J-S74034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    FELIPE DELVALLE                            :
                                               :
                      Appellant                :   No. 3188 EDA 2016

                Appeal from the PCRA Order September 22, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012099-2008


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                                FILED MARCH 12, 2018

        Appellant, Felipe Delvalle, appeals from the order dismissing his first

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.       His petition related to his convictions for the murder of

Antonio “Tone” Otero and for carrying a firearm without a license.1           We

affirm.

        On October 25, 2007, Officer Bryan Howell went to 2815 North Front

Street in Philadelphia for a report of a shooting. PCRA Court Opinion (PCO),

6/6/17, at 1 (citation to the record omitted). When he arrived, he observed

Otero lying in the doorway of the building with a gunshot wound to the head.

Id. Officer Howell noticed Eveline Rivera at the scene. Id. She reported to


____________________________________________


1   18 Pa.C.S. §§ 2502 and 6106(a)(1), respectively.
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police that prior to the shooting, she had seen Appellant standing in front of

the building’s door, near Otero. She later testified that Appellant “appeared

to be ‘real mad,’ and [Otero] appeared to be scared.” She added:

        Appellant said, “I don’t want anyone here. Everyone needs to
        get the f--- out.” [Otero] replied, “We can talk later.” Ms.
        Rivera obeyed [Otero]’s command to close the door, started
        screaming and called 9-1-1. She [then] heard a loud boom.

Id. at 2-3 (citation to the record omitted) (edits to adult language made by

this Court).

        Rosa Santiago sold drugs for Otero out of 2815 North Front Street.

PCO at 3.      She testified that she saw Appellant “and one other male just

walk[] all the way to the house.” Notes of Testimony (N. T.), 1/26/10, at

209.      She attested that, “[w]hile Appellant’s back was towards [Ms.

Santiago], he put his hand in his pocket, took his hand out. [Ms. Santiago]

then heard a gunshot and [Otero] fell.”     PCO at 3 (citation omitted).   The

Commonwealth explicitly asked Santiago: “Who did you see shoot Tone?”

N. T., 1/26/10, at 211. Ms. Santiago answered: “The defendant.” Id. The

Commonwealth also specifically asked Ms. Santiago, “What was the other

guy [with Appellant] doing, if anything?” Id. She replied: “Just standing

there.” Id.

        Another witness, Ana Carmona, saw Appellant and Otero “appear to

argue.”    PCO at 3.    She testified that Appellant said, “You don’t run s---

here.     Nobody’s supposed to be selling drugs out of here.”    Id. (citation




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omitted). She stated that she then “saw Appellant pull out a gun and shoot

[Otero].” Id.

      A statement that Appellant gave to police at the time of his arrest was

read into the record:

      . . . Tone turned to me and said, Everything all right with you,
      little n----? I don’t have no problem with you. I then said,
      Clockwise, meaning I did not have a problem with him.

      Tone and I then shook hands, and we started to walk away.
      Tone grabbed my little brother Jose around the neck after he
      said, F--- y’all little n-----. Y’all ain’t taking over s---.

      Tone then pulled out a 9-millimeter Beretta out of his waistband
      and hit Jose in the head. He then pointed at his head after he
      hit Jose and said, I’m going to kill this motherf---er. When I saw
      blood run down my brother’s face, I blanked out and fired one
      shot towards Tone’s face. Tone fell to the floor, and we walked
      away. . . .

      Question: Where was the decedent standing in reference to
      your brother when Tone grabbed him?

      ...

      Answer: Tone was in the doorway at the top of the step. My
      brother was on the platform step when he grabbed Jose and
      gripped him up. I was standing on the pavement against the
      side of the house with one foot on the step . . .

N. T., 1/27/10, at 47, 49 (edits to adult language made by this Court).

      The medical examiner testified:

      [T]he presence of the searing, the heat alteration of the skin, the
      presence of soot along the wound edge, and the presence of this
      stippling indicates that the muzzle of the gun was very close to
      and nearly touching the skin at the time that the gun was
      discharged.

      It was not a contact, meaning it was not pressed tightly against
      the skin but was very, very close and possibly even loosely held
      against the skin.

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N. T., 1/26/10, at 272-73.2          The medical examiner did not give a more

specific estimate of the distance between the muzzle of the firearm and

Otero.

       On October 25, 2007, “Appellant was charged and [was later]

convicted of the above-stated offenses[.] . . . He was sentenced to an

aggregate      term     of    life   imprisonment       on   February    5,   2010.”

Commonwealth           v.    Delvalle,     No.   1994    EDA   2010     (unpublished

memorandum at 1). Appellant filed a timely notice of appeal to this Court.

Id. In his direct appeal, he challenged the weight and the sufficiency of the

evidence. Id. at 2. On June 26, 2012, this Court affirmed the judgment of

sentence. Id. at 1.

