J-A22027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

                                          :    IN THE SUPERIOR COURT OF
COMMONWEALTH OF PENNSYLVANIA,
                                          :         PENNSYLVANIA
                                          :
                                          :
                          Appellee
                                          :
                                          :
               v.
                                          :
                                          :
EFRAIN SANTIAGO, JR.,
                                          :
                                          :
                          Appellant
                                          :    No. 2031 MDA 2013


              Appeal from the PCRA Order Entered October 14, 2013,
                In the Court of Common Pleas of Lebanon County,
                Criminal Division, at No. CP-38-CR-0001783-2011.


BEFORE: PANELLA, SHOGAN and FITZGERALD*, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 26, 2014

      Appellant, Efrain Santiago, Jr., appeals from the October 14, 2013

order entered by the Court of Common Pleas of Lebanon County, denying his

                                                                         42

Pa.C.S.A. §§ 9541 9546. We affirm.

      The PCRA court aptly summarized the factual and procedural history

as follows:

      Appellant was criminally charged after members of the Lebanon
      County Drug Task Force executed a search warrant at 124 South
      4th Street, front, Lebanon, Pennsylvania. Appellant and Carol
      Agosto-Diaz resided at the address at the time of the search.
      During the search Detective Adam Saul, Detective Ryan Mong,

      bag of cocaine approximately 14 ounces and five street delivery
      sized bags of cocaine within the master bedroom closet. Officers

__________________
*Former Justice specially assigned to the Superior Court.
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     also found many cellular phones, a large amount of US currency,
     and numerous sandwich baggies with missing corners. Officers
     also searched the vehicle belonging to Ms. Agosto-Diaz and
     found a handgun, which Appellant claimed was his. The serial
     numbers on the handgun had been obliterated or removed.

         Appellant was charged with one (1) count of Violation of the
     Controlled Substance, Drug, Device and Cosmetic Act (F), one
     (1) count of Person Not to Possess, Use, Manufacture, Control,
     Sell, or Transfer Firearms (F2), one Count of Possession of

     of Violation of the Controlled Substance, Drug, Device and
     Cosmetic Act (M), and five (5) counts of Criminal Conspiracy.
     Appellant filed an Omnibus Pre-trial suppression motion which
     was scheduled for a hearing on June 13, 2012. Prior to that
     hearing, Appellant received an amended plea offer from the
     Commonwealth. At the hearing on June 13, 2012, Appellant
     withdrew his pretrial motion and entered a guilty plea to all of
     the charges. Pursuant to a plea deal, Defendant was sentenced
     on August 22, 2012 to a total sentence of five (5) to ten (10)
     years, to be served consecutively to the sentence imposed on
     action number CP-38-CR-2183-2007. As part of the plea deal,
     the Commonwealth also agreed to dismiss charges against Ms.
     Agosto-Diaz.

         On June 19, 2013, Appellant filed a timely, pro se petition


     ineffectiveness, claiming a constitutional violation, an unlawfully
     induced guilty plea, subsequently available exculpatory evidence,
     and a jurisdictional issue.    See 42 Pa.C.S. §§ 9541-9546.
     Thereafter, Attorney Erin Zimmerer was appointed to represent
     Appellant in this matter. An Amended PCRA petition was filed by
     counsel on October 3, 2013, amending his claims for relief to
     those under ineffective assistance of counsel. A PCRA hearing
     was held on October 14, 2013 and after hearing testimony from

     Assistant District Attorney Nichole Eisenhart, Ap
     Petition was denied. Appellant now files the instant appeal.
PCRA Court Opinion, 1/13/14, at 3 4 (footnote omitted).

     Appellant raises the following issues for review:


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     1. Whether Defendant was denied his constitutionally guaranteed
     right to effective representation when Plea Counsel unlawfully
     induced Defendant to plead guilty by advising him he would get
     consecutive sentences if he did not plead guilty and thus
     allowing the District Attorney to coerce him?

     2. Whether Defendant was denied his constitutionally guaranteed
     right to effective representation when Plea Counsel unlawfully
     induced Defendant to withdraw his pre-trial motion by
     abandoning Defendant by walking out of the room, allowing
     Defendant to be intimidated by the District Attorney?

     3. Whether Defendant was denied his constitutionally guaranteed
     right to effective representation when Plea Counsel failed to
     investigate the prosecuting officer in the case against
     Defendant?

