 9544(b) (“For purposes of

this subchapter, an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal[,] or in a

prior state postconviction proceeding”). In the instant case, Appellant filed a

Motion for Modification of Sentence on June 28, 2012, and a direct appeal,

Rosa, 2085 EDA 2012.                Appellant did not raise the issue of the

Commonwealth’s alleged breach of the plea agreement at that time; thus, it

is waived.

       Even if we did not find waiver, the issue is of no merit. In her brief,

Appellant states that there was an agreement between the parties that implied

Appellant would be sentenced within the guidelines and that by playing the



____________________________________________


       Ballard: “I understand you crazy.”
       [Appellant]: “No you don’t cause I aint taking shit from nobody.
       Fuck that shit. If I get locked up I get locked up for what I’m
       doing for me not what I’m doing for you.”
       N.T. 6/18/12 pp. 10-14; Exhibit C-1.

PCRA Opinion, 5/18/20, at 3-4 (citing Trial Court Direct Appeal Opinion,

10/5/12, at 7-8).



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tape, the prosecutor violated that agreement.         Appellant’s Brief at 37.

Appellant relies on Commonwealth v. Alvarado, 276 A.2d 526 (Pa. 1971),

wherein the Pennsylvania Supreme Court found that the Commonwealth

breached its promise not to seek the death penalty as part of its plea

agreement.     The Court held that although the Commonwealth did not

specifically urge or seek the death penalty, when asked prior to sentencing if

the Commonwealth had any comments to offer on the question of sentence,

which was between life imprisonment or death, the Commonwealth made a

series of statements relating to, inter alia, Appellant’s deception following the

crime, his lack of remorse, and the vicious nature of the crime. Id. at 529.

The Court found that “the only conceivable purpose of the references to the

brutal nature of the crimes and [the appellant’s] apparent remorselessness

was to persuade the court to assign the harsher of the two possibilities.” Id.

      In the instant case, there was no agreement with the Commonwealth

regarding sentencing. At Appellant’s guilty-plea hearing, the Commonwealth

stated as follows:

      Commonwealth: In [Appellant’s] case, 6544 of 2011, it is a
      negotiated plea [Appellant] will be entering a guilty plea to counts
      2, 4, and 7.
      Count 2, criminal conspiracy to deliver; Count 4, corrupt
      organizations; and Count 7, criminal use of a communication
      factiilty.
                                   * * *

      Commonwealth has already signed the nol pros for the other
      counts, your honor on the Criminal Information.

      The Court: Okay.

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      Commonwealth: There is an agreement -- actually this will be an
      open plea to the above counts, 2, 4 and 7. They are non-
      mandatory counts. There is no agreement on sentencing.
      [Appellant] will be RRRI eligible. [Appellant] will make herself
      available to the Commonwealth and, if called, testify truthfully at
      all future proceedings. And we expect deferred sentencing.

      The Court: Okay.

      The Commonwealth: Other than the stated, there are no other
      agreements with Erika Rosa.

N.T. (Guilty Plea), 2/13/12, at 22-23 (emphases added). Although Appellant

avers that the Commonwealth breached the plea agreement by playing the

tape, there was no agreement regarding sentencing and, therefore no

agreement was breached.

      Order affirmed.

      Judge Strassburger did not participate in the consideration or decision

of this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/21




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