J. S93005/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    V.                     :
                                           :
OMAR RODRIGUEZ,                            :
                                           :
                            Appellant      :     No. 2382 EDA 2015
                                           :

                   Appeal from the PCRA Order July 10, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004319-2009


BEFORE: DUBOW, SOLANO, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                         FILED FEBRUARY 28, 2017

        Appellant, Omar Rodriguez, appeals from the July 10, 2015 Order

entered in the Philadelphia County Court of Common Pleas denying his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm on the basis of the PCRA court’s March 1, 2016

Opinion.

        On September 22, 2010, Appellant entered a negotiated guilty plea to

Third-Degree Murder1 and Possession of an Instrument of Crime2 after

confessing to police officers that he killed a man by stabbing him over


*
    Retired Senior Judge Assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 907(a).
J. S93005/16


twenty times in the head and neck with a knife. On the same day, the trial

court sentenced Appellant to an aggregate term of twenty to forty years’

incarceration. Appellant did not appeal this sentence.

      On September 22, 2011, Appellant filed the instant timely pro se PCRA

Petition, his first, later amended by appointed counsel, alleging, inter alia,

ineffective assistance of plea counsel.

      After providing Notice to Appellant pursuant to Pa.R.Crim.P. 907, the

PCRA court dismissed Appellant’s Petition without a hearing on July 10,

2015. Appellant filed a timely Notice of Appeal.

      Appellant presents the following issue for our review: “Whether trial

counsel was ineffective for failing to fully explain the charges to which he

was [sic] pleaded guilty to, the sentence that he would receive and other

collateral effects of his plea.” Appellant’s Brief at 5.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.    Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).




                                       -2-
J. S93005/16


      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). There is no right to

a PCRA hearing; a hearing is unnecessary where the PCRA court can

determine from the record that there are no genuine issues of material fact.

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

      In the instant case, Appellant avers that plea counsel was ineffective.

See Appellant’s Brief at 5. This claim lacks merit.

      The   law   presumes    counsel    has   rendered    effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).                 The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his 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 for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the

test will result in rejection of the appellant’s ineffective assistance of counsel

claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002). Further,



                                      -3-
J. S93005/16


“[a]llegations of ineffectiveness in connection with the entry of a guilty plea

will serve as a basis for relief only if the ineffectiveness caused [A]ppellant

to enter an involuntary or unknowing plea.”        Fears, supra at 806-807

(citation omitted).

      The Honorable Steven R. Geroff, sitting as both the trial court and the

PCRA court, has authored a comprehensive, thorough, and well-reasoned

Opinion, citing to the record and relevant case law in addressing Appellant’s

ineffectiveness claims. The record supports the PCRA court’s findings and its

Order is otherwise free of legal error. We affirm on the basis of the PCRA

court’s March 1, 2016 Opinion which concluded that the underlying claim is

without merit because: (1) Appellant acknowledged on the record that he

would receive twenty to forty years’ incarceration as a result of his

negotiated guilty plea; (2) Appellant acknowledged on the record that he

was not induced or coerced into pleading guilty; (3) Appellant acknowledged

on the record that he was satisfied with the representation of his attorney;

and (4) the totality of the circumstances surrounding Appellant’s plea

demonstrate that it was knowingly and voluntarily entered. See PCRA Court

Opinion, 3/1/16, at 2-4, 7-9.

      The parties are instructed to attach a copy of the PCRA court’s March

1, 2016 Opinion to all future filings.

      Order affirmed.




                                         -4-
J. S93005/16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




                          -5-
                                                   Received 8/2/2016 10:30:57 PM Circulated
                                                                                 Superior Court Eastern11:39
                                                                                            02/14/2017  District
                                                                                                              AM

                                                       Filed 812/201fi   10::30 00 PM Superior Court Eastern Oistrtcl
                                                                                                            2382 EDr\ 2Ci 15




                         IN THE COURT OF COMMON PLEAS
                    FIRST JUDIC[AL DISTRICT OF PENNSYLVANIA
                        TRIAL DIVISION • CRIMINAL SECTION




COMMONWEAL TH OF PENNSYLVANIA                              CP·S l-CR-0004319-2009




                    v.


                                                           SUPERIOR COURT
         OMAR RODRIGUEZ                                    NO. 2382 EDA 2015


                                                               CP-51-CR-0004319-2009Comm v Rodnguez. Omar
                                                                                 Opinion
                                         OPINION


                                                                    1111111111111111111111 Ill
                          FILED                                             7413574881


GEROFF, J.                  MAR -1 2016                    MARCH 1, 2016

                       Crlmina\App~a\?unit
                     FirstJud,cia\o,stncto1 PA

       Petitioner Omar Rodriguez, by his attorney, Emily Beth Cherniack, Esquire, filed an

appeal from this court's order dismissing his petition which sought relief pursuant to the Post

Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.



