J-S47012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellee

                  v.

OMAR D. DIAZ-PERDOMO,

                       Appellant                 No. 2116 MDA 2015


            Appeal from the PCRA Order November 13, 2015
            In the Court of Common Pleas of Lebanon County
           Criminal Division at No(s): CP-38-CR-0001103-2012


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                   FILED SEPTEMBER 15, 2016

     Appellant, Omar D. Diaz-Perdomo, appeals from the November 13,

2015 order, dismissing his petition for relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.      After careful

review, we reverse the order denying PCRA relief, vacate the judgment of

sentence, and remand for resentencing.

     The PCRA court summarized the salient procedural history as follows:

           [Appellant] was charged with Possession with Intent to
     Deliver a Controlled Substance (Count 1-morphine sulfate pills),
     two counts of Possession of a Controlled Substance (Count 2-
     morphine sulfate pills and Count 3-cocaine) and Possession of
     Drug Paraphernalia (Count 4-plastic straw). The drugs and
     paraphernalia were found during searches conducted at the
     scene of [Appellant’s] arrest, at Central Booking, and at
     [Appellant’s] residence on April 19, 2012. After a jury trial on
     April 3, 2013, [Appellant] was convicted of all charges. He was
     sentenced to an aggregate term of thirty-nine to seventy-eight
     months in a state correctional institution on June 12, 2013.
     Post-Sentence Motions were denied by Order of October 22,
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      2013 and the Pennsylvania          Superior   Court   affirmed   on
      August 15, 2014.

            On October 27, 2014, [Appellant] filed a Petition pursuant
      to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq.
      After PCRA counsel was appointed, he filed an Amended Petition
      on February 2, 2015 and a Second Amended Petition on April 8,
      2015. [Appellant] asserts ineffective assistance of counsel on
      the part of his trial counsel and also assigns error to our failure
      to appoint conflict counsel to represent him due to his problems
      in his dealings with trial counsel. We conducted a hearing on
      June 25, 2015, both parties have submitted Briefs, and the
      matter is now before us for resolution.

PCRA Court Opinion, 11/13/15, at 1–2 (footnote omitted).

      The PCRA court denied Appellant’s request for collateral relief on

November 13, 2015.       Appellant filed a notice of appeal to this Court on

December 4, 2015, and complied with the PCRA court’s order to file a

Pa.R.A.P 1925(b) concise statement of errors complained of on appeal.

Concluding that “the issues raised by [Appellant] have been previously

addressed in [its] Order and Opinion dated November 13, 2015,” the PCRA

court directed the Lebanon County Clerk of Courts to transmit the record to

this Court. Order, 12/22/15.

      Appellant raises numerous questions for our review, nine challenging

trial counsel’s representation and one issue concerning the trial court’s

refusal to appoint conflict counsel:

             1. Whether Trial Counsel was ineffective for failing to
      introduce evidence regarding Appellant’s employment so as to
      rebut the Commonwealth’s implications that Appellant was
      selling drugs?

            2. Whether Trial Counsel was ineffective for failing to
      timely request the video footage of Central Booking so as to

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     rebut the Commonwealth’s witnesses’ testimonies regarding the
     money found in Appellant’s possession?

           3. Whether Trial Counsel was ineffective for failing to
     consult with Appellant [about] the video footage of the police car
     at the time of Appellant’s arrest so as to rebut Commonwealth’s
     witnesses’ testimonies regarding the money found in Appellant’s
     possession?

           4. Whether Trial Counsel was ineffective for failing to
     obtain and thereby present Appellant’s home and job plan to
     rebut Parole Officer Thomas’s and Detective Sergeant
     Radwanski’s testimonies that Appellant resided in a halfway
     house, and worked a part-time, minimum-waged job?

           5. Whether Trial Counsel was ineffective for failing to
     obtain and thereby present evidence to show that Appellant had
     not patronized the bar, consumed alcohol, or spoke on a cell
     phone prior to his being searched, where such evidence should
     have been used to impeach Parole Officer Thomas’s credibility?

           6. Whether Trial Counsel was ineffective for failing to
     argue, on direct appeal, that Appellant’s verdict of Possession
     with Intent to Deliver was against the weight of the evidence
     presented at Trial, where Commonwealth witnesses gave
     contradictory testimonies?

            7. Whether Trial Counsel was ineffective for failing to
     introduce evidence that the morphine pills that were allegedly in
     Appellant’s possession at the time in which Appellant was
     searched was small in quantity, and therefore, could not
     sufficiently prove Appellant guilty of Possession with Intent to
     Deliver beyond a reasonable doubt?

           8. Whether Trial Counsel was ineffective for failing to
     object to Parole Officer Thomas’s comment that Appellant had a
     history with the Parole Board, where such comment ultimately
     prejudiced Appellant?


           9. Whether Trial Counsel was ineffective for failing to
     subpoena and thereby present the parole/probation logs from
     Parole Officer Thomas, where such evidence should have been
     used to impeach Parole Officer Thomas’s testimony that he had
     not been at Central Booking?

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             10. Whether Trial Court erred when it failed to appoint
      conflict counsel, where the Court was aware that there was a
      breakdown in communication between Trial Counsel and
      Appellant?

Appellant’s Brief at 4–7.

      Our standard of review of an order denying PCRA relief is well settled:

      Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination and
      whether the PCRA court’s decision is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015) (quoting

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations   omitted)).      Additionally,   to    establish   a   claim   of   counsel’s

ineffectiveness, a petitioner is required to plead and prove: “(1) that the

underlying issue has arguable merit; (2) counsel’s actions lacked an

objective reasonable basis; and (3) actual prejudice resulted from counsel’s

act or failure to act. If a petitioner fails to plead or meet any elements of the

above-cited test, his claim must fail.”          Commonwealth v. Ford, 44 A.3d

1190, 1194–1195 (Pa. Super. 2012) (quoting Commonwealth v. Burkett,

5 A.3d 1260, 1271–1272 (Pa. Super. 2010) (internal citations and

quotations omitted)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the PCRA court, we

conclude that Appellant’s ineffective representation issues merit no relief. As




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detailed below, the November 13, 2015 PCRA court opinion comprehensively

discusses and properly disposes of those questions.

      The PCRA court first decided that trial counsel provided effective

assistance in regard to counsel’s approach to the Commonwealth’s evidence

of Appellant’s employment status. Appellant claimed that he provided trial

counsel with a letter indicating that he was a full-time employee in

contradiction to Commonwealth testimony that he only worked part-time.

The PCRA court concluded that Appellant failed to substantiate the claim that

he provided counsel with a letter verifying his full-time employment;

instead, it credited trial counsel’s testimony at the PCRA hearing that he did

not   challenge   the   Commonwealth’s    testimony   concerning   Appellant’s

employment status because that evidence was consistent with what

Appellant told counsel and what was presented to the jury.         PCRA Court

Opinion, 11/13/15, at 6–7.

