Opinion
J-S26035-18 No. 2568 EDA 2017
08-22-2018
COMMONWEALTH OF PENNSYLVANIA v. ROGEL I. SUERO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order July 24, 2017
In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001552-2013 BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Rogel I. Suero, appeals from the order entered in the Court of Common Pleas of Northampton County dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9545. We affirm.
This Court has previously set forth the underlying facts and procedural history attendant to Appellant's trial as follows:
On January 15, 2012, Suero, his co-defendant Rebecca Johnson, and two other individuals conspired to rob Johnson's grandmother, Carrie Smith. Ms. Smith suffered from preexisting medical conditions of the heart and lungs, including coronary artery disease, atrial fibrillation, and interstitial lung disease. Notes of Testimony ("N.T."), 10/2/2013, at 107. In the early morning hours of January 15, 2012, Suero and an unknown individual entered Ms. Smith's residence. Ms. Smith called 911 and told the police officers who responded that she was awoken by two males entering her bedroom. N.T., 10/1/2013, at 11. Ms. Smith stated that one man wore a dark, hooded sweatshirt and that the other had blue surgical gloves on his hands. Id. at 12.
The man wearing the sweatshirt told her to remain quiet, and he placed a pillow over her face. When he removed the pillow, he told Ms. Smith that she would not be harmed if she cooperated.
Ms. Smith reported that the man in the sweatshirt demanded to know the location of her safe, and that the other man searched through her dressers while she led the first man to her safe. Id. at 13. When she struggled to remember the safe's combination, the man threatened her, and Ms. Smith felt a cold, hard object against the back of her head, which she believed to be a firearm. Id. at 14. After she opened the safe, Ms. Smith remembered seeing the individual wearing the blue surgical gloves reaching into the safe and removing her belongings. The men took approximately $35,000.00 cash from the safe. After removing the contents of the safe, the men took Ms. Smith back to her bedroom, then fled from the residence.
Ms. Smith suffered a heart attack during or shortly after the robbery, and she was hospitalized several times over the subsequent weeks. On March 16, 2012, Ms. Smith died of exacerbation of congestive heart failure as a result of the heart attack suffered on January 15, 2012. N.T., 10/2/2013, at 131.
The Commonwealth's theory of the case was that Suero and Rebecca Johnson conspired to commit the robbery because they planned to travel to Colorado to purchase a large amount of marijuana, and that they needed a substantial sum of money to accomplish that goal. Brief for Commonwealth at 25. At trial, the Commonwealth called Steven Wilson as a witness, who testified that Suero and Johnson had attempted to solicit his aid in a marijuana distribution scheme. N.T., 10/1/2013, at 204. Mr. Wilson testified that the quantity of marijuana that Suero and Johnson sought to acquire would have a value of approximately $400,000.00. Id. at 210. The Commonwealth introduced this evidence to demonstrate the defendants' motive for the robbery, as it was "evidence tending to show that [Suero] and his co-defendant were in need of obtaining a substantial sum of money to make their marijuana purchase." Brief for Commonwealth at 25.
Prior to trial, Suero moved to exclude Mr. Wilson's testimony as inadmissible evidence of prior bad acts pursuant to Pa.R.E. 404(b)(1). The trial court denied Suero's motion, finding that the evidence was relevant to motive and that the probative value of
Wilson's testimony outweighed any prejudice to Suero. Suero also moved to exclude evidence of certain prison phone calls, during which Rebecca Johnson implicated Suero in the crimes. The trial court permitted the introduction of the calls, provided that the transcripts of the calls be redacted in a manner that would remove any reference to Suero.Commonwealth v. Suero , No. 1025 EDA 2014, unpublished memorandum at *1-2 (Pa. Super. filed Feb. 23, 2015).
