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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37


COMMONWEALTH OF PENNSYLVANIA            :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                   v.                   :
                                        :
JONATHAN PENA,                          :          No. 3600 EDA 2013
                                        :
                        Appellant       :


              Appeal from the PCRA Order, December 6, 2013,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-1207661-2003


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.                  FILED MARCH 04, 2015

     Appellant appeals the order denying and dismissing his second petition

brought pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. Finding no error, we affirm.

     On August 8, 2005, following bench trial, appellant was found guilty of

first degree murder and related weapons offenses.        On that same date,

appellant was sentenced to an aggregate term of life imprisonment.

Appellant’s convictions arose from a shooting outside of Philly Champs Bar in

Philadelphia on November 4, 2003.           Appellant was engaged in a pool

tournament when he became embroiled in an argument with the victim. The

two men went outside, supposedly for a fistfight, but appellant instead drew

a gun and shot the victim to death.
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     Appellant filed a notice of appeal on December 20, 2005, which this

court quashed on August 3, 2007 as untimely. Commonwealth v. Pena,

935 A.2d 19 (Pa.Super. 2007) (unpublished memorandum). Appellant filed

his first PCRA petition on May 12, 2008. On September 26, 2008, the PCRA

court restored appellant’s direct appeal rights nunc pro tunc. On June 14,

2010, this court affirmed the judgment of sentence, and on December 7,

2010, our supreme court denied appeal. Commonwealth v. Pena, 4 A.3d

684 (Pa.Super. 2010) (unpublished memorandum), appeal denied, 13 A.3d

477 (Pa. 2010).

     Appellant filed the instant PCRA petition on February 11, 2011.

Counsel was appointed and amended petitions were filed. On November 8,

2013, the PCRA court issued notice of its intention to dismiss the petition

without hearing, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A.       On

December 6, 2013, the PCRA court entered an order dismissing the petition

and denying relief. This timely appeal followed.

     Appellant raises the following issues on appeal:

           I.     Did the trial court err when it denied the
                  appellant post-conviction relief in the form of a
                  new trial based on the ineffectiveness of trial
                  counsel in the absence of an evidentiary
                  hearing?

                  A.    Did trial counsel fail to meet with
                        the appellant prior to trial to
                        prepare his defense?

                  B.    Did trial counsel fail to move for a
                        mistrial after hearsay testimony


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                          was presented identifying him as
                          the assailant?

                   C.     Did trial counsel fail to secure the
                          surveillance video showing the
                          incident?

                   D.     Did trial counsel fail to interview
                          Louie Ortiz, a/k/a Jose Ortiz, and
                          present him as a witness at trial?

Appellant’s brief at 4.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.     Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      Moreover, as most of appellant’s issues on appeal are stated in terms

of ineffective assistance of counsel, we also note that appellant is required to

make the following showing in order to succeed with such a claim: (1) that

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) 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.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).         The failure to satisfy any

prong of this test will cause the entire claim to fail.    Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed


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to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

      We first address appellant’s contention that the PCRA court erred in

not conducting an evidentiary hearing.

            [T]he right to an evidentiary hearing on a
            post-conviction     petition   is    not    absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014
            (Pa.Super.2001).     It is within the PCRA court’s
            discretion to decline to hold a hearing if the
            petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. Id.
            It is the responsibility of the reviewing court on
            appeal to examine each issue raised in the PCRA
            petition in light of the record certified before it in
            order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without     conducting    an   evidentiary   hearing.
            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012), quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

      Appellant’s issues pertain to instances of ineffective assistance of

counsel.   Where the issue concerns ineffective assistance of counsel, an

evidentiary hearing is usually necessary only to determine if counsel’s failure

to act was an oversight or some kind of tactical decision.      The other two

prongs of the test for ineffectiveness, underlying merit of the claim and

prejudice to the defendant, can usually be determined from the record.

