J-S46044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FELIX D. GARCIA                            :
                                               :
                       Appellant               :   No. 3437 EDA 2018


             Appeal from the PCRA Order Entered October 25, 2018
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0004050-2015


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                          FILED SEPTEMBER 30, 2019

        Appellant, Felix D. Garcia, appeals from the order of the Court of

Common Pleas of Chester County (trial court) that denied his first petition filed

under the Post Conviction Relief Act (PCRA).1 After careful review, we affirm.

        This case arises out of a robbery of a Walgreens pharmacy in West

Chester, Pennsylvania on September 9, 2015, in which the robber jumped

over the pharmacy counter, threatened the pharmacist with harm unless she

gave him the pharmacy’s Oxycodone and Oxycontin pills, and stole 2,694

Oxycodone and Oxycontin pills.           Appellant was arrested for this crime on



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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
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October 21, 2015 and was subsequently charged with robbery by threat of

serious bodily injury, robbery in the commission of a first or second degree

felony, robbery by threat of bodily injury, theft by unlawful taking, possession

of a controlled substance, possession of a controlled substance with the intent

to deliver (PWID), and possession of drug paraphernalia.2

       At trial, the facts concerning the robbery were undisputed and the main

issue was whether Appellant was the person who committed the robbery. The

victim and the other Walgreens employee who saw the robber could not

identify the robber and no drugs or other evidence relating to the robbery was

found on Appellant or in his car or apartment when he was arrested six weeks

after the robbery. The Commonwealth’s primary evidence against Appellant

consisted of surveillance videotapes of the robbery and of the robber in a

nearby store just before the robbery, the latter of which showed the robber’s

face, and photographs of Appellant that showed the same facial hair and

resembled the surveillance videotape images of the robber.        A videotaped

statement given by Appellant at the time of his arrest was also introduced in

evidence. Appellant in that statement did not admit to the robbery and denied

that the person in the surveillance images was him.




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218 Pa.C.S. § 3701(a)(1)(ii), (iii), and (iv), 18 Pa.C.S. § 3921(a), and 35 P.S.
§§ 780-113(a)(16), (30), and (32).          The Commonwealth also charged
Appellant with simple assault, 18 Pa.C.S. § 2701(a)(1), but withdrew that
charge before trial.

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      Following a four-day jury trial, Appellant was convicted on December

16, 2016, of robbery by threat of serious bodily injury, robbery by threat of

bodily injury, theft by unlawful taking, possession of a controlled substance,

and possession of drug paraphernalia. The jury acquitted Appellant of the

robbery in the commission of a first or second degree felony and PWID

charges.

      On March 13, 2017, the trial court sentenced Appellant to an aggregate

term of three to seven years’ imprisonment. Appellant filed a timely post-

sentence motion seeking a judgment of acquittal or new trial, which the trial

court denied on June 21, 2017. Appellant filed a timely direct appeal, but

discontinued that appeal on August 28, 2017.

      On April 26, 2018, Appellant timely filed the instant first PCRA petition,

in which he asserted claims of ineffective assistance of counsel based on 1)

trial counsel’s failure to object to references by a police detective to debt as a

motive for stealing drugs and paying off debt as an act that constitutes

distribution of drugs and 2) trial counsel’s withdrawal of a motion for a mistrial.

On September 24, 2018, the trial court held an evidentiary hearing limited to

the withdrawal of the motion for a mistrial, at which Appellant and trial counsel




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testified. The trial court dismissed the PCRA petition on October 25, 2018.3

This timely appeal followed.

       Appellant raises the following two issues for our review:

       1. Did the trial court err in concluding that there were no genuine
       issues of material fact and in denying relief without an evidentiary
       hearing on Appellant’s ineffective assistance of counsel claim, that
       prior counsel’s failure to object to testimony and evidence
       introduced by the Commonwealth when viewed under the totality
       of the circumstances constituted prosecutorial misconduct?

       2. Did the trial court err in dismissing Appellant’s PCRA Petition
       after an evidentiary hearing on the issue of ineffective of [sic]
       assistance of counsel as it relates to Appellant’s claim that
       Appellant withdrew a motion for mistrial unknowingly,
       involuntarily, and unintelligently due to prior counsel’s advice to
       [do] so, when such advice lacked any reasonable basis or
       reasonable strategy?

Appellant’s Brief at 6. We conclude that the trial court correctly held that

neither of the claims for relief in Appellant’s PCRA petition had merit and that

there were no disputed facts that required a hearing on the first claim asserted

in Appellant’s PCRA petition.

