J. S88035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
               Appellee                 :
                                        :
                   v.                   :
                                        :
                                        :
MOISES ROSADO,                          :
                                        :
               Appellant                :    No. 1776 EDA 2016

             Appeal from the PCRA Order Entered June 3, 2016
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0007720-2008

BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED FEBRUARY 22, 2017

     Moises Rosado (Appellant) appeals from the June 3, 2016 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     In light of the issues presented, a complete factual history is

unnecessary. Pertinent to this appeal, on March 10, 2010, following a jury

trial, Appellant was convicted of, inter alia, attempted murder and

possession of a firearm, stemming from the 2007 shooting of his sister’s

boyfriend, Louis Martinez.1 On April 29, 2010, Appellant was sentenced to




1
  Following the jury’s verdict, Appellant elected to waive his right to a jury
trial on his remaining charge, possession of a firearm by a prohibited person.
Following an on-the-record colloquy, the trial court found Appellant guilty of
this charge.


*Retired Senior Judge assigned to the Superior Court.
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20 to 40 years’ incarceration for attempted murder, with a concurrent term

of five to ten years’ incarceration for unlawful possession of a firearm.

      On January 20, 2012, this Court affirmed Appellant’s judgment of

sentence, and our Supreme Court denied Appellant’s petition for allowance

of appeal on May 30, 2012. Commonwealth v. Rosado, 43 A.3d 523 (Pa.

Super. 2012) (unpublished memorandum), appeal denied, 47 A.3d 847 (Pa.

2012).   Appellant timely filed the PCRA petition that is the subject of the

instant appeal, his first, on November 13, 2012.

      PCRA counsel was appointed and, on August 25, 2014, counsel
      filed an amended PCRA petition. On June 12, 2015, the
      Commonwealth filed a motion to dismiss and [Appellant] filed a
      response on July 11, 2015. The matter was first listed before
      [the PCRA] court for decision on November 6, 2015.                On
      November 6, 2015, a hearing was scheduled for January 29,
      2016. On January 29, 2016, [the PCRA] court heard argument
      related to [Appellant’s] claim of trial counsel’s ineffectiveness for
      failure to interview and call a witness at trial. On April 22, 2016,
      following a review of the record, [the PCRA court] sent
      [Appellant] a 907 Notice, pursuant to Pa.R.Crim.P. 907(1). [The
      PCRA court] did not receive any response to the 907 Notice. On
      June 3, 2016, upon review of the record, evidence, [and]
      argument of counsel, [the PCRA] court dismissed the PCRA
      petition.

PCRA Court Opinion, 6/10/2016, at 2 (unnecessary capitalization omitted).

      On June 3, 2016 Appellant timely filed a notice of appeal. The PCRA

court did not issue an order for Appellant to file a concise statement

pursuant to Pa.R.A.P. 1925, but did author a 1925(a) opinion.

Appellant raises the following claims for our review.




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      I.    Did the [PCRA] court err when it dismissed Appellant’s
            PCRA petition without a hearing since trial counsel
            rendered ineffective assistance of counsel?

               a. Is Appellant entitled to post-conviction relief in the
                  form of a new trial or a remand for an evidentiary
                  hearing as a result of trial counsel’s ineffectiveness
                  in failing to interview Michael Amerman and present
                  his testimony at trial?

               b. Is Appellant entitled to post-conviction relief in the
                  form of a new trial or a remand for an evidentiary
                  hearing as a result of trial counsel’s ineffectiveness
                  in failing to object to the trial court’s allowing the
                  jury to have a copy of the trial court’s charge
                  concerning the crime of attempted murder only in
                  violation of Pa.R.Crim.P. 646?

               c. Is Appellant entitled to post-conviction relief in the
                  form of a new trial or remand for an evidentiary
                  hearing with regard to his conviction for possession
                  of firearms by prohibited person under [18 Pa.C.S.
                  § 6105] as a result of trial counsel’s ineffectiveness
                  in failing to object to the trial court’s denial of
                  Appellant’s right to a jury trial concerning this
                  charge?

