J-S08037-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARQUEL SHAMONTE TIRADO,                   :
                                               :
                       Appellant               :      No. 1354 WDA 2019

               Appeal from the PCRA Order Entered July 12, 2019
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002615-2016

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JUNE 09, 2020

        Marquel Shamonte Tirado (“Tirado”) appeals from the Order dismissing,

without a hearing, his Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”).1 We affirm.

        The PCRA court summarized the factual and procedural history of this

case as follows:

              Between 5:00 and 6:00 p.m. on May 18, 2016, a group of
        about five neighbors and friends were gathered in front of a
        residence in the 900 block of East 23rd Street, near the
        intersection with Perry Street, in the City of Erie. [Tirado] exited
        a store on the corner of 23rd and Perry Streets[,] across the street
        from the group of residents, reached into his waistband, pulled
        out a silver/chrome pistol and fired five or six shots into the group
        of people gathered on or near their properties. Fortunately, no
        one was injured by the gun shots, but one of the bullets struck a
        vehicle parked nearby on the street. The gun used in these
        shootings was never recovered.

____________________________________________


1   42 Pa.C.S.A. §§ 9541–9546.
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             After a jury trial on February 15[] and February 16[], 2017,
       [Tirado] was found guilty of [firearms not to be carried without a
       license; recklessly endangering another person; possession of a
       weapon; criminal mischief; possession of a firearm by a minor;2
       and aggravated assault.3] On April 17, 2017, [Tirado] was
       sentenced [to a total of seven to fourteen years in prison, followed
       by six years of probation].

              [Tirado] did not file a post-sentence motion[,] or file a direct
       appeal with the Superior Court. On March 14, 2018, [Tirado] filed
       a pro se [PCRA Petition,] alleging ineffective assistance of counsel
       and assailing the testimony of some of the witnesses at trial as
       inconsistent with prior statements. [Tirado] claims that because
       one witness stated at trial [that Tirado] was not the shooter, he is
       entitled to a new trial. PCRA counsel was appointed[,] and filed a
       Supplemental Petition on July 23, 2018, alleging three ineffective
       assistance of trial claims.

PCRA Court Opinion, 12/10/18, at 1-2 (some paragraphs combined, footnotes

added).    Following the filing of the Supplemental Petition, the PCRA court

issued a Pa.R.Crim.P. 907 Notice of Intent to dismiss the Petition.

Subsequently, the PCRA court issued a final Order dismissing Tirado’s Petition.

Tirado filed a timely Notice of Appeal, and a Pa.R.A.P. 1925(b) Concise

Statement of Matters Complained of on Appeal.

       Tirado raises the following questions for our review:

       A. Whether the PCRA court committed legal error and abused its
       discretion in failing to grant relief based upon the ineffective
       assistance of counsel claim relating to the failure of counsel to
       preserve and raise[] a challenge to the sufficiency of the
       evidence[,] given the deficiencies of the Commonwealth[’s]

____________________________________________


2Tirado was seventeen years old at the time of the shooting, but was certified
as an adult prior to trial.

3 18 Pa.C.S.A. §§ 6106(a)(1), 2705, 907(b), 3304(a)(5), 6110.1(a),
2702(a)(1).

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      case[,] including the absence of physical evidence and incomplete
      and inconsistent testimonial evidence implicating [Tirado] as the
      shooter?

      B. Whether the PCRA court committed legal error and abused its
      discretion in permitting the Commonwealth to introduce a
      Facebook entry purportedly of [Tirado] in possession of a chrome
      firearm and counsel’s attendant failure to duly challenge the
      admissibility of this evidence[?]

      C. Whether the PCRA court committed legal error and abused its
      discretion in that the Facebook entry was admitted into evidence
      predicated on the understanding that it constituted a single frame
      shot wherein the actual Facebook entry consisted of a more
      prolonged entry with video [footage] of extraneous persons and
      conversation[s,] including [Tirado] being heard to state the term
      “gangsta[,]” whereupon the trial court admonished and
      [cautioned] the jury not to consider the extraneous footage, which
      attempt at mitigating the prejudice was insufficient to remedy the
      circumstance and [was] compounded by defense counsel’s
      ineffectiveness in failing to raise and preserve a motion for mistrial
      in the wake of this [impertinent] admission of evidence?

Brief for Appellant at 2.

      “Our standard of review of the denial of PCRA relief is clear; we are

limited to determining whether the PCRA court’s findings are supported by the

record and without legal error.” Commonwealth v. Wojtaszek, 951 A.2d

1169, 1170 (Pa. Super. 2008) (quotation and quotation marks omitted).

      In order to be eligible for relief under the PCRA, a petitioner must plead

and prove, by a preponderance of the evidence, that his conviction or sentence

arose from one or more of the specified circumstances in the PCRA.             42

Pa.C.S.A. § 9543(a)(2)(i-viii).      Further, these issues must neither be

previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3).




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        In reviewing claims of ineffective assistance of counsel, counsel is

presumed to be effective, and the petitioner bears the burden of proving

otherwise.       Commonwealth v. Becker, 192 A.3d 106, 112 (Pa. Super.

