J-A24030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY MOTT                               :
                                               :
                       Appellant               :   No. 2976 EDA 2018

             Appeal from the PCRA Order Entered October 10, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014603-2009


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                            FILED NOVEMBER 05, 2019

        Appellant, Gregory Mott, appeals from the October 10, 2018 Order,

entered in the Philadelphia County Court of Common Pleas, dismissing his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546, as meritless. After careful review, we affirm.

        A prior panel of this Court summarized the underlying facts as follows:

        Appellant’s convictions stem from the shooting death of Michael
        Lazo. At Appellant’s jury trial, Norma Diaz testified for the
        Commonwealth.        She stated that at about 9:00 p.m. on
        September 3, 2009, she encountered Appellant driving a white
        van with blue detailing. Diaz was familiar with Appellant and knew
        him by the nickname “Squeeze.” Appellant stopped his van and
        asked if Diaz knew Michael Lazo. She responded that she did, and
        Appellant then offered to pay Diaz $200 to find Lazo and bring him
        to the intersection of 7th and Sedgley streets. Diaz agreed and,
        after locating Lazo a short time later, she brought him to 7 th and
        Sedgley streets as instructed by Appellant. Once there, Diaz
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     observed Appellant’s white van parked along the curb. Diaz
     claimed that as Lazo approached the van, someone inside the
     vehicle shot Lazo multiple times. Diaz testified that she could not
     see the face of the person who shot Lazo, but did see a gun
     protruding from the passenger side of the white van.

     During Diaz’s testimony, the Commonwealth introduced into
     evidence two prior statements she had given to the police. In the
     first, given by Diaz on the night of the shooting, Diaz did not tell
     police about Appellant asking her to find Lazo. Instead, she
     claimed she was standing around the corner from the location of
     the shooting when she heard the gunshots, but she did not see
     who shot Lazo. She also stated that she saw a white van leaving
     the scene of the shooting.

     However, the day after the shooting, Diaz provided a second
     statement to homicide detectives, at that point admitting that
     prior to the shooting, she encountered Appellant driving a white
     van and he offered her money to find Lazo. She told the
     detectives that she took Lazo to the location where Appellant’s
     van was parked, and that she could see Appellant’s face when he
     shot Lazo with a black gun from the passenger-side window of the
     vehicle. She also told the detectives that she did not see anyone
     else in the van with Appellant at any point during her encounters
     with him. Diaz testified at trial that she did not tell the police all
     of this information on the night Lazo was shot because she was
     scared.

     In addition to Diaz’s testimony, the Commonwealth presented the
     testimony of Jose Matos, who stated that on September 3, 2009,
     he saw Diaz and Lazo walking toward a white van, after which he
     heard gunshots. He did not see who was shooting the weapon.

     The Commonwealth also introduced evidence of a statement to
     police provided by eyewitness Wanda Lopez, who was deemed
     legally unavailable to testify. [Lopez had previously testified at
     Appellant’s Preliminary Hearing.] In that statement, Lopez told
     police that she saw Appellant “hanging out of the passenger side
     window [of a van] with a gun,” and that she witnessed Appellant
     shoot Lazo several times. N.T. Trial, 12.15.10, at 38. However,
     at the preliminary hearing, Lopez repudiated this statement,
     claiming that she did not see the shooting.

     Finally the Commonwealth introduced testimony by Philadelphia
     Police Officer Rafael Cordero, who testified that he encountered
     Appellant in August of 2009 at a location where a “street

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        salesman” was selling cars. N.T. Trial, 12/15/10, at 71. Officer
        Cordero testified that Appellant was looking at a white van and
        told the officer that he was going to buy it.

Commonwealth v. Mott, No. 152 EDA 2011 (Pa. Super. filed October 31,

2012).

        Police arrested Appellant for Lazo’s murder and related crimes, and on

December 17, 2010, a jury convicted Appellant of First-Degree Murder,

Firearms not to be Carried without a License, and Carrying a Firearm in Public

in Philadelphia.1,   2   That same day, the trial court sentenced Appellant to a

term of life imprisonment without the possibility of parole. Appellant filed a

timely Post-Sentence Motion, which the trial court denied. This Court affirmed

Appellant’s Judgment of Sentence on October 31, 2012,3 and the Pennsylvania

Supreme Court denied Appellant’s Petition for Allowance of Appeal on May 29,

2013. Appellant did not seek further review of his Judgment of Sentence,

which, thus, became final on June 28, 2013.4

        On June 11, 2014, Appellant timely filed a pro se PCRA Petition. In the

Petition, Appellant alleged that his trial counsel was ineffective for failing to

contact Dietra Gaines and to call her to testify as an alibi witness.      PCRA

Petition, 6/11/14, at 6. Appellant also indicated that he had discovered that
____________________________________________


1   18 Pa.C.S. §§ 2502(a), 6106(a)(1), and 6108, respectively.

