Commonwealth v. Cartagena, PICS Case No. 14-0154 (C.P. Berks Jan. 7, 2014) Lieberman, J. (7 pages).

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PCRA Relief • Ineffective Assistance of Counsel

Commonwealth v. Cartagena, PICS Case No. 14-0154 (C.P. Berks Jan. 7, 2014) Lieberman, J. (7 pages).

Defendant failed to establish that counsel was ineffective for PCRA relief. Superior Court should deny defendant's appeal.

Defendant, found guilty but mentally ill of burglary and related offenses, filed a petition for post-conviction relief. Appointed counsel filed a Finley letter, stating that there were no meritorious issues to be raised, and requesting permission to withdraw. After conducting an independent review, the court found defendant's petition lacking in merit. Defendant appealed.

In its Rule 1925 statement, the trial court asserted that defendant's petition was properly denied. Defendant raised four issues claiming ineffective assistance of counsel. A defendant is eligible for post-conviction relief only where counsel's act or omission undermines the truth determining process such that no reliable adjudication of guilt or innocence could have occurred. Counsel is presumed to be effective and the burden of proving counsels' ineffectiveness rests on the appellant. To prevail on a claim of ineffective assistance of counsel, a defendant must rebut this presumption by demonstrating, inter alia, that his underlying claim is of arguable merit. A PCRA petition must allege in detail the basis for claiming that counsel's act or omission deprived him of his right to counsel.

Here, trial counsel was not ineffective for failing to accept a telephone call. Defendant did not specify a date, time, or any other information concerning the reason for his telephone call, or explain how this alleged failure denied him of his right to counsel.

Next, counsel was not ineffective for failing to file a motion to suppress. Defendant failed to specify what evidence counsel was allegedly ineffective for failing to have suppressed. Moreover, defendant made no statement; the only physical evidence presented by the commonwealth consisted of photographs of defendant. Since defendant admitted that he was the person depicted in the photographs, there is no legal basis upon which to suppress them.

Third, counsel was not ineffective for mentioning that defendant was at the scene of the alleged burglary because he was hotwiring a car; defendant testified to these facts on direct examination.

Finally, counsel was not ineffective for failing to protect defendant's right to a speedy trial. The commonwealth brought defendant to trial at least four months before the statutory time for bringing the action expired.