J-S50022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

DAVID PAYO,

Appellant

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA

:

:

:

:

:

:

: No. 84 WDA 2014

Appeal from the Judgment of Sentence Entered August 19, 2010,

In the Court of Common Pleas of Allegheny County, 

Criminal Division, at No. CP-02-CR-0016545-2008.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 10, 2014

David Payo, Appellant, appeals nunc pro tunc from the judgment of 

sentence entered August 19, 2010, following his entry of a guilty plea to 

robbery. We affirm.

At the guilty-plea hearing, the Commonwealth summarized the facts of 

the crime as follows:

[O]n or about December 13th of 2007, at approximately 10:20 

hours, West Mifflin Police received a call from the Iron and Glass 

Bank to report a robbery that had just occurred there.

The teller [who] was approached by the actor was [A.C.]. 

She reported that a man dressed in a gray hoodie with a flannel 

coat over the top of his head entered the bank and came to her 

window, that he was carrying a blue colored bank type bag, and 

that he pulled out a note that read something like, Hundreds and 

fifties; don’t fuck up; they’re watching.
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[A.C.], fearing for her safety, gave the hooded man $5,150 

in U.S. currency that she had in her bottom drawer.

The man put the money and the note in his blue bank bag 

and fled out of the bank. He was described as being 35-40 years 

of age. Height and other physical description details were given. 

Photographs were obtained by the FBI of the actor.

That and the result of several individuals who were 

interviewed, including [Appellant’s] brother, assisted the 

detectives in making identification. [Appellant] was 

subsequently arrested.

N.T., 7/26/10, at 3–4.

The trial court summarized the procedural history as follows:

[Appellant] was charged with one (1) count of Robbery1in 

connection with the robbery of the Iron and Glass Bank in West 

Mifflin on December 13, 2007. On July 26, 2010, [Appellant] 

appeared before this Court and, pursuant to a plea agreement 

with the Commonwealth, pled guilty to the [robbery] charge in 

exchange for a term of imprisonment of eighteen (18) to thirtysix (36) months, to run consecutive to a sentence he was 

already serving at another information. He subsequently filed 

Post-Sentence Motions, at which time this Court re-sentenced 

[Appellant] to a term of imprisonment of four (4) to eight (8) 

years concurrent to the sentence he was currently serving, the 

original plea offer by the Commonwealth.

118 Pa.C.S.A. §3701(a)(1)(iv).

No action was taken until March 30, 2011, when 

[Appellant] filed a pro se Post Conviction Relief Act Petition. 

Counsel was appointed to represent [Appellant], but [he] 

eventually filed a Turner[1]letter and was permitted to withdraw. 

On July 14, 2011, after giving the appropriate notice, this Court 

dismissed [Appellant’s] pro se PCRA Petition without a hearing.

 

1

 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
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Again, no further action was taken until November 6, 

2011, when [Appellant] filed a “Petition to Compel the Common 

Pleas Court of Allegheny County to Service [sic] the Denial of 

Petitioner’s Post Conviction Collateral Petition,”[2]alleging that he 

received the Notice of Intent to Deny the PCRA Petition, but did 

not actually receive the denial itself. Despite having served 

[Appellant] with the Order, on January 5, 2012, this Court 

entered an Order reinstating [Appellant’s] appellate rights from 

the July 14, 2011 denial of the [PCRA] Petition and ordering that 

any and all appeals be filed within thirty (30) days. This Court 

served [Appellant] with a copy of that Order via Certified Mail, 

with return receipt.

Once again, no action was taken.[3] The reinstatement of 

thirty (30) days was allowed to expire with no appeal having 

been filed. Finally, on May 11, 2012[4]—128 days later—

[Appellant] filed a Notice of Appeal with the Superior Court.[5]

. . . [T]he Superior Court addressed the merits of the appeal 

 

2

 This petition apparently was filed in the Commonwealth Court, which 

transferred it to the Pennsylvania Supreme Court “for consideration under its 

superintendency powers.” Commonwealth Court Order, 11/22/11.

3

 A panel in a subsequent appeal of this Court explained:

On March 20, 2012, [Appellant] discovered no appeal had been 

docketed. He attempted to discover what had happened, but 

could not. On May 3, 2012, our Court received a Motion to 

Compel. On May 9, 2012, our Court issued an order granting 

[Appellant’s] motion and directing the lower court to process 

[Appellant’] notice of appeal. The notice of appeal was formally 

docketed on May 11, 2012.

Commonwealth v. Payo, 762 WDA 2012, 81 A.3d 989 (Pa. Super. filed 

May 3, 2013)(unpublished memorandum at 2–3).

4

 The docket entries reveal that in the interim, Appellant filed a petition for 

writ of mandamus in the Pennsylvania Supreme Court, which was denied on 

April 25, 2012.

