Com. v. Tiburcio, J.

• Court: Superior Court of Pennsylvania
• Decided: July 28, 2023
• Docket: 1379 MDA 2022
• Status: Unpublished

Opinion

J-S08026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUAN RAMON TIBURCIO : : Appellant : No. 1379 MDA 2022

Appeal from the PCRA Order Entered August 30, 2022 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0004618-2015

BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: JULY 28, 2023

Juan Ramon Tiburcio (Appellant) appeals from the order entered in the

Berks County Court of Common Pleas denying his first petition for collateral

relief filed pursuant to the Post Conviction Relief Act (PCRA).1 Appellant seeks

relief from the judgment of sentence of an aggregate term of 11 to 60 years’

imprisonment, imposed following his jury conviction of, inter alia, two counts

of delivery of heroin, and one count of possession with intent to deliver (PWID)

heroin2 following a two-month, undercover investigation. On appeal,

Appellant raises six claims of trial counsel’s ineffectiveness. For the reasons

below, we affirm. ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9545.

2 See 35 P.S. § 780-113(a)(30). J-S08026-23

The facts underlying Appellant’s convictions were summarized in a prior

decision of this Court:

[During the summer of 2015,] the Narcotics Enforcement Team of the Berks County District Attorney’s Office (“Narcotics Team”) was working undercover to purchase heroin from a suspect, Karla Romig.

[Sergeant Todd Harris was in charge of the investigation. On June 29 and July 20, 2015, Detective Camilla Karns, working undercover with the help of a confidential informant (CI), made two separate purchases of heroin from Romig. On each occasion, Romig stated she was getting the drugs from “her guy.” The team set up a third purchase for August 11th, at which time they arrested Romig for drug offenses.]3

[Romig] then consented to Sergeant [ ] Harris’ use of her phone to contact her supplier, later identified as Appellant. Posing as Romig, Sergeant Harris texted Appellant. During the text conversation, Sergeant Harris asked Appellant for “three whole ones” which meant he was asking for three bundles of heroin. Through the text conversation between Sergeant Harris (posing as Romig) and Appellant, they arranged to have Appellant deliver the drugs to Romig’s residence. Once Appellant arrived at the residence, he sent a text message to Romig stating that he was outside.

At that same time, the surveillance units working with Sergeant Harris informed him that a Toyota Camry had pulled up at the residence. Appellant exited the passenger side of the Camry, operated by his brother Michael Tiburcio (“co-defendant”), and started to walk up onto the porch of Romig’s residence. He was then taken into custody. The Narcotics Team recovered from Appellant’s person $818.00 in U.S. currency, two cellular telephones, and a sandwich bag containing a bundle of 10 heroin packets and another bundle of 9 heroin packets.

The Narcotics Team instructed the co-defendant to exit the Camry. A subsequent search of the co-defendant led to the recovery of a plastic sandwich bag containing 41 packets of crack ____________________________________________

3 See N.T. Jury Trial, 8/1/16 – 8/2/16, at 109-28, 204-05.

-2- J-S08026-23

cocaine, $296.00 in U.S. currency, a chunk of bulk cocaine and one packet of powder cocaine. Following the administration of Miranda[4] warnings, the co-defendant directed the Narcotics Team to a small change drawer to the left of the steering wheel in the Camry containing 15 additional packets of heroin. The Narcotics Team also recovered the co-defendant’s cellular phone from inside of the Camry. The co-defendant admitted to Detective George Taveras of the Berks County District Attorney’s Office that he was “willing to cooperate with law enforcement,” “he was doing this to get by,” “times were tough,” and that “this was a very small amount” and he can do “bigger things.”

Commonwealth v. Tiburcio, 1589 MDA 2016 (unpub. memo. at 2-3) (Pa.

Super. Aug. 22, 2017) (some paragraph breaks added).

Appellant was arrested and charged with two counts of delivery of

heroin, one count of PWID, and three counts each of criminal conspiracy,

criminal use of a communication facility, possession of drug paraphernalia,

and possession of a controlled substance.5 Kevin Feeney, Esquire was

appointed as trial counsel. On October 9, 2015, the Commonwealth notified

Appellant that it was consolidating his case with the charges against his

brother. See Notice of Consolidation, 10/9/15.

A two-day jury trial commenced on August 1, 2016. At the conclusion

of trial, the court granted Appellant’s motion for judgment of acquittal on two

of the three conspiracy charges. See N.T., Jury Trial, at 358-59. Thereafter,

____________________________________________

4 Miranda v. Arizona, 384 U.S. 436 (1966).

5 See 18 Pa.C.S. §§ 903(a)(1), 7512(a); 35 P.S. § 780-113(a)(16), (32).

-3- J-S08026-23

the jury returned a verdict of guilty on all of the remaining charges.6 See id.

at 449. On August 9, 2016, Appellant was sentenced to an aggregate term of

11 to 60 years’ imprisonment.7

Appellant filed a timely direct appeal8 raising three issues: (1) whether

the trial court erred when it permitted the Commonwealth to present expert

witness testimony when it did not disclose the expert to the defense before

trial, and such testimony was unnecessary; (2) whether the evidence was

sufficient to support his conviction of conspiracy; and (3) whether the

sentence imposed was excessive. See Tiburcio, 1589 MDA 2016 (unpub.

memo. at 4). A panel of this Court affirmed the judgment of sentence on

August 22, 2017. See id.

More than 30 days later, on September 27, 2017, the trial court received

a pro se letter from Appellant, stating that he asked Attorney Feeney to file a

petition for allowance of appeal with the Pennsylvania Supreme Court, but

that no petition had been filed. See Appellant’s Letter to Trial Court, 9/27/17.

6 The jury also found co-defendant Michael Tiburcio guilty of two counts each

of PWID, criminal conspiracy, and possession of controlled substances. See N.T., Jury Trial, at 450.

7 The trial court imposed consecutive sentences of 33 months to 15 years’ imprisonment on both counts of delivery of heroin, as well as the charges of PWID and criminal conspiracy. It imposed concurrent terms of 18 months to 7 years’ imprisonment for each count of criminal use of a communication facility. The remaining charges merged for sentencing purposes. See N.T. Sentencing, 8/9/16, at 12-14.

8 Attorney Feeney continued to represent Appellant on appeal.

-4- J-S08026-23

Thereafter, on October 18, 2017, Appellant filed a pro se petition requesting

leave to file a petition for allowance of appeal nunc pro tunc. See Appellant’s

Petition for Leave of the Court to Grant Nunc Pro Tunc to the Petitioner the

Right to File a Petition for Allowance of Appeal to the Pa. Supreme Court,

10/18/17. Recognizing Appellant’s petition to be a request for PCRA relief,

the court entered an order on October 30, 2017, appointing Lara Hoffert,

Esquire, to represent Appellant, and directing her to file an amended petition

within 60 days. See Order, 10/30/17. Over the next year, Attorney Hoffert

was granted seven extensions of time to file an amended petition.

On January 29, 2019, Attorney Hoffert filed an amended PCRA petition

presenting two claims of prior counsel’s ineffective assistance: (1) failing to

file a requested petition for allowance of appeal, and (2) waiving Appellant’s

discretionary aspects of sentencing claim on direct appeal.9 See Appellant’s

Amended Petition for Relief Under the Post Conviction Relief Act, 6/29/19, at

3 (unpaginated). Following a brief hearing on February 28, 2019, the PCRA

court entered an order, upon agreement of the parties, granting Appellant the

following relief: (1) the court reinstated Appellant’s direct appeal rights nunc

pro tunc limited to a challenge to the discretionary aspects of his sentence;

and (2) thereafter, if necessary, the court reinstated Appellant’s right to file a ____________________________________________

9 On direct appeal, this Court found Appellant’s discretionary sentencing claim

waived because Appellant failed to include the requisite Pa.R.A.P. 2119(f) statement of reasons relied upon for allowance of appeal in his brief, and the Commonwealth objected to the omission. See Tiburcio, 1589 MDA 2016 (unpub. memo. at 4 n.3).

-5- J-S08026-23

petition for allowance of appeal nunc pro tunc, including issues raised in his

prior direct appeal. See Order, 2/28/19. Appellant filed a timely nunc pro

tunc direct appeal on March 25, 2019.

On March 10, 2020, a panel of this Court rejected Appellant’s sentencing

claims and affirmed his judgment of sentence. See Commonwealth v.