       Appellant now raises the following issue on appeal:

       Did the [PCRA] court err in denying [A]ppellant an evidentiary
       hearing when the [A]ppellant raised a material issue of fact that
       trial defense counsel was ineffective in failing to request charges
       to the jury as to defense of others and voluntary manslaughter?

Appellant’s Brief at 2.

       Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported


____________________________________________


2 The medical examiner who testified at trial was not the same medical
examiner who performed the autopsy. N. T., 1/26/10, at 269. According to
the testimony, the medical examiner who performed the autopsy was
working in New Jersey at the time of trial, but there was no explanation as
to why the Commonwealth did not ask him to travel to Philadelphia to
testify.



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by the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super. 2003) (en banc); Commonwealth v.

Andrews, 158 A.3d 1260, 1262-63 (Pa. Super. 2017).

      We first note that Appellant has no absolute right to a PCRA hearing.

Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015) (en

banc).

      Here, Appellant contends that his trial counsel was ineffective.

Generally, to obtain relief on a claim of ineffective assistance of counsel, a

petitioner must plead and prove that (1) the underlying claim is of arguable

merit; (2) counsel’s performance lacked a reasonable basis; and (3) the

ineffectiveness of counsel caused him prejudice.        Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987).      If a petitioner fails to prove by a

preponderance of the evidence any of the Pierce prongs, 527 A.2d at 975,

the court need not address the remaining prongs.         Commonwealth v.

Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009).

      We first consider whether the underlying claim is of arguable merit.

Pierce, 527 A.2d at 975. Here, Appellant’s underlying claim is that his trial

counsel should have requested charges to the jury as to voluntary

manslaughter and as to defense of others, because his statement to law

enforcement “showed that [he] was acting in reasonable and subjective

fear for the life of [his] brother when [they were] confronted by the victim

with a firearm.” Appellant’s Brief at 6 (emphasis added).


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      Voluntary manslaughter is controlled by 18 Pa.C.S. § 2503:

      (a) General rule.--A person who kills an individual without
      lawful justification commits voluntary manslaughter if at the time
      of the killing he is acting under a sudden and intense passion
      resulting from serious provocation by:

         (1) the individual killed; or

         (2) another whom the actor endeavors to kill, but he
         negligently or accidentally causes the death of the
         individual killed.

      (b) Unreasonable belief killing justifiable.--A person who
      intentionally or knowingly kills an individual commits voluntary
      manslaughter if at the time of the killing he believes the
      circumstances to be such that, if they existed, would justify the
      killing under Chapter 5 of this title (relating to general principles
      of justification), but his belief is unreasonable.

Nowhere -- in his original PCRA petition, his amended PCRA petition, or his

brief to this Court -- does Appellant contend that he should have received a

voluntary manslaughter charge pursuant to Section 2503(a), involving “a

sudden and intense passion resulting from serious provocation.”           As for

Section 2503(b), that subsection requires that Appellant’s “belief [be]

unreasonable.” However, Appellant clearly alleges in his brief to this Court

that his belief was “reasonable.” Appellant’s Brief at 5-6. Accordingly, he

was not entitled to an instruction on voluntary manslaughter, and,

consequently, his trial counsel could not be deemed ineffective for failing to

pursue this meritless claim. Pierce, 527 A.2d at 975.

      Nevertheless, Appellant may still have been entitled to an instruction

on defense of others. To prevail on a justification defense based upon the




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use of force for the protection of other persons, there must be evidence

that:

           (1) the actor would be justified under section 505 (relating
           to use of force in self-protection) in using such force to
           protect himself against the injury he believes to be
           threatened to the person whom he seeks to protect;

           (2) under the circumstances as the actor believes them to
           be, the person whom he seeks to protect would be justified
           in using such protective force; and

           (3) the actor believes that his intervention is necessary for
           the protection of such other person.

        . . . [T]he actor is not obliged to retreat to any greater extent
        than the person whom he seeks to protect.

18 Pa.C.S. § 506. Section 505 referenced above states: “The use of force

upon or toward another person is justifiable when the actor believes that

such force is immediately necessary for the purpose of protecting himself

against the use of unlawful force by such other person on the present

occasion.” Id. § 505(a).

        While there is no burden on a defendant to prove the self-
        defense claim, before that defense is properly at issue at trial,
        there must be some evidence, from whatever source to justify a
        finding of self-defense. If there is any evidence that will support
        the claim, then the issue is properly before the fact finder.

        If the defendant properly raises self-defense under Section 505
        of the Pennsylvania Crimes Code, the burden is on the
        Commonwealth to prove beyond a reasonable doubt that the
        defendant’s act was not justifiable self-defense.

        The Commonwealth sustains this burden if it establishes at least
        one of the following: 1) the accused did not reasonably believe
        that he was in danger of death or serious bodily injury; or 2) the
        accused provoked or continued the use of force; or 3) the


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       accused had a duty to retreat and the retreat was possible with
       complete safety.

