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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                    v.                   :
                                         :
ROBERT RUDOI,                            :          No. 738 EDA 2016
                                         :
                         Appellant       :


                Appeal from the PCRA Order, March 4, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0007126-2013


BEFORE: BOWES, J., OTT, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 12, 2017

     Robert Rudoi appeals from the March 4, 2016 order entered in the

Court of Common Pleas of Philadelphia County that denied his petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546.1 We affirm.

     The trial court set forth the following:

                 On or about May 10, 2013, Appellant [] was
           arrested and charged with several violations of the
           Pennsylvania Criminal Code; specifically, Aggravated
           Assault – per [18 Pa.C.S.A. §] 2702(A); Simple
           Assault – per section 2701(A) and Reckless

1  In his notice of appeal, appellant appeals from the March 20, 2014
judgment of sentence and the March 4, 2016 order denying his PCRA
petition.  As set forth in this memorandum, appellant abandoned his
direct-appeal claims and advanced one claim of ineffective assistance of
counsel under the PCRA. We, therefore, directed the prothonotary to amend
the caption of this appeal to reflect that appellant is appealing from the
March 4, 2016 PCRA order.
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             Endangerment – per section 2705. On January 10,
             2014, a bench trial was held before this Court. At
             said    time,    Appellant   was   represented     by
             John Konchak, Esquire, Assistant Public Defender
             (“Trial Counsel”) and the Commonwealth was
             represented by Tracie Gaydos, Esquire, Assistant
             District Attorney (“Gaydos”). At the conclusion of
             this trial, this Court found Appellant guilty [of],
             inter alia, Aggravated Assault. On March 20, 2014,
             Appellant was sentenced to eighteen (18) to
             thirty-six (36) months of incarceration plus ten (10)
             years’ probation, the first two (2) years reporting.
             Appellant, due to the nature of the crime was not
             RRRI eligible.     This Court additionally ordered
             Appellant to pay twenty-one thousand one hundred
             and six dollars and six cents ($21,106.06) in
             restitution.

                   On September 19, 2014, and during
             Appellant’s period of incarceration related to this
             Court’s sentence, Appellant was interviewed by
             Immigration and Customs Enforcement agents
             (“ICE”). On said date, Appellant was issued a Notice
             to Appear or charging document alleging that he was
             convicted of an aggravated felony as defined in the
             Immigration and Nationality Act. On June 3, 2015,
             Appellant was ordered removed from the United
             States by Immigration Judge Walter Durling.
             I.J. Durling reasoned and the Board of Immigration
             Appeals affirmed that the charge of Aggravated
             Assault was a crime of violence and therefore an
             aggravated felony.

                   On March 19, 2015, Appellant filed a
             Post-Conviction Relief Act[2] (“PCRA”) petition with
             this Court. The PCRA motion alleged various claims
             of ineffectiveness on the part of Appellant’s Trial
             Counsel, Attorney Konchak; specifically, but not
             limited to, Trial Counsel’s failure to investigate
             Appellant’s birth place and status in the United
             States and failure to advise Appellant of the
             consequences of going to trial.     Specifically, the

2   42 Pa.C.S.A. §§ 9541-9546.


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           consequences of being possibly deported if Appellant
           was found guilty at trial. On March 4, 2016, this
           Court denied Appellant’s PCRA Motion in part and
           granted it in part by reinstating Appellant’s appeal
           rights.

                 Appellant timely appealed the Judgment of
           Conviction and Sentence entered on March 20, 2014,
           and the PCRA Ruling entered on March 4, 2016. This
           Court filed an Order for Counsel to file [a] Concise
           Statement of Errors Complained of on Appeal on or
           before April 18, 2016, pursuant to Pennsylvania
           Rules of Appellate Procedure 1925(b). On March 29,
           2016, Appellant filed a Statement of Matters
           Complained of on Appeal pursuant to Pennsylvania
           Rule[] of Appellate Procedure 1925(b).

                  On March 16, 2016, the Court Reporter, Digital
           Recording and Interpreter Administration of the First
           Judicial District of Pennsylvania sent a letter to
           Appellant’s counsel, Mr. Savino, notifying Counsel
           that the Court Reporter is no longer employed with
           their office and the notes pertaining to this case have
           not been located. On April 18, 2016, the Superior
           Court entered an Order that in light of the fact that
           the March 20, 2014, notes of testimony referenced in
           Appellant’s “Motion for Emergent Remand to Trial
           Court and to Hold Appellate Proceedings in
           Ebeyonce [sic] in Order to Reconstruct Trial Record
           for Appeal,” are unavailable, it was Ordered that the
           parties prepare a statement in absence of transcript
           with respect to the unbailable [sic] transcript. This
           Court is now in possession of the March 20, 2014
           Notes of Testimony.

Trial court opinion, 8/19/16 at 1-3.        The trial court then filed its

Rule 1925(a) opinion on August 19, 2016.

     At the outset, we note that in his Rule 1925(b) statement, appellant

raised four claims.   On appeal, appellant has abandoned three of those

claims and raises the following issue for our review: “Did the PCRA court err


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by partially denying appellant PCRA relief?”         (Appellant’s brief at 3.)

Specifically, appellant claims his entitlement to PCRA relief because his trial

counsel was ineffective for failing to “ascertain[] whether appellant was a

United States citizen” and because “trial counsel never addressed the

immigration consequences of losing at trial.” (Id. at 12.)