      Second, the PCRA court determined ineffective assistance did not

result from trial counsel’s efforts in attempting to obtain (from Central

Booking) and in obtaining (police vehicle) video footage that Appellant

claimed would rebut the Commonwealth’s witnesses’ testimony regarding

money found in Appellant’s possession. Appellant avers that the money was

taken from him during a search performed by Lebanon City Police

Officer Adam Rusz at the arrest scene.    However, Appellant contends that

Officer Rusz’s police report states the money was found at Central Booking


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while that same officer’s inventory report relates that the money was found

at the scene.     Noting this discrepancy, on January 22, 2013, Appellant

requested trial counsel to obtain the video footage from Central Booking for

the date of his arrest, April 19, 2012.   Trial counsel submitted a request for

the footage by email to the Lebanon County District Attorney on February 1,

2013.     The District Attorney responded that the Central Booking video

footage is retained only for thirty days and that the footage requested no

longer existed. Trial counsel was able to obtain the in-car video footage of

Appellant in the city police vehicle, but it did not include footage of activity

occurring outside of the vehicle. N.T., 6/25/15, at 33–36. Appellant asserts

that trial counsel was ineffective by virtue of his failure to timely request the

Central Booking video footage and then to utilize it to cast doubt on the

credibility of the law enforcement officer’s testimony concerning the money

confiscated from Appellant.

        In addition to finding that trial counsel attempted to comply with

Appellant’s request for the Central Booking video footage and should not be

faulted for its unavailability, the PCRA court also concluded Appellant did not

demonstrate any prejudice resulting from trial counsel’s actions with regard

to the videos. The PCRA court observed:

        [Appellant] did not dispute that he was in possession of this
        money.     Even if the footage had shown what [Appellant]
        claimed, the location where that money was found, and Officer
        Thomas’s presence at Central Booking are inconsequential facts
        which would have had no bearing on the jury’ s verdict. Such
        facts had no relevance to the elements of [Appellant’s] charges

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       and, even if proven, would not have negated the facts relevant
       to the Commonwealth’s proof of those elements. We believe the
       jury would have found them to be minor details which would not
       have had any impact on the credibility attributed to these two
       witnesses. Trial counsel was able to obtain the police vehicle
       footage and gave [Appellant] an opportunity to view it.
       [Appellant] agreed that it showed nothing of the search
       conducted at the scene at Ninth and Mifflin Streets. He has
       identified nothing which would have been helpful to his case and
       trial counsel cannot be faulted for failing to present irrelevant
       evidence at trial.

PCRA Court Opinion, 11/13/15, at 9–10.1

       The PCRA court next dismissed Appellant’s fourth claim that trial

counsel was ineffective for failing to procure and present documents from

Appellant’s home and job plan that Appellant proposed would shed light on

his employment status and his place of residence and contradict testimony

presented by the Commonwealth’s witnesses. The PCRA court credited trial

counsel’s explanation that the subject records would not have been helpful

to the defense and that counsel “did not want to ‘open the door’ to

[Appellant’s] supervision history as he had a number of previous [parole]

violations and was behind in the payment of his fines and costs.”          PCRA

Court Opinion, 11/13/15, at 12. Trial counsel also explained that he “feared

that [these records] might suggest to the jury that [Appellant] did not have

____________________________________________


1
   Appellant’s third issue is that trial counsel was ineffective by failing to
consult with Appellant about the video footage from the police car.
Appellant does not develop this argument nor could it have merit in that trial
counsel did obtain that video footage and showed it to Appellant. N.T.,
6/25/15, at 10.



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the money for these payments and had been selling drugs because he

needed cash.” Id. at 13. The PCRA court found “no error of judgment on

the part of trial counsel in his attempt to minimize any potential prejudice

posed by [Appellant’s] supervision history.” Id.

      Appellant’s fifth allegation is that trial counsel was ineffective for failing

to   obtain   and    present    certain   evidence     that   would    rebut    the

Commonwealth’s testimony that Appellant was patronizing a bar, had

consumed alcohol, or had spoken on a cell phone prior to his being stopped

and searched by Parole Officer Ralph Thomas, where such evidence should

have been used to impeach Parole Officer Thomas’s credibility.           The PCRA

court summarized and resolved this issue as follows:

             [Appellant] further claims that he was not using a
      cellphone prior to being approached by Officer Thomas, that he
      had not been inside the Liberty Bar, and that he had not
      consumed any alcohol prior to his arrest. He complains that trial
      counsel failed to conduct an investigation regarding these facts
      and failed to “ask the right questions” of Officer Thomas and
      Officer Rusz regarding these matters in order to show their lack
      of credibility.     He asserts that trial counsel should have
      questioned these witnesses as to why no cellphone was
      introduced as evidence and why there had been no blood or
      urine tests to determine whether [Appellant] had consumed
      alcohol. [Appellant] wanted these subjects brought up during
      trial so that the jury could “know exactly what happened.” (N.T.
      6/25/15 at 25) However, he could not recall whether he even
      requested trial counsel to conduct such an investigation. He also
      admitted that he knew of no witnesses who could have testified
      to these facts and had no other evidence to demonstrate that his
      version of the facts was accurate.

            Trial counsel noted that he did refer to the
      Commonwealth’s failure to produce a cellphone during his
      closing argument. He further explained that he could not follow

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     up on these matters because [Appellant] could not give him the
     names of any witnesses. He also did not want to go too much
     into what was going on at the scene because the police report
     had indicated that another individual was with [Appellant] when
     he was first observed by Officer Thomas. As Officer Thomas
     approached, [Appellant] kicked something that looked like drugs
     to that individual, and that individual picked up the item and ran
     into a building. Trial counsel was concerned that if he went into
     what was going on outside the bar, this would come up and it
     would suggest to the jury that [Appellant] had been selling
     drugs. We believe that this was a reasonable basis for trial
     counsel to avoid bringing up matters from the scene which would
     not have been helpful to [Appellant] in the long run.

PCRA Court Opinion, 11/13/15, at 10–11.

     Next, contrary to the argument raised in Appellant’s sixth appellate

issue, the PCRA court concluded that trial counsel acted reasonably when he

did not pursue a weight to the evidence challenge in the post-sentence

motion filed on Appellant’s behalf. The PCRA court reviewed trial counsel’s

testimony at the PCRA hearing describing counsel’s evaluation of a possible

weight of the evidence issue and agreed that such an argument would be

unavailing. The PCRA court noted:

           Trial counsel explained that he saw no merit in including a
     challenge to the weight of the evidence because the
     determination of what credibility to give to the testimony of
     these two witnesses was for the jury and he saw no chance that
     such an argument would be successful. After reviewing the
     transcript of the jury trial, we agree with trial counsel that this
     argument would have been unsuccessful and that he was not
     required to pursue a meritless avenue at the post-sentence
     stage of these proceedings. The claimed inconsistencies were of
     insignificant matters and were irrelevant to the elements of the
     offenses with which [Appellant] was charged. We find nothing
     that would indicate lack of credibility on any of the
     Commonwealth witnesses to such a degree that their testimony


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      should not have been given the credibility attributed to it by the
      jury.

PCRA Court Opinion, 11/13/15, at 17–18.

