violation of Section 780-113(a)(3) “does not require that a party make a profit, it simply prohibits ‘delivery’” of controlled substances
How later courts described this case
- violation of Section 780-113(a)(3) “does not require that a party make a profit, it simply prohibits ‘delivery’” of controlled substances
- "[T]rial counsel cannot be found ineffective for electing not to raise [a] meritless claim. "
Written by the judges who cited it.
The opinion
J-S08026-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN RAMON TIBURCIO :
:
Appellant : No. 1379 MDA 2022
Appeal from the PCRA Order Entered August 30, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004618-2015
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: JULY 28, 2023
Juan Ramon Tiburcio (Appellant) appeals from the order entered in the
Berks County Court of Common Pleas denying his first petition for collateral
relief filed pursuant to the Post Conviction Relief Act (PCRA).1 Appellant seeks
relief from the judgment of sentence of an aggregate term of 11 to 60 years’
imprisonment, imposed following his jury conviction of, inter alia, two counts
of delivery of heroin, and one count of possession with intent to deliver (PWID)
heroin2 following a two-month, undercover investigation. On appeal,
Appellant raises six claims of trial counsel’s ineffectiveness. For the reasons
below, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9545.
2 See 35 P.S. § 780-113(a)(30).
J-S08026-23
The facts underlying Appellant’s convictions were summarized in a prior
decision of this Court:
[During the summer of 2015,] the Narcotics Enforcement Team of
the Berks County District Attorney’s Office (“Narcotics Team”) was
working undercover to purchase heroin from a suspect, Karla
Romig.
[Sergeant Todd Harris was in charge of the investigation.
On June 29 and July 20, 2015, Detective Camilla Karns, working
undercover with the help of a confidential informant (CI), made
two separate purchases of heroin from Romig. On each occasion,
Romig stated she was getting the drugs from “her guy.” The team
set up a third purchase for August 11th, at which time they
arrested Romig for drug offenses.]3
[Romig] then consented to Sergeant [ ] Harris’ use of her
phone to contact her supplier, later identified as Appellant. Posing
as Romig, Sergeant Harris texted Appellant. During the text
conversation, Sergeant Harris asked Appellant for “three whole
ones” which meant he was asking for three bundles of heroin.
Through the text conversation between Sergeant Harris (posing
as Romig) and Appellant, they arranged to have Appellant deliver
the drugs to Romig’s residence. Once Appellant arrived at the
residence, he sent a text message to Romig stating that he was
outside.
At that same time, the surveillance units working with
Sergeant Harris informed him that a Toyota Camry had pulled up
at the residence. Appellant exited the passenger side of the
Camry, operated by his brother Michael Tiburcio (“co-defendant”),
and started to walk up onto the porch of Romig’s residence. He
was then taken into custody. The Narcotics Team recovered from
Appellant’s person $818.00 in U.S. currency, two cellular
telephones, and a sandwich bag containing a bundle of 10 heroin
packets and another bundle of 9 heroin packets.
The Narcotics Team instructed the co-defendant to exit the
Camry. A subsequent search of the co-defendant led to the
recovery of a plastic sandwich bag containing 41 packets of crack
____________________________________________
3 See N.T. Jury Trial, 8/1/16 – 8/2/16, at 109-28, 204-05.
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cocaine, $296.00 in U.S. currency, a chunk of bulk cocaine and
one packet of powder cocaine. Following the administration of
Miranda[4] warnings, the co-defendant directed the Narcotics
Team to a small change drawer to the left of the steering wheel in
the Camry containing 15 additional packets of heroin. The
Narcotics Team also recovered the co-defendant’s cellular phone
from inside of the Camry. The co-defendant admitted to Detective
George Taveras of the Berks County District Attorney’s Office that
he was “willing to cooperate with law enforcement,” “he was doing
this to get by,” “times were tough,” and that “this was a very small
amount” and he can do “bigger things.”
Commonwealth v. Tiburcio, 1589 MDA 2016 (unpub. memo. at 2-3) (Pa.
Super. Aug. 22, 2017) (some paragraph breaks added).
Appellant was arrested and charged with two counts of delivery of
heroin, one count of PWID, and three counts each of criminal conspiracy,
criminal use of a communication facility, possession of drug paraphernalia,
and possession of a controlled substance.5 Kevin Feeney, Esquire was
appointed as trial counsel. On October 9, 2015, the Commonwealth notified
Appellant that it was consolidating his case with the charges against his
brother. See Notice of Consolidation, 10/9/15.
A two-day jury trial commenced on August 1, 2016. At the conclusion
of trial, the court granted Appellant’s motion for judgment of acquittal on two
of the three conspiracy charges. See N.T., Jury Trial, at 358-59. Thereafter,
____________________________________________
4 Miranda v. Arizona, 384 U.S. 436 (1966).
5 See 18 Pa.C.S. §§ 903(a)(1), 7512(a); 35 P.S. § 780-113(a)(16), (32).
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the jury returned a verdict of guilty on all of the remaining charges.6 See id.
at 449. On August 9, 2016, Appellant was sentenced to an aggregate term of
11 to 60 years’ imprisonment.7
Appellant filed a timely direct appeal8 raising three issues: (1) whether
the trial court erred when it permitted the Commonwealth to present expert
witness testimony when it did not disclose the expert to the defense before
trial, and such testimony was unnecessary; (2) whether the evidence was
sufficient to support his conviction of conspiracy; and (3) whether the
sentence imposed was excessive. See Tiburcio, 1589 MDA 2016 (unpub.
memo. at 4). A panel of this Court affirmed the judgment of sentence on
August 22, 2017. See id.
More than 30 days later, on September 27, 2017, the trial court received
a pro se letter from Appellant, stating that he asked Attorney Feeney to file a
petition for allowance of appeal with the Pennsylvania Supreme Court, but
that no petition had been filed. See Appellant’s Letter to Trial Court, 9/27/17.
____________________________________________
6 The jury also found co-defendant Michael Tiburcio guilty of two counts each
of PWID, criminal conspiracy, and possession of controlled substances. See
N.T., Jury Trial, at 450.
7 The trial court imposed consecutive sentences of 33 months to 15 years’
imprisonment on both counts of delivery of heroin, as well as the charges of
PWID and criminal conspiracy. It imposed concurrent terms of 18 months to
7 years’ imprisonment for each count of criminal use of a communication
facility. The remaining charges merged for sentencing purposes. See N.T.
Sentencing, 8/9/16, at 12-14.
8 Attorney Feeney continued to represent Appellant on appeal.
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Thereafter, on October 18, 2017, Appellant filed a pro se petition requesting
leave to file a petition for allowance of appeal nunc pro tunc. See Appellant’s
Petition for Leave of the Court to Grant Nunc Pro Tunc to the Petitioner the
Right to File a Petition for Allowance of Appeal to the Pa. Supreme Court,
10/18/17. Recognizing Appellant’s petition to be a request for PCRA relief,
the court entered an order on October 30, 2017, appointing Lara Hoffert,
Esquire, to represent Appellant, and directing her to file an amended petition
within 60 days. See Order, 10/30/17. Over the next year, Attorney Hoffert
was granted seven extensions of time to file an amended petition.
On January 29, 2019, Attorney Hoffert filed an amended PCRA petition
presenting two claims of prior counsel’s ineffective assistance: (1) failing to
file a requested petition for allowance of appeal, and (2) waiving Appellant’s
discretionary aspects of sentencing claim on direct appeal.9 See Appellant’s
Amended Petition for Relief Under the Post Conviction Relief Act, 6/29/19, at
3 (unpaginated). Following a brief hearing on February 28, 2019, the PCRA
court entered an order, upon agreement of the parties, granting Appellant the
following relief: (1) the court reinstated Appellant’s direct appeal rights nunc
pro tunc limited to a challenge to the discretionary aspects of his sentence;
and (2) thereafter, if necessary, the court reinstated Appellant’s right to file a
____________________________________________
9 On direct appeal, this Court found Appellant’s discretionary sentencing claim
waived because Appellant failed to include the requisite Pa.R.A.P. 2119(f)
statement of reasons relied upon for allowance of appeal in his brief, and the
Commonwealth objected to the omission. See Tiburcio, 1589 MDA 2016
(unpub. memo. at 4 n.3).
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J-S08026-23
petition for allowance of appeal nunc pro tunc, including issues raised in his
prior direct appeal. See Order, 2/28/19. Appellant filed a timely nunc pro
tunc direct appeal on March 25, 2019.
On March 10, 2020, a panel of this Court rejected Appellant’s sentencing
claims and affirmed his judgment of sentence. See Commonwealth v.