                                 I. PROCEDURAL HISTORY

       On September 22, 2010, Petitioner appeared before this court and entered a negotiated

guilty plea to third-degree murder and possession of an instrument of crime. Evidence adduced
at the hearing established that at approximately             3 :00 a.m. on December 15, 2008, Petitioner

killed Heriberto Santiago by stabbing him repeatedly in the neck with an eight - ten inch knife

until he died.      On December 16, 2008, Petitioner, through a friend, contacted police and took

police to Mr. Santiago's apartment where they found the body.                  Petitioner gave a statement to

police confessing       his responsibility     for the murder.          (N. T. 9/22110, pp. 25~27,                    39).

Consequently, this court sentenced Petitioner to the negotiated plea of an aggregate term of

twenty (20 to forty (40) years of imprisonment and $125.00 restitution.

              On September 22, 2011, Petitioner filed a pro se motion for post-conviction collateral

relief.   Emily Beth Cherniack, Esquire, was appointed counsel on behalf of Petitioner.                                 On

February 28, 2013, Ms. Chemiack filed an amended petition pursuant to the Post Conviction

Relief Act, 42 Pa.C.S. § 9541 et seq. arguing that trial counsel was ineffective for failing to file a

direct appeal.       On October I, 2014, Ms. Cherniack filed a supplemental                   amended petition

claiming counsel was ineffective for failing to fully explain the charges to which Petitioner was

pleading guilty, the sentence he would receive, and .. other collateral effects of his plea." After
                                                                                                         1
conducting a review of the record, this court dismissed the petition on July 10, 2015.                       A timely

Notice of Appeal was filed.



                                       II. STANDARD OF REVIEW

          In determining whether counsel rendered ineffective assistance, the court must use a

three-pronged test.      First, the court must ascertain whether the issue underlying the claim has

arguable merit.       This requirement is based upon the principle that counsel will not be found

          I
           The dismissal occurred more than twenty days after Petitioner was served with notice of the
forthcoming dismissal of his PCRA petition. Pa. R. Crim. P. 907.


                                                         2




               ----------------------------                                                                  .... ········-
ineffective for failing to pursue a frivolous claim or strategy.   Second, if the petitioner's claim

does have arguable merit, the court must determine whether the course chosen by counsel had

some reasonable basis designed to serve the best interest of the petitioner.   Finally, if a review of

the record reveals that counsel was ineffective, the court must determine whether the petitioner

has demonstrated that counsel's     ineffectiveness worked to his prejudice.      Commonwealth      v.

Stewart, 84 A.3d 701 (Pa. Super. 2013); Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111

(2011). Failure to satisfy any prong of the test for ineffectiveness will require rejection of the

claim. Commonwealth v. Burkett. 5 A.3d 1260, 1272 (Pa. Super. 2010).

        In order to establish prejudice, a petitioner must show that counsel's ineffectiveness was

of such magnitude that the verdict essentially would have been different absent the ineffective

assistance.   Commonwealth     v. Steele, 599 Pa. 341, 961 A.2d 786, 797 (2008).             See also

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

        In the context of a PCRA claim, petitioner must not only establish ineffective assistance

of counsel, he must also plead and prove that counsel's stewardship so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken place.

See 42 Pa.C.S.A. §9543 (a)(2)(ii); Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995);
Commonwealth v. Rowe, 411 Pa. Super. 363, 601 A.2d 833 (1992).

        Counsel is never ineffective     for failing to make a frivolous       objection or motion.

Commonwealth v. Groff, 356 Pa. Super. 477, 514 A.2d 1382, 1386 (1986), appeal denied, 531

A.2d 428 (Pa. 1987); Commonwealth v. Davis, 313 Pa. Super. 355, 459 A.2d 1267, 1271 (1983).

Similarly, counsel is never ineffective for failing to raise a frivolous issue in post-verdict motions

or on appeal.     Commonwealth      v. Thuy, 424 Pa. Super. 482, 623 A.2d 327, 355 (1993);

Commonwealth v. Tanner, 410 Pa. Super. 398, 600 A.2d 201, 206 (1991).
                                                  3
         The law presumes that trial counsel was effective.        Commonwealth    v. Quier, 366 Pa.

Super. 275, 531 A.2d 8, 9 (1987); Commonwealth v. Norris, 305 Pa. Super. 206, 451 A.2d 494,

496 (1982).    Therefore, when a claim of ineffective assistance of counsel is made, it is the

petitioner's burden to prove such ineffectiveness; that burden does not shift. Commonwealth v.

