J-S26006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOSE R. CUCURULLO TAVERAS

                            Appellant               No. 830 MDA 2014


                   Appeal from the PCRA Order April 22, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002059-2013


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                FILED MAY 08, 2015

       Jose R. Cucurullo Taveras appeals pro se from the order entered April

22, 2014, denying his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Cucurullo Taveras seeks relief

from the judgment of sentence of an aggregate nine to 21 years’

imprisonment, imposed after he entered a guilty plea to charges of robbery,

persons not to possess firearms, fleeing and eluding a police officer, and

possession of cocaine.1 On appeal, Cucurullo Taveras contends (1) the trial

court erred when it permitted his guilty plea to proceed after he made

statements that demonstrated his incompetence, and (2) trial counsel was

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1
  18 Pa.C.S. §§ 3701(a)(1)(ii) and 6105(a)(1), 75 Pa.C.S. § 3733(a), and 35
P.S. §780-113(a)(16), respectively.
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ineffective for facilitating the plea.    For the reasons set forth below, we

affirm.

      The facts underlying Cucurullo Taveras’s arrest and conviction are

gleaned from his guilty plea colloquy. On March 16, 2013, Cucurullo Taveras

entered a Turkey Hill store in Muhlenburg Township, Berks County, armed

with a loaded black .38 caliber revolver.        Cucurullo Taveras demanded

money from three employees, and then fled the scene.         A high-speed car

chase with law enforcement ensued. Cucurullo Taveras eventually crashed

his vehicle at the intersection of North 11th and Richmond Streets in

Reading. When police officers arrested Cucurullo Taveras, they recovered a

black .38 caliber handgun and cocaine. See N.T., 8/28/2013, at 7-9.

      Cucurullo Taveras was arrested and charged with a total of 17

offenses.   On August 28, 2013, Cucurullo Taveras appeared for a case

disposition hearing. Although William C. Bispels, Jr., Esq., was his appointed

counsel, on the morning of the hearing, Robert Kirwan, II, Esq., appeared

before the trial court on Cucurullo Taveras’s behalf.    Kirwan was privately

retained by Cucurullo Taveras, but had not yet entered his appearance

because Cucurullo Taveras informed him that he wanted to enter a guilty

plea that day. Kirwan refused to facilitate such a plea because he had not

yet reviewed Cucurullo Taveras’s file. See Id. at 2. Kirwan then informed

the court that Cucurullo Taveras told him “he does not want to be

represented by me now and that he wants to be represented by God.” Id.




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The court excused Kirwan and briefly continued the proceedings until Bispels

arrived.

       After consulting with Cucurullo Taveras, Bispels informed the court

that Cucurullo Taveras intended to enter an open guilty plea. The trial court

conducted an oral colloquy during which Cucurullo Taveras acknowledged

that he was satisfied with the representation of his attorney, and admitted

the facts underlying his offenses.         The trial court also reviewed a written

colloquy Cucurullo Taveras had prepared earlier that day.2 Thereafter, the

trial court accepted Cucurullo Taveras’s open guilty plea to one count each of

robbery, persons not to possess firearms, fleeing and eluding a police officer,

and possession of cocaine.3           The trial court proceeded immediately to

sentencing, and imposed a term of five and one-half to 11 years’

imprisonment for the robbery charge, a consecutive term of 42 months to 10

years’ imprisonment for the persons not to possess firearms charge, a

concurrent term of one to five years’ imprisonment for the fleeing and

eluding charge, and a concurrent term of six to 12 months’ imprisonment for

possession of cocaine charge.




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2
  Cucurullo Taveras acknowledged he completed the written colloquy and
answered the questions truthfully. N.T., 8/28/2013, at 5.
3
    The Commonwealth dismissed the remaining charges.




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       On September 9, 2013, Cucurullo Taveras filed a counseled post-

sentence motion seeking withdrawal of his guilty plea, and reconsideration of

his sentence.      He asserted that “he was not in his right mind when he

entered his plea,” because he was weak from fasting, and suffered from

mental illness.     Post-Sentence Motion, 9/9/2013, at 1.     Cucurullo Taveras

also stated that he had passed out in his cell following the hearing, and was

taken to Reading Hospital, which is “further proof of the fact that he was not

in his right mind” when he entered the plea.         Id. at 1-2.   The trial court

denied the motion the next day.