Tiburcio, 505 MDA 2019 (unpub. memo. at 11) (Pa. Super. Mar. 10, 2020),
appeal denied, 160 MAL 2020 (Pa. Nov. 3, 2020). Nevertheless, because the
panel recognized that Appellant’s guideline sentence form listed “the incorrect
quantity of drugs, causing the [offense gravity score (OGS)] to be incorrect[,]”
it remanded the case for correction of the guideline sentence form.10 See id.
at 10-11. The panel noted, however, that the trial court “applied the
appropriate OGS” at sentencing and “the sentencing order accurately reflects
the correct sentence imposed.” Id. at 9-10. Thereafter, Appellant filed a
petition for allowance of appeal, which the Pennsylvania Supreme Court
denied on November 30, 2020. See 160 MAL 2020.
On January 26, 2022, Appellant ─ now represented by privately-retained
counsel Teri B. Himebaugh, Esquire ─ filed a timely PCRA petition, asserting
six claims of trial counsel’s (Attorney Feeney’s) ineffective assistance. See
Appellant’s Motion for Post Conviction Relief, 1/26/22, at 5-41. The PCRA
____________________________________________
10 The panel explained that the correction was necessary because “the
Pennsylvania Commission on Sentencing uses the guideline sentence forms to
monitor the application and compliance with the guidelines[.]” See Tiburcio,
505 MDA 2019 (unpub. memo. at 10 n.9).
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court conducted a hearing on May 23, 2022, at which both Attorney Feeney
and Appellant testified. At the conclusion of the hearing, the court directed
the parties to filed post-hearing briefs, and both Appellant and the
Commonwealth complied. Thereafter, on August 30, 2022, the PCRA court
entered an order, accompanied by Findings of Fact and Conclusions of Law,
denying PCRA relief. See Order, 8/30/22. This timely appeal follows.11
Appellant presents the following six claims for our review:
I. Were Appellant’s constitutional rights under the Sixth and
Fourteenth Amendments of the U.S. Constitution and Article
1, sec. 9 of the Pennsylvania Constitution violated due to
trial counsel’s ineffective advice in relation to rejecting the
plea offer?
II. Were Appellant’s constitutional rights under the Fifth,
Sixth and Fourteenth Amendments of the U.S.
Constitution and Article 1, sec. 9 of the Pennsylvania
Constitution violated due to trial counsel’s ineffective
advice that Appellant not testify on his own behalf?
III. Were Appellant’s constitutional rights under the Sixth
and Fourteenth Amendments of the U.S. Constitution and
Article 1, secs. 8 and 9 of the Pennsylvania Constitution
violated due to trial counsel’s ineffective failure to file a
Pre-Trial Motion to Suppress, and object, during trial, to
the Commonwealth’s illegal vehicle search?
____________________________________________
11 Appellant complied with the PCRA court’s directive to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and listed the
same six claims as raised in his petition. See Appellant’s Statement of Matters
Complained of on Appeal, 10/14/22, at 1-3 (unpaginated). On November 1,
2022, the PCRA court issued a statement in lieu of an opinion, in which it
incorporated its reasons for denying relief as set forth in its August 30, 2022,
Findings of Fact and Conclusions of Law. See Statement in Lieu of Opinion,
11/1/22, at 3.
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IV. Were Appellant’s constitutional rights under the Sixth
and Fourteenth Amendments of the U.S. Constitution and
Article 1, sec. 9 of the Pennsylvania Constitution violated
due to trial counsel’s ineffectiveness in relation to the
Commonwealth’s ‘expert’ Det. Lep[o]race?
V. Were Appellant’s constitutional rights under the Sixth
and Fourteenth Amendments of the U.S. Constitution and
Article 1, sec. 9 of the Pennsylvania Constitution violated
due to trial counsel’s ineffectiveness in relation to the
Commonwealth’s Confidential Informant?
VI. Were Appellant’s constitutional right[s] to due process of
law and a fair trial violated by the cumulative impact of
trial counsel[’s] ineffectiveness in violation of the Sixth
Amendment?
Appellant’s Brief at 3-4.
When considering a ruling denying PCRA relief,
[o]ur standard of review . . . is limited to examining whether the
evidence of record supports the court’s determination and
whether its decision is free of legal error. This Court grants great
deference to the factual findings of the PCRA court if the record
contains any support for those findings. [W]e review the court’s
legal conclusions de novo.
Commonwealth v. Washington, 269 A.3d 1255, 1262 (Pa. Super. 2022)
(en banc) (citations & quotation marks omitted), appeal denied, 283 A.3d
1249 (Pa. 2022). When the PCRA court grants a hearing on the petition, the
court’s “credibility findings are to be accorded great deference[,]” such that
“where the record supports the PCRA court’s credibility determinations, such
determinations are binding on a reviewing court.” Commonwealth v.
Dennis, 17 A.3d 297, 305 (Pa. 2011).
Each of Appellant’s claims on appeal assert the ineffective assistance of
trial counsel. Therefore, our review is guided by the following:
-8-
J-S08026-23
Counsel is presumed to have been effective. In order to
overcome that presumption and prevail on a claim of
ineffectiveness, Appellant must establish that: (1) the
underlying claim has arguable merit; (2) counsel had no
reasonable basis for his conduct; and (3) he was prejudiced
by counsel’s ineffectiveness, i.e. there is a reasonable
probability that because of the act or omission in question,
the outcome of the proceeding would have been different.
Failure to satisfy any one of the three prongs of the test will result
in failure of the entire claim.
Commonwealth v. Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (citations
omitted). Furthermore, “[c]ounsel cannot be found ineffective for failing to
raise a baseless or meritless claim.” Commonwealth v. Epps, 240 A.3d 640,
645 (Pa. Super. 2020).
In his first issue, Appellant contends Attorney Feeney provided
ineffective assistance which led him to reject the Commonwealth’s pretrial
plea offer of 2 to 5 years’ incarceration.12 Appellant’s Brief at 10. He
maintains that the OGS on the plea sheet was incorrect because it was based
on “50-100 grams of drugs being found when in fact, it was significantly less.”
Id. Appellant asserts that although he alerted his attorney that the OGS was
incorrect, Attorney Feeney did not investigate or address Appellant’s
complaint. See id. Finally, Appellant argues that he was prejudiced by
counsel’s actions because he would have taken the plea if Attorney Feeney
____________________________________________
12 “Generally, counsel has a duty to communicate plea bargains to his client,
as well as to explain the advantages and disadvantages of the offer.”
Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super. 2001)
(citation omitted).
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had “communicated adequately with [him] and re-negotiated the plea to
reflect the correct” OGS. Id. at 14.
Next, Appellant insists Attorney Feeney provided inadequate advice
regarding his right to testify, which led Appellant to forfeit that right.13 See
Appellant’s Brief at 15. He maintains that Attorney Feeney briefly counseled
him on his right to testify mid-trial during a jury break, and “told Appellant
that the jury would hear about his past criminal record, and it would make
him look guilty.” Id. at 20-21. However, Appellant maintains that none of
his prior convictions would have been disclosed to the jury because they did
not involve crimen falsi offenses. Id. at 21. Moreover, Appellant insists that
the benefit from his testimony “would have been significant” because he would
have explained “why the drugs were in small baggies and why no
paraphernalia was found on his person” and that he was giving Romig “some
of his own drugs that he had for his own personal use[.]” Id. at 23. Thus,
he argues Attorney Feeney’s “erroneous advice made [his] waiver [of his right
to testify] unintelligent.” Id. at 26.
____________________________________________
13 Because the decision whether to testify is “ultimately to be made by the
defendant after full consultation with counsel[,]” in order to prove counsel’s
ineffectiveness with regard to this decision, an appellant “must demonstrate
either that counsel interfered with his right to testify, or that counsel gave
specific advice so unreasonable as to vitiate a knowing and intelligent decision
to testify on his own behalf.” Commonwealth v. Sandusky, 203 A.3d 1033,
1075 (Pa. Super. 2019) (citation omitted). Generally, however, “where a
defendant voluntarily waives his right to testify after a colloquy, he . . . cannot
argue that trial counsel was ineffective in failing to call him to the stand.” Id.
(citation omitted).
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Appellant’s third ineffectiveness claim highlights Attorney Feeney’s
failure to file a pretrial suppression motion challenging the warrantless search
of the vehicle in which Appellant was a passenger.14 Appellant’s Brief at 27.
He argues that the Commonwealth did not establish the exigent circumstances
necessary to justify a warrantless vehicle search. Id. at 30. Appellant states:
“Had the jury not heard about the drugs and other items found in the vehicle
it is significantly less likely that they would have found that Appellant was a
dealer as opposed to a drug user.” Id. at 36.
Appellant next asserts Attorney Feeney was ineffective for failing to
object to the testimony of the Commonwealth’s expert witness, Detective
Pasquale Leporace. See Appellant’s Brief at 37. His argument is two-fold.
