J-S50026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

 v.

JEAN C. PAGAN-ROSARIO, 

 Appellant 

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

: 

: 

: 

: 

: 

: 

: No. 220 WDA 2014 

Appeal from the PCRA Order Entered November 13, 2013, 

In the Court of Common Pleas of Erie County, 

Criminal Division, at No. CP-25-CR-0003329-2011. 

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

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 06, 2014 

 Appellant, Jean C. Pagan-Rosario, appeals from the order denying his 

second timely petition for relief filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm. 

 Appellant was charged with various drug-related offenses, including 

felony possession with intent to deliver a controlled substance (“PWID”) and 

three misdemeanors. Pursuant to a plea agreement, the misdemeanor 

charges were dropped and Appellant pled guilty to PWID (heroin). Appellant 

was sentenced on November 20, 2012 to a mandatory minimum term of 
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sixty to one-hundred-twenty months of imprisonment.1 No post-sentence 

motions were filed and no direct appeal followed. 

 An untimely motion for modification of sentence, nunc pro tunc, was 

filed by Appellant, pro se, on January 17, 2013.2 The trial court treated the 

motion as a PCRA petition and appointed the office of the public defender to 

represent Appellant. In that PCRA petition, Appellant alleged that 1) trial 

counsel was ineffective for failing to file a post-sentence motion or direct 

appeal despite Appellant’s request and 2) Appellant’s sentence, of a 

mandatory minimum of five years of incarceration and a $30,000.00 

maximum fine, was improper as he was subject only to a three-year 

mandatory minimum and a $15,000.00 fine. 

 On April 22, 2013, appointed PCRA counsel filed a Turner/Finley3

“no-merit” letter, complied with the additional requirements of 

Turner/Finley and filed a petition to withdraw as counsel. In addressing 

 

1 See 42 Pa.C.S. § 9712.1 (“Sentences for certain drug offenses committed 

with firearms”). 

2

Pursuant to the prisoner mailbox rule, Appellant’s pro se PCRA petition is 

deemed filed on January 17, 2013, the date it was placed in the hands of 

prison authorities for mailing. See Commonwealth v. Crawford, 17 A.3d 

1279, 1281 (Pa. Super. 2011) (“Under the prisoner mailbox rule, we deem a 

pro se document filed on the date it is placed in the hands of prison 

authorities for mailing.”).

3 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 PCRA issues, the PCRA court determined there was no merit to 

Appellant’s claims that counsel was ineffective for failure to file postsentence motions or a direct appeal or that counsel was ineffective for failing 

to explain to Appellant why he faced a five-year mandatory minimum 

sentence. Furthermore, the court concluded that Appellant’s sentence was 

not illegal. Appointed PCRA counsel’s petition to withdraw was also granted. 

On May 3, 2013, the PCRA court filed an opinion and notice of its intent to 

dismiss the petition, and on May 28, 2013, issued a final order denying the 

Appellant PCRA relief. No appeal was filed. On October 15, 2013, Appellant, 

pro se, filed his second PCRA petition which is the basis of this appeal.4

 

 The PCRA court issued a notice of intent to dismiss the PCRA petition 

on October 16, 2013. On October 23, 2013, Appellant filed an amended 

PCRA petition, prepared by privately-retained counsel. On November 13, 

2013, the PCRA court denied Appellant’s pro se and amended petitions. 

Appellant filed his appeal on December 12, 2013. 

 Appellant raises the following issues on appeal, which we reproduce, 

verbatim, as follows: 

 

4 Appellant’s judgment of sentence became final on December 20, 2012, 

when his time for filing a direct appeal had expired. 42 Pa.C.S. 

§ 9545(b)(3); Pa.R.A.P. 903(a). As such, Appellant had until December 20, 

2013, to file any PCRA petition, including a second or subsequent petition. 

42 Pa.C.S. § 9545(b)(1). Therefore, Appellant’s petition filed on October 15, 

2013 was timely. 
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(a) Whether the Trial Court committed reversible error when it 

denied the Petitioner’s (Defendant’s/Appellant’s) pro se petition 

and the Amended Petition of October 15, 2013. 

(b) Whether the Defendant’s guilty plea was knowingly, 

voluntarily and intelligently given; if not, whether this is a basis 

to set aside the guilty plea. 

(c) Whether Attorney E. Hackwelder’s representation of

Defendant was ineffective for failing to conduct the type of 

discovery which Brady v. Maryland 373 U.S. 83 (1963) requires 

as to the disclosure of exculpatory and impeachment evidence; 

the failure of Attorney Hackwelder to motion to suppress 

evidence within thirty (30) days after arraignment; the failure of 

defense counsel to challenge the manner in which he was taken 

into custody and narcotics and contraband was seized by law 

enforcement without compliance with the Miranda warnings; and 

the failure by defense counsel to challenge the circumstances by 

which it was determined that he was in the possession of a 

handgun, as well as failing to challenge a purported confession 

and for failing to file a motion challenging the weight of the 

evidence. 

