Com. v. Orlando, M. , 156 A.3d 1274 ( 2017 )

J. S63010/16
2017 Pa. Super. 52
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL ANTHONY ORLANDO, : No. 2505 EDA 2015
:
Appellant :
Appeal from the PCRA Order, July 20, 2015,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0007180-2010
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 28, 2017
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
* Former Justice specially assigned to the Superior Court.
J. S63010/16
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.
-2-
J. S63010/16
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
-3-
J. S63010/16
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
-4-
J. S63010/16
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
-5-
J. S63010/16
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
(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 [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 issue[ 1]
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).
1
The first issue was disposed of by the PCRA court and is not before this
court on appeal.
-6-
J. S63010/16
(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 does not fall among the activities proscribed
by 18 Pa.C.S.[A.] § 911 (relating to corrupt
organizations) and therefore he should not have pled
guilty to this charge. (F) [Appellant’s] counsel was
ineffective for allowing him to plead guilty to corrupt
organizations when his prerequisite offense cannot
be racketeering activity under the corrupt-
organizations statute, 18 Pa.C.S.[A.] § 911.
Counsel’s amended petition asked the Court to
vacate the judgments of sentence and discharge
[appellant].
....
At the hearing, [appellant] presented two
witnesses: Assistant Public Defender Roberts and
[appellant]. The Commonwealth’s case consisted of
cross-examining the witnesses.
We here highlight the pertinent portions of
Mr. Roberts’s testimony under questioning from
Mr. Walsh on the issues raised in the amended
petition (whether Roberts was ineffective for not . . .
arguing delivery of cocaine was not a predicate
offense of corrupt organizations/racketeering
activity):
Id. at 9-11.
Q. Now, one of the charges was corrupt
organizations; is that correct?
A. Yes.
Q. Okay. And are you familiar with the corrupt
organizations statute?
-7-
J. S63010/16
A. That’s a pretty lengthy one, but basically
familiar with it. It has been awhile since I
looked at it.
Q. Okay. Do you specifically recall one of the
underlying crimes is the violation of the
Control[led] Substance, Drug, Device and
Cosmetic Act?
A. Yes.
....
Q. All right. . . .
. . . The act itself says – right after act, it has
in parentheses, relating to the sale and
dispensing of narcotic drugs.
Do you recall that?
A. Yes, sir.
Q. Did you ever talk to him about making a
defense that cocaine is not a narcotic drug?
A. No, I didn’t.
Id. 13-14, quoting notes of testimony, 9/18/14 at 8-9.
The salient points of [appellant’s] testimony on
direct examination were that Roberts had never
discussed corrupt organizations requiring the sale of
narcotics and that [appellant] would not have pled
guilty had the issue been presented to him with the
argument that no relationship to Montgomery County
could have been established without the corrupt
organizations. . . .
On July 20, 2015, we dismissed the post-conviction
petition, and denied [appellant’s] request for post-
conviction relief. A notice of appeal of our order
followed on August 18, 2015, and was docketed in
the Superior Court on August 25, 2015.
-8-
J. S63010/16
Id. at 18-20.
Appellant raises the following issue for this court’s review:
1. WAS TRIAL COUNSEL INEFFECTIVE FOR
PLEADING THE APPELLANT GUILTY TO
CORRUPT ORGANIZATIONS WHERE THE
ALLEGED PREDICATE OFFENSE OF
POSSESSION WITH INTENT TO DELIVER
COCAINE IS NOT A PREDICATE OFFENSE
UNDER THE CORRUPT ORGANIZATIONS ACT?
Appellant’s brief at 3.
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
id. § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[.]” Id.
§ 9543(a)(4).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
“A criminal defendant has the right to effective
counsel during a plea process as well as during trial.”
[Commonwealth v. Hickman, 799 A.2d 136, 141
(Pa.Super. 2002)]. “A defendant is permitted to
withdraw his guilty plea under the PCRA if ineffective
-9-
J. S63010/16
assistance of counsel caused the defendant to enter
an involuntary plea of guilty.” Commonwealth v.
Kersteter, 877 A.2d 466, 468 (Pa.Super. 2005).
We conduct our review of such a claim in
accordance with the three-pronged
ineffectiveness test under section
9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A.
§ 9543(a)(2)(ii). See [Commonwealth
v.] Lynch[, 820 A.2d 728, 732
(Pa.Super. 2003)]. “The voluntariness of
the plea depends on whether counsel’s
advice was within the range of
competence demanded of attorneys in
criminal cases.” Id. at 733 (quoting
Commonwealth v. Hickman, 2002 PA
Super 152, 799 A.2d 136, 141
(Pa.Super. 2002)).
In order for Appellant to prevail on a
claim of ineffective assistance of counsel,
he must show, by a preponderance of
the evidence, ineffective assistance of
counsel which, in the circumstances of
the particular case, so undermined the
truth-determining process that no
reliable adjudication of guilt or innocence
could have taken place.
Commonwealth v. Kimball, 555 Pa.
299, 724 A.2d 326, 333 (Pa. 1999).
Appellant must demonstrate: (1) the
underlying claim is of arguable merit;
(2) that counsel had no reasonable
strategic basis for his or her action or
inaction; and (3) but for the errors and
omissions of counsel, there is a
reasonable probability that the outcome
of the proceedings would have been
different. Id. The petitioner bears the
burden of proving all three prongs of the
test. Commonwealth v. Meadows,
567 Pa. 344, 787 A.2d 312, 319-20
(2001).
