Com. v. Cruz Aviles, R.
CourtSuperior Court of Pennsylvania
Date FiledNovember 13, 2026
Docket370 MDA 2026
JudgeSullivan
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERTO C. CRUZ AVILES :
:
Appellant : No. 370 MDA 2026
Appeal from the PCRA Order Entered February 6, 2026
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004108-2022
BEFORE: PANELLA, P.J.E., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: NOVEMBER 13, 2026
Roberto C. Cruz Aviles (“Cruz Aviles”) appeals from the order denying,
following a hearing, his first petition filed pursuant to the Post Conviction Relief
Act (“PCRA”).1 In addition, Cruz Aviles’s court-appointed PCRA counsel.
Kristen L. Weisenberger, Esquire (“PCRA Counsel”) has filed a petition to
withdraw as counsel and an “Anders” Brief.2 For the reasons discussed below,
we affirm in part. However, because Cruz Aviles has identified a colorable
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1 See 42 Pa.C.S.A. §§ 9541-9546.
2 A Turner/Finley “no-merit” brief is the correct filing when counsel wishes
to withdraw from representing a PCRA petitioner in an appeal. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Here, PCRA Counsel filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Since an
Anders brief provides greater protection to a defendant, this Court may
accept an Anders brief instead of a Turner/Finley letter. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
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claim of PCRA counsel’s ineffectiveness, which cannot be resolved based on
the record, and because the record does not support denial of his claim of
ineffective assistance of pretrial counsel, we vacate in part and remand for
appointment of new counsel and a second evidentiary hearing.3
Because of our disposition in this matter, we do not discuss the
underlying facts except to note a jury convicted Cruz Aviles in 2024 of one
count each of strangulation and simple assault.4 The trial court sentenced
Cruz Aviles to eleven to twenty-two years in prison. Cruz Aviles did not file a
direct appeal.
In September 2024, Cruz Aviles filed a timely, pro se PCRA petition. The
PCRA court appointed PCRA Counsel, who filed a supplemental PCRA petition.
A PCRA hearing took place in October 2025, at which trial counsel, Rian
Thompson (“Attorney Thompson”) and Cruz Aviles testified. On February 26,
2026, the PCRA court issued an opinion denying Cruz Aviles’s PCRA petition.
The instant, timely appeal followed.5
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3 We note with disapproval the failure of the Commonwealth to file a brief in
this matter.
4 The victim was Cruz Aviles’s wife of approximately six days. See N.T.,
10/20/25, at 23. They married in Las Vegas. See id. at 19. Cruz Aviles
explained that although the victim was his wife, she “wasn’t even my girl” and
was “just my side girl.” Id.
5 PCRA counsel filed a notice of intent to file an Anders brief in lieu of a Rule
1925(b) statement; Cruz Aviles filed a pro se Rule 1925(b) statement. The
trial court issued a memorandum opinion adopting its earlier opinion.
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PCRA Counsel has filed a petition to withdraw in this Court, attaching an
Anders Brief, and the requisite notice to Cruz Aviles that he had the right to
proceed pro se or retain private counsel. Cruz Aviles filed a pro se response.
We first determine whether PCRA Counsel has satisfied the requirements to
be permitted to withdraw from representation. See Commonwealth v.
Freeland, 106 A.3d 768, 774 (Pa. Super. 2014) (prior to addressing the
merits we must determine if counsel complied with the dictates of
Turner/Finley).
Pursuant to Turner/Finley, an “[i]ndependent review of the record by
competent counsel is required before withdrawal [on collateral review] is
permitted.” Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In
Pitts, our Supreme Court explained that independent review requires proof
of:
1. A “no-merit” letter by [ ] counsel detailing the nature and extent
of his review;
2. The “no-merit” letter by [ ] counsel listing each issue the
petitioner wished to have reviewed;
3. [C]ounsel’s “explanation”, in the “no-merit” letter, of why the
petitioner’s issues were meritless;
4. The [ ] court conducting its own independent review of the
record; and
5. The [ ] court agreeing with counsel that the petition was
meritless.
Id. (citation and some brackets omitted).
Additionally:
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Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the merits
of the underlying claims but, rather, will merely deny counsel’s
request to withdraw. Upon doing so, the court will then take
appropriate steps, such as directing counsel to file a proper
Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit
letter that do satisfy the technical demands of Turner/Finley, the
[court] must then conduct its own review of the merits of the case.
If the court agrees with counsel that the claims are without merit,
the court will permit counsel to withdraw and deny relief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations
omitted).
