J-S70035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EWARG LARIOS

Appellant No. 1698 EDA 2014

Appeal from the PCRA Order May 21, 2014

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0002681-2010

BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 20, 2015

Ewarg Larios appeals from the order of the Court of Common Pleas of 

Lehigh County that dismissed his petition filed pursuant to the Post 

Conviction Relief Act.1 After careful review, we affirm based on the opinion 

of the Honorable Maria Dantos dated July 1, 2014, which incorporated Judge 

Dantos’ opinion dated May 21, 2014.

On November 10, 2010, after a jury convicted Larios of conspiracy to 

deliver cocaine and conspiracy to deliver heroin, the trial court sentenced 

him to an aggregate sentence of eight to twenty years’ imprisonment. 

Larios appealed his judgment of sentence to this Court, which affirmed on 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
J-S70035-15

- 2 -

October 21, 2011. Commonwealth v. Larios, 37 A.3d 1239 (Pa. Super. 

2011) (unpublished memorandum). Larios then filed a petition for allowance 

of appeal, which our Supreme Court denied on November 28, 2012. 

Commonwealth v. Larios, 57 A.3d 68 (Pa. 2012).

On November 20, 2013, Larios filed a timely pro se PCRA petition. 

Counsel was appointed on November 27, 2013, and on January 3, 2014, 

counsel filed an amended petition. A hearing was held on May 1, 2014, 

during which Larios and his counsel, John Peter Karoly, III, Esquire, testified. 

The Commonwealth presented the testimony of the assistant district 

attorney who tried the case, Robert Rosner, Esquire.

On May 21, 2014, the PCRA court denied relief. This timely appeal 

followed, in which Larios raises the following issues for our review.

1. Whether Larios was denied his Sixth Amendment right to 

effective assistance of counsel under the U.S. Constitution for 

Karoly’s failure to file a post sentence challenge to the 

imposition of multiple conspiracy convictions which are barred 

under 18 Pa.C.S. §§ 903(c) and 906.

2. Whether Larios was denied his Sixth Amendment right to 

effective assistance of counsel under the U.S. Constitution for 

Karoly’s failure to properly “federalize” Larios’ claims 

presented to the appellate courts regarding Agent Morgan’s 

tardy disclosure of his report, which resulted in a trial by 

ambush in violation of Larios’ due process right to a fair trial 

under the Fourteenth Amendment of the U.S. Constitution.

3. Whether Larios was denied his Sixth Amendment right to 

effective assistance of counsel under the U.S. Constitution for 

Karoly’s failure to investigate and present a defense expert to 

refute the Commonwealth’s expert testimony of Agent 

Morgan.
J-S70035-15

- 3 -

4. Whether Larios was denied his Sixth Amendment right to 

effective assistance of counsel under the U.S. Constitution for 

Karoly’s failure to interview, call and present Herbert J. Larios 

as a defense witness?

5. Whether Larios was denied his Sixth Amendment right to 

effective assistance of counsel under the U.S. Constitution for 

Karoly’s failure to investigate and present the business 

records that exonerated Larios by establishing that his 

finances were the result of legal business transactions and not 

the results of illegal drug proceeds, as the Commonwealth 

claimed.

6. Whether Larios was denied his Sixth Amendment right to 

effective assistance of counsel for Karoly’s failure to object to 

the prosecutor’s misconduct in securing a conviction through 

the use of perjured testimony the prosecutor knew was false.

Appellant’s Brief, at 4.

In reviewing an appeal from the denial of PCRA relief, “our standard of 

review is whether the findings of the court are supported by the record and 

free of legal error.” Commonwealth v. Martin, 5 A.3d 177, 182 (Pa. 

2010) (citations omitted).

To be eligible for relief under the PCRA, Larios must prove by a 

preponderance of the evidence that his conviction resulted from “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.” 42 Pa.C.S. § 9543(a)(2)(ii). 

“Counsel is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on appellant.” Commonwealth v. Ousley, 21 A.3d 

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the 

defendant must show that the underlying claim had arguable merit, counsel 
J-S70035-15

- 4 -

had no reasonable basis for his or her action, and counsel’s action resulted 

in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086, 

1089 (Pa. Super. 1998).

After careful review of the parties’ briefs, the record and the relevant 

law, we agree with the Honorable Maria Dantos’ analysis and affirm on the 

basis of her opinion. We instruct the parties to attach a copy of Judge 

Dantos’ decision in the event of further proceedings. 

Order affirmed.2

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/20/2015

____________________________________________

2 The Commonwealth did not file a brief. Accordingly, Larios’ application to 

preclude the Commonwealth from filing an untimely brief is denied as moot.
35 P.S. § 780-113(30); 18 Pa. C.S.A. § 903(a)(2). 

Ewarg Larios, after a jury trial, was found guilty of Count 4: Criminal Conspiracy 

to Deliver a Controll~d Substance (cocaine)! and Count 5: Criminal Conspiracy to 

The relevant facts are as follows: On October 1, 2010, Defendant, 

provisions of Pennsylvania Rule of Appellate Procedure 1925. 

Collateral Relief. Accordingly, we are issuing this Opinion pursuant to the 

Order of May 21, 2014, which denied the Defendant's Motion for Post Conviction 

Defendant, Ewarg Larios, has filed an appeal from this . Court's 

MARIA L. DANTOS, J. 

