J-S78039-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
ANGEL MANUEL CASANOVA,                    :
                                          :
                   Appellant              :            No. 495 MDA 2014

      Appeal from the Judgment of Sentence entered on October 30, 2013
               in the Court of Common Pleas of Lebanon County,
                 Criminal Division, No. CP-38-CR-0001604-2012

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 07, 2015

        Angel Manuel Casanova (“Casanova”) appeals from the judgment of

sentence imposed following his conviction of one count each of drug delivery

resulting in death and delivery of a controlled substance.1 We affirm.

        Casanova sold heroin, resulting in a fatal overdose by an individual

who used the substance. Following a trial, a jury convicted Casanova of the

above-mentioned crimes.        The trial court sentenced Casanova to an

aggregate prison sentence of 9 to 40 years. Casanova filed a timely post-

sentence Motion alleging ineffective assistance of trial counsel, Harry Fenton,

Esquire (“Attorney Fenton”).    The trial court appointed new counsel, who

filed an amended post-sentence Motion alleging ineffective assistance of

Attorney Fenton.



1
    See 18 Pa.C.S.A. § 2506(a); 35 P.S. § 780-113(a)(30).
J-S78039-14


        On February 10, 2014, the trial court held a hearing on the amended

post-sentence Motion. At the start of the hearing, Casanova waived his right

to pursue a first PCRA petition under the Post Conviction Relief Act

(“PCRA”).2    Thereafter, the trial court took the testimony of Casanova and

Attorney Fenton.     Following the hearing, the trial court denied the Motion.

Casanova filed a timely Notice of Appeal and a Concise Statement of Matters

Complained of on Appeal.

        On appeal, Casanova raises the same three issues that he presented

to the trial court in his amended post-sentence Motion:

        1. Whether Casanova was denied a fair trial when [Attorney
           Fenton] was ineffective for failing to meet with him in order to
           prepare for trial[?]

        2. Whether Casanova was denied a fair trial when [Attorney
           Fenton] was ineffective for failing to adequately prepare to
           cross-examine witnesses[?]

        3. Whether Casanova was denied a fair trial when [Attorney
           Fenton] was ineffective for advising him not to take the stand
           without discussing the reason for not doing so[?]

Brief for Appellant at 4 (issues rephrased for ease of reference).

        As Casanova’s claims are related, we will address them together.

Casanova contends that Attorney Fenton spoke with him on only one

occasion, via telephone, before trial, and that, due to their minimal contact,

Attorney Fenton could not have effectively evaluated Casanova’s conduct.

Id. at 8. Casanova asserts that, by not meeting with him regularly prior to


2
    See 42 Pa.C.S.A. §§ 9541-9546.


                                    -2-
J-S78039-14


trial, Attorney Fenton potentially impaired Casanova’s right to actively

participate in his defense, resulting in undue prejudice to Casanova. Id. at

8-9. Casanova claims that, because of their minimal contact prior to trial,

Attorney Fenton was not prepared to cross-examine witnesses at trial. Id.

at 9.    Finally, Casanova contends that Attorney Fenton was ineffective for

advising him not to testify on his own behalf, without discussing with him

the reasons for this trial strategy. Id. at 10-11.

        Litigation of ineffectiveness claims is not generally a proper component

of a defendant’s direct appeal, and is presumptively deferred for collateral

attack under the PCRA. See Commonwealth v. Holmes, 79 A.3d 562, 578

(Pa. 2013) (establishing a deferral rule for ineffectiveness claims litigated

after its decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)).

However, the Pennsylvania Supreme Court has recognized two exceptions to

the rule that ineffectiveness claims should be deferred until collateral review,

both falling within the discretion of the trial court:

        First, we held that trial courts retain discretion, in extraordinary
        circumstances, to entertain a discrete claim of trial counsel
        ineffectiveness if the claim is both apparent from the record and
        meritorious, such that immediate consideration best serves the
        interest of justice. Second, we held that trial courts also have
        discretion to entertain prolix claims of ineffectiveness if there is a
        good cause shown and the unitary review thus permitted is
        accompanied by a knowing and express waiver by the defendant
        of the right to pursue a first PCRA petition.

