J-S17004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ROBERT MYERS,

                         Appellant                   No. 3472 EDA 2017


       Appeal from the Judgment of Sentence Entered May 18, 2017
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008832-2015


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 05, 2019

      Appellant, Robert Myers, appeals from the judgment of sentence of 6-

12 years’ incarceration, followed by 5 years’ probation, imposed following his

guilty plea to possession with intent to deliver a controlled substance

(“PWID”), conspiracy to commit PWID (“conspiracy-PWID”), and possession

of a firearm prohibited (“PFP”). After careful review, we affirm.

         The following rendition of the facts was read into the record by
      the Commonwealth when … Appellant entered into an open guilty
      plea on January 6, 2017.         [See N.T., 1/6/17, at 18-24].
      []Appellant agreed to the Commonwealth’s rendition and that the
      foregoing facts were accurate. []Id. at [24].

         On September 30, 2014, the Philadelphia police commenced
      an investigation into alleged narcotics activity occurring on 2237
      South 20th Street. On that date, police met with a confidential
      informant (CI) and instructed him to meet with … Appellant and
      engage in a controlled buy for the suspected narcotics.6 At
      approximately 5:57 p.m., police observed the CI enter the
      residence at 2237 South 20th Street. The CI returned a short
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     time later and handed over suspected Oxycodone pills to the
     police. The CI indicated that … Appellant exchanged the pills for
     U.S. currency when they were inside the residence.7
        6 The CI was instructed to utilize controlled[-]buy money to
        purchase [O]xycodone pills from any individuals at 2237
        South 20th Street. The CI was searched for contraband prior
        to each occasion that he interacted with … Appellant.
        7 The CI confirmed to the police that both … Appellant and
        his co-defendant, Jennifer Martin, engaged in the sale of
        pills to him or her on the second floor of the residence. All
        of the narcotics purchased by the CI were placed on
        property receipts and sent to a state police lab for analysis
        where they came back positive for Oxycodone and
        Percocets.

        On November 7, 2014, the same police officers again utilized
     and instructed the CI to enter the same location to make another
     controlled buy.    The CI returned with suspected Percocets
     exchanged in a transaction with … Appellant. The CI was used
     two more times in a similar manner on December 15, 2014 and
     January 5, 2015, and on each date the CI returned with suspected
     [O]xycodone pills after engaging in a transaction with …
     Appellant.8
        8   See footnote 7, supra.

        The police obtained a search warrant for the residence at 2237
     South 20th Street on January 6, 2015[,] and executed the search
     warrant on January 9, 2015. Authorities recovered various
     prescription pills, cocaine, marijuana, digital scales, Ziploc bags,
     and drug paraphernalia.9 The search also yielded a Drug-O-tally
     sheet, a TD Bank statement and TD Bank check in the name of
     Jennifer Martin ([]Appellant’s co-defendant), a TD Bank check in
     … Appellant’s name, U.S. currency, and additional items.10
        9The police recovered 13 round blue pills stamped K9, three
        round green pills stamped K8, one round green pill stamped
        OP80, and [an] additional significant amount of
        paraphernalia. They also recovered 9 clear Ziploc bags
        containing marijuana, 26 additional pills, 7 clear Ziploc bags
        containing cocaine, a Velocity digital scale, a U.S. Magnum
        scale, and additional Ziploc bags.



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           10The authorities additionally recovered a PECO bill for 2237
           South 20th Street, a cellular phone, residential lease, keys,
           and other documents.

        After speaking with … Appellant, the police learned of a safe
        deposit box at a TD Bank. []Appellant waived his 5th Amendment
        rights and signed a written statement consenting to a search of
        the safe deposit box, which yielded $66,811 in U.S. currency.11 A
        firearm was also recovered from the safe deposit box.12 All of the
        alleged narcotics recovered during these searches tested
        positively for marijuana, cocaine, Oxycodone, and Percocets. The
        firearm analysis confirmed that the weapon was operable.
           11The money located in the safe deposit box consisted of
           the following denominations: 267 $1 bills; 22 $5 bills; ten
           $10 bills; 66 $20 bills; six $50 bills; 14 $50 bills; and 643
           $100 bills.
           12 The firearm was a black Beretta handgun loaded with 15
           9-milimeter rounds bearing serial number PX8533L.
           []Appellant informed the police that he did not own the
           firearm, but was holding it as collateral from another
           individual in connection to a drug sale.

Trial Court Opinion (“TCO”), 5/22/18, at 3-4.

