J-S21013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                          Appellee

                     v.

ERIK LOPEZ TORRALBA

                          Appellant                    No. 2434 EDA 2018


               Appeal from the PCRA Order Dated June 8, 2018
            In the Court of Common Pleas of Montgomery County
                Criminal Division at No.: CP-46-CR-3427-2015


BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                               FILED JUNE 25, 2019

      Appellant Erik Lopez Torralba pro se appeals from the June 8, 2018

order of the Court of Common Pleas of Montgomery County (“PCRA court”),

which denied, without an evidentiary hearing, his request for collateral relief

under the Post Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-46.

Upon review, we vacate and remand.

      The facts and procedural history underlying this appeal are undisputed.

As recounted by a prior panel of this Court on direct review:

      Detective James Wood testified that, on April 14, 2015, he was
      participating in the investigation of a large-scale heroin trafficking
      operation in Norristown, Montgomery County, Pennsylvania. At
      approximately 1:10 p.m. on that date, Detective Wood was sitting
      in an unmarked car in the vicinity of Marshall and Arch Streets,
      waiting for uniformed officers to make a traffic stop of a 2005
      Acura suspected to be transporting a large quantity of heroin.
      Before the traffic stop could take place, the Acura pulled into a
      parking spot on Arch Street. There were three people inside the
      vehicle: the driver—subsequently identified as [Appellant]—and
      two passengers.
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     Accompanied by two uniformed officers, Detective Wood—who
     was in plain clothes with a bullet-proof vest with the word “Police”
     written on the front—approached the Acura. While the uniformed
     officers dealt with the passengers, Detective Wood went to the
     driver’s side of the Acura, where he encountered [Appellant]. The
     detective identified himself, informed [Appellant] that he was
     conducting a drug investigation, and directed [Appellant] to get
     out of the Acura, following which the detective performed a “pat
     down” of [Appellant] for officer safety. The “pat down” did not
     lead to the discovery of any weapons. Detective Wood testified
     that, although he was armed himself, his gun was concealed inside
     his police vest. The detective testified that he did not display his
     weapon at any point during his entire encounter with [Appellant].

     Detective Wood testified that his conversation with [Appellant] on
     Arch Street was conducted in a calm manner, with no threats
     made and no raised voices. The detective testified that he did not
     put his hands on [Appellant] apart from the “pat down.” The
     detective testified that, during the course of this conversation, he
     asked [Appellant] for permission to search the Acura, and that
     [Appellant] verbally consented to the search.

     Detective Wood, however, did not search the Acura at this point,
     but instead directed that [Appellant] be placed inside a marked
     police vehicle and transported to the Norristown Police Station.
     The detective himself then drove [Appellant’s] Acura to the police
     station, a trip of approximately one minute.

     Arriving at the police station at approximately 1:25 p.m.,
     Detective Wood retrieved a pre-printed “consent to search form”
     from another officer. The detective then directed [Appellant] to
     sit in the front passenger seat of the Acura while the detective sat
     in the driver’s seat. Detective Wood testified that he did this so
     that [Appellant] would not feel intimidated by all of the other
     officers moving around the station. Inside the Acura, Detective
     Wood asked [Appellant] if he would be willing to provide a written
     consent to searches of his car, residence and cellular telephone.
     [Appellant] agreed to provide a written consent to search.
     Detective Wood handwrote on the form specific identifying
     information for [Appellant’s] Acura, his address, and his cellular
     telephone.     The detective did not testify as to his asking
     [Appellant] for any identifying information concerning the Acura
     (i.e., the VIN number or registration number), and plainly had no
     reason to do so, as the license number and VIN number were
     readily apparent on the vehicle itself. In regard to [Appellant’s]
     phone, the detective testified that he had noted the presence of
     an iPhone on the center console of the vehicle and had asked
     [Appellant] if it was his. [Appellant] had replied that it was. The
     [Appellant] also provided Detective Wood with his address.
     Detective Wood testified that—prior to having [Appellant] sign the
     consent to search form—he read the form aloud to [Appellant] and


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     also asked [Appellant] to read it himself. On its face, the form
     stated in pre-printed language:

           I understand that I have the right to refuse the
           consent to search described above and the right to
           refuse to sign this form.

           I further state that no promises, threats, force,
           physical or mental coercion of any kind whatsoever
           have been used against me to get me to consent to
           the search described above or to sign this form.

