J-S04006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                             Appellee

                       v.

EFRAIN GONZALEZ-PADILLA,

                             Appellant                        No. 744 MDA 2014


                   Appeal from the PCRA Order April 3, 2014
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001755-2011


BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                                   FILED JANUARY 28, 2015

       Efrain Gonzalez-Padilla appeals from the April 3, 2014 order denying

him PCRA relief. We affirm.

       On August 8, 2012, Appellant was found guilty of possession of a

controlled substance with intent to deliver.                We summarize the facts

underlying     Appellant’s     conviction      of   the   offense   in   question.    At

approximately 11:30 p.m. on November 1, 2011, Sergeant Brett Hopkins,

Detective Ryan Mong, and Detective Adam Saul, all of whom were assigned

to the Lebanon County Drug Task Force, were conducting an undercover

investigation of the 9th and Mifflin Street area in Lebanon City.                    The



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S04006-15



operation was initiated in response to complaints about open-air drug

dealing.

         Sergeant Hopkins was in plain clothes and was standing on the corner

of 9th and Mifflin Streets, which were lit by streetlights, when Appellant

nodded at him.      Detectives Mong and Saul were observing the interaction

from a vehicle.     Sergeant Hopkins approached Appellant and said that he

wanted to purchase $50 worth of cocaine.           He handed Appellant pre-

recorded currency consisting of two twenty-dollar bills and two five-dollar

bills.

         Appellant crossed the street, spoke with a group of men, returned to

Sergeant Hopkins, and told him that he would have to wait for the cocaine.

After about one-half hour, Appellant motioned for the officer to follow him

onto Partridge Street, a dark alley.        After arriving in a secluded area,

Appellant handed Sergeant Hopkins a knotted plastic bag containing what

appeared to be crack cocaine.        A chemical field test of the substance

confirmed that the substance was cocaine.

         After the transaction, Appellant left the alley.   Sergeant Hopkins

radioed the other detectives to arrest Appellant and provided a description.

Appellant was apprehended by Detectives Mong and Saul immediately

thereafter. At the scene, Sergeant Hopkins identified Appellant as the male

who sold him the crack cocaine.       Police testified that they recovered two

five-dollar bills from Appellant, and the bills matched the serial numbers of

the two five-dollar bills used as the buy money by Sergeant Hopkins.

                                      -2-
J-S04006-15



      After his conviction, Appellant was sentenced on September 26, 2012,

to two to four years imprisonment. Appellant did not file a direct appeal, but

he did file a timely PCRA petition.       Counsel was appointed, and after a

hearing, relief was denied. Appellant presents these issues on appeal from

the denial of PCRA relief.

      A. Whether trial counsel was ineffective for failing to file a direct
      appeal as requested by defendant?

      B. Whether trial counsel was ineffective for failing to cross-
      examine the police officer regarding the denomination of
      currency found on defendant’s person at the of arrest where
      [the] testimony differed from [the police] report?

Appellant’s brief at 4.

      Initially, we outline the applicable principles regarding our review of

the PCRA court’s determinations herein:

           An appellate court reviews the PCRA court's findings of fact to
      determine whether they are supported by the record, and reviews
      its conclusions of law to determine whether they are free from
      legal error. The scope of review is limited to the findings of the
      PCRA court and the evidence of record, viewed in the light most
      favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 2014 WL 6982658, 4 (Pa.Super. 2014)

(citation omitted).        “The PCRA court's credibility determinations, when

supported by the record, are binding” for purposes of appellate review.

Commonwealth          v.    Watkins,   2014   WL   7392224,    3   (Pa.   2014).

Additionally,

            To establish trial counsel's ineffectiveness, a petitioner
      must demonstrate: (1) the underlying claim has arguable merit;
      (2) counsel had no reasonable basis for the course of action or

                                       -3-
J-S04006-15


      inaction chosen; and (3) counsel's action or inaction prejudiced
      the petitioner. See Strickland v. Washington, 466 U.S. 668,
      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v.
      Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Freeland supra 2014 WL 6982658 at 4.

      Appellant initially argues that he should have been afforded PCRA relief

in the form of an appeal nunc pro tunc since “Defendant expressly requested

Trial Counsel to file an appeal on his behalf. However, Trial Counsel failed to

do so.” Appellant’s brief at 7. We observe that counsel is deemed ineffective

per se if counsel fails to file an appeal requested by a defendant, and, in

such circumstance, a defendant is automatically entitled to reinstatement of

his appellate rights. Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999).