Tiburcio, 505 MDA 2019 (unpub. memo. at 11) (Pa. Super. Mar. 10, 2020),

appeal denied, 160 MAL 2020 (Pa. Nov. 3, 2020). Nevertheless, because the

panel recognized that Appellant’s guideline sentence form listed “the incorrect

quantity of drugs, causing the [offense gravity score (OGS)] to be incorrect[,]”

it remanded the case for correction of the guideline sentence form.10 See id.

at 10-11. The panel noted, however, that the trial court “applied the

appropriate OGS” at sentencing and “the sentencing order accurately reflects

the correct sentence imposed.” Id. at 9-10. Thereafter, Appellant filed a

petition for allowance of appeal, which the Pennsylvania Supreme Court

denied on November 30, 2020. See 160 MAL 2020.

On January 26, 2022, Appellant ─ now represented by privately-retained

counsel Teri B. Himebaugh, Esquire ─ filed a timely PCRA petition, asserting

six claims of trial counsel’s (Attorney Feeney’s) ineffective assistance. See

Appellant’s Motion for Post Conviction Relief, 1/26/22, at 5-41. The PCRA

10 The panel explained that the correction was necessary because “the Pennsylvania Commission on Sentencing uses the guideline sentence forms to monitor the application and compliance with the guidelines[.]” See Tiburcio, 505 MDA 2019 (unpub. memo. at 10 n.9).

-6- J-S08026-23

court conducted a hearing on May 23, 2022, at which both Attorney Feeney

and Appellant testified. At the conclusion of the hearing, the court directed

the parties to filed post-hearing briefs, and both Appellant and the

Commonwealth complied. Thereafter, on August 30, 2022, the PCRA court

entered an order, accompanied by Findings of Fact and Conclusions of Law,

denying PCRA relief. See Order, 8/30/22. This timely appeal follows.11

Appellant presents the following six claims for our review:

I. Were Appellant’s constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution violated due to trial counsel’s ineffective advice in relation to rejecting the plea offer?

II. Were Appellant’s constitutional rights under the Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution violated due to trial counsel’s ineffective advice that Appellant not testify on his own behalf?

III. Were Appellant’s constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, secs. 8 and 9 of the Pennsylvania Constitution violated due to trial counsel’s ineffective failure to file a Pre-Trial Motion to Suppress, and object, during trial, to the Commonwealth’s illegal vehicle search?

11 Appellant complied with the PCRA court’s directive to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and listed the same six claims as raised in his petition. See Appellant’s Statement of Matters Complained of on Appeal, 10/14/22, at 1-3 (unpaginated). On November 1, 2022, the PCRA court issued a statement in lieu of an opinion, in which it incorporated its reasons for denying relief as set forth in its August 30, 2022, Findings of Fact and Conclusions of Law. See Statement in Lieu of Opinion, 11/1/22, at 3.

-7- J-S08026-23

IV. Were Appellant’s constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution violated due to trial counsel’s ineffectiveness in relation to the Commonwealth’s ‘expert’ Det. Lep[o]race?

V. Were Appellant’s constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the Pennsylvania Constitution violated due to trial counsel’s ineffectiveness in relation to the Commonwealth’s Confidential Informant?

VI. Were Appellant’s constitutional right[s] to due process of law and a fair trial violated by the cumulative impact of trial counsel[’s] ineffectiveness in violation of the Sixth Amendment?

Appellant’s Brief at 3-4.

When considering a ruling denying PCRA relief,

[o]ur standard of review . . . is limited to examining whether the evidence of record supports the court’s determination and whether its decision is free of legal error. This Court grants great deference to the factual findings of the PCRA court if the record contains any support for those findings. [W]e review the court’s legal conclusions de novo.

Commonwealth v. Washington, 269 A.3d 1255, 1262 (Pa. Super. 2022)

(en banc) (citations & quotation marks omitted), appeal denied, 283 A.3d

1249 (Pa. 2022). When the PCRA court grants a hearing on the petition, the

court’s “credibility findings are to be accorded great deference[,]” such that

“where the record supports the PCRA court’s credibility determinations, such

determinations are binding on a reviewing court.” Commonwealth v.

Dennis, 17 A.3d 297, 305 (Pa. 2011).

Each of Appellant’s claims on appeal assert the ineffective assistance of

trial counsel. Therefore, our review is guided by the following:

-8- J-S08026-23

Counsel is presumed to have been effective. In order to overcome that presumption and prevail on a claim of ineffectiveness, Appellant must establish that: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his conduct; and (3) he was prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable probability that because of the act or omission in question, the outcome of the proceeding would have been different.

Failure to satisfy any one of the three prongs of the test will result in failure of the entire claim.

Commonwealth v. Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (citations

omitted). Furthermore, “[c]ounsel cannot be found ineffective for failing to

raise a baseless or meritless claim.” Commonwealth v. Epps, 240 A.3d 640,

645 (Pa. Super. 2020).

In his first issue, Appellant contends Attorney Feeney provided

ineffective assistance which led him to reject the Commonwealth’s pretrial

plea offer of 2 to 5 years’ incarceration.12 Appellant’s Brief at 10. He

maintains that the OGS on the plea sheet was incorrect because it was based

on “50-100 grams of drugs being found when in fact, it was significantly less.”

Id. Appellant asserts that although he alerted his attorney that the OGS was

incorrect, Attorney Feeney did not investigate or address Appellant’s

complaint. See id. Finally, Appellant argues that he was prejudiced by

counsel’s actions because he would have taken the plea if Attorney Feeney ____________________________________________

12 “Generally, counsel has a duty to communicate plea bargains to his client,

as well as to explain the advantages and disadvantages of the offer.” Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super. 2001) (citation omitted).

-9- J-S08026-23

had “communicated adequately with [him] and re-negotiated the plea to

reflect the correct” OGS. Id. at 14.

Next, Appellant insists Attorney Feeney provided inadequate advice

regarding his right to testify, which led Appellant to forfeit that right.13 See

Appellant’s Brief at 15. He maintains that Attorney Feeney briefly counseled

him on his right to testify mid-trial during a jury break, and “told Appellant

that the jury would hear about his past criminal record, and it would make

him look guilty.” Id. at 20-21. However, Appellant maintains that none of

his prior convictions would have been disclosed to the jury because they did

not involve crimen falsi offenses. Id. at 21. Moreover, Appellant insists that

the benefit from his testimony “would have been significant” because he would

have explained “why the drugs were in small baggies and why no

paraphernalia was found on his person” and that he was giving Romig “some

of his own drugs that he had for his own personal use[.]” Id. at 23. Thus,

he argues Attorney Feeney’s “erroneous advice made [his] waiver [of his right

to testify] unintelligent.” Id. at 26.

13 Because the decision whether to testify is “ultimately to be made by the defendant after full consultation with counsel[,]” in order to prove counsel’s ineffectiveness with regard to this decision, an appellant “must demonstrate either that counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf.” Commonwealth v. Sandusky, 203 A.3d 1033, 1075 (Pa. Super. 2019) (citation omitted). Generally, however, “where a defendant voluntarily waives his right to testify after a colloquy, he . . . cannot argue that trial counsel was ineffective in failing to call him to the stand.” Id. (citation omitted).

- 10 - J-S08026-23

Appellant’s third ineffectiveness claim highlights Attorney Feeney’s

failure to file a pretrial suppression motion challenging the warrantless search

of the vehicle in which Appellant was a passenger.14 Appellant’s Brief at 27.

He argues that the Commonwealth did not establish the exigent circumstances

necessary to justify a warrantless vehicle search. Id. at 30. Appellant states:

“Had the jury not heard about the drugs and other items found in the vehicle

it is significantly less likely that they would have found that Appellant was a

dealer as opposed to a drug user.” Id. at 36.

Appellant next asserts Attorney Feeney was ineffective for failing to

object to the testimony of the Commonwealth’s expert witness, Detective

Pasquale Leporace. See Appellant’s Brief at 37. His argument is two-fold.

First, he contends the Commonwealth “ambushed” the defense at trial

because it did not identify Detective Leporace as an expert or provide an

expert report prior to trial. See id. at 37-38. Appellant insists counsel should

have requested the Commonwealth file an expert report, and then called his

own expert to rebut the detective’s testimony that he drugs recovered from

Appellant were not for his personal use. See id. at 38-39, 41-42. Second,

14 While trial counsel’s failure to file a suppression motion may constitute ineffective assistance, “if the grounds underpinning that motion are without merit, counsel will not be deemed ineffective for failing to so move.” Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016) (citation omitted). Moreover, “[t]he defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable.” Id. (citation omitted).

