Com. v. Sackie, D.

Opinion

J-S04002-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

DAKINS RONESS SACKIE :

:

Appellant : No. 1687 EDA 2025

Appeal from the PCRA Order Entered June 9, 2025 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003442-2022

BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.

MEMORANDUM BY LAZARUS, P.J.: FILED MARCH 2, 2026

Dakins Roness Sackie appeals from the order, entered in the Court of

Common Pleas of Lehigh County, following the dismissal, after a hearing, of

his Post Conviction Relief Act (PCRA) petition. See 42 Pa.C.S.A. §§ 9541-

9546. Sackie’s counsel, Kimberly F. Makoul, Esquire, has also filed an

application seeking to withdraw from this collateral appeal. After careful

review, we affirm on the basis of the thorough PCRA opinion authored by the

Honorable Anna-Kristie M. Marks and grant counsel’s motion to withdraw.

In 2022, Sackie was arrested and charged with several sexual offenses

stemming from his communication with an undercover agent, whom he

believed was a 19-year-old girl arranging for him to receive a “BBBJ”

(bareback blowjob) from a 15-year-old girl. Using an online escort service

called “Skipthegames.com,” Sackie and the agent discussed prices, ages of

girls, and his interest in receiving oral sex from a 15-year-old girl in exchange

J-S04002-26

for fast food and Pepperidge Farm goldfish. Law enforcement officers, which

included members from the Allentown Police Department’s Homeland Security

Human Trafficking Task Force, set up surveillance units at the Upper Macungie

Township Motel 6, where Sackie had agreed to meet the girls. While law

enforcement officers were in the process of apprehending Sackie at the Motel

6, Sackie forcefully attempted to flee from the agents, resulting in several

officers being injured and Sackie, himself, being “body check[ed] . . . into the

corner of the exterior wall of the [motel] hallway[.]” PCRA Court Opinion,

6/9/25, at 18. Sackie fell out of a second-floor hallway window through

broken glass and landed on the parking lot. Sackie was transported to Lehigh

Valley Hospital-Cedar Crest with a deep laceration on his left upper arm, a

neck fracture, and two broken legs. See id. at 19-20.

Sackie was arrested and charged with one count each of unlawful

contact with a minor (F-1),1 attempted involuntary deviate sexual intercourse

with a person less than 16 years of age (F-1), 2 and two counts of resisting

arrest.3 On February 9, 2023, Sackie filed a pre-trial motion seeking to

suppress data obtained from his cell phone and the passcode for the cell phone

that he gave to police officers in the hospital’s emergency room when he was

being treated for his injuries. The motion also asserted that the evidence was

____________________________________________

1 18 Pa.C.S.A. § 6318(a)(1).

2 Id. at § 901(a); id. at § 3123(a)(7).

3 Id. at § 5104.

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insufficient to prove the charge of resisting arrest. Following a hearing and

after receiving memoranda from the parties, the court denied the motion. A

jury trial was held in the matter in February 2024. Prior to deliberations,

defense counsel requested that the court give an entrapment instruction to

the jury, which the court denied. Ultimately, the jury returned a guilty verdict

on the sexual offenses and acquitted Sackie of resisting arrest.

Following the verdict, the court revoked Sackie’s bail and ordered the

preparation of a presentence investigation report. On May 2, 2024, the court

sentenced Sackie to an aggregate term of incarceration of 84-168 months.

Sackie was classified as a Tier III offender under our Commonwealth’s Sexual

Offender Registration and Notification Act, requiring him to register with the

Pennsylvania State Police for his lifetime. See 42 Pa.C.S.A. § 9799.10, et.

seq. Sackie did not meet the criteria to be classified as a sexually violent

predator. At the conclusion of sentencing, Sackie indicated that his attorney

had gone over his appeal rights with him and that he did not have any

questions about those rights. See N.T. Sentencing Hearing, 5/2/24, at 16.

On the date of sentencing, Sackie signed a document titled “Important

Post-Sentence Information” which included details on his right to a file post-

sentence motion and notice of appeal, the time within which to file same, his

right to the assistance of counsel to prepare a post-sentence motion or any

appeal, and a notice that his attorney’s representation would terminate in 30

days if he did not file a post-sentence motion or appeal. See Important Post-

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Sentence Information, 5/2/24, at 1-2. Sackie did not file a post-sentence

motion or direct appeal.

On December 31, 2024, Sackie sent a pro se letter to the trial court,

which the court treated as a timely pro se PCRA petition, seeking

reinstatement of his direct appeal rights and the appointment of PCRA counsel.

On January 8, 2025, the PCRA court appointed counsel who filed an amended

petition. The petition alleged that trial counsel, Charles E. Dutko, Jr., Esquire,

failed to file a direct appeal, despite: Sackie informing counsel prior to trial

that if he were convicted he wished to file a direct appeal to this Court; counsel

not explaining to Sackie his appellate rights or possible areas of appeal; Sackie

attempting to contact Attorney Dutko several times after sentencing to

request he file a direct appeal; and Sackie writing to Attorney Dutko seeking

information regarding an appeal. See Amended PCRA Petition, 3/31/25, at ¶

11. The amended PCRA petition also raised several other issues, including

challenges to the suppression court’s rulings and the court’s refusal to give

the jury an instruction on entrapment, as well as a claim that the evidence

was insufficient to convict Sackie of unlawful contact of a minor. See id. at ¶

12.

Following a hearing, at which Attorney Dutko, Sackie, and Sackie’s

mother testified, the court denied his petition. Sackie filed a timely notice of

appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Subsequently, PCRA counsel filed an application to

withdraw in this Court. Sackie raises the following issues for our review:

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(1) Whether the PCRA court abused its discretion by holding that trial counsel adequately informed [Sackie] regarding his post[-]sentence and appeal rights and [Sackie] knowingly decided not to appeal.

(2) Whether [Sackie] is entitled to PCRA relief due to the failure of trial counsel to object to the trial court’s jury instructions, which omitted an instruction regarding entrapment, by filing to object following the court’s jury charge.

(3) May appointed counsel be permitted to withdraw after a conscientious review of the issues and the facts pursuant to [] Anders[.4]

Anders Brief, at 4.

The standard of review of an order denying a PCRA petition is whether

that determination is supported by the evidence of record and is free of legal

error. Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record. Id.

Before we address the merits of Sackie’s issues on appeal, we must first

review counsel’s application to withdraw. Our Supreme Court has stated that

independent review of the record by competent counsel is required before

withdrawal from PCRA representation is permitted. Such independent review

____________________________________________

4 See Anders v. California, 386 U.S. 738 (1967). It is well-established that counsel seeking withdraw from PCRA representation should proceed under the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, because an Anders brief provides greater protections to the defendant, we will accept counsel’s Anders brief in the instant matter. See Commonwealth v. Fusselman, 866 A.3d 119, 111 n.3 (Pa. Super. 2004). Sackie’s final issue on appeal is merely a restatement of this Court’s obligation to independently review his application to withdraw. Thus, it is addressed first and separately from his substantive legal issues raised on appeal.

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requires proof of: (1) a “no-merit” letter by PCRA counsel detailing the nature

and extent of his review; (2) the “no-merit” letter by PCRA counsel listing each

issue the petitioner wished to have reviewed; (3) PCRA counsel’s explanation,

in the “no-merit” letter, as to why the petitioner’s issues are meritless; (4)

independent review of the record by the PCRA or appellate court; and (5)

agreement by the PCRA or appellate court that the petition was meritless.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).

In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),5 this

Court imposed an additional requirement for counsel seeking to withdraw from

collateral proceedings:

PCRA counsel who seeks to withdraw must contemporaneously serve a copy on the petitioner of counsel’s application to withdraw as counsel, and must supply to the petitioner both a copy of the “no-merit” letter and a statement advising the petitioner that, in the event that the court grants the application of counsel to withdraw, he or she has the right to proceed pro se or with the assistance of privately retained counsel.

Id. at 614.

After determining that counsel has satisfied the above technical

requirements, this Court must then “conduct a simple review of the record to

____________________________________________

5 This Court’s holding in Friend was subsequently overruled on other grounds

by the Supreme Court in Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). However, the additional requirement that counsel provide copies of the relevant documentation to the petitioner remains intact. Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

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ascertain if there appears on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated.” Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

Here, counsel has substantially complied with the Turner/Finley and

Friend requirements. Counsel has detailed the nature and extent of his

review, served a copy of his petition to withdraw and brief upon Sackie,

informed Sackie of his right to proceed pro se or with privately retained

counsel, raised Sackie’s issues in the form of a brief, and explained why

Sackie’s claims are meritless. We now turn to an independent review of the

record to determine whether Sackie’s claims merit relief.

In his first issue, Sackie claims that counsel was ineffective for failing to

advise him of his post-sentence and direct appeal rights. Specifically, Sackie

testified at the PCRA hearing that Attorney Dutko did not discuss with him the

possibility of filing post-sentence motions or an appeal, or the issues that could

be raised on appeal. See N.T. PCRA Hearing, 5/12/25, at 6.

Pursuant to [Roe v. Flores-Ortega, 528 U.S. 470 (2000) and its Pennsylvania expression, Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001)], counsel has a constitutional duty to consult with a defendant about an appeal where counsel has reason to believe either (1) that a rational defendant would want to appeal (for example, because there are non[-]frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. [Id.] at 1254 (quoting Roe[, supra] at 480[.]

Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006) (some

quotation marks omitted). Moreover,

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[W]here there is an unjustified failure to file a requested direct appeal, the conduct of counsel falls beneath the range of competence demanded of attorneys in criminal cases, denies the accused the assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, as well as the right to direct appeal under Article V, Section 9, and constitutes prejudice for purposes of [subs]ection 9543(a)(2)(ii). Therefore, in such circumstances, and where the remaining requirements of the PCRA are satisfied, the petitioner is not required to establish his innocence or demonstrate the merits of the issue or issues which would have been raised on appeal.

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (internal footnote

omitted). “Differently put, if counsel neglects to file a requested direct appeal,

‘counsel is per se ineffective[,] as the defendant was left with the functional

equivalent of no counsel.’” Commonwealth v. Markowitz, 32 A.3d 706,

715 (Pa. Super. 2011).

“Nonetheless, even if a defendant does not expressly ask counsel to file

a direct appeal, counsel still has a duty ‘to adequately consult with the

defendant as to the advantages and disadvantages of an appeal where there

is reason to think that a defendant would want to appeal.’” Bath, 907 A.2d

at 623. “Where the defendant did not request counsel to file a direct appeal[,]

but counsel failed to consult with the defendant, counsel is not per se

ineffective and the court applies the traditional three-prong test ‘to decide

whether counsel rendered constitutionally ineffective assistance by failing to

advise [the] client about his appellate rights.’” Markowitz, supra at 716.

After a comprehensive review of the parties’ briefs, the relevant case

law, and the record on appeal—in particular the notes of testimony from the

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PCRA hearing—we rely upon Judge Marks’ PCRA opinion in which she correctly

concluded that counsel was not ineffective for failing to file post-sentence

motions or a direct appeal for Sackie. See PCRA Court Opinion, 6/9/25, at 4-

24. Instantly, the PCRA court found Attorney Dutko credible and did not find

Sackie either credible or able to support his vague assertions that he asked

Attorney Dutko to file either post-sentence motions or an appeal on his behalf.

Moreover, the record supports the conclusion that there were no issues that

Attorney Dutko could have raised post-sentence that would have entitled

Sackie to relief; thus, he suffered no prejudice as a result of Attorney Dutko’s

actions or inaction.

Here, Attorney Dutko testified at the PCRA hearing that in February

2024, he reviewed a post-sentence colloquy with Sackie, had no concerns

about Sackie understanding his post-sentence rights, including what he would

need to do in order to file an appeal, contacted Sackie over the phone “when

it got close to his post-sentence motion date” at which time he discussed his

appellate rights and whether Sackie wanted to file post-sentence motions.

