J-S14010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
               v.                :
                                 :
                                 :
     TREIDY COLON                :
                                 :
                  Appellant      :             No. 688 EDA 2017
                                 :

                  Appeal from the PCRA Order February 6, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008370-2010


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.:                                 FILED JUNE 11, 2018

        Treidy Colon appeals from the order entered February 6, 2017, in the

Philadelphia County Court of Common Please, denying his first petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Colon seeks relief from the judgment of sentence of five to 15 years’

imprisonment, imposed on March 21, 2012, following his conviction of criminal

conspiracy to commit aggravated assault.2 On appeal, Colon contends the

PCRA court erred in dismissing his allegation of trial counsel’s ineffectiveness

for failing to object to hearsay testimony as a violation of the Confrontation


____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   See 42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. §§ 903(a)(1) and 2702.
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Clause without first conducting an evidentiary hearing. For the reasons below,

we affirm.

        The facts underlying Colon’s arrest and conviction were summarized by

a panel of this Court in an unpublished memorandum decision affirming his

judgment of sentence on direct appeal:

              On April 7, 2010, Luis Aponte (the “victim”) and his two
        brothers planned to rob prospective drug customers on the 2900
        block of Kip Street in the city of Philadelphia, but were told to
        leave by Efrain Santiago. The brothers returned later that evening
        and asked Michael DeJesus where they could find Santiago.
        DeJesus observed one of the brothers grab his waist and move
        what appeared to be a gun. Although DeJesus did not know where
        Santiago was, he told the brothers that he was at Kip and Cambria
        Streets. He then called and informed Santiago that the Aponte
        brothers were looking for him. Santiago responded that [Colon]
        was on his way. Shortly after the phone call, DeJesus observed
        [Colon] walking at a fast pace towards Kip and Cambria Streets
        with one hand behind his back. DeJesus then observed [Colon]
        shoot the victim and flee the scene.

Commonwealth v. Colon, 87 A.3d 874 [1319 EDA 2012 (Pa. Super. 2013)

(unpublished memorandum at *1).

        Colon was subsequently arrested and charged with murder, criminal

conspiracy to commit aggravated assault, possession of an instrument of

crime, and two firearms violations.3 On January 27, 2012, following a jury

trial, he was convicted only of conspiracy to commit aggravated assault. The

jury acquitted him of the remaining charges. On March 21, 2012, the trial

court sentenced Colon to a term of five to 15 years’ imprisonment. Colon’s
____________________________________________


3   See 18 Pa.C.S. §§ 2502, 903/2702, 907, 6106, and 6108, respectively.


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judgment of sentence was affirmed on direct appeal, and the Pennsylvania

Supreme Court denied his petition for review.       See Colon, supra, appeal

denied, ___ A.3d ___, 582 EAL 2013 (Pa. 2013).

        On March 10, 2015, Colon filed a timely, pro se PCRA petition. Counsel

was appointed, and filed an amended petition on April 22, 2016.               The

Commonwealth filed a motion to dismiss on September 28, 2016, and

thereafter, the PCRA court sent Colon notice of its intent to dismiss the petition

without first conducting an evidentiary hearing. After receiving no response

from Colon, the PCRA court dismissed the petition on February 6, 2017. This

timely appeal followed.4

        On appeal, Colon raises two, related claims, which we have consolidated

as follows: whether the PCRA court erred in dismissing his petition without

first conducting an evidentiary hearing on his claim that trial counsel was

ineffective for failing to object to hearsay testimony as a violation of Colon’s

Sixth Amendment right to confront witnesses against him. See Colon’s Brief

at 8.

        “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

____________________________________________


4On March 9, 2017, the PCRA court ordered Colon to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Colon
complied with the court’s directive, and filed a concise statement on March
16, 2017.


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(internal punctuation and citation omitted).    Further, “a PCRA court may

decline to hold a hearing on the petition if petitioner’s claim is patently

frivolous or lacks support from either the record or other evidence.”