- 11 - J-S08026-23

Appellant insists Attorney Feeney should have requested a curative instruction

or sought a mistrial after Detective Leporace testified during cross-

examination that he was “asked [by the Commonwealth] to render a verdict

on what was seized” on August 11th. Id. at 43 (emphasis added), citing N.T.,

Jury Trial, at 336. Appellant emphasizes that an expert is not permitted to

provide an opinion on the ultimate issue at trial, i.e., the defendant’s guilt of

the charges. Appellant’s Brief at 43-44.

In his penultimate claim, Appellant avers that Attorney Feeney was

ineffective for “failing to file a pre-trial motion requesting the identity of the

CI.” Appellant’s Brief at 46. He insists the CI was the “only ‘uninterested’

eyewitness to the transaction between Romig and Det[ective] Karns and was

present to overhear their conversation related to ‘her guy.’” Id. at 51.

Appellant emphasizes that Romig had a “vested interest in testifying for the

Commonwealth[,]” and that there was “[n]o other corroboration of Det[ective]

Karn’s testimony[.]” Id. at 52-53. He further contends that if the identity of

the CI had been revealed, Attorney Feeney could have investigated the

individual to ascertain their “1) . . . ties to the drug trade in Berks County; 2)

. . . connection (if any) to the case; 3) what if any other cases this CI has

testified in[;] and 4) whether [their] testimony was found credible in those

cases.” Id. at 56. (emphasis omitted). Moreover, even if the court had denied

the disclosure motion, Attorney Feeney “would have at least been in a position

to request a missing witness instruction.” Id. at 57.

- 12 - J-S08026-23

Lastly, Appellant presents a claim based on the cumulative effect of

Attorney Feeney’s errors. See Appellant’s brief at 58. He argues that errors

were “not harmless” and their cumulative effect “rendered the verdict

inherently unreliable, violating [his] constitutional right to a fair trial and due

process of law.” Id. at 59-60.

Upon our review of the record, the parties’ briefs and the relevant case

law, we conclude the trial court thoroughly addressed and properly disposed

of Appellant’s first five claims in its Findings of Fact and Conclusions of Law

attached to its August 30, 2022, order denying PCRA relief. See Findings of

Fact & Conclusions of Law in Disposition of Appellant’s Motion for Post-

Conviction Relief, 8/30/22, at 6-28 (concluding (1) Appellant did not establish

Attorney Feeney provided ineffective advice regarding the Commonwealth’s

plea offer because (a) despite Appellant’s claim to the contrary, Attorney

Feeney testified at the PCRA hearing that he recommended Appellant accept

the plea and the offer he reviewed ─ which the Commonwealth introduced at

the hearing ─ reflected the correct OGS, but that (b) Appellant rejected the

offer because he “believed he had a good chance to win at trial[;]” 15 (2)

Appellant cannot establish Attorney Feeney interfered with his right to testify

when Appellant “knowingly, intelligently, and voluntarily waived his right”

15See Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion for Post-Conviction Relief at 7; N.T. PCRA H’rg, 6/1/22, at 21.

- 13 - J-S08026-23

after a complete colloquy;16 (3) Appellant did not establish Attorney Feeney

was ineffective for failing to file a motion to suppress the evidence recovered

from the warrantless search of the vehicle because (a) at all relevant times in

this case, “warrantless vehicle searches in Pennsylvania were governed by the

Pennsylvania Supreme Court’s decision” in Commonwealth v. Gary, 91 A.3d

102 (Pa. 2014),17 which required only probable cause, and not the existence

of exigent circumstances, (b) the Supreme Court’s decision overturning Gary

─ Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) ─ was not issued

until December 22, 2020, and (c) in any event, Appellant “was only charged

with the drugs found on his person after he was arrested and removed from”

the vehicle;18 (4) Appellant did not establish Attorney Feeney was ineffective

for failing to consult with or present an expert witness at trial to rebut

Detective Leporace’s testimony because he failed to identify (a) an expert who

would have been willing and available to testify at his trial and (b) what

beneficial testimony the expert would have provided since Appellant himself

admitted “he was bringing drugs to . . . Romig’s house because she was sick

16 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion

for Post-Conviction Relief at 15.

17 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion

for Post-Conviction Relief at 17.

18 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion

for Post-Conviction Relief at 19.

- 14 - J-S08026-23

and those drugs were on his person when he was arrested[;]”19 (5) Appellant

did not establish Attorney Feeney was ineffective for failing to seek a mistrial

or cautionary instruction after Detective Leporace stated he was asked to

“render a verdict on what was seized” because “it was clear from his testimony

that he was asked to provide his ‘opinion’ regarding the drugs seized on

August 11th” and Appellant failed to establish the detective’s poor word choice

deprived him of a fair trial;20 and (6) Appellant did not establish Attorney

Feeney’s ineffectiveness for failing to file a motion to disclose the identity of

the confidential informant because he could not demonstrate “a reasonable

possibility that the informant could give evidence that would exonerate him[,]”

but rather, only sought the CI’s identity “to perform a further investigation

into the reliability of the [CI] and to offer duplicative evidence of . . . Romig’s

theft of drugs from the Commonwealth[,]” a fact she admitted).21

19 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion

for Post-Conviction Relief at 20-21. See Commonwealth v. Morrow, 650 A.2d 907, 912 (Pa. Super. 1994) (violation of Section 780-113(a)(3) “does not require that a party make a profit, it simply prohibits ‘delivery’” of controlled substances); 35 P.S. § 780-102(b) (defining “delivery” as “the actual, constructive, or attempted transfer from one person to another of a controlled substance”).

20 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion

for Post-Conviction Relief at 21, 23-24.

21 Findings of Fact & Conclusions of Law in Disposition of Appellant’s Motion

for Post-Conviction Relief at 27 (citation & emphasis omitted).

- 15 - J-S08026-23

Accordingly, we rest on the PCRA court’s well-reasoned bases disposing

of Appellant’s first five claims, with two additional comments.

First, with regard to his allegation that Attorney Feeney provided

inadequate advice regarding his right to testify, Appellant maintains that

“[t]he benefit to the defense from [his] taking the stand would have been

significant.” Appellant’s Brief at 22-23. He insists he could have explained

why the drugs recovered from him were in small baggies and why he had no

paraphernalia. Id. at 23. More importantly, however, he insists he would

have refuted Detective Leporace’s expert opinion that the drugs were for sale

by explaining that he intended to give “Romig some of his own drugs that he

had for his own personal use because she was going through withdrawal and

was sick.” Id. What Appellant fails to recognize, however, is that his intent

to deliver drugs to Romig ─ whether for a profit or not ─ was sufficient to

sustain his convictions. See Morrow, 650 A.2d at 912; 35 P.S. § 780-102(b).

Thus, Appellant cannot establish he was prejudiced by Attorney Feeney’s

advice not to testify.

Second, with regard to Appellant’s assertion that Attorney Feeney

should have objected to Detective Leporace’s testimony because the defense

was unaware of the expert before trial, we note that this claim was raised and

rejected in Appellant’s direct appeal. See Tiburcio, 1589 MDA 2016 (unpub.

memo. at 4); see also Trial Ct. Op., 12/8/16, at 13-14. Therefore, for

purposes of PCRA review, it has been previously litigated, and Appellant may

not seek relief on that claim. See 42 Pa.C.S. §§ 9543(a)(3) (in order to be

- 16 - J-S08026-23

eligible for PCRA relief, petitioner must demonstrate “the allegation of error

has not be previously litigated or waived”); 9544(a)(2) (“an issue has been

previously litigated if . . . the highest appellate court in which the petitioner

could have had review as a matter of right has ruled on the merits of the

issue”).

With regard to Appellant’s final claim, asserting the cumulative impact

of Attorney Feeney’s purported errors, we reiterate the Pennsylvania Supreme

Court’s oft-cited holding that “no number of failed claims may collectively

attain merit if they could not do so individually.” Commonwealth v.

Williams, 896 A.2d 523, 548 (Pa. 2006) (citations omitted). We note

however, that cumulative prejudice may be assessed when the failure of

individual claims is grounded in the lack of prejudice. See Commonwealth

v. Hanible, 30 A.3d 426, 483 (Pa. 2011). Here, however, most of Appellant’s

claims fail for lack of arguable merit, or because Attorney Feeney had a

reasonable basis for his actions. Accordingly, Appellant’s final claim fails.

- 17 - J-S08026-23

Because we conclude the PCRA court properly denied Appellant relief on

his claims, we affirm the order on appeal. We further direct the parties to

attach of copy of the PCRA court’s August 30, 2022, Findings of Fact and

Conclusions of Law to all future filings of this memorandum.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/28/2023

- 18 - Circulated 07/19/2023 10:42 AM

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA CRIMINAL DIVISION

V. : No. CP-06-CR-4618-2015

JUAN RAMON TIBURCIO : Assigned to: M. Theresa Johnson, J.

