J. S16041/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

MELISSA M. BUCANO, :

:

Appellant : No. 2278 EDA 2015

Appeal from the PCRA Order June 29, 2015

In the Court of Common Pleas of Monroe County 

Criminal Division at No(s): CP-45-CR-0000781-2010

 

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.: FILED APRIL 18, 2016

Appellant, Melissa M. Bucano, appeals from the order entered in the 

Monroe County Court of Common Pleas denying her first petition filed under 

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After 

careful review, we affirm on the basis of the PCRA court’s opinion.

The relevant facts, as this Court summarized in our memorandum 

opinion disposing of Appellant’s direct appeal, are as follows:

[T]his case involve[s] an insurance fraud scheme perpetrated by 

Judi Grate (“Grate”), in which [Appellant] and her mother, 

Bianco Bucano (“Mother”), allegedly participated. The scheme 

involved submission of fraudulent claims for long[-]term care 

insurance benefits to various insurance companies. The 

Commonwealth presented evidence that [Appellant], using the 

names of other persons, completed and signed various forms 

requesting reimbursement of expenses allegedly paid by Grate 

for long[-]term care services. 

* * *
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After a jury trial, [Appellant] was convicted of [insurance fraud 

(nine counts), criminal attempt to commit theft by deception 

(three counts), forgery (three counts), corrupt organizations 

(two counts), dealing in proceeds of unlawful activity, and 

criminal conspiracy.1]. [Appellant] filed a Motion for 

extraordinary relief, which the trial court denied. On July 18, 

2012, the trial court sentenced [Appellant] to an aggregate 

prison term of forty-five to ninety months, and a consecutive 

probation term of two years.

Commonwealth v. Bucano, No. 2280 EDA 2012 (Pa. Super. filed June 24, 

2013) (unpublished memorandum).

Appellant filed a direct appeal. In an unpublished memorandum, this 

Court affirmed Appellant’s judgment of sentence on June 24, 2013. Id. Our 

Supreme Court denied allocatur on October 31, 2013. Commonwealth v. 

Bucano, 79 A.3d 1096 (Pa. 2013).

On December 18, 2013, Appellant filed a timely pro se PCRA petition, 

which was amended after appointment of counsel, alleging, inter alia, 

ineffective assistance of counsel during plea negotiations due to a 

breakdown in the attorney-client relationship following trial counsel’s request 

to house Appellant separately from her mother in the county jail.

The PCRA court held an evidentiary hearing on July 15, 2014, at which 

trial counsel and Appellant testified. Trial counsel testified that his defense 

strategy had been to blame the mother for exercising undue influence over 

 

1 18 Pa.C.S. § 4117(a)(2), (3), (5); 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 

4101(a)(3); 18 Pa.C.S. § 911(b)(1), (3); 18 Pa.C.S. § 5111(a)(1); 18 

Pa.C.S. § 903(a)(1).
J. S16041/16

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Appellant, which had forced Appellant to partake in the commission of the 

crimes. He stated that the mother’s undue influence had continued during 

Appellant’s and her mother’s incarceration in the same cell in Monroe County 

Jail. Counsel testified that he and Appellant’s prior counsel had engaged in 

extensive plea negotiations on Appellant’s behalf, and had advised Appellant 

regarding the merits of several favorable plea offers on numerous occasions, 

but Appellant rejected all negotiated deals.2

In trial counsel’s opinion, Appellant’s mother had been pressuring 

Appellant to refuse all guilty pleas. Thus, believing the mother’s influence 

was not in Appellant’s best interest, trial counsel requested that the trial 

judge separate the two. “At trial counsel’s request, the trial judge contacted 

the jail and asked that the two be separated.” PCRA Court Opinion, dated 

6/29/15, at 4. When counsel learned that in order to accommodate the 

request, the jail had placed Appellant in the Restricted Housing Unit (“RHU”), 

he requested that the trial court contact the jail to remove Appellant from 

RHU. Appellant then returned to the jail’s general population. See N.T. 

PCRA, 7/15/14, at 17-25.

Appellant testified that she believed the RHU separation had interfered 

with the attorney-client relationship and plea negotiations because she 

 

2 Although Appellant entered a guilty plea in 2011, she subsequently 

withdrew the plea and negotiations thereafter continued.
J. S16041/16

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“didn’t trust anything that [trial counsel] had to say or to do with me so that 

relationship was already broken by finding all that out.” Id. at 54.

