J-S06028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 CARLOS PEREZ                               :
                                            :
                     Appellant              :    No. 1704 EDA 2018

                  Appeal from the PCRA Order May 21, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0010665-2011


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                          FILED SEPTEMBER 12, 2019

      Appellant, Carlos Perez, appeals from the Order entered May 21, 2018,

dismissing his Petition for collateral relief filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm in part, vacate in part, and

remand with instructions that the PCRA court conduct a limited evidentiary

hearing.

      Appellant entered a negotiated guilty plea based on the following factual

predicate presented by the Commonwealth at his plea hearing:

      On April 15, 2011, Appellant and his co-defendant, Angel Suarez, Jr.,

drove in a burgundy Honda Accord with a black-primer-painted door to the

3,000-block of Water Street in Philadelphia to physically confront Mr. Suarez’s

father. N.T. Plea, 7/1/13, at 60. An altercation ensued. When a neighbor

intervened, Appellant fled the scene with his co-defendant. Id.
J-S06028-19



        Approximately ten minutes later, eyewitnesses observed the same two

men, i.e., Appellant and his co-defendant, return to the scene in the same

car, this time carrying firearms. Id. at 61. Eyewitnesses further observed

these two men chase Mr. Suarez’s father and the neighbor, repeatedly firing

their guns at them. Id. During this second altercation, Appellant and his co-

defendant shot a bystander, Sandra Laboy.          Id.   Ms. Laboy died from a

gunshot wound to the back. Id. Following an investigation, both Mr. Suarez’s

father and the neighbor positively identified Appellant as one of the shooters.

Id. at 62.

        In July 2013, Appellant entered a negotiated plea of guilty to Third-

Degree Murder, Conspiracy, and Possession of Instruments of Crime (PIC).1

Id. at 69-71.       In exchange for his plea, the Commonwealth withdrew

numerous charges and recommended a sentence of twenty to forty years of

incarceration. Id. at 22. Following a comprehensive colloquy, the trial court

accepted Appellant’s plea and sentenced him pursuant to its negotiated terms.

Id. at 69, 75-76.

        Appellant did not appeal from the Judgment of Sentence. However, in

June 2014, Appellant timely filed pro se a Petition for collateral relief, asserting

ineffective assistance of counsel and after-discovered evidence.            Pro Se

Petition, 6/30/14, at 7 (as well as supplemental pages attached thereto).

Appellant attached to his Pro Se Petition an affidavit from Mr. Suarez, his co-

____________________________________________


1   See 18 Pa.C.S. §§ 2502(c), 903(c), 907(a), respectively.

                                           -2-
J-S06028-19



defendant, in which Mr. Suarez attests that he “had done wrong by putting

someone in this position that is innocent,” and that a friend known to him as

“Pito” participated in the shooting. Id., Exhibit 2 at 2 (English Translation of

Mr. Suarez’s Affidavit). Based on this evidence, Appellant sought to withdraw

his plea and proceed to trial. Id. at 5. Thereafter, appointed counsel filed an

amended Petition, re-asserting these claims. Petition, 5/30/17.

      Following notice, the PCRA court dismissed Appellant’s Petition without

a hearing. PCRA Ct. Order, 5/21/18. Appellant timely appealed and filed a

Pa.R.A.P. 1925(b) Statement. The court issued a responsive Opinion. See

PCRA Ct. Op., filed 8/6/18.

      Appellant   raises    the   following   issues   on   appeal,   restated   and

reorganized for clarity:

      1. Whether the PCRA court erred in denying Appellant’s request
         for an evidentiary hearing on his after-discovered evidence
         claim pursuant to Pa.R.Crim.P 908.

      2. Whether the court erred in denying Appellant a hearing to
         evaluate counsel’s ineffectiveness because:

            a. Counsel failed to bring an Spanish-language interpreter
               to out-of-court meetings with Appellant and, therefore,
               was unable to advise Appellant regarding his defense;

            b. Counsel failed to ensure that the entire written plea
               colloquy was translated into Spanish;

            c. Counsel failed to preserve the issue of severance for
               appeal.

See Appellant’s Br. at 4.




                                        -3-
J-S06028-19



      We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error.   Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014)).

      In this case, the court dismissed Appellant’s Petition without a hearing.