       On October 11, 2013, Cucurullo Taveras filed a pro se post sentence

motion, in which he maintained that his guilty plea was entered unknowingly

and involuntarily because he “had a 34 day religious fast, that threatened

[his] health and [his] life” and he was taken to the mental health unit of the

Berks County prison later that day.              Pro Se Post Sentence Motion,

10/11/2013, at ¶ 8.         He also asserted that both of his attorneys were

ineffective, and he requested reconsideration of his sentence. The trial court

treated the filing as a first PCRA petition, and appointed counsel.4



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4
  We note that the pro se motion was filed after the time for filing a timely
direct appeal expired. Therefore, the court properly treated the motion as a
PCRA petition, and, accordingly, appointed new counsel. We also note that
Cucurullo Taveras has never claimed Bispels was ineffective for failing to file
a direct appeal.




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       On February 4, 2014, PCRA counsel filed a Turner/Finley5 “no-merit”

letter, and requested permission to withdraw. On March 18, 2014, the trial

court provided Cucurullo Taveras with notice of its intent to dismiss his

petition without first conducting an evidentiary hearing pursuant to

Pa.R.Crim.P. 907.        The court also granted PCRA counsel’s request to

withdraw.     On April 7, 2014,        Cucurullo Taveras filed a response to the

court’s Rule 907 notice.         Thereafter, on April 22, 2014, the PCRA court

dismissed Cucurullo Taveras’s petition. This timely pro se appeal follows.6

       On appeal, Cucurullo Taveras challenges his competency at the time of

his guilty plea hearing. He argues the trial court erred when it allowed the

proceedings to continue after “repeated warning(s) to the Judge by Attorney

‘Robert Kirwan’ that [Cucurullo Taveras] wanted to be represented by GOD.”

Cucurullo Taveras’s Brief at 7 (emphasis in original).       Further, he asserts

Bispels was ineffective when he facilitated the plea after having had no

contact with Cucurullo Taveras for three months, and being advised by

Kirwan that Cucurullo Taveras was “suffering from some sort of [m]ental
____________________________________________


5
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6
  On May 14, 2014, the PCRA court ordered Cucurullo Taveras to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Cucurullo Taveras complied with the court’s directive and filed a
concise statement on June 2, 2014. Thereafter, on June 18, 2014, the PCRA
court file a memorandum opinion in which it incorporated its prior order and
notice of intent to dismiss filed on March 18, 2014.




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breakdown and was acting crazy.”               Id. at 7(c).   In support of his claim,

Cucurullo Taveras attached to his Rule 907 response, an undated document

entitled “Respondent’s Statement,” purportedly signed by Kirwan, in which

Kirwan asserts that, on the day of the guilty plea hearing, he believed

Cucurullo Taveras “was incompetent and suffering from a complete mental

breakdown due to mental health issues exacerbated by an extensive and life

threatening religious fasting.”7        Respondent’s Statement at ¶ 8.         In the

document, Kirwan also claimed to have told Bispels of his concerns

regarding Cucurullo Taveras’s mental health prior to the entry of the guilty

plea. Id. at ¶ 9.

       When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d

1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have

no support in the certified record.”           Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

       A petitioner who has entered a guilty plea may be entitled to relief

under the PCRA if he is able to plead and prove that his conviction was the


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7
  From what we can discern, this “statement” was filed in disciplinary
proceedings Cucurullo Taveras initiated against Kirwan.




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result of “[a] plea of guilty unlawfully induced where the circumstances

make it likely that the inducement caused the petitioner to plead guilty and

the petitioner is innocent.”         42 Pa.C.S. § 9543(a)(2)(iii).   However, a

petitioner must also demonstrate that his claim has not been previously

litigated or waived.        Id. at § 9543(a)(3).      Here, Cucurullo Taveras’s

assertion of trial court error is waived since he could have raised that claim

on direct appeal.8      See 42 Pa.C.S. § 9544(c) (“[A]n 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.”).

       Cucurullo Taveras also contends, however, that plea counsel was

ineffective for facilitating the entry of his guilty plea without sufficient time

to consult with him, and after being informed by another attorney that

Cucurullo Taveras was “suffering from some sort of mental breakdown.”

Cucurullo Taveras’s Brief at 7(c).

