J-S24030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWARD JOSEPH MEDELO,

Appellant No. 2896 EDA 2014

Appeal from the Judgment of Sentence entered October 28, 2013

in the Court of Common Pleas of Lehigh County,

Criminal Division, at No(s): CP-39-CR-0003579-2012, 

CP-39-CR-0005310-2012 and CP-39-CR-0005314-2012

BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED APRIL 14, 2015

Edward Joseph Medelo (“Appellant”) appeals from the judgment of 

sentence imposed after he pled nolo contendere to twelve counts of 

burglary, two counts of attempted burglary and one count of criminal 

conspiracy to commit burglary.1 We affirm.

The trial court summarized the pertinent facts as follows: 

[Between May 8, 2012 and June 11, 2012], [A]ppellant and his 

confederate burglarized or attempted to burglarize various 

convenience stores and/or gas stations throughout Lehigh and 

Northampton Counties. ... The modus operandi for this burglary 

spree was the use of a rock or brick to break windows in order to 

gain entry into these businesses. Once inside, primarily cartons 

of Newport and/or Marlboro cigarettes were stolen. The spree 

ended on June 11, 2012, when they attempted to enter a store 

____________________________________________

1 18 Pa.C.S.A. §§ 3502(a), 901 and 903(a).
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named the Binny Mart by smashing a front window. A passerby 

observed two males wearing hooded sweatshirts running from 

the store and called 9-1-1. The vehicle that the suspects used to 

depart the scene was stopped a short time later, and 

[A]ppellant’s involvement in all of these burglaries was 

uncovered.

Trial Court Opinion, 10/23/14, at 1-2.

Appellant was arrested and charged with the aforementioned offenses, 

and on May 14, 2013, he entered an open plea of nolo contendere. 

Following a hearing on October 28, 2013, the trial court sentenced Appellant 

to an aggregate term of imprisonment of fourteen to twenty-eight years, 

with eligibility for the Recidivism Risk Reduction Incentive Program (“RRRI”). 

Appellant filed a post-sentence motion on November 5, 2013, amended on 

November 7, 2013, which the trial court denied.

On March 25, 2014, Appellant filed a pro se petition for relief pursuant 

to the Post Conviction Relief Act (“PCRA”) 42 Pa.C.S.A. §§ 9541-46. Counsel 

was appointed and on July 3, 2014, filed an amended PCRA petition on 

Appellant’s behalf seeking, inter alia, the reinstatement of Appellant’s direct 

appeal rights nunc pro tunc. On September 23, 2014, the trial court granted 

Appellant’s PCRA petition in part, and granting him leave to file a notice of 

appeal nunc pro tunc. This appeal followed. Both Appellant and the trial 

court have complied with Pa.R.A.P. 1925.

Appellant presents a single issue for our review: 

WERE THE SENTENCES IMPOSED EXCESSIVE BECAUSE THE 

COMMONWEALTH HAD ALREADY OFFERED A MINIMUM 

SENTENCE OF SEVEN YEARS WHICH IT FELT WAS SUITABLE.
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Appellant’s Brief at 4.

Although Appellant frames his argument as a challenge to the trial 

court’s sentencing discretion, the basis of Appellant’s argument is a claim of 

trial counsel ineffectiveness. Specifically, Appellant asserts that prior to 

trial, the Commonwealth informed his trial counsel that it would agree to a 

negotiated plea agreement to cap the minimum sentence at no more than 

seven years. Appellant’s Brief at 9-11. Appellant claims that his trial 

counsel did not tell him about the Commonwealth’s offer until it had expired, 

thus precluding Appellant from accepting the offer, contemporaneous with 

counsel rendering ineffective representation. Id. Appellant maintains that 

he should have received the benefit of the Commonwealth’s offer to cap the 

minimum sentence at seven years, that he was deprived of the benefit of a 

seven year minimum sentence because his trial counsel did not inform him 

of the offer, and that in light of the foregoing, it was an abuse of discretion 

for the trial court to sentence him to fourteen to twenty-eight years of 

imprisonment. Id.

Although Appellant raised the underlying ineffectiveness claim in a 

PCRA petition and developed it at the September 22, 2014 PRCA hearing, we 

decline to review it in this direct appeal. Specifically, in his PCRA petition, in 

addition to seeking reinstatement of his direct appeal rights, Appellant also 

raised allegations that trial counsel was ineffective for failing to inform him 

of the Commonwealth’s seven-year plea deal. See Amended PCRA Petition, 
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6/3/14. At the PCRA hearing, the trial court heard evidence regarding 

whether trial counsel was ineffective for failing to preserve Appellant’s direct 

appeal rights, and also whether trial counsel failed to inform Appellant of the 

Commonwealth’s seven-year plea offer.

2

 However, at the conclusion of the 

hearing, the trial court did not make any findings as to whether trial counsel 

was ineffective with regard to communicating the Commonwealth’s plea 

offer to Appellant. Instead, the trial court ruled solely on whether 

Appellant’s direct appeal rights should have been reinstated. 

