J-S58024-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                     v.

JULIO A. BONILLA

                          Appellant                    No. 2130 MDA 2015


              Appeal from the PCRA Order November 18, 2015
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000680-2010




BEFORE: GANTMAN, P.J., BOWES, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 29, 2016

      Julio A. Bonilla appeals from the November 18, 2015 order denying his

PCRA petition following an evidentiary hearing. After thorough review, we

affirm.

      Appellant was charged with first-degree murder and two counts of

aggravated assault arising out of a street fight on Willow Street in Lebanon

City on March 25, 2010. Appellant threatened one victim with a knife and

fatally   stabbed   Kenny   Echevarria   multiple    times   with   that   weapon.

Immediately after the stabbing, he fled to Vineland, New Jersey, and was

arrested there on March 26, 2010.




* Retired Senior Judge assigned to the Superior Court.
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       On December 1, 2010, Appellant entered a negotiated guilty plea to

the charges and was sentenced to twenty to forty years in prison.

Thereafter, Appellant filed a PCRA petition. He successfully challenged his

plea, and his sentence was vacated. Attorney Erin Zimmerer was appointed

to represent him at a trial.        Counsel filed numerous pre-trial motions on

Appellant’s behalf.      Following a four-day trial, where thirty-one witnesses

testified, the jury found Appellant guilty of all charges and the court

sentenced him to life imprisonment.1

       Appellant filed post-trial motions, which were denied. He then filed a

direct appeal to this Court but was denied relief.         Commonwealth v.

Bonilla, 2013 Pa. Super. Unpub. LEXIS 1826 (Pa.Super. 2013).               The

Supreme Court denied allowance of appeal. Commonwealth v. Bonilla, 86

A.3d 231 (Pa. 2014). Appellant timely filed the instant PCRA petition raising

multiple claims of trial counsel’s ineffectiveness.       The court appointed

counsel and held an evidentiary hearing on October 29, 2015.          Appellant

testified on his own behalf and, in addition, he presented the testimony of

three witnesses he characterized as material, but who were not called to

testify at trial: Emmanuel Ortega, Carmen Irizarry, and Julio Bonilla, Sr. On

November 18, 2015, the PCRA court denied relief.

____________________________________________


1
 Appellant received a concurrent five to ten year sentence of imprisonment
on the assault convictions.



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       Appellant timely filed the within appeal and complied with the PCRA

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.         The PCRA court authored its Pa.R.A.P. 1925(a)

opinion, and the matter is ripe for our review.        Appellant presents four

questions:

      A. Whether the trial court erred in not finding Appellant’s trial
         counsel ineffective for failing to identify and call material
         witnesses who could have provided exculpatory testimony at
         trial, specifically Emmanuel Ortega, Carmen Irizarry, and Julio
         Bonilla, Sr.

      B. Whether the trial court erred in not finding Appellant’s trial
         counsel ineffective for failing to obtain and play the 911 call
         [Appellant] made after the murder at trial.


          ....

       [C.] Whether the trial court erred in not finding Appellant’s trial
            counsel ineffective for failing to seek suppression of a knife
            and photographs of a [sic] various knives, and failed to
            object to their admission during trial.

            ....

       [D.] Whether the trial court erred in its decision denying
           Appellant’s Petition for Post-Conviction Relief.

Appellant’s brief at 4.2




____________________________________________


2
   Appellant withdrew two issues from our consideration that were contained
in his Pa.R.A.P. 1925(b) statement and listed in his Statement of Questions.
See Appellant’s brief at 32, 35.



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      When we review the denial of post-conviction relief, we are “limited to

examining      whether    the      evidence       of   record       supports       the     court's

determination     and     whether        its    decision     is    free      of   legal    error."

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015).                                  Our

"review is limited to the findings of the PCRA court and the evidence of

record” and we view the latter “in the light most favorable to the prevailing

party at the PCRA level.” Commonwealth v. Rykard, 55 A.3d 1177, 1183

(Pa.Super. 2012). While we will not disturb the factual findings of the PCRA

court unless they are unsupported, we afford no deference to its legal

conclusions. “Where the issue is a question of law, our standard of review is

de novo and our scope of review is plenary.” Commonwealth v. Henkel,

90 A.3d 16, 20 (Pa.Super. 2014).

      In order to prevail, the petitioner must demonstrate: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable basis

for the act or omission in question; and (3) he suffered prejudice as a result

of counsel's deficient performance.            Commonwealth v. Steele, 961 A.2d

786, 796-97 (Pa. 2008); Commonwealth v. Stewart, 84 A.3d 701, 706

(Pa.Super. 2013) (en banc). "A claim of ineffectiveness will be denied if the

petitioner's   evidence    fails    to     satisfy     any        one   of    these       prongs."

Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013).

      The third prong, the prejudice aspect, involves a showing by a

defendant that but for the act or omission in question, “there is a reasonable

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probability that the outcome of the proceedings would have been different.”

Id. at 427; Steele, supra at 360.            A "reasonable probability" is "a

probability   sufficient    to   undermine   confidence   in   the   outcome."

Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super. 2006).

      With regard to the second prong, "Trial counsel . . . is presumed to

have acted effectively and in his client's best interests[.]” Commonwealth

v. Hancharik, 633 A.2d 1074, 1079 (Pa. 1993).         In determining whether

counsel had a reasonable basis for the course charted, "[t]he test is not

whether other alternatives were more reasonable, employing a hindsight

evaluation of the record,” Commonwealth v. Hawkins, 894 A.2d 716, 730

(Pa. 2006), "but whether no competent counsel would have chosen that

particular course of action, or the alternative not selected offered a greater

chance of success.”        Commonwealth v. Colavita, 993 A.2d 874 (Pa.

2010). This test is an objective one, and counsel is effective if his decision

had any reasonable basis. Hawkins, supra.

      Regarding a claim that counsel was ineffective in failing to investigate

and call witnesses, a petitioner must demonstrate:

      (1)the witness existed; (2) the witness was available; (3) trial
      counsel was informed of the existence of the witness or should
      have known of the witness’ existence; (4) the witness was
      prepared to cooperate and would have testified on appellant’s
      behalf; and (5) the absence of the testimony prejudiced
      appellant.

Commonwealth v. Miller, 868 A.2d 578, 581-82 (Pa.Super. 2005).



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       Appellant alleges that trial counsel was ineffective for failing to

reasonably investigate and make an informed decision whether to call three

witnesses, whom Appellant claims could have provided material and

exculpatory testimony. Appellant maintains that, although he told counsel

about Emmanuel Ortega3 prior to trial, counsel failed to investigate, contact,

or interview him, and she had no reasonable strategic basis not to do so.

Appellant    argues     that   Mr.   Ortega’s    testimony   was   beneficial   under

Commonwealth v. Perry, 644 A.2d 705 (Pa. 1994), as it supported his

claim of self-defense and may have resulted in a lesser degree of homicide.

       Mr. Ortega further testified at the PCRA hearing that he lived with

Appellant at the time of the fight. He was present the day before the fight

when the victim threatened to kill Appellant and his family. N.T., 12/16/15,

at 19.    Mr. Ortega further testified that, although he did not witness the

fight, Appellant entered his car on Willow Street immediately after the fight.

Mr. Ortega described Appellant as shocked and scared, and Appellant asked

Mr. Ortega to take him to a friend’s house because he was being threatened.

Id. at 12. Along the way, Appellant directed Mr. Ortega to stop at a pizza

place so that Appellant could place a telephone call from a payphone.

____________________________________________


3
 Mr. Ortega was known as Emmanuel Rodriguez-Arroyo, Emmanuel Orta-
Rodriguez, and Emmanuel Arroyo. Trial counsel’s notes did not contain any
mention of an Emmanuel and counsel had no recollection of discussing an
Emmanuel. N.T., 10/29/15, at 92.



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Following that call, Mr. Ortega dropped off Appellant at a friend’s home,

picked up Appellant’s family from their Willow Street residence, retrieved

Appellant, and transported all of them to Appellant’s brother’s house in New

Jersey.   During that trip, they discussed Appellant turning himself in to

police after he and his family were safe. Mr. Ortega maintained that he did

not see a knife in Appellant’s possession.

      Mr. Ortega further testified that he was not contacted by trial counsel,

but he would have been available to provide testimony at trial. He denied

any familial relationship with Appellant and represented that he did not

remain in contact with him after the murder.       On cross-examination, Mr.

Ortega admitted that Appellant is his sister’s unofficial husband and the

father of her children. Id. at 22. Despite the fact that Appellant told police

that he threw the knife from the car window into a river on the way to New

Jersey, Mr. Ortega stated he did not see Appellant throw anything out of the

window and denied that he stopped the vehicle for that purpose. Upon his

return from New Jersey, Mr. Ortega retrieved his clothing and went to

Rochester.

