J-A29003-14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 

*Retired Senior Judge assigned to the Superior Court. 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

 Appellant :

:

 v. :

:

ESTELA PEREZ, :

:

 Appellee : No. 2012 WDA 2013 

Appeal from the Order entered November 25, 2013, 

Court of Common Pleas, Allegheny County, 

Criminal Division at No. CP-02-CR-0009911-2008 

BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ. 

MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 06, 2015 

 The Commonwealth of Pennsylvania (“the Commonwealth”) appeals 

from the order entered on November 25, 2013 by the Allegheny County 

Court of Common Pleas, Criminal Division, granting Estela Perez’s petition 

filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-46. After careful review, we reverse the PCRA court’s order. 

 The relevant facts and procedural history of this case are summarized 

as follows. On August 6, 2008, the Office of Attorney General (“OAG”) 

arrested Perez and charged her with multiple counts of insurance fraud,1

theft by deception,2 attempt to commit theft by deception,3 and criminal 

 

1

 18 Pa.C.S.A. § 4117(a)(2). 

2

 18 Pa.C.S.A. § 3922(a)(1). 

3

 18 Pa.C.S.A. §§ 901(a), 3922(a)(1). 
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conspiracy.4 These charges stem from nineteen insurance claims made by 

Perez relating to automobile accidents that never occurred. Perez’s case was 

set for trial on August 31, 2009, but she failed to appear and as a result, the 

trial court issued a bench warrant for her arrest. In April 2012, Perez was 

arrested on that bench warrant in Virginia and subsequently transported 

back to Allegheny County. On August 28, 2012, Perez pled guilty to 

insurance fraud, a third-degree felony, and theft by deception, a first-degree 

misdemeanor, and all her remaining charges were nolle prossed. The trial 

court sentenced Perez to ten years of probation and ordered her to pay 

$46,617.43 in restitution. Perez did not file any post-sentence motions or a 

direct appeal. 

 On March 20, 2013, Perez filed a timely PCRA petition in which she 

claimed that her plea counsel rendered ineffective assistance of counsel for 

failing to advise her of the potential immigration consequences of pleading 

guilty to a felony pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). 

PCRA Petition, 3/20/13, ¶¶ 10-12. On July 1, 2013, Perez filed an amended 

PCRA petition in which she added a claim that plea counsel was ineffective 

for failing to investigate and discuss with her the defense of duress, averring 

that she only participated in the schemes to defraud insurance companies to 

avoid abuse by her husband. Amended PCRA Petition, 7/1/13, ¶¶ 15-24. 

On August 21, 2013, the PCRA court held a hearing on Perez’s PCRA 

 

4

 18 Pa.C.S.A. § 903(a)(1). 
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petition, with another hearing scheduled for November 25, 2013. However, 

on November 25, 2013, due to a scheduling mix up, the Commonwealth did 

not appear for the hearing. That same day, the PCRA court granted Perez’s 

PCRA petition based on her Padilla claim and vacated her judgment of 

sentence. The trial court noted in its order “a lack of prosecution” on the 

part of the Commonwealth. See Trial Court Order, 11/25/13. 

 On December 23, 2013, the Commonwealth filed a timely notice of 

appeal. On January 6, 2014, the PCRA court ordered the Commonwealth to 

file a concise statement of the errors complained of on appeal pursuant to 

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On January 

10, 2014, the Commonwealth filed a timely rule 1925(b) statement. 

 On appeal, the Commonwealth raises the following issues for our 

review and determination: 

I. Did the PCRA [court] err by refusing to address 

the issues set forth in the Commonwealth’s 

concise statement of [the] errors complained 

of on appeal and by justifying its grant of relief 

by relying upon a new, alternative ground that 

was never raised by [Perez]? 

II. Did the PCRA court err in granting relief on the 

grounds that [plea] counsel was ineffective for 

failing to investigate and discuss the defense of 

duress with [Perez]? 

III. Did the PCRA court err in granting relief on the 

grounds that there was a lack of prosecution 

by [the Commonwealth] during post-conviction 

proceedings? 
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IV. Did the PCRA court err in granting relief on the 

grounds that [plea] counsel was ineffective for 

failing to advise [Perez] on the potential 

immigration consequences associated with the 

entry of her guilty plea? 