N.T. PCRA Hearing, 5/12/25, at 19. Sackie told counsel “that he did not want

to appeal anything, a post-sentence [motion] or a direct appeal.” Id.

Attorney Dutko advised Sackie that he only “had a few days to get it in if he

wanted it filed [and that] it was during that call that he told me he did not

want to file anything.” Id. at 21. Attorney Dutko had a partner in his firm

write a letter memorializing that phone call and mail it to Sackie in prison. Id.

at 19-22. Finally, counsel testified that he called Sackie’s mother and advised

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her that he could file a notice of appeal, but that she told him that they did

not want to file one. Id. at 26-27. At the end of direct examination, Attorney

Dutko testified that he did not recall Sackie ever asking him to file a notice of

appeal or post-sentence motion. Id. at 30-31.

Next, Sackie claims that trial counsel was ineffective for failing to object

to the trial court not giving the jury an entrapment instruction. Again, we rely

upon Judge Marks’ PCRA opinion to affirm the court’s determination on this

issue. See PCRA Court Opinion, 6/9/25, at 25-27. At the PCRA hearing,

Attorney Dutko testified that he remembered asking the judge to give an

entrapment instruction and that he knew he had spoken to Sackie about the

instruction. Id. at 33. Moreover, the court correctly concluded that the

defense of entrapment was not supported by the evidence where Sackie failed

to present evidence showing that the “police[’s] conduct would have induced

an innocent individual to commit a crime.” See Commonwealth v. Harris,

636 A.2d 210, 211 (Pa. Super. 1994). Here, Special Agent Kathryn Murray

“did not engage in any act of overreaching that would have induced or created

a substantial risk that a law-abiding citizen who did not have an intent to have

oral sex with a 15[-]year[-]old [would be coerced to] engage in oral sex with

a young girl of this age.” PCRA Court Opinion, 6/9/25, at 26. See

Commonwealth v. Marion, 981 A.2d 230, 239 (Pa. Super. 2009) (“Where

police ‘do no more than afford [a defendant] an opportunity’ to commit an

illegal act, their actions are not considered sufficiently outrageous police

conduct to support an entrapment defense.”) (citation omitted).

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Having determined that there are no arguably meritorious issues “that

counsel, intentionally or not, missed or misstated,” Dempster, supra, we

affirm the PCRA court’s order and grant counsel’s application to withdraw. We

instruct the parties to attach a copy of Judge Marks’ decision in the event of

further proceedings in the matter.

Order affirmed. Application to withdraw granted. Jurisdiction

relinquished.

Date: 3/2/2026

Circulated 02/04/2026

Filed Pied 02:14 PM 69/2025 2:34 6/9/2025 2.34 PM

PM

Clerk of Judicial

Judicial Records

Lehigh Lehigh County,

County, PA

IN IN THE THE COURT COURT OF COMMON

COMMON PLEAS OF LEHIGH COUNTY, PLEAS OF

LEHIGH COUNTY, PENNSYLVANIA PENNSYLVANIA

CRIMINAL DIVISION CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

vs. Case No.

No. 3442/2022

DAKINS RONESS SACKIE, SACKIE,

Defendant Defendant

APPEARANCES: APPEARANCES:

CHRISTINE F. CHRISTINE F. MURPHY,

MURPHY, ESQUIRE,

ESQUIRE,

CHIEF DEPUTY DISTRICT ATTORNEY, ATTORNEY,

On behalf

behalf of the Commonwealth

JEFFREY G.

G. VELANDER, ESQUIRE, VELANDER, ESQUIRE,

DEPUTY PUBLIC

PUBLIC DEFENDER,

DEFENDER,

On behalf

behalf of the Defendant

Defendant

OPINION OPINION

ANNA-KRISTIE M. ANNA-KRISTIE M, MARKS, MARKS, J.

J,

After a jury

jury trial conducted from February conducted from February 5, 5, 2024 through February 7, February 7,

2024, 2024, Defendant Dakins Sackie was was found guilty

guilty of Unlawful Contact with Unlawful Contact with a Minor'

Minor' and

Attempted Involuntary Deviate Sexual Sexual Intercourse,7

Intercourse, 2 and not guilty guilty on

on two

two (2)

(2) counts of

Resisting Resisting Arrest.

Arrest.33 Thereafter,

Thereafter, on May

May 2, 2024,

2024, this Court

Court sentenced

sentenced the Defendant to the Defendant to

following: On the charge of Unlawful following: On Contact with Unlawful Contact with a Minor Minor to

to a term

term of imprisonment

imprisonment of

not not less than than four four (4)

(4) years nor more than eight (8)

than eight (8) years;

years; on

on the count

count of Attempted

1 18 Pa.

18 C.S.A. §

Pa. C.S.A. 6318(a)(1).

$6318((1).

2 18Pa.CS.A. 901(a); 18 6901(a);

18 Pa. C.S.A. § CS.A. §8 3123(a)(7)

18 Pa. C.S.A. 3123(a(7) (the (the complainant is less

complainant is less than 16 16 years

of age)

age).

Involuntary Deviate Sexual Sexual Intercourse to term of imprisonment to a term imprisonment in state correctional in a state

facility facility of not not less than

than three

three ((3)

3) years nor more than

than six (6) years, followed (6) years, followed by

by three

three (3)

(3)

years of consecutive probation.

probation. These sentences were ordered ordered to

to run

run consecutively to

consecutively to

other. The aggregate sentence ordered each other, ordered was was not

not less than

than seven

seven (7)

(7) years nor

nor more

than than fourteen ((14)

14) years.

years. Thereafter,

Thereafter, on

on December

December 31,

31, 2024,

2024, the Defendant

Defendant filed

filed a pro

Post Conviction Collateral se Post Collateral Relief Petition.

Petition. Then,

Then, on January 8, 2025, Jeffrey 8, 2025, G.

Jeffrey G.

Velander, Velander, Esquire, Esquire, Deputy Public Defender, Defender, was

was appointed to represent represent the Defendant

Defendant

on his Motion Motion for Post Conviction Collateral Post Conviction Collateral Relief.

Relief. Presently before this Court Court is

is the

Defendant's Defendant's counseled Amended Motion for Relief Under Under Post Conviction

Conviction Relief Act

Act filed

filed

on March 31, 2025.

2025. An evidentiary evidentiary hearing relative to to Defendant's

Defendant's Motion was

was

conducted before this Court Court on May

May 12,

I2, 2025.

2025. At

At the evidentiary

evidentiary hearing,

hearing, the Defendant

Defendant

asserted that asserted that his trial counsel, counsel, Charles E. Dutko, Jr., E. Dutko, Jr., Esquire,

Esquire, was

was ineffective for ((I)

1)

failing to failing to file file an appeal

appeal and

and (2)

(2) not

not objecting

objecting to

to this Court's jury

jury instructions.

instructions. For

For the

reasons stated stated below, below, the Defendant's

Defendant's arguments are without without merit.

merit.

Initially Initially we

we note that

that in

in order to

to be eligible for relief under under the Post

Post

Conviction Collateral Relief Act, Conviction Act, 42 Pa. C.S.A. § Pa. C.S.A. $ 9541,

9541, et.

et. seq,

seq, the Defendant

Defendant must

must have

"been convicted "been convicted of a crime under under the laws of this Commonwealth and is is at the time

relief is granted, currently serving is granted, serving a sentence of imprisonment, imprisonment, probation

probation or parole for

the crime." 42 Pa. C.S.A. $ Pa. C.S.A. § 9543(a)(1)(i).

9543(a)(1)(i). In

In addition,

addition, the Defendant

Defendant must

must demonstrate

that the conviction that conviction or sentence resulted resulted from

from one or more of the following:

following: ([l)

1) a

violation of the Constitution violation Constitution of this Commonwealth or the Constitution Constitution or laws

laws of the

United States which, which, in

in the circumstances of the particular case, case, so undermined the

truth- determining process that truth-determining that no reliable adjudication adjudication of guilt or innocence could could

3 18 Pa. C.S.A. § 5104.

I8Pa.CS.A.$5104.

have place; (2) have taken place; (2) ineffective assistance of counsel which, of counsel which, in

in the circumstances of

the particular case, case, so undermined the truth-determining process that no reliable reliable

adjudication of guilt or innocence could have adjudication have taken place;

place; or (3)

(3) the imposition

imposition of a

han the lawful

sentence greater than maximum. 42 Pa.

lawful maximum. Pa. C.S.A.

C.S.A. §$ 9543(a)62();

9543(a)(2)(i); 42 Pa. C.S.A.

Pa. C.S.A.

$§9543(a)(2(ii);

9543(a)(2)(ii); 42 Pa. C.S.A. §g 9543(a)(2)(vii).

Pa. C.S.A. 9543(a)(2)(vii). This Court Court furthermore recognizes

that, that, applying Strickland v.

applying Strickland y. Washington, Washington, 466 U.S.

U.S. 668,

668, 104

104 S.Ct.

S.CL. 2052

2052 ((1984),

1984), the

Pennsylvania Supreme Court Court has held

held that

that claims of

of ineffective assistance of counsel counsel

are are subject to a threc-part subject to three-part analysis:

analysis: ((l)

1) the underlying legal

legal issue has arguable merit;

merit; (2)

(2)

counsel's actions lacked counsel's lacked an objective reasonable basis; and (3)

basis; and (3] actual

actual prejudice befell

befell the

defendant or omission. defendant as a result of counsel's act or omission. Commonwealth v. Tedford, 960 A.2d v. Tedford, A.2d

12 (Pa. 1, 12 2008) (adopting (Pa. 2008) (adopting U.S. Supreme Court'is Court's holding in

in Strickland).

Strickland). Counsel is

Counsel is

presumed effective and the Defendant Defendant. bears the burden of of proving all three prongs prongs of

standard.

this standard. Id;

Id.; Commonwealth y,Dennis, v. Dennis, 950 A.2d 945, 954 (Pa.

A.2d 945, (Pa. 2008);

2008);

Commonwealth , v. Meadows, Pa. 344,

Meadows, 567 Pa. 344, 787 A.2d A.2d 312, 319-320 (2001).

312, 319-320 (2001). A failure to to

satisfy any prong of the test for for ineffectiveness requires rejection of the claim.

rejection of

Commonwealth v. Commonwealth v. Martin, 5A.34 Martin, 5 A.3d 177,

177, 183

183 (Pa.

(Pa. 2010).

10)

Additionally, Additionally, this Court

Court recognizes that

that the unjustified

unjustified failure

failure to file

file a

requested requested direct appeal appeal is

is per

per se

se ineffective assistance of counsel.

counsel. Commonwealth v. v Lantzv, Lantzy, 736 A.2d 564, 571 ((Pa.

A.2d 564, Pa. 1999).

1999). However,

However, "[ blefore a court "[before court will

will find

find

ineffectiveness of counsel counsel for failing

failing to

to file

file a direct appeal,

appeal, the defendant must must prove

that that he requested an appeal appeal and the counsel counsel disregarded

disregarded the request."

Commonwealth v. Commonwealth v. Knighten, Knighten, 742 A.24

A.2d 679, 682 (Pa.

679, 682 Super. 1999).

(Pa. Super, 1999. Where no direct

appeal request appeal request was was made,

made, the defendant must

must establish

establish that a duty to

to consult was

owed. owed. Boc.

Roe v.

y. Flores- Ortega, 528 U.S.

Flores-Ortega, U.S, 470, 470, 480 (2000).

(2000). Pursuant to Roe

Pursuant to Roe and

Commonwealth v.

v, Touw,

Touw, 781 A.2d 1250, 1254 A.2d 1250, 1254 ((Pa.

Pa. Super.

Super. 2001),

2001), a duty to

to consult

can be established can established by setting setting forth

forth issues of merit

merit for further review. Roe, 528 U.S.

review. Roe, U.S. at

480; 'Touw, 480; Touw, 781 A.2d A.2d at 1254.

