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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RONALD JERMAINE GALBREATH

                            Appellant               No. 109 MDA 2016


                Appeal from the PCRA Order December 17, 2015
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001168-2012
                                          CP-28-CR-0001202-2012


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 22, 2016

       Appellant Ronald Jermaine Galbreath appeals from the December 17,

2015 order entered in the Franklin County Court of Common Pleas denying

his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§

9541-9546. We affirm.

       On March 5, 2013, a jury found Appellant guilty of two counts each of

delivery of a controlled substance and criminal use of a communication

facility.1


____________________________________________


1
  35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 7512(a), respectively. The
charges were at two docket numbers, CP-28-CR-0001202-2012 and CP-28-
CR-0001168-2012. At each docket, Appellant was convicted for one count
of delivery of a controlled substance and one count of criminal use of a
communication facility.
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       On April 24, 2013, the trial court sentenced Appellant to an aggregate

term of 54 to 300 months’ imprisonment. On May 7, 2013,2 Appellant filed a

pro se post-sentence motion alleging trial counsel was ineffective, the trial

court erred, and the verdict was against the weight of the evidence.

       On May 15, 2013, trial counsel filed a motion to withdraw as counsel,

alleging he could no longer represent Appellant because Appellant raised an

ineffectiveness claim.      On May 22, 2013, the trial court granted counsel’s

motion to withdraw and appointed new counsel.

       On June 13, 2013, Appellant’s counsel filed a notice of appeal,

purporting to appeal from the May 22, 2013 order. On April 15, 2014, this

Court quashed the appeal, finding the trial court had not addressed the post-

sentence motion, and the May 22, 2013 order was not a final, appealable

order.

       In an order dated May 28, 2014 and mailed to Appellant’s counsel on

May 29, 2014, the trial court stated that Appellant’s post-sentence motion

filed on May 7, 2013 would be deemed filed on May 23, 2014 and treated as

a post-sentence motion nunc pro tunc. The order gave Appellant 20 days



____________________________________________


2
   On May 6, 2016, Appellant’s counsel filed a motion for extension of time to
file a post-sentence motion, which the trial court granted. Ten days from
April 24, 2013 was Saturday, May 4, 2016. Accordingly, Appellant had until
Monday, May 6, 2016 to timely file a post-sentence motion. See 1 Pa.C.S. §
1908 (excluding weekends and holidays from the computation of time when
the last day of the time period falls on a weekend or holiday).



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from receipt of the order to file an amended or supplemental post-sentence

motion and the Commonwealth 40 days to file a response.

       On June 19, 2014, Appellant filed a counseled amended post-sentence

motion alleging the verdict was against the weight of the evidence.       The

Commonwealth filed an answer.

       On September 19, 2014, the trial court denied the post-sentence

motion. Appellant did not file a direct appeal.

       On September 10, 2015, Appellant filed a counseled PCRA petition.3

The Commonwealth filed an answer on October 16, 2015.

       On December 4, 2015, the PCRA court conducted an evidentiary

hearing. On December 17, 2015, the PCRA court denied the PCRA petition.

On January 18, 2016, Appellant filed a timely notice of appeal.4

       On February 9, 2016, counsel filed a motion to withdraw as counsel.

Following a March 18, 2016 hearing, during which Appellant participated via

telephone conference, the PCRA court found Appellant knowingly and

intelligently waived his right to counsel on his PCRA appeal.5
____________________________________________


3
 In March of 2015, Appellant sent two letters to the trial court. Because he
was represented by counsel, the letters were forwarded to counsel on
October 29, 2015.
4
  Thirty days from December 17, 2015 was Saturday, January 16, 2016.
Therefore, Appellant had until Monday, January 18, 2016 to timely file the
notice of appeal. See 1 Pa.C.S. § 1908.
5
  In a March 18, 2016 order, the PCRA court states it “conducted an
extensive colloquy of [Appellant] regarding his right to waive counsel and his
(Footnote Continued Next Page)


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      On April 4, 2016, Appellant filed a concise statement of matters

complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b).          On April 29, 2016, the PCRA court issued a Rule

1925(a) opinion, incorporating its December 17, 2015 opinion addressing

Appellant’s PCRA petition.

      Appellant raises the following issues on appeal:

          A. Whether trial counsel was ineffective in failing to consult
          on the consequences of a possible conviction which led to
          Appellant declining a favorable plea offer of 24 to 60
          months?

          B. Whether trial counsel was ineffective in failing to call the
          confidential informant as a witness?

          C. Whether trial counsel was ineffective in failing to call
          Officer B as a witness?

          D. Whether trial counsel was ineffective in failing to object
          to the use of a video and audio recording of the Appellant
          that was not provided until after the [p]re–[t]rial
          conference?

          E. Whether trial counsel was ineffective in failing to
          properly review the recording with Appellant in
          consideration of the plea offer and the likelihood of success
          at trial?

          F. Whether PCRA counsel was ineffective in failing to raise
          in an [a]mended [p]etition the five (5) preceding claims of
          trial [counsel] ineffectiveness?