      The PCRA court, however, expressly rejected Appellant’s testimony at

the PCRA hearing that he asked trial counsel to file a direct appeal.      The

PCRA court concluded that trial counsel credibly testified that Appellant did

not ask him to file an appeal. The PCRA court noted that trial counsel stated

at the PCRA hearing that he had a specific recollection of discussing the

matter with Appellant after Appellant expressed unhappiness at sentencing.

Counsel told Appellant that the jury verdict was unassailable and that the

sentence was the only viable issue to appeal. Appellant then responded that

he did not want to appeal his two-year sentence.

      Counsel also testified that after he received Appellant’s sentencing

order, he sent Appellant a copy of it with a cover letter, written in Spanish,

which explained Appellant’s appellate rights.   Although Appellant stated at

                                     -4-
J-S04006-15


the PCRA hearing that he sent a letter to counsel asking for an appeal,

counsel testified that he never received a letter from Appellant requesting a

direct appeal. Counsel further testified that, if he had received such a letter

from Appellant, he would have filed an appeal.       The trial court specifically

found trial counsel’s testimony to be credible. Trial Court Opinion, 6/17/14,

at 9.

        The record supports the trial court’s decision to credit trial counsel’s

testimony that Appellant did not request a direct appeal instead of

Appellant’s contrary testimony.     That credibility determination therefore is

binding on this Court.     In light of this credibility determination, we must

conclude that an appeal was not requested and that the PCRA court correctly

denied reinstatement of Appellant’s direct appeal rights.     Commonwealth

v. Markowitz, 32 A.3d 706 (Pa.Super. 2011).

        Appellant’s second contention is that his trial counsel rendered

ineffective assistance in failing to explore the fact that there was an

inconsistency between the trial testimony, wherein police indicated that they

recovered the two pre-recorded five-dollar bills from Appellant at the time of

his arrest, and the police report, which stated that a ten-dollar bill was found

on Appellant. As noted by the PCRA court, trial counsel was aware of this

discrepancy. The assistant district attorney had informed trial counsel that

the reference to a $10.00 bill in the police report was a typographical error,

and that the officers actually recovered the two five-dollar bills that were


                                      -5-
J-S04006-15


entered into evidence as exhibits.       After consideration of the facts,

argument, and applicable law, we affirm the denial of PCRA relief as to this

allegation based upon pages nine through twelve of the trial court opinion

authored on June 17, 2014 by the Honorable Bradford H. Charles.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2015




                                   -6-
                                                             Circulated 01/13/2015 02:01 PM




   ENTE~N[)"FHElCOURT OF COMMON PLEAS LEBANON COUNTY
                          PENNSYLVANIA
  lOI~ JUN ! 8 P 3: Oll
                        CRIMINAL DIVISION
  CLERK OF COUli-
     LtBAN(l~1. Pt.
COMMONWEALTH OF
PENNSYLVANIA
                                          NO. CP·38·CR·1755·2011
      v.
EFRAIN GONZALEZ·PADILLA



APPEARANCES

Nichole Eisenhart, Esquire           For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S OFFICE

Erin Zimmerer, Esquire               For Efrain Gonzalez·Padilia
MONTGOMERY & ZIMMERER


OPINION BY CHARLES, J., June 17, 2014


      Efrain Gonzalez·Padilia (hereafter "DEFENDANT") filed a Petition

for Post-Conviction Relief (PCRA) on September 13, 2013, alleging

ineffective assistance of counsel at his jury trial held on August 8, 2012.

After hearing testimony from DEFENDANT, his trial counsel, and the

arresting officers, we concluded that DEFENDANT's arguments simply

had no merit. We therefore denied hi~ Petiti~n 'on Ap~iI ~,2014. For the
                                      .            .,

reasons that follow, we affirm our decision to deny DEFENDANT's PCRA

Petition.




