J-S54019-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

DANIEL ANTHONY KLOSS 

 Appellant No. 1745 WDA 2015 

Appeal from the PCRA Order October 13, 2015 

In the Court of Common Pleas of McKean County 

Criminal Division at No(s): CP-42-CR-0000322-2014 

BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J. 

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 19, 2016 

 Daniel Anthony Kloss appeals from the order entered October 13, 

2015, denying his first petition for collateral relief filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9545. Kloss seeks relief 

from the judgment of sentence of a term of 42 months to nine years’ 

imprisonment, imposed following his guilty plea to one count of possession 

with intent to deliver controlled substances (“PWID”). See 35 P.S. § 780-

113(a)(30). On appeal, he challenges the ineffective assistance of plea 

counsel. For the reasons below, we affirm. 

 The facts and procedural history underlying this appeal are as follows. 

On January 22, 2014, the McKean County Drug Task Force, working with a 

confidential informant, set up a controlled purchase of Dilaudid and 

morphine tablets from Kloss in exchange for $1,550.00. See Guilty Plea 
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Agreement, 6/27/2014, at 3. Following the exchange, Kloss was arrested 

and charged with PWID, possession of controlled substances, and criminal 

use of a communication facility.1 Thereafter, on June 27, 2014, Kloss 

entered a guilty plea to one count of PWID. In exchange for the plea, the 

Commonwealth agreed that Kloss’s sentence would be “no more than” a 

term of 42 months’ to nine years’ imprisonment. Guilty Plea Agreement, 

6/27/2014, at 1. On September 22, 2014, the trial court imposed a 

standard range sentence of 42 months’ to 9 years’ imprisonment, and 

indicated Kloss was RRRI2 eligible after serving 311⁄2 months’ imprisonment. 

No direct appeal was filed. Thereafter, on November 13, 2014, the trial 

court amended its prior sentencing order to reflect that Kloss was not RRRI 

eligible until he served 35 months’ imprisonment.3 

____________________________________________ 

1 See 35 P.S. §§ 780-113(a)(30) and (a)(16), and 18 Pa.C.S. § 7512(a), 

respectively. 

2

 Recidivism Risk Reduction Incentive, 61 Pa.C.S. §§ 4501-4512. 

3

 Although Kloss challenged the belated modification of his sentence in his 

PCRA petition, he has not repeated that challenge on appeal. Nevertheless, 

we note the original sentence contained a clerical error. See N.T., 

10/12/2015, at 72; 61 Pa.C.S. § 4505(c)(2) (mandating that, to be eligible 

for RRRI, a defendant must serve five-sixths of his minimum sentence when 

that sentence is greater than three years). Therefore, the court had the 

authority to correct the sentence outside of the usual 30-day time limitation. 

See 42 Pa.C.S. § 5505; Commonwealth v. Walters, 814 A.2d 253, 256 

(Pa. Super. 2002) (noting trial court has the power to correct “patent and 

obvious” mistakes after 30-day appeal period), appeal denied, 831 A.2d 599 

(Pa. 2003). 
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 On December 5, 2014, Kloss filed a timely pro se PCRA petition. 

Although the PCRA court appointed counsel, Kloss later retained Robert E. 

Draudt, Esq., to litigate his PCRA claims. On September 8, 2015, counsel 

filed an amended petition, asserting the ineffectiveness of plea counsel. At 

the conclusion of an evidentiary hearing on October 12, 2015, the PCRA 

court denied Kloss’s petition. This timely appeal followed.4 

 On appeal, Kloss argues the PCRA court erred when it denied his 

request for relief based upon plea counsel’s ineffectiveness. Specifically, 

Kloss contends plea counsel failed to: (1) file a pretrial motion to suppress 

both a statement he gave to police and evidence retrieved during a search of 

his car; (2) contact potential witnesses; (3) meet with Kloss and adequately 

prepare for trial; and (4) inform Kloss of his post-sentence rights. Kloss also 

asserts counsel induced him to enter an unknowing plea based on counsel’s 

assurance that he would be sentenced to a term of home confinement. See

Kloss’s Brief at 6. 

When reviewing an order dismissing a PCRA petition, we must 

determine whether the PCRA court’s findings of fact are supported by the 

record, and whether its legal conclusions are free from error. 

