Com. v. Gonzalez

• Citation: 608 A.2d 528,415 Pa.Super. 65
• Parties: COMMONWEALTH of Pennsylvania v. Roberto Ramos GONZALEZ, Appellant.
• Decision Date: 08 May 1992
• Court: Superior Court of Pennsylvania

Page 528

608 A.2d 528

415 Pa.Super. 65

COMMONWEALTH of Pennsylvania v. Roberto Ramos GONZALEZ, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 21, 1991.

Filed May 8, 1992.

Allan L. Sodomsky, Reading, for appellant.

George C. Yatron, Dist. Atty., Reading, for Com., appellee.

Before DEL SOLE, POPOVICH and CERCONE, JJ.

CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Berks County, denying appellant's petition for relief under the Post Conviction Relief Act (PCRA). ¹ We affirm.

On September 23, 1988, appellant was convicted, after a jury trial, of possession of cocaine, ² possession with intent to deliver cocaine, ³ and two counts of criminal conspiracy. ⁴ Appellant was sentenced to two concurrent terms of imprisonment of fifteen to forty-eight months. He did not file a direct appeal of the judgment of sentence.

On January 23, 1989, appellant filed a pro se PCRA petition. Later, counsel (G. Roderick Snyder) was appointed to represent appellant, and he filed amendments to appellant's post-conviction petition. The lower court conducted a hearing on the petition on October 17, 1989 and on March 27, 1990, the petition for relief was denied. Appellant filed a timely appeal of the order denying his PCRA petition.

After the appeal was filed, counsel filed an Anders brief and a motion to withdraw as counsel. In his petition to withdraw, counsel noted that appellant might no longer desire his services. ⁵ This court remanded the case on March 14, 1991, for a hearing to determine whether appellant desired to proceed pro se, by privately retained counsel, or not at all. Commonwealth v. Gonzalez, 402 Pa.Super. 610, 614, 587 A.2d 786, 788 (1991). The remand noted that if the lower court determined that appellant wished to proceed pro se, then the court would also have to consider whether appellant had waived his right to counsel knowingly, intelligently, and voluntarily. Id. We also indicated that the lower court, on remand, had "the discretion to determine if appellant's desire to end present counsel's representation is merely a ploy to extend the proceedings, an attempt to circumvent counsel's assessment of frivolity of the instant appeal or a genuine desire to proceed pro se, with new counsel or not at all." Id. The panel of this court retained jurisdiction of the appeal. Id., 402 Pa.Superior Ct. at 615, 587 A.2d at 788.

On remand, the lower court scheduled a hearing for May 17, 1991. The docket entries indicate that post-sentence argument occurred on that date; however, the certified record on appeal does not contain a transcript of the May 17, 1991 hearing. ⁶ On May 17, 1991, the lower court issued three separate orders. In the first order, the lower court stated that appellant desired to proceed with his appeal, that he could not afford private counsel, and that he did not wish to proceed pro se. The court noted that since the PCRA petition which appellant has filed is his first post-conviction petition, he is entitled to counsel. In the second order of May 17, 1991, the lower court ordered that conflict counsel, Allan Sodomsky, Esquire, be appointed to "take any necessary steps with respect to the appeal." The third order of May 17, 1991 permitted appellant's prior counsel, G. Roderick Snyder, to withdraw. The lower court also noted in the third order that although some of appellant's motives with regard to his request for new counsel may have been inappropriate, there were sufficient grounds of an appropriate nature to permit counsel to withdraw.

Since the prior panel had retained jurisdiction, the case was returned to the Superior Court on August 21, 1991. Subsequently, counsel for appellant, Allan Sodomsky, Esquire, filed a brief on appellant's behalf. Appellant also filed a supplemental pro se brief. A brief on behalf of appellee, the Commonwealth, was also filed.

