J-A09026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  CHAIRIL AMRIL SARAGIH                        :
                                               :
                       Appellant               :   No. 1547 EDA 2018

                 Appeal from the PCRA Order April 9, 2018
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0000357-2014


BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                                FILED APRIL 17, 2019

       Chairil Amril Saragih (Appellant) appeals pro se from the order denying

his timely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

       Appellant’s convictions arose from his online interactions with an

undercover police officer posing as a minor, during which Appellant arranged

to meet with the alleged minor to participate in sex acts. On May 7, 2014, a

jury convicted Appellant of solicitation of involuntary deviate sexual

intercourse (IDSI), attempt to commit IDSI, and criminal use of a

communication facility.1 On August 14, 2014, Appellant was sentenced to an

aggregate 3 to 6 years of imprisonment, followed by a year of probation.




____________________________________________


118   Pa.C.S.A. §§ 902/3123, 901/3123, and 7512.
____________________________________
*Retired Senior Judge assigned to the Superior Court.
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       Appellant filed a timely post-sentence motion, which the trial court

denied on September 24, 2014. Thereafter, Appellant filed a direct appeal.

On August 26, 2015, a panel of this Court vacated Appellant’s attempt to

commit IDSI conviction, but affirmed the judgment of sentence in all other

respects.    Commonwealth v. Saragih, 131 A.3d 104 (Pa. Super. 2015)

(unpublished memorandum) (attempt to commit IDSI conviction vacated

because it should have merged with solicitation of IDSI for purposes of

sentencing). The Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on February 25, 2016. Commonwealth v. Saragih, 132

A.3d 458 (Pa. 2016).

       On February 27, 2017, Appellant pro se filed the underlying PCRA

petition. The PCRA court appointed counsel, who on February 21, 2018, filed

a Turner/Finley2 “no-merit” letter and an application to withdraw. On March

8, 2018, the PCRA court granted counsel’s application to withdraw and issued

a notice of intent to dismiss pursuant to Pennsylvania Rule of Criminal

Procedure 907. Appellant filed a response to the notice on April 4, 2018. On

April 9, 2018, the PCRA court dismissed Appellant’s petition without a hearing.

       Appellant filed a timely pro se appeal.     Both the PCRA court and

Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant raises the following issues for our review:



____________________________________________


2Commonwealth     v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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            1) Whether the trial court erred by influencing [Appellant’s]
     decision to testify in [sic] his own behalf, in which before
     [Appellant] was asked about his decision, the trial court had made
     sure and believed that [Appellant] really understood about the
     right to testify and its risk, but then when [Appellant] knowingly
     and intelligently decided to exercise his absolute right to testify,
     the trial court was reluctant to grant it and influenced him to swing
     by advising him to confer with his counsel again?

           2) Whether the trial counsel was ineffective by failing to
     timely object to the court when the court was interfering with
     [Appellant’s] decision to testify, which alleged error denied
     [Appellant] the right to a fair trial by so undermined [sic] the truth
     determining process because the result of the waiver proceeding
     would have been different absent counsel’s ineffectiveness?

            3) Whether the trial counsel erred for advising [Appellant]
     not to take the stand (with reason that the [C]ommonwealth
     would ask the same questions several times and he was afraid
     that [Appellant] would give inconsistent answers), and his only
     strategy was to examine the Commonwealth witness (but then he
     failed to adequately examine the [C]ommonwealth witness for his
     false testimonies and to effectively argue with the trial court when
     he raised some objections), which alleged error denied [Appellant]
     the right to a fair trial by so undermined [sic] the truth
     determining process such that no reliable adjudication of guilt
     could have taken place?

           4) Whether the appellate counsel was ineffective for
     advising [Appellant] that the issue of the court’s misconduct
     should be filed on PCRA, not on direct appeal?

           5) Whether PCRA counsel was ineffective for not adequately
     reviewing the record and supplemental information prior to filing
     his “No Merit” Letter, while the record and supplemental
     information clearly showed that entrapment lay just beneath his
     superficial review?