On June 29, 2015, the PCRA court denied Appellant’s Petition, 

concluding as follows:

Finally, after observing [Appellant] testify, reviewing the record, 

and reading the submitted briefs, it is clear to this Court that 

[Appellant]’s allegation of ineffectiveness is based on “buyer’s 

remorse,” not mistrust of counsel. As noted, over the course of 

this case [Appellant] was presented with three favorable plea 

offers, all of which would have resulted in conviction of fewer 

crimes and a significantly shorter sentence than she received 

after going to trial and being convicted of twenty crimes. Even 

while asserting ineffectiveness, [Appellant] acknowledges that 

trial counsel informed her of the risks of going to trial, including 

the severe sentence she faced, and that he repeatedly 

encouraged her to accept the final plea. This is simply not a case 

where a defendant was misinformed by counsel of a favorable 

plea offer or prejudiced by counsel’s deficient performance in 

advising her to reject the offer and go to trial. Rather, this is a 

case where a defendant was properly informed about a favorable 

plea offer, understood both the benefits of the plea and the risks 

of going to trial, and chose to go to trial. To use a colloquialism, 

by disregarding trial counsel’s plea advice, interfering with his 

trial strategy, and going to trial, [Appellant] “rolled the dice[.”] 

She lost. Regret for her decision does not allege, much less 

prove, ineffectiveness.

PCRA Court Opinion, dated 6/29/15, at 14-15 (citation omitted). Appellant 

filed a Notice of Appeal on July 24, 2015.

Appellant presents one issue on appeal:

Whether the [l]ower [c]ourt erred by denying Appellant’s PCRA 

Petition despite a showing that the attorney[-]client relationship 

had been eroded irretrievably due to defense counsel’s actions 

resulting in Appellant being placed into the Restrictive Housing 

Unit (RHU) pre-trial at the local jail, and to the extent that the 

plea negotiation process was interrupted to Appellant’s 

detriment.
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Appellant’s Brief at 4.

We review the denial of a PCRA petition to determine whether the 

record supports the PCRA court’s findings and whether its order is otherwise 

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014). This Court grants great deference to the findings of the PCRA court if 

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 

515 (Pa. Super. 2007). We give no such deference, however, to the court’s 

legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. 

Super. 2012).

To be eligible for relief pursuant to the PCRA, Appellant must establish, 

inter alia, that her conviction or sentence resulted from one or more of the 

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant 

must also establish that the issues raised in the PCRA Petition have not been 

previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An allegation of 

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

before trial, at trial, during unitary review, on appeal or in a prior state 

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

Appellant’s sole issue on appeal is that trial counsel was ineffective 

during plea negotiations. The law presumes counsel has rendered effective 

assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 

2010). The burden of demonstrating ineffectiveness rests on Appellant. Id. 

To satisfy this burden, Appellant must plead and prove by a preponderance 
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of the evidence that: (1) her underlying claim is of arguable merit; (2) the 

particular course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate her interests; and (3) but for 

counsel’s ineffectiveness, there is a reasonable probability that the outcome 

of the challenged proceedings would have been different. Commonwealth 

v. Fulton, 830 A.2d 567, 572 (Pa. 2003).

The Honorable Jonathan Mark, sitting as the PCRA court, has authored 

a comprehensive, thorough, and well-reasoned opinion, citing to the record 

and relevant case law in addressing Appellant’s sole claim on appeal. After a 

careful review of the parties’ arguments and the record, we affirm on the 

basis of the PCRA court’s opinion. See PCRA Court Opinion, dated 6/29/15, 

at 7-15.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/18/2016
1 

Fraud, three counts of Conspiracy to Commit Theft by Deception, one count of Theft 

with two counts of Corrupt Organizations, one count of Dealing in Proceeds of 

thirty-one crimes, many of which were felonies. Specifically, Petitioner was charged 

along with several co-defendants including her mother and brother, was charged with 

grand jury presentment recommending that Petitioner be criminally charged, Petitioner, 

Following an Attorney General investigation into insurance fraud resulting in a 

Background 

the reasons that follow, we will deny the petition. 

Section 9541 et. seq., in which she alleges that her trial attorney was ineffective. For 

("Petitioner") for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. 

This case is before the Court on the petition of defendant Melissa Bucano 

OPINION 

Defendant 

MELISSA M. BUCANO, 

v. NO. 781 CR 2010 

COMMONWEAL TH OF PENNSYLVANIA 

COURT OF COMMON PLEAS OF MONROE COUNTY 

FORTY-THIRD JUDICIAL DISTRICT 

COMMONWEAL TH OF PENNSYLVANIA 

Circulated 03/30/2016 09:35 AM
2 

1 Commonwealth's Amended Complaint, filed September 13, 2011. 

2 Judge Sibum presided over pre-trial matters, trial, and Petitioner's direct appeal. The PCRA petition 

was assigned to the undersigned. 