                       _______________________
(Footnote Continued)

right to proceed as a self-represented litigant.” A transcript of the hearing,
at which Appellant participated by telephone, is not in the certified record.
The March 18, 2016 order also provides Appellant 21 days from the date of
the order to file a statement pursuant to Pennsylvania Rule of Appellate
Procedure 1925.



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           G. Whether PCRA counsel was ineffective in failing to raise
           in an [a]mended [p]etition the [s]entencing claim?

Appellant’s Brief at 3.

      Appellant’s issues allege           trial counsel and PCRA counsel were

ineffective.

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the   evidence      of   record    and    whether      it    is    free   of    legal    error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

      For ineffective assistance of counsel claims, the petitioner must

establish: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed       to   effectuate    his    interests;    and        (3)   but    for     counsel’s

ineffectiveness, there is a reasonable probability that the outcome of the

proceedings would have been different.”                Commonwealth v. Spotz, 84

A.3d 294, 311 (Pa.Super.2014) (quoting Commonwealth v. Ali, 10 A.3d

282, 291 (Pa.2010)). “To demonstrate prejudice, the petitioner must show

that ‘there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedings would have been different.’” Id. at 312

(quoting    Commonwealth           v.    King,    57    A.3d       607,   613        (Pa.2012)).

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”           Ousley, 21 A.3d at 1244 (quoting

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)).                               “The

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failure to prove any one of the three [ineffectiveness] prongs results in the

failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

      Appellant first alleges his trial counsel was ineffective for failing to

consult with him regarding the consequences of declining a plea offer.

Appellant’s Brief at 8-11. He maintains the Commonwealth offered a plea

bargain and that he and counsel did not have the opportunity to discuss the

plea offer. He maintains counsel’s failure to discuss the plea offer with him

had no reasonable basis and prejudiced Appellant. Id. at 11.

      The PCRA court found:

         [Appellant’s attorney] testified that he is an experienced
         criminal defense attorney, having defended roughly twenty
         cases, many of which involved drug charges. He testified
         that it is his practice to always consult with his clients in
         criminal cases regarding the possible consequences of a
         conviction. [Counsel] further testified that he would have
         made [Appellant] aware of the length of the sentence
         [Appellant] would face should he be convicted of the
         crimes for which he was charged. [Appellant] testified that
         he declined to take the plea deal offered by the
         Commonwealth because [counsel] did not properly explain
         to [Appellant] the ramifications of being convicted of the
         charges by a jury versus that of taking the
         Commonwealth’s plea offer.            [Counsel’s] testimony
         contradicts [Appellant’s] account; [counsel] testified that
         [Appellant] was adamant in refusing any and all plea deals
         offered by the Commonwealth, because [Appellant] was
         out on parole at the time and was concerned about the
         consequences of pleading guilty to criminal charges while
         on parole. The [c]ourt finds [counsel] to be more credible
         on this issue. Here, [Appellant’s] claim fails to meet the
         first prong of the ineffective assistance of counsel analysis,
         as his claim lacks any merit, because [counsel] followed
         [Appellant’s] own voluntary desire to decline the
         Commonwealth’s plea offer and defend the case at trial.
         Therefore, [Appellant] is not entitled to relief on this issue.

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Opinion, 12/17/2015, at 3-4. The PCRA court’s determination that this claim

lacked merit is supported by the record and free from legal error.

       Appellant’s second claim maintains his trial counsel was ineffective for

failing to call the confidential informant as a witness.6 Appellant’s Brief at

11-14. Appellant argues the confidential informant’s testimony “would have

exposed himself as incredible when questioned about the events surrounding

the alleged commission of the offense.” Id. at 12-13. He argues that the

Commonwealth presented evidence to establish Appellant delivered a

controlled substance.       Id.   However, “[t]he informant would have directly

contradicted this since he would have testified against his interest to

implicate Appellant.” Id. at 13.

       The trial court found:

          [Counsel’s] basis for not calling the informant [was] not
          only reasonable, but also strategically prudent. [Counsel]
          testified that, in his opinion, little to no information helpful
          in [Appellant’s] case would be gleaned from questioning
          the informant. In fact, putting the informant on the stand
          would only provide an opportunity for more evidence
          beneficial to the Commonwealth’s case to be presented.
          [Counsel] testified that, at the time, [Appellant] was in
          agreement with the decision not to call the informant as a
____________________________________________


6
   A PCRA petitioner cannot prevail on a claim of trial counsel’s
ineffectiveness for failure to call a witness unless the petitioner shows that:
“(1) the witness existed; (2) the witness was available to testify for the
defense; (3) counsel knew of, or should have known of, the existence of the
witness; (4) the witness was willing to testify for the defense; and (5) the
absence of the testimony of the witness was so prejudicial as to have denied
the defendant a fair trial.” Commonwealth v. Washington, 927 A.2d 586,
599 (Pa.2007).



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         witness. Therefore, [Appellant] is not entitled to relief on
         this issue.

