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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

March 13, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
WILFREDO TERRADO SMITH Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence October 6, 2011 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000196-2011

BEFORE: PANELLA, J., OLSON, J., and WECHT, J.

MEMORANDUM

PANELLA, J.

Appellant, Wilfredo Terrado Smith, appeals nunc pro tunc from the judgment of sentence entered October 6, 2011, in the Court of Common Pleas of Fayette County. After careful review, we affirm.

On August 19, 2010, the Fayette County Drug Task Force utilized the services of a confidential informant ("CI") to arrange a controlled buy of crack cocaine. Prior to the transaction, officers searched the CI and his car, and determined that he did not possess any cocaine or money. The officers then provided the CI with $50, and followed him to a pre-arranged location in an undercover vehicle.

It was the officers' intention that the CI would enter the residence at 6 Angle Street in Brownsville to consummate the transaction, providing a basis for a future search warrant of the premises. However, as the CI walked toward the residence, Smith came out and met him on the sidewalk. The prosecuting officer testified that he knew Smith personally and recognized him. The CI's hand briefly contacted Smith's hand, after which the CI returned to his vehicle.

The CI drove to the police station under constant surveillance by officers. Upon being searched by officers at the station, it was revealed that the CI no longer possessed any cash, but now possessed three clear plastic bags containing a substance subsequently identified as 0.33 grams of cocaine. Smith was subsequently charged with delivery of a controlled substance, possession with intent to deliver, possession of a controlled substance, and possession of drug paraphernalia. After a trial, a jury convicted Smith on all charges, and the trial court sentenced Smith on October 6, 2011 to an aggregate term of incarceration of two to four years.

Smith filed a timely pro se direct appeal of his judgment of sentence, despite the fact that trial counsel had not withdrawn from the case. This Court returned the appeal for, inter alia, failing to pay the filing fee. On March 15, 2012, Smith filed a pro se petition for relief pursuant to the Post Conviction Relief Act ("PCRA"). In his petition, Smith asserted multiple instances of ineffectiveness of counsel, including an allegation that counsel had failed to file a requested direct appeal.

After a hearing, the PCRA court granted Smith a restoration of his direct appellate rights. However, the PCRA court explicitly dismissed the remaining claims for relief contained in Smith's petition. Smith subsequently filed this counseled appeal.

On appeal, Smith seeks to raise the following issues for our review:
1. Whether the court erred in not finding defendant's trial attorney, Jenee Oliver, ineffective when attorney Oliver failed to file a formal request for discovery or a request for bill of particulars that would have revealed the date of the alleged incident to be August 19, 2010 and not August 1, 2010?
2. Whether the court erred in not granting defendant a new trial to present alibi witnesses, Jacy Kuhn, Robert Lewis, and Alyssa Caltuna, whose testimony would have raised ...

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