Opinion
J-S17014-14 No. 1499 MDA 2013
03-28-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. ROGELIO ZALDIVAR PENA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 28, 2011
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000942-2010
BEFORE: GANTMAN, P.J., ALLEN, J., and LAZARUS, J. MEMORANDUM BY LAZARUS, J.:
Rogelio Zaldivar Pena appeals from his judgment of sentence, entered in the Court of Common Pleas of Lebanon County, after the trial court reinstated his direct appeal rights nunc pro tunc. In 2011, a jury convicted Pena of third-degree murder and aggravated assault; he was sentenced to a standard range sentence of 20-40 years in prison for homicide, a $5,000 fine, $420 in restitution, and special parole conditions. After careful review, we affirm.
Specifically, the PCRA court found that trial counsel failed to file a brief for purposes of a direct appeal.
Pena's aggravated assault conviction merged for sentencing purposes.
Specifically, the court entered a no-contact order between Pena and the victim's family and Commonwealth witnesses. The court also ordered that upon parole, Pena not "own, possess or use any knife or any other cutting instrument, firearm, rifle or shotgun." Sentencing Order, 2/23/2011, at 1.
The trial court ably set forth the underlying facts of this case as follows:
On May 12, 2010, a stabbing occurred in a parking lot at Aldi's food store in Lebanon City, Lebanon County, Pennsylvania. (N.T. 36-37). Prior to the stabbing, the Defendant and the victim were arguing inside Aldi. (N.T. 58). The men left inside the store at approximately the same time. (N.T. 59). There was an altercation in the parking lot. (N.T. 184). The Defendant and the victim were seen grappling with each other in the Aldi parking lot before the victim was stabbed. (N.T. 47-49, 57). The victim was lying partially inside of the Defendant's van door, and the body was on the ground. (N.T. 37, 174). A man was standing over top of the victim. (N.T. 37). A stream of blood was flowing from the victim's chest. (N.T. 37).Trial Court Opinion on Post-Sentence Motions, 8/5/2011, at 2-3.
There were numerous witnesses that testified that after the stabbing the Defendant came back into the store, and he was holding a bloody knife. (N.T. 59, 63-64, 70, 74, 87-88, 91, 203, 205, 209-210, 216, 218, 223, 225). There was testimony that the Defendant said it was self-defense when he came back into the store. (N.T. 59). There was also testimony that the Defendant stated that a person tried to rob him. (N.T. 88, 209, 216). The Defendant left the store again, and eventually placed the knife on the ground outside. (N.T. 61, 63). The Defendant was taken into custody at the scene that day. (N.T. 41-42).
Johanna Morales (hereinafter "Morales") knew the Defendant and the victim. (N.T. 78). The victim was like a father figure to Morales. (N.T. 79). The Defendant and the victim knew each other. (N.T. 79). Morales had borrowed money from the Defendant more than one time. (N.T. 80, 249). The Defendant would ask for his money back, and Morales would feel threatened. (N.T. 81). Morales told the victim about the problems she was having with the Defendant. (N.T. 82). The night before the victim was killed, the Defendant came by Morales' house. (N.T. 82). The next morning, the Defendant came back to Morales' house. (N.T. 83) . The Defendant told the victim that Morales owed him money, and the victim told the Defendant to leave her alone. (N.T. 83). Then, the Defendant left. (N.T. 83). The Defendant called Morales later. (N.T. 84). Morales agreed to go to Aldi's to pay him. (N.T. 84) . Prior to going to Aldi, Morales went to lunch with the victim and her children. (N.T. 84). At lunch, Morales saw the Defendant. (N.T. 84). When leaving lunch, the Defendant gave Morales a note, which stated he would fight for her and "I am not scared to die for you." (N.T. 84, 249, 263-264). After lunch, Morales, the
victim, and her children all went to Aldi's, and they saw the Defendant there. (N.T. 85-86, 201). Morales paid for the groceries of the Defendant and for a friend of the Defendant's, Jose Ramos-Flores. (N.T. 80. 86, 198, 202).
