J-S52036-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

ANTHONY JOSEPH RACO 

 Appellant No. 286 WDA 2015 

Appeal from the PCRA Order of January 28, 2015 

In the Court of Common Pleas of Somerset County 

Criminal Division at No.: CP-56-CR-0000209-2011 

BEFORE: SHOGAN, J., OLSON, J., and WECHT, J. 

MEMORANDUM BY WECHT, J.: FILED NOVEMBER 4, 2015 

 Anthony Raco appeals the January 28, 2015 order dismissing his 

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-46. The PCRA court has comprehensively and correctly 

ruled upon Raco’s claims in its opinion in support of its order dismissing 

Raco’s PCRA petition and its opinion pursuant to Pa.R.A.P. 1925(a). We 

adopt the PCRA court’s opinions as our own, and we affirm the order. 

 In this case, Raco was charged with involuntary deviate sexual 

intercourse by forcible compulsion, sexual assault, unlawful restraint, and 

indecent assault by forcible compulsion.1 Raco initially hired Arthur T. 

McQuillan, Esq. to represent him at trial. However, Raco eventually 

____________________________________________ 

1

 18 Pa.C.S. §§ 3123(a)(1), 3124.1, 2902(a)(2), and 3126(a)(2). 
J-S52036-15 

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disengaged Attorney McQuillan, and hired Sally Frick, Esq., and George Bills, 

Esq., to represent him. With Attorneys Frick and Bills, Raco waived his right 

to a jury trial, and instead elected to proceed with a bench trial. 

 At the conclusion of the non-jury trial, the trial court convicted Raco of 

sexual assault, and acquitted him of the remaining charges.2 On April 30, 

2014, the trial court sentenced Raco to twenty-four to forty-eight months’ 

incarceration. Pursuant to the Sex Offender Registration and Notification Act 

(“SORNA”), 42 Pa.C.S. §§ 9799.10 et seq., Raco, having been convicted of 

sexual assault, was designated to comply with the requirements of SORNA 

for his lifetime. Raco filed a post-sentence motion, in which he alleged that 

SORNA was unconstitutional. The trial court denied the motion. 

 Raco did not file an appeal. Instead, he proceeded directly to the 

collateral stage of his case by filing a PCRA petition on October 23, 2014. 

Raco alleged that prior counsel were ineffective for failing to communicate to 

him on the day of trial that the assistant district attorney had made a 

standing offer that would permit Raco to plead guilty to indecent assault, 

which would have resulted in a lesser sentence and a shorter reporting 

period under SORNA. Raco alleged that trial counsel never communicated 

____________________________________________ 

2

 The facts presented at the non-jury trial in support of the conviction 

are immaterial to our disposition of this appeal. Thus, we will not recite 

them here. 
J-S52036-15 

- 3 - 

the standing offer to him, and that he would have accepted it had they done 

so. 

 The PCRA court held multiple hearings on the petition. The court has 

summarized trial counsel’s3 testimony as follows: 

At the evidentiary hearing [at which counsel testified], trial 

counsel acknowledged that while the assistant district attorney 

extended a plea offer immediately before trial, the offer was not 

communicated or discussed with [Raco], and trial counsel 

rejected the offer. However, trial counsel testified that 

throughout their representation of [Raco], they had discussed 

many possible resolutions with [Raco]. These resolutions 

included discussions related to the possibility of Accelerated 

Rehabilitative Disposition, which was objected to by the victim, 

and a plea offer of sexual assault, which was discussed with and 

ultimately rejected by [Raco]. Trial counsel testified that, at 

some point while representing [Raco], there were discussions 

relating to a plea offer of indecent assault. However, this plea 

offer carried with it mandatory reporting requirements, “which 

was the problem.” More specifically, trial counsel noted that, 

based on discussion with [Raco], it appeared that [Raco] wanted 

to avoid two things: SORNA reporting requirements and 

incarceration. After trial counsels’ “extensive discussions” with 

[Raco] about the possibility of pleading guilty to indecent assault 

and the potential ramifications of such a guilty plea, [Raco] 

rejected the plea offer due to the fact that indecent assault 

carried mandatory reporting requirements under SORNA. 

Despite [Raco’s] prior rejection of the plea offer, the assistant 

district attorney advised trial counsel, immediately before trial, 

that a plea offer of indecent assault remained on the table. 

Without communicating to [Raco] that the plea offer was still 

available, trial counsel rejected the offer because “we were 

ready to go to trial. As far as [trial counsel] was concerned, that 

____________________________________________ 

3

 Both Attorney Frick and Attorney Bills testified at the PCRA hearing. 

The PCRA court does not distinguish between the two in summarizing their 

testimony. However, this minor lack of clarity does not disrupt our analysis 

or disposition of this case. 
J-S52036-15 

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issue had been decided.” Trial counsel testified that they “had 

talked about so many offers at so many times – yeah, we were 

just ready to go [to trial], and that’s what [trial counsel] thought 

everybody wanted to do.” Moreover, on the day of trial, trial 

counsel believed the issue of a plea deal was “a moot point” 

because [Raco] had previously rejected the offer of indecent 

assault with the attached mandatory reporting requirements. 