12/13/2011, pp. 13-15). The motion was granted and bail was revoked. 

herself based on both prior suicide attempts and ongoing threats of suicide. (N.T., 

held and Petitioner was granted leave to withdraw her plea. At the hearing, the 

prose motion to withdraw her plea. Ultimately, on December 13, 2011, a hearing was 

Theft. On November 10, 2011, despite being represented by counsel, Petitioner filed a 

counts (one as originally charged and one amended count) of Conspiracy to Commit 

Later, on September 8, 2011, Petitioner entered a written guilty plea to two 

condition she refused to meet. 

Commonwealth conditioned the plea. on Petitioner's testifying against her mother, a 

graded as felonies of the third degree. However, the plea was not entered because the 

count of Conspiracy to Commit Insurance Fraud and one count of Theft by Deception, 

Specifically, on July 5, 2011, a hearing was held before the Honorable Jennifer 

Harlacher Sibum ("trial judge")2 to allow Petitioner to enter into a guilty plea to one 

but later withdrew the second. 

pleas on Petitioner's behalf. Petitioner rejected the first plea offer and then accepted 

Before trial counsel's involvement, prior attorneys twice negotiated favorable 

she claims was ineffective. 

Ventrella, Esq. ("trial counsel"), her third lawyer and trial counsel, is the attorney whom 

Up through trial, Petitioner was represented by three attorneys. Michael A. 

Forgery, and one count of Insurance Fraud.1 

by Deception, three counts of Attempt to commit Theft by Deception, eight counts of 
3 

strategy. On several occasions, trial counsel informed Pe~itioner of the risks of going to 

refused to plead and Petitioner disagreed with what counsel believed was a winning 

that accepting the plea was in Petitioner's best interest, especially since her mother 

. misdemeanor offenses with which she had been charged. While trial counsel felt there 

longer state sentence that Petitioner faced if convicted of the multiple felony and 

that the plea would result in a county sentence of six months, as opposed to the much 

plea, open until commencement of trial, on Petitioner's behalf. Trial counsel believed 

At the same time, trial counsel, like his predecessors, negotiated a favorable 

27, 29-31, 37-38, 44, and 69-73. See N.T., 4/18/2012, pp. 6-15). 

strategy during closing arguments by threatening to object. N.T., 7/15/2014, pp. 17-23, 

before and during trial. In fact, Petitioner prevented trial counsel from fully arguing his 

blame cast on her mother. As a result, there were disagreements over strategy both 

over Petitioner. However, Petitioner did not like this strategy and did not want to have 

chose was to blame the mother and argue that the mother exercised undue influence 

minor and continued past the time she became an adult, the strategy trial counsel 

Petitioner and others, including her co-defendant mother, began while Petitioner was a 

trial strategy. Since the criminal enterprise that gave rise to the charges filed against 

After his appointment, trial counsel began to develop a theory of the case and a 

at the Monroe County Correctional Facility up through sentencing 

motion, bail was set at $250,000. Unable to post bail, Petitioner remained incarcerated 

was granted leave to withdraw. On January 18, 2012, on Petitioner's bail modification 

On December 28, 2011, trial counsel was appointed after her second attorney 

., , 

1: 

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4 

trial, the maximum sentences she faced, and the guideline sentencing ranges. Each 

time, he advised and strongly encouraged her to take the plea. Nonetheless, 

. acknowledging that she knew the risks, Petitioner refused to plead. N.T., 7/15/2014, 

pp. 14-15, 18, 34-36, 44, 63-64, and 70-74. See N.T., 3/23/2012, pp. 2-19 and N.T., 

7/18/2012, pp. 2, and 36-42). 

Trial counsel met with Petitioner several times to discuss the plea offer and trial 

strategy. On some occasions, Petitioner's mother and her mother's attorney were 

present so that matters could be discussed globally. 

Based <?n his observations and meetings with Petitioner, as well as Petitioner's 

disagreement with trial strategy and refusal to accept a plea, trial counsel became 

concerned that Petitioner's mother, who was her cell mate at the correctional facility, 

was influencing Petitioner against acting in her own best interests. Specifically, he was 

concerned that "the mother was never going to plead to everything and was standing 

in the way and the mother was being very much - advising her daughter not to do 

anything either and just stand with her (N.T., 7/15/2014, p. 18)." He raised his 

concerns with the trial judge in a conference several weeks before trial. He asked the 

trial judge to help separate Petitioner and her mother. He sought to separate the two 

because he was "hoping that if I talked to [Petitioner) [about the plea] and then she 

went back by herself instead of talking to her mother about it that she would think 

.. -~=·~: -,-.2?.Q~! !V!1<?{.E: .. cle:ar,!Y.· .. po .. ye~. th~ .. qoal.was to separate- het.so.that her.rnothecwould.; . ·····- .. 

not influence her decision (N.T., 7/15/2014, p. 44)." At trial counsel's request, the trial 

judge contacted the jail and asked that the two be separated. N.T., 7/15/2014, pp. 18, 

22-23, and 44. 
5 

3 Although not completely clear, it appears that the conference at which trial counsel asked the trial judge to help 

separate Petitioner and her mother occurred on the same date as this hearing. 