Commonwealth v. Arrington, 86 A.3d 831, 856-57 (Pa. 2014).




                                     -3-
J-S78039-14


      Here, the trial court exercised its discretion to entertain Casanova’s

ineffectiveness claims. The trial court appointed new counsel for Casanova,

who filed an amended post-sentence Motion, and thereafter conducted a

hearing to develop an evidentiary record pertaining to the ineffectiveness

claims. At the hearing, following a colloquy on the record, Casanova waived

his right to PCRA review of his ineffectiveness claims.        See Trial Court

Opinion, 4/24/14, at 9.    Following the hearing, the trial court determined

that Casanova’s ineffectiveness claims lacked merit and denied Casanova’s

amended post-sentence Motion.

      In its Pa.R.A.P. 1925(a) Opinion, the trial court points out that the first

exception to the rule that ineffectiveness claims should be deferred until

collateral review does not apply because Casanova’s ineffectiveness claims

were not apparent from the trial record. See Trial Court Opinion, 4/24/14,

at 9. With regard to the second exception, the trial court posits that it does

not apply because Casanova’s claims are not multiple or prolix, and that “it

is arguable as to whether good cause was shown.”            Id.   Nevertheless,

because Casanova’s ineffectiveness claims were addressed by the trial court,

following a full evidentiary hearing in which Casanova was represented by

new counsel, and because Casanova waived his right to pursue a first PCRA

petition, we will address the merits of his ineffectiveness claims on appeal, in

the interests of judicial economy.




                                     -4-
J-S78039-14


     In its Opinion, the trial court set forth the relevant law, addressed

Casanova’s ineffectiveness claims, and determined that they lack merit.

See id. at 10-15. We agree with the sound reasoning of the trial court and

affirm on this basis as to Casanova’s claims on appeal.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/7/2015




                                 -5-
                         1.                                                  57'60:5/-/If
                                                                        Circulated 12/18/2014 11:29 AM




                                   CRIMINAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA

                 v.                                   No: CP-38-CR-1604-2012

ANGEL MANUEL CASANOVA

APPEARANCES:
Nichole Eisenhart, Esq. for the Commonwealth
Erin Zimmerer, Esq. for the Appellant

OPINION, KLINE, J., APRIL 23, 2014
          Before the Court is the Appellant's Concise Statement of Errors
Complained of on Appeal. For the reasons set forth herein, we find the
alleged errors lack merit, as specified below.
                        FACTS AND PROCEDURAL HISTORY
          The Appellant was charged with Drug Delivery Resulting in Death and
Delivery of a Controlled Substance pursuant to 18 Pa.C.S.A. §2506(a) and 35
P.S. §780-113(a)(30)1, respectively. A jury trial was held on September 13,
2013. The jury found the Appellant guilty of both counts. On October 30,
2013, the Appellant was sentenced as follows, in relevant part:
             Count I, Drug Delivery Resulting in Death: to pay the costs
             of prosecution, to pay a fine of $1,000, to pay restitution to
             certain individuals, and to be incarcerated in a state
             correctional facility for a minimum of 9 years and a
             maximum of 40 years;




1   Known as the Controlled Substance Drug, Device, and Cosmetic Act.

                                                  1
                        (                                                          Circulated 12/18/2014 11:29 AM




           Count II, Violation of the Controlled Substance Drug,
           Device, and Cosmetic Act: Merged with Count I.

(October 30, 2013 Sentencing Order).
       On October 30,2013, Appellant, represented by trial counsel Harry
Fenton, Esq., filed a timely Post-Sentence Motion. In the Post-Sentence
Motion, Attorney Fenton indicated that he believed that there were not any
viable, non-frivolous issues to raise on appeal. Further, when questioned
what issues were to be raised on appeal, the Appellant insisted on ineffective
assistance of counsel. Attorney Fenton asserted that the interests of judicial
economy would be served by appointing new counsel and developing a record
of the ineffective assistance of counsel claims now, as opposed to filing a
frivolous appeal and having to address the claims at a later date. 2
       The law firm of Montgomery & Zimmerer was appointed to represent
the Appellant on any claims of ineffective assistance of counsel, and new

