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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
MARIANO MARTINEZ,                       :          No. 520 EDA 2015
                                        :
                        Appellant       :


               Appeal from the PCRA Order, January 30, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0010891-2007


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


DISSENTING MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED JUNE 10, 2016

      I respectfully dissent.   The Majority holds that appellant was likely

prejudiced by trial counsel’s failure to call appellant’s wife and daughter to

provide alibi testimony. (Majority memorandum at *13.) Specifically, the

Majority cites the fact that appellant did not have a firearm on his person,

nor was a weapon recovered from his home. (Id.) Additionally, no paraffin

test was conducted to determine whether appellant had any gunpowder

residue on his hands. (Id.) According to the Majority, “[t]he only evidence

linking [appellant] to these crimes is the testimony of other witnesses, who

gave varying descriptions of [appellant], and some of whom identified him

while he was in the back of a police vehicle.” (Id.)
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      The record, however, indicates that there is more evidence linking

appellant to these crimes. In its finding of fact, the trial court determined

the following:

            Detective Frank Green later arrived at the scene of
            the shooting to investigate and he discovered nine
            fired cartridge casings on the driveway where the
            shooting occurred and one projectile in a car parked
            in the driveway. It was determined that the
            crime scene was the driveway in the rear of
            Appellant’s residence, and a search warrant was
            obtained. Two boxes of ammunition were recovered
            from the second floor bedroom closet of Appellant’s
            residence.[1] It was determined that Appellant did
            not have a valid license to carry a firearm in
            accordance with the Pennsylvania Uniform Firearms
            Act.

Trial court opinion, 4/7/15 at 4-5 (emphasis added).     The trial court also

indicated that there were three positive eyewitness identifications: the two

complainants, Robert Campellone and Dennis Decker, and Hugh Scott, who

“observed [appellant] running out of the driveway in a crouched posture

looking back over his shoulder, carrying a semi-automatic firearm in his right

hand.” (Id. at 4.) Campellone and Decker positively identified appellant as

one of the shooters after he was detained by the police. (Id.)

      Finally, in light of the above evidence, and with great respect to the

Majority view, I fail to see how the affiants’ testimony could alter the


1
  Detective Green discovered a box of .40 caliber rounds and .45 caliber
rounds in in the closet in the second floor front bedroom in appellant’s
residence. (Notes of testimony, 8/5/08 at 18-19.) A spent .40 caliber round
was discovered on the street behind 1529 East Lycoming Street, which is
adjacent to appellant’s residence at 4050 Neilson Street. (Id. at 8.)


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outcome of the trial. Here, appellant avers that his wife, Carolyn Matos, and

his 11-year-old daughter, D.F., would have provided testimony that

accounts    for   appellant’s   whereabouts   at    the   time   of   the   shooting.

Specifically, both witnesses provided affidavits indicating that they were with

appellant at the time of the shooting.             D.F.’s affidavit indicated that

appellant was home all day before leaving for work, and that he was

arrested “within seconds” of leaving the house. (D.F. affidavit, 7/9/12 at 1.)

Matos’ affidavit did not provide a definitive timeframe for when appellant

was arrested. She stated that she “was at the door waiving [sic] good-bye

to Mariano. My daughter, [D.F.] was also at the door with me. We looked

with horror when the police grabbed [appellant] and placed him in

handcuffs.” (Matos affidavit, 7/9/12 at 1.)

      The affidavits of the potential witnesses lacked a definitive timeframe

in which appellant left his home to go to work.           As the trial court noted,

“[t]he proposed alibi testimony does not place [a]ppellant at home at the

time he committed these crimes and there are three eyewitnesses to the

shooting.” (Trial court opinion, 4/7/15 at 7.)

      Due to the fact that the crime scene was determined to be the

driveway in the rear of appellant’s residence, the exculpatory value of

affiants’ testimony decreases significantly.       As the Commonwealth notes,

appellant’s presence at home does not preclude him from participating in the

shooting.   (See Commonwealth’s brief at 9-10.)            Neither Matos nor D.F.



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definitively indicate in their affidavits that appellant was inside the house

throughout the entire duration of the shooting. Therefore, I would find that

the absence of testimony from Matos and D.F. did not so prejudice appellant

as to deny him a fair trial, and that appellant’s claim lacks arguable merit.

      Therefore, I respectfully dissent.




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