      Appellant’s seventh assertion of ineffective representation concerns

trial counsel’s failure to introduce evidence that the small amount of

morphine pills (thirty-six pills) found in his possession was not consistent

with a possession with intent to deliver offense.   The PCRA court rejected

this allegation of ineffectiveness, reasoning:

             At the PCRA hearing, [Appellant] gave confusing testimony
      in this regard. [Appellant] acknowledged that he did not request
      trial counsel to present any evidence that the pills were for
      personal use. [Appellant] insisted that he had a prescription, but
      claimed that he did not tell trial counsel why he had the pills in
      his possession because he had already told prison officials that
      he was not using any drugs in his intake form. In the next
      breath, however, he testified that he told trial counsel that he
      was taking the pills for leg pain and was not selling them.

           [Appellant] admitted that the only evidence which could
      have been presented on this issue was his own testimony.
      However, on the morning of trial, [Appellant] told both trial
      counsel and the Trial Judge that he would not testify[.]

                                     * * *

             Trial counsel testified [Appellant] had acknowledged to him
      that he was using the morphine pills, and had told him they were
      in his possession for his personal use. However, [Appellant] did
      not tell trial counsel that he was using the pills for pain. If
      [Appellant] had told him that he was using them for pain, trial
      counsel would have followed up to obtain evidence of his medical
      condition and the details of his treatment.

            Trial counsel also explained that he had defended felony
      drug cases in the past and was familiar with presenting defenses
      in such cases. He was familiar with Sergeant Radwanski, the
      Commonwealth’s expert on possession with intent to deliver, and
      had dealt with him in his past cases. Trial counsel conducted

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      extensive questioning of Sergeant Radwanski regarding the
      factors relevant to a possession with intent to deliver case and
      felt that he asked all questions pertinent to the defense of this
      charge.

             We agree with the Commonwealth that [Appellant] cannot
      now complain that no evidence was presented to support his
      position that he was in possession of the morphine pills for
      personal use due to pain when he provided trial counsel with no
      information regarding this issue prior to trial.         Moreover,
      although [Appellant] had the absolute right to decline the
      opportunity to testify on his own behalf at trial, he admitted that
      this was the only evidence available on this point.

PCRA Court Opinion, 11/13/15, at 13–16 (record references omitted).

      The PCRA court additionally observed that its review of the trial

transcript revealed that:

      trial counsel conducted a rigorous cross-examination of
      Sergeant Radwinski regarding his opinion. Trial counsel asked
      numerous questions regarding the money in [Appellant’s]
      possession, the prison intake form, the way in which the pills
      were packaged, the lack of necessity of paraphernalia for
      ingesting such pills, and other issues which would have been
      relevant to the issue of an intent to distribute. We find nothing
      more that he could have done under the circumstances.

PCRA Court Opinion, 11/13/15, at 17.

      Appellant’s eighth argument is that trial counsel was ineffective for

failing to object to Parole Officer Thomas’s comment at trial that Appellant

had a history with the Parole Board because such comment unduly

prejudiced Appellant in the eyes of the jury. The PCRA court did not find this

allegation of ineffectiveness to be meritorious:

      At the jury trial, Officer Thomas had noted that [Appellant] was
      on state parole at the time and was not permitted to be in an
      establishment that sells alcohol. In addition, Officer Thomas also

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      indicated that he would be familiar with the home address of a
      supervisee. [Appellant] claims that this testimony implied that
      Officer Thomas was familiar with [Appellant] because he was on
      supervision, thereby causing prejudice in the eyes of the jury.

             Trial counsel explained that this testimony was offered by
      the Commonwealth as an explanation for why Officer Thomas
      was making contact with [Appellant]. Trial counsel knew that
      under the circumstances of the case, there would be no way to
      avoid the subject of [Appellant’s] supervision. He believed that
      the jury was well aware that [Appellant] was on state parole at
      the time because he was detained by a state parole officer.
      Since there was no way to avoid this subject, he did not object.
      We find it highly doubtful that the jury would have reached a
      different verdict had it not known this information.

PCRA Court Opinion, 11/13/15, at 11–12 (record reference omitted).

      Appellant’s last complaint concerning trial counsel’s representation is

that counsel was ineffective for failing to subpoena Parole Officer Thomas’s

parole logs to impeach the officer’s testimony that he was present when

Appellant was brought to Central Booking.       While the PCRA court did not

specifically address whether trial counsel should have subpoenaed these

documents, it did determine that:

      Officer Thomas’s presence at Central Booking [is an]
      inconsequential fact[] which would have had no bearing on the
      jury’s verdict. Such fact[] ha[s] no relevance to the elements of
      [Appellant’s] charges and, even if proven, would not have
      negated the facts relevant to the Commonwealth’s proof of those
      elements. We believe the jury would have found [it] to be [a]
      minor detail[] which would not have had any impact on the
      credibility attributed to [Officer Thomas].

PCRA Court Opinion, 11/13/15, at 9. The PCRA court thus concluded that

Appellant did not suffer any prejudice by trial counsel’s failure to contest the

fact of Officer Thomas’s presence at Central Booking. Id.


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      Appellant’s final issue is that the trial court erred when it failed to

appoint conflict counsel when the court became aware that there was a

breakdown in communication between Appellant and trial counsel.              This

assertion of error is not cognizable in this proceeding.      To be eligible for

PCRA relief, a petitioner must demonstrate that “the allegation of error has

not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). Under

42 Pa.C.S. § 9544(b), “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.”       The PCRA court found that

Appellant “made no mention of any complaint regarding trial counsel

throughout the pretrial period, at the time of the jury trial, or in post-

sentence proceedings.”     PCRA Court Opinion, 11/13/15, at 20.          Nor did

Appellant raise the conflict counsel issue in his direct appeal.             See

Appellant’s Pa.R.A.P. 1925(b) statement, 12/11/13, at 1 (claiming error in

the trial court’s denial of his pretrial motion to suppress and challenging the

sufficiency of the evidence to support his conviction for possession with

intent to distribute).    Thus, this claim is waived for appellate review.

Commonwealth v. Bond, 819 A.2d 33, 39 (Pa. 2002) (“[C]laims that could

have been raised on direct appeal but were not are waived under the

PCRA.”).

      To summarize, the PCRA court’s opinion thoroughly and cogently

addressed each allegation of ineffectiveness. The record supports the PCRA


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court’s determinations, and the PCRA court’s decision is free of legal error.

Additionally and remarkably, Appellant does not challenge any of the PCRA

court’s factual findings or claim that the PCRA court’s legal conclusion are

erroneous. For these reasons, as to the nine claims of ineffective assistance

of counsel, we affirm on the basis of the PCRA court’s November 13, 2015

opinion and adopt it as our own.       Accordingly, we direct the parties to

include the PCRA court’s opinion in all future filings relating to our

examination of the merits of this appeal.      Furthermore, Appellant’s claim

that the trial court erred when it denied his request to appoint conflict

counsel is waived.      See 42 Pa.C.S. § 9544(b) (for purposes of collateral

relief, issue is waived if the petitioner could have previously raised the issue

but failed to do so).