     4. Whether Defendant was denied his constitutionally guaranteed
     right to effective representation where Plea Counsel failed to
     consult with Defendant regarding an appeal?

                     5.

     Our standard of review of the denial of a PCRA petition is limited to

                                                rted by the record evidence

and are free of legal error. Commonwealth v. Anderson, 995 A.2d 1184,

1189 (Pa. Super. 2010).     The findings of the PCRA court are accorded

deference if supported by the record. Id. (citations omitted). Appellant has

the burden of persuading this Court that the PCRA court erred and that he is

entitled to relief. Commonwealth v. Miner, 44 A.3d 684, 688 (Pa. Super.

2012).




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      The PCRA provides post-conviction relief for persons serving illegal

sentences or who have been wrongfully convicted of a crime. 42 Pa.C.S.A §

9542. To prevail on a petition for relief under the PCRA, a petitioner must

plead and prove, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of enumerated circumstances, including

ineffectiveness of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii); Commonwealth

v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).

      To allege a cognizable ineffectiveness claim under the PCRA, Appellant



                   se of conduct was without a reasonable basis designed to



ineffectiveness, i.e., there is a reasonable probability that but for the act or

omission in question the outcome of the proceedings would have been

            Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)

(quoting Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001)

(citations omitted)).



assistance of counsel because he was coerced into pleading guilty. The right

to     effective        counsel   extends     to     the      plea     process.

Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003) (quoting

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002)).




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Howe

guilty plea will serve as a basis for relief only if the ineffectiveness caused

                                                            Commonwealth v.

Fears, 86 A.3d 795, 806 807 (Pa. 2014) (quoting Commonwealth v.

Allen, 732 A.2d 582, 587 (Pa. 1999)). Where the defendant enters his plea

on the advice of counsel, the voluntariness of the plea depends on whether



                      Commonwealth v. Wah, 42 A.3d 335, 338 339 (Pa.

Super. 2012) (quoting Allen

law does not require that [the defendant] be pleased with the outcome of his

decision to enter a plea of guilty: All that is required is that [his] decision to

                                                                      Anderson,

995 A.2d at 1192 (citations, quotation, and quotation marks omitted).

       Appellant testified at his PCRA hearing that he encouraged defense

counsel to file a suppression motion challenging the search of his property

and his co-

motion, however, Appellant was informed by the trial court that he would

not be permitted to attack

Adam Saul. N.T. (Guilty Plea), 6/13/12, at 2 3. The court then granted a

recess for Appellant to decide if he wished to continue to litigate his motion.

Appellant alleges that counsel represented that the suppression motion had




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a low likelihood of success and recommended that Appellant accept the

                                                                  to ten year

sentence. N.T. (PCRA Hearing), 10/14/13, at 5, 12, and 6.

        After the recess, defense counsel informed the court that Appellant

was withdrawing his suppression motion and that they were ready to

proceed with the guilty plea colloquy. N.T. (Guilty Plea), 6/13/12, at 5. In

response to questioning by the trial court, Appellant acknowledged that he

committed the crimes charged, understood the terms of the plea agreement

and the questions set forth in the written colloquy, and was satisfied with

                           Id. at 9 11. Based upon these representations,

the trial court found th

voluntarily and intelligently made, and that [Appellant] had the advice of a

                                                          Id. at 11 12.     On

August 22, 2012, Appellant was sentenced in accordance with the negotiated

plea.

        On appeal, Appellant avers that although he wished to proceed with

his pretrial suppression motion, plea counsel, David Warner, pressured him

into accepting the plea agreement. Appellant claims that Warner informed

him that if he chose to go to trial and was found guilty, the trial court would

likely sentence him to consecutive terms of imprisonment, instead of the

concurrent term sentencing scheme proposed in the plea agreement.




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Appellant testified that he felt coerced to accep

description of the sentencing possibilities. N.T. (PCRA Hearing), 10/14/13,

at 9.

        In his PCRA hearing testimony, plea counsel confirmed that he

expressed his doubts about the success of the suppression motion, and

recommended that Appellant accept the plea due to the risk of receiving

consecutive sentences if found guilty at trial.         N.T. (PCRA Hearing),

10/14/13, at 20

resolution of his co-                               ntegral part of the plea

negotiation.   Appellant indicated he would take full responsibility for the

crimes if the charges against Carol Agosto-Diaz were dismissed. Id. at 22

23. Appellant admitted that the prosecution complied with this aspect of the

plea agreement. Id. at 12 13. Plea counsel concluded his testimony on this

issue with a statement that Appellant did not indicate either to him or to the

trial court that he felt coerced or pressured into entering the guilty plea. Id.

at 24 25.

