J-S70035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EWARG LARIOS

                            Appellant                No. 1698 EDA 2014


                   Appeal from the PCRA Order May 21, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002681-2010


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 20, 2015

        Ewarg Larios appeals from the order of the Court of Common Pleas of

Lehigh County that dismissed his petition filed pursuant to the Post

Conviction Relief Act.1 After careful review, we affirm based on the opinion

of the Honorable Maria Dantos dated July 1, 2014, which incorporated Judge

Dantos’ opinion dated May 21, 2014.

        On November 10, 2010, after a jury convicted Larios of conspiracy to

deliver cocaine and conspiracy to deliver heroin, the trial court sentenced

him to an aggregate sentence of eight to twenty years’ imprisonment.

Larios appealed his judgment of sentence to this Court, which affirmed on

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S70035-15



October 21, 2011. Commonwealth v. Larios, 37 A.3d 1239 (Pa. Super.

2011) (unpublished memorandum). Larios then filed a petition for allowance

of appeal, which our Supreme Court denied on November 28, 2012.

Commonwealth v. Larios, 57 A.3d 68 (Pa. 2012).

      On November 20, 2013, Larios filed a timely pro se PCRA petition.

Counsel was appointed on November 27, 2013, and on January 3, 2014,

counsel filed an amended petition.     A hearing was held on May 1, 2014,

during which Larios and his counsel, John Peter Karoly, III, Esquire, testified.

The Commonwealth presented the testimony of the assistant district

attorney who tried the case, Robert Rosner, Esquire.

      On May 21, 2014, the PCRA court denied relief. This timely appeal

followed, in which Larios raises the following issues for our review.

      1. Whether Larios was denied his Sixth Amendment right to
         effective assistance of counsel under the U.S. Constitution for
         Karoly’s failure to file a post sentence challenge to the
         imposition of multiple conspiracy convictions which are barred
         under 18 Pa.C.S. §§ 903(c) and 906.

      2. Whether Larios was denied his Sixth Amendment right to
         effective assistance of counsel under the U.S. Constitution for
         Karoly’s failure to properly “federalize” Larios’ claims
         presented to the appellate courts regarding Agent Morgan’s
         tardy disclosure of his report, which resulted in a trial by
         ambush in violation of Larios’ due process right to a fair trial
         under the Fourteenth Amendment of the U.S. Constitution.

      3. Whether Larios was denied his Sixth Amendment right to
         effective assistance of counsel under the U.S. Constitution for
         Karoly’s failure to investigate and present a defense expert to
         refute the Commonwealth’s expert testimony of Agent
         Morgan.



                                     -2-
J-S70035-15


      4. Whether Larios was denied his Sixth Amendment right to
         effective assistance of counsel under the U.S. Constitution for
         Karoly’s failure to interview, call and present Herbert J. Larios
         as a defense witness?

      5. Whether Larios was denied his Sixth Amendment right to
         effective assistance of counsel under the U.S. Constitution for
         Karoly’s failure to investigate and present the business
         records that exonerated Larios by establishing that his
         finances were the result of legal business transactions and not
         the results of illegal drug proceeds, as the Commonwealth
         claimed.

      6. Whether Larios was denied his Sixth Amendment right to
         effective assistance of counsel for Karoly’s failure to object to
         the prosecutor’s misconduct in securing a conviction through
         the use of perjured testimony the prosecutor knew was false.

Appellant’s Brief, at 4.

      In reviewing an appeal from the denial of PCRA relief, “our standard of

review is whether the findings of the court are supported by the record and

free of legal error.”      Commonwealth v. Martin, 5 A.3d 177, 182 (Pa.

2010) (citations omitted).

      To be eligible for relief under the PCRA, Larios must prove by a

preponderance of the evidence that his conviction resulted from “ineffective

assistance of counsel which, in the circumstances of the particular case so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.”      42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”    Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the

defendant must show that the underlying claim had arguable merit, counsel

                                       -3-
J-S70035-15


had no reasonable basis for his or her action, and counsel’s action resulted

in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,

1089 (Pa. Super. 1998).

       After careful review of the parties’ briefs, the record and the relevant

law, we agree with the Honorable Maria Dantos’ analysis and affirm on the

basis of her opinion.       We instruct the parties to attach a copy of Judge

Dantos’ decision in the event of further proceedings.

       Order affirmed.2

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




____________________________________________


2
  The Commonwealth did not file a brief. Accordingly, Larios’ application to
preclude the Commonwealth from filing an untimely brief is denied as moot.



                                           -4-
                                                                                  Circulated 11/12/2015 11:56 AM
...


      IN THE COURTOF COMMON PLEAS OF LEHIGHCOUNTY, PENNSYLVANIA

                                           CRIMINAL DMSION


      COMMONWEALTH OF PENNSYLVANIA                        )
                                                          )
                      vs.                                 )       Case No. 2681/2010
                                                          )
      EWARG..LARIOS,                                     .)
          Defendant                                       )




                                               ********
      APPEARANCES:
                                                                                          ·-
                             W1LLIAM STOYCOS, ESQUIRE                            rG '·•            :.3
                                                                                                 .cc-

                             DEPUTY ATTORNEY GENERAL                             ,,              VJ
                                                                                                 :-r,
                                  On behalf of the Commonwealth                                  ~
                                                                                                   I
                                                                                 -              ~
                             IRENE CHIAVAROLI-JOHNS, ESQUIRE                  ·-·
                                                                              zt:               ·-,._.)               )
                                   On behalf of Defendant                            ·--        :J;:
                                                                             .
                                                                                      ,
                                                                                       ·-       r-o
                                                                                  " .. ·• ...
                                                                                 - ~ ..
                                                                                                          ..... ~.-
                                                                             3-: ,,.,. .
                                                                                                f'0
                                                                             ..:-> ~·.
                                                                                                O',

                                               ********
                                          MEMORANDUM OPINION

      MARIA L. DANTOS, J.