Although the issue of trial counsel’s ineffectiveness was developed at 

the PCRA hearing, we decline to address it here on direct appeal. Our 

Supreme Court in Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 

2013), has reaffirmed the general rule that “claims of ineffective assistance 

of counsel are to be deferred to PCRA review; trial courts should not 

entertain claims of ineffectiveness upon post-verdict motions; and such 

claims should not be reviewed upon direct appeal.” In Holmes, the 

Supreme Court “specifically disapproved of expansions of the exception [of] 

general rule recognized in Commonwealth v. Bomar, 826 A.2d 831 (Pa. 

2003),” which held that if a claim of ineffectiveness of trial counsel had been 

fully developed at a hearing devoted to the question of ineffectiveness, such 

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2 Appellant’s trial counsel was called as a witness and testified extensively 

that he had informed Appellant of the Commonwealth’s plea offer. N.T., 

9/22/14, at 11-60. 
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claim could be reviewed on direct appeal. Commonwealth v. Burno, 94 

A.3d 956, 970 (Pa. 2014) citing Holmes, supra. 

The High Court recognized only two exceptions to the general rule 

requiring deferral of ineffectiveness claims to PCRA review, both of which fall 

within the discretion of the trial judge. In this regard, the Supreme Court 

explained:

First, we appreciate that there may be extraordinary 

circumstances where a discrete claim (or claims) of trial counsel 

ineffectiveness is apparent from the record and meritorious to 

the extent that immediate consideration best serves the 

interests of justice; and we hold that trial courts retain their 

discretion to entertain such claims.

Second, with respect to other cases and claims, including 

cases such as Bomar ..., where the defendant seeks to litigate 

multiple or prolix claims of counsel ineffectiveness, including 

non-record-based claims, on post-verdict motions and direct 

appeal, we repose discretion in the trial courts to entertain such 

claims, but only if (1) there is good cause shown,1and (2) the 

unitary review so indulged is preceded by the defendant's 

knowing and express waiver of his entitlement to seek PCRA 

review from his conviction and sentence, including an express 

recognition that the waiver subjects further collateral review to 

the time and serial petition restrictions of the PCRA.2 In other 

words, we adopt a paradigm whereby unitary review may be 

available in such cases only to the extent that it advances (and 

exhausts) PCRA review in time; unlike the so-called Bomar

exception, unitary review would not be made available as an 

accelerated, extra round of collateral attack as of right. This 

exception follows from the suggestions of prior Court majorities 

respecting review of prolix claims, if accompanied by a waiver of 

PCRA review. 

1

[I]n short sentence cases the trial court's 

assessment of good cause should pay 

particular attention to the length of the 

sentence imposed and the effect of the length 

of the sentence will have on the defendant’s 
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realistic prospect to be able to avail himself of 

collateral review under the PCRA.

2 Unitary review describes the defendant's ability 

to pursue both preserved direct review claims 

and collateral claims of trial counsel 

ineffectiveness on post-sentence motions and 

direct appeal, and could aptly describe both 

exceptions we recognize today. However, for 

purposes of this appeal, we intend the term 

only to describe the second exception, i.e., 

that hybrid review which would encompass 

full-blown litigation of collateral claims 

(including non-record-based claims).

Holmes, 79 A.3d at 563–64 (citations omitted) (footnotes in original).

Here, although Appellant’s ineffectiveness claim was developed at the 

PCRA hearing, it does not fall into either of the Holmes exceptions which 

would permit this Court to address it on direct appeal. Appellant does not 

argue — nor do we find — that his ineffectiveness claim is of such 

extraordinary magnitude warranting immediate consideration as to fall 

within the first exception. The second exception likewise does not apply, as 

Appellant made no express waiver of future PCRA review. Accordingly, we 

deny relief without prejudice for Appellant to raise any cognizable 

ineffectiveness claims in a timely PCRA petition. See 42 Pa.C.S. §§ 9543, 

9545.

To the extent Appellant claims that the trial court abused its discretion 

when it imposed a sentence in excess of the seven-year plea deal offered by 

the Commonwealth, before we reach the merits of such a discretionary 

claim, we must engage in a four part analysis to determine: (1) whether the 
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appeal is timely; (2) whether Appellant preserved his issue; (3) whether 

Appellant's brief includes a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of sentence; 

and (4) whether the concise statement raises a substantial question that the 

sentence is appropriate under the sentencing code. If the appeal satisfies 

each of these four requirements, we will then proceed to decide the 

substantive merits of the case. Commonwealth v. Austin, 66 A.3d 798, 

808 (Pa. Super. 2013) (citations omitted).3

Appellant has adequately preserved his claim in his post-sentence 

motion and filed a timely notice of appeal. Appellant has additionally 

included in his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See

Appellant’s Brief at 9. Therefore, we proceed to determine whether 

Appellant has presented a substantial question for our review.

“A substantial question exi[s]ts only when the appellant advances a 

colorable argument that the sentencing judge’s actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.” 