1254. Moreover,

Moreover, ""consult"

consult" was defined as "advising was defined "advising the

defendant about defendant about the advantages advantages and disadvantages of taking taking an appeal,

appeal, and making a

reasonable effort effort to

to discover the Roe, 528 U.S.

the defendant's wishes." Roe, U.S. at 478; Tow, 781 478; Touw,

1254. Finally, A.2d at 1254. Finally, ""a a deficient failure on the part part of counsel

counsel to consult with

to consult with the

defendant does not defendant not automatically automatically entitle defendant to entitle the defendant to reinstatement reinstatement of his or her

rights; the defendant must appellate rights; show prejudice"

must show prejudice" by demonstrating that that "there

there is

is a

reasonable probability that, that, but

but for counsel's deficient failure to consult with failure to with him him

about appeal, he would have timely appealed." Roe, about an appeal, Roe, 528 U.S.

U.S. at

at 480;

480; Touw,

TOuw, 781

A.2d at 1254.

1254. With With these standards in

in mind,

mind, we

we address the Defendant's issues.

issues.

The The testimony

testimony presented at the evidentiary evidentiary hearing on May May 12,

12, 2025 and

the record evidence establish establish that

that Charles Dutko,

Dutko, Jr., Esquire,

Esquire, a private

private criminal

criminal defense

attorney, represented attorney, represented the Defendant Defendant from

from the time of the preliminary preliminary hearing

hearing through

the time of trial.

trial. After being

being sentenced

sentenced on May 2, 2024, May 2, 2024, the Defendant Defendant was

was advised

advised by

Attorney Dutko of his rights to to file

file either a Post

Post Sentence Motion

Motion with

with the trial court

court or a

direct appeal appeal to to the Superior Court

Court of Pennsylvania.

Pennsylvania. In that same vein, In that vein, Attorney Dutko

advised the Defendant advised Defendant of the relevant time frames in in which he would

would need to

to file

file either a

Post Post Sentence Motion or a direct direct appeal.

appeal. Attorney Dutko was was confident that

that the

Defendant Defendant understood these post post sentence rights.

rights. In

In addition,

addition, the Defendant

Defendant executed

executed

his Post Post Sentence Rights form form and indicated

indicated to

to the Court

Court that

that he did

did not

not have

have any

questions regarding same.

same. Despite being advised of his post post sentence rights and the

relevant time time frames, frames, the Defendant did not Defendant did not request request that

that Attorney

Attorney Dutko file

file either aPost

Post

Sentence Motion Motion or a Notice of Appeal Appeal with

with the Superior

Superior Court

Court of Pennsylvania after he

was sentenced. In was sentenced. In fact, fact, at

at no time did

did the Defendant,

Defendant, whether

whether verbally

verbally or in

in writing,

writing,

indicate to Attorney Attorney Dutko that

that he wanted to

to file appeal.

file an appeal. 4

Indeed, immediately after sentencing on May 2, 2024, Indeed, 2024,5 Attorney Attorney Dutko

spoke with with the Defendant's mother mother in

in the courthouse.

courthouse. He explained explained that

that his fee

fec for

pursuing an appeal appeal would be $9,500.00, 9,500.00. When the Defendant's mother expressed mother expressed

concern over being able to afford afford this fee,

fee, Attorney Dutko indicated indicated that

that "there's another

way." He then way." explained that then explained that he could could file

file a timely

timely Notice of Appeal

Appeal and then

then withdraw

withdraw

from the case, from case, which allow the Defendant which would allow Defendant an opportunity to to apply for a public

to represent defender to represent him him on appeal.

appeal. Attorney Dutko indicated that he provides this indicated that

option to to all of his clients.

clients. The Defendant's mother mother did

did not

not express a desire

desire that

that a Post

Sentence Motion or appeal be filed appeal be filed at that

that time,

time, despite being advised of this this option.

option.

Consequently, on Consequently, on May 6, 2024, May 6, 2024, Attorney Dutko called called the Defendant's

mother with mother with regards to to filing

filing Post

Post Sentence Motions or an appeal. As As she did

did not answer

not answer

telephone, Attorney Dutko left a voice mail the telephone, mail message for for her.

her. Shortly thereafter,

thereafter, on

May 8, 2024, May 8, 2024, the Defendant's mother mother returned Attorney Dutko's Dutko's telephone call.

call. At

At that

time, Attorney Dutko reiterated time, reiterated to to the Defendant's mother mother the legal

legal avenues that

that could

be pursued following following sentencing,

sentencing, including the fee that the fee that he charges for an appeal appeal should

he continue to to represent

represent the Defendant.

Defendant, The Defendant's Defendant's mother

mother indicated

indicated that did

that she did

+ 4 The Defendant Defendant testified

testified that he had told told Attorney

Attorney Dutko,

Dutko, at some unspecified unspecified time prior

to trial, to in the event that he was trial, that in convicted, he wanted to was convicted, appeal. Attorney Dutko testified to appeal. testified that he had no recollection that recollection of this conversation, conversation. Moreover, Moreover, this Court

Court notes thatthat the

Defendant's testimony was was extremely vague with with regard regard to

to this assertion,

assertion, as he provided provided no

timing of

details nor the timing of this conversation conversation other than "prior prior to trial."

to trial" As such,

such, this Court does

Court

not not find find the Defendant's statement to to be be credible.

credible

$ 5 Prior toto sentencing, sentencing, Attorney Dutko reviewed the Defendant's Pre Pre- Sentence Investigation Investigation Report with with the Defendant.

Defendant. At

At this time, Attorney time, Dutko explained to to the Defendant Defendant the possible sentences that he could could face, face, as well

well as the issues that had been preserved appeal. In preserved for appeal. addition, on February In addition, February 14, 2024, when Attorney Dutko visited 14, 2024, visited the Defendant at the Lehigh Lehigh County Jail,

Jail, Attorney Dutko discussed with with the Defendant Defendant the issues

6

not not want want to to pursue Post Post Sentence Motions nor nor an appeal.

appeal. Attorney Dutko was was surprised

surprised

by the Defendant's Defendant's mother's mother's response and, consequently, wanted to and, consequently, to follow follow up by

personally personally speaking with Defendant himself.

with the Defendant himself.

Therefore, Therefore, on

on May

May 8,

8, 2024,

2024, Attorney Dutko requested requested that

that his office

office staff

reach to the Lehigh reach out to Lehigh County Jail to County Jail to schedule a phone phone call with

with the Defendant

Defendant on May

May

9, 2024. On that 9,2024. that date, date, Attorney Dutko spoke directly directly with

with and consulted

consulted the Defendant.

Defendant.

In In this conversation, Attorney Dutko reiterated this conversation, to the Defendant the different time lines reiterated to

in which to in to file Post Sentence Motion file a Post Motion and an appeal, appeal. Attorney Dutko explained that that he

thought that thought that a Motion to to Reconsider Sentence should be pursued in in which they

they would

argue for for alower sentence. Although Attorney lower sentence. Attorney Dutko did not go over the specifics of what did not what

could be appealed during this phone call, call, Attorney Dutko had prior discussions with with the

Defendant on February 14, Defendant 14, 2024 and at at the time that the

the Pre-

Pre- Sentence Investigation Investigation

was reviewed by them report was together. Attorney Dutko also explained them together. explained to to the Defendant

Defendant

that he could file that file a timely Notice of Appeal Appeal and then

then withdraw

withdraw from

from the case,

case, which

would allow allow the Defendant Defendant an opportunity

opportunity to

to apply for a public defender defender to represent

him on appeal, him appeal. However, However, the

the Defendant

Defendant clearly

clearly indicated

indicated that

that he did

did not

not want

want to

to file

file an

appeal appeal or Post Post Sentence Motions.

Motions. This telephone call lasted lasted between

between ten ((I0]

10) and fifteen

fifteen

(15) minutes. (I5) minutes. As Attorney Attorney Dutko was

was traveling

traveling at

at the time of the

the phone

phone call

call and did not

not

have access to computer and printer, to a computer printer, he contacted contacted his law

law partner

partner and requested

requested that

that

he prepare a letter to to memorialize the conversation conversation that

that occurred between him him and the

Defendant. Dutko's law Defendant. Attorney Dutko's drafted the requested law partner drafted requested letter and mailed mailed it

it to

to the

Defendant Defendant at at Lehigh County Jail.

Jail. (PCRA C. Ex.

(PCRA C. Ex. 1).

I). At no time,

At time, either during the phone

conversation conversation or or thereafter, did the Defendant thereafter, did Defendant request request that Attorney

Attorney Dutko file

file Post

Post

that could that could be be pursued on appeal.

appeal.

appeal. 6

Sentence Motions or an appeal."

In In addition,

addition, the record

record and testimonial establish that prior to testimonial evidence establish to trial,

on February 9, 9, 2023,

2023, Attorney Dutko filed filed Omnibus Pretrial

Pretrial Motions in

in the nature of a

Motion to Suppress Defendant's Motion to Statements (both Defendant's Statements (both at the scene and at the hospital), hospital), a

Motion to Suppress Evidence, Motion to Petition for Writ Evidence, and a Petition Writ of Habeas Corpus with with regard

regard to

to

the two two (2)

() counts of Resisting Resisting Arrest. An evidentiary Arrest. An evidentiary hearing hearing relative to

to Defendant's

Omnibus Pretrial Motion was was conducted before this Court Court on July 20,

20, 2023.

2023.

Thereafter, on October Thereafter, October 12, 2023, this Court 12, 2023, Court denied the Defendant's Omnibus Omnibus Pretrial

Motion. The Defendant Motion. Defendant argues that that he wanted the denial denial of his Omnibus Pretrial Motion

to have been challenged challenged on

on appeal

appeal as it

it contained issues that

that merited

merited further review.

review. We

We

cannot agree with cannot with the Defendant's assertion.

assertion.

Specifically, Specifically, in

in Defendant's Omnibus Pretrial Motion, Motion, the Defendant

Defendant

contended that that at

at the time of the Defendant's Defendant's statement

statement regarding the ownership of

his cellular phone in in the parking lot of the Upper Upper Macungie Township Motel 6, the Motel 6,

Defendant was in Defendant was custody, thereby requiring in custody, requiring Miranda warnings to to be read to him. The

to him,

Defendant Defendant argued that that the conduct

conduct of the

the police and their

their interrogation

interrogation and extraction and extraction

of statements of the Defendant violated the Defendant violated his his rights

rights under

under the

the Fifth, Sixth and

Fifth, Sixth

Fourteenth to the United Fourteenth Amendments to United States Constitution Constitution and Article 1, Section 9 of I, Section

the Pennsylvania Constitution.

Constitution.

This Court

Court noted that

that Miranda rights

rights are only required

required prior to a

prior to

6 6 After sentencing and while he was was still housed in in the Lehigh County Jail, Jail, the Defendant

Defendant

did not reach did not reach out to to Attorney Dutko,

Dutko, either by

by phone or correspondence. Although the Defendant testified that he wrote a letter to Attorney Dutko while he was in Defendant testified in state prison, prison,

Attorney Dutko credibly testified testified that no such letter was ever received received by him or staff at his law by him law office. The Defendant explained office. The Defendant explained that that this letter merely requested that Attorney that Attorney Dutko contact contact

him did not him and did request that not request that Post Sentenee Sentence Motions nor an appeal appeal be filed behalf.

filed on his behalf.

custodial interrogation. Commonwealth v. iousman, custodial interrogation. Housman, 986 A.2d 822, 839 A.2d 822, 839 ((Pa.

Pa. 2009).

2009)

In In In In re V.H., V.H., 788 A.2d 976 976 (Pa.

(Pa. Super. 2001), a custodial Super. 2001), custodial interrogation interrogation and the need

for Miranda warnings were explained in in the following

following fashion:

fashion:

is well-settled It is settled that

that the police

police are only required

required to

to advise a

person of person of his Miranda rights if if that that person

person is

is subjected to

subjected to

custodial interrogation. custodial interrogation. The test for determining whether a suspect is suspect is being subjected subjected to custodial

custodial interrogation

interrogation so as

to necessitate Miranda warnings to warnings is is whether whether he isis physically physically

deprived of his freedom

freedom inin any significant way or or is is placed

in a situation in situation inin which he reasonably believes that that his freedom of action freedom action or movement movement is is restricted restricted by such

interrogation. interrogation.

