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Commonwealth v. Velasquez

SUPERIOR COURT OF PENNSYLVANIA
Feb 14, 2020
No. J-S68036-19 (Pa. Super. Ct. Feb. 14, 2020)

Opinion

J-S68036-19 No. 958 WDA 2019

02-14-2020

COMMONWEALTH OF PENNSYLVANIA Appellee v. FELIX VELASQUEZ Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered May 28, 2019
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000987-2016 BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J. MEMORANDUM BY GANTMAN, P.J.E.:

Retired Senior Judge assigned to the Superior Court.

Appellant, Felix Velasquez, appeals from the order entered in the Erie County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The relevant facts and procedural history of this case are as follows. On January 19, 2016, Victim arranged to purchase drugs from Appellant. Instead of selling drugs to Victim, however, Appellant shot and robbed him. The court held a two-day jury trial on November 7-8, 2016. On the second day of trial, the following exchange occurred during defense counsel's cross-examination of Commonwealth witness, Detective Craig Stoker:

Q: And [Appellant's] last name is spelled V-E-L-A-S-Q-U-E-Z; is that correct?
A: I'd have to look.

Q: Okay. Do you want to refer to your police report?

A: Sure. Okay.

Q: So how it is spelled?

A: On his criminal history it is—it's his driver's status. I apologize. This is his driver's status picture.

Q: Okay. So, how it is spelled?

A: This is F-E-L-I-X...V-E-L-A-S-Q-U-E-Z.
(N.T. Trial, 11/8/16, at 107-08). Defense counsel did not object, move for a mistrial, or request a jury instruction. On the same day, the jury convicted Appellant of aggravated assault, attempted murder, recklessly endangering another person ("REAP"), firearms not to be carried without a license, possession of an instrument of crime ("PIC"), robbery, and terroristic threats.

On December 21, 2016, the court sentenced Appellant to an aggregate term of fifteen (15) to thirty (30) years' incarceration. This Court affirmed the judgment of sentence on December 22, 2017, and Appellant did not seek further review with our Supreme Court. On October 18, 2018, Appellant timely filed his first PCRA petition pro se. The PCRA court appointed counsel, who subsequently filed amended petitions on January 2, 2019, and February 6, 2019. The court held a PCRA hearing on May 3, 2019, and denied PCRA relief on May 28, 2019. Appellant timely filed a notice of appeal on June 27, 2019. On June 28, 2019, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b); Appellant timely complied.

Appellant raises the following issues on appeal:

WHETHER THE [PCRA] COURT COMMITTED LEGAL ERROR AND ABUSED ITS DISCRETION IN FAILING TO GRANT PCRA RELIEF IN THAT APPELLANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO CALL TACHELLE WILLIAMS AS AN ALIBI WITNESS?

WHETHER APPELLANT WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL COUNSEL FAILED TO OBJECT AND MOVE FOR A MISTRIAL WHEREIN A COMMONWEALTH WITNESS MADE STATEMENTS ABOUT APPELLANT'S PRIOR CRIMINAL RECORD AND HISTORY DURING HIS TESTIMONY, WHICH CONSTITUTED EVIDENT GROUNDS FOR OBJECTION AND MISTRIAL?
(Appellant's Brief at 2).

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), appeal denied, 612 Pa. 687, 29 A.3d 795 (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), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We do not give the same deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by the trier of fact who had the opportunity to observe the witnesses' demeanor. Commonwealth v. Abu-Jamal , 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). "A PCRA court passes on witness credibility at PCRA hearings, and its credibility determinations should be provided great deference by reviewing courts." Commonwealth v. Johnson , 600 Pa. 329, 356-357, 966 A.2d 523, 539 (2009).

Pennsylvania 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, the petitioner is required to demonstrate that: (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, 724 A.2d 326 (1999). The failure to satisfy any prong of the test for ineffectiveness 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." 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 [an appellant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The [appellant] 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 [appellant] 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).

