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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
MIGUEL MONTANEZ,                            :
                                            :
                          Appellant         :      No. 2778 EDA 2013


                  Appeal from the PCRA Order August 29, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-1001561-2005
                                         CP-51-CR-1001571-2005

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED MARCH 10, 2015

        Appellant, Miguel Montanez, appeals from the order entered in the

Philadelphia County Court of Common Pleas dismissing his first, timely Post

Conviction Relief Act1 (“PCRA”) petition without a hearing. The premises of

Appellant’s claims are that (1) trial counsel was ineffective for failing to file a

post-sentence motion challenging the weight of the evidence; and (2) direct




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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appeal counsel was ineffective for failing to challenge the admission of prior

bad acts evidence.2 We affirm.

      On direct appeal, a panel of this Court summarized the facts of the two

underlying incidents as follows.

             On April 25, 2005, while on her way to [school], ten
         (10) year old Complainant [C.D.] observed Appellant
         sitting alone in the driver’s seat of a Jeep. Appellant asked
         [C.D.] her name, where she was going, and if she needed
         money. [C.D.] testified that while Appellant was looking at
         her he was touching his penis which was exposed. [C.D.]
         did not say anything to Appellant whereupon Appellant
         reached out of the window of the Jeep and tried to grab
         [C.D.] [C.D.] did not know Appellant . . . .

             [Eye-witness] Monique Wilson testified that she was
         walking with a friend after taking her daughter to school
         and that she observed [C.D.] standing approximately five
         feet from Appellant and that she became suspicious.
         Wilson told her friend that something did not seem right
         about what she was observing, and she instructed her
         friend to focus on remembering the license tag number of
         Appellant’s Jeep. Wilson stated that she then observed
         Appellant lean out of the window of his Jeep and that
         Appellant attempted to lure the minor [C.D.] into his
         vehicle. Wilson yelled out to [C.D.] and as the minor
         stopped and looked back at Wilson, Appellant looked into
         his rear view mirror and made eye contact with Wilson who
         had begun running towards [C.D.] Appellant sped away,
         disobeying the stop sign at the next corner, nearly colliding
         with the crossing guard. Wilson reported her observations
         to the crossing guard who permitted Wilson to use her cell
         phone to report the incident to the police. Wilson provided
         police dispatch with a description of the perpetrator, his


2
 At trial, Appellant was represented by Wallace Walker, Esq., and on direct
appeal by David Barrish, Esq.        David Rudenstein, Esq., represented
Appellant in the instant PCRA proceedings and in this appeal.




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         vehicle and the tag number of his Jeep, and she then
         escorted [C.D.] to school.

            Police Officer Joseph Slobodrian was on duty when he
         received the radio call describing the white Jeep Cherokee
         with the license tag number and a description of the
         assailant. He stopped Appellant a short distance from
         [C.D.’s] elementary school. . . . [C.D.] and Wilson were
         then brought to the location where Appellant was detained
         and he was positively identified as [C.D.’s] assailant.

Commonwealth v. Montanez, 3024 EDA 2006 (unpublished memorandum

at 1-2) (Pa. Super. Aug. 22, 2008).

      The second incident occurred one month later, on May 25, 2005. At

approximately 2:45 p.m, a thirteen-year old boy, M.S., was walking home

from school. M.S. testified that he

         observed Appellant sitting in the driver’s seat of a white
         van[.] Appellant told [M.S.] to get into the van, however,
         [M.S.] had never seen Appellant before and became
         frightened. [M.S.] ran into his house which was across the
         street from Appellant’s parked van and he reported the
         incident to his parents. [M.S.] did not know Appellant[.]
         When he arrived at school the next day [M.S.] reported
         the incident to school personnel and they contacted police.
         [M.S.] was taken to the Special Victims Unit of the
         Philadelphia Police Department were he was shown a
         photographic array and positively identified Appellant as
         his assailant.

Id. at 2-3.

      The case proceeded to a bench trial on May 10, 2006.3        The court

found Appellant guilty of all counts charged: two counts each of attempted

3
 The Honorable Gwendolyn N. Bright presided over both trial and the instant
PCRA proceedings.




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luring a child into a motor vehicle and attempted interference with custody

of a child, and one count each of unlawful contact with a minor, corruption of

minors, indecent exposure, and open lewdness.4 On September 27, 2006,

the   court   imposed   an   aggregate   term   of   fifteen   to   thirty   years’

imprisonment.

      This Court affirmed the judgment of sentence on August 22, 2008.

The Pennsylvania Supreme Court denied allowance of appeal on February

26, 2009.     Commonwealth v. Montanez, 510 EAL 2008 (Pa. Feb. 26,

2009).