First, he contends the Commonwealth “ambushed” the defense at trial
because it did not identify Detective Leporace as an expert or provide an
expert report prior to trial. See id. at 37-38. Appellant insists counsel should
have requested the Commonwealth file an expert report, and then called his
own expert to rebut the detective’s testimony that he drugs recovered from
Appellant were not for his personal use. See id. at 38-39, 41-42. Second,
____________________________________________
14 While trial counsel’s failure to file a suppression motion may constitute
ineffective assistance, “if the grounds underpinning that motion are without
merit, counsel will not be deemed ineffective for failing to so move.”
Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016) (citation
omitted). Moreover, “[t]he defendant must establish that there was no
reasonable basis for not pursuing the suppression claim and that if the
evidence had been suppressed, there is a reasonable probability the verdict
would have been more favorable.” Id. (citation omitted).
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Appellant insists Attorney Feeney should have requested a curative instruction
or sought a mistrial after Detective Leporace testified during cross-
examination that he was “asked [by the Commonwealth] to render a verdict
on what was seized” on August 11th. Id. at 43 (emphasis added), citing N.T.,
Jury Trial, at 336. Appellant emphasizes that an expert is not permitted to
provide an opinion on the ultimate issue at trial, i.e., the defendant’s guilt of
the charges. Appellant’s Brief at 43-44.
In his penultimate claim, Appellant avers that Attorney Feeney was
ineffective for “failing to file a pre-trial motion requesting the identity of the
CI.” Appellant’s Brief at 46. He insists the CI was the “only ‘uninterested’
eyewitness to the transaction between Romig and Det[ective] Karns and was
present to overhear their conversation related to ‘her guy.’” Id. at 51.
Appellant emphasizes that Romig had a “vested interest in testifying for the
Commonwealth[,]” and that there was “[n]o other corroboration of Det[ective]
Karn’s testimony[.]” Id. at 52-53. He further contends that if the identity of
the CI had been revealed, Attorney Feeney could have investigated the
individual to ascertain their “1) . . . ties to the drug trade in Berks County; 2)
. . . connection (if any) to the case; 3) what if any other cases this CI has
testified in[;] and 4) whether [their] testimony was found credible in those
cases.” Id. at 56. (emphasis omitted). Moreover, even if the court had denied
the disclosure motion, Attorney Feeney “would have at least been in a position
to request a missing witness instruction.” Id. at 57.
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Lastly, Appellant presents a claim based on the cumulative effect of
Attorney Feeney’s errors. See Appellant’s brief at 58. He argues that errors
were “not harmless” and their cumulative effect “rendered the verdict
inherently unreliable, violating [his] constitutional right to a fair trial and due
process of law.” Id. at 59-60.
Upon our review of the record, the parties’ briefs and the relevant case
law, we conclude the trial court thoroughly addressed and properly disposed
of Appellant’s first five claims in its Findings of Fact and Conclusions of Law
attached to its August 30, 2022, order denying PCRA relief. See Findings of
Fact & Conclusions of Law in Disposition of Appellant’s Motion for Post-
Conviction Relief, 8/30/22, at 6-28 (concluding (1) Appellant did not establish
Attorney Feeney provided ineffective advice regarding the Commonwealth’s
plea offer because (a) despite Appellant’s claim to the contrary, Attorney
Feeney testified at the PCRA hearing that he recommended Appellant accept
the plea and the offer he reviewed ─ which the Commonwealth introduced at
the hearing ─ reflected the correct OGS, but that (b) Appellant rejected the
offer because he “believed he had a good chance to win at trial[;]” 15 (2)
Appellant cannot establish Attorney Feeney interfered with his right to testify
when Appellant “knowingly, intelligently, and voluntarily waived his right”
____________________________________________
15See Findings of Fact & Conclusions of Law in Disposition of Appellant’s
Motion for Post-Conviction Relief at 7; N.T. PCRA H’rg, 6/1/22, at 21.
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J-S08026-23
after a complete colloquy;16 (3) Appellant did not establish Attorney Feeney
was ineffective for failing to file a motion to suppress the evidence recovered
from the warrantless search of the vehicle because (a) at all relevant times in
this case, “warrantless vehicle searches in Pennsylvania were governed by the
Pennsylvania Supreme Court’s decision” in Commonwealth v. Gary, 91 A.3d
102 (Pa. 2014),17 which required only probable cause, and not the existence
of exigent circumstances, (b) the Supreme Court’s decision overturning Gary
─ Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) ─ was not issued
until December 22, 2020, and (c) in any event, Appellant “was only charged
with the drugs found on his person after he was arrested and removed from”
the vehicle;18 (4) Appellant did not establish Attorney Feeney was ineffective
for failing to consult with or present an expert witness at trial to rebut
Detective Leporace’s testimony because he failed to identify (a) an expert who
would have been willing and available to testify at his trial and (b) what
beneficial testimony the expert would have provided since Appellant himself
admitted “he was bringing drugs to . . . Romig’s house because she was sick
____________________________________________
16 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion
for Post-Conviction Relief at 15.
17 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion
for Post-Conviction Relief at 17.
18 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion
for Post-Conviction Relief at 19.
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and those drugs were on his person when he was arrested[;]”19 (5) Appellant
did not establish Attorney Feeney was ineffective for failing to seek a mistrial
or cautionary instruction after Detective Leporace stated he was asked to
“render a verdict on what was seized” because “it was clear from his testimony
that he was asked to provide his ‘opinion’ regarding the drugs seized on
August 11th” and Appellant failed to establish the detective’s poor word choice
deprived him of a fair trial;20 and (6) Appellant did not establish Attorney
Feeney’s ineffectiveness for failing to file a motion to disclose the identity of
the confidential informant because he could not demonstrate “a reasonable
possibility that the informant could give evidence that would exonerate him[,]”
but rather, only sought the CI’s identity “to perform a further investigation
into the reliability of the [CI] and to offer duplicative evidence of . . . Romig’s
theft of drugs from the Commonwealth[,]” a fact she admitted).21
____________________________________________
19 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion
for Post-Conviction Relief at 20-21. See Commonwealth v. Morrow, 650
A.2d 907, 912 (Pa. Super. 1994) (violation of Section 780-113(a)(3) “does
not require that a party make a profit, it simply prohibits ‘delivery’” of
controlled substances); 35 P.S. § 780-102(b) (defining “delivery” as “the
actual, constructive, or attempted transfer from one person to another of a
controlled substance”).
20 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion
for Post-Conviction Relief at 21, 23-24.
21 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion
for Post-Conviction Relief at 27 (citation & emphasis omitted).
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Accordingly, we rest on the PCRA court’s well-reasoned bases disposing
of Appellant’s first five claims, with two additional comments.
First, with regard to his allegation that Attorney Feeney provided
inadequate advice regarding his right to testify, Appellant maintains that
“[t]he benefit to the defense from [his] taking the stand would have been
significant.” Appellant’s Brief at 22-23. He insists he could have explained
why the drugs recovered from him were in small baggies and why he had no
paraphernalia. Id. at 23. More importantly, however, he insists he would
have refuted Detective Leporace’s expert opinion that the drugs were for sale
by explaining that he intended to give “Romig some of his own drugs that he
had for his own personal use because she was going through withdrawal and
was sick.” Id. What Appellant fails to recognize, however, is that his intent
to deliver drugs to Romig ─ whether for a profit or not ─ was sufficient to
sustain his convictions. See Morrow, 650 A.2d at 912; 35 P.S. § 780-102(b).
Thus, Appellant cannot establish he was prejudiced by Attorney Feeney’s
advice not to testify.
Second, with regard to Appellant’s assertion that Attorney Feeney
should have objected to Detective Leporace’s testimony because the defense
was unaware of the expert before trial, we note that this claim was raised and
rejected in Appellant’s direct appeal. See Tiburcio, 1589 MDA 2016 (unpub.
memo. at 4); see also Trial Ct. Op., 12/8/16, at 13-14. Therefore, for
purposes of PCRA review, it has been previously litigated, and Appellant may
not seek relief on that claim. See 42 Pa.C.S. §§ 9543(a)(3) (in order to be
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eligible for PCRA relief, petitioner must demonstrate “the allegation of error
has not be previously litigated or waived”); 9544(a)(2) (“an issue has been
previously litigated if . . . the highest appellate court in which the petitioner
could have had review as a matter of right has ruled on the merits of the
issue”).
With regard to Appellant’s final claim, asserting the cumulative impact
of Attorney Feeney’s purported errors, we reiterate the Pennsylvania Supreme
Court’s oft-cited holding that “no number of failed claims may collectively
attain merit if they could not do so individually.” Commonwealth v.