Because an appellant must prove all three prongs, the failure to prove a


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single prong results in a finding of no ineffectiveness. Thus, an evidentiary

hearing need not be held where it can be determined from the record that

the underlying claim has no merit or that there has been no prejudice to

appellant. That is the situation here and we find no error in failing to hold

an additional evidentiary hearing.

      In his first claim of trial counsel’s ineffectiveness, appellant contends

that trial counsel was ineffective in failing to meet with him before trial.

Appellant’s issue is more than a claim that counsel failed to adequately

consult with him and prepare for trial; appellant asserts that counsel did not

meet with him at all prior to trial. As proof of same, appellant attached to

his PCRA petition a copy of the jail’s visitor log while he was incarcerated.

On appeal, appellant cites the following:

                   Finally, it is also clear that Appellant was
            prejudiced by Mr. Turner's failure to meet with him
            in person prior to trial.     See id.   As we have
            highlighted above, in order to prepare a defense to a
            charge of murder in the first degree, it is essential
            that at the very least, counsel meet with his client in
            person to, inter alia, gather information from the
            client, evaluate the client's demeanor, and try to
            establish a working relationship.

Commonwealth v. Brooks, 839 A.2d 245, 250 (Pa. 2003). We need not

address Brooks because we find, as did the PCRA court, that the record

belies appellant’s assertion that counsel never met with him.




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      First, appellant’s stepfather testified at trial that he and appellant went

to trial counsel’s office before surrendering to police to discuss his options.

(Notes of testimony, 3/2/05 at 163-164.)

      Second, when the court conducted its colloquy of appellant about his

decision not to testify, the following statements were adduced:

            THE COURT: You understand that you have the right
            to testify during the course of your trial if you so
            desire. You understand that?

            THE DEFENDANT: Yes.

            THE COURT: You understand that that is your right
            and your right alone?

            THE DEFENDANT: Yes.

            THE COURT: Have you had the opportunity to speak
            with your lawyer about whether or not you will
            testify in this case?

            THE DEFENDANT: Yes.

            THE COURT: And have you reached a decision as to
            whether or not you wish to testify in this case?

            THE DEFENDANT: Yes.

            THE COURT: What is that decision?

            THE WITNESS: I’m not going to testify.

            THE COURT: Has anyone forced you, threatened you
            or in any other way precluded you from testifying,
            even though you wanted to?

            THE WITNESS: No.




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            THE COURT: You understand, then, that the fact that
            you have not testified cannot and will not be held
            against you by this Court. Do you understand that?

            THE DEFENDANT: Yes, Your Honor.

            THE COURT: Your counsel has indicated that he
            intends to rest the defense of this case. Are there
            any witnesses that [you] wanted to have presented
            or any other evidence that you wanted to have
            introduced that has not been introduced or witnesses
            that have not been called during the course of this
            trial?

            THE DEFENDANT: No, Your Honor.

            THE COURT: Are you satisfied, then, with the
            representation of your lawyer?

            THE DEFENDANT: Yes, Your Honor.

Notes of testimony, 3/2/05 at 227-228.      Clearly, this testimony indicates

that counsel and appellant conferred as to whether appellant should testify.

Moreover, appellant voiced his satisfaction with counsel’s representation.

This obviously contradicts appellant’s complaint that counsel had never once

met with him to discuss his case.

      Third, appellant’s trial counsel stated, before commencing his closing

argument, that he had discussed his trial strategy with appellant.    (Id. at

231-233.)    Counsel’s first strategy was to attack the identification of

appellant as the perpetrator, and if the court believed that appellant was the

assailant, that no evidence of premeditation existed. (Id.) The court then

asked appellant if he agreed with counsel’s strategy and appellant answered




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affirmatively and also stated that he had nothing to say or add.      (Id. at

234-235.)

