J-A09026-19

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHAIRIL AMRIL SARAGIH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1547 EDA 2018

Appeal from the PCRA Order April 9, 2018

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0000357-2014

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 17, 2019

Chairil Amril Saragih (Appellant) appeals pro se from the order denying 

his timely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We affirm. 

Appellant’s convictions arose from his online interactions with an 

undercover police officer posing as a minor, during which Appellant arranged 

to meet with the alleged minor to participate in sex acts. On May 7, 2014, a 

jury convicted Appellant of solicitation of involuntary deviate sexual 

intercourse (IDSI), attempt to commit IDSI, and criminal use of a 

communication facility.1 On August 14, 2014, Appellant was sentenced to an 

aggregate 3 to 6 years of imprisonment, followed by a year of probation. 

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118 Pa.C.S.A. §§ 902/3123, 901/3123, and 7512. 
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Appellant filed a timely post-sentence motion, which the trial court 

denied on September 24, 2014. Thereafter, Appellant filed a direct appeal. 

On August 26, 2015, a panel of this Court vacated Appellant’s attempt to 

commit IDSI conviction, but affirmed the judgment of sentence in all other 

respects. Commonwealth v. Saragih, 131 A.3d 104 (Pa. Super. 2015) 

(unpublished memorandum) (attempt to commit IDSI conviction vacated 

because it should have merged with solicitation of IDSI for purposes of 

sentencing). The Pennsylvania Supreme Court denied Appellant’s petition for 

allowance of appeal on February 25, 2016. Commonwealth v. Saragih, 132 

A.3d 458 (Pa. 2016). 

On February 27, 2017, Appellant pro se filed the underlying PCRA 

petition. The PCRA court appointed counsel, who on February 21, 2018, filed 

a Turner/Finley2 “no-merit” letter and an application to withdraw. On March 

8, 2018, the PCRA court granted counsel’s application to withdraw and issued 

a notice of intent to dismiss pursuant to Pennsylvania Rule of Criminal 

Procedure 907. Appellant filed a response to the notice on April 4, 2018. On 

April 9, 2018, the PCRA court dismissed Appellant’s petition without a hearing. 

Appellant filed a timely pro se appeal. Both the PCRA court and 

Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925. 

Appellant raises the following issues for our review: 

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2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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1) Whether the trial court erred by influencing [Appellant’s] 

decision to testify in [sic] his own behalf, in which before 

[Appellant] was asked about his decision, the trial court had made 

sure and believed that [Appellant] really understood about the 

right to testify and its risk, but then when [Appellant] knowingly 

and intelligently decided to exercise his absolute right to testify, 

the trial court was reluctant to grant it and influenced him to swing 

by advising him to confer with his counsel again? 

2) Whether the trial counsel was ineffective by failing to 

timely object to the court when the court was interfering with 

[Appellant’s] decision to testify, which alleged error denied 

[Appellant] the right to a fair trial by so undermined [sic] the truth 

determining process because the result of the waiver proceeding 

would have been different absent counsel’s ineffectiveness?

3) Whether the trial counsel erred for advising [Appellant] 

not to take the stand (with reason that the [C]ommonwealth 

would ask the same questions several times and he was afraid 

that [Appellant] would give inconsistent answers), and his only 

strategy was to examine the Commonwealth witness (but then he 

failed to adequately examine the [C]ommonwealth witness for his 

false testimonies and to effectively argue with the trial court when 

he raised some objections), which alleged error denied [Appellant] 

the right to a fair trial by so undermined [sic] the truth 

determining process such that no reliable adjudication of guilt 

could have taken place? 

4) Whether the appellate counsel was ineffective for 

advising [Appellant] that the issue of the court’s misconduct 

should be filed on PCRA, not on direct appeal? 

5) Whether PCRA counsel was ineffective for not adequately 

reviewing the record and supplemental information prior to filing 

his “No Merit” Letter, while the record and supplemental 

information clearly showed that entrapment lay just beneath his 

superficial review? 

6) Whether the PCRA court violated paragraph (1) of 

Pa.R.Crim.P. 907 by dismissing the petition without an evidentiary 

hearing where there was a genuine issue of material fact as to 

whether trial counsel was ineffective for failing to timely object to 

the lower court[’s] improper interference with his decision to 

testify? 
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Appellant’s Brief at 4-5 (italics omitted). 