Williams, 896 A.2d 523, 548 (Pa. 2006) (citations omitted). We note
however, that cumulative prejudice may be assessed when the failure of
individual claims is grounded in the lack of prejudice. See Commonwealth
v. Hanible, 30 A.3d 426, 483 (Pa. 2011). Here, however, most of Appellant’s
claims fail for lack of arguable merit, or because Attorney Feeney had a
reasonable basis for his actions. Accordingly, Appellant’s final claim fails.
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Because we conclude the PCRA court properly denied Appellant relief on
his claims, we affirm the order on appeal. We further direct the parties to
attach of copy of the PCRA court’s August 30, 2022, Findings of Fact and
Conclusions of Law to all future filings of this memorandum.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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Circulated 07/19/2023 10:42 AM
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF BERKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
V. : No. CP-06-CR-4618-2015
JUAN RAMON TIBURCIO : Assigned to: M. Theresa Johnson, J.
Teri Himebaugh, Esquire
Attorney for Petitioner
Alisa Hobart, Esquire
Attorney for the Commonwealth
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN DISPOSITION OF THE
DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF
PROCEDURAL HISTORY
The defendant in the above-captioned case, Juan Ramon Tiburcio ("Tiburcio"), was
charged with various drug-related offenses arising from an incident alleged to have occurred
between June 29, 2015, and August 11, 2015. On August 2, 2016, ajury found Tiburcio guilty
on two counts of delivery of acontrolled substance,' possession with intent to deliver a
controlled substance, 2 conspiracy to commit possession with intent to deliver acontrolled
substance, 3 three counts of criminal use of communication facility, 4 three counts of possession of
drug paraphernalia,' and three counts of possession of acontrolled substance. 6 On August 9,
2016, Tiburcio was sentenced to serve an aggregate term of eleven ( 11) years to sixty (60) years
in aState Correctional Facility. Tiburcio was given acredit of three hundred sixty-four (364)
days for time served.
1 35 P.S. § 780-113(a)(30).
2 35 P.S. § 780-113(a)(30).
3 18 Pa.C.S.A. § 903(a)(1) to commit 35 P.S. § 780-113(a)(30).
4 18 Pa.C.S.A. § 7512(a).
'35 P.S. § 780-113(a)(32).
6 35 P.S. § 780-113(a)(16).
1
On September 26, 2016, Tiburcio filed a Notice of Appeal to the Superior Court of
Pennsylvania. On August 22, 2017, the Superior Court affirmed Tiburcio's judgment of sentence
but found that Tiburcio had waived his sentencing issue due to his failure to file aPa.R.A.P.
2119(f) statement and the Commonwealth's objection to its absence.
On October 18, 2017, Tiburcio filed apetition requesting leave to file anunc pro tunc
petition for allowance of appeal to the Pennsylvania Supreme Court. Within that petition, Tiburcio
claimed that his appointed counsel, Kevin Feeney, Esquire ("Attorney Feeney"), had abandoned
him as he failed to file apetition for allowance of appeal with the Supreme Court despite Tiburcio's
request for the same. Tiburcio attached aletter dated August 30, 2017, that was sent to Attorney
Feeney instructing him to file apetition with the Supreme Court.
Upon review of Tiburcio's petition and the applicable Pennsylvania law, this Court treated
the petition as filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et
seq. 7 This Court appointed PCRA counsel for Tiburcio and counsel filed an amended petition on
his behalf. On February 28, 2019, upon agreement of counsel, this Court entered an order which
1) reinstated Tiburcio's right to appeal and challenge the discretionary aspects of his sentence and
2) reinstated Tiburcio's right to file apetition for allowance of appeal with the Supreme Court on
all issues initially raised in the Superior Court and any that may arise following Tiburcio's
challenge to the discretionary aspects of his sentence.
On March 25, 2019, Tiburcio exercised his reinstated appellate rights and filed aNotice of
Appeal to the Pennsylvania Superior Court from this Court's order of August 9, 2016. On March
"[Pennsylvania Courts] have repeatedly held that any petition filed after the judgment of sentence becomes final
will be treated as aPCRA petition." Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal denied,
47 A.3d 845 (Pa. 2012) (citation and ellipsis omitted). "It is well settled that any collateral petition raising issues
with respect to remedies offered under the PCRA will be considered aPCRA petition." Commonwealth v. Deaner,
779 A.2d 578, 580 (Pa. Super. 2001) (citations omitted). The Pennsylvania Supreme Court has held "that counsel is
per se ineffective for failing to file arequested petition for allowance of appeal." Commonwealth v. Rigg, 84 A.3d
1080, 1087 (Pa. 2014) (citations omitted).
2
10, 2020, the Superior Court affirmed Tiburcio's judgment of sentence. On April 7, 2020, Tiburcio
filed aPetition for Allowance of Appeal. The petition was denied by the Pennsylvania Supreme
Court on November 3, 2020.
On January 26, 2022, Tiburcio, by and through counsel, filed aMotion for Post-Conviction
Relief ("Motion"), pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541 et
seq. A hearing was held on May 23, 2022, to address Tiburcio's PCRA claims. At that time,
Tiburcio and Tiburcio's trial counsel, Attorney Feeney, presented testimony. On July 8, 2022,
Tiburcio, by and through counsel, filed an argument brief setting forth his position regarding each
issue. On August 4, 2022, the Commonwealth filed amemorandum requesting the denial of the
Motion.
PCRA JURISDICTION AND TIMELINESS
The disposition of the Motion is governed by the PCRA and the corresponding decisional
law that has developed from the PCRA and its predecessor, the Post-Conviction Hearing Act.
The PCRA "provides for an action by which persons convicted of crimes they did not commit
and persons serving illegal sentences may obtain collateral relief." 42 Pa.C.S.A. § 9542. In order
to qualify for relief pursuant to the PCRA, apetitioner must plead and prove by apreponderance
of the evidence that he or she has been convicted of acrime under the laws of this
Commonwealth and is at the time relief is granted:
(i) currently serving asentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of asentence of death for the crime; or
(iii) serving asentence which must expire before the person may commence serving the
disputed sentence. 42 Pa.C.S.A. § 9543(a)(1).
3
The petitioner must also prove by apreponderance of the evidence the existence of adefect in
his or her conviction or sentence as set forth in 42 Pa.C.S.A. § 9543(a)(2) and that the allegation
of error has not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(2)(3).
A petitioner seeking PCRA relief must satisfy the PCRA's time requirements in filing his
or her petition. A PCRA petition must be filed within one ( 1) year of the date the judgment
becomes final unless the petitioner can prove the existence of one of the listed exceptions to this
requirement set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 42 Pa.C.S.A. § 9545(b)(1). The
exceptions to the PCRA one-year statute of limitations are as follows: 1) the claim was not raised
by the petitioner due to interference by government officials, 2) petitioner did not know the facts
upon which his claim rests and had no ability to learn of them, or 3) aconstitutional right has
been recognized by the United States Supreme Court or the Supreme Court of Pennsylvania and
it has been applied retroactively. Id. In the event an exception applies, apetitioner must file his
or her petition within one year from the date the claim could have been presented. 42 Pa.C.S.A.
§9545(b)(2).
[I]f aPCRA petition is not filed within one year of the date that the judgment of sentence
becomes final; or is not eligible for one of the three limited statutory exceptions to the
timeliness requirement; or is entitled to one of the exceptions, but the exception is not
asserted within [one year from] the date that the claim could have been brought; then the
court has no jurisdiction to address the substantive merits of the petition. Commonwealth
v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001) (citation omitted); 42 Pa.C.S.A.
§9545(b)(2).
In the case at bar, Tiburcio's Petition for Allowance of Appeal was denied by the
Pennsylvania Supreme Court on November 3, 2020. Tiburcio's sentence became final on
4
February 1, 2021, when the time for filing apetition for awrit of certiorari in the United States
Supreme Court expired. See U.S. Sup.Ct. Rule 13(1) ("apetition for awrit of certiorari to
review ajudgment in any case ... is timely when it is filed with the Clerk of this Court within 90
days after entry of the judgment. "). Tiburcio had one year from the date his judgment of
sentence became final, February 1, 2022, to file aPCRA petition. Tiburcio's Motion was timely
as it was filed on January 26, 2022.
