J-S14002-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               : IN THE SUPERIOR COURT OF
                                            :      PENNSYLVANIA
                      Appellee              :
                                            :
              v.                            :
                                            :
HECTOR MALDONADO,                           :
                                            :
                      Appellant             : No. 1576 EDA 2013

                      Appeal from the PCRA Order May 13, 2013,
                     Court of Common Pleas, Philadelphia County,
                   Criminal Division at No. CP-51-CR-0004373-2007

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

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

      Hector Maldonado (“Maldonado”) appeals pro se from the order

entered on May 13, 2013 by the Court of Common Pleas of Philadelphia

County, Criminal Division, denying his petition filed pursuant to the Post

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

      A prior panel of this Court summarized the relevant facts in this case

as follows:

              On July 29, 2006, at approximately 6:00 a.m.,
              Maldonado, accompanied by friends, was at the
              Aramingo Diner in Philadelphia. Maldonado’s table
              began arguing with a group at a nearby table. The
              argument went on for approximately 20 minutes and
              required the diner manager to intervene. During a
              lull in the argument, the victim, Cesar Reyes
              [(“Reyes”)], arrived at the diner, and sat in a third
              booth with two women and an unidentified man.
              Reyes and the unidentified man had words and
              Reyes stood up, remaining at the booth. Shortly
              thereafter, Maldonado left the diner, returning a few
J-S14002-15


             minutes later. Maldonado walked over to Reyes,
             circled him, and said something in Spanish. He then
             drew a gun, placed it against the back of Reyes skull,
             and fired.

Commonwealth v. Maldonado, 2211 EDA 2008 at 1-2 (Pa. Super. May 25,

2010) (unpublished memorandum) (footnote omitted).

       Police arrested Maldonado on October 19, 2006. Following a four-day

bench trial, the trial court found Maldonado guilty of murder of the first

degree and possessing instruments of crime.1        The trial court sentenced

Maldonado to life in prison without parole. The PCRA court summarized the

remaining procedural history in this case as follows:

             Following the imposition of sentence, [Maldonado]
             filed a timely notice of appeal[.] … On May 25, 2010,
             the Superior Court issued a memorandum and order
             affirming the judgment of sentence. [Id. at 1, 8].
             [Maldonado] did not file a petition for allowance of
             appeal.

             On April 6, 2011, [Maldonado] filed a timely pro se
             [PCRA petition]. Counsel was appointed to represent
             him and on March 4, 2013, counsel filed a no-merit
             letter pursuant to Commonwealth v. Finley, 550
             A.2d 213 (Pa. Super. 1988); Commonwealth v.
             Turner, 544 A.2d 927 (Pa. 1988), and a Motion to
             Withdraw.     On April 8, 2013, this [c]ourt, after
             carefully reviewing the record, [Maldonado]’s various
             filings, and counsel’s no-merit letter, accepted
             counsel’s letter and sent [Maldonado] a Pa.R.Crim.P.
             907 notice of dismissal. On May 13, 2013, this
             [c]ourt issued an order denying [Maldonado] [PCRA]
             relief.




1
    18 Pa.C.S.A. §§ 907(a), 2502(a).


                                       -2-
J-S14002-15


             Following the dismissal of his PCRA petition,
             [Maldonado] filed pro se a notice of appeal and a
             Pa.R.A.P. 1925(b) statement.

PCRA Court Opinion, 5/6/14, at 1-2.

       On appeal, Maldonado raises the following issues for our review and

determination:

             I. [W]hether trial counsel was ineffective for failure
             to investigate, interview (and) or call witnesses who
             would have offered evidence that would have
             substantiated [Maldonado]’s diminished capacity
             defense?

             II.   Being that a diminished capacity defense is
             extremely limited and required psychiatric testimony
             concerning a defendant’s mental disorders that
             specifically affected his cognitive functions (of
             deliberation and premeditation) necessary to
             formulate a specific intent to kill, was trial counsel
             ineffective for failing to investigate and obtain such
             an expert?

             III. Did the lower court err by allowing counsel to
             withdraw and forcing [Maldonado] to proceed pro se
             in spite of the fact that there are issues of arguable
             merit in this case and that the court’s decision to
             allow counsel to withdraw constructively denied
             [Maldonado] counsel during this PCRA litigation?