     Detective Wood testified that he verbally informed [Appellant]
     that he was free to revoke his consent to search. Pressed on this
     issue in cross-examination by [defense counsel], Detective Wood
     testified: “I told him that he could stop the search at any time.”
     [The trial court] fully credited Detective Wood’s testimony in its
     entirety.

     [Appellant] signed the “consent to search” form, which was
     entered into evidence as CS-1. The detective testified that the
     handwritten identification information for the Acura, [Appellant’s]
     address, and the cell phone [were] all written on the form at the
     time [Appellant] signed it[.]

     Detective Wood testified that his entire discussion with [Appellant]
     inside the Acura was conducted calmly, with no threats, raised
     voices, or weapons displayed, and that [Appellant] was not
     handcuffed during the discussion.

     After [Appellant] signed the “consent to search” form, [Appellant]
     and Detective Wood exited the Acura. With [Appellant] standing
     to the side, Detective Wood and another officer conducted a
     fifteen minute search of the Acura, discovering nothing illegal at
     that time.

     Retaining [Appellant’s] cellular telephone for a subsequent search,
     Detective Wood then gave [Appellant] the keys to his Acura and
     asked him to drive to his residence for the search to which
     [Appellant] had consented. [Appellant] agreed, and Detective
     Wood and other officers followed [Appellant] to his home in
     separate vehicles. After arriving at [Appellant’s] home, Detective
     Wood and other officers searched the residence, ultimately
     discovering a large amount of what [] transpired to be heroin. A
     subsequent follow-up search of the Acura led to the discovery of
     more heroin concealed in the vehicle.

Commonwealth v. Lopez-Torralba, No. 2769 EDA 2016, unpublished

memorandum at 2-4 (Pa. Super. filed July 3, 2017) (citing Trial Court Opinion,

12/15/16, at 4-8) (internal citations omitted). Appellant was charged with

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two counts of possession of heroin with intent to deliver (35 P.S. § 780-

113(a)(30)), two counts of conspiracy to possess heroin with intent to deliver

(18 Pa.C.S.A. § 903(a)(1)), and one count of possession of drug paraphernalia

(35 P.S. § 780-113(a)(32)).      On February 26, 2016, Appellant filed an

omnibus pretrial motion, which included a motion to suppress the evidence

found in his vehicle, cellular telephone, and residence. On March 22, 2016,

the trial court conducted a suppression hearing, following which it denied

Appellant’s motion to suppress.      On March 30, 2016, a jury convicted

Appellant on all charges.    On August 4, 2016, the trial court sentenced

Appellant to an aggregate term of nine to eighteen years’ imprisonment. As

noted earlier, on July 3, 2017, a panel of this Court affirmed Appellant’s

judgment of sentence. Appellant did not file a petition for allowance of appeal

in our Supreme Court. As a result, Appellant’s judgment of sentence became

final on August 2, 2017.

      On November 21, 2017, Appellant pro se filed the instant PCRA petition,

raising claims for ineffective assistance of trial counsel.    The PCRA court

eventually appointed counsel, Attorney Robert Adshead, who then filed a no-

merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)

and petitioned to withdraw from the case. The PCRA court granted counsel’s

petition on April 18, 2018. The PCRA court subsequently issued a Pa.R.Crim.P.

907 notice of its intent to dismiss the petition without a hearing. Appellant

filed a response to the PCRA court’s Rule 907 notice, raising an ineffectiveness

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claim against his PCRA counsel, Attorney Adshead. On June 8, 2018, the PCRA

court denied Appellant PCRA relief without a hearing.           Appellant timely

appealed to this Court.

      The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal. Appellant complied. On July 31, 2018,

Appellant pro se filed a Rule 1925(b) statement, raising the following issues,

as reproduced verbatim:

            A. The PCRA Court abused its discretion in summarily
      dismissing the instant Post-Conviction petition without a hearing
      where Petitioner raised genuine issues of trial counsel’s
      ineffectiveness which, if resolved in his favor, would clearly entitle
      him to relief.     It is axiomatic, our Appellate Courts have
      admonished that the point in time at which a PCRA court may
      determine that a Petitioner’s claims are meritless or frivolous is
      “after the petitioner has been afforded a full and fair opportunity
      to present those claims.” Id. Commonwealth v. Kaufmann,
      592 A.2d 691, 695 (Pa. Super. 1991).

