Commonwealth v. Pulanco

6 Pa. D. & C.5th 146
CourtPennsylvania Court of Common Pleas, Berks County
DecidedDecember 3, 2008
Docketno. CP-06-5771-03
StatusPublished

This text of 6 Pa. D. & C.5th 146 (Commonwealth v. Pulanco) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Pulanco, 6 Pa. D. & C.5th 146 (Pa. Super. Ct. 2008).

Opinion

LUDGATE, J,

PROCEDURAL AND FACTUAL HISTORY

On November 12, 2003, Henry Pulanco, the defendant, was charged in a Bill of Information with: one count of possession of a controlled substance, 35 P.S. §780-113(a)(16); one count of possession with intent to deliver a controlled [148]*148substance, 35 P.S. §780-113(a)(30); one count ofpossession of drug paraphernalia, 35 P.S. §780-113(a)(32); one count of receiving stolen property, 18 Pa.C.S. §3925(a); one count of conspiracy to commit possession of a controlled substance, 18 Pa.C.S. §903(a)(l)(2); one count of conspiracy to commit possession with intent to deliver a controlled substance, 18 Pa.C.S. §903(a)(l)(2); one count of conspiracy to commit possession of drug paraphernalia, 18 Pa.C.S. §903(a)(l)(2); and, one count of conspiracy to commit receiving stolen property, 18 Pa.C.S. §903(a)(l)(2).

Attorney Kurt B. Geishauser represented the defendant at a bench trial held on July 30, 2004, wherein the defendant was found guilty of Count 1, possession with intent to deliver a controlled substance, 35 P.S. §780-113(a)(30); Count 2, possession of a controlled substance, 35 P.S. §780-113(a)(16); Count 3, possession of drug paraphernalia, 35 P.S. §780-113(a)(32); Count 5, conspiracy to commit possession with intent to deliver a controlled substance, 18 Pa.C.S. §903(a)(l)(2); Count 6, conspiracy to commit possession of a controlled substance, 18 Pa.C.S. §903(a)(l)(2); and Count 7, conspiracy to commit possession of drug paraphernalia, 18 Pa.C.S. §903(a)(l)(2).

The defendant was sentenced on these charges on August 16, 2004 to a period of 10 to 20 years incarceration by the Bureau of Corrections in a state correctional facility. The defendant, through appellate counsel Attorney Geishauser, filed his notice of appeal on September 10,2004. On September 14,2004 this court ordered that counsel file a concise statement of matters com[149]*149plained of on appeal pursuant to Pa.R.A.P. 1925(b). The defendant, through his counsel, filed a concise statement on September 27,2004, raising insufficiency of the evidence and generally claiming error in the denial of the defendant’s pretrial suppression motion.

On October 12,2004, this court issued a memorandum opinion in response to the defendant’s concise statement of matters complained of on appeal, filed by Attorney Geishauser. On November 17,2004, Mr. Geishauser was replaced as defendant’s counsel by Michael Cammarano, Esquire. On September 16,2004, Attorney Cammarano filed a brief in support of the 1925(b) statement on behalf of the defendant, raising more specific suppression claims. However, in its opinion dated February 3, 2006, the Pennsylvania Superior Court deemed the additional and more specific issues raised by Mr. Cammarano to be waived and upheld this court’s judgment of sentence.

On September 21, 2006, the defendant filed his first pro se “motion for post-conviction collateral relief,” pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq. On September 26, 2006, the court appointed Gail Chiodo, Esquire to represent the defendant in all proceedings regarding the disposition of his PCRA petition. On November 2, 2006, the court ordered that the appointment and appearance of Attorney Chiodo, as counsel for the defendant, was vacated and withdrawn due to a conflict of interest. On that same date, the court appointed Michael Dautrich, Esquire to represent the defendant in the disposition of his PCRA petition.

On May 4, 2007, Michael Dautrich, Esquire filed an “amended motion under the Post-Conviction Relief Act.” [150]*150The court scheduled a PCRA hearing to be held on June 26, 2007 via video conferencing. The hearing was rescheduled to take place on July 24, 2007. On that date, by agreement of counsel, the court entered an order allowing the defendant to file an amended 1925(b) statement within seven days from the date of the hearing. On July 31, 2007, the defendant filed his timely “nunc pro tunc concise statement of errors complained of on appeal pursuant to order of court on July 24, 2007.”

On July 23, 2008, the Superior Court issued a published opinion vacating the order of July 24,2007, which permitted the defendant to file an amended 1925(b) statement nunc pro tunc and remanding the case to this court with instructions to conduct a PCRA analysis as to the merits of the defendant’s PCRA petition. Commonwealth v. Pulanco, 954 A.2d 639 (Pa. Super. 2008).

On October 7, 2008, a PCRA hearing was held for purposes of complying with the Superior Court’s remand. Attorney Geishauser testified that he was informed at the bench trial, or shortly thereafter, that the defendant intended to hire Attorney Cammarano to handle any appeal. (Notes of testimony PCRAhearing, 10/7/2008 p. 6.) Mr. Geishauser filed a notice of appeal with the Superior Court which was timely filed. (N.T. PCRA hearing 10/7/2008 p. 10.) Mr. Geishauser further testified that he filed a 1925(b) statement raising insufficiency of evidence at trial and error in the denial of the defendant’s pretrial suppression motion. (N.T. PCRA hearing 10/7/2008 p. 7.) The 1925(b) statement was filed within the time frame set by this court. (N.T. PCRA hearing 10/7/2008 p. 10.) Mr. Geishauser also testified that he [151]*151did not request an extension of time in which to file a 1925(b) statement from this court. Id. Mr. Geishauser stated he was familiar with the Superior Court’s case law on waiver of appellate issues for lack of specificity at the time he filed the statement. (N.T. PCRA hearing 10/7/2008 pp. 9-10.) Mr. Cammarano was retained to represent the defendant on or about November 14,2004. (N.T. PCRA hearing 10/7/2008 p. 19.) Mr. Cammarano testified that the issues contained in the brief he filed on behalf of the defendant were more specific than the issues raised in the 1925(b) statement filed by Mr. Geishauser. (N.T. PCRA hearing 10/7/2008 p. 15.) Mr. Cammarano did not seek permission from this court nor the Superior Court to file an amended 1925(b) statement. Id. Mr. Cammarano was aware that this court had already issued an opinion regarding the 1925(b) issues raised by Mr. Geishauser at the time Mr. Cammarano filed his brief. (N.T. PCRA hearing 10/7/2008 p. 19.)

DISCUSSION

Ineffective Assistance of Counsel

In cases where counsel fails to file a 1925(b) statement when ordered to do so by the court, counsel is per se ineffective. See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008). Nunc pro tunc appeal is proper when counsel’s actions entirely denied a defendant his right of direct appeal. Commonwealth v. Hernandez, 755 A.2d 1, 9 n.4 (Pa. Super. 2000). However, in instances where counsel’s acts or omissions caused waiver of one or more, but not all, issues on direct appeal, the defendant must establish that counsel’s ineffectiveness so under[152]*152mined the truth-determining process so as to render unreliable the adjudication of guilt or innocence. Id.

The standard by which a defendant may prove ineffective assistance of counsel is well established. First, counsel is presumed to be effective. Commonwealth v. Rios, 591 Pa.

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6 Pa. D. & C.5th 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-pulanco-pactcomplberks-2008.