J-S02034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 SANTIAGO PEDROSO                         :
                                          :
                    Appellant             :       No. 1552 EDA 2018

                  Appeal from the PCRA Order May 4, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012715-2013


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                         FILED APRIL 1, 2019

      Appellant, Santiago Pedroso, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      In its opinion, the PCRA court correctly set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

We add that Appellant filed a motion to suppress on January 28, 2015, which

the court denied after a hearing on February 23, 2015. On April 30, 2018,

Appellant file a pro se petition for an extension of time to file an amended

PCRA petition. Appellant filed a pro se amended PCRA petition on May 14,

2018, without leave of court. Appellant timely filed a pro se notice of appeal

on May 21, 2018. That same day, the PCRA court ordered Appellant to file a
J-S02034-19


concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant timely complied pro se on May 31, 2018.

     Appellant raises the following issues for our review:

        DID THE [PCRA] COURT ERR[] WHEN IT FAILED TO GRANT
        [APPELLANT’S] EXTENSION OF TIME MOTION IN ORDER TO
        FILE AN AMENDED PCRA PETITION WHEN PCRA COUNSEL
        FILED AN "AMENDED TURNER/FINLEY NO-MERIT
        LETTER" WITHOUT LEAVE OF COURT ON MARCH 21, 2018,
        AFTER [THE PCRA COURT HAD ENTERED RULE] 907 NOTICE
        TO DISMISS AND [APPELLANT HAD FILED A PRO SE RULE]
        907 RESPONSE? WAS AMENDMENT OF THE PCRA PETITION
        REQUIRED TO ACHIEVE SUBSTANTIAL JUSTICE?

        DID THE [PCRA] COURT ERR[] WHEN IT FOUND TRIAL AND
        PCRA COUNSEL EFFECTIVE? DID THE [PCRA] COURT ERR[]
        WHEN IT FOUND [APPELLANT]’S ISSUE OF [TRIAL]
        COUNSEL PROVIDING INEFFECTIVE ASSISTANCE FOR
        FAILING TO ARGUE SUPPRESSION OF [APPELLANT]’S
        STATEMENT TO POLICE?

        DID THE [PCRA] COURT ERR[] WHEN IT FAILED TO FIND
        THAT TRIAL AND PCRA COUNSEL BOTH PROVIDED
        INEFFECTIVE ASSISTANCE OF COUNSEL WHEN THEY BOTH
        FAILED TO COMMUNICATE THE POTENTIAL PLEA BARGAIN
        THAT THE COMMONWEALTH OFFERED?

        DID THE [PCRA] COURT ERR[] WHEN IT FAILED TO FIND
        PCRA COUNSEL PROVIDED INEFFECTIVE ASSISTANCE FOR
        FAILING TO ARGUE THE HEAT OF PASSION DOCTRINE?
        AND WAS [APPELLATE] COUNSEL INEFFECTIVE FOR
        FAILING TO BRIEF AND ARGUE THE HEAT OF PASSION
        DOCTRINE ON DIRECT APPEAL…?

        DID THE [PCRA] COURT ERR[] WHEN IT FAILED TO FIND
        TRIAL COUNSEL INEFFECTIVE FOR FAILING TO MOTION
        THE COURT PURSUANT PA.R.CRIM.P. 588? AND WAS PCRA
        COUNSEL INEFFECTIVE FOR FAILING TO ARGUE [TRIAL]
        COUNSEL’S INEFFECTIVENESS FOR FAILING TO MOTION
        FOR THE RETURN OF [APPELLANT’S] CONFISCATED MONEY
        PURSUANT TO RULE 588?


                                    -2-
J-S02034-19


         DID THE [PCRA] COURT ERR[] WHEN IT FAILED TO FIND
         PCRA COUNSEL INEFFECTIVE FOR FAILING TO ARGUE
         TRIAL COUNSEL’S INEFFECTIVE ASSISTANCE OF COUNSEL
         FOR FAILING TO PROTECT [APPELLANT] BY REQUESTING A
         COLLOQUY     BEFORE   STIPULATING    TO   MULTIPLE
         STIPULATIONS AT [APPELLANT’S] JURY TRIAL, THEREBY
         VIOLATING [APPELLANT’S] CONSTITUTIONAL RIGHTS?