____________________________________________ 

4

 On November 10, 2015, the PCRA court directed Kloss to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

After recieving an extension of time, Kloss complied with the court’s 

directive and filed a concise statement on January 6, 2016. 
J-S54019-16 

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Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference 

is granted to the findings of the PCRA court, and these findings will not be 

disturbed unless they have no support in the certified record.” 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation 

omitted). Moreover, “[t]he PCRA court’s credibility determinations, when 

supported by the record, are binding on this Court.” Commonwealth v. 

Spotz, 18 A.3d 244, 259 (Pa. 2011). 

Where, as here, the petitioner alleges the ineffectiveness of prior 

counsel in conjunction with a guilty plea, our review is as follows: 

To prevail on a claim alleging counsel’s ineffectiveness 

under the PCRA, Appellant must demonstrate (1) that the 

underlying claim is of arguable merit; (2) that counsel’s 

course of conduct was without a reasonable basis designed 

to effectuate his client’s interest; and (3) that he was 

prejudiced by counsel’s ineffectiveness, i.e. there is a 

reasonable probability that but for the act or omission in 

question the outcome of the proceedings would have been 

different. 

It is clear that a criminal defendant’s right to effective 

counsel extends to the plea process, as well as during trial. 

However, [a]llegations of ineffectiveness in connection 

with the entry of a guilty plea will serve as a basis for relief 

only if the ineffectiveness caused the defendant to enter 

an involuntary or unknowing plea. Where the defendant 

enters his plea on the advice of counsel, the voluntariness 

of the plea depends on whether counsel’s advice was

within the range of competence demanded of attorneys in 

criminal cases. 

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) 

(citations, quotation, and quotation marks omitted). “[T]he law 

does not require that [the defendant] be pleased with the 

outcome of his decision to enter a plea of guilty: All that is 

required is that [his] decision to plead guilty be knowingly, 
J-S54019-16 

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voluntarily, and intelligently made.” [Commonwealth v.]

Anderson, 995 A.2d [1184,] 1192 [Pa. Super. 2010] (citations, 

quotation, and quotation marks omitted). 

Commonwealth v. Willis, 68 A.3d 997, 1001-1002 (Pa. Super. 2013). 

When considering the voluntariness of a defendant’s guilty plea, 

[t]he longstanding rule of Pennsylvania law is that a defendant 

may not challenge his guilty plea by asserting that [she] lied 

while under oath, even if [she] avers that counsel induced the 

lies. A person who elects to plead guilty is bound by the

statements [she] makes in open court while under oath and 

[she] may not later assert grounds for withdrawing the plea 

which contradict the statements [she] made at [her] plea 

colloquy. 

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003). See 

also Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011). 

 Upon our review of the certified record, the PCRA hearing transcript, 

the parties’ briefs, and the applicable case law, we find the PCRA court 

thoroughly addressed and properly disposed of Kloss’s claims on appeal in 

its opinion. See PCRA Court Opinion, 2/8/2016, at 2-9 (finding (1) plea 

counsel credibly explained that she did not file a pretrial suppression motion 

because Kloss signed both a Miranda5 waiver and a consent to search his 

vehicle, and Kloss’s claim that the forms were signed after the police 

questioned him and searched his car “just doesn’t make sense[;]” (2) Kloss 

failed to demonstrate how the absent witnesses’ testimony would have been 

beneficial to his defense; (3) counsel had a sufficient number of contacts 

____________________________________________ 

5 Miranda v. Arizona, 384 U.S. 436 (1966). 
J-S54019-16 

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with Kloss, based on counsel’s credible testimony “that she had met several 

times with [Kloss] in person and had exchanged emails, letters and 

telephone calls with [him];” (4) Kloss’s written and oral plea colloquies 

demonstrated his plea was knowingly and voluntarily entered; and (5) the 

court informed Kloss of his post-sentence rights during the sentencing 

hearing). Accordingly, we adopt the PCRA court’s opinion as dispositive. 