        The police arrested Appellant on August 17, 2015. The next day, the

Commonwealth charged him with PWID, conspiracy-PWID, aggravated

assault, PFP, possession of a controlled substance, and possession of drug

paraphernalia. On January 6, 2017, Appellant entered an open guilty plea to

PWID, conspiracy-PWID, and PFP. On May 18, 2017, the trial court sentenced

Appellant to 6-12 years’ incarceration for PWID and a consecutive term of 5

years’ probation for conspiracy-PWID.1 Appellant filed a timely post-sentence




____________________________________________


1   Appellant received no further penalty for PFP.

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motion seeking reconsideration of his sentence. On September 21, 2017, the

trial court denied Appellant’s post-sentence motion. Subsequently,

            [o]n October 6, 2017, the court permitted … Appellant’s trial
       counsel to withdraw and appointed new counsel.2
          2 []Appellant’s trial counsel was Zachary Shaffer, Esq., and
          the temporarily appointed [a]ppellate counsel was Joseph
          Coleman, Esq.

           On October 16, 2017, … Appellant filed a motion to proceed pro
       se and also filed a [m]otion for [r]ecusal.3 On October 22, 2017,
       … Appellant filed a [n]otice of [a]ppeal to the Superior Court. On
       November 7, 2017, … Appellant filed a pro se[, court-ordered,
       Pa.R.A.P. 1925(b) statement]. On January 26, 2018, a new
       attorney4 entered his appearance to represent … Appellant and
       filed [an a]mended [Rule 1925(b) s]tatement….

          3The court never had an opportunity to conduct a Grazier[2]
          hearing because … Appellant’s new [privately-retained]
          counsel entered his appearance on January 26, 2018. The
          court denied the Motion for Recusal.
          4   Douglas Dolfman, Esq.

TCO at 16. The trial court issued its Rule 1925(a) opinion on May 22, 2018.

       Appellant now presents the following questions for our review:

       1. Did the trial court err as a matter of law by accepting a non-
       negotiated guilty plea which was not voluntary?

       2. Was trial counsel ineffective in representing [Appellant] by
       failing to file and litigate a motion to suppress contraband found
       in this case, and that officer[s] []lacked reasonable suspicion or
       probable cause to detain and arrest [Appellant,] and that the
       evidence seized was the fruit of the poisonous tree[?]

       3. [S]hould [the trial court] have allowed trial counsel Zac
       Shaffer[,] Esquire[,] to also represent the co-defendant Jennifer


____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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        Martin[,] thereby prejudicing [Appellant]’s right to a fair trial
        because of a conflict of interest not waived by either defendant[?]

        4. Was trial counsel ineffective in failing to properly advise
        [Appellant] of offers in the case and giving [Appellant] the only
        choice but to plead open in the case and not informing [him] of
        the permissible range of sentences[?]

        5. Was trial counsel ineffective in failing to state on the record and
        failing to explain to [Appellant] in an open guilty plea that he
        would lose certain fundamental rights by pleading guilty, including
        the right to carry a firearm, the right to vot[e,] and certain custody
        rights now and in the future[?]

Appellant’s Brief at 6.

        All of Appellant’s claims have been waived, or are otherwise

unreviewable at this time.        “Upon entry of a plea of guilty, all grounds of

appeal are waived other than challenges to the voluntariness of the plea and

the jurisdiction of the sentencing court.” Commonwealth v. Chumley, 394

A.2d 497, 504 (Pa. 1978). Furthermore, “allegations of ineffective assistance

of counsel in connection with entry of the guilty plea will serve as a basis for

relief only if the ineffectiveness caused [the] appellant to enter an involuntary

or unknowing plea.” Id. However, absent specific circumstances not present

in the instant case, “claims of ineffective assistance of counsel are to be

deferred to PCRA[3] review.” Commonwealth v. Holmes, 79 A.3d 562, 576

(Pa. 2013). Accordingly, Appellant’s second, fourth, and fifth claims are not

cognizable on direct appeal. We so conclude without prejudice to Appellant’s

ability to pursue those claims in a future PCRA petition.



____________________________________________


3   Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.

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     In Appellant’s first claim, he challenges the voluntariness of his guilty

plea. Although this claim is cognizable on direct appeal, it has been waived.

     “Issues not raised in the lower court are waived and cannot be
     raised for the first time on appeal.” Pa.R.A.P. 302(a)…. Where
     an appellant fails to challenge his guilty plea in the trial court, he
     may not do so on appeal. In order to preserve an issue related to
     the guilty plea, an appellant must either object at the sentence
     colloquy or otherwise raise the issue at the sentencing hearing or
     through a post-sentence motion.

Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006)

(cleaned up).

     Here, Appellant fails to direct this Court’s attention to where his claim

was preserved in the lower court. In our review of the record, we ascertain

that Appellant did not raise a claim challenging the voluntariness of his plea

below, at sentencing, in a post-sentence motion, or otherwise. Accordingly,

we deem this claim waived.

     Finally, in Appellant’s third claim, he asserts that the trial court should

not have permitted his trial attorney to represent both him and his co-

defendant. As this claim does not implicate the legality of his sentence, and

because no claim was preserved below regarding the voluntariness of his plea

(assuming the instant claim could even be characterized as having affected

the voluntariness of his plea), this claim has also been waived. Chumley,

supra.

     Judgment of sentence affirmed.

     President Judge Emeritus Ford Elliott joins this memorandum.

     Judge Olson concurs in the result.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/19




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