-·· .· .·. . , _ .. .. . . .. _ ~~_ked __t_he . t~i91_j_~~ge, .·to .. contc1ct . the jail ... and __ have ... P.e_titione~ .r:n_ovE?d_. .. As_ .. a.result; 

Petitioner was moved back to general population. 

effectuated at his request. At or around the first evidentiary day of trial, trial counsel 

to have her moved out of the RH U. He was told that such a move could not be 

23. When trial counsel later found out where petitioner had been placed, he attempted 

place to put her if she and her mother were to be separated. N.T., 7/15/2014, pp. 22- 

at the PCRA hearing that Petitioner was placed in RHU because the jail had no other 

Neither trial counsel nor the trial judge asked for that placement. Trial counsel testified 

mother, the correctional facility placed Petitioner in the restricted housing unit ("RHU"). 

On the same day, in response to the request to separate Petitioner and her 

N.T., 7/18/2012, pp. 2 and 36-42. 

risks she faced at trial, Petitioner would not agree to the plea. Id. at 9 and 19. See 

companies referenced in the criminal information. Id. at 7. Despite being advised of the 

refused to admit to any wrongdoing with regard to Met Life, one of the insurance 

mother's attorney. Id. pp. 4-5. Though Petitioner insisted she wanted to plead, she 

was taken so that Petitioner could speak with trial counsel, her mother, and her 

further with his client. N.T., 3/23/12, pp. 2-19.The request was granted and a recess 

plea and trial counsel asked the trial judge for some additional time to discuss the plea 

Petitioner was given another opportunity to enter the plea that trial counsel has 

negotiated.3 At the start of the hearing, Petitioner raised an issue with the terms of the 

On March 23, 2012, a hearing was convened before the trial judge during which 
6 

4 Petitioner's mother, who had similarly rejected all plea offers, was also convicted of multiple crimes and given a 

long sentence. 

appear in person and participated by video conference from her state correctional 

Supreme Court of Pennsylvania denied Petitioner's petition for allowance of appeal. 

(Pa. Super., filed June 24, 20.13)(memorandum opinion). On October 31, 2013, the 

affirmed the judgment of sentence. Commonwealth v. Bucano, No. 2280 EDA 2012 

Subsequently, Petitioner filed an appeal. On June 24, 2013, the Superior Court 

Her alternative minimum sentence was calculated to be thirty-seven months, fifteen 

days.4 

ordered to pay restitution. Petitioner was found to be eligible for the RRRI program. 

ninety months incarceration, followed by two years of consecutive probation, and 

On July 18, 2012, Petitioner was sentenced to an aggregate term of forty-five to 

Theft by Deception, and one count of Forgery. 

Forgery. Petitioner was acquitted of four counts of Insurance Fraud, four counts of 

Fraud, three counts of Attempt to commit Theft by Deception, and three counts of 

of Unlawful Activities, Insurance Fraud, Theft by Deception, eight counts of Insurance 

Proceeds of Unlawful Activity, one count of Conspiracy to Commit Dealing in Proceeds 

one count of Conspiracy to Commit Corrupt Organizations, one count of Dealing in 

On April 25, 2012. the jury convicted Petitioner of one count of Corrupt Organizations, 

Commonwealth sought and was granted permission to withdraw one count of forgery. 

began on April 16, 2012 and concluded on April 25, 2012. During trial, the 

Trial began with jury selection on April 4, 2012. The evidentiary portion of trial 

tll 

ij• 

I 

·-······ -,--a.--,:.,.··.··~ ...... ,:,···- .. I,here~ft~r! Petitioner f.il_ed a P~RA petition. Counsel was. appqi11t~d..,,a~d .filed _an 

amended petition. A hearing was held on July 15, 2014. Petitioner waived her right to 
7 

the presumption that counsel rendered effective 

assistance. Commonwealth v. Basemore, 560 Pa. 258, 277 

n. 10, 744 A.2d 717, 728 n. 10 (2000). To obtain relief on a 

where the Strickland/Pierce test applies, the analysis begins with 

f:i~cpe, .5?.7 ~-~.d 973 (Pa. 1987), which requires a defen.~cint allegi~g in~_ff~.C?t(~en~s~. 

to demonstrate that he was prejudiced by an act or omission of his attorney. In cases 

Washington, 466 U.S. 668 (1984), as adopted in Pennsylvania by Commonwealth v. 

