J-S10030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA
                             Appellee

                        v.

    GABRIEL RODRIGUEZ-DIAZ

                             Appellant                  No. 1600 EDA 2018


                Appeal from the PCRA Order entered May 4, 2018
              In the Court of Common Pleas of Philadelphia County
     Criminal Division at No: CP-51-CR-0005088-2012, CP-51-CR-0005087-
                                     2012


BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.:                                 FILED MAY 16, 2019

        Appellant, Gabriel Rodriguez-Diaz, appeals pro se from the May 4, 2018

order entered in the Court of Common Pleas of Philadelphia County, denying

his petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           Appellant contends he was denied

meaningful PCRA review due to PCRA counsel’s failure to assert trial counsel

ineffectiveness. Following review, we affirm.

        The PCRA court provided the following procedural background:

        On January 29, 2015, [Appellant] was found guilty by a jury       of
        conspiracy to commit murder, 18 Pa.C.S. § 2502, possession        of
        an instrument of crime, 18 Pa.C.S. § 907 [“PIC”], possession      of
        firearm by prohibited person, 18 Pa.C.S. § 6105, firearms not     to

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      be carried without a license, 18 Pa.C.S. § 6101, carrying firearms
      on a public street, 18 Pa.C.S. § 6108, and recklessly endangering
      another person, 18 Pa.C.S. § 2705. On April 2, 2015, this court
      sentenced Appellant to an aggregate sentence of sixteen to thirty-
      six years’ incarceration followed by five years’ probation.
      Appellant thereafter filed a notice of appeal and a court ordered
      Pa.R.A.P. 1925(b) statement.

      On December 28, 2016, the Superior Court affirmed the order
      imposing judgment of sentence. Appellant did not file a petition
      for allowance of appeal in the Pennsylvania Supreme Court.
      Instead, on September [5], 2017, he filed a pro se PCRA petition.
      Counsel was appointed to represent him and on April 5, 2018,
      counsel filed a “no-merit” letter pursuant to Commonwealth v.
      Finley, 550 A.2d 213 (Pa. Super. 1988). After carefully reviewing
      the entire record and counsel’s no-merit letter this court sent
      Appellant a notice of intent to dismiss pursuant to Pa.R.Crim.P.
      907 on April 6, 2018. Appellant filed a response thereto on April
      30, 2018. After again carefully reviewing the entire record, this
      court on May 4, 2018, issued an order dismissing Appellant’s PCRA
      petition without a hearing. Appellant filed the instant pro se
      appeal from that order on May 21, 2018, as well as a court-
      ordered Pa.R.A.P. 1925(b) statement.

PCRA Court Opinion, 8/15/18, at 1-2 (some capitalization omitted).

      In addition to the procedural history, the PCRA court provided a detailed

account of the factual history of the case. Id. at 2-6. For purposes of context

for the issues presented in this appeal, we note the following pertinent facts,

consistent with the PCRA court’s summary.

      On September 3, 2011, Philadelphia Police Officer Howard Lee heard

gunfire coming from the rear of a nightclub on Whitaker Avenue in

Philadelphia. Lee ran from his vehicle to the rear of the club, encountering a

number of people running from the rear parking lot. Based on information

from an individual named Jose Pagan, Lee proceeded to a driveway where he


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saw a dark-colored vehicle leaving the driveway at a high rate of speed onto

Hunting Park Avenue.      He then returned to the club and observed Edwin

Santana who had blood on his clothing.

      Philadelphia Police Officer Anthony Sampson was driving eastbound on

Whitaker Avenue when he received a radio call about shots fired at Whitaker

and Hunting Park Avenues. When he arrived at the scene, he heard people

yelling that three people had been shot.      Sampson then observed a car

traveling west on Hunting Park Avenue at a high rate of speed and proceeded

to make a U-turn to follow the car after hearing bystanders comment, “That’s

the car. That’s the black car—an Acura.” Sampson and other officers pursued

the vehicle, which ultimately crashed into a pole after a ten-block high-speed

chase.

      Santana provided a statement explaining that there was an altercation

inside the nightclub that spilled outside the club. He described two males with

guns who approached him outside, one of whom shot him. He stated the two

males fled in a black vehicle, believed to be a Honda. However, Santana later

disavowed the statement, stating he was high when he was shot and when

police interviewed him.   The officer who took the statement refuted those

assertions and explained he recorded Santana’s responses verbatim, including

Santana’s physical descriptions of the two men.

