J-S44044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    PEDRO FIGUEROA,                              :
                                                 :
                       Appellant                 :       No. 2666 EDA 2017

                    Appeal from the PCRA Order July 27, 2017
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0001431-2014

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                              FILED AUGUST 21, 2018

        Pedro Figueroa (“Figueroa”) appeals from the Order denying his Petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        On January 19, 2014, Figueroa was arrested and charged with

possession of a controlled substance, and possession with intent to deliver a

controlled substance (“PWID”).2                Joseph Coleman, Esquire (“Attorney

Coleman”), of the Defender Association of Philadelphia, represented Figueroa.

The charges resulted from a police officer’s controlled purchase of two packets

of heroin and two packets of cocaine from Figueroa. Figueroa filed a pre-trial

suppression Motion, which the trial court denied. Following a bench trial, the

trial court acquitted Figueroa of PWID, but found him guilty of possession of a

____________________________________________


1   See 42 Pa.C.S.A. §§ 9541-9546.

2   See 35 P.S. § 780-113(a)(16), (30).
J-S44044-18


controlled substance. The trial court sentenced Figueroa to 9-23 months in

prison, with immediate parole after serving nine months, followed by one year

of reporting probation. Figueroa filed no direct appeal from his judgment of

sentence.

      Figueroa filed a pro se PCRA Petition on May 17, 2016. Counsel was

appointed, who filed an Amended PCRA Petition alleging ineffective assistance

of trial counsel.    After an evidentiary hearing, the PCRA court denied

Figueroa’s PCRA Petition.    Subsequently, Figueroa filed the instant timely

appeal.

      Figueroa presents the following issue for our review:

      Is [Figueroa] entitled to reinstatement of his appeal rights nunc
      pro tunc from the judgment of sentence because [Attorney
      Coleman] was ineffective when [he] failed to discuss with
      [Figueroa] the advantages and disadvantages of appealing the
      judgment of sentence[,] when there was a non-frivolous
      appealable issue that was raised in the trial court[,] which was the
      legality and constitutionality of [Figueroa’s] arrest?

Brief for Appellant at 2.

      Figueroa first claims that the PCRA court improperly denied reinstating

his direct appeal rights. Id. at 6. According to Figueroa, Attorney Coleman

rendered ineffective assistance by not discussing with him an appeal issue

regarding the denial of his suppression Motion.     Id.   Specifically, Figueroa

argues that the suppression issue “was non-frivolous[,] and even the trial

court thought the police officer was mistaken because no buy money or heroin

was found on [Figueroa] at the time of the arrest.” Id. Figueroa asserts that


                                     -2-
J-S44044-18


the issue was preserved before trial; if Attorney Coleman had discussed the

issue after trial, he would have directed counsel to file a direct appeal; and

counsel’s inaction caused him to lose his right to challenge the legality and

constitutionality of his arrest on appeal. Id.

      In its Opinion, the PCRA court set forth the appropriate law, addressed

Figueroa’s claim, and concluded that it lacks merit. See Trial Court Opinion,

11/28/17, at 2-3 (setting forth the facts underlying Figueroa’s claim), 3-4

(addressing Figueroa’s claim of ineffective assistance of counsel). We agree

with the sound reasoning of the trial court, as set forth in its Opinion, and

affirm on this basis regarding Figueroa’s claim. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/18




                                     -3-
                                                                                          Circulated 08/07/2018 04:04 PM



                                                                                                                          FILED
            IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA           NOV 2·s 2017
                            TRIAL DIVISION - CRIMINAL           Office of Judicial Records
                                                                                                         Appeals/Post Trial
COMMONWEALTH OF PENNSYLVANIA
                                                              CP-5 l-CR-0001431-2014

       v.
                                                              2666 EDA 2017
                                                                   r -CP-51-CR-0001431-2014 Comm. v   Figueroa, Ped-;
                                                                                        Op1nton
PEDRO FIGUEROA


                                             OPINION               i
                                                                           IIIIIII II 1111111111111111
                                                                                   8034399921
                                                                    \.._                                 - - --    "_,/




        This appeal arises from an order this Court entered on July 25, 2017, dismissing Pedro

Figueroa's petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"),

alleging ineffective assistance of counsel. The Court committed no error in dismissing Mr.

Figueroa's petition, and respectfully requests that the Superior Court affirm its decision for the

reasons set forth below.

                                              FACTS

Procedural History

       On January 28, 2015, this Court denied Mr. Figueroa's motion to suppress evidence and

found him guilty at a waiver trial of intentional possession of a controlled substance. The Court

acquitted Mr. Figueroa of a felony charge of possession with intent to deliver. The Court

sentenced Mr. Figueroa to 9-23 months in prison with immediate parole after serving nine

months and one year ofreporting probation. See Docket entry January 28, 2015. Mr. Figueroa

was represented by Joseph Coleman, an assistant defender at the Defender Association of

Philadelphia. Notes of Testimony 7/25/2017 ("N.T.") at 15:6-12. Mr. Figueroa filed a prose

PCRA petition on May 17, 2016. Mr. Figueroa's appointed PCRA counsel, John P. Cotter,

amended the petition on November 15, 2016 and November 22, 2016, alleging ineffective
assistance of counsel. Docket entries dated May 17, 2016, November 1, 2016, November 22,

2016. The Court dismissed Mr. Figueroa's PCRA petition after a hearing on July 25, 2017. See

Order dated July 25, 201 7.

