Opinion
J-S37039-17 No. 1815 MDA 2016
06-27-2017
COMMONWEALTH OF PENNSYLVANIA v. JOSE L. GONZALEZ, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered October 25, 2016 in the Court of Common Pleas of Lebanon County, Criminal Division, No(s): CP-38-CR-0000176-2013 BEFORE: STABILE, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Jose L. Gonzalez ("Gonzalez") appeals from the Order granting in part, and denying in part, his first Petition filed pursuant to the Post Conviction Relief Act. We affirm.
See 42 Pa.C.S.A. §§ 9541-9546.
This Court previously set forth the relevant factual history underlying this appeal, which we adopt for the purpose of this appeal. See Commonwealth v. Gonzalez , 116 A.3d 696 (Pa. Super. 2014) (unpublished memorandum at 1-4). The trial court sentenced Gonzalez to an aggregate prison term of 20 to 40 years for a shooting that left the victim paralyzed. This Court affirmed the judgment of sentence. See id.
On November 12, 2015, Gonzalez, pro se, filed the instant PCRA Petition. Gonzalez was appointed PCRA counsel, who filed an Amended Petition, wherein Gonzalez claimed that his trial counsel was ineffective, and further claimed that his direct appeal counsel was ineffective for failing to timely petition for allowance of appeal, to the Pennsylvania Supreme Court, of this Court's Order affirming his judgment of sentence. On October 21, 2016, the PCRA court conducted a hearing. On October 25, 2016, the PCRA court entered an Order granting in part, and denying in part, Gonzalez's Petition. Specifically, the PCRA court granted Gonzalez's Petition with regard to his claim of appellate counsel's ineffectiveness, and reinstated his right to petition the Pennsylvania Supreme Court for allowance of appeal of this Court's Order affirming Gonzalez's judgment of sentence. The PCRA court determined that Gonzalez's remaining issues of trial counsel's ineffectiveness lacked merit, and, accordingly, denied them. This timely appeal followed.
The PCRA court determined that, although direct appeal counsel had deposited the appeal papers in the Lebanon County Courthouse mail system in a timely fashion, the Supreme Court refused to accept the documents, and quashed the appeal as untimely, because they had not been mailed directly from a post office. See PCRA Court Order, 10/25/16, at 5 (unnumbered).
Our Supreme Court subsequently denied Gonzalez's Petition for allowance of appeal. See Commonwealth v. Gonzalez , 2017 Pa. LEXIS 816 (Pa. 2017).
On appeal, Gonzalez raises the following issues for our review:
1. Whether trial counsel was ineffective for failing to obtain the victim's toxicology report[,] and use said report at trial?
2. Whether trial counsel was ineffective for failing to object to the Commonwealth's statement during closing arguments, where the Commonwealth stated that [Gonzalez] said, "I didn't do shit," and spelling "Ha! Ha!"?
3. Whether trial counsel was ineffective for failing to properly cross-examine witnesses[] Lawrence Graves ["Graves"], Jose Martinez ["Martinez"] and Sergeant [Johnathan] Hess ["Sergeant Hess"]?Brief for Appellant at 4-5 (some capitalization omitted).
4. Whether trial counsel was ineffective for failing to object to the introduction of the Grand Jury transcripts that were used with Sergeant Hess to impeach Anthony DeJesus ["DeJesus"], as said transcripts were never shown or provided to [Gonzalez] or his counsel?
5. Whether trial counsel was ineffective for failing to file a motion in limine asking the court to preclude the testimony at trial that the U.S. Marshal[]s were used to apprehend [Gonzalez,] and that it took eight (8) months to do so?
6. Whether trial counsel was ineffective for failing to call witnesses after [Gonzalez] had asked counsel to do so?
In reviewing the denial of a PCRA Petition, we examine whether the PCRA court's determination "is supported by the record and free of legal error." Commonwealth v. Rainey , 928 A.2d 215, 223 (Pa. 2007) (citations omitted). Further, a PCRA court's credibility determinations should be provided great deference by reviewing courts. See Commonwealth v. Johnson , 966 A.2d 523, 539 (Pa. 2009).
To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must ... demonstrate: (1) that the underlying claim has arguable merit; (2) that no reasonable basis existed for counsel's actions or failure to act; and (3) that the petitioner suffered prejudice as a result of counsel's error. To prove that counsel's chosen strategy lacked a reasonable basis, a petitioner must prove that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. Regarding the prejudice prong, a petitioner must demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or
inaction. Counsel is presumed to be effective; accordingly, to succeed on a claim of ineffectiveness[,] the petitioner must advance sufficient evidence to overcome this presumption.Commonwealth v. Johnson , 139 A.3d 1257, 1272 (Pa. 2016) (internal citations and quotation marks omitted). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Martin , 5 A.3d 177, 183 (Pa. 2010).
In his first issue, Gonzalez contends that trial counsel was ineffective for failing to request the victim's toxicology report. Brief for Appellant at 10. Gonzalez believes that the victim lied about the amount of alcohol he had consumed on the night of the shooting. Id. at 10-11. Gonzalez asserts that he had asked counsel to request the victim's toxicology report in order to demonstrate that the victim had consumed more than two beers, and possibly other substances. Id. at 11. Gonzalez claims that the outcome of trial would have been different if trial counsel had obtained the victim's toxicology report and used the report at trial. Id. at 13.