On November 12, 2010, the Commonwealth filed Motions in Limine regarding evidence that was claimed to show the natural progression and chain of events among Pena, Morales, and Gonzalez, leading up to the victim's death. After oral argument, the trial court granted the motions in part and denied them in part. Subsequently, a jury convicted Pena of the above-mentioned offenses; the trial court imposed sentence on February 28, 2011. Post-sentence motions were filed and denied. Although trial counsel filed a timely notice of appeal, on February 8, 2012, our Court dismissed Pena's appeal due to counsel's failure to file a brief for Appellant. Commonwealth v. Pena, No. 1668 MDA 2011 (Pa. Super. filed 2/8/2012).
On appeal, Pena raises the following issues for our consideration:
(1) Whether the trial court erred when, contrary to its pre-trial order and opinion, it precluded defendant from presenting his case as prepared, specifically ruling contrary to its pre-trial ruling that evidence that Johanna Morales had sexual relations with defendant was admissible, where such reversal forced a change in defendant's trial strategy, mid-trial, and ultimately, caused defendant prejudice.
(2) Whether the trial court erred in its pre-trial ruling, when it determined that evidence that Johanna Morales had sexual relations with defendant to repay a portion of the money previously loaned to her was inadmissible as such information was part of the history and basis for the confrontation between the victim, Wilfredo Gonzalez, and defendant where the victim knew defendant had loaned money to Johanna Morales, and these facts and circumstances were believed to be the victim's motivation for
confronting and attacking defendant in order to keep defendant from collecting on the debt?
(3) Whether the jury's verdict of third-degree murder was contrary to the weight of the evidence?
(4) Whether the sentencing court erred in imposing a fine in the amount of five-thousand ($5000) dollars, with said fine being excessive in light of the sentence imposed and the defendant's financial circumstances?
(5) Whether the sentencing court erred when it referred to and considered crimes which were not pursued in Ohio as the trial court utilized such information as the basis for the imposition of sentence at the top of the standard range, justifying the statutory maximum as appropriate given defendant's prior record, as the utilization of such factors was inappropriate and an abuse of discretion as the standard sentence ranges reflect a defendant's prior record.
(6) Whether the trial counsel was ineffective for failing to present the entire Aldi surveillance video to the jury for their consideration, where such failure served no legitimate defense strategy and, ultimately, undermined the truth-determining process?
(7) Whether trial counsel was ineffective for failing to present the entire recorded telephone call to the jury for their consideration, where such failure served no legitimate defense strategy and, ultimately, undermined the truth-determining process.
(8) Whether trial counsel was ineffective for failing to consult and/or review the translation of the letter presented to the jury, where trial counsel relied upon a court-approved interpreter rather than the defendant, who authored said letter.
The last three issues raised by Pena all allege trial counsel's ineffectiveness. Ineffectiveness claims are properly raised in a timely Post Conviction Relief Act (PCRA) petition. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (case setting forth general rule that defendant should wait to raise claims of ineffective assistance of trial counsel until collateral review); see also Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) (discussing reaffirmation by Supreme Court of Grant and holding that, "absent certain circumstances, claims of ineffective assistance of counsel are to be deferred to Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., review."). Therefore, Pena's ineffectiveness claims are dismissed without prejudice for Pena to raise them, in addition to any other cognizable PCRA claims, in a properly filed PCRA petition. At that time the PCRA court will be in a position to ensure that, if necessary, Pena receives an evidentiary hearing on his claims.
To the extent that recent case law allows a defendant to raise collateral claims of counsel's ineffectiveness on direct appeal, we note that under such circumstances the defendant must first effectuate a valid waiver of PCRA review. Commonwealth v. Baker, 72 A.3d 652, 666-67 (Pa. Super. 2013) (before reviewing such claims on direct appeal, it is incumbent upon Court to determine whether defendant expressly, knowingly and voluntarily waived right to PCRA review). There is nothing in the record indicating that Pena effectuated such valid waiver.
