J-S09036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SALVATORE CONIGLIARO,

                            Appellant                No. 2809 EDA 2016


                  Appeal from the PCRA Order August 4, 2016
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0001216-2014


BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 17, 2017

        Appellant, Salvatore Conigliaro, appeals from the order of August 4,

2016, which dismissed, without a hearing, his first, counseled petition

brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. For the reasons discussed below, we affirm the dismissal of the PCRA

petition.

        We take the underlying facts and procedural history in this matter

from the PCRA court’s October 11, 2016 opinion, and our independent

review of the certified record.

              The Commonwealth charged [A]ppellant with sixteen
        offenses, including aggravated indecent assault on a child, 18
        [Pa.C.S.A.] § 3125(b), corruption of minors, 18 [Pa.C.S.A.] §
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     6301 (a)(1)(i) and indecent assault of a child, 18 [Pa.C.S.A.] §
     3126(a)(8). With the assistance of his lawyer, James P. Lyons,
     Esquire, [A]ppellant negotiated an agreement with the
     [Commonwealth] in which he agreed to waive his right to
     present witnesses and allowed the Commonwealth to restrict its
     proof to documentary evidence and other stipulated facts, thus
     sparing the child-complainants from having to testify in court.
     In exchange, the [Commonwealth] dropped all but two of the
     sixteen charges [it] had filed against him. After a bench trial
     decided upon stipulated evidence, the [trial court] convicted
     [A]ppellant of corruption of minors, 18 [Pa.C.S.A.] § 6301
     (a)(1)(i) and indecent assault of a child, 18 [Pa.C.S.A.] §
     3126(a)(8). On the charge of corruption of minors, the [trial
     court] sentenced [A]ppellant to serve a term of incarceration of
     [not less than] eleven [nor more than] twenty-three months plus
     a term of three years’ probation, and on the charge of indecent
     assault of a child, [A]ppellant was sentenced to serve a
     consecutive term of five years’ probation.

           On May 29, 2015, Holly C. Dobrosky, Esquire, entered her
     appearance on behalf of [A]ppellant. She filed a direct appeal to
     the Superior Court of Pennsylvania on June 22, 2015. That
     appeal was premature and was eventually dismissed by the
     Superior Court of Pennsylvania. Next, [on April 8, 2016,] with
     the assistance of Ms. Dobrosky, [A]ppellant filed a petition under
     the [PCRA]. The petition raised several grounds for relief, all
     based on claims that [Appellant received] ineffective legal
     assistance.

            In paragraphs five through twelve of the PCRA petition,
     [A]ppellant pled facts in support of a claim that [trial counsel]
     was ineffective for having advised him to waive his right to a
     jury trial and stipulate to the evidence to be considered by the
     trial judge.    More specifically, paragraph nine averred that
     [Appellant] “entrusted counsel to . . . proceed by way of a jury
     trial. . . .” Likewise, paragraph ten averred that [Appellant]
     “reasonably believed that he was proceeding . . . by a fair and
     impartial jury. . . .” Paragraph eleven averred that [trial counsel]
     advised him that participating in a stipulated waiver trial “would
     afford him the exact same rights and protections that would be
     afforded to him if he proceeded by way of the jury trial that [he]
     desired. . . .” Paragraph twelve averred that [Appellant] did not
     understand that he was about to “engage[ ] in a proceeding


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     which deprived [him] of a jury trial” because he was not
     educated in the law.

           Paragraph fourteen of the petition made a vague allegation
     that [trial counsel] failed to adequately prepare for trial. . . .
     Paragraph fifteen complained that [trial counsel] “failed to
     subpoena witnesses . . . who could have testified in favor of
     [Appellant] at trial. . . .” Likewise, paragraph sixteen complained
     that [trial counsel] “failed to call defense witnesses. . . .”

            Paragraphs thirteen and seventeen raised distinct claims of
     ineffective assistance of counsel. Paragraph thirteen alleged that
     [trial counsel] failed to obtain a Spanish language interpreter.
     Paragraph seventeen alleged that [trial counsel] “failed to
     adequately advise [Appellant] of his right to testify on his own
     behalf, and, as a result thereof, denied him the opportunity to
     testify on his own behalf.”

            On June 1[6], 2016, the [PCRA court] filed an order
     notifying [A]ppellant that [it] intended to deny his counseled
     PCRA petition without a hearing.             In compliance with
     Pa.R.Crim.P. 907(1), the notice stated the reasons for denying
     the petition, and included a discussion of the claims raised in the
     petition and the legal authority applicable to the disposition of
     each claim. Also in compliance with Rule 907(1), the notice
     granted [Appellant] and his lawyer leave to respond within
     twenty days.

