J-S37011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ARNALDO GARCIA, SR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2709 EDA 2022

Appeal from the PCRA Order Entered September 26, 2022

In the Court of Common Pleas of Lehigh County

Criminal Division at CP-39-CR-0002966-2016

BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 4, 2024

This case returns to the panel following remand for the correction of 

procedural missteps that occurred in the post-conviction court. See 

Commonwealth v. Garcia, No. 2709 EDA 2022 (Pa. Super. filed Mar. 18, 

2024) (unpublished memorandum). Arnaldo Garcia, Sr. (Appellant) is 

appealing from the order dismissing his first petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541, et. seq. We affirm.

TRIAL COURT AND DIRECT APPEAL HISTORY

On August 17, 2017, a jury convicted Appellant of aggravated indecent 

assault of a child, corruption of minors, and indecent assault of a person less 

than 13 years of age. The trial court sentenced Appellant to an aggregate 

term of 8 years and 2 months to 25 years in prison. Sentencing Order, 

11/20/17, at 1-4. The trial court did not impose a probationary sentence. 

However, the trial court included in the sentencing order a form captioned 
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“LEHIGH COUNTY SENTENCE PROBATION/PAROLE CONDITIONS,” and titled 

“Special Conditions Sheet.” Id. at 4 (prohibiting Appellant from engaging in 

certain activities and requiring his participation in various services).

Appellant timely appealed. This Court affirmed the judgment of 

sentence, and the Pennsylvania Supreme Court denied allowance of appeal. 

Commonwealth v. A.G., Sr., No. 635 EDA 2018 (Pa. Super. filed Feb. 4, 

2019) (unpublished memorandum), appeal denied, No. 137 MAL 2019 (Pa. 

Aug. 6, 2019).

PCRA COURT HISTORY

First Order Denying Relief on March 18, 2021

On November 1, 2019, Appellant filed a timely, pro se PCRA petition. 

The PCRA court appointed counsel, who filed a Turner/Finley1 no-merit letter 

and motion to withdraw. On January 27, 2020, the PCRA court permitted 

counsel to withdraw, but declined Appellant’s request for appointment of new 

counsel. Appellant proceeded pro se. On March 18, 2021, the PCRA court 

entered an order denying relief.

Appellant successfully appealed. Noting “procedural peculiarities,” this 

Court found the PCRA court “failed to enforce Appellant’s ‘ruled-based right to 

effective counsel ... throughout the entirety of his first PCRA proceeding.’” 

Commonwealth v. Garcia, No. 684 EDA 2021, unpublished memorandum 

at *3 (Pa. Super. filed Nov. 15, 2021) (citation omitted). We concluded 

____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant’s “allegations of ineffectiveness have necessitated the appointment 

of substitute counsel in the post-collateral context.” Id. Thus, we vacated 

the order denying PCRA relief and remanded for the PCRA court “to appoint 

substitute counsel to represent Appellant and hold a new hearing.” Id.

Second Order Denying Relief on September 26, 2022

The PCRA court summarized the proceedings following our November 

15, 2021 remand:

On November 18, 2021, the [PCRA c]ourt appointed Robert 

Sletvold, Esq.[,] and directed him to file an Amended PCRA 

Petition or a Motion to Withdraw as Counsel. Counsel failed to file 

either document despite being granted extensions. As a result, 

the [PCRA c]ourt scheduled a hearing to determine whether 

counsel had abandoned [Appellant]. On June 9, 2022, the [c]ourt 

conducted an abandonment hearing. Based on Attorney Sletvold’s 

impending resignation as conflicts counsel, the [c]ourt appointed 

Alfred Stirba, Esq.[,] on June 14, 2022.

On August 1, 2022, the [c]ourt held a hearing to determine 

the status of this matter. Counsel advised [that] he intended to 

pursue the relief originally sought in [Appellant’s] PCRA Petition 

with respect to the assertion that trial counsel allegedly failed to 

communicate a plea offer to [Appellant]. Consequently, the 

[c]ourt conducted an evidentiary hearing on September 16, 2022, 

at which time [Appellant] was represented by Attorney Stirba. 

Michael T. Gough, Esq., [Appellant’s] original trial and plea 

counsel, testified. At the close of this hearing, the [c]ourt took 

the matter under advisement.

Order, 9/26/22, at 1 n.i.

