Opinion
J-S62007-18 No. 1230 EDA 2017
12-04-2018
COMMONWEALTH OF PENNSYLVANIA v. EDWIN GAGO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 17, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013691-2010 BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY LAZARUS, J.:
Edwin Gago appeals from the order, entered in the Court of Common Pleas of Philadelphia County, denying his petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"). Upon review, we affirm, based in part on the opinion authored by the Honorable Susan I. Schulman.
The trial court summarized the relevant facts as follows:
At trial, the Commonwealth presented the testimony of Edward DeOleo Valdez. On September 21, 2010, Mr. DeOleo left the home he occupied with his girlfriend, Maritza Rodriguez, at 3060 E. Street, to go to the corner grocery [store] at E. and Clearfield [Streets]. [DeOleo] had worked at that grocery [store] for the previous year and a half. He had originally met Ms. Rodriguez, as well as her previous boyfriend, the Appellant, Edwin Gago, as customers at that store. [Gago] and Ms. Rodriguez have two (2) children together.
While walking to the store, Mr. DeOleo heard steps behind him, turned, and saw a person behind him, wearing a black mask.2 Recognizing his body, face and eyes, Mr. DeOleo spoke [Gago's] nickname, 'Mingo', and in response, heard [Gago] say in a voice which DeOleo recognized, 'I told you I would get you in the street, Cabron.' Mr. DeOleo then turned, ran towards the grocery store, and heard gunshots as he ran. Mr. DeOleo was struck in the back, stomach and head as he ran towards and into the grocery store. The owner of the grocery store, Eustacia Guzman, came to his assistance, [and] called Ms. Rodriguez, who ran to the grocery store. As he lay on the floor of the grocery store, Mr. DeOleo repeatedly told Mr. Guzman and Ms. Rodriguez that 'Mingo' had shot him.
Mr. DeOleo was taken to Temple University Hospital where he underwent surgery on his pelvis, intestines and stomach. In addition to the wounds in his abdomen, he also sustained wounds in his shoulder and on his head. He was hospitalized for nine days and had a recovery period in excess of three months. While at Temple University Hospital, Mr. DeOleo was shown a photo array and identified [Gago] as his assailant. He again identified [Gago] as his assailant at trial.
[Gago] was, as of September 2010, under a Protection from Abuse ("PFA") order obtained by Ms. Rodriguez. Ms. Rodriguez testified that she had sought the restraining order in June of 2010 because [Gago] had harassed her both at home and at her place of employment, a Hess station on City Line Avenue, by repeated unwanted visits and phone calls in which he threatened to kill himself if Ms. Rodriguez would not allow him to return to the home that he had shared with Ms. Rodriguez and their two sons. Ms. Rodriguez testified that she observed [Gago] driving past her home displaying what she believed to be a gun. She testified that she was scared of [Gago] because she believed that he was violent, that she and [Gago] argued, and that [Gago] choked her 'so many times.'
[Gago] sought to establish that Ms. Rodriguez sent him messages through Facebook and left text messages on his phone seeking to reconcile with him. Rodriguez denied that she had made the Facebook postings or the phone calls. The Commonwealth introduced testimony identifying the phone number used for these text messages as belonging, at the time of the alleged text messages, to Jorge Santoni, [Gago's] brother, not Ms. Rodriguez.
[Gago] presented alibi testimony through his cousin, Damien Santoni, who contended that [Gago] was at his garage at 249 West Duncannon [Street] doing electrical work at the time he allegedly had made the threatening drive-by on September 21, 2010[,] described by DeOleo[,] and that [Gago] had been present at his garage at 4610 4th Street at the time Mr. Deoleo was shot. Mr. Santoni's testimony was supported by the testimony of his son, Devon Moore, who testified that he had seen [Gago] at the 249 West Duncannon [Street] garage as well as at the 4610 [4]th Street garage at those times.