Teri Himebaugh, Esquire Attorney for Petitioner

Alisa Hobart, Esquire Attorney for the Commonwealth

FINDINGS OF FACT AND CONCLUSIONS OF LAW IN DISPOSITION OF THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF

PROCEDURAL HISTORY

The defendant in the above-captioned case, Juan Ramon Tiburcio ("Tiburcio"), was

charged with various drug-related offenses arising from an incident alleged to have occurred

between June 29, 2015, and August 11, 2015. On August 2, 2016, ajury found Tiburcio guilty

on two counts of delivery of acontrolled substance,' possession with intent to deliver a

controlled substance, 2 conspiracy to commit possession with intent to deliver acontrolled

substance, 3 three counts of criminal use of communication facility, 4 three counts of possession of

drug paraphernalia,' and three counts of possession of acontrolled substance. 6 On August 9,

2016, Tiburcio was sentenced to serve an aggregate term of eleven ( 11) years to sixty (60) years

in aState Correctional Facility. Tiburcio was given acredit of three hundred sixty-four (364)

days for time served.

1 35 P.S. § 780-113(a)(30). 2 35 P.S. § 780-113(a)(30). 3 18 Pa.C.S.A. § 903(a)(1) to commit 35 P.S. § 780-113(a)(30).

4 18 Pa.C.S.A. § 7512(a).

'35 P.S. § 780-113(a)(32). 6 35 P.S. § 780-113(a)(16).

1 On September 26, 2016, Tiburcio filed a Notice of Appeal to the Superior Court of

Pennsylvania. On August 22, 2017, the Superior Court affirmed Tiburcio's judgment of sentence

but found that Tiburcio had waived his sentencing issue due to his failure to file aPa.R.A.P.

2119(f) statement and the Commonwealth's objection to its absence.

On October 18, 2017, Tiburcio filed apetition requesting leave to file anunc pro tunc

petition for allowance of appeal to the Pennsylvania Supreme Court. Within that petition, Tiburcio

claimed that his appointed counsel, Kevin Feeney, Esquire ("Attorney Feeney"), had abandoned

him as he failed to file apetition for allowance of appeal with the Supreme Court despite Tiburcio's

request for the same. Tiburcio attached aletter dated August 30, 2017, that was sent to Attorney

Feeney instructing him to file apetition with the Supreme Court.

Upon review of Tiburcio's petition and the applicable Pennsylvania law, this Court treated

the petition as filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541 et

seq. 7 This Court appointed PCRA counsel for Tiburcio and counsel filed an amended petition on

his behalf. On February 28, 2019, upon agreement of counsel, this Court entered an order which

1) reinstated Tiburcio's right to appeal and challenge the discretionary aspects of his sentence and

2) reinstated Tiburcio's right to file apetition for allowance of appeal with the Supreme Court on

all issues initially raised in the Superior Court and any that may arise following Tiburcio's

challenge to the discretionary aspects of his sentence.

On March 25, 2019, Tiburcio exercised his reinstated appellate rights and filed aNotice of

Appeal to the Pennsylvania Superior Court from this Court's order of August 9, 2016. On March

"[Pennsylvania Courts] have repeatedly held that any petition filed after the judgment of sentence becomes final will be treated as aPCRA petition." Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation and ellipsis omitted). "It is well settled that any collateral petition raising issues with respect to remedies offered under the PCRA will be considered aPCRA petition." Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001) (citations omitted). The Pennsylvania Supreme Court has held "that counsel is per se ineffective for failing to file arequested petition for allowance of appeal." Commonwealth v. Rigg, 84 A.3d 1080, 1087 (Pa. 2014) (citations omitted).

2 10, 2020, the Superior Court affirmed Tiburcio's judgment of sentence. On April 7, 2020, Tiburcio

filed aPetition for Allowance of Appeal. The petition was denied by the Pennsylvania Supreme

Court on November 3, 2020.

On January 26, 2022, Tiburcio, by and through counsel, filed aMotion for Post-Conviction

Relief ("Motion"), pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541 et

seq. A hearing was held on May 23, 2022, to address Tiburcio's PCRA claims. At that time,

Tiburcio and Tiburcio's trial counsel, Attorney Feeney, presented testimony. On July 8, 2022,

Tiburcio, by and through counsel, filed an argument brief setting forth his position regarding each

issue. On August 4, 2022, the Commonwealth filed amemorandum requesting the denial of the

Motion.

PCRA JURISDICTION AND TIMELINESS

The disposition of the Motion is governed by the PCRA and the corresponding decisional

law that has developed from the PCRA and its predecessor, the Post-Conviction Hearing Act.

The PCRA "provides for an action by which persons convicted of crimes they did not commit

and persons serving illegal sentences may obtain collateral relief." 42 Pa.C.S.A. § 9542. In order

to qualify for relief pursuant to the PCRA, apetitioner must plead and prove by apreponderance

of the evidence that he or she has been convicted of acrime under the laws of this

Commonwealth and is at the time relief is granted:

(i) currently serving asentence of imprisonment, probation or parole for the crime;

(ii) awaiting execution of asentence of death for the crime; or

(iii) serving asentence which must expire before the person may commence serving the

disputed sentence. 42 Pa.C.S.A. § 9543(a)(1).

3 The petitioner must also prove by apreponderance of the evidence the existence of adefect in

his or her conviction or sentence as set forth in 42 Pa.C.S.A. § 9543(a)(2) and that the allegation

of error has not been previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(2)(3).

A petitioner seeking PCRA relief must satisfy the PCRA's time requirements in filing his

or her petition. A PCRA petition must be filed within one ( 1) year of the date the judgment

becomes final unless the petitioner can prove the existence of one of the listed exceptions to this

requirement set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 42 Pa.C.S.A. § 9545(b)(1). The

exceptions to the PCRA one-year statute of limitations are as follows: 1) the claim was not raised

by the petitioner due to interference by government officials, 2) petitioner did not know the facts

upon which his claim rests and had no ability to learn of them, or 3) aconstitutional right has

been recognized by the United States Supreme Court or the Supreme Court of Pennsylvania and

it has been applied retroactively. Id. In the event an exception applies, apetitioner must file his

or her petition within one year from the date the claim could have been presented. 42 Pa.C.S.A.

§9545(b)(2).

[I]f aPCRA petition is not filed within one year of the date that the judgment of sentence

becomes final; or is not eligible for one of the three limited statutory exceptions to the

timeliness requirement; or is entitled to one of the exceptions, but the exception is not

asserted within [one year from] the date that the claim could have been brought; then the

court has no jurisdiction to address the substantive merits of the petition. Commonwealth

v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001) (citation omitted); 42 Pa.C.S.A.

In the case at bar, Tiburcio's Petition for Allowance of Appeal was denied by the

Pennsylvania Supreme Court on November 3, 2020. Tiburcio's sentence became final on

4 February 1, 2021, when the time for filing apetition for awrit of certiorari in the United States

Supreme Court expired. See U.S. Sup.Ct. Rule 13(1) ("apetition for awrit of certiorari to

review ajudgment in any case ... is timely when it is filed with the Clerk of this Court within 90

days after entry of the judgment. "). Tiburcio had one year from the date his judgment of

sentence became final, February 1, 2022, to file aPCRA petition. Tiburcio's Motion was timely

as it was filed on January 26, 2022.

FACTUAL SUMMARY OF TIBURCIO'S OFFENSE

The facts of the case, as summarized by the Superior Court on March 10, 2020, are as

follows:

Between June 29, 2015, and August 11, 2015, the Narcotics Enforcement Team of the

Berks County District Attorney's Office ("Narcotics Team") was working undercover to

purchase heroin from asuspect, Karla Romig. On August 11, 2016, Romig was arrested

for drug offenses. She then consented to Sergeant Todd Harris' use of her phone to

contact her supplier, later identified as Tiburcio. Posing as Romig, Sergeant Harris texted

Tiburcio. During the text conversation, Sergeant Harris asked Tiburcio for "three whole

ones" which meant he was asking for three bundles of heroin. Through the text

conversation between Sergeant Harris (posing as Romig) and Tiburcio, they arranged to

have Tiburcio deliver the drugs to Romig's residence. Once Tiburcio arrived at the

residence, he sent atext message to Romig stating that he was outside.

