Com. v. Rivera

• Decision Date: 23 January 2003
• Citation: 816 A.2d 282
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Americo T. RIVERA, Appellant.
• Court: Pennsylvania Superior Court

816 A.2d 282

COMMONWEALTH of Pennsylvania, Appellee v. Americo T. RIVERA, Appellant.

Superior Court of Pennsylvania.

Submitted October 7, 2002.

Filed January 23, 2003.

Vincent J. Quinn, Lancaster, for appellant.

Donald R. Totaro, Assistant District Attorney, Lancaster, for Com., appellee.

Before: MUSMANNO, GRACI, and MONTEMURO¹, JJ.

GRACI, J.

¶ 1 Appellant, Americo T. Rivera ("Rivera"), appeals from an order entered in the Court of Common Pleas of Lancaster County on December 20, 2001, denying his petition for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 ("PCRA"). We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 The relevant facts in this case were aptly summarized by this Court in its Memorandum decision of July 28, 1997:

On May 4, [1995], at approximately 8:20 p.m., Detective Gregory P. Macey of the Lancaster Bureau of Police, along with twelve (12) other officers, executed a search warrant for the premises at 504 South Prince Street, Lancaster, Pennsylvania. Detective Macey knocked on the door and waited twenty (20) seconds before a Spanish male came to the door. Detective Macey claimed that the Spanish male later moved away from the door. As a result of the individual's failure to open the door, Detective Macey used a battering ram to strike and open the door.

When Detective Macey entered, he saw several people running toward the back of the residence. Also, Detective Macey said he heard people running up the steps to the second floor. When Detective Macey arrived on the third floor, Detective Jan Walters was holding Mr. Rivera. Detective Macey saw three people on the roof of the third floor.

When all occupants of the residence were downstairs in the livingroom, Detective Macey read the search warrant. Then, Ms. Sandra Rivera, Mr. Rivera's mother arrived home. Detective Macey claimed that he read Miranda rights off a card to all the occupants. According to Detective Macey, Mr. Rivera stated: "Anything you find in the house is mine" and "anything you find here I'll take responsibility for." Detective Macey explained in his testimony that the statement was made prior to the search.

While all the occupants of the residence were seated in the living room, Detective Macey threatened to charge Ms. Rivera with constructive possession. At that point, Antonio Mendoza, Mr. Rivera's younger brother, led police to the second floor hallway closet. Mr. Mendoza said: "The sh-t is mine, I'll show you where it is." He then pointed out a blue first-aid kit in the hallway closet.

Memorandum, 7/28/97, at 1-3 (quoting Appellant's Brief). A search of the blue first aid kit revealed the following items: a binocular pouch containing thirty-two clear plastic knotted bags, each containing approximately 1.3 grams of cocaine; one clear plastic bag containing several small pieces of suspected crack cocaine; one box of clear plastic sandwich bags identical to the ones used to package the cocaine; two single edged razor blades with crack cocaine residue on the blades; approximately twenty small red-tinted Ziploc bags commonly used in the packaging of controlled substances; and an electronic gram scale. N.T. Trial, 3/19/96, at 34:10-23, 37:18. The officers did not recover money or drugs from Mr. Rivera's person. Id. at 70:23-71:5. Rivera was arrested and charged with possession with intent to deliver cocaine, 35 Pa.C.S.A. § 780-113(a)(30), and criminal conspiracy, 18 Pa.C.S.A. § 903(a)(1).

¶ 3 Rivera was convicted by a jury of both charges and on May 10, 1996, was sentenced to an aggregate term of imprisonment of eight to twenty years. Trial counsel did not file post-trial or post-sentence motions on Rivera's behalf.

¶ 4 Following the entry of appearance by appellate counsel, Rivera filed a timely notice of appeal to this Court on June 10, 1996, claiming that (1) trial counsel had rendered ineffective assistance, (2) the evidence presented at trial was insufficient to sustain his conviction, and (3) his sentence was excessive and based upon improper considerations. This Court affirmed the judgment of sentence in an unpublished memorandum decision filed on July 28, 1997. Rivera did not seek further direct appellate review.

¶ 5 Rivera filed his first PCRA petition, pro se, on June 19, 1998. The PCRA court assigned Rivera's case to the Lancaster County Public Defender's Office. The public defender assigned to the case filed a motion to withdraw based upon his determination that "no arguable meritorious issues exist which may entitle [Rivera] to post-conviction relief." Motion To Withdraw As Counsel, at 1. On September 30, 1998, the PCRA court granted the withdrawal motion and entered notice of its intent to dismiss Rivera's PCRA petition. The petition was formally dismissed without a hearing on October 30, 1998.