       Our review of an ineffectiveness claim is well-settled:

       We begin our analysis of ineffectiveness claims with the
       presumption that counsel is effective.       To prevail on his
       ineffectiveness claims, Appellant must plead and prove, by a
       preponderance of the evidence, three elements: (1) the
       underlying legal claim has arguable merit; (2) counsel had no
       reasonable basis for his action or inaction; and (3) Appellant
       suffered prejudice because of counsel’s action or inaction. With
       regard to the second, i.e., the “reasonable basis” prong, we will
       conclude that counsel’s chosen strategy lacked a reasonable
____________________________________________


8
  As noted supra, Cucurullo Taveras does not claim that he requested plea
counsel to file a direct appeal, and counsel ignored his request.



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      basis only if Appellant proves that “an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued.”       To establish the third, i.e., the
      prejudice prong, Appellant must show that there is a reasonable
      probability that the outcome of the proceedings would have been
      different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

citations omitted). A petitioner must demonstrate each prong of the

ineffectiveness test in order to obtain relief.    Commonwealth v. Steele,

961 A.2d 786, 800 (Pa. 2008).

      In the present case, the PCRA court found Cucurullo Taveras’s

ineffectiveness claim lacked arguable merit. The court explained:

             Here, the record reflects that [Cucurullo Taveras] was
      advised of the nature of the charges to which he was pleading
      guilty, the factual basis for the plea, and his right to a jury trial.
      [Cucurullo Taveras] was also informed of the presumption of
      innocence and the maximum possible penalties. The record
      further reflects that [Cucurullo Taveras] stated that he was
      satisfied with the services of his attorney. In addition, [he]
      signed a Statement Accompanying Defendant’s Request to Enter
      a Guilty Plea, which was incorporated into the record.

            The longstanding rule of Pennsylvania law is that a
      defendant may not challenge a guilty plea by claiming that he
      lied under oath, even if he asserts that counsel induced the lies.
      Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
      2003). Since the record in the instant matter reflects that
      [Cucurullo Taveras’s] plea was knowingly, intelligently, and
      voluntarily entered, this claim is [] without merit.

Order and Notice of Intent to Dismiss, 3/18/2014, at unnumbered 7 (record

citations omitted).

      Our review of the transcript from the guilty plea hearing supports the

findings of the PCRA court.      Although Kirwan initially told the court that



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Cucurullo Taveras wanted to be represented by God, Cucurullo Taveras’s

subsequent demeanor and responses during the guilty plea colloquy raised

no concerns regarding his mental health. Further, on the written colloquy,

Cucurullo Taveras answered that he does “not currently suffer from mental

illness.”   Statement Accompanying Defendant’s Request to Enter a Guilty

Plea, 8/28/2013, at ¶ 8 (emphasis supplied).9 We also note that during the

sentencing hearing, which immediately followed the guilty plea, Cucurullo

Taveras apologized for his crimes and expressed his remorse. He stated he

had chosen to “follow God the rest of [his] life” and he believed God’s

“mighty hand” protected the store clerks during the robbery.              N.T.,

8/28/2013, at 14.

       Moreover, we disagree with Cucurullo Taveras’s contention that the

document he attached to his Rule 907 response, purportedly signed by

Kirwan, entitles him to relief.            The document, entitled “Respondent’s

Statement,” is ostensibly signed by Kirwan, appears to reflect Kirwan’s

concern regarding Cucurullo Taveras’s competency on the day of the guilty

plea hearing.10     However, the “statement” is undated and bears a caption

distinct from the criminal case herein. Significantly, Cucurullo Taveras has
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9
  Cucurullo Taveras did indicate, however, that he had “previously suffered
from, or been treated for mental illness.” Id. at ¶ 9 (emphasis supplied).
10
   However, despite his reservations concerning Cucurullo Taveras’s mental
state, Kirwan acknowledged in the statement that he was “not a psychiatrist
or a mental health professional.” Respondent’s Statement, at ¶ 8.



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not attached the original document to which Kirwan appears to be

responding. Furthermore, while this purported statement by Kirwan might

have been relevant in determining whether the PCRA court should have

conducted a hearing on Cucurullo Taveras’s claims, Cucurullo Taveras did

not request such relief in either his response to the Rule 907 notice or in this

appeal.

      Accordingly, because we conclude the PCRA court’s determination that

Cucurullo Taveras’s competency challenge has no arguable merit is free from

legal error and supported by the record, we affirm the order dismissing his

PCRA petition. See Burkett, supra.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




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