Id. at 980. Id. 980. "Custodial Custodial interrogation

interrogation is

is questioning initiated

initiated by law

law enforcement

enforcement

officers after a person has been taken taken into

into custody or

or otherwise deprived

deprived of his

freedom of freedom of action action in v. Gonzalez, Commonwealth v.

in any significant way." Commonwealth Gonzalez, 979 A.2d 879, 879,

887 (Pa.

(Pa. Super. 2009).

Super, 2009). In

In that

that regard,

regard, not

not every statement made by an individual every statement individual

during a police encounter encounter constitutes an interrogation.

interrogation. Commonwealth v. Williams, y, Williams,

941 A.2d A.2d 14, 14, 30 (Pa. Super. 2008).

(Pa. Super. 2008). Additionally, Additionally, volunteered or spontaneous volunteered

utterances by an individual individual are admissible without the administration administration of Miranda Miranda

warnings. Id. See also warnings. Id. also Commonwealth , v. Bracey,

Bracey, 461 A.2d 775 (Pa.

A.24 775 1983). "When (Pa. 1983). "When a

defendant gives a statement defendant statement without without police interrogation, interrogation, we

we consider the statement statement to

be 'volunteered' not subject volunteered' and not subject to suppression.

to suppression. Interrogation Interrogation is

is police conduct

conduct

`calculated to, calculated to, expected to, likely to to, or likely v. Schwing, to evoke admission'." Commonwealth v. Schwing,

8, 12 964 A.2d 8, 12 (Pa.

(Pa. Super. 2008); Sec

Super 2008; See also Commonwealth v, v. Brown,

Brown, 711

711 A.2d 444,

A.2d 444,

451 ((Pa. 451 Pa. 1998)

1998) (citations Commonwealth_.

omitted); Commonwealth

(citations omitted); Bess, 789 A.2d 757, v. Bess, 757, 762 762 (Pa.

(Pa.

Super. Su 2000). Furthermore, per, 2000). Furthermore, "Miranda Miranda warnings are not

not required

required in

in certain

certain situations

where the police ask ask questions to

to ensure public safety

safety and not to elicit incriminating and not incriminating

9

responses." New York v.

, Ouarles,

Quarles, 467 U.S. 649, 655 U.S. 649, 655 ((1984)

1984) (explaining

(explaining that

that the need

for answers to to questions in

in a situation

situation posing a threat threat to

to public safety

safety outweighs the

need for for the Miranda warnings).

warnings).

In In the instant case,

case, when Special

Special Agent

Agent Murray ran

ran down to

to the parking

parking

lot of the Motel to assist in Motel 6 to in rendering aid aid to

to the Defendant,

Defendant, she observed gold observed a gold

Apple iPhone on the ground within within a foot of where the Defendant lying.

Defendant was lying. In In an

effort to gather his belongings, belongings, Special

Special Agent

Agent Murray asked,

asked, ""Is

Is this your cell phone?,"

phone?,"

to which the Defendant to Defendant replied replied in

in the affirmative. Court found this affirmative. This Court this inquiry inquiry to

to be

investigatory, not investigatory, accusatory. Williams, not accusatory. Williams, 941 A.2d at 31-33.

31-33. Indeed, Indeed, Special

Special Agent

Agent

Murray's inquiry Murray's inquiry was was not calculated to

not calculated to elicit an incriminating incriminating response.

response. As

As a result,

result,

Court concluded that this Court that there was custodial interrogation was no custodial interrogation and Miranda warnings

were not not required.?

required."

In In addition,

addition, the Defendant also also argued in

in his

his Omnibus Pretrial

Pretrial Motion that

that

the statements he made to Special made to Special Agent

Agent Murray and Detective Lobach Lobach at

at Lehigh

Lehigh Valley

Valley

Hospital need to Hospital to be suppressed.

suppressed. Specifically, Specifically, the Defendant contended that he did not he did not

voluntarily, knowingly, and intelligently voluntarily, knowingly, intelligently waive the Miranda warnings.

warnings. This Court Court found

argument to this argument to be without merit.

without merit.

Court noted

This Court noted that to safeguard an uncounseled individual's Fifth to safeguard Fifth

Amendment Amendment against self-incrimination, privilege against self-incrimination, suspects subject to to custodial

interrogation by law interrogation enforcement officers law enforcement officers must must be warned that they have the right to to

7 This Court Court noted that after the Defendant Defendant was

was Mirandized at Lehigh

Lehigh Valley Hospital,

Hospital, the

Defendant Defendant admitted ownership of of the cell phone.

phone. Commonwealth v. v, Charleston, Charleston, 16

16 A.3d

A.3d 505

505

(Pa. Super, (Pa. Super. 2015), 2015), abrogated

abrogated on other grounds, grounds, (holding

(holding that

that the

the failure

failure to

to give

give Miranda

Miranda

warnings did not invalidate statements made warnings did made byby defendant defendant after subsequently being advised advised of

and waiving his Miranda rights).

rights).

remain silent, silent, that that anything they say may may be used against

against them

them in

in court,

court, and that

that

they are entitled entitled to to the presence of

of an attorney.

attorney. In re K.Q.M., In K.QM,, 873 A.2d

A.2d 752, 755 (Pa.

752, 755 (Pa

Super. Super. 2005), citing, Thompson v.

2005), citing, v. Keohane, Keohane, 516

516 U.S. 99,

99, 107

107 ((1995),

1995), citing

citing Miranda v.

v,

Arizona, Arizona, 384 U.S.

0.S. 436, 444 ((1966)).

436, 1966)). A confession confession obtained custodial obtained during a custodial

interrogation is admissible where interrogation is where the accused's accused's right to

to remain

remain silent and right to to

counsel have been explained and the accused has knowingly counsel knowingly and voluntarily waived

those rights.

rights. The test for determining the voluntariness of a confession confession and whether

whether

accused knowingly waived his rights looks to an accused to the totality totality of the circumstances

surrounding the giving of the confession. v. Jones, confession. Commonwealth v. Jones, 546 546 Pa.

Pa. 161,

161, 170,

170,

683 A.2d A.2d 1181, 1181, 1189 1189 ((1996).

1996). See also Commonwealth , Watkins, 843 A.2d v. Watkins, A.24 1203, 1203,

1213 ((Pa. 2003)

2003) ((stating

stating that

that "the waiver of Miranda rights must must be the product

product of free

and deliberate choice rather than than intimidation,

intimidation, coercion,

coercion, or deception").

deception"]

In case, when Special In the instant case, Special Agent Agent Murray and Officer Devery

entered the Emergency Room Room triage bay in

in which the Defendant

Defendant was situated, they was situated,

observed the Defendant Defendant lying back, wearing a neck lying flat on his back, neck brace which which impeded

the movement movement of his lower jaw (and (and thereby impeded his speech).

speech). The Defendant

Defendant was

awake, his eyes were open, awake, open, and he made made appropriate eye contact contact with Special Agent with Special Agent

Devery.

Murray and Officer Devery. Officer Devery Mirandized the Defendant Defendant and the

Defendant verbally waived those rights. Defendant rights. Officer Devery explicitly explicitly asked the Defendant Defendant

if he wished to to talk with them

talk with them and the Defendant Defendant unequivocally responded in in the

affirmative. affirmative. No threats were made to the Defendant Defendant at any time during the

conversation that conversation that occurred at at Lehigh Valley Hospital.

Hospital., Both

Both Special

Special Agent

Agent Murray and

and

Officer Devery were dressed in in plain

plain clothes

clothes and neither displayed their firearm.

firearm.

Moreover, Moreover, the Defendant Defendant was

was not unrealistically asked to execute a physical not unrealistically physical Miranda

11

waiver form waiver form because his right arm arm was

was handcuffed

handcuffed to

to the hospital

hospital bed and his left arm arm

was wrapped with was tourniquet. The Defendant with a tourniquet. Defendant did did not appear

appear to

to be under

under the

influence of medication medication.

Special Special Agent Murray and Officer Devery were confident that Agent that the

Defendant Defendant understood his Miranda Miranda warnings

warnings and all

all of the questions posed to to him.

him.

Indeed, he answered all Indeed, all questions appropriately and coherently, coherently, as well

well as appeared

upset, respectful, upset, respectful, remorseful, remorseful, and nervous that that he would be reported reported or placed

placed on a

registry for his earlier actions. registry actions. The Defendant Defendant cogently explained explained that

that his girlfriend

girlfriend

was pregnant and due in was pregnant January.

in January. Furthermore, the Defendant Furthermore, Defendant indicated indicated that

that the

reason that reason that he went went to

to the Motel

Motel 6 was

was to "get

get [his] sucked" by a 15 [his] dick sucked" 15 year old girl year old

and that he knew knew that

that this

this was illegal. He

was illegal. He confirmed that that he had brought

brought a bag of

Wendy's Wendy's food with him, food with him, along with with a bag of Pepperidge Farm Farm goldfish

goldfish crackers.

crackers. He

also recounted also recounted that that he ran

ran down the hallway of the Motel Motel 6 and fell out the window.

window.

Finally, Finally, the Defendant Defendant identified

identified his cell phone when shown by Officer Devery, Devery, as well

well

Special Agent

as provided Special Agent Murray and Officer Devery with with the security passcode for

his cellular telephone.

telephone.

Court found that Detective Lobach appropriately and adequately This Court

provided provided the Defendant Defendant with

with his Miranda

Miranda warnings.

warnings. Moreover, at the conclusion Moreover, at conclusion of his his

recital of the Miranda Miranda rights,

rights, Detective Lobach properly inquired inquired if

if the Defendant

Defendant wanted

to speak with to speak them, to which the Defendant with them, replied in Defendant replied in the affirmative.

affirmative. During the

interview, interview, the Defendant Defendant was oriented, appropriate, was oriented, appropriate, and coherent.

coherent. A review

review of the

interview established that both interview established both Detective Lobach and Special Special Agent

Agent Murray were calm

calm

conversational, and they did and conversational, did not not threaten

threaten or coerce the Defendant.

Defendant. This Court Court

concluded, based on concluded, on the totality totality of the circumstances, circumstances, the

the Defendant

Defendant knowingly,

knowingly,

12

voluntarily, and intelligently voluntarily, intelligently waived his Miranda rights.

rights. Furthermore,

Furthermore, this Court noted this Court noted

that that only after the Defendant indicated his willingness to Defendant indicated speak, did to speak, did Detective Lobach Lobach

and Special Special Agent Agent Murray ask the Defendant Defendant for the passcode to to his cellular phone.

phone.

Based on the evidence introduced introduced at

at the evidentiary

evidentiary hearing and the the totality

totality of the

circumstances, this circumstances, this Court Court found that

that the Defendant

Defendant was

was legally

legally Mirandized

Mirandized and he

knowingly, voluntarily, knowingly, voluntarily, and intelligently intelligently waived his Miranda rights. Therefore, this Court rights. Therefore, Court

legally and appropriately denied the Defendant's Motion to legally to Suppress Defendant's Defendant's

Statements. Statements.

Furthermore, the Defendant Furthermore, Defendant avers in in his Amended Motion for Relief Under Under

Conviction Relief Act Post Conviction Act that the evidence presented at trial trial was

was insufficient as a matter matter

law and that of law that he wanted the verdict verdict to

to have

have been

been challenged appeal, as this issue challenged on appeal,

merited further review. We cannot review. We cannot agree

agree with

with the Defendant's

Defendant's contention.

contention.

claim challenging the sufficiency A claim sufficiency of the evidence is is a question

question of law

law

is insufficient evidence to support which asserts that there is support at least least one material

material

element of element of the the crime for Defendant was for which the Defendant was convicted. v. Lyons, Commonwealth v.

convicted. Commonwealth Lyons,

833 A.2d 245, 258 ((Pa.

A.2 245, Pa. Super.