      Further discussions with Pagan indicated he was inside the club with

Santana when Santana got into a fight with another man. Pagan and Santana


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then left the club for a cigarette when two men approached with handguns

and began firing at Santana. The men then walked behind the building and

Pagan watched as a dark sporty Honda sped out of the lot.           Police later

escorted Pagan to the location where the car had crashed. Pagan identified

the two men from the car as the ones who drove from the lot and as the ones

who shot Santana. Appellant was one of those two men.

      Armed with a search warrant, police later seized a .45 caliber Colt MK4

from the backseat of the car. Police also recovered a Glock from the highway

as well as ten .45 caliber fired cartridge cases and a projectile from the rear

parking lot of the club. Ballistics confirmed the fired cartridges and the spent

projectile were fired from the Colt 45 found in the back seat of the car.

      As noted at the outset, Appellant was convicted of various charges,

including conspiracy to commit murder and PIC.         This Court affirmed his

judgment of sentence on December 28, 2016. Appellant filed a timely pro se

PCRA petition on September 5, 2017, alleging trial counsel ineffectiveness “for

failure to request a inconsistent statement jury instruction with regard to

Edwin Santanas testimony.” PCRA Petition, 9/5/17, at 4 (verbatim).

      Appointed counsel did not file an amended petition. Rather, he filed a

Finley letter advising the PCRA court that he had reviewed the file materials,

“including the pro se petition, docket entries, direct appeal documents &

opinions, along with notes of testimony associated with the case.”       Finley

Letter, 4/5/18, at 1. Counsel explained his determination that Appellant’s sole


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asserted claim of ineffectiveness lacked merit and that his “review of the

remainder of the trial transcript for any instance of trial counsel’s

ineffectiveness . . . also fails and is without merit.” Id. at 3.

      After the PCRA court issued a Rule 907 notice of intent to dismiss,

Appellant filed a response, objecting to the dismissal and claiming that

appointed counsel did not contact Appellant before filing his Finley letter.

Appellant’s Response, 4/30/18, at 1. Appellant asserted he was deprived of

the opportunity to inform counsel of seven other issues, which he outlined in

his response. Id. at 2-3. On May 4, 2018, the PCRA court issued its order

dismissing Appellant’s petition. This timely appeal followed. Both Appellant

and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant asks us to consider two issues in this appeal:

      I.    Did court appointed PCRA counsel deny the Appellant
            meaningful post-conviction review where counsel merely
            relied on the contents of the pro se petition without doing
            further inquiry before filing a “no merit” letter; thus PCRA
            counsel was ineffective for failing to raise trial counsel’s
            ineffectiveness?

      II.   Was trial counsel ineffective where trial counsel failed to:

               a) inquire, interview, investigate, and/or determine
               whether any of the witnesses present or near the
               scene could refute the Commonwealth’s contention
               that Appellant was involved in the shooting the
               Appellant was arrested for?

               b) object to the trial court’s abuse of discretion in
               closing the courtroom to public access?

               c) to object to the prejudicial testimony relevant to
               the on scene identification of the Appellant?

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               d) notify and communicate to the Appellant that
               Appellant’s bail was reduced to nominal bail in
               further violation of the Appellant’s right to a speedy
               trial?

Appellant’s Brief at 4.

      Our standard of review from the denial of PCRA relief is well settled. “In

PCRA proceedings, an appellate court’s scope of review is limited by the

PCRA’s parameters; since most PCRA appeals involve mixed questions of fact

and law, the standard of review is whether the PCRA court’s findings are

supported by the record and free of legal error.” Commonwealth v. Pitts,

981 A.2d 875, 878 (Pa. 2009) (citation omitted).

      In his first issue, Appellant suggests PCRA counsel deprived him of

meaningful post-conviction because counsel addressed the sole issue raised

in Appellant’s pro se PCRA petition without further inquiry.            “Thus,” he

contends, “PCRA counsel was ineffective for failing to raise trial counsel’s

ineffectiveness.”   Appellant’s Brief at 8.   As the PCRA court recognized,

because Appellant is claiming “subsequent counsel was ineffective for not

raising the ineffectiveness of a previous counsel, he or she must ‘layer’ his []

claims of ineffectiveness. In an allegation of layered ineffectiveness, the only

viable claim is that related to the most recent counsel, which in this case is

PCRA counsel.” PCRA Court Opinion, 8/15/18, at 8-9 (citing Commonwealth

v. Edmiston, 851 A.2d 883, 891 (Pa. 2004); Commonwealth v. McGill, 832

A.2d 1014, 1022 (Pa. 2003)).


