J-S74038-19

                                   2020 PA Super 25

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TAYLOR HOPKINS                             :
                                               :
                       Appellant               :   No. 1242 EDA 2019

       Appeal from the Judgment of Sentence Entered February 19, 2019
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0001595-2018


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            Filed: February 7, 2020



        Appellant Taylor Hopkins appeals the judgment of sentence entered by

the Court of Common Pleas of Bucks County after a jury convicted Appellant

of Drug Delivery Resulting in Death,1 five counts of Delivery of Heroin,2 one

count of Possession With Intent to Deliver a Controlled Substance (PWID),3

four counts of Criminal Use of a Communication Facility,4 and one count of

Recklessly Endangering Another Person (REAP).5 Appellant asserts that the

trial court erred in allowing Appellant to waive his right to file post-trial




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*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S.A. § 2506(a).
2   35 P.S. § 780-113(a)(30).
3   35 P.S. § 780-113(a)(30).
4   18 Pa.C.S.A. § 7512(a).
5   18 Pa.C.S.A. § 2705.
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motions, post-sentence motions, a direct appeal, and a Post Conviction Relief

Act (PCRA) petition in exchange for a negotiated sentence. We affirm.

     The trial court summarized the factual history of this case as follows:

            On May 4, 2017, Theresa Johnson and Maryanne Cominsky
     were doing drugs together and decided to contact Appellant to
     purchase heroin.     Appellant subsequently sold Johnson and
     Cominsky two bundles of heroin for $40 each. Theresa Johnson
     testified that the bundle she received consisted of ten baggies
     stamped with the word “Kanye.” After making this sale, Appellant
     drove Johnson and Cominsky in his silver Hyundai to Gary
     DeGennaro’s house in Levittown, Pennsylvania. Theresa Johnson
     subsequently dropped Maryanne Cominsky and Gary DeGennaro
     off at the Country House Motel in Morrisville, Pennsylvania around
     2:00 P.M. using DeGennaro’s vehicle. Johnson testified that
     DeGennaro called her at approximately 10:00 P.M. because
     Cominsky was blue and not breathing. Johnson then called 911.

            When detectives responded to the motel room, they
     observed the victim on the bathroom floor with drug paraphernalia
     scattered around her and a wax baggie with a “Kanye” stamp on
     top of the toilet tank. Dr. Erika Williams, a forensic pathologist,
     testified that Maryanne Cominsky died as a result of cocaine and
     heroin intoxication.      Ayako Chan-Hosokawa, a forensic
     toxicologist, confirmed that lethal amounts of heroin were found
     in the victim’s system.

           Andrea Budzakova contacted Appellant via cell phone and
     made four controlled buys of heroin from him on May 25, 2017,
     May 31, 2017, June 8, 2017, and June 27, 2017. All [four] times
     she purchased two bundles of “Kanye”-stamped heroin at a cost
     of $80. Appellant drove his silver Hyundai to each of these buys.
     Budzakova also testified that she was present during a
     conversation in which Appellant said “something about the girl
     dying from heroin he sold her” and that he was using the “Kanye”
     stamp at the time of the overdose. Budzakova wore a wire during
     the June 27, 2017, controlled buy and asked Appellant whether
     the drugs he was selling her were the same type that resulted in
     an overdose death, to which Appellant responded in the
     affirmative.




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            On June 28, 2017, detectives executed a search warrant at
      Appellant’s apartment in Morrisville, Pennsylvania and seized
      eighty bags of “Kanye”-stamped heroin, which were located in a
      Similac container in a cabinet. Appellant’s silver Hyundai was
      parked outside the apartment at the time. The wax paper baggies
      uncovered during the search were marked “Kanye” in blue ink and
      were identical to the empty baggie that detectives discovered in
      the victim’s motel room on May 4, 2017.

Trial Court Opinion (T.C.O.), 6/13/19, at 1-2 (citations omitted).

      On December 7, 2018, a jury convicted Appellant of the aforementioned

offenses.   The trial court deferred the sentencing hearing to February 19,

2019, to allow for the completion of a pre-sentence investigation.      Before

sentencing, on December 29, 2018 and January 4, 2019, Appellant filed two

separate documents, which both were entitled “Post-Sentence Motion for a

New Trial pursuant to Pa.R.C.P. 720(c).”

      In these post-trial motions, Appellant claimed he was entitled to a new

trial based on “after-discovered evidence” that prosecution witness Gary

DeGennaro had been convicted of four summary offenses and was on

probation at the time of Appellant’s trial.         Appellant suggested the

prosecution’s failure to turn over DeGennaro’s criminal record violated Brady

v. Maryland, 373 U.S. 83 (1963).