On September 30, 2013, Suero and Johnson proceeded to a joint trial, which lasted for six days. During closing arguments, the attorney for the Commonwealth made several statements that Suero alleged to be inflammatory. After closing arguments were completed, Suero objected to the statements and moved for a mistrial, arguing that the assistant district attorney, inter alia, misrepresented testimony, stated her personal beliefs about the credibility of witnesses, and improperly commented upon Suero's demeanor during the trial. The parties agreed on a number of curative instructions, and the trial court proceeded to instruct the jury accordingly. The jury returned a verdict that same day, finding Suero guilty of the above-listed charges. Suero's co-defendant, Rebecca Johnson, was also convicted of numerous offenses in connection with the incident, and was sentenced to a term of life imprisonment.
On December 5, 2013, the trial court sentenced Suero to, inter alia, life imprisonment without the possibility of parole. On December 16, 2013, Suero filed post-sentence motions, which the trial court denied on March 24, 2014.
Suero timely filed a notice of appeal, and he asserted, inter alia, that the trial court erred when it neither granted Appellant's motion for mistrial nor declared a mistrial sua sponte for inflammatory prosecutorial remarks and conduct at closing. This Court deemed the first part to Appellant's issue waived, as counsel agreed to withdraw the motion for a mistrial in exchange for a curative instruction. Specifically, the instruction directed the jury to disregard completely the prosecutor's comments about what a prospective witness might have said and which witnesses were believable, as it was for the jury, alone, to determine credibility. Moreover, after the court gave the desired instructions, counsel failed to make a timely and specific objection that the instruction inadequately addressed his concerns, we observed.
Regardless of counsel's withdrawal of the mistrial motion, Appellant argued in the alternative, the court was obligated to sua sponte declare a mistrial given the manifest necessity for one created by the prosecutor's gross misconduct. This argument, we noted, "ignores a defendant's role in determining the best course of action in response to an allegedly prejudicial event." Id. at *5. Moreover, we concluded that Appellant still received a fair trial notwithstanding any culpability of the prosecutor in mischaracterizing the victim's statements to investigators. Though perhaps not entirely accurate, the characterizations were not designed to deprive Appellant a fair trial, did not have the unavoidable effect of prejudicing the jury against Appellant, and were addressed by the jury instructions.
As for the prosecutor's stated personal opinion about the credibility of Appellant's testimony, we determined that the court sufficiently mitigated the influence of the statement by both reminding jurors they were the sole judges of credibility and declaring as "immaterial" any attorney opinion regarding the believability of a witness. Id. at *8. The instruction, we found, was clear and particular, and the law presumes a jury follows such instructions. Accordingly, we discerned no reversible error with the court's failure to declare a mistrial sua sponte.
Finding no merit to the remaining issues raised on direct appeal, we affirmed judgment of sentence on February 23, 2015. Appellant filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which denied Appellant's PAA on July 21, 2015.
On March 25, 2016, Appellant filed his first PCRA petition. The PCRA court appointed counsel, who filed an amended petition on June 13, 2016. Appointed counsel informed the PCRA court, however, that Appellant desired privately retained counsel instead, and, after a hearing on the matter, the court granted Appellant's request to retain new counsel. On October 6, 2016, private counsel entered her appearance and requested both additional time to file an amended petition and a continuance of a scheduled hearing on Appellant's petition, which the court granted.
Counsel filed her amended petition on January 30, 2017, and the court conducted an issue-framing conference on February 10, 2017. A two-day hearing on the issues raised in the amended petition commenced on May 8, 2017. The court thereafter accepted party briefs, and on July 24, 2017, entered an order and opinion dismissing Appellant's petition as devoid of merit. This timely appeal follows.
Appellant presents the following questions for our consideration:
I. WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS COUNSEL FOR FAILING TO INVESTIGATE AND TO RETAIN EXPERTS TO CHALLENGE CAUSATION AT TRIAL AND DID THE PCRA COURT ABUSE ITS DISCRETION IN DETERMINING, FIRSTLY, THAT THERE WAS NO PREJUDICE BECAUSE OF A JURY'S
DETERMINATION IN ANOTHER CASE AND, SECONDLY, IN CREDITING TRIAL COUNSEL'S TESTIMONY THAT HE CONSULTED AN EXPERT TO CHALLENGE CAUSATION?Appellant's brief at 4.
II. WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS COUNSEL FOR FAILING TO CALL AN ALIBI WITNESS AT TRIAL AND DID THE TRIAL COURT ABUSE HER DISCRETION IN DETERMINING THAT LAUER WAS NOT AWARE OF THE WITNESS UNTIL AFTER TRIAL, THAT THE ALIBI WITNESS WAS NOT CREDIBLE, AND IN DETERMINING THAT THERE WAS A STRATEGIC REASON FOR NOT CALLING AN ALIBI WITNESS?
III. WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS COUNSEL FOR WITHDRAWING HIS REQUEST FOR A MISTRIAL FOLLOWING PREJUDICIAL STATEMENTS BY THE PROSECUTOR AND DID THE TRIAL COURT COMMIT LEGAL ERROR IN DETERMINING THAT THE ISSUE WAS PREVIOUSLY LITIGATED ON DIRECT APPEAL?
IV. WAS TRIAL COUNSEL (LAUER) INEFFECTIVE AS COUNSEL FOR FAILING TO OBJECT TO IMPROPER LEADING QUESTIONS BY THE PROSECUTOR?
V. WAS PETITIONER/APPELLANT ENTITLED TO RELIEF BECAUSE OF THE CUMULATIVE PREJUDICIAL EFFECT OF THE ERRORS IN THIS CASE?
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). 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). The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions. Commonwealth v. Roney , 79 A.3d 595, 603 (Pa. 2013).
With respect to issues two through five, after careful review of the record, the parties' briefs, and the PCRA court's opinion, we affirm on the basis of the opinion by the Honorable Paula A. Roscioli. See PCRA Ct. Op. at 8-15 (concluding: (1) trial counsel was not ineffective for failing to call Mr. Sylvestre as an alibi witness where counsel testified such an alleged alibi was not brought to his attention during trial, and even if it had been, presenting alibi would have allowed Commonwealth to introduce as rebuttal evidence theretofore excluded evidence of Appellant's cellular phone location data putting him at the scene of the crime; (2) trial counsel was not ineffective for withdrawing his request for mistrial on the basis of prosecutorial misconduct stemming from the Commonwealth's closing remarks; (3) counsel reasonably elected against objecting to leading questions put to a medical expert as to the medical cause of the victim's death, as such evidence was irrelevant to Appellant's innocence defense; and (4) Appellant is not entitled to relief on his claim of cumulative prejudicial effect of trial counsel's error, as counsel's actions were not erroneous but were, instead, based on reasonable strategies).
We agree with Appellant that our decision on direct appeal rejecting Appellant's claim of prosecutorial misconduct on the merits does not render the present ineffective assistance claim "previously litigated" for purposes of PCRA review, see Commonwealth v. Collins , 888 A.2d 564 (Pa. 2005) (deeming PCRA claims distinct from underlying substantive claims raised on direct appeal). Nonetheless, under the present facts, we discern no arguable merit to the present claim where counsel elected to withdraw his motion regarding comments not rising to the level of misconduct.
As for Appellant's first issue asserting that counsel ineffectively failed to retain a medical expert to challenge the Commonwealth's theory pertaining to the victim's cause of death, we likewise adopt the trial court's opinion rejecting such claim, but we add to the discussion as follows.
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, a petitioner is required to make the following showing: (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, 312, 724 A.2d 326, 333 (1999). The failure to satisfy any prong of the test for ineffectiveness of counsel 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." Taylor , supra at 1042 (quoting 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 [a defendant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The defendant 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 defendant 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).
"The petitioner bears the burden of proving all three prongs of the test." Id. "Where it is clear that a petitioner has failed to meet any of the three, distinct prongs of the... test, the claim may be disposed of on that basis alone, without a determination of whether the other two prongs have been met." Commonwealth v. Basemore , 560 Pa. 258, 295, 744 A.2d 717, 738 n.23 (2000).