[Gago] also presented the testimony of his niece, Yajaira Reyes, who lives with his mother, to dispute the description of [the] July of 2010 encounter provided by Ms. Rodriguez and Mr. DeOleo. In contrast to the testimony of Mr. DeOleo and Ms. Rodriguez, Ms. Reyes testified that the aggressor was Ms. Rodriguez who "spoke in a bad tone" to [Gago] and said[,] "What is this cabron [sic] doing here, this bastard, this son of a bitch, I'm going to put him in jail." Ms. Reyes testified that [Gago] said nothing during the encounter.
Trial Court Opinion, 12/18/17, at 2-4.2DeOleo testified to having several previous encounters with Gago. One took place in July of 2010 at City Hall. DeOleo was there with Rodriguez and her son Javier when they ran into Gago who, according to DeOleo, came towards them with a threatening and menacing face and told DeOleo that "I'm going to get you in the street, Cabron." Another encounter took place on the morning of September 21, 2010. DeOleo stood in the doorway of his home, which he shared with Rodriguez, with Javier and observed Gago drive past in a truck and come to a stop in the road, and looked at DeOleo in what he described as a threatening manner. DeOleo went to the grocery store because he was scared and observed Gago circle the block and return to park in front of the home.
On September 26, 2011, a jury convicted Gago of attempted murder in the first degree, aggravated assault, possessing a firearm without a license, and possessing instruments of crime. On March 23, 2012, the court sentenced Gago to an aggregate term of fifteen to thirty years of incarceration. Gago filed a direct appeal and, on November 20, 2013, this Court affirmed his judgment of sentence. Commonwealth v. Gago , No. 1942 EDA 2012 (Pa. Super. filed Nov. 20, 2013) (unpublished memorandum). Gago subsequently filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied. Commonwealth v. Gago , 94 A.3d 1007 (Pa. 2014).
The court sentenced Gago as follows: 15-30 years' imprisonment for attempted murder; 5-10 years' concurrent imprisonment for aggravated assault; 2-4 years' concurrent imprisonment for possessing a firearm without a license; and no further penalty imposed on possessing an instrument of crime.
On May 18, 2015, Gago filed a counseled PCRA petition, and subsequently amended it, challenging trial counsel's effectiveness. Specifically, Gago claimed: (1) trial counsel was ineffective for opening the door to other crimes/bad acts evidence; (2) trial counsel was ineffective for failing to object to the attempted murder and aggravated assault instruction given by the court; and (3) trial counsel was ineffective for failing to object to inadmissible hearsay evidence. On March 17, 2017, the court dismissed Gago's petition. This appeal followed.
On appeal, Gago raises the following issues:
1. Did the PCRA court err by denying relief on a claim alleging that trial counsel was ineffective for opening the door to other crimes or bad acts evidence?Appellant's Brief, at 3.
2. Did the PCRA court err by denying relief on a claim alleging that [] trial counsel was ineffective for not objecting to defective attempted murder and aggravated assault instructions?
3. Did the PCRA court err by denying relief on a claim alleging that trial counsel was ineffective for not objecting to incriminating inadmissible hearsay evidence?
"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Abu-Jamal , 941 A.2d 1263, 1267 (Pa. 2008) (citation omitted).
[C]ounsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his or her conduct; and (3) [the petitioner] was prejudiced by counsel's action or omission. To demonstrate prejudice, an appellant must prove that a reasonable probability of acquittal existed but for the action or omission of trial counsel. A claim of ineffective assistance of counsel will fail if the petitioner does not meet any of the three prongs. Further, a PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim and may not rely on boilerplate allegations of ineffectiveness.Commonwealth v. Perry , 959 A.2d 932, 936 (Pa. Super. 2008) (punctuation marks and citations omitted).
In determining whether counsel's action was reasonable, the court does not consider "whether there were other more logical courses of action" counsel could have pursued, but simply examines whether counsel's decision had any reasonable basis. Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007). Conversely, to merit relief, counsel's action, given all the other available alternatives, must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Miller , 431 A.2d 233, 234 (Pa. 1981).