Commonwealth v. Clarke, 70 A.3d 1281, 1286-1287 (Pa. Super. 2013) 

(citation omitted). Here, Appellant claims that his sentence of fourteen to 

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3 See Commonwealth v. Dalberto, 648 A.2d 16 (Pa. Super. 1994) 

(holding that a defendant who enters an open plea which does not involve 

an agreement as to sentence to be imposed, can raise a discretionary 

challenge to the trial court’s sentence). 
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twenty-eight years was excessive because it exceeded the Commonwealth’s 

plea offer to cap the minimum sentence at seven years. We note, however, 

that Appellant entered into an open plea by which there was no agreement 

to restrict the Commonwealth’s right to seek the maximum sentences 

applicable to the charges. See Dalberto, 648 A.2d at 20 (citations omitted) 

(“In an open plea agreement, there is an agreement as to the charges to be 

brought, but no agreement at all to restrict the prosecution's right to seek 

the maximum sentences applicable to those charges.”); Commonwealth v. 

Parsons, 969 A.2d 1259, 1267 (Pa. Super. 2009). At the time Appellant 

entered his nolo contendere plea, the trial court expressly informed 

Appellant: 

[T]here’s always a minimum and maximum sentence imposed. 

The minimum is when you’re eligible for parole, the maximum is 

when you are no longer on parole supervision. ... Under the 

terms of this plea, your minimum sentence could not be 

more than seventy-five years in jail, your maximum 

sentence could not be more than a hundred and fifty years 

in jail. 

N.T., 5/14/13, at 9-10 (emphasis added). 

Thereafter, at the sentencing hearing, the trial court reiterated that 

Appellant faced a minimum sentence of up to seventy-five years and a 

maximum of up to one hundred and fifty years. N.T., 10/28/13, at 7-8. 

Thus, Appellant was well aware that the trial court had the discretion to 

sentence him to a minimum sentence of up to seventy-five years. 
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Appellant nevertheless claims that the trial court abused its sentencing 

discretion by failing to take into consideration the fact that he could have 

potentially entered into a negotiated plea agreement with the 

Commonwealth that would cap the minimum sentence at seven years. This 

claim does not present a substantial question for our review. Because 

Appellant entered into an open plea, his sentence was left to the discretion 

of the trial court. See Dalberto, 648 A.2d at 20. The fact that the trial 

court, in fashioning its sentence, declined to impose a sentence 

commensurate with a failed negotiated plea agreement is neither 

inconsistent with a specific provision of the Sentencing Code nor contrary to 

the fundamental norms which underlie the sentencing process. 

The record reflects that at the sentencing hearing, Appellant’s counsel 

stated that Appellant “turned down [a Commonwealth offer of] five to ten 

[and] [there’s] an indication that he turned down a seven year offer, and he 

ended up with an open plea.” N.T., 11/28/13, at 13-14. Based on this 

information, the trial court reasoned that Appellant had rejected the 

Commonwealth’s offers for a negotiated plea in favor of an open plea, and 

that Appellant understood that there was no agreement as to his sentence. 

As the trial court explained:

[Appellant’s] claim of excessiveness provides no basis for 

relief because the sentencing court is not bound by plea 

agreements which are rejected. 

***
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[A]ppellant received standard range sentences for each of 

the fifteen (15) counts. In fact, the sentences imposed were at 

the bottom end of the standard range of the Sentencing 

Guidelines. All of the offenses were graded as Felonies of the 

second degree, and carried a statutory maximum of ten (10) 

years. If the statutory maximum was imposed for each offense, 

and ordered to run consecutively, [A]ppellant faced a potential 

sentence of not less than seventy-five (75) years nor more than 

one hundred and fifty (150) years in a state correctional 

institution. 

[A]ppellant, a compulsive burglar, received consecutive 

standard range sentences for fourteen (14) distinct burglaries or 

attempted burglaries. However, those sentences were far less 

than what was permitted under the parameters of [A]ppellant’s 

pleas. The sentence of not less than fourteen (14) years or 

more than twenty-eight (28) years, while severe, fails to raise a 

substantial question.

Furthermore, the decision to impose the sentences for 

each of the burglaries consecutively to each other does not 

present a substantial question. It has frequently been explained 

that the imposition of consecutive rather than concurrent 

sentences lies within the sound discretion of the sentencing 

court. Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. 

Super. 2008). A challenge to the imposition of consecutive 

rather than concurrent sentences generally does not present a 

substantial question regarding the discretionary aspects of 

sentence. Id. ...

The one limited exception to this conclusion is when the 

imposition of a consecutive sentence “raises the aggregate 

sentence to, what appears upon its face to be, an excessive level 

in light of the criminal conduct at issue in the case.” 

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. 

Super. 2010)....

[A]ppellant’s lifework is committing burglaries. A review of 

his prior criminal history discloses that, including the fourteen 

(14) burglaries in this case, [A]ppellant was convicted of 

committing six (6) burglaries in 2006 and one (1) in 2000. In 

light of that history alone, the aggregate sentence in this case is 

not excessive and no substantial question exists. 
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Trial Court Opinion, 10/23/14, at 4, 8-9 (footnotes omitted). We agree with 

the trial court’s assessment. For the foregoing reasons, we affirm the 

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015