J-S04003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUIS HERNANDEZ-NUNEZ,

                            Appellant                 No. 1365 EDA 2016


                   Appeal from the PCRA Order April 8, 2016
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001824-2011


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 13, 2017

       Appellant, Luis Hernandez-Nunez, appeals, pro se, from the order

denying his petition for collateral relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court summarized the facts of this case as follows:

             On January 5th, 2011, at approximately 1:24 a.m.,
       Allentown Police responded to 724 Gordon Street, Allentown,
       Lehigh County, Pennsylvania for a report of an armed robbery in
       which the victims were reportedly struck with a handgun. The
       victims in this matter, brothers Justo and Mario Rodriguez, were
       later interviewed by Detective Stephen Milkovits at police
       headquarters. Justo Rodriguez related that he and two of his
       friends went to the B&B Piano Bar located at 248 North Ninth
       Street, Allentown, at approximately 8 p.m. on January 4, 2011.
       He was later joined by his brother, Mario, and his nephew at
       approximately 10:20 p.m. While at the Piano Bar, the men
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     consumed some beer and were approached by an unknown
     Hispanic female, later identified as [Appellant’s] co-defendant
     Chrissy Martinez. The men and Ms. Martinez spoke at the bar
     and drank beers together. Justo Rodriguez stated he provided
     Ms. Martinez with his cellular telephone number and that of his
     nephew prior to her leaving the bar. After Ms. Martinez left the
     bar, Justo Rodriguez received a telephone call from Ms. Martinez,
     inviting him and Mario Rodriguez to 724 Gordon Street.

           The victims arrived at 724 Gordon Street and Ms. Martinez
     met them outside and invited them inside the residence. Upon
     entering, the victims stated they were confronted by a group of
     males, later identified as Juan Ramos, Jose Diaz and Alexander
     Castro.3 At least one of the males was armed with a handgun,
     though the victims could not identify which man had the gun.
     One of the co-conspirators pointed the handgun at both of the
     victims. Justo Rodriguez was struck in the face and Mario
     Rodriguez was struck in the head. During the course of the
     robbery, the codefendants took two cell phones and
     approximately $600.00 in U.S. currency from the victims.
     Additionally, the victims’ wallets were stolen, which contained
     bank and identification cards.
           3
             Juan Ramos and Jose Diaz were later charged as
           co-conspirators as well.

           As a result of being struck in the head with the handgun,
     Mario Rodriguez sustained a laceration, requiring medical
     attention and several staples to his scalp to close the laceration.

            Further investigation by Allentown police revealed that
     prior to Ms. Martinez going to the Piano Bar, and as testified to
     at trial by Ms. Martinez, [Appellant] had directed Ms. Martinez to
     lure the victims from the bar to the vacant residence located at
     724 Gordon Street. Additionally, the gun that was used during
     the robbery was provided to the co-defendants by [Appellant].
     [Appellant] waited outside of 724 Gordon Street while the
     robbery occurred and then drove Ms. Martinez from the scene
     after the robbery.

          Detective Milkovits, during the course of his investigation,
     spoke with the owner of the property, Yolanda Mohr, who stated
     that the residence had been vacant for approximately two
     months while maintenance work was done and that no one had

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      her permission to be inside of the residence. Detective Milkovits
      observed damage to a first floor window of the residence as well
      as what appeared to be shoe prints on the toilet seat below the
      window. Ms. Mohr stated the damage was new and that she did
      not know the exact value of the damage at the time. Detective
      Milkovits did not observe any other signs of forced entry to the
      residence.

PCRA Court Opinion, 4/8/16, at 3-5.

      The PCRA court summarized the procedural history of this case as

follows:

            On June 13, 2011, [Appellant] was arraigned on charges of
      Robbery (18 Pa.Con.Stat.Ann. §3701(a)(1)(ii and iv)),
      Conspiracy to Commit Robbery (18 Pa.Con.Stat.Ann. §903),
      Burglary (18 Pa.Con.Stat.Ann. §3502), Criminal Trespass (18
      Pa.Con.Stat.Ann. §3503(a)(1)(ii)), Aggravated Assault (18
      Pa.Con.Stat.Ann. §2702(a)(4)), Theft by Unlawful Taking (18
      Pa.Con.Stat.Ann. §3921), Simple Assault (18 Pa.Con.Stat.Ann.
      §2701(a)(1)), and Criminal Mischief (18 Pa.Con.Stat.Ann. §
      3304(a)(5)).