            6) Whether the PCRA court violated paragraph (1) of
     Pa.R.Crim.P. 907 by dismissing the petition without an evidentiary
     hearing where there was a genuine issue of material fact as to
     whether trial counsel was ineffective for failing to timely object to
     the lower court[’s] improper interference with his decision to
     testify?

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Appellant’s Brief at 4-5 (italics omitted).

      Our standard of review governing the denial of a PCRA petition is as

follows:

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determinations are supported by the record and are
      free of legal error. The PCRA court’s credibility determinations,
      when supported by the record, are binding on this Court; however,
      we apply a de novo standard of review to the PCRA court’s legal
      conclusions.

Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted).

“To be entitled to PCRA relief, [an] appellant must establish, by a

preponderance of the evidence, [that] his conviction or sentence resulted from

one or more of the enumerated errors in 42 Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

      Appellant first claims that during his jury trial, the “[t]rial court erred by

influencing [Appellant’s] decision to testify on his own behalf.” Appellant’s

Brief at 17 (emphasis omitted). In its opinion, the PCRA court states “this

claim is waived as it should have been raised on direct review.” PCRA Court

Opinion, 6/4/18, at 13. The Commonwealth agrees, noting:

      [Appellant], however, here initially contends that it was the trial
      [court] who misled him into not testifying. No objection was made
      at trial by defense counsel because the trial [court] properly
      questioned and correctly instructed [Appellant] on the law. [S]ee
      Tr., Id., pp. 195-99. Without an objection, the issue was not
      preserved for review on direct appeal and cannot now be raised
      on PCRA appeal. Commonwealth v. Clayton, [] 816 A.2d 217, 219
      ([Pa.] 2002).

Commonwealth Brief at 11 (underlining in original).




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      We agree with both the PCRA court and the Commonwealth that

Appellant’s first issue was not preserved at trial, nor on direct appeal, and is

therefore waived.     The transcript from Appellant’s jury trial indicates that

Appellant did not object to any statement made by the trial court during the

course of Appellant’s decision about whether to testify. See N.T., 5/7/14, at

195-199. Additionally, Appellant failed to raise the issue in his direct appeal.

See Saragih, 131 A.3d at *2 (on direct appeal, Appellant raised two issues:

an evidence suppression issue and an illegal sentence claim).          Therefore,

Appellant’s first issue is waived for purposes of appellate review. 42 Pa.C.S.A.

§ 9544(b) (“[A]n issue is waived if the petitioner could have raised it but failed

to do so . . . at trial . . . [or] on appeal[.]”).

      In Appellant’s second, third, fourth, and fifth issues, he claims

ineffective assistance of counsel at various points during the course of his

case. In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”               Id. (citation omitted).   To

demonstrate prejudice in an ineffective assistance of counsel claim, “the


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petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).

       Moreover, the “[petitioner] bears the burden of pleading and proving

each   of   the   three   factors   by    a    preponderance    of    the   evidence.”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations

omitted).    If the petitioner fails to prove any of these prongs, the claim is

subject to dismissal. Bomar, 104 A.3d at 1188. “A court is not required to

analyze the elements of an ineffectiveness claim in any particular order of

priority; instead, if a claim fails under any necessary element of the

ineffectiveness   test,   the   court    may    proceed to     that   element first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

       In his second issue, Appellant asserts that trial counsel was ineffective

for failing object to the trial court’s alleged interference with Appellant’s

decision about whether to testify. Appellant’s Brief at 28-31. The PCRA court

disagrees, stating:

             The record is devoid of any support for Appellant’s claim that
       counsel was ineffective for failing to object to the Court’s alleged
       “undue influence” in forcing Appellant not to testify. Rather, the
       record shows that this Court explained to Appellant his
       constitutional right not to testify and reminded Appellant that he
       would be subject to cross examination if he did elect to testify.
       Counsel had no legitimate basis for objecting to the Court
       providing Appellant with the information needed to make an
       educated decision. As such, the claim lacks merit.




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PCRA    Court   Opinion,   6/4/18,    at   13-14     (citations   omitted).   The

Commonwealth agrees, averring that “[n]o ineffective assistance can be found

for refraining from making a meritless objection.” Commonwealth Brief at 14.