      These conclusions, however, do not discharge our appellate obligation

in this matter. In his appellate brief, albeit in a footnote, Appellant, for the

first time, challenges the legality of his sentence under Alleyne v. United

States, 133 S.Ct. 2151 (2013). While ordinarily Appellant’s effort to raise

an issue for review that was not included in his Pa.R.A.P. 1925(b)

statements, either in his direct appeal or his present appeal from denial of

PCRA relief, would be unsuccessful and subject to waiver, an Alleyne claim

is a non-waivable challenge to the legality of sentence, which is cognizable

under the PCRA. See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.

Super. 2014) (en banc) (an Alleyne challenge to a sentence implicates the


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legality of the sentence and such a challenge cannot be waived).2 But see

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (Alleyne does

not invalidate a mandatory minimum sentence when presented in an

untimely PCRA petition).        We will, therefore, address whether Appellant’s

legality of sentence challenge is cognizable in light of the procedural posture

in which the claim was raised.

       At the time Appellant was sentenced, 18 Pa.C.S. § 6317(a) imposed a

mandatory minimum sentence of two years of confinement upon a

defendant for, inter alia, a conviction of possession with intent to deliver, 35

P.S. § 780-113(a)(30), if the possession with intent to deliver a controlled

substance occurred within 1,000 feet of a school.          Additionally, section

6317(b) instructed that “the provisions of this section shall not be an

element of the crime” and the applicability of the statute shall be determined

at sentencing by a “preponderance of the evidence.” 18 Pa.C.S. § 6317(b).

       In Alleyne, the United States Supreme Court held that “[a]ny fact

that, by law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133

S.Ct. at 2155 (citation omitted). Three years later, in Commonwealth v.

____________________________________________


2
   On September 18, 2015, the Pennsylvania Supreme Court granted the
petition for allowance of appeal in Commonwealth v. Barnes, 350 EAL
2014, 122 A.3d 1034 (2015) (per curiam), to address the question of
whether an Alleyne violation implicates the legality of a sentence and thus
renders a challenge non-waivable.



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Hopkins, 117 A.3d 247 (Pa. 2015), the Pennsylvania Supreme Court

applied the Alleyne mandate and held that the mandatory minimum

sentencing scheme set forth in 18 Pa.C.S. § 6317 was unconstitutional in its

entirety. Hopkins, 117 A.3d at 262.

     In Commonwealth v. Ruiz, 131 A.3d 54, 57 (Pa. Super. 2015), this

Court reiterated its prior declarations in Newman that:      (1) an Alleyne

claim is a non-waivable challenge to the legality of sentence; and

(2) Alleyne announced a new constitutional rule that applied to all cases

pending on direct review when Alleyne was decided. Ruiz, 131 A.3d at 59–

60 (citing Newman, 99 A.3d at 90). Based on those premises, Ruiz held

that a defendant could raise an Alleyne challenge in a timely PCRA petition

so long as his direct appeal from the judgment of sentence was still pending

when Alleyne was decided. Ruiz, 131 A.3d at 60.

     Recently, in Commonwealth v. Washington, ___ A.3d ___, 2016

WL 3909088 (Pa. filed July 19, 2016), the Pennsylvania Supreme Court

addressed an Alleyne claim raised in a timely PCRA petition where the

judgment of sentence had become final prior to the Alleyne decision. In

doing so, the Court stated:

     [A] new rule of law does not automatically render final, pre-
     existing sentences illegal. A finding of illegality concerning such
     sentences may be premised on such a rule only to the degree
     that the new rule applies retrospectively. In other words, if the
     rule simply does not pertain to a particular conviction or
     sentence, it cannot operate to render that conviction or sentence
     illegal. . . .


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                                   * * *

      [N]ew constitutional procedural rules generally pertain to future
      cases and matters that are pending on direct review at the time
      of the rule’s announcement.

Id. at *3-4 (emphasis added).    See also id. at *4 (stating:   “[I]f a new

constitutional rule does not apply, it cannot render an otherwise final

sentence illegal”). The Washington Court applied the retroactivity analysis

delineated in Teague v. Lane, 489 U.S. 288 (1989), and determined the

new constitutional rule announced in Alleyne is not a substantive or

watershed procedural rule that would warrant retroactive application.

Washington, id. at *7. The Court held the defendant was not entitled to

retroactive application of Alleyne because his judgment of sentence became

final before Alleyne was decided. Id.

      Here, Appellant’s judgment of sentence had not become final prior

to the Alleyne decision, thus Washington is distinguishable.     Appellant’s

sentencing proceeding was held on June 12, 2013.        At the hearing, the

sentencing court determined that the school zone sentencing enhancement

then codified at 18 Pa.C.S. § 6317 applied. N.T. (Sentencing), 6/12/13, at

19.   Appellant was then sentenced to an aggregate term of thirty-nine to

seventy-eight months of incarceration.

      On June 17, 2013, three days after Appellant’s sentence was imposed,

the United States Supreme Court issued its decision in Alleyne. Appellant

timely filed a post-sentence motion which the trial court denied on



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October 22, 2013. Appellant filed a timely direct appeal on November 23,

2013.    Appellant, however, did not present an Alleyne challenge in these

pleadings; nor did the panel of this Court raise it sua sponte in its decision

affirming Appellant’s judgment of sentence. See Commonwealth v. Diaz-

Perdomo, 106 A.3d 162, No. 2108 MDA 2013 (Pa. Super. filed August 15,

2014)    (unpublished      memorandum).            Appellant   did   not   petition   the

Pennsylvania Supreme Court for review; accordingly, his judgment of

sentence    became      final on     September      15, 2014.3       See 42     Pa.C.S.

§ 9545(b)(3) (providing “a judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.”). Accordingly, because Appellant’s judgment

of sentence was pending when Alleyne was decided, under Ruiz, Alleyne

applies and Appellant is entitled to review and relief.          See also Hopkins,

117 A.3d at 262.

        Based on the foregoing, we conclude Appellant is entitled to a remand

for resentencing without application of any unlawful mandatory minimum

statute. Accordingly, we reverse the order denying PCRA relief, vacate the

judgment of sentence, and remand for resentencing without imposition of

____________________________________________


3
   The thirtieth day, September 14, 2014, fell on a Sunday. Therefore,
Appellant’s judgment of sentence became final on Monday, September 15,
2014. See 1 Pa.C.S. § 1908.



                                          - 18 -
J-S47012-16


the mandatory minimum term. See Commonwealth v. Bartrug, 732 A.2d

1287 (Pa. Super. 1999) (holding sentencing error in multi-count case

normally requires appellate court to vacate entire judgment of sentence so

trial court can restructure its sentencing scheme on remand).

      Order reversed; judgment of sentence vacated; case remanded for

resentencing. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2016




                                    - 19 -
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                         IN THE COURT OF COMMON PLEAS OF LEBdN'0({iftrolJ1.Ji¥P1 3 32
                                         PENNSYLVANIA

                                                    CRIMINAL DIVISION

       COMMONWEALTH OF PENNSYLVANIA                                            NO. CP-3CR-1103-2012

                v.