FACTUAL SUMMARY OF TIBURCIO'S OFFENSE
The facts of the case, as summarized by the Superior Court on March 10, 2020, are as
follows:
Between June 29, 2015, and August 11, 2015, the Narcotics Enforcement Team of the
Berks County District Attorney's Office ("Narcotics Team") was working undercover to
purchase heroin from asuspect, Karla Romig. On August 11, 2016, Romig was arrested
for drug offenses. She then consented to Sergeant Todd Harris' use of her phone to
contact her supplier, later identified as Tiburcio. Posing as Romig, Sergeant Harris texted
Tiburcio. During the text conversation, Sergeant Harris asked Tiburcio for "three whole
ones" which meant he was asking for three bundles of heroin. Through the text
conversation between Sergeant Harris (posing as Romig) and Tiburcio, they arranged to
have Tiburcio deliver the drugs to Romig's residence. Once Tiburcio arrived at the
residence, he sent atext message to Romig stating that he was outside.
At that same time, the surveillance units working with Sergeant Harris informed him that
aToyota Camry had pulled up at the residence. Tiburcio exited the passenger side of the
Camry, operated by his brother Michael Tiburcio ("co-defendant"), and started to walk
5
up onto the porch of Romig's residence. He was then taken into custody. The Narcotics
Team recovered from Tiburcio's person $818.00 in U.S. currency, two cellular
telephones, and asandwich bag containing abundle of 10 heroin packets and another
bundle of 9heroin packets.
The Narcotics Team instructed the co-defendant to exit the Camry. A subsequent search
of the co-defendant led to the recovery of aplastic sandwich bag containing 41 packets of
crack cocaine, $296.00 in U.S. currency, achunk of bulk cocaine and one packet of
powder cocaine. Following the administration of Miranda warnings, the co-defendant
directed the Narcotics Team to asmall change drawer to the left of the steering wheel in
the Camry containing 15 additional packets of heroin. The Narcotics Team also
recovered the co-defendant's cellular phone from inside of the Camry. The co-defendant
admitted to Detective George Taveras of the Berks County District Attorney's Office that
he was "willing to cooperate with law enforcement," "he was doing this to get by,"
"times were tough," and that "this was avery small amount" and he can do "bigger
things."
Commonwealth v. Tiburcio, 505 MDA 2019 at * 1 (Pa. Super. filed March 10, 2020)
(unpublished memorandum) (alterations omitted).
FINDINGS OF FACT
1. On the date of the hearing on the Motion, May 23, 2022, Attorney Feeney had worked as
acriminal defense attorney for approximately 33 years and handled several hundred
drug-related cases. Notes of Testimony, PCRA Hearing, May 23, 2022 ("N.T."), at 5, 18.
He practices exclusively in criminal defense. Id. at 18.
6
2. Prior to Tiburcio's trial, the Commonwealth made anegotiated plea offer to Tiburcio to
resolve his criminal matter. Id. at 5. Attorney Feeney testified that the offer was for a
sentence of 2to 6years. Id. The plea sheet corroborated Attorney Feeney's testimony.
Id. at 20, 44. Attorney Feeney believed this to be agood offer that was in the standard
range with the sentences on multiple counts running concurrently. Id. at 5. Attorney
Feeney recommended that Tiburcio accept the offer. Id. at 6, 20.
3. The negotiated plea offer was made in writing. Id. at 6. Attorney Feeney talked with
Tiburcio about the offer several times over the phone and in person before his trial. Id. at
6, 7, 31. During those discussions, they didn't discuss the specific amount of drugs
charged in each count. Id. at 7. They did discuss the offense gravity score that was on
the Commonwealth's written negotiated plea offer but Attorney Feeney did not recall the
actual score. Id. at 8. However, he believed the offense gravity score was correct when
he reviewed the plea sheet, marked as Commonwealth's Exhibit 1, at Tiburcio's PCRA
hearing. Id. at 20.
4. Attorney Feeney did not recall Tiburcio expressing any concern regarding the offense
gravity score listed on the Commonwealth's written negotiated plea offer. Id. at 8.
5. Tiburcio rejected the negotiated plea offer. Id. at 20, 22. He believed that he had agood
chance to win at trial as the Commonwealth's main witness, Karla Romig, was ahabitual
drug user and drug dealer. Id. at 21. She also stole drugs from the Commonwealth, had
crimen falsi convictions and was "pretty strung out" when she was arrested in this case.
Id. Attorney Feeney raised these issues during his cross-examination of Karla Romig
during trial. Id.
7
6. Attorney Feeney believed that the Commonwealth had astrong case against Tiburcio
other than the credibility issues concerning Karla Romig. Id. at 23.
7. Attorney Feeney did not specifically recall whether he advised Tiburcio to take the
witness stand during his trial. Id. at 9, 22-23. He usually tells his clients that it is their
choice but generally leans against his clients testifying. Id. at 23. In this case, Attorney
Feeney was concerned that Tiburcio would have to answer questions about certain
telephone conversations and the drugs found on him. Id.
8. Attorney Feeney didn't remember if Tiburcio provided astatement to the police. Id. at 9.
9. Attorney Feeney reviewed Tiburcio's presentence investigation and knew that he did not
have any convictions related to crimen falsi crimes. Id. at 10.
10. Prior to trial, Attorney Feeney was not aware that Tiburcio was in inpatient drug and
alcohol treatment as ajuvenile. Id. He did remember that Tiburcio told him that he had a
drug addiction but didn't remember when he learned of this information. Id. at 11, 12.
11. Tiburcio informed Attorney Feeney that the drugs found on him were for personal use.
Id. at 12. This information was provided prior to trial. Id.
12. A pretrial motion was not filed by Attorney Feeney. Id. at 13, 23 Attorney Feeney
testified that Tiburcio's arrest occurred during the "pre Alexander period of time." Id. at
23-24. Attorney Feeney testified that he could not think of any exigent circumstances
present that would have justified awarrantless vehicle search. Id. at 13. He also stated
that Tiburcio was only charged with the drugs found on his person after he was arrested
and removed from the vehicle. Id. at 24. He did not remember if he objected to the
admission of the evidence obtained from the vehicle at trial. Id. at 13.
8
13. Attorney Feeney was informed by the Commonwealth that an expert witness would be
testifying during Tiburcio's trial. Id. He learned of this information shortly before trial
or during trial. Id. There was nothing in the discovery regarding an expert opinion. Id.
at 14.
14. Attorney Feeney objected to the testimony of the Commonwealth's expert but did not
recall the basis for his objection. Id. at 14, 24. This issue was raised by Attorney Feeney
on direct appeal. Id. at 24-25.
15. After learning of the Commonwealth's expert, Attorney Feeney did not make an attempt
to obtain his own expert. Id. at 14. He didn't believe it would have helped his case
because Karla Romig requested that Tiburcio deliver drugs to her and then he was
arrested when he went to her house with the requested drugs. Id. at 27-29.
16. Attorney Feeney has previously hired experts in drug cases. Id. at 28. In those situations,
there was aquestion about whether the drugs were possessed for delivery or personal use.
Id.
17. Attorney Feeney did not recall whether the Commonwealth's expert testified that a
person's tolerance to drugs increases as they use more drugs or the amount of drugs used
by Tiburcio based on his tolerance level. Id. at 14-15. He also did not recall that the
expert testified that he was asked by the Commonwealth to "render averdict on what was
seized." Id. at 15.
18. Attorney Feeney testified that he was unfamiliar with ajury instruction referred to as a
"low grade charge." Id. at 15, 25.
19. Attorney Feeney testified that, prior to trial, he was aware that Karla Romig was selling
drugs to the police and an unknown informant and that this informant was present at a
9
meeting with Karla Romig and adetective on June 29, 2015. Id. at 16. Attorney Feeney
did not file apretrial motion requesting the identity of the confidential informant. Id. He
testified that he did not believe that the identity of the confidential informant was relevant
as Tiburcio was charged with the drugs in his possession when he went to Karla Romig's
house. Id. at 26. Karla Romig was stealing drugs from the Commonwealth during
controlled buys and Attorney Feeney didn't feel that the identity of the confidential
informant would have helped him more than Karla Romig. Id. at 26-27. Also, a
detective was always present with the confidential informant when the drug deals took
place with Karla Romig. Id. at 27.
CONCLUSIONS OF LAW
Ineffective Assistance of Counsel — Generally
In order for aPCRA petitioner to succeed on an ineffective assistance of counsel claim,
the PCRA petitioner must demonstrate that: "( 1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner
suffered prejudice because of counsel's ineffectiveness." Commonwealth v. Chmiel, 30 A.3d
1111, 1127 (Pa. 2011) (citation omitted). "A failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim." Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.
2010) (citation omitted). "In order for [apetitioner] to prevail on aclaim of ineffective
assistance of counsel, he must show, by apreponderance 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. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted).
10
"A claim has arguable merit where the factual averments, if accurate, could establish
cause for relief. Whether the facts rise to the level of arguable merit is alegal determination."
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citation and quotation marks
omitted).