                     Defendant,    Ewarg Larios,   has filed an appeal from this . Court's

      Order of May 21, 2014, which denied the Defendant's Motion for Post Conviction

      Collateral   Relief. Accordingly,   we are issuing      this Opinion pursuant               to the

      provisions of Pennsylvania Rule of Appellate Procedure 1925.

                     The relevant facts are as follows: On October      1, 2010, Defendant,

      Ewarg Larios, after a jury trial, was found guilty of Count 4: Criminal Conspiracy

      to Deliver a Controll~d Substance (cocaine)! and Count 5: Criminal Conspiracy to


             35 P.S. § 780-113(30); 18 Pa. C.S.A. § 903(a)(2).
                                                                                        Circulated 11/12/2015 11:56 AM
I
1.   t   '




             Deliver a Controlled Substance [heroin).a          Thereafter, on November 5, 2010, on

             Count 4, this Court sentenced the Defendant to a term of imprisonment in a state

             correctional institution    of not less than three (3} years nor more than ten (10)

             years.   On the same date, this Court sentenced the Defendant, on Count 5, to a

             term of state imprisonment of not less than five (5) years nor more than ten (10)

             years.   These counts were ordered to run consecutively to each other.                 The

             aggregate sentence ordered was eight (8) to twenty (20) years."
                 .                                                  .
                           Thereafter, on November 15, 2010, the Defendant filed an appeal to

             the Superior Court of Pennsylvania, asserting four (4) allegations of error: (1) this

             Court    improperly   denied    the   Defendant's      Motion to Preclude     the   Expert

             Testimony of Agent Delores Morgan; (2) this Court erred in failing to preclude

             Agent Morgan from expressing expert opinions at trial when her report did not

             indicate any opinion to a reasonable degree of certainty; (3) this Court should

             have granted the Defendant a continuance            to allow the defense time to examine

             and counter the Commonwealth's          expert; and {4) the Court erred in failing to

             grant a mistrial when the prosecutor              improperly disclosed the incarcerated

             status   of the Defendant      to the jury.        In an abundance    of caution,    in its

             memorandum      opinion submitted       to the Superior Court of Pennsylvania,          this

             Court also addressed       that: (1) the evidence presented was sufficient to sustain

             the conviction of the Defendant         for the charges      of Criminal   Conspiracy     to

             Deliver a Controlled Substance        (cocaine) and Criminal Conspiracy to Deliver a

             Controlled Substance       (heroin); and (2) the verdict was not against the weight of

             the evidence.     On October 21, 2011, the Superior              Court of Pennsylvania


             2     "35 P.S. § 780-113(30); 18 Pa. C.S.A. § 903(al(2).
             3
                   The Defendant's RRRI minimum is 27 months on Count 4 and SO months on
             Count 5, aggregating to a RRRI minimum of 77 months.


                                                           2
                                                                                   Circulated 11/12/2015 11:56 AM
•   .<   ' ,'


                affirmed this Court's judgment and sentence. Thereafter, on January 26, 2012,

                a petition for allowance of appeal was filed in the Supreme Court of

                Pennsylvania, which was denied on November 28, 2012.

                             On November 20, 2013, the Defendant filed a motion for post

                conviction collateral relief, as amended on January 3, 2014 and April 30, 2014. ·

                An evidentiary hearing relative to said motion was conducted before this Court on

                May 2, 2014. On May 21, 2014, this Court denied the Defendant's Motion for

                Post Conviction Collateral Reliefand the within appeal followedon June 5, 201 ~.

                             On July 31, 2014, this Court instructed the Defendant to file of

                record and serve upon this Court an amended concise statement of errors

                complained of on appeal no later than September 1, 2014, in accordance with

                Pennsylvania Rule of Appellate Procedure 1925(b).         The Defendant timely

                complied with said Order. However, all of the matters within the Defendant's

                concise statement of errors complained of on appeal have been addressed by

                this Court's Opinion of May 21, 2014. Consequently, this Court relies on said

                Opinion of May 21, 2014, and incorporates it herein.




                DATED:   1f/;f



                                                         3
     , I
                                                                                  Circulated 11/12/2015 11:56 AM
r   . '~.




                IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA

                                               CRIMINAL DIVISION



            COMMONWEALTH OF PENNSYLVANIA

                          vs.                                             Case No. 2681/2010

            EWARG LARIOS,
                Defendant

                                                    * * * * * * * ·*
            APPEARANCES:

                                   W1LLIA1V1 STOYCOS, ESQUIRE
                                 · DEPUTY ATIORNEY GENERAL
                                          On behalf of the Commonwealth

                                     IRENE CHIAVAROLI-JOHNS, ESQUIRE
                                           On behalf of Defendant


                                                     ********

                                                      OPINION


            MARIA L. DANTOS, J.