(Appellant’s Brief at 9-10).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d

74 (2007).     We give no such deference, however, to the court’s legal

conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.

2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907. The court has

broad discretion to grant or deny a petition for an extension of time to file an

amended PCRA petition. Pa.R.Crim.P. 905(a); Commonwealth v. Padden,

783 A.2d 299, 308 (Pa.Super. 2001).


                                     -3-
J-S02034-19


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

applicable law, and the well-reasoned opinion of the Honorable Glenn B.

Bronson, we conclude Appellant’s issues merit no relief.       The PCRA court

opinion comprehensively discusses and properly disposes of the questions

presented. (See PCRA Court Opinion, filed August 17, 2018, at 5-11) (finding:

(1 and 6) by filing notice of appeal on May 21, 2018, Appellant deprived PCRA

court of opportunity to vacate PCRA denial order and grant motion to file

amended petition; further, Appellant had opportunity to raise new issues in

his response to Rule 907 notice and raised all but one of proposed new issues

in his response to Rule 907 notice; only claim in proposed amended PCRA

petition that Appellant had not previously raised was ineffective assistance of

trial counsel for stipulating to certain trial testimony without conducting

colloquy with Appellant; Appellant’s proposed claim is without merit and would

not have entitled Appellant to PCRA relief, where colloquy on stipulations is

not required unless stipulations are equivalent to admissions of guilt; (2)

record demonstrates trial counsel moved to suppress Appellant’s statement to

police, which court denied after evidentiary hearing; record shows Appellant’s

statement was voluntary and court properly denied suppression motion;

therefore, claim lacks arguable merit; (3) prior to trial, Commonwealth

offered plea deal to Appellant to drop first degree murder charge in exchange

for guilty plea to third degree murder and various firearms charges; trial court

conducted oral plea colloquy; during colloquy, court asked Appellant if trial


                                     -4-
J-S02034-19


counsel had explained plea offer to him, and Appellant responded, “Yes, he

explained it to me”; Appellant subsequently rejected plea offer; record makes

clear trial counsel conveyed plea offer to Appellant, and Appellant knowingly

rejected plea; therefore, this claim is frivolous; (4) on direct appeal, Superior

Court rejected Appellant’s claim that he was entitled to jury instruction on

voluntary manslaughter because trial evidence did not support it; counsel

cannot have been ineffective for failing to argue claim; (5) Appellant has failed

to allege how counsel’s failure to move for return of his property undermined

truth-determining process; therefore, Appellant’s complaint is not cognizable

PCRA claim). Accordingly, we affirm based on the PCRA court opinion.

Order affirmed. Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/19




                                      -5-
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                                                                                               Circulated 03/04/2019 04:26 PM
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                                             IN THE COURT OF COMMON PLEAS
     2018 AUG 11 PH 3: 05               FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                 CRIMINAL TRIAL DIVISION
     OFFICE OF JUDICIAL RECORDS
          CRIMIHt'.     �"M:R1}l
       FIRST JIJ[•;rq.f?. ,,;.) ,W�EALTH OF                                       CP·5 l-CR-OO 12715-2013
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                                                                                    ltlllffP�Lft111m
                      SANTIAGO PEDROSO

                                                              OPrNION

                      BRONSON,J. ·                                                August 17, 2018


                      On February 25, 2015, following a jury trial before this Court, defendant Santiago

         Pedroso was convicted of one count each of first degree murder (18 Pa.C.S. § 2502(a)), carrying

         a firearm without a license ( 18 Pa. C.S. § 6106), carrying a firearm on a public street in

         Philadelphia (18 Pa.C.S. § 6108), and possessing an instrument of crime (18 Pa.C.S. § 907). The

         Court immediately imposed the mandatory sentence of life in prison for the murder charge (18

         Pa.C.S. § l 102(a)(l)), and imposed no further penalty on the remaining charges. Defendant was

         represented at trial, sentencing, and on appeal by Richard J. Giuliani, Esquire.