Before we can rule on Pena's claims on appeal, we must first address the trial court's statement in its Pa.R.A.P. 1925(a) opinion, that the court incorrectly reinstated Pena's direct appeal rights on August 2, 2013, at the conclusion of his PCRA hearing. Specifically, the court finds that Pena's PCRA petition was untimely filed and, because Pena failed to plead and prove an exception to the PCRA's timing requirements, the PCRA court lacked jurisdiction to reinstate his appellate rights. We disagree.
The trial court incorrectly determined the date upon which our Court dismissed Pena's direct appeal. Although the order, as written, states it was entered on December 29, 2011, the order was not actually entered on the docket and filed with the court until February 8, 2012. See Pa.R.A.P. 108(a)(1). Because we must use the latter date for purposes of computing the date that Pena's judgment of sentence became final for purposes of the PCRA, we find that his petition was timely filed. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, the court did have jurisdiction to entertain Pena's PCRA petition, and, consequently, correctly determined that due to counsel's clear ineffectiveness for failing to file an appellate brief, Pena's direct appeal rights should be reinstated. See Commonwealth v. Fink, 24 A.3d 426 (Pa. Super. 2011).
See Trial Court Opinion, 9/19/2013, at 3 ("On December 29, 2011, the Superior Court of Pennsylvania dismissed the appeal for counsel's failure to file a brief.").
Pre-Trial Evidentiary Rulings
Pena's first two issues involve pre-trial rulings on the admissibility of evidence related directly to his trial strategy. First, Pena claims that the court erred by ruling at trial that evidence that Morales had sexual relations with him was inadmissible, where pre-trial it had ruled that same evidence relevant and admissible. As a result of this inconsistent ruling, Pena claims that he suffered undue prejudice because his defense counsel had to alter his trial strategy mid-trial.
The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of that evidence. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Although a court may find that evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact.Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002) (internal citations omitted). As an appellate court, we may reverse rulings on the admissibility of evidence only if we find that the trial court abused its discretion. Commonwealth v. Lockcuff, 813 A.2d 857, 860 (Pa. Super. 2002).
Instantly, pre-trial the court found that the evidence that Pena loaned Morales money prior to the victim's alleged murder, as well as the fact that Morales had sexual relations with Pena, were "relevant to show the natural history and progression of Defendant's case because the [evidence] shows the events that transpired [among] Defendant, Morales, and Gonzalez that led to the death of Gonzales." Trial Court Opinion on Commonwealth's Motions in Limine, 12/22/2010, at 4. However, the trial court denied the Commonwealth's request to admit the videotape made by Pena of him having sexual intercourse with Morales. Id. at 9-10.
At trial, the Commonwealth asked Morales whether Pena had made "sexual or romantic advances toward [her]." N.T. Trial at 1/3/2011, at 81. However, when defense counsel asked Morales on cross-examination whether she was having sex with Pena, the Commonwealth approached the bench and an in-chambers discussion ensued. Ultimately, the court told the defense that if it continued that line of questioning it would permit the Commonwealth to admit the videotape of Pena having sex with Morales, despite its earlier ruling on pre-trial motions. In response to the court's statement, the defense withdrew its question regarding a sexual relationship between Pena and Morales.
The threshold inquiry regarding the admission of evidence is whether the evidence is relevant. "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact." Commonwealth v. Spiewak, 617 A.2d 696, 699 (Pa. 1992). In addition, evidence is only admissible where the probative value of the evidence outweighs its prejudicial impact. Commonwealth v. Robinson, 721 A.2d 344 (Pa. 1998).
Instantly, the trial court acknowledges that it did reverse its earlier ruling on admissibility of the videotape that had the effect of cutting off the defense's line of questioning regarding a sexual relationship between Pena and Morales. The court, however, deems this error harmless. Pena, on the other hand, claims he suffered undue prejudice because of the inconsistent ruling.