                           On October 1, 2010, Defendant, Ewarg Larios, after a jury trial, was found

            guilty of Count 4; Criminal Conspiracy to Deliver a Controlled Substance (cocaine)1 and

            Count 5: Criminal Conspiracy to Deliver a Controlled Substance (heroin).2 Thereafter,

            on November 5, 2010, on Count 4, this Court sentenced the Defendant to a term of

            imprisonment in a state correctional institution of not less than three {3) years nor more

            than ten· ( 10) years.    On the same date, this Court sentenced the Defendant, on Count


                   35 P.S. § 780-113(30); 18 Pa. C.S.A. § 903(a)(2).
            2      35 P.S. § 780-113(30}; 18 Pa. C.S.A. § 903(a)(2).
                                                                           Circulated 11/12/2015 11:56 AM
r




    5, to a term of state imprisonment of not less than five (5) years nor more than ten (10)

    years. These counts were ordered to run consecutively to each other. The aggregate

    sentence ordered was eight (8) to twenty (20)years.>

                 Thereafter, on November 15, 2010, the Defendant filed an appeal to the

    Superior Court of Pennsylvania, asserting four (4) allegations of error: (1) this Court

    improperly denied the Defendant's Motion to Preclude the Expert Testimony of Agent

    Delores Morgan; (2} this Court erred in failing to preclude Agent Morgan from

    expressing expert opinions at trial when her report did not indicate any opinion to a

    reasonable degree of certainty; (3) this Court should have granted the Defendant a

    continuance to allow the defense time to examine and counter the Commonwealth's

    expert; and (4) the Court erred in failing to grant a mistrial when the prosecutor

    improperly disclosed the incarcerated status of the Defendant to the jury.            In an

    abundance of caution, in its memorandum opinion submitted to the Superior Court of

    Pennsylvania, this Court also addressed that: (1) the evidence presented was

    sufficient to sustain the conviction of the Defendant for the charges of Criminal

    Conspiracy to Deliver a Controlled Substance (cocaine) and Criminal Conspiracy to

    Deliver a Controlled Substance (heroin); and (2) the verdict was not against the weight

    of the evidence. On October 21, 2011, the Superior Court of Pennsylvania affirmed

    this Court's judgment and sentence. Thereafter, on January 26, 2012, a petition for

     allowance of appeal was filed in the Supreme Court of Pennsylvania, which was

     denied on November 28, 2012.

                  On November 20, 2013, the Defendant filed a motion for post conviction


     3
            The Defendant's RRRl minimum is 27 months on Count 4 and 50 months on Count 5,
     aggregating to a RRRI minimum of 77 months.



                                                 2
                                                                                               Circulated 11/12/2015 11:56 AM
 ·'   .   <,
          '




               collateral relief, as amended on January 3, 2014 and April 30, 20~4. An evidentiary

               hearing relative to said motion was conducted before this Court on May 2, 2014, from

               which we make the followingfindings of fact.4

                             In the instant case, the record facts revealed that the Defendant assisted

               with bringing in extremely large quantities of cocaine and heroin into the United

               States   from Colombia.         Specifically, Agent Thomas Sedor, employed by                    the

               . Pennsylvania Office of the Attorney General and assigned to the Bureau of Narcotics,

               without opposition, was deemed an expert in narcotics investigation. Agent Sedor

               testified that Walter Von Roestel-Navarro, an international drug dealer and Colombian

               national, as well as a Co-Defendant and business associate of the Defendant,

               transported drugs to the Lehigh Valley once every three (3) to four (4) months.

               Indeed, on October 15, 2009, it is undisputed that Co-Defendant Von Roestel-Navarro

               carried· more than one (1) kilogram of heroin within his body.                    The heroin was

                packaged in pellets that were swallowed and brought into the United States through

                JFK International Airport without detection. Similarly, Defendant's brother and Co-

                Defendant Herbert Larios carried just shy of one (1) kilogram of cocaine on the same

                trip with Co-Defendant Von Rcestel-Navarro.

                              Pursuant to information that Agent Sedor received from a confidential

                informant, it was determined that Co-Defendant Rosalinda Cerda, residing in the

                Fountain Hill area of Bethlehem, Lehigh County, Pennsylvania, was running a cocaine

                and heroin factory in her apartment.           The confidential informant had been in Co-

                Defendant Cerda's apartment and had seen people crushing and grinding pellets of

                heroin and cocaine, and then packaging them in small packages to be sold. Because


                    lnits recitation of the facts, thi~ Comi: cites to the record from fue trial as well.


                                                                  3


--L------------~----~--------· . -~-------------~--~--
                                                                                 Circulated 11/12/2015 11:56 AM
    .•




         Agent Sedor suspected Co-Defendant Cerda of being in the drug trade, Agent Sedor

         spoke to a second confidential source and instructed him to go to the Spanish grocery

         Store that Co-Defendant Cerda operated to inquire of purchasing drugs from her. A

         controlled buy of cocaine was eventually effectuated with Co-Defendant Cerda. in

         February of 2009 on Bishop Thorpe Street, Bethlehem, Lehigh County, Pennsylvania.

         The cocaine purchased during this controlled buy was not from pellets.

