Opinion
J-S41038-18 No. 1530 EDA 2017
08-15-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOANILEE MONTANEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 11, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009567-2010 BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Joanilee Montanez, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, which denied his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its opinion, the PCRA court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
The PCRA court also granted counsel's motion to withdraw as counsel on April 11, 2017.
Appellant raises the following issues for our review:
DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT'S PCRA PETITION WHERE PCRA COUNSEL RENDERED INEFFECTIVE [ASSISTANCE] FOR NOT ADVANCING A MERITORIOUS CLAIM THAT DIRECT APPEAL COUNSEL WAS
INEFFECTIVE FOR NOT RAISING ON APPEAL THAT THE TRIAL COURT [ERRONEOUSLY] ADMITTED HEARSAY IDENTIFICATION TESTIMONY OF SEVERAL WITNESSES.(Appellant's Brief at 6).
DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT'S PCRA PETITION WHERE PCRA COUNSEL HAD RENDERED INEFFECTIVE [ASSISTANCE] FOR FAILING TO ADVANCE A MERITORIOUS CLAIM THAT DIRECT APPEAL COUNSEL WAS INEFFECTIVE FOR NOT RAISING ON APPEAL THAT TRIAL COUNSEL WAS INEFFECTIVE FOR: (A) FAILING TO OBJECT TO PREJUDICIAL ARGUMENTS[;] (B) FAILING TO OBJECT TO THE ADMISSION OF INFLAMMATORY PHOTOGRAPHS[;] (C) FAILING TO OBJECT TO THE TRIAL COURT'S DECISION NOT TO REMOVE AN UNTRUTHFUL JUROR [DUE] TO HIS NATIONALITY.
DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT'S PCRA PETITION WHERE PCRA COUNSEL FAILED TO AMEND AND CURE [THE] PETITION.
Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Ford , 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). 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). 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. Hardcastle , 549 Pa. 450, 701 A.2d 541 (1997).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Rose Marie DeFino-Nastasi, we conclude Appellant's issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed September 11, 2017, at 3-13) (finding: (1) no hearsay was elicited during testimony of Angela Ledino because she was impeached only with her prior statement that recounted statement Appellant had made to her; Appellant also challenges testimony of Miriam Acevedo and Zeleica Diaz, recounting what witness David Montes told them, as alleged hearsay; trial counsel objected to admission of those statements, but court overruled objection and appellate counsel did not challenge court's ruling on appeal; specifically, Mr. Montes testified he was present when Appellant shot Decedent, but Mr. Montes did not report homicide until he was arrested on drug offense over one month later; after Mr. Montes gave statement about homicide, Commonwealth charged Mr. Montes with conspiracy, but those charges were ultimately dismissed; at Appellant's trial, defense offered theory that Mr. Montes' statement to detectives about Appellant's involvement in homicide was fabricated to get Mr. Montes out of trouble; defense counsel thoroughly cross-examined Mr. Montes about his delay in reporting homicide; to rehabilitate Mr. Montes' credibility, Commonwealth presented testimony from Miriam Acevedo and Zeleica Diaz, that Mr. Montes had told them Appellant shot Decedent, as early as night of incident and two weeks later; statements at issue were non-hearsay because they were not offered for truth of matter asserted, i.e., that Appellant shot Decedent; rather, Commonwealth elicited testimony from witnesses, per Rule 613(c), to rehabilitate Mr. Montes' testimony from attack of recent fabrication; moreover, even if court's admission of statements at issue was erroneous, error was harmless, in light of overwhelming evidence of identification of Appellant as shooter by other eyewitnesses; appellate counsel cannot be deemed ineffective for failing to raise meritless claim on appeal, and PCRA counsel similarly was not ineffective for declining to pursue it; (2) at trial, Commonwealth admitted photo of crime scene that depicted Decedent's body covered by sheet with blood on it; photo was shown to give overall view of crime scene; fact that photo depicted blood does not necessarily render it gruesome and inflammatory; court would not have granted Appellant mistrial had trial counsel moved for mistrial on that basis; Commonwealth used photo of overall crime scene so jury could envision distance, lighting, and ability of eyewitnesses to make their observations; as this issue lacks merit, all of Appellant's related ineffectiveness claims fail; in opening statement, prosecutor stated evidence would show Appellant was guilty of crimes charged, which did not constitute personal opinion; prosecutor's comments during closing arguments were oratorical flair, illustrating that jurors must be true to their "solemn duty" to do justice even if that task is difficult; prosecutor's comments were not improper, and Appellant's related ineffectiveness claims fail; during trial, one juror was almost one hour late for court and delayed proceedings; juror initially said he had been in accident; upon further questioning, juror admitted he had overslept; court did not remove juror but stated if juror showed up late on following day, court would remove him; juror was on time for duration of proceedings; court had insufficient cause to remove juror; thus, Appellant's related ineffectiveness claims fail; (3) Appellant's claim as presented in concise statement is too vague for court to ascertain and address Appellant's issue). Accordingly, we affirm on the basis of the PCRA court's opinion.
See Commonwealth v. Hansley , 24 A.3d 410 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (explaining concise statement that is too vague to allow court to identify issue raised on appeal is functional equivalent of no concise statement at all; if concise statement is too vague, issue is waived on appeal).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/15/18
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