            On March 13, 2012, jury selection began in this matter.1 A
      jury trial was held from March 14, 2012 until the jury came to
      verdict on March 19, 2012. [Appellant] was found guilty of
      Robbery, Conspiracy to Commit Robbery, Burglary, Criminal
      Trespass, Aggravated Assault, Theft by Unlawful Taking, and
      Criminal Mischief. On the same day, the Court determined that
      [Appellant] was not guilty of the summary offense of Criminal
      Mischief.
           1
             The Appellant was tried with his co-defendant
           Alexander Castro.

            On May 8, 2012, [Appellant] was sentenced to pay the
      costs of prosecution and restitution and to serve an aggregate
      sentence of not less than 7 years nor more than 16 years in a
      State Correctional Institution.

             On May 29, 2012, [Appellant] filed a Notice of Appeal and
      on June 5, 2013, the Superior Court affirmed the judgement
      [sic] of sentence. On November 7, 2013, [Appellant’s] Petition

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     for Allowance of Appeal to the Supreme Court of Pennsylvania
     was denied.

            On August 21, 2014, [Appellant] filed a pro se PCRA
     Petition. On August 26, 2014, the [c]ourt appointed Attorney
     Matthew Rapa, Esquire to represent [Appellant]. On January 2,
     2015, Attorney Rapa filed a Motion to Withdraw as Counsel.
     After a hearing held on February 20, 2015, the [c]ourt permitted
     Attorney Rapa to withdraw from this matter.

            On March 31, 2015, the [c]ourt received a pro se
     Supplementary PCRA Petition.         In the Supplementary PCRA
     Petition, [Appellant] argued that in addition to the previous
     allegations of ineffective assistance of trial counsel (Robert Long,
     Esquire), Attorney Rapa was ineffective for failing to pursue the
     claims alleged in [Appellant’s] pro se PCRA Petition filed on
     August 21, 2014.

           On May 1, 2015, December 23, 2015, and February 5,
     2016, hearings were held regarding the allegations of
     ineffectiveness of trial counsel.   At the conclusion of the
     February 5, 2016 Hearing, [Appellant] submitted an Argument in
     Support of His PCRA Petition and the [c]ourt took the matter
     under advisement. On March 24, 2016, the Commonwealth
     submitted its Argument in Opposition of PCRA Petition.

PCRA Court Opinion, 4/8/16, at 2-3.

     The PCRA court denied Appellant’s petition on April 8, 2016. Appellant

filed a timely notice of appeal on April 28, 2016. Both the PCRA court and

Appellant complied with Pa.R.A.P. 1925.

     Appellant presents the following issues for our review:

     I.    Whether PCRA counsel was ineffective for failing to raise
     the ineffectiveness of trial counsel, where trial counsel failed to
     impeach, through cross-examination, the Commonwealth’s chief
     witness’ -- Chrissy Martinez’s -- testimony, with evidence that on
     the night of the robbery she was intoxicated with ecstasy,
     alcohol, and marijuana.




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      II.    Whether PCRA counsel was ineffective for failing to raise
      the ineffectiveness of trial counsel, where trial counsel decided to
      call the Appellant’s codefendant – Juan “Ramos” -- as a defense
      witness, without considering that: (1) Ramos had previously
      implicated the Appellant (who was Chrissy Martinez’s boyfriend)
      in the crime; (2) the testimony Ramos planned to and did give
      completely contradicted his prior verbal and written statements
      to police; and (3) counsel failed to share or discuss with
      Appellant, Ramos’ prior and written statements to the police, as
      well as, the testimony that Ramos planned to give at trial.

      III. Whether the PCRA court committed an error of law in
      denying relief where there were multiple instances of ineffective
      assistance of counsel, “in combination,” which caused the
      Appellant cumulative prejudice.

Appellant’s Brief at 3 (full capitalization omitted).

      All of Appellant’s issues raise claims of ineffective assistance of

counsel.

         To prevail in a claim of ineffective assistance of counsel, a
      petitioner must overcome the presumption that counsel is
      effective by establishing all of the following three elements, as
      set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975–76 (1987):        (1) the underlying legal claim has
      arguable merit; (2) counsel had no reasonable basis for his or
      her action or inaction; and (3) the petitioner suffered prejudice
      because of counsel’s ineffectiveness.