      On March 10, 2009, Appellant filed the instant, timely5 pro se PCRA

petition; he filed a second pro se petition on April 27th.      The PCRA court

appointed Attorney Rudenstein to represent him. Counsel filed an amended




4
   On direct appeal before this Court, the sole issue was the sufficiency of
evidence for interference with custody of a child and attempted luring a child
into a motor vehicle. The undersigned was a member of that panel, and
filed a concurring and dissenting statement agreeing that the evidence was
sufficient to establish both crimes. However, the undersigned opined that
because no conviction for criminal attempt was docketed, Appellant did not
receive a judgment of sentence for that crime. This distinction is not
implicated in the issues raised in the present appeal.
5
  Appellant’s judgment of sentence became final on May 27, 2009, when the
ninety-day period for seeking writ of certiorari with the United States
Supreme Court expired. See Sup. Ct. R. 13; 42 Pa.C.S. 9545(b)(3). He
then generally had one year, or until May 27, 2010, to file a PCRA petition.
See 42 Pa.C.S. § 9545(b)(1). Appellant filed a pro se PCRA petition on
March 10, 2009.




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PCRA petition on January 11, 2010, and supporting brief.6             On June 27,

2013, the Commonwealth filed a motion to dismiss.7 On July 15, 2013, the

PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the

petition without a hearing. Appellant did not file a response, and the court

dismissed the petition on August 29th.8

        Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) statement.       The statement of the question involved pursuant to

Pa.R.A.P. 2111(a)(1) is the general question whether the PCRA court erred

in denying his petition without a hearing.       In the argument section of the

brief Appellant raises two ineffective of counsel claims, which we will

conisder seriatim.

        Appellant’s first claim is that trial counsel was ineffective for failing to

file a post-sentence motion challenging the weight of the evidence for the

charges related to the older victim M.S.        Although his brief properly sets

forth relevant law, the sole discussion pertaining to this case is in sum:

              [Appellant] would have been able to prove his weight of
           the evidence claim.


6
 The docket includes an entry dated more than a year later, on February 11,
2011, of a second counseled amended PCRA petition. However, no such
petition is included in the certified record.
7
  The trial docket shows that between the June 18, 2009 appointment of
Attorney Rudenstein to the July 15, 2013 notice of intent to dismiss, the
court continued this matter thirty times.
8
    The record does not include the underlying August 29, 2013 order.



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             Trial counsel was ineffective when he failed to preserve
          a weight of the evidence claim with regard to the male
          victim. The greater weight of the evidence would not
          establish that the male victim identified [Appellant] as the
          assailant. [Appellant] is entitled to a new trial, as the
          verdict in this matter does shock one’s sense of justice,
          making the award of a new trial imperative[.]

Appellant’s Brief at 10 (citations to decisional authority omitted). We find no

relief is due.

      Appellant’s discussion on appeal is vague; he provides no explanation

for what evidence was “greater weight” with respect to M.S.’s identification

of him.   See id.   However, a review of the brief filed below in support of

counsel’s amended PCRA petition reveals the following argument.           M.S.

could not positively identify Appellant at trial, and instead testified that he

had been warned at school about Appellant.       Appellant cited the following

trial testimony on cross-examination:

          [Defense Counsel] Q: Now, is it─again, I’m asking about
          your state of mind[. M.], when you look at this page, and
          you saw [Appellant’s] picture on it, could it have been that
          you recognized this picture based on what you had seen in
          school.

          A: I don’t think so.

          Q: Could it have been.

          A: It could have.

          Q: Because again your time to look at the person leaning
          across was very, very brief[, wasn’t it?]

          A: Yes.




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Appellant’s Letter Brief, 1/11/10, at 8 (citing N.T., 5/10/06, at 121).

      This Court has stated:

         Our standard and scope of review for the denial of a PCRA
         petition is well-settled.

            [A]n appellate court reviews the PCRA court’s
            findings of fact to determine whether they are
            supported by the record, and reviews its conclusions
            of law to determine whether they are free from legal
            error. The scope of review is limited to the findings
            of the PCRA court and the evidence of record, viewed
            in the light most favorable to the prevailing party at
            the trial level.

                                  *    *    *

         . . . Counsel is presumed effective, and to rebut that
         presumption, the PCRA petitioner must demonstrate that
         counsel’s performance was deficient and that such
         deficiency prejudiced him.        In Pennsylvania, we have
         refined the [Strickland v. Washington, 466 U.S. 668
         (1984),] performance and prejudice test into a three-part
         inquiry. Thus, to prove counsel ineffective, the petitioner
         must show that: (1) his underlying claim is of arguable
         merit; (2) counsel had no reasonable basis for his action or
         inaction; and (3) the petitioner suffered actual prejudice as
         a result. If a petitioner fails to prove any of these prongs,
         his claim fails. . . .      To demonstrate prejudice, the
         petitioner must show that there is a reasonable probability
         that, but for counsel’s unprofessional errors, the result of
         the proceedings would have been different. A reasonable
         probability is a probability that is sufficient to undermine
         confidence in the outcome of the proceeding.