The proper standard for determining whether an error involving state law is harmless is the same as the standard that applies to federal constitutional error. An error can be harmless only if the appellate court is convinced beyond a reasonable doubt that theCommonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978). In applying the overwhelming evidence test to determine if an error is harmless, a court may rely only on uncontradicted evidence. The uncontradicted evidence of guilt must be so overwhelming, and the prejudicial effect of the improperly admitted evidence so insignificant by comparison, that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. Id. at 168.
error is harmless. Where a trial error violates the U.S. Constitution, an appellate court, at a minimum, must employ the federal harmless error rule. A federal constitutional error cannot be found harmless unless an appellate court is convinced beyond a reasonable doubt that the error is harmless.
Here, while defense counsel may have felt forced to cease questioning Morales on her sexual relationship with Pena for fear of the videotape being introduced at trial, Pena has not explained how this affected his trial strategy. At trial, Pena claimed that he acted in self-defense with regard to the victim. Whether Pena and Morales' sexual encounters were consensual would not negate his self-defense claim with regard to the third-degree murder charge. Although one could infer that the victim was seeking retribution for Morales' unwanted relationship with Pena, the effect of this evidentiary error is not so prejudicial that it would have caused the jury to disbelieve Pena's defense, especially in the face of the overwhelming evidence of malice as well as Pena's contradictory stories given to individuals (witnesses, investigating officers and Morales) in the days following the victim's death.
Next, Pena claims that the trial court improperly determined that evidence that Morales had sex with Pena in order to repay him for money he had loaned her was inadmissible. Prior to trial, the court deemed the evidence inadmissible due to it being irrelevant. See Pa.R.E. 402 ("Evidence that is not relevant is not admissible."). Specifically, the court believed that based on the facts at the time, the evidence did not tend to show the natural progression and/or chain of events that transpired among Pena, Morales and Gonzalez, which eventually led to Gonzalez's death. We agree with the trial court that the reason why Morales may have been having sex with Pena (to repay a debt) did not tend to establish a material fact in the case or make a fact at issue more or less probable. Therefore, this claim has no merit.
Weight of the Evidence
Pena asserts that his third-degree murder conviction was against the weight of the evidence. Specifically he claims that there was sufficient evidence to prove that Pena acted in self-defense. We disagree.
We note that Pena properly preserved this issue by raising it in his post-sentence motions in accordance with Pa.R.Crim.P. 607(A)(3).
When a defendant challenges the weight of the evidence, relief in the form of a new trial may be granted only where the verdict shocks one's sense of justice. This Court reviews the trial court's exercise of discretion in ruling on the weight claim, not the underlying question of whether the verdict was against the weight of the evidence. Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).
Here, the third-degree murder verdict did not shock the trial court's sense of justice where: Gonzalez's dead body was found slumped inside the open driver's side door of Pena's van in the Aldi parking lot, immediately following his altercation with Pena, where a witness testified he saw the parties arguing, witnessed Pena pull a knife on the victim from three to four feet away, saw the victim "crumpled" up on the ground, and watched Pena re-enter the grocery store with a bloody knife in his hand. The victim died of a forceful, singular stab wound to the chest, three-quarters of an inch in length; the wound pierced and broke through two of Gonzalez's ribs and right lung and pierced the main artery of his heart.
Although Pena may have claimed self-defense, there was overwhelming evidence that Pena caused the victim's death with the requisite malice. 18 Pa.C.S. § 2501(a) (definition of criminal homicide); Commonwealth v. Mercado, 649 A.2d 946 (Pa. Super. 1994) (malice, essential element of third-degree murder, may be inferred from use of deadly weapon upon vital part of bodyj. Moreover, the jury, as the trier of fact, was free to believe the Commonwealth's witnesses and their version of the events surrounding the murder and to discount Pena's claim that he reasonably feared for his life. Commonwealth v. Pirela, 580 A.2d 848, 852 (Pa. Super. 1990).