                         Thereafter, Co-Defendant Cerda moved to 2621 Hartman Drive, Center

         Valley, Lehigh County, Pennsylvania. Law enforcement personnel conducted three (3)

         garbage collections and found evidence that Co-Defendant Cerda was still selling

         cocaine.>      Consequently a search warrant was applied for and executed on Co-

         Defendant Cerda's residence on September 22, 2009.          The search of her residence

         yielded two {2) digital scales and approximately fifty (50) grams6 of cocaine. (C. Ex.

         lA; C. Ex. l; C. Ex. 2; C. Ex. 3; C. Ex. 4).

                         Agent Sedor spoke with Co-Defendant Cerda who immediately confessed

         and led the law enforcement officers to her supplier, Ramiro Ortiz. Co-Defendant

         Cerda agreed to make controlled purchases from Co-Defendant Ortiz while wearing a

         recording device.     The first controlled buy consisted of a 100 gram purchase of

         cocaine from Co-Defendant Ortiz. The second controlled buy on September 28, 2009,

         consisted of another 100 gram purchase of cocaine from Co-Defendant Ortiz." At this

          time Co-Defendant Ortiz was arrested.         Co-Defendant Ortiz cooperated with the

          authorities    and told them where his drugs, drug paraphernalia and weapon were


          5      Large empty bags containing residue of cocaine were located.
          6      Agent Sedor opined that this quantity of cocaine was absolutely meant for resale and
          would be worth approximately Five Thousand ($5,000.00) Dollars when sold on the street.
          Agent Sedor further stated that he did not believe that these drugs were from Colombia.



                                                        4


I
                                                                                   Circulated 11/12/2015 11:56 AM
.'

     located.s   Co-Defendant Ortiz provided the officers with the identities of his drug

     sources and his buyers and distributors, and admitted to participating in a drug

     trafficking organization. 9

                    As a result of the information that the law enforcement authorities

     received from Co-Defendant Ortiz, Agent Sedor began to investigate the Matos family

     who lived on Pawnee Street, Fountain Hill, Lehigh County, Pennsylvania:                  Carmen

     Matos {mother), Zaida Matos (sister) and Danny Matos (son). Through investigation,

     Agent Sedor confirmed that the Matos family was a distributor for Co-Defendant

     Ortiz.!? (C. Ex. 9).

                    Thereafter, Agent Sedor commenced an investigation of the Defendant,

     Co-Defendant Larios and Co-Defendant Von Roestel-Navarro, as Co-Defendant Ortiz's

     drug s'uppliere.r!     On October 15, 2009, Agent Sedor received information from Co-


     7          Neither of these controlled buys involved drug pellets from Colombia.
     a          A large quantity of cocaine, a firearm and digital scales were located in the detached
     garage to the rear of Co-Defendant Ortiz's 2104 Glendale Avenue residence.           Co-Defendant
     Ortiz signed a written waiver to allow the officers to enter his premises. He also consented to a
     search of his vehicle.
     9          Co-Defendant Ortiz was the middleman between the Colombian drug smugglers who
     brought the cocaine and heroin into the United States, and the Matos family that packaged it
     into smaller quantities and distributed the illegal drugs on the streets of the Lehigh Valley.
      io         Co-Defendant Ortiz participated in controlled buys with Danny Matos. On September
     29, 2009, Agent Sedor conducted surveillance of the meeting between Co-Defendant Ortiz and
      Co-Defendant Danny Matos at the residence of Danny Matos' girlfriend on Livingston Street in
      Bethlehem, Pennsylvania. (C. Ex. 5; C. Ex. 6A; C. Ex. 6). Then, on September 30, 2009, Co-
      Defendant Ortiz went into Carmen Matos' residence and retrieved approximately Fifty-four
      Thousand ($54,000.00) Dollars in United States currency. {C. Ex. 7; C. Ex. 7A). This money
      was payment for approximately eight hundred (800} grams of heroin. Search warrants were
      executed on the Matos' residences.         (C. Ex. 8; C. Ex 14). At Danny Matos' residence, Five
      Thousand Nine Hundred ($5,900.00) Dollars in United States currency was located, along with
       a plastic bag with a white powdery residue that tested positive for cocaine. In Zaida Matos'
       residence, all items recovered were paraphernalia to grind up pelletized heroin to be packaged
       for sale. The Matos family was taken into custody.
               · Agent Sedor opined that that this quantity of heroin was beyond street level dealing and
       amounted to high level drug dealing. It was at this point that Agent Sedor turned his attention
       to the Colombians.
        11       The Defendant was under surveillance from October 4, 2009 through October 15, 2009.



                                                       5
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     '   -,
·"




              Defendant    Ortiz that Co-Defendant       Von Roestel-Navarro had arrived in the United

              States   from Colombia      and was staying       in room 311     at the Red Roof Inn on

              Catasauqua     Road, Lehigh County, Pennsylvania.P          (C. Ex. 31}. Co-Defendant Ortiz

              informed Agent Sedor that        Co-Defendant      Von Roestel-Navarro    had about one (1)

              kilogram of heroin on his person and intended to effectuate a drug transaction             with

              Co-Defendant Ortiz.      Agent Sedor established       surveillance at the Red Roof Inn. The

              Defendant's vehicle, a 2007 black Mercedes Benz SUVJ3, was parked in the vicinity of

              room 311 at the Red Roof Inn. (C. Ex. 18). Co-Defendants Von Roestel-Navarro and

              Larios were apprehended       when they attempted        to utilize the Defendant's vehicle to

              leave the scene.     They admitted      to having heroin and cocaine in their systems and

              were transported     to Lehigh Valley Hospital and admitted as a precautionary          medical

              matter.v'    (C. Ex. 19; C. Ex. 20).