Appellant’s Brief at 4.

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the PCRA court’s rulings are supported by the evidence

of record and free of legal error. Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).     “To establish ineffectiveness of counsel, a

PCRA petitioner must show the underlying claim has arguable merit,

counsel’s actions lacked any reasonable basis, and counsel’s actions

prejudiced the petitioner. Prejudice means that, absent counsel’s conduct,

there is a reasonable probability the outcome of the proceedings would have


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been different.”     Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa.

Super. 2013) (citations omitted).        Further, counsel is presumed to be

effective. Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015).

      Appellant first contends that trial counsel was ineffective in failing to

interview Michael Amerman and call him as a witness at trial.        Appellant’s

Brief at 14.      Specifically, Appellant references an affidavit wherein Mr.

Amerman avers he was an eyewitness to the shooting and claims that he

observed an individual, who arrived at the scene of the crime with the

victim, pull out a gun and shoot in the “general direction” of Appellant.2

Affidavit   of   Michael   Amerman,   8/21/2012.       Appellant   contends   the

Commonwealth and police were aware of Mr. Amerman’s existence, because

Mr. Amerman, matching the description of the male wanted in connection

with the shooting, was subject to an investigative stop hours after the

shooting. Appellant’s Brief at 20. A report was generated and was provided

to trial counsel as part of pre-trial discovery. Id.

      In response, the PCRA court offered the following analysis of

Appellant’s claim.

            In the instant case, although [Appellant] has attached an
      affidavit of Michael Amerman providing his putative testimony,
      [Appellant] has failed to establish that Mr. Amerman was
      available and willing to testify at the time of trial because the

2
 Appellant conceded on direct appeal that he shot the victim. See Rosado,
43 A.3d 523 (unpublished memorandum). Appellant avers in his pro se
memorandum in support of his PCRA petition that Mr. Amerman’s testimony
would have served as “mitigating” evidence against the attempted murder
charge. Pro Se Memorandum, 11/16/2012, at 5 (unnumbered).


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     affidavit is silent as to those key requirements. Regardless of
     any analysis of the prejudice suffered or not suffered by
     [Appellant] on account of the absence of Mr. Amerman’s
     testimony, [Appellant] has not shown that the witness was
     available or willing to testify and thus, his claim must fail.

           Moreover, [Appellant] completed a colloquy on the record
     at the time of trial regarding his decision not to testify and his
     decision not to present any witnesses. The transcript provides
     the following:

           [Defense Counsel]: Do you understand that you
           have the right, but do not have to call witnesses?

           [Appellant]: Yes.

           [Defense Counsel]: There are no witnesses to call; is
           that your belief as well?

           [Appellant:] Yes.

           [Defense Counsel]: So we will not be calling any
           witnesses?

           [Appellant]: Yes.

           [Defense Counsel]: Are you doing this of your own
           freewill?

           [Appellant]: Yes.

           [Defense Counsel]: And you have the right to call
           witnesses?

           [Appellant]: Yes, sir.

           [Defense Counsel]: Are you satisfied?

           [Trial court]: Yes.

           As such, the record further refutes [Appellant’s] claim of
     ineffectiveness because [Appellant] indicated to counsel that he
     did not wish to call any witnesses to testify on his behalf.



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       Accordingly, this Court has determined that his claim of
       ineffective assistance of trial counsel lacks merit.

PCRA Court Opinion, 6/10/2016, at 6-7 (unnecessary capitalization omitted).