Defendant's ineffective assistance of counsel claims implicate Strickland v. 

Discussion 

Exhibit A. After the records were filed, both parties submitted briefs. 

Exhibits A-C and Petitioner's Motion to Supplement record, filed November 4, 2014, 

reasons. Petitioner's Motion to Compel Production of Records, filed August 29, 2014, 

and then was placed in G/Max from March 23, 2012 to April 17, 2012 for "disciplinary" 

March 15, 2012 for "disciplinary" reasons, was placed back into general population, 

documents received from the jail show that Defendant was placed in the RHU on 

Ultimately, PCRA counsel received the records and filed them of record. The 

much longer than expected. In fact, it took several filings and a conference or two. 

and a briefing schedule was set. Obtaining records from the correctional facility took 

and her placement in the RHU. Additionally, a transcript of the hearing was ordered 

Monroe County Correctional Facility regarding Petitioner's incarceration in the facility 

so that he could obtain and submit to the Court and opposing counsel records from the 

At the end of the hearing, PCRA counsel requested that the record be left open 

examined both witnesses called by Petitioner. 

testified on her own behalf. The Commonwealth called no witnesses, but crossinstitution. During the hearing, Petitioner presented the testimony of trial counsel and 
8 

reasonable basis element, we do not question whether 

there were other more logical courses of action which 

counsel could have pursued; rather, we must examine 

whether counsel's decisions had any reasonable basis." 

[Commonwealth v.] Hanible, [30 A.3d 426,] 439 [(Pa. 

2011 )] (citation omitted). We will conclude that counsel's 

strategy lacked a reasonable basis only if the petitioner 

proves that a foregone alternative "offered a. potential. for 

.. ' .. .. . . - . . . - - ... ··- ... - 

success substantially greater than the course actually 

pursued." [Commonwealth v.] Spotz, [18 A.3d 244] 260 

[Pa. 2011] (citation omitted). To establish the third, the 

prejudice element, the petitioner must show that there is a 

reasonable probability that the outcome of the proceedings 

would have been different but for counsel's action or 

inaction. Id. 

v. Harvey, 812 A.2d 1190, 1199 (Pa. 2002). With regard to the second, the 

2013); Commonwealth v. Washington, 927 A.2d 586, 603 (Pa. 2007); Commonwealth 

pursue a baseless or meritless claim. Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 

A corollary to the first element, counsel cannot be found ineffective for failing to 

Mallory, 941 A.2d 686 (Pa. 2008), cert. denied, 555 U.S. 884 (2008) 

2008); Commonwealth v. Gwynn, 943 A.2d 940, 945 (Pa. 2008); Commonwealth v. 

Tedford, 960 A.2d 1, (Pa. 2008); Commonwealth v. Dennis, 950 A.2d 945, 953 (Pa. 

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011). See Commonwealth v. 

claim of ineffective assistance of counsel, a petitioner must 

rebut that presumption and demonstrate that counsel's 

performance was deficient, and that such performance 

prejudiced him. Strickland v. Washington, 466 U.S. 668, 

687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In our 

Commonwealth, we have rearticulated the Strickland 

Court's performance and prejudice inquiry as a three-prong 

test. Specifically, a petitioner must show: (1) the underlying 

claim is of arguable merit; (2) no reasonable basis existed 

for counsel's action or inaction; and (3) counsel's error 

caused prejudice such that there is a reasonable probability 

that the result of the proceeding would have been different 

absent such error. Commonwealth v. Pierce, 515 Pa. 153, 

158-59, 527 A.2d 973, 975 (1987). 

' ., 

·i 

,Ii 
9 

Super. 1999)(citing Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa. Super. 1997)). 

extent of trial preparation." Commonwealth v. Howard, 732 A.2d 1213, 1215 (Pa. 

"[t]he length of time dedicated to client consultation affords no basis for inferring the 

. Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)(citations omitted). Further, 

are concerned, counsel's assistance is deemed constitutionally effective 

if he chose a particular course that had some reasonable basis designed 

to effectuate his client's interests. A finding that a chosen strategy lacked 

a reasonable basis is not warranted unless it can be concluded that an 

alternative not chosen offered a potential for success substantially 

greater than the course actually pursued. To demonstrate prejudice, the 

petitioner must show that there is a reasonable probability that, but for 

counsel's error or omission, the result of the proceeding would have 

been different. 

and tactics 

1996); Commonwealth v. Mizell, 425 A.2d 424 (Pa. 1981). Where matters of strategy 

defense tactics and strategy. See Commonwealth v. Fowler, 670 A.2d 153 (Pa. Super. 

