J-S36007-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HECTOR COLON-PLAZA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1415 MDA 2018

Appeal from the PCRA Order Entered July 26, 2018

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0002452-2014

BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 07, 2019

Appellant, Hector Colon-Plaza, challenges the order entered in the 

Lancaster County Court of Common Pleas, denying his first petition filed 

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

9546. He alleges trial counsel rendered ineffective assistance by failing to 

object to the Commonwealth’s reference to Appellant’s right to remain silent. 

We affirm. 

A previous panel of this Court recounted the facts and procedural history 

of this case:

In 2010, Appellant pled guilty to two counts of indecent assault of 

a minor and received two years’ probation, which he completed. 

On April 17, 2014, the Pennsylvania Office of Attorney General 

(“OAG”) obtained a search warrant for Appellant’s residence on 

evidence that OAG law enforcement software enabling agents to 

detect the location of computers offering child pornography for 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.
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download had twice during a four-month period downloaded 

videos and images of child pornography offered from an internetbased, peer-to-peer file-sharing program in use at Appellant’s 

residence. Pursuant to a court order, Comcast Cable 

Communications supplied account information naming Appellant 

as the wireless internet subscriber. Authorities further determined 

that wireless internet access from this address was locked and 

required a password.

Appellant shared the residence with his girlfriend, Angela 

Gonzalez, and she was home when authorities executed the 

search warrant. OAG agents confiscated a non-functioning digital 

tablet, three cell phones, and two laptop computers, one of which 

was stored in a hallway closet. It was this HP laptop, alone, which 

contained an Ares file-sharing program, and within this program 

were files containing the two videos and two images of child 

pornography captured by the OAG computer. Further examination 

of the laptop disclosed a username of “HECTOR,” a most recent 

log-on under this username of April 16, 2014, just one day before 

service of the warrant, and placement of the child pornography 

files in a file path under this username. N.T. Trial, 3/3/15, at 205–

08.

OAG agents obtained Appellant’s work address from Ms. Gonzalez 

and interviewed him at his office after advising him of his Miranda 

rights, which he temporarily waived. In his recorded statement, 

Appellant admitted that he and Ms. Gonzalez kept two computers 

and one digital tablet in the residence and knew each other’s 

passwords. He denied recent use of the HP laptop computer stored 

in the hall closet, although he admitted to knowing its password 

and using it in the past to share music and video files.

Authorities arrested Appellant and charged him with two counts of 

disseminating child pornography in addition to the charges 

referenced above. On March 4, 2015, a jury found Appellant not 

guilty of disseminating child pornography but guilty on all counts 

of possession of child pornography and criminal use of 

communication facilities. Prior to sentencing, the Commonwealth 

notified Appellant that it would seek a mandatory minimum 

sentence of 25 years under [42 Pa.C.S.A. § 9718.2,] a recidivist 

statute addressing sexual offenders. At Appellant’s sentencing 

hearing, the court noted that a Sexual Offenders Assessment 

Board determined Appellant was not a sexually violent predator. 

Nevertheless, finding Appellant was a recidivist sex offender as 
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contemplated under the mandatory minimum sentencing scheme, 

the court imposed a mandatory 25 to 50–year term of 

incarceration. 

Commonwealth v. Colon-Plaza, 136 A.3d 521, 524-525 (Pa. Super. 2016)

(footnotes omitted).

This Court affirmed the judgment of sentence, and Appellant did not file 

a petition for allowance of appeal to the Pennsylvania Supreme Court. Instead, 

he filed the instant PCRA petition, alleging the ineffectiveness of trial counsel. 

Appellant then retained counsel, who filed an amended petition. 

The PCRA court held an evidentiary hearing. At the conclusion of the 

hearing, the PCRA court ordered the parties to file briefs. Ultimately, the court 

denied relief, and Appellant filed a timely notice of appeal. This matter is now 

properly before us. 

Appellant’s sole issue on appeal challenges the effectiveness of trial 

counsel. However, before we are able to address it, we must determine 

whether the petition was timely filed. 

We begin by addressing the timeliness of Appellant’s petition. A PCRA 

petition is timely if it is filed within one year of the date the petitioner’s 

judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). “A 

judgment becomes final at the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review.” Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super. 2014) 

(citation omitted). 
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Here, a previous panel of this Court affirmed Appellant’s judgment of 

sentence. He did not file a petition for allowance of appeal to the Pennsylvania 

Supreme Court. His judgment of sentence became final on March 26, 2016, 

thirty days after this Court issued its opinion, when his time for filing a petition 

for allowance of appeal with the Pennsylvania Supreme Court expired. See

Pa.R.A.P. 1113(a). Appellant’s PCRA petition, filed on February 22, 2017, is 

therefore timely.

We proceed to the merits of Appellant’s claim. “Our standard of review 

for issues arising from the denial of PCRA relief is well-settled. We must 

determine whether the PCRA court’s ruling is supported by the record and free 

of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 

2018) (citation omitted). In doing so, we read the record in the light most 

favorable to the prevailing party. See Commonwealth v. Ford, 44 A.3d 

1190, 1194 (Pa. Super. 2012). If this review reveals support for the PCRA

court’s credibility determinations and other factual findings, we may not 

disturb them. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 

2014). We, however, afford no deference to the PCRA court’s legal 

conclusions. See id. 