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). With regard to

the second, reasonable basis prong, “we do not question whether there were

other more logical courses of action which counsel could have pursued;

rather, we must examine whether counsel’s decisions had any reasonable

basis.”    Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).

We will conclude that counsel’s chosen strategy lacked a reasonable basis

only if Appellant proves that “an alternative not chosen offered a potential

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for success substantially greater than the course            actually pursued.”

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006). “In order

to meet the prejudice prong of the ineffectiveness standard, a defendant

must show that there is a ‘reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

      A claim of ineffective assistance of counsel will fail if the petitioner

does not meet any of the three prongs. Commonwealth v. Williams, 863

A.2d 505, 513 (Pa. 2004). “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      In Appellant’s first two issues, he argues that appellate counsel was

ineffective for failing to raise the ineffectiveness of trial counsel. Appellant’s

Brief at 3.   In a layered ineffectiveness claim, appellate counsel is not

ineffective for failing to raise an ineffective assistance of counsel issue where

the underlying claim lacks merit. As this Court has explained:

      To prevail on a claim of appellate counsel ineffectiveness for
      failure to raise an allegation of trial counsel ineffectiveness, a
      PCRA petitioner must present a ‘layered’ claim, i.e., he or she
      must present argument as to each of the three prongs of the
      Pierce test for each layer of allegedly ineffective representation.
      To establish the arguable merit prong of a claim of appellate
      counsel ineffectiveness for failure to raise a claim of trial counsel
      ineffectiveness, the petitioner must prove that trial counsel was
      ineffective under the three-prong Pierce standard.             If the
      petitioner cannot prove the underlying claim of trial counsel
      ineffectiveness, then petitioner’s derivative claim of appellate
      counsel ineffectiveness of necessity must fail, and it is not
      necessary for the court to address the other two prongs of the
      Pierce test as applied to appellate counsel.

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Paddy, 15 A.3d at 443 (internal citations omitted).

      In his first issue, Appellant maintains that trial counsel, Attorney

Robert      Long,   was   ineffective   for   failing   to   cross-examine    the

Commonwealth’s chief witness, Chrissy Martinez (“Martinez”), regarding her

level of intoxication on the night of the robbery.       Appellant’s Brief at 14.

Appellant contends that due to her level of intoxication, Martinez’s ability to

correctly perceive the facts which she purported to have observed was

highly questionable. Id. Appellant asserts that although Martinez admitted

at trial that she had smoked marijuana prior to the robbery, trial counsel

failed to present on cross-examination the fact that Martinez was also drunk

and had ingested Ecstasy the night of the robbery, thereby impeding her

ability to accurately perceive the facts she purported to observe. Id.

      In addressing this issue, the PCRA court provided the following

analysis:

      Ms. Martinez’s intoxication at the time of the criminal incident
      was brought out by the Commonwealth during her direct
      testimony. On cross-examination, Attorney Long focused on Ms.
      Martinez’s failure to initially identify [Appellant] as a participant
      in the criminal operation and the fact that she only identified him
      after alleged police pressure during a third interview with police.
      Attorney Long also argued in closing arguments that Ms.
      Martinez was fabricating [Appellant’s] involvement in order to
      get back at him for failing to visit her while she was incarcerated
      and in order to receive a more lenient sentence for her
      participation in the robberies. Again, we find that Attorney
      Long’s trial strategy with regard to Ms. Martinez and her
      testimony was reasonable. Ms. Martinez’s intoxication during
      the course of the evening of the robberies was brought out on
      direct examination by the Commonwealth. Therefore, it was

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      already before the jury and further cross-examination would
      have been cumulative. Further, Attorney Long was able to
      identify a motive for Ms. Martinez to lie to the police and on the
      witness stand. We cannot find Attorney Long ineffective in
      pursuing this trial strategy.

PCRA Court Opinion, 4/8/16, at 9-10 (emphasis in original).

      The evidence presented at trial supports the PCRA court’s conclusion.

On direct examination, Martinez admitted to smoking marijuana on the night

of the robberies prior to her encounter with the victims at the bar.         N.T.,

3/14/12, at 160.     Additionally, she testified to drinking alcohol at the bar.