        The PCRA

allegation that he was unlawfully induced into his decision to withdraw his

pretrial motion and accept the plea. Specifically, the PCRA court observed:

              We find that Appellant was not unlawfully induced into
        withdrawing his pretrial motions or pleading guilty. Appellant
        indicated the drugs and weapon were his and he was able to get
        the charges against Ms. Agosto-Diaz dropped. He was informed


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     by another Jurist of this Court that he would not be able to
     present evidence of wrong-doings by Det. Saul. He was offered a
     plea agreement that was essentially the mandatory minimum on
     one of his ten charges. With this information available, Attorney
     Warner was rational in advising Appellant that accepting the plea
     was his best option. There is nothing in the record that supports
     Appellant's allegation he was unlawfully induced into his
     decision.
PCRA Court Opinion, 1/13/14, at 9.



has failed to demonstrate that legal error occurred. A review of the guilty

plea colloquy reveals no evidence of pressure or coercion indicating that the

plea was either involuntarily or unknowingly entered. Additionally, Appellant

responded affirmatively that he understood the terms of the plea and the

written colloquy and stated that he was satisfied with plea counsel's

representation. N.T. (Guilty Plea), 6/13/12 at 9 11. Appellant is bound by

these statements and cannot obtain relief on grounds that contradict these

prior assertions. Commonwealth v. Barndt, 74 A.3d 185, 201 (Pa. Super.

2013).

     Secondly, the PCRA court correctly concluded that Appellant failed to

prove that counsel lacked a reasonable basis for his actions.     Under the

terms of the plea agreement, Appellant was offered the mandatory minimum

sentence on one of the ten charges and secured the dismissal of the charges

against Ms. Agosto-




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Appellant accept the plea was within the range of competence expected.




he abandoned Appellant during the plea negotiations, allowing an assistant

district attorney to intimidate him into withdrawing his suppression motion

and accepting the plea. At the PCRA hearing, Appellant testified that after

he and counsel discussed whether to proceed with the suppression motion,

counsel went to the back of the court room and sat with Ryan Mong, one of

the detectives involved in the case.     Appellant claims that he was then

approached by Assistant District Attorney Nichole Eisenhart who discussed

the case with him without his attorney present.         N.T. (PCRA Hearing),

10/14/13, at 7. Appellant asserted that Eisenhart informed him that if he

continued to litigate the suppression motion, the plea agreement would be



                   Id. at 8.   Appellant explained that he decided to plead

guilty based upon this uncounseled conversation with the prosecution. Id.

      In his testimony, plea counsel admitted that he did not have a direct

recollection of all of his activity during court on June 13, 2013, but stated

that it was not his practice to allow his clients to speak with the prosecution

out of his presence and that he did not recall doing so on that day.      N.T.

(PCRA Hearing), 10/14/13, at 21, 28. Counsel, however, did remember a




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joint discussion with Appellant, Eisenhart, and Detective Mong at one point

during the plea discussions. Id. at 22.

      Nichole Eisenhart also testified at the PCRA hearing.               She denied

speaking with Appellant about the plea without the presence of his attorney

                                                                                   tion

that included Appellant, Detective Mong, and plea counsel.                N.T. (PCRA

Hearing), 10/14/13, at 33 34.

      The PCRA court discussed the abandonment issue in tandem with



PCRA court d

attorney engaged in an uncounseled negotiation with him to be credible.

PCRA Court Opinion, 1/13/14/, at 8.

      Credibility determinations by post-conviction courts are afforded great

deference.     Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014)



discretion on the part of the PCRA court in making its credibility

                                                              Commonwealth v.

Medina, 92 A.3d 1210, 1219 (Pa. Super. 2014).



findings.    Plea counsel did not recall leaving Appellant alone and testified

generally    that   he   would   not   permit    the   prosecution   to   engage     in




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conversation with his client outside of his presence.       The assistant district

attorney definitively recalled that she did not speak to Appellant alone. The



discussion, and its credibility findings will stand.    Thus, Appellant has not

proven ineffectiveness concerning his abandonment claim.

