J. S63010/16
                             2017 PA Super 52



COMMONWEALTH OF PENNSYLVANIA            :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                  v.                    :
                                        :
MICHAEL ANTHONY ORLANDO,                :         No. 2505 EDA 2015
                                        :
                       Appellant        :


                 Appeal from the PCRA Order, July 20, 2015,
            in the Court of Common Pleas of Montgomery County
              Criminal Division at No. CP-46-CR-0007180-2010


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.


OPINION BY FORD ELLIOTT, P.J.E.:                FILED FEBRUARY 28, 2017

     Michael Anthony Orlando appeals from the order entered in the Court

of Common Pleas of Montgomery County that dismissed his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”).

     The PCRA court set forth the following:

                   The charges against [appellant] arose out of a
            multicounty drug-ring investigation run by the
            Pennsylvania Attorney General’s Office before a
            statewide investigating grand jury. The grand jury
            recommended charges against over a dozen alleged
            coconspirators. Pertinent to [appellant]’s present
            appeal, the grand jury’s presentment made findings
            of fact as follows:

                      In August 2009, members of the
                 Pennsylvania Office of Attorney General’s
                 Bureau of Narcotics Investigations and
                 Drug Control Region II, Philadelphia


* Former Justice specially assigned to the Superior Court.
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               Office, began an investigation into the
               distribution  of   cocaine  and     other
               controlled substances in and around
               Philadelphia, Delaware, Sullivan[,] and
               Montgomery counties, Pennsylvania, and
               southern New Jersey. The investigation
               revealed a multi-faceted drug trafficking
               enterprise that consisted of fourteen
               members operating in Philadelphia,
               Delaware, Sullivan, and Montgomery
               counties in Pennsylvania and Gloucester
               County New Jersey.

                     Investigators learned that William
               Gilkin supplied Scott Campanella and
               Richard    Derosa     with   multi-ounce
               quantities of cocaine. Campanella and
               Derosa ultimately redistributed the
               cocaine through a criminal organization
               to individuals involved in the drug
               enterprise in Philadelphia, Montgomery,
               and Sullivan counties, Pennsylvania, and
               southern New Jersey.

               ....

                      Based upon the interceptions and
               surveillance of Richard Derosa and
               others,     agents    identified   seven
               individuals in Derosa’s drug distribution
               network that involved individuals from
               Philadelphia, Delaware, and Montgomery
               counties in Pennsylvania.

                      The four [sic] individuals identified
               in Derosa’s component of the cocaine
               distribution network include Shawn
               LeGrande, Scott Strader, Ricky Abate,
               and [appellant].      Investigation shows
               that from October 8, 2009[,] through
               December 6, 2009, Derosa supplied
               these individuals with quantities of
               cocaine ranging from multi-ounces to
               multi-grams.


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PCRA court opinion, 12/21/15 at 1-2 (citations to the record omitted).

                        The Grand Jury learned that
                  [appellant]     obtained     multi-ounce
                  quantities of cocaine from Richard
                  Derosa at least three times during this
                  investigation. On March 10, 2010, Agent
                  Michael Kelly identified [appellant] as a
                  customer of Derosa’s based upon several
                  intercepted calls and text messages
                  between Derosa and [appellant].

                         By way of example, Agent Michael
                  Kelly testified that intercepted calls and
                  text messages between Derosa and
                  [appellant] on November 11, 2009,
                  showed        that    [appellant]     made
                  arrangements to purchase two ounces of
                  cocaine from Derosa.          Furthermore,
                  evidence shows that [appellant] provided
                  the money to purchase the two ounces of
                  cocaine to Derosa. Agent Kelly further
                  testified that Derosa contacted Gilkin and
                  ordered two ounces of cocaine and
                  indicated that he would pick it up at
                  Gilkin’s residence.      Intercepted calls
                  show that Derosa was on his way to pick
                  up [appellant] after leaving Gilkin’s
                  residence      when   members      of  the
                  Philadelphia Police Department stopped
                  and seized the suspected two ounces
                  from Derosa’s vehicle.

           ....

           [Grand Jury Presentment, 10/20/10, Findings of Fact
           at 1, 5, 15-16.]