2 Daniel Rendine, Esquire, represented Appellant at trial.            James A.
Lammendola, Esquire, represented Appellant on direct appeal.

3 On direct appeal, Appellant challenged the weight and sufficiency of the
evidence in support of his convictions.

4   See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).

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the Commonwealth’s witness Philadelphia Police Officer Raphael Cordero had

been convicted in federal court of interfering with a federal drug investigation

and convicted of obstruction of justice on December 2, 2013. Id. at “7-4.”

Appellant alleged that the information revealed in the federal indictment

indicated that Cordero’s brother-in-law was a drug dealer in competition with

Appellant. Therefore, Appellant alleged that Cordero’s conviction is evidence

that, at the time he investigated Lazo’s murder, Cordero “could have easily”

convinced witnesses against Appellant to incriminate Appellant, and “it is

obvious” that Cordero’s primary motive in testifying against Appellant was to

assist his brother-in-law by removing Appellant as a large competitor. Id. at

“7-5.” Appellant asserts that he would use the newly-discovered evidence of

Cordero’s corruption as evidence “primarily . . . to show an alternate theory

of the crime—that [Appellant] was set-up by a corrupt police officer protecting

his family and a very large, dominant[,] and dangerous drug trafficking

organization” by “pointing the finger” at Appellant or being “complicit in

getting incriminating statements from Ms. Diaz and Ms. Lopez.” Id. at “7-6.”

Appellant avers that there is no way that he or his counsel could have obtained

this information prior to or during trial. Id.

      The PCRA court appointed counsel on December 19, 2014. More than

two years later, on January 26, 2017, counsel filed an Amended PCRA Petition.

In his Amended Petition, Appellant claimed that his trial counsel was

ineffective for failing to object to the admission of Wanda Lopez’s prior

inconsistent statement. Amended PCRA Petition, 1/26/17, at ¶ 8.

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        On September 11, 2017, the Commonwealth filed a Motion to Dismiss

Appellant’s Petition.      In response, on January 8, 2018, Appellant filed a

Supplemental Amended PCRA Petition in which he claimed that his trial

counsel was ineffective for failing to object to the admission of Wanda Lopez’s

prior inconsistent statement and for stipulating to her unavailability.

Supplemental Amended PCRA Petition, 1/18/18, at ¶ 9.                 Appellant also

reiterated his newly-discovered evidence claim, and his claim that counsel was

ineffective for failing to interview Dietra Gaines and for failing to call her to

testify as an alibi witness who he alleged “was and remains available to

testify.” Id. at ¶¶ 19, 20, 26-33.

        On February 15, 2018, the Commonwealth filed a Supplemental Motion

to Dismiss, to which Appellant filed a Response on April 30, 2018.

        On July 11, 2018, the PCRA court advised Appellant of its intent to

dismiss his Petition without a hearing as meritless pursuant to Pa.R.Crim.P.

907. Appellant did not file a Response to the court’s Rule 907 Notice. On

October 10, 2018, the court dismissed Appellant’s Petition. This timely appeal

followed.5

        Appellant raises the following three issues on appeal:

        1. Did the PCRA [c]ourt abuse its discretion when it held [that
           Appellant’s] trial counsel was not ineffective for failing to object
           when a non-testifying witness’s prior inconsistent statement
           was read into the record at trial?


____________________________________________


5   The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement.

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      2. Did the PCRA [c]ourt abuse its discretion when it held [that
         Appellant’s] trial counsel was not ineffective for failing to call a
         known alibi witness?

      3. Is [Appellant] entitled to an evidentiary hearing as the result
         of newly discovered evidence?

Appellant’s Brief at 2.

      In his first two issues, Appellant challenges the court’s conclusion that

his ineffective assistance of counsel claims lacked merit.

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if the record

supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.

2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

      The   law   presumes     counsel   has   rendered    effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. (citation

omitted).   To satisfy this burden, Appellant must plead and prove by a

preponderance of the evidence that: “(1) his underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceeding would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003) (citations omitted). Failure to satisfy

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any prong of the test will result in rejection of the appellant’s ineffective

assistance of counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002

(Pa. 2002).

       First, Appellant claims that his trial counsel was ineffective for failing to

object to the portion of Wanda Lopez’s preliminary hearing testimony that

contained the prior inconsistent statement she gave to police when the

Commonwealth read it into the record at trial. Appellant’s Brief at 10. As

noted above, on September 5, 2009, Ms. Lopez gave a statement to police in

which she identified Appellant as Lazo’s shooter and she selected Appellant’s

photograph from a photographic array. At Appellant’s preliminary hearing,

however, Ms. Lopez repudiated this statement. As such, the Commonwealth

impeached Ms. Lopez at the preliminary hearing with her prior inconsistent

statement identifying Appellant.