Here, PCRA Counsel filed a no-merit brief and a petition to withdraw
which stated the nature and extent of his review of the case; listed the issue
for which Cruz Aviles seeks review, explained why and how Cruz Aviles’s
claims lack merit, and requested permission to withdraw. See Anders Brief;
Petition to Withdraw as Counsel, 5/11/26, at 1-3. PCRA Counsel also sent
Cruz a copy of the no-merit brief, a copy of the petition to withdraw, and a
statement advising Cruz Aviles of his right to proceed pro se or with privately
retained counsel. See id., Letter Dated 5/11/26. Thus, the record reflects
PCRA Counsel submitted a petition to withdraw and a brief that satisfies the
technical demands of Turner/Finley.
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However, we are faced with a conundrum. PCRA Counsel complied with
the technical requirements of Turner/Finley. After a thorough review of
PCRA Counsel’s Anders Brief, we agree that two of the three issues raised
and part of the third are frivolous, but, due to deficiencies in the record, we
cannot say the same for the remainder of the third issue. Moreover, Cruz
Aviles filed a response to the petition in which he claims all previous counsel
and PCRA Counsel are ineffective with respect to his third issue, which
concerns the failure to apprise him of a guilty plea offer. Thus, because PCRA
Counsel has filed a brief asserting a position which may not be supported by
law or facts as one of the bases to dismiss Cruz Aviles's appeal and did not
file a motion seeking a remand of this matter for an additional hearing to cure
the deficiencies in the record, we cannot find PCRA Counsel has complied with
the dictates of Turner/Finley. Nevertheless, because Cruz Aviles now claims
PCRA Counsel is ineffective, we are constrained to grant PCRA Counsel’s
withdrawal application.
In the Anders Brief, PCRA Counsel raises a single issue for our review:
A. Whether the [PCRA] court erred in dismissing [Cruz Aviles’s]
PCRA [petition] where [Cruz Aviles] presented sufficient
evidence that [Attorney Thompson] rendered ineffective
assistance of counsel[?]
Anders Brief at 4 (unnecessary capitalization and underling omitted).
In his pro se brief, Cruz Aviles also raises a single issue:
1. Should this Court, pursuant to [Commonwealth v.] Bradley,
[261 A.3d 381, 401 (Pa. 2021)] remand and order the
appointment of new counsel where, under the circumstances
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of this case, the evidence shows that PCRA Counsel provided
ineffective assistance of counsel for failing to litigate all prior
counsel[s’] ineffectiveness for failing to convey the plea offer?
Pro Se Brief at 2 (footnote omitted).
Our standard of review is settled.
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citations
and quotation marks omitted). The PCRA petitioner “has the burden to
persuade this Court that the PCRA court erred and that such error requires
relief.” Commonwealth v. Wholaver, 177 A.3d 136, 144–45 (Pa. 2018)
(internal citations omitted).
PCRA Counsel addresses Cruz Aviles’s intended claims he received
ineffective assistance of trial counsel. See Anders Brief at 10-17. It is well
settled that
counsel is presumed to have been effective and [] the petitioner
bears the burden of proving counsel’s alleged ineffectiveness. To
overcome this presumption, a petitioner must establish that: (1)
the underlying substantive claim has arguable merit; (2) counsel
did not have a reasonable basis for his or her act or omission; and
(3) the petitioner suffered prejudice as a result of counsel’s
deficient performance, that is, a reasonable probability that but
for counsel’s act or omission, the outcome of the proceeding would
have been different. A PCRA petitioner must address each of
these prongs on appeal. A petitioner’s failure to satisfy any prong
of this test is fatal to the claim.
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Wholaver, 177 A.3d at 144 (citations and quotation marks omitted).
First, PCRA Counsel notes Cruz Aviles wishes to claim Attorney
Thompson failed to introduce text messages he provided him at trial, which
would have impeached the victim. See Anders Brief at 15; N.T., 10/20/25,
at 18-22. Attorney Thompson testified that he reviewed all the text messages
Cruz Aviles gave him, used those he believed would be helpful, but that
several of the messages were either irrelevant and/or inadmissible. See N.T.,
10/20/25 at 8-10, 13.
The decision of whether to present certain evidence is a strategic choice
by counsel. The United States Supreme Court has stated:
[s]trategic choices made [by trial counsel] after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.
Strickland v. Washington, 466 U.S. 668, 690-91 (1984).
