Opinion
J-S59013-18 No. 552 EDA 2018
11-28-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. LUIS G. ZAYAS CINTRON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order January 5, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001712-2010 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Luis G. Zayas Cintron, appeals from the order entered in the Chester County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. On June 23, 2011, a jury convicted Appellant of attempted murder, two counts of aggravated assault, two counts of simple assault, recklessly endangering another person, terroristic threats, and two counts of possession of an instrument of crime, in connection with Appellant's shooting at Victim on April 6, 2010. On September 7, 2011, the court sentenced Appellant to an aggregate term of 23 years and 4 months to 50 years' imprisonment. This Court affirmed the judgment of sentence on April 5, 2013, and our Supreme Court denied allowance of appeal on September 5, 2013. See Commonwealth v. Cintron , 75 A.3d 545 (Pa.Super. 2013), appeal denied, 621 Pa. 663, 74 A.3d 125 (2013).
On March 26, 2014, Appellant timely filed the current pro se PCRA petition, raising a claim of trial counsel's ineffective assistance. The court appointed PCRA counsel. On August 29, 2014, PCRA counsel filed a Turner/Finley letter and a request to withdraw as counsel. On October 2, 2014, the PCRA court issued notice of its intent to dismiss the petition without a hearing, per Pa.R.Crim.P. 907. Appellant responded pro se on October 21, 2014. On October 24, 2014, the court dismissed Appellant's PCRA petition and granted PCRA counsel's petition to withdraw.
Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley , 550 A.2d 213 (1988).
On October 13, 2015, this Court vacated the PCRA court's decision and remanded for appointment of new counsel and for further proceedings based on PCRA counsel's failure to address Appellant's ineffective assistance of counsel claim, as well as the PCRA court's failure to address the issue where the PCRA court incorrectly stated the preliminary hearing transcript was not in the certified record. See Commonwealth v. Cintron , No. 3189 EDA 2014, unpublished memorandum (Pa.Super. filed Oct. 13, 2015). The court appointed new PCRA counsel on October 14, 2015. New PCRA counsel filed a Turner/Finley letter and request to withdraw as counsel on April 22, 2016. On May 26, 2016, the PCRA court issued notice of its intent to dismiss the petition without a hearing, per Rule 907 and, on January 30, 2017, the court granted new PCRA counsel's petition to withdraw.
On February 2, 2017, the PCRA court appointed current counsel, who filed an amended petition on June 26, 2017, to raise Appellant's ineffective assistance of trial counsel claim. On October 11, 2017, the PCRA court issued notice of its intent to dismiss the petition without a hearing, per Rule 907 and, on January 5, 2018, the court denied relief. Appellant timely filed a notice of appeal on February 2, 2018. On February 22, 2018, the court ordered Appellant to file a concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b); Appellant timely complied on March 15, 2018.
Appellant raises one issue on appeal:
DID THE PCRA COURT ERR BY DENYING APPELLANT AN EVIDENTIARY HEARING AND RELIEF PURSUANT TO THE POST-CONVICTION RELIEF ACT?(Appellant's Brief at 3).
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah , 42 A.3d 335 (Pa.Super. 2012).
The law presumes counsel has rendered effective assistance. Commonwealth v. Williams , 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction; and, (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball , 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams , supra.
"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit...." Commonwealth v. Pierce , 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski , 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the 'reasonable basis' test to determine whether counsel's chosen course was
designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective.Pierce , supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The [appellant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In [ Kimball , supra ], we held that a "criminal [appellant] alleging prejudice must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."Commonwealth v. Chambers , 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) (some internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable William P. Mahon, we conclude Appellant's issue merits no relief. The PCRA court's opinion comprehensively discusses and properly disposes of the question presented. ( See PCRA Court Opinion, filed October 11, 2017, at fn. 2) (finding: at trial, Commonwealth introduced exhibit showing table in Appellant's apartment was made of wood; Commonwealth also introduced testimony from Officer Harper describing table in Appellant's apartment as very small and white in color; Appellant attacks trial counsel's failure to impeach Victim's trial testimony with Victim's testimony at preliminary hearing, during which Victim stated he was sitting at table with Appellant in Appellant's apartment and could see Appellant pull gun out of his waistband through glass table; nevertheless, review of record does not show Victim testified inconsistently at trial; at preliminary hearing, Victim testified about composition of "dining room" table but at trial, Victim did not testify about composition of table; record is unclear regarding whether there was more than one table in Appellant's residence; thus, nothing in Victim's preliminary hearing testimony was so inconsistent with his trial testimony as to compel conclusion that Appellant was denied use of vital impeachment evidence at trial; Victim testified consistently at both proceedings that he saw Appellant pull gun from his waistband; trial counsel was not ineffective for failing to impeach Victim with his preliminary hearing testimony where testimony from two proceedings was not necessarily inconsistent; moreover; even if trial counsel had impeached Victim with this minor discrepancy concerning physical composition of table, outcome of trial would not have changed, given overwhelming evidence of Appellant's guilt; therefore, Appellant failed to prove prejudice to establish his ineffective assistance of counsel claim; similarly, Appellant cannot show necessary prejudice regarding counsel's failure to question Appellant about Officer Harper's testimony describing table, where Officer Harper's testimony is not irreconcilable with Victim's preliminary hearing testimony that table was glass; Officer Harper did not testify that entire table was white or made of non-transparent material; picture of wood table in Commonwealth's Exhibit 20 was not identified as same table Victim had described as glass at preliminary hearing; whether Exhibit 20 showed same table Victim described is unclear; for these reasons, Appellant's ineffective assistance of counsel claim fails). Accordingly, we affirm based on the PCRA court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/28/18
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