Maldonado’s Brief at 7.2

       We begin by acknowledging that “[o]ur standard of review regarding a

PCRA court’s order is whether the determination of the PCRA court is

supported    by   the   evidence   of   record   and   is   free   of   legal   error.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The


2
    We reordered these issues for ease of review.


                                        -3-
J-S14002-15


PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Id.

       The first two issues Maldonado raises on appeal allege that trial

counsel was ineffective for failing to call certain witnesses at trial in support

of his diminished capacity defense. At trial, Maldonado argued that he was

unable to form the specific intent to kill Reyes because he had ingested

alcohol and cocaine several hours prior to the shooting.       N.T., 7/8/08, at

116.

       “A defense of diminished capacity, whether grounded in mental defect

or voluntary intoxication, is an extremely limited defense available only to

those defendants who admit criminal liability but contest the degree of

culpability based upon an inability to formulate the specific intent to kill.”

Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011).                     Our

Supreme Court has explained:

            A diminished capacity defense “does not exculpate
            the defendant from criminal liability entirely, but
            negates     the    element     of   specific   intent.”
            [Hutchinson, 25 A.3d at 312]. Thus, if the jury
            accepts a diminished capacity defense, a charge of
            first-degree murder is mitigated to third-degree
            murder.      To establish diminished capacity, a
            defendant must prove that his cognitive abilities of
            deliberation     and     premeditation      were    so
            compromised, by mental defect or voluntary
            intoxication, that he was unable to formulate the
            specific intent to kill. The mere fact of intoxication
            does not give rise to a diminished capacity defense.
            Likewise, evidence that the defendant lacked the
            ability to control his actions or acted impulsively is



                                         -4-
J-S14002-15


            irrelevant to specific intent to kill, and thus is not
            admissible to support a diminished capacity defense.
            Id.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1122 (Pa. 2012).                “[T]o

prove diminished capacity due to voluntary intoxication, a defendant must

show that he was overwhelmed to the point of losing his faculties and

sensibilities.” Commonwealth v. Padilla, 80 A.3d 1238, 1263 (Pa. 2013),

cert. denied, Padilla v. Pennsylvania, 134 S. Ct. 2725 (2014).

      In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance.      Commonwealth

v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014).                 To overcome that

presumption, the petitioner must establish:    “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable probability

that the result of the proceeding would have been different.” Id. (citation

omitted). If the petitioner fails to prove any of these prongs, the claim is

subject to dismissal. Id.

            To satisfy the prejudice prong of this test when
            raising a claim of ineffectiveness for the failure to
            call a potential witness at trial, our Supreme Court
            has instructed that the PCRA petitioner must
            establish that: (1) the witness existed; (2) the
            witness was available to testify for the defense; (3)
            counsel knew, or should have known, of the
            existence of the witness; (4) the witness was willing
            to testify for the defense; and (5) the absence of the



                                     -5-
J-S14002-15


             testimony of the witness was so prejudicial as to
             have denied the defendant a fair trial.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014).                  The

absence of witness testimony is so prejudicial as to have denied the

defendant a fair trial “[w]hen an uncalled witness’s testimony would have

created a reasonable probability of a different outcome [at] trial[.]” Id. at

333.

       First, Maldonado argues that trial counsel was ineffective for failing to

call as additional witnesses at trial Lisa Rodriguez (“Rodriguez”), Rosa

Lozada (“Lozada”), Andrew Zepeda (“Zepeda”), and Hector Hernandez

(“Hernandez”) in support of his diminished capacity defense.       Maldonado’s

Brief at 16-19. At trial, in support of this defense, Nasha Maldonado (“Ms.

Maldonado”) and Jose Baez (“Baez”) testified on Maldonado’s behalf.         Ms.

Maldonado testified that Maldonado was drinking a “40 Corona” and a “cup

of Hennessy” during a thirty to forty-five minute visit to her home

approximately nine hours before the shooting.       N.T., 7/9/08, at 5.    Baez

testified that he observed Maldonado do “two or three” shots in the

afternoon the day before the shooting and later that evening, snort a line of

cocaine. N.T., 7/8/08, at 118-21. Maldonado contends that each of the four

above-referenced witnesses would have been able to substantiate Ms.

Maldonado’s and Baez’s testimony and lend further support to his diminished

capacity defense. Id. at 16-19.




