Com. v. Morales-Gasparini, J.

Opinion

J-S13031-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JORGE MORALES-GASPARINI : : Appellant : No. 1303 MDA 2019

Appeal from the PCRA Order Entered July 16, 2019 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003144-2014

BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED MARCH 27, 2020

Jorge Morales-Gasparini (Morales-Gasparini) appeals pro se from the

order entered by the Court of Common Pleas of Berks County (PCRA court)

dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

In April 2015, after Jorge Morales-Gasparini waived his right to a jury

trial, the trial court held a bench trial. The court convicted Morales-Gasparini

of four counts each of delivery of a controlled substance, possession with

intent to deliver a controlled substance and possession of a controlled

substance, three counts of corrupt organizations, and one count each of

criminal use of a communication facility and dealing in proceeds of unlawful

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S13031-20

activities. The conviction stems from Morales-Gasparini’s participation in a

narcotics organization, including providing transportation to and from drug

transactions, answering the organization’s phones to facilitate drug

transactions, taking instructions from superiors, and being present when

customers arrived to purchase drugs.

On May 21, 2015, the trial court sentenced Morales-Gasparini to an

aggregate term of not less than 13 nor more than 30 years’ imprisonment.

This Court affirmed the judgment of sentence on October 11, 2017, and our

Supreme Court denied his petition for allowance of appeal on March 21, 2018.

(See Commonwealth v. Morales-Gasparini, 179 A.3d 552 (Pa. Super.

2017), appeal denied, 182 A.3d 994 (Pa. 2018)).

On August 3, 2018, Morales-Gasparini, acting pro se, filed the instant

PCRA petition, arguing that trial counsel was ineffective for failing to raise the

issue of lack of subject matter jurisdiction over his criminal proceeding. (See

PCRA Petition, 8/03/18, at 4-12). Appointed counsel filed a motion to

withdraw as counsel with a Turner/Finley1 no merit letter averring that his

review of the record revealed no meritorious issues that he could raise on

Morales-Gasparini’s behalf. On June 24, 2019, the PCRA court granted

counsel’s motion to withdraw and issued notice of its intent to dismiss the

PCRA petition without a hearing. See Pa.R.Crim.P. 907(1).

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

-2- J-S13031-20

Morales-Gasparini then filed a response to the Rule 907 Notice

acknowledging his claim concerning the subject matter jurisdiction of the trial

court was meritless because it was based on his misunderstanding of the law.

(See Rule 907 Response, 7/05/19, at 4-6). Morales-Gasparini also requested

leave to amend his PCRA petition to raise a cognizable claim but he did not

identify that claim. On July 16, 2019, the PCRA court denied the request for

leave to amend because Morales-Gasparini had substantial time to raise any

arguments and entered the order dismissing the petition. (See Order,

7/16/19). This timely appeal followed. The PCRA court did not order Morales-

Gasparini to file a Rule 1925(b) statement; it filed an opinion on August 19,

2019. See Pa.R.A.P. 1925(a)-(b).

“We review an order granting or denying a petition for collateral relief

to determine whether the PCRA court’s decision is supported by the evidence

of record and free of legal error.” Commonwealth v. Velazquez, 216 A.3d

1146, 1149 (Pa. Super. 2019) (citation omitted). “We will not disturb the

findings of the PCRA court unless there is no support for those findings in the

record.” Id. (citation omitted).

In his appellate brief, Morales-Gasparini raises for the first time that (1)

his counsel presented a deficient performance and rendered ineffective

assistance of counsel; (2) his trial counsel and the Commonwealth attempted

to make a plea agreement to avoid a bench or jury trial; (3) Counsel did not

present an “actual innocence” defense; (4) counsel was ineffective because

-3- J-S13031-20

he did not give Morales-Gasparini his discovery packet while the case was

pending; (5) his sentence was an unbalanced mix of consecutive and

concurrent sentences; (6) the evidence was not sufficient to prove the

charges; and (7) other suspects were rounded up and entered plea

agreements that “pointed the finger” at him.

At the outset, we note that because none of those issues was raised

before the PCRA court, the claims are waived because they cannot be raised

for the first time on appeal. See Pa.R.A.P. 302(a) (issues not raised in lower

court are waived and cannot be raised for first time on appeal). We also note

that issues 5, 6 and 7 are waived for the additional reason that they had to

be raised in Morales-Gasparini’s direct appeal. (“An issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, during

unitary review, on appeal . . .”). 42 Pa. C.S. § 9544 (b).

Even if they had been raised, Morales-Gasparini’s pro se brief is so

rambling, disjointed and difficult to follow that we could not have conducted

meaningful appellate review. It contains no coherent legal argument and lacks

an argument section mirroring the seven questions raised in the statement of

questions involved. See Pa.R.A.P. 2116(a); 2119(a)-(c). It makes vague,

generalized, undeveloped claims that his counsel was ineffective, but does not

develop them or show the actions complained of that prejudiced him. See

Commonwealth v. Jones, 815 A.2d 598, 612 (Pa. 2002) (mere boilerplate

-4- J-S13031-20

allegations are inadequate to meet the affirmative burden to rebut the

presumption that lawyers are competent and effective).

“Although this Court is willing to liberally construe materials filed by a

pro se litigant, pro se status confers no special benefit upon the appellant.”

Commonwealth v. Vurimindi, 200 A.3d 1031, 1037 (Pa. Super. 2018),

appeal denied, 217 A.3d 793 (Pa. 2019), cert. denied sub nom. Vurimindi v.

Pennsylvania, 2020 WL 873220 (U.S. 2020) (citation omitted). Accordingly,

pro se litigants must comply with this Court’s procedural rules; if there are

considerable defects, the issues will be waived. See id.; see also Pa.R.A.P.

2101. Accordingly, Morales-Gasparini’s issues are waived on this basis as

well.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/27/2020

-5-