Super. 2003).

2003). The standard for reviewing sufficiency sufficiency

was explained in

challenges was in the following following manner

manner by the Superior Court Court of

Pennsylvania: Pennsylvania:

standard we

The standard we apply in in reviewing sufficiency of the reviewing the sufficiency evidence isis whether

whether viewing all the

the evidence admitted at at trial trial in

in the light

light most to the most favorable to verdict winner, the verdict winner, there is is sufficient

sufficient evidence

evidence to

to enable

enable the

the fact-finder

fact-finder to

to find

find every

every

element clement of the crime beyond a reasonable doubt.

doubt.

Commonwealth_y,v. Taylor, Taylor, 831 A.2d

A.2d 661, 663 ((Pa.

663 Pa. Super.

Super. 2003),

2003), quoting

quoting

Commonwealth v. DiStefano, 782 A.24 v. DiStefano, A.2d 574, 582 ({Pa.

574, 582 Pa. Super.

Super. 2001).

2001). In

In addition,

addition, the

facts and circumstances established established by the Commonwealth need not not preclude every

every

13

possibility of innocence. possibility innocence. Commonwealth _v. v. Hunzer,

Huner, 868 A.2d

A.2d 498,

498, 505

505 (Pa.

(Pa. Super.

Super.

2005). Any doubts regarding a defendant's guilt are properly resolved by 2005). by the finder of

fact unless the evidence is is so weak and inconclusive that, that, as a matter

matter of law,

law, no

probability of fact may be drawn from from the combined circumstances.

circumstances. Id.

[d. Finally,

Finally, the

the

trier of fact, fact, while passing upon the credibility credibility of witnesses and the weight weight of the

evidence produced, produced, is is free to evidence. Id. If the finder to believe all, part or none of the evidence.

of fact reasonably could have have determined

determined from

from the evidence adduced that that all of the

necessary necessary elements of the crime were established, established, then the evidence will be deemed

to support

sufficient to support the verdict. Id. at 506.

verdict. Id. 506.

This Court

Court noted that a person person commits the offense of Unlawful Contact Unlawful Contact

with a Minor with Minor "if if he is intentionally in is intentionally in contact contact with

with a minor,

minor, or a law

law enforcement

officer acting acting in in the performance

performance of

of his duties who

who has assumed the identity identity of a

minor, minor, for the purpose of engaging in in an activity prohibited under any of the following, activity prohibited following,

and either the person person initiating

initiating the contact

contact or the person

person being

being contacted is

is within

within the

Commonwealth; Commonwealth; any any of the offenses enumerated in in Chapter

Chapter 31

3I (relating

(relating to sexual

to sexual

offenses)." 18 18 Pa. C.S.A. §

Pa. C.S.A. 6318(a)(1).

$6318(a)(1). In

In addition,

addition, a "person attempt "person commits an attempt

when, with when, with intent to commit a specific to commit crime, he does any act specific crime, act which which constitutes a

substantial step towards the commission of that commission of crime."

that crime." 18

18 Pa. C.S.A. §

Pa. C.S.A. S 901(a).

901(a)

Finally, Finally, a person person commits Involuntary Deviate Sexual Sexual Intercourse "when

"when the person

person

engages engages in sexual intercourse with in deviate sexual with a complainant complainant who

who is

is less than

than 16

l6 years of

age age and the person is four or more years older than person is than the complainant and the the complainant

complainant and the person complainant not married to person are not to each other." 18 18 P. C.S.A. §

P. CS.A. $ 3123(a)(7).

3123(a)(7].

In In the within matter, trial was within matter, was conducted from from February

February 5,

5, 2024 through

February 7, 2024. The evidence at the trial 7, 2024. established that on July trial established 6, 2022 through July 6, through

14

7, 2022, July 7, Special Agent Kathryn Murray, 2022, Special in her capacity as an undercover Murray, in undercover agent agent

in in the Allentown Office for the Department Department of Homeland Security and the Human

Trafficking Task Force, Trafficking Force, engaged in in a proactive

proactive investigation

investigation in

in which

which she posted

posted ads

on ""Skipthegames.com," an online escort service.

service. Special

Special Agent

Agent Murray posted two

two ((2)

2)

ads, one ads, one ((I)

1) entitled "2

2 Girl

Girl Special" which advertised 2) girls (one two (2)

advertised two (one of whom was 19 whom was 19

years old),"8 as well well as an ad encaptioned encaptioned ""Bad Foster Mom"

Mom" in

in which the services of a

13 year old 13 advertised. Special old girl were advertised. Special Agent Agent Murray provided the phone phone number to

number to

her federally federally issued issued undercover

undercover cell phone number number and atext number associated with number associated with

this cell phone on the ads. this cell ads.

Many people expressed

expressed an interest

interest in

in the ""Skipthegames.com"

Skipthegames.com" ads and

Special Agent Special Agent Murray attempted to set up "dates"

dates" with

with the interested

interested people.

people.

Specifically, one Specifically, one ((l)

1) individual,

individual, the Defendant, Defendant, Dakins Sackie, Sackie, responded to

to both

both of

Special Agent Murray's Special posts. ((C.

Murray's posts. C. Ex.

Ex. A); (C.

(C. Ex. 1);

1); ((C.

C. Ex.

Ex. 5). Via

Via text

text

in which the Defendant

communications in Defendant referred referred to

to himself

himself as "Amazon

Amazon guy,

guy," they "9

discussed prices, the ages discussed prices, ages of the girls, girls, and the Defendant's interest in in receiving

receiving oral

from the sex from 15 year the 15 year old old girl.

girl. ((C.

C. Ex.

Ex. AJ; C. Ex.

A); ((C. Ex. 1);

1J; (C. Ex. 5).

(C. Ex. 5), In In particular,

particular, the

Defendant requested requested a "BBBJ"

BBBJ"("(Bareback blowjob")

blowjob") from

from the

the minor.

minor. ((C.

C. Ex.

Ex. A);

AN; ((C.

C. Ex.

Ex.

1J; ((C. 1); C. Ex. 5].

5). Ultimately, it

Ultimately, it was determined that was determined that payment payment would be chicken

chicken nuggets

s 8 The ad did did not not specifically

specifically provide that that the other girl was

was fifteen

fifteen ((15)

15) years old,

old, because

skipthegames.com does not permit skipthegames.com permit an ad with with minors.

minors. The age

age of the fifteen

fifteen ((15)

15) year oldold was

elicited through text messages between the interested elicited interested party and Special Special Agent Murray. ((C.

Agent Murray. C. Ex.

Ex.

A); C. Ex. AN; (C. Ex. 1);

IJ; ((C.

C. Ex. 5). Special

Ex. SJ, Agent Murray posed Special Agent posed as the 19I9 year old girl who offered sex who offered

with the 15 with IS year oldold girl to to the Defendant

Defendant inin exchange for compensation.

compensation. (C. (C. Ex.

Ex. A);

AN; ((C.

C. Ex.

Ex. 1);

(C. Ex. (Cc. Bx. 5).

5)

¢ 9 In In his his response to one ([l)

to one 1) of the ads,

ads, he claimed that

that he was an employee at the Amazon warehouse, warehouse, whichwhich explained his nickname of of "Amazon Arazon guy."

15

and French fries fries from

from Wendy's

Wendy's and

and a bag of Pepperidge Farm goldfish crackers!° Farm goldfish 10

because the Defendant did the Defendant did not have any money and would not not have not receive receive his paycheck

until after 3.00 until 3:00 A.M.

A.M, the next day. (C.

next day. (C. Ex.

Ex. A);

AJ; ((C. Ex. 1);

C. Ex. 1J; (C.

(C. Ex.

Ex. 5).

5). Moreover, Moreover, through

through

the the texts that Special Agent that Special Agent Murray and the Defendant Defendant exchanged,

exchanged, a meeting

meeting time on

on

7, 2022, July 7, 2022, was was arranged and Special

Special Agent

Agent Murray provided

provided the Defendant

Defendant with

with the

name name of the motel, motel, specifically,

specifically, the Motel

Motel 6 located

located at 681 Blue Barn Road, Road, Allentown,

Allentown,

Upper Macungie Township, Upper Township, Lehigh County, as well Lehigh County, well as the floor in in which she

purportedly was staying." Also, was staying.' Also, the Defendant Defendant texted

texted a photograph

photograph of himself to

to

Special Agent Special Agent Murray so that that she would know

know what

what he looked

looked like. ((C.

C. Ex.

Ex. A);

A}; (C.

(C. Ex.

Ex.

1); ((C.

C. Ex.

Ex. 5); ((C.

C. Ex.

Ex. 10).

10). Special

Special Agent

Agent Murray also

also texted

texted a photograph

photograph of herself

that was photoshopped so that she looked that was looked like like a 19

I9 year old girl.

year old girl.12 (C.

(C. Ex.

Ex. A);

AN; (C. Ex.

(C. Ex.

1); ( C. Ex. 1;(C. 5).

Ex. 5)

o 10 Originally Doritos were requested, Originally requested, but but the Defendant Defendant could not obtain them and obtain them

substituted substituted Pepperidge Farm Goldfish crackers instead.

Farm Goldfish instead, ((C. Ex.

Ex. A);

A}; (C.

(C. Ex. 5).

Ex. 5).

11 Officer Drew Drew Devery of the Upper Upper Macungie Township Police Department Department and assigned to the Lehigh to Lehigh County Joint Human Trafficking Task Force Huran Trafficking Force was was responsible for procuring the motel room motel room in in which the operation operation would take place, place, as well well as coordinating

coordinating with

with the

Department of Homeland Security, Department Security. Off@erOfficer Devery was was with with Special

Special Agent

Agent Murray when she

received the text communications from received from the Defendant with with regards to to the ads posted on on "Skipthegames.com." Sipthegames.com." a 12 The text exchange on July 7, 7, 2022 between Special Special Agent

Agent Murray's

Murray's 19 I9 year old

old persona

persona

and the Defendant Defendant is as follows:

is as follows:

Defendant: Defendant: Imma just rma just use my my real real number

number cause the other ones tweaking but is the but yes this is

Amazon guy.guy. So if u interested interested still respond back fast please. please Agent: Agent: How How oldold are you?

Defendant: Defendant: 22 Agent: Agent: Send me I`ll send you one of me a selfie. I'll of me. You're Youre confusing me me.

Defendant: Defendant: Aight Aight send one.one. (Photos exchanged) ((C.

(Photos exchanged C. Ex.

Ex. 10).

10)

Agent: Agent That's me. My friend is My friend is 15 you ok with 15 you with that?

Defendant: Defendant: What What she looklook like? Whatever Whatever I don't really

really care I I just

just want

want my

my dick

dick sucked by

one of ya so do ya know know what what ya want

want toto eat? U there?

Agent: Agent: Yeah.

Yeah. Ok so it's $

it's $80 for the bbbj.

bbbj. Anything more you need to to wear wear a condom.

condom.

My friend'

friend' can't get preg preg cuz she's too young.

young. All

All good?

Defendant: Defendant: U told told meme that already. Isaid that already. said III Ill get us both

both food

food remember?

Agent: Agent: Just making sure we're on the same Just same page page cuz your

your texting me from

texting me from all these diff

16

numbers. numbers

Defendant: Defendant: We We agreed that if Igot ya that if ya food

food I'll get head.

head. Remember?

Remember?

Agent: Agent. Wendy's.

Wendy's. Can you get me me chix chix nuggets and fries? You don't have a $20 20 or anything?

Defendant: Defendant: Nah Idon't don't Ionly got mymy credit card.

card. Is

Is that all u want

want chicken nugget

nugget and fries?

fries?

U want

want me to get and then me to then wewe go or want want me

me to

to get it

it first

Agent: Agent: Oh and can you get me me some chapstick from some Doritos and chapstick from the Wawa Wawa it's

it's like

like right

there? Nah bring

bring it to

to me.

me. So Icancan eat while mymy friend friend gives you

you head.

head.