                      On May 17, 2016, the Superior Court affirmed defendant's judgment of sentence, and on

         September 27, 2016, the Supreme Court denied allocatur. Defendant then filed a prose petition

         under the Post Conviction Relief Act ("PCRA") on May 19, 2017. On October 11, 2017,

         Stephen T. O'Hanlon, Esquire was appointed to represent defendant. On November 18, 2017,

         pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), Mr. O'Hanlon filed a

         letter stating there was no merit to defendant's claims for collateral relief ("Finley letter"). On

         January 12, 2018, the Court issued notice, pursuant to Pa.R.Crim.P. 907 ("907 Notice") of its

         intention to dismiss defendant's petition without a hearing. On February 2, 2018, defendant filed
a response to the Court's 907 Notice. Mr. O'Hanlon thereafter filed a supplemental Finley letter

on March 21, 2018. On May 4, 2018, the Court dismissed defendant's PCRA petition and

granted Mr. O'Hanlon's motion to withdraw his appearance.

        Defendant has now appealed the Court's dismissal of his PCRA Petition, alleging that: 1)

the Court erred when it did not grant defendant's motion for an extension of time to file an

Amended PCRA Petition; 2) trial counsel was ineffective for failing to argue the suppression of

defendant's police statement; 3) trial counsel was ineffective for failing to communicate a

potential plea agreement to defendant; 4) the trial court abused its discretion when it failed to

instruct the jury on voluntary manslaughter, and trial counsel was ineffective for failing to

effectively argue for such an instruction; 5) trial counsel was ineffective for failing to motion the

Court for the return of defendant's property; and 6) trial counsel was ineffective for failing to

request a colloquy before entering into multiple stipulations at trial. Statement of Matters

Complained of on Appeal (Pa.R.A.P. l 925(b)) ('1Statement of Matters") at ,r,r 1-6. In addition,

for claims 2-6, defendant claims that PCRA counsel was ineffective for failing to raise these

issues in an Amended Petition. Id. at 1,r 2-6. For the reasons set forth below, defendant's claims

are without merit or are waived, and the Court's order dismissing his PCRA petition should be
                                                                                                    I
.affirmed.                                                                                          !

                                    I. FACTUAL BACKGROUND

        The factual background of this matter is set forth in the Court's Rule l 925(a) opinion

filed in defendant's direct appeal as follows:

        At trial, the Commonwealth presented the testimony of Philadelphia Police
        Officers Richard Keen, Carlos Cruz, Deatrice Kennedy (ret.), and Clyde Jones,
        Walter White, Jeffrey Minio, and Rachel Pedroso. Defendant presented the
        testimony of Philadelphia Police Officer Justin Kensey. Viewed in the light most
        favorable to the Commonwealth as the verdict winner, the evidence established
        the following.




                                                  2
        On June 21, 1992, at approximately 7:30 p.m., defendant and his daughter, Rachel
        Pedroso, were having a Father's Day dinner at The Hathaway Inn, at 515 West
        Chelten Avenue.' N.T. 2/24/15 at 58; 2/25/15 at 44. While they were eating
        dinner, defendant talked to Rachel about the relationship between defendant's
        wife, Maria Gomez, and Delores Alvarez. N.T. 2/25/15 at 52, 72, 130. Alvarez
        had moved to Philadelphia from California and had previously lived with
        defendant, Rachel and Gomez. N.T. 2/25/15 at 52�53. About one month prior to
        the Father's Day dinner, Rachel, Gomez and Alvarez had moved out of the home
        because defendant believed that Alvarez was having a lesbian affair with Gomez
        and defendant wanted Alvarez out of the house. N.T. 2/25/15 at 51-54.
        As defendant and Rachel were talking at dinner, Gomez and Alvarez entered the
        restaurant. N.T. 2/25/15 at 44, 131. Upon seeing Gomez and Alvarez, defendant
        stated, "God sent her to me" and left the restaurant with Rachel, returning to his
        home approximately one block away. N.T. 2/25/15 at 44, 54-56, 131. Defendant
        then went into the basement and, before leaving the house, told Rachel, "I'm sorry
        I have to do this, but I'm doing this because of you, because you don't want to
        come live with me." N.T. 2/25/15 at 55, 132. Defendant also told Rachel to stay
        at his house, as he didn't want her to see what he was going to do. N.T. 2/25/15
        at 132.                                                             ·