Commonwealth v. duPont, 860 A.2d 525, 530 (Pa. Super. 2004) (citation

omitted), appeal denied, 889 A.2d 87 (Pa. 2005), cert. denied, 547 U.S. 1129

(2006).

      In order to obtain relief based upon an allegation of the ineffective

assistance of counsel, a PCRA petitioner must demonstrate: “(1) the claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) counsel’s ineffectiveness prejudiced him.”

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).

Moreover, we presume counsel provided effective assistance, and “place upon

the appellant the burden of proving otherwise.” Id.

      Here, Colon challenges the testimony of DeJesus that Santiago told him

he was sending Colon to deal with the men looking for him.          See N.T.,

1/25/2012, at 40 (DeJesus testifying Santiago told him on the phone that he

was “sending Treidy to chill out”).     The parties discussed this proposed

testimony before trial when the court was considering whether Colon’s

purported drug-dealing was admissible as a prior bad act.            See N.T.

1/23/2012, at 20.    The prosecutor argued the drug-dealing evidence was

relevant to show the relationship between the parties, i.e., that Santiago was




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in charge of the block.       See id. at 34.     When the court commented that

Santiago was not involved in the murders,5 the following discussion ensued:

       [Prosecutor:] Well, [Santiago] is in the sense that he’s actually
       the one that sends Mr. Colon to the block, and he also is the one
       that Mr. DeJesus calls when there’s a problem on the block.

       [Defense Counsel]: Right; but there’s no admissible testimony
       that Efrain Santiago sends my client. That would come from Mr.
       DeJesus, who says he had a phone call with [Santiago]; and
       [Santiago] said to Mr. DeJesus, “I’m sending Treidy.”

              I don’t see how that comes in.

       [Prosecutor]: Well, that comes in.

       [Defense Counsel]: There’s no exception that would allow that
       hearsay to come in.

       [Prosecutor]: It’s a statement of a co-conspirator in furtherance
       of the conspiracy.

                                         ****

       It’s a statement – it’s a statement of [Santiago.] …

             And it’s a statement to Mr. DeJesus, who’s also a co-
       conspirator. It’s a statement about Mr. Colon, who’s also a co-
       conspirator. And it’s a statement in furtherance of the conspiracy,
       which is to assault these guys on the block and to take care of
       them.

Id. at 34-36. Although the trial court was initially disinclined to permit the

testimony, see id. at 42, it later agreed Santiago’s statement to DeJesus was

____________________________________________


5 We note Colon was tried with co-defendant Bruce Santiago, who is the cousin
of Santiago. See N.T., 1/23/2012, at 35. Furthermore, although DeJesus
was originally charged with murder in this case, he subsequently entered a
guilty plea to two gun charges, and was awaiting sentencing at the time he
testified against Colon. See N.T., 1/25/2012, at 91.



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admissible as “a statement in furtherance of the conspiracy.”       Id. at 84

(stating, “because the conspiracy is that they’re on the block; they see the

intruders coming – come back; and they want to get – and then they make a

phone call to send the strongarm around to get rid of the – and that’s part of

the conspiracy.”).

      Colon insists trial counsel’s failure to object to the admission of

Santiago’s statement “as a violation of the Confrontation Clause and [Colon’s]

right to confront all witnesses against him” amounted to ineffective assistance

of counsel. Colon’s Brief at 18. He contends “the statement was testimonial,”

and, pursuant to the United States Supreme Court’s decision in Crawford v.

Washington, 541 U.S. 36 (2004), the speaker “had to be present for cross-

examination.” Id. Colon maintains the Commonwealth’s “failure to subpoena

[Santiago]” and its reliance on DeJesus’ testimony should have been

challenged by trial counsel. Id. Further, he argues the “PCRA court should

have granted an evidentiary hearing to provide the forum to demonstrate such

manifest injustice.” Id. at 16.