Appellant posits the PCRA court abused its discretion when it concluded trial counsel was not ineffective for failing to challenge the Commonwealth's evidence that Appellant's actions on the night of the robbery caused Ms. Smith's death two months later. According to Appellant, trial counsel's case file showed that he recognized causation was a critical issue but failed to conduct an adequate pre-trial investigation into the issue.
Alluding to counsel's case file, Appellant avers that trial counsel corresponded only once with a medical expert—Dr. John Shane, a forensic and clinical pathologist, provided Dr. Shane with only Ms. Smith's autopsy report, and never received Dr. Shane's opinion on causation. The PCRA court erred, Appellant continues, by crediting trial counsel's testimony that Dr. Shane did, in fact, opine in a follow-up conversation with counsel that Ms. Smith's heart attack on the night of the robbery probably contributed to her death. The record belied counsel's testimony that such a conversation took place, Appellant claims, because counsel's otherwise "meticulous" case file includes no notation of the purported follow-up conversation despite the great impact it would have had on the defense. See Appellant's brief, at 35.
Appellant also assails trial counsel's failure to present to the jury the threory, whether through cross-examination of the Commonwealth's experts or through direct examination of defense experts, that the robbery had no effect on Ms. Smith's pre-existing and progressively debilitating pulmonary fibrosis, a condition which bore significantly on her cardiac health, Appellant argues. On this point, Appellant refers to the PCRA testimonies of internist, Edward D. Viner, M.D., and Cardiologist Arnold Meshkov, M.D., who each pointed to Ms. Smith's pulmonary fibrosis as the cause of her death.
At the PCRA hearing, Dr. Meshkov testified that Ms. Smith had suffered "a very mild heart attack" during the robbery, but she recovered with no consequential heart damage. N.T. 5/9/17, at 81-82. Moreover, Dr. Meshkov disputed the radiologist's impression of congestive heart failure made from Ms. Smith's chest x-rays taken on her admission two weeks after the heart attack. Instead, the x-rays depicted the progression of pulmonary fibrosis, the scar tissue from which is often mistaken for congestive heart failure-related fluid in the lungs, Dr. Meshkov opined. N.T. 5/9/17 at 83. Dr. Meshkov, therefore, testified that had counsel retained him prior to trial, he would have opined to a reasonable degree of medical certainty that Ms. Smith's death was caused by pulmonary fibrosis and not the heart attack she sustained during the robbery. N.T. at 5/9/17 at 88-89.
Similarly, Dr. Viner testified that Ms. Smith's idiopathic pulmonary fibrosis evolved and progressed in a manner completely unaffected by the trauma or emotions she experienced during the robbery. N.T. 5/9/17 at 114. The shortness of breath Ms. Smith experienced two weeks after the robbery was, therefore, in his opinion, a product of her pulmonary fibrosis and unrelated to her fear and depression experienced after the robbery and heart attack. N.T. at 120-123. Given the absence of the symptomology typically associated with heart failure, Dr. Viner opined that Ms. Smith's heart attack of January 15, 2012, did not cause any damage to her heart. N.T. at 128. As such, he concluded to a reasonable degree of medical certainty that Ms. Smith died from pulmonary fibrosis, and he confirmed he would have offered that opinion at Appellant's trial had counsel retained him. N.T. at 130-131.
Given both the conflicting record as to whether counsel's expert ever opined on causation, and the availability of other experts who would have denied causation, Appellant asserts the PCRA court erred when it concluded counsel employed a reasonable trial strategy causing no prejudice to Appellant.
In response, the Commonwealth argues the record shows trial counsel engaged in a reasonable investigation into the issue of causation. In counsel's 49 years of practicing criminal law, he had retained Dr. Shane numerous times for testimony regarding medical causation, the Commonwealth contends. See Appellee's brief, at 12 (citing N.T. 5/8/17 at 3, 15, and 50). Trial counsel was quite specific in recounting Dr. Shane's expert opinion, the Commonwealth continues, that the Commonwealth could make "a very clear case that [the robbery] was a very substantial contributing factor to [Ms. Smith's] death." Id. (citing N.T. at 18). While Dr. Shane acknowledged a case could be made for either side, counsel testified, the doctor nevertheless opined that the medical evidence sufficed to prove the element of causation. Id. (citing N.T. at 19). Trial counsel explained he, therefore, did not request a report from Dr. Shane because that would have required him to produce what would have been, at best, an unhelpful report, the Commonwealth notes. Id. (citing N.T. at 19).