            In the instant PCRA proceeding, where PCRA counsel
      submitted a “no merit letter” and attached an “explanation letter”
      from trial counsel purportedly addressing the claims of trial
      counsel’s ineffectiveness raised in the initial-review post-
      conviction petition, and trial counsel fails to address or proffer a
      reasonable basis for his action or inaction alleged in the petition,
      then the PCRA court [must] conduct an evidentiary hearing. See
      Commonwealth v. Cousar, 154 A.2d 287, 297 (Pa. 2017)
      (“where PCRA counsel attaches an ‘affidavit’ from trial counsel
      that fails to proffer a ‘strategy’ pertaining to the claims of trial
      counsel’s ineffectiveness raised in the Post-Conviction petition,
      the PCRA court must conduct an evidentiary hearing to determine
      whether counsel can proffer a trial strategy for the alleged
      omissions”). Id.

            Without granting Appellant meaningful procedural tools,
      such as, PCRA discovery requested in his petition and an
      evidentiary bearing to prove he is entitled to relief, the instant
      PCRA proceeding was essentially delineated to nothing more than
      a meaningless exercise with no chance of success.

              B. Court Appointed PCRA Counsel, Robert Adshead, failed to
      fulfill his duty once he accepted appointment to provide Appellant
      meaningful assistance to afford him a full and fair opportunity to
      prove the meritorious claims of trial counsel’s ineffective

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     assistance raised for the first time in the instant initial-review
     post-conviction petition. Appellant raised in his pro se post-
     conviction petition genuine meritorious issues of trial counsel’s
     ineffectiveness which were clearly supported by the record. Here,
     it was impossible to discern whether a reasonable basis existed
     for trial counsel’s omissions alleged in Appellant’s pro se petition.
     It was improper for Attorney Adshead to divine alternative choices
     or strategy trial counsel could of had when trial counsel had not
     stated his reasons for the action or inaction. This is particularly
     true where Attorney Adshead attached an “explanation letter”
     from trial counsel to his “no merit letter” and trial counsel did not
     even address the issues raised in tie PCRA petition. It is not
     enough to take a cold record and submit a “no merit letter” and
     speculate or state alternative choices counsel could have made.

            C. The PCRA court erred in summarily dismissing the instant
     petition without addressing Appellant’s specific discovery request
     set forth in the petition in accordance with Pa.R.Crim.P.
     902(A)(16) and (E)(1). The discovery request specifically sought
     material evidence related to two of the claims raised, i.e.,
     “exploitation of an unlawful arrest” and “statements and audio
     phone recordings” between the confidential informant and
     Commonwealth key witness, Gladiz Basurto Leal. Basurto Leal did
     a one-on-one drug negotiation with the informant for the purchase
     of one kilogram of heroin. This discovery material was relevant
     to prove the “merits” and “prejudice” for counsel’s inexcusable
     failure to file a motion for the identity of the informant. Moreover,
     the informant’s statements and telephone recordings with Basurto
     Leal may have possibly revealed core Brady material. It was
     error for the PCRA court to summarily dismiss the instant petition
     without addressing Appellant’s specific discovery request set forth
     in his petition.

            D. The PCRA court denied Appellant a fundamental fair
     post–conviction process in violation of the Fourteenth Amendment
     to the United States Constitution and Article I, Section 9 of the
     Pennsylvania Constitution—where he was denied constitutionally
     guaranteed effective assistance of counsel as he would have
     enjoyed had he raised the instant claims of trial counsel’s
     ineffective assistance on direct appeal. As the PCRA court is
     aware, in accordance with the Pennsylvania Supreme Court’s
     decision in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
     2002), Appellant was required to defer raising claims of trial
     counsel’s ineffective assistance until the filing of an initial-review
     post-conviction proceeding.        Thus, given this is the first
     designated proceeding for raising trial counsel’s ineffective
     assistance, the instant collateral proceeding is in many ways the
     equivalent of Appellant’s direct appeal as to the ineffective
     assistance of trial counsel claims. As such, Appellant is entitled to
     the full procedural due process protections he would have been
     guaranteed had he been permitted to raise the instant claims of
     trial counsel’s ineffective assistance on direct appeal.



