J-S55030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                        v.

    FELIX O. RODRIGUEZ-SAEZ, JR.

                             Appellant                 No. 535 MDA 2017


                Appeal from the PCRA Order December 7, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0004210-2013


BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.:                        FILED NOVEMBER 16, 2017

        Appellant, Felix O. Rodriguez-Saez, Jr., appeals from the order entered

December 7, 2016, denying his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The pertinent facts have been summarized previously by this Court:

        The facts underlying [Appellant’s] arrest and conviction are as
        follows. On August 27, 2013, Detectives David McQuate and
        Michael Rowe, County Detectives with the Berks County District
        Attorney’s Office, were conducting surveillance of the zero
        hundred block of Neversink Street in Reading, Pennsylvania. At
        approximately 12:52 p.m., they observed a man arrive on a BMX[-
        ]style bicycle. He had a conversation with another individual
        wearing a white tank top, later identified as [Appellant]. The man
        on the bike pulled away, but circled and came back to the curb
        line. Meanwhile, [Appellant] walked to a fountain on Neversink
        Street, and knelt down. He then returned to the man on the
        bicycle. At that time, the detectives observed the man on the
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*   Retired Senior Judge assigned to the Superior Court.
J-S55030-17


        bicycle take money from his waistband and engage in a hand-to-
        hand transaction with [Appellant]. After the man on the bike left
        the area, the detectives continued surveillance of [Appellant] for
        approximately 30 minutes, during which time he walked into a
        breezeway between 6 and 8 Neversink Street several times.

        The detectives radioed a description of [Appellant] to the arrest
        team, which included Detective John Lackner. When Detective
        Lackner approached, [Appellant] was with a Hispanic female and
        counting $12.00 he held in his hand. [After providing Appellant
        with Miranda warnings, and Appellant agreed to speak to him
        without counsel present,] [t]he detective engaged [Appellant] in
        conversation, and while doing so, noticed two rubber bands on his
        fingers, which the detective immediately recognized as the type
        used in heroin packaging. When Detective Lackner began talking
        to him about heroin, [Appellant] admitted that he sold heroin to
        support his own habit. As the conversation continued, [Appellant]
        claimed he was only a user of the drug, not a seller. [Appellant]
        was then placed under arrest.

        Upon a search incident to arrest, the officers recovered two
        working cell phones, two blue glassine packets containing heroin,
        and $83.00 in U.S. currency from [Appellant’s] person. No
        paraphernalia typical of a heroin user was recovered on or near
        [Appellant]. While Detective Lackner was talking to [Appellant],
        other officers searched the fountain area and breezeway, where
        they recovered additional packets of heroin and cocaine.

Commonwealth v. Rodriguez-Saez, 121 A.3d 1138, *2-3 (Pa. Super.

2015) (unpublished memorandum) (citations and footnotes omitted).

        On June 11, 2014, a jury convicted Appellant of possession with intent

to deliver (heroin) and two counts of drug possession (heroin and cocaine).1

That same day, the trial court sentenced him to an aggregate term of three

to twelve years of incarceration.         Following the denial of a post-sentence

motion, Appellant timely appealed to this Court. In our decision, filed April

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1   35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.

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22, 2015, we agreed with appellate counsel’s assessment that the appeal was

frivolous and, therefore, affirmed Appellant’s judgment of sentence and

permitted counsel to withdraw. Id. at *12.

      While his direct appeal was still pending, Appellant pro se filed a petition

for collateral relief. Procedurally, this was improper. See Commonwealth

v. Leslie, 757 A.2d 985, 985 (Pa. Super. 2000) (“A PCRA petition may only

be filed after an appellant has waived or exhausted his direct appeal rights.”)

(emphasis removed). As the court did not act upon Appellant’s petition until

after his direct appeal was resolved, we decline to quash Appellant’s petition.

But see Commonwealth v. Seay, 814 A.2d 1240, 1241 (Pa. Super. 2003).