                  Based on the grand jury’s presentment, the
           Attorney General’s Office approved a police criminal
           complaint against [appellant], filed October 15, 2010
           . . . attaching, adopting, and fully incorporating the
           grand jury’s presentment as part of the affidavit of


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          probable cause. The complaint charged [appellant]
          with (A) four counts of the ungraded felony of
          delivering or possessing with intent to deliver
          cocaine, a Schedule II controlled substance, in or
          about July through December 6, 2009, in
          Philadelphia and Montgomery counties, in violation of
          35 P.S. § 780-113(a)(30); (B) four counts of the
          felony of criminal conspiracy to do the same, in
          violation of 18 Pa.C.S.[A.] § 903; (C) two counts of
          the first-degree felony of engaging in corrupt
          organizations (through a pattern of racketeering
          activity as defined in 18 Pa.C.S.[A.] § 911(h)(1))
          from July 2009 through December 6, 2009, “at
          various locations throughout Philadelphia[] and
          Montgomery [c]ounties, Pennsylvania” in violation of
          18 Pa.C.S.[A.]    § 911(b)(3),     (4),   respectively;
          (D) four counts of the first-degree felony of dealing
          in the proceeds of unlawful activity (money received
          in   payment     for   cocaine),    in   violation   of
          18 Pa.C.S.[A.] § 5111(a)(1); and (E) four counts of
          the third-degree felony of criminal use of a
          communication facility, in violation of 18 Pa.C.S.[A.]
          § 7512.

          ....

                At a preliminary hearing scheduled for
          October 13, 2010, before a magisterial district judge,
          the Commonwealth withdrew the four counts of
          dealing in the proceeds of unlawful activity, and the
          remaining charges were waived over to Court. The
          Commonwealth filed a bill of information charging
          [appellant] with the remaining fourteen counts
          together     with     a     notice     pursuant     to
          Pa.R.Crim.P. 582(B)(1) that they would be tried
          together with charges against seven of the other
          alleged coconspirators in the drug ring.

                On the date set for trial, February 28, 2012,
          [appellant] appeared and pled guilty to one of the
          counts of possessing cocaine with intent to deliver
          and one count of corrupt organizations, and the
          Court granted the Commonwealth’s motion to
          nol-pros the numerous other counts charged in the


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              original information. In a written colloquy he signed,
              and initialed on each page, [appellant] agreed to
              incorporate into the record the factual accusations
              from the police affidavit of probable cause, which
              included the grand jury’s presentment. After an oral
              colloquy     with    [appellant]    complying      with
              Pa.R.Crim.P. 590 & cmt. that we found established
              his plea was knowing, intelligent, and voluntary, we
              also admitted this written colloquy into the record.

                    In addition, [appellant] pled guilty to a new
              felony of delivering a controlled substance that had
              just arisen the Friday before the Tuesday hearing on
              the plea. In the new case, police had arrested
              [appellant] in Philadelphia after he sold a substantial
              quantity of Oxycontin, a Schedule II controlled
              substance. The Commonwealth filed an amended bill
              of information charging a new violation of 35 P.S.
              § 780-113(a)(30), and, under a “global” agreement,
              [appellant] gave up his right to contest the new
              charge in Philadelphia and the Attorney General
              agreed to advise the Philadelphia District Attorney to
              withdraw the charges pending there.

Id. at 3-6.

                     Upon accepting [appellant]’s plea to the three
              charges (for which he was advised he could face up
              to thirty to sixty years in prison) the Court sentenced
              him to the agreed-upon three concurrent terms of
              three to six years’ incarceration with credit for time
              served on each. We found [appellant] eligible under
              the Recidivism Risk Reduction Incentive Act (RRRI),
              61 Pa.C.S.[A.] § 4505, calculating his minimum RRRI
              sentence as twenty-seven months. Pursuant to the
              agreement, we imposed no fine, but ordered the
              $5,950 “buy money” seized from [appellant’s]
              person in the recent arrest forfeited to the
              Commonwealth.

                   [Appellant] did not appeal the judgment of
              sentence, but from November 2012 through January
              2013 he filed a series of out-of-time pro se requests
              to reconsider and reduce the sentence nunc pro


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           tunc.   We denied these requests, finding we no
           longer had the ability to reconsider the agreed
           sentence, but granted a separate motion [appellant]
           filed during the same period to represent himself
           pro se under Faretta v. California, 422 U.S. 806
           (1975). . . .