      The PCRA court did not find Mr. Ortega credible or his testimony

exculpatory. Furthermore, it found Mr. Ortega’s account of the trip to New

Jersey inconsistent with Appellant’s statement to police that he threw the

knife into the river during that trip. In addition, the court credited Attorney




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Zimmerer’s testimony that she did not investigate Mr. Ortega because she

was not apprised of his existence.

      Appellant maintains that counsel knew of Mr. Ortega, but failed to

locate him. Furthermore, he contends that Mr. Ortega’s testimony was not

internally   inconsistent   and   did   not   contradict   Appellant’s   testimony.

Appellant argues that Mr. Ortega’ s testimony would have been exculpatory

or mitigating as it would have supported his claim that he acted in self-

defense and fled in fear.

      We cannot disturb the court’s credibility determination. Furthermore,

we agree with the PCRA court that the witness’s testimony had little

evidentiary value as the jury heard from Detective Walton that Appellant told

him he fled the state in fear of retaliation.        N.T. Trial, 4/11/12, at 76.

Additionally, Appellant’s sister Amarylis and his wife Sacha testified at trial

that there were issues between Appellant and the victim in the days leading

up to the fight and murder, and that the victim had threatened to kill

Appellant. Id. at 128. Both of the women related that the victim and others

attacked Appellant on the date in question.        Id. at 111, 114.      Appellant’s

wife testified that, after the stabbing, Appellant was nervous, upset, and

crying. Id. at 130. Thus, Mr. Ortega’s testimony, to the limited extent it

was probative of the issue of self-defense, was cumulative of other

testimony. Finally, the PCRA court credited Attorney Zimmerer’s testimony

that she was not apprised of Mr. Ortega. No relief is due.

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       Appellant alleges next that trial counsel was ineffective in failing to

communicate with Carmen Irizarry.                Appellant points to Ms. Irizarry’s

cooperation with his subpoena for the PCRA hearing as evidence that, had

the witness been subpoenaed for trial, she would have cooperated and

offered consistent testimony. Furthermore, he contends that Ms. Irizarry’s

testimony, if believed, would have bolstered his self-defense argument and,

as in Perry, supra, would have supported a conviction of a lesser degree of

homicide.

       Ms. Irizarry was sitting with Norma Ortiz and Marie on Norma’s front

porch near the location of the fight.4 She heard but did not see the fight.

She testified that she recognized Appellant’s voice crying for help three

times and she detected fear in his voice. Id. at 40. Ms. Irizarry originally

testified that no one contacted her about being a witness at trial.            She

subsequently changed her testimony and admitted that she did speak to

someone regarding the events that night. She also added that she received

a call from an attorney who left a message.            Id. at 41-42.   When asked

whether she would have been available to testify at the April 2012 trial, Ms.
____________________________________________


4
  Norma Ortiz testified on behalf of the defense at trial. Ms. Ortiz stated that
she saw four or five guys hitting the defendant with their fists while he was
on the ground and she heard screaming. N.T. Trial, 4/11/12, at 62, 71. On
cross-examination, she confirmed that Carmen Irizarry was a good friend of
Appellant, and that an investigator working on behalf of the defense
interviewed all three women at Ms. Irizarry’s home regarding their
observations of the fight. Id. at 64, 71.



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Irizarry answered in the negative as she had undergone an operation at the

time.    She ultimately acknowledged that, had she been subpoenaed by

Appellant, she would not have appeared due to her surgery.                   She

remembered having her daughter notify the court that she could not appear

at trial, although she did not recollect receiving any notice to appear.

        Trial counsel Zimmerer testified that the defense spoke with Ms.

Irizarry, but the woman was not willing or able to testify at trial as she had

just undergone surgery.      Id. at 94.    Moreover, according to counsel, the

witness told her that she did not remember anything from that night, and

her daughter called counsel to reinforce that representation. Id.

        Based upon the testimony of Attorney Zimmerer and Ms. Irizarry, the

PCRA court concluded the witness was not willing and able to testify at the

time of the trial.    Furthermore, the court found Ms. Irizarry to be well-

meaning but confused, and that her “marginally relevant” testimony would

not have had any impact on the trial. PCRA Court Opinion, 11/18/15, at 9.

Again, we find ample support in the record for the trial court’s findings, and

Appellant is not entitled to relief on this basis.