2 The Court notes the procedural posture of this case became somewhat tangled at this juncture.
The proposed order that was filed with the Post-Sentence Motion was never signed. Instead, on
November 1, 2013, in an effort to comply with the 10 day time period in which a trial court is to take
action on a Post-Sentence Motion as set forth in Pa.R.Crim.P. 720(B)(2)(a), this Court dictated a
Post-Sentence Scheduling Order appointing counsel for the Appellant to address the claims. Counsel
was also permitted to file supplemental claims, and a hearing was to be scheduled. For some reason,
this Order was never filed and made a part of the record. Therefore, in an effort to preserve his
client's interests, Attorney Fenton filed a Notice of Appeal on November 13, 2013. A Concise
Statement of Errors Complained of on Appeal was filed, where counsel indicated that he believed no
appealable issues were to be raised, and he intended to file an AnderslMclendon brief. It was clear
that the appeal was premature as the Post-Sentence Motion was still pending since it was never
denied by Court Order or by operation of law. If a defendant files a timely post-sentence motion, the
notice of appeal shall be filed within 30 days of the entry of the order deciding the motion.
Pa.R.Crim.P. 720(A)(2)(a). A comment to the Rule states, "No direct appeal may be taken by a
defendant while his or her post-sentence motion is pending." When this issue came to light, the
Court filed the original Post-Sentence Scheduling Order on November 21,2013. The Court cited
Pa.R.A.P. 1701(a) and (b)(1), stating that although the general rule is that a trial court cannot take
action in a matter once an appeal is filed, a trial court can take action to correct formal errors in
papers in the matter. The Court believed that the matter must be corrected and not delayed any
further due to a clear error. Therefore, the original Post-Sentence Scheduling Order that should
have been filed on November 1, 2013 was filed. Attorney Fenton filed a praecipe to withdraw the
appeal in the Superior Court on or about November 25, 2013. The appeal was discontinued on
December 3, 2013.


                                                  2
                        (                                                          Circulated 12/18/2014 11:29 AM




counsel was permitted to file supplemental claims. Erin Zimmerer, Esq. filed
an Amended Post-Sentence Motion on December 6,2013. Appellant argued
the following:
            I. The Appellant was denied a fair trial when his counsel
            was ineffective for failing to meet with him in order to
            prepare for trial.

            II. The Appellant was denied a fair trial as counsel was
            ineffective because he advised him not to take the stand
            but did not discuss with him why.

            III. Trial counsel was ineffective because he was
            unprepared for trial by failing to meet with him and was
            not adequately prepared to cross-examine witnesses.

(Amended Post-Sentence Motion filed on December 6,2013). Appellant
requested an acquittal of the charges or a new trial.
       A hearing was originally scheduled for January 23, 2013 but was
continued. Appellant filed a brief in support of his position on January 15,
2014. The Commonwealth filed a brief in support of its position on February
6,2014. The hearing on the Post-Sentence Motion was held on February 10,
2014. At the conclusion of the hearing, this Court denied the Post-Sentence
Motion. 3
       The Appellant filed a timely Notice of Appeal on March 11, 2014.
Pursuant to our 1925(b) Order, Appellant filed his Concise Statement of
Errors Complained of on Appeal on April 1, 2014. Appellant raises the same
three alleged errors set forth above. The case is thus before us and ripe for
disposition.

3 This denial was made within the 120 day deadline from the filing of the original Post-Sentence
Motion on October 30, 2013. See Pa.R.Crim.P. 720(B)(3)(a). The filing ofthe Amended Post-Sentence
Motion did not toll the original deadline. Comment to Pa.R.Crim.P. 720 states, "Paragraph (B)(I)(b)
permits the trial judge to entertain a supplemental post-sentence motion at his or her discretion, as
long as the decision on the supplemental issue(s) is made within the time limits of paragraph (B)(3)."
                                                  3
                        i :                                                       Circulated 12/18/2014 11:29 AM
                        \