Commonwealth’s Brief at 4.5

 We begin by addressing the Commonwealth’s first three issues in turn, 

as each is the result of confusion stemming from the PCRA court’s initial Rule 

1925(a) opinion in this case. For its first issue on appeal, the 

Commonwealth argues that the PCRA court erred by failing to address the 

issues set forth in the Commonwealth’s Rule 1925(b) statement and by 

justifying the grant of Perez’s PCRA petition on an alternative ground that 

she never raised. Commonwealth’s Brief at 41-45. Our review of the PCRA 

court’s original Rule 1925(a) opinion reveals that the PCRA court addressed 

none of the issues raised in the Commonwealth’s Rule 1925(b) statement. 

See Trial Court Opinion, 4/15/14, at 2-4. Rather, the PCRA court 

determined that Perez was entitled to relief because she had received an 

insufficient guilty plea colloquy. See id. Accordingly, because the PCRA 

court did not address any of the issues in the Commonwealth’s Rule 1925(b) 

statement, we remanded the case for the PCRA court to prepare a 

supplemental Rule 1925(a) opinion. See Order, 11/6/14. The PCRA court 

filed its supplemental Rule 1925(a) opinion addressing the issues set forth in 

the Commonwealth’s Rule 1925(b) statement on December 17, 2014. 

 

5

 We reordered the Commonwealth’s issues for ease of review. 
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 Additionally, we must agree with the Commonwealth that a deficient 

guilty plea colloquy cannot be the basis for the grant of PCRA relief in this 

case, however, as Perez never raised the issue in her PCRA petition. See 

Amended PCRA Petition, 7/1/13. To be eligible for relief under the PCRA, a 

petitioner “must plead and prove by a preponderance of the evidence” that 

he guilty plea was “unlawfully induced where the circumstances make it 

likely that the inducement caused the petitioner to plead guilty and the 

petitioner is innocent.” 42 Pa.C.S.A. § 9543(a)(2)(iii). Here, Perez neither 

pleaded nor proved that she received an insufficient guilty plea colloquy. 

For its second issue on appeal, the Commonwealth argues that the 

PCRA court erred in granting PCRA relief based on its determination that plea 

counsel was ineffective for failing to investigate and discuss the defense of 

duress with Perez. Commonwealth’s Brief at 36-39. However, the 

Commonwealth raised this issue and filed its brief prior to the PCRA court’s 

filing of a proper Rule 1925(a) opinion. In its supplemental Rule 1925(a) 

opinion, the trial court indicated that it did not base its decision to grant 

PCRA relief on plea counsel’s failure to investigate or discuss with Perez the 

defense of duress. See PCRA Court Opinion, 12/17/14, at 6. The trial court 

determined that plea counsel had a reasonable strategic basis for not 

pursuing the defense of duress.6 Id. Accordingly, this issue is moot. See

 

6

 The certified record reflects that plea counsel chose not pursue the 

defense of duress because of Perez’s contradictory statements about the 

automobile accidents actually occurring and then later that her husband 
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Commonwealth v. Bricker, 41 A.3d 872, 881 (Pa. Super. 2012) (“An issue 

before a court is moot if in ruling upon the issue the court cannot enter an 

order that has any legal force or effect.”). 

For its third issue on appeal, the Commonwealth argues that the PCRA 

court erred in granting PCRA relief based on its determination that there was 

a lack of prosecution by the Commonwealth during post-conviction 

proceedings. Commonwealth’s Brief at 39-41. Like its second issue, the 

Commonwealth also raised this issue prior to the PCRA court’s filing of a 

proper Rule 1925(a) opinion. In its supplemental Rule 1925(a) opinion, the 

PCRA court also indicated that it did not base its decision to grant PCRA 

relief on a lack of prosecution by the Commonwealth. See PCRA Court 

Opinion, 12/17/14, at 7. Accordingly, we conclude that this issue is likewise 

moot. See Bricker, 41 A.3d at 881. 

For its final issue on appeal, the Commonwealth challenges the PCRA 

court’s determination that plea counsel was ineffective for failing to advise 

Perez on the potential immigration consequences associated with the entry 

of her guilty plea. Commonwealth’s Brief at 24-36. “Our standard of review 

of a trial court order granting or denying relief under the PCRA calls upon us 

to determine whether the determination of the PCRA court is supported by 

the evidence of record and is free of legal error.” Commonwealth v. 

 

forced her to make false automobile insurance claims. N.T., 8/21/13, at 46, 

53. Plea counsel did not believe that any testimony Perez would provide 

about the defense of duress would be credible. Id. at 46. 
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Lippert, 85 A.3d 1095, 1100 (Pa. Super 2014), appeal denied, 95 A.3d 277 

(Pa. 2014). “The PCRA court’s findings will not be disturbed unless there is 

no support for the findings in the certified record.” Id.