        Defendant then returned to the restaurant, with Rachel following him saying,
        "daddy no, daddy, no." N.T. 2/24/15 at 92; 2/25/15 at 56-57. Rachel continually
        attempted to get defendant not to return to the restaurant, but defendant repeatedly
        pushed her away. N.T. 2/25/15 at 57, 132. Defendant then entered the restaurant,
        approached Gomez and Alvarez, pulled out a gun and shot Alvarez five times.
        N.T. 2/24/15 at 56, 92-93; 2/25/15 at 58-59, 115-120, 132-133. Defendant used a
        black .38 caliber revolver to shoot Alvarez. N.T. 2/24/15 at 61; 2/25/15 at 121-
        122. Defendant then turned the gun on Gomez, but Rachel interposed herself
        between them and defendant lowered the gun. N.T. 2/25/15 at 58, 133.
        Defendant told Gomez that he would not shoot her because of their daughter. Id.
        Defendant then left the restaurant on foot. N.T; 2/24/15 at 93, 2/25/15 at 58.
        Rachel identified her father to police shortly after the shooting. N.T. 2/25/15 at
        62-63, 136.

        Following the shooting, defendant fled from the United States, eventually being
        arrested more than twenty-one years later in the Philippines. N.T. 2/25/15 at 124-
        126·. Upon being returned to Philadelphia, defendant provided a statement to
        police, in which defendant admitted that he had shot Alvarez and fled the scene.
        N.T. 2/24/15 at 104, 110, 115-117. Defendant stated that he had used a .38
        caliber revolver. N.T. 2/24/15 at 115. Defendant then admitted. that he had fled
        Philadelphia, traveling first to New York City, then the Dominican Republic, then
        Venezuela, and finally to the Philippines, where he had remarried. N.T. 2/24/15
        at 117. Defendant claimed in his statement that he only fired his gun after being

1As defendant and Rachel share the same last name, Rachel wiU be identified by her first name, in order to avoid
confusion.



                                                         3
       shot at by Alvarez. N.T. 2/24/15 at 115. However, no firearm was ever recovered
       from Alvarez. N.T. 2/25/15 at 29-30, 124.

Trial Court Opinion, filed May 28, 2015, at pp. 2-3.

                                         II. DISCUSSION

       An appellate court's review of a PCRA court's grant or denial of relief "is limited to

determining whether the court's findings are supported by the record and the court's order is

otherwise free of legal error. Commonwealth v. Green, 14 A.3d 114, 116 (Pa. Super. 2011)

(internal quotations omitted). The reviewing court "will not disturb findings that are supported

by the record." Id.

       Here, the majority of defendant's claims pertain to the al1eged ineffective assistance of

counsel. Under Pennsylvania law, counsel is presumed to be effective and the burden to prove

otherwise lies with the petitioner. Commonwealth v. Reid, 99 A.3d 427, 435 (Pa. 2014f To

obtain collateral relief based on the ineffective assistance of counsel, a petitioner must show that

counsel's representation fell below accepted standards of advocacy and that as a result thereof,

the petitioner was prejudiced. Strickland v. Washington, 466 U.S. 668, 694 (1984). In

Pennsylvania, the Strickland standard is interpreted as requiring proof that: (1) the claim

underlying the ineffectiveness claim had arguable merit; (2) counsel's actions lacked any

reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice.

Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009) (citing Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987)). To satisfy the third prong of the test, the petitioner mpst prove that,

but for counsel's error, there is a reasonable probability that the outcome of the proceeding

would have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa. 2006) (citing

Strickland, 466 U.S. at 694). If the PCRA court determines that any one of the three prongs

cannot be met, then the court need not hold an evidentiary hearing as such a hearing would serve




                                                  4
no purpose. Commonwealth v. Jones, 942 A.2d 903, 906, appeal denied, 956 A.2d 433 (Pa.

2008).

         A." Court Error for Failing to Grant Defendant's Motion for
               Extension of Time to File Amended PCRA Petition

         Defendant first claims that the Court erred "when it failed to Grant the Petitioners [sic]

Extension of Time Motion in order to file an Amended PCRA Petition ... " Statement of Matters

at � 1. This claim is without merit.

         The motion that defendant is referring to, while postmarked April 30, 2018, was not

received by the Court until May 10, 2018, approximately six days after defendant's PCRA

petition had already been dismissed. Although the Court could have vacated its dismissal order

and granted defendant's motion, defendant deprived the Court ofjurisdiction to do so by

appealing the dismissal order on May 21, 2018, before the Court ruled on defendant's motion.