      The prosecution asserted that Appellant was not entitled to relief as the

defense could have obtained information regarding DeGennaro’s criminal

record through a non-governmental source (online public docket sheets). In

addition, the prosecution argued that the information would solely be used for

impeachment purposes and would not result in a different verdict due to the



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overwhelming amount of evidence against Appellant.             The trial court

scheduled a hearing on these motions for the same day as Appellant’s

sentencing hearing.

      On February 19, 2019, Appellant indicated that he wished to waive his

rights to file post-trial motions, post-sentence motions, a direct appeal, and a

PCRA petition in exchange for a negotiated sentence of seven to fifteen years’

incarceration. Defense counsel and the trial court conducted an oral colloquy

to ensure Appellant understood the rights he was waiving in exchange for a

lenient sentence. After accepting the appeal waiver, the trial court imposed

concurrent sentences of seven to fifteen years’ imprisonment on the Drug

Delivery Resulting in Death charge and the five Delivery of Heroin charges.

The trial court denied Appellant’s post-trial motions.

      On March 21, 2019, Appellant filed a pro se notice of appeal. On April

8, 2019, the trial court vacated the appointment of Appellant’s trial counsel,

John J. Fioravanti, Jr., Esq. and appointed Marc. S. Stollee, Esq. as appellate

counsel. On April 18, 2019, Atty. Stollee filed a counseled notice of appeal.

      Appellant raises one issue for our review on appeal:

            Did the trial court error [sic] in allowing Appellant to waive
      his post sentence motions, appellate rights and Post Conviction
      Relief Act petition when his waiver was not knowing, intelligent,
      and voluntary given the fact that Appellant was under duress to
      make such a decision without adequate time to fully consider the
      ramifications of waiving such rights[?]

Appellant’s Brief, at 5.




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      We first assess whether this appeal was timely as Appellant filed a pro

se notice of appeal while represented by counsel. As hybrid representation is

not permitted in the Commonwealth, our courts “will not accept a pro se

motion while an appellant is represented by counsel; indeed, pro se motions

have no legal effect and, therefore, are legal nullities.” Commonwealth v.

Williams, 151 A.3d 621, 623 (Pa.Super. 2016) (citation omitted).

      However, when a counseled defendant files a pro se notice of appeal,

the appeal is not a legal nullity and has legal effect. Commonwealth v.

Cooper, 611 Pa. 437, 27 A.3d 994, 1007 (2011). While a defendant does not

have a right to hybrid representation, “there is a right of appeal pursuant to

Article 5, § 9 of the Pennsylvania Constitution.” Williams, 151 A.3d at 624

(citing Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993)).

“Because a notice of appeal protects a constitutional right, it is distinguishable

from other filings that require counsel to provide legal knowledge and strategy

in creating a motion, petition, or brief.” Williams, 151 A.3d at 624.

      As such, Appellant’s pro se notice of appeal was timely and had legal

effect.   Thus, we may evaluate Appellant’s claim that his waiver was

unknowing and involuntary due to coercion by counsel. Appellant concedes

he agreed to an appeal waiver in exchange for a negotiated sentence.

      As noted above, a defendant is provided a constitutional right to an

appeal by Article 5, Section 9 of the Pennsylvania Constitution, which

specifically states:




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      There shall be a right of appeal in all cases to a court of record
      from a court not of record; and there shall also be a right of appeal
      from a court of record or from an administrative agency to a court
      of record or to an appellate court, the selection of such court to
      be as provided by law; and there shall be such other rights of
      appeal as may be provided by law.

Pa. Const. art. 5, § 9.

      Nevertheless, in noting “the importance of the plea bargaining process

as a significant part of the criminal justice system,” this Court has recognized

that a criminal defendant is permitted to “waive valuable rights in exchange

for important concessions by the Commonwealth.” Commonwealth v.

Widmer, 120 A.3d 1023, 1027 (Pa.Super. 2015) (quoting Commonwealth

v. Byrne, 833 A.2d 729, 735 (Pa.Super. 2003) (citations omitted)).

      Moreover, we note that “a defendant routinely waives a plethora of

constitutional rights by pleading guilty, including the right to a jury trial by his

peers, the right to have the Commonwealth prove his guilt beyond a

reasonable doubt, and his right to confront any witnesses against him.”

Byrne, 833 A.2d at 735–36 (citations omitted). See also Peretz v. United

States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (“The

most basic rights of criminal defendants are ... subject to waiver”).