A failure to satisfy any prong of the test for ineffectiveness requires rejection of the claim. Washington , 927 A.2d at 594. "In the context of a PCRA proceeding, [the defendant] must establish that the ineffective assistance of counsel was of the type 'which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.'" Id. (quoting 42 Pa.C.S.A. § 9543(a)(2)). The defendant must establish actual prejudice, or demonstrate that the alleged act of ineffectiveness falls within a narrow range of circumstances in which there is a presumption of prejudice. Commonwealth v. Reed , 971 A.2d 1216, 1224-25 (Pa. 2009).
As the Pennsylvania Supreme Court emphasized, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective" under the law in existence at the time of counsel's act or omission. Commonwealth v. Daniels , 963 A.2d 409, 429 (Pa. 2009) (quoting Strickland v. Washington , 466 U.S. 668, 689 (1984)). "[A] defendant is not entitled to relief simply because the strategy is unsuccessful." Commonwealth v. Tippens , 598 A.2d 553, 556 (Pa. Super. 1991) (en banc); accord Commonwealth v. Buksa , 655 A.2d 576, 582 (Pa. Super. 1995).
Gago first claims that trial counsel was ineffective for "opening the door" to other bad acts evidence. On direct appeal, this Court concluded that trial counsel in fact had "opened the door" to this evidence and, thus, Pennsylvania Rule of Evidence 404(b) did not bar its admission. See Commonwealth v. Gago , No. 1942 EDA 2012 (Pa. Super. filed Nov. 20, 2013) (unpublished memorandum). This testimony included evidence of 911 call logs from the home Gago and Rodriguez shared as well as testimony by Rodriguez that Gago was violent, that he was cheating on her, and that he was drinking and smoking marijuana heavily. The issue before us is whether counsel is ineffective for having done so. After our review of the parties' briefs, the record and the relevant law, we conclude that Judge Schulman has thoroughly and properly addressed this issue in her opinion. See Trial Court Opinion, 12/20/17, at 7-13 (trial counsel's effort to undercut Commonwealth's argument that victim was in fact jealous and violent party did have reasonable basis designed to effectuate Gago's best interest and fact that it was unsuccessful is immaterial; further, given compelling evidence against him, Gago failed to establish prejudice).
Gago next claims that trial counsel was ineffective for not objecting to defective attempted murder and aggravated assault instructions. Specifically, Gago argues that word "allegedly" was not included in the jury instruction prior to the word "shot" or "shooting." He claims counsel's failure to object or request the court to modify or recharge the jury with the omitted language prejudiced him by making it appear that the court agreed that Gago was the shooter.
Our Supreme Court has stated:
A trial court has wide discretion in phrasing jury instructions. When reviewing an allegation of an incorrect jury instruction, the appellate court must view the entire charge to determine whether the trial court clearly and accurately presented the concepts of the legal issue to the jury and should not reverse, as a result of the instruction, unless the trial court committed an abuse of its discretion. We will not examine a phrase or sentence of an instruction in a vacuum. Rather, when we evaluate a challenge to a charge, we must consider how each part fits together to convey a complete legal principle.Commonwealth v. Ragan , 743 A.2d 390, 397-98 (Pa. 1999) (citations omitted). Trial counsel will not be held ineffective for failure to object to an erroneous jury instruction unless the petitioner can establish prejudice: i.e., if counsel had objected to the charge, there is a reasonable probability that the result at trial would have been different. Commonwealth v. McGill , 832 A.2d 1014, 1023 (Pa. 2003).
Pennsylvania Standard Jury Instruction § 12.901A.1 provides in pertinent part:
First, that the defendant did a certain act, that is, [he] [she] [describe act]; Second, that at the time of this alleged act, the defendant had the specific intent to kill [name of victim], that is, [he] [she] had a fully formed intent to kill and was conscious of his or her own intention; and Third, that the act constituted a substantial step toward the commission of the killing the defendant intended to bring about.Pennsylvania Suggested Standard Criminal Jury Instructions, § 12.901A.1. Here, the court gave the following jury instruction for the charge of attempted murder:
Number one, that Mr. Gago did a certain act; that is, that he shot Mr. DeOleo three times in the back, the stomach, the head . . . that when he shot Mr. DeOleo three times the defendant had specific intent to kill and was conscious of his own intention . . . the shooting constituted a significant step toward the commission of a killing that the defendant intended to bring about.N.T Trial, 9/26/11, at 69-72.