       OMAR D. DIAZ-PERDOMO


       APPEARANCES:

       NICHOLE EISENHART, ESQUIRE                                     FOR THE COMMONWEALTH
       ASSISTANT DISTRICT ATIORNEY

       ERIN ZIMMERER, ESQUIRE                                         FOR OMAR D. DIAZ-PERDOMO
       MONTGOMERY & ZIMMERER, LLC

       OPINION, TYL~~LK, P.J., NOVEMBER ~3.~_2.01~~                                                                                 .

                 Defendant was charged with Possession with Intent to Deliver a Controlled
---------·---·----------~-----··-----·---------------------                                                       --
       Substance (Count 1- morphine sulfate pills), two counts of Possession of a

       Controlled Substance (Count 2 - morphine sulfate pills and Count 3 - cocaine)

       and Possession of Drug Paraphernalia (Count 4- plastic straw).1 The drugs and

       paraphernalia were found during searches conducted at the scene of Defendant's

       arrest, at Central Booking, and at Defendant's residence on April 19, 2012. After a


       135
             P.S. §780-113(a)(30),35 P.S. §780-113(a)(16) and 35 P.S. §780-113(a)(32), respectively.

                                                                 1
jury trial on April 3, 2013, Defendant was convicted of all charges. He was

sentenced to an aggregate term of thirty-nine to seventy-eight months in a state

correctional institution on June 12, 2013. Post-Sentence Motions were denied by

Order of October 22, 2013 and the Pennsylvania Superior Court affirmed on

August 15, 2014.                                                                                i

                                                                                                1
                                                                                                L
      On October 27, 2014, Defendant filed a Petition pursuant to the Post                      i


Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq. After PCRA counsel was

appointed, he filed an Amended Petition on February 2, 2015 and a Second

Amended Petition on April 8, 2015. Defendant asserts ineffective assistance of

counsel on the part of his trial counsel and also assigns error to our failure to

appoint conflict counsel to represent him due to his problems in his dealings with

trial counsel. We conducted a hearing on June 25, 2015, both parties have

sUbmittea-Briefs,ancf tne matter'"isnovibefore us for resolution.                    ·-··   .

       To prevail on a claim of ineffectiveness of counsel, a defendant must show

that his claim was of arguable merit, there was no reasonable basis for counsel's

 conduct, and counsel's conduct prejudiced the defendant. Commonwealth v.

Johnson, 874 A.2d 66, 73 (Pa. Super. 2005). If a defendant fails to satisfy any

 prongs of the test, he is not entitled to relief. Commonwealth v. Natividad, 938

 A.2d 310 (Pa .. 2007). If the defendant fails to demonstrate that the underlying
                                           2
claim is of arguable merit, the ineffectiveness claim may be dismissed on that

ground alone and it is not necessary to consider the other two factors.

Commonwealth v. DINicola, 751 A.2d 197, 198 (Pa. Super. 2000). If a defendant

fails to demonstrate that he was prejudiced by counsel's actions, the

Ineffectiveness claim may be dismissed on that ground alone and it is not

necessary to consider the first two factors. Commonwealth v. Sararichak, 866
                                                                                                                                               l
                                                                                                                                               i


A.2d 292, 300 (Pa. 2005). Counsel's actions will not be found to have lacked a

reasonable basis unless the petitioner establishes that an alternative not chosen

by counsel offered a potential for success substantially greater than the course

pursued. Id. Prejudice means that, absent counsel's conduct, there is a

reasonable probability that the outcome of the proceedings would have been
                      .   ...   .. . . .· ..   ....
                                                          .   ................
                                                                                 . .   ......   :-   ..   .   ..   .   .   .   . . .. ~   ..

different. Id.



             . On April 19, 2012, at approximately 8:00 p.m. (State Parole Officer)
       Thomas observed Defendant standing on the front steps of the Liberty Bar
       talking on a cellphone. Defendant's conditions of parole supervision
       prohibit the consumption of alcohol. ... Thomas knew the Liberty Bar to be
       an establishment which serves alcohol and which is well-known for drug-
       trafficking location. Thomas had previously supervised Defendant on
       parole and during that time had searched him and found that he possessed
       controlled substances. In addition, Thomas noted that Defendant's
       criminal history contained five convictions for felony drug offenses dating
        back to the 1980's.

                                                      3
      '   .
                                                                                                                                            j


                             Defendant remained on the steps while Thomas parked his vehicle.
                     As Thomas approached the bar, Defendant began to walk toward Thomas.
                     Thomas detected the odor of alcohol coming from Defendant's person.
                                                                                                                                            I
                   · Defendant did not appear visibly intoxicated to Thomas. Thomas ordered
                     Defendant to place his hands on the wall of the bar and conducted a search
                                                                                                                                            I   I



                     of his body. A bag of pills and a roll of money was found in Defendant's
                     right-front pocket. Thomas also confiscated the keys to Defendant's                                                    I
                     residence. When Thomas attempted to search Defendant's left-front
                     pocket, he resisted and Thomas called for backup. Two officers responded
                     to his call and Defendant was taken into custody. Thomas testified that he
                     had conducted the search to ensure Defendant's compliance with his
                     conditions of supervision.                                                                                                 t   I
                                                                                                                                                    '
                           Thomas testified that he lodged a parole detainer on Defendant
                     based on the contraband obtained during the search of his person. When
                     Defendant was taken to Central Booking, he was searched a second time.
                     That search resulted in confiscation of $280.70, a small plastic straw and
                     two small plastic bags containing a white powdery substance. Once he was
                     arrested, Defendant asked to make a phone call and indicated that there
                     were items which he wanted to have removed from his apartment.
                     Thomas and one of the other officers then used the key taken from
                                                                                                 . . ...   .   .. . ·.'   . ;.. . . ~ ...
                     Defenda ntto enter and .search Defendant' s residence in order toflnd
                     additional evidence of drug possession or sales. No search warrant was
                     obtained prior to the search of the residence. That search ~ielded _$80_0.00.                · ···--··--·-·--
----·-··----- · -- ·-------- -·--·--.------------   ·----- ------~----------   -·------
                                                                                                                                                        '


              (Slip Opinion dated December 18, 2012 at 2-4).                                                                                            1;
                                                                                                                                                         l
                     At Defendant's jury trial, the Commonwealth presented testimony as to the
                                                                                                                                                            I!
              amount of cash in Defendant's possession at the time of his arrest. This evidence

              was directed to the allegation that Defendant was involved in the sale of                                                                     Ii
                                                                                                                                                             '
              controlled substances (the morphine pills). The cash referred to was the $280.70

              found on Defendant's person and the $800.00 found in his residence. Defendant
                                                                  4
claims that the money was unrelated to any drug activity and that he was in

possession of the cash because he was working full-time at Triangle Car Wash at

the time and had just received his pay. At the jury trial, Officer Thomas testified

that Defendant was employed part-time at the Car Wash earning $8.00 per hour.

Defendant complains that trial counsel offered no contradictory evidence as to

Defendant's employment status at the trial.