On September 26, 2022, the PCRA court entered the second order 

denying PCRA relief. The order was served on Appellant and Attorney Stirba. 

Attorney Stirba did not seek to withdraw and remained counsel of record in 
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the PCRA court. For reasons that remain unclear, Appellant filed a pro se 

notice of appeal.2

After Appellant filed his pro se appeal, the PCRA court ordered him to 

file a concise statement pursuant to Pa.R.A.P. 1925(b). The order was served 

on Appellant and the Commonwealth, but not Attorney Stirba. Appellant 

subsequently filed his concise statement pro se.

On November 23, 2022, the PCRA court issued an opinion. Again, 

service was made on Appellant and the Commonwealth, but not Attorney 

Stirba. The PCRA court briefly acknowledged Appellant’s pro se status, 

stating, “it appears because this is still Appellant’s first litigated PCRA that he 

is entitled to appointment of counsel on appeal. However, Appellant filed the 

appeal pro se and by doing so, he divested the [PCRA c]ourt of jurisdiction to 

appoint counsel at this juncture.” PCRA Court Opinion, 11/23/22, at 4.

The above actions contravened established statutory and case law. See 

generally Commonwealth v. Garcia, No. 2709 EDA 2022, unpublished 

memorandum (Pa. Super. filed Mar. 18, 2024). Accordingly, we found a 

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2 The pro se notice of appeal was not sent to Attorney Stirba. See

Pa.R.Crim.P. 576(a)(4) (providing if a represented defendant submits for filing 

a notice that has not been signed by his attorney, the clerk of courts shall

accept it for filing and forward a copy of the time-stamped document to the 

defendant’s attorney and the Commonwealth within 10 days).
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breakdown in the PCRA court process and remanded the case to the PCRA 

court with specific instructions.

3

 Consistent with this Court’s instructions,

[o]n March 25, 2024, the [PCRA c]ourt conducted a Grazier[4]

hearing and Appellant advised the [PCRA c]ourt that he wished to 

retain Attorney Edelin. The [PCRA c]ourt entered an Order 

directing Attorney Edelin to enter an appearance.

Attorney Edelin entered an appearance electronically the same 

day. The [PCRA c]ourt issued an Order directing Attorney Edelin 

to file a Concise Statement of Matters Complained of on Appeal .... 

Counsel filed the Concise Statement on April 2, 2024.

PCRA Court Opinion (PCO), 4/19/24, at 3.

After authoring the above opinion, the PCRA court returned the record 

to this Court for disposition.

ISSUE

Appellant presents the following question for our review:

Did [Appellant] receive ineffective assistance from trial and PCRA 

counsels where they failed to preserve a challenge to the jury 

selection process, which did not follow the binding rules on jury 

selection and, in doing so, permitted the prosecutor to make a 

plethora of legally incorrect and highly prejudicial statements to 

the panel of prospective jurors?

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3 Remand notwithstanding, we addressed Appellant’s meritorious legality of 

sentence issue (with which the Commonwealth agreed). We concluded the

trial court improperly imposed parole conditions as part of Appellant’s 

sentence, and struck the parole conditions from the November 20, 2017 

sentencing order.

4 Regarding the right to counsel “at the post-conviction and appellate stages, 

an on-the-record determination should be made that the waiver is a knowing, 

intelligent, and voluntary one.” Commonwealth v. Grazier, 713 A.2d 81, 

82 (Pa. 1998).
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Appellant’s Brief at 3.5

ANALYSIS

Preliminarily, Appellant contends his issue is properly before us pursuant 

to Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). Appellant’s Brief 

at 9. In Bradley, the Pennsylvania Supreme Court held “a PCRA petitioner 

may, after a PCRA court denies relief, and after obtaining new counsel or 

acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first 

opportunity to do so, even if on appeal.” Bradley, 261 A.3d at 401

(emphasis added).

Appellant has been represented by four attorneys in this PCRA case. His 

current attorney, Mr. Edelin, began representing Appellant after Appellant pro 

se appealed from the denial of PCRA relief on September 26, 2022. Appellant 

claims he may “raise issues of PCRA counsel’s ineffective assistance as soon

as he obtains new counsel. And he has complied with that requirement.” 