Because the trial court's instruction closely tracked the language of the Pennsylvania Suggested Standard Jury Instructions, we presume the instruction is accurate. See Commonwealth v. Kerrigan , 920 A.2d 190, 198 (Pa. Super. 2007). The court included in the instruction that each element of each offense must be established beyond a reasonable doubt, making clear that it is the jury's prerogative to convict. N.T. Trial, 9/26/11, at 69-71. Further, the evidence at trial, including the video surveillance of the entire shooting and the repeated statements by the victim that it was Gago who shot him, was overwhelming. As such, Gago failed to establish that but for trial counsel not objecting, the jury would have reached a more favorable verdict. Ragan , supra. Thus, we find no prejudice and, therefore, trial counsel cannot be found ineffective. See Commonwealth v. Geathers , 847 A.2d 730, 737 (Pa. Super. 2004) (finding evidence against defendant too overwhelming to conclude defendant was prejudiced by erroneous jury instruction).
Finally, Gago claims that trial counsel was ineffective for not objecting to incriminating inadmissible hearsay evidence. Gago argues his counsel should have objected to the alleged hearsay evidence presented by Assistant District Attorney Kathryn Brown. ADA Brown testified to being present when another prosecutor called the disputed phone number. Gago provided the number and alleged it belonged to Rodriguez and that she had been calling and texting him. Instead, a man answered, identifying himself as Jorge Santoni, Gago's brother, who stated he owned the phone for five years. Gago argues that ADA Kathryn Brown's testimony, as to hearing Jorge Santoni, answer the phone and admit to owning the number for five years, was inadmissible.
The term "hearsay" is "a statement made by someone other than the declarant while testifying at trial and is offered into evidence to prove the truth of the matter asserted," which "is normally inadmissible at trial." Commonwealth v. Ali , 10 A.3d 282, 316 (Pa. 2010). However, "out-of-court statements may be admissible . . . for some relevant purpose other than to prove the truth of the matter asserted." Id.; see also Commonwealth v. Puksar , 740 A.2d 219, 225 (Pa. 1999) (finding statements by witnesses who overheard defendant and his brother arguing admissible because they were offered to establish motive for killing, not to prove truth of matter asserted); Commonwealth v. Brown , 648 A.2d 1177, 1183 (Pa. 1994) (finding testimony from witness was offered to support Commonwealth's position that self-defense claim was sham, not offered as proof of matter asserted). "When a witness testifies that someone said something to him and the purpose is not to show that what was said was true but that the statement was made, the testimony is not hearsay but instead a verbal act." Commonwealth v. Jones , 543 A.2d 548, 550 (Pa. Super. 1988) (citations omitted).
Here, ADA Brown's testimony, that she was present when the prosecutor dialed the disputed number and a man answered who identified himself as Jorge Santoni and acknowledged that he owned the phone for five years, was not admitted to prove the truth of the matter asserted. The truth of ADA Brown's testimony, whether Jorge Santoni was in fact the owner of the phone for five years, is not at issue. Instead, the Commonwealth admitted the testimony as a "verbal act," offered to demonstrate that because someone else answered the phone, Rodriguez did not possess the phone and Gago falsified the evidence he had supplied. See id. Therefore, because the evidence was admissible, counsel cannot be found ineffective for failing to object.
The PCRA court's findings are supported by the record. We therefore, affirm the PCRA court's order denying relief. Abu-Jamal , supra. We direct the parties to attach a copy of Judge Schulman's opinion in the event of further proceedings.
Order affirmed. PJE Ford Elliott, joins the memorandum. Judge McLaughlin concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/4/18
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