PCRA Court Opinion (“P.C.O.”), 1/29/2015, at 2-3 (capitalization modified 

for clarity; references to notes of testimony omitted). 

 The PCRA court specifically credited trial counsel’s testimony. Id. at 6. 

Relying upon that testimony, the court dismissed Raco’s PCRA petition. On 

February 17, 2015, Raco filed a notice of appeal. In response, the PCRA 

court directed Raco to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). On March 6, 2015, Raco timely 

complied. On March 25, 2015, the PCRA court issued an opinion pursuant to 

Pa.R.A.P. 1925(a), in which the court adopted the rationale that it set forth 

in its January 29, 2015 opinion in support of dismissing Raco’s PCRA petition 

as dispositive of all but one of Raco’s issues. The PCRA court then 

addressed the final issue raised by Raco that had not been addressed in its 

original opinion. 

 Raco raises five issues for our review: 

A. Whether, under both Pennsylvania and federal law, former 

trial counsel were constitutionally ineffective, thus, requiring 

vacation of conviction and grant of new trial, where at no 

relevant time did former trial counsel advise [Raco] of the 

details, or even the existence, of a formal plea offer that was 

communicated by the Commonwealth to former trial counsel 

and held open until the day of trial? 
J-S52036-15 

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B. Whether, under both Pennsylvania and federal law, the [PCRA 

court] accorded undue weight to the equivocal testimony of 

former trial counsel to determine that former trial counsel did, 

in fact, advise [Raco] of the details of a formal plea offer that 

was communicated by the Commonwealth to former trial 

counsel and held open until the day of trial where the formal 

record is devoid of any evidence establishing specifically when 

former trial counsel allegedly discussed the plea offer with 

[Raco], where it was discussed, how it was discussed, what 

was discussed, and when, in fact, [Raco] presented evidence 

to the contrary, including, but not limited to, the testimony of 

three witnesses, including [Raco]? 

C. Whether, under both Pennsylvania and federal law, the [PCRA 

court] committed an error of law in determining that former 

trial counsel was not constitutionally ineffective for failing to 

advise [Raco] of a formal plea offer that was communicated 

by the Commonwealth to former trial counsel and held open 

until the day of trial where the formal record is devoid of any 

evidence establishing specifically when former trial counsel 

allegedly discussed the plea offer with [Raco], where it was 

discussed, how it was discussed, and what was discussed? 

D. Assuming arguendo that former trial counsel advised [Raco] 

of the details of a formal plea offer extended by the 

Commonwealth prior to trial and [Raco] rejected the same, 

whether, under both Pennsylvania and federal law, former 

trial counsel was, nonetheless, constitutionally ineffective 

where the Commonwealth communicated said offer to former 

trial counsel on the day of trial and it is wholly undisputed 

that former trial counsel failed to communicate the reextension of that offer to [Raco]? 

E. Whether, under both Pennsylvania and federal law, the [PCRA 

court] improperly construed and weighed the evidence to find 

that trial counsels’ ineffectiveness did not prejudice [Raco] 

because [Raco] allegedly failed to show that he would, in fact, 

have accepted the Commonwealth’s formal plea offer had said 

offer been communicated to [Raco] by the former trial 

counsel? 

Brief for Raco at 5-7. 

 We begin with the legal principles that govern this case. 
J-S52036-15 

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This Court analyzes PCRA appeals “in the light most favorable to 

the prevailing party at the PCRA level.” Commonwealth v. 

Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). Our “review is 

limited to the findings of the PCRA court and the evidence of 

record” and we do not “disturb a PCRA court’s ruling if it is 

supported by evidence of record and is free of legal error.” Id. 

Similarly, “[w]e grant great deference to the factual findings of 

the PCRA court and will not disturb those findings unless they 

have no support in the record. However, we afford no such 

deference to its legal conclusions.” Id. (citations omitted). 

“[W]here the petitioner raises questions of law, our standard of 

review is de novo and our scope of review is plenary.” Finally, 

we “may affirm a PCRA court’s decision on any grounds if the 

record supports it.” Id. 

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014). 

Pennsylvania has recast the two-factor inquiry regarding the 

effectiveness of counsel set forth by the United States Supreme Court in 

Strickland v. Washington, 466 U.S. 668 (1984), as the following threefactor inquiry: 

[I]n order to obtain relief based on [an ineffective assistance of 

counsel] claim, a petitioner must establish: (1) the underlying 

claim has arguable merit; (2) no reasonable basis existed for 

counsel’s actions or failure to act; and (3) petitioner suffered 

prejudice as a result of counsel’s error such that there is a 

reasonable probability that the result of the proceeding would 

have been different absent such error. 