      However, this Court has emphasized that “the constitutional right to

appeal is a personal right which may be relinquished only through a knowing,

voluntary and intelligent waiver.” Commonwealth v. Doty, 997 A.2d 1184,

1186–87 (Pa.Super 2010) (citations omitted).         For an appeal waiver to be

effective, “the accused must be aware of all of his rights incident to an appeal,



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and with such knowledge intentionally abandon or fail to exercise them.”

Commonwealth v. Maloy, 438 Pa. 261, 263, 264 A.2d 697, 698 (1970).6

       In this case, Appellant asserts that his waiver of his appellate rights was

unknowing and involuntary as he was “lured into accepting the agreement

based on the sentence agreement of 7 to 15 years.” Appellant’s Brief, at 16.

Appellant argues that he was under duress to agree to this waiver as his

counsel coerced him into doing so.

       To ensure that Appellant’s appeal waiver was knowing and voluntary,

defense counsel conducted the following oral colloquy on the record:

       [Defense counsel:] Your Honor, for your consideration, I believe
       we have an agreement in terms of sentencing with the
       understanding that [Appellant] would waive his appellate and
       post-conviction rights.

       [Trial court:] All right.

       [Prosecutor:] Your Honor, we recommended, based on this
       agreement, a sentence of total incarceration of not less than 7 to
       not more than 15 years.

       [Trial court:] All right. Do you want to inquire of your client?



____________________________________________


6 The United States Supreme Court and the Third Circuit Court of Appeals have
recognized that a defendant may waive his right to file an appeal and a petition
for post-conviction relief if such waiver is knowing and voluntary. See Garza
v. Idaho, ___U.S.___, 139 S. Ct. 738, 744 (2019) (discussing “appeal
waivers” and noting that “defendants retain the right to challenge whether the
waiver itself is valid and enforceable”); U.S. v. Grimes, 739 F.3d 125, 128–
29 (3rd Cir. 2014) (holding that “[w]e will enforce an appellate waiver and
decline to review the merits of an appeal where we conclude (1) that the
issues [the defendant] pursues on appeal fall within the scope of his appellate
waiver and (2) that he knowingly and voluntarily agreed to the appellate
waiver, unless (3) enforcing the waiver would work a miscarriage of justice”).

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     [Defense counsel:] I would. [Appellant,] you are aware of the
     terms of this agreement; are you not?

     [Appellant:] Yes.

     [Defense counsel:] And it is your intention to accept this
     agreement?

     [Appellant:] Yes.

     [Defense counsel:] And you understand that by doing this you
     are agreeing that you are waiving your rights to a filing of any
     post sentence motions or appellate rights to the Pennsylvania
     Superior Court. Do you understand that?

     [Appellant:] Yes.

     [Defense counsel:] Where you would challenge your conviction,
     challenge the admission of evidence, and, in fact, challenge the
     very aspect of the motion that we are here for today in terms of
     the after-discoverable Brady violations. Do you understand that?

     [Appellant:] Yes.

     [Defense counsel:] You also understand that you have a right
     within a year of the final judgments against you to file what’s
     called a Post Conviction Hearing Act Petition, where you could
     allege ineffective assistance of trial counsel. We talked about that,
     right?

     [Appellant:] Yeah.

     [Defense counsel:] We talked about the idea that certain – this
     After-Discovered Evidence, perhaps, could have been discovered
     by me, the due diligence, and you understand by entering into this
     agreement you’re waiving your right to file that post conviction
     [petition]. Do you understand that?

     [Appellant:] Yes.

     [Defense counsel:] Are you doing this voluntarily and of your own
     free will?

     [Appellant:] Yes.

     [Defense counsel:] And you understand that in terms of a
     potential federal habeas corpus petition, you would be barred from
     litigating that because you’re procedurally defaulted by virtue of


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J-S74038-19


      the fact that you will not be raising appellate issues in this
      Commonwealth? Do you understand that?

      [Appellant:] Yes.

      [Defense counsel:]       In other words, you can’t attack your
      conviction federally if you waive your appellate rights here. Do
      you understand that?

      [Appellant:] Yes.

      [Defense counsel:] And are you willing to do that?

      [Appellant:] Yes.

Notes of Testimony (N.T.), 2/19/19, at 12-15.

      The trial court then continued to question in detail Appellant about his

choice to waive his appellate and collateral review rights:

      [Trial court:] Are you taking any medications?

      [Appellant:] No.

      [Trial court:] Are you under the influence of drugs or alcohol?

      [Appellant:] No.

      [Trial court:] Have you had enough time to talk to [defense
      counsel] about this offer?

      [Appellant:] Yes.

      [Trial court:] I specifically gave you time to talk to your
      family; isn’t that correct?

      [Appellant:] Yes.