                  On January 24, 2013, [appellant] filed a
           petition for relief under the PCRA, again stating he
           did not want a lawyer and asserting the right to
           proceed pro se. This time, after initial review, we,
           on February 21, 2013, sua sponte scheduled a video
           [Commonwealth v.] Grazier [713 A.2d 81 (Pa.
           1998)] hearing for March 26, 2013, to determine
           whether [appellant’s] waiver of his rule-based right
           to post-conviction counsel was knowing and
           voluntary. . . . After hearing, we found that
           [appellant] did not wish knowingly and voluntarily to
           waive counsel, and, on April 2, 2013, we appointed
           Francis M. Walsh, Esquire, to represent [appellant],
           giving counsel advance leave under Pa.R.Crim.P.
           905(A) to file an amended petition for post-
           conviction collateral relief, if appropriate.

                  On February 4, 2014, Walsh filed an amended
           petition for post-conviction relief, which was
           subsequently served upon the Court. The amended
           petition raised two claims that [appellant’s] counsel
           on the plea was ineffective. . . . The second issue[ 1]
           we believe can be fairly summarized thusly:
           (A) [Appellant] pled guilty to corrupt organizations
           with regard to his possessing with intent to deliver
           cocaine. (B) To be guilty of corrupt organizations a
           defendant must be involved in racketeering activity
           as defined in 18 Pa.C.S.[A.] § 911(h)(1), meaning he
           had to be involved with certain types of crimes.
           (C) Among the offenses that may constitute
           racketeering activity is violation of 35 P.S. § 780-113
           “known as The Controlled Substance, Drug, Device
           and Cosmetic Act (relating to the sale and dispensing
           of narcotic drugs),” 18 Pa.C.S.[A.] § 911(h)(1)(ii).

1
  The first issue was disposed of by the PCRA court and is not before this
court on appeal.


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           (D) Cocaine is not among the controlled substances
           the Act defines as a “narcotic,” 35 P.S. § 780-102(b)
           . . . . (E) Because only narcotic drugs, under the
           Drug Act, are cognizable for racketeering activities,
           [appellant’s] possessing with intent to deliver
           cocaine does not fall among the activities proscribed
           by 18 Pa.C.S.[A.] § 911 (relating to corrupt
           organizations) and therefore he should not have pled
           guilty to this charge. (F) [Appellant’s] counsel was
           ineffective for allowing him to plead guilty to corrupt
           organizations when his prerequisite offense cannot
           be racketeering activity under the corrupt-
           organizations statute, 18 Pa.C.S.[A.] § 911.
           Counsel’s amended petition asked the Court to
           vacate the judgments of sentence and discharge
           [appellant].

           ....

                 At the hearing, [appellant] presented two
           witnesses: Assistant Public Defender Roberts and
           [appellant]. The Commonwealth’s case consisted of
           cross-examining the witnesses.

                  We here highlight the pertinent portions of
           Mr. Roberts’s testimony under questioning from
           Mr. Walsh on the issues raised in the amended
           petition (whether Roberts was ineffective for not . . .
           arguing delivery of cocaine was not a predicate
           offense    of   corrupt   organizations/racketeering
           activity):

Id. at 9-11.

           Q.     Now, one of the charges           was   corrupt
                  organizations; is that correct?

           A.     Yes.

           Q.     Okay. And are you familiar with the corrupt
                  organizations statute?




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           A.     That’s a pretty lengthy one, but basically
                  familiar with it. It has been awhile since I
                  looked at it.

           Q.     Okay. Do you specifically recall one of the
                  underlying crimes is the violation of the
                  Control[led] Substance, Drug, Device and
                  Cosmetic Act?

           A.     Yes.

           ....

           Q.     All right. . . .

                  . . . The act itself says – right after act, it has
                  in parentheses, relating to the sale and
                  dispensing of narcotic drugs.

                  Do you recall that?

           A.     Yes, sir.

           Q.     Did you ever talk to him about making a
                  defense that cocaine is not a narcotic drug?

           A.     No, I didn’t.

Id. 13-14, quoting notes of testimony, 9/18/14 at 8-9.

                 The salient points of [appellant’s] testimony on
           direct examination were that Roberts had never
           discussed corrupt organizations requiring the sale of
           narcotics and that [appellant] would not have pled
           guilty had the issue been presented to him with the
           argument that no relationship to Montgomery County
           could have been established without the corrupt
           organizations. . . .