Appellant’s Brief at 9. We will consider the merits of Appellant’s issue mindful 

of Bradley and the repeated breakdown in the PCRA court process. However, 

we clarify that a petitioner may raise claims of PCRA counsel’s ineffectiveness 

“at the first opportunity to do so,” which may not be “as soon as he obtains 

new counsel.” See Bradley, 261 A.3d at 401; Appellant’s Brief at 9.

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5 This is the same issue raised by counsel in Appellant’s amended concise 

statement. See Amended Statement of Matters Complained of on Appeal 

Pursuant to Pa.R.A.P. 1925(b), 4/2/24, at 1 (unnumbered).
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Instantly, we agree with the PCRA court that “[b]ecause voir dire was 

transcribed and the transcript was filed, [Appellant’s] issue can be resolved 

on the record.” PCO at 3. As the Commonwealth observes, “[i]n some 

instances, the record before the appellate court will be sufficient to allow for 

disposition of any newly-raised ineffectiveness claims. Such is the case here.”

Commonwealth’s Brief at 14 (citing Bradley, 261 A.3d at 402).

We review the PCRA court’s order dismissing Appellant’s petition to 

determine whether the findings of the PCRA court are supported by the record 

and are free from legal error. Commonwealth v. Howard, 285 A.3d 652, 

657 (Pa. 2022). Appellant “has the burden to persuade this Court that the 

PCRA court erred and that such error requires relief.” Id.

The law regarding ineffective assistance of counsel is well-settled:

To prevail on a claim of ineffective assistance, the petitioner must 

plead and prove that the underl[y]ing claim is of arguable merit; 

that counsel had no reasonable strategic basis for the disputed 

action or inaction; and that there is a reasonable probability that 

the outcome of the proceeding would have been different but for 

counsel’s error. Failure to satisfy any one of these prongs is fatal 

to a claim of ineffective assistance. The PCRA court’s factual 

findings are binding if the record supports them, and we review 

the court’s legal conclusions de novo.

Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa. Super. 2021) (citations 

omitted).

Jury Selection

Appellant asserts that during jury selection, “the presiding judge 

transgressed [Pa.R.Crim.P.] 631[, a]nd by failing to adhere to that Rule, the 
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court permitted the prosecutor to make legally incorrect and highly prejudicial 

statements to the jury.” Appellant’s Brief at 13. Appellant claims he was 

prejudiced by the prosecutor’s “unfettered” questioning. Id. at 18, 22. 

According to Appellant, his counsel “should have objected to the process and 

the prosecutor’s myriad inaccurate and prejudicial statements as she ran 

roughshod over [Appellant’s] right to an impartial jury.” Id. at 13. Appellant

describes his “attorney s[itting] silently as the errors and prejudice mounted.” 

Id. at 15. Appellant states:

Instead of an orderly jury selection, the lower court permitted the 

prosecutor to run the process as if it were her closing arguments 

to an empaneled jury, replete with misleading, inaccurate, and 

inappropriate instructions of law. Indeed, by the end of jury 

selection, one wonders if anyone knew who was in charge. 

[Appellant’s] trial counsel never objected to the process, and his 

PCRA counsel failed to raise the issue. Each of those attorneys 

rendered ineffective assistance of counsel because [Appellant]

was compelled to proceed to trial with a jury that the prosecutor 

primed to convict throughout the voir dire process.

Id. at 9-10.

To the contrary, the Commonwealth argues that “the record belies 

[Appellant’s] assertion that the process employed by the lower court was 

improper or somehow rendered a jury that was not impartial.” 

Commonwealth’s Brief at 16. We agree.

Rule 631 pertains to the examination and challenges of prospective 

jurors. The Rule states:

(A) Voir dire of prospective trial jurors and prospective alternate 

jurors shall be conducted, and the jurors shall be selected, in the 

presence of a judge, unless the judge’s presence is waived by the 
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attorney for the Commonwealth, the defense attorney, and the 

defendant, with the judge’s consent.

Pa.R.Crim.P. 631(A). In addition, “an oath shall be administered” to 

prospective jurors; “the judge shall instruct the prospective jurors upon their 

duties and restrictions”; voir dire “shall be recorded in full unless the recording 

is waived”; and “[p]rior to voir dire, each prospective juror shall complete the 

standard, confidential juror information questionnaire.” Id. at (B), (C), (D) 

and (E). Finally, Rule 631 directs that voir dire be conducted “individually,”

or with a “prepared list” of prospective jurors. Id. at (F)(1)-(2).