At that same time, the surveillance units working with Sergeant Harris informed him that

aToyota Camry had pulled up at the residence. Tiburcio exited the passenger side of the

Camry, operated by his brother Michael Tiburcio ("co-defendant"), and started to walk

5 up onto the porch of Romig's residence. He was then taken into custody. The Narcotics

Team recovered from Tiburcio's person $818.00 in U.S. currency, two cellular

telephones, and asandwich bag containing abundle of 10 heroin packets and another

bundle of 9heroin packets.

The Narcotics Team instructed the co-defendant to exit the Camry. A subsequent search

of the co-defendant led to the recovery of aplastic sandwich bag containing 41 packets of

crack cocaine, $296.00 in U.S. currency, achunk of bulk cocaine and one packet of

powder cocaine. Following the administration of Miranda warnings, the co-defendant

directed the Narcotics Team to asmall change drawer to the left of the steering wheel in

the Camry containing 15 additional packets of heroin. The Narcotics Team also

recovered the co-defendant's cellular phone from inside of the Camry. The co-defendant

admitted to Detective George Taveras of the Berks County District Attorney's Office that

he was "willing to cooperate with law enforcement," "he was doing this to get by,"

"times were tough," and that "this was avery small amount" and he can do "bigger

things."

Commonwealth v. Tiburcio, 505 MDA 2019 at * 1 (Pa. Super. filed March 10, 2020)

(unpublished memorandum) (alterations omitted).

FINDINGS OF FACT

1. On the date of the hearing on the Motion, May 23, 2022, Attorney Feeney had worked as

acriminal defense attorney for approximately 33 years and handled several hundred

drug-related cases. Notes of Testimony, PCRA Hearing, May 23, 2022 ("N.T."), at 5, 18.

He practices exclusively in criminal defense. Id. at 18.

6 2. Prior to Tiburcio's trial, the Commonwealth made anegotiated plea offer to Tiburcio to

resolve his criminal matter. Id. at 5. Attorney Feeney testified that the offer was for a

sentence of 2to 6years. Id. The plea sheet corroborated Attorney Feeney's testimony.

Id. at 20, 44. Attorney Feeney believed this to be agood offer that was in the standard

range with the sentences on multiple counts running concurrently. Id. at 5. Attorney

Feeney recommended that Tiburcio accept the offer. Id. at 6, 20.

3. The negotiated plea offer was made in writing. Id. at 6. Attorney Feeney talked with

Tiburcio about the offer several times over the phone and in person before his trial. Id. at

6, 7, 31. During those discussions, they didn't discuss the specific amount of drugs

charged in each count. Id. at 7. They did discuss the offense gravity score that was on

the Commonwealth's written negotiated plea offer but Attorney Feeney did not recall the

actual score. Id. at 8. However, he believed the offense gravity score was correct when

he reviewed the plea sheet, marked as Commonwealth's Exhibit 1, at Tiburcio's PCRA

hearing. Id. at 20.

4. Attorney Feeney did not recall Tiburcio expressing any concern regarding the offense

gravity score listed on the Commonwealth's written negotiated plea offer. Id. at 8.

5. Tiburcio rejected the negotiated plea offer. Id. at 20, 22. He believed that he had agood

chance to win at trial as the Commonwealth's main witness, Karla Romig, was ahabitual

drug user and drug dealer. Id. at 21. She also stole drugs from the Commonwealth, had

crimen falsi convictions and was "pretty strung out" when she was arrested in this case.

Id. Attorney Feeney raised these issues during his cross-examination of Karla Romig

during trial. Id.

7 6. Attorney Feeney believed that the Commonwealth had astrong case against Tiburcio

other than the credibility issues concerning Karla Romig. Id. at 23.

7. Attorney Feeney did not specifically recall whether he advised Tiburcio to take the

witness stand during his trial. Id. at 9, 22-23. He usually tells his clients that it is their

choice but generally leans against his clients testifying. Id. at 23. In this case, Attorney

Feeney was concerned that Tiburcio would have to answer questions about certain

telephone conversations and the drugs found on him. Id.

8. Attorney Feeney didn't remember if Tiburcio provided astatement to the police. Id. at 9.

9. Attorney Feeney reviewed Tiburcio's presentence investigation and knew that he did not

have any convictions related to crimen falsi crimes. Id. at 10.

10. Prior to trial, Attorney Feeney was not aware that Tiburcio was in inpatient drug and

alcohol treatment as ajuvenile. Id. He did remember that Tiburcio told him that he had a

drug addiction but didn't remember when he learned of this information. Id. at 11, 12.

11. Tiburcio informed Attorney Feeney that the drugs found on him were for personal use.

Id. at 12. This information was provided prior to trial. Id.

12. A pretrial motion was not filed by Attorney Feeney. Id. at 13, 23 Attorney Feeney

testified that Tiburcio's arrest occurred during the "pre Alexander period of time." Id. at

23-24. Attorney Feeney testified that he could not think of any exigent circumstances

present that would have justified awarrantless vehicle search. Id. at 13. He also stated

that Tiburcio was only charged with the drugs found on his person after he was arrested

and removed from the vehicle. Id. at 24. He did not remember if he objected to the

admission of the evidence obtained from the vehicle at trial. Id. at 13.

8 13. Attorney Feeney was informed by the Commonwealth that an expert witness would be

testifying during Tiburcio's trial. Id. He learned of this information shortly before trial

or during trial. Id. There was nothing in the discovery regarding an expert opinion. Id.

at 14.

14. Attorney Feeney objected to the testimony of the Commonwealth's expert but did not

recall the basis for his objection. Id. at 14, 24. This issue was raised by Attorney Feeney

on direct appeal. Id. at 24-25.

15. After learning of the Commonwealth's expert, Attorney Feeney did not make an attempt

to obtain his own expert. Id. at 14. He didn't believe it would have helped his case

because Karla Romig requested that Tiburcio deliver drugs to her and then he was

arrested when he went to her house with the requested drugs. Id. at 27-29.

16. Attorney Feeney has previously hired experts in drug cases. Id. at 28. In those situations,

there was aquestion about whether the drugs were possessed for delivery or personal use.

Id.

17. Attorney Feeney did not recall whether the Commonwealth's expert testified that a

person's tolerance to drugs increases as they use more drugs or the amount of drugs used

by Tiburcio based on his tolerance level. Id. at 14-15. He also did not recall that the

expert testified that he was asked by the Commonwealth to "render averdict on what was

seized." Id. at 15.

18. Attorney Feeney testified that he was unfamiliar with ajury instruction referred to as a

"low grade charge." Id. at 15, 25.

19. Attorney Feeney testified that, prior to trial, he was aware that Karla Romig was selling

drugs to the police and an unknown informant and that this informant was present at a

9 meeting with Karla Romig and adetective on June 29, 2015. Id. at 16. Attorney Feeney

did not file apretrial motion requesting the identity of the confidential informant. Id. He

testified that he did not believe that the identity of the confidential informant was relevant

as Tiburcio was charged with the drugs in his possession when he went to Karla Romig's

house. Id. at 26. Karla Romig was stealing drugs from the Commonwealth during

controlled buys and Attorney Feeney didn't feel that the identity of the confidential

informant would have helped him more than Karla Romig. Id. at 26-27. Also, a

detective was always present with the confidential informant when the drug deals took

place with Karla Romig. Id. at 27.

CONCLUSIONS OF LAW

Ineffective Assistance of Counsel — Generally

In order for aPCRA petitioner to succeed on an ineffective assistance of counsel claim,

the PCRA petitioner must demonstrate that: "( 1) the underlying legal claim has arguable merit;

(2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner

suffered prejudice because of counsel's ineffectiveness." Commonwealth v. Chmiel, 30 A.3d

1111, 1127 (Pa. 2011) (citation omitted). "A failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim." Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.

2010) (citation omitted). "In order for [apetitioner] to prevail on aclaim of ineffective

assistance of counsel, he must show, by apreponderance of the evidence, ineffective assistance

of counsel which, in the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken place."

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted).

10 "A claim has arguable merit where the factual averments, if accurate, could establish

cause for relief. Whether the facts rise to the level of arguable merit is alegal determination."

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (citation and quotation marks

omitted).

With regard to the second, reasonable basis prong, we do not question whether there were

other more logical courses of action which counsel could have pursued; rather, we must

examine whether counsel's decisions had any reasonable basis. We will conclude that

counsel's chosen strategy lacked areasonable basis only if Appellant proves that an

alternative not chosen offered apotential for success substantially greater than the course

actually pursued. To establish the third, prejudice prong, the petitioner must show that

there is areasonable probability that the outcome of the proceedings would have been

different but for counsel's ineffectiveness. We stress that boilerplate allegations and bald

assertions of no reasonable basis and/or ensuing prejudice cannot satisfy apetitioner's

burden to prove that counsel was ineffective.