In light of Dr. Shane's unfavorable communication to counsel, the Commonwealth posits, it was a reasonable strategy for counsel to focus the jury's attention on Appellant's assertion of innocence. See Appellant's brief, at 13.
The Commonwealth also challenges the notion that Appellant suffered prejudice from trial counsel's chosen course. In so doing, the Commonwealth relies on the PCRA court's opinion that Appellant failed to demonstrate a reasonable probability that the jury would have acquitted him of second-degree murder had he actively investigated and advanced a causation defense.
In reaching this conclusion, the PCRA court took judicial notice of the trial of Quadir Taylor, Appellant's cohort in the robbery of Ms. Smith. Taylor faced the same charges as Appellant, but unlike Appellant, Taylor admitted his participation in the robbery and chose, instead, to defend against the murder charge solely on the issue of causation. Taylor sought to advance his defense through the medical expert testimonies of Drs. Meshkov and Viner, who rendered the same opinions at Taylor's trial as they did at Appellant's PCRA hearing. Nevertheless, a jury convicted Taylor of second-degree murder.
The PCRA court, therefore, came to the following conclusion with respect to Appellant's prejudice claim:
Given the outcome of the Taylor trial, we cannot conclude that there is a reasonable probability, had Attorney Lauer called Drs. Viner and Meshkov at [Appellant's] trial, that the outcome of that
proceeding would have been different. While it is possible that a different jury may have reached a different conclusion when presented with the same causation evidence as that presented at the Taylor trial, we are not concerned with that which is in the realm of possibility, but with that which is reasonably probable. Accordingly, [Appellant] has failed to establish that he was prejudiced by trial counsel's failure to more strenuously pursue a defense on the issue of causation, and his petition must fail. [ See Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052 (1984) (setting forth prejudice standard in ineffectiveness claim)].PCRA Court Opinion, 7/24/17, at 6.
Here, the PCRA court made a credibility determination in favor of trial counsel and his assertion that he discussed the causation issue extensively with Dr. Shane but obtained an unfavorable expert medical opinion from the doctor that would not help the defense. Appellant asks us to undo the court's credibility determination because trial counsel did not document his discussion with Dr. Shane in the case file as he had done with respect to other aspects of the case. This purported inconsistency between counsel's testimony and his practice of documenting his work on the case undermines the reliability of counsel's testimony, Appellant maintains.
We disagree that trial counsel was under an obligation to corroborate his testimony with a case file entry memorializing his conversation with Dr. Shane in order to maintain credibility on this point. Indeed, counsel explained in a related context that he deliberately declined to ask Dr. Shane for a written report documenting the doctor's observations and impressions so he would not be compelled to turn over the potentially damaging report. The PCRA court was free to conclude that counsel similarly preferred to leave his discussion with Dr. Shane undocumented, as well, as it represented a dead-end for the defense.
Contrary to Appellant's assertion, therefore, the record neither belies counsel's explanation for foregoing a more aggressive causation defense nor demonstrates the unreasonableness of counsel's strategic decision to concentrate, instead, on an innocence defense. Under our standard of review, as long as the chosen course had some reasonable basis designed to effectuate the client's interest, then our inquiry ceases. Pierce , supra. Accordingly, we discern no abuse of discretion in the PCRA court's rejection of Appellant's first ineffectiveness claim.
Even if we addressed Appellant's prejudice prong argument, which we need not do having found counsel employed a reasonable strategy, we discern no abuse of discretion reflected in the PCRA court's rationale that Appellant failed to show a reasonable probability that Dr. Meshkov's and Dr. Viner's testimonies would have secured a favorable result for Appellant at trial.
Therefore, because we find no abuse of discretion or error of law with the PCRA court's order below, we affirm.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/22/18
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