Appellant specifically asserts the trial court violated Rule 631(C) by 

neglecting to fully instruct prospective jurors about their duties, and Rule 

631(F), because “the overall selection of jurors bore no resemblance to 

anything promulgated in Rule 631(F).” Appellant’s Brief at 15-17. Appellant 

states:

Here, the lower court’s entire remarks to the prospective jurors 

included introducing himself, the prosecutor, and defense counsel, 

and then explaining that they gathered to “decide which [twelve] 

will sit as primary jurors and which [two] will set as alternate 

jurors[.]” (N.T. 8/15/17, Jury Voir Dire, [at] 2.) After those brief 

remarks, the lower court “turn[ed] the matter over to the district 

attorney for questioning.” Id. And the lower court then permitted 

the prosecutor to question each potential juror regarding the 

standard questionnaire without compelling her to use any 

preemptory strikes or strikes for cause while doing so. ([Id. at] 

2-68.) Only after that did the lower court permit defense counsel 

to engage the potential jurors. ([Id. at] 68-75.) Trial counsel did 

not object to this process.

Id. at 16.
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According to the record, Appellant is correct about Rule 631(C).6 The 

notes of testimony do not show that “upon completion of the oath,” the trial 

court instructed “the prospective jurors upon their duties and restrictions while 

serving as jurors.” Pa.R.Crim.P. 631(C). See also N.T., 8/15/17, at 2. 

Appellant is incorrect about Rule 631(F). The record refutes Appellant’s claim 

that “the overall selection of jurors bore no resemblance to anything 

promulgated in Rule 631(F).” Appellant’s Brief at 17. The selection of jurors 

in this case occurred by a “hybrid” method. In addressing hybrid voir dire, 

our Supreme Court explained:

Rule 631 provides two methods of voir dire, one in which 

peremptory decisions are made one juror at a time, without 

knowledge of those jurors to come, and the other in which they 

are made after all jurors have been examined. Here, although the 

method of voir dire employed was clearly a hybrid of these two 

methods, and thus did not strictly comply with Rule 631[(F)], the 

parties were fully aware of the procedure chosen by the trial court 

before any challenges were exercised. The voir dire method 

employed merely combined elements of the individual and the list 

systems, it did not deprive [the a]ppellant of a right so 

fundamental that it requires the award of a new trial.

Commonwealth v. Noel, 104 A.3d 1156, 1171 (Pa. 2014).

In addition, the Supreme Court observed:

The Rules of Criminal Procedure, including Rule 631, were enacted 

to provide for the just determination of every criminal proceeding, 

and shall be construed to secure simplicity in procedure, fairness 

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6 The transcript indicates the prospective jurors had completed questionnaires

and “(Prospective jurors administered oath.)” N.T., 8/15/17, at 2. The oath 

and responses were not transcribed. It is possible the prospective jurors were 

instructed about their duties and restrictions but the instruction was not 

transcribed.
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in administration, and the elimination of unjustifiable expense and 

delay. Pa.R.Crim.P. 101. The process of selecting a jury is 

committed to the sound discretion of the trial judge and will be 

reversed only where the record indicates an abuse of discretion.

Id. at 1169. “It is only when the court permits the [jury] selection process to 

impugn the fundamental qualities of competence, fairness and impartiality 

that we may conclude that a ‘palpable abuse of discretion’ has been 

committed.” Id. at 1171.

Chapter 45 of the Judicial Act also addresses jury selection. 42 Pa.C.S.

§§ 4501-4584. Section 4527 is titled “Effect of verdict on jury selection 

errors,” and provides that “errors and omissions in the selection of jurors [ ] 

shall not constitute grounds to set aside any jury verdict in any ... matter or 

to arrest, reverse, open or strike any judgment entered on a jury verdict, and 

the trial by jury and its rendition of a verdict in any matter shall constitute a 

waiver of all such errors and omissions.” 42 Pa.C.S. § 4527.

The purpose of voir dire is to empanel a fair and impartial jury. Noel, 

104 A.3d at 1168. The Supreme Court reiterated:

The purpose of voir dire is to ensure the empaneling of a fair and 

impartial jury capable of following the instructions on the law as 

provided by the trial court. While the constitution of this 

Commonwealth guarantees that trial by jury shall be as 

heretofore, and the right thereof remain inviolate, Pa. Const. Art. 