       We review the denial of Appellant’s PCRA petition to determine whether

the record supports the trial court’s findings and whether the court’s decision

is free of legal error.     Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.



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3 The trial court ordered Appellant to file a concise statement of errors
complained of on appeal and Appellant complied with this order. The judge
who tried the case and ruled on the PCRA petition retired shortly after
Appellant filed his concise statement, and the trial court’s opinion, filed March
8, 2019, was authored by a different judge assigned to this matter after the
dismissal of the PCRA petition.

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2015); Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018).

We must view the findings of the trial court and the evidence of record in a

light most favorable to the prevailing party, and the court’s credibility

determinations, if supported by the record, are binding on this Court. Mason,

130 A.3d at 617.

      To be entitled to relief under the PCRA on a claim of ineffective

assistance of counsel, the convicted defendant must prove: (1) that the

underlying legal claim is of arguable merit; (2) that counsel’s action or inaction

had no reasonable basis designed to effectuate his client’s interests; and (3)

that he suffered prejudice as a result of counsel’s action or inaction. Mason,

130 A.3d at 618; Smith, 181 A.3d at 1174-75; Commonwealth v. Michaud,

70 A.3d 862, 867 (Pa. Super. 2013). The defendant must satisfy all three

prongs of this test to obtain relief under the PCRA. Mason, 130 A.3d at 618;

Smith, 181 A.3d at 1175; Michaud, 70 A.3d at 867.

      Appellant’s first claim for relief was based on the contention that the

references to debt to which trial counsel failed to object violated the trial

court’s pretrial rulings. That contention is contrary to the record. The trial

court before trial excluded as unfairly prejudicial portions of Appellant’s

statement to police in which he admitted that he had approximately $1,000 in

gambling debts that he had paid off in August 2015 and evidence that

Appellant had maxed out on his credit card and owed $1,500 at the time of

the September 9, 2015 robbery. N.T. Pretrial Conference, 12/12/16, at 8, 12-


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20, 22-36.      The references to Appellant’s debt were redacted from the

videotape of Appellant’s statement and were not played to the jury and no

evidence was introduced at trial or argument made to the jury that Appellant

had any debts.

        Rather, the only reference to debt in the videotaped statement consisted

of the following:

        Det. DiBattista: …. So this is gonna be somebody robbed the
        pharmacy to make thousands and thousands of dollars sellin’
        whatever they took. And you’re gonna be painted as this evil drug
        dealing robber. I don’t see....

        Appellant: The....

        Det. DiBattista: Let me finish. I don’t see that person sitting in
        front of me. I see somebody who’s trying to get his life back
        on track and made one stupid decision, probably to pay off
        a debt. That’s my take on it.

        Appellant: It’s not me and, dude, my life is over. My life is over.

Commonwealth Ex. 48 at 13 (emphasis added). This statement did not assert

that Appellant had a debt, only that paying off “a debt” was a possible motive

for committing a drug robbery.        Moreover, the jury was well aware that

Detective DiBattista’s statements in his questions to Appellant had no basis in

fact.    Detective DiBattista admitted in his testimony that he lied in his

questions to Appellant and made things up that were contrary to the evidence

to see what response he would get. N.T. Trial, 12/15/16, at 514, 532.

        The only other reference to debt did not relate to Appellant at all.

Instead, it was a response by Detective DiBattista in his testimony as an


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expert witness, to a question about what types of acts can constitute delivery

of drugs for the offense of PWID. This testimony consisted of the following:

      A. … Again, if someone has possession of a large amount of drugs
      or any drugs in general and they are telling me they don’t use
      them, what else are you going to do with them? I guess it’s also
      important to clarify, technically speaking, there doesn’t
      necessarily need to be a hand to hand exchange of money for a
      drug deal to have occurred. It’s something we run into a lot in
      West Chester with college kids where you have someone who
      knows where to get pills or cocaine or marijuana. And they think
      they are helping their friends out and just pass a little off.
      Technically, that's a drug deal.

      Q. So the term distribution, can that take on different meanings?

      A. Yes.

      Q. And what are the various meanings to you as a narcotic
      officer for distribution?

      A. Again, just that some forms of distribution are for financial gain.
      Some are in the case I just presented to you where people think
      they are helping friends out, paying off debts, paying bills,
      whatever the case may be.

      Q. And can distribution mean both hand to hand transactions and
      the sale of narcotics in bulk form?

      A. Certainly.

N.T. Trial, 12/15/16, at 525-26 (emphasis added). Because the references to

debt did not violate the trial court’s rulings, the underlying claim lacked merit

and trial counsel’s failure to object therefore did not constitute ineffective

assistance of counsel.