       We agree with the PCRA court that Appellant has failed to meet the

threshold requirements to establish a valid argument that he was prejudiced

by counsel’s failure to call Mr. Amerman as a witness. See Commonwealth

v. Neal, 713 A.2d 657, 663 (Pa. Super. 1998) (“In order to establish that

trial counsel was ineffective for failing to call witnesses, a petitioner must:

(1) identify the witness or witnesses; (2) demonstrate that counsel actually

knew, or had a duty to know, the identity of the witness or witnesses prior

to trial; (3) demonstrate that the witness or witnesses were ready, willing

and able to testify for the defense at trial; and (4) demonstrate that the

proposed testimony would have been helpful to the defense asserted at

trial.”).   Here, the affidavit is silent as to whether Mr. Amerman was

available and willing to testify at the time of trial. This omission is fatal to

Appellant’s claim. See Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa.

Super. 2002) (Finding statements of potential witnesses proffered by

petitioner were insufficient to satisfy the burden of proving ineffectiveness

when the “statements [did] not meet the second and fourth prongs of the

test because they [did] not indicate whether the individuals were available

and willing to cooperate with the defense.        Nor [did] these statements

indicate that the persons who authored them were known to counsel.”).

See also Commonwealth v. Lassen, 659 A.2d 999, 1012 (Pa. Super.


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1995), abrogated on other grounds, (Finding the absence of affidavits

indicating a potential witness’ willingness and ability to cooperate barred

appellant from obtaining relief.).   Moreover, as set forth supra, during his

colloquy at trial, Appellant affirmatively acknowledged there were no

witnesses to call. N.T., 3/11/2010, at 87. No relief is due.

      Next, Appellant avers counsel was ineffective for failing to contest the

trial court’s decision to provide the jury with a portion of the charge, namely,

the charge for attempted murder. Appellant’s Brief at 24. Appellant argues

that allowing the jury to possess only one portion of the charge during

deliberations was in violation of Pa.R.Crim.P. 646. Id. at 24.

Pa.R.Crim.P. 646 states, in pertinent part:

      (B) The trial judge may permit the members of the jury to have
      for use during deliberations written copies of the portion of the
      judge’s charge on the elements of the offenses, lesser included
      offenses, and any defense upon which the jury has been
      instructed.

      (1)   If the judge permits the jury to have written copies of the
            portion of the judge’s charge on the elements of the
            offenses, lesser included offenses, and any defense upon
            which the jury has been instructed, the judge shall provide
            that portion of the charge in its entirety.

      (2)   The judge shall instruct the jury about the use of the
            written charge. At a minimum, the judge shall instruct the
            jurors that

            (a)   the entire charge, written and oral, shall be
                  given equal weight; and

            (b)   the jury may submit questions regarding any
                  portion of the charge.



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     By way of further background, during the jury’s deliberations at

Appellant’s trial, the jury submitted a question about the definition of

attempted murder. The following exchange took place on the record:


           [Trial Court]: What I have proposed and both
           counsel [and the Commonwealth] have agreed
           without any objection and we also have shown it to
           [Appellant], is that under the new rules of procedure
           what is allowed to be shown to a jury. I am going to
           give them a copy of the standard jury instruction on
           attempted murder. It is an exact copy of what was
           read to them. Is that right [Defense Counsel]; and I
           have given you an opportunity to look at and review
           it and you have shown it to [Appellant]?

           [Defense Counsel]: Yes.

           [Trial Court]: He understands that instead of
           bringing them back out here and reading it again
           that I am going to exercise my discretion and follow
           those new rules and give it to the jury to read?

           [Defense Counsel]: He understands, Your Honor.

           [Trial Court]: I know you are stepping in for Ms.
           Rhodes for the Commonwealth and you agree with
           this.

           [Commonwealth]: Yes, Your Honor.

           [Trial Court]: I will send this with my staff for them
           to read it over.

     Th[e trial court] proposed, and counsel and [Appellant] agreed,
     that sending back the written definition would be a more
     practical way to give the jury the answer to their narrowly
     tailored question, rather than having everyone brought back into
     the courtroom and the [a]ttempted [m]urder charge reread from
     the bench.