                                     1
                                                               Circulated 01/13/2015 02:01 PM




I.    FACTS

      On November 1, 2011 around 11 :30 p.m., Sergeant Brett Hopkins,

Detective Ryan Mong, and Detective' Adam Saul of the Lebanon County

Drug Task Force Were conducting an undercover investigation of the 9th

and Mifflin Street area in Lebanon City in response to complaints about

open air drug dealing. (8/8/2012 N.T. 17). Sgt. Hopkins was standing on

the northwest corner of 9th and Mifflin Streets across from the Liberty

Bar in civilian clothes when DEFENDANT nodded to him from across the

street.   (8/8/2012 N.T. 17).    Det. Mong and Det. Saul remained in the

vehicle as surveillance officers. Sgt. Hopkins crossed the street and told

DEFENDANT that he was looking for $50.00 worth of "hard".          (8/8/2012

N.T. 17). DEFENDANT asked in broken English, "rock?" (8/8/2012 N.T.

17-18). Sgt. Hopkins replied, "Yes," and DEFENDANT requested money.

(8/8/2012 N.T. 18-19).

      Sgt. Hopkins explained at trial that the officers typically photocopy

and pre-record the serial numbers of each of the bills they intend to use

for their undercover purchases.      They do so in the event that they are

able to recover the buy money within a short period of time after the

undercover sale so that they can link the sale to the defendant.

(8/8/2012 N.T. 19).      Exhibit 3 at trial identified the photograph of the

$50.00 that Sgt. Hopkins possessed the night of November 1,2011. This

$50.00 consisted of two $20.00 bills and two $5.00 bills.




                                       2
                                                                      Circulated 01/13/2015 02:01 PM




     After Sgt. Hopkins gave DEFENDANT the pre-recorded buy money,

DEFENDANT crossed the street and began speaking with a group of

men. (8/8/2012 N.T. 21). He returned fifteen minutes later and informed

sgt. Hopkins that he would have to wait another 20 minutes.               (8/8/2012

N.T.21). When he returned, he motioned for Sgt. Hopkins to follow him

west on Mifflin Street to Partridge Street -                 a nearby dark alley.

(8/8.12012    N. T.   21-22)..   After· traveling; south on Partridge Street,

DEFENDANT handed Sgt. Hopkins a knotted plastic bag containing what

Sgt. Hopkins suspected to be crack cocaine.                   (8/8/2012 N.T. 22).

DEFENDANT torE) open the bag and sprinkled the substance into Sgt.

Hopkins' hand.         (8/8/2012 N.T.     22).      A chemical field test of the

substance confirmed the presence of cocaine.

      A local bar is located at the 9th and Mifflin Street intersection, and

there were several people walking around in the area.               (8/8/2012 N.T.

26). However, there are several streetlights in front of the bar, and Sgt.

Hopkins explained at t(ial that the lighting at the corner of 9th and Mifflin

Streets was very good -at the time he was ·interacting With' DEFENDANT.

(8/8/2012 N.T. 25). He explained that he was able to observe and talk to

DEFENDANT for at least a half an hour. (8/8/2012 N.T. 25). Det. Mong

explained     that    he   was   unable   to     identify   DEFENDANT     from     his

surveillance position while he was interacting with Sgt. Hopkins, but he

was able to get a general idea of his clothing and build. (8/8/2012 N.T.

30-31, 37).


                                          3
                                                                       Circulated 01/13/2015 02:01 PM




       After   DEFENDANT    provided        Sgt.   Hopkins   with    the    cocaine,

DEFEN DANT traveled south on Partridge Street and turned left onto

Monument Street back towards 9th Street.              (8/8/2012 N.T. 24).         Sgt.

Hopkins immediately contacted the surveillance officers to describe

DEFENDANT and his location.      (8/8/2012 N.T. 24, 36).            Det. Mong and

Det.   Saul were   positioned   in an       area where they could           observe

DEFittiNDANJ.exit.MonumentStreet onto 9th Street. (8/8/2012 N.T. 31);

After the surveillance unit apprehended DEFENDANT and took him into

custody, Sgt. Hopkins identified him as the same man who sold him

cocaine on Partridge Street.     (8/8/2012 N.T. 18, 25).            Similarly, Det.

Mong identified the man he took into custody as the same individual who

he saw walk down Mifflin Street with Sgt. Hopkins and then return into

his field of view from Monument Street.            (8/8/2012 N.T. 37-38).         Det.

Mong testified that he did not see any other individuals in that area at

the time DEFENDANT emerged from Monument Street.                    (8/8/2012 N.T.

38).   He explained that there was no possibility that he arrested any of

the other rn-diliiduals on the ;street corner by mistake.           (8/8/2:012N:-r.·

38).