      On July 21, 2016, the PCRA court held an evidentiary hearing. At the

hearing, Appellant and prior counsel testified. The PCRA court took the matter

under advisement and permitted the parties to file legal memoranda.                By

opinion and order entered December 7, 2016, the PCRA court denied

Appellant’s petition. The docket indicates that on December 8, 2016, notice

of the disposition was sent to Appellant, at the Berks County Jail, and to PCRA

counsel. See Proof of Service, 12/8/16, at 1.

      On   January   24,   2017,   Appellant   pro   se    filed   a   “petition   for

reconsideration,” averring that Appellant had symptoms of a mental illness at

the time of his sentencing; that his sentence was excessive; and that

Appellant had not received notice of the disposition of his PCRA petition. See

Petition for Reconsideration, 1/24/17, at ¶¶ 1-6.         The PCRA court denied

Appellant’s petition and noted that while Appellant appeared to be appealing

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the dismissal of his PCRA petition, he had not timely filed said appeal. See

Order, 2/15/17, at 1.

       On March 7, 2016, Appellant pro se filed several items. First, Appellant

responded to the PCRA court’s February order, claiming that he had not

received notice of the dismissal of the PCRA, and had not been contacted by

counsel. See Defendant’s Response to Order, 3/7/17, at 1. Second, Appellant

filed a “post-sentence motion to modify sentence.” See Post-Sentence Motion

to Modify Sentence, 3/7/17, at 1. Finally, Appellant purported to file a notice

of appeal to this Court from his judgment of sentence.2

       That same day, the PCRA court issued an order granting Appellant

reinstatement of his PCRA appellate rights nunc pro tunc. That order stated

that after reviewing the record, the PCRA court found that Appellant did not

receive the order dismissing his petition. See Order, 3/7/17, at 1. The court

noted that Appellant had recently been reincarcerated on new charges around

the time the order was issued, “causing confusion as to where the defendant

was located.” Id.

       Essentially, based upon our review of the record, the PCRA court

accepted Appellant’s pro se filings as a second petition seeking collateral relief

and asserting that governmental interference, in this instance a breakdown of




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2This appeal, docketed in this Court at 527 MDA 2016, was later quashed as
being untimely filed. See Commonwealth v. Rodriguez-Saez, Jr., 325
MDA 2017.

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the judicial system, had prevented Appellant from preserving his PCRA rights.

We note that while it is

      the petitioner's burden to plead and prove an exception to the
      PCRA-timeliness rule . . . Normally, failure to allege a timeliness
      exception in the PCRA petition itself precludes the petitioner from
      raising it on appeal . . . [However,] [t]he Supreme Court of
      Pennsylvania has recently noted that it has allowed PCRA
      petitioners some leeway in the preservation of claims in their
      petitions when [the Court] determined that the circumstances
      demanded it.

See Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa. Super. 2007)

(internal citations and quotations omitted) (holding that PCRA court’s

erroneous notice to petitioner amounted to government interference excusing

untimely filing of subsequent PCRA petition); see also Commonwealth v.

Patterson, 940 A.2d 493, 498 (Pa. Super. 2007) (noting that while generally

an appellate court cannot extend the time for filing an appeal, this general

rule does not affect the power of the courts to grant relief in the case of a

breakdown in the processes of the court).       Accordingly, the PCRA court

properly granted Appellant his PCRA appellate rights nunc pro tunc.

      On March 24, 2017, Appellant filed a notice of appeal from the order

dated December 7, 2016. Appellant filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal and the PCRA court issued a

responsive opinion.

      Appellant raises the following issue for our review:

      1. Did the PCRA [c]ourt err in finding that Appellant had not been
      denied his constitutional right to effective assistance of counsel



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      when his trial counsel failed to adequately investigate and prepare
      for trial?

Appellant’s Brief at 4.

      When examining a post-conviction court's grant or denial of relief, we

are limited to determining whether the court's findings were supported by the

record and whether the court's order is otherwise free of legal error.

Commonwealth v. Quaranibal, 763 A.2d 941, 942 (Pa. Super. 2000). We

will not disturb findings that are supported in the record.    Id.   The PCRA

provides no absolute right to a hearing, and the post-conviction court may

elect to dismiss a petition after thoroughly reviewing the claims presented and

determining that they are utterly without support in the record. Id.