       The Commonwealth must establish only one of these three
       elements beyond a reasonable doubt to insulate its case from a
       self-defense challenge to the evidence. The Commonwealth can
       negate a self-defense claim if it proves the defendant did not
       reasonably believe he was in imminent danger of death or great
       bodily injury and it was necessary to use deadly force to save
       himself from that danger.

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (internal

brackets, citations, and quotation marks omitted) (some formatting); see

also   Commonwealth        v.   Rivera,   108   A.3d   779,   791   (Pa.   2014);

Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012).

       In the current case, there was evidence, in the form of Appellant’s

statement, if it is believed in its entirety, to support a justification defense.

Because this evidence could “justify a finding of self-defense,” the issue

should have been “before the fact finder.” Smith, 97 A.3d at 787. Ergo, we

disagree with the PCRA court’s conclusion that there was no “evidence that

the shooter was free from fault” and that the underlying claim was of no

arguable merit. PCO at 5; see also Pierce, 527 A.2d at 975.

       Nonetheless, this Court “may [still] affirm a PCRA court’s decision on

any grounds if the record supports it.”      Commonwealth v. Rykard, 55

A.3d 1177, 1183 (Pa. Super. 2012) (citations omitted). As noted above, in

order to establish ineffective assistance of counsel, an appellant must also

prove that the counsel’s performance lacked a reasonable basis and that the

ineffectiveness caused Appellant prejudice. Pierce, 527 A.2d at 975. Here,

as the PCRA court did not hold a hearing, we cannot determine whether trial

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counsel had a reasonable basis for his decision not to request a justification

instruction to the jury. We thus turn to whether Appellant was prejudiced by

trial counsel’s actions. Id.

      “To demonstrate prejudice, the petitioner must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome of the

proceeding.”    Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)

(internal citations and quotation marks omitted).         “When a defendant

challenges a conviction, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.”    Commonwealth v. Burno, 94 A.3d

956, 972 (Pa. 2014) (citation omitted).

      Here, there was some evidence presented by Appellant suggesting that

his use of force was necessary to protect another person – i.e., his brother -

- from injury and that Appellant was free from fault in provoking or

continuing the difficulty that resulted in the slaying.    18 Pa.C.S. § 506;

Smith, 97 A.3d at 787. Most obviously, there is Appellant’s own statement.

N. T., 1/27/10, at 47, 49. Officer Howell’s testimony that he found Otero in

the doorway of 2815 North Front Street aligns with Appellant’s description of

where Otero was standing when he was shot. PCO at 1-2. One of the fact

witnesses, Rivera, did not actually see Appellant shoot Otero; she just heard

cursing, which again corresponds to Appellant’s recitation in his statement.

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Id. at 2-3; N. T., 1/27/10, at 47, 49.       Another fact witness, Santiago,

observed a second man with Appellant, thus supporting Appellant’s assertion

that his brother was with him and Otero. Additionally, the medical examiner

stated that the bullet that killed Otero was fired at very close range, but the

firearm was not pressed against Otero’s skin.     N. T., 1/26/10, at 272-73.

The medical examiner did not provide a more detailed estimate of how far

away the firearm had to have been from Otero – e.g., an inch away, a foot

away, etc. Since the medical examiner’s testimony that “the muzzle of the

gun was very close” to Otero, without anything more specific, it is feasible

that a fact-finder could have concluded that the medical examiner’s

testimony was in accordance with Appellant’s statement that he was

standing close to Otero when he fired – specifically, that Otero was standing

“in the doorway at the top of the step,” and Appellant “was standing on the

pavement . . . with one foot on the step[.]” N. T., 1/27/10, at 49.

      However, there was abundant evidence contradicting Appellant’s

narrative.   Rivera described Appellant as “real mad” before the shooting.

PCO at 2. Carmona also saw Appellant and Otero “appear to argue” before

the shooting. Id. at 3. Rivera and Santiago heard Appellant curse at Otero.

Id. at 2-3. Appellant’s angry words prior to the shooting suggest that he

provoked the difficulty. Santiago and Carmona both testified that they saw

Appellant put his hand in his pocket and pull something out of it, again

implying that Appellant continued the difficulty. Id. at 3. Santiago further

testified that the other man with Appellant – possibly his brother – was just

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standing and therefore not being attacked by Otero, which refutes

Appellant’s story.   Most importantly, both Santiago and Carmona actually

saw Appellant shoot Otero. Id.

      Given the strength of this evidence that Appellant was the aggressor

and not acting in defense of others, he cannot show that there is a

reasonable probability that, had trial counsel requested an instruction on

justification, the result of the proceeding would have been different. King,

57 A.3d at 613. Appellant thus cannot demonstrate prejudice and has failed

to establish the third Pierce prong, 527 A.2d at 975, and his entire

ineffectiveness claim therefore fails. Fitzgerald, 979 A.2d at 911.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/18




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