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing 

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is 

presumed to be effective, and a PCRA petitioner bears the burden of 

pleading and proving each of the three factors by a preponderance of the 

evidence. Commonwealth v. Rathfon, 899 A.2d 365, 369 
J-S52036-15 

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(Pa. Super. 2006); see Commonwealth v. Meadows, 787 A.2d 312, 319-

20 (Pa. 2001). 

 The requirement that counsel be effective extends to the plea 

bargaining process. Accordingly, trial counsel has an affirmative duty to 

communicate all plea offers to his or her client. See Missouri v. Frye, ___ 

U.S. ___, 132 S.Ct. 1399, 1408 (2012). A PCRA petitioner who claims that 

counsel was ineffective for failing to communicate an offer still must 

demonstrate that he or she was prejudiced by counsel’s failure to 

communicate a plea offer. Id. at 1409-10. 

 Raco’s issues can be considered collectively. In general terms, Raco is 

challenging the PCRA court’s credibility determinations and the legal 

conclusions drawn therefrom. The PCRA court has thoroughly addressed 

these issues in its two opinions. We have reviewed the certified record, the 

briefs of the parties, and the applicable law, and conclude that the PCRA 

court’s determinations are supported by the record and its legal conclusions 

are correct. We adopt the PCRA court’s comprehensive analysis disposing of 

Raco’s issues in both its January 29, 2015 opinion and its March 25, 2015 

opinion. Copies of those opinions are attached hereto for convenience. 

 Order affirmed. 
J-S52036-15 

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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/4/2015 
requirements amounted to a lifetime registration. On May 9, 2014, Defendant filed a PostSex Offender Registration and Notification Act (hereinafter, "SORNA"). In this case, those 

further sentenced to abide by the regulations and registration verification requirements of the 

less than twenty-four (24) months and not more than forty-eight (48) months. Defendant was 

April 30, 2014, Defendant was sentenced to incarceration in the Somerset County Jail for not 

was convicted of Sexual Assault, 18 Pa.C.S.A. § 3124.1, a felony of the second degree. On 

seq. (hereinafter, the "PCRA"). On January 24, 2014, following a non-jury trial, Defendant 

(hereinafter, the "Petition") pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541, et 

This matter is before us on Defendant's Petition for Post-Conviction Collateral Relief 

MEMORANDUM 

Hearing: December 3, 2014 

. 

For Defendant: Daniel W. Rullo, Esq, 

For the Commonwealth: Lisa Lazzari-Strasiser, Esq.; District Attorney 

PETITION FOR POST-CONVICTION 

Petitioner/Defendant. COLLATERAL RELIEF 

ANTHONY JOSEPH RACO, 

NO. 209 CRlMINAL 2011 

v. 

) IN THE COURT OF COMMON PLEAS 

) OF SOMERSET COUNTY, 

) PENNSYLVANIA 

) 

) 

) 

) 

) 

) 

) 

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? 

Sentence Motion in which he challenged the constitutionality of SORNA. By Order of Court 

dated September 8; 2014; Defendant's Post-Sentence Motion was denied. Defendant's timely 

Petition followed. 

In the Petition, Defendant asserts that Trial Counsel's" failure to inform him of a 

standing plea offer denied him the effective assistance of counsel. Specifically, Defendant 

alleges that a plea offer was communicated to Trial Counsel by the Assistant District Attorney 

"long before [Defendant's] trial," and Defendant was never advised of said offer. (Petition at~ 

9). The plea offer extended by the Assistant District Attorney is alleged to have been a formal 

offer, and consisted of a guilty plea to Indecent Assault, 18 Pa.C.S.A. § 3126, a misdemeanor 

of the second degree. Defendant further alleges that the formal standing plea offer "remained 

on the table" and the Assistant District Attorney "reminded [T]rial [C]ounsel of the standing 

[plea] offer up until the time of trial." Id. at ,i 14. Defendant contends that; despite reminders 

from the Assistant District Attorney, Trial Counsel never advised Defendant of the standing 

plea offer and Trial Counsel rejected said offer without consulting Defendant. Id. 

On December 3, 2014, we held an evidentiary hearing regarding the Petition. At the 

evidentiary hearing; Trial Counsel acknowledged that while the Assistant District Attorney 

extended a plea offer immediately before trial, the offer was not communicated to or discussed 

with Defendant, and Trial Counsel rejected the offer. (Evidentiary Hearing Transcript at pages 

5-6, lines 15-25, 1-13, December 16, 2014); Id. at 23, lines 7-20. However, Trial Counsel 

testified that throughout their representation of Defendant, they had discussed many possible 

resolutions with Defendant. Id. at 8, lines 2-8. These resolutions included discussions related 

to the possibility of Accelerated Rehabilitative Disposition, which was objected to by the 

victim, and a plea offer of Sexual Assault, which was discussed with and ultimately rejected by 