                               Agent   Sedor   spoke     with Co-Defendant     Von   Roestel-Navarro.       Co-

              Defendant     Von Roestel-Navarro        was cooperative and confessed      that he smuggled

              heroin into the Lehigh Valley by ingesting pellets of heroin every three (3) to four (4)

               months between October of 2007 and October of 2009.15 (C. Ex. 10). Co-Defendant

               Von Roestel-Navarro     admitted      to being a part of a drug trafficking organization that

               brought large quantities     of heroin and cocaine into the United States from Colombia.

               Co-Defendant Von Roestel-Navarro           explained that the drugs were bought in Bogota,



               12     The Red Roof Inn was booked under Co-Defendant Larios' name.
               13     The Defendant's vehicle was previously identified at the Defendant's home located at
               217 Spring Garden Street, Easton, Pennsylvania. (C. Ex. 18).
               14     Jt takes about three (3) to four (4) days to eliminate the pellets.
               15     From October of 2008 through October of 2009, Co-Defendants Von Roestel-Navarro
               and Larios came to the United States with drugs four (4) times: October of 2008, February of
               2009, June of 2009 and October of 2009. Co-Defendant Ortiz corroborated that the Colombian
               drugs arrived every three (3) to four (4) months.



                                                                 6
                                                                                  Circulated 11/12/2015 11:56 AM




Colombia.    16   The drugs were then packaged into egg-shaped caplets/pellets                weighing

eight (8) to ten ( 10) grams each and covered with wax. The pellets were then ingested

and brought to the United States in the stomach of the courier.                  Co-Defendant Von

Roestel-Navarro       indicated     that· Co-Defendant       Larios     also   participated    in the.

swallowing and the transportation          of the drug pellets.       The drugs that they illegally

brought into the United States were then purchased                    by Co-Defendant Ortiz.       Co-

Defendant Von Roestel-Navarro was introduced                   to Co-Defendant         Ortiz by CQ-

Defendant Larios at the Defendant's         residence in Easton. In fact, Co-Defendant Von

Roestel-Navarro indicated         that he and Co-Defendant Larios either stayed at motels or

the Defendant's residence when they arrived in the United States with drugs in their

systems.!?

                  Co-Defendant     Von Roestel-Navarro further implicated the Defendant in

this drug organization.       While it is uncontested       that the Defendant did not swallow

the pellets himself, the Defendant         enlisted friends in the United States to travel to

Colombia and bring the drugs back with them to the United States.P'                     Moreover, on

October 15, 2009, the Defendant           permitted Co-Defendants          Larios and Von Roestel-

Navarro to utilize his Mercedes Benz SUV to travel from JFK International                        to the




16     One (1) kilogram      of cocaine purchased       in Bogota costs approximately     $2,500.00      in
United States currency, and can be sold for $20,000.00 to $25,000.00 in the United States.
One (1} kilogram of heroin purchased in Bogota costs approximately $8,000.00 to $9,000.00 in
United States currency, and can be sold for $50,000.00 to $55,000.00 in the United States.
11      Co-Defendant Ortiz also indicated that he would meet the Colombians at either a motel
or the Defendant's residence to effectuate the drug transfer. Co-Defendant Ortiz would make
prior arrangements to receive money from the Matos family to furnish to Co-Defendants Von
Roestel-Navarro and Larios in exchange for the Colombian drugs.
18      Co-Defendant Von Roestel-Navarro testified that in August of 2009, the Defendant
recruited a friend of his to transport drugs from Colombia to the United States. Co-Defendant
Von Roestel-Navarro met the Defendant's recruited friend in Cartagena, Colombia in August of
2009, and described him as a thin, white, tall male with short brown hair.



                                                    7
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     Lehigh Vallcy.t?       Additionally, the Defendant received        some of the proceeds from the

      sale of the illegal drugs.20           Co-Defendant       Von Roestel-Navarro   testified that the

      Defendant would deposit the drug money into his account and then the money would

     · be withdrawn from his account by people in Colombia.

                       Agent Sedor observed the drug pellets that Co-Defendants             Von Roestel-

      Navarro and Larios defecated while at Lehigh Valley Hospital. (C. Ex. 21; C. Ex. 23; C.

      Ex. 25).     Additionally, a search warrant was obtained for room 311 of the Red Roof

      Inn. Approximately forty (40} pellets of heroin were found in the motel room.                 (C. Ex.

      23}.     Similarly,   approximately     seventy (70) pellets of cocaine were located in room

      311.21     (C. Ex. 25}. The total weight of the heroin transported         by Co-Defendant Von

      Roestel-Navarro on October 15, 2009, was 1, 154 grams.               (C. Ex. 28). The total weight

      of the cocaine transported           by Co-Defendant       Larios on October 15, 2009, was 984

      grams. (C. Ex. 27).