Opinion, 12/17/2015, at 4-5. This conclusion is supported by the record and

free from legal error.

      Appellant’s third claim contends counsel was ineffective for failing to

call “Officer B” as a witness. Appellant’s Brief at 14-15. He argues that the

officer would have testified that no drugs were found in Appellant’s home

during execution of the search warrant. Id. at 14.

      The PCRA court found that, although evidence that there was no

evidence of drugs found in Appellant’s home “might appear beneficial to

[Appellant], it is extremely unlikely it would have changed the outcome of

the trial. The fact that no drugs were found in the search of [Appellant’s]

home has no bearing on whether enough evidence was presented by the

Commonwealth to prove that [Appellant] was involved in the drug

transaction.”   Opinion, 12/17/2016, at 5.   The PCRA court concluded that

counsel’s decision to not call the officer as a witness was reasonable and

that Appellant did not suffer prejudice because calling the officer as a

witness would not have changed the outcome of the trial.      Id. The PCRA

court’s determination is supported by the record and free from legal error.

      Appellant’s fourth claim contends counsel was ineffective for failing to

object to the use of a video and audio recording that the Commonwealth did

not disclose until after the pre-trial conference. Appellant’s Brief at 15-17.

Appellant states that, even if counsel for the Commonwealth did not know of

the video until after the pre-trial conference, he failed to inform defense

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counsel immediately.      Id. at 16.   Appellant maintains that trial counsel

should have objected, and the trial court could have declared a mistrial or

cautioned the jury. Id.

      The PCRA court found:

         [Counsel] testified that he received notice of the existence
         of the video and audio recording on January 2, 2013,
         through a letter from then-Assistant District Attorney
         Jeremiah Zook. On January 24, 2013, [counsel] wrote a
         letter to [Appellant] regarding the existence of this
         recording and [advising him] that ADA Zook would offer a
         plea deal in light of its existence. [Counsel] could not
         recollect if this was the first time he made [Appellant]
         aware of the recording, or if he discussed it with him
         before that date.

         [Counsel] could[ not] recall the exact date he watched the
         video, but he testified that it was [a] short, straightforward
         video that strengthened the Commonwealth’s case. After
         viewing the film, [counsel] discussed its contents, and the
         implications on the case, with [Appellant]. According to
         [counsel], [Appellant] was still adamant in refusing to
         accept any plea offer from the Commonwealth.
         Importantly, for this claim, [counsel] testified that he had
         sufficient time in which to review the recording and explain
         its contents [to Appellant], as the trial occurred on March
         5, 2013, approximately six weeks after [Appellant] was
         made aware of the existence of the recording. The [c]ourt
         finds [counsel] more credible on this issue. Therefore,
         [Appellant] is not entitled to relief on this issue.

Opinion, 12/17/2015, at 6. The PCRA court’s findings are supported by the

record and free from legal error.

      Appellant also contends trial counsel was ineffective for failing to

review the recording with Appellant. Appellant’s Brief at 17-18. Appellant

maintains that if counsel had met with him regarding the recording, he could



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have “exploited it into, at best, a not guilty verdict at [trial] or at worst, a

better bargaining positon with regard to the plea bargain offered by the

Commonwealth.”         Id. at 17.        He claims counsel failed to review the

recording with Appellant and, therefore, Appellant could not weigh whether

to accept a plea offer or proceed with trial. Id. at 18.

       The PCRA court found the testimony of counsel at the PCRA hearing

credible, including that Appellant was unwilling to accept any plea offered by

the Commonwealth.         Opinion, 12/17/2016, at 7.    The court found counsel

“clearly and adequately apprised [Appellant] of the fact that this recording

would be extremely difficult evidence to overcome if they went to trial.” Id.

The PCRA court concluded that counsel reviewed the recording and consulted

with Appellant on the recording’s impact on his case and found Appellant’s

ineffective assistance of counsel claim lacked merit. Id. This conclusion is

supported by the record and free from legal error.

       Appellant’s last two issues allege PCRA counsel was ineffective for

failing to raise ineffective assistance of counsel claims7 and for failing to



____________________________________________


7
  Appellant maintains counsel filed a no-merit letter. However, counsel
raised the ineffective assistance of counsel claims in the amended PCRA
petition and represented Appellant at the PCRA hearing that addressed the
claims. Appellant’s counsel filed a motion to withdraw following the filing of
the notice of appeal, noting that during a telephone discussion, Appellant
“made it clear that he wanted [counsel] to withdraw and to proceed pro se.”
Motion to Withdraw as Counsel, filed 2/9/2016.




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raise an Alleyne8 challenge.9 PCRA counsel ineffectiveness claims, however,

cannot be raised for the first time on appeal. Commonwealth v. Henkel,

90 A.3d 16, 20-30 (Pa.Super.2014) (en banc), appeal denied, 101 A.3d

785 (Pa.2014). Therefore, we will not address the issues.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2016




____________________________________________


8
 Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d
314 (2013).
9
 The sentencing orders state the sentences imposed for the drug violations
were not mandatory minimum sentences.



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