Com. v. Piedra, E. (memorandum)

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J-S59028-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ERASMO M. PIEDRA Appellant No. 595 EDA 2013 Appeal from the PCRA Order January 16, 2013 In the Court of Common Pleas of Chester County Civil Division at No(s): CP-15-CR-0001234-2007 CP-15-CR-0001882-2007 CP-15-CR-0001922-2007 CP-15-CR-0001966-2007 BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.* MEMORANDUM BY PANELLA, J. FILED DECEMBER 04, 2013 Appellant, Erasmo M. Piedra, appeals from the order entered January 16, 2013, by the Honorable Ronald C. Nagle, Court of Common Pleas of Chester County, which denied his petition filed pursuant to the PostConviction Relief Act (PCRA). We affirm. Following a jury trial, on May 23, 2008, Piedra was convicted of multiple counts of possession with intent to deliver a controlled substance and other drug-related charges.1 On July 21, 2008, the trial court sentenced ____________________________________________ * Former Justice specially assigned to the Superior Court. For a detailed summary of the facts of this case, we direct the reader to pages three through seven of Judge Nagle s memorandum opinion, filed March 20, 2013. 1 J-S59028-13 Piedra to a term of 17 to 30 years imprisonment, to be followed by seven years probation. On appeal, this Court affirmed Piedra s judgment of sentence, and the Pennsylvania Supreme Court denied allocatur on March 30, 2011. Commonwealth v. Piedra, 15 A.3d 516 (Pa. Super. 2010), appeal denied, 610 Pa. 584, 19 A.3d 1050 (2011). On March 30, 2012, Piedra filed a timely PCRA petition. An amended petition was filed May 24, 2012. On January 16, 2013, following a hearing, the PCRA court denied Piedra s petition. This timely appeal followed. On appeal, Piedra raises the following issues for our review: 1. Was trial counsel s failure to properly advise Piedra to accept the District Attorney s offer of a plea agreement ineffective assistance of counsel? 2. Was trial counsel s failure to object to an erroneous jury instruction on the voluntariness of Piedra s confession and ask for a correct instruction ineffective assistance of counsel? 3. Was trial counsel s failure to object to an erroneous jury instruction on accomplice testimony and ask for a correct instruction ineffective assistance of counsel? 4. Did trial counsel render ineffective assistance when he failed to object to the prosecutor s improper comment on Piedra s silence at trial, and when counsel failed to move for a mistrial or a curative instruction? Appellant s Brief at 2. Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonewealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013) -2- J-S59028-13 (citation omitted). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. omitted). Court, Id. (citation The PCRA court's credibility determinations are binding on this where there is record support for those determinations. Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013). To establish ineffectiveness of counsel, a PCRA petitioner must show the underlying claim has arguable merit, counsel's actions lacked any reasonable basis, and counsel's actions prejudiced the petitioner. Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citation omitted). Prejudice means that, absent counsel's conduct, there is a reasonable probability the outcome of the proceedings would have been different. Id. If a reasonable basis exists for the particular course chosen by counsel, the inquiry ends and counsel s performance is deemed constitutionally effective. Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003), appeal denied, 574 Pa. 752, 830 A.2d 975 (2003) (citations omitted). A criminal defendant has the right to effective counsel during a plea process as well as during trial. Commonwealth v. Rathfon, 899 A.2d 365, (quotation 369 (Pa. Super. 2006) omitted). Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002) (citation omitted). Where the defendant enters -3- J-S59028-13 his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. Id. (citations and quotations omitted). Our trial courts are invested with broad discretion in crafting jury instructions, and such instructions will be upheld so long as they clearly and accurately present the law to the jury for its consideration. Commonwealth v. Simpson, 66 A.3d 253, 274 (Pa. 2013) (citation omitted). Where a defendant appeals a jury instruction, we consider the challenged instruction in its entirety, rather than isolated fragments. Id. Lastly, we note that the Fifth Amendment also protects a defendant's decision to not testify at trial from being commented on by the prosecution to the jury. See Commonwealth v. Fischere, 70 A.3d 1270, 1276 (Pa. Super. 2013) (citing Griffin v. California, 380 U.S. 609, 612, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). In reviewing an assertion of prosecutorial misconduct, our inquiry center[s] on whether the defendant was deprived of a fair trial, not deprived of a perfect trial. Commonwealth v. Sneed, 45 A.3d 1096, 1110 (Pa. 2012) (citation omitted). A prosecutor's remarks do not constitute reversible error unless their unavoidable effect would prejudice the jurors, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Id. With the above standards of review in mind, and after examining the briefs of the parties, the ruling of the PCRA court, as well as the applicable -4- J-S59028-13 law, we find that Judge Nagle s ruling is supported by the record and free of legal error. We further find that the PCRA court ably and methodically addressed Peidra s issues raised on appeal. Accordingly, we affirm on the basis of Judge Nagle s thorough and well-written opinion. See PCRA Court Opinion, filed 3/20/13. Order affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/4/2013 -5-

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