        Julio Bonilla, Sr., Appellant’s father, was in Puerto Rico at the time of

the murder.      He testified that his son telephoned him from New Jersey,

reported what had happened, and that he was “crying, screaming.”            N.T.,

11/29/15, at 47. His son related that “a situation had occurred . . . and he

wanted to do everything correct and that they were trying to kill him and his

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children and that he was really scared.” Id. Appellant did not mention to

his father that someone had been killed. Mr. Bonilla advised his son to get

an attorney and turn himself over to police.      He testified further that he

provided counsel with Mr. Ortega’s name and contact information.         Id. at

52. Mr. Bonilla was sequestered in the hallway during trial, ready and willing

to testify.

      Counsel had a vague recollection that Mr. Bonilla was available and

willing to testify, and that he was sequestered, but she did not call him to

provide testimony as his story was inconsequential and had the potential to

conflict with the testimony of another witness. The PCRA court agreed with

counsel that, even assuming Mr. Bonilla’s testimony would have been

admitted over a hearsay objection, it was of little or no probative value, and

thus, counsel was not ineffective in opting not to call him.

      We agree that Appellant failed to demonstrate the prejudice required

to satisfy the third prong of the ineffectiveness test.        Furthermore, the

record supports a finding that trial counsel made a reasonable strategic

decision not to call Mr. Bonilla as a witness.    We find no basis for finding

counsel ineffective.

      Next, Appellant contends that counsel was ineffective in failing to

obtain and play for the jury the 911 call that he made after the murder.

Appellant argues that his sister, his wife, his mother and father were in the

courthouse and could have identified his voice.      Furthermore, he submits

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that, due to the timing of the call, just moments after the event, together

with the stress and fear in his voice, the jury would have overlooked the fact

that he did not identify himself or his victim.     Appellant analogizes such

evidence to that of character witnesses in Commonwealth v. Weiss, 606

A.2d 439, 443 (Pa. 1992).

      Mr. Bonilla and trial counsel both confirmed that counsel was in

possession of the 911 tape prior to trial. N.T., 11/29/15, at 71. In addition

to potential authentication issues, counsel testified that she made a strategic

decision not to play the tape because she believed Appellant’s refusal to

identify himself or the victim, together with the fact that he hung up on the

911 operator, was incriminating. Id. Counsel believed the best use of the

evidence was letting the jury know that Appellant voluntarily made the 911

call without having to play it, a strategy counsel deemed the “best of both

worlds.”   PCRA Court Opinion, 11/18/15, at 12.      The PCRA court saw no

basis to impugn counsel’s strategic decision, and furthermore, characterized

it as “totally correct” and expressed its agreement that playing the 911 call

would have been harmful. Id.

      We concur that counsel’s decision not to play the 911 call for the jury

was a reasonable one, a strategy other competent counsel may have

employed    in   similar   circumstances.     Furthermore,   Appellant   cannot

demonstrate any prejudice as the jury was apprised that he made the call

and reported the stabbing, which was the positive aspect of the evidence,

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without the downside of proof of his refusal to identify himself. This claim is

meritless.

      Next Appellant alleges that the trial court erred in not finding counsel

ineffective for failing to seek suppression of a knife and photographs of

knives, and failing to object to their admission at trial. Appellant argues the

admission of photographs of multiple knives in his home was prejudicial, as

it “allowed the inference to be presented to the jury that Appellant was

prepared for somebody to come after him, which significantly impairs his

self-defense argument.” Appellant’s brief at 34. Moreover, he claims that

counsel had no reasonable basis for failing to object.

      Counsel testified that she did not believe the photographs of knives,

many of them common kitchen knives, were probative or prejudicial as the

evidence established that the knives had been tested and ruled out as the

murder weapon. Furthermore, the jury was aware that the knife that was

introduced into evidence was not the murder weapon.           The PCRA court

concluded that any prejudice from their admission was outweighed by the

fact that the exhibits merely confirmed that “everyone has multiple knives in

their houses.” PCRA Court Opinion, 11/18/15, at 13. We agree, and find no

prejudice.

      Appellant’s final claim is that the PCRA court erred in denying his PCRA

petition.    In support of this contention, Appellant argues that he was

prejudiced by the cumulative effect of counsel’s various failings.    He cites

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Commonwealth v. Mason, 130 A.3d 601, 674 (Pa. 2015), in support of his

contention that prejudice should be premised upon the cumulative effect of

trial counsel’s multiple deficiencies.   However, the law is to the contrary.

Herein, as in Mason, where all of Appellant's ineffectiveness claims were

found meritless, “no cumulative prejudicial effect could have attained.” Id.

(quoting Commonwealth v. Thomas, 44 A.3d 12, 25 (Pa. 2012)).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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