       We begin by noting that the “right of an accused to testify on his own

behalf is a fundamental tenet of American jurisprudence and is explicitly

guaranteed by Article I, Section 9 of the Pennsylvania Constitution.”

Commonwealth v. Baldwin, 8 A.3d 901, 902-903 (Pa. Super. 2010) (citing

Commonwealth v. Nieves, 746 A.2d 1102, 1105 (Pa. 2000) and U.S. Const.

Amend. VI). “[T]he decision to testify on one’s own behalf is ultimately a

decision to be made by the accused after consultation with counsel.”

Baldwin, 8 A.3d at 903 (citation omitted).           However, when a defendant

chooses to waive that right, “there is no express requirement that a trial court

conduct . . . a colloquy with regard to a defendant’s right to testify.”

Commonwealth v. Todd, 820 A.2d 707, 711 (Pa. Super. 2003). See also

Commonwealth v. Duffy, 832 A.2d 1132, 1141 n.3 (Pa. Super. 2003) (“We

note that there is no requirement that the trial court conduct an on-the-record

colloquy when a defendant waives his right to testify.”) (citation omitted).

       As to counsels’ objection responsibilities:

       [our Supreme] Court has recognized that counsel are not
       constitutionally required to forward any and all possible objections
       at trial, and the decision of when to interrupt oftentimes is a
       function of overall defense strategy being brought to bear upon
       issues which arise unexpectedly at trial and require split-second
       decision-making by counsel.




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Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012) (citation omitted).

      Appellant’s second issue fails on the first prong of the ineffectiveness

test because the underlying claim has no arguable merit. Specifically, trial

counsel had no reasonable basis to object because the trial court did not

interfere with Appellant’s decision to testify. At Appellant’s trial, the following

discussion was held between the trial court, Appellant, and Appellant’s trial

counsel:

      [COURT]: The Commonwealth has rested. At this point in time
      it’s the defense case. And [trial counsel], [Appellant], I assume
      you explained to him that he is presumed innocent; that the
      Constitution gives him the right not to testify; that I will instruct
      the jury that they’re not -- that if he elects not to testify that this
      cannot be held against him and it’s his constitutional right. Have
      you instructed him accordingly?

      [Trial Counsel]: I have, Your Honor, yes.

      [COURT]: And [Appellant], you understand that?

      [Appellant]: Yes. I do understand.

      [COURT]: You understand that you don’t have to testify; you don’t
      have to present any evidence. The Commonwealth bears the
      burden of proof beyond a reasonable doubt. And I will tell the
      jury that. Do you understand that?

      [Appellant]: [No audible response]

      [COURT]: Do you understand that if you do testify, which is also
      your right, the Commonwealth can cross examine you on your
      testimony. Do you understand that?

      [Appellant]: I understand.

      [COURT]: And you’ve had an opportunity to discuss with [trial
      counsel] those rights? Yes?


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J-A09026-19


     [Appellant]: Yes.

     [COURT]: And        [trial   counsel],   has   [Appellant]   made   a
     determination?

     [Trial Counsel]: It’s my understanding that he does not wish to
     testify. I just defer -- you’ve heard -- if I may colloquy him very
     briefly?

     [COURT]: You may.

     [Trial Counsel]: [Appellant], we’ve had some numerous
     discussions about this issue, both today and on prior occasions.
     And the indication I’ve received from you up till now, and you have
     the absolute right to change your mind, is that you don’t wish to
     testify, is that correct? Is that still -- do you understand . . .

     [Appellant]: I do understand, but I don’t know what’s the best for
     me to do right now.

     [Trial Counsel]: Well that’s -- it’s always a difficult decision.
     You’ve had -- it’s always a difficult decision. And there’s no --
     unfortunately no one has the benefit of knowing whether it would
     be right or wrong until after you’ve done it, if you choose to do it.
     And again, I’ve given you my -- you know -- I’ve been clear on
     what my opinion is, is that correct?

     [Appellant]: Yes; that’s correct.

     [Trial Counsel]: It’s correct in that you wish not to testify?