MEMORANDUM OPINION 

******** 

IRENE CHIAVAROLI-JOHNS, ESQUIRE 

On behalf of Defendant 

·- :.3 rG ·• 

' .ccVJ 

,, :-r, 

~ 

I 

- ~ 

·-· 

zt: ·-,._.) ) 

·-- :J;: 

, 

·- . " .. ·• ... r-o ..... ~.- 

3-: - ~ .. 

,,.,. . f'0 ..:-> ~·. O', 

W1LLIAM STOYCOS, ESQUIRE 

DEPUTY ATTORNEY GENERAL 

On behalf of the Commonwealth 

APPEARANCES: 

******** 

EWARG..LARIOS, 

Defendant 

vs. Case No. 2681/2010 

) 

) 

) 

) 

.) 

) 

COMMONWEALTH OF PENNSYLVANIA 

CRIMINAL DMSION 

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA 

... 

Circulated 11/12/2015 11:56 AM
2 

"35 P.S. § 780-113(30); 18 Pa. C.S.A. § 903(al(2). 

The Defendant's RRRI minimum is 27 months on Count 4 and SO months on 

Count 5, aggregating to a RRRI minimum of 77 months. 

2 

3 

the evidence. On October 21, 2011, the Superior Court of Pennsylvania 

Controlled Substance (heroin); and (2) the verdict was not against the weight of 

Deliver a Controlled Substance (cocaine) and Criminal Conspiracy to Deliver a 

the conviction of the Defendant for the charges of Criminal Conspiracy to 

Court also addressed that: (1) the evidence presented was sufficient to sustain 

memorandum opinion submitted to the Superior Court of Pennsylvania, this 

status of the Defendant to the jury. In an abundance of caution, in its 

grant a mistrial when the prosecutor improperly disclosed the incarcerated 

and counter the Commonwealth's expert; and {4) the Court erred in failing to 

have granted the Defendant a continuance to allow the defense time to examine 

indicate any opinion to a reasonable degree of certainty; (3) this Court should 

Agent Morgan from expressing expert opinions at trial when her report did not 

Testimony of Agent Delores Morgan; (2) this Court erred in failing to preclude 

Court improperly denied the Defendant's Motion to Preclude the Expert 

the Superior Court of Pennsylvania, asserting four (4) allegations of error: (1) this 

Thereafter, on November 15, 2010, the Defendant filed an appeal to 

aggregate sentence ordered was eight (8) to twenty (20) years." 

. . 

years. These counts were ordered to run consecutively to each other. The 

term of state imprisonment of not less than five (5) years nor more than ten (10) 

years. On the same date, this Court sentenced the Defendant, on Count 5, to a 

correctional institution of not less than three (3} years nor more than ten (10) 

Count 4, this Court sentenced the Defendant to a term of imprisonment in a state 

Deliver a Controlled Substance [heroin).a Thereafter, on November 5, 2010, on 

I 

1. t ' 

Circulated 11/12/2015 11:56 AM
3 

DATED: 1f/;f 

Opinion of May 21, 2014, and incorporates it herein. 

this Court's Opinion of May 21, 2014. Consequently, this Court relies on said 

concise statement of errors complained of on appeal have been addressed by 

complied with said Order. However, all of the matters within the Defendant's 

Pennsylvania Rule of Appellate Procedure 1925(b). The Defendant timely 

complained of on appeal no later than September 1, 2014, in accordance with 

record and serve upon this Court an amended concise statement of errors 

On July 31, 2014, this Court instructed the Defendant to file of 

Post Conviction Collateral Relief and the within appeal followed on June 5, 201 ~. 

May 2, 2014. On May 21, 2014, this Court denied the Defendant's Motion for 

An evidentiary hearing relative to said motion was conducted before this Court on 

conviction collateral relief, as amended on January 3, 2014 and April 30, 2014. · 

On November 20, 2013, the Defendant filed a motion for post 

Pennsylvania, which was denied on November 28, 2012. 

a petition for allowance of appeal was filed in the Supreme Court of 

affirmed this Court's judgment and sentence. Thereafter, on January 26, 2012, 

' • .< ' , 

Circulated 11/12/2015 11:56 AM
35 P.S. § 780-113(30); 18 Pa. C.S.A. § 903(a)(2). 

2 35 P.S. § 780-113(30}; 18 Pa. C.S.A. § 903(a)(2). 

than ten· ( 10) years. On the same date, this Court sentenced the Defendant, on Count 

imprisonment in a state correctional institution of not less than three {3) years nor more 

on November 5, 2010, on Count 4, this Court sentenced the Defendant to a term of 

Count 5: Criminal Conspiracy to Deliver a Controlled Substance (heroin).2 Thereafter, 

guilty of Count 4; Criminal Conspiracy to Deliver a Controlled Substance (cocaine)1 and 

On October 1, 2010, Defendant, Ewarg Larios, after a jury trial, was found 

MARIA L. DANTOS, J. 