2018). In order to prove ineffective assistance of counsel, a petitioner must

plead and prove (1) the legal claim underlying the ineffectiveness claim has

arguable merit; (2) counsel’s action or inaction lacked any reasonable basis

designed to effectuate petitioner’s interest; and (3) counsel’s action or

inaction resulted in prejudice to petitioner.       Id. (citation omitted).    The

petitioner must plead and prove all three prongs, and the failure to establish

any one prong warrants denial of petitioner’s ineffectiveness claim.            Id.

Counsel cannot be found to be ineffective for failing to raise a claim that is

devoid of merit.        Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa.

2009).

        There is “no absolute right to an evidentiary hearing on a PCRA petition.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). A PCRA

court may dismiss a petition without holding a hearing if the court determines

“that    there    are   no   genuine   issues   concerning   any   material   fact.”

Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted).

In the context of ineffectiveness claims, “an evidentiary hearing is not meant

to function as a fishing expedition for any possible evidence that may support

some speculative claim of ineffectiveness.” Id. (citation omitted). Rather, if

the PCRA court is able to determine, without holding a hearing, that one of


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the ineffectiveness prongs cannot be met, then “no purpose would be

advanced by holding an evidentiary hearing.” Jones, 942 A.2d at 906.

      First, Tirado argues that trial counsel was ineffective in failing to present

and preserve a challenge to the sufficiency of the evidence against him as to

each of his convictions. Brief for Appellant at 6-7. Tirado argues that, based

on various inconsistencies in witness testimony, his trial counsel should have

moved for an acquittal at trial, and counsel’s failure to do so constituted

ineffective assistance of counsel. Id. at 7-8.

      In its Opinion, the PCRA court addressed this issue as follows:

      [Tirado] claims there were discrepancies in the witnesses’
      testimony at trial from their previous statements. One of the five
      victims testified at trial that [Tirado] was not the shooter. [Tirado]
      claims the testimonial discrepancies and exonerating testimony
      supported a motion for judgment of acquittal.

             Notably, trial counsel orally moved for judgment of acquittal
      after the Commonwealth rested its case, but limited the [M]otion
      to the charge of possession of a firearm by a minor. Trial counsel
      stated to the [c]ourt: “[] I can make a motion for judgment of
      acquittal now, if you want to do that. … The only thing I can see
      here that I have anything to work with is the possession of a
      firearm by a minor, because technically there’s been no testimony
      offered as to the age of [Tirado,] and under these circumstances
      that would be a crucial part of it.” Whereupon, the Commonwealth
      presented testimony as to [Tirado’s] age.

            The issue is whether trial counsel had a meritorious basis on
      which to present a motion for judgment of acquittal based on
      discrepancies in the witnesses’ testimony and the exonerating
      testimony of one of the witnesses. [Tirado’s] ineffectiveness claim
      fails because [Tirado] has not demonstrated that there is a
      reasonable probability that the trial court would have granted a
      motion for judgment of acquittal.




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            Additionally, [Tirado’s] challenge to discrepancies in the
     witnesses’ testimony goes to the weight of the evidence, not its
     sufficiency.    A weight of the evidence review includes an
     assessment of the credibility of the testimony offered by the
     Commonwealth. In determining the weight of evidence at trial,
     the finder of fact is free to believe all, part or none of the evidence
     presented and determines the credibility of the witnesses.

                                     ***

            In this case, [Tirado] does not indicate how the totality of
     the testimony and evidence of record exonerates him such that a
     motion for judgment of acquittal would have been meritorious.
     The Commonwealth established the necessary elements of each
     crime and, therefore, the evidence was sufficient to support the
     guilty verdicts.

           A review of the trial transcripts confirms any challenge to
     the weight of the evidence for judgment of acquittal would have
     been frivolous and [Tirado] was not prejudiced. Trial counsel
     cannot be found ineffective for failing to preserve a meritless
     claim.

           [Tirado] cannot establish the second prong of the ineffective
     assistance of counsel test. [Tirado] cannot establish trial counsel’s
     actions were unreasonable under the circumstances. Counsel had
     a reasonable strategic basis not to challenge the weight of the
     evidence as the credibility of the witnesses was for the jury to
     decide.

           [Tirado] must establish the third prong of the test by
     demonstrating he was prejudiced by counsel’s inaction. To
     demonstrate prejudice, [Tirado] must plead and show there is a
     reasonable probability that[,] but for the act or omission of
     counsel in question, “the outcome of the proceedings would have
     been different.” [Tirado] failed to plead and prove how trial
     counsel’s failure to challenge the weight of the evidence via a
     motion for judgment of acquittal would have been granted. Any
     challenge to the weight of the evidence would have been
     unavailing. [Tirado] has failed to establish the third prong of the
     ineffectiveness test.

PCRA Court Opinion, 12/10/18, at 3-6 (citations omitted).