 Because Kloss has failed to demonstrate that plea counsel was 

ineffective, or that he is otherwise entitled to post-conviction relief, we 

affirm the order of the PCRA court.6 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

DATE: 9/19/2016 

____________________________________________ 

6

 We note the certified record does not include the transcripts from either 

Kloss’s guilty plea hearing or his sentencing hearing. Moreover, upon our 

inquiry regarding the missing testimony, we were informed by the trial court 

that PCRA counsel ordered only the transcription of the PCRA hearing 

testimony. Therefore, to the extent any of Kloss’s claims are dependent 

upon the other transcripts, they are waived. It is well-established that it is 

the appellant’s obligation to “identify and order” those transcripts necessary 

to prosecute his appeal. Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa. 

2011). 
--:---··\ 

((_') 

due to ineffectiveness. 

request for PCRA relief and Petitioner was unconstitutionally deprived of his right to counsel 

his post-sentence rights by his attorney; and, 6) the court erred when it denied Petitioner's 

unlawfully induced and not voluntarily and understandably made; 5) Petitioner was never told of 

potential witnesses; 3) Trial counsel failed to meet with the Petitioner; 4) Petitioner's plea was 

the Petitioner failed to file a Motion to Suppress Evidence; 2) Trial counsel failed to contact 

/ 

The Petitioner raises the following issues in his 1925(a) Statement: 1) Trial counsel for 

pursuant to Pa. R.A.P. 1925(a). 

pursuant to Pa. R.A.P. 1925(b) on January 11, 2016 after an extension. This opinion is written 

Notice was followed by the filing of a concise statement of matters complained of on appeal 

Petitioner's PCRA. The Defendant filed his Notice of Appeal on November 2, 2015, and said 

appeals from the Court's Order dated October 12, 2015 in which the Court dismissed the 

timely Petition for Post-Collateral Relief ("PCRA") on December 5, 2014. The Petitioner 

Cosmetic Act. The Appellant did not seek a direct appeal of this sentence. Petitioner filed a 

not more than nine years at Count 1 for Violation of the Controlled Substance, Drug Device, and 

C) 

The Defendant-Petitioner was sentenced on September 22, 2014 for forty-two months oo> 

RULE 1925(a) STATEMENT 

Dated: February g: , 2016 

Defendant. 322 CR2014 

DANIEL A. KLOSS, CIUMINAL DIVISION 

vs. McKEAN COUNTY, PENNSYLVANIA 

COMMONWEAL TH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF 

Circulated 08/26/2016 02:01 PM
2 

Q -- with regards to the Miranda Warnings - 

A Uh-huh (affirmative). 

Q And you said that you had discussed with him suppression -- 

Lehman then spoke about what she talked to the Petitioner about regarding suppression: 

PCRA Hearing, October, 12 2015, Page 11, Line 22 through Page 12, Line 10. Attorney 

A Well, he has a Miranda waiver in his file, in his discovery and there was a consent to 

search his vehicle. After discussing him what happened on that day, it didn't seem to 

me that there was any discrepancies, either in the paperwork or in what had happened, 

given the facts of the case. If I thought that anything was illegally searched, or even 

had the hint of an illegal search, I -- I would have done that. At that point, after 

reviewing everything, I didn't think it was feasible. It'd be more money for him, 

obviously, more time. But I wouldn't think, in any event, that it would be -- and we 

discussed it. We talked about it. His strategy, at that point, was to try to get a IPP, 

given his medical condition. 

Q And why did you not do so? 

A Yes. 

Q And going forward with Mr. Kloss, did you consider filing an omnibus pretrial motion 

in this case? 

attorney, Qiana Lehman, testified: 

Melson, 556 A.2d 836, 839 (Pa. Super. 1989). At the PCRA hearing, the Petitioner's former 

reasonable probability the verdict would have been more favorable.';"; Citing Commonwealth v. 

pursuing the suppression claim and that if the evidence had been suppressed, there is a 

suppression of evidence, 'the defendant must establish that there was no reasonable basis for not 

states, "[ w]here the ineffectiveness claim is based on the failure of counsel to move for 

matter. In Commonwealth v. Arch, 654 A.2d 1141, 1143 (Pa. Super. 1995), the Superior Court 

Petitioner alleges that his trial counsel failed to file a Motion to Suppress Evidence in this 

1) Trial counsel for the Petitioner failed to file a Motion to Suppress Evidence 

Discussion: 
3 

A He had told me that he contacted a DEA agent on Cleveland, and I was never given a 

name so I can't remember who I called, because it was a long time ago. And I checked 

my -- my notes to see if I had a note who I called, and I couldn't recall who I called. 