Defendant: Defendant: Aight gimme gimme the addy again.

addy again.

Agent: Agent: Motel Motel 6 off Blue barn.

barn. When can you

you get

get here?

Defendant: Defendant. I'm l'm going to

to get the stuff now.

Agent: Agent Ok text me me when you're

you're on the way here. Or Or like

Like 5 min away.

away And I'll

III give you

the room #. the #.

Defendant: Defendant. Aight don't try Aight just dont try to scam me.

to scam me.

Agent: Agent: No way!

way!

Defendant: Defendant: Can you send me me a pic m if if you in in the hotel

hotel so ik

ik u not

not playin? ((Defendant

Defendant sent

sent

exterior photo of Motel Motel 6)6)

Agent: Agent: (Sent (Sent photo of the back of Motel Motel 6 door of room room 219)

Defendant: Defendant: And you too Nigga Agent: Agent: Sent photo photo of the Motel 6 door of room the back of Motel room 219)

Defendant: Defendant: I said you too not l said not just the door Agent: Agent: I l just sent

sent you one of me. me. First ones free.

free. Don't

Don't show

show up

up here all angry.

angry. I don't

need that thankthank you.

you.

Defendant: Defendant: Itrying trying toto negotiate

negotiate

Agent: Agent: You did.

did. It's $

It's $300 for the both both isis us and Isaid

said ok for just foog

foog [[sic].

sic]. I think

think that's

negotiating

enough negotiating

Defendant: Defendant: Ijust just wanted to to know

know if u official

Agent: Agent: You gotgot a pic of me me and the hotel.

hotel. That's more thanthan Isend other people.people. I don't need to to get inin trouble Defendant: Defendant: In [n trouble?

Agent: Agent: Cuz you askin Cua askin meme all these questions and picturespictures and shit.

shit. Idk. And my friend my friend

is young so is so Idon't knowknow who who you are.are. I'm

I'm takin

takin a chance just like you.

like you.

Defendant: Defendant: Oh my my bad nah I'm I'm just just making sure for my my safety too so u rightright ((sent a photo of the Pepperidge Farm Goldfish crackers), Farm Goldfish crackers). There was no Doritos so I got you this this is it is it cool?

Agent: Agent: Yes!

Yes! Thank you!youl Defendant: Defendant: I cum in I can cum in her

her mouth right?

Agent: Agent: Yes.

Yes cool with She's cool that. Cleanin with that. Cleanin up up in quick. You here?

in the shower quick.

Defendant: Defendant. Yeah.

Yeah. PiePic up

Agent: Agent: Alright Alright room

room 219. Just Just come up Defendant: Defendant: Pick up the Pick the phone first Agent: Agent: I just called you just called

Defendant: Defendant: Tell Tell her open

open the doordoor. What room number What room number was it? it? There's no 219 here Agent: Agent: 2»d floor 2M

Defendant: Defendant: Mad sketchy Agent: Agent: Yes there is. is. Ly By stairwell.

stairwell, Doors open open yo. I'mI'm gonna close it in 2 min it in

Defendant: Defendant. Tell her to Tell to call me.

me, ((Sent

Sent photo of the food)

food)

Agent: Agent: Idon't let her talk talk to to anyone. Come Come up babe Defendant: Defendant. So u come down for the food So food

17

stationed outside of the Upper Macungie Surveillance units were stationed

Township Motel 6, and law Motel 6, law enforcement enforcement officers

officers were positioned

positioned inside of two

two (2)

(2) of the

motel motel rooms rooms ((Room Room 224 Room 222)

and Room 222) which were located from the located across from

undercover undercover room (Room 219) where the meeting was (Room 219) was to to occur.

occur. ((C.

C. Ex. A); ((C.

Ex. AJ; C. Ex.

Ex. 6);

6); ((C.

Ex. 7). The undercover Ex. undercover room, Room 219, room, Room 219, was

was located

located near the end of the second-floor second- floor

north hallway, next north hallway, next to to the stairwell.

stairwell. ((C,

C. Ex.

Ex. A);

A); ((C.

C. Ex.

Ex. 6); (C.

(C. Ex. 7). Special

Special Agent

Agent

Murray, Murray, Detective Damein Damein Lobach of the Allentown Police Department Department Vice and

Intelligence Unit and Intelligence Unit and assigned to to the Department

Department of Homeland Security Human

Trafficking Task Force, Trafficking well as Detective Lou Tallarico Force, as well Tallarico of the Lehigh County Drug

Task Force were positioned positioned in

in Room

Room 219.

219. ([C.

C. Ex. A);

A); (C.

(C. Ex.

Ex. 6); ((C,

C. Ex.

Ex. 7).

7). Detective

Lobach Lobach and Detective Tallarico Tallarico were part

part of the arrest team

team for

for customers soliciting

soliciting

sex acts from scx from minors minors and donned badges around their necks.

necks. ((C.

C. Ex.

Ex. A);

A); (C.

(C. Ex. 7).

Ex. 'T)

The outside surveillance units notified notified Special

Special Agent

Agent Murray when the

Defendant arrived in Defendant arrived in the parking lot of the Motel 6. 13 The Motel 6,13 The Defendant texted texted when he

Agent: gent: (Sent Sent photo of the floor plan plan delineating delineating where room

room 219 is is located).

located). I'm

I'm not

not

negotiating withwith you anymore.

anymore. You're too needy.

needy.

Defendant: Defendant: Just do it or send her down.

Just down. UU getting getting free food

food

Agent: Agent: She doesn't doesn't leave my my side.

side. And your gettin

gettin head for a aWendy's Wendy's meal ... It's not meal...It's not

safe for us. safe us. Idon't wanna get get kidnapped or whatever.

whatever.

Defendant: Defendant: So where is So is she

Agent: gent: She with with meme inin the room. The room room waswas propped open

open soon as you asked.

asked. It's

open now. 0pen now.

Defendant: Defendant: Yo can u at least comecome to the lobby? That's fair.

fair.

Agent: Agent: No more negotiating.

negotiating. We have the room We have room ready and we're we're not

not even

even fully dressed.

fully dressed.

Sorry. You Sorry. You'rere wasting our time.

time. Idon't

don't want

want to

to keep

keep doing

doing this back and forth. forth. I have other customers. have customers.

Defendant: Defendant; Fine at least Rine least peep your head out the door Im door when I'm there.

there. You still there

Agent: Agent: Ok fine.

Ok fine.

(C. Ex. (C. A); (C.

Bx. AJ; C. Ex.

Ex. 1);

IJ; (C.

(C. Ex.

Ex. 5).

n 13 Detective Lobach, Lobach, fromfrom his position position in

in Room

Room 219,

219, observed the Defendant Defendant exit his

vehicle vehicle and walk walk towards the Motel Motel 6.

6. Detective Lobach thenthen viewed viewed the Defendant

Defendant walk back back towards his vehicle, vehicle, remain there for approximately ten ((10) 10) minutes minutes (during

(during which

which time text

messages continued to to be exchanged with with the 19 19 year old girl persona), persona), and thenthen proceed proceed

18

arrived and sent her arrived her a photograph photograph of the exterior of the Motel Motel 6 to

to confirm same. ((C.

confirm same. C.

Ex. Ex. A);

A); (C.

(C. Ex.

Ex. 1); ((C. Ex.

Ex. 4); ((C.

C. Ex.

Ex. 5). Defendant also The Defendant also confirmed that he could could

cum in "her" cum in her" mouth, referring to mouth, referring to the 15 15 year old

old girl.

girl. (C. Ex. A);

(C. Ex. 1J; ((C.

Ex. 1);

(C. Ex.

A]; (C. C. Ex.

Ex. 4);

(C. Ex. (C. Ex. 5). Throughout Throughout the exchange of text text messages

messages while the Defendant Defendant was

was in

in the

parking lot of the Motel Motel 6,

6, he also

also requested that Special Agent that Special Agent Murray, believing her Murray, believing

to to be the I9 19 year old girl, direct the I5 year old 15 year old old girl to call him,

to call him, meet

meet him

him in

in the lobby

lobby

of the Motel Motel 6, 6, and to

to open the motel room door.

motel room door. ((C.

C. Ex.

Ex. A);

A); ((C.

C. Ex. 1; (C.

Ex. 1); (C. Ex.

Ex. 4); (C.

(C.

Ex. 5). Finally, Ex. Finally, the Defendant Defendant requested that

that the 19

I9 year old girl

year old girl peek her head out of

the motel room. (C.

motel room. (C. Ex.

Ex. A);

A; (C.

(C. Ex.

Ex. 1);

IJ; (C. Ex. 4);

(C. Ex. 4); ((C.

C. Ex.

Ex. 5).

5].

The Defendant

Defendant emerged from

from the

the northern

northern stairwell on

on the second

second floor

and Special Special Agent Agent Murray,

Murray, dressed in

in jeans and a yellow

yellow tee-shirt,

tee-shirt, poked

poked her

her head out

as he had requested.

requested. ((C.

C. Ex. A); ((C.

Ex. AJ; C. Ex.

Ex. 6). She observed the Defendant Defendant walking

motel room

towards the designated motel room with with the bag of Wendy's

Wendy's food

food and Pepperidge Farm

Farm

Goldfish crackers in Goldfish in his right hand and his his Apple iPhone in

in his left hand.

hand. ([C.

C. Ex.

Ex. A);

Ex. 6); ((C.

(C. Ex. C. Ex. 7). When he approached the the undercover motel

motel room door, Special

room door, Special

Agent Murray identified Agent identified herself as a police officer and immediately attempted to to bring

bring

the Defendant inside the the motel

motel room

room in

in order to

to take him

him into custody. 14 (C.

into custody.I C. Ex.

Ex. A);

AN; ((C.

C.

Ex. Special Agent Ex. 6). Special Agent Murray grabbed the Defendant's right shoulder with with her left

hand (while hand (while facing him), him), but

but the Defendant

Defendant broke free from from her

her grasp

grasp by forcefully

forcefully

pushing her arms away and bringing bringing his hands above her head, head, thereby striking

striking

towards the lobby of the motel.motel, Supervising Special Agent Supervising Special Agent Brent Morral Morral observed the

Defendant's actions, as well. Defendant's actions, well. 14 Detective Lobach was one ((l)

was standing approximately one 1) foot behind Special Special Agent

Agent Murray

when the Defendant Defendant was

was looking into

into Room 219 from

Room 219 from the threshold of the doorway.

doorway, Detective

Lobach was was donned in plain clothes, in plain clothes, but

but had his police badge

badge prominently displayed around his his neck on his his cheat.

chest.

19

Special Agent Special Agent Murray in in the face despite Special Special Agent

Agent Murray yelling

yelling "police"

"police" and

identifying identifying herself.

herself.is

15 Upon freeing

freeing himself from

from Special

Special Agent

Agent Murray's grip, the

Murray's grip,

Defendant Defendant ran ran down the hallway towards the south south end.

end. (C. Ex. A); ((C.

(C. Ex. C. Ex.

Ex. 6); ((C.

C. Ex.

Ex.

7). The The Defendant Defendant ran ran past

past the stairwell

stairwell located

located at the southern end end of the hallway.

hallway."16

(C. Ex. (C. Ex. A);

A); ((C.

C. Ex.

Ex. 6); (C.

(C. Ex.

Ex. 7).

7). He near the end of the hallway He abruptly stopped near

where he put put his hands by by his waistline and quickly turned turned towards the police officers

who who had been pursuing him him down the hall.

hall. ((C.

C. Ex.

Ex. A);

A); ((C.

C. Ex.

Ex. 7).

7). When the Defendant

Defendant

turned to face the police officers, he was police officers, was still moving moving and he had his hands raised raised

towards his upper upper body region.

region. ((C.

C. Ex.

Ex. A);

A]; ([C.

C. Ex.

Ex. 7).