¶ 6 Rivera filed a second PCRA petition, pro se, on November 30, 2000. On January 2, 2001, the PCRA court entered an order granting Rivera leave to seek post-conviction relief and appointing new counsel to represent him. In its order, the PCRA court (1) acknowledged that Rivera had not been advised of his right to appeal the dismissal of his first PCRA petition, and (2) granted counsel "45 days to file any amended application in which shall be raised all claims for relief, which shall include any claims on which [Rivera] continues to rely that were raised in his first PCRA petition." Order, 1/2/01. PCRA counsel filed an amended PCRA petition on Rivera's behalf contending that trial counsel had been ineffective in failing to object to certain alleged hearsay testimony, in pursuing a line of questioning that compounded the impact of such testimony, and in failing to request a hearing on the voluntariness of Rivera's alleged confession.

¶ 7 The PCRA court conducted a hearing and subsequently entered an order denying Rivera's petition for post-conviction relief on December 20, 2001. In its accompanying memorandum, the PCRA court specifically found that the issues raised had been previously litigated. Rivera filed a pro se notice of appeal from the PCRA court's order and present counsel was appointed on April 1, 2002.

¶ 8 In this appeal, Rivera presents two issues, neither of which were presented in the PCRA court: that his trial counsel was ineffective for (1) failing to file a meritorious motion to suppress evidence, and (2) failing to object to the improper impeachment of defense witness Antonio Mendoza. With respect to both of these issues, Rivera also argues that his direct appeal counsel, first PCRA counsel and second PCRA counsel rendered ineffective assistance by failing to preserve and raise the aforementioned claims.

II. DISCUSSION

¶ 9 At the outset it is necessary to clarify the procedural posture of this case. Rivera's first PCRA petition, which he filed pro se on June 19, 1998, was timely filed within one year of August 28, 1997, the date his judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b). The PCRA petition underlying the present appeal, which Rivera filed on November 30, 2000, would appear to be an untimely second petition. However, this Court has held that

every PCRA petitioner ... is entitled to meaningful appellate review of post-conviction claims raised in his first petition so long as that petition is timely filed. Where the dereliction of counsel or other circumstances for which the defendant is not responsible operate to waive those claims, the defendant's right to review remains to be discharged.

Consequently, when the defendant restates those claims in a second or subsequent PCRA petition that would be otherwise time-barred, we are compelled to recognize that the later petition is not an unentitled "second bite at the apple," but merely the first bite that he was unlawfully denied.

Commonwealth v. Ceo, 812 A.2d 1263 (Pa.Super.2002) (emphasis added) (citation omitted). See also Commonwealth v. Leasa, 759 A.2d 941 (Pa.Super.2000)

(where counsel's failure to file a brief prejudiced petitioner's rights under the PCRA, upon filing of appellant's "second" PCRA petition PCRA court properly granted appellant relief in the form of a nunc pro tunc appeal from the denial of his first petition and the appointment of counsel for purposes of instant appeal).

¶ 10 Here, the PCRA court's order of January 2, 2001, acknowledged that Rivera was never advised of his right to appeal the dismissal of his first PCRA petition. The court also granted counsel "45 days to file any amended application in which shall be raised all claims for relief, which shall include any claims on which [Rivera] continues to rely that were raised in his first PCRA petition." Order, 1/2/01. The amended PCRA petition filed on Rivera's behalf, which we now characterize as his first PCRA petition, was denied on December 20, 2001, following a hearing. In light of the above, we shall treat Rivera's present appeal as an appeal from the denial of his first PCRA petition and review the merits of the issues raised therein.

¶ 11 When reviewing the denial of post-conviction relief, this Court is limited to "examining whether the lower court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 520 (1997) (citation omitted). "To be eligible for relief under the PCRA, a petitioner must establish, as a threshold matter, that his allegations have not been waived." Commonwealth v. Abdul-Salaam, 808 A.2d 558, 560 (Pa. 2001). "An allegation is deemed waived `if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review [or] on appeal....'" 42 Pa. C.S.A. § 9544(b). "A petitioner can avoid a finding of waiver under the PCRA by making an adequate and properly layered claim of ineffective assistance of counsel at his first available opportunity to do so." Abdul-Salaam, 808 A.2d at 560 n. 3 (citation omitted). An adequate and properly layered claim must contain more than...