Q Okay. And relating to a couple things that were raised by the Petitioner. Did you 

examine any claims about him contacting the DEA? 

doctor's office was being raided in Cleveland, Ohio. Attorney Lehman testified: 

1134 (Pa. 2008). The Petitioner has only shown that he had spoken to two DEA agents when his 

been beneficial under the circumstances of the case." Commonwealth v. Gibson, 951 A.2d 1110, 

2009). "Moreover, Appellant must show how the uncalled witnesses' testimony would have 

because of the absence of the testimony. Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 

appellant must establish that the failure to call the witness denied the appellant a fair trial 

In order to establish that counsel was ineffective for failing to call a particular witness, an 

2) Trial counsel failed to contact potential witnesses 

a written consent as to a Miranda waiver. 

former counsel did not believe that a suppression motion was warranted as the Petitioner signed 

PCRA Hearing, October, 12 2015, Page 18, Line 22 through Page 19, Line 18. The Petitioner's 

A Yes, it was a written consent. And I made sure that they were completed. I discussed 

them with Mr. Kloss. He did not ask for an attorney during that time period, as far as 

he told me. And I said any statements that you made, you know, the evidence was 

there, besides the statement so we really were -- were looking at the fruit of an illegal 

search type of suppression. And I could not find a basis to file one. If I could have 

even smelled one I would have tried. 

Q Was that a written consent? 

A I don't. I recall that the discovery included the Miranda waiver. It also -- and -- and it 

also had a consent to search the car. 

Q -- with his -- in regards to his statement and also him giving permission for a search of 

his vehicle? Okay. And let's -- so let's look at the Miranda Warnings. Do you recall 

when those were given? 

A Uh-huh (affirmative). 
4 

Q Okay. And so in -- at court that would have been once for the plea and once for the 

sentencing? 

A In person, yes. Just those times. 

Q I see. All right. So it could have been once, but probably twice in your office, you 

believe. And then you said -- and then maybe twice here at court? 

A No. I do have a reading of a bunch of different times that we spoke on the phone and 

things like that, but it's not a complete list, it was done for billing purposes. 

Q Do you have your schedule book with you? Can you check this? 

A I would think -- I'm pretty sure it was twice. But could it have been? Is there a 

possibility? Absolutely there's a possibility. But I believe it was more -- it was 

two. 

Q Could it have been once in your office? 

A Uh-huh (affirmative). 

Q The times in your office -- when you say twice here in court, well, let's -- let me 

rephrase, Your Honor. You say maybe twice in your office? 

A rd say maybe four times. Maybe twice in my office and twice here in court. 

Q Yes. 

A Physically in person? 

Q Ms. Lehman, how many times did you meet with the Defendant, actually meet him? 

Lehman testified about how many times she met with the Petitioner: 

Petitioner alleges that Attorney Lehman failed to meet with the Petitioner. Attorney 

3) Trial counsel failed to meet with the Petitioner 

agents' testimony would have been beneficial under the circumstances of the case. 

establish that the failure to contact or call witnesses denied him a fair trial and that the DEA 

PCRA Hearing, October, 12 2015, Page 11, Line 3 through Line 12. The Petitioner did not 

But I did make a call and asked if they were working with anyone named Daniel Kloss, 

and they didn't know who it was. 
5 

times. 

counsel and the court found that Attorney Lehman met with the Petitioner a sufficient number of 

Lehman did perform is important when the court evaluates any claim of ineffective assistance of 

exchanged emails, letters, and telephone calls with the Petitioner. Looking at what Attorney 

Attorney Lehman credible that she had met several times with the Petitioner in person and had 

trial strategy." Johnson, 51 at 244. Similar to Johnson, the court found the testimony of 

PCRA Court noted, Attorney Gallagher's contact with Appellant allowed him to present a cogent 

evaluating the substantive impact of the consultations Attorney Gallagher did perform. As the 

ineffectiveness. We further decline to read Brooks so rigidly that we are precluded from 

Appellant that the length and frequency of the consultations alone can support a finding of 

"[wjhile we acknowledge that more contact may have been advisable, we disagree with 

v. Johnson, 51 A.3d 237, 244 (Pa. Super. 2012), the Pennsylvania Super Court reasoned, 

PCRA Hearing, October, 12 2015, Page 17, Line 7 through Page 18, Line 18. In Commonwealth 

A So we did the -- 90 to 95 percent of our communication through email, letters and 

telephone calls. 