OPINION 

******** 

IRENE CHIAVAROLI-JOHNS, ESQUIRE 

On behalf of Defendant 

W1LLIA1V1 STOYCOS, ESQUIRE 

· DEPUTY ATIORNEY GENERAL 

On behalf of the Commonwealth 

APPEARANCES: 

* * * * * * * ·* 

EWARG LARIOS, 

Defendant 

vs. Case No. 2681/2010 

COMMONWEALTH OF PENNSYLVANIA 

CRIMINAL DIVISION 

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA 

, I 

r . '~. 

Circulated 11/12/2015 11:56 AM
2 

The Defendant's RRRl minimum is 27 months on Count 4 and 50 months on Count 5, 

aggregating to a RRRI minimum of 77 months. 

3 

On November 20, 2013, the Defendant filed a motion for post conviction 

denied on November 28, 2012. 

allowance of appeal was filed in the Supreme Court of Pennsylvania, which was 

this Court's judgment and sentence. Thereafter, on January 26, 2012, a petition for 

of the evidence. On October 21, 2011, the Superior Court of Pennsylvania affirmed 

Deliver a Controlled Substance (heroin); and (2) the verdict was not against the weight 

Conspiracy to Deliver a Controlled Substance (cocaine) and Criminal Conspiracy to 

sufficient to sustain the conviction of the Defendant for the charges of Criminal 

Pennsylvania, this Court also addressed that: (1) the evidence presented was 

abundance of caution, in its memorandum opinion submitted to the Superior Court of 

improperly disclosed the incarcerated status of the Defendant to the jury. In an 

expert; and (4) the Court erred in failing to grant a mistrial when the prosecutor 

continuance to allow the defense time to examine and counter the Commonwealth's 

reasonable degree of certainty; (3) this Court should have granted the Defendant a 

expressing expert opinions at trial when her report did not indicate any opinion to a 

Delores Morgan; (2} this Court erred in failing to preclude Agent Morgan from 

improperly denied the Defendant's Motion to Preclude the Expert Testimony of Agent 

Superior Court of Pennsylvania, asserting four (4) allegations of error: (1) this Court 

Thereafter, on November 15, 2010, the Defendant filed an appeal to the 

sentence ordered was eight (8) to twenty (20) years.> 

years. These counts were ordered to run consecutively to each other. The aggregate 

5, to a term of state imprisonment of not less than five (5) years nor more than ten (10) 

r 

Circulated 11/12/2015 11:56 AM
--L------------~----~--------· .. -~-------------~--~-- 

3 

lnits recitation of the facts, thi~ Comi: cites to the record from fue trial as well. 

heroin and cocaine, and then packaging them in small packages to be sold. Because 

Defendant Cerda's apartment and had seen people crushing and grinding pellets of 

and heroin factory in her apartment. The confidential informant had been in CoFountain Hill area of Bethlehem, Lehigh County, Pennsylvania, was running a cocaine 

informant, it was determined that Co-Defendant Rosalinda Cerda, residing in the 

Pursuant to information that Agent Sedor received from a confidential 

trip with Co-Defendant Von Rcestel-Navarro. 

Defendant Herbert Larios carried just shy of one (1) kilogram of cocaine on the same 

JFK International Airport without detection. Similarly, Defendant's brother and Copackaged in pellets that were swallowed and brought into the United States through 

carried· more than one (1) kilogram of heroin within his body. The heroin was 

Indeed, on October 15, 2009, it is undisputed that Co-Defendant Von Roestel-Navarro 

transported drugs to the Lehigh Valley once every three (3) to four (4) months. 

national, as well as a Co-Defendant and business associate of the Defendant, 

testified that Walter Von Roestel-Navarro, an international drug dealer and Colombian 

without opposition, was deemed an expert in narcotics investigation. Agent Sedor 

. Pennsylvania Office of the Attorney General and assigned to the Bureau of Narcotics, 

States from Colombia Specifically, Agent Thomas Sedor, employed by the . 

with bringing in extremely large quantities of cocaine and heroin into the United 

In the instant case, the record facts revealed that the Defendant assisted 

which we make the following findings of fact.4 

hearing relative to said motion was conducted before this Court on May 2, 2014, from 

collateral relief, as amended on January 3, 2014 and April 30, 20~4. An evidentiary 

<, ·' . ' 

Circulated 11/12/2015 11:56 AM
4 

6 

Large empty bags containing residue of cocaine were located. 

Agent Sedor opined that this quantity of cocaine was absolutely meant for resale and 

would be worth approximately Five Thousand ($5,000.00) Dollars when sold on the street. 

Agent Sedor further stated that he did not believe that these drugs were from Colombia. 

5 

authorities and told them where his drugs, drug paraphernalia and weapon were 

time Co-Defendant Ortiz was arrested. Co-Defendant Ortiz cooperated with the 

consisted of another 100 gram purchase of cocaine from Co-Defendant Ortiz." At this 

cocaine from Co-Defendant Ortiz. The second controlled buy on September 28, 2009, 

recording device. The first controlled buy consisted of a 100 gram purchase of 

Cerda agreed to make controlled purchases from Co-Defendant Ortiz while wearing a 

and led the law enforcement officers to her supplier, Ramiro Ortiz. Co-Defendant 

Agent Sedor spoke with Co-Defendant Cerda who immediately confessed 

lA; C. Ex. l; C. Ex. 2; C. Ex. 3; C. Ex. 4). 

yielded two {2) digital scales and approximately fifty (50) grams6 of cocaine. (C. Ex. 