Cross, 535 Pa. 38, 634 A.2d 173, 175 (1993), cert. denied, 115 S.Ct. 109, 130 L.Ed.2d 56 (Pa.

1994); Commonwealth         v. Marchesano,      519 Pa.     1, 544 A.2d    1333,   1335-36 (1988);

Commonwealth v. Tavares, 382 Pa. Super. 317, 555 A.2d 199, 210 (1989), appeal denied, 571

A.2d 382 (Pa. 1989).

         The purpose of the Post-Conviction       Relief Act is to afford collateral relief to those

individuals convicted of crimes they did not commit and to those serving illegal sentences.       42

Pa.C.S. § 9542. Claims pursuant to the Post Conviction Relief Act are extraordinary assertions

that the judicial system failed; they are not merely direct appeal claims which are made at a later

stage of the judicial proceedings.    Commonwealth v. Rivers. 567 Pa. 239, 249, 786 A.2d 923,

929 (2001).




                                            III. DISCUSSION

         It is well settled that upon entry of a guilty plea, a petitioner waives all defects and

defenses except those concerning the validity of the plea, the jurisdiction of the trial court, and

the legality of the sentence imposed. Commonwealth v. Guth, 735 A.2d 709, 711 n.3 (Pa. Super.

1999).     Review of guilty pleas under the Post Conviction Relief Act is commensurately

circumscribed, explicitly permitting such a challenge only where the plea is "unlawfully induced

where the circumstances make it likely that the inducement caused the petitioner to plead guilty

and the petitioner is innocent."   42 Pa.C.S. § 9543(a)(2)(iii).
                                                    4
       In order to prevail on an ineffectiveness claim, a petitioner must establish that his claim is

of arguable merit, that counsel had no reasonable basis for his action, and that counsel's action

prejudiced him.      Commonwealth    v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987).

Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis

for relief only if the ineffectiveness caused petitioner to enter an involuntary or unknowing plea.

Commonwealth v. Allen, 557 Pa. 135, 144, 732 A.2d 582, 587 (1999).

       When petitioning     the court to withdraw a plea, a petitioner        must show prejudice

amounting to "manifest injustice." Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154,164

(I 999). Manifest injustice requires a showing that the plea was made involuntarily or without

knowledge of the charges, the right to a jury trial, and awareness of the consequences of the plea.

Commonwealth        v. Muhammad,    794 A.2d 378, 383 (Pa. Super. 2002).          Where the record

demonstrates that a guilty plea colloquy informed the petitioner of the nature of the charges

against him, the voluntariness of the plea is established.   A petitioner is bound by the statements

of his plea, and he may not assert grounds for withdrawing the plea if they contradict those

statements. Commonwealth v. Stork, 737 A.2d 789, 790·91 (Pa. Super. 1999).

       Petitioner    first argues that he was denied the effective       assistance   of counsel, as

guaranteed by both the Pennsylvania Constitution and the United States Constitution because

counsel failed to file a direct appeal.   According to Petitioner, unidentified family member(s)

requested that counsel file an appeal and counsel failed to do so.

       Tue right of a criminal       defendant    to appeal is guaranteed      m the Pennsylvania

Constitution, Article V § 9. However, before a court will find ineffectiveness of trial counsel for

failing to file a direct appeal, a petitioner must prove that he requested an appeal and that counsel

disregarded this request. Commonwealth v. Harmon, 738 Pa. Super. 1023 (Pa. Super. Ct. 1999);
                                                  5
Commonwealth v. Lehr, 400 Pa. Super. 514, 583 A.2d 1234, 1235 (1990). Mere allegation will

not suffice; the burden is on petitioner to plead and prove that his request for an appeal was

ignored or rejected by trial counsel.    Harmon, supra. citing Commonwealth         v. Collins, 546 Pa.

616, 622, 687 A.2d 1112, 1115 (1996); Commonwealth v. Fanase, 446 Pa. Super. 654, 667 A.2d

1166, 1169 (1995).

          Here, Petitioner has failed to meet his burden. Since the inception of this case, the

Commonwealth has repeatedly requested Petitioner or counsel to provide the name of the family

member(s), the date(s), Iocation(s), and/or means by which he and his family supposedly

conveyed their requests to counsel, to no avail. As such, this is not a case that fits within the rule

articulated in Commonwealth v. Lantzy. 736 A.2d 564 (Pa. 1999). Within Lantzy, our Supreme

Court held that counsel's unjustified failure to initiate a requested appeal is per se prejudicial for

PCRA purposes. See id. at 572. Following Lantzy, however, the Supreme Court clarified that

before a court will find ineffectiveness of trial counsel for failing to file a direct appeal, appellant

must      prove   that he   requested   an appeal       and that counsel   disregarded    this   request.