- 10 -
J. S63010/16
Commonwealth v. Johnson, 868 A.2d 1278, 1281
(Pa.Super. 2005).
Kersteter, 877 A.2d at 469-69. Moreover, trial
counsel is presumed to be effective.
Commonwealth v. Carter, 540 Pa. 135, 656 A.2d
463, 465 (1995).
Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa.Super. 2006).
In the context of a plea, a claim of ineffectiveness may provide relief
only if the alleged ineffectiveness caused an involuntary or unknowing plea.
See Commonwealth v. Mendoza, 730 A.2d 503, 505 (Pa.Super. 1999).
“[A] defendant is bound by the statements which he makes during his plea
colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. 1997)
(citations omitted). As such, a defendant may not assert grounds for
withdrawing the plea that contradict statements made when he entered the
plea. Id. (citation omitted).
Here, appellant argues that had his counsel been effective, he would
not have pled guilty to the corrupt organizations charge, 18 Pa.C.S.A. § 911.
He argues that counsel was ineffective in that counsel did not advise him
that the statute did not apply to him because cocaine is not a narcotic drug
and corrupt organizations only applies to the sale and dispensing of narcotic
drugs under The Controlled Substance, Drug, Device and Cosmetic Act
(“Drug Act”) (relating to the sale and dispensing of narcotic drugs), 35 P.S.
§ 780-113. We disagree that this interpretation is valid.
As set forth by the PCRA court:
- 11 -
J. S63010/16
The corrupt-organizations statute defines the
“racketeering activity” required for a corrupt-
organizations conviction, in part, as “[a]n offense
indictable under [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. § 911(h)(1)(ii). Cocaine is not a
“narcotic” as defined in the Drug Act, 35 P.S. § 780-
102(b) (defining “narcotic”), but rather is listed
elsewhere in the Act as a Schedule II controlled
substance. 35 P.S. § 780-104(2)(i)(4) (defining
cocaine and related substances as controlled
substances under Schedule II).
Counsel focuses on the parenthetical reference
in 18 Pa.C.S. § 911(h)(1)(ii) to the section of the
Drug Act prohibiting illegal drug-related activity
generally, 35 P.S. § 780.113 (encompassing all
illegal controlled substances), that refers to that
section as “relating to the sale and dispensing of
narcotic drugs.” 18 Pa.C.S. § 911(h)(1)(ii). Counsel
denominates the quoted language a “proviso” to the
statute and applies the rule of statutory construction
of 1 Pa.C.S. § 1924, “Provisos shall be construed to
limit rather than to extend the operation of the
clauses to which they refer.” (Br. Supp. Pet’r’s Am.
Post-Conviction Relief Act Pet. 10.) However,
counsel offers no statutory analysis to show the
parenthetical reference to the Drug Act in 18 Pa.C.S.
§ 911(h)(1)(ii) is a “proviso” to a “clause” rather
than a mere “parenthetical reference” to a section of
the Drug Act; and in fact 35 P.S. § 780-113 nowhere
in its heading or extensive text, that we can see,
contains the reference “relating to the sale and
dispensing of narcotic drugs” that by the corrupt-
organizations statute, 18 Pa.C.S. § 911(h)(1)(ii),
supplies. (The statutory heading of section 780-113
reads simply, “Prohibited acts; penalties.”)
PCRA court opinion, 12/21/15 at 38.
A review of the definitions set forth in 18 Pa.C.S.A. § 911(h)(1) shows
that many of the indictable acts constituting racketeering activity fall under
- 12 -
J. S63010/16
general and specific statutory sections. For instance, an act indictable under
the Crimes Code can either include whole chapters of the Crimes Code or
may be limited to only specific sections of a particular chapter.
Section 911(h)(1) refers to an act which is “indictable under Chapter 29
(relating to kidnapping).” The title of the entire Chapter 29 is “Kidnapping.”
However, along with kidnapping, Chapter 29 includes such crimes as
unlawful restraint, false imprisonment, and interference with the custody of
children. Any of these offenses would also be indictable offenses under
Section 911(h)(1). In contrast, Section 911(h)(1) refers to specific sections
of the Crimes Code such as Section 2706 of Chapter 27, relating to
terroristic threats. Chapter 27 includes other crimes such as recklessly
endangering another person, which are not included under
Section 911(h)(1). Similarly, had the General Assembly intended for
Section 911(h)(1) to apply to only particular sections or schedules defined
by 35 P.S. §780-104 of the Drug Act rather than the Drug Act as a whole, it
would have so indicated.2 The offense indictable under by the Drug Act is
the unauthorized possession, sale, and distribution of controlled substances.
35 P.S. §780-113. Cocaine is a controlled substance under the Drug Act.
2
We note that this court in Commonwealth v. Hunter, 768 A.2d 1136
(Pa.Super. 2001), and Commonwealth v. Rickabaugh, 706 A.2d 826
(Pa.Super. 1997), affirmed convictions for corrupt organizations that
involved the selling of cocaine, a non-narcotic drug. However, these cases
did not address head-on the issue presented here of whether selling
non-narcotic drugs in conspiracy with others qualifies as racketeering
activity.
- 13 -
J. S63010/16
As a result, this court agrees with the PCRA court that appellant failed
to establish that his claim that he received ineffective assistance of counsel
had arguable merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2017
- 14 -