Our standard of review governing the denial of a PCRA petition is as 

follows:

In reviewing the denial of PCRA relief, we examine whether the 

PCRA court’s determinations are supported by the record and are 

free of legal error. The PCRA court’s credibility determinations, 

when supported by the record, are binding on this Court; however, 

we apply a de novo standard of review to the PCRA court’s legal 

conclusions. 

Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation omitted). 

“To be entitled to PCRA relief, [an] appellant must establish, by a 

preponderance of the evidence, [that] his conviction or sentence resulted from 

one or more of the enumerated errors in 42 Pa.C.S.[A.] § 9543(a)(2)[.]” Id.

Appellant first claims that during his jury trial, the “[t]rial court erred by 

influencing [Appellant’s] decision to testify on his own behalf.” Appellant’s 

Brief at 17 (emphasis omitted). In its opinion, the PCRA court states “this 

claim is waived as it should have been raised on direct review.” PCRA Court 

Opinion, 6/4/18, at 13. The Commonwealth agrees, noting: 

[Appellant], however, here initially contends that it was the trial 

[court] who misled him into not testifying. No objection was made 

at trial by defense counsel because the trial [court] properly 

questioned and correctly instructed [Appellant] on the law. [S]ee

Tr., Id., pp. 195-99. Without an objection, the issue was not 

preserved for review on direct appeal and cannot now be raised 

on PCRA appeal. Commonwealth v. Clayton, [] 816 A.2d 217, 219 

([Pa.] 2002). 

Commonwealth Brief at 11 (underlining in original). 
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We agree with both the PCRA court and the Commonwealth that 

Appellant’s first issue was not preserved at trial, nor on direct appeal, and is 

therefore waived. The transcript from Appellant’s jury trial indicates that 

Appellant did not object to any statement made by the trial court during the 

course of Appellant’s decision about whether to testify. See N.T., 5/7/14, at 

195-199. Additionally, Appellant failed to raise the issue in his direct appeal. 

See Saragih, 131 A.3d at *2 (on direct appeal, Appellant raised two issues: 

an evidence suppression issue and an illegal sentence claim). Therefore, 

Appellant’s first issue is waived for purposes of appellate review. 42 Pa.C.S.A. 

§ 9544(b) (“[A]n issue is waived if the petitioner could have raised it but failed 

to do so . . . at trial . . . [or] on appeal[.]”). 

In Appellant’s second, third, fourth, and fifth issues, he claims

ineffective assistance of counsel at various points during the course of his 

case. In deciding ineffective assistance of counsel claims, we begin with the 

presumption that counsel rendered effective assistance. Commonwealth v. 

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption, 

the petitioner must establish: “(1) the underlying claim has arguable merit; 

(2) no reasonable basis existed for counsel’s action or failure to act; and (3) 

the petitioner suffered prejudice as a result of counsel’s error, with prejudice 

measured by whether there is a reasonable probability that the result of the 

proceeding would have been different.” Id. (citation omitted). To 

demonstrate prejudice in an ineffective assistance of counsel claim, “the 
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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. King, 57 A.3d 607, 613 (Pa. 2012).

Moreover, the “[petitioner] bears the burden of pleading and proving 

each of the three factors by a preponderance of the evidence.” 

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (citations 

omitted). If the petitioner fails to prove any of these prongs, the claim is 

subject to dismissal. Bomar, 104 A.3d at 1188. “A court is not required to 

analyze the elements of an ineffectiveness claim in any particular order of 

priority; instead, if a claim fails under any necessary element of the 

ineffectiveness test, the court may proceed to that element first.” 

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In his second issue, Appellant asserts that trial counsel was ineffective 

for failing object to the trial court’s alleged interference with Appellant’s

decision about whether to testify. Appellant’s Brief at 28-31. The PCRA court 

disagrees, stating: 

The record is devoid of any support for Appellant’s claim that 

counsel was ineffective for failing to object to the Court’s alleged 

“undue influence” in forcing Appellant not to testify. Rather, the 

record shows that this Court explained to Appellant his 

constitutional right not to testify and reminded Appellant that he 

would be subject to cross examination if he did elect to testify. 

Counsel had no legitimate basis for objecting to the Court 

providing Appellant with the information needed to make an 

educated decision. As such, the claim lacks merit. 
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PCRA Court Opinion, 6/4/18, at 13-14 (citations omitted). The 

Commonwealth agrees, averring that “[n]o ineffective assistance can be found 

for refraining from making a meritless objection.” Commonwealth Brief at 14. 