5

 While this document is not in the record certified to us on appeal, the 

docket reflects its filing on May 11, 2012.
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and remanded the case for an evidentiary hearing to determine 

if [Appellant] asked trial counsel to file a direct appeal.[6] This 

Court scheduled the hearing for August 19, 2013, but due to a 

transportation mix-up, [Appellant] was not brought to the 

Courthouse. Nevertheless, the Commonwealth consented to the 

reinstatement of his Post-Sentence Motion rights, which this 

Court then ordered the same day. Timely Post-Sentence 

Motions were subsequently filed and were denied on December 

19, 2013. This appeal followed.

Trial Court Opinion, 5/5/14, at 1–2. The trial court ordered Appellant to 

comply with Pa.R.A.P. 1925 on January 13, 2014, but that order is not in the 

certified record, although the docket notes its filing. Appellant timely 

complied on January 21, 2014.

Appellant presents the following single issue for our review:

1. Did the trial court err in denying Appellant’s post sentencing 

motions since Appellant’s 7/26/10 guilty plea was involuntary 

since he was coerced and misled by trial counsel Brestensky into 

pleading guilty since she assured him that the 7/26/10 denial of 

his rule 600 speedy trial motion could be raised in a Superior 

Court appeal, even after he pled guilty (she never informed him 

that the rule 600 claim could not be raised in an appeal). 

Moreover, trial counsel, rather than Appellant, filled out the 

written guilty plea colloquy since Appellant was handcuffed at 

the time, and so Appellant was unaware that written colloquy 

question No. 25 indicated that all pretrial motions were 

abandoned if he pled.

Appellant’s Brief at 3 (full capitalization omitted).

 

6

 Payo, 762 WDA 2012 (unpublished memorandum at *5) (vacating order 

denying Appellant PCRA relief and order granting counsel’s request to 

withdraw and remanding for a hearing “to determine the facts surrounding 

[Appellant’s] request to file a direct appeal”).
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Appellant’s issue raises an allegation that trial counsel provided 

ineffective assistance by coercing and misleading Appellant to plead guilty. 

In particular, he maintains that counsel gave him incorrect advice regarding 

the appealability of the motion he filed pursuant to Pa.R.Crim.P. 600. The 

trial court held:

In his Post-Sentence Motions, [Appellant] raised the same 

substantive claim at issue in this appeal, namely that counsel 

improperly induced his plea by advising him that he could appeal 

the denial of his pre-trial Rule 600 motion and that he did not 

see the waiver on the colloquy form because counsel filled it out 

for him. A careful review of this issue reveals that [Appellant] 

has couched his claim in terms relating to counsel’s inducement 

of the plea through incorrect legal advice. Claims relating to trial 

counsel’s effectiveness in conjunction with the entry of a guilty 

plea are properly raised on collateral review and are not 

cognizable on direct appeal. Appointed counsel seems to 

recognize this distinction, as the Concise Statement expressly 

notes that [Appellant] “wanted a Superior Court appeal rather 

than a PCRA Petition filed.” (Concise Statement of Matters 

Complained of on Appeal, p. 4). By basing the claim on 

counsel’s ineffectiveness, [Appellant] has removed himself from 

the ambit of the direct appeal and should instead save this claim 

until collateral review.

Trial Court Opinion, 5/5/14, at 3–4. For the reasons that follow, we defer 

this claim to be raised in a subsequent petition pursuant to the PostConviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.

In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme 

Court considered “the reviewability of claims of ineffective assistance (“IAC”) 

of counsel on post-verdict motions and direct appeal.” Id. at 563. Following 

a comprehensive review of the language codified in the PCRA and decisions 
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from our courts, the Holmes Court revisited the exception to 

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), as described in 

Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), and held that absent 

either good cause or exceptional circumstances and a waiver of PCRA 

review, IAC claims must await collateral review. See also Commonwealth 

v. Barnett, 25 A.3d 371, 373 (Pa. Super. 2011) (en banc) (“[T]he Supreme 

Court has limited the applicability of Bomar” such that most assertions of 

ineffective assistance of counsel “are appropriately raised only on collateral 

review.”); Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013) 

(“[A]bsent either good cause or exceptional circumstances and a waiver of 

PCRA review, ineffective assistance of counsel claims must await collateral 

review.”).

Herein, there is no indication in the record that good cause or 

extraordinary circumstances exist such that Appellant’s IAC claim warrants 

review on direct appeal or that Appellant expressly waived his right to PCRA 

review. See also Barnett (holding that this Court cannot review IAC claims 

on direct appeal absent a defendant’s waiver of PCRA review). 

Consequently, in light of Holmes, we dismiss Appellant’s claim of ineffective 

assistance of counsel without prejudice to his ability to raise it in a 

subsequent PCRA petition, if he so chooses.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2014