      Because Appellant challenges the stewardship of trial counsel, we apply

the following principles. The law presumes counsel has rendered effective

assistance.   Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.

2010). The burden of demonstrating ineffectiveness rests on Appellant. Id.

To satisfy this burden, Appellant must plead and prove by a preponderance of

the evidence that: “(1) his underlying claim is of arguable merit; (2) the

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

basis designed to effectuate his interests; and, (3) but for counsel’s

ineffectiveness, there is a reasonable probability that the outcome of the

challenged proceeding would have been different.”        Commonwealth v.

Fulton, 830 A.2d 567, 572 (Pa. 2003).




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      Failure to satisfy any prong of the test will result in rejection of the

appellant’s claim.   Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa.

2002).   For example, counsel cannot be found ineffective for pursuing a

meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.

2003) (en banc).     Similarly, counsel will not be deemed ineffective if any

reasonable basis exists for counsel's actions. Commonwealth v. Douglas,

645 A.2d 226, 231 (Pa. 1994). Finally, when it is clear that an appellant has

failed to meet the prejudice prong, the court may dispose of the claim on that

basis alone, without a determination of whether the first two prongs have been

met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

      Appellant presents two arguments in support of his ineffectiveness

claim. First, he asserts that trial counsel failed to investigate a specific drug

dealer implicated by Appellant. According to Appellant, proper investigation

would have enabled Appellant to present a persuasive defense that the drugs

seized incident to his arrest belonged to another and that Appellant was

merely a drug user, not a drug seller. The PCRA court summarized its factual

conclusions from the pertinent testimony presented at the evidentiary hearing

as follows:

         Sometime before May 27, 2014, [Appellant] and [prior counsel]
      met to discuss the strategy of the case. At this meeting,
      [Appellant] mentioned to [prior counsel] that he wished to admit
      the possession charges, but deny that he was a dealer, despite
      evidence implying otherwise. Instead, [Appellant] offered that
      Jessie Krick was a dealer. Recognizing this name, [prior counsel]
      was forced to withdraw from the case, as Mr. Krick was
      represented by the Public Defender in an unrelated matter. To


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      accomplish withdrawal, a motion was filed in the Court. After
      reviewing the record, the Court now reiterates, in part, what this
      Motion stated:

         The Public Defender has a conflict in this case. The Public
         Defender represents an individual named Jessie Krick in an
         unrelated matter. [Appellant’s] defense in this matter
         specifically implicates Krick. It is alleged representation of
         [Appellant] would be directly adverse to the representation
         of Krick under the Pennsylvania Rules of Professional
         Conduct 1.7(a)(1).

          After receiving this order, [trial counsel] assumed responsibility
      for the case. Due to confidentiality reasons, he did not confer with
      [prior counsel]. Additionally, [trial counsel], as he stated during
      our hearing, “did not know anything about the details of this Mr.
      Krick Character,” but, though somewhat equivocally, recognized
      the fact that the name appeared on the conflict petition.
      Therefore, while it is clear that [trial counsel] did not know that
      Appellant intended to use Mr. Krick in his defense, it is also clear
      that [trial counsel] never discussed the matter with Appellant,
      despite his appointment papers “specifically implicating” Mr. Krick
      in the defense strategy.

PCRA Court Opinion, 12/07/2016, at 4-5 (citations omitted); see also PCRA

Court Opinion, 04/27/2017, at 6.

      The PCRA court concluded that, under the above circumstances,

Appellant’s ineffectiveness claim had arguable merit. However, the court then

concluded that Appellant had failed to establish the prejudice prong of the

tripartite ineffectiveness test:

          Here, [Appellant] implies in his testimony that counsel did not
      have adequate time to prepare, which resulted in a failure to
      conduct an investigation into Mr. Krick. As reflected above, a
      reasonable investigation of the record would have revealed to
      [trial] counsel that [Appellant] wished to implicate Mr. Krick. Yet,
      despite this oversight, [trial counsel] zealously defended
      [Appellant] and proceeded on theories he and [Appellant] thought



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      were most effective for the case [, which was that Appellant was
      a drug user and not a drug dealer.]
                                    ***

         In the instant matter, [Appellant] has failed to make any
      specific allegations as to how an investigation of Mr. Krick could
      rise above the level of a mere allegation. [Appellant] has not
      presented any evidence that Mr. Krick was willing to confess to
      the crimes or was implicated by police records. Also, [Appellant]
      has not offered that anyone, but himself, would have implicated
      Mr. Krick given the opportunity.