Chmiel, supra at 1127-1128 (citations and quotation marks omitted).

"Appellant bears the burden of proving his counsel's ineffectiveness, for counsel's

stewardship is presumed to be effective." Commonwealth v. Thomas, 539 A.2d 829, 837 (Pa.

Super. 1988) (citation omitted). "[T]rial counsel cannot be found ineffective for electing not to

raise [a] meritless claim." Commonwealth v. Tilley, 595 A.2d 575, 588 (Pa. 1991) (citations

Tiburcio's Reiection of the Commonwealth's Plea Offer

Tiburcio first claims that his rejection of the Commonwealth's plea offer was based on

inaccurate facts and information. He alleges that Attorney Feeney was ineffective when he gave

11 Tiburcio advice based on aplea sheet containing the incorrect offense gravity score.

Furthermore, he avers that Attorney Feeney failed to take any steps to determine whether the

offense gravity score was correct.

[A] post-conviction petitioner seeking relief on the basis that ineffective assistance of

counsel caused him or her to reject aguilty plea must demonstrate the following

circumstance:

[B]ut for the ineffective advice of counsel there is areasonable probability that

the plea offer would have been presented to the court ( i.e., that the defendant

would have accepted the plea and the prosecution would not have withdrawn it in

light of intervening circumstances), that the court would have accepted its terms,

and that the conviction or sentence, or both, under the offer's terms would have

been less severe than under the judgment and sentence that in fact were imposed.

Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (citation omitted).

In this case, Tiburcio claims that the plea offer he was given was based on the wrong

offense gravity score and that he alerted Attorney Feeney to this issue. N.T. at 32, 37. He

believed that, based on the amount of drugs he was charged with, the offense gravity score

should have been different. Id. At the PCRA hearing, Tiburcio testified that he used the weight

of the drugs to determine his offense gravity score based on an offense gravity score guideline

sheet in his possession. Id. at 37. However, when Tiburcio was asked what he believed the

offense gravity score should have been, he stated that he couldn't recall what the guideline sheet

showed him. Id. at 37-38. Furthermore, the Commonwealth introduced the written negotiated

plea offer during Tiburcio's PCRA hearing which indicated that the offense gravity score utilized

by the Commonwealth was a6. Id. at 44. This Court notes that in Tiburcio's second appeal to

12 the Superior Court, he claimed that this Court used an incorrect offense gravity score during

sentencing. Tiburcio, supra, at *4. The Superior Court reviewed the record and determined that

an offense gravity score of 6was correct. Id. Therefore, there is no evidence that an incorrect

offense gravity score was used by Attorney Feeney when discussing the Commonwealth's

negotiated plea offer with Tiburcio and advising him to take it. There was no ineffective advice

provided to Tiburcio. Tiburcio's claim lacks arguable merit.

Tiburcio's Failure to Testifv at Trial

Tiburcio next claims that Attorney Feeney was ineffective when he advised him not to

testify at trial.

The decision of whether or not to testify on one's own behalf is ultimately to be made by

the defendant after full consultation with counsel. In order to sustain aclaim that counsel

was ineffective for failing to advise the appellant of his rights in this regard, the appellant

must demonstrate either that counsel interfered with his right to testify, or that counsel

gave specific advice so unreasonable as to vitiate aknowing and intelligent decision to

testify on his own behalf.

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa. Super. 2013) (citation omitted).

Additionally, "where adefendant voluntarily waives his right to testify after acolloquy, he

generally cannot argue that trial counsel was ineffective in failing to call him to the stand."

Commonwealth v. Sandusky, 203 A.3d 1033, 1075 (Pa. Super. 2019) (citation omitted).

In this case, Tiburcio engaged in the following dialogue with this Court regarding his

right to testify:

THE COURT: Mr. Feeney, what is your intention as far as going forward

with the case?

13 ATTORNEY FEENEY: Your Honor, my understanding is that Juan Tiburcio is not

going to testify. Is that right?

TIBURCIO: Yes.

THE COURT: All right. Then let's have Mr. Juan Tiburcio come forward.

ATTORNEY FEENEY: May Ihave aminute, Your Honor? (whereupon, brief

pause.).

JUAN TIBURCIO, Sworn.

THE CLERK: Please state your name for the record.

TIBURCIO: Juan Ramon Tiburcio.

ATTORNEY FEENEY: A little louder so she (indicating) can hear.

THE COURT: All right. Sir, do you understand that you have an absolute

right to testify in this case?

THE COURT: Do you understand that if you do testify, you will be cross-

examined by the Assistant District Attorney?

THE COURT: Do you understand that you have the absolute right to not

testify in this case?

TIBURCIO Yes.

THE COURT: Do you understand that if you choose not to testify, Iwill

instruct the jury that they must not draw any inference of

guilt from that decision?

14 THE COURT: Have you discussed this matter with your attorney, Mr.

Feeney?

THE COURT: Have you had enough time to talk to Mr. Feeney?

THE COURT: And what is your decision?

TIBURCIO: Not to testify.

THE COURT: All right. The Court, then, finds that the defendant has

made aknowing, voluntary and intelligent decision not to

testify in his case.

Notes of Testimony, Jury Trial, August 1, 2016, through August 2, 2016, at 360-362.

This Court finds that Tiburcio knowingly, intelligently and voluntarily waived his right to

testify at trial. There is no evidence that trial counsel interfered with his right to testify. Tiburcio

voluntarily waived his right to testify following this Court's colloquy and, therefore, he cannot

now argue that Attorney Feeney was ineffective in failing to call him to the stand. Tiburcio's

claim lacks arguable merit.

Attorney Feenev's Failure to File aPre-trial Motion and Object to an Illegal Vehicle Search During Trial

Tiburcio next argues that Attorney Feeney was ineffective when he failed to file aPre-

trial Motion to Suppress the evidence obtained during the Commonwealth's vehicle search

and/or object to the same at trial.

For many years, Pennsylvania courts applied a "limited automobile exception," which

required the Commonwealth to establish probable cause and exigent circumstances to justify a

warrantless search of amotor vehicle. On April 29, 2014, the Pennsylvania Supreme Court

15 •N I •

decided Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), and held that the federal automobile

exception to the warrant requirement applied to warrantless searches of motor vehicles in

Pennsylvania. Gary, supra at 138. The Gary standard is set forth as follows:

The prerequisite for awarrantless search of amotor vehicle is probable cause to search;

no exigency beyond the inherent mobility of amotor vehicle is required. The consistent

and firm requirement for probable cause is astrong and sufficient safeguard against

illegal searches of motor vehicles, whose inherent mobility and the endless factual

circumstances that such mobility engenders constitute aper se exigency allowing police

officers to make the determination of probable cause in the first instance in the field.

Gary, supra at 138.

The Pennsylvania Supreme Court's adoption of the federal automobile exception in Gary

eliminated the need for areviewing court to determine whether exigent circumstances justified a

warrantless search of an automobile. However, on December 22, 2020, the Pennsylvania

Supreme Court decided Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), and held that

"warrantless vehicle searches require both probable cause and exigent circumstances."

Alexander, supra at 207. The Court recognized that, as aresult of its decision,

we return to the pre- Gary application of our limited automobile exception under Article I,

Section 8of our Constitution, pursuant to which warrantless vehicle searches require both

probable cause and exigent circumstances; one without the other is insufficient. This dual

requirement of probable cause and exigency is an established part of our state

constitutional jurisprudence.

Id. ( quotation marks and internal citation omitted). Therefore, in addition to determining

whether awarrantless search of amotor vehicle was supported by probable cause, "areviewing

16 court will be required to determine whether exigent circumstances existed to justify the officer's

judgment that obtaining awarrant was not reasonably practicable." Id. at 208 (emphasis in

original). Although the "potential for danger to police or the public is enough to constitute

exigent circumstances[,] ... amere assertion of danger is [not] sufficient. Rather, police must be

able to articulate the danger posed under the specific circumstances of the case." Id. at 186

(citation omitted).

When making adetermination regarding the existence of probable cause, acourt must

consider "whether the facts and circumstances which are within the knowledge of the officer at

the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to

warrant aman of reasonable caution in the belief that the suspect has committed or is committing

acrime." Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa. Super. 2015) (quotation mark and

citation omitted). "In addressing the existence of probable cause, courts must focus on the

circumstances as seen through the eyes of the trained police officer, taking into consideration

that probable cause does not involve certainties, but rather the factual and practical

considerations of everyday life on which reasonable and prudent men act." Commonwealth v.