Commonwealth        v. Harmon, 738 A.2d 1023, 1024-1025 (Pa.Super.1999).           Within this matter,

nothing more than a mere allegation has been presented.            Even though he bears the burden,

nowhere in the PCRA petition, the amended petition, or the supplemental petition does Petitioner

proffer, via affidavit or otherwise, witness certifications supporting his claim that trial counsel

(Richard Schrading) was asked to file an appeal.           Counsel cannot be deemed ineffective for

failing to file an appeal which he was not asked to file. Therefore, the per se prejudice rule set

for in Lantzy does not apply here and counsel was not ineffective for failing to file a direct

appeal.



                                                    6
         Next, Petitioner argues that counsel failed to inform him that he faced a mmimum

sentence of twenty (20) years of imprisonment, that he did not understand what he was pleading

to, and "other collateral effects of his plea." This allegation must also fail.

         His assertion that counsel failed to inform him that he faced a minimum sentence of

twenty (20) years of imprisonment and that he did not understand what he was pleading to is

belied by the record. The court informed Petitioner before he pied that he could receive twenty-two

and one half to forty-five years of imprisonment and a $25,000 fine for third-degree murder and

possession of an instrument of crime.2 (N.T., 9/22/10, pp. 22-23). Petitioner acknowledged that he

was to receive a negotiated sentence of twenty to forty years of incarceration as a result of his plea.

Id. at 24. Petitioner acknowledged that he was satisfied with the representation of his lawyer. Id. at

16. Petitioner also acknowledged that no promises were made to him other than the terms negotiated

and that no one induced him to plead against his wishes. Id. at 15. The facts were overwhelmingly

sufficient to support the offenses to which Petitioner pied. Id. at 25~27, 38-39. Petitioner's own

testimony revealed that he made a voluntary plea and was knowledgeable of the charge. As such,

Petitioner has failed to demonstrate that counsel's actions redounded to his prejudice.

         Moreover, insofar as Petitioner has failed to demonstrate that his plea was unlawfully

induced, his assertion that counsel failed to explain "other collateral effects of his plea" is of no

moment; having pled guilty to the charges against him, he has waived his right to impeach the

witness' testimony or proffer mitigating               circumstances.3        Additionally, this court informed



         2
            Petitioner was specifically informed that the maximum sentence for third-degree murder is 20-40 years
of imprisonment and a $20,000.00 fine; and the maximum sentence for possession of an instrument of crime is two
and a half to five years of imprisonment and a $5,000.00 fine. (N.T. 9/22/10, pp. 22-23).

         3
            During the plea colloquy, the court informed Petitioner: "When you plead guilty, your right to file an
appeal is limited to three grounds. The first is that your guilty plea was not made voluntarily .... lack of jurisdiction
of the court .... legality of sentence." (N.T., 9/22/10, pp. 15-20).
                                                            7
Petitioner of the effects of a guilty plea if he was on probation or parole; and if he was not a

citizen of the United States.     Id. at 20-21).     As previously stated, Petitioner is bound by the

statements made at the plea colloquy, and he may not assert grounds for withdrawing the plea if

they contradict those statements.

       The totality of the circumstances surrounding Petitioner's plea demonstrates that a factual

predicate for the plea was established, and that he entered his plea voluntarily with knowledge of its

consequences. Only now after facing the sting of a jail sentence, Petitioner attempts to refute what

he already knew by challenging the content of the colloquy. "Where the record establishes that the

appellant had the requisite knowledge at the requisite time, we will not pretend the truth is

otherwise." Commonwealth v. Yager, 454 Pa. Super. 428, 685 A.2d 1000, 1006 (1996). Finding

that Petitioner's plea was knowingly         and voluntarily entered,            his allegation of counsel's

ineffectiveness must fail. Allen, 557 Pa. at 144, 732 A.2d at 587 (claims of counsel's ineffectiveness

in connection with a guilty plea will provide a basis for relief only if the ineffectiveness caused an

involuntary or unknowing plea).



                                           IV. CONCLUSION

       Petitioner's   own   testimony     revealed        that   he   made   a    voluntary   plea   and   was

knowledgeable of the charges.       Petitioner's allegation that his plea was unlawfully induced is

without merit. Only now after facing the sting of a jail sentence, Petitioner claims his plea was

unknowingly entered because of the hope of a more lenient sentence.                  "Dashed desires do not

equate to unlawful conduct and do not merit appellate relief." Commonwealth v. Patterson. 690

A.2d 250, 253 (1996). Petitioner is bound by the statements at his plea colloquy, and he may not




                                                      8
assert grounds for withdrawing the plea if they contradict those statements.

       Accordingly, for the foregoing reasons, Petitioner's petition for post-conviction collateral

relief was properly dismissed.



                                                             BY THE COURT,




                                                  9