The PCRA court explained:
Attorney Thompson credibly testified that he reviewed all the
messages provided to him and then, after explaining his
evaluation to [Cruz Aviles], utilized those that he had concluded
were relevant and admissible at trial. Attorney Thompson
introduced one text message at trial and referenced it several
times. See Notes of Testimony from Trial, [] February 7, 2024,
pp. 99, 107-8. At the evidentiary hearing, [Cruz Aviles] conceded
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that he shared certain messages with [] Attorney Courtney
Monson [(“Attorney Monson”)], who represented him on behalf of
the Public Defender’s Office prior to Attorney Thompson. He also
conceded that Attorney Thompson utilized one of these messages
at his trial. The messages [not used] as described by [Cruz
Aviles], largely did not concern interactions between the victim
and previous partners but, instead, documented a conflict
between the victim and [Cruz Aviles] regarding car insurance
that—[Cruz Aviles] alleged—connected in some way to his
offenses. [Cruz Aviles’s] testimony did not effectively challenge
Attorney Thompson’s credible testimony that he made the
strategic decision to only rely on some of the potential evidence
that [Cruz Aviles] provided, and that he made this decision based
on reasoned determinations regarding admissibility and
relevance.
PCRA Court Opinion, 2/5/26, at 10-11 (capitalization regularized, some record
citations omitted).
Our review of the record demonstrates that Cruz Aviles never pointed
to any specific text message that he believed was admissible and relevant
which Attorney Thompson failed to introduce into evidence. See N.T.,
10/20/25, at 18-22. Moreover, Cruz Aviles failed to explain why text
messages regarding his employment, his dispute with the victim over car
insurance, or text messages between himself and third parties were either
relevant or admissible. See id. We have no basis to overturn the PCRA court’s
credibility determinations, and both the relevant law and the facts support the
court’s conclusion. See Strickland, 466 U.S. at 690-91; Staton, 184 A.3d
at 954. This claim lacks arguable merit.
Second, PCRA Counsel discusses Cruz Aviles’s contention Attorney
Thompson did not meet with him prior to trial. See Anders Brief at 14-15;
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N.T., 10/20/25, at 17, 19. However, Attorney Thompson testified he met with
Cruz Aviles several times prior to trial. See id. at 9.
Our Supreme Court stated a criminal defense attorney must prepare for
trial and the failure to do so is “simply an abdication of the minimum
performance required of defense counsel.” Commonwealth v. Johnson,
3523 A.3d 609, 644 (Pa. 2026), petition for certiorari docketed, U.S. Supreme
Court 26-5426 (Aug. 31, 2026), (citations omitted). Further, said failure,
absent a reasonable basis, satisfies the prejudice prong of the Strickland
standard. See Commonwealth v. Brooks, 839 A.2d 245, 248-50 (Pa.
2003).
The PCRA court concluded:
Attorney Thompson . . . credibly testified that he held multiple
meetings at his office with [Cruz Aviles], including a final meeting
on the Monday before trial that required several attempts to
contact the hard-to-locate [Cruz Aviles]. It was during these
meetings that Attorney Thompson reviewed the text messages
that [Cruz Aviles] had provided alongside his client, and discussed
which messages would be admissible and relevant at trial, as well
as [Cruz Aviles’s] own testimony. [Cruz Aviles] failed to establish
that [Attorney Thompson] failed to hold substantive meetings with
him and thus did not prepare adequately for trial.
PCRA Court Opinion, 2/5/26, at 11-12 (record citations omitted). Here, the
PCRA court heard diametrically opposed testimony, with Cruz Aviles claiming
counsel never met with him and counsel describing, in detail, several meetings
with Cruz Aviles. See N.T., 10/20/25, at 9, 17, 19. The PCRA court credited
Attorney Thompson’s testimony and did not credit Cruz Aviles’s testimony.
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We have no basis to overturn this finding. See Staton, 184 A.3d at 954. This
contention lacks merit.
Lastly, we address together PCRA Counsel’s assessment that all prior
counsel were ineffective for failing to convey to him a plea offer made by the
Commonwealth, as well as Cruz Aviles’s pro se response asserting PCRA
Counsel failed to properly litigate this claim. See Anders Brief at 12-13; Pro
Se Brief at 6-15.
An independent review of the record provides the following context to
PCRA counsel’s assessment and Cruz Aviles’s intended claims regarding the
failure to convey a plea offer. At the evidentiary hearing, Attorney Thompson
testified that, prior to the preliminary hearing, the Commonwealth did offer a
plea deal but that he did not represent Cruz Aviles at that time. See N.T.,
10/20/25, at 5-6. He stated that, when the plea was offered, Miranda Redzich
(“Attorney Redzich”), who is no longer employed by the Public Defender’s
Office, represented Cruz Aviles. See id. Attorney Thompson explained he
had no direct knowledge of whether Attorney Redzich had conveyed the plea
offer to Cruz Aviles, but it was office practice to do so. See id. at 6-7, 11.
On cross-examination, Attorney Thompson acknowledged the plea offer was
contingent on Cruz Aviles waiving his right to a preliminary hearing, which he
did not do. See id. at 10-11. Further, Cruz Aviles retained private counsel
for the preliminary hearing. See id. The Commonwealth offered into evidence
a domestic violence status sheet from the public defender’s file, and Attorney
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Thompson confirmed this status sheet would not have been placed in the file
absent a plea offer.6 See id. at 12.
