J-S66042-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
OMAR DANIEL DEKEYSER,                   :
                                        :
                 Appellant              :           No. 597 MDA 2014

          Appeal from the PCRA Order entered on March 6, 2014
           in the Court of Common Pleas of Lancaster County,
             Criminal Division, No. CP-36-CR-0005474-2008

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                  FILED NOVEMBER 26, 2014

     Omar Daniel Dekeyser (“Dekeyser”) appeals from the Order denying

his Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. § 9541-9546. We affirm.

     In February 2008, Dekeyser was stopped for speeding while driving a

vehicle that belonged to his girlfriend, Dawn Jones (“Jones”).   The officer

ascertained that Dekeyser was driving with a suspended license, and that he

had four prior drug arrests.   Following a canine search of the vehicle’s

exterior, the police obtained a search warrant, the execution of which

produced 124 grams of crack cocaine.

     Dekeyser was charged with possession with intent to deliver cocaine,

possession of cocaine, possession of drug paraphernalia, driving while

operating privileges are suspended, exceeding the speed limit and improper
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screening.1 Dekeyser filed a Motion to Suppress, which the trial court denied

on February 18, 2010.       The case then proceeded to a bench trial on

stipulated facts, after which the trial court found Dekeyser guilty of all

charges except improper screening.         That same day, the trial court

sentenced Dekeyser to an aggregate prison term of 7 to 14 years.

      Dekeyser filed a timely Notice of Appeal. This Court remanded on the

issue related to Dekeyser’s waiver of a jury trial in the absence of an oral or

written colloquy. Commonwealth v. Dekeyser, 23 A.3d 1092 (Pa. Super.

2011) (unpublished memorandum).         The trial court subsequently held an

evidentiary hearing to address the issue.        The trial court found that

Dekeyser made no effort to timely preserve the issue for appeal. This Court

agreed and concluded that Dekeyser had waived the issue; nevertheless,

this Court alternatively concluded that Dekeyser knowingly and voluntarily

waived his right to a jury trial. See Commonwealth v. Dekeyser, 29 A.3d

836 (Pa. Super. 2011) (unpublished memorandum).             Dekeyser filed a

Petition for Allowance of Appeal, which the Pennsylvania Supreme Court

denied in October 2011.

      Dekeyser, pro se, timely filed the instant PCRA Petition in January

2012. The PCRA court appointed Dekeyser counsel, who filed an amended

Petition. The PCRA court denied Dekeyser’s Petition. Dekeyser filed a timely



1
 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32); 75 Pa.C.S.A. §§ 1543,
3362, 4524(e).


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Notice of Appeal and a court-ordered Pennsylvania Rule of Appellate

Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.

      On appeal, Dekeyser raises the following questions for our review:

      I. Was trial counsel ineffective for advising [] Dekeyser to
      proceed with a stipulated bench trial, rather than to have a jury
      trial in which he contested constructive possession of the cocaine
      hidden behind the armrest in the back seat of the vehicle he was
      driving when stopped by the police?

      II. Was trial counsel ineffective for accepting payment from []
      Jones to represent [] Dekeyser where [] Jones, as the owner of
      the vehicle, had an interest which conflicted with [] Dekeyser’s
      interest, [] Dekeyser did not waive this conflict, and trial counsel
      did not advise [] Dekeyser to contest constructive possession of
      the cocaine found in Jones’s vehicle because this would have
      required [trial counsel] to claim that Jones was the owner of the
      cocaine?

Brief for Appellant at 5.

      In his first claim, Dekeyser argues that trial counsel was ineffective for

advising him to proceed with a stipulated bench trial. Id. Specifically, he

claims that in foregoing a jury trial, he relinquished a defense that he was

not in constructive possession of the cocaine. Id. at 15-17, 19. Dekeyser

argues that trial counsel incorrectly stated, during the evidentiary hearing,

that Dekeyser did not wish to pursue a defense based on lack of constructive

possession because he would have to assign blame to Jones. Id. at 17-18.

      To succeed on an ineffectiveness claim, Dekeyser must demonstrate

by a preponderance of the evidence that

      (1) [the] 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


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         for counsel’s ineffectiveness, there is a reasonable probability
         that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                   Counsel is

presumed to be effective and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

         As to the underlying claim, this Court determined, in alternative

analysis, that Dekeyser knowingly and voluntarily waived his right to a jury

trial.    See Commonwealth v. Dekeyser, 29 A.3d 836 (unpublished

memorandum at 9-12); see also N.T., 2/22/11, at 6-7, 9-12, 15, 28-30.

         Specifically, this Court concluded the following:

         [T]rial counsel testified she discussed at length with [Dekeyser],
         who she characterized as “sophisticated with the criminal justice
         system,” the pros and cons of a bench trial versus a jury trial.
         She further testified that she believed [that Dekeyser] clearly
         understood his rights and [Dekeyser] affirmatively indicated he
         wished to proceed with a stipulated bench trial. In addition,
         upon questioning by the trial court, [Dekeyser] admitted that he
         had at least four prior felony drug convictions, one of which
         resulted “recently” from a conviction following a jury trial.
         Therefore, although the procedural devices of an oral or written
         colloquy were not used in the case sub judice, we conclude that
         the totality of the circumstances reveal that [Dekeyser]
         understood the essential elements of a jury trial and voluntarily
         waived his right thereto.

Commonwealth v. Dekeyser, 29 A.3d 836 (unpublished memorandum at

12) (citation omitted).     Upon our review of the record, we agree with this

Court’s analysis and conclude that the underlying claim has no merit. Thus,



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Dekeyser cannot succeed on a claim of ineffective assistance of counsel for

advising him to proceed with a bench trial.

      In his second claim, Dekeyser argues that trial counsel was ineffective

for accepting payment from Jones for his representation, which created a

conflict of interest.   Brief for Appellant at 20.   Dekeyser claims that after

accepting payment from Jones, trial counsel represented conflicting interests

by foregoing a trial defense that Dekeyser was not in constructive

possession of the cocaine because it would implicate Jones. Id. at 22-24.

             An appellant cannot prevail on a preserved conflict of
      interest claim absent a showing of actual prejudice.
      Nevertheless, we presume prejudice when the appellant shows
      that trial counsel was burdened by actual—rather than mere
      potential—conflict of interest. To show an actual conflict of
      interest, the appellant must demonstrate that: (1) counsel
      actively represented conflicting interests; and (2) those
      conflicting interests adversely affected his lawyer’s performance.

Commonwealth v. Collins, 957 A.2d 237, 251 (Pa. 2008).

      Here, trial counsel testified that Jones was never her client, that she

never challenged the forfeiture of Jones’s vehicle, and that she never filed

anything on Jones’s behalf.     See N.T., 9/11/13, at 14, 18-19.       Moreover,

because this claim specifically relates to a constructive possession defense at

a jury trial, and we have already determined that Dekeyser waived his right

to a jury trial, Dekeyser cannot now argue that failure to raise a trial defense

was a result of a conflict of interest. Thus, Dekeyser cannot succeed on his

claim of ineffective assistance of counsel due to a conflict of interest.




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Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2014




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