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       As our Supreme Court explained in Edmiston,

       To prove an entitlement to relief in a case such as this—where
       direct appeal counsel is faulted for failing to raise claims sounding
       in the alleged ineffective assistance of trial counsel—the PCRA
       petitioner must plead and prove the Strickland/Pierce[1] test as
       to both his trial and direct appeal counsel. A failure to address
       each prong of the Strickland/Pierce test as to each level of
       counsel will result in dismissal of the claim.

Edmiston, 851 A.2d at 891.

       Although Appellant cites Strickland and Pierce in his brief, see

Appellant’s Brief at 10, he does so in passing and does not address the prongs

of the ineffectiveness test. Because Appellant has completely failed to develop

a layered claim of ineffectiveness, his first issue fails.


____________________________________________


1 Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987).     The Strickland/Pierce test was
summarized by our Supreme Court in Commonwealth v. Simpson, 66 A.3d
253 (Pa. 2013), as follows:

       [W]e apply a three-pronged test for determining whether trial
       counsel was ineffective, derived from our application in Pierce,
       [] 527 A.2d at 975, of the performance and prejudice test
       articulated by the United States Supreme Court in Strickland,
       466 U.S. at 687[.] The Pierce test requires a PCRA petitioner to
       prove: (1) the underlying legal claim was of arguable merit; (2)
       counsel had no reasonable strategic basis for his action or
       inaction; and (3) the petitioner was prejudiced—that is, but for
       counsel’s deficient stewardship, there is a reasonable likelihood
       the outcome of the proceedings would have been different.
       Pierce, [] 527 A.2d at 975. If a petitioner fails to prove any of
       these prongs, his claim fails.



Id. at 260 (citation omitted).



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      In his second issue, Appellant raises four claims of trial counsel

ineffectiveness. We note that the first three of these claims were raised in

Appellant’s response to the PCRA court’s Rule 907 notice. The fourth was first

raised in Appellant’s Rule 1925(b) statement.

      As the PCRA court observed, “If the underlying or ‘nested’ claim of trial

counsel ineffectiveness fails the three-part ineffectiveness test, then the

derivative claim that subsequent counsel was ineffective necessarily fails.”

PCRA Court Opinion, 8/15/18, at 9 (citing Edmiston, 851 A.2d at 891; McGill,

832 A.2d at 1022-23). Although Appellant did not present a proper layered

claim of ineffectiveness, the PCRA court explored each of Appellant’s four

assertions of trial counsel ineffectiveness and determined that each lacked

merit.    Again, to prove counsel ineffective, Appellant must show that his

underlying claim is of arguable merit; that counsel had no reasonable basis

for his action or inaction; and that Appellant petitioner suffered actual

prejudice as a result. If Appellant fails to prove any of these prongs, his claim

fails. Simpson, 66 A.3d at 260.

         Appellant first complains trial counsel was ineffective for failing to

investigate or interview witnesses at the scene. As the PCRA court recognized,

“Appellant neither identified who those witnesses might be nor indicated that

they possessed information that would have exculpated him.” PCRA Court

Opinion, 8/15/18, at 9-10 (citing Commonwealth v. Auker, 681 A.2d 1305,

1319 (Pa. 1996) (trial counsel cannot be found ineffective for failing to


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investigate or call a witness without demonstrating that the testimony of that

witness would be helpful to the defense)). Further, to prove ineffectiveness

for failing to investigate or call a witness, a defendant must show that the

witnesses existed, that they were available, that counsel knew or should have

known of their existence, that the witnesses were prepared to cooperate and

would have testified for the defendant, and that the absence of the testimony

prejudiced the defendant. Id. at 10-11 (citing Commonwealth v. Pursell,

724 A.2d 293, 306 (Pa. 1999)). See also Commonwealth v. Tharp, 101

A.3d 736, 757 (Pa. 2014) (same). Here, Appellant simply refers to unnamed

persons who were patrons of the nightclub on the night of the shooting.