I, § 6, we have interpreted the inviolability of the right to mean 

freedom from substantial impairment, and have emphasized that 

it does not import rigidity of regulation in the manner of 

impanelling a jury.

Id. at 1168–69 (citations, brackets and quotation marks omitted).
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In this case, the notes of testimony disclose no impropriety that resulted 

in a biased jury. Appellant’s claim that the prosecutor “ran roughshod” with 

“unfettered” questions is hyperbole. For example, the prosecutor made the 

following comments:

It is my job to present evidence. I could sit up here and make 

lots of arguments, but the reality is what is important and that is 

the evidence.

***

[T]he goal is to get a fair and impartial jury.

***

So today I’ll be asking some general questions. We’ll go through 

the questionnaire with some specificity. I’ll ask a couple of other 

questions and then I’ll turn it over to the Defense.

***

[You] have to evaluate what [witnesses] say, use your common 

sense, and make decisions. Is anyone here going to say you [are]

going to side with the police officer just based on his profession? 

... Now, as [Appellant] sits here, he is innocent. He is innocent 

until proven guilty.

***

Now, knowing that this is a sex case, remember that I just said 

that those are allegations, is there anything about those facts as 

I stated them to you that would prevent you from being fair and 

impartial, and again, they are just allegations at this point.

N.T., 8/15/17, at 4, 4-5, 6, 51-52, 57-58.

Also, the trial court’s comments are interspersed throughout voir dire. 

For example, the trial court advised the prospective jurors:
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Basically we all have our life experience and everybody comes into 

a courtroom with different life experiences, the court reporter, 

defense attorney and the juries. But it is important ... that you 

listen to the evidence and decide the case based on the evidence 

and the law.

So my question is: Can you put aside any bias or prejudice you 

may have and go through this with a clear mind and make a 

decision based on the evidence?

Id. at 33.

Notably, in addressing the prospective jurors, Appellant’s counsel

stated:

Ladies and gentlemen of the jury, my name is [Defense Counsel]. 

... As indicated, I represent the accused in this case, [Appellant]. 

[The prosecutor] did me a great favor by asking many of 

the same questions I had intended to ask you.

I have just a few questions for you. Identically to [the 

prosecutor], my questions ...

[Defense counsel proceeds to question prospective jurors]

Id. at 68-69 (emphasis added).

Appellant’s counsel objected to a prospective juror who indicated he was 

a corrections officer and knew Appellant. Id. at 23. The parties agreed to 

excusing numerous prospective jurors for cause, including the corrections 

officer who knew Appellant. Id. at 76-81. The trial court then asked the 

parties about “the two self-employed individuals, 11 and 12? Do you agree 

to those two?” Id. at 81. Appellant’s counsel replied:

Not number 11[;] 12 is okay. I will not agree to number 11[;]

12, I will agree on. And I only had one other one, Judge[,] ... his

brother-in-law was a ... detective and he said he would probably 

side with the prosecution.
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Id. Consequently, two additional individuals were stricken from the jury pool.

The PCRA court has noted “appellate counsel’s failure [in the concise 

statement] to identify which statement(s) Appellant asserts should have been 

challenged.” PCO at 6. Nonetheless, the PCRA court “address[ed] the three 

[statements] that most likely fall within the ambit of the instant appeal.” Id. 

Consistent with the record and the law, the PCRA court concluded it was

unable to discern any errors in the Commonwealth’s comments 

during jury selection which would amount to prejudice in this

matter sufficient to establish ineffective assistance of counsel.

The transcript reflects that the Commonwealth’s questions stated 

the law in a manner that was accurate and in a way designed to 

verify that any venireperson would be willing to follow the law. 

Moreover, jurors are presumed to follow the instructions of the 

court. Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011). As 

a result, the transcript does not contain any statement by the 

Commonwealth to which trial counsel should have objected. Prior 

PCRA counsel did not, therefore, have a basis upon which to seek 

relief under this theory and Appellant is unable to establish any 

ineffectiveness on PCRA counsel’s part for the same reason.

Id. at 8.

The record supports the PCRA court’s denial of relief. See, e.g., 

Commonwealth v. Benner, 147 A.3d 915, 921 (Pa. Super. 2016) 

(reiterating that counsel “cannot be deemed ineffective in failing to pursue a 

meritless claim”).

Order affirmed.
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Date: 6/4/2024