Additionally, trial counsel has broad discretion to determine the course of 

lack of development. See Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008). 

claim, the petitioner is not entitled to relief and the court may find the claim waived for 

petitioner fails to· properly plead all three prongs, or, having done so, to develop the 

petitioner cannot prevail unless he or she properly develops the claim. Thus, when a 

Similarly, because claims of ineffective assistance of counsel are not self-proving, a 

prongs have been met. Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000). 

dismissed on that basis alone without the need to determine whether the other two 

or she fails to prove. any one of the prongs, the ineffectiveness claim may be 

Since a petitioner must prove all three prongs of the Strickland/Pierce test, if he 

Roney, 79 A.3d at 604. 
10 

that she would have taken a plea and, if so, what the terms she would have accepted 

crumbles because even after all this time, Petitioner has still not affirmatively stated 

interrupt that pro~~ss should also form the basis for _PCRA relief." Petitioner's Brief if') 

Support of Amended PCRA Petition, p. 3 (unnumbered). However, the foundation 

plea process, then ineffective assistance· of counsel during plea negotiations that 

axiomatic that if a defendant has the right to effective assistance of counsel during a 

Initially, the foundation of Petitioner's claim seems to be that "[i]t should be 

bootless. 

and rife with mistrust that it caused Petitioner to reject all plea offers. This argument is 

to Petitioner's placement in the RHU, the attorney/client relationship was so broken 

matter to segregate Petitioner from her co-defendant mother prior to trial, thus leading 

Specifically, Petitioner argues that because trial counsel asked the trial judge in this 

Petitioner's Brief in Support of Amended PCRA Petition, p.1 (unnumbered). 

of plea offers was met with distrust and ultimately were rejected due to that mistrust." 

to the point that plea negotiations were extremely hampered and any communication 

actions he took prior to trial "irretrievably broke[ ] down the attorney/client relationship 

In this case, Petitioner first claims that trial counsel was ineffective because 

Davis, 554 A.2d 104, 111 (Pa. Super. 1989). 

did not like the strategy or because the strategy was unsuccessful. Commonwealth v. 

sufficient proof. Id. Thus, a petitioner is not entitled to relief simply because he or she 

trial, trial counsel cannot be deemed to be ineffective for lack of preparation without 

inadequate preparation and it is shown that counsel met with the petitioner prior to 

Vvhere a petitioner has not provided any evidence to support her allegation of 

'!.I 
11 

negotiations were hampered must, at minimum, make the same showing. This should 

plea and recite its terms, it follows that a petitioner who is merely arguing that plea 

alleged ineffective assistance of counsel must show that she would have accepted a 

If a petitioner who is not informed of a plea or who rejects a plea because of 

Lafle_r, 132 S. Ct. at 1385. 

but for the ineffective advice of counsel there is a 

reasonable probability that the plea offer would have been 

presented to the court (i.e., that the defendant would have 

accepted the plea and the prosecution would not have 

withdrawn it in light of intervening circumstances), that the 

court would have accepted its terms, and that the 

conviction or sentence, or both, under the offer's terms 

would have been less severe than under the judgment and 

sentence that in fact were imposed. 

defendant who rejects a plea offer must show that, 

However, the High Court further held that in order to prove ineffectiveness, a 

accused. If an attorney fails to fulfill this duty, he may be found to be ineffective. 

prosecution to accept a plea on terms and conditions that may be favorable to the 

duty to timely and meaningfully communicate to their clients formal offers from the 

attorneys during plea negotiations. Under Frye and Lafler, defense counsel have a 

seminal cases from the High Court that explain the duties owed by criminal defense 

(2012) and Lafler v. Cooper,_ U.S._, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the 

Supreme Court in Missouri v. Frye, _ U.S. _, 132 S.Ct. 1399, ·182 L.Ed.2d 379 

This analysis is consistent with the holdings and rationale of the United States 

plea she would have accepted, then she cannot prove the requisite prejudice. 

pied guilty. If she does not or cannot make that assertion and recite the terms of the 

of counsel based. on guilty plea negotiations must at least assert that she would have 

would be. It seems to us that a petitioner asking for a finding of ineffective assistance 

iJ 

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.: 

I! 

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mother. The third and final offer was rejected because there was an insurance 

The first offer was rejected because Petitioner did not want to testify against her 

prior offers) for reasons that had nothing to do with alleged mistrust of trial counsel. 

