J-S37030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JOSE NIEVES                               :
                                           :
                     Appellant             :   No. 186 EDA 2018

               Appeal from the PCRA Order December 7, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0007388-2011


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

CONCURRING MEMORANDUM BY BOWES, J.:              FILED DECEMBER 27, 2019

      I agree with my learned colleagues that Appellant is not entitled to relief

on his ineffective assistance of counsel claims, such that the PCRA court did

not err when it denied his PCRA petition. However, I write separately to note

my disagreement with the majority’s analysis of Appellant’s second issue.

      In his second claim, Appellant contends that trial counsel was ineffective

for failing to object to the admission of testimony by Detective Sam Gonzalez

concerning a statement made to him by Demaris Molina, an alleged

eyewitness who did not testify at trial. Even though the statement itself was

not shown to the jury, Appellant argued that testimony from a Commonwealth

witness indicating the existence of the statement was problematic because it

invited the jury to conclude that Molina had identified Appellant as the shooter.

Appellant’s brief at 9.
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       The majority rejected Appellant’s ineffectiveness issue on the basis that

“the record supported the PCRA court’s determination that trial counsel did

object to the admission of Ms. Molina’s statement.” Majority Memorandum at

8.   In making this finding, the majority conceded that no such objection

occurred on the record at trial.               Id. at 8-9.   However, despite this

acknowledgment, the majority nonetheless posits that an “objection may have

been made by trial counsel during an off-the record discussion,” since “the

statement was not admitted into evidence or provided to the jury” and there

was an off-the record discussion noted during Detective Gonzalez’s testimony.

Id. at 9; see also N.T. Jury Trial – Volume One, 6/25/12, at 77.             Such

speculation is an improper departure from long-established precedent,

requiring appellate courts to review the decisions of trial courts based on a

review of the certified record alone.1 See Commonwealth v. Young, 317

A.2d 258, 264 (Pa. 1974).

       However, I agree with the majority’s conclusion that Appellant’s claim

lacks arguable merit. Appellant proceeds from the premise that because the

jury heard evidence that Molina made a statement, they automatically

assumed that Molina had identified Appellant as the perpetrator. That is an
____________________________________________


1 To the extent that the majority supports its conclusion with the PCRA court’s
opinion, such reliance is similarly misplaced. See Majority Memorandum at 8.
In its opinion, the PCRA court pointed out that trial counsel objected during
closing argument to the prosecutor’s mention of Molina as having been
present at the scene of the crime, but not to the mention of the existence of
the statement itself. See PCRA Court Opinion, 10/18/18, at 7. The PCRA
court never specifically found that trial counsel objected to the substantive
testimony elicited from Detective Gonzalez.

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unreasonable inference to draw from the record before us. Further, the record

supports the PCRA court’s conclusion that trial counsel had no reason to object

because the testimony consisted of purely admissible “course of conduct”

evidence. See Trial Court Opinion, 10/18/18, at 7; see also Commonwealth

v. Weiss, 81 A.3d 767, 806 (Pa. 2013) (“It is well established that certain

out-of-court statements offered to explain the course of police conduct are

admissible because they are offered not for the truth of the matters asserted

but rather to show the information upon which police acted.”).

        Additionally, Appellant has failed to demonstrate prejudice.       As the

Commonwealth repeatedly argued, and the PCRA court opined, the actual

statement was never admitted. Nor were its contents ever revealed to the

jury.   Further, Detective Gonzalez’s testimony was limited to a handful of

questions that allowed him to detail his role in the investigation. 2 Therefore,

I would find that the record supports the PCRA court’s denial of this claim.

Accordingly, I concur in the result, but on different grounds.



____________________________________________


2 Although, Appellant has limited his issue to Detective Gonzalez’s testimony,
it is worth noting that counsel’s effective advocacy did limit what the jury
heard regarding Molina’s involvement. The Commonwealth intended to offer
the testimony of Officer Brian Johnson to explain that, on August 26, 2011,
Molina complained of an assault at the hands of Marisol Pagan, Appellant’s
other paramour. This assault occurred two days after Molina’s statement was
given to the defense in discovery. The Commonwealth intended to put forth
this testimony to show the jury why Molina was not present at trial. N.T. Jury
Trial – Volume One, 6/25/12, at 87-88. However, at a side bar, the trial court
sustained trial counsel’s objection to this testimony in its entirety, finding that
the potential prejudice to Appellant outweighed its probative value. Id. at 89.

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