J-S07012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRANDON MICHAEL APOSTOLEC,

Appellant No. 1308 MDA 2014

Appeal from the PCRA Order July 14, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): 

CP-36-CR-0001446-2010

CP-36-CR-0002726-2010

CP-36-CR-0003464-2010

CP-36-CR-0004794-2010

CP-36-CR-0004806-2010

BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 25, 2015

Brandon Michael Apostolec (Appellant) appeals from the July 14, 2014 

order denying his petition for relief filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

In August 2011, Appellant entered an open guilty plea to all charges 

against him. Of note, the charges at docket Nos. 2726-2010 and 3464-2010 

consisted of one count each of burglary and theft of a handgun.1 In October 

____________________________________________

1 Respectively, 18 Pa.C.S. §§ 3502(a) and 3921(a), the latter graded as a 

felony of the second degree. See 18 Pa.C.S. § 3903(a)(2). Other charges 

against Appellant included two counts of terroristic threats, three counts of 

(Footnote Continued Next Page)
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2011, the lower court imposed a sentence of eleven to twenty-seven years’ 

incarceration. The sentences imposed for the theft of handgun crimes run 

concurrently with the corresponding burglary convictions.2

Appellant timely filed a motion to modify sentence, which was denied 

by the trial court. Appellant timely appealed, and this Court affirmed in part 

and vacated in part. Commonwealth v. Apostolec, 62 A.3d 455 (Pa. 

Super. 2012) (unpublished memorandum).3

In September 2013, Appellant timely filed pro se a PCRA petition, and 

counsel was appointed. Thereafter, Appellant filed an amended, counseled 

petition, alleging ineffective assistance of plea counsel. In April 2014, the 

PCRA court held a hearing, at which Appellant and plea counsel testified. 

According to Appellant, he had authorized plea counsel to disclose the 

location of one of the stolen handguns, provided the Commonwealth offered 

a deal or in order to “gain some kind of leverage with the DA.” Notes of 

Testimony (N.T.), 4/1/2014, at 5. However, plea counsel disputed this 

(Footnote Continued) _______________________

burglary, and three counts of theft by unlawful taking. Respectively, 18 

Pa.C.S. §§ 2706(a)(2) and (3), 3502(a), and 3921(a).

2

In contrast, the sentences for the remaining theft charges merged with 

their respective burglary charges. See 18 Pa.C.S. § 3502(d).

3 On appeal, this Court vacated a portion of Appellant’s sentence, but as it 

did not disrupt the overall sentencing scheme, no further action was 

required by the sentencing court. Id. That error has no bearing on the 

disposition of this appeal.
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testimony, suggesting that he had advised Appellant of the benefits of 

surrendering the stolen handgun. He testified as follows:

Q. And what did you do with that information [re: the location 

of the gun]?

A. Well, I know Brandon, you know, wanted me to have a tit 

for tat, you know, if they give me a number, you know, I’ll give 

them the gun. But I also discussed that it still looks good – most 

judges – it looks good, you know, to turn a handgun in, even at 

an open plea. I mean, it shows that you don’t want a gun out 

there.

...

Q. This idea of using the gun to sort of curry or gain leniency 

or curry favor with the [c]ourt, was that your idea?

A. It was my idea and we did discuss it.

Q. Were you authorized to surrender the gun to the police for 

that purpose by your client?

A. I believe so.

Id. at 14-15. Thereafter, the PCRA court observed that plea counsel had 

argued before the sentencing court that Appellant had cooperated with 

police, insofar as he returned a stolen handgun. Id. at 22-23. Further, the 

PCRA court noted that, despite consecutive sentences for each burglary, the 

sentencing court imposed concurrent sentences for the handgun thefts. Id. 

at 22.

In July 2014, the PCRA court denied Appellant’s petition and issued an 

opinion. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 
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1925(b) statement. The PCRA court issued a responsive memorandum 

incorporating its prior opinion. 