Q Okay. 

A He's from -- yeah, he's from Camp Hill and my office is in Wilkes-Barre. 

Q Out on bail? Okay. And you stated that you guys lived far apart and - 

A He was out. 

Q Now was Mr. Kloss in jail or was he out on bail at the -- during this period of time? 

A Yes, sir. 
6 

record. The Defendant knowingly and voluntarily entered into the plea agreement. 

presented with the written guilty plea, the court then gave a colloquy with the Defendant on the 

PCRA Hearing, October 12, 2015, Page 14, Line 9 through Page 15, Line 4. After the court was 

A Yeah. As you could see, he filled out all of them himself. And he answered yes to 

each one. I went over all of them with him. I asked him he had any questions. He 

didn't, He did ask me -- I know prior to the guilty plea we did discuss when -- if you 

could withdraw his plea and what would happen ifhe plea -- regard-- these are my 

specific remembrances. What -- could he withdraw his plea and what would happen 

ifhe pled regarding his appeal rights. So I made certain to tell him that once you 

plea, your appeal rights are much -- much more constrained than they are if you have 

a trial. And that they're basically --does the judge have jurisdiction and was the 

sentence illegal. So we discussed that before the plea. And then we went over the rest 

of these items and the paper was given to the judge and went over with in front of the 

judge at the time of the plea. 

Q And you went through all of these numbered statements with him? 

A Just prior to his guilty plea. 

Q And when did you go through this document with Mr. Kloss? 

Plea Colloquy: 

the Petitioner answered in the affirmative. Attorney Lehman testified about the Written Guilty 

Specifically, question #32 states, "Are you entering the plea of guilty of your own free will?" and 

Plea Colloquy and at the bottom of each page of the colloquy, the Petitioner initialed it "D.A.K." 

understandably made. Commonwealth's Exhibit Bis a copy of the Petitioner's Written Guilty 

Petitioner alleges that his plea was unlawfully induced and not voluntarily and 

4) Petitioner's plea was unlawfully induced and not voluntarily and understandably made 
7 

(I) A violation of the Constitution of this Commonwealth or the Constitution or laws of the 

United States which, in the circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken 

place; 

evidence his conviction or sentence arose from one or more of the following: 

eligible for post conviction relief, a defendant must plead and prove by a preponderance of the 

crime in Pennsylvania to obtain collateral relief in state courts. 42 Pa. C.S.A. §9542. To be 

The Post Conviction Relief Act provides the only means for a person convicted of a 

6) The court erred in denying Petitioner's request for PCRA relief 

that he understood his post-sentence rights on the record. 

Sentencing reiterated to the Defendant his post-sentence rights. The Defendant acknowledged 

PCRA Hearing, October 12, 2015, Page 16, Line 10 through Line 25. The court at 

A He has a right to appeal in 30 days, right to reconsideration in ten. 

Q -- was that also -- okay. 

A Thirty days. 

Q And I'm sorry, I just want to reiterate, what did you tell him with his right to appeal 

his sentence -- 

A After sentencing I explained his post-sentence rights to him right here, outside this 

courtroom, in that little area where the stairwell is, there's like a little landing at the 

top. Sheriffs took him in there with me and we talked about, you know, his ten days 

for right of reconsideration, 30 days for appeal. And he was concerned about his - 

getting his book. He had a leather bound book in his car to somebody getting his car, 

it was a rental car that he had, returning that, so we discussed those things as 

well. 

rights: 

rights. At the PCRA hearing, Attorney Lehman testified about the Petitioner's post-sentence 

The Petitioner alleges that Attorney Lehman never told him about this post-sentence 

5) Petitioner was never told of his post-sentence rights by his attorney 
8 

THE COURT: Okay. Well, the Court has heard the testimony and of course seen the 

exhibits, seen the - heard the testimony of the Defendant. And the testimony of the 

Defendant really is in contradiction to what the written exhibits show. First of all, he had 

a written guilty plea colloquy, he wrote, after each sentence, yes, and initialed the pages. 