With regard to the second, reasonable basis prong, we do not question whether there were
other more logical courses of action which counsel could have pursued; rather, we must
examine whether counsel's decisions had any reasonable basis. We will conclude that
counsel's chosen strategy lacked areasonable basis only if Appellant proves that an
alternative not chosen offered apotential for success substantially greater than the course
actually pursued. To establish the third, prejudice prong, the petitioner must show that
there is areasonable probability that the outcome of the proceedings would have been
different but for counsel's ineffectiveness. We stress that boilerplate allegations and bald
assertions of no reasonable basis and/or ensuing prejudice cannot satisfy apetitioner's
burden to prove that counsel was ineffective.
Chmiel, supra at 1127-1128 (citations and quotation marks omitted).
"Appellant bears the burden of proving his counsel's ineffectiveness, for counsel's
stewardship is presumed to be effective." Commonwealth v. Thomas, 539 A.2d 829, 837 (Pa.
Super. 1988) (citation omitted). "[T]rial counsel cannot be found ineffective for electing not to
raise [a] meritless claim." Commonwealth v. Tilley, 595 A.2d 575, 588 (Pa. 1991) (citations
omitted).
Tiburcio's Reiection of the Commonwealth's Plea Offer
Tiburcio first claims that his rejection of the Commonwealth's plea offer was based on
inaccurate facts and information. He alleges that Attorney Feeney was ineffective when he gave
11
Tiburcio advice based on aplea sheet containing the incorrect offense gravity score.
Furthermore, he avers that Attorney Feeney failed to take any steps to determine whether the
offense gravity score was correct.
[A] post-conviction petitioner seeking relief on the basis that ineffective assistance of
counsel caused him or her to reject aguilty plea must demonstrate the following
circumstance:
[B]ut for the ineffective advice of counsel there is areasonable probability that
the plea offer would have been presented to the court (
i.e., that the defendant
would have accepted the plea and the prosecution would not have withdrawn it in
light of intervening circumstances), that the court would have accepted its terms,
and that the conviction or sentence, or both, under the offer's terms would have
been less severe than under the judgment and sentence that in fact were imposed.
Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (citation omitted).
In this case, Tiburcio claims that the plea offer he was given was based on the wrong
offense gravity score and that he alerted Attorney Feeney to this issue. N.T. at 32, 37. He
believed that, based on the amount of drugs he was charged with, the offense gravity score
should have been different. Id. At the PCRA hearing, Tiburcio testified that he used the weight
of the drugs to determine his offense gravity score based on an offense gravity score guideline
sheet in his possession. Id. at 37. However, when Tiburcio was asked what he believed the
offense gravity score should have been, he stated that he couldn't recall what the guideline sheet
showed him. Id. at 37-38. Furthermore, the Commonwealth introduced the written negotiated
plea offer during Tiburcio's PCRA hearing which indicated that the offense gravity score utilized
by the Commonwealth was a6. Id. at 44. This Court notes that in Tiburcio's second appeal to
12
the Superior Court, he claimed that this Court used an incorrect offense gravity score during
sentencing. Tiburcio, supra, at *4. The Superior Court reviewed the record and determined that
an offense gravity score of 6was correct. Id. Therefore, there is no evidence that an incorrect
offense gravity score was used by Attorney Feeney when discussing the Commonwealth's
negotiated plea offer with Tiburcio and advising him to take it. There was no ineffective advice
provided to Tiburcio. Tiburcio's claim lacks arguable merit.
Tiburcio's Failure to Testifv at Trial
Tiburcio next claims that Attorney Feeney was ineffective when he advised him not to
testify at trial.
The decision of whether or not to testify on one's own behalf is ultimately to be made by
the defendant after full consultation with counsel. In order to sustain aclaim that counsel
was ineffective for failing to advise the appellant of his rights in this regard, the appellant
must demonstrate either that counsel interfered with his right to testify, or that counsel
gave specific advice so unreasonable as to vitiate aknowing and intelligent decision to
testify on his own behalf.
Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (citation omitted).
Additionally, "where adefendant voluntarily waives his right to testify after acolloquy, he
generally cannot argue that trial counsel was ineffective in failing to call him to the stand."
Commonwealth v. Sandusky, 203 A.3d 1033, 1075 (Pa. Super. 2019) (citation omitted).
In this case, Tiburcio engaged in the following dialogue with this Court regarding his
right to testify:
THE COURT: Mr. Feeney, what is your intention as far as going forward
with the case?
13
ATTORNEY FEENEY: Your Honor, my understanding is that Juan Tiburcio is not
going to testify. Is that right?
TIBURCIO: Yes.
THE COURT: All right. Then let's have Mr. Juan Tiburcio come forward.
ATTORNEY FEENEY: May Ihave aminute, Your Honor? (whereupon, brief
pause.).
JUAN TIBURCIO, Sworn.
THE CLERK: Please state your name for the record.
TIBURCIO: Juan Ramon Tiburcio.
ATTORNEY FEENEY: A little louder so she (indicating) can hear.
THE COURT: All right. Sir, do you understand that you have an absolute
right to testify in this case?
TIBURCIO: Yes.
THE COURT: Do you understand that if you do testify, you will be cross-
examined by the Assistant District Attorney?
TIBURCIO: Yes.
THE COURT: Do you understand that you have the absolute right to not
testify in this case?
TIBURCIO Yes.
THE COURT: Do you understand that if you choose not to testify, Iwill
instruct the jury that they must not draw any inference of
guilt from that decision?
TIBURCIO: Yes.
14
THE COURT: Have you discussed this matter with your attorney, Mr.
Feeney?
TIBURCIO: Yes.
THE COURT: Have you had enough time to talk to Mr. Feeney?
TIBURCIO: Yes.
THE COURT: And what is your decision?
TIBURCIO: Not to testify.
THE COURT: All right. The Court, then, finds that the defendant has
made aknowing, voluntary and intelligent decision not to
testify in his case.
Notes of Testimony, Jury Trial, August 1, 2016, through August 2, 2016, at 360-362.
This Court finds that Tiburcio knowingly, intelligently and voluntarily waived his right to
testify at trial. There is no evidence that trial counsel interfered with his right to testify. Tiburcio
voluntarily waived his right to testify following this Court's colloquy and, therefore, he cannot
now argue that Attorney Feeney was ineffective in failing to call him to the stand. Tiburcio's
claim lacks arguable merit.
Attorney Feenev's Failure to File aPre-trial Motion and Object to an Illegal Vehicle
Search During Trial
Tiburcio next argues that Attorney Feeney was ineffective when he failed to file aPre-
trial Motion to Suppress the evidence obtained during the Commonwealth's vehicle search
and/or object to the same at trial.
For many years, Pennsylvania courts applied a "limited automobile exception," which
required the Commonwealth to establish probable cause and exigent circumstances to justify a
warrantless search of amotor vehicle. On April 29, 2014, the Pennsylvania Supreme Court
15
•N
I •
decided Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), and held that the federal automobile
exception to the warrant requirement applied to warrantless searches of motor vehicles in
Pennsylvania. Gary, supra at 138. The Gary standard is set forth as follows:
The prerequisite for awarrantless search of amotor vehicle is probable cause to search;
no exigency beyond the inherent mobility of amotor vehicle is required. The consistent
and firm requirement for probable cause is astrong and sufficient safeguard against
illegal searches of motor vehicles, whose inherent mobility and the endless factual
circumstances that such mobility engenders constitute aper se exigency allowing police
officers to make the determination of probable cause in the first instance in the field.
Gary, supra at 138.
The Pennsylvania Supreme Court's adoption of the federal automobile exception in Gary
eliminated the need for areviewing court to determine whether exigent circumstances justified a
warrantless search of an automobile. However, on December 22, 2020, the Pennsylvania
Supreme Court decided Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), and held that
"warrantless vehicle searches require both probable cause and exigent circumstances."
Alexander, supra at 207. The Court recognized that, as aresult of its decision,
we return to the pre- Gary application of our limited automobile exception under Article I,
Section 8of our Constitution, pursuant to which warrantless vehicle searches require both
probable cause and exigent circumstances; one without the other is insufficient. This dual
requirement of probable cause and exigency is an established part of our state
constitutional jurisprudence.
Id. (
quotation marks and internal citation omitted). Therefore, in addition to determining
whether awarrantless search of amotor vehicle was supported by probable cause, "areviewing
16
court will be required to determine whether exigent circumstances existed to justify the officer's
judgment that obtaining awarrant was not reasonably practicable." Id. at 208 (emphasis in
original). Although the "potential for danger to police or the public is enough to constitute
exigent circumstances[,] ... amere assertion of danger is [not] sufficient. Rather, police must be
able to articulate the danger posed under the specific circumstances of the case." Id. at 186
(citation omitted).