7]. As Detective Lobach

Lobach was

was running

immediately behind behind the Defendant

Defendant in

in pursuit of him,

him, Detective Lobach

Lobach placed

placed his

arms up towards his face to to protect, did not protect, as he did know if not know if the Defendant Defendant had any

weapons on him him or if the Defendant

Defendant was

was going engage him

him in

in a fight.

fight. ((C.

C. Ex.

Ex. A);

AN; (C.

(C. Ex.

Ex.

7). The Defendant Defendant and Detective Lobach made contact in made contact in which Detective Lobach

ended up "body body checking"

checking" the Defendant

Defendant into

into the corner

corner of the exterior wall wall of the

hallway with with the intention intention of creating distance between him him and the Defendant.

Defendant. ((C.

C.

Ex. A); Ex. A]; ((C.

C. Ex. 7).

Ex. T). However, Detective Lobach could However, could not not stop due to

to the momentum

momentum

that that had been building as a result of his speed been building speed and his weight.

weight. ((C.

C. Ex.

Ex. A);

AJ; ((C.

C. Ex.

Ex. 7).

The Defendant against the closed Defendant fell against closed window window at the end of the southern southern hallway,

hallway,

which which caused the the window to break

window to break and the Defendant Defendant to

to fall out the window.

window. (C.

(C. Ex.

Ex.

A); AJ; ((C.

C. Ex.

Ex. 8). Detective Lobach, Lobach, despite going partially partially out

out of the window,

window, was

was able to

to

s 15 Special Agent Agent Murray indicated

indicated that it

it felt as if

if she had been struck

struck in

in the face with

with an

open hand, hand, but but recognized that Defendant was that the Defendant was holding holding the

the food

food in

in his

his right

right hand

hand and

and his

hie

Apple iPhone in in his left hand,

hand, and consequently his hand could not have been open.

could not open. ((C.

C. Ex.

Ex. A);

A);

(C. Ex. (C. Ex. 6).

6).

6 36 Special Agent Both Special Agent Murray and Detective Lobach believed believed that the Defendant was southern stairwell

running towards the southern to escape.

stairwell to escape

20

stop himself from from falling

falling by grabbing jagged, broken grabbing the left side of the jagged, broken glass window window

frame with with his left arm arm and by planting

planting his left leg

leg against the exterior wall.

wall. 17

The Defendant

Defendant fell onto the macadam macadam of the parking lot of the Motel Motel 6

below the secondbelow window and was

second-floor window was injured.

injured. (C.

(C. Ex. A); ((C.

Ex. A); C. Ex.

Ex. 8). Special

Special Agent

Agent

Murray's supervisor, Special Agent supervisor, Special Morral, who Agent Morral, who was

was positioned

positioned outside of the Motel Motel 6

in in the front parking lot, lot, immediately arrived in in his vehicle to

to render aid,

aid, along with

with

Officer Deveryl Deveryis8 and Detective Jamie Leauber Leauber of the Lehigh County Drug Task Force

Task Force Officer for Lehigh County Human Trafficking Task Force and and Task

Department of Homeland Security. Department Security. ((C.

C. Ex.

Ex. A);

AJ; (C.

(C. Ex.

Ex. 8).

8]. EMS was

was called

called and law

law

enforcement attempted to keep the Defendant calm and stationary.

Defendant calm stationary. Detective Leauber Lauber

placed placed a tourniquet on the Defendant's left upper arm to aid upper arm aid in

in stopping the bleeding

bleeding

from laceration on his lower left arm. from a deep laceration arm. (C.

(C. Ex.

Ex. A);

AJ; ((C.

C. Ex.

Ex. 8).

8). The Defendant's

Apple Whone 13 Pro was iPhone 13 was recovered within within a foot of the Defendant Defendant lying

lying on the ground.

ground

(C. Ex. (C. 1); (C. Ex.

Ex. IJ;(C. 3). Ultimately, Ex. 3. Ultimately, Detective Leauber Leauber obtained

obtained a search warrant warrant for the

cell phone and federal cell federal agents executed executed same.

same. ((C. Ex.

Ex. 1);

1; ((C.

C. Ex. 2)

2).

The Defendant was transported Defendant was transported to to Lehigh

Lehigh Valley Hospital Cedar Crest Hospital - Cedar Crest

campus by EMS/ambulance EMS/ambulance for medical medical treatment.

treatment. The Defendant suffered a neck Defendant suffered neck

fracture, fracture, as well well as two

two ([2)

2) broken

broken legs and a severe laceration laceration of the left arm.

arm.

n 17 did not Detective Lobach did not expect expect the

the glass to break

glass to break and did

did not want the

not want the Defendant

Defendant to

to

fall out of the window.

window.

18 Defendant ran When the Defendant ran down towards the southern southern end of the hallway, hallway, Officer Devery

exited Room exited Room 222 and utilized utilized the

the stairwell

stairwell on

on the

the northern

northern end to

to go down

down to the

the motel

motel lobby

lobby inin

case the Defendant Defendant attempted

attempted to to escape

escape byby descending the southern stairs. (C.

southern stairs, (C. Ex. A);

A]; (C. Ex.

(C. Ex.

However, when Officer Devery heard glass breaking, 7). However, breaking, he exited exited the motel,

motel, rounded the

southern end of the building, southern building, and encountered the Defendant Defendant lying

lying on the ground.

ground. (C. Ex. A;

(C. Ex. A);

(C. Ex. (C. 8). The Defendant Ex. 8]. Defendant attempted to to sit up and Officer Devery advised him Devery advised him to

to lie

lie back down

and stay still.

still. ((C.

C. Ex.

Ex. A);

A]; (C.

(C. Ex. 8),

8). The Defendant

Defendant was alert and speaking speaking and apologized for his actions.

actions. (C.(C. Ex.

E. A);

A); (C. 8).

(C. Ex. 8)

21

Detective Lobach also suffered suffered injuries as a result of of the events. In

events. In

particular, he sustained particular, sustained a left ankle sprain, sprain, a sprain

sprain of the

the ligament

ligament in

in his left knee,

knee,

two ((2)

and two 2) lacerations lacerations near

near his left elbow

elbow region, one ({l)

region, one 1) in

in which involved

involved an arterial

bleed. Detective Lobach sought bleed. sought treatment treatment at Lehigh Valley Valley Hospital

Hospital - Cedar

Cedar Crest

Crest

campus. Medical personnel campus. Medical personnel cauterized the artery artery in

in his left arm

arm to stop

stop the bleeding,

bleeding,

as well well as stitched stitched up the wound.

wound. Detective Lobach missed approximately four missed approximately four (4)

(4)

weeks of work work as a result of his his painful

painful injuries. The treated treated area arm arca of his left arm

remains numb/tingly due to to the injury

injury that

that he sustained.

sustained.

Additionally, Special Agent Additionally, Special Agent Murray suffered suffered injuries as a result of what what

transpired transpired at the Motel Motel 6.

6. Specifically,

Specifically, the Defendant Defendant struck Special Agent struck Special Agent Murray in in

the face face when breaking free from her free from her grasp.

grasp. Also,

Also, when Detective Lobach attempted attempted to

to

pursue the Defendant, Defendant, he knocked Special Special Agent

Agent Murray out of the way way (inadvertently

(inadvertently

against the wall wall of the hallway)

hallway) which caused an abrasion on her her left arm.

arm.

Consequently, Special Agent Consequently, sought medical Agent Murray sought medical attention attention at Lehigh Valley Valley

Hospital - Cedar Hospital Cedar Crest Crest campus.

campus. ((C.

C. Ex.

Ex. A);

A); (C.

(C. Ex.

Ex. 6);

6); ((C.

C. Ex.

Ex. 7). After Special.

Special Agent

Agent

Murray was cleared Murray was cleared by the the medical

medical personnel, approximately one personnel, and approximately one ((l)

1) hour

hour after

the Defendant Defendant had arrived at the Motel 6, Special Motel 6, Agent Murray Special Agent Murray and Officer Devery Devery

went to went to speak with with the Defendant

Defendant in

in the Emergency Room

Room of Lehigh

Lehigh Valley Hospital -

Valley Hospital

Cedar Crest campus about Cedar about the events of the day.

day. Special

Special Agent

Agent Murray and Detective

Devery with a nurse Devery spoke with nurse and asked asked permission

permission to

to speak

speak with

with the

the Defendant.

Defendant. The

nurse tending to to the Defendant

Defendant indicated

indicated that

that they

they could speak

speak with

with him.

him.

When Special

Special Agent

Agent Murray and Officer Devery entered the Emergency

Room Room trauma triage bay in in which the Defendant

Defendant was

was situated,

situated, they

they observed

observed the

Defendant Defendant lying lying flat on his back,

back, handcuffed

handcuffed to

to the bed with

with his right hand,

hand, and

22

wearing a neck brace which impeded the movement movement of his lower

lower jaw ((and

and thereby

caused his speech speech to

to be quieter). The Defendant was awake, Defendant was awake, his eyes were open, open, and

he made appropriate cye eye contact

contact with

with Special

Special Agent

Agent Murray

Murray and Officer Devery who who

both both had their badges visibly displayed. Officer Devery Mirandized the Defendant visibly displayed. Defendant and and

the Defendant Defendant verbally verbally waived

waived those rights. ((C.

C. Ex. A);

AJ; (C.

(C. Ex.

Ex. 9).

9). Officer Devery

explicitly asked the Defendant explicitly Defendant if he wished to to talk

talk with

with them

them and the Defendant

Defendant

unequivocally responded in the affirmative. ((C, responded in C. Ex.

Ex. A);

A); (C.

(C. Ex.

Ex. 9). No threats

thrcats were

made to the Defendant made to Defendant at at any time during the conversation that that occurred at Lehigh

occurred at Lehigh

Valley Hospital.

Hospital. ((C.

C. Ex.

Ex. A);

A); ((C.

C. Ex.

Ex. 9). Both Special

Both Special Agent

Agent Murray and Ofieer

Officer Devery

were dressed in in plain

plain clothes and neither displayed their firearm.

firearm, Officer Devery was was

that the Defendant

confident that Defendant understood his Miranda warnings warnings and all of the

questions posed to to him. Indeed, he answered all questions appropriately and him. Indeed,

coherently, as well coherently, well as appeared upset, upset, respectful,

respectful, remorseful,

remorseful, and nervous that that he

would be reported reported or placed on a registry placed on registry for his his earlier actions.

actions. ((C.

C. Ex.

Ex. A);

A); ((C.

C. Ex. 9).

Ex. 9)

The The Defendant Defendant cogently explained that that his girlfriend was girlfriend pregnant and due in was pregnant in

January. ((C. January. C. Ex. A); (C.

Ex. AJ; Ex. 9). Furthermore, (C. Ex. Furthermore, the Defendant indicated that Defendant indicated that the reason reason

that he went that went to to the Motel

Motel 6 was

was to

to "get

get [his] dick sucked"

[his] dick sucked" by a 15 I5 year

year old

old girl and that

that

he knew knew that this was illegal. (C.

was illegal. Ex. A);

(C. Ex. AJ; ((C.

C. Ex.

Ex. 9). He confirmed

confirmed that

that he

he had brought

brought

a bag of food from from Wendy's with him,

Wendy's with him, along

along with

with a bag of Pepperidge Farm goldfish Farm goldfish

crackers. ((C. crackers. C. Ex.

Ex. A);

A); (C.

(C. Ex.

Ex. 9). He also

also recounted that he ran ran down the hallway of the

Motel Motel 6 and fell out the window.

window. ([C.

C. Ex.

Ex. AN;

A); (C. Ex. 9).

(C. Ex. 9), Finally, Finally, the Defendant

Defendant

identified identified his his cell phone when shown by Officer Devery, Devery, as well provided Special well as provided Special

Agent Agent Murray and Officer Devery with with the security

security passcode for his his cellular telephone.

telephone.

(C. Ex. (C. A); ((C.

Ex. A); C. Ex.

Ex. 9)

9).