                                        DISCUSSION
       Pa.R.Crim.P. 720(B) permits a defendant in a criminal case to file an
optional post-sentence motion. A post-sentence motion may include a motion
for judgment of acquittal and a motion for a new trial. Pa.R.Crim.P.
720(B)(I)(a)(ii) and (iv). Appellant raises three ineffective assistance of
counsel claims in his post-sentence motion. Prior to addressing this issue on
the merits, it must first be determined whether the issue is properly before
the Superior Court on direct appeal. (See Com. v. Baker, 72 A.3d 652,644
(Pa. Super. 2013».
       The general rule in Pennsylvania is that a defendant should wait until
collateral review to raise ineffective assistance of counsel claims. Com. v.
Grant, 813 A.2d 726 (Pa. 2002). However, the Supreme Court of
Pennsylvania has ruled that an exception to this general rule exists when the
claims have been raised and fully developed at a hearing in the trial court.
Com. v. Bomar, 826 A.2d 831 (Pa. 2003).4
       In Bomar, the Supreme Court of Pennsylvania found that the claims of
ineffective assistance of counsel were properly raised and preserved in the
trial court. Following sentencing, trial counsel withdrew from the case and
present counsel entered the matter and filed post-sentence motions on
defendant's behalf. The trial court conducted hearings on the post-sentence
motions at which defendant's trial counsel testified. Moreover, the trial court
addressed the ineffectiveness claims in an opinion.
       The Supreme Court stated, "In contrast to the more common situation
where ineffectiveness allegations are raised for the first time on appeal and
the trial court is excluded from the review process, here, this Court has the


4Although Bomar was decided after the decision in Grant, it involved ineffective assistance of
counsel claims raised in postverdict motions prior to the Grant decision.
                                                 4
                                                                   Circulated 12/18/2014 11:29 AM




benefit of the trial judge's evaluation of trial counsel's conduct in reviewing
the claims, rendered close in time to the trial." Bomar, 826 A.2d at 854.
The Supreme Court of Pennsylvania ultimately held that the circumstances
of that case were an exception to the general rule of deferral in Grant, and
the Court proceeded to consider the ineffectiveness claims.
      The law on when ineffective assistance of counsel claims should be
raised has evolved since the decision in Bomar. In Com. v. Wright, 961 A.2d
119, 148 n. 22 (Pa. 2008), the Supreme Court of Pennsylvania held "prolix
collateral claims should not be reviewed on post-verdict motions unless the
defendant waives his right to PCRA review, because the PCRA does not
afford the right to two collateral attacks." In Com. v. Liston, 977 A.2d 1089,
1096 (Pa. 2009) (Castille, C.J., concurring), the holding in Bomar was limited
to pre-Grant cases and directed the lower courts "not to create or indulge
unitary, hybrid review in the post-verdict and direct appeal context, unless
such review is accompanied by an express, knowing and voluntary waiver of
PCRA review."
      The Superior Court of Pennsylvania recognized these developments in
Com. v. Barnett, 25 A.3d 371 (Pa. Super. 2011), in which a defendant raised
ineffectiveness of counsel claims on direct appeal pursuant to Bomar. In
Barnett, the Superior Court held "[b]ased on the opinion of a majority of
participating justices in Wright and Liston, this Court cannot engage in
review of ineffective assistance of counsel claims on direct appeal absent an
'express, knowing and voluntary waiver of PCRA review.'" Barnett, 25 A.3d at
377. "With the proviso that a defendant may waive further PCRA review in
the trial court, absent further instruction from our Supreme Court, this
Court, pursuant to Wright and Liston, will no longer consider ineffective
assistance of counsel claims on direct appeal." Barnett, 25 A.3d at 377.