Appellant’s sole argument on appeal is that the PCRA court erred in 

concluding he had failed to establish that his trial counsel had been ineffective 

for failing to object to the presentation of his recorded statement to the jury. 

We presume counsel’s effectiveness, and an appellant bears the burden of 

proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965 (Pa. 
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Super. 2017). “In order for Appellant to prevail on a claim of ineffective 

assistance of counsel, he must show, by a preponderance of the evidence,

ineffective assistance of counsel which so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken 

place.” Presley, 193 A.3d at 442 (citation omitted).

To establish ineffectiveness of counsel, a PCRA petitioner must plead 

and prove: his underlying legal claim has arguable merit; counsel’s actions 

lacked any reasonable basis; and counsel’s actions prejudiced him. See 

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to satisfy 

any prong of the ineffectiveness test requires dismissal of the claim. See 

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004). 

“Arguable merit exists when the factual statements are accurate and could 

establish cause for relief. Whether the facts rise to the level of arguable merit 

is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534, 540 

(Pa. Super. 2015) (citations and internal quotation marks omitted). “A 

defendant raising a claim of ineffective assistance of counsel is required to 

show actual prejudice; that is, that counsel’s ineffectiveness was of such 

magnitude that it could have reasonably had an adverse effect on the outcome 

of the proceedings.” Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014) 

(citation and quotation marks omitted).

It is undisputed that the Commonwealth introduced at trial a recorded 

statement and accompanying transcript from Appellant’s initial interview with 
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investigators. Further, it is undisputed Appellant eventually invoked his right 

to remain silent, which ended the interview. 

Appellant argues that, because the Commonwealth is not permitted to 

use a defendant’s assertion of his right to remain silent to prove consciousness 

of guilt, trial counsel should have objected to the introduction of the statement 

and transcripts. Appellant contends counsel had no reasonable basis for his 

failure to object, and that the introduction of this evidence prejudiced the jury 

against him. He concludes he is entitled to a new trial based on counsel’s 

ineffectiveness. We conclude the PCRA court did not err in finding Appellant 

had failed to establish arguable merit or prejudice and therefore disagree.

The United States and Pennsylvania Constitutions protect a defendant’s 

right to silence, including before arrest. See U.S. Const. amend. V; Pa. Const. 

art. I § 9; Commonwealth v. Guess, 53 A.3d 895, 903 (Pa. Super. 2012). 

“It is axiomatic that a prosecutor may not comment adversely on a 

defendant’s refusal to testify with respect to the charges against him since 

such commentary would compromise the defendant’s privilege against selfincrimination and the defendant’s constitutional presumption of innocence.” 

Commonwealth v. Molina, 33 A.3d 51, 57 (Pa. Super. 2011) (en banc) 

(citation omitted). 

However, this Court has declined to find a “prima facie bar against any

mention of a defendant’s silence,” where the reference is not deemed 

exploitative. Commonwealth v. Adams, 39 A.3d 310, 318 (Pa. Super. 2012) 

(emphasis in original; citation omitted). As such, not all allusions to a 
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defendant’s silence constitute a violation of his Fifth Amendment rights, such 

that counsel could be deemed ineffective by failing to object. See Guess, 53 

A.3d at 905. Our Pennsylvania Supreme Court has held that “[e]ven an explicit 

reference to silence is not reversible error where it occurs in a context not 

likely to suggest to the jury that silence is the equivalent of a tacit admission 

of guilt.” Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005) 

(citation omitted). Where the reference to the defendant’s silence is used to 

establish context, rather than employed in a way likely to create an inference 

of an admission of guilt, the defendant cannot prove the prejudice prong of 

the ineffectiveness test. See id.

At trial, the Commonwealth referenced Appellant’s interview with police 

in its opening statement:

As the questioning progressed, they ask him, what kind of things 

were you downloading using the Ares network? And finally he 

says, well, I was looking at movies. They told him -- they said, 

well, what kind of movies? You're not going to shock us in any 

way. It was at that point he decided I'm not going to answer any 

more questions and he stopped. And they stopped questioning 

him. So the interview stops at that point and the defendant is

charged.

N.T. Trial, 3/2/15, at 76.

Appellant’s counsel objected at sidebar, claiming the Commonwealth 

had impermissibly raised the issue of his client “lawyering up” during the 

interview. Id., at 91. The court rejected that assertion, stating the 

Commonwealth had not referred to Appellant asking for a lawyer, and only 
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referenced Appellant’s decision to stop speaking with investigators because it 

clarified why the interview had concluded. See id. The court explained:

What are they supposed to say at that point? If [Appellant] hadn’t 

said anything [to the investigators] period, then I would agree 

with you, to mention [Appellant’s silence] would be inappropriate. 