         At the PCRA hearing, Defendant testified that prior to the jury trial, he had

obtained a letter from his employer which indicated his employment status as

"full-time."   Defendant insisted that prior to trial, he had sent a letter informing

trial counsel that he had this letter and that he asked him to use it to refute the

Commonwealth's evidence with regard to his employment status.            He claims that

he had also requested trial counsel to obtain his employment records for use at

trial.   At the PCRA hearing,-Defendant did not present the letter nor did he           --------

identify any witnesses who could have testified as to his employment status at

the jury trial.

         Trial counsel testified that he could not recall having received any letter

 about Defendant's employment status from Defendant prior to the trial, and that

the PCRA hearing was the first time he was hearing about it. Trial counsel

 checked his file, and although it contained the other letters he had received from
                                             5
       Defendant, it did not contain the one referred to by Defendant.     Trial counsel

       recalled that Defendant had told him that he was working full-time; however,

       when defining his work hours, Defendant had explained that he only worked "on

       and off."   Trial counsel explained that he did not delve any further into the

       subject of Defendant's employment status at trial because the Commonwealth's

       testimony was consistent with the information he had been given by Defendant.

       Trial counsel explained that if he had any other information about Defendant's

       employment, he would have discussed the subject with Defendant prior to trial.

       However, based on the information given to him by Defendant, he was not made

       aware of any additional relevant information regarding Defendant's employment

       which would warrant further investigation or clarification.

              We find no merit to this argument as we believe trial counsel acted

-·--   reasonably under the circumstances·. He had no reason to question o~ co.nduct

       any pretrial investigation as a result of the information given to him by

       Defendant. He also had no reason to believe that there was a need to challenge

       the Commonwealth's evidence regarding Defendant's employment status as that

       evidence was consistent with what he had been told by Defendant.         In fact, he

        did bring up the fact that Defendant received tips in addition to his hourly wage at

        his employment.    (N.T. 6/25/15 at 24)   The jury was given the same information
                                                  6
        about Defendant's work hours and wages as Defendant gave to trial counsel. At

        the PCRA hearing, Defendant did not present any evidence of the letter he

        allegedly sent to trial counsel, the letter regarding his employment status, or any

        other documentation     or witnesses to substantiate his claim. Therefore, he is not

        entitled to collateral relief on this basis.

               Defendant next complains that Defendant failed to take various measures

        to attack the credibility of two Commonwealth witnesses, State Parole Officer

        Thomas and Adam Rusz, a Lebanon City Police Officer who responded to assist

        Officer Thomas at the scene. Defendant first points to a discrepancy over where

        the $280.70 was confiscated on the date of his arrest. Defendant contends that

        the money was taken from him during the search conducted by Officer Thomas at

        the scene at Ninth and Mifflin Streets. Officer Rusz indicated in the police report           . . ..   j


-----·· that it wasfound at CenfraTBooking, while the inventory report prepared by            · ---            I



         Office Rusz states that it was found at the scene. In addition, Defendant                             II
         complains that Officer Thomas testified that he was not present at Central

         Booking, but that he was actually present there.

               Prior to the jury trial, Defendant had requested trial counsel to obtain the

         video footages from both the Lebanon City police vehicle and Central Booking in

         the hope that these videos would reveal these inconsistencies and suggest that
                                                       7
        the testimony given by these two witnesses was unreliable.     Trial counsel

        explained that nothing he had received in discovery had indicated that these

        items would be relevant and that he would have sought them prior to receiving

        Defendant's request if he had any belief that they would aid in the defense.

               With regard to the footage from Central Booking, trial counsel explained

        that Defendant first made this request during a meeting at the Lebanon County

        Correctional Facility on January 22, 2013. Trial counsel submitted this request via

        an email to the District Attorney on February 1, 2013; however, he was Informed

        that the footage was only kept for thirty days and that since the incident had

        occurred in April 2012, it had already been destroyed.

               We find no fault on the part of trial counsel on this point. It was
                                                                                              !I
         reasonable for him not to obtain the footage prior to receiving Defendant's

------reqUesfsince-nis rev1ew-ofdiscovery revealed nothing to suggest that it might           Ii
         contain something helpful to the defense. Despite his opinion that the footage

         would not be relevant, trial counsel did attempt to comply with Defendant's

         request promptly and he cannot be faulted for its unanvailability.

               Defendant had also hoped that there would be footage of the search

         conducted by Officer Thomas to show that the $280. 70 had been found at the

         scene. For that reason, he had trial counsel obtain the footage from the police
                                                   8
       vehicle which had responded to assist Officer Thomas. After viewing it,

        Defendant and trial counsel agreed that the footage showed only the interior of

        the police vehicle while Defendant was being transported from the scene to

        Central Booking.   There was no footage of anything which occurred outside prior

        to Defendant being placed inside the vehicle. Since nothing occurred during the
                                                                                                           l
                                                                                                           I

        trip to Central Booking which was relevant to Defendant's case, trial counsel did
                                                                                                           I
        not play the footage for the jury at trial.                                                        \



               We fail to see any prejudice suffered by Defendant by trial counsel's actions
                                                                                                           I
                                                                                                           I
        with regard to either of these videos. Defendant did not dispute that he was in                    I
                                                                                                           l
        possession of this money. Even if the footage had shown what Defendant                             I
                                                                                                               I

        claimed, the location where that money was found, and OfficerThomas's
                                                                                      -·    .


        presence at Central Booking are inconsequential facts which would have had no

------bearing on the jury's verdict: Such facts had no relevance to the elements of             -·--·---

        Defendant's charges and, even if proven, would not have negated the facts

        relevant to the Commonwealth's proof of those elements. We believe the jury

        would have found them to be minor details which would not have had any impact

        . on the credibility attributed to these two witnesses. Trial counsel was able to

         obtain the police vehicle footage and gave Defendant an opportunity to view it.

         Defendant agreed that it showed nothing of the search conducted at the scene at
                                                      9
        Ninth and Mifflin Streets. He has identified nothing which would have been

        helpful to his case and trial counsel cannot be faulted for failing to present

        irrelevant evidence at trial.

               Defendant further claims that he was not using a cellphone prior to being

        approached by Officer Thomas, that he had not been inside the Liberty Bar, and

        that he had not consumed any alcohol prior to his arrest. He complains thattrial

        counsel failed to conduct an investigation regarding these facts and failed to "ask

        the right questions" of Officer Thomas and Officer Rusz regarding these matters in

        order to show their lack of credibility.                  He asserts that trial counsel should have

        questioned these witnesses as to why no cellphone was introduced as evidence

        and why there had been no blood or urine tests to determine whether Defendant
                                                                                   .                      .   .      .
                        ...............   .. ..   :   .   :   .

        had consumed alcohol. Defendant wanted these subjects brought up during trial

------ so that the jury could "know exactly what happened." (N.T. 6/25/15 at 25)                              ----

        However, he could not recall whether he even requested trial counsel to conduct

        such an investigation. He also admitted that he knew of no witnesses who could

         have testified to these facts and had no other evidence to demonstrate that his

        version of the facts was accurate.

               Trial counsel noted that he did refer to the Commonwealth's failure to

         produce a cellphone during his closing argument. He further explained that he
                                                                   10
could not follow up on these matters because Defendant could not give him the

names of any witnesses. He also did not want to go too much into what was

going on at the scene because the police report had indicated that another

individual was with Defendant when he was first observed by Officer Thomas. As

Officer Thomas approached, Defendant kicked something that looked like drugs

to that individual, and that individual picked up the item and ran into a building.