Thompson, 93 A.3d 478, 486 (Pa. Super. 2014) (citation omitted).

In this case, Tiburcio's trial commenced on August 1, 2016, during the time period when

warrantless vehicle searches in Pennsylvania were governed by the Pennsylvania Supreme

Court's decision in Gary, supra. In accordance with Gary, supra, the prerequisite for the

warrantless search of the motor vehicle operated by Tiburcio's brother was probable cause to

search. No exigency beyond the inherent mobility of amotor vehicle was required.

The testimony presented during trial established that Sergeant Todd Harris posed as Karla

Romig and arranged for Tiburcio to deliver drugs to Karla Romig's residence. Tiburcio was

17 transported to Karla Romig's residence by his brother and, upon arrival, sent atext message to

Karla Romig informing her that he was outside. At the same time, surveillance units observed a

Toyota Camry pull up at Karla Romig's residence. Tiburcio exited the vehicle and started to

walk up onto Karla Romig's porch when he was taken into custody. He was in possession of

$818.00 in U.S. currency, two cellular telephones, and asandwich bag containing abundle of 10

heroin packets and another bundle of 9heroin packets. Tiburcio's brother was also taken into

custody and asubsequent search of his person led to the discovery of aplastic sandwich bag

containing 41 packets of crack cocaine, $296.00 in U.S. currency, achunk of bulk cocaine and

one packet of powder cocaine. He was read his Miranda warnings and directed law enforcement

to the location of 15 additional packets of heroin located inside of the vehicle. Under the law in

effect at the time of Tiburcio's trial, law enforcement had probable cause to go into the Toyota

Camry without awarrant and retrieve the 15 packets of heroin. A cellular phone belonging to

Tiburcio's brother was also discovered inside of the vehicle. Therefore, amotion to suppress the

evidence obtained from the Toyota Camry and/or atrial objection to the same would have been

meritless as law enforcement had probable cause to search the vehicle in compliance with Gary,

supra. See Tilley, supra ("[T]rial counsel cannot be found ineffective for electing not to raise [a]

meritless claim. ").

This Court notes that, during the PCRA hearing, Attorney Feeney was asked by

Tiburcio's counsel whether there were any exigent circumstances present that would have

justified awarrantless search of Toyota Camry. N.T. at 13. In response, Attorney Feeney stated

that he could not think of any. Id. However, this was of no consequence. As referenced above,

Tiburcio's trial took place on August 1, 2016. At that time, warrantless vehicle searches were

governed by the Pennsylvania Supreme Court's decision in Gary, supra. "Because this claim

is sounds in ineffective assistance of counsel, [Tiburcio] must demonstrate that counsel was

incompetent under the law in existence at the tinge of trial. Counsel cannot be deemed

ineffective for failing to predict developments or changes in the law." Commonwealth v.

Gribble, 863 A.2d 455, 464 (Pa. 2004) (emphasis added). It wasn't until December 22, 2020,

that the Pennsylvania Supreme Court held that "warrantless vehicle searches require both

probable cause and exigent circumstances" in Alexander, supra.

Assuming, arguendo, that Attorney Feeney had filed amotion to suppress the drugs

found in the Toyota Camry, Attorney Feeney testified that Tiburcio was only charged with the

drugs found on his person after he was arrested and removed from the Toyota Camry. Therefore,

even if the drugs in the vehicle were suppressed, Tiburcio would not be entitled to relief as he

was not charged with possessing those items. Tiburcio's claim lacks arguable merit.

Detective Leporace's Testimonv

Tiburcio next claims that Attorney Feeney was ineffective for multiple reasons all

concerning the testimony of Detective Leporace. Specifically, Tiburcio argues that 1) Attorney

Feeney failed to request acontinuance of the trial and consult with and/or call an expert to

testify; 2) Attorney Feeney failed to object and/or move for amistrial and/or seek acurative

instruction when Detective Leporace testified that he was asked by the Commonwealth to render

averdict on what was seized from the defendants and that he complied with that request; and 3)

Attorney Feeney failed to request a "low grade" jury instruction in relation to Detective

Leporace's testimony.

First, this Court will address Tiburcio's claim that Attorney Feeney was ineffective due to

his failure to consult with and/or call an expert at trial.

19 In order to demonstrate counsel's ineffectiveness for failure to call awitness, apetitioner

must prove that the witness existed, the witness was ready and willing to testify, and the

absence of the witness' testimony prejudiced petitioner and denied him afair trial. In

particular, when challenging trial counsel's failure to produce expert testimony, the

defendant must articulate what evidence was available and identify the witness who was

willing to offer such evidence. Also, trial counsel need not introduce expert testimony on

his client's behalf if he is able effectively to cross-examine prosecution witnesses and

elicit helpful testimony. Finally, trial counsel will not be deemed ineffective for failing to

call amedical, forensic, or scientific expert merely to critically evaluate expert testimony

which was presented by the prosecution.

Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. 2013) (citations, alternations and

quotation marks omitted).

Here, Tiburcio has failed to establish Attorney Feeney's ineffectiveness for his failure to

consult with and/or call an expert to testify. As set forth above, Tiburcio was required to

articulate what evidence was available and identify the expert witness who was willing to offer

such evidence at trial. At the PCRA hearing, there was no testimony presented identifying any

expert witness that was available to testify on Tiburcio's behalf at trial and/or the evidence he or

she would have presented. Furthermore, Attorney Feeney was not required to introduce expert

testimony on behalf of Tiburcio since he was able to effectively cross-examine Detective

Leporace and elicit helpful testimony at Tiburcio's trial. Notes of Testimony, Jury Trial, August

1, 2016, through August 2, 2016, at 330-339. Attorney Feeney also testified that he didn't

believe an expert would have helped Tiburcio's case since this was not asituation where there

was aquestion about whether the drugs possessed by Tiburcio were for delivery or personal use.

20 The facts of the case established that Karla Romig requested that Tiburcio bring her drugs and he

was arrested in the course of delivering them to her. In fact, during the PCRA hearing, Tiburcio

admitted that he was bringing drugs to Karla Romig's house because she was sick and those

drugs were on his person when he was arrested. N.T. at 39. Attorney Feeney thus had a

reasonable basis for not consulting with and/or calling an expert to dispute Detective Leporace's

testimony. Therefore, for all of these reasons, this Court finds that Tiburcio's claim lacks

arguable merit.

Next, this Court will address Tiburcio's assertion that Attorney Feeney was ineffective

when he failed to object and/or move for amistrial and/or seek acurative instruction when

Detective Leporace testified that he was asked by the Commonwealth to render averdict on what

was seized from the defendants and that he complied with that request. Specifically, Tiburcio

takes issue with the following exchange:

Attorney Feeney: And in preparation acouple of months ago or even last week, it

never occurred to you to look to see what the criminal charges filed

against Juan Tiburcio was?

Detective Leporace: No. Iwas asked to render averdict on what was seized on August

11th.And that's exactly what Idid.

Notes of Testimony, Jury Trial, August 1, 2016, through August 2, 2016, at 336.

In this case, Detective Leporace testified as an expert in drug trafficking and drug

packaging. Rule 702 of the Pennsylvania Rules of Evidence specifically addresses expert

witnesses and states, in relevant part, as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise if-

21 (a) the expert's scientific, technical, or other specialized knowledge is beyond that

possessed by the average layperson;

(b) the expert's scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine afact in issue; and

(c) the expert's methodology is generally accepted in the relevant field.

Pa.R.E. 702. "It is well-settled that the purpose of expert testimony is to assist in grasping

complex issues not within the ordinary knowledge, intelligence and experience of the jury."

Commonwealth v. Mendez, 74 A.3d 256, 262 (Pa. Super. 2013) (quotation marks, alteration and

citation omitted).

An opinion is not excludable merely because it embraces an ultimate issue. PA R.E. 704.

An expert opinion that embraces an ultimate issue may be objectionable on other

grounds, however, as the Pennsylvania Superior Court observed:

Pennsylvania law allows expert opinion testimony on the ultimate issue. As with

lay opinions, the trial judge has discretion to admit or exclude expert opinions on

the ultimate issue depending on the helpfulness of the testimony versus its

potential to cause confusion or prejudice.

Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 882 (Pa. Super. 2019) (citation omitted).

Here, Tiburcio claims that Detective Leporace's statement that he was asked to "render a

verdict" and "that's exactly what Idid" was objectionable and that Attorney Feeney was

ineffective when he failed to object, move for amistrial and/or request acurative instruction.

Tiburcio states that it is the sole responsibility of the jury to render averdict, not the expert.