                                        5
                                                                  Circulated 12/18/2014 11:29 AM




      In Baker, supra., the Superior Court of Pennsylvania declined to review
a claim alleging ineffective assistance of counsel on appeal after finding that
the defendant did not make a valid waiver of the Post-Conviction Relief Act
(hereinafter "PCRA"). One of the arguments on direct appeal was that the
trial court erred by denying his post-sentence motion and finding that trial
counsel was effective.
      Prior to addressing this issue on the merits, the Superior Court
provided a thorough analysis as to whether the issue was properly before it
on direct appeal. The Superior Court acknowledged Grant, Bomar, Wright,
Liston, and Barnett. The Superior Court concluded that the record did not
constitute a valid waiver to PCRA review in its entirety, and it was unable to
review the ineffectiveness claims, citing Barnett. The Court also discussed
what constituted a valid PCRA waiver. The Court specifically stated:
         As discussed, and pursuant to Liston, Wright and Barnett,
         in order for a defendant to raise counsel's ineffectiveness on
         direct appeal, he or she must expressly, knowingly and
         voluntarily waive his or her right to PCRA review. Thus,
         established waiver principles must be applied to waiver of
         PCRA review when a defendant wishes to expedite the
         review of ineffective assistance of counsel claims by way of
         a post-trial motion. Consequently, a defendant must
         participate in an on-the-record colloquy, which ensures the
         defendant is aware of the rights being waived, i.e., the
         "essential ingredients" of PCRA review. This includes, but
         is not limited to, an explanation of (1) the eligibility
         requirements for PCRA relief; (2) the right to be
         represented by counsel for a first PCRA petition; (3) the
         types of issues that could be raised pursuant to the PCRA
         that are now being given up; and (4) the PCRA is the sole
         means of obtaining nearly all types of collateral relief. The
         trial court must also ensure the defendant has made the
         decision to waive his right to PCRA review after consulting
         with counsel (if any) and in consideration of his rights as
         they have been explained in the colloquy.
                                       6
                                                                  Circulated 12/18/2014 11:29 AM




Baker, 72 A.3d at 668.
      The Superior Court in Baker also acknowledged that the Supreme
Court of Pennsylvania granted allowance of appeal in Com. v. Holmes, 996
A.2d 479 (Pa. 2010) to determine the following issue: whether claims of
ineffective assistance of counsel, which were the subject of a nunc pro tunc
direct appeal: (1) were reviewable on direct appeal under Bomar; (2) should
instead be deferred to collateral review under the general rule in Grant; or (3)
should instead be deemed reviewable on direct appeal only if accompanied by
a specific waiver of the right to pursue a first PCRA petition as of right.
      On October 30,2013, the Supreme Court of Pennsylvania issued its
opinion disposing of the issue. In summary, our Supreme Court ruled as
follows:
           By way of summary, we hold that Grant's general rule of
           deferral to PCRA review remains the pertinent law on the
           appropriate timing for review of claims of ineffective
           assistance of counsel; we disapprove of expansions of the
           exception to that rule recognized in Bomar; and we limit
           Bomar, a case litigated in the trial court before Grant was
           decided and at a time when new counsel entering a case
           upon post-verdict motions was required to raise
           ineffectiveness claims at the first opportunity, to its pre-
           Grant facts. We recognize two exceptions, however, both
           falling within the discretion of the trial judge. First, we
           appreciate that there may be extraordinary circumstances
           where a discrete claim (or claims) of trial counsel
           ineffectiveness is apparent from the record and meritorious
           to the extent that immediate consideration best serves the
           interests of justice; and we hold that trial courts retain
           their discretion to entertain such claims.

           Second, with respect to other cases and claims, including
           cases such as Bomar and the matter sub judice, where the
           defendant seeks to litigate multiple or prolix claims of

                                        7
                  (.                                              Circulated 12/18/2014 11:29 AM




        counsel ineffectiveness, including non-record-based claims,
        on post-verdict motions and direct appeal, we repose
        discretion in the trial courts to entertain such claims, but
        only if (1) there is good cause shown, and (2) the unitary
        review so indulged is preceded by the defendant's knowing
        and express waiver of his entitlement to seek PCRA review
        from his conviction and sentence, including an express
        recognition that the waiver subjects further collateral
        review to the time and serial petition restrictions of the
        PCRA. In other words, we adopt a paradigm whereby
        unitary review may be available in such cases only to the
        extent that it advances (and exhausts) PCRA review in
        time; unlike the so-called Bomar exception, unitary review
        would not be made available as an accelerated, extra round
        of collateral attack as of right. This exception follows from
        the suggestions of prior Court majorities respecting review
        of prolix claims, if accompanied by a waiver of PCRA
        reVIew.