           Ms. Dobrosky did not file a response. On July 18, 2016,
     Oliver C. Inslee, Esquire, filed an entry of appearance on behalf
     of [Appellant]. Like Ms. Dobrosky, Mr. Inslee did not file a
     response to the notice and order of June 1[6], 2016. On August
     4, 2016, the [PCRA court] filed an order denying [A]ppellant’s
     PCRA petition. Mr. Inslee then filed the instant appeal on behalf
     of [A]ppellant. The [PCRA court] ordered Mr. Inslee to file a
     [concise] statement of errors complained of on appeal pursuant
     to Pa.R.A.P. 1925(b), and Mr. Inslee complied in a timely
     manner. [On October 11, 2016, the PCRA court issued an
     opinion. See Pa.R.A.P. 1925(a).]

(PCRA Court Opinion, 10/11/16, at 1-4) (record citations omitted).

     On appeal, Appellant raises the following question for our review.


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            Did the [PCRA] court err in denying the claim of ineffective
      assistance of trial counsel when trial counsel failed to advise the
      Appellant of adverse immigration consequences that would result
      from accepting a bench trial with stipulated facts supporting the
      Commonwealth’s case against him?

(Appellant’s Brief, at 2).

      We review the denial of a post-conviction petition to determine

whether the record supports the PCRA court’s findings and whether its order

is otherwise free of legal error.   See Commonwealth v. Faulk, 21 A.3d

1196, 1199 (Pa. Super. 2011).       To be eligible for relief pursuant to the

PCRA, Appellant must establish, inter alia, that his conviction or sentence

resulted from one or more of the enumerated errors or defects found in 42

Pa.C.S.A. § 9543(a)(2).      See 42 Pa.C.S.A. § 9543(a)(2).      He must also

establish that the issues raised in the PCRA petition have not been

previously litigated or waived.      See 42 Pa.C.S.A. § 9543(a)(3).          An

allegation of error “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.” 42 Pa.C.S.A. § 9544(b). Further,

            . . . a PCRA petitioner is not automatically entitled to an
      evidentiary hearing.    We review the PCRA court’s decision
      dismissing a petition without a hearing for an abuse of
      discretion.

                  [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in

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            light of the record certified before it in order to
            determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

     In his only issue on appeal, Appellant contends that he received

ineffective assistance of trial counsel because counsel did not advise him of

the adverse immigration consequences of a stipulated bench trial.       (See

Appellant’s Brief, at 5-7). However, Appellant waived this claim.

     We note that counsel is presumed effective, and an appellant bears

the burden to prove otherwise.    See Commonwealth v. McDermitt, 66

A.3d 810, 813 (Pa. Super. 2013).      The test for ineffective assistance of

counsel is the same under both the United States and Pennsylvania

Constitutions. See Strickland v. Washington, 466 U.S. 668, 687 (1984);

Commonwealth v. Jones, 815 A.2d 598, 611 (Pa. 2002).            An appellant

must demonstrate that: (1) his underlying claim is of arguable merit; (2)

the particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the proceedings would have been different.      See Commonwealth v.

Pierce, 786 A.2d 203, 213 (Pa. 2001), abrogated on other grounds by

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). “A failure to satisfy


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any prong of the test for ineffectiveness will require rejection of the claim.”

Jones, supra at 611 (citation omitted).

      Prior to addressing the merits of the claim, we must decide if it is

properly before us.    It is long settled that issues not raised in a PCRA

petition   or   amended   PCRA   petition   are   waived   on   appeal.   See

Commonwealth v. Lauro, 819 A.2d 100, 103 (Pa. Super. 2003), appeal

denied, 830 A.2d 975 (Pa. 2003) (finding five issues not in original or

amended PCRA petition waived).       Also, as amended in 2007, Rule 1925

provides that issues that are not included in the Rule 1925(b) statement or

raised in accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P.

1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.

1998), superseded by rule on other grounds as stated in Commonwealth v.

Burton, 973 A.2d 428, 430 (Pa. Super. 2009). Lastly, an appellant cannot

raise a subject for the first time on appeal.       See Commonwealth v.

Hanford, 937 A.2d 1094, 1098 n.3 (Pa. Super. 2007), appeal denied, 956

A.2d 432 (Pa. 2008) (new legal theories cannot be raised for first time on

appeal); Pa.R.A.P. 302(a).

      In the instant matter, while Appellant raised many claims of ineffective

assistance of counsel in his PCRA petition, he did not claim that counsel was

ineffective for failing to advise him of adverse immigration consequences.

(See Petition for Relief Under the Post Conviction Hearing Relief Act,

4/08/16, at unnumbered pages 2-4). Moreover, even if he had raised this


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issue in his petition, Appellant did not raise this claim in his Rule 1925(b)

statement, raising it for the first time in his appellate brief. (See Concise

Statement of Errors Complained of on Appeal, 9/29/16, at unnumbered

pages 1-2). Thus, Appellant waived his claim on appeal and we therefore

affirm the PCRA court’s dismissal of his PCRA petition without a hearing.

See Handford, supra at 1098 n.3; Lauro, supra at 103; Lord, supra at

309.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




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