See 42 Pa.C.S. § 5505 ("[A] court upon notice to the parties may modify or rescind any order
                .             .
within 30 days after its entry, notwithstanding the prior termination of any term of court, if no

appeal from such order has been taken or allowed."),

         Moreover, defendant's request to raise new issues could have been timely raised by

asserting them in his response to the Court's 907 notice. In fact, defendant did raise all but one

of the new issues in the 907 response. The only claim in the proposed amended petition that had

not already been raised and rejected by defense counsel and the Court was a claim that trial

counse] was ineffective for stipulating to certain testimony at trial without conducting a colloquy

with defendant. See Amended PCRA Petition Pursuant to Pa.R.Crim.P. 905(A) at pp. 27-37.

That one issue was clearly without merit and would not have entitled defendant to PCRA relief.

See Commonwealth v. Davis; 322 A.2d 103, 105 (Pa. 1974); Commonwealth v. Bride/!, 384 A.2d




                                                   5
942, 944 (Pa. Super. 1978) (colloquy with defendant regarding stipulations is not required unless

the stipulations are the equivalent of an admission of guilt).

        Accordingly, the Court could not have erred in failing to grant defendant's motion for an

extension of time to file an amended petition, since the court was without jurisdiction to grant

such relief due to the pendency of the instant appeal. In any event, all of the claims in the

proposed amended petition are without merit. No relief is due.

       B. Failure to Argue for the Suppression of Defendant's Police Statement

       Defendant next claims that trial counsel was ineffective for "failing to argue the

Suppression of Petitioners [sic] Statement to Philadelphia Homicide Detectives[.]" Statement of

Matters at� 2. Additionally, defendant claims that PCRA counsel was ineffective for failing to

argue this issue. Id

       Defendant's claim,   as stated, is frivolous. The record demonstrates that trial counsel did
make a pre-trial motion to suppress defendant's statement to police, which the Court denied after

an evidentiary hearing. See Motion to Suppress, filed February 21, 2015; N.T. 2/23/15 at 4-64.

Moreover, defendant could not make a cognizable PCRA claim that the Court erred in denying

his suppression motion since· that claim could have, but was not, raised on direct appeal. 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, [or] on appeal"); see Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa.

2001). Defendant could have, however, raised a claim in his PCRA petition that appellate

counsel was ineffective for failing to raise the suppression issue on direct appeal. Such a claim,

however, would be meritless.

       Defendant claimed in his pretrial motion to suppress that his statement should be

suppressed since it was not voluntarily given. In particular, defendant argued that his will was




                                                  6
overborne due to the length of time he was in custody and the circumstances of his confinement

prior to giving the statement. Motion to Suppress, filed February 21, 2015; N.T. 2/23/15 at 4-5.

        "[Tjhe standard for determining whether a statement is voluntary is based on the totality

of the circumstances and considers, among other things, whether the defendant was coerced or

manipulated or promised something in exchange for his confession; essentially ... whether the

defendant freely made the decision to give the statement." Commonwealth v. Ogrod, 839 A.2d

294, 320 (Pa. 2003); see also Commonwealth v. Johnson, 107 A.3d 52, 93 (Pa. 2014) (noting

totality of the circumstances also includes defendant's mental and physical condition). "When a

defendant alleges that his waiver or confession was involuntary, the question 'is riot whether the

defendant would have confessed without interrogation, but whether the interrogation was so

manipulative or coercive that it deprived the defendant of his ability to make a free and

unconstrained decision to confess .:" Commonwealth v. Sepulveda, 55 A.3d 1108, 1137 (Pa.

2012) (quoting Commonwealth v. Templin, 795 A.2d 959, 966 (Pa. 2002)). Moreover, "'[i]n

reviewing a ruling on a suppression motion, the standard of review is whether the factual

findings and legal conclusions drawn therefrom are supported by the evidence.!"

Commonwealth v, Who/aver, 989 A.2d 883, 896 (Pa. 2010) (quoting Commonwealth v.

Bronshtein, 691 A.2d 907, 913 (Pa. 1997)). Additionally, "[w]here the record supports the

findings of the suppression court, [the reviewing court] is bound by those facts and may reverse

only if the legal conclusions drawn therefrom are in error," Commonwealth v. Ligons, 971 A.2d

1125, 1148 (Pa. 2009).