       By the time of Appellant’s trial, Ms. Lopez was unavailable to testify, and

the court permitted the Commonwealth to read into the record her preliminary

hearing testimony, including the statement she gave to police.6           Appellant

claims that his counsel should have objected to the admission of Ms. Lopez’s

statement to police because it constituted a prior inconsistent statement, the

admissibility of which required Ms. Lopez’s availability for cross-examination.

Id. at 7-11.



____________________________________________


6Prior to the end of Appellant’s trial, Ms. Lopez became available to testify.
However, neither the Commonwealth nor Appellant called her as a witness.

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      Pa.R.E. 803.1 provides, in relevant part, as follows:

      Exceptions to the Rule Against Hearsay--Testimony of
      Declarant Cecessary

      The following statements are not excluded by the hearsay rule if
      the declarant testifies [at the trial or hearing] and is subject to
      cross-examination concerning the statement:

      (1)    Prior Inconsistent Statement of Declarant Witness. A
             prior statement by a declarant witness that is inconsistent
             with the declarant witness’s testimony, and (A) was given
             under oath subject to the penalty of perjury at a trial,
             hearing, or other proceeding, or in a deposition; or (B) is a
             writing signed and adopted by the declarant; or (C) is a
             verbatim contemporaneous recording of an oral statement.

Pa.R.E. 803.1(1). Rule 804 makes clear that testimony given by a witness at

a prior proceeding is admissible over a hearsay objection if the party against

whom the witness offers the testimony had an adequate opportunity to

develop the testimony by direct, cross, or redirect examination.             Rule

804(b)(1).

      Thus, a prior inconsistent statement used to impeach a witness at a

preliminary hearing is admissible at trial as substantive evidence “so long as

defendant “was specifically provided the opportunity at the preliminary

hearing to cross-examine [the witness].” Commonwealth v. Stays, 70 A.3d

1256, 1263-64 (Pa. 2013).

      In addressing Appellant’s claim, the PCRA court noted that Appellant

had a “full and fair opportunity to cross-examine Ms. Lopez” at Appellant’s




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preliminary hearing about her prior inconsistent statement to police identifying

Appellant as the shooter.7 PCRA Ct. Op., 11/7/18, at 7.

        Our review of the record confirms that Ms. Lopez testified at the

preliminary hearing, Appellant had a full and fair opportunity to cross-examine

her, and the court later determined she was legally unavailable to testify.

Accordingly, because the trial court properly admitted Ms. Lopez’s testimony

at trial, Appellant’s claim that the court should have precluded the admission

of this testimony lacks arguable merit. The PCRA court, thus, did not err in

denying Appellant’s ineffectiveness of counsel claim.

        In his second issue, Appellant claims the PCRA court erred in concluding

that his counsel was not ineffective for failing to call Dietra Gaines as an alibi

witness. Appellant’s Brief at 12. Appellant claims he was at the Six Flags

amusement park with Ms. Gaines at the time of the shooting, that he informed

his trial counsel prior to trial that Ms. Gaines would so testify, but that counsel

failed to contact Ms. Gaines or call her as an alibi witness. Id. at 14.

        In order to establish that trial counsel was ineffective for failing to

investigate and/or call a witness at trial, a PCRA petitioner must demonstrate

that:

____________________________________________


7 The PCRA court also aptly concluded that Appellant failed to satisfy the
prejudice prong of the ineffective assistance of counsel analysis because: (1)
“the record is replete with other evidence sufficient to convict [A]ppellant;”
and (2) Appellant declined to call Ms. Lopez to testify “to cure whatever
prejudice may have inured to [him]” by the introduction of his entire testimony
after she became available again prior to the conclusion of his trial. PCRA Ct.
Op., 11/7/18, at 7. The record likewise supports these conclusions.

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            (1) the witness existed; (2) the witness was available to
            testify for the defense; (3) [trial] counsel knew of, 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 testimony of the witness was so prejudicial as to have
            denied [the appellant] a fair trial.

Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted).

      In rejecting this claim, the PCRA court explained as follows:

      First, during trial, this [c]ourt conducted a colloquy of [A]ppellant
      asking him if he had any witnesses he wanted to present in his
      defense and he said he had none. He also did not identify this
      alleged witness during the colloquy as a person who could provide
      him an alibi[.] The law is clear that “a voluntary waiver of
      testimony bars a claim of ineffective assistance for failure to
      testify.” Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa.
      Super. 2000). In addition, a defendant who in a colloquy states
      that he knowingly, intelligently, and voluntarily waiv[es] his right
      to call witnesses cannot later state that he was coerced to do so
      by counsel. Id. (“A defendant who voluntarily waives the right
      to call witnesses during a colloquy cannot later claim ineffective
      assistance and purport that he was coerced by counsel.”).