      The third issue is whether plea counsel was ineffective for failing to

investigate the prosecuting officer who procured the search warrant in

Appell

Adam Saul would have revealed that the officer had been relieved of his

duties because of sexual misconduct with a confidential informant in another

matter. Appellant argued that this information could have been utilized to




Appellant at the beginning of his pretrial hearing. The trial court informed

Appellant that because the officer would be testifying as to facts, and not as

an expert witness, Appellant could not challenge his credibility by reference

to his character.   N.T. (Guilty Plea), 6/13/12, at 2 3.      Appellant indicated

                                                       Id. at 5.

      The PCRA court concluded that counsel was not ineffective for failing to

investigate Detective Saul, offering the following rationale:




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      In reviewing the record, we find that Appellant accepted the plea
      deal after being informed, in detail, by the Honorable Samuel A.
      Kline, a fellow jurist of this Court, that Det. Saul was not going
      to be called as an expert witness and would be, at best, a fact
      witness in the case. (N.T. 6/13/12 at 2-5). Former Det. Saul was
      the affiant in this matter and Appellant had expressed concerns
      about his credibility.      Judge Kline thoroughly explained to
      Appellant that former Det. Saul would not be an expert witness
      in the case and information regarding any misconduct by Det.
      Saul in a different case would not be admissible. Therefore, trial
      counsel will not be deemed ineffective for failing to pursue this
      meritless issue.

PCRA Court Opinion, 1/13/14, at 9 10 (footnote omitted).

      We perceive no error



credibility based upon his behavior in another case. Accordingly, the PCRA

                                                        ffective for failing to

pursue this line of questioning is well-supported, and we will not disturb the




consult with him regarding filing an appeal.     Counsel is deemed per se

ineffective if he fails to file a direct appeal requested by a defendant.

Commonwealth v. Markowitz, 32 A.3d 706, 715 (Pa. Super. 2011). In



as to the advantages and disadvantages of an appeal where there is reason

                                                   Commonwealth v. Bath,

907 A.2d 619, 623 (Pa. Super. 2006) (citations omitted).                   This

                                                               ion to believe


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either (1) that a rational defendant would want to appeal (for example,

because there are non-frivolous grounds for appeal), or (2) that this

particular defendant reasonably demonstrated to counsel that he was

                          Commonwealth v. Touw, 781 A.2d 1250, 1254

(Pa. Super. 2001) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 480

(2000)). An appellant may establish a duty to consult by identifying issues

                                                                      Bath,

907 A.2d at 623 (citations omitted).

      At the PCRA hearing, Appellant testified that, approximately four days

after his sentencing proceeding, he sent defense counsel a letter via in-

house mail from the Lebanon County Correctional Facility, requesting that

counsel file an appeal.   He could not produce a copy of the letter at the



because when I got packed up      they packed me up so fast that they were

rushing me to pack up. Some of my belongings are in my cell and are being



questioned what he wanted his counsel to appeal, Appellant responded

succinctly                   Id. at 10.

      Defense counsel testified he never received a letter from Appellant

requesting that he file an appeal, but he had received previous letters that

Appellant sent from prison. N.T. (PCRA Hearing), 10/14/13, at 29. The only




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post-sentencing conversation he recalled was in reference to Ap

concern that some of his personal property be returned. Id.         He also

represented that if Appellant had requested an appeal he would have

complied even though he did not believe that there were any viable

appellate issues. Id. at 26.

          The PCRA court determined that Appellant did not support his

allegation that counsel was ineffective for failing to consult with him

regarding an appeal. The court found that Appellant could not substantiate

his claim that a letter was sent, and without proof that he requested an

appeal, counsel could not be deemed ineffective for failing to do so. PCRA

Court Opinion, 1/13/14/, at 10.     The court, therefore, denied Appellant

relief.

                                                 ruling is supported by the

record evidence and is free of legal error.

unsubstantiated assertion, there is no evidence that he sent a letter

requesting that counsel file an appeal on his behalf. Furthermore, Appellant

has not argued or presented evidence establishing that a duty to consult

arose under the circumstances of this case. Appellant has neither identified

a non frivolous basis for an appeal, claiming only that he wanted to appeal

the sentence, nor demonstrated that he informed defense counsel that he

was interested in appealing. Touw, 781 A.2d at 1254. Additionally, counsel




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testified that, in his assessment, there were no meritorious grounds for

appeal.

     For these reasons, we conclude that Appellant has failed to show

entitlement to post-conviction relief based upon ineffectiveness of counsel.



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/26/2014




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