                                  *    *    *

            [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.”


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Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super.)

(citations omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

             In reviewing the propriety of an order denying PCRA
         relief, this Court is limited to examining whether the
         evidence of record supports the determination of the PCRA
         court, and whether the ruling is free of legal error. Great
         deference is given to the findings of the PCRA court, which
         may be disturbed only when they have no support in the
         certified record.

Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008)

(citations omitted).

      Instantly, the PCRA court opined:

             Appellant . . . asserts that counsel was ineffective for
         failing to file a post sentence motion challenging the
         verdict as against the weight of the evidence.          This
         complaint is without merit.

                                 *    *    *

             Here, on direct appeal, the Superior Court of
         Pennsylvania held that the evidence is sufficient to sustain
         the verdict and affirmed the Judgment of sentence. . . .
         The verdict in the instant case is not at all contrary to the
         evidence and shocks no one’s sense of justice. Counsel
         will not be deemed ineffective for failing to pursue a
         meritless claim.      Moreover, Appellant has failed to
         demonstrate that, but for the failure to file [ ] post
         sentence motions raising the issue that the verdict is
         against the weight of the evidence, the outcome of the
         proceedings would have been different.

PCRA Ct. Op., 12/23/13, at 8, 9. We agree no relief is due.

      Our review of the record reveals the following testimony on direct

examination of M.S. by the Commonwealth:



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         Q: Can you tell the judge what happened to you on your
         way home from school on that afternoon [of May 25th]?

         A: I was walking down Albert Street, and at the corner of
         the street a guy leaned over from the chair, the seat of the
         car, and told me to just get in.

         Q: Do you see that person in the courtroom today?

         A: Yes.

         The Court: He told you to do what?

         The Witness: He told me to get in. He said just get in.

         [The Commonwealth]: Can you point to the person[?]

         A: (Witness complies.)

                                  *    *    *

         [The Commonwealth]: . . . I’m showing you . . . the photo
         array that you were shown when you were at Special
         Victims?

         A: Yes.

         Q: . . . And tell us why your signature appears right here
         on the paper?

         A: Because that’s the man I pointed to.

         Q: . . . And is that the same person you see in court
         today?

         A: Yes.

N.T., 5/10/06, at 108, 113-14.

      We agree with the PCRA court that Appellant has not demonstrated

that but for the failure to file post sentence motion challenging the weight of

the evidence the outcome of the proceedings would have been different.


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See Charleston, 94 A.3d at 1018-19.

      Next, Appellant contends trial counsel was ineffective for failing to

appeal the Pa.R.Crim.P. 404(b) ruling, wherein the court permitted the

Commonwealth to introduce the following evidence: Appellant was convicted

of two counts of luring a child into a motor vehicle and harassment in 1996.

N.T. at 128-29. He pled guilty to three counts of luring a child into a motor

vehicle, one count of indecent exposure, two counts of open lewdness, and

two counts of harassment.       Appellant also pled guilty to one count of

unlawful restraint, one count of corrupting the morals of a minor, one count

of simple assault, one count of indecent exposure, one count of open

lewdness and one count of harassment.        Id. at 129.

      Appellant “conced[es] that the evidence could arguably be used to

establish identity or plan.” Appellant’s Brief at 11. Appellant further avers

that he “is not unmindful of the fact that the evidence in question might very

well have been admissible.” Id. at 12. He “is troubled by the fact that there

was no objection to the evidence; there was a stipulation to the damaging

evidence and there is nothing in the record by which the evidence could be

evaluated.” Id. Appellant claims “without testing the evidence, there is no

way to determine whether the evidence would have been admitted or not.”

Id.

      The PCRA court opined: “Appellant fails to demonstrate prejudice . . .

. This failure to meet the prejudice prong of the ineffectiveness test requires



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rejection of the claim.” PCRA Ct. Op. at 8.

      We discern no error by the PCRA court. Appellant has not satisfied the

prejudice prong of the ineffective assistance of counsel test.           See

Charleston, 94 A.3d at 1019.      He has not shown that but for counsel’s

action the result of the proceedings would have been different.    Id.   The

record supports the determination of the PCRA court.    See Perry, supra.

Therefore, his ineffective assistance of counsel claim is without merit. See

Charleston, 94 A.3d at 1019.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2015




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