As we indicated in Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990) (en banc ), appeal granted 528 Pa. 636, 598 A.2d 992 (1991), we will not consider a pro se brief on appeal if a counseled brief "has been filed, either before, simultaneously with, or after the pro se, due to the judicial confusion and delay that ensues." Id. 398 Pa.Super. at 550, 581 A.2d at 600. It is only if the pro se brief alleges ineffectiveness of appellate counsel "or an affirmative desire to be heard pro se," that any action need be taken by the appellate court on the pro se brief. Id., 398 Pa.Superior Ct.at 550, 581 A.2d at 600-01. ⁷ In the instant case, the supplemental pro se brief filed by appellant does not contain any of the latter type allegations. Therefore, we will confine our review to the issues raised in appellant's counseled brief. ⁸ Those issues are as follows:

1. Whether the trial court erred in not sustaining appellant's contention that his prior counsel was ineffective for failing to file a motion to suppress the evidence?

2. Whether the trial court erred in not sustaining appellant's contention that his prior counsel was ineffective for failing to call a potential witness?

3. Whether the trial court erred in using inappropriate sentencing guidelines in sentencing appellant?

4. Whether the trial court erred in not sustaining appellant's contention that prior counsel was ineffective in failing to file an appeal?

Since three of appellant's allegations on appeal raise the issue of the ineffectiveness of trial counsel, we will first set forth our standard of review in regard to such a claim.

As a general principle, trial counsel is presumed to be effective and a defendant has the burden of proving otherwise. See Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). Moreover, to prevail on a claim of ineffectiveness, a defendant must demonstrate that the course followed by trial counsel was unreasonable, that another meritorious course was available and that defendant was prejudiced by counsel's ineffectiveness. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) and Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). Appellant's first contention is that the trial court erred in not sustaining his contention that prior counsel was ineffective for failing to file a motion to suppress certain evidence seized in connection with the charges filed against appellant. In reviewing this claim, we are confronted with a number of difficulties. Appellant's entire argument on this subject consists of a single paragraph which contains no record citation, although the record is referred to, and no citation to authority. Appellant merely contends, in unsupported fashion, that by failing to file a pre-trial motion to suppress based on his belief that there would be no basis for such a motion, trial counsel "usurped" the function of the trial judge to make that determination. This, appellant argues, denied him the opportunity to have a hearing on the merits of the suppression issue, and effectively denied him his "rights under the law."

It is well established that in making a claim of ineffective assistance of counsel, the petitioner must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective, because ineffectiveness claims will not be considered in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). The failure to develop an adequate argument in an appellate brief may also result in waiver of the claim under Rule 2119 of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P., Rule 2119, 42 Pa.C.S.A.; Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987), allocatur denied, 518 Pa. 617, 541 A.2d 744 (1988). See also Taurino v. Ellen, 397 Pa.Super. 50, 579 A.2d 925 (1990), allocatur denied, 527 Pa. 603, 589 A.2d 693 (1991) (claim on appeal is waived where appellant neither cites supportive precedent nor gives any reference to record evidence which substantiates argument).

In Commonwealth v. Long, supra, in which this court was confronted with a similar situation, we held:

The final claim made by Appellant is a bald allegation of ineffective assistance of counsel. Issue number nine states: "Did the defendant fail to have effective assistance of counsel at his trial?". In the Summary of Argument and Argument portion of Appellant's Brief, Appellant attempts to list numerous examples of trial counsel's ineffectiveness. Without citation to the record or supporting case law, Appellant asserts that his counsel was ineffective for failing to submit or argue a suppression or pretrial omnibus motion, failing to object to the introduction of documents at trial, failing to impeach witnesses, failing to seek the recusal of the trial judge, failing to call all possible defense witnesses and failing to move for the dismissal of all indictments. Appellant also submits that his attorney was unprepared to argue Appellant's case on the day of scheduled argument for Post Trial Motions. As with the other allegations of ineffectiveness, Appellant does not offer any support for his position. He does not indicate what arguments should have been made, or the merits of the matters he wished to present to the trial court. Since Appellant has failed to properly develop these issues, we will not consider the merits thereof. Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982); Pa.R.A.P., Rule 2119(a).

Commonwealth v. Long, 367 Pa.Super. at 198, 532 A.2d at 857. Appellant's "bare-bones" argument in the instant case is similarly unreviewable. He asserts only one isolated fact in support of his claim of ineffectiveness: that trial counsel testified at the PCHA hearing that he did not believe, after reviewing the search warrant, that there "was any merit to a pretrial motion." Appellant does not explain why this was an erroneous conclusion on the part of counsel. He does not discuss ...