Appellant presents the following question for our review:

Whether the [PCRA court] erred in denying post-conviction relief 

where [plea] counsel disclosed confidential information relating 

to the representation of [Appellant] to the Commonwealth to the 

disadvantage of the client?

Appellant’s Brief at 4.

We review an order denying a petition under the PCRA to determine 

whether the findings of the PCRA court are supported by the evidence of 

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 

1170 (Pa. 2007). The PCRA court’s findings will not be disturbed unless 

there is no support for the findings in the certified record. Commonwealth 

v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Appellant asserts that plea counsel was ineffective for disclosing 

confidential information to the Commonwealth. According to Appellant, plea 

counsel was authorized only to reveal the location of the handgun, or to 

surrender the stolen handgun to the Commonwealth, in exchange for a 

favorable plea offer. As plea counsel was unable to secure an offer from the 

Commonwealth, his disclosure created an actual conflict of interest, which 

presumptively prejudiced Appellant. Appellant’s claim is without merit.

To establish ineffective assistance of counsel, a PCRA petitioner must 

prove, by a preponderance of the evidence: “(1) the underlying legal issue 

has arguable merit; (2) counsel’s actions lacked an objective reasonable 
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basis; and (3) actual prejudice befell the petitioner from counsel’s act or 

omission.” Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) 

(citations omitted). “A petitioner establishes prejudice when he 

demonstrates that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different.” Id. A claim will be denied if the petitioner fails to meet any one 

of these requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267 

(Pa. Super. 2008) (citing Commonwealth v. Natividad, 938 A.2d 310, 322 

(Pa. 2007)).

Here, the PCRA court determined that plea counsel “testified credibly ... 

that he believed he was authorized by [Appellant] to surrender the stolen 

handgun.” See PCRA Court Opinion, 7/14/2014, at 5. We may not disturb 

this finding, as it is supported by the record. See N.T., at 15; Johnson, 

966 A.2d at 539 (noting that the credibility determinations of the PCRA court 

are “provided great deference”); Carr, 768 A.2d at 1166. Further, this 

finding is dispositive, as it eliminates from our consideration the very 

premise of Appellant’s legal argument to this Court. 

Nevertheless, we will proceed to examine briefly whether plea 

counsel’s disclosure was objectively reasonable. 

The test for deciding whether counsel had a reasonable basis for 

his action or inaction is whether no competent counsel would 

have chosen that action or inaction, or, the alternative, not 

chosen, offered a significantly greater potential chance of 

success. Counsel's decisions will be considered reasonable if 

they effectuated his client's interests. We do not employ a 
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hindsight analysis in comparing trial counsel's actions with other 

efforts he may have taken. 

Commonwealth v. Pander, 100 A.3d 626, 631 (Pa. Super. 2014) (en 

banc) (citations omitted).

The PCRA court concluded as follows:

[I]t is very clear that the gun was turned over in order to make 

a good impression on the [c]ourt since [Appellant] was entering 

an open guilty plea and the [c]ourt would be deciding 

[Appellant’s] sentence. Attempting to obtain a better sentence 

by showing the [c]ourt that [Appellant] was cooperative and 

surrendered the stolen handgun is certainly a reasonable basis 

for [plea counsel’s] actions.

PCRA Court Opinion, at 5. We agree with this analysis. Indeed, as 

recognized by the PCRA court, Appellant received a concurrent term of 

incarceration for the handgun thefts – suggestive, at least, that plea 

counsel’s strategy was successful. In light of Appellant’s authorization, the 

decision of plea counsel to surrender the stolen handgun to the 

Commonwealth was objectively reasonable, in that it reflected counsel’s 

efforts to minimize the term of incarceration imposed upon Appellant.4

Order affirmed.

____________________________________________

4

In light of the foregoing, we need not consider Appellant’s argument that 

plea counsel’s disclosure was presumptively prejudicial. See 

Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007) (recognizing 

the presumption of prejudice where counsel had an actual conflict of 

interest); Springer, 961 A.2d at 1267.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/25/2015