Com. v. Holmes, 79 A.3d 562,563-564 (Pa. 2013). On February 6,2014, the
Superior Court's decision in Barnett was also vacated, and the matter was
remanded to the common pleas court for further proceedings consistent with
the holding in Holmes. Com. v. Barnett, 84 A.3d 1060 (Pa. 2014).
      Turning to the instant case, trial counsel cited Bomar and requested a
hearing for the claims to be heard for the following reason: "Judicial economy
will be served by permitting an evidentiary record on the ineffective
assistance claim to be developed now, to be reviewed on direct appeal, rather
than the alternative of filing a baseless and completely inconsequential
appeal which will inevitably result in either (1) a remand or (2) later
collateral attack." (Post-Sentence Motion, paragraph 8). At the time, no
specific claims were raised, but new counsel raised three claims in the
Amended Post-Sentence Motion.
      When the original Post-Sentence Motion was filed, a hearing was

                                       8
                                                                  Circulated 12/18/2014 11:29 AM
                                                      (



scheduled based on the ruling in Bomar. At the hearing, a PCRA wavier on
the record colloquy was conducted based on the tenants of Baker. The law is
now clear that there are only two exceptions which permit a trial court to
exercise its discretion to hear the claims: (1) extraordinary circumstances
where a discrete claim or claims of trial counsel ineffectiveness is apparent
from the record and meritorious to the extent that immediate consideration
best serves the interests of justice; and (2) where the defendant seeks to
litigate multiple or prolix claims of counsel ineffectiveness, including non-
record-based claims, but only if there is good cause shown, and the unitary
review is preceded by the defendant's knowing and express waiver of his
entitlement to seek PCRA review. Holmes, 79 A.3d at 563-564.
      This case does not fall under the first exception as it does not constitute
an extraordinary case because the claims were not so apparent from the
record, and they were not meritorious. The specific arguments were not
known to the Court until the December 6,2013 Amended Post-Sentence
Motion was filed, and a hearing was required to determine the merits of the
claims.
      Turning to the second exception, although a waiver of PCRA review
was conducted on the record, the claims are not multiple or prolix. Rather,
they are straightforward. Also, it is arguable as to whether good cause was
shown. The Appellant was sentenced to a minim urn of 9 years, and he would
have ample time to seek PCRA relief. Trial counsel asserted in .the Post-
Sentence Motion that the interests of judicial economy would be served by
appointing new counsel and developing a record now as opposed to later.
Nonetheless, the hearing on the merits was held, and the case is currently on
appeal. Accordingly, in the event the Superior Court determines that the
claims should not have been reviewed in accordance with Holmes, the Court

                                        9
                                                                 Circulated 12/18/2014 11:29 AM




respectfully requests that the claims be dismissed.
      However, in the event the Superior Court determines that this case
falls within the requirements of Holmes, the Court will now address the
merits. At the hearing, an on the record colloquy was conducted where the
Appellant waived his right to PCRA review. The Appellant was questioned
about the eligibility requirements for PCRA relief. (N.T. 5-6). He was
questioned if he understood that he had the right to be represented by
counsel for a first PCRA petition and the types of issues that could be raised
pursuant to the PCRA that are now being given up. (N.T. 6-8). Further, he
was asked whether he understood that the PCRA is the sole means of
obtaining nearly all types of collateral relief. (N.T. 8). The Commonwealth
then asked, "And your attorney has discussed the fact with you that if you
proceed with this ineffectiveness claim during your post-sentence rights that
you then cannot file the PCRA," to which the Appellant responded "Yes."
(N.T.8). The Court suggests that this is a valid PCRA waiver, and we will
now address the ineffectiveness claims.
      Article I, Section 9 of the Pennsylvania Constitution, guarantees an
accused the right to counsel in criminal prosecutions. This section provides,
         In all criminal prosecutions the accused hath a right to be
         heard by himself and his counsel, to demand the nature
         and cause of the accusation against him, to be confronted
         with the witnesses against him, to have compulsory process
         for obtaining witnesses in his favor, and, in prosecutions by
         indictment or information, a speedy public trial by an
         impartial jury of the vicinage ...

