Commonwealth v. Orlando

• Citation: 156 A.3d 1274
• Decision Date: 28 February 2017
• Docket Number: No. 2505 EDA 2015,2505 EDA 2015
• Parties: COMMONWEALTH of Pennsylvania v. Michael Anthony ORLANDO, Appellant
• Court: Pennsylvania Superior Court

156 A.3d 1274

COMMONWEALTH of Pennsylvania

v.Michael Anthony ORLANDO, Appellant

No. 2505 EDA 2015

Superior Court of Pennsylvania.

Submitted July 25, 2016

Filed February 28, 2017

Francis M. Walsh, Norristown, for appellant.

Kelly M. Sekula, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,^* JJ.

OPINION BY FORD ELLIOTT, P.J.E.:

Michael Anthony Orlando appeals from the order entered in the Court of Common Pleas of Montgomery County that dismissed his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541 –9546 ("PCRA").

The PCRA court set forth the following:

The charges against [appellant] arose out of a multicounty drug-ring investigation run by the Pennsylvania Attorney General's Office before a statewide investigating grand jury. The grand jury recommended charges against over a dozen alleged coconspirators. Pertinent to [appellant]'s present appeal, the grand jury's presentment made findings of fact as follows:

In August 2009, members of the Pennsylvania Office of Attorney General's Bureau of Narcotics Investigations and Drug Control Region II, Philadelphia Office, began an investigation into the distribution of cocaine and other controlled substances in and around Philadelphia, Delaware, Sullivan[,] and Montgomery counties, Pennsylvania, and southern New Jersey. The investigation revealed a multi-faceted drug trafficking enterprise that consisted of fourteen members operating in Philadelphia, Delaware, Sullivan, and Montgomery counties in Pennsylvania and Gloucester County New Jersey.

Investigators learned that William Gilkin supplied Scott Campanella and Richard Derosa with multi-ounce quantities of cocaine. Campanella and Derosa ultimately redistributed the cocaine through a criminal organization to individuals involved in the drug enterprise in Philadelphia, Montgomery, and Sullivan counties, Pennsylvania, and southern New Jersey.

....

Based upon the interceptions and surveillance of Richard Derosa and others, agents identified seven individuals in Derosa's drug distribution network that involved individuals from Philadelphia, Delaware, and Montgomery counties in Pennsylvania.

The four [sic] individuals identified in Derosa's component of the cocaine distribution network include Shawn LeGrande, Scott Strader, Ricky Abate, and [appellant]. Investigation shows that from October 8, 2009[,] through December 6, 2009, Derosa supplied these individuals with quantities of cocaine ranging from multi-ounces to multi-grams.

PCRA court opinion, 12/21/15 at 1–2 (citations to the record omitted).

The Grand Jury learned that [appellant] obtained multi-ounce quantities of cocaine from Richard Derosa at least three times during this investigation. On March 10, 2010, Agent Michael Kelly identified [appellant] as a customer of Derosa's based upon several intercepted calls and text messages between Derosa and [appellant].

By way of example, Agent Michael Kelly testified that intercepted calls and text messages between Derosa and [appellant] on November 11, 2009, showed that [appellant] made arrangements to purchase two ounces of cocaine from Derosa. Furthermore, evidence shows that [appellant] provided the money to purchase the two ounces of cocaine to Derosa. Agent Kelly further testified that Derosa contacted Gilkin and ordered two ounces of cocaine and indicated that he would pick it up at Gilkin's residence. Intercepted calls show that Derosa was on his way to pick up [appellant] after leaving Gilkin's residence when members of the Philadelphia Police Department stopped and seized the suspected two ounces from Derosa's vehicle.

....

[Grand Jury Presentment, 10/20/10, Findings of Fact at 1, 5, 15–16.]

Based on the grand jury's presentment, the Attorney General's Office approved a police criminal complaint against [appellant], filed October 15, 2010 ... attaching, adopting, and fully incorporating the grand jury's presentment as part of the affidavit of probable cause. The complaint charged [appellant] with (A) four counts of the ungraded felony of delivering or possessing with intent to deliver cocaine, a Schedule II controlled substance, in or about July through December 6, 2009, in Philadelphia and Montgomery counties, in violation of 35 P.S. § 780–113(a)(30) ; (B) four counts of the felony of criminal conspiracy to do the same, in violation of 18 Pa.C.S.[A.] § 903 ; (C) two counts of the first-degree felony of engaging in corrupt organizations (through a pattern of racketeering activity as defined in 18 Pa.C.S.[A.] § 911(h)(1) ) from July 2009 through December 6, 2009, "at various locations throughout Philadelphia[ ] and Montgomery [c]ounties, Pennsylvania" in violation of 18 Pa.C.S.[A.] § 911(b)(3), (4), respectively; (D) four counts of the first-degree felony of dealing in the proceeds of unlawful activity (money received in payment for cocaine), in violation of 18 Pa.C.S.[A.] § 5111(a)(1) ; and (E) four counts of the third-degree felony of criminal use of a communication facility, in violation of 18 Pa.C.S.[A.] § 7512.