       Here, the record demonstrates that defendant's statement was voluntary. First, Officer

Justin Kensey testified that he met defendant at Philadelphia International Airport, following

defendant's transport from the Philippines to Los Angeles to Philadelphia. N.T. 2/23/15 vol. 2 at




                                                 7
7-9. The officer first met defendant at 6:35 A.M. and then took defendant to Philadelphia Police

Headquarters Homicide Division, where they arrived at 6:58 A.M. N.T. 2/23/15 at 10-11. The

officer denied that defendant was in any sort of distress or in need of medical treatment. Finally,

the officer testified that neither he nor his partner, Officer Dave Boyd communicated with

defendant at any time during their encounter. N.T_. 2/23/15 at 12-13. Next, Detective Carlos

Cruz testified that prior to interviewing defendant, he orally, in Spanish, advised defendant of his

Miranda rights. N.T. 2/23/15 at 26-29. Moreover, defendant was again advised of his Miranda

rights in writing, which were written in both English and Spanish. N.T. 2/23/15 at 30-33.

Defendant did not show any difficulty in understanding, nor did he appear to be under the

influence of any drugs or alcohol, or suffering from any mental illness. N.T. 2/23/15 at 29.

Finally, the record is devoid of any credible evidence that defendant was abused or mistreated

during his time at Homicide. Detective Cruz testified that he first met with defendant at 1 :30
                                                                                           i

P.M. and that defendant's formal interview began a short time later, at approximately 2:00 P.M.

N.T. 2/23/15 at 23. Defendant's interview was concluded at '3:25 P.M. Id During his time at

Homicide, defendant was given coffee and the opportunity to use the restroom. N.T. 2/23/15 at

13, 30. At no time, did defendant appear to be under any physical or mental distress. N.T.

2/23/15 at 29, 35.

       According! y, the record shows that under the totality of the circumstances defendant

freely made the decision to give his statement to detectives. Therefore, defendant's suppression

motion was without merit and was properly denied by the Court. For that reason, appellate

counsel could not have been ineffective for failing to raise the issue on direct appeal, and PCRA

counsel could not have ineffective for failing to argue it. No relief is due.




                                                  8
            C. Failure to Communicate Plea Bargain to Defendant

            Defendant next claims that trial counsel was ineffective for failing "to Communicate the

    potential plea bargain that the Commonwealth offered].]" Statement of Matters at� 3.

Additionally, defendant claims that PCRA counsel was ineffective for failing to argue this issue.

Id. Defendant's claims are frivolous.

            Prior to trial, the Commonwealth conveyed an offer to drop the first degree murder

charge in exchange for defendant pleading guilty to third degree murder and various firearms

charges. N.T. 2/23/15 voir dire vol. I at 5-6. The Court conducted a colloquy, during which it

explained to defendant that if he pied guilty, his maximum exposure would be 17 � to 35 years

in prison.2 N.T. 2/23/15 voir dire vol. 1 at 6. Moreover, during the colloquy, when the Court

asked defendant whether trial counsel had explained the offer to him, defendant responded, "Yes,

he explained it to me:' N.T. 2/23/15 voir dire vol. 1 at 6. Defendant thereafter rejected the offer.

Id. Accordingly, the record is clear that trial counsel did convey the Commonwealth's offer to

defendant and that defendant knowingly rejected the offer. Therefore, PCRA counsel could not

have been ineffective for failing to argue a frivolous claim. No relief is due.

           D. Failure to Effectively Argue for a Voluntary Manslaughter Instruction

           Defendant next claims that the trial court "abuse] d] its discretion when it failed to instruct

the jury on Voluntary Manslaughter - Heat-of-Passion Doctrine[.] Statement of Matters at 14.

Additionally, defendant claims that trial counsel failed to effectively argue for the instruction.

Id. Finally, defendant claims that PCRA counsel was ineffective for failing to argue these issues.

Id. All three claims are without merit.

           As to the trial court abusing its discretion in refusing to instruct the jury on voluntary

manslaughter, this claim was raised in defendant's direct appeal and rejected by the Superior
2   The maximum sentences were those in effect on June 21, 1992, the date of the murder here at issue.