Id. at 164.     Thus, the jury could reasonably conclude that Martinez was

under the influence on the night of the robbery.        Moreover, trial counsel

attempted to establish a motive for Martinez’s testimony implicating

Appellant.    Specifically, that by testifying against Appellant, Martinez was

exacting her revenge upon him for his failure to contact her when she was

incarcerated. Id. at 200-201. This evidence of a motive was more likely to

discredit    Martinez’s   testimony   than   would   have   additional   testimony

regarding her intoxication. Thus, we agree with the PCRA court’s conclusion

that it was a reasonable strategy for trial counsel not to introduce

cumulative evidence of Martinez’s level of intoxication, but rather, to

attempt to discredit her by establishing a motive for her incriminating

testimony.

      Additionally, Appellant suffered no prejudice by trial counsel’s failure to

further question Martinez regarding her level of intoxication on the evening


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of the robbery. Even if counsel had cross-examined Martinez regarding her

level of intoxication, such questioning likely would not change the outcome

of the trial. The testimony from the victims corroborated the recitation of

events provided by Martinez. N.T., 3/14/12, at 55-65, 90-99. Additionally,

the victims’ testimony established that Martinez was coherent enough to

engage the two at the bar and get their phone numbers. N.T., 3/14/12, at

56-60, 80-81, 92-96, 120-121.         She was able to effectively communicate

with them on the telephone and provide the necessary information to get

them to 724 Gordon Street. Id. at 60, 94-96. There was ample evidence

for the jury to determine that Martinez was sufficiently coherent on the night

in question and accurately perceived the facts to which she testified. Thus,

we cannot conclude that had trial counsel cross-examined Martinez

regarding her level of intoxication, that there was a reasonable probability

that the outcome of the trial would have differed. Reed, 42 A.3d at 319.

Accordingly,    Appellant   did    not   suffer   prejudice    from   this   alleged

ineffectiveness and his claim must fail. Paddy, 15 A.3d at 442.

      Because Appellant has failed to establish an underlying claim of trial

counsel’s    ineffectiveness,     Appellant’s     claim   of   appellate     counsel

ineffectiveness also lacks merit.        Paddy, 15 A.3d at 443.        Accordingly,

Appellant is entitled to no relief on his first issue.

      In his second issue, Appellant asserts that PCRA counsel was

ineffective for failing to raise trial counsel’s ineffectiveness for calling Juan


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Ramos (“Ramos”) as a defense witness. Appellant’s Brief at 22. Appellant

maintains that trial counsel could not have had a reasonable strategic basis

for calling Ramos to the stand. Id. Appellant argues that trial counsel erred

in calling Ramos as a defense witness for the following reasons:

      (1) Ramos had previously implicated the Appellant (who was
      Chrissy Martinez’s boyfriend) in the crime; (2) the testimony
      Ramos planned to and did give completely contradicted his prior
      verbal and written statements to police; and (3) counsel failed to
      share or discuss with Appellant, Ramos’ prior verbal and written
      statements to the police, as well as, the testimony that Ramos
      planned to give at trial.

Id. (full capitalization omitted).

      The PCRA court provided the following analysis of Appellant’s claim:

             [Appellant] first alleges that trial counsel was ineffective
      when he allowed Juan Ramos, a co-defendant, to testify on
      behalf of the defense. Attorney Long, during the PCRA Hearings,
      testified that during the course of trial (March 14, 2012), but
      prior to Mr. Ramos being called to the stand, he was made
      aware of a letter sent by Mr. Ramos to the Court that claimed
      that [Appellant] had nothing to do with the criminal incident.
      Attorney Long contacted Mr. Ramos’ attorney and was given
      permission to interview Mr. Ramos at Lehigh County Jail. During
      an interview on March 14, 2012, Mr. Ramos told Attorney Long
      that [Appellant] had nothing to do with the robberies and that he
      was willing to testify to that. Further, Mr. Ramos reviewed a
      prior statement that he gave the police regarding the incident.
      While no mention of [Appellant] by name was made in the
      statement, Mr. Ramos did allude to “the boyfriend” of Ms.
      Martinez. When specifically asked by Attorney Long, Mr. Ramos
      denied that “the boyfriend” was [Appellant]. Attorney Long
      again met with Mr. Ramos the following day.            Mr. Ramos
      indicated he was still willing to testify that [Appellant] was not
      involved in the crime. Attorney Long testified that based on his
      conversations with Mr. Ramos at the jail prior to him testifying,
      he believed that Mr. Ramos could exculpate [Appellant].