23

Viewing all the evidence and all reasonable inferences arising arising therefrom

therefrom

in in the light most most favorable to

to the Commonwealth,

Commonwealth, it is

is clear that the evidence was was

sufficient to to enable a finder of fact to to conclude that

that all the elements of the offenses

established beyond a reasonable doubt.

were established doubt. Indeed, at Indeed, at the conclusion conclusion of the jury

jury

trial, the jury had no doubt trial, doubt that that the Defendant

Defendant was

was intentionally

intentionally in contact with in contact with

Special Agent Special Agent Murray, Murray, who

who had assumed the secondary persona of a 15 I5 year

year old

old girl,

via via text text messaging, messaging, for the purpose of engaging in oral intercourse.

in oral intercourse. Also, Also, based on

on the

evidence, the jury evidence, also concluded that jury also that the Defendant, Defendant, with

with the intent of engaging in in

oral intercourse with oral with a 15 15 year old

old girl,

girl, took

took a substantial

substantial step

step toward committing

involuntary involuntary deviate sexual sexual intercourse. Thus, a challenge to intercourse. Thus, to the sufficiency sufficiency of the

was without evidence was without merit.

merit.

Based on

on the foregoing,

foregoing, this Court

Court finds that

that the Defendant did not Defendant did not

request that an appeal request that appeal or Post Post Sentence Motion be filed filed and that Attorney Dutko did did not

not

fail to to consult with with the Defendant about same.

Defendant about same. Also, Also, this Court

Court finds that

that there is

is no

basis for for relief, relief, and consequently no prejudice suffered suffered by the Defendant, Defendant, as a result of

any action omission of Attorney Dutko with action or omission with regard regard to

to the pretrial and post-trial issues

raised by the Defendant raised Defendant (supra)

supra) and the entrapment entrapment issue (infra).

infra). Indeed,

Indeed, the evidence

established that

presented established that Attorney Attorney Dutko did

did reach

reach out to

to and consult

consult with

with both

both the

Defendant's mother mother and the Defendant, Defendant, not

not only to counsel them

to counsel them with

with regard to filing

regard to filing

Post Post Sentence Motions and/or appeal, but and/or an appeal, but also also to

to determine their wishes with with

regard to same.

to same. Options were provided provided to

to them

them with

with regard

regard to

to legal

legal avenues to

to

pursue, pursue, including Attorney Dutko filing filing a timely Notice of Appeal Appeal and then

then withdrawing

withdrawing

from the case, from the case, thereby allowing allowing the Defendant to apply for a public Defendant an opportunity to

to represent defender to him on represent him appeal. Despite advising on appeal. advising them them of this option,

option, the Defendant

Defendant

24

mother clearly and directly and his mother directly conveyed to Attorney Dutko that they conveyed to they did did not

not wish

wish

to Post Sentence Motion to pursue a Post Motion nor an appeal.

appeal. Moreover,

Moreover, Attorney Dutko expressed Dutko expressed

that that he thought that filing thought that filing a Post Post Sentence Motion in the form Motion in form of a challenge to to the

sentence imposed would be appropriate, appropriate, but

but the Defendant

Defendant remained firm

firm that he did

did

not not want want to to file file such a Motion.

Motion, Although Attorney Dutko did did not

not go

go over

over specifics as to

to

what could what could be appealed during the telephone call of May 9, 2024, May 9, 2024, Attorney Dutko did did

have prior discussions with have Defendant on February with the Defendant February 14, 14, 2024 and at the time that that the

Pre- Sentence Investigation Pre-Sentence Investigation report report was

was reviewed by them

them together with

with regard to

regard to

appealable issues. Indeed, Indeed, on those dates,

dates, the Defendant

Defendant had been

been apprised

apprised by

Attorney Dutko Dutko of the issues that could be pursued on that could on appeal. Despite having been been

counseled by Attorney Dutko with with regard

regard to the advantages of filing filing Post

Post Sentence

Motions and/or appeal, during the telephone call of May and/or an appeal, May 9, 2024 the Defendant Defendant

explicitly expressed explicitly to Attorney Dutko that he did expressed to did not not wish

wish to

to file

file an appeal

appeal or Post

Post

Sentence Motions. Consequently, Attorney Dutko followed the Defendant's wishes and Motions. Consequently,

instructions and did did not

not file

file Post Sentence Motions nor nor an appeal.

appeal. Moreover, this Moreover, this

Court notes that Court that the Defendant Defendant completed a Post Post Sentence Information Information form

form at the

time of his sentencing. The Defendant Defendant did

did not

not have

have any questions about

about this form,

form, as

he posed no questions to the Court, Court. This form

form includes specific language language stating that

stating that

"You have the right to You to assistance of counsel counsel in

in the preparation

preparation of a post- sentence post-sentence

motion appeal. If motion or an appeal. If you are indigent, indigent, you have the right to proceed proceed without

without the

payment payment of costs and with counsel appointed to with counsel to represent you without charge." As As

such, this such, this Court Court cannot

cannot find

find that Attorney Dutko rendered ineffective assistance to to

counsel. counsel 19 19

to 19 While this Court does not this Court not find

find that Attorney Dutko was was ineffective with

with regard

regard to

to

25

Finally, Finally, the Defendant

Defendant argues that

that Attorney Dutko rendered ineffective

counsel when he failed

assistance of counsel failed to to object

object to

to the

the Court's

Court's non-inclusion jury non-inclusion of a jury

instruction instruction explaining the entrapment defense. o At entrapment defense.29 At the time of trial, trial, Attorney

Attorney Dutko

that the entrapment argued that entrapment jury charge, Standard Jury Instruction jury charge, Instruction 8.313(4)(a)-(b),

applied to the case based on the facts elicited applied to elicited at trial and should be provided provided to

to the

jury. jury.'2i However, However, as Commonwealth Commonwealth v. Shay, 268 A.3d Shay, A.34 445 (Pa.

(Pa. Super.

Super. 2021)

2021) and

Commonwealth v. Zingarelli, 839 A.2d v, Zingarelli, A.2d 1064 1064 (Pa.

(Pa. Super.

Super. 2003)

2003) make

make clear,

clear, Pennsylvania

Pennsylvania

courts apply an objective test test (that must be proven by a preponderance of the evidence)

(that must evidence)

consulting with with the Defendant

Defendant about

about filing

filing an appeal

appeal or post

post sentence motions,

motions, this Court

notes that the record is void of evidence to is void to demonstrate a reasonable probability that, that, but for

for

consultation with

counsel's deficient consultation with the Defendant, Defendant, the Defendant Defendant would have

have timely

appealed. appealed. Thus, Thus, the Defendant

Defendant has failed

failed to show prejudice.

to show prejudice.

2o 20 The Defendant Defendant also contends that this Court's refusal to Defendant's motion to grant the Defendant's motion requesting that the Court instruction to Court provide an instruction jury regarding the defense of to the jury

entrapment is entrapment is an issue merit that issue of merit that he desired desired to appeal. However, to raise on appeal. Court finds However, this Court

that that the Defendant's Defendant's request

request for entrapment instruction for the entrapment instruction was not relevant or applicable in was not in light of the facts facts and evidence elicited elicited at trial.

21 Entrapment Entrapment is is an affirmative defense that that must must be be proven by a preponderance of the evidence. The defense of entrapment evidence. entrapment is is set forth forth in 18 Pa.

in 18 Pa. CS.A.

C.S.A. S§ 313:

313:

§313. Entrapment. $313. Entrapment.

General rule.--A public law (a) General law enforcement official or a person acting acting in

in cooperation

cooperation with

with such an official perpetrates an entrapment entrapment if if for the purpose of obtaining evidence of the commission of an offense, offense, he induces or encourages anotheranother person to

to

person engage engage in in conduct

conduct constituting

constituting such

such offense by either:

either:

(1) making knowingly false (l] false representations designeddesigned to to induce the belief that such conductconduct isis not not prohibited;

prohibited, or

(2) employing methods of persuasion inducement which create persuasion or inducement

a substantial risk that substantial risk that such such an offense will will bebe committed by

persons other than those who are ready to commit it.

to commit

(b) (b) Burden of Except proof.--Except as provided in (c in subsection (c) of this section, a person prosecuted section, person prosecuted for an an offense shall be acquitted shall acquitted if

if

he proves by a preponderance of evidence that his conduct conduct occurred occurred in in response to an entrapment.

entrapment.

(c) Exception.--The (c) Exception,The defense afforded afforded by this section section is is unavailable when causing or threatening bodily injury threatening bodily injury is is an element of the element

charged and the prosecution offense charged prosecution is is based on conduct conduct causing

or threatening

threatening such such injury injury toto a person

person other than than the person entrapment.

perpetrating the entrapment.

26

in if a defendant has been entrapped. Commonwealth v. in determining if y, Willis, Willis, 990 A.2d

773, 775 (Pa. 773,775 (Pa. Super.

Super, 2010).

2010). The purpose of the test it to to identify

identify police overreaching that that

would lead lead a law-abiding law-abiding person to commit person to commit a crime and to to prohibit a defendant from from

being being held held responsible responsible for such outrageous and impermissible police conduct. Zingarelli, conduct. Zingarelli,

839 A.2d 1073. Both Shay.and Zingarelli A.2d at 1073. Zingarelli establish establish that

that merely

merely offering

offering an opportunity

for a defendant to commit a crime is to commit is not sufficiently outrageous to not sufficiently support an to support

entrapment defense. entrapment v. Marion, defense. Commonwealth v. Marion, 981 A.2d 230, 230, 239

239 (Pa.

(Pa. Super. 2009).

Super. 2009).

Without question, police are permitted Without question, permitted to to utilize deceptive tactics and artifice in in

apprehending criminals. Shay, apprehending criminals. Shay, 268 A.3d 445.

445.

In the within In within matter,

matter, the Defendant

Defendant had substantial substantial opportunity to to

chat/text messaging

terminate the chat/text messaging with Special Agent with Special Agent Murray.

Murray. He did not.

He did not. The

Defendant acknowledged that Defendant knew that that he knew that the one one ((I)

1) of the girls

girls being

being offered

offered in

in the ad

was was 15 I5 years old.

years old. is not It is not relevant

relevant that initially the Defendant that initially Defendant was was interested

interested in

in the ad

when he knew knew that one of them them was

was 19

19 years old.

old. When the idea of a 15 I5 year old

old girl

was mentioned, was Defendant expressed mentioned, the Defendant expressed interest, interest, and his interest sustained into into the

following following day.

day. This Court

Court found

found that

that Special

Special Agent

Agent Murray did not

not engage in

in any act

act of

overreaching that would have induced or created overreaching created a substantial substantial risk

risk that

that a law-abiding

law-abiding

citizen who citizen did not who did not have have an intent

intent to

to have

have oral

oral sex with

with a 15

I5 year

year old

old to in oral

to engage in

sex with with a young girl of this young girl age. In this age. In this

this situation,

situation, while Special

Special Agent

Agent Murray's

Murray's purpose

was to was crime, the facts elicited to obtain evidence of a crime, elicited at trial did did not

not demonstrate that

Special Agent Special Agent Murray Murray induced or encouraged the Defendant Defendant to engage in

in the conduct

conduct

constituting the crime. constituting crime. She merely merely presented opportunity and the Defendant presented an opportunity Defendant availed availed

himself himself of it. As such, such, this decision not this Court's decision not to provide an entrapment entrapment instruction

instruction

18 18 Pa. C.S.A. 8313.

Pa. C.8.A. § 313.

27

was was legal legal and appropriate.

appropriate. Therefore, this Court Therefore, this Court cannot find find Attorney Dutko ineffective

failing to for failing object to to object to the Court's

Court's non-inclusion

non-inclusion of a jury

jury instruction

instruction explaining

explaining the

entrapment defense after the issue issue was

was argued

argued and

and fleshed

fleshed out in Court.

in Court.

Accordingly, Accordingly, the Defendant's Motion for Post Motion for Conviction Collateral Post Conviction Collateral Relief is is

denied. denied.