J-S36007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HECTOR COLON-PLAZA                         :
                                               :
                       Appellant               :   No. 1415 MDA 2018

               Appeal from the PCRA Order Entered July 26, 2018
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0002452-2014


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED NOVEMBER 07, 2019

        Appellant, Hector Colon-Plaza, challenges the order entered in the

Lancaster County Court of Common Pleas, denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. He alleges trial counsel rendered ineffective assistance by failing to

object to the Commonwealth’s reference to Appellant’s right to remain silent.

We affirm.

        A previous panel of this Court recounted the facts and procedural history

of this case:

        In 2010, Appellant pled guilty to two counts of indecent assault of
        a minor and received two years’ probation, which he completed.
        On April 17, 2014, the Pennsylvania Office of Attorney General
        (“OAG”) obtained a search warrant for Appellant’s residence on
        evidence that OAG law enforcement software enabling agents to
        detect the location of computers offering child pornography for
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   Retired Senior Judge assigned to the Superior Court.
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     download had twice during a four-month period downloaded
     videos and images of child pornography offered from an internet-
     based, peer-to-peer file-sharing program in use at Appellant’s
     residence. Pursuant to a court order, Comcast Cable
     Communications supplied account information naming Appellant
     as the wireless internet subscriber. Authorities further determined
     that wireless internet access from this address was locked and
     required a password.

     Appellant shared the residence with his girlfriend, Angela
     Gonzalez, and she was home when authorities executed the
     search warrant. OAG agents confiscated a non-functioning digital
     tablet, three cell phones, and two laptop computers, one of which
     was stored in a hallway closet. It was this HP laptop, alone, which
     contained an Ares file-sharing program, and within this program
     were files containing the two videos and two images of child
     pornography captured by the OAG computer. Further examination
     of the laptop disclosed a username of “HECTOR,” a most recent
     log-on under this username of April 16, 2014, just one day before
     service of the warrant, and placement of the child pornography
     files in a file path under this username. N.T. Trial, 3/3/15, at 205–
     08.

     OAG agents obtained Appellant’s work address from Ms. Gonzalez
     and interviewed him at his office after advising him of his Miranda
     rights, which he temporarily waived. In his recorded statement,
     Appellant admitted that he and Ms. Gonzalez kept two computers
     and one digital tablet in the residence and knew each other’s
     passwords. He denied recent use of the HP laptop computer stored
     in the hall closet, although he admitted to knowing its password
     and using it in the past to share music and video files.

     Authorities arrested Appellant and charged him with two counts of
     disseminating child pornography in addition to the charges
     referenced above. On March 4, 2015, a jury found Appellant not
     guilty of disseminating child pornography but guilty on all counts
     of possession of child pornography and criminal use of
     communication facilities. Prior to sentencing, the Commonwealth
     notified Appellant that it would seek a mandatory minimum
     sentence of 25 years under [42 Pa.C.S.A. § 9718.2,] a recidivist
     statute addressing sexual offenders. At Appellant’s sentencing
     hearing, the court noted that a Sexual Offenders Assessment
     Board determined Appellant was not a sexually violent predator.
     Nevertheless, finding Appellant was a recidivist sex offender as

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      contemplated under the mandatory minimum sentencing scheme,
      the court imposed a mandatory 25 to 50–year term of
      incarceration.

Commonwealth v. Colon-Plaza, 136 A.3d 521, 524-525 (Pa. Super. 2016)

(footnotes omitted).

      This Court affirmed the judgment of sentence, and Appellant did not file

a petition for allowance of appeal to the Pennsylvania Supreme Court. Instead,

he filed the instant PCRA petition, alleging the ineffectiveness of trial counsel.

Appellant then retained counsel, who filed an amended petition.

      The PCRA court held an evidentiary hearing. At the conclusion of the

hearing, the PCRA court ordered the parties to file briefs. Ultimately, the court

denied relief, and Appellant filed a timely notice of appeal. This matter is now

properly before us.

      Appellant’s sole issue on appeal challenges the effectiveness of trial

counsel. However, before we are able to address it, we must determine

whether the petition was timely filed.

      We begin by addressing the timeliness of Appellant’s petition. A PCRA

petition is timely if it is filed within one year of the date the petitioner’s

judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). “A

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super. 2014)

(citation omitted).


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      Here, a previous panel of this Court affirmed Appellant’s judgment of

sentence. He did not file a petition for allowance of appeal to the Pennsylvania

Supreme Court. His judgment of sentence became final on March 26, 2016,

thirty days after this Court issued its opinion, when his time for filing a petition

for allowance of appeal with the Pennsylvania Supreme Court expired. See

Pa.R.A.P. 1113(a). Appellant’s PCRA petition, filed on February 22, 2017, is

therefore timely.

      We proceed to the merits of Appellant’s claim. “Our standard of review

for issues arising from the denial of PCRA relief is well-settled. We must

determine whether the PCRA court’s ruling is supported by the record and free

of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super.