Defendant Cerda's residence on September 22, 2009. The search of her residence 

cocaine.> Consequently a search warrant was applied for and executed on Cogarbage collections and found evidence that Co-Defendant Cerda was still selling 

Valley, Lehigh County, Pennsylvania. Law enforcement personnel conducted three (3) 

Thereafter, Co-Defendant Cerda moved to 2621 Hartman Drive, Center 

The cocaine purchased during this controlled buy was not from pellets. 

February of 2009 on Bishop Thorpe Street, Bethlehem, Lehigh County, Pennsylvania. 

controlled buy of cocaine was eventually effectuated with Co-Defendant Cerda. in 

Store that Co-Defendant Cerda operated to inquire of purchasing drugs from her. A 

spoke to a second confidential source and instructed him to go to the Spanish grocery 

Agent Sedor suspected Co-Defendant Cerda of being in the drug trade, Agent Sedor 

I 

.• 

Circulated 11/12/2015 11:56 AM
5 

7 Neither of these controlled buys involved drug pellets from Colombia. 

a A large quantity of cocaine, a firearm and digital scales were located in the detached 

garage to the rear of Co-Defendant Ortiz's 2104 Glendale Avenue residence. Co-Defendant 

Ortiz signed a written waiver to allow the officers to enter his premises. He also consented to a 

search of his vehicle. 

9 Co-Defendant Ortiz was the middleman between the Colombian drug smugglers who 

brought the cocaine and heroin into the United States, and the Matos family that packaged it 

into smaller quantities and distributed the illegal drugs on the streets of the Lehigh Valley. 

io Co-Defendant Ortiz participated in controlled buys with Danny Matos. On September 

29, 2009, Agent Sedor conducted surveillance of the meeting between Co-Defendant Ortiz and 

Co-Defendant Danny Matos at the residence of Danny Matos' girlfriend on Livingston Street in 

Bethlehem, Pennsylvania. (C. Ex. 5; C. Ex. 6A; C. Ex. 6). Then, on September 30, 2009, CoDefendant Ortiz went into Carmen Matos' residence and retrieved approximately Fifty-four 

Thousand ($54,000.00) Dollars in United States currency. {C. Ex. 7; C. Ex. 7A). This money 

was payment for approximately eight hundred (800} grams of heroin. Search warrants were 

executed on the Matos' residences. (C. Ex. 8; C. Ex 14). At Danny Matos' residence, Five 

Thousand Nine Hundred ($5,900.00) Dollars in United States currency was located, along with 

a plastic bag with a white powdery residue that tested positive for cocaine. In Zaida Matos' 

residence, all items recovered were paraphernalia to grind up pelletized heroin to be packaged 

for sale. The Matos family was taken into custody. 

· Agent Sedor opined that that this quantity of heroin was beyond street level dealing and 

amounted to high level drug dealing. It was at this point that Agent Sedor turned his attention 

to the Colombians. 

11 The Defendant was under surveillance from October 4, 2009 through October 15, 2009. 

drug s'uppliere.r! On October 15, 2009, Agent Sedor received information from CoCo-Defendant Larios and Co-Defendant Von Roestel-Navarro, as Co-Defendant Ortiz's 

Thereafter, Agent Sedor commenced an investigation of the Defendant, 

Ortiz.!? (C. Ex. 9). 

Agent Sedor confirmed that the Matos family was a distributor for Co-Defendant 

Matos {mother), Zaida Matos (sister) and Danny Matos (son). Through investigation, 

who lived on Pawnee Street, Fountain Hill, Lehigh County, Pennsylvania: Carmen 

received from Co-Defendant Ortiz, Agent Sedor began to investigate the Matos family 

As a result of the information that the law enforcement authorities 

trafficking organization. 9 

sources and his buyers and distributors, and admitted to participating in a drug 

located.s Co-Defendant Ortiz provided the officers with the identities of his drug 

. ' 

Circulated 11/12/2015 11:56 AM
6 

12 The Red Roof Inn was booked under Co-Defendant Larios' name. 

13 The Defendant's vehicle was previously identified at the Defendant's home located at 

217 Spring Garden Street, Easton, Pennsylvania. (C. Ex. 18). 

14 Jt takes about three (3) to four (4) days to eliminate the pellets. 

15 From October of 2008 through October of 2009, Co-Defendants Von Roestel-Navarro 

and Larios came to the United States with drugs four (4) times: October of 2008, February of 

2009, June of 2009 and October of 2009. Co-Defendant Ortiz corroborated that the Colombian 

drugs arrived every three (3) to four (4) months. 

Co-Defendant Von Roestel-Navarro explained that the drugs were bought in Bogota, 

brought large quantities of heroin and cocaine into the United States from Colombia. 