Trial counsel was concerned that if he went into what was going on outside the

bar, this would come up and it would suggest to the jury that Defendant had been

selling drugs. We believe that this was a reasonable basis for trial counsel to

avoid bringing up matters from the scene which would not have been helpful to

Defendant in the long run.                                              . . . -   .. -· .... -· .   -   -   •·   -·   ····-··   --   .
          ,;   : ..   :   ...   :·   .....   ·--·· ....

       Defendant also complains of trial counsel's failure to object to testimony
                                                                                  ---------···-·-·
offered by Officer Thomas which indicated that Defendant was ~~-par-ole. At the

jury trial, Officer Thomas had noted that Defendant was on state parole at the

time and was not permitted to be in an establishment that sells alcohol. In

 addition, Officer Thomas also lndlcated that he would be familiar with the home

 address of a supervisee. (N.T. Jury Trial 4/3/13 at 14~15} Defendant claims that

 this testimony implied that Officer Thomas was familiar with Defendant because

 he was on supervision, thereby causing prejudice in the eyes of the jury.
                                                          11
      Trial counsel explained that this testimony was offered by the

Commonwealth as an explanation for why Officer Thomas was making contact

with Defendant. Trial counsel knew that under the circumstances of the case,

there would be no way to avoid the subject of Defendant's supervision.                                                                                      He

believed that the jury was well aware that Defendant was on state parole at the
                                                                                                                                                                                            ,
                                                                                                                                                                                            !
time because he was detained by a state parole officer. Since there was no way
                                                                                                                                                                                            I
to avoid this subject, he did not object. We find it highly doubtful that the jury

would have reached a different verdict had it not known this information.

       Despite Defendant's complaints about trial counsel's failure to raise an

 objection to Officer Thomas's testimony indicating his parole status, he also

 complains that trial counsel failed to obtain and present documents from
                         .. ·.. · ..
                                   .   -:· ....   ·.   • • • •·   •   • • •" •   • ' • • •. • • • '> • • ·~ '   • •• •   'I   '•   .·•   ..   • '   •




 Defendant's home and job plan. Defendant contends that this information
                                                                                                                                                -----·- ..·---·-·---------------~- ------
-- would-have been usefuffo shed light on his employment status and to show that

 he was not living in a halfway house.

       Trial counsel explained that these records would not have been helpful to

 the defense and that he did not want to bring up more information regarding

 Defendant's background with probation and parole. He did not want to "open

 the door" to Defendant's supervision history as he had a number of previous

 violations and was behind in the payment of his fines and costs. Trial counsel
                                                                      12
        feared that this might suggest to the jury that Defendant did not have the money

        for these payments and had been selling drugs because he needed cash. We find

         no error of judgment on the part of trial counsel in his attempt to minimize any

         potential prejudice posed by Defendant's supervision history.

               Defendant also charges trial counsel's ineffectiveness on the basis that he
                                                                                                                  I
                                                                                                                  !


         failed to argue that the number of morphine pills in his possession (thirty-six) was                     [

         insufficient to sustain a verdict of possession with intent to deliver. He further

         complains that trial counsel failed to offer any evidence at the jury trial to show

         that the pills were for Defendant's personal use.

                At the PCRA hearing, Defendant gave confusing testimony in this regard.

         Defendant acknowledged that he did not request trial counsel to present any
                                                                   .·.··.   :   .. · ....   · ....   .'."




         evidence that the pills were for personal use. Defendant insisted that he had a

----·- prescription, but claimed that he did not tell trial c~uns;I why he had the pills in .               . .

         his possession because he had already told prison officials that he was not using

         any drugs In his intake form. (N.T. 6/25/15 at 14) In the next breath, however, he

         testified that he told trial counsel that he was taking the pills for leg pain and was

         not selling them. (N.T. 14)

                Defendant admitted that the only evidence which could have been


                                                   13
                                                                                                                            I
                                                                                                                            !
presented on this issue was his own testimony. (N.T. 21) However, on the                                                    I
morning of trfal, Defendant told both trial counsel and the Trial Judge that he                                             \



would not testify:
                                                                                                                            I
                                                                                                                            I
      Q. Okay. You also indicated that you believe there should have been                                                   I   I
      testimony on your behalf that the pills were for personal use, not sale,                                                  f
                                                                                                                                !
      correct?
                                                                                                                                I

      A. Yes.                                                                                                                   \
                                                                                                                                i
                                                                                                                                I
                                                                                                                                I

      Q: And what testimony would you have presented?

      A. I was ready to testify at my trial.

       Q: You were or you were not?

            A: I was. But somebody from the DA's Office talked to Ms. Verna and she
            said that I wasn't sick or dying. At the morning of the trial, he asked me do
            you want to testify or not that's when I said no, I'm not testifying. Okay. I
   . '. · ..don't know.what's thepolntwhen but+said+wasn't sickor anaddlct: :That ..        r • .... .' .. : ........   •


            was a good move.

--·-----q:··so-you-rfestimonyis that Ms. Verna was not going to testify that you
        had pain problems?

       A: No she cannot testify to nothing. I said to her when she asked me
       and she wrote it down that I wasn't an addict that was the question. I
       said no, I'm not an addict, and that's not on the paper the prosecution
       presented at my trial.

           Q: And so you decided you weren't going to testify on you own behalf
           to that information.

           A: What was the point? I already said that I wasn't an addict.

                                            14
                  Q: You recall Judge Tylwalk asking you questions on a recess to make
                  sure you understood you had the right to testify, correct?

                  A: Yes I do remember that.

                  Q: And during that, you indicated to him that you did not want to
                  testify?

                  A: Exactly.

                  Q: And there were no other witnesses that would have testified for you
                  that you these medical problems and pills for your personal use?

                  A: No there was no use for any witnesses because I already said that I
                  wasn't an addict and that I wasn't using.

         (N.T. 6/25/15 at 21-23)

               Trial counsel testified the Defendant had acknowledged to him that he was
                                                                                                        '
         using the morphine pills, and had told him they were in his possession for his                 I
                                                                                             . .. . .
         personal use. However, Defendant did not tell trial counsel that he was using the

-----·15ms-forpain:-1rcretenaant ha-dtolcfhim that he was usin-g them for pain, trial

         counsel would have followed up to obtain evidence of his medical condition and

         the details of his treatment.

               Trial counsel also explained that he had defended felony drug cases in the

         past and was familiar with presenting defenses in such cases. He was familiar

         with Sergeant Radwanski, the Commonwealth's expert on possession with intent

         to deliver, and had dealt with him in his past cases. Trial counsel conducted
                                                  15
       extensive questioning of Sergeant Radwanski regarding the factors relevant to a

        possession with intent to deliver case and felt that he asked all questions

        pertinent to the defense of this charge.