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            Attorney Long discussed the potential for Mr. Ramos to
     testify with [Appellant]. Mr. Ramos testified at trial on March 16,
     2012. He told the jury that [Appellant] was not involved in the
     robberies and that he (Mr. Ramos) acted alone. He denied
     telling the police that anyone else was involved.

           It is clear from the testimony taken during the PCRA
     Hearings that Attorney Long’s decision to call Mr. Ramos as a
     witness was a reasonable trial strategy. Mr. Ramos, during his
     interviews prior to taking the stand and while testifying, was
     steadfast in his assertion that [Appellant] had nothing to do with
     the crimes alleged by the Commonwealth. In fact, Mr. Ramos
     took full responsibility for the robberies and assaults and further
     indicated that the statement he made to the police (indicating a
     “boyfriend” who Mr. Ramos refused to say was [Appellant]) was
     inaccurate. Therefore, we find this allegation of ineffectiveness
     without merit.

PCRA Court Opinion, 4/18/16, at 8-9.

     The record supports the PCRA court’s determination on this issue. At

the PCRA hearing, Attorney Long testified that he was made aware of

Ramos’s letter wherein Ramos indicted he was willing to testify on

Appellant’s behalf.     N.T., 12/23/15, at 8.     Furthermore, Attorney Long

explained   that   he   interviewed   Ramos    twice   regarding   his   proposed

testimony, and Ramos maintained that he robbed the victims by himself.

Id. at 8-9. As a result of his discussions with Ramos, Attorney Long decided

to proceed with calling Ramos as a defense witness because his testimony

exculpated Appellant.    Id. at 11.   Moreover, Attorney Long stated that he

and Appellant had discussed production of Ramos as a witness. Id. at 7-8.

Thus, we agree with the PCRA court’s conclusion that Attorney Long had a

reasonable basis for calling Ramos as a witness.        As a result, Appellant’s


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claim of trial counsel’s ineffectiveness fails. Furthermore, because there was

no ineffectiveness of trial counsel, there was no viable claim for ineffective

assistance of PCRA counsel. Paddy, 15 A.3d at 443

      In his final issue, Appellant asserts that the PCRA court committed an

error of law in denying relief where there were multiple instances of

ineffective assistance of counsel “in combination,” which caused Appellant

cumulative prejudice. Appellant’s Brief at 35. Appellant further explains:

             In the instant matter, there were multiple instances of
      deficient performance, as mentioned hereinabove: (1) counsel
      failed to impeach the Commonwealth’s key, sole witness against
      the Appellant with evidence that on the night of the robbery she
      was heavily intoxicated with Alcohol, Ecstasy and Marijuana (pp.
      14-21 herein); (2) counsel called a witness to testify at trial that
      had previously implicated the Appellant in the crime (pp. 26-28
      herein); (3) counsel called a witness who’s testimony would be
      false and/or in contradiction of previous statements made to
      police and defense counsel (pp. 28-31 herein); (4) counsel called
      a witness who’s previous account of events corroborated the
      testimony of the Commonwealth’s only witness against the
      Appellant (p. 34 herein); and counsel failed to obtain the
      Appellant’s informed consent before calling the defense witness
      (pp. 23-26).

Appellant’s Brief at 35-36.

      We first note that Appellant fails to provide specificity with regard to

the alleged errors of counsel.       We observe, however, that the page

references included in Appellant’s argument correlate to sections of his brief

relating to Martinez and Ramos, respectively. Thus, to the extent it can be

inferred from Appellant’s statement that he is again asserting that trial

counsel was ineffective with regard to witnesses Martinez and Ramos, we


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have previously concluded that Appellant failed to raise any viable

ineffectiveness claims regarding these witnesses.

      Moreover, our Supreme Court has held that “no number of failed

ineffectiveness claims may collectively warrant relief if they fail to do so

individually.”   Commonwealth v. Hanible, 30 A.3d 426, 483 (Pa. 2011).

Because Appellant has failed to demonstrate that any of his claims of

ineffectiveness warrant relief individually, they do not do so when considered

collectively.    Accordingly, there can be no meritorious claim of PCRA

counsel’s ineffectiveness. Paddy, 15 A.3d at 443.

      Order affirmed.

      Judge Ott joins the Memorandum.

      P.J.E. Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




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