Von Roestel-Navarro admitted to being a part of a drug trafficking organization that 

months between October of 2007 and October of 2009.15 (C. Ex. 10). Co-Defendant 

heroin into the Lehigh Valley by ingesting pellets of heroin every three (3) to four (4) 

Defendant Von Roestel-Navarro was cooperative and confessed that he smuggled 

Agent Sedor spoke with Co-Defendant Von Roestel-Navarro. Comatter.v' (C. Ex. 19; C. Ex. 20). 

were transported to Lehigh Valley Hospital and admitted as a precautionary medical 

leave the scene. They admitted to having heroin and cocaine in their systems and 

Larios were apprehended when they attempted to utilize the Defendant's vehicle to 

room 311 at the Red Roof Inn. (C. Ex. 18). Co-Defendants Von Roestel-Navarro and 

Defendant's vehicle, a 2007 black Mercedes Benz SUVJ3, was parked in the vicinity of 

Co-Defendant Ortiz. Agent Sedor established surveillance at the Red Roof Inn. The 

kilogram of heroin on his person and intended to effectuate a drug transaction with 

informed Agent Sedor that Co-Defendant Von Roestel-Navarro had about one (1) 

Catasauqua Road, Lehigh County, Pennsylvania.P (C. Ex. 31}. Co-Defendant Ortiz 

States from Colombia and was staying in room 311 at the Red Roof Inn on 

Defendant Ortiz that Co-Defendant Von Roestel-Navarro had arrived in the United 

' -, ·" 

Circulated 11/12/2015 11:56 AM
7 

16 One (1) kilogram of cocaine purchased in Bogota costs approximately $2,500.00 in 

United States currency, and can be sold for $20,000.00 to $25,000.00 in the United States. 

One (1} kilogram of heroin purchased in Bogota costs approximately $8,000.00 to $9,000.00 in 

United States currency, and can be sold for $50,000.00 to $55,000.00 in the United States. 

11 Co-Defendant Ortiz also indicated that he would meet the Colombians at either a motel 

or the Defendant's residence to effectuate the drug transfer. Co-Defendant Ortiz would make 

prior arrangements to receive money from the Matos family to furnish to Co-Defendants Von 

Roestel-Navarro and Larios in exchange for the Colombian drugs. 

18 Co-Defendant Von Roestel-Navarro testified that in August of 2009, the Defendant 

recruited a friend of his to transport drugs from Colombia to the United States. Co-Defendant 

Von Roestel-Navarro met the Defendant's recruited friend in Cartagena, Colombia in August of 

2009, and described him as a thin, white, tall male with short brown hair. 

Navarro to utilize his Mercedes Benz SUV to travel from JFK International to the 

October 15, 2009, the Defendant permitted Co-Defendants Larios and Von RoestelColombia and bring the drugs back with them to the United States.P' Moreover, on 

the pellets himself, the Defendant enlisted friends in the United States to travel to 

this drug organization. While it is uncontested that the Defendant did not swallow 

Co-Defendant Von Roestel-Navarro further implicated the Defendant in 

systems.!? 

the Defendant's residence when they arrived in the United States with drugs in their 

Roestel-Navarro indicated that he and Co-Defendant Larios either stayed at motels or 

Defendant Larios at the Defendant's residence in Easton. In fact, Co-Defendant Von 

Defendant Von Roestel-Navarro was introduced to Co-Defendant Ortiz by CQbrought into the United States were then purchased by Co-Defendant Ortiz. Coswallowing and the transportation of the drug pellets. The drugs that they illegally 

Roestel-Navarro indicated that· Co-Defendant Larios also participated in the. 

and brought to the United States in the stomach of the courier. Co-Defendant Von 

eight (8) to ten ( 10) grams each and covered with wax. The pellets were then ingested 

Colombia. 16 The drugs were then packaged into egg-shaped caplets/pellets weighing 

Circulated 11/12/2015 11:56 AM
8 

International Airport on October 15, 2009. The Defendant was traveling to Colombia as the CoDefendants were arriving into the United States. Co-Defendant Von Roestel-Navarro indicated 

that they had agreed to pay the Defendant Six Hundred ($600.00) Dollars for the use of his 

vehicle on that day. He indicated that it was a business deal and that the money that was 

intended to be used to pay for the vehicle came from drug proceeds. 

20 

· Co-Defendant Von Roestel-Navarro specifically indicated that the Defendant received 

Nine Thousand ($9,000.00) Dollars in drug proceeds from him in June of 2009. The money 

was given to the Defendant by Co-Defendant Von Roestel-Navarro at the Defendant's residence. 

21 Co-Defendants Larios and Von Roestel-Navarro had defecated approximately one half 

(1/2) of the pellets in the motel room prior to being taken into custody. 

Co-Defendant Von Roestel-Navarro and Co-Defendant Larios met the Defendant at JFK 19 

15, 2009, by Co-Defendant Von· Roestel-Navarro was Three Hundred Thousand 

($100.00) Dollars. Therefore, the street value of the heroin transported on October 

' 

one (1} gram of cocaine in the Lehigh Valley was approximately One Hundred 

Lehigh Valley was approximately Three Hundred ($300.00) Dollars, and the cost of 

Agent Sedor explained that the cost of one ( 1) gram of heroin in the 

grams. (C. Ex. 27). 

of the cocaine transported by Co-Defendant Larios on October 15, 2009, was 984 

Roestel-Navarro on October 15, 2009, was 1, 154 grams. (C. Ex. 28). The total weight 

311.21 (C. Ex. 25}. The total weight of the heroin transported by Co-Defendant Von 

23}. Similarly, approximately seventy (70) pellets of cocaine were located in room 

Inn. Approximately forty (40} pellets of heroin were found in the motel room. (C. Ex. 