       After the officers arrested DEFENDANT, they transported him to

Central Booking and searched him.            (8/8/2012 N.T. 33).      The officers

recovered two $5.00 bills from DEFENDANT.              These bills matched the

serial numbers of the pre-recorded money that Sgt. Hopkins used to

purchase the cocaine. (8/8/2012 N.T. 34). The police report mistakenly


                                        4
                                                                   Circulated 01/13/2015 02:01 PM




states that the officers recovered a $10.00 bill from DEFENDANT. Prior

to   Trial,   Assistant    District Attorney    Nichole   Eisenhart spoke with

DEFENDANT's trial counsel, Attorney John Gragson (hereafter "TRIAL

COUNSEL").       She explained to him that the reference to a $10.00 bill in

the police report was a typographical error, and that the officers actually

recovered the two $5.00 bills entered as Exhibit 3. (4/3/2014 N.T. 15).

       As a res\Jlt of    th~   abo've episode, DEFENDANT was charged with

one count of -Delivery of a Controlled Substance and one count of

PO'ssession of Drug Paraphernalia.            On August 8, 2012, a jury found

DEFENDANT guilty of Delivery of a Controlled Substance and not guilty

of Possession of Drug Paraphernalia.            We imposed a sentence of 2-4

years on DEFENDANT. At sentencing, when asked if he had anything to

say, DEFENDANT responded with; [t]hat I am remorseful.               That I am

guilty." (8/8/2012 N.T. 3). DEFENDANT did not file an appeal.

       On September 13, 201.3, DEFENDANT filed a Petition for Post-

Conviction Relief.        After a Hearing on April 3, 2014, we concluded that

DEFENDANT was not entitled to relief under the Post-Conviction Relief

Act, and we denied his Petition.         DEFENDANT appealed to the Superior

Court on May 1, 20.14.           We author this Opinion pursuant to Pa.R.A.P.

1925 to address DEFENDANT's appeal.


II. THE POST-CONVICTION RELIEF ACT

       The    Post-Conviction      Relief Act (hereafter "PCRA") provides a

process by which persons convicted of crimes they did not commit and

                                          5
                                                                     Circulated 01/13/2015 02:01 PM




persons serving illegal sentences can obtain relief. 42 Pa.C.S.A. § 9542.

The PCRA is the exclusive method by which collateral relief may be

obtained in Pennsylvania.           Commonwealth v. Chester, 733 A.2d 1242,
1250 (Pa. 1999). To be eligible for relief, a PCRA defendant must prove

the following elements by a preponderance of evidence:

(1)   That he has been convicted of a crime under the laws of this

  ·:·; •.,Common.w.ealth.and th.at he is serving a·sBntence for that crime;
                  ~




(2)   That the conviction resulted from one of the enumerated errors

      listed in § 9543(a)(2) of the PCRA;

(3)   That the allegation of error has not previously been litigated or

      waived; and

(4)   That any failure to litigate the issue previously was not the result of

      a rational, strategic, or tactical decision by the Defendant or his

      counsel.

See 42 Pa.C.S.A. § 9543.

      When   a claim          of ineffective assistance of counsel is raised,

additioMI principles apply'. Trial cciunsel is presum'ed :to b~ effective, ~nd           .
the Defendant bears the burden of proving otherwise. Commonwealth v.

Lewis, 708 A.2.d 497, 500 (Pa.Super. 1998); Commonwealth v. Williams,
570 A.2d 75, 81 (Pa. 1990).            In determining whether counsel rendered

ineffective assistance, the Court must first determine whether the issue

underlying. the       claim    of   ineffectiveness   has   even   arguable     merit.

Commonwealth v. DiNicola, 751 A.2d 197, 198 (Pa.Super. 2000);


                                            6
                                                                                                 Circulated 01/13/2015 02:01 PM




 Commonwealth v. Johnson, 588 A.2d 1303, 1305 (Pa. 1991).                                                     If the

. claim is without arguable merit, the Court's inquiry ends, as counsel will

 not be deemed ineffective for failing to pursue a meritless issue.                                               Id.

 Even if the underlying claim is of arguable merit, the Defendant must

 establish that the course of action chosen by counsel had no reasonable

 basis designed to effectuate the Defendant's interest. Id. In addition, the

 Defendant     must· also       establish            that      but        for    counsel's              deficient

 performance, the result of the trial would have been different. Id.