                        Agent Sedor explained that the cost of one ( 1) gram of heroin in the

      Lehigh Valley was approximately            Three Hundred ($300.00)       Dollars, and the cost of
                               '
      one (1} gram of cocaine             in the Lehigh     Valley   was approximately     One Hundred

      ($100.00)     Dollars.       Therefore, the street value of the heroin transported       on October

      15, 2009,       by Co-Defendant         Von· Roestel-Navarro      was Three Hundred       Thousand


      19
                Co-Defendant Von Roestel-Navarro and Co-Defendant Larios met the Defendant at JFK
      International Airport on October 15, 2009. The Defendant was traveling to Colombia as the Co-
      Defendants were arriving into the United States. Co-Defendant Von Roestel-Navarro indicated
      that they had agreed to pay the Defendant Six Hundred ($600.00) Dollars for the use of his
      vehicle on that day. He indicated that it was a business deal and that the money that was
      intended to be used to pay for the vehicle came from drug proceeds.
      20
              · Co-Defendant Von Roestel-Navarro specifically indicated that the Defendant received
      Nine Thousand ($9,000.00) Dollars in drug proceeds from him in June of 2009. The money
      was given to the Defendant by Co-Defendant Von Roestel-Navarro at the Defendant's residence.
      21        Co-Defendants Larios and Von Roestel-Navarro had defecated approximately one half
       (1/2) of the pellets in the motel room prior to being taken into custody.



                                                            8
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{$300,000.00)    Dollars.   Similarly,   the street value of the cocaine transported         on

October 15, 2009, by Co-Defendant Larios was One-Hundred Thousand ($100,000.00)

Dollars.

                The   Defendant     received    proceeds    from   this     profitable     drug

organization.w In fact, Co-Defendant Ortiz admitted to giving the Defendant the sum

of Twenty Thousand ($20,QOO.OO)Dollars over a period of time in order for the

Defendant to purchase drugs in Colombia. In 2009, Co-Defendant Ortiz provided the

Defendant with cash, as well as deposited monies directly into the Defendant's First

Commonwealth Credit Union account. The relevant bank records reflect a deposit of

Eight Thousand Two Hundred ($8,200.00} Dollars directly to the Defendant's account

at First Commonwealth Credit Union from Co-Defendant Ortiz on July 6, 2009. (C.

Ex. 22).    Also, on September 23, 2009, Co-Defendant Ortiz had transferred Five

Thousand ($5,000.00) Dollars from his account to the Defendant's account at First

Commonwealth Credit Union.           (C. Ex. 12; C. Ex. 17).    In addition to the two (2)

aforementioned transactions> Defendants accounts reflect many large cash deposits:

May 1, 2009 in the amount of $3,357.00; May 4, 2009 in the amount of $7,500.00;

May 11. 2009 in the a.mount of $9,000.00; July 11, 2009 in the amount of $6,600.00;

July 18, 2009 in the amount of $9,000.00; September 21> 2009 in the amount of

$4,500.00. Defendant's accounts reflect that monies were thereafter withdrawn from

Colombia.

                Co-Defendant   Ortiz also related that in 2009, the Defendant enlisted a




22    Co-Defendant Ortiz characterized      the Defendant   as the person    who "handled      the
money" within the drug organization.



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      drug runner      to bring in drugs from Colombia to the United States.P               From this

      shipment,     Co-Defendant     Ortiz received approximately 300 grams of heroin from the

      Defendant.     Specifically, the Defendant had made arrangements           for a third party to

      deliver the heroin to Co-Defendant        Ortiz at the Arby's on Lehigh Street, Allentown,

      Lehigh County, Pennsylvania.        The Defendant was the individual who placed the calls

      to both parties to orchestrate       the drug transaction.      Co-Defendant     Ortiz gave the

      Defendant cash for this drug sale.24

                      Roleen Michael-Schmoyer,      a teller at First Commonwealth Credit Union,

      as well asMichelle    Gearinger, the Assistant Branch Manager at First Commonwealth

      Credit Union, were familiar with the Defendant,            because   he came into the branch

      several times.     Ms. Gearinger    had knowledge of the Defendant         making many cash

      deposits into his First Commonwealth           Credit Union account.       Also, Co-Defendant

      Larios made deposits     into the Defendant's      account as well.25 In fact, on March 5,

      2009, Co-Defendant Larios deposited Nine Thousand               ($9,000.00) Dollars cash into

      the Defendant's account.26       {C. Ex. 24; C. Ex. 16).

                      Charges were filed against the Defendant, along with the numerous               co-

      defendants.      When Agent Sedor went to the Defendant's            residence to take him into

      custody,     the Defendant's     roommate,   Matthew Tilliton, informed him that he had

      moved out of the residence        and was in Colombia.       An arrest warrant was issued on


      23
              Trial testimony of Co-Defendant Ortiz revealed that the Defendant tried to convince him
      to be a drug swallower and go to Colombia to retrieve the illegal drugs.
      24
              This cash was not part of the $8,200.00 cash that Co-Defendant Ortiz provided to the
      Defendant.
      ss      Co-Defendant Larios was a member of First Commonwealth Credit Union and had an
      account through this Credit Union. Nevertheless, Co-Defendant Larios deposited funds into
      the Defendant's account.
      26      The teller received from Co-Defendant Larios $4,500.00 in one hundred dollar bills and



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January   7, 2010.   The Defendant returned      from Colombia on May 18, 2010, and he

turned himself into authorities    on June 3, 2010.21 {C. Ex. 30).