Ex. 25). Additionally, a search warrant was obtained for room 311 of the Red Roof 

Navarro and Larios defecated while at Lehigh Valley Hospital. (C. Ex. 21; C. Ex. 23; C. 

Agent Sedor observed the drug pellets that Co-Defendants Von Roestel- 

· be withdrawn from his account by people in Colombia. 

Defendant would deposit the drug money into his account and then the money would 

sale of the illegal drugs.20 Co-Defendant Von Roestel-Navarro testified that the 

Lehigh Vallcy.t? Additionally, the Defendant received some of the proceeds from the 

.. 

Circulated 11/12/2015 11:56 AM
9 

22 Co-Defendant Ortiz characterized the Defendant as the person who "handled the 

money" within the drug organization. 

Co-Defendant Ortiz also related that in 2009, the Defendant enlisted a 

Colombia. 

$4,500.00. Defendant's accounts reflect that monies were thereafter withdrawn from 

July 18, 2009 in the amount of $9,000.00; September 21> 2009 in the amount of 

May 11. 2009 in the a.mount of $9,000.00; July 11, 2009 in the amount of $6,600.00; 

May 1, 2009 in the amount of $3,357.00; May 4, 2009 in the amount of $7,500.00; 

aforementioned transactions> Defendants accounts reflect many large cash deposits: 

Commonwealth Credit Union. (C. Ex. 12; C. Ex. 17). In addition to the two (2) 

Thousand ($5,000.00) Dollars from his account to the Defendant's account at First 

Ex. 22). Also, on September 23, 2009, Co-Defendant Ortiz had transferred Five 

at First Commonwealth Credit Union from Co-Defendant Ortiz on July 6, 2009. (C. 

Eight Thousand Two Hundred ($8,200.00} Dollars directly to the Defendant's account 

Commonwealth Credit Union account. The relevant bank records reflect a deposit of 

Defendant with cash, as well as deposited monies directly into the Defendant's First 

Defendant to purchase drugs in Colombia. In 2009, Co-Defendant Ortiz provided the 

of Twenty Thousand ($20,QOO.OO) Dollars over a period of time in order for the 

organization.w In fact, Co-Defendant Ortiz admitted to giving the Defendant the sum 

The Defendant received proceeds from this profitable drug 

Dollars. 

October 15, 2009, by Co-Defendant Larios was One- Hundred Thousand ($100,000.00) 

{$300,000.00) Dollars. Similarly, the street value of the cocaine transported on 

Circulated 11/12/2015 11:56 AM
10 

Trial testimony of Co-Defendant Ortiz revealed that the Defendant tried to convince him 

to be a drug swallower and go to Colombia to retrieve the illegal drugs. 

24 This cash was not part of the $8,200.00 cash that Co-Defendant Ortiz provided to the 

Defendant. 

ss Co-Defendant Larios was a member of First Commonwealth Credit Union and had an 

account through this Credit Union. Nevertheless, Co-Defendant Larios deposited funds into 

the Defendant's account. 

26 The teller received from Co-Defendant Larios $4,500.00 in one hundred dollar bills and 

23 

moved out of the residence and was in Colombia. An arrest warrant was issued on 

custody, the Defendant's roommate, Matthew Tilliton, informed him that he had 

defendants. When Agent Sedor went to the Defendant's residence to take him into 

Charges were filed against the Defendant, along with the numerous cothe Defendant's account.26 {C. Ex. 24; C. Ex. 16). 

2009, Co-Defendant Larios deposited Nine Thousand ($9,000.00) Dollars cash into 

Larios made deposits into the Defendant's account as well.25 In fact, on March 5, 

deposits into his First Commonwealth Credit Union account. Also, Co-Defendant 

several times. Ms. Gearinger had knowledge of the Defendant making many cash 

Credit Union, were familiar with the Defendant, because he came into the branch 

as well asMichelle Gearinger, the Assistant Branch Manager at First Commonwealth 

Roleen Michael-Schmoyer, a teller at First Commonwealth Credit Union, 

Defendant cash for this drug sale.24 

to both parties to orchestrate the drug transaction. Co-Defendant Ortiz gave the 

Lehigh County, Pennsylvania. The Defendant was the individual who placed the calls 

deliver the heroin to Co-Defendant Ortiz at the Arby's on Lehigh Street, Allentown, 

Defendant. Specifically, the Defendant had made arrangements for a third party to 

shipment, Co-Defendant Ortiz received approximately 300 grams of heroin from the 

drug runner to bring in drugs from Colombia to the United States.P From this 

... 

. 

Circulated 11/12/2015 11:56 AM
11 

$4,500.00 in fifty dollar bills. 

27 Agent Jose Collazo of the Pennsylvania Office of the Attorney General attempted to 

brother, Co-Defendant Herbert Larios, to testify on his ·behalf at the time of trial, The 

In addition, the Defendant indicated to Attorney Karoly that he wanted his 

to the Defendant's financial transactions. 