      [Trial court:] Has anybody threatened you or forced you to do
      this?

      [Appellant:] No.

      [Trial Court:] So you understand, when [defense counsel] says
      you’re giving up the right to raise any issues, including things like
      whether these matters should have been consolidated for trial, do
      you understand that?



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     [Appellant:] Yes.

     [Trial court:] So all the things that your lawyer objected to during
     the course of the proceeding and any motions that you raise,
     those are forever being given up. Do you understand that?

     [Appellant:] Yes.

     [Trial court:] In exchange for this offer?

     [Appellant:] Yes.

     [Trial court:] This is not RRRI, correct?

     [Prosecutor:] Correct.

     [Trial court:] Do you understand that too?

     [Appellant:] Yes.

     [Trial court:] Do you have any questions about any of this?

     [Appellant:] No.

Id. at 15-16 (emphasis added).

     We agree with the trial court that Appellant clearly demonstrated that

he understood his rights incident to appeal and that he intentionally waived

such rights in exchange for his negotiated sentence.       Although Appellant

argues that he was coerced or “lured” into making this agreement when he

did not have enough time to adequately contemplate the offer, this assertion

is contradicted by Appellant’s express statements on the record that he

understood the ramifications of the appeal waiver and had enough time to

discuss the offer with his counsel and his family. This Court has held that a

defendant “is bound by the statements he makes in open court while under

oath and he may not later … contradict the statements he made…”




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Commonwealth v. Pier, 182 A.3d 476, 480 (Pa.Super. 2018) (quoting

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super. 2003)).

      While Appellant argues that he was urged by his counsel and family

members to accept this offer, Appellant has not shown that his waiver was

rendered involuntary.      After Appellant was convicted of Drug Delivery

Resulting in Death and multiple counts of Delivery of Heroin,                the

Commonwealth offered Appellant the negotiated sentence of seven to fifteen

years imprisonment, which was lower than the prosecution’s initial pretrial

offer of eight to twenty years’ imprisonment.      By entering into the appeal

waiver, Appellant avoided the risk of a substantially longer sentence, which

the trial court could have imposed if it chose to run several individual

sentences consecutively.

      Further, Appellant suggests trial counsel acted in self-interest in

coercing Appellant to waive his right to litigate his post-trial motion, as trial

counsel failed to exercise due diligence in neglecting to produce the prior

criminal record of prosecution witness DeGennaro before Appellant’s trial. As

such, Appellant is alleging that his appeal waiver was invalid due to the

ineffectiveness of his trial counsel.

      Generally, “claims of ineffective assistance of counsel are to be deferred

to PCRA review; trial courts should not entertain claims of ineffectiveness upon

post-verdict motions; and such claims should not be reviewed upon direct

appeal.” Commonwealth v. Holmes, 621 Pa. 595, 620, 79 A.3d 562, 576




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(2013) (footnote omitted). However, our Supreme Court has recognized three

exceptions to this general rule:

      The first exception ... affords trial courts discretion to entertain
      ineffectiveness claims in extraordinary circumstances where a
      discrete claim of trial counsel ineffectiveness is apparent from the
      record and meritorious to the extent that immediate consideration
      best serves the interests of justice. The second exception ... gives
      trial courts discretion to address ineffectiveness claims on post-
      sentence motions and direct appeal if there is good cause shown
      and the defendant knowingly and expressly waives his entitlement
      to seek subsequent PCRA review of his conviction and sentence.

Commonwealth v. Delgros, 646 Pa. 27, 40, 183 A.3d 352, 360 (2018)

(citing Holmes, 621 Pa. at 598-99, 79 A.3d at 563-564). The third exception

allows “trial courts to address claims challenging trial counsel's performance

where the defendant is statutorily precluded from obtaining subsequent PCRA

review.” Delgros, 646 Pa. at 42, 183 A.3d at 361.

      Although Appellant knowingly and expressly waived his entitlement to

seek subsequent PCRA review of his conviction and sentence, we observe that

his challenge to trial counsel’s ineffectiveness is not developed for our review

with citation to relevant authority or any analysis of the claim. As such, we

find this specific claim to be waived by Appellant’s lack of development.    See

Commonwealth v. Perez, 625 Pa. 601, 616, 93 A.3d 829, 838 (2014)

(finding the appellant’s claims to be waived due to his failure to include

developed argument or citation to supporting authorities and the record).

      Based on our review of the record, we conclude that Appellant made a

knowing and voluntary waiver of his right to seek further review in a post-trial



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motion, post-sentence motion, direct appeal, or PCRA petition in exchange for

his negotiated sentence. As a result, we affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/20




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