                                      -6-
J-S14002-15


     We conclude that Maldonado’s first ineffective assistance of counsel

claim does not entitle him to any relief. Maldonado argues that Rodriguez

would have testified that he admitted to her that he abused alcohol, cocaine,

ecstasy, and Xanax and that he often times walked around the house

screaming in the middle of the night. Maldonado’s Brief at 17. Maldonado

further asserts that Lozada’s testimony would have corroborated Rodriguez’s

testimony.    However, none of this testimony (including the testimony

actually offered at trial) provides any indication as to Maldonado’s state of

mind on the night in question or at the time of the shooting. Accordingly,

trial counsel was not ineffective for failing to call Rodriguez and Lozada as

witnesses because the absence of their testimony was not so prejudicial as

to have denied him a fair trial. See Wantz, 84 A.3d at 331.

     Maldonado     also   claims   that   Zepeda   would   have   testified   that

Maldonado was using cocaine and ecstasy and drinking heavily close in time

to the shooting.    Maldonado’s Brief at 18.        However, PCRA counsel’s

Turner/Finley letter indicates that after investigating, he was unable to

locate the present whereabouts of Zepeda or otherwise corroborate

Maldonado’s claims regarding Zepeda’s potential testimony. Turner/Finley

Letter, 3/4/13, at 9. Thus, there is no basis on which to conclude that trial

counsel’s failure to call Zepeda as witness met any of the five prongs of the

test explained in Wantz. See Wantz, 84 A.3d at 331; supra, p. 5-6.




                                      -7-
J-S14002-15


      Maldonado claims that Hernandez would have testified to Maldonado’s

state of mind after the shooting, as he did during Maldonado’s sentencing.

Maldonado’s Brief at 18-19.    Hernandez’s testimony, however, would have

likely harmed Maldonado’s case.        Hernandez’s testimony revealed that

Maldonado completely understood what he had done. See N.T., 7/9/08, at

90.   Hernandez testified during sentencing that Maldonado was distraught

and crying about having killed Reyes and that Maldonado said that he was

going to regret having killed Reyes for the rest of his life. Id. Thus, trial

counsel was not ineffective for failing to call a witness who would have

potentially harmed his client’s case.       See Wantz, 84 A.3d at 331 (“To

demonstrate … prejudice, a petitioner ‘must show how the uncalled

witnesses’ testimony would have been beneficial under the circumstances of

the case.’”). Accordingly, Maldonado’s first ineffective assistance of counsel

claim does not entitle him to any relief.

      Second, Maldonado argues that trial counsel was ineffective for failing

to investigate and obtain an expert witness to testify in support of his

diminished capacity defense. Maldonado’s Brief at 12-16. The PCRA court

found that no relief was due on this claim because Maldonado had “failed to

identify an expert who was available and willing to testify at his trial that he

was incapable of forming the specific intent to kill due to the ingestion of

drugs and/or alcohol.” PCRA Court Opinion, 5/6/14, at 6. We disagree with

the PCRA court deciding this issue in this manner, especially in light of the



                                      -8-
J-S14002-15


fact that the PCRA court permitted appointed counsel to withdraw and

appointed counsel’s Turner/Finley letter does not provide any indication

that he unsuccessfully attempted to find an expert to testify in such a

manner. Nevertheless, because we may affirm a lower court on any basis,

Commonwealth v. Lewis, 39 A.3d 341, 345 (Pa. Super. 2012),3 we

conclude that Maldonado is not entitled to any relief for his first

ineffectiveness assistance of counsel claim.

      Regarding this claim, Maldonado failed to prove the prejudice prong of

the ineffective assistance of counsel test.    Although Maldonado presented

evidence that he had ingested alcohol and cocaine approximately eight to

nine hours prior to shooting Reyes, the uncontroverted evidence in the

certified record reveals that Maldonado was not intoxicated to the point of

losing his faculties and sensibilities at the time of the shooting.          See

Padilla, 80 A.3d at 1263.

      Eyewitness    testimony    of   the   shooting   reflects   the   following.

Maldonado and Reyes were arguing with each other in the diner when

Maldonado said to Reyes, “you don’t want to fuck with me.” N.T., 7/7/08, at

160. Maldonado then proceeded to lift his shirt to show Reyes his gun. Id.

at 159-60, 198-99.     After Reyes told Maldonado that Maldonado was not

scaring him, Maldonado shot Reyes in the head at point blank range. Id. at



3
   “We can affirm the court’s decision if there is any basis to support it, even
if we rely on different grounds to affirm.” Lewis, 39 A.3d at 345.