           On July 20, 2015, we dismissed the post-conviction
           petition, and denied [appellant’s] request for post-
           conviction relief. A notice of appeal of our order
           followed on August 18, 2015, and was docketed in
           the Superior Court on August 25, 2015.


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Id. at 18-20.

      Appellant raises the following issue for this court’s review:

            1.     WAS TRIAL COUNSEL INEFFECTIVE FOR
                   PLEADING   THE APPELLANT   GUILTY  TO
                   CORRUPT   ORGANIZATIONS   WHERE   THE
                   ALLEGED     PREDICATE   OFFENSE    OF
                   POSSESSION WITH INTENT TO DELIVER
                   COCAINE IS NOT A PREDICATE OFFENSE
                   UNDER THE CORRUPT ORGANIZATIONS ACT?

Appellant’s brief at 3.

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, 609 Pa.
            442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
            A PCRA court’s credibility findings are to be accorded
            great deference, and where supported by the record,
            such determinations are binding on a reviewing
            court. Id. at 305 (citations omitted). To obtain
            PCRA relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one or more of the errors
            enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,
            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic or tactical decision by counsel[.]”        Id.
            § 9543(a)(4).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

            “A criminal defendant has the right to effective
            counsel during a plea process as well as during trial.”
            [Commonwealth v. Hickman, 799 A.2d 136, 141
            (Pa.Super. 2002)]. “A defendant is permitted to
            withdraw his guilty plea under the PCRA if ineffective


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          assistance of counsel caused the defendant to enter
          an involuntary plea of guilty.” Commonwealth v.
          Kersteter, 877 A.2d 466, 468 (Pa.Super. 2005).

               We conduct our review of such a claim in
               accordance with the three-pronged
               ineffectiveness    test   under  section
               9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A.
               § 9543(a)(2)(ii). See [Commonwealth
               v.] Lynch[, 820 A.2d 728, 732
               (Pa.Super. 2003)]. “The voluntariness of
               the plea depends on whether counsel’s
               advice was within the range of
               competence demanded of attorneys in
               criminal cases.”     Id. at 733 (quoting
               Commonwealth v. Hickman, 2002 PA
               Super 152, 799 A.2d 136, 141
               (Pa.Super. 2002)).

               In order for Appellant to prevail on a
               claim of ineffective assistance of counsel,
               he must show, by a 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.
               Commonwealth v. Kimball, 555 Pa.
               299, 724 A.2d 326, 333 (Pa. 1999).
               Appellant must demonstrate:         (1) the
               underlying claim is of arguable merit;
               (2) that counsel had no reasonable
               strategic basis for his or her action or
               inaction; and (3) but for the errors and
               omissions of counsel, there is a
               reasonable probability that the outcome
               of the proceedings would have been
               different. Id. The petitioner bears the
               burden of proving all three prongs of the
               test.    Commonwealth v. Meadows,
               567 Pa. 344, 787 A.2d 312, 319-20
               (2001).



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             Commonwealth v. Johnson, 868 A.2d 1278, 1281
             (Pa.Super. 2005).

             Kersteter, 877 A.2d at 469-69. Moreover, trial
             counsel    is    presumed  to  be    effective.
             Commonwealth v. Carter, 540 Pa. 135, 656 A.2d
             463, 465 (1995).

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa.Super. 2006).

      In the context of a plea, a claim of ineffectiveness may provide relief

only if the alleged ineffectiveness caused an involuntary or unknowing plea.

See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa.Super. 1999).

“[A] defendant is bound by the statements which he makes during his plea

colloquy.”   Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. 1997)

(citations omitted).   As such, a defendant may not assert grounds for

withdrawing the plea that contradict statements made when he entered the

plea. Id. (citation omitted).

      Here, appellant argues that had his counsel been effective, he would

not have pled guilty to the corrupt organizations charge, 18 Pa.C.S.A. § 911.

He argues that counsel was ineffective in that counsel did not advise him

that the statute did not apply to him because cocaine is not a narcotic drug

and corrupt organizations only applies to the sale and dispensing of narcotic

drugs under The Controlled Substance, Drug, Device and Cosmetic Act

(“Drug Act”) (relating to the sale and dispensing of narcotic drugs), 35 P.S.