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      Our review confirms the PCRA court’s analysis and conclusion that

Tirado has failed to demonstrate that his trial counsel was ineffective in failing

to file a motion for acquittal for all of the charges against him. As a result,

we affirm on the basis of the PCRA court’s stated rationale, as set forth above.

See id.

      Next, Tirado argues that the trial court abused its discretion when it

permitted the Commonwealth to introduce video evidence at trial, in the form

of a Facebook Live video. Brief for Appellant at 10. The video depicted Tirado

holding a silver/chrome firearm, and appearing to say the word “gangsta.”

Id. at 10. Tirado argues that the prejudice he experienced when the jury

heard him say the word “gangsta” outweighs the video’s probative value, and

the trial court’s cautionary instruction was insufficient to overcome the

prejudicial nature of the video. Id. at 10-12. Additionally, Tirado argues that

“defense counsel was ineffective in failing to seek a mistrial based solely on

the discrepancy in the offer of proof and the evidence published to the jury

and the credible prejudice that could issue from [Tirado’s] use of the term

‘gangsta’ as heard in the audio portion that was never disclosed to be included

until the time that the evidence was played in [c]ourt[.]” Id. at 14.

      We note that Tirado did not file a direct appeal of his judgment of

sentence. As a result, we are constrained to conclude that Tirado has waived

his challenge to the trial court’s ruling on the admissibility of the video

evidence because such a challenge could have been raised on direct appeal,


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but was not. See 42 Pa.C.S.A. § 9544(b) (“an issue is waived if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state post[-]conviction proceeding.”). Further,

claims concerning the admission of evidence are not cognizable under the

PCRA.    See 42 Pa.C.S.A. § 9543(a)(2) (enumerating the claims that a

petitioner may raise under the PCRA).

      Regarding Tirado’s assertion of ineffective assistance of counsel related

to trial counsel’s failure to move for a mistrial, Tirado does not demonstrate

how counsel’s inaction affected the outcome of the proceedings.         Brief for

Appellant at 14. Rather, Tirado baldly asserts that “credible prejudice” existed

against him. Id. The PCRA court addressed Tirado’s ineffectiveness argument

as to counsel’s failure to move for a mistrial as follows:

      Trial counsel immediately objected and the video was stopped.
      The objection was sustained. By way of a curative instruction, the
      [c]ourt stated: “The only relevant portion of that video really was
      the end of that, and it may be in these pictures, the connection
      with the silver gun with [Tirado]. … [T]he rest of it is not relevant
      for purposes of this trial. So you should strike that part of it, but
      the latter part related to the gun is really the only relevant part.”
      [N.T., 2/16/17, at 82.]

            In an in camera discussion with counsel, the [c]ourt noted:
      “Although there were certain words [Tirado] would say that I could
      make out and there were other people there, I didn’t see anything
      criminal they were doing. … It didn’t – there was no evidence of a
      crime or anything incriminating along those lines. It appeared to
      be talking to somebody and singing at some point, I don’t know.”
      Id. at 98.

                                     ***




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             In this case, the cautionary instruction was sufficient to
      instruct the jury not to draw an adverse inference from the nearly
      unintelligible “gangsta” reference. [Tirado] speculates the jury
      may have heard the term. Even if the jury heard the term, it was
      an isolated, passing [and] nearly unintelligible word, was not
      repeated nor otherwise emphasized, and did not refer to any
      specific criminal conduct by [Tirado].         The word was not
      deliberately introduced or exploited by either the defense or the
      Commonwealth.         This [c]ourt promptly entered a curative
      instruction. When the word is viewed in context, any prejudice
      resulting is speculative, at best, and was remedied by the
      cautionary instruction. There is no reason to believe the jurors
      did not follow the court’s cautionary instruction. The record is
      devoid of any resulting prejudice to [Tirado]. Trial counsel had no
      basis on which to request a mistrial. Thus, [Tirado] has failed to
      establish [that] trial counsel rendered ineffective assistance.

PCRA Court Opinion, at 9-12.

      We agree with the sound reasoning of the PCRA court, and affirm on

this basis.   See id.   Tirado has failed to prove the third prong of the

ineffectiveness test, i.e., that he was prejudiced by counsel’s decision not to

move for a mistrial. Tirado has failed to demonstrate that the jury even heard

the remark in question, much less demonstrate that he suffered prejudice as

a result of the remark. Thus, counsel had no reasonable basis to request a

mistrial, as the trial court’s cautionary instruction was sufficient to overcome

any prejudice that may have resulted from the jury potentially hearing Tirado

saying the word “gangsta” in the Facebook video. See Commonwealth v.

Johnson, 668 A.2d 97, 103 (Pa. 1995) (holding that a mistrial is only

warranted where the incident upon which the motion rests denies the

defendant a fair trial); Commonwealth v. Jones, 668 A.2d 491, 505 (Pa.




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1995) (determining that a mistrial is not necessary when a cautionary

instruction sufficiently removes prejudice against a defendant).

      Because we agree with the PCRA court’s determination that no genuine

issues of material fact existed to warrant an evidentiary hearing, we conclude

that the PCRA court did not abuse its discretion in dismissing Tirado’s Petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2020




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