And yet he's trying to tell us that he didn't understand what was going on, he didn't 

understand his post-sentence rights. Well, they're all in here. 

And so he can't very well say that he didn't understand them. Also, the Court always 

gives the colloquy, which I did at that sentencing and explained his post-sentence rights 

to him, as I've always done, just as I did this morning on some sentences. 

record: 

Paragraphs 1 through 5. The court stated its reasons for denying the Petitioner's PCRA on the 

or sentence arose from any of the above sections of 42 Pa.C.S.A. § 9543(a)(2) as explained in 

The Petitioner did not prove by a preponderance of the evidence that either his conviction 

support in the certified record. Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003). 

the findings of the PCRA court, and these findings will not be disturbed unless they have no 

Commonwealth v. Thomas, 44 A.3d 12, 16 (Pa. 2012). Moreover, great deference is granted to 

to litigate the issue was not the result of any rational, strategic, or tactical decision by counsel. 

Post Conviction Relief Act, his claims have not been previously litigated or waived, and failing 

evidence his conviction or sentence resulted from one or more of the errors enumerated in the 

To be entitled to postconviction relief, defendant must prove by a preponderance of the 

42 Pa. C.S.A. § 9543(a)(2). 

(2) Ineffective assistance of counsel which, in the circumstances of the particular case, so 

undermined the truth-determining process that no reliable adjudication of guilt or 

innocence could have taken place; 

(3) A plea of guilty unlawfully induced where the circumstances make it likely that the 

inducement caused the petitioner to plead guilty and the petitioner is innocent; 

( 4) The improper obstruction by government officials of the petitioner's right of appeal 

where a meritorious appealable issue existed and was properly preserved in the trial 

court; 

(5) The unavailability at the time of trial of exculpatory evidence that has subsequently 

become available and would have changed the outcome of the trial if it had been 

introduced; 

(6) The imposition of a sentence greater than the lawful maximum; and 

(7) A proceeding in a tribunal without jurisdiction. 
BY THE COURT: 

Petitioner is not entitled to relief on appeal. 

WHEREFORE, based on the foregoing reasons, it is respectfully asserted that the 

properly denied the Petitioner's PCRA for the reasons stated in this opinion and on the record. 

PCRA Hearing, October 12, 2015, Page 72, Line 14 through Page 74, Line 21. In sum, the court 

Same thing with the Miranda Warning, he signed the Miranda Warning and the Court 

doesn't find that credible that he made a statement and then signed a Miranda Warning. 

Also, once he signed the Miranda Warning, if it were later, he could have said, oh, I 

didn't realize this, I'm -- let me have that, I want to tear it up because I didn't want to 

give you the statement and I see now I didn't have to. So when I consider his testimony 

with the written documents, I find that the testimony of his attorney was much more 

credible. There may not have been a lot of contacts, but in these cases often there aren't, 

so long as -- we see she wrote a long letter to the DA, we know she was doing her job. 

She made an effort to do what one might want to do under the circumstances of his 

health. The main goal being to try and keep him out of the state correctional institution. 

She worked to get the jntermediate punislunent. 

. . ) 

As far as her judgμie.fit on whether or not the Commonwealth had sufficient evidence that 

he could be proven guilty, that's.one of the things the defense attorney has to do. And in 

light of the statements, in light of the search, in light of the evidence, and she said she did 

not advise the Defendant to plead until she had seen the discovery, she mentioned that. 

So she said once she got that then she thought their best recourse was to try and get him a 

sentence, house arrest preferably, and under intermediate punishment. So there wasn't 

Ineffective assistance of counsel. She did what she.could. It was my decision that she 

didn't expect, but that she had warned him, and that's in writing too, she had warned him 

that I wouldn't have to accept that, that she would ar'gue for it, but there was no guarantee 

what the sentencing judge might do. And so thatv- .t'1e .Court doesn't find any ineffective 

assistance of counsel. (~.- -·· 

As to the consent to search the car, it just doesn't make sense that the police would have 

searched the car and then asked him to sign a consent. And even despite his problems 

with his medical condition and some problems with his physical -- or many problems 

with his physical health and he says there are some mental, too, certainly he would have 

known, after they already searched the car, he would have refused to sign a consent to 

search. I mean, what -- he would have said, what do you want me to sign that for, you've 

already searched it.