2018) (citation omitted). In doing so, we read the record in the light most

favorable to the prevailing party. See Commonwealth v. Ford, 44 A.3d

1190, 1194 (Pa. Super. 2012). If this review reveals support for the PCRA

court’s credibility determinations and other factual findings, we may not

disturb them. See Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014). We, however, afford no deference to the PCRA court’s legal

conclusions. See id.

      Appellant’s sole argument on appeal is that the PCRA court erred in

concluding he had failed to establish that his trial counsel had been ineffective

for failing to object to the presentation of his recorded statement to the jury.

We presume counsel’s effectiveness, and an appellant bears the burden of

proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965 (Pa.

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Super. 2017). “In order for Appellant to prevail on a claim of ineffective

assistance of counsel, he must show, by a preponderance of the evidence,

ineffective assistance of counsel which so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” Presley, 193 A.3d at 442 (citation omitted).

      To establish ineffectiveness of counsel, a PCRA petitioner must plead

and prove: his underlying legal claim has arguable merit; counsel’s actions

lacked any reasonable basis; and counsel’s actions prejudiced him. See

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to satisfy

any prong of the ineffectiveness test requires dismissal of the claim. See

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).

“Arguable merit exists when the factual statements are accurate and could

establish cause for relief. Whether the facts rise to the level of arguable merit

is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534, 540

(Pa. Super. 2015) (citations and internal quotation marks omitted). “A

defendant raising a claim of ineffective assistance of counsel is required to

show actual prejudice; that is, that counsel’s ineffectiveness was of such

magnitude that it could have reasonably had an adverse effect on the outcome

of the proceedings.” Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014)

(citation and quotation marks omitted).

      It is undisputed that the Commonwealth introduced at trial a recorded

statement and accompanying transcript from Appellant’s initial interview with




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investigators. Further, it is undisputed Appellant eventually invoked his right

to remain silent, which ended the interview.

      Appellant argues that, because the Commonwealth is not permitted to

use a defendant’s assertion of his right to remain silent to prove consciousness

of guilt, trial counsel should have objected to the introduction of the statement

and transcripts. Appellant contends counsel had no reasonable basis for his

failure to object, and that the introduction of this evidence prejudiced the jury

against him. He concludes he is entitled to a new trial based on counsel’s

ineffectiveness. We conclude the PCRA court did not err in finding Appellant

had failed to establish arguable merit or prejudice and therefore disagree.

      The United States and Pennsylvania Constitutions protect a defendant’s

right to silence, including before arrest. See U.S. Const. amend. V; Pa. Const.

art. I § 9; Commonwealth v. Guess, 53 A.3d 895, 903 (Pa. Super. 2012).

“It is axiomatic that a prosecutor may not comment adversely on a

defendant’s refusal to testify with respect to the charges against him since

such commentary would compromise the defendant’s privilege against self-

incrimination and the defendant’s constitutional presumption of innocence.”

Commonwealth v. Molina, 33 A.3d 51, 57 (Pa. Super. 2011) (en banc)

(citation omitted).

      However, this Court has declined to find a “prima facie bar against any

mention of a defendant’s silence,” where the reference is not deemed

exploitative. Commonwealth v. Adams, 39 A.3d 310, 318 (Pa. Super. 2012)

(emphasis in original; citation omitted). As such, not all allusions to a

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defendant’s silence constitute a violation of his Fifth Amendment rights, such

that counsel could be deemed ineffective by failing to object. See Guess, 53

A.3d at 905. Our Pennsylvania Supreme Court has held that “[e]ven an explicit

reference to silence is not reversible error where it occurs in a context not

likely to suggest to the jury that silence is the equivalent of a tacit admission

of guilt.” Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005)

(citation omitted). Where the reference to the defendant’s silence is used to

establish context, rather than employed in a way likely to create an inference

of an admission of guilt, the defendant cannot prove the prejudice prong of

the ineffectiveness test. See id.

      At trial, the Commonwealth referenced Appellant’s interview with police

in its opening statement:

      As the questioning progressed, they ask him, what kind of things
      were you downloading using the Ares network? And finally he
      says, well, I was looking at movies. They told him -- they said,
      well, what kind of movies? You're not going to shock us in any
      way. It was at that point he decided I'm not going to answer any
      more questions and he stopped. And they stopped questioning
      him. So the interview stops at that point and the defendant is
      charged.

N.T. Trial, 3/2/15, at 76.

      Appellant’s counsel objected at sidebar, claiming the Commonwealth

had impermissibly raised the issue of his client “lawyering up” during the

interview. Id., at 91. The court rejected that assertion, stating the

Commonwealth had not referred to Appellant asking for a lawyer, and only




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referenced Appellant’s decision to stop speaking with investigators because it

clarified why the interview had concluded. See id. The court explained:

        What are they supposed to say at that point? If [Appellant] hadn’t
        said anything [to the investigators] period, then I would agree
        with you, to mention [Appellant’s silence] would be inappropriate.
        But where he starts talking [to] them, they ask him a question
        and he doesn’t want to answer, what are they supposed to say at
        that point? I don’t see that there’s anything inappropriate about
        that.