              Defendant was represented at trial by John P. Karoly, III, Esquire. Prior to

trial, the Defendant's   brother    provided Attorney Karoly with an accordion            file of

business records with regard to the Defendant's side business with his sister of selling

retail merchandise purchased in the United States in Colombia. However, the records

were incomplete. Indeed, these documents did not provide a full and complete picture

of merchandise· sales to combat the arguments of the Attorney General. In an effort to

be thorough, Attorney Ka.rolyinstructed the Defendant to execute releases to obtain

further documentation that pre-dated the time of the alleged drug activity.                  The

institutions did not provide said documentation to Attorney Karoly prior to the date of

the trial. In fact, these records were never produced by the financial institutions.

              Moreover, close to the date of the trial, the Defendant received the forensic

accountant's expert report that the Commonwealth planned to rely on at the time of

trial. Defense counsel requested a continuance on September 27, 2010, in order to

provide him sufficient time to hire an expert to rebut the opinions of Agent Morgan that

were included in her expert report. However, this Court found that a continuance was

not warranted because defense counsel had complete prior knowledge that the

Commonwealth intended to produce Agent Morgan as a witness to render an opinion as

to the Defendant's financial transactions.

              In addition, the Defendant indicated to Attorney Karoly that he wanted his

brother, Co-Defendant Herbert Larios, to testify on his ·behalf at the time of trial, The


$4,500.00 in fifty dollar bills.
27      Agent Jose Collazo of the Pennsylvania      Office of the Attorney General attempted     to



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Defendant related to his attorney that his brother was willing to testify and that he

thought that the testimony would show that he had not participated in criminal drug

activity. However, the Defendant's     beliefs were mistaken.    Attorney Karoly contacted

Eric Dowdle, Esquire> the attorney who represented       Co-Defendant Larios on his drug

charges.    Attorney Dowdle represented     to 'Attorney Karoly that if his client testified

truthfully, the testimony would not be beneficial to the Defendant.        Armed with this

information, Attorney Karoly made the strategic decision not to call Co-Defendant Larios

at the time of trial.

               In his motion for post conviction collateral relief, Defendant contends that

his trial counsel was ineffective for: (1) failing to present business records that would

have exonerated the Defendant from the charges; (2) failing to call an expert witness to

rebut the Commonwealth's        expert witness; (3) failing to call Co-Defendant Herbert

Larios to testify on the Defendant's     behalf; (4) failing to challenge the imposition of

sentence on the two (2) conspiracies based on the issues of merger, illegality, violation

of double jeopardy or sufficiency or weight of the evidence; and (5) failing to object when

Co-Defendants     Ortiz and Von Roestel-Navarro perjured themselves at trial when they

represented    that their trial testimony would not garner favorable consideration when

sentenced."

                Initially, we note that claims of ineffective assistance     of counsel     are

subject to a three part analysis:

                To establish an ineffective assistance of counsel claim,
                [defendant] must first demonstrate that the underlying claim
                is of arguable merit; then, that counsel's action or inaction
                was not grounded on any reasonable basis designed to
                effectuate (defendant's] interest; and finally, that but for the

negotiate the Defendant's return to the United States from Colombia.



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               act or omission in question, the outcome of the proceedings
               would have been different.

Commonwealth v. Travaglia, 541 Pa. 108, 118, 661 A.2d 352, 356-357 (1995), U.S. cert.

denied, 116 S.Ct. 931 (1996) (citations omitted). The defendant bears the burden of

proving all three prongs of this standard. Id. With this standard in mind, we address

the Defendant's issues in seriatim.

               First, the Defendant argues that his trial counsel was ineffectivefor failing

to produce at trial the 'business records from the legitimate retail clothing business that

he had with his sister. The Defendant discussed with Attorney Karoly his desire to

present these business records to show to the jury that he and his sister would

purchase clothing and other retail merchandise in the United States and then send

these items to Colombia for sale, thereby establishing a legal basis for any extra cash.

Specifically,the Defendant contends that his credit card statements, bank statements

and receipts for merchandise would have demonstrated his innocence. This argument

is baseless.   While it is true that prior to trial, the Defendant's brother provided

Attorney Karoly with an accordion file of business records with regard to the

Defendant's side business with his sister of selling retail merchandise purchased in

the United States in Colombia, these the records were incomplete. These documents

did not provide a full and complete picture of merchandise sales to combat the

arguments of the Attorney General.            Nevertheless, in an effort to be thorough,

Attorney Karoly instructed      the Defendant to execute releases to obtain further

documentation that pre-dated the time of the alleged drug activity. The institutions

did not provide said documentation to Attorney Karoly prior to the date of the trial.

Indeed,   these    records   were     never   produced   by   the   financial   institutions.




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      '



              Consequently, the Defendant's assertion that these business records would have

              established his innocence lacks any factual basis. Therefore, Attorney Karoly cannot

              be deemed ineffective in this respect.