Third,. it is clear that Petitioner rejected the Commonwealth's final offer (and 

she be separated from her mother on the first day of trial. 

regard, Petitioner testified that she first became aware that trial counsel had requested 

that trial counsel had asked to have she and her mother separated at the jail. In this 

reading of the record and Petitioner's inconsistent testimony, before she was aware 

rejected by Petitioner before she was placed in restrictive housing and, under any 

Second, as also noted, the Commonwealth's third and final offer was made and 

Both offers were made and rejected long before trial counsel represented her. 

First, as noted, Petitioner rejected the first two offers negotiated on her behalf. 

several reasons. 

broken and rife with mistrust that it caused her to reject all plea offers is baseless for 

Additionally, Petitioner's claim that the attorney/client relationship was so 

maximum sentences she faced, and the applicable guideline sentencing ranges. 

informed of the risks of going to trial, the benefits of the plea that was offered, the 

and her mother's attorney; and 3) the record amply demonstrates that Petitioner was 

in restricted housing, Petitioner abjectly refused to accept the Commonwealth's final 

offer, open until trial, despite extra opportunity to speak with her attorney, her mother, 

but later withdrew it; 2) after trial counsel became involved but before she was placed 

Petitioner first rejected one favorable plea and then accepted another favorable plea 

be especially true in this case since: 1) before trial counsel become involved, 
13 

asserting. N.T., 4/18/12, pp. 6-15. Specifically, Petitioner stated on the record that she 

counsel's opening statement and his defense strategy, not the mistrust she is now 

to fire trial counsel, the basis for Petitioner's assertion was that she disliked trial 

Petitioner to fire trial counsel. While it is true that, two trial days later, Petitionerwanted 

court. However, nothing in the record from the first day of trial shows any attempt by 

separation from her mother. Her recollection was that this was placed on the record in 

counsel on the first day of trial based on her discovering his involvement with her 

issue was not credible. For example, Petitioner testified that she attempted to fire trial 

released from RHU. N.T., 7/15/2014, p. 27. In contrast, Petitioner's testimony on this 

testified that he did not notice any change in their relationship after Petitioner was 

plea and trial processes is belied by the record. On this issue, trial counsel credibly 

Fourth, Petitioner's claim that she had come to mistrust trial counsel during the 

PCRA hearing was both inconsistent and incredible. 

any plea offer due to mistrust of trial counsel, and her testimony to that effect at the 

during either the March 23, 2012 hearing or the sentencing hearing mention rejecting 

sentencing hearing. N.T., 7/18/2012, pp. 2 and 36-42). Petitioner did not, at any time 

belief that Met Life should not have been included was also discussed during her 

7, 9, and 19; N.T., 7/15/2014, 63-64. Petitioner's rejection of the plea based on her 

because she would not admit to any wrongdoing against Met Life. N.T., 3/23/2012, pp. 

2012 hearing and the PCRA hearing, that she did not accept the final plea offer 

entered on the second offer. Indeed, Petitioner was adamant, at both the March 23, 

have been included, a belief that also factored into her withdrawal of the plea she 

company, Met Life, included in one of the counts that Petitioner did not believe should 

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encouraged her to accept the final plea. N.T., 7/15/2014, pp. 70-71, 73-74. This is 

going to trial, including the severe sentence she faced, and that he repeatedly 

ineffectiveness, Petitioner acknowledges that trial counsel informed her of the risks of 

received after going to trial and being convicted of twenty crimes. Even while asserting 

resulted in conviction of fewer crimes and a significantly shorter sentence than she 

case Petitioner was presented with three favorable plea offers, all of which would have 

based on "buyer's remorse," not mistrust of counsel. As noted, over the course of this 

submitted briefs, it is clear to this Court that Petitioner's allegation of ineffectiveness is 

Finally, after observing Petitioner testify, reviewing the record, and reading the 

consequence. 

subsequently placed in RHU was an unfortunate, but unsolicited and unforeseen, 

to request that Petitioner be separated from her mother. The fact that Petitioner was 

Petitioner faced if convicted, it was objectively and strategically reasonable for counsel 

counsel believed Petitioner should have accepted, and the lengthy sentence that 

legal interests from that of her mother, Petitioner's rejection of plea offers that trial 

influence Petitioner's mother obviously had over her, the divergence of Petitioner's 

facts, including the history of this case, the crimes charged, Petitioner's age, the 

rejection of the final plea offer and of counsel's trial strategy is specious. Given the 

her mother, which request led to her time in RHU, was a punitive response to her 

Petitioner's related contention that trial counsel's request to separate her from 

during trial. 

disparaging her mother. Id. at pp. 10-11. The alleged mistrust was simply not raised 

felt trial counsel's opening statements were "untruthful" because he made statements 

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demonstrates that trial counsel informed Petitioner of the final plea offer and the 

ineffectiveness claim, the claim is substantively baseless. Again, the record amply 

In the alternative, if Petitioner is deemed to have preserved her second 

Commonwealth v. Steele, supra. 

meaningful analysis, we find this issue waived for lack of development"). See also 

Super. 2014) ("[A]s Appellant has cited no legal authorities nor developed any 

claim due to lack of development. Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. 

not argued in Petitioner's submissions. As a result, Petitioner has waived her second 

Petitioner's brief that mentions the second ineffectiveness claim. The issue is simply 

Initially, the clause quoted in the preceding paragraph is the only portion of 

disposed of quickly. 