Our Commonwealth's murder statute provides the following:
(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.18 Pa.C.S.A. § 2502.
(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
Sentencing Issues
Pena claims that the $5,000 fine that the trial court imposed as part of his sentence is excessive, does not reflect his ability to pay, and was an abuse of discretion.
The trial court correctly notes that, pursuant to 18 Pa.C.S.A. § 1101, a person who has been convicted of a murder or attempted murder may be sentenced to pay a fine not exceeding $50,000. 18 Pa.C.S.A. § 1101(1). Here, Pena was fined $5,000 - 10% of the maximum amount permissible under the statute. Under such circumstances, we cannot find that this was violative of the Eighth Amendment's prohibition of excessive fines or an abuse of the trial court's discretion where a fine is one of several sentences that a court may impose as an exclusive or additional sanction upon a person convicted of a crime. See Commonwealth v. Wall, 867 A.2d 578 (Pa. Super. 2005) ("a fine is a monetary amount equal to the severity of the crime and has been used to ensure that a person does not receive a pecuniary gain from the offense; it serves as a remedial measure and a deterrent). Moreover, nowhere in section 1101 is there language indicating that imposition of a fine is dependent upon the defendant's ability to pay. We find no merit to this issue.
Finally, Pena claims that the trial court abused its discretion by taking into account, when sentencing him, crimes which were not pursued against him in Ohio.
Our standard of review when a defendant challenges the discretionary aspects of a sentence is very narrow. We will reverse only where the defendant has demonstrated a manifest abuse of discretion. Commonwealth v. Hermanson, 674 A.2d 281, 283 (Pa. Super. 1996).
When the discretionary aspects of a sentence are questioned, an appeal is not guaranteed as of right. Commonwealth v. Moore, 617 A.2d 8, 11 (Pa. Super. 1992). Rather, two criteria must be met before an appeal may be taken. First, the appellant must "set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence," Pa.R.A.P. 2119(f), and, second, an appeal will only be granted when a "substantial question" has been presented. 42 Pa.C.S.A. § 9781(b). An appellate court will find a "substantial question" and review the decision of the trial court only where an aggrieved party can articulate clear reasons why the sentence imposed by the trial court compromises the sentencing scheme as a whole. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987).
Instantly Pena includes a Rule 2119(f) statement in his appellate brief, immediately preceding the argument on the merits of his discretionary aspect of sentencing claim. Moreover, we find that his issue regarding the inappropriate consideration of his involvement in a non-billed Ohio homicide, for sentencing purposes, raises a substantial question to invoke our appellate jurisdiction of his claim. Commonwealth v. Childress, 680 A.2d 1184 (Pa. Super. 1996) (defendant's claim, that sentencing court improperly considered his involvement in non-charged crime of drug trafficking, raised substantial question).
Pre-trial the court specifically determined that evidence of a non-billed criminal homicide from Ohio was not admissible because "Defendant was never indicted for the incident, therefore we cannot hold him accountable for it and use it against him." Pre-Trial Opinion and Order, 12/22/2010, at 7. Moreover, at sentencing the trial judge specifically stated that he "discounted [the Lorraine, Ohio homicide] for the purposes of any sentencing." N.T. Sentencing, 2/23/2011, at 16. Finally, the court articulated reasons for imposing sentence at the top of the standard range, namely the size of the murder weapon, Pena's actions immediately following the stabbing, and the protection of society. Id. at 16-19. Accordingly, we do not find that the trial court abused its discretion by sentencing Pena to a standard-range sentence; there is nothing in the record to discount the court's statement that it did not use the Ohio homicide as a factor in its sentencing decision.
Judgment of sentence affirmed. Judgment Entered. ___________________
Joseph D. Seletyn, Esq.
Prothonotary