PA Const. Art. 1, §9. The right to counsel includes the right to the effective
assistance of counsel. Strickland v. Washington, 466 U.s. 668, 686 (1984),
citing McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). The
Pennsylvania Supreme Court has ruled, "The petitioner must still show, by a
                                       10
                                                                   Circulated 12/18/2014 11:29 AM
                                                       (



preponderance of the evidence, 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." Com. v. Kimball, 724 A.2d 326, 333 (Pa. 1999). This requires a three-
part test: "(1) that the claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction; and, (3) that, but
for the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different." Id. "... [W]here
the petitioner has demonstrated that counsel's ineffectiveness has created a
reasonable probability that the outcome of the proceedings would have been
different, then no reliable adjudication of guilt or innocence could have taken
place." Id. "A failure to satisfy any prong of the test for ineffectiveness will
require rejection of the claim." Com. v. Busanet, 817 A.2d 1060, 1066 (Pa.
2002).
         Failure to Meet with Appellant in Order to Prepare for Trial
         Appellant first argues that trial counsel was ineffective because he
did not meet with him in order to prepare for trial. Appellant testified that he
was in the Lebanon County Correctional Facility for almost a year, and
Attorney Fenton met with him only one time. (N.T. 10). Appellant had an
issue with the fact that a certain witness had a relationship with the
deceased. (N.T. 14). Appellant claimed that he had issues about other
witnesses of the prosecution because they all had pending cases. When
questioned what those issues were, the Appellant stated, "I mean I don't
know how to explain that." (N.T. 15).
         Attorney Fenton testified that he was able to determine four times
when he had spoken with the Appellant prior to trial. (N.T. 19). The first
time was in court for the arraignment, but this was more of a mere

                                         11
                                                                   Circulated 12/18/2014 11:29 AM




introduction. (N.T. 20). Attorney Fenton further testified he met with him in
the jail sometime prior to January 25, 2013, and he received a telephone call
that occurred on March 28, 2013. (N.T. 20). Attorney Fenton again met with
the Appellant at the jail three or four days before trial. (N.T. 20-21).
      Attorney Fenton also testified that he sent numerous letters to
Appellant on the following dates: December 10, 2012, December 27,2012,
December 31, 2012, January 25, 2013, March 28, 2013, April 15, 2013, two
letters on April 17, 2013, May 29, 2013, July 30, 2013, and August 20, 2013.
(N.T.21-22). Attorney Fenton said that the Appellant sent him letters on the
following dates: December 27, 2012, January 4, 2013, April 1, 2013, April 17,
2013, April 28, 2013, August 6, 2013, and August 11, 2013. (N.T. 21-22).
      Attorney Fenton discussed the Appellant's case with him on the phone
and in the letters. (N.T. 22-23). Attorney Fenton believed that the only two
possible defenses would be to either assert that the drugs that killed the
deceased did not come from Appellant or that the deceased did not die from
the drugs. (N.T. 23). Attorney Fenton said that he discussed this with the
Appellant. (N.T. 24).
      Attorney Fenton testified that after his meetings and letters with the
Appellant, he did not believe that there were any unanswered questions or
issues that were not addressed. (N.T. 26). Attorney Fenton believed that the
Appellant was only upset because he was being kept in the Lebanon County
Correctional Facility. (N.T. 22, 26).
      The Court found Attorney Fenton's testimony to be credible. The
Appellant's assertion that Attorney Fenton only met with him once was not
accurate. The record indicates that they communicated in person and by
letters. Attorney Fenton testified to approximately 11 letters he sent to the
Appellant. Attorney Fenton provided three of the letters, marked as Exhibit

                                        12
                                                                    Circulated 12/18/2014 11:29 AM
                                                        ,
                                                        j   •




1. To suggest that Attorney Fenton only communicated with him one time or
that Attorney Fenton was not prepared for trial is a distortion of the truth.
The Court found that this claim lacked arguable merit. (N. T. 43-44).
Accordingly, the Appellant is not entitled to relief.
                 Discussion of Appellant Not Taking the Stand
      Appellant testified that Attorney Fenton advised him not to take the
stand, "so I went by his word-by what he said." (N.T. 11). Appellant said
that he did not have any further discussions about why he should not have
testified. (N.T. 11). On cross-examination, the record indicates:
         Answer: He told me don't testify, because he didn't want me
         to-he didn't tell me why or nothing.