Merriam-Webster's Online Dictionary ("Merriam-Webster") defines the term "verdict"

as "the finding or decision of ajury on the matter submitted to it in trial." Merriam-Webster's

22 Online Dictionary, definition of verdict, https://xvww.merriam-webster.com/dictionary/verdict

(last visited August 30, 2022). Merriam-Webster also lists the synonyms for "verdict" as

"award, call, conclusion, decision, deliverance, determination, diagnosis, judgment (or

judgement), opinion, resolution." Id. ( emphasis added). As set forth above, an expert is

permitted to render an opinion and that opinion may address the ultimate issue being decided by

ajury. Therefore, Detective Leporace's statement was he was "asked to render averdict" and

that is "exactly what Idid" was synonymous with him saying that he was asked to render an

opinion and did, in fact, provide one. There was nothing objectionable about this statement.

Furthermore,

Every unwise or irrelevant remark made in the course of atrial by ajudge, awitness, or

counsel does not compel the granting of anew trial. A new trial is required when the

remark is prejudicial; that is, when it is of such anature or substance or delivered

in such amanner that it may reasonably be said to have deprived the defendant of a

fair and impartial trial. Moreover, it must be determined from all the circumstances

whether aremark has aprejudicial effect; there is no fixed rule applicable to every case.

An accepted guide in determining prejudicial effect is that, if the remark may be said with

fair assurance to have had but aslight effect upon the jury, if any at all, and one is not left

in doubt that it had no substantial influence in the case, it will not vitiate an otherwise fair

trial.

Commonwealth v. Sullivan, 820 A.2d 795, 800 (Pa. Super. 2003) (citation omitted) (emphasis in

original). Even if Detective Leporace's word choice could have been different, it was clear from

the testimony that he was asked to provide his opinion regarding the drugs seized on August 11 h .

23 Tiburcio has failed to establish that he was deprived of afair and impartial trial as aresult of

Detective Leporace's testimony. Tiburcio's claim lacks arguable merit.

Tiburcio next claims that Attorney Feeney was ineffective when he failed to request that

ajury instruction called a "low grade charge" in relation to the Commonwealth's expert

testimony.

"An instruction that expert opinion testimony is `low-grade' evidence is proper when: 1)

The expert's opinion is based on facts recited in ahypothetical question; or 2) The expert's

opinion is contradicted by direct evidence." Commonwealth v. Correa, 620 A.2d 497, 502 (Pa.

Super. 1993) (citation omitted). However, this instruction has limited use. In Commonwealth v.

Hernandez, 615 A.2d 1337 (Pa. Super. 1992), the Superior Court rejected the application of the

low-grade jury instruction stating:

A fair characterization of the low grade witness instruction would be that it was designed

specifically for dealing with the competency of lay witnesses and psychiatrists testifying

on questions of sanity.

A low grade witness instruction is not applicable here. This case is an involuntary deviate

sexual intercourse case. No one had been asked to testify as to [the defendant's] sanity in

ahomicide. [The expert's] statement was not rebutted by other expert testimony, or by

the physical evidence. There is no basis for giving alow grade witness instruction.

Id. at 1344.

In this case, Tiburcio claims that Attorney Feeney was ineffective due to his failure to

request alow-grade charge instruction. As set forth above, "the low grade witness

instruction... was designed specifically for dealing with the competency of lay witnesses and

24 psychiatrists testifying on questions of sanity." Here, Tiburcio's case involved drug possession

and delivery. Tiburcio's sanity was not at issue. Detective Leporace's statement was not

contradicted by other expert testimony or physical evidence. Therefore, alow-grade jury

instruction was not applicable. Additionally, this Court notes that in Commonwealth v. Genao,

240 A.3d 189 (Pa. Super. 2020) (non-precedential decision), the Superior Court recognized the

removal of the low-grade instruction from the standard jury instructions. Genao, supra at *6

(trial court properly denied request for low-grade instruction based on its limited applicability

and its removal from the standard jury instructions). Tiburcio's claims lack arguable merit.

Disclosure of the Confidential Informant

Tiburcio next claims that Attorney Feeney was ineffective due to his failure to file a

pretrial motion seeking the disclosure of the confidential informant's identity.

The Commonwealth enjoys aqualified privilege to withhold the identity of aconfidential

source. In order to overcome this qualified privilege and obtain disclosure of a

confidential informant's identity, adefendant must first establish, pursuant to Rule

573(B)(2)(a)(i), that the information sought is material to the preparation of the defense

and that the request is reasonable. Only after the defendant shows that the identity of the

confidential informant is material to the defense is the trial court required to exercise its

discretion to determine whether the information should be revealed by balancing relevant

factors, which are initially weighted toward the Commonwealth.

In striking the proper balance, the court must consider the following principles:

A further limitation on the applicability of the privilege arises from the

fundamental requirements of fairness. Where the disclosure of an informer's

25 identity, or of the contents of his communication, is relevant and helpful to the

defense of an accused, or is essential to afair determination of acause, the

privilege must give way. In these situations, the trial court may require disclosure

and, if the Government withholds the information, dismiss the action.

No fixed rule with respect to disclosure is justifiable. The problem is one that

calls for balancing the public interest in protecting the flow of information against

the individual's right to prepare his defense. Whether aproper balance renders

nondisclosure erroneous must depend on the particular circumstances of each

case, taking into consideration the crime charged, the possible defenses, the

possible significance of the informer's testimony, and other relevant factors.

Our case law provides that if adefendant shows that disclosure of an informant's identity

would yield information material to his or her defense, and that the request for disclosure

is reasonable, the trial court must then balance relevant factors to determine, in its

discretion, whether the informant's identity should be revealed. However:

Before the informant's identity may be revealed, ... the accused must show the

information is material to the defense and the request is reasonable. The defendant

need not predict exactly what the informant will say, but he must demonstrate a

reasonable possibility the informant could give evidence that would exonerate

him. More than amere assertion that disclosure of the informant's identity might

be helpful is necessary. Only after this threshold showing that the information is

material and the request reasonable is the trial court called upon to determine

whether the information is to be revealed.

26 To prove the information is material, the defendant must lay an evidentiary basis or

foundation that the confidential informant possesses relevant information that will

materially aid the defendant in presenting his or her defense and that the information is

not obtainable from another source.

Commonwealth v. Ellison, 213 A.3d 312, 316-317 (Pa. Super. 2019) (citations, quotation marks

and alterations omitted).

In this case, Tiburcio claims that Attorney Feeney was ineffective due to his failure to file

apretrial motion to reveal the identity of the confidential informant. He believes that learning

the identity of the confidential informant would have permitted Attorney Feeney to investigate

this individual and their ties to the Berks County drug trade, their connection to this case, their

prior testimony in other cases and whether their testimony was credible. Petitioner's Post PCRA

Hearing Argument at 12. He further alleges that the confidential informant could have been used

to testify that Karla Romig stole drugs from the Commonwealth during controlled buys. Id.

However, as set forth in Ellison, supra, Tiburcio "must demonstrate areasonable possibility the

informant could give evidence that would exonerate Hinz." Ellison, supra at 317 (emphasis

added). Here, Tiburcio has made no such demonstration. Instead, Tiburcio wanted the name of

the confidential informant simply to perform afurther investigation into the reliability of the

confidential informant and to offer duplicative evidence of Karla Romig's theft of drugs from the

Commonwealth. $ His assertion that learning the name of the confidential informant might have

been helpful to his case is insufficient. Therefore, his claim lacks arguable merit.

Additionally, during the PCRA hearing, Attorney Feeney testified that he did not believe

the identity of the confidential informant was relevant since Tiburcio was only charged with the

sKarla Romig freely admitted to stealing from the Commonwealth on both direct and cross-examination. Notes of Testimony, Jury Trial, August 1, 2016, through August 2, 2016, at 168, 171-172, 182.

27 drugs in his possession when he went to Karla Romig's house. He believed that the testimony of

Karla Romig would have been more helpful to Tiburcio's case than anything offered by the

confidential informant. Attorney Feeney also stated that adetective was always present when

the drug transactions took place with Karla Romig. In fact, the testimony presented at trial

established that law enforcement conducted surveillance and took pictures of Tiburcio during the

controlled buys. This Court finds that Attorney Feeney clearly had areasonable basis for not

filing apretrial motion to seek the identity of the confidential informant. Therefore, for all of the

above reasons, Tiburcio is not entitled to relief as his claim lacks arguable merit.

CONCLUSION

This Court finds that Tiburcio has failed to prove that Attorney Feeney was ineffective.

For the foregoing reasons, Tiburcio's Motion must be DENIED.