Opinion
J-S34022-15 No. 1652 MDA 2014
09-09-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERTO MONTALVO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order August 28, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001253-2011
BEFORE: BOWES, J., OTT, J., and STABILE, J. MEMORANDUM BY OTT, J.:
Roberto Montalvo appeals from the order entered on August 28, 2014, in the Court of Common Pleas of Lebanon County denying him relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. In his underlying trial, Montalvo was convicted of a variety of crimes associated with the sexual assault of a minor as well as a variety of drug charges related to the police having discovered 51 grams of cocaine and 28 grams of marijuana hidden in Montalvo's apartment. Montalvo received an aggregate sentence of ten years, three months to thirty-two years' incarceration. In this timely appeal, Montalvo raises three issues, none of which is meritorious. We affirm based upon the sound analysis of the PCRA court's 1925(a) opinion, dated November 4, 2014.
Montalvo's first issue contained four subparts.
Our standard of review for this matter is well settled.
This Court's standard of review regarding an order granting or denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 592 Pa. 217, 923 A.2d 1169, 1170 (2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa.Super.2001). "However, this Court applies a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Spotz , 610 Pa. 17, 18 A.3d 244, 259 (2011).Com. v. Cristina , 114 A.3d 419, 421 (Pa. Super. 2015)
The facts and procedural history of this matter are thoroughly recounted in the PCRA court's opinion, and do not need to be restated herein. Montalvo has raised three issues in this appeal. They are:
Montalvo was denied relief in his direct appeal at Commonwealth v. Montalvo , 82 A.3d 467 (Pa. Super. 2013) (unpublished memorandum).
1) Was trial counsel's failure to (A) interview proffered character witnesses and (B) eyewitnesses, (C) to [sic] seek to impeach the complainant, or (D) to [sic] file a pre-trial motion "ineffective assistance" such that the trial court erred in failing to make this finding?Montalvo's Brief at 5.
2) Did the Court abuse its discretion in finding that the plea offer was properly communicated to [Montalvo]?
3) Was [Montalvo's] right to trial by jury compromised under these circumstances?
As noted above, the PCRA court has thoroughly addressed all the properly preserved claims in its Pa.R.A.P. 1925(a) opinion. We rely upon that analysis in denying Montalvo relief.
We write separately to note that two of the four sub-issues raised in this appeal were not in the amended PCRA petition filed by counsel nor were they argued before the PCRA court at the August 28, 2014 PCRA hearing. The two issues are 1(B) and (D), as listed in the Appellant's Brief, supra. Because neither claim was presented to or developed before the PCRA court, they have been waived. See Commonwealth v. Knox , 105 A.3d 1194, 1199 (Pa. 2014) (Issues not raised before the lower court are waived and cannot be raised for the time on appeal.)
At the beginning of the PCRA hearing, Judge Bradford H. Charles asked counsel to identify all the issues Montalvo wished to pursue. See N.T. PCRA Hearing, 8/28/2014, at 4. As noted, these issues were not identified or argued.
The parties are directed to attach a copy of the PCRA court's November 4, 2014 Pa.R.A.P. 1925(a) opinion in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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