(d) Whether the plea colloquy conducted by the trial court met 

the requisite standards required for a knowing, voluntary and 

intelligent plea. 

(e) Whether the Petitioner’s constitutional rights were violated in 

that he was denied a fair trial and was prejudiced. 

Appellant’s Brief at 2-3. 

When reviewing the propriety of an order granting or denying PCRA 

relief, this Court is limited to determining whether the evidence of record 

supports the determination of the PCRA court and whether the ruling is free 

of legal error. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 

2007). Great deference is granted to the findings of the PCRA court, and 
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these findings will not be disturbed unless they have no support in the 

certified record. Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. 

Super. 2003). 

Because this is a serial petition for post-conviction relief, Appellant 

must meet a more stringent standard. In Commonwealth v. Lawson, 549 

A.2d 107, 112 (Pa. 1988), our Supreme Court held that serial postconviction petitions, such as the present one, are also subject to a 

miscarriage-of-justice standard. Lawson, 549 A.2d at 112. 

A second or any subsequent post-conviction request for relief 

“will not be entertained unless a strong prima facie showing is 

offered to demonstrate that a miscarriage of justice may have 

occurred.” Commonwealth v. Carpenter, 555 Pa. 434, 725 

A.2d 154, 160 (1999) (quoting Commonwealth v. Lawson, 

519 Pa. 504, 549 A.2d 107, 112 (1988)). “A petitioner makes a 

prima facie showing if he ‘demonstrates that either the 

proceedings which resulted in his conviction were so unfair that a 

miscarriage of justice occurred which no civilized society could 

tolerate, or that he was innocent of the crimes for which he was 

charged.’” Id. (quoting Commonwealth v. Morales, 549 Pa. 

400, 701 A.2d 516, 520-21 (1997)); see also Commonwealth 

v. Palmer, 814 A.2d 700, 709 (Pa. Super. 2002). 

Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003).5

 

With this standard in mind, we examine Appellant’s many allegations. 

On appeal, Appellant asserts that trial counsel was ineffective: 

for failing to conduct the type of discovery which Brady v. 

Maryland 373 U.S. 83 (1963) requires as to the disclosure of 

 

5

 In Commonwealth v. Beasley, 967 A.2d 376, 393-394 (Pa. 2009), our 

Supreme Court restated Lawson and declined to change it. 
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exculpatory and impeachment evidence; the failure of Attorney 

Hackwelder to motion to suppress evidence within thirty (30) 

days after arraignment; the failure of defense counsel to 

challenge the manner in which [Appellant] was taken into 

custody and narcotics and contraband [were] seized by law 

enforcement without compliance with the Miranda warnings; and 

the failure by defense counsel to challenge the circumstances by 

which it was determined that he was in the possession of a 

handgun, as well as failing to challenge a purported confession 

and for failing to file a motion challenging the weight of the 

evidence. 

Appellant’s Brief at 2. Appellant further maintains that his guilty plea was 

not knowing, voluntary and intelligent and that the on-the-record colloquy 

was insufficient. Id. at 7-8.6

 

Appellant’s eligibility for relief is governed by section 9543 of the 

PCRA, which lists four factors that must be met before such relief may be 

granted. The third factor is stated as follows: 

§ 9543. Eligibility for relief 

(a) General rule.--To be eligible for relief under this 

subchapter, the petitioner must plead and prove by a 

preponderance of the evidence all of the following: 

* * * 

 

(3) That the allegation of error has not been 

previously litigated or waived. 

 

6 We note that, although Appellant presents five issues in his statement of 

questions involved, the argument portion of his brief is divided into four 

sections and the argument sections do not correspond to the issues as 

designated. 
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42 Pa.C.S. § 9543(a)(3). The PCRA defines an allegation of error previously 

litigated or waived as follows: 

§ 9544. Previous litigation and waiver 

(a) Previous litigation.--For purposes of this subchapter, an 

issue has been previously litigated if: 

* * * 

(2) the highest appellate court in which the 

petitioner could have had review as a matter of right

has ruled on the merits of the issue; or 

(3) it has been raised and decided in a proceeding 

collaterally attacking the conviction or sentence. 

* * * 

(b) Issues waived.--For purposes of this subchapter, an issue 

is waived if the petitioner could have raised it but failed to do so 

before trial, at trial, . . . , on appeal or in a prior state 

postconviction proceeding. 

42 Pa.C.S. § 9544. 

 In the case sub judice, Appellant could have raised all of the issues 

presented herein in his prior PCRA petition. 42 Pa.C.S. § 9544(b). 

Accordingly, the issues have been waived unless Appellant can establish one 

of the exceptions under Lawson. 

 As previously noted, in a second or subsequent post-conviction 

proceeding, all issues are waived except those which implicate a defendant’s 

innocence or which raise the possibility that the proceedings resulting in 

conviction were so unfair that a miscarriage of justice which no civilized 
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society can tolerate occurred. Lawson, 549 A.2d at 112. A third exception 

to the waiver provisions exists: issues involving the legality of a sentence, 

since those types of issues never may be waived. Commonwealth v. 

