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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                  :
                                       :
CARMELO RIVERA,                        :         No. 3028 EDA 2014
                                       :
                        Appellant      :


             Appeal from the PCRA Order, September 30, 2014,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0005579-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JUNE 05, 2015

      Appellant appeals from the order denying his first petition filed

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

9546. Finding no error, we affirm.

      On October 4, 2012, appellant pleaded guilty to third degree murder

and possessing an instrument of crime in connection with the death of

Wilfredo Sorrento. The following facts underlay the plea. On the evening of

July 10, 2011, appellant and the victim were patrons at the Olympico bar in

Philadelphia.   Appellant and the victim became embroiled in an argument

over a woman appellant had brought to the bar.       During the argument,

appellant struck the victim in the cheek with the butt of a pool cue.   The

victim collapsed and died, and appellant fled the bar. The medical examiner

determined that the cause of death was homicide. However, the evidence
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indicated that the blow from the cue did not directly cause the victim’s

death, but rather induced an adrenaline rush which in turn caused a heart

attack because of the victim’s cardiovascular disease.

         Immediately   following   the   guilty   plea,   the   court   imposed   the

negotiated sentence of 10 to 20 years’ imprisonment. No direct appeal was

filed.    On January 24, 2013, appellant filed the instant PCRA petition.

Counsel was appointed but, on August 26, 2014, filed a petition to withdraw

and “no-merit” brief. See Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)

(en banc). Thereafter, on August 29, 2014, the court filed notice, pursuant

to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss

appellant’s petition without hearing. Appellant’s petition was dismissed and

counsel was permitted to withdraw on September 30, 2014.                 This timely

appeal followed.

         Appellant raises multiple assertions of ineffective assistance of trial

counsel: 1) in failing to obtain a medical expert to show that the victim died

of a heart attack and not because appellant struck him with a pool cue; 2) in

failing to investigate and try the case, and instead inducing appellant to

plead guilty; 3) in failing to obtain an interpreter; and 4) in failing to advise

appellant of his right to withdraw his guilty plea. Finally, appellant asserts

that PCRA counsel was ineffective in seeking to withdraw pursuant to

Turner/Finley.



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      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.    Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      Moreover, as appellant’s issues on appeal are stated in terms of

ineffective assistance of counsel, we also note that appellant is required to

make the following showing in order to succeed with such a claim: (1) that

the underlying 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. Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).       The failure to satisfy any

prong of this test will cause the entire claim to fail.   Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed

to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

      We may quickly dispose of appellant’s claims. Appellant first asserts

that counsel was ineffective in failing to obtain expert medical testimony to

prove that the victim died from a heart attack and not from being struck by

the pool cue.      Appellant contends that his crime only amounted to



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involuntary manslaughter and not murder. He posits that he would not have

pleaded guilty to murder had such expert medical testimony been available.

      Such testimony would have been fruitless.         The medical examiner

himself stated that the victim died from the heart attack and not from blunt

force trauma. However, the heart attack was induced by the trauma. This

court has previously held in a prosecution for second-degree murder based

upon a heart attack death, that expert medical testimony that death was

due to heart disease aggravated by robbery and kidnapping and the manner

of   death   was   homicide   was   sufficient   to   support   the   conviction.

Commonwealth v. Evans, 494 A.2d 383, 389-390 (Pa.Super. 1985).

Consequently, even if counsel had produced a medical expert to opine that

the victim died from a heart attack, it would not have likely changed the

result. Thus, there was no prejudice to appellant and no ineffectiveness on

the part of counsel.

      Next, appellant contends that counsel was ineffective in failing to

investigate and try the case, and instead inducing appellant to plead guilty.

We note that the trial court conducted a full plea colloquy of appellant.

During that plea colloquy, appellant testified that nobody threatened or

forced him to plead guilty, and that he was satisfied with counsel’s

representation. (Notes of testimony, 10/4/12 at 13.) “A person who elects

to plead guilty is bound by the statements he makes in open court while

under oath and he may not later assert grounds for withdrawing the plea



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which     contradict   the   statements   he   made     at   his   plea   colloquy.”

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007), quoting Commonwealth v.

Pollard, 832 A.2d 517, 524 (Pa.Super. 2003) (citations omitted).

        Furthermore, appellant was faced with a total maximum sentence of

45 years’ imprisonment.        The incriminating facts against appellant were

compelling.1     By negotiating a plea bargain, counsel limited appellant’s

maximum sentencing exposure to 20 years’ imprisonment.               Thus, counsel

had a valid strategic reason for advising acceptance of the plea and not

taking the case to trial. There is no ineffectiveness in this regard.

        Next, appellant asserts that counsel was ineffective in failing to obtain

an interpreter. A Spanish interpreter was present for appellant’s guilty plea

hearing.    (Notes of testimony, 10/4/12 at 3.)       Furthermore, to the extent

that appellant’s claim implicates his ability to communicate with his attorney

prior to the guilty plea hearing, the trial court specifically inquired of

appellant during the plea hearing whether he was able to fully communicate

with his attorney during trial preparation despite the language difference,

and appellant answered in the affirmative. (Id. at 4-5.) Appellant is bound

by that answer. Pollard. There is no ineffectiveness on this basis.




1
  The attack was apparently caught on video. (Notes of testimony, 10/4/12
at 22.)


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      Next, appellant argues that trial counsel was ineffective in failing to

advise appellant of his right to withdraw his guilty plea. At the close of the

guilty plea hearing, the court alerted appellant to the possibility of

withdrawing his guilty plea when it specifically asked appellant if he would

be instructing his counsel to file a motion to withdraw the plea. (Notes of

testimony, 10/4/12 at 29-30.) Since the court alerted him to this possibility,

counsel cannot be found ineffective for failing to do so.

      Finally, appellant asserts that PCRA counsel was ineffective in seeking

to withdraw pursuant to Turner/Finley. Appellant never objected to PCRA

counsel’s representation before the PCRA court either in a response to the

no-merit brief or in response to the Rule 907 notice.          Consequently,

appellant may not raise this matter for the first time on appeal.

Commonwealth v. Pitts, 981 A.2d 875, 878-881 (Pa. 2009).

      Accordingly, having found no merit in the issues on appeal, we will

affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/5/2015




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