 A “claim for ineffective assistance of counsel in connection with advice 

rendered regarding whether to plead guilty is cognizable under the PCRA 

pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).” Commonwealth v. Barndt, 

74 A.3d 185, 191 (Pa. Super. 2013). In reviewing an allegation of 

ineffective assistance of counsel, we begin with the assumption that counsel 

was effective. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). 

Our Supreme Court has stated that in order “[t]o merit relief based on an 

ineffectiveness claim under the PCRA, a petitioner must show that such 

ineffectiveness ‘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. Collins, 957 A.2d 

237, 244 (Pa. 2008) (quoting 42 Pa.C.S.A. § 9543(a)(2)(ii)). This standard 

requires “a petitioner to prove that: (1) the underlying claim is of arguable 

merit; (2) counsel’s performance lacked a reasonable basis; and (3) the 

ineffectiveness of counsel caused the petitioner prejudice.” Id. Our 

Supreme Court has held that to demonstrate prejudice in an ineffective 

assistance of counsel claim, “the petitioner must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Commonwealth v. 
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King, 57 A.3d 607, 613 (Pa. 2012). The failure by the petitioner “to satisfy 

any one of the three prongs of the test for ineffectiveness requires rejection 

of the claim.” Collins, 957 A.2d at 244. 

 Our Court has explained ineffectiveness claims in the context of the 

entry of a guilty plea as follows: 

The right to the constitutionally effective assistance 

of counsel extends to counsel’s role in guiding his

client with regard to the consequences of entering 

into a guilty plea. 

Allegations of ineffectiveness in connection 

with the entry of a guilty plea will serve as a 

basis for relief only if the ineffectiveness 

caused the defendant to enter an involuntary 

or unknowing plea. Where the defendant 

enters his plea on the advice of counsel, the 

voluntariness of the plea depends on whether 

counsel’s advice was within the range of 

competence demanded of attorneys in criminal 

cases. 

Thus, to establish prejudice, the defendant must 

show that there is a reasonable probability that, but 

for counsel’s errors, he would not have pleaded 

guilty and would have insisted on going to trial. The 

reasonable probability test is not a stringent one; it 

merely refers to a probability sufficient to undermine 

confidence in the outcome. 

Barndt, 74 A.3d at 192 (quotations and citations omitted). 

 Importantly, when the defendant is a noncitizen, the United States 

Supreme Court has held that counsel must inform him or her as to whether 

a plea carries a risk of deportation. Padilla v. Kentucky, 559 U.S. 356, 

374 (2010). The Supreme Court explained, 
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When the law is not succinct and straightforward ...,

a criminal defense attorney need do no more than 

advise a noncitizen client that pending criminal 

charges may carry a risk of adverse immigration 

consequences. But when the deportation 

consequence is truly clear ... the duty to give correct 

advice is equally clear. 

Id. at 369 (footnote omitted). This Court has held that Padilla requires 

counsel to inform a defendant as to a risk of deportation, but not as to its 

certainty. Commonwealth v. Escobar, 70 A.3d 838, 841 (Pa. Super. 

2013); see also Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. 

Super. 2013) (holding that plea counsel’s advice that defendant’s guilty plea 

would render him “deportable” was not ineffective).

 Here, the Commonwealth argues that the trial court erred in 

determining plea counsel was ineffective under Padilla. Commonwealth’s 

Brief at 28-35. The Commonwealth asserts that Perez was fully aware of the 

risks associated with pleading guilty in this case. Id. Additionally, the 

Commonwealth contends that plea counsel properly advised Perez regarding 

the potential immigration consequences of pleading guilty by advising her to 

seek the counsel of an immigration attorney. Id. The Commonwealth 

asserts that this case is governed by Commonwealth v. Wah, 42 A.3d 335 

(Pa. Super. 2012). Id. at 32-26. 

 In Wah, the appellant alleged that plea counsel was ineffective for 

failing to advise him of the specific immigration consequences of pleading 

guilty to Medicaid fraud in an amount in excess of $10,000. Wah, 42 A.3d 
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at 337, 340. This Court determined that counsel in that case acted within 

the range of professionally competent assistance because the appellant was 

aware that there could be deportation consequences associated with his 

guilty plea and because counsel suggested that the appellant seek the 

advice of an immigration attorney. Id. at 340-41. Our Court explained: 

In this case, appellant was removable as an 

“aggravated felon” based upon his conviction of a 

crime involving fraud or deceit in which the loss to 

the victim exceeded $10,000. 8 U.S.C. § 

1227(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43)(M)(i). 