After a thorough review of the record, the brief of the parties, the applicable law, and the well-reasoned opinion of the Honorable John J. Mead, we conclude Appellant's first issue merits no relief. The PCRA court opinion comprehensively discusses and properly disposes of the question presented ( See PCRA Court Opinion, filed May 28, 2019, at 3-5) (finding: court found credible trial counsel's testimony that Appellant did not tell her about his alleged alibi witness, Ms. Williams; further, Ms. Williams testified that despite meeting with trial counsel and attending Appellant's trial, she did not tell trial counsel about alleged alibi; Ms. Williams provided affidavit asserting alibi years after trial; court found incredible Appellant's testimony that he told trial counsel about alibi; counsel cannot be ineffective for failing to pursue alibi she did not know about; moreover, Ms. Williams testified that she was not with Appellant at time of shooting; rather, Ms. Williams said she received call from Appellant that day around 5:00 p.m., which was after shooting; Ms. Williams was not sure exactly when she received call and did not provide phone records to prove call occurred; Ms. Williams also failed to provide date/time of pictures Appellant allegedly sent Ms. Williams of her daughter on date of shooting; Commonwealth produced evidence at trial that Victim called Appellant on his phone, Appellant arrived on crime scene in his vehicle (captured by video camera), and Victim identified Appellant as shooter; thus, Appellant cannot establish prejudice in any event). Accordingly, with respect to Appellant's first issue on appeal, we affirm based on the PCRA court's opinion.

In his remaining issue, Appellant argues the trial court prohibited any reference to Appellant's criminal history except as authorized for impeachment purposes if Appellant chose to testify. Appellant, however, asserts that Commonwealth witness, Detective Stoker, mentioned Appellant's criminal history during defense counsel's cross-examination, and defense counsel failed to object, move for a mistrial, or seek a cautionary jury instruction. Appellant maintains defense counsel's failure to do so resulted in a tainted jury verdict and constitutes patent ineffective assistance of counsel. Appellant concludes this Court should remand for a new trial. We disagree.

This Court has explained:

Ordinarily, admission of testimony which describes, or from which the jury may infer, past criminal conduct by a defendant constitutes reversible error. However, not all such references warrant reversal. An isolated passing reference to prior criminal activity will not warrant reversal unless the record indicates that prejudice resulted from the
remark. There is no per se rule which requires a new trial for every passing reference to prior criminal conduct. Additionally, the possible prejudicial effect of a...reference to prior criminal conduct...may, under certain circumstances, be removed by a cautionary instruction.
Commonwealth v. Fletcher , 41 A.3d 892, 895 (Pa.Super 2012), appeal denied, 618 Pa. 683, 57 A.3d 67 (2012) (quoting Commonwealth v. Maute , 485 A.2d 1138, 1143 (Pa.Super. 1984)).

Instantly, the court held a jury trial on November 7-8, 2016. During defense counsel's cross-examination of Detective Stoker, defense counsel asked Detective Stoker if Appellant's last name is spelled V-E-L-A-S-Q-U-E-Z. Detective Stoker responded, "On his criminal history it is—it's his driver's status. I apologize. This is his driver's status picture." (N.T. Trial, 11/8/16, at 107). This passing reference to Appellant's criminal history is not enough to warrant a mistrial or necessarily require a cautionary instruction in the case. See Fletcher , supra. Here, Detective Stoker misspoke when he referred to his police report. Detective Stoker immediately corrected himself and made no further reference to Appellant's criminal history. Thus, Appellant suffered no prejudice as a result of Detective Stoker's fleeting error in testimony. See id. As presented, Appellant's underlying claim lacks arguable merit; and trial counsel cannot be deemed ineffective on this ground. See Poplawski , supra. Accordingly, we affirm.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/14/2020

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Summaries of

Commonwealth v. Velasquez

SUPERIOR COURT OF PENNSYLVANIA
Feb 14, 2020
No. J-S68036-19 (Pa. Super. Ct. Feb. 14, 2020)
Case details for

Commonwealth v. Velasquez

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA Appellee v. FELIX VELASQUEZ Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Feb 14, 2020

Citations

No. J-S68036-19 (Pa. Super. Ct. Feb. 14, 2020)