3 Here, Trial Counsel includes both Sally A. Frick, Esq. and George W. Bills, Jr., Esq. 

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Defendant. Trial Counsel testified that, at some point while representing Defendant, there were 

discussions relating to a plea offer of Indecent Assault. However, this plea offer carried with it 

mandatory reporting requirements, "which was the problem." Id. at 12, lines 19-22. More 

specifically; Trial Counsel noted that; based on discussions with Defendant; it appeared that 

Defendant wanted to avoid two things: SORNA reporting requirements and incarceration. Id. 

at 13, lines 7-14. After Trial Counsel's "extensive discussionjs]" with Defendant about the 

possibility of pleading guilty to Indecent Assault and the potential ramifications stemming from 

such a guilty plea; Defendant rejected the plea offer due to the fact that Indecent Assault carried 

mandatory reporting requirements under SORNA. Id. at 25, lines 9-10. 

Despite Defendant's prior rejection of the plea offer; the Assistant District Attorney 

advised Trial Counsel, immediately before trial, that a plea offer of Indecent Assault remained 

on the table. Without communicating to Defendant that the plea offer was still available, Trial 

Counsel rejected the offer because "we were ready to go to trial, As far as [Trial Counsel] was 

concerned, that issue had been decided." Id. at 16, lines 15-16. Trial Counsel testified that 

they "had talked about so many offers at so many times -- yeah, we were just ready to go [to 

trial], and that's what [Trial Counsel] thought everybody wanted to do." Id. at 16; lines 19-21. 

Moreover, on the day of trial, Trial Counsel believed the issue of a plea deal was a "moot 

point" because Defendant had previously rejected the offer of Indecent Assault with the 

attached mandatory reporting requirements. Id. at 29-30, lines 21-25, 1-2. 

To be eligible for relief under the PCRA, Defendant must plead and prove by a 

preponderance of the evidence that his conviction resulted from the "[i]neffective assistance of 

counsel which; in the circumstances of [this] particular case; so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken place." 

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4 

42 Pa.C.S.A. § 9543(a)(2)(ii). In evaluating a claim of ineffectiveness, counsel is presumed to 

be effective, and it is Defendant's burden to show otherwise. Commonwealth v. Howard, 749 

A.2d 941, 949 (Pa. Super. 2000); Commonwealth v. Witherspoon, 392 A.2d 1313, 1315 (Pa. 

1978); see Strickland v, Washington; 466 U.S. 668, 689 (1984) (reasoning that the court's 

review of counsel's performance must be "highly deferential[,] ... indulg[ing] a strong 

presumption that counsel's conduct falls within the wide range of reasonable professional 

assistance."). 

It is well settled that the Sixth Amendment to the United States Constitution and 

Article I, Section 9 of the Pennsylvania Constitution guarantee that the accused shall enjoy the 

right to effective assistance of counsel at all critical stages of a criminal proceeding. 

Commonwealth v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010) (citing Strickland, 466 U.S. at 

684-86; Mempa v. Rhay, 389 U.S. 128, 134 (1967)); see U.S. Const. amend. VI ("In all 

criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel 

for his defence."), The right to effective assistance of counsel "is mandated by the Sixth 

Amendment because lawyers 'are the means through which the other rights of the person on 

trial are secured,' and through which the prosecution's case is subjected to 'meaningful 

adversarial testing.'?' Grant, 992 A.2d at 156 (citing United States v. Cronic, 466 U.S. 648, 

653-56 (1984)); see Commonwealth v, Pierce, 527 A.2d 973, 981 (Pa. 1987) (citing Strickland, 

466 U.S. at 684-85) ("The Sixth Amendment right to counsel exists in order to protect the 

fundamental right to a fair trial."). Moreover; plea negotiations are a critical stage of a criminal 

proceeding where "criminal defendants require effective counsel." Missouri v. Frye, _ U.S. 

_, _; 132 S.Ct 1399; 1407-08 (2012); accord Lafler v. Cooper, _ U.S. _j _; 132 

S.Ct 1376 (2012); see Padilla v. Kentucky, 599 U.S. 356j 364 (2010) (citing McMann v. 

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Richardson, 397 U.S. 759, 771 (1970)) ("Before deciding whether to plead guilty, a defendant 

is entitled to 'the effective assistance of competent counsel.?'). During plea negotiations, 

anything less than effective counsel "might deny a defendant 'effective representation by 

counsel at the only stage when legal aid and advice would help him.?' Id. at 1409 (quoting 

Massiah v. United States, 377 U.S. 201, 204 (1964)) (intemal quotations omitted). Thus, "as a 

general rule, defense counsel has the duty to communicate formal offers from the prosecution 

to accept a plea on terms and conditions that may be favorable to the accused." Id. at 1408. 