Certainly, this matter is more complex than the 

statute at issue in Padilla, which mandates removal 

for virtually all controlled substances convictions. 

We find that counsel acted within the range of 

professionally competent assistance when he 

recommended that appellant seek the advice of an 

expert in immigration law if he desired to know the

specific consequences of his guilty plea. 

Id. at 341. 

 We agree with the Commonwealth that Wah governs this case. Here, 

Perez was aware that her guilty plea in this case carried with it the risk of 

deportation: 

The Court: Did you know at the time you were doing

this plea you very well could be separated from your 

children as a result of your status? 

[Perez]: Yes 

THE COURT: So you knew when you did the plea 

that your plea could result in you being deported and 

you would not be with your children? 
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[Perez]: But I thought that was the only option 

because they was telling me I didn’t have any other

options to go to or to go by. 

THE COURT: So if I understand you correctly, you 

are saying that you understood that you could 

possibly be separated from your children as a result 

of the plea, but the reason why you took the plea is 

because you were informed that you had no 

alternative or you had no positive alternative than

just to plead and take the consequences from the 

district attorney because your defense attorney had

led you to believe that your situation was hopeless, 

there was no defense or anything else that you could 

say that would allow you to possibly be extricated or 

vindicated or that you would not be found guilty? 

[Perez]: Right. 

N.T., 8/21/13, at 32-33. 

Additionally, the record reflects that plea counsel advised Perez to 

seek the counsel of an immigration attorney: 

Q. When did you become aware of her 

immigration status? 

A. From the very beginning. 

Q. How so? How did you become aware? 

A. She told me. 

Q. What did she tell you? 

A. The initial -- I had numerous discussions with 

the prior Attorney General, Deputy Attorney 

General Scott Robinette, tried to convince him 

to allow [Perez] to plead to a misdemeanor 

rather than a felony because either from the 

very beginning or shortly thereafter she did not 

want to plead to the felony because of the 

immigration issue. Mr. Robinette would not 
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bend. We had a trial scheduled before Judge 

Mariani where I discussed the possibility of 

either a non-jury trial, jury trial or a plea with 

[Perez] and she did not want to do a non-jury 

trial, Judge Mariani could not do a jury trial 

that day and she didn’t want to do a plea 

because of the possibility that pleading to a 

felony could result in her deportation. 

* * * 

A. She did not want to plead to the felony 

because she did not want to take the risk that 

it might cause deportation. 

Q. Did you advise her as to the risk of 

deportation? 

A. No. I told her that I did not know what the 

possibility or what ramifications were of a plea 

to a felony with respect to deportation. I 

advised her at that time and I advised her -- 

because there were several postponements 

and then there was a period of time when she 

was unavailable, but throughout the period of 

time I advised her that I could not tell her 

what the outcome of a plea to a felony would 

be and that she should discuss that with an 

immigration attorney that after she discussed 

that with an immigration attorney[,] then she 

could make a decision. 

Id. at 46-48. 

 Therefore, as in Wah, Perez was aware that there was a risk of 

deportation associated with pleading guilty, and plea counsel advised her to 

seek the advice of an immigration attorney to learn the specific ramifications 

of pleading guilty. See id. at 32-33, 46-48. Therefore, we conclude that 

plea counsel’s actions were within the range of professionally competent 
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assistance and that the PCRA court erred in determining that plea counsel 

was ineffective. 

 Both the PCRA court and Perez make much of the fact that plea 

counsel answered “no” to the question of “[d]id you advise [Perez] as to the 

risk of deportation?” See Supplemental Trial Court Opinion, 12/17/14, at 1-

2; Perez’s Brief at 5. However, in doing so, the PCRA court and Perez 

overlook the context of this single answer. Counsel’s testimony, as a whole, 

indicates that Perez was clearly aware that pleading guilty in this case 

carried with it the risk of deportation and that plea counsel advised her to 

seek the advice of an immigration attorney regarding the consequences of 

pleading guilty. See N.T., 8/21/13, at 32-33, 46-48. Furthermore, Perez

cannot now, having testified at the PCRA hearing that she was apprehensive 

about pleading guilty specifically because of the risk of deportation, argue 

that her guilty plea was unknowing or involuntary and that plea counsel was 

ineffective for his failure to apprise her of that risk. 

 Order reversed. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 2/6/2015 
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