Appellant’s Brief at 12-14. He asserts that counsel’s failure even to “attempt

to find/question the numerous known witnesses prior to trial is both shocking

and inexcusable.” Id. at 14. However, he has not identified these “known

witnesses,” and has not satisfied the remaining elements of the test outlined

in   Pursell   and   reiterated   in   Tharp.    Therefore,     he   cannot   prove

ineffectiveness for failing to investigate or call a witness.

      Appellant next argues ineffectiveness for trial counsel’s failure to object

to the trial court’s closing of the courtroom during his trial. As the PCRA court

explained, “[A]fter a juror was approached and was told that one of the

defendants was innocent, this court directed that the court room be

temporarily [] closed so that the court could investigate the allegation and []

ascertain whether the incident tainted the jury.”       Id. at 11 (capitalization


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omitted). “[T]he court simply conducted a colloquy of each juror on the record

with defense counsel present to determine what, if any comment was made,

to which juror, by who[m], and what effect it may have had on the juror.” Id.

at 12. The courtroom was then reopened to the public and remained open for

the duration of the trial. Id. at 12 n.5. Appellant has not demonstrated that

counsel was ineffective for failing to object to the action taken by the trial

court to “impose reasonable limitations on access to a trial,” as the court did

in this instance. See Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa.

1985).

      Appellant next complains that trial counsel was ineffective for failing to

move for a mistrial or object to testimony relative to an on-scene identification

of Appellant. The PCRA court explained that the claim lacked merit because

Appellant failed to identify the testimony at issue. However, as the PCRA court

also noted, Appellant raised a claim regarding the identification testimony on

direct appeal “concerning what [the testifying officer] observed Pagan do after

Appellant and his co-defendant were apprehended, namely, shake his head

affirmatively.” PCRA Court Opinion, 8/15/18, at 13. On direct appeal, this

Court agreed with the Commonwealth that “any prejudicial effect of [the

officer’s] direct-examination testimony was insignificant, and could not have

impacted the verdict when compared to the overwhelming circumstantial

evidence that proved Appellant and [his co-defendant] committed the

shooting.”    Commonwealth v. Rodriguez-Diaz, No. 1347 EDA 2015,


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unpublished memorandum at 11 (Pa. Super. filed December 28, 2016). Citing

corroborating evidence offered at trial, we concluded that “any error by the

[trial] court in not striking [the officer’s] testimony was harmless.” Id. at 12.

Because the issue has been previously litigated, we shall not consider it

further.

      In his fourth ineffectiveness claim, Appellant suggests trial counsel was

ineffective for not notifying him that his bail had been reduced to nominal bail.

As mentioned above, this claim was not raised in Appellant’s response to the

Rule 907 notice.    Rather, it was first raised in Appellant’s Rule 1925(b)

statement. As such, it is waived. Commonwealth v. Smith, 121 A.3d 1049,

1054-55 (Pa. Super. 2015). Even if not waived, the claim lacks merit. As the

PCRA court notes, Appellant has not demonstrated that he was prejudiced by

the alleged failure. PCRA Court Opinion, 8/15/18, at 13. “Appellant did not

show or prove that the outcome of the trial would not have been different had

he been told that he was entitled to nominal bail.” Id. Further, to the extent

Appellant “is claiming that his right to a speedy trial was violated because he

was entitled to nominal bail, that claim was determined to lack merit[.]” Id.

“[T]he version of Pa.R.Crim.P. 600 in effect at the time the crime herein was

committed provided that the right to nominal bail . . . does not entitle a

defendant to a discharge of his criminal matter after 180 days has passed.”

Id. at 13-14. Appellant’s fourth issue does not afford him any basis for relief.




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      Appellant has failed to present a proper layered claim of ineffectiveness.

Regardless, his underlying claims of trial counsel ineffectiveness either lack

merit, are waived, or were previously litigated.     Because the PCRA court’s

findings are supported by the record and its conclusions are free of legal error,

we shall not disturb its denial of PCRA relief.

      Order affirmed.

      Judge Colins joins.

      President Judge Emeritus Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/19




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