Cruz Aviles disagreed with Attorney Thompson’s assertions regarding
whether the plea offer was ever conveyed to him, and who actually
represented him at the time the plea offer would have been conveyed at the
preliminary hearing. He testified he had never been represented by Attorney
Redzich but by privately retained counsel Hobie Crystle (“Attorney Crystle”)
“from the beginning.” Id. at 14; see also id. at 14-16 (explaining his
relationship with Attorney Crystle and saying Attorney Crystle never told him
about a plea offer).
A criminal defense attorney must notify a client of a proposed plea offer,
and counsel must also review the advantages and disadvantages of the offer.
See Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa. Super. 2001).
The failure to do so can lead to counsel being found ineffective. See
Commonwealth v. Chazin, 873 A.2d 732, 735-36 (Pa. Super. 2005). In
order to so prove, the petitioner must demonstrate: 1) that an offer for a plea
was made; 2) that trial counsel failed to inform the petitioner of the offer; 3)
that trial counsel had no reasonable basis for failing to inform the petitioner
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6 This exhibit was not forwarded to this Court on appeal.It does not appear
from the testimony at the hearing that the status sheet was signed by Cruz
Aviles or contained any specific statement about whether the plea offer was
conveyed to him. See N.T., 10/20/25, at 12.
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of the plea offer; and 4) that the petitioner was consequently prejudiced. See
id. at 735.
Initially, we conclude that Cruz Aviles’s claims that Attorney Courtney
Monson (“Attorney Monson”), who represented him after he discharged
Attorney Crystle, and Attorney Thompson, who took over the case after
Attorney Monson left the Public Defender’s Office, were ineffective for failing
to convey the plea offer is meritless. As stated above, the uncontradicted
testimony at the evidentiary hearing was that the plea offer was contingent
on Cruz Aviles waiving his preliminary hearing which did not occur. Moreover,
neither Attorney Monson nor Attorney Thompson represented him at that
time. Counsel cannot be found ineffective for failing to convey a plea offer
that was no longer valid.
Cruz Aviles also raises, for the first time on appeal, a claim that PCRA
Counsel was ineffective for failing to properly litigate his claim of prior
counsels’ ineffectiveness for failing to convey a plea offer to him. See Pro Se
Brief at 6-15.
In Bradley, our Supreme Court held that a PCRA petitioner may “after
a PCRA court denies relief, and after obtaining new counsel or acting pro se,
raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so,
even if on appeal.” Bradley, 261 A.3d at 401. The Bradley Court provided
the following guidance for considering claims of PCRA counsel’s
ineffectiveness:
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In some instances, the record before the appellate court will be
sufficient to allow for disposition of any newly-raised
ineffectiveness claims. However, in other cases, the appellate
court may need to remand to the PCRA court for further
development of the record and for the PCRA court to consider such
claims as an initial matter. Consistent with our prior case law, to
advance a request for remand, a petition would be required to
provide more than mere boilerplate assertions of PCRA counsel’s
ineffectiveness; however, where there are material facts at issue
concerning claims challenging counsel’s stewardship and relief is
not plainly unavailable as a matter of law, the remand should be
afforded.
Id. at 402 (internal citations, quotations, footnote, and brackets omitted). An
appellate court may decline to consider “mere boilerplate assertions” of PCRA
counsel’s ineffectiveness, grant or deny relief on straightforward claims, or
remand when there are material issues of fact that the petitioner may be
entitled to relief. See id. at 402-03.
As noted above, our review of the record demonstrates a great deal of
confusion regarding who represented Cruz Aviles at the time the plea offer
was tendered. Moreover, we are unable to determine from the record why
PCRA Counsel did not call Attorney Redzich and Attorney Crystle to testify at
the hearing as they would be able to clear up the confusion and testify as to
whether one of them informed Cruz Aviles of the plea offer prior to his
preliminary hearing. Instead, PCRA Counsel only called Attorney Thompson
who had no personal knowledge of the events in question. Thus, our review
of the record compels the conclusion that there are issues of material fact
meriting a remand pursuant to Bradley. Accordingly, we are constrained to
vacate the denial of PCRA relief as to Cruz Aviles’s claim that pretrial counsels
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were ineffective for failing to convey a plea offer to him. We also remand for
a hearing on his claim of ineffective assistance of PCRA counsel for failing to
call Attorneys Redzich and Crystle as witnesses. The PCRA Court shall appoint
new counsel for Cruz Aviles and counsel shall ensure that prior PCRA Counsel,
Attorney Weisenberger, and pretrial counsels, Attorneys Redzich and Crystle,
testify at the hearing.
Order affirmed in part and vacated in part. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/13/2026
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