When making adetermination regarding the existence of probable cause, acourt must
consider "whether the facts and circumstances which are within the knowledge of the officer at
the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to
warrant aman of reasonable caution in the belief that the suspect has committed or is committing
acrime." Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa. Super. 2015) (quotation mark and
citation omitted). "In addressing the existence of probable cause, courts must focus on the
circumstances as seen through the eyes of the trained police officer, taking into consideration
that probable cause does not involve certainties, but rather the factual and practical
considerations of everyday life on which reasonable and prudent men act." Commonwealth v.
Thompson, 93 A.3d 478, 486 (Pa. Super. 2014) (citation omitted).
In this case, Tiburcio's trial commenced on August 1, 2016, during the time period when
warrantless vehicle searches in Pennsylvania were governed by the Pennsylvania Supreme
Court's decision in Gary, supra. In accordance with Gary, supra, the prerequisite for the
warrantless search of the motor vehicle operated by Tiburcio's brother was probable cause to
search. No exigency beyond the inherent mobility of amotor vehicle was required.
The testimony presented during trial established that Sergeant Todd Harris posed as Karla
Romig and arranged for Tiburcio to deliver drugs to Karla Romig's residence. Tiburcio was
17
transported to Karla Romig's residence by his brother and, upon arrival, sent atext message to
Karla Romig informing her that he was outside. At the same time, surveillance units observed a
Toyota Camry pull up at Karla Romig's residence. Tiburcio exited the vehicle and started to
walk up onto Karla Romig's porch when he was taken into custody. He was in possession of
$818.00 in U.S. currency, two cellular telephones, and asandwich bag containing abundle of 10
heroin packets and another bundle of 9heroin packets. Tiburcio's brother was also taken into
custody and asubsequent search of his person led to the discovery of aplastic sandwich bag
containing 41 packets of crack cocaine, $296.00 in U.S. currency, achunk of bulk cocaine and
one packet of powder cocaine. He was read his Miranda warnings and directed law enforcement
to the location of 15 additional packets of heroin located inside of the vehicle. Under the law in
effect at the time of Tiburcio's trial, law enforcement had probable cause to go into the Toyota
Camry without awarrant and retrieve the 15 packets of heroin. A cellular phone belonging to
Tiburcio's brother was also discovered inside of the vehicle. Therefore, amotion to suppress the
evidence obtained from the Toyota Camry and/or atrial objection to the same would have been
meritless as law enforcement had probable cause to search the vehicle in compliance with Gary,
supra. See Tilley, supra ("[T]rial counsel cannot be found ineffective for electing not to raise [a]
meritless claim. ").
This Court notes that, during the PCRA hearing, Attorney Feeney was asked by
Tiburcio's counsel whether there were any exigent circumstances present that would have
justified awarrantless search of Toyota Camry. N.T. at 13. In response, Attorney Feeney stated
that he could not think of any. Id. However, this was of no consequence. As referenced above,
Tiburcio's trial took place on August 1, 2016. At that time, warrantless vehicle searches were
governed by the Pennsylvania Supreme Court's decision in Gary, supra. "Because this claim
is
sounds in ineffective assistance of counsel, [Tiburcio] must demonstrate that counsel was
incompetent under the law in existence at the tinge of trial. Counsel cannot be deemed
ineffective for failing to predict developments or changes in the law." Commonwealth v.
Gribble, 863 A.2d 455, 464 (Pa. 2004) (emphasis added). It wasn't until December 22, 2020,
that the Pennsylvania Supreme Court held that "warrantless vehicle searches require both
probable cause and exigent circumstances" in Alexander, supra.
Assuming, arguendo, that Attorney Feeney had filed amotion to suppress the drugs
found in the Toyota Camry, Attorney Feeney testified that Tiburcio was only charged with the
drugs found on his person after he was arrested and removed from the Toyota Camry. Therefore,
even if the drugs in the vehicle were suppressed, Tiburcio would not be entitled to relief as he
was not charged with possessing those items. Tiburcio's claim lacks arguable merit.
Detective Leporace's Testimonv
Tiburcio next claims that Attorney Feeney was ineffective for multiple reasons all
concerning the testimony of Detective Leporace. Specifically, Tiburcio argues that 1) Attorney
Feeney failed to request acontinuance of the trial and consult with and/or call an expert to
testify; 2) Attorney Feeney failed to object and/or move for amistrial and/or seek acurative
instruction when Detective Leporace testified that he was asked by the Commonwealth to render
averdict on what was seized from the defendants and that he complied with that request; and 3)
Attorney Feeney failed to request a "low grade" jury instruction in relation to Detective
Leporace's testimony.
First, this Court will address Tiburcio's claim that Attorney Feeney was ineffective due to
his failure to consult with and/or call an expert at trial.
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In order to demonstrate counsel's ineffectiveness for failure to call awitness, apetitioner
must prove that the witness existed, the witness was ready and willing to testify, and the
absence of the witness' testimony prejudiced petitioner and denied him afair trial. In
particular, when challenging trial counsel's failure to produce expert testimony, the
defendant must articulate what evidence was available and identify the witness who was
willing to offer such evidence. Also, trial counsel need not introduce expert testimony on
his client's behalf if he is able effectively to cross-examine prosecution witnesses and
elicit helpful testimony. Finally, trial counsel will not be deemed ineffective for failing to
call amedical, forensic, or scientific expert merely to critically evaluate expert testimony
which was presented by the prosecution.
Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. 2013) (citations, alternations and
quotation marks omitted).
Here, Tiburcio has failed to establish Attorney Feeney's ineffectiveness for his failure to
consult with and/or call an expert to testify. As set forth above, Tiburcio was required to
articulate what evidence was available and identify the expert witness who was willing to offer
such evidence at trial. At the PCRA hearing, there was no testimony presented identifying any
expert witness that was available to testify on Tiburcio's behalf at trial and/or the evidence he or
she would have presented. Furthermore, Attorney Feeney was not required to introduce expert
testimony on behalf of Tiburcio since he was able to effectively cross-examine Detective
Leporace and elicit helpful testimony at Tiburcio's trial. Notes of Testimony, Jury Trial, August
1, 2016, through August 2, 2016, at 330-339. Attorney Feeney also testified that he didn't
believe an expert would have helped Tiburcio's case since this was not asituation where there
was aquestion about whether the drugs possessed by Tiburcio were for delivery or personal use.
20
The facts of the case established that Karla Romig requested that Tiburcio bring her drugs and he
was arrested in the course of delivering them to her. In fact, during the PCRA hearing, Tiburcio
admitted that he was bringing drugs to Karla Romig's house because she was sick and those
drugs were on his person when he was arrested. N.T. at 39. Attorney Feeney thus had a
reasonable basis for not consulting with and/or calling an expert to dispute Detective Leporace's
testimony. Therefore, for all of these reasons, this Court finds that Tiburcio's claim lacks
arguable merit.
Next, this Court will address Tiburcio's assertion that Attorney Feeney was ineffective
when he failed to object and/or move for amistrial and/or seek acurative instruction when
Detective Leporace testified that he was asked by the Commonwealth to render averdict on what
was seized from the defendants and that he complied with that request. Specifically, Tiburcio
takes issue with the following exchange:
Attorney Feeney: And in preparation acouple of months ago or even last week, it
never occurred to you to look to see what the criminal charges filed
against Juan Tiburcio was?
Detective Leporace: No. Iwas asked to render averdict on what was seized on August
11th.And that's exactly what Idid.
Notes of Testimony, Jury Trial, August 1, 2016, through August 2, 2016, at 336.
In this case, Detective Leporace testified as an expert in drug trafficking and drug
packaging. Rule 702 of the Pennsylvania Rules of Evidence specifically addresses expert
witnesses and states, in relevant part, as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if-
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(a) the expert's scientific, technical, or other specialized knowledge is beyond that
possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine afact in issue; and
(c) the expert's methodology is generally accepted in the relevant field.
Pa.R.E. 702. "It is well-settled that the purpose of expert testimony is to assist in grasping
complex issues not within the ordinary knowledge, intelligence and experience of the jury."
Commonwealth v. Mendez, 74 A.3d 256, 262 (Pa. Super. 2013) (quotation marks, alteration and
citation omitted).
An opinion is not excludable merely because it embraces an ultimate issue. PA R.E. 704.
An expert opinion that embraces an ultimate issue may be objectionable on other
grounds, however, as the Pennsylvania Superior Court observed:
Pennsylvania law allows expert opinion testimony on the ultimate issue. As with
lay opinions, the trial judge has discretion to admit or exclude expert opinions on
the ultimate issue depending on the helpfulness of the testimony versus its
potential to cause confusion or prejudice.
Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 882 (Pa. Super. 2019) (citation omitted).
Here, Tiburcio claims that Detective Leporace's statement that he was asked to "render a
verdict" and "that's exactly what Idid" was objectionable and that Attorney Feeney was
ineffective when he failed to object, move for amistrial and/or request acurative instruction.