The court has discretion to dismiss a petition without a hearing when it is

satisfied “that there are no genuine issues concerning any material fact, the

defendant is not entitled to post-conviction relief, and no legitimate purpose

would be served by any further proceedings.” Pa.R.Crim.P. 907(1); see also

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008); but

see Pa.R.Crim.P 908 (A)(2) (“[T]he judge shall order a hearing . . . when the

petition for post-conviction relief . . . raises material issues of fact.”).   “A

reviewing court must examine the issues raised in the PCRA petition in light

of the record in order to determine whether the PCRA court erred in concluding

that there were no genuine issues of material fact and in denying relief without

an evidentiary hearing.” Springer, 961 A.2d at 1264.

      In his first issue, Appellant asserts that his Petition raises a genuine

issue of material fact, thus obligating the PCRA court to hold an evidentiary

hearing. Appellant’s Br. at 12-17. According to Appellant, his co-defendant’s

affidavit constitutes after-discovered evidence and identifies “the actual

second shooter.” Id. at 9 (emphasis removed). Given this new evidence,




                                     -4-
J-S06028-19



Appellant concludes, “which if prove[n] would establish actual innocence, a

hearing is an absolute necessity.” Id. at 17 (emphasis removed).

      Generally, an appellant who has pleaded guilty “waives all claims and

defenses other than those sounding in the jurisdiction of the court, the validity

of the plea, and what has been termed the ‘legality’ of the sentence imposed.”

Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa. Super. 2017).

However, our Supreme Court has determined that “any after-discovered

evidence [that] would justify a new trial would also entitle a defendant to

withdraw his guilty plea.” Commonwealth v. Peoples, 319 A.2d 679, 681

(Pa. 1974) (so holding in the context of the Post Conviction Hearing Act, the

statutory predecessor to the PCRA).

      In this case, the Commonwealth represented to the court that it was

prepared to prove, through eyewitness testimony, that it was Appellant and

his co-defendant who fired guns in the direction of Mr. Suarez’s father and

neighbor, striking a bystander in the back and killing her. N.T. Plea at 60-63.

In addition, the Commonwealth had secured a statement from Appellant’s co-

defendant “admitting to his participation in the offense.” Id. at 63. Balanced

against this proffer, Appellant has obtained an allegedly exculpatory

statement from his co-defendant, which suggests Appellant’s innocence and

specifically identifies another individual as co-defendant’s accomplice. Pro Se

Petition, Exhibit 2 at 2.

      Because    this   statement   challenges   evidence   proffered   by   the

Commonwealth, Appellant has established a genuine issue of fact relevant to

                                      -5-
J-S06028-19



his after-discovered evidence claim and which may support his request to

withdraw his guilty plea and proceed to trial. See Peoples, 319 A.2d at 681.

Accordingly, the PCRA court erred in denying Appellant relief without first

conducting a hearing to consider this evidence. Springer, 961 A.2d at 1264;

Pa.R.Crim.P 908 (A)(2).2

       In his second issue, Appellant asserts the PCRA court erred in denying

his ineffective assistance of counsel claims without first conducting an

evidentiary hearing. Appellant’s Br. at 11. According to Appellant, a hearing

was necessary to determine whether: (1) Appellant was aware that his former

counsel should have met with him using an interpreter; (2) Appellant fully

understood the gravamen of his plea, as the written documents were not fully

translated into Spanish; and (3) Appellant understood that there was a

potential Bruton3 problem and should have moved to sever his trial from that

of his co-defendant. Id.


____________________________________________


2 We do not address the merits of Appellant’s after-discovered evidence claim,
as it is the function of the PCRA court to evaluate the credibility of Appellant’s
evidence and determine, in the first instance, whether his claim warrants
relief. Our Supreme Court has instructed that “[i]n order to justify the grant
of a new trial on the basis of after-discovered evidence, the evidence must
have been discovered after the trial and must be such that it could not have
been obtained at the trial by reasonable diligence, must not be cumulative or
merely impeach credibility, and must be such as would likely compel a
different result.”    Peoples, 319 A.2d at 681; see also 42 Pa.C.S. §
9543(a)(2).

3Bruton v. United States, 391 U.S. 123 (1968) (holding that admission of
co-defendant's confession, implicating defendant at a joint trial, constituted
prejudicial error).

                                           -6-
J-S06028-19



      Appellant contends that plea counsel was ineffective.           We presume

counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).