For reversal of a conviction based upon claims that counsel's assistance was ineffective; 

a defendant must show that: (1) "counsel's performance was deficient" and (2) "the deficient 

performance prejudiced the defense." Strickland, 466 U.S. at 687. Prejudice is shown where 

"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different." Id. at 694. In Pennsylvania; the PCRA essentially 

adopts the Strickland standard, under which our courts have created a three-pronged 

performance and prejudice test. Specifically; Pennsylvania law requires a petitioner to show 

that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's 

action or inaction; and (3) counsel's error caused the prejudice such that there is a reasonable 

probability that the result of the proceeding would have been different absent such error, 

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Commonwealth v, Washington, 927 A.2d 

586 (Pa. 2007). If a defendant fails to meet any prong in the Pierce test, then his or her claim 

of ineffectiveness may be denied. Washington, 927 A,2d at 594. 

Here, the testimony presented by Trial Counsel at the evidentiary hearing establishes 

that Trial Counsel did in fact inform Defendant of the Commonwealth's plea offer at some 

point in the period of time leading up to Defendant's trial. Trial Counsel testified that they had 

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f, 

"a number of discussions with the [Assistant District Attorney]" and Defendant about "possible 

resolutions" to this case. (Evidentiary Hearing Transcript at page 8, lines 1-8, December 16, 

2014). At one point, Trial Counsel discussed with Defendant the possibility of Accelerated 

Rehabilitative Disposition. At yet another time, the Commonwealth extended a written plea 

offer of Sexual Assault, a felony of the second degree, and Defendant rejected this offer on the 

advice of Trial Counsel. Finally, and most importantly, there existed a plea offer of Indecent 

Assault, a misdemeanor of the second degree. Trial Counsel testified that the plea offer of 

Indecent Assault was communicated to and discussed extensively with Defendant, including 

discussions relating to the ramifications of pleading guilty to Indecent Assault. Id. at 25, lines 

9-1 O. However, the plea offer of Indecent Assault was not acceptable to Defendant because it 

carried with it mandatory reporting requirements, and Defendant ultimately rejected the 

Commonwealth's offer. Id. at 12, lines 19-25. 

After thoroughly evaluating their testimony, we find Trial Counsel to be most credible. 

Indeed; we must not ignore the fact that Trial Counsel are officers of the legal system, and have 

an ethical and professional obligation to remain candid toward this Court. Pa. R.P.C. 3.3; see 

id., cmt. 2 (explaining that a "lawyer must not allow the tribunal to be misled by false 

statements of . . . fact or evidence that the lawyer knows to be false."). Furthermore, we find 

Trial Counsel's credibility to be bolstered by their truthful and sincere admission that they did 

not communicate to or advise Defendant of the plea offer immediately before trial. After 

consideration of all circumstances surrounding this case, we accept Trial Counsel's recollection 

of the facts. As such, we must decide if Trial Counsel's conduct fell below professional 

standards. 

There is no doubt that "as a general rule, defense counsel has the duty to communicate 

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7 

formal offers from the prosecution to accept a plea on terms and conditions that may be 

favorable to the accused," Frye; 132 S.Ct. at 1408. The United States Supreme Court; 

however, has indicated that there are perhaps exceptions to that general rule, although they 

have yet to explore what those exceptions may be. Id. However; in Groves v, United States; 

755 F.3d 588 (7th Cir. 2014), while deciding whether counsel was constitutionally ineffective 

for not discussing a plea offer with a defendant; the United States Court of Appeals for the 

Seventh Circuit expressed one such exception. Groves, 755 F.3d at 591. In that case, after the 

defendant's first attorney withdrew from the case; the government extended a plea offer to the 

defendant. After discussing the offer with his second attorney, the defendant rejected the 

government's proposed plea agreement. Id. at 590, Subsequently, the defendant's second 

attorney filed a motion to withdraw, which was granted. The United States District Court then 

appointed a third attorney to represent the defendant Throughout his representation of the 

defendant, the third attorney was unaware of the government's proposed plea offer. As such, 

the third attorney did not have any conversations with the defendant about the government's 

offer, and instead proceeded to trial. Id. at 591. After bis conviction, the defendant filed a 

motion claiming that the third attorney's "performance was objectively unreasonable because 

[the attorney] failed to discuss the government's ... plea offer with him." Id. The District 

Court entered judgment denying the defendant's motion, and the defendant appealed. 

On Appeal, the Seventh Circuit, relying on Lafler and Flye, acknowledged that 

'" lawyers must tell their clients about offers of plea bargains.?' Id. at 592 ( quoting Estremera 

v. United States, 724 F.3d 773, 778 (7th Cir. 2013)). However, the Court found that the 

defendant's first attorney "did just that and [the defendant] rejected the offer." Id. The Court 

reasoned that "Lafler and Frye do not require subsequent counsel to press a plea offer on a 

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Commonwealth's offer. Here, much like in Groves, Trial Counsel was not required to press 

onto Defendant the very plea offer which Defendant had previously rejected earlier in the legal 

process, and Trial Counsel was not ineffective for failing to do so. It is clear that Trial Counsel 

fulfilled the ethical and professional obligations that were owed to Defendant regarding the 

Commonwealth's plea offer. 