     [Appellant]: I think I’m going to testify.

     [COURT]: You want to testify?

     [Appellant]: I want to convince the jury that I’m not guilty.

     [COURT]: Let me just go over it one more time with you. It’s your
     right to be able to testify. And I’m going to try to explain it to
     you. But if you take the witness stand, anything you say will give
     the District Attorney the opportunity to cross examine you.

     [Appellant]: I’m aware of it.


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J-A09026-19


       [COURT]: You’re aware of that. And you understand that you
       have a right not to testify and I will tell the jury in no uncertain
       terms that you don’t have to testify. Do you understand that? Do
       you need a minute to confer with [trial counsel]?

       [Appellant]: Just one minute.

       [COURT]: Surely.

       [Trial Counsel]: Judge, I believe we’ve had a minute to talk. And
       I believe it’s his desire not to testify.

       [COURT]: Is that correct?

       [Appellant]: Yes. It is correct.

N.T., 5/7/14, at 195-199.

       Upon review, we agree with the PCRA court and the Commonwealth that

trial counsel was not ineffective in failing to object to the trial court’s

statements concerning Appellant’s right to testify. Instead, our review reveals

thorough and proper commentary by the trial court regarding Appellant’s right

to testify on his own behalf.        The trial court, whose statements Appellant

acknowledged, informed Appellant of his right not to testify, as well as his

potential subjection to cross-examination if he opted to testify.       The trial

court’s statements relate to Appellant’s constitutional rights,3 and as such,

were clearly appropriate.

____________________________________________


3The  Fifth Amendment provides “no person . . . shall be compelled in any
criminal case to be a witness against himself[.]” U.S. Const. amend. V.
“Additionally, although a defendant in a criminal proceeding may refuse to
take the witness stand based upon the constitutional privilege against self-
incrimination, a criminal defendant who takes the witness stand waives this



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       As there is no merit to Appellant’s assertion that the trial court interfered

with his decision about whether to testify, trial counsel had no reasonable

basis to object to the trial court’s statements. Appellant’s second issue lacks

merit.

       In his third issue, Appellant asserts, “[t]rial counsel erred for advising

[Appellant] not to take the stand.” Appellant’s Brief at 14. We reiterate that

it is a criminal defendant’s decision, after consultation with counsel, as to

whether or not he will testify on his own behalf.       Baldwin, 8 A.3d at 903

(citation omitted). To prove that his trial counsel was ineffective for failing to

put Appellant on the stand, Appellant must prove: “(1) that counsel interfered

with the defendant’s right to testify, or (2) that counsel gave specific advice

so unreasonable as to vitiate a knowing and intelligent decision to testify on

his own behalf.” Commonwealth v. Lawson, 762 A.2d 753, 755 (Pa. Super.

2000) (citing Commonwealth v. Breisch, 719 A.2d 352, 355 (Pa. Super.

1998). However:

       It is well-settled that a defendant who made a knowing, voluntary,
       intelligent waiver of testimony may not later claim ineffective
       assistance of counsel for failure to testify. See Commonwealth
       v. Fletcher, [] 750 A.2d 261, 274-75 ([Pa.] 2000);
       Commonwealth v. Schultz, 707 A.2d 513, 520 (Pa. Super.
       1997) (“While, in retrospect, appellant may believe her failure to
       testify prejudiced her, the fact remains that appellant’s decision
       was fully informed and voluntary. As such, neither trial nor
       appellate counsel may be deemed ineffective in this regard.”) See
____________________________________________


privilege for purposes of cross-examination.” In re M.W., 972 A.2d 1213,
1216 (Pa. Super. 2009) (citing Brown v. United States, 78 S. Ct. 622
(1958).

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       also Commonwealth v. Wallace, [] 500 A.2d 816, 819-20 ([Pa.
       Super.] 1985); Commonwealth v. Spells, [] 416 A.2d 470, 474
       ([Pa.] 1980) (“[W]here the appellant knowingly and intelligently
       decided not to testify, based on conversations with his lawyer, and
       the colloquy with the trial judge, we find no ineffectiveness.”).