                                      -9-
J-S14002-15


199-200.    After shooting Reyes, as Maldonado was leaving the diner, he

lifted his shirt and flashed his gun at the cashier who had picked up the

phone in order to dial 911. Id. at 46. After exiting the diner, Maldonado

ran from the scene and proceeded to get into a car and successfully drive

away at a high rate of speed. N.T., 7/8/08, at 78-80. Witness testimony

reveals that during the incident, Maldonado was walking normally and did

not appear drunk or otherwise intoxicated. N.T., 7/7/08, at 56-57. In fact,

prior to the shooting, Maldonado had the wherewithal and deftness to

retrieve a toothpick from a toothpick dispenser. Id. at 56.

      Thus, even if trial counsel had produced an expert to testify in support

of Maldonado’s diminished capacity defense, that evidence would have had

to overcome the eyewitness testimony of Maldonado’s behavior during the

shooting, all of which revealed that he was entirely lucid, not intoxicated to

the point of losing his faculties and sensibilities and indeed, quite deliberate

in all of his conduct.     Accordingly, we conclude that there was not a

reasonable probability that the result of the proceeding would have been

different had an expert testified in support of Maldonado’s diminished

capacity defense.    See Wantz, 84 A.3d at 331, 333.           Therefore, trial

counsel’s failure to call an expert witness did not prejudice Maldonado and

this claim does not entitle him to any relief.

      Finally, Maldonado argues that the PCRA court erred in allowing PCRA

counsel to withdraw. Maldonado’s Brief at 28-29. Maldonado contends that



                                     - 10 -
J-S14002-15


the PCRA court should not have permitted PCRA counsel to withdraw

because he has raised issues of arguable merit and has therefore denied him

of his Sixth Amendment right to effective assistance of counsel. Id.

     Rule 904(C) of the Pennsylvania Rules of Criminal Procedure provides

that “when an unrepresented defendant satisfies the judge that the

defendant is unable to afford or otherwise procure counsel, the judge shall

appoint counsel to represent the defendant on the defendant's first petition

for post-conviction collateral relief.”     Pa.R.Crim.P. 904(C).     However,

appointed counsel may file a “no-merit” letter and request leave to withdraw

from representation. See Turner, 544 A.2d at 928-29; Finley, 550 A.2d at

214-15. Compliance with Turner/Finley procedure requires the following:

           [PCRA] counsel must … submit a “no-merit” letter to
           the trial court, or brief on appeal to this Court, [1]
           detailing the nature and extent of counsel’s diligent
           review of the case, [2] listing the issues which the
           petitioner wants to have reviewed, [3] explaining
           why and how those issues lack merit, and [4]
           requesting permission to withdraw.

           Counsel must also send to the petitioner: (1) a copy
           of the “no-merit” letter/brief; (2) a copy of counsel’s
           petition to withdraw; and (3) a statement advising
           petitioner of the right to proceed pro se or by new
           counsel.

           If counsel fails to satisfy the foregoing technical
           prerequisites of Turner/Finley, the court will not
           reach the merits of the underlying claims but, rather,
           will merely deny counsel’s request to withdraw.
           Upon doing so, the court will then take appropriate
           steps, such as directing counsel to file a proper
           Turner/Finley request or an advocate’s brief.



                                   - 11 -
J-S14002-15



            However, where counsel submits a petition and no-
            merit letter that do satisfy the technical demands of
            Turner/Finley, the [court] must then conduct its
            own review of the merits of the case. If the court
            agrees with counsel that the claims are without
            merit, the court will permit counsel to withdraw and
            deny relief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (internal

citations omitted).

      Here, Maldonado argues that the PCRA court abused its discretion

when it permitted PCRA counsel to withdraw “in a case where meritorious

issues are present.” Maldonado’s Brief at 29. Based on our review of the

issues raised on appeal and an independent review of the record, we

disagree with Maldonado’s contention that this case presents any meritorious

issues.   Accordingly, we conclude that the PCRA court did not err in

permitting PCRA counsel to withdraw.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2015




                                   - 12 -