      By way of background, appellant filed a PCRA petition, and the trial

court conducted an evidentiary hearing.      Following that hearing, the trial

court entered an order granting, in part, and denying, in part, appellant’s

PCRA petition.   The trial court partially granted PCRA relief by reinstating

appellant’s direct-appeal rights after finding trial counsel ineffective for

failing to file a direct appeal after appellant directed him to do so. (Order of

court, 3/4/16; see also notes of testimony, 3/4/15 at 9-11.) In so doing,

the trial court advised appellant that he could appeal his judgment of

sentence and that part of the order denying PCRA relief to this court in a

single appeal or two appeals. (Id. at 13-14.) Although appellant’s notice of

appeal to this court states that he is appealing from the March 20, 2014

judgment of sentence and the March 4, 2016 order that denied him PCRA

relief, appellant chose to abandon his direct appeal claims and advance his

ineffective assistance of counsel claims.      Therefore, appellant takes his

appeal from the March 4, 2016 order denying his PCRA petition.

      We limit our review of a PCRA court’s decision to examining whether

the record supports the PCRA court’s findings of fact and whether its



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conclusions of law are free from legal error.     Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s

findings and the evidence of record in a light most favorable to the prevailing

party. Id.

      To be entitled to PCRA relief, the defendant bears the burden of

establishing, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so

undermined the truth-determining process that no reliable adjudication of

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

and (ii); see also Mason, 130 A.3d at 618 (citations omitted).

             Counsel is presumed effective, and in order to
             overcome that presumption a PCRA petitioner must
             plead and prove that: (1) the legal claim underlying
             the ineffectiveness claim has arguable merit;
             (2) counsel’s   action or      inaction   lacked any
             reasonable basis designed to effectuate petitioner’s
             interest; and (3) counsel’s action or inaction resulted
             in prejudice to petitioner. With regard to reasonable
             basis, the PCRA court does not question whether
             there were other more logical courses of action
             which counsel could have pursued; rather, [the
             court] must examine whether counsel’s decisions
             had any reasonable basis.          Where matters of
             strategy and tactics are concerned, [a] finding that a
             chosen strategy lacked a reasonable basis is not
             warranted unless it can be concluded that an
             alternative not chosen offered a potential for success
             substantially greater than the course actually
             pursued.    To demonstrate prejudice, a petitioner
             must show that there is a reasonable probability
             that, but for counsel’s actions or inactions, the result
             of the proceeding would have been different. Failure


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            to establish any prong of the [] test will defeat an
            ineffectiveness claim.

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

      Here, the record reflects that the Defender Association of Philadelphia,

of which Attorney Konchak3 is a member, was appointed to represent

appellant. Attorney Konchak testified that an attorney no longer employed

by the Defender Association first interviewed appellant seven days after his

arrest.   (Notes of testimony, 12/10/15 at 8, 12.)            At the hearing,

Attorney Konchak produced appellant’s “write-up sheet,” which is a form

that the Defender Association uses to obtain biographical information during

a client’s initial interview. Appellant’s “write-up sheet” listed “Philadelphia”

as appellant’s birthplace and stated that appellant had been in Philadelphia

for his “lifetime.”   (Id. at 10-11.)      The record further reflects that

Attorney Konchak received a copy of appellant’s pretrial service investigation

report at the time of appellant’s arraignment. (Id. at 22.) The report listed

appellant’s place of birth as Philadelphia, Pennsylvania, United States of

America, as did appellant’s Philadelphia police criminal history. (Id. at 24,

26.) Attorney Konchak further testified that appellant never told him that he

was born in Brazil. (Id. at 28.) Attorney Konchak testified that he did not

learn that appellant was born in Brazil until after appellant’s conviction. (Id.




3 The record demonstrates that Attorney Konchak has been licensed to
practice law in this Commonwealth since 1976.   (Notes of testimony,
12/10/15 at 21.)


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at 11-12.) Counsel explained that he had no reason to consider immigration

or collateral consequences prior to trial because:

              [t]o the best of [counsel’s] knowledge[, appellant]
              lived in Philadelphia, he sounds like a Philadelphian,
              he looks like a Philadelphian. The [write-up sheet]
              indicated he was born in Philadelphia, he lived here
              his whole life. The court – as you see wrote the
              same notation on [its] paperwork at the time of his
              preliminary arraignment when he was arrested
              saying he was born in Philadelphia. I had no reason
              to suspect otherwise to the best of my recollection.

Id. at 14. Indeed, during appellant’s direct examination, the following took

place:

              Q.    Did [Attorney Konchak] ever ask you about
                    your citizenship or where you were born?

              A.    No.

              Q.    Did you ever think to mention anything to him?

              A.    No.

Id. at 49.

      Attorney Konchak also testified that had he known appellant was a

Brazilian national, he would have attempted to negotiate the felony

aggravated     assault    down   to   a   simple   assault   to   avoid   deportation

consequences, but he did not think that would be successful.                 (Id. at

18-19.)      He also testified that had he known of appellant’s immigration

status, he would have considered and discussed with appellant the option of

proceeding to a jury trial, as opposed to a bench trial. (Id. at 20-21.) The

record, however, demonstrates that Attorney Konchak had no reason to


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know appellant’s immigration status.     Therefore, the record supports the

trial court’s factual determination that trial counsel’s failure to realize and

inquire as to appellant’s immigration status did not constitute ineffective

assistance of counsel because trial counsel “made the best choice for his

client with the information he was given.”      (Trial court opinion, 8/19/16

at 9.)     Accordingly, because appellant is unable to establish that his

ineffectiveness claim has arguable merit, it necessarily fails and renders

moot appellant’s claim that “trial counsel never addressed the immigration

consequences of losing at trial.”

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/12/2017




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