In its Order, the PCRA court addressed Gonzalez's first issue, and determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at 2 (unnumbered) (wherein the PCRA court noted that the victim admitted that he had been drinking on the night of the shooting, and that Gonzalez "has never produced any intoxication report that would have impeached the victim's own testimony[,] nor has [Gonzalez] proffered any witness or any expert who would have impugned the victim's testimony based on his level of intoxication."). We agree with the PCRA court's determination, which is supported by the record and free of legal error, and affirm on this basis as to Gonzalez's first issue. See id.; see also Commonwealth v. Natividad , 938 A.2d 310, 322 (Pa. 2007) (noting that "[a] PCRA petitioner must exhibit a concerted effort to develop his ineffectiveness claim and may not rely on boilerplate allegations of ineffectiveness.").
In his second claim, Gonzalez contends that trial counsel was ineffective for failing to object to statements made during the prosecutor's closing arguments that Gonzalez had said "I didn't do shit" and spelling "Ha! Ha!" Brief for Appellant at 14. Gonzalez asserts that he never confessed to the shooting, and the Commonwealth never asked Gonzalez what he was referencing when he made those comments. Id. at 14-15. Gonzalez claims that, although he asked trial counsel to object to the prosecutor's statements, counsel failed to do so. Id. at 15. Gonzalez argues that the outcome of his trial would have been different had counsel objected to the prosecutor's remarks. Id. at 16.
In its Order, the PCRA court addressed Gonzalez's second issue, and determined that trial counsel was not ineffective for failing to object to the prosecutor's closing remarks because the remarks were based on Gonzalez's Facebook posts, and were not unsupported or improper. See PCRA Court Order, 10/25/16, at 2 (unnumbered). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Gonzalez's second issue. See id.
In his third issue, Gonzalez contends that trial counsel was ineffective for failing to properly cross-examine Graves, Martinez, and Sergeant Hess. Brief for Appellant at 17. Gonzalez asserts that statements made by Graves and Martinez were contradictory. Id. at 17-24. Gonzalez argues that the outcome of his trial would have been different had counsel properly cross-examined these witnesses. Id. at 25.
At the PCRA hearing, Gonzalez testified that, according to Sergeant Hess's reports, Martinez initially denied that Gonzalez was present at the scene of the shooting, but subsequently testified at trial that Gonzalez was the shooter. See Brief for Appellant at 20-22. Gonzalez also testified that he requested his trial counsel to impeach Martinez with Sergeant Hess's reports, and to question Sergeant Hess regarding Martinez's initial statements to police that Gonzalez was not present at the scene of the shooting. See id. at 23-24. --------
In its Order, the PCRA court addressed Gonzalez's third issue, and determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at 2-3 (unnumbered). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Gonzalez's third issue. See id.
In his fourth issue, Gonzalez contends that trial counsel was ineffective for failing to object to the introduction of Grand Jury transcripts to impeach DeJesus, because such transcripts had never been provided to Gonzalez or his trial counsel prior to their admission into evidence. Brief for Appellant at 26. Gonzalez asserts that the outcome of his trial would have been different if counsel had objected to the transcripts. Id. at 30.
In its Order, the PCRA court addressed Gonzalez's fourth issue, and determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at 3-4 (unnumbered). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Gonzalez's fourth issue. See id.
In his fifth issue, Gonzalez contends that trial counsel was ineffective for failing to file a motion in limine to preclude testimony at trial that U.S. Marshals were used to apprehend Gonzalez, and that it took them eight months to do so. Brief for Appellant at 31. Gonzalez asserts that he was "on the run for a completely different charge[,]" and that "[w]hen he was arrested[,] it wasn't for this case." Id. at 31. Gonzalez claims that his classification as being "on the run" from authorities hurt his case because it made him seem guilty. Id. at 32. Gonzalez argues that "the [j]ury should have never become privy to such knowledge[,] and the prejudicial nature of such facts outweighs the probative value." Id. at 34. Gonzalez contends that the outcome of his trial would have been different if counsel had filed a motion in limine to preclude such testimony. Id. at 35.
In its Order, the PCRA court addressed Gonzalez's fifth issue, and determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at 3 (unnumbered). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Gonzalez's fifth issue. See id.
In his sixth issue, Gonzalez contends that trial counsel was ineffective for failing to call witnesses that Gonzalez wanted to be called. Brief for Appellant at 36. Specifically, Gonzalez asserts that trial counsel should have heeded Gonzalez's request to call Sharday Ritter ("Ritter") and Christopher Malandra ("Malandra") to testify at trial. Id. at 36-39. Gonzalez claims that trial counsel never attempted to communicate with Ritter or Malandra, and merely sent them a subpoena a few days prior to trial. Id. at 40. Gonzalez asserts that Malandra testified at the PCRA hearing that, had he been contacted by trial counsel, he would have testified on Gonzalez's behalf. Id. at 40.
To prevail on a claim of trial counsel's ineffectiveness for failure to call a witness, the petitioner must show (1) that the witness existed; (2) that the witness was available; (3) that counsel was informed of the existence of the witness or should have known of the witness's existence; (4) that the witness was prepared to cooperate and would have testified on the petitioner's behalf; and (5) that the absence of the testimony prejudiced the petitioner. See Commonwealth v. Fletcher , 750 A.2d 261, 275 (Pa. 2000). Trial counsel will not be found ineffective for failing to investigate or call a witness unless there is some showing by the petitioner that the witness's testimony would have been helpful to the defense. See Commonwealth v. Auker , 681 A.2d 1305, 1319 (Pa. 1996).
In its Order, the PCRA court addressed Gonzalez's sixth issue, and determined that the issue lacks merit. See PCRA Court Order, 10/25/16, at 4 (unnumbered). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Gonzalez's sixth issue. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/27/2017
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