      It is quite clear from the record evidence that counsel met with

appellant at some point, but possibly not while he was incarcerated, to

prepare for trial.   We do not think the PCRA court needed to hold an

evidentiary hearing where appellant would undoubtedly be impeached with

his declaration of satisfaction with counsel’s representation.    There is no

error here.

      Appellant next argues that counsel was ineffective in failing to request

a mistrial after hearsay evidence was introduced that identified appellant as

the assailant. Appellant is referring to the testimony of Jamar Headen who

was an eyewitness to the shooting. Headen was a regular customer at the

bar as were appellant and his brother Lou. Headen had seen the brothers in

the bar several times before.    On the night of the shooting, Headen was

introduced to appellant’s brother. When later questioned by police Headen

wasn’t sure of the assailant’s name but suggested it might be “Lou.”

Headen also identified the shooter as having certain tattoos.      Lou is the

individual that has the tattoos, not appellant.        Nonetheless, Headen

consistently identified appellant as the shooter both at trial and when

detectives showed him a photo array during their investigation.




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      During cross-examination by appellant’s trial counsel, counsel was

inquiring how Headen knew appellant’s father was also in the bar that night,

when he earlier stated that he did not know the father:

              Q.   [Defense counsel] So that you’re basing that
                   on what other people told you?

              A.   [Headen] On his [appellant’s] girlfriend, yeah.

              Q.   Did you ever mention Lou’s name to the
                   girlfriend?

              A.   She the one told me it was John.

              Q.   That’s not my question to you, Sir. Let me
                   repeat it for you. Did you ever mention Lou’s
                   name to the girlfriend?

              A.   I don’t remember. I don’t want to say yeah.

              Q.   She told you that down in Homicide, right, that
                   John did it, right?

              A.   Yeah.

Id. at 138.

      From this exchange, appellant cobbles together an argument that

Headen’s identification was based upon hearsay information supplied by

appellant’s girlfriend and that counsel should have moved for a mistrial. To

the extent that appellant is complaining that Headen’s identification was

based not upon personal observation but upon information from appellant’s

girlfriend, we find that not to be the case. The girlfriend did not identify to

Headen who the shooter was, but rather merely clarified for Headen what

was the actual name of the person Headen had observed committing the


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murder. This is more apparent in an earlier exchange between Headen and

defense counsel:

              Q.   Who you told the police was Lou, right?

              A.   Yes.

              Q.   Did you ever tell the police that that person
                   who shot Mell was in the bar every day?

              A.   I didn’t know if Lou was his name or not. I
                   said, I don’t know if that’s his name. I never
                   said, oh, yeah, Lou shot him. I said, I don’t
                   know if that’s his name or not. I did not know
                   his name was John. His girl, she was, like, his
                   name is Jonathan who did it.

Id. at 121.

      To the extent that appellant is complaining that hearsay was

improperly admitted and counsel failed to object, we find that the girlfriend’s

information does not constitute hearsay.         “Hearsay is defined as ‘a

statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.’

Pa.R.Evid. 801(c).”       Commonwealth v. Parker, 104 A.3d 17, 21

(Pa.Super. 2014).     The alleged hearsay statement of appellant’s girlfriend

was not elicited to prove the truth of the matter asserted, that appellant

shot the victim; rather, it was elicited by defense counsel to impeach

Headen by implying that Headen was only able to identify the actual shooter

based upon information supplied by appellant’s girlfriend. Since there is no

hearsay here, there was no basis for counsel to object and request a



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mistrial.    Consequently, there can be no finding of ineffectiveness.          If

anything, counsel was very much acting in appellant’s best interest by

attempting to impeach a key witness.

        Appellant next argues that counsel was ineffective in failing to present

a surveillance video taken from outside the bar at the time of the shooting.

Prior to sentencing, appellant’s post-trial counsel made a motion for

extraordinary relief based upon either a Brady violation on the part of the

Commonwealth for failing to reveal the video to the defense or ineffective

assistance by trial counsel for failing to present the video at trial. 1 The trial

court reviewed the video and denied the motion because the video was not

of a nature that required the granting of a new trial. (Notes of testimony,

8/8/05 at 40.) In other words, the video was not exculpatory.