Williams, 660 A.2d 614, 618 (Pa. Super. 1995). 

All but one of Appellant’s claims, that his guilty plea was not knowing, 

voluntary and intelligent, which will be discussed subsequently, fail to meet 

these standards. These allegations neither relate to Appellant’s innocence 

nor do they raise the possibility that the proceedings were so unfair that his 

conviction resulted from a miscarriage of justice which no civilized society 

could tolerate.7

 Additionally, Appellant does not raise an allegation of 

illegality of sentence.8 Therefore, these claims will not be entertained 

herein. 

 

7

In Commonwealth v. Dukeman, 605 A.2d 418, 421 (Pa. Super. 1992), 

this Court concluded that appellant’s claim that his rights pursuant to 

Miranda v. Arizona, 384 U.S. 436, (1966), were violated was not an issue 

relating to his innocence; thus, it was waived. Additionally, a “miscarriage 

of justice” will not be found where an appellant asserts general due process 

and ineffective assistance of counsel claims. See Commonwealth v. 

Laskaris, 595 A.2d 1229, 1231-1232 (Pa. Super. 1991) (PCRA court found 

no miscarriage of justice entitling appellant to PCRA relief in a due process 

claim.); Commonwealth v. Szuchon, 633 A.2d 1098, 1099-1100 (Pa. 

1993) (no miscarriage of justice found entitling appellant to PCRA relief 

where appellant made claims of ineffective assistance of counsel). 

8

 As noted above, we recognize that we may nonetheless address a legality 

of sentence issue in a timely PCRA petition. In this regard, we are mindful 

of the holding of the United States Supreme Court in Alleyne v. United 

States, 133 S.Ct. 2151 (U.S. 2013), that “[a]ny fact that, by law, increases 

the penalty for a crime is an ‘element’ that must be submitted to the jury 
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However, Appellant’s allegation that his plea was not knowingly, 

voluntarily and intelligently entered, does raise a colorable issue relating to 

his innocence and will be entertained on the merits. Nonetheless, we 

conclude that it is refuted by the record. 

“A valid plea colloquy must delve into six areas: 1) the nature of the 

charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the 

presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s 

power to deviate from any recommended sentence.” Commonwealth v. 

Morrison, 878 A.2d 102, 107 (Pa. Super. 2005); Pa.R.Crim.P. 590, 

Comment. Additionally, a written plea colloquy that is read, completed and 

signed by the defendant and made part of the record may serve as the 

defendant’s plea colloquy when supplemented by an oral, on-the-record 

examination. Morrison, 878 A.2d at 108 (citing Comment to Pa.R.Crim.P. 

 

and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155. This 

Court has invalidated mandatory minimum sentences imposed pursuant to 

42 Pa.C.S. § 9712.1 based upon Alleyne’s mandate. See Commonwealth 

v. Watley, 81 A.3d 108 (Pa. Super. 2013) (en banc); Commonwealth v. 

Munday, 78 A.3d 661 (Pa. Super. 2013). Nevertheless, we find that the 

holding in Alleyne does not affect the sentence in the present case because 

Appellant entered a guilty plea and the sentence imposed was negotiated as 

part of the plea agreement. Therefore, Appellant’s sentence does not violate 

the dictates of Alleyne. See Commonwealth v. Tobin, 89 A.3d 663, 665 

n.1 (Pa. Super. 2014) (stating that because defendant pled guilty to 

possession with intent to deliver marijuana, and admitted to possessing 

twenty marijuana plants, mandatory minimum sentence imposed pursuant 

to 18 Pa.C.S. § 7508 did not violate dictates of Alleyne). Moreover, 

Alleyne was decided on June 17, 2013, almost six months after Appellant’s 

sentence became final. 
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590). “[A] plea of guilty will not be deemed invalid if the circumstances 

surrounding the entry of the plea disclose that the defendant had a full 

understanding of the nature and consequences of his plea and that he 

knowingly and voluntarily decided to enter the plea.” Commonwealth v. 

Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (quoting 

Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa. Super. 1993)). “Our 

law presumes that a defendant who enters a guilty plea was aware of what 

he was doing. He bears the burden of proving otherwise.” Commonwealth 

v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (internal citation omitted). 

The entry of a negotiated plea is a “strong indicator” of the voluntariness of 

the plea. Commonwealth v. Lewis, 791 A.2d 1227, 1235 (Pa. Super. 

2002). 

 In this case, both a written plea colloquy and an oral on-the-record 

colloquy took place. Both colloquies complied with the requirements 

outlined above. Moreover, Appellant has not carried the burden of proving 

that his plea was not knowingly, intelligently and voluntarily entered. 

Indeed, the fact that Appellant entered his plea in response to a negotiated 

plea agreement strongly indicates that the plea was voluntary. Lewis, 791 

A.2d at 1235. As such, we conclude that this claim lacks merit. 
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The PCRA court’s determinations are supported by the record. Thus, 

we conclude that the PCRA court did not err in denying Appellant’s petition 

for relief. 

 Order affirmed. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/6/2014