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             The Superior Court’s decision in Finley and the
       Pennsylvania Supreme Court’s decision in Turner pre-dated the
       decision in Commonwealth v. Grant, supra, by 14 years and it
       denies a Petitioner a fundamentally fair procedure to vindicate
       meritorious claims of trial counsel’s ineffective assistance raised
       for the first time in an initial-review collateral proceeding. Under
       the rule-based right to counsel in a first PCRA proceeding, and the
       Turner/Finley methodology, Attorney Adshead was permitted to
       take a cold record and file a “no merit letter” and argue against
       Appellant’s interest to support a request to withdraw. All too
       often, PCRA court’s routinely mechanically defer to PCRA counsel’s
       “no merit letter” and grant appointed counsel’s withdrawal
       request, thus, leaving Appellant proceeding pro se before the
       PCRA court and on appeal. The fundamentally unfair procedure
       employed here makes the rule based right to appointed counsel
       on a first PCRA petition and on appeal an illusion.

Appellant’s Rule 1925(b) Statement, 7/31/18 at 1-4 (sic). In response, the

PCRA court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant’s

assertions of error lacked merit.

       On appeal,1 Appellant raises four issues for our review:

       [I.] Did the post-conviction court abuse its discretion in summarily
       dismissing Appellant’s petition without a hearing when there was
       arguably meritorious issues of trial counsel’s ineffective assistance
       on the face of the record?

       [II.] Did court-appointed post-conviction counsel provide
       meaningful assistance in filing a “no-merit letter” when there was
       genuine issues of trial counsel’s ineffective assistance on the face
       of the record, if proven, would clearly entitle Appellant to post-
       conviction relief?

       [III.] Did the post-conviction court err in summarily dismissing the
       post-conviction relief act petition pursuant to counsel’s “no merit
       letter” without determining whether the specific discovery request
       set forth in the petition would give support to Appellant’s issues
       of trial counsel’s ineffectiveness assistance?


____________________________________________


1“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).

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      [IV.] Did the post-conviction court deny Appellant a fundamentally
      fair procedure to afford him an opportunity to prove the issues of
      trial counsel’s ineffective assistance which were deferred from
      direct review and designated to be raised for the first time in an
      initial-review post-conviction relief action petition essentially
      making it the equivalent of direct appeal as to the ineffective
      assistance of trial counsel issues?

Appellant’s Brief at 4 (unnecessary capitalizations omitted) (sic).

      Appellant essentially asserts six distinct issues, four of which relate to

ineffectiveness claims. Appellant argues that his trial counsel was ineffective

for: first, failing to challenge as illegal Appellant’s detention by the police

because the police allegedly lacked both reasonable suspicion and probable

cause and as a result, all evidence, including statements, obtained by the

police should have been suppressed as fruits of the poisonous tree; second,

failing to file motion to compel disclosure of the confidential informant’s

identity because the informant allegedly possessed information material and

favorable to Appellant’s case; third, failing to provide Appellant with adequate

and competent advice relating to a guilty plea offer that Appellant rejected;

and fourth, failing to object at the time of sentencing to the trial court’s alleged

error in not giving Appellant credit for time served while awaiting trial in this

case. Fifth, Appellant argues that his appointed PCRA counsel was ineffective

insofar as counsel failed to pursue the claims raised in his pro se PCRA petition

and as detailed above.       Sixth, the PCRA court erred in failing to grant

Appellant’s discovery requests.

      Instantly, given the complexity of the claims raised and the dearth of a

record below, we are unable to engage in any meaningful appellate review.



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Specifically, as Appellant notes, the PCRA court failed to conduct an

evidentiary    hearing    on    Appellant’s    ineffectiveness   claims   and   render

necessary factual findings.          We therefore cannot assess the merits of

Appellant’s claims or trial counsel’s tactical reasons for his trial decisions. As

a result, we must vacate the PCRA court’s order denying Appellant’s PCRA

petition and remand the matter to the PCRA court to conduct an evidentiary

hearing to address fully the claims identified above.2 If Appellant determines

other issues must be raised in response to the trial court’s decision, Appellant

shall be given the opportunity to amend his Rule 1925(b) statement, and

thereafter, the trial court shall supplement its decision to address these other

issues.

     Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/19




____________________________________________


2   We express no opinion as to the merits of Appellant’s ineffectiveness claims.

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