§ 780-113. We disagree that this interpretation is valid.

      As set forth by the PCRA court:



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                  The corrupt-organizations statute defines the
            “racketeering activity” required for a corrupt-
            organizations conviction, in part, as “[a]n offense
            indictable under [35 P.S. § 780-113] known as The
            Controlled Substance, Drug, Device and Cosmetic
            Act (relating to the sale, and dispensing of narcotic
            drugs).” 18 Pa.C.S. § 911(h)(1)(ii). Cocaine is not a
            “narcotic” as defined in the Drug Act, 35 P.S. § 780-
            102(b) (defining “narcotic”), but rather is listed
            elsewhere in the Act as a Schedule II controlled
            substance.    35 P.S. § 780-104(2)(i)(4) (defining
            cocaine and related substances as controlled
            substances under Schedule II).

                   Counsel focuses on the parenthetical reference
            in 18 Pa.C.S. § 911(h)(1)(ii) to the section of the
            Drug Act prohibiting illegal drug-related activity
            generally, 35 P.S. § 780.113 (encompassing all
            illegal controlled substances), that refers to that
            section as “relating to the sale and dispensing of
            narcotic drugs.” 18 Pa.C.S. § 911(h)(1)(ii). Counsel
            denominates the quoted language a “proviso” to the
            statute and applies the rule of statutory construction
            of 1 Pa.C.S. § 1924, “Provisos shall be construed to
            limit rather than to extend the operation of the
            clauses to which they refer.” (Br. Supp. Pet’r’s Am.
            Post-Conviction Relief Act Pet. 10.)         However,
            counsel offers no statutory analysis to show the
            parenthetical reference to the Drug Act in 18 Pa.C.S.
            § 911(h)(1)(ii) is a “proviso” to a “clause” rather
            than a mere “parenthetical reference” to a section of
            the Drug Act; and in fact 35 P.S. § 780-113 nowhere
            in its heading or extensive text, that we can see,
            contains the reference “relating to the sale and
            dispensing of narcotic drugs” that by the corrupt-
            organizations statute, 18 Pa.C.S. § 911(h)(1)(ii),
            supplies. (The statutory heading of section 780-113
            reads simply, “Prohibited acts; penalties.”)

PCRA court opinion, 12/21/15 at 38.

      A review of the definitions set forth in 18 Pa.C.S.A. § 911(h)(1) shows

that many of the indictable acts constituting racketeering activity fall under


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general and specific statutory sections. For instance, an act indictable under

the Crimes Code can either include whole chapters of the Crimes Code or

may   be    limited    to    only   specific   sections    of   a     particular   chapter.

Section 911(h)(1) refers to an act which is “indictable under Chapter 29

(relating to kidnapping).” The title of the entire Chapter 29 is “Kidnapping.”

However, along with kidnapping, Chapter 29 includes such crimes as

unlawful restraint, false imprisonment, and interference with the custody of

children.   Any of these offenses would also be indictable offenses under

Section 911(h)(1). In contrast, Section 911(h)(1) refers to specific sections

of the Crimes Code such as Section 2706 of Chapter 27, relating to

terroristic threats.    Chapter 27 includes other crimes such as recklessly

endangering     another         person,    which     are        not     included     under

Section 911(h)(1).          Similarly, had the General Assembly intended for

Section 911(h)(1) to apply to only particular sections or schedules defined

by 35 P.S. §780-104 of the Drug Act rather than the Drug Act as a whole, it

would have so indicated.2 The offense indictable under by the Drug Act is

the unauthorized possession, sale, and distribution of controlled substances.

35 P.S. §780-113. Cocaine is a controlled substance under the Drug Act.


2
  We note that this court in Commonwealth v. Hunter, 768 A.2d 1136
(Pa.Super. 2001), and Commonwealth v. Rickabaugh, 706 A.2d 826
(Pa.Super. 1997), affirmed convictions for corrupt organizations that
involved the selling of cocaine, a non-narcotic drug. However, these cases
did not address head-on the issue presented here of whether selling
non-narcotic drugs in conspiracy with others qualifies as racketeering
activity.


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      As a result, this court agrees with the PCRA court that appellant failed

to establish that his claim that he received ineffective assistance of counsel

had arguable merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




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