Commonwealth intended to produce Agent Morgan as a witness to render an opinion as 

not warranted because defense counsel had complete prior knowledge that the 

were included in her expert report. However, this Court found that a continuance was 

provide him sufficient time to hire an expert to rebut the opinions of Agent Morgan that 

trial. Defense counsel requested a continuance on September 27, 2010, in order to 

accountant's expert report that the Commonwealth planned to rely on at the time of 

Moreover, close to the date of the trial, the Defendant received the forensic 

the trial. In fact, these records were never produced by the financial institutions. 

institutions did not provide said documentation to Attorney Karoly prior to the date of 

further documentation that pre-dated the time of the alleged drug activity. The 

be thorough, Attorney Ka.roly instructed the Defendant to execute releases to obtain 

of merchandise· sales to combat the arguments of the Attorney General. In an effort to 

were incomplete. Indeed, these documents did not provide a full and complete picture 

retail merchandise purchased in the United States in Colombia. However, the records 

business records with regard to the Defendant's side business with his sister of selling 

trial, the Defendant's brother provided Attorney Karoly with an accordion file of 

Defendant was represented at trial by John P. Karoly, III, Esquire. Prior to 

turned himself into authorities on June 3, 2010.21 {C. Ex. 30). 

January 7, 2010. The Defendant returned from Colombia on May 18, 2010, and he 

Circulated 11/12/2015 11:56 AM
12 

negotiate the Defendant's return to the United States from Colombia. 

To establish an ineffective assistance of counsel claim, 

[defendant] must first demonstrate that the underlying claim 

is of arguable merit; then, that counsel's action or inaction 

was not grounded on any reasonable basis designed to 

effectuate (defendant's] interest; and finally, that but for the 

subject to a three part analysis: 

Initially, we note that claims of ineffective assistance of counsel are 

sentenced." 

represented that their trial testimony would not garner favorable consideration when 

Co-Defendants Ortiz and Von Roestel-Navarro perjured themselves at trial when they 

of double jeopardy or sufficiency or weight of the evidence; and (5) failing to object when 

sentence on the two (2) conspiracies based on the issues of merger, illegality, violation 

Larios to testify on the Defendant's behalf; (4) failing to challenge the imposition of 

rebut the Commonwealth's expert witness; (3) failing to call Co-Defendant Herbert 

have exonerated the Defendant from the charges; (2) failing to call an expert witness to 

his trial counsel was ineffective for: (1) failing to present business records that would 

In his motion for post conviction collateral relief, Defendant contends that 

at the time of trial. 

information, Attorney Karoly made the strategic decision not to call Co-Defendant Larios 

truthfully, the testimony would not be beneficial to the Defendant. Armed with this 

charges. Attorney Dowdle represented to 'Attorney Karoly that if his client testified 

Eric Dowdle, Esquire> the attorney who represented Co-Defendant Larios on his drug 

activity. However, the Defendant's beliefs were mistaken. Attorney Karoly contacted 

thought that the testimony would show that he had not participated in criminal drug 

Defendant related to his attorney that his brother was willing to testify and that he 

Circulated 11/12/2015 11:56 AM
13 

Indeed, these records were never produced by the financial institutions. 

did not provide said documentation to Attorney Karoly prior to the date of the trial. 

documentation that pre-dated the time of the alleged drug activity. The institutions 

Attorney Karoly instructed the Defendant to execute releases to obtain further 

arguments of the Attorney General. Nevertheless, in an effort to be thorough, 

did not provide a full and complete picture of merchandise sales to combat the 

the United States in Colombia, these the records were incomplete. These documents 

Defendant's side business with his sister of selling retail merchandise purchased in 

Attorney Karoly with an accordion file of business records with regard to the 

is baseless. While it is true that prior to trial, the Defendant's brother provided 

and receipts for merchandise would have demonstrated his innocence. This argument 

Specifically, the Defendant contends that his credit card statements, bank statements 

these items to Colombia for sale, thereby establishing a legal basis for any extra cash. 

purchase clothing and other retail merchandise in the United States and then send 

present these business records to show to the jury that he and his sister would 

he had with his sister. The Defendant discussed with Attorney Karoly his desire to 

to produce at trial the 'business records from the legitimate retail clothing business that 

First, the Defendant argues that his trial counsel was ineffective for failing 

the Defendant's issues in seriatim. 

proving all three prongs of this standard. Id. With this standard in mind, we address 

denied, 116 S.Ct. 931 (1996) (citations omitted). The defendant bears the burden of 

Commonwealth v. Travaglia, 541 Pa. 108, 118, 661 A.2d 352, 356-357 (1995), U.S. cert. 

act or omission in question, the outcome of the proceedings 

would have been different. 