      The PCRA court, however, determined there was no arguable merit to

Colon’s claim because trial counsel had, in fact, objected to the testimony as

hearsay. See PCRA Court Opinion, 5/1/2017, at unnumbered 2. Accordingly,

the court found no evidentiary hearing was required. See id. at unnumbered

3.




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      Upon our review of the record, the parties’ briefs and the relevant

statutory and case law, we agree that Colon’s allegation of counsel’s

ineffectiveness has no arguable merit, and, therefore, the court properly

declined to conduct an evidentiary hearing. However, our basis for concluding

so is different from that of the PCRA court. See Commonwealth v. Burton,

158 A.3d 618, 630 n.15 (Pa. 2017) (“[A]n appellate court may affirm a PCRA

court’s order for any reason of record.”).

      Although counsel lodged a hearsay objection at trial, we do not agree

that objection encompassed his present claim that the admission of Santiago’s

statement to DeJesus was violative of the Confrontation Clause, as interpreted

by Crawford, supra.          Nevertheless, we conclude that Colon’s present

Crawford claim has no arguable merit, and accordingly, counsel was not

ineffective for failing to raise the issue in the trial court.

      In Crawford, the United States Supreme Court considered when the

admission of an out-of-court statement, whether or not the statement

constitutes hearsay, implicates a defendant’s Sixth Amendment right to

confront witnesses against him. In considering the text of the Constitution,

the Court stated, “the principal evil at which the Confrontation Clause was

directed was the civil-law mode of criminal procedure, and particularly its use

of ex parte examinations as evidence against the accused.”         Crawford,

supra, 541 U.S. at 50. With this in mind, the Court further explained:

      [N]ot all hearsay implicates the Sixth Amendment’s core
      concerns. An off-hand, overheard remark might be unreliable
      evidence and thus a good candidate for exclusion under hearsay

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      rules, but it bears little resemblance to the civil-law abuses the
      Confrontation Clause targeted. …

            The text of the Confrontation Clause reflects this focus. It
      applies to “witnesses” against the accused—in other words, those
      who “bear testimony.” “Testimony,” in turn, is typically “[a]
      solemn declaration or affirmation made for the purpose of
      establishing or proving some fact.” An accuser who makes a
      formal statement to government officers bears testimony
      in a sense that a person who makes a casual remark to an
      acquaintance does not.

Crawford, supra, 541 U.S. 50-51 (internal citations omitted and emphasis

supplied). The Supreme Court went on to provide a non-exclusive list of the

types of statements that would be considered “testimonial” under the

Constitution, including, prior testimony, affidavits, and “statements that were

made under circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a later trial[.]” Id.

at 51-52.

      Conversely, in the present case, the statement at issue was not

“testimonial” as interpreted by Crawford, and therefore, not violative of the

Confrontation Clause. Indeed, Santiago’s statement to DeJesus was the type

of “causal remark to an acquaintance” that Crawford found to be omitted

from Sixth Amendment concerns. Id. at 51. Nor did the circumstances under

which the statement was made, i.e., during a phone call between co-

conspirators, lead either DeJesus or Santiago to “believe the statement would

be available for use at a later trial.”     Id. at 52.   Therefore, because we

conclude the statement at issue, while clearly hearsay, was not “testimonial”




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under Crawford, counsel would have had no reason to object on that basis,

and Colon’s ineffectiveness claim fails for lack of arguable merit.

       Order affirmed.6


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/18




____________________________________________


6 It merits mention that on January 29, 2018, pursuant to Rule 1.12(c)(2) of
the Pennsylvania Rules of Professional Conduct, the Commonwealth provided
written notice to this Court and PCRA counsel that the judge who presided
over Colon’s jury trial, the Honorable Carolyn Temin, is now employed by the
Philadelphia District Attorney’s Office. The notice further stated that Judge
Temin “has disqualified and screened herself from any participation in this
matter.” Notice Pursuant to Rule 1.12(c)(2) of the Pennsylvania Rules of
Professional Conduct, 1/29/2018.

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