              We agree with the Commonwealth that Defendant cannot now complain

        that no evidence was presented to support his position that he was in possession

        of the morphine pills for personal use due to pain when he provided trial counsel       t
                                                                                                I
        with no information regarding this issue prior to trial.        Moreover, although

        Defendant had the absolute right to decline the opportunity to testify on his own

        behalf at trial, he admitted that this was the only evidence available on this point.

               At the jury trial, Sergeant Radwinski explained that morphine is a highly-

        addictive controlled substance and that the amount of pills possessed by

        Defendant is typically prescribed only for someone who is in extreme pain and

-·---·-1nat-ifwas-i.m"usuarfcir-someone outside of a care or hospital setting to be in

        possession of such an amount. Sergeant Radwinski also noted that an individual

        who was addicted would suffer severe withdrawal symptoms, would require

        treatment for withdrawal, and would be unlikely to state that he was not

        dependent so that he could obtain treatment for withdrawal symptoms when

        entering prison. Since Defendant had informed prison officials that he had no

        drug dependencies, it appearedthat he did not have the pills for personal use.
                                                   16
               Our review of the trial transcript reveals that trial counsel conducted a

        rigorous cross-examination      of Sergeant Radwinski regarding his opinion.      Trial

        counsel     asked   numerous    questions    regarding   the   money in Defendant's

        possession, the prison intake form, the way in which the pills were packaged, the

        lack of necessity of paraphernalia for ingesting such pills, and other issues which

        would have been relevant to the issue of an intent to distribute. We find nothing

         more that he could have done under the circumstances.

               Defendant's last complaint with trial counsel's performance centers on the

         post-trial motions and appeal pursued by trial counsel after Defendant was found

         guilty on these charges. ·tn the Post-Sentence Motion, trial counsel argued that

         we had erred in denying Defendant's pre-trial suppression motion and challenged

         the sufficiency of the evidence to support the conviction. Defendant now

--~-----·conten-a-s-th-at triarco"urisershouM have challenged the weight of the evidence. ---·-

         He argues that the discrepancy as to where the $280.70 was found and the lack of

         any evidence of Defendant's use of a cellphone casted significant doubt on the

         credibility of Officer Thomas and Officer Rusz.

                  Trial counsel explained that he saw no merit in including a challenge to the

         weight of the evidence because the determination of what credibility to give to

         the testimony of these two witnesses was for the jury and he saw no chance that
                                                    17
        such an argument would be successful. After reviewing the transcript of the jury

        trial, we agree with trial counsel that this argument would have been

        unsuccessful and that he was not required to pursue a meritless avenue at the

        post-sentence stage of these proceedings. The claimed inconsistencies were of

        insignificant matters and were irrelevant to the elements of the offenses with

        which Defendant was charged. We find nothing that would indicate lack of

        credibility on any of the Commonwealth witnesses to such a degree that their

        testimony should not have been given the credibility attributed to it by the jury.

                 Defendant's final complaint is with the Court. He asserts that we erred in

        falling to appoint conflict counsel when we became aware of a breakdown in the

         relationship between Defendant and trial counsel prior to the jury trial.2

         Defendant notes that he wrote to the Trial Judge about his trial counsel's

-----1rerceivecnaclfl5fcorrfmunical:ion 6ut that we referred him to-trial counsel and

        failed to take any action to alleviate his problems.

                 Defendant points us to the holding in Commonwealth v. Tyler, 360 A.2d

         617 (Pa. 1976) for the proposition that although indigent defendants are not

         entitled to their choice of appointed counsel, they may be entitled to new


         2
          We do not address the Issue raised by the Commonwealth as to whether this claim is cognizable under the PCRA
         as we find no merit to this complaint.

                                                               18
       counsel upon a showing of "good cause" in the nature of a conflict of interest or

        irreconcilable differences between the defendant and his attorney. He claims

        that he was entitled to new counsel due to a complete breakdown in

        communication   between himself and trial counsel, claiming that he repeatedly

        requested trial counsel to investigate his case and to produce evidence to refute

        the Commonwealth's     allegations that he had been selling drugs and to show the

        unreliability of the testimony of Officer Rusz and Officer Thomas.

              The situation in Tyler is different from this case. In Tyler, the defendant

        complained to the court of an irreconcilable difference between himself and his

       ···attorney-immediately prior to trial and the breakdown in the relationship was                    i
                                                                                                           ;




        confirmed by the defense attorney. The defendant ended up representing

        himself at trial after the court gave him the choice of proceeding with appointed                  I   !


                                                                     · ---·-------·---- -·--··-- -·   ..

-·--·- counsel or proceeding without an attorney. On appeal, the defendant was

        awarded a new trial:

                      In the instant case, court appointed counsel agreed with appellant
               that a difference of opinion did exist as to the manner in which the trial
               should be conducted. Moreover, there is no evidence that appellant's
               request for appointment of new counsel was arbitrarily made, or made for
               the sole purpose of delaying the trial. It is therefore clear to us that the
               court's refusal to appoint new counsel was an abuse of discretion, and
               appellant is entitled to a new trial, with new counsel, on that basis.


                                                  19
                      Alternatively, we conclude that the trial court committed reversible
                error by allowing appellant to proceed with the trial under his own
                representation, without first conducting a thorough on-the-record colloquy
                to determine whether appellant knowingly and understandingly made a
                decision to represent himself and also to determine the validity of his
                waiver of the constitutional right to representation by counsel.

         Id. at 619-620.

                Here, Defendant made no mention of any complaint regarding trial counsel

         throughout the pretrial period, at the time of the jury trial, or in post-sentence

         proceedings. In fact, when questioned by the Court, he stated that he had no

         complaints about trial counsel's performance. Without knowledge of the

          existence of any problem, we had no reason to take any measures in this regard.

          Moreover, our review of the entire record confirms that Defendant had no basis
                                                           .   ...   . .....

        . upOn which to compl,ifri about trial counsel's performance. Thus, even if more
------Com plaints-ha d-bee n-d i reeted-to-ou r--atte ntio nrthe re-wa s-n-o-rea so rrtoappojnt   ------ . ·-·-·---

          new counsel to represent Defendant.

                 For these reasons, we will deny Defendant's request for collateral relief.




                                                      20
        IN.THE SUPERIOR COURT OF PENNSYLVANIA

                            MIDDLE DISTRICT


COMMONWEALTH OF                         ••
   PENNSYLVANIA                          ••
                                        ••
                 vs.                          2116 MDA 2015

OMAR DIAZ-PERDOMO                       ••


                            PROOFOF SERVICE

      I hereby certify that I am this day serving two (2) copies of
the foregoing "Brief for Appellant" upon the persons and in the
manner indicated below which service satisfies the requirements
of Pa.R.A.P. 121:

Service by First Class Mail:

          The Honorable John C. Tylwalk, President Judge
···· ····Lebanon County Municipal Buildh1g ·
          400 South Eighth Street
          Lebanon, PA 17042

     Office of the District Attorney
     Lebanon County Municipal Building
     400 South Eighth Street
     Room 11
     Lebanon, PA 17042

DATED: ..'!)/a\ / ~()t \o
                                              Erin Zimm
                                              60 South
                                              Manheim,      7545
                                              (717) 665-1315
                                              I. D.#: 91392
                                   50