Furthermore, to the extent Trial Counsel's performance could be construed as 

ineffective, we find that Defendant suffered no prejudice. "To show prejudice from ineffective 

assistance of counsel where a plea offer has lapsed or been rejected because of counsel's 

deficient performance, [a] defendant[] must demonstrate a reasonable probability they would 

have accepted the earlier plea offer had they been afforded effective assistance of counsel." 

Frye, 132 S.Ct. at 1409. Furthermore, a defendant must "demonstrate a reasonable probability 

the plea would have been entered without the prosecution canceling it or the trial court refusing 

16, 2014), Based on his discussions with Trial Counsel, Defendant rejected the 

defendant who has already rejected any such offer - nor is it per se prejudice for failing to do 

so." Id. Thus, the Court held that the third attorney's "failure to discuss the ... plea offer after 

[the defendant] had rejected it earlier in his criminal proceedings . , . was not ineffective 

assistance of counsel." Id. 

Although we are not bound by the Seventh Circuit decision in Groves, we find this 

decision to be most persuasive. In the case sub judice, the Commonwealth presented a plea 

offer to Defendant, and Defendant and Trial Counsel had "extensive discussion]s]" about the 

plea offer and its potential ramifications, including the attached reporting requirements 

mandated under SORNA. (Evidentiary Hearing Transcript at page 25, lines 9-10, December 

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Q 

4 We find there is a reasonable probability that the prosecution would not have cancelled the plea offer. Indeed, 

the plea was re-offered mere minutes before trial; thus, it seems unlikely that the Assistant District Attorney would 

have cancelled the plea offer immediately after communicating said offer. Moreover, we find it unlikely that the 

judge would not have accepted the plea offer. See Frye, 132 S.Ct. at 1410 (reasoning that "[i]t can be assumed 

that ... prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences[;]" 

therefore "it should not be difficult to make an objective assessment as to whether or not a particular fact or 

intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial 

uonapproval of a plea bargain."). Here, there is nothing in the record that would lead us to find that the plea offer 

would have been withdrawn by the prosecutor or would not have been approved by a judge of this County. 

5 In reaching this credibility determination, we considered the conflicting testimony of Trial Counsel and our 

observations of Defendant's tone, mannerisms, and behavior while testifying at the evidentiary hearing. 

mandatory reporting requirements. Additionally; we find it noteworthy that Defendant had 

and reporting requirements, and the plea offer would have, at the very least, carried with it 

Counsel. Furthermore, the testimony revealed that Defendant's aim was to avoid incarceration 

trial. In reaching this determination, we find that Defendant's testimony is not particularly 

credible, 5 as most of his claims were directly refuted by the credible testimony of Trial 

exists a reasonable probability that he would have accepted the plea offer immediately before 

We find Defendant has failed to satisfy his burden, as we are not convinced that there 

before the start of trial. 

standing plea offer if Trial Counsel had communicated the plea offer to Defendant immediately 

that there is a reasonable probability that he would have accepted the Commonwealth's 

Lafler, 132 S.Ct. at 1386. However, for prejudice to exist Defendant has the burden to prove 

either a conviction on more serious counts or the imposition of a more severe sentence." 

defendant "who goes to trial instead of taking a more favorable plea may be prejudiced from 

than those that he would have received by accepting the Commonwealth's plea offer. Indeed, a 

by having to stand trial and because of that he is now suffering penalties that are more severe 

lesser charge or a sentence of less prison time." Id. Defendant alleges that he was prejudiced 

the end result of the criminal process would have been more favorable by reason of a plea to a 

to accept it/'4 Id. To establish prejudice; "it is necessary to show a reasonable probability that 

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previously rejected the very plea offer that is the basis of his Petition. 

Finally; we must note that Defendant never testified that he would have accepted the 

Commonwealth's standing plea offer immediately before trial. During the evidentiary hearing, 

Defendant's attorney asked: "Would you have accepted that offer -- today, knowing the 

situation, would you have accepted that offer in order to avoid incarceration and avoid the 

lifetime reporting responsibility?" (Evidentiary Hearing Transcript at page 5; lines 5-9; 

December 8, 2014) (emphasis added). Although Defendant responded in the affirmative, we do 

not believe that this hindsight question is the correct inquiry. Rather, to satisfy his burden; 

Defendant would need to establish that, regardless of his conviction and sentence, he would 

have accepted the plea offer if it had been communicated by Trial Counsel. There is no doubt 

that, now knowing the ultimate outcome of his trial, Defendant would have taken the plea offer 

to avoid both a lengthy incarceration sentence and lifetime reporting requirements. Yet what 

Defendant needed to establish is that there is a reasonable probability that he would have 

accepted the plea offer in order to avoid trial and the potential ramifications stemming from 

trial. He has failed to do so. Rather, what the totality of evidence establishes is mere sentence 

dissatisfaction, not prejudice. 