                                                           9
Court. That court specifically determined that "the evidence would not have supported a verdict

of voluntary manslaughter." See Superior Court Opinion, filed May 17, 2016, at pp. 3-7.

Because this claim was previously litigated on defendant's direct appeal, it is not cognizable

under the PCRA. 42 Pa.C.S. § 9543(a)(3) & 9544(a)(2); see Commonwealth v. Johnson, 139

A.3d 1257, 1272 (Pa. 2016). Moreover, because the Superior Court determined that defendant

was not entitled to the instruction, trial counsel could not have been ineffective for the manner in

which he argued for the instruction. For the same reason, PCRA courisel cannot have been

ineffective for failing to argue this claim. Accordingly, no relief is due.

       E. Failure to Motion Courtfor Return ofDefendant's Property

       Defendant next claims that trial counsel was ineffective for failing "to Motion the Court

for the Return of [Defendant's] Confiscated $7,869.00 ... " Statements of Matters at, 5. In

addition, defendant claims that PCRA counsel was ineffective for failing to argue this issue. Id.

For defendant's ineffectiveness claim to be cognizable under the PCRA, defendant "must plead

and prove, by a preponderance of the evidence, that his sentence resulted from '[iJneffective

assistance of counsel which, in the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken place.'"

Commonwealth v. Moore, 653 A.2d 24, 25 (Pa. Super. 1995) (quoting 42 Pa.C.S. §

9543(a)(2)(ii)) (emphasis omitted). Here, defendant has failed even to allege how the failure to

motion for the return of his property undermined the truth-determining process. Accordingly,

defendant has failed to raise a cognizable claim under the PCRA. No relief is due.

        F. Failure to Request a Colloquy Prior to Entering into Multiple Stipulations

        Defendant finally claims that trial counsel was ineffective for "failing to protect the

Petitioners [sic] right to a fair Trial by requesting a Colloquy before Stipulating to Multiple




                                                  10
stipulations at the Petitioners [sic] Jury Trial." Statement of Matters at� 6. In addition,

defendant claims that PCRA counsel was ineffective for failing to argue this issue. Id.

       Defendant failed to raise these claims in the PCRA court until he stated them in an

amended petition that he filed on May 14, 2018, 10 days after his PCRA petition had already

been dismissed, and the very same day that he filed a notice of appeal challenging that dismissal.

By that time, the PCRA court was without jurisdiction to consider his claims due to the pendency

of the instant appeal. Because defendant never timely presented these claims to the PCRA court, ·

they have been waived. Commonwealth v. Rigg. 84 A.3d 1080, 1084-85 (Pa. Super. 2014)

(issues not raised in the PCRA court in a PCRA petition, amended petition, or 907 response, are

waived and cannot be raised for the first time on appeal). In any event. as stated above,

defendant's claims arising out of counsel's stipulations during the trial are clearly meritless. See

Section A, above, at p. 5.

                                        III. CONCLUSION

       For all of the foregoing reasons, the Court's order dismissing defendant's PCRA Petition

should be affirmed.

                                                              BY THE COURT:




                                                              GLENN B. BRONSON, J.




                                                  11
Commonwealth v. Santiago Pedroso                             CP-51-CR-0012715-2013
Type of Order: 192S(a) Opinion


                                     PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in
the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114:

Defense Counsel/Party:
                               Santiago Pedroso
                              LX-2657
                              SC] Greene
                              175 Progress Drive
                              Waynesburg, PA 15370

Type of Service: ( ) Personal ( ) First Class Mail (X) Other, please specify: Certified Mail

District Attorney:
                              Lawrence Goode, Esquire
                              Interim Supervisor, Appeals Unit
                              Office of the District Attorney
                              Three South Penn Square
                              Philadelphia, PA 19107-3499

Type of Service: ( ) Personal () First Class Mail (X) Other, please specify: Interoffice


Additional Counsel/Party:
                               Joseph D. Seletyn, Esquire
                               Prothonotary
                               Office of the Prothonotary·- Superior Court
                               530 Walnut Street, Suite 31 S
                               Philadelphia, PA 19106

Type of Service: () Personal (X) First Class Mail () Other, please specify:


Dated: August 17, 2018



Kai n D Shire
Law C rk to Hon. Glenn B. Bronson