      Appellant also did not show prejudice from these isolated references to

debt. To satisfy the prejudice element of an ineffective assistance of counsel


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claim, the convicted defendant must show that there is a reasonable

probability that, but for counsel’s error, the outcome of the trial would have

been different. Mason, 130 A.3d at 618; Michaud, 70 A.3d at 867.

      Neither of the statements to which counsel failed to object suggested

that Appellant had any debt. Although the jury requested and was permitted

to see Appellant’s videotaped statement during its deliberations, that does not

show any likelihood that Detective DiBattista’s single reference to debt

impacted their verdict. The jury’s requests showed that its focus was on the

visual content in the statement. The jury during its deliberations also

requested all photographs of the robber, all photographs of Appellant and the

surveillance videotapes and was given the photographs and reshown the

surveillance videotapes in addition to the videotaped statement. N.T. Trial,

12/16/16 at 797-99, 801-09. Indeed, the jury indicated, when it was reshown

the videotaped statement and one of the surveillance videotapes, that the

reason for its request was that two of the jurors had been unable to adequately

see the videotapes when they were played at trial because of where they were

seated. Id. at 803-05. Moreover, the jury’s verdict demonstrates that it did

not find that the robbery was committed because of a debt. If Appellant had

intended to use the stolen drugs to pay off a debt, he would have had intent

to deliver the drugs and would have been guilty of PWID. The jury, however,

acquitted Appellant of PWID.




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      Appellant’s contention that the court erred in failing to hold an

evidentiary hearing on this issue likewise fails. A convicted defendant does

not have an absolute right to an evidentiary hearing on a PCRA petition.

Commonwealth        v.   Hill,   202   A.3d   792,   797   (Pa.   Super.   2019);

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). Where

there are no genuine issues of material fact that must be resolved to rule on

a PCRA claim, the court is not required to hold a hearing. Commonwealth

v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019); Jones, 942 A.2d at 906.

Here, there were no genuine issues of fact with respect to Appellant’s claim

that trial counsel was ineffective for failure to object to the two references to

debt, as this claim was based solely on the record of the trial and pretrial

conference. The trial court therefore did not err in limiting its hearing on the

PCRA petition to Appellant’s second claim and ruling on Appellant’s first PCRA

claim without an evidentiary hearing.

      Appellant’s second claim in his PCRA petition asserted that trial counsel’s

advice to withdraw a motion for a mistrial constituted ineffective assistance of

counsel.   Counsel had moved for a mistrial on the second day of trial when

the prosecutor elicited testimony from a police detective that Appellant had

refused to give the police the passcode for his cellphone. N.T. Trial, 12/14/16,

at 412-14. The trial court took the motion for mistrial under advisement and

recessed the trial. Id. at 414-16.




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      During the recess, trial counsel discussed the mistrial motion with

Appellant. N.T. Trial, 12/14/16, at 417-18; N.T. PCRA Hearing at 9-12, 14-

15, 27-30.    Following the recess, trial counsel withdrew the motion for a

mistrial and requested instead that the trial court give a cautionary instruction

and admonish the prosecutor in front of the jury. N.T. Trial, 12/14/16, at

416-19. The trial court colloquied Appellant, and Appellant confirmed that he

wanted to withdraw the motion for a mistrial and that he had sufficiently

discussed the issue with counsel. Id. at 417-18. The trial court, in accordance

with counsel’s request, gave the following cautionary instructions and

admonition to the prosecutor:

      And I want to caution you about one matter. And first of all, the
      question that was, the last two questions that were asked, I’m
      going to direct that they be, the responses be stricken. And you’re
      not to consider the last couple questions by the officer. And I
      caution you that it’s entirely up to a defendant in every criminal
      trial whether or not he wishes to supply the police with information
      or to testify. He has an absolute right founded on the Constitution
      to remain absolutely silent. He does not have, he or she does not
      have to do anything in response to anything. Our Constitution
      guarantees that right. You must not draw any inference of guilt
      from the fact that the defendant did not talk to police, talked to
      the police or not. You cannot draw any inference of guilt from
      those last few questions. Do you understand?
      And I want to reiterate to Ms. Morgan [the prosecutor], as an
      officer of this court, to please be cautious with regard to your
      further questioning of this detective.

Id. at 420.