Id.

        The Commonwealth then introduced testimony from Agent Nicole

Laudeman. Laudeman testified, inter alia, that after investigation into the

dissemination of child pornography online, she determined child pornography

was being shared from a device linked to Appellant’s internet subscription

account. See N.T. Trial, 3/3/15, at 120.

        Laudeman and her partner approached Appellant, who agreed to be

interviewed for their investigation. See id., at 131. They read him his

Miranda1 rights, and he answered questions for them before eventually

refusing to continue. See id. The Commonwealth introduced that interview

into evidence. See id., at 136. The relevant portion of the conversation

proceeded as follows:

        [Investigator]: [] OK what did you use Ares for?

        [Appellant]:Um watch videos

        [Investigator]: What kind of videos did you watch?
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1   Miranda v. Arizona, 384 U.S. 436 (1966).

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      [Appellant]: Before um

      [Investigator]: You’re not going to shock us so just be honest[,]
      what videos did you look at[?]

      [Appellant] Well I’m not to say nothing here [sic]. I’m going to
      stop the conversation.

      [Investigator]: You’re going to stop the conversation?

      [Appellant]: Uh huh

Commonwealth’s Exhibit 10, at 7.

      Appellant went on to explicitly ask for an attorney; that request was

excised from the recording and transcript of the interview presented to the

jury. Appellant was arrested thereafter. Appellant’s counsel did not object to

the entry of the redacted interview into evidence.

      The PCRA court held an evidentiary hearing, and trial counsel testified.

He stated he objected to the portion of the Commonwealth’s opening

statement that referenced the interview because he believed it could be

prejudicial to Appellant. See N.T. PCRA Hearing, 12/18/17, at 9. However, he

testified that after the adverse ruling, he deemed the issue meritless and did

not object to the introduction of the interview into evidence. See id., at 10.

He also declined to raise the issue on direct appeal because he believed

Appellant did not actually suffer any prejudice. See id., at 15. Additionally,

counsel testified that while the transcript of Appellant’s initial meeting with

investigators was introduced as an exhibit at trial, the portion where Appellant

explicitly asked for a lawyer was redacted from the transcript. See id., at 27.



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       Here, we find the brief reference to Appellant ending the interview was

appropriately used to contextualize the police investigation. Appellant

knowingly and voluntarily waived that right and cooperated with police in a

highly relevant interview about illicit materials on his computer before deciding

to halt the discussion. At no point in the Commonwealth’s opening statement

or in the recording and transcript presented to the jury was Appellant’s

decision to stop the interview proffered as substantive evidence of his guilt.

Neither the prosecution nor any witness commented on Appellant’s choice to

invoke this right. Instead, the Commonwealth succinctly recapitulated the

facts of the interview as part of the investigation undertaken by Agent

Laudeman. We do not find that these minor references to his silence suggest

Appellant’s tacit admission of guilt. The PCRA court did not err or abuse its

discretion in concluding Appellant had failed to establish that an objection to

the evidence would have been sustained.

       Even if counsel had specifically and successfully objected to any mention

of Appellant’s right to remain silent,2 Appellant fails to demonstrate how the

outcome of trial would have been different. As the PCRA court describes:

       Not only was it established that [Appellant] was the internet
       subscriber, the named profile user of the laptop and one of just
       two residents living at the address, he also admitted to having
       access to the laptop, to knowing its secreted location within the
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2 While trial counsel did object to the Commonwealth’s opening statement on
the grounds that it may have been prejudicial to Appellant, counsel’s objection
was framed as opposition to the Commonwealth referring to Appellant
obtaining a lawyer. Counsel was overruled, as the Commonwealth made no
such reference.

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      closet, to knowing its password and, most significantly, to having
      used the file-sharing program in the past to watch videos.
      Moreover, only two laptops were discovered within the residence,
      along with a nonfunctional tablet and some cell phones.
      [Appellant] initially acknowledged in his interview that he and his
      girlfriend each had a computer in the residence. He also stated
      that his was password protected, that he used it to pay bills and
      watch YouTube videos and that he had never downloaded a
      filesharing program onto his computer. When he was confronted
      with the fact that such a program was discovered on a computer
      within the home, [Appellant] suddenly said that there was a third
      computer within the residence that was old and that he did not
      use anymore. This was the only computer within the residence
      found to contain child pornography and it revealed a three-year
      history in which child pornography was frequently sought,
      downloaded and viewed under [Appellant’s] username and
      password. The properly admitted and uncontradicted evidence of
      guilt was so overwhelming in this case, compared to any
      insignificant prejudicial effect the reference to [Appellant’s]
      request for the interview to end may have had, that the admission
      of such could not have contributed to the verdict.

PCRA Court Opinion, filed 7/25/18, at 6-7.

      We agree with the court’s assessment. Accordingly, we find Appellant is

due no relief on this issue, and we affirm the denial of his petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/07/2019




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