Factual History

       Mr. Figueroa testified at his PCRA hearing that after the verdict he told Mr. Coleman that

he wanted to appeal the verdict, but that Mr. Coleman advised him against it because he could be

retried for possession with intent to deliver. N.T. at 16:24-17:9; 32:3-11. Mr. Figueroa testified

that, as a result of that alleged advice, he decided not file a timely appeal within 30 days of his

conviction. Id at 17:19-21.

       In contrast, Mr. Coleman testified that this conversation never happened, that he was well

aware that a defendant cannot be retried on a charge on which he had been found not guilty, and

that he would never tell a client otherwise. Id. at 41 :13-23. Mr. Coleman testified that he served

as a public defender for three years and that it was his standard practice to advise his clients of

their appellate rights immediately after a conviction and to inquire whether they wish to appeal.

Id. at 36:15-16; 41:8-12. In this case, after Mr. Figueroa's conviction, Mr. Coleman advised him

on the record of his right to appeal within 30 days and never heard from him regarding any

interest in appealing the conviction. Notes of Testimony 1/28/15 at 94:14-18; N.T. at 43:10-20.

       Mr. Figueroa testified that he later learned in the prison law library that he could not be

retried for a crime for which he had been acquitted. This led him to file a motion to appeal his

conviction nunc pro tune. Id. at 18:2-5. At his PCRA hearing, Mr. Figueroa admitted that he

included false information in his motion to appeal nunc pro tune hoping, as a result, "the process

would be faster." Id. at 24:12-17; 25:6-15. Mr. Figueroa testified that although he wrote in his

motion that he sent Mr. Coleman a letter requesting an appeal 20 days after his sentencing, in



                                                  2
reality he never contacted Mr. Coleman and never asked Mr. Coleman in writing to appeal his

conviction. Id. at 25:6-15; Commonwealth's Ex. ("C")-1.

       The Court observed the demeanor of both Mr. Figueroa and Mr. Coleman, and

considered Mr. Figueroa's admission that he lied in his nunc pro tune motion. The Court found

Mr. Coleman's testimony credible and Mr. Figueroa's testimony incredible.

                                          DISCUSSION

       A.      Standard of Review

       When reviewing the trial court's denial of a petition for relief under the PCRA, the

Superior Court is limited to determining whether the record supports the trial court's findings

and whether the trial court's order is otherwise free oflegal error. Com. v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001). A reviewing court must grant deference to the credibility findings of the

PCRA court, and is bound by these determinations, if the record contains support for them. Com.

v. Abu-Jamal, 720 A.2d 79, 93 (Pa. 1998). The PCRA court's legal conclusions are reviewed de

novo on appeal. Com. v. Chmiel, 3 0 A. 3d 1111, 1127 (Pa. 2011 ).

       B.      The Court Did Not Err in Denying Mr. Figueroa PCRA Relief

       The PCRA provides relief to convicted criminals whose sentences result from the

ineffective assistance 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)(ii)

(1998) (codification of Pennsylvania PCRA). Under Pennsylvania law, counsel is presumed to be

effective. Com. v. Rollins, 738 A.2d 435, 441 (Pa. 1999). Counsel's failure to perfect a direct

appeal requested by a client constitutes ineffective assistance of counsel for which relief can be

obtained under the PCRA. Com. v. Lantzy, 736 A.2d 564, 570 (Pa. 1999). However, "a defendant

who explicitly tells his attorney not to file an appeal plainly cannot later complain that; by



                                                  3
following those instructions, his counsel performed deficiently". Roe v. Flores-Ortega, 528 U.S.

4 70, 4 77 (2000). If counsel has consulted with the defendant regarding an appeal, counsel is only

deficient if he fails to file an appeal requested by the client. Id. at 4 78.

        Mr. Coleman was not ineffective in his representation of Mr. Figueroa. Mr. Coleman

never counseled Mr. Figueroa that he could be retried on the charge of possession with intent to

distribute for which he was previously acquitted. Id. at 41: 13-23. Instead, Mr. Figueroa never

contacted Mr. Coleman to appeal his conviction, and then lied about his counsel's performance,

alleging that Mr. Coleman failed to file a requested appeal on his behalf. Id. at 24: 12-17; 25 :6-

15; 31:15-23; 33:10-20; 35:3-6; C-1; C-2.

         Mr. Coleman counseled Mr. Figueroa regarding his appellate rights in open court, and

Mr. Figueroa never instructed Mr. Coleman to file an appeal on his behalf. Id. at 43: 10-20. Mr.

Coleman acted in accordance with his responsibility as counsel and cannot be found deficient for

not filing an appeal that he was not instructed to file.

                                             CONCLUSION


        For the foregoing reasons, this Court respectfully requests that the Superior Court affirm

its decision in this matter.


                                                                                              J.




November 27, 2017




                                                     4