 III.   DISCUSSION

        DEFENDANT's       PCRA      Petition             sets         forth      two      allegations                 of

 ineffective assistance of counsel.            DEFENDANT first argues that TRIAL

 COUNSEL was        ineffective for failing to file a direct appeal upon

 DEFENDANT's request.       DEFENDANT also argues that TRIAL COUNSEL

 was ineffective for failing to properly cross examine and object to

 testimony    regarding   the     officer's           buy       money.                 More       specifically,

 DEFEN DANT stresses that the police recovered a $1.0.00 _bill from him,
                                            ,'-,::    .~'''~':''':~''.,    :",:,~-,'     .~   . . . .-......- . - .


 but the officer's buy money consisted of two $5.00 bills. After review of

 the record, we conclude that DEFENDANT's arguments have no merit.


        A.    Failure to File a Direct Appeal

        At his PCRA Hearing, DEFENDANT explained that he wrote a letter

 to TRIAL COUNSEL asking him to file a direct appeal. (4/3/2014 N.T. 6-

 7; Exhibit 1).   He also explains that he spoke to TRIAL COUNSEL two


                                                7
                                                                                Circulated 01/13/2015 02:01 PM




weeks prior to his trial about his interest in filing a direct appeal.

(4/3/2014 N.T. 7).        He therefore argues that because TRIAL COUNSEL

failed to file his appeal, he received ineffective assistance of counsel.

       TRIAL      COUNSEL        testified    that   he       remembered        DEFENDANT

discussing hi's Post-Sentence' Motions and his desire to file an appeal

prior to trial.    (4/3/2014 N.T. 11-12).            However, he also remembered

spe.~~jngtoDEf=.E;NPANJ           the.day oUria.!., WILen DEFENDANT indicated

that he was dissatisfied with the verdict, TRIAL COUNSEL explained to

him that he could not then appeal the jury verdict; he could only appeal

the sentence.       At that point, he asked DEFENDANT if he wanted to

appeal.   DEFENDANT indicated that he did not wish to appeal, and that

he would accept the two year minimum sentence. (4/3/2014 N.T. 13-14).

       TRIAL      COUNSEL          also      testified     that       when      he    received

DEFENDANT's         sentencing       Order      in   the      mail,   he     furnished     it to

DEFENDANT along with a letter written in Spanish indicating that he had

10 days to file a Rule 720 Motion and 30 days to appeal. (4/3/2014 N.T.

11-12;, Exhibit 2).   i   TRIAL COUNSEL explained that he never received a

letter back from DEFENDANT, and had he received such a letter, he

would have taken action. (4/3/2014N.T. 13).

       We find the testimony of TRIAL COUNSEL to be credible.                               It is'

evident that TRIAL COUNSEL and DEFENDANT discussed the issue of

an appeal on several occasions.                TRIAL COUNSEL was clearly aware

that    DEFENDANT          was     considering       filing     an    appeal.        However,


                                                8
                                                                  Circulated 01/13/2015 02:01 PM




DEFENDANT gave conflicting information regarding his desire to appeal.

In part because of this conflicting information, TRIAL COUNSEL wrote

and sent a letter to DEFENDANT advising him of his appeal options.

DEFENDANT never responded .. All of the above suggests that TRIAL

COUNSEL was ready and willing to file an appeal on DEFENDANT's

behalf at his request.

     We conclude that TRIA.l COUNSEL never received instructions from

DEFENDANT to appeal at or following his sentencing hearing.                We find

TRIAL COUNSEL's testimony on the appeal issue to be credible.                   We

reject the credibility of DEFENDANT's. claim that he mailed a letter

instructing TRIAL COUNSEL to appeal. Accordingly, DEFENDANT's first

PCRA issue will be denied.


     B. Failure to Properly Cross Examine and Object to Buy Money

     DEFENDANT argues that the he was not carrying two $5.00 bills at

the time of his arrest, and that the officers instead recovered a $10.00

bill from him, as indicated in the police report.       (4/3/2014 N.T. 8).      He
                                            '.",   ",
                                                                      ",   ..


notes that the marked money used by Sgt. Hopkins consisted of two

$20.00 bills and two $5.00 bills, and therefore the fact that the officers

may have recovered a $10.00 bill from DEFENDANT is significant

because it indicates that Sgt. Hopkins may not have given DEFENDANT

the buy money as he testified.   TRIAL COUNSEL did not object to Det.