Tiburcio states that it is the sole responsibility of the jury to render averdict, not the expert.
Merriam-Webster's Online Dictionary ("Merriam-Webster") defines the term "verdict"
as "the finding or decision of ajury on the matter submitted to it in trial." Merriam-Webster's
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Online Dictionary, definition of verdict, https://xvww.merriam-webster.com/dictionary/verdict
(last visited August 30, 2022). Merriam-Webster also lists the synonyms for "verdict" as
"award, call, conclusion, decision, deliverance, determination, diagnosis, judgment (or
judgement), opinion, resolution." Id. (
emphasis added). As set forth above, an expert is
permitted to render an opinion and that opinion may address the ultimate issue being decided by
ajury. Therefore, Detective Leporace's statement was he was "asked to render averdict" and
that is "exactly what Idid" was synonymous with him saying that he was asked to render an
opinion and did, in fact, provide one. There was nothing objectionable about this statement.
Furthermore,
Every unwise or irrelevant remark made in the course of atrial by ajudge, awitness, or
counsel does not compel the granting of anew trial. A new trial is required when the
remark is prejudicial; that is, when it is of such anature or substance or delivered
in such amanner that it may reasonably be said to have deprived the defendant of a
fair and impartial trial. Moreover, it must be determined from all the circumstances
whether aremark has aprejudicial effect; there is no fixed rule applicable to every case.
An accepted guide in determining prejudicial effect is that, if the remark may be said with
fair assurance to have had but aslight effect upon the jury, if any at all, and one is not left
in doubt that it had no substantial influence in the case, it will not vitiate an otherwise fair
trial.
Commonwealth v. Sullivan, 820 A.2d 795, 800 (Pa. Super. 2003) (citation omitted) (emphasis in
original). Even if Detective Leporace's word choice could have been different, it was clear from
the testimony that he was asked to provide his opinion regarding the drugs seized on August 11 h .
23
Tiburcio has failed to establish that he was deprived of afair and impartial trial as aresult of
Detective Leporace's testimony. Tiburcio's claim lacks arguable merit.
Tiburcio next claims that Attorney Feeney was ineffective when he failed to request that
ajury instruction called a "low grade charge" in relation to the Commonwealth's expert
testimony.
"An instruction that expert opinion testimony is `low-grade' evidence is proper when: 1)
The expert's opinion is based on facts recited in ahypothetical question; or 2) The expert's
opinion is contradicted by direct evidence." Commonwealth v. Correa, 620 A.2d 497, 502 (Pa.
Super. 1993) (citation omitted). However, this instruction has limited use. In Commonwealth v.
Hernandez, 615 A.2d 1337 (Pa. Super. 1992), the Superior Court rejected the application of the
low-grade jury instruction stating:
A fair characterization of the low grade witness instruction would be that it was designed
specifically for dealing with the competency of lay witnesses and psychiatrists testifying
on questions of sanity.
A low grade witness instruction is not applicable here. This case is an involuntary deviate
sexual intercourse case. No one had been asked to testify as to [the defendant's] sanity in
ahomicide. [The expert's] statement was not rebutted by other expert testimony, or by
the physical evidence. There is no basis for giving alow grade witness instruction.
Id. at 1344.
In this case, Tiburcio claims that Attorney Feeney was ineffective due to his failure to
request alow-grade charge instruction. As set forth above, "the low grade witness
instruction... was designed specifically for dealing with the competency of lay witnesses and
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psychiatrists testifying on questions of sanity." Here, Tiburcio's case involved drug possession
and delivery. Tiburcio's sanity was not at issue. Detective Leporace's statement was not
contradicted by other expert testimony or physical evidence. Therefore, alow-grade jury
instruction was not applicable. Additionally, this Court notes that in Commonwealth v. Genao,
240 A.3d 189 (Pa. Super. 2020) (non-precedential decision), the Superior Court recognized the
removal of the low-grade instruction from the standard jury instructions. Genao, supra at *6
(trial court properly denied request for low-grade instruction based on its limited applicability
and its removal from the standard jury instructions). Tiburcio's claims lack arguable merit.
Disclosure of the Confidential Informant
Tiburcio next claims that Attorney Feeney was ineffective due to his failure to file a
pretrial motion seeking the disclosure of the confidential informant's identity.
The Commonwealth enjoys aqualified privilege to withhold the identity of aconfidential
source. In order to overcome this qualified privilege and obtain disclosure of a
confidential informant's identity, adefendant must first establish, pursuant to Rule
573(B)(2)(a)(i), that the information sought is material to the preparation of the defense
and that the request is reasonable. Only after the defendant shows that the identity of the
confidential informant is material to the defense is the trial court required to exercise its
discretion to determine whether the information should be revealed by balancing relevant
factors, which are initially weighted toward the Commonwealth.
In striking the proper balance, the court must consider the following principles:
A further limitation on the applicability of the privilege arises from the
fundamental requirements of fairness. Where the disclosure of an informer's
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identity, or of the contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to afair determination of acause, the
privilege must give way. In these situations, the trial court may require disclosure
and, if the Government withholds the information, dismiss the action.
No fixed rule with respect to disclosure is justifiable. The problem is one that
calls for balancing the public interest in protecting the flow of information against
the individual's right to prepare his defense. Whether aproper balance renders
nondisclosure erroneous must depend on the particular circumstances of each
case, taking into consideration the crime charged, the possible defenses, the
possible significance of the informer's testimony, and other relevant factors.
Our case law provides that if adefendant shows that disclosure of an informant's identity
would yield information material to his or her defense, and that the request for disclosure
is reasonable, the trial court must then balance relevant factors to determine, in its
discretion, whether the informant's identity should be revealed. However:
Before the informant's identity may be revealed, ... the accused must show the
information is material to the defense and the request is reasonable. The defendant
need not predict exactly what the informant will say, but he must demonstrate a
reasonable possibility the informant could give evidence that would exonerate
him. More than amere assertion that disclosure of the informant's identity might
be helpful is necessary. Only after this threshold showing that the information is
material and the request reasonable is the trial court called upon to determine
whether the information is to be revealed.
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To prove the information is material, the defendant must lay an evidentiary basis or
foundation that the confidential informant possesses relevant information that will
materially aid the defendant in presenting his or her defense and that the information is
not obtainable from another source.
Commonwealth v. Ellison, 213 A.3d 312, 316-317 (Pa. Super. 2019) (citations, quotation marks
and alterations omitted).
In this case, Tiburcio claims that Attorney Feeney was ineffective due to his failure to file
apretrial motion to reveal the identity of the confidential informant. He believes that learning
the identity of the confidential informant would have permitted Attorney Feeney to investigate
this individual and their ties to the Berks County drug trade, their connection to this case, their
prior testimony in other cases and whether their testimony was credible. Petitioner's Post PCRA
Hearing Argument at 12. He further alleges that the confidential informant could have been used
to testify that Karla Romig stole drugs from the Commonwealth during controlled buys. Id.
However, as set forth in Ellison, supra, Tiburcio "must demonstrate areasonable possibility the
informant could give evidence that would exonerate Hinz." Ellison, supra at 317 (emphasis
added). Here, Tiburcio has made no such demonstration. Instead, Tiburcio wanted the name of
the confidential informant simply to perform afurther investigation into the reliability of the
confidential informant and to offer duplicative evidence of Karla Romig's theft of drugs from the
Commonwealth. $ His assertion that learning the name of the confidential informant might have
been helpful to his case is insufficient. Therefore, his claim lacks arguable merit.
Additionally, during the PCRA hearing, Attorney Feeney testified that he did not believe
the identity of the confidential informant was relevant since Tiburcio was only charged with the
sKarla Romig freely admitted to stealing from the Commonwealth on both direct and cross-examination. Notes of
Testimony, Jury Trial, August 1, 2016, through August 2, 2016, at 168, 171-172, 182.
27
drugs in his possession when he went to Karla Romig's house. He believed that the testimony of
Karla Romig would have been more helpful to Tiburcio's case than anything offered by the
confidential informant. Attorney Feeney also stated that adetective was always present when
the drug transactions took place with Karla Romig. In fact, the testimony presented at trial
established that law enforcement conducted surveillance and took pictures of Tiburcio during the
controlled buys. This Court finds that Attorney Feeney clearly had areasonable basis for not
filing apretrial motion to seek the identity of the confidential informant. Therefore, for all of the
above reasons, Tiburcio is not entitled to relief as his claim lacks arguable merit.
CONCLUSION
This Court finds that Tiburcio has failed to prove that Attorney Feeney was ineffective.
For the foregoing reasons, Tiburcio's Motion must be DENIED.
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