          Further undermining [Appellant’s] claim of ineffectiveness []
      was that at trial substantial evidence of drug dealing [by
      Appellant] was presented. To reiterate, upon being arrested, the
      officer’s recovered two working cell phones, two blue glassine
      packets containing heroin, and $83.00 in U.S. currency from
      [Appellant’s] person. Additionally, no paraphernalia typical of a
      heroin user was recovered on or near [Appellant]. Finally, other
      officers searched the fountain area and breezeway, where they
      recovered additional packets of heroin and cocaine. All this
      evidence tends [to] implicate that [Appellant] was in fact a drug
      dealer, not just a user. There was substantial evidence for the
      jury to reach its finding.

         In conclusion, the record does not reflect that Mr. Krick ever
      confessed to being the responsible party, and at the PCRA hearing
      no evidence was presented to the contrary.            [Appellant’s]
      testimony that a different result may have occurred does not
      overcome the substantial evidence that demonstrates [he] is in
      fact a dealer. As such, there is no reasonable probability that the
      outcome of the proceedings would have been different.

PCRA Court Opinion, 12/07/2016, at 6-7 (citations omitted); see also PCRA

Court Opinion, 04/27/2017, at 7-8.

      Our review of the evidence from the PCRA hearing supports the PCRA

court’s conclusions. In addition to the evidence reiterated by the PCRA court

above, we note that the evidence adduced at Appellant’s trial established that

police surveilled Appellant, observing him engage in a drug transaction. See


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Rodriguez-Saez, supra. Further, Appellant confessed to police that he sold

the drugs to support his habit.      Id.   In short, the evidence establishing

Appellant as a seller of drugs was overwhelming.         Trial counsel cannot be

found ineffective where, as here, Appellant cannot establish prejudice.

Travaglia, 661 A.2d at 357.

      In his second argument, Appellant asserts that trial counsel was

ineffective for advising Appellant not to testify at trial due to the admissibility

of his prior convictions for selling drugs. According to Appellant, “the PCRA

Court incorrectly assumed that [his] twelve (12) year-old criminal record

would have been admissible if he had testified that he was [merely] a drug

user.” Appellant’s Brief at 6.

      Appellant’s claim that evidence of his prior convictions for selling drugs

was inadmissible given they occurred over a decade ago, is erroneous. As

noted by the PCRA Court, “[h]ad Appellant taken the stand and testified that

he was exclusively a drug user, … the Commonwealth may have been

permitted to rebut this assertion with his prior convictions” because the

“Commonwealth may introduce evidence tending to show prior offenses if the

purpose is to rebut statements which create inferences favorable to the

accused.” PCRA Court Opinion, 4/27/17, at 10 (citing Commonwealth v.

Saxton, 532 A.2d 352, 357 (Pa. 1987)); see also Commonwealth v.

Powers, 577 A.2d 194 (Pa. Super. 1990).           In addition, as noted above,

Appellant also had confessed to the police that he sold drugs to support his


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addiction. This, too, would have impeached any testimony given by Appellant.

Trial counsel cannot be found ineffective for pursuing a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

Moreover, counsel’s advice was reasonable and, in light of the overwhelming

evidence, resulted in no prejudice to Appellant. Douglas, 645 A.2d at 231;

Travaglia, 661 A.2d at 357.

      For these reasons, we conclude that the PCRA court did not err or abuse

its discretion in denying Appellant collateral relief. Accordingly, we affirm the

PCRA court’s order dismissing Appellant’s PCRA petition.

      Order affirmed. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2017




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