Mong's testimony that he recovered two $5.00 bills from DEFENDANT's

person, nor did he cross examine the officers on the inconsistency

                                     9
                                                                      Circulated 01/13/2015 02:01 PM




between the police report and Det. Mong's testimony.               Because of this,

DEFENDANT argues that he received ineffective assistance of counsel.

      At the PCRA Hearing, TRIAL COUNSEL explained that he did not

address the money denomination issue because he did not believe it had

any merit. (4/3/2014 N.T. 14). He explained that Det. Mong testified that

the officers recovered two $5:00 bills from DEFENDANT, and this

te~tjmon.y.JD.i;ltGJleJ;LJh.eexbjb.it   .tbatwasproduce.d. of th.e recorded money.

(4/3/2014 N.T.15).       TRIAL COUNSEL explained that in his experience,

cross examination of a minor discrepancy such as the reference to a

$10.00 bill in the police report "does not mean much to the jury."

(4/3/2014 N.T. 17).       Therefore, given all of the evidence, he explained

that the better defense was that of mistaken identity. (4/3/2014 N.T. 16).

      While we find that TRIAL COUNSEL could have cross examined the

police officers regarding the discrepancy, we conclude that such a line of

questioning would have been pointless.               We note that the detectives

retained the money that was seized from DEFENDANT at the time of his

arrest.   The physical money seized remains in the detective's file today

and a copy of the money seized from DEFENDANT at the time of his

arrest was contained in the discovery packet that was turned over to

defense counsel prior to trial.          The file does not contain a $10.00 bill; it

contains the two $5.00 bills with recorded serial numbers.                      Thus,

physical evidence disclosed in discovery and available at trial supported




                                             10
                                                                Circulated 01/13/2015 02:01 PM




the Commonwealth's argument that recorded buy money was in the

possession of DEFENDANT.

     It is true that Det. Mong's police report erroneously referenced a

$10.00 bill instead of two $5.00 bills.         It is also true that TRIAL

COUNSEL could have attempted to impeach Det. Mong with the error in

his report.    However, Det. Mong discovered the error prior to trial and

communicated it to the District Attorney's Office.      The prosecutor then

notified   DEFENDANT       prior to trial   that the   report narrative was

inaccurate.    We are confident that under these circumstances, the jury

would have understood that sometimes typographical errors are made

and would have viewed counsel's efforts to focus on this issue as little

more than "grasping at straws."

     What is clear is that the money seized from DEFENDANT was

retained as evidence. It was photocopied. The money was available for

inspection by the jury.     Making a big deal of the discrepancy in cash

denominations would not have assisted DEFENDANT, and would have

served only to reinforce for the jury the importance of the recorded buy

money found in DEFENDANT's possession.

     We do not find TRIAL COUNSEL to be ineffectiv.e for failing to cross

examine police regarding the discrepancy between the $10.00 mentioned

in the police report and the $5.00 bills that were retained as physical

evidence      and   clearly documented as the buy money seized from

DEFENDANT.          Even assuming, arguendo, that TRIAL COUNSEL could


                                       11
                                                                            Circulated 01/13/2015 02:01 PM




somehow have been deemed negligent for failing to extensively cross-

examine police regarding the discrepancy in the report, we are confident

that such a line of questioning would have had no impact whatsoever on

the jury's verdict.    Accordingly, DEFENDANT's second PCRA argument

was properly denied.


III.   CONCLUSION

       Neither of the PCRA issues presented by DEFENDANT have any

merit whatsoever.      Based largely upon our credibility finding in favor of

TRIAL     COUNSEL       and   against      DEFENDANT,         we           conclude      that

DEFENDANT never asked' TRIAL COUNSEL to appeal following his

sentencing.   Thus, TRIAL COUNSEL cannot be deemed ineffective for

failing to file an appeal. With respect to cross-examination of police, we

conclude that it would have been pointless for TRIAL COUNSEL to cross-

examine pOlice officers regarding a typographical error in the police

report.   This is especially true given that the actual funds seized from

DEFENDANT       were     available   for        presentgtion. at       trial    and     wer,e
                                                                   ;   1


photocopied as evidence.

       Based upon the foregoing, we reject all of DEFENDANT's PCRA

issues. It is with this comment that we will forward the above-referenced

file to the Pennsylvania Superior Court for its analysis.




                                           12