....

At a preliminary hearing scheduled for October 13, 2010, before a magisterial district judge, the Commonwealth withdrew the four counts of dealing in the proceeds of unlawful activity, and the remaining charges were waived over to Court. The Commonwealth filed a bill of information charging [appellant] with the remaining fourteen counts together with a notice pursuant to Pa.R.Crim.P. 582(B)(1) that they would be tried together with charges against seven of the other alleged coconspirators in the drug ring.

On the date set for trial, February 28, 2012, [appellant] appeared and pled guilty to one of the counts of possessing cocaine with intent to deliver and one count of corrupt organizations, and the Court granted the Commonwealth's motion to nol-pros the numerous other counts charged in the original information. In a written colloquy he signed, and initialed on each page, [appellant] agreed to incorporate into the record the factual accusations from the police affidavit of probable cause, which included the grand jury's presentment. After an oral colloquy with [appellant] complying with Pa.R.Crim.P. 590 & cmt. that we found established his plea was knowing, intelligent, and voluntary, we also admitted this written colloquy into the record.

In addition, [appellant] pled guilty to a new felony of delivering a controlled substance that had just arisen the Friday before the Tuesday hearing on the plea. In the new case, police had arrested [appellant] in Philadelphia after he sold a substantial quantity of Oxycontin, a Schedule II controlled substance. The Commonwealth filed an amended bill of information charging a new violation of 35 P.S. § 780–113(a)(30), and, under a "global" agreement, [appellant] gave up his right to contest the new charge in Philadelphia and the Attorney General agreed to advise the Philadelphia District Attorney to withdraw the charges pending there.

Id. at 3–6.

Upon accepting [appellant]'s plea to the three charges (for which he was advised he could face up to thirty to sixty years in prison) the Court sentenced him to the agreed-upon three concurrent terms of three to six years' incarceration with credit for time served on each. We found [appellant] eligible under the Recidivism Risk Reduction Incentive Act (RRRI), 61 Pa.C.S.[A.] § 4505, calculating his minimum RRRI sentence as twenty-seven months. Pursuant to the agreement, we imposed no fine, but ordered the $5,950 "buy money" seized from [appellant's] person in the recent arrest forfeited to the Commonwealth.

[Appellant] did not appeal the judgment of sentence, but from November 2012 through January 2013 he filed a series of out-of-time pro se requests to reconsider and reduce the sentence nunc pro tunc. We denied these requests, finding we no longer had the ability to reconsider the agreed sentence, but granted a separate motion [appellant] filed during the same period to represent himself pro se under Faretta v. California , 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (1975)....

On January 24, 2013, [appellant] filed a petition for relief under the PCRA, again stating he did not want a lawyer and asserting the right to proceed pro se. This time, after initial review, we, on February 21, 2013, sua sponte scheduled a video [Commonwealth v. ] Grazier [552 Pa. 9, 713 A.2d 81 (Pa. 1998) ] hearing for March 26, 2013, to determine whether [appellant's] waiver of his rule-based right to post-conviction counsel was knowing and voluntary. ... After hearing, we found that [appellant] did not wish knowingly and voluntarily to waive counsel, and, on April 2, 2013, we appointed Francis M. Walsh, Esquire, to represent [appellant], giving counsel advance leave under Pa.R.Crim.P. 905(A) to file an amended petition for post-conviction collateral relief, if appropriate.

On February 4, 2014, Walsh filed an amended petition for post-conviction relief, which was subsequently served upon the Court. The amended petition raised two claims that [appellant's] counsel on the plea was ineffective. ... The second issue¹ we believe can be fairly summarized thusly: (A) [Appellant] pled guilty to corrupt organizations with regard to his possessing with intent to deliver cocaine. (B) To be guilty of corrupt organizations a defendant must be involved in racketeering activity as defined in 18 Pa.C.S.[A.] § 911(h)(1), meaning he had to be involved with certain types of crimes. (C) Among the offenses that may constitute racketeering activity is violation of 35 P.S. § 780–113"known as The Controlled Substance, Drug, Device and Cosmetic Act (relating to the sale and dispensing of narcotic drugs)," 18 Pa.C.S.[A.] § 911(h)(1)(ii). (D) Cocaine is not among the controlled substances the Act defines as a "narcotic," 35 P.S. § 780–102(b).... (E) Because only narcotic drugs, under the Drug Act, are cognizable for racketeering activities, [appellant's] possessing with intent to deliver cocaine

...