                           Next, the Defendant contends that Attorney Karoly was ineffective for not

              calling an expert forensic accountant at the time of trial. This argument lacks merit,

              as Attorney Karoly pursued this issue with the Court.          Indeed, Defense counsel

              requested a continuance on September 27, 2010, in order to provide him sufficient

              time to hire an expert to rebut the opinions of Agent Morgan that were included in her

              expert report.   However, this Court found that a continuance was not .warranted

              because defense counsel had complete prior knowledge that the Commonwealth

              intended to produce Agent Morgan as a witness to render an opinion as to the

              Defendant's financial transactions.      Moreover, the Defendant failed to show that the

              outcome of the trial would have been different had an expert been utilized by the

              defense.   Consequently, Attorney Karoly was not ineffective in his handling of this

              matter.

                            In addition, the Defendant avers that Attorney Karoly was ineffective for

              failing to call Co-Defendant Herbert Larios at the time of trial to testify on the

              Defendant's behalf. In addressing this specific allegation, we recognize· that counsel

              cannot be deemed ineffective for failing to present witnesses at trial unless the

              defendant demonstrates all of the following: (1) the defendant must prove the existence

              and availability of the witness; (2} counsel's awareness of the witness or duty to know of

              the witness; {3) the witness' willingness and ability to appear on behalf of the defendant;

              and (4) the necessity of the proposed testimony in order to avoid prejudice.




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                •
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                                Commonwealth v. Carbone, 707 A.2d 1145, 1153 {Pa. Super. 1998); .Commonwealth v.

                                Speight, 544 Pa. 451, 464, 677 A.2d 317, 323 (Pa. 1996).             In the instant case,

                                Defendant has established the existence and identity of the witness.                Further,

                                Defendant has established that Attorney Karoly knew of the existence of said witness

                                prior to the time of the trial.    However, Defendant has not demonstrated that Co-

                                Defendant Larios was wilting and available to testify on Defendant's behalf at trial.       In

                                fact, the evidence shows that Attorney Karoly contacted Eric Dowdle, Esquire, the

                                attorney who represented Co-Defendant Larios on his drug charges. Attorney Dowdle

                                represented to Attorney Karoly that he would not allow his client to testify at the

                                Defendant's trial.     He further indicated that if his client testified truthfully, the

                                testimony would not be beneficial or favorable to the Defendant. . Attorney Karoly's

                                decision not to produce Co-Defendant Larios at the time of trial was reasonably based

                                to effectuate the Defendant's interests.w Overall, the Defendant has failed to

                                demonstrate the prejudice that resulted from the absence of the testimony which Co-

                                Defendant Larios would have offered.

                                              Next,   the Defendant argues that Attorney Karoly was ineffective for failing

                                to challenge· the imposition of sentence on the two (2) conspiracies based on the

                                issues of merger, illegality, violation of double jeopardy or sufficiency or weight of the

                                evidence. This argument is legally flawed. Attorney Karoly filed a Notice of Appeal in

                                the Superior Court raising four (4) specific pre-trial and trial issues that he felt had

                                merit. It is Attorney Karoly's practice not to raise issues on appeal that he knew upon

                                which he would not prevail. Attorney Karoly's strategy was to appeal only the issues


                                zs      Attorney Karoly, instead of presenting Co-Defendant Larios at the time of trial (whose
                                testimony posed a substantial risk to the Defendant), called the Defendant's other brother,



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                that had arguable merit, and not to include frivolous issues that had no basis.

                Consequently, Attorney Karoly did not challenge the sufficiency of the evidence.

                Similarly, Attorney Karoly did not challenge the legality of the sentence, in which this

                Court imposed a sentence on each of the separate conspiracy charges (one relating to

                heroin, and the other relating to cocaine), as the law allows for the convictions of two

                (2) conspiracies. The charges did not merge, and the sentence was not violative of

                double jeopardy nor illegal. Therefore, this Court finds that Attorney Karoly was not

                ineffective in this regard.

                              Finally, the Defend ant argues that Attorney Karoly was ineffective for

                failing to object when Co-Defendants Ortiz and Von Roestel-Navarro perjured

                themselves at trial when they represented that their trial testimony would not garner

                favorable consideration when sentenced.                This bald assertion lacks any factual

                foundation.    At the time of trial, both Co-Defendant Von Roestel-Navarro and Co-

                Defendant Ortiz set forth their beliefs as to the consideration that they would receive

                for their trial testimony.     Specifically, Co-Defendant Von Roestel-Navarro indicated

                that the Commonwealth offered a ten (10) year minimum sentence> with no agreement

                on the maximum.         He stated that when he reaches his minimum, he would be

                deported as a result of his immigration detainer. Co-Defendant Von Roestel-Navarro

                testified that he was instructed to tell the truth at the time of trial.           Further, he

                indicated· that he was hoping for a better offer from the Commonwealth, but there

                were no promises or guarantees in respect thereto.              Similarly, Co-Defendant Ortiz

                placed on the record at the beginning of his testimony that no plea agreement,

                guarantee, or promise was offered by the Commonwealth. He stated that he hoped for


                Efrain Larios, to testify on the Defendant's behalf.


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'·       ,.    ~I




                        leniency from the Commonwealth in exchange for this truthful testimony. Based on

                        the record evidence, these witnesses did not commit perjury and the Defendant's

                        argument must fail.

                                      Accordingly, for all of the foregoing reasons, we deny Defendant's motion

                        for post conviction collateral relief.




                                                                   17