But where he starts talking [to] them, they ask him a question 

and he doesn’t want to answer, what are they supposed to say at 

that point? I don’t see that there’s anything inappropriate about 

that.

Id.

The Commonwealth then introduced testimony from Agent Nicole 

Laudeman. Laudeman testified, inter alia, that after investigation into the 

dissemination of child pornography online, she determined child pornography 

was being shared from a device linked to Appellant’s internet subscription 

account. See N.T. Trial, 3/3/15, at 120. 

Laudeman and her partner approached Appellant, who agreed to be 

interviewed for their investigation. See id., at 131. They read him his 

Miranda1rights, and he answered questions for them before eventually 

refusing to continue. See id. The Commonwealth introduced that interview 

into evidence. See id., at 136. The relevant portion of the conversation 

proceeded as follows:

[Investigator]: [] OK what did you use Ares for?

[Appellant]:Um watch videos

[Investigator]: What kind of videos did you watch?

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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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[Appellant]: Before um

[Investigator]: You’re not going to shock us so just be honest[,] 

what videos did you look at[?]

[Appellant] Well I’m not to say nothing here [sic]. I’m going to 

stop the conversation.

[Investigator]: You’re going to stop the conversation?

[Appellant]: Uh huh

Commonwealth’s Exhibit 10, at 7.

Appellant went on to explicitly ask for an attorney; that request was 

excised from the recording and transcript of the interview presented to the 

jury. Appellant was arrested thereafter. Appellant’s counsel did not object to 

the entry of the redacted interview into evidence. 

The PCRA court held an evidentiary hearing, and trial counsel testified. 

He stated he objected to the portion of the Commonwealth’s opening 

statement that referenced the interview because he believed it could be 

prejudicial to Appellant. See N.T. PCRA Hearing, 12/18/17, at 9. However, he 

testified that after the adverse ruling, he deemed the issue meritless and did 

not object to the introduction of the interview into evidence. See id., at 10.

He also declined to raise the issue on direct appeal because he believed 

Appellant did not actually suffer any prejudice. See id., at 15. Additionally, 

counsel testified that while the transcript of Appellant’s initial meeting with 

investigators was introduced as an exhibit at trial, the portion where Appellant 

explicitly asked for a lawyer was redacted from the transcript. See id., at 27.
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Here, we find the brief reference to Appellant ending the interview was 

appropriately used to contextualize the police investigation. Appellant 

knowingly and voluntarily waived that right and cooperated with police in a 

highly relevant interview about illicit materials on his computer before deciding 

to halt the discussion. At no point in the Commonwealth’s opening statement 

or in the recording and transcript presented to the jury was Appellant’s 

decision to stop the interview proffered as substantive evidence of his guilt. 

Neither the prosecution nor any witness commented on Appellant’s choice to 

invoke this right. Instead, the Commonwealth succinctly recapitulated the 

facts of the interview as part of the investigation undertaken by Agent 

Laudeman. We do not find that these minor references to his silence suggest 

Appellant’s tacit admission of guilt. The PCRA court did not err or abuse its 

discretion in concluding Appellant had failed to establish that an objection to 

the evidence would have been sustained.

Even if counsel had specifically and successfully objected to any mention 

of Appellant’s right to remain silent,2 Appellant fails to demonstrate how the 

outcome of trial would have been different. As the PCRA court describes:

Not only was it established that [Appellant] was the internet 

subscriber, the named profile user of the laptop and one of just 

two residents living at the address, he also admitted to having 

access to the laptop, to knowing its secreted location within the 

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2 While trial counsel did object to the Commonwealth’s opening statement on 

the grounds that it may have been prejudicial to Appellant, counsel’s objection 

was framed as opposition to the Commonwealth referring to Appellant 

obtaining a lawyer. Counsel was overruled, as the Commonwealth made no 

such reference.
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closet, to knowing its password and, most significantly, to having 

used the file-sharing program in the past to watch videos. 

Moreover, only two laptops were discovered within the residence, 

along with a nonfunctional tablet and some cell phones. 

[Appellant] initially acknowledged in his interview that he and his 

girlfriend each had a computer in the residence. He also stated 

that his was password protected, that he used it to pay bills and 

watch YouTube videos and that he had never downloaded a 

filesharing program onto his computer. When he was confronted 

with the fact that such a program was discovered on a computer 

within the home, [Appellant] suddenly said that there was a third 

computer within the residence that was old and that he did not 

use anymore. This was the only computer within the residence 

found to contain child pornography and it revealed a three-year 

history in which child pornography was frequently sought, 

downloaded and viewed under [Appellant’s] username and 

password. The properly admitted and uncontradicted evidence of 

guilt was so overwhelming in this case, compared to any 

insignificant prejudicial effect the reference to [Appellant’s] 

request for the interview to end may have had, that the admission 

of such could not have contributed to the verdict.

PCRA Court Opinion, filed 7/25/18, at 6-7. 

We agree with the court’s assessment. Accordingly, we find Appellant is 

due no relief on this issue, and we affirm the denial of his petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/07/2019