      Second, this []court deemed this issue to lack merit because
      [A]ppellant failed to present any evidence to corroborate his bald
      claim that he was at an amusement park when the murder
      occurred.    He attached no receipts, photographs, or other
      evidence substantiating his claim that he could not have
      committed the murder because he was not in Philadelphia when it
      occurred.

PCRA Ct. Op. at 8-9 (citation to the notes of testimony omitted).

      In sum, the PCRA court dismissed Appellant’s claim because he

knowingly and intelligently waived the right to call Ms. Gaines as a witness

and did not present any evidence to corroborate his claim that she could

provide an alibi for him. Thus, the record supports the PCRA court’s conclusion

that Appelant’s claim that his counsel was ineffective for not calling Ms. Gaines



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as a witness lacks arguable merit. Appellant is not, therefore, entitled to relief

on this claim.

        In his final issue, Appellant avers that the PCRA court erred in denying

relief without holding a hearing on his claim of newly-discovered evidence of

Officer Cordero’s corruption. Appellant’s Brief at 15-17. In support of this

claim, Appellant alleged that Officer Cordero’s association with the DTO gang

is substantive evidence of Officer Cordero’s motive to implicate Appellant in

Lazo’s death. Id. at 15. He avers that Officer Cordero’s affiliation with the

DTO gang was unknown to him at the time of trial, and, that had he known of

Cordero’s affiliation, Appellant would have sought to impeach him and to

introduce Cordero’s acts as evidence of his motive to lie. Id. at 16. He asserts

that “in light of Officer Cordero’s willingness to interfere with the FBI’s

investigation into the DTO less than six (6) months after [Appellant’s] trial

and Officer Cordero’s connection to DTO’s leader [ , Appellant] would have

undoubtedly sought to introduce this evidence under Pa.R.E. 404(b)[.]” Id.

He claims that had he introduced this evidence at trial, the result of the

proceedings would have been different. Id. In support of this claim, Appellant

proffered a newspaper article to show that Officer Cordero was convicted in

2013 by a federal court of obstruction and lying to the FBI for tipping off his

half-brother8 about a heroin trafficking investigation.




____________________________________________


8   Officer Cordero’s half-brother was a member of the DTO gang.

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      Relevant     here,   the   PCRA   provides relief   for   a   petitioner   who

demonstrates his conviction or sentence resulted from “[t]he unavailability at

the time of trial of exculpatory evidence that has subsequently become

available and would have changed the outcome of the trial if it had been

introduced.”     42 Pa.C.S. § 9543(a)(2)(vi).    To establish a claim of newly

discovered evidence, a petitioner must prove that: “(1) the evidence has been

discovered after trial and it could not have been obtained at or prior to trial

through reasonable diligence; (2) the evidence is not cumulative; (3) it is not

being used solely to impeach credibility; and (4) it would likely compel a

different verdict.” Commonwealth v. Sepulveda, 144 A.3d 1270, 1276 n.14

(Pa. 2016) (citation omitted). Newly discovered evidence must be producible

and admissible in order to entitle a petitioner to relief. Commonwealth v.

Castro, 93 A.3d 818, 825 (Pa. 2014).

      There is no right to a PCRA hearing; a hearing is unnecessary where the

PCRA court can determine from the record that there are no genuine issues of

material fact.    Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008).

      In Castro, supra, our Supreme Court held that it was not sufficient to

rely upon a newspaper article to establish after-discovered evidence for use

in a post-sentence motion. The Court held that, while a newspaper “article

[may] contain[] allegations that suggest [exculpatory] evidence may exist, [

] allegations in the media, whether true or false, are no more evidence than

allegations in any other out-of-court situation.”         Id. at 825.      Although

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magazine and newspaper “articles can alert a party to the possible existence

of evidence, the party must do more than attach the article [to establish] the

evidence that will meet the [test for newly-discovered facts. . . . A petition]

must, at the very least, describe the evidence that will be presented at the

hearing.” Id. at 827. This Court has applied Castro to the newly discovered

fact exception to the PCRA. See Commonwealth v. Brown, 141 A.3d 491

(Pa. Super. 2016).

      Our review of the record indicates that, Appellant proffered a newspaper

article reporting on Officer Cordero’s 2013 convictions, but he did not offer

any additional evidence or signed certifications of any potential