To overcome this presumption, a petitioner must establish that: (1) the

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for

his   act   or   omission;   and   (3)   petitioner   suffered   actual    prejudice.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015).                    In order to

establish prejudice, a petitioner must demonstrate “that there is a reasonable

probability that, but for counsel’s error or omission, the result of the

proceeding would have been different.”         Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012) (citation omitted). A claim will be denied if the

petitioner fails to meet any one of these prongs. See Jarosz, 152 A.3d at

350 (citing Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009)).

      Appellant’s first two claims of ineffectiveness involve his decision to

plead guilty. “Allegations of ineffectiveness in connection with the entry of a

guilty plea will serve as a basis for relief only if the ineffectiveness caused [the

petitioner] to enter an involuntary or unknowing plea.” Fears, 86 A.3d at

806–07 (citation omitted).

      According to Appellant, counsel’s failure to consult with Appellant

through an interpreter regarding discovery and possible trial strategies and,

further, counsel’s failure to ensure that the entire written plea colloquy form

was translated entirely into Spanish rendered his plea involuntary or

unknowing. See generally Appellant’s Br. at 11, 14-15, 18-20. We disagree.




                                         -7-
J-S06028-19



      It is well settled that “[a] person who elects to plead guilty is bound by

the statements he makes in open court while under oath and he may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523

(Pa. Super. 2003) (citing Commonwealth v. Stork, 737 A.2d 789, 790-91

(Pa. Super. 1999)).

      The record of Appellant’s extensive plea colloquy—conducted with the

benefit of an interpreter—establishes that he fully understood his rights and

voluntarily pleaded guilty.   See N.T. Plea at 17-78.       For example, after

explaining to Appellant his absolute right to a trial, the process of selecting a

jury, and the presumption of his innocence, the plea court described the

manner in which Appellant could challenge the Commonwealth’s evidence and

present a defense.    Id. at 38-40.    The court repeatedly inquired whether

Appellant understood these rights, whether he had discussed these rights with

his counsel, and whether he was satisfied with counsel’s services. Id. at 48-

49. Appellant stated specifically that he was satisfied with counsel’s services.

Id. at 49.    Similarly, the court discussed the written colloquy form with

Appellant, inquired whether he had reviewed it with counsel and whether,

after review, he understood each line on the form. Id. at 65-66. Appellant

answered affirmatively. Id.

      Based on this record, we discern no issues of material fact relevant to

these claims that would mandate a hearing before the PCRA court. Further,

the record establishes that Appellant knowingly and voluntarily pleaded guilty.

                                      -8-
J-S06028-19



Accordingly, the PCRA court did not err in denying Appellant’s claims without

a hearing. Springer, 961 A.2d at 1264; Pollard, 832 A.2d at 523; Fears,

86 A.3d at 806-07.

       In his final claim of ineffectiveness, Appellant asserts that plea counsel

should have discussed with him a potential Bruton issue. Appellant’s Br. at

11, 21-26.       Further, according to Appellant, plea counsel should have

preserved this claim for appellate purposes. Id. at 23.

       As stated, supra, an appellant who has pleaded guilty “waives all claims

and defenses other than those sounding in the jurisdiction of the court, the

validity of the plea, and what has been termed the ‘legality’ of the sentence

imposed.” Heaster, 171 A.3d at 271. Appellant knowingly and voluntarily

pleaded guilty. Therefore, he has waived the underlying Bruton claim, and

there is, thus, no merit to Appellant’s ineffectiveness claim.4 Id.

       In summary, the PCRA court erred in denying Appellant’s after-

discovered evidence claim without first conducting an evidentiary hearing to

consider a genuine issue of fact regarding the statement of Appellant’s co-

defendant.     Thus, we vacate the court’s Order in part and remand for an

evidentiary hearing limited to this issue. On remand, the PCRA court shall




____________________________________________


4  In light of Appellant’s waiver, we need not address the merits of Appellant’s
potential Bruton issue. Nevertheless, the certified record undermines the
premise of Appellant’s ineffectiveness claim, as it appears counsel actually
filed a Motion to Sever prior to Appellant’s plea. See Commonwealth’s
Response to [Appellant] Carlos Perez’s Motion to Sever, 11/30/12.

                                           -9-
J-S06028-19



consider Appellant’s after-discovered evidence claim in light of our Supreme

Court’s holding in Peoples. We affirm the PCRA court in all other respects.

      Order affirmed in part and vacated in part; case remanded for further

proceedings; jurisdiction relinquished.

      President Judge Emeritus Ford Elliott joins the memorandum.

      Judge Bowes files a Concurring/Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/19




                                    - 10 -