Lawson, 762 A.2d at 755-56.

       After carefully reviewing the record, including the colloquy set forth

above, we conclude that Appellant’s waiver was voluntary and fully informed.

See N.T., 5/7/14, at 195-199. Therefore, Appellant’s trial counsel was not

ineffective.4 Commonwealth v. O’Bidos, 849 A.2d 243, 251 (Pa. Super.

2004) (citation omitted). Appellant’s third issue is without merit.

       In his fourth issue, Appellant asserts that appellate counsel was

ineffective for failing to raise the trial court’s alleged interference with

Appellant’s decision about whether to testify on direct appeal.        Appellant’s

Brief at 33-36. As discussed above, this claim is meritless because there is

no evidence that the trial court interfered with Appellant’s decision about

whether to testify at trial. N.T., 5/7/14, at 195-199. Accordingly, appellate

counsel cannot be deemed ineffective for failing to raise a meritless claim, and



____________________________________________


4 In Appellant’s third claim, he also vaguely asserts that trial counsel’s decision
to only examine the Commonwealth’s witnesses “denied [Appellant] the right
to a fair trial.” Appellant’s Brief at 4-5. However, Appellant fails to adequately
develop this claim in his brief, id. at 32-33, and it is therefore waived. See
Commonwealth v. Smyrnes, 154 A.3d 741, 748 (Pa. 2017) (“Where an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”) (citing Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009)). See also Pa.R.A.P. 2119(a).

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Appellant’s fourth issue does not warrant relief.     See Commonwealth v.

Sims, 919 A.2d 931, 939 (Pa. 2007) (“Counsel will not be found ineffective

for failing to raise a meritless claim.”).

      Appellant’s fifth issue reads: “Whether PCRA counsel was ineffective for

not adequately reviewing the record and supplemental information prior to

filing his ‘No Merit’ Letter, while the record and supplemental information

clearly showed that entrapment lay just beneath his superficial review?”

Appellant’s Brief at 5 (italics omitted). However, in his three-page argument

section pertaining to this issue, Appellant does not provide any discussion of

his claim, fails to provide any reasoned development of why PCRA counsel’s

review was inadequate or how an alleged entrapment defense “lay just

beneath his superficial review,” nor does Appellant include citation to any

relevant authority. See Appellant’s Brief at 36-38.

      Instead, Appellant appears to argue that PCRA counsel failed to keep

him adequately updated on the status of his pending PCRA petition, and the

only authority Appellant cites refers to an attorney’s “duty to keep informed

of developments in the course of the prosecution.” Appellant’s Brief at 37-38

(citing Strickland v. Washington, 104 S. Ct. 2052 (1984)).           Because

Appellant has included no discussion as to why he is entitled to relief, with

citation to relevant authority, Appellant has waived review of his claim.

Commonwealth v. Sherwood, 982 A.2d 483, 496 (Pa. 2009) (citations




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J-A09026-19


omitted). As we will not develop Appellant’s arguments for him, this issue is

not reviewable. Johnson, 985 A.2d at 925.

      In his final issue, Appellant argues that the PCRA court erred in

dismissing his petition without a hearing. Appellant’s Brief at 38-39. This

Court has explained:

            [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in light
            of the record certified before it in order to determine
            if the PCRA court erred in its determination that there
            were no genuine issues of material fact in controversy
            and in denying relief without conducting an
            evidentiary hearing.

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (internal

citations and brackets omitted). If the PCRA court “can determine without an

evidentiary hearing that one of the prongs cannot be met, then no purpose

would be advanced by holding an evidentiary hearing.” Commonwealth v.

Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

      Here, Appellant argues that an evidentiary hearing was necessary for

him to present evidence proving his claim that “trial counsel was ineffective

for failing to timely object to the lower court[’s] improper interference with his

decision to testify.” Appellant’s Brief at 5. Again, as discussed above, this

ineffectiveness claim is devoid of any arguable merit. Thus, there were no

genuine issues of material fact in controversy and no purpose would have

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been served by holding a hearing. Accordingly, the PCRA court did not err in

denying Appellant’s petition without a hearing.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/19




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