Support of Amended PCRA Petition, p. 1 (unnumbered). This contention may be 

trial strategy or possible avenues of defense with her prior to trial." Petitioner's Brief in 

counsel because he "didn't prepare [her] for testifying at her trial and didn't discuss 

Petitioner's second claim is that trial counsel rendered ineffective assistance of 

ineffectiveness. 

dice". She lost. Regret for her decision does not allege, much less prove, 

plea advice, interfering with his trial strategy, and going to trial, Petitioner "rolled the 

trial, and chose to go to trial. To use a colloquialism, by disregarding trial counsel's 

favorable plea offer, understood both the benefits of the plea and the risks of going to 

and go to trial. Rather, this is a case where a defendant was properly informed about a 

offer or prejudiced by counsel's deficient performance in advising her to reject the offer 

simply not a case where a defendant was misinformed by counsel of a favorable plea 

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objectively rational and reasonable. In fact, even the modified argument that trial 

winninQ argument by Petitioner. Id. at 30-31. 

Viewed in light of the applicable standards, trial counsel's strategy was 

prepared months in advance, but was prevented from making what he considered a 

30. Nonetheless, trial counsel still managed to argue most of what he had already 

defense during closing argument by threatening to object during his argument. Id. at 

her mother. Id. at 37-38. Further, Petitioner prevented trial counsel from arguing his 

fire trial counsel after he gave his opening because Petitioner felt he was disparaging 

defense; but the defense was what she didn't like." Id. at 38. In fact, Petitioner tried to 

arguments were over that." Id. at 27. Trial counsel testified that he "had a very good 

case in terms of blaming her mother and she didn't want me to do that; so most of our 

"the main problem we had was that she [Petitioner] disagreed with my theory of the 

Further, as noted above and as trial counsel testified during the PCRA hearing, 

In contrast, Petitioner's testimony on this issue was inconsistent and not credible. 

preparing Petitioner for her testimony. N.T., 7/15/2014, pp. 18, 27-28, 30, and 37-38. 

believed Petitioner should testify, and prepare for trial. Trial preparation included 

occasions prior to trial to discuss the final plea, outline his trial strategy, explain why he 

In addition, trial counsel credibly testified that he met with Petitioner on multiple 

counsel's trial strategy. 

counsel's strategy, establishes without doubt that Petitioner was acutely aware of 

Petitioner's own statements made during trial in which she specifically challenged 

severe sentence and penalties she faced if found guilty at trial. The record, including 

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prove the requisite prejudice. Accordingly, we enter the following: 

merit, reasonable bases existed for counsel's actions, and Petitioner clearly failed to 

In sum, Petitioner's claims of ineffective assistance of counsel lack arguable 

supra; Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa. Super. 1997). 

deemed to be ineffective for lack of preparation. See Commonwealth v. Howard, 

uncontested that trial counsel met with Petitioner prior to trial, trial counsel cannot be 

not provided any evidence to support her allegation of inadequate preparation and it is 

course actually pursued. Colavita, supra, 993 A.2d at 887. Finally, since Petitioner has 

strategy which would have offered a potential success substantially greater than the 

111 (Pa. Super. 1989). In this regard, Petitioner has not suggested an alternative 

was unsuccessful or only partially successful. Commonwealth v. Davis, 554 A.2d 104, 

Petitioner is not entitled to relief simply because she did not like the strategy or that it 

Under these circumstances, even if her second claim is not deemed waived, 

that Petitioner was acquitted of ten charges. 

counsel was able and permitted by petitioner to make proved partially successful in 

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Cc: Brian S. Gaglione, Esq 

Kelly M. Sekula, Deputy Attorney General 

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ORDER 

Defendant 

MELISSA M. BUCANO, 

v. .NO. 781 CR 2010 

COMMONWEALTH OF PENNSYLVANIA 

COURT OF COMMON PLEAS OF MONROE COUNTY 

FORTY-THIRD JUDICIAL DISTRICT 

COMMONWEAL TH OF PENNSYLVANIA 

defendant Melissa M. Bucano for relief under the Post-Conviction Relief Act is 

AND NOW, this 29th day of June, 2015, it is ORDERED that the petition of