PCRA Court Opinion, 6/10/2016, at 7-8 (footnotes omitted).


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      Here, Appellant asserts that he was prejudiced by trial counsel’s failure

to object to the trial court decision, baldly claiming, “[h]ad the entire charge

been provided to the jury and had the jury been instructed accordingly, the

outcome of the trial would have been different.”          Appellant’s Brief at 26.

Because such a bald claim does not demonstrate prejudice, Appellant’s claim

fails and we need not consider the merits of the claim or the reasonableness

of counsel’s failure to object.   Commonwealth v. Fears, 86 A.3d, 795 at

804 (Pa. 2014) (noting that, if an ineffective assistance claim falls short

under any element, the court may skip ahead to that element).             Thus, his

second issue warrants no relief from this Court.

      Lastly, Appellant contends his counsel was ineffective for failing “to

object to the trial court’s denial of Appellant’s right to a jury trial concerning

the charge of possession of a firearm.” Appellant’s Brief at 29. As noted by

the PCRA court, the record belies Appellant’s claim.

      In the instant matter, [Appellant’s] assertion that counsel was
      ineffective for failing to object to [the trial court’s] “denial” of his
      right to a jury trial on the [possession of a firearm by persons
      not permitted] is meritless and finds no support in the record.
      The jury convicted [Appellant] of attempted murder (F1),
      aggravated assault (F1), carrying firearms without a license
      (F3), possession of instrument of crime (M1) and recklessly
      endangering another person (M2). After polling the jury and
      recording the verdict, the following discussion and colloquy was
      held on the record:

            [Trial Court]: We need to determine whether it is
            going to go [sic] be submitted to the jury or do you
            want to explain to [Appellant] that he can waive the
            jury for that portion of that charge.



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          [Defense Counsel]: He can waive it. He understands
          that however --

          [Trial Court]: Essentially they are going to be told by
          me that he had a record and therefore couldn’t have
          a gun and they already found him guilty of having
          the gun.

          [Defense Counsel]: We will stipulate to his prior
          record, but it will be a jury question. It is the jury’s
          decision as to the whether --

          [Commonwealth]: The only aspect. They already
          found him guilty of possessing the gun. The only
          question is whether or not he could not have a gun
          because he was a convicted felon.

          [Trial Court]: He can’t. I am going to instruct them -

          [Defense Counsel]: That is what it is.

          [Trial Court]: He can also just do it as a waiver and
          waive the jury’s ability to do that and have –

          [Defense Counsel]: Actually -- if I could have a
          minute.

          (Whereupon,     [Defense    Counsel]     conferred   with
          [Appellant].)

          [Defense Counsel]: I will colloquy [Appellant].

          [Trial Court]: Okay.

          [Defense Counsel]: [Appellant], do you understand
          you are still under oath from when you took your
          oath in the trial?

          [Appellant]: Yes.

          [Defense Counsel]: You know you have been found
          guilty of all the charges including the charge of
          carrying a firearm without a license?



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          [Appellant]: Yes.

          [Defense Counsel]: One further charge left is a
          person not permitted to carry a firearm based on
          their criminal record. Do you understand that?

          [Appellant]: Yes.

          [Defense Counsel]: You have an absolute right for
          the jury to hear it; however it is my understanding
          after speaking to you that you want to waive your
          right to a jury trial as to that charge and allow the
          judge to make her decision as to guilty or not guilty.
          Do you understand that?

          [Appellant]: Yes.

          [Defense Counsel]: Is that your decision?

          [Appellant]: Yes.

          [Defense Counsel]: Are you doing that of your own
          freewill?

          [Appellant]: Yes.

          [Defense Counsel]: Are you under the influence of
          alcohol or drugs that would inhibit your ability to
          understand?

          [Appellant]: No, sir.

          [Defense Counsel]: Has anyone forced or promised
          you to give up that right to a jury trial and have a
          judge decide?