         Question: And you interpreted that as meaning he is
         looking out for himself, cause he is working with the
         Commonwealth?

         Answer: Yeah.

(N.T.17).
      Attorney Fenton testified what his reasons were as to why he believed
the Appellant should not testify, and he explained his reasons to the
Appellant. (N.T. 27-29). Attorney Fenton said that there was not a lot for the
Appellant to contribute as the focus was on the toxicology reports and
another witness. (N.T. 27). Further, his testimony would have nothing to do
with intent as nobody contended that he intended to harm the deceased.
(N.T.28). Attorney Fenton said that it was "really just a strict liability case,"
"so there was really no need for him to testify." (N.T. 28). Further, it was
ultimately the Appellant's final decision to not testify. (N.T. 29).
      This claim lacks arguable merit. This Jurist found that Attorney
Fenton discussed with the Appellant why he should not take the stand as

                                        13
                   (   .                                         Circulated 12/18/2014 11:29 AM
                   \                                 (



evidenced in some of his letters. (N.T. 45). Even assuming that the claim was
one of arguable merit, the second prong of the test is not met because
Attorney Fenton had a reasonable basis for his decision, and he provided his
reasons to the Court as to why he believed the Appellant should not testify.
Once again, the Court finds Attorney Fenton to be credible, and the
Appellant's claim fails.
                           Cross-Examination of Witnesses
      Finally, the Appellant argues that Attorney Fenton was not adequately
prepared to cross-examine witnesses. Appellant believed that there were
inconsistent statements by witnesses that he felt were not adequately
brought to light. (N.T. 12). The record reveals the following:
         Question: Now, you also stated that you believe that your
         trial counsel was unprepared, did not properly cross-
         examine witnesses; what did you mean by that?

         Answer: When I went through the discovery package a star
         witness that I had-he had an affair with the deceased, and
         he didn't even brung that up. I seen a couple of other
         issues that it was in my discovery package, and he only
         brung up something about that he lied, something like that,
         on the statements that he make-I mean entered. He was
         trying to look out for himself.

(N.T.11-12).
      Attorney Fenton testified that one of the Commonwealth's witnesses
was a confidential informant, and he had made a deal with the District
Attorney that if he was told who the witness was prior to trial, he would not
tell the Appellant because the witness was concerned for his personal safety.
(N.T. 30). With regard to the "star witness" that Appellant referred to,
Attorney Fenton said that he was able to focus on that witness' changed
statements during cross-examination, and he made that clear to the jury.

                                         14
,. ,                                                                    Circulated 12/18/2014 11:29 AM




       (N.T.31). Attorney Fenton believed that this witness made inconsistent
       statements, and he would say anything in order to save himself. (N.T. 32).
       This was something that Attorney Fenton conveyed on cross-examination as
       well as his arguments to the jury. (N.T. 32). Further, with regard to the
       relationship that the witness had with the deceased, Attorney Fenton did not
       think it was relevant, and it was a mere allegation at the time. (N.T. 31-32).
             Once again the Court finds that this claim was not one of arguable
       merit. This Jurist recollects Attorney Fenton conducting a vigorous cross-
       examination of the witness at the trial. (N.T. 46). Further, this Jurist was of
       the belief that if Attorney Fenton was not able to make the jury believe him
       about the inconsistencies, an alleged affair would not have changed the
       outcome either. (N.T. 46-47). Accordingly, this alleged error lacks merit.
             To conclude, after listening to the testimony provided at the hearing on
       the Post-Sentence Motion, this Jurist found that the Appellant is of the belief
       that his trial counsel was ineffective merely because he got convicted. (N.T.
       43, 47). This is not grounds to find counsel ineffective. Accordingly, all
       alleged errors lack merit. We now turn this case over to the Superior Court
       for review. We will enter an Order consistent with the foregoing.




                                              15