We begin by noting that the “right of an accused to testify on his own 

behalf is a fundamental tenet of American jurisprudence and is explicitly 

guaranteed by Article I, Section 9 of the Pennsylvania Constitution.” 

Commonwealth v. Baldwin, 8 A.3d 901, 902-903 (Pa. Super. 2010) (citing 

Commonwealth v. Nieves, 746 A.2d 1102, 1105 (Pa. 2000) and U.S. Const. 

Amend. VI). “[T]he decision to testify on one’s own behalf is ultimately a 

decision to be made by the accused after consultation with counsel.” 

Baldwin, 8 A.3d at 903 (citation omitted). However, when a defendant 

chooses to waive that right, “there is no express requirement that a trial court 

conduct . . . a colloquy with regard to a defendant’s right to testify.” 

Commonwealth v. Todd, 820 A.2d 707, 711 (Pa. Super. 2003). See also 

Commonwealth v. Duffy, 832 A.2d 1132, 1141 n.3 (Pa. Super. 2003) (“We 

note that there is no requirement that the trial court conduct an on-the-record 

colloquy when a defendant waives his right to testify.”) (citation omitted).

As to counsels’ objection responsibilities:

[our Supreme] Court has recognized that counsel are not 

constitutionally required to forward any and all possible objections 

at trial, and the decision of when to interrupt oftentimes is a 

function of overall defense strategy being brought to bear upon 

issues which arise unexpectedly at trial and require split-second 

decision-making by counsel.
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Commonwealth v. Koehler, 36 A.3d 121, 146 (Pa. 2012) (citation omitted). 

Appellant’s second issue fails on the first prong of the ineffectiveness 

test because the underlying claim has no arguable merit. Specifically, trial 

counsel had no reasonable basis to object because the trial court did not 

interfere with Appellant’s decision to testify. At Appellant’s trial, the following 

discussion was held between the trial court, Appellant, and Appellant’s trial 

counsel: 

[COURT]: The Commonwealth has rested. At this point in time 

it’s the defense case. And [trial counsel], [Appellant], I assume 

you explained to him that he is presumed innocent; that the 

Constitution gives him the right not to testify; that I will instruct 

the jury that they’re not -- that if he elects not to testify that this 

cannot be held against him and it’s his constitutional right. Have 

you instructed him accordingly? 

[Trial Counsel]: I have, Your Honor, yes. 

[COURT]: And [Appellant], you understand that?

[Appellant]: Yes. I do understand. 

[COURT]: You understand that you don’t have to testify; you don’t 

have to present any evidence. The Commonwealth bears the 

burden of proof beyond a reasonable doubt. And I will tell the 

jury that. Do you understand that? 

[Appellant]: [No audible response]

[COURT]: Do you understand that if you do testify, which is also 

your right, the Commonwealth can cross examine you on your 

testimony. Do you understand that? 

[Appellant]: I understand. 

[COURT]: And you’ve had an opportunity to discuss with [trial

counsel] those rights? Yes? 
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[Appellant]: Yes. 

[COURT]: And [trial counsel], has [Appellant] made a 

determination? 

[Trial Counsel]: It’s my understanding that he does not wish to 

testify. I just defer -- you’ve heard -- if I may colloquy him very 

briefly? 

[COURT]: You may. 

[Trial Counsel]: [Appellant], we’ve had some numerous 

discussions about this issue, both today and on prior occasions. 

And the indication I’ve received from you up till now, and you have 

the absolute right to change your mind, is that you don’t wish to 

testify, is that correct? Is that still -- do you understand . . . 

[Appellant]: I do understand, but I don’t know what’s the best for 

me to do right now. 

[Trial Counsel]: Well that’s -- it’s always a difficult decision. 

You’ve had -- it’s always a difficult decision. And there’s no --

unfortunately no one has the benefit of knowing whether it would 

be right or wrong until after you’ve done it, if you choose to do it. 

And again, I’ve given you my -- you know -- I’ve been clear on 

what my opinion is, is that correct? 

[Appellant]: Yes; that’s correct. 

[Trial Counsel]: It’s correct in that you wish not to testify? 

[Appellant]: I think I’m going to testify.

[COURT]: You want to testify? 

[Appellant]: I want to convince the jury that I’m not guilty.