          [Appellant]: No.

          [Defense Counsel]: Are you satisfied, Your Honor?

          [Trial Court]: I am. It is just a matter of introducing
          into the record, from what I understand is a charge
          under 6106.



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          [Commowealth]: 6105, Your Honor.

          [Trial Court]: The jury has already made the decision
          that he possessed the gun and that it was a firearm.

          [Commonwealth]: Correct, Your Honor. It is a legal
          argument based upon the record that he is ineligible
          under the 6105 statute to be able to be in possession
          of a gun it is more of a legal issue. At this point,
          Your Honor, the Commonwealth will mark and move
          [Appellant’s] criminal record under Photo No.
          792119.      Specifically Ms. Rhodes submitted two
          Quarter Sessions Files the first being CP-51-CR-
          1204761-1998, a conviction in front of [Judge]
          Catherine Lewis that would be to robbery, felony of
          the second-degree and criminal conspiracy. Both the
          robbery [sic] does not make [Appellant] eligible to
          carry a firearm. The second Quarter Sessions File
          will be under CP-51-CR-0304881-2001, a conviction
          for possession with the intent to deliver in front of
          Judge Kane and that is also a felony conviction. All
          three of those being felony convictions that do fall
          under the statute that do not make [Appellant]
          eligible[. H]e cannot carry a firearm without a license
          as the jury found and that would make him a
          convicted felon with those charges that would fall
          under 6105; and with that we would rest with those
          quarter sessions files marked and moved.

          [Defense Counsel]: So stipulated.

          (Whereupon, C-25 was marked and moved into
          evidence.)

          [Trial Court]: So [Appellant,] understand there is
          very little to decide once I hear about this conviction
          for robbery and a conviction for PWID. The law says
          you are not to be in possession of a firearm and the
          jury’s factual finding that you had a firearm and you
          are in possession of it. So I will find him guilty of
          6105.27.




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PCRA Court Opinion, 6/10/2016, at 9-11 (footnote and unnecessary

capitalization omitted).

      Appellant further argues his “jury trial waiver was not knowing,

voluntary and intelligent[ly entered].”      Appellant’s Brief at 28.   Appellant

avers he was not informed “of the essential ingredients of a jury trial” and

never executed a written waiver.           Id. at 29.   Without addressing the

arguable merit of this claim, we reiterate that a petitioner must show that,

“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, 724 A.2d 326, 333 (Pa. 1999).                     Here,

Appellant provides no argument, nor are we able to proffer one on his

behalf, as to how he was prejudiced by counsel’s actions. As aptly stated by

the PCRA court:

      [Appellant] is unable to show that he suffered any prejudice on
      account of counsel’s actions because the jury’s conviction for the
      charge of [possession of a firearm] in conjunction with his
      existing criminal record left no outstanding actual determinations
      to be made in adjudicating the charge of [possession of a firearm
      by a person not to possess].

PCRA Court Opinion, 6/10/2016, at 11. No relief is due.

      Because we agree with the PCRA court that Appellant’s issues lack

merit, we find no error in the PCRA court’s decision to dismiss Appellant’s

petition without a full evidentiary hearing.

      The PCRA court has the discretion to dismiss a petition without a
      hearing when the court is satisfied that there are no genuine
      issues concerning any material fact, the defendant is not entitled


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       to post-conviction collateral relief, and no legitimate purpose
       would be served by any further proceedings.           [T]o obtain
       reversal of a PCRA court’s decision to dismiss a petition without
       a hearing, an appellant must show that he raised a genuine issue
       of fact which, if resolved in his favor, would have entitled him to
       relief, or that the court otherwise abused its discretion in
       denying a hearing.

Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011) (quotations

and citation omitted).

       As Appellant has failed to convince this Court that the PCRA court

erred by dismissing his petition, we affirm the PCRA court’s order.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/22/2017




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