        On appeal, appellant merely argues that because the video shows

another white or Hispanic present on the street in the vicinity of the

shooting, that would have supported the defense argument that someone

other than appellant shot the victim.     We reject this assertion.    The mere

presence of a third party at the crime scene in no way bolsters the defense

theory, unless the video depicts the third party engaging in incriminating

behavior such as arguing or fighting with the victim, or drawing the murder

weapon.     Appellant makes no argument that the video depicted anything

more than the mere presence of a third party. We find no ineffectiveness on


1
    Brady v. Maryland, 373 U.S. 83 (1963).


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the part of trial counsel in failing to present a video that was not

exculpatory.

      In his final argument, appellant complains that trial counsel was

ineffective in failing to call his stepfather, Jose Louis Ortiz, as a witness at

trial. Ortiz was called by the prosecution as a witness at trial. Ortiz testified

that appellant and the victim were at the bar that night and that they

quarreled.   (Notes of testimony, 3/2/05 166-167.)       Ortiz related that first

the victim and then appellant went outside, and that as appellant passed by

him, appellant “had his hands balled up” and told Ortiz “he’s going to go

take care of this.” (Id. at 166-168.) Ortiz stayed in the bar and then heard

two or three shots. (Id. at 161.) He then went outside and witnessed the

victim get up and run across the street to his house.        (Id.)   Ortiz asked

appellant what had happened and appellant said “nothing” and then ran.

(Id. at 161-162.) Ortiz’s testimony was reluctant at first, but became more

forthcoming when he was confronted with his statement to the police.

      In an affidavit attached to one of the amended PCRA petitions, Ortiz

claimed that he made his statement to police under police coercion.           He

claimed that the police threatened to hold him as a participant in the

homicide unless he made a statement. Ortiz also noted his criminal record

and his fear of losing his job. Ortiz further stated that he does not know if

appellant was in the bar that night and did not see anyone leaving the bar.

Finally, Ortiz stated that trial counsel never tried to speak to him about his



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testimony, but that if he had attempted to speak to him, Ortiz would have

told him about the police coercion.

            To prevail on a claim of trial counsel's ineffectiveness
            for failure to call a witness, the appellant must show:
            (1) that the witnesses existed; (2) that the witnesses
            were available; (3) that counsel was informed of the
            existence of the witnesses or should have known of
            the witnesses' existence; (4) that the witnesses were
            available and prepared to cooperate and would have
            testified on appellant's behalf; and (5) that the
            absence of the testimony prejudiced the appellant.

Commonwealth v. Meadows, 787 A.2d 312, 320 (Pa. 2001).

      Appellant’s claim is specious. First, appellant cannot satisfy the third

prong above because there is no assertion that counsel was informed that

Ortiz had favorable testimony regarding police coercion; rather, the

assertion is that counsel neglected to ask. However, the above test imposes

a duty on appellant and/or the witness to come forward and inform counsel.

There was no reason for counsel to suspect that Ortiz’s statement had been

coerced.

      Second, even if we assume that Ortiz’s affidavit is true, then appellant

cannot satisfy the fourth prong above because at the time of trial, Ortiz was

clearly not prepared to cooperate with appellant, even if it was only to serve

his self-interest to avoid being charged himself.

      Third, Ortiz was more than a mere witness in this trial.            Ortiz

contacted trial counsel to help turn his son in and then retained counsel on

his son’s behalf.    (Notes of testimony, 3/2/05 at 164.)          It is simply



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preposterous that Ortiz would have such an intimate relationship with trial

counsel and not reveal to counsel at the time that the police had coerced a

statement from him. There is no merit here.

      Accordingly, having found no merit in any of the issues raised on

appeal, we will affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/4/2015




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