[COURT]: Let me just go over it one more time with you. It’s your 

right to be able to testify. And I’m going to try to explain it to 

you. But if you take the witness stand, anything you say will give 

the District Attorney the opportunity to cross examine you. 

[Appellant]: I’m aware of it. 
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[COURT]: You’re aware of that. And you understand that you 

have a right not to testify and I will tell the jury in no uncertain 

terms that you don’t have to testify. Do you understand that? Do 

you need a minute to confer with [trial counsel]? 

[Appellant]: Just one minute. 

[COURT]: Surely. 

[Trial Counsel]: Judge, I believe we’ve had a minute to talk. And 

I believe it’s his desire not to testify. 

[COURT]: Is that correct? 

[Appellant]: Yes. It is correct.

N.T., 5/7/14, at 195-199. 

Upon review, we agree with the PCRA court and the Commonwealth that 

trial counsel was not ineffective in failing to object to the trial court’s 

statements concerning Appellant’s right to testify. Instead, our review reveals 

thorough and proper commentary by the trial court regarding Appellant’s right 

to testify on his own behalf. The trial court, whose statements Appellant 

acknowledged, informed Appellant of his right not to testify, as well as his 

potential subjection to cross-examination if he opted to testify. The trial 

court’s statements relate to Appellant’s constitutional rights,3 and as such, 

were clearly appropriate. 

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3The Fifth Amendment provides “no person . . . shall be compelled in any 

criminal case to be a witness against himself[.]” U.S. Const. amend. V. 

“Additionally, although a defendant in a criminal proceeding may refuse to 

take the witness stand based upon the constitutional privilege against selfincrimination, a criminal defendant who takes the witness stand waives this 
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As there is no merit to Appellant’s assertion that the trial court interfered 

with his decision about whether to testify, trial counsel had no reasonable 

basis to object to the trial court’s statements. Appellant’s second issue lacks

merit. 

In his third issue, Appellant asserts, “[t]rial counsel erred for advising 

[Appellant] not to take the stand.” Appellant’s Brief at 14. We reiterate that 

it is a criminal defendant’s decision, after consultation with counsel, as to 

whether or not he will testify on his own behalf. Baldwin, 8 A.3d at 903 

(citation omitted). To prove that his trial counsel was ineffective for failing to 

put Appellant on the stand, Appellant must prove: “(1) that counsel interfered 

with the defendant’s right to testify, or (2) that counsel gave specific advice 

so unreasonable as to vitiate a knowing and intelligent decision to testify on 

his own behalf.” Commonwealth v. Lawson, 762 A.2d 753, 755 (Pa. Super. 

2000) (citing Commonwealth v. Breisch, 719 A.2d 352, 355 (Pa. Super. 

1998). However:

It is well-settled that a defendant who made a knowing, voluntary, 

intelligent waiver of testimony may not later claim ineffective 

assistance of counsel for failure to testify. See Commonwealth 

v. Fletcher, [] 750 A.2d 261, 274-75 ([Pa.] 2000); 

Commonwealth v. Schultz, 707 A.2d 513, 520 (Pa. Super. 

1997) (“While, in retrospect, appellant may believe her failure to 

testify prejudiced her, the fact remains that appellant’s decision 

was fully informed and voluntary. As such, neither trial nor 

appellate counsel may be deemed ineffective in this regard.”) See 

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privilege for purposes of cross-examination.” In re M.W., 972 A.2d 1213, 

1216 (Pa. Super. 2009) (citing Brown v. United States, 78 S. Ct. 622 

(1958). 
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also Commonwealth v. Wallace, [] 500 A.2d 816, 819-20 ([Pa. 

Super.] 1985); Commonwealth v. Spells, [] 416 A.2d 470, 474 

([Pa.] 1980) (“[W]here the appellant knowingly and intelligently 

decided not to testify, based on conversations with his lawyer, and 

the colloquy with the trial judge, we find no ineffectiveness.”). 

Lawson, 762 A.2d at 755-56. 

After carefully reviewing the record, including the colloquy set forth 

above, we conclude that Appellant’s waiver was voluntary and fully informed. 

See N.T., 5/7/14, at 195-199. Therefore, Appellant’s trial counsel was not 

ineffective.4 Commonwealth v. O’Bidos, 849 A.2d 243, 251 (Pa. Super. 