Circulated 11/12/2015 11:56 AM
14 

and (4) the necessity of the proposed testimony in order to avoid prejudice. 

the witness; {3) the witness' willingness and ability to appear on behalf of the defendant; 

and availability of the witness; (2} counsel's awareness of the witness or duty to know of 

defendant demonstrates all of the following: (1) the defendant must prove the existence 

cannot be deemed ineffective for failing to present witnesses at trial unless the 

Defendant's behalf. In addressing this specific allegation, we recognize· that counsel 

failing to call Co-Defendant Herbert Larios at the time of trial to testify on the 

In addition, the Defendant avers that Attorney Karoly was ineffective for 

matter. 

defense. Consequently, Attorney Karoly was not ineffective in his handling of this 

outcome of the trial would have been different had an expert been utilized by the 

Defendant's financial transactions. Moreover, the Defendant failed to show that the 

intended to produce Agent Morgan as a witness to render an opinion as to the 

because defense counsel had complete prior knowledge that the Commonwealth 

expert report. However, this Court found that a continuance was not .warranted 

time to hire an expert to rebut the opinions of Agent Morgan that were included in her 

requested a continuance on September 27, 2010, in order to provide him sufficient 

as Attorney Karoly pursued this issue with the Court. Indeed, Defense counsel 

calling an expert forensic accountant at the time of trial. This argument lacks merit, 

Next, the Defendant contends that Attorney Karoly was ineffective for not 

be deemed ineffective in this respect. 

established his innocence lacks any factual basis. Therefore, Attorney Karoly cannot 

Consequently, the Defendant's assertion that these business records would have 

• • J 

' 

.. Circulated 11/12/2015 11:56 AM
15 

zs Attorney Karoly, instead of presenting Co-Defendant Larios at the time of trial (whose 

testimony posed a substantial risk to the Defendant), called the Defendant's other brother, 

which he would not prevail. Attorney Karoly's strategy was to appeal only the issues 

merit. It is Attorney Karoly's practice not to raise issues on appeal that he knew upon 

the Superior Court raising four (4) specific pre-trial and trial issues that he felt had 

evidence. This argument is legally flawed. Attorney Karoly filed a Notice of Appeal in 

issues of merger, illegality, violation of double jeopardy or sufficiency or weight of the 

to challenge· the imposition of sentence on the two (2) conspiracies based on the 

Next, the Defendant argues that Attorney Karoly was ineffective for failing 

Defendant Larios would have offered. 

demonstrate the prejudice that resulted from the absence of the testimony which Coto effectuate the Defendant's interests.w Overall, the Defendant has failed to 

decision not to produce Co-Defendant Larios at the time of trial was reasonably based 

testimony would not be beneficial or favorable to the Defendant. . Attorney Karoly's 

Defendant's trial. He further indicated that if his client testified truthfully, the 

represented to Attorney Karoly that he would not allow his client to testify at the 

attorney who represented Co-Defendant Larios on his drug charges. Attorney Dowdle 

fact, the evidence shows that Attorney Karoly contacted Eric Dowdle, Esquire, the 

Defendant Larios was wilting and available to testify on Defendant's behalf at trial. In 

prior to the time of the trial. However, Defendant has not demonstrated that CoDefendant has established that Attorney Karoly knew of the existence of said witness 

Defendant has established the existence and identity of the witness. Further, 

Speight, 544 Pa. 451, 464, 677 A.2d 317, 323 (Pa. 1996). In the instant case, 

Commonwealth v. Carbone, 707 A.2d 1145, 1153 {Pa. Super. 1998); .Commonwealth v. 

• I 

, . 

• l ( ' ( 

Circulated 11/12/2015 11:56 AM
16 

Efrain Larios, to testify on the Defendant's behalf. 

that had arguable merit, and not to include frivolous issues that had no basis. 

Consequently, Attorney Karoly did not challenge the sufficiency of the evidence. 

Similarly, Attorney Karoly did not challenge the legality of the sentence, in which this 

Court imposed a sentence on each of the separate conspiracy charges (one relating to 

heroin, and the other relating to cocaine), as the law allows for the convictions of two 

(2) conspiracies. The charges did not merge, and the sentence was not violative of 

double jeopardy nor illegal. Therefore, this Court finds that Attorney Karoly was not 

ineffective in this regard. 

Finally, the Def end ant argues that Attorney Karoly was ineffective for 

failing to object when Co-Defendants Ortiz and Von Roestel-Navarro perjured 

themselves at trial when they represented that their trial testimony would not garner 

favorable consideration when sentenced. This bald assertion lacks any factual 

foundation. At the time of trial, both Co-Defendant Von Roestel-Navarro and CoDefendant Ortiz set forth their beliefs as to the consideration that they would receive 

for their trial testimony. Specifically, Co-Defendant Von Roestel-Navarro indicated 

that the Commonwealth offered a ten (10) year minimum sentence> with no agreement 

on the maximum. He stated that when he reaches his minimum, he would be 

deported as a result of his immigration detainer. Co-Defendant Von Roestel-Navarro 

testified that he was instructed to tell the truth at the time of trial. Further, he 

indicated· that he was hoping for a better offer from the Commonwealth, but there 

were no promises or guarantees in respect thereto. Similarly, Co-Defendant Ortiz 

placed on the record at the beginning of his testimony that no plea agreement, 

guarantee, or promise was offered by the Commonwealth. He stated that he hoped for 

•' I 

I .• 

I, 

Circulated 11/12/2015 11:56 AM
17 

for post conviction collateral relief. 

Accordingly, for all of the foregoing reasons, we deny Defendant's motion 

argument must fail. 

the record evidence, these witnesses did not commit perjury and the Defendant's 

leniency from the Commonwealth in exchange for this truthful testimony. Based on 

f I .) ,. 

'· ,. ~ I 

Circulated 11/12/2015 11:56 AM