      At the PCRA hearing, both Appellant and trial counsel testified

concerning their discussions of the mistrial motion before it was withdrawn

and trial counsel testified concerning his reasons for recommending

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withdrawal of the motion. Trial counsel testified that he advised Appellant

during the recess that if the mistrial motion were granted, Appellant would be

retried before a different jury and that the composition of the existing jury

was more favorable than a new jury was likely to be because the existing jury

had three minority jurors and Chester County juries usually have fewer

minority jurors. N.T. PCRA Hearing at 28-29. Trial counsel testified that he

believed that it was better to proceed with the existing jury and a cautionary

instruction because minority jurors would be more receptive to the defense’s

arguments that it is difficult to identify members of other races and ethnic

groups, a new jury was therefore likely to be less favorable, and the case was

going well. Id. at 28-29, 37. Appellant admitted that trial counsel advised

him that the mistrial motion should be withdrawn because the existing jury

was “probably the best, the best jury I could get” because it had three minority

jurors. Id. at 11-12, 17-18.

      The undisputed evidence thus established that trial counsel’s advice to

withdraw the motion for mistrial was a strategic decision. Where the trial

counsel’s conduct is an informed strategic choice that could be reasonably

viewed at the time as advancing the defendant’s interests, the requirement

that counsel had no reasonable basis designed to effectuate his client’s

interests is absent and ineffective assistance of counsel cannot be shown, even

if in hindsight trial counsel’s strategy was not successful. Commonwealth v.

Williams, 141 A.3d 440, 463 (Pa. 2016); Michaud, 70 A.3d at 868.


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      Trial counsel’s conclusion and advice that Appellant would be retried

before a different jury if the motion was granted was plainly reasonable. The

grant of a defendant’s motion for mistrial does not bar a retrial unless the

prosecutor’s improper conduct constituted an intentional attempt to provoke

a mistrial or there was prosecutorial misconduct so pervasive or egregious as

to show an intent to prevent the defendant from receiving a fair trial.

Commonwealth v. Washington, 198 A.3d 381, 387-88 (Pa. Super. 2018).

No such intentional, egregious, or pervasive misconduct was shown here.

Rather, the basis of the mistrial motion consisted of brief questioning on

redirect examination that the prosecutor contended was permissible based on

Appellant’s cross-examination of the witness. N.T. Trial, 12/14/16, at 412-

16. Such isolated improper reference to the defendant’s silence does not rise

to the level of intentional prosecutorial misconduct that precludes a retrial.

Commonwealth v. Lesko, 719 A.2d 217, 227 (Pa. 1998); Commonwealth

v. Redel, 484 A.2d 171, 176 (Pa. Super. 1984).

      Because Appellant would be subject to trial before a new jury if a mistrial

was granted, trial counsel’s conclusion that it was better to proceed with a

jury that was more likely to be favorable to Appellant’s arguments and a

cautionary instruction had a reasonable basis designed to advance Appellant’s

interests.   The advice to withdraw the mistrial motion therefore cannot

constitute ineffective assistance of counsel. Commonwealth v. Ogrod, 839

A.2d 294, 324-25 (Pa. 2003); Michaud, 70 A.3d at 868.


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      Appellant testified that trial counsel told him that he would have to pay

additional attorney fees for the retrial, N.T. PCRA Hearing at 10-12, and

argues that his consent to withdraw the motion for a mistrial was therefore

not knowing, voluntary, and intelligent. Trial counsel, however, testified that

no such discussion of attorney fees occurred and that Appellant would not

have been charged additional attorney fees for a retrial if a mistrial had been

granted. Id. at 30-31, 35-37. In addition, the Commonwealth introduced

evidence that Appellant had previously been advised that an attorney would

be appointed to represent him without charge if he could not afford an

attorney. Id. at 24-25.

      The trial court found trial counsel’s testimony credible and rejected as

incredible Appellant’s testimony that he was told that he would have to pay

additional attorney fees for a retrial. Trial Court Order, 10/25/18; Trial Court

Opinion at 30-31.    The court further found that Appellant was aware that

counsel would be provided at a retrial at no cost if he could not afford to hire

an attorney. Trial Court Order, 10/25/18; Trial Court Opinion at 31-32. This

Court is bound by those credibility determinations. Smith, 181 A.3d at 1181;

Commonwealth v. Stewart, 84 A.3d 701, 708 (Pa. Super. 2013). Appellant

therefore did not show that his agreement to withdraw the motion for a

mistrial was unknowing, involuntary or unintelligent.

      For the foregoing reasons, we conclude that Appellant did not show any

ineffective assistance of counsel by his trial counsel or error by the trial court


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in limiting the hearing or dismissing the PCRA petition. Accordingly, we affirm

the trial court’s order dismissing Appellant’s PCRA petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/19




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