2004) (citation omitted). Appellant’s third issue is without merit. 

In his fourth issue, Appellant asserts that appellate counsel was 

ineffective for failing to raise the trial court’s alleged interference with 

Appellant’s decision about whether to testify on direct appeal. Appellant’s 

Brief at 33-36. As discussed above, this claim is meritless because there is

no evidence that the trial court interfered with Appellant’s decision about 

whether to testify at trial. N.T., 5/7/14, at 195-199. Accordingly, appellate

counsel cannot be deemed ineffective for failing to raise a meritless claim, and 

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4

In Appellant’s third claim, he also vaguely asserts that trial counsel’s decision 

to only examine the Commonwealth’s witnesses “denied [Appellant] the right 

to a fair trial.” Appellant’s Brief at 4-5. However, Appellant fails to adequately 

develop this claim in his brief, id. at 32-33, and it is therefore waived. See 

Commonwealth v. Smyrnes, 154 A.3d 741, 748 (Pa. 2017) (“Where an 

appellate brief fails to provide any discussion of a claim with citation to 

relevant authority or fails to develop the issue in any other meaningful fashion 

capable of review, that claim is waived.”) (citing Commonwealth v. 

Johnson, 985 A.2d 915, 924 (Pa. 2009)). See also Pa.R.A.P. 2119(a). 
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Appellant’s fourth issue does not warrant relief. See Commonwealth v. 

Sims, 919 A.2d 931, 939 (Pa. 2007) (“Counsel will not be found ineffective 

for failing to raise a meritless claim.”).

Appellant’s fifth issue reads: “Whether PCRA counsel was ineffective for 

not adequately reviewing the record and supplemental information prior to 

filing his ‘No Merit’ Letter, while the record and supplemental information 

clearly showed that entrapment lay just beneath his superficial review?” 

Appellant’s Brief at 5 (italics omitted). However, in his three-page argument 

section pertaining to this issue, Appellant does not provide any discussion of 

his claim, fails to provide any reasoned development of why PCRA counsel’s 

review was inadequate or how an alleged entrapment defense “lay just 

beneath his superficial review,” nor does Appellant include citation to any 

relevant authority. See Appellant’s Brief at 36-38. 

Instead, Appellant appears to argue that PCRA counsel failed to keep 

him adequately updated on the status of his pending PCRA petition, and the 

only authority Appellant cites refers to an attorney’s “duty to keep informed 

of developments in the course of the prosecution.” Appellant’s Brief at 37-38 

(citing Strickland v. Washington, 104 S. Ct. 2052 (1984)). Because

Appellant has included no discussion as to why he is entitled to relief, with

citation to relevant authority, Appellant has waived review of his claim. 

Commonwealth v. Sherwood, 982 A.2d 483, 496 (Pa. 2009) (citations 
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omitted). As we will not develop Appellant’s arguments for him, this issue is

not reviewable. Johnson, 985 A.2d at 925. 

In his final issue, Appellant argues that the PCRA court erred in 

dismissing his petition without a hearing. Appellant’s Brief at 38-39. This 

Court has explained:

[T]he right to an evidentiary hearing on a postconviction petition is not absolute. It is within the 

PCRA court’s discretion to decline to hold a hearing if 

the petitioner’s claim is patently frivolous and has no 

support either in the record or other evidence. It is 

the responsibility of the reviewing court on appeal to 

examine each issue raised in the PCRA petition in light 

of the record certified before it in order to determine 

if the PCRA court erred in its determination that there 

were no genuine issues of material fact in controversy 

and in denying relief without conducting an 

evidentiary hearing.

Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010) (internal 

citations and brackets omitted). If the PCRA court “can determine without an 

evidentiary hearing that one of the prongs cannot be met, then no purpose 

would be advanced by holding an evidentiary hearing.” Commonwealth v. 

Jones, 942 A.2d 903, 906 (Pa. Super. 2008).

Here, Appellant argues that an evidentiary hearing was necessary for 

him to present evidence proving his claim that “trial counsel was ineffective 

for failing to timely object to the lower court[’s] improper interference with his 

decision to testify.” Appellant’s Brief at 5. Again, as discussed above, this

ineffectiveness claim is devoid of any arguable merit. Thus, there were no 

genuine issues of material fact in controversy and no purpose would have 
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been served by holding a hearing. Accordingly, the PCRA court did not err in 

denying Appellant’s petition without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/19