Accordingly; we enter the following order: 

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11 

ORDERED that said Petition is DENIED. 

Post-Conviction Collateral Relief, in accordance with the foregoing Memorandum of Law, it is 

I ORDER 

AND NOW; this z,/JI" day of January 2015; upon review of Defendant's Petition for 

COMMONWEALTH ) IN THE COURT OF COMMON PLEAS 

) OF SOMERSET COUNTY, 

) PENNSYLVANIA 

v. ) 

) 

) NO. 209 CRIMINAL2011 

ANTHONY JOSEPH RACO, ) 

) 

) PETITION FOR POST-CONVICTION 

Petitioner/Defendant. ) COLLATERAL RELIEF 

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"Statement"), Defendant asserts the following: 

In his Rule l 925(b) Statement of Matters Complained of on Appeal (hereinafter, the 

Defendant's timely appeal followed. 

(hereinafter, the "Petition"), which was denied by Order of Court dated January 28, 2015. 

motion was denied. Thereafter, Defendant filed a Petition for Post-Conviction Collateral Relief 

Notification Act. Defendant filed a Post-Sentence Motion, and on September 8, 2014, said 

regulations and registration verification requirements of the Sex Offender Registration and 

months and not more than forty-eight ( 48) months, and was further sentenced to abide by the 

was sentenced to incarceration in the Somerset County Jail for not less than twenty-four (24) 

Assault, 18 Pa.C.S.A. § 3124.1, a felony of the second degree. On April 30, 2014, Defendant 

On January 24, 2014, following a non-jury trial, Defendant was convicted of Sexual 

statement of matters complained of on appeal, the following is our reply. 

Appellate Procedure 1925(a). Defendant having complied with our directive to file a concise 

TWs statement is issued in compliance with the directive of Pennsylvania Rule of 

STATEMENT PURSUANT TO Pa.R.A.P. 1925(a) 

Defendant. 

ANTHONY JOSEPH RACO, 

v. 

) IN THE COURT OF COMMON PLEAS 

) OF SOMERSET COUNTY, 

) PENNSYLVANIA 

) 

) 

) 

) NO. 209 CRIMINAL 2011 

COMMONWEALTH 

• I Circulated 10/07/2015 11:32 AM
? 

(1) This Court erred in determining that former trial counsel for Defendant (hereinafter, 

"Trial Counsel") was not constitutionally ineffective where at no relevant time did 

Trial Counsel credibly testify that they advised Defendant of the details, or even the 

existence of, a formal plea offer that was communicated by the Commonwealth to 

Trial Counsel and held open until the day of trial; 

(2) This Court erred by according due weight to the equivocal testimony of Trial 

Counsel to determine that Trial Counsel did, in fact, advise Defendant of the details 

of a formal plea offer that was communicated by the Commonwealth to Trial 

Counsel and held open until the day of trial where the formal record is devoid of any 

evidence estab1ishing when Trial Counsel allegedly discussed the plea offer with 

Defendant, where it was discussed, how it was discussed, and what was discussed, 

when, in fact, Defendant presented evidence to the contrary, including, but not 

limited to, the testimony of three witnesses, including Defendant; 

(3) This Court erred as a matter of law in determining that Trial Counsel was not 

constitutionally ineffective for failing to advise Defendant of a formal plea offer that 

was communicated by the Commonwealth to Trial Counsel and held open until the 

day of trial where the formal record is devoid of any evidence establishing 

specifically when Trial Counsel allegedly discussed the plea offer with Defendant, 

where it was discussed, how it was discussed, and what was discussed; 

(4) Assuming, arguendo, Trial Counsel advised Defendant of the details of a formal 

plea offer extended by the Commonwealth prior to trial and Defendant rejected the 

same, this Court erred as a matter of law in finding that Trial Counsel was not 

constitutionally ineffective where the Commonwealth communicated said offer to 

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3 We must reiterate that Trial Counsel's performance in this case was not constitutionally ineffective. Although, 

for the purpose of being thorough, we addressed Defendant's prejudice argument in our Memorandum and Order 

entered January 28, 2015, an ultimate determination regarding prejudice to Defendant was unnecessary. 

offer has lapsed or been rejected because of counsel's deficient performance, [a] defendantl] 

A.2d 586 (Pa. 2007). "To show prejudice from ineffective assistance of counsel where a plea 

error. Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Commonwealth v. Washington, 927 

reasonable probability that the result of the proceeding would have been different absent such 

That is, a defendant must show that counsel's error caused the prejudice such that there is a 

ineffectiveness prejudiced the defense.3 Strickland v. Washington, 466 U.S. 668, 687 (1984). 

of ineffective assistance of counsel, the burden is on the defendant to show that counsel's 

The law in this Commonwealth is well settled: in PCRA proceedings based upon claims 

offer been communicated to Defendant by Trial Counsel. Id. at ,r 19. 

Defendant failed to show that he would have accepted the Commonwealth's plea offer had said 

context and weighing the evidence to find that Defendant was not prejudiced because 

matter complained of on appeal: that we erred by improperly construing a question out of 

further to clarify the January 28, 2015 Memorandum and Order in light of Defendant's final 

stated in our Memorandum and Order entered January 28, 2015. However, we briefly write 

(Statement at ,r,r 15-19). We note that the reasons for the Order complained of are clearly 

communicated to Defendant by Trial Counsel. 

have accepted the Commonwealth's formal plea offer had said offer been 

because, according to the Court, Defendant failed to show that he would, in fact, 

the evidence to find that Trial Counsel's ineffectiveness did not prejudice Defendant 

(5) This Court erred by improperly construing the question out of context and weighing 

failed to communicate the re-extension of that offer to Defendant; 

Trial Counsel on the day of trial and it is wholly undisputed that Trial Counsel 

' I 

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4 

4 At the evidentiary hearing, PCRA Counsel asked Defendant "Would you have accepted [the plea] offer -- today, 

knowing the situation, would you have accepted that offer in order to avoid incarceration and avoid the Hf etime 

reporting responsibility?" (Evidentiary Hearing Transcript at page 5, lines 5-9, December 8, 2014). Defendant 

answered this question in the affirmative. 

hearing. However, at that juncture, the onus was on Defendant to demonstrate that there 

context." Certainly, we reviewed this question in the context of the complete evidentiary 

First, we submit that we did not "err . . . by improperly construing the question out of 

Defendant was not prejudiced. We disagree. 

by considering it out of context and we erred by improperly weighing the evidence to find that 

In the Statement, Defendant contends that we misconstrued PCRA Counsel's question" 

plea offer was not the correct inquiry. 

PCRA Counsel's hindsight question regarding whether Defendant would have accepted the 

Defendant had previously rejected the very plea offer that was the basis of his Petition; and (3) 

support of this holding, we found that: (1) Defendant's testimony was not credible; (2) 

the plea offer immediately before trial had it been communicated to him by Trial Counsel. In 

we were not convinced that there existed a reasonable probability that he would have accepted 

and Order denying Defendant's Petition, we held that Defendant failed to satisfy his burden, as 

he would have received by accepting the Commonwealth's plea offer. In our Memorandum 

prejudice by standing trial and he is now suffering penalties that are more severe than those that 

it been communicated to him immediately before trial. Defendant alleged that he had suffered 

would have been different because he would have accepted the Commonwealth's plea offer had 

In the Petition, it was Defendant's contention that the result of his criminal proceeding 

S.Ct. 1399, 1409 (2012). 

they been afforded effective assistance of counsel." Missouri v. Frye,_ U.S._,_, 132 

must demonstrate a reasonable probability they would have accepted the earlier plea offer had 

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s Again, it should be noted that Defendant testified he would have accepted the Commonwealth's plea offer, 

"today, knowing the situation." 

been communicated to him immediately before trial. 5 

untruthful when he testified that he would have accepted the Commonwealth's plea offer had it 

Defendant did not suffer prejudice was based on our determination that Defendant was being 

us that Defendant lacked what we believe to be necessary credibility. As such, our finding that 

testimony of Trial Counsel and the facts and circumstances surrounding this case, it is clear to 

Defendant testified can best be described as defiant, and when coupled with the conflicting 

we were able to assess his demeanor, his actions, and his words. The manner in which 

truthfulness. Indeed, this Court had the advantage of seeing Defendant testify in person, and 

writing, we submit that Defendant's testimony did not carry with it a certain aura of 

determination that Defendant's testimony lacked credibility. Although difficult to articulate in 

tone, mannerisms, and behavior while testifying. Here, we write to again express our 

'consideration of (1) the conflicting, credible testimony of Trial Counsel; and (2) Defendant's 

Defendant's Petition based in large part on his lack of credibility, we expressed our 

Most importantly, however, we considered Defendant's credibility. In denying 

in reaching our determination that Defendant failed to satisfy his burden. 

absent our credibility determinations, but this question and answer was a factor we considered 

that we would not have applied such strict interpretation to PCRA Counsel's hindsight question 

in order to avoid trial and the potential ramifications stemming from trial. There is little doubt 

Defendant did not directly testify that he would have accepted the Commonwealth's plea offer, 

basis of the evidentiary hearing and Defendant's underlying arguments, we found it telling that 

the effective assistance of counsel. Frye, 132 S.Ct. at 1409. While we certainly understood the 

existed "a reasonable probability" he would have accepted the plea offer had he been afforded 

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For Commonwealth: Lisa Lazzari-Strasiser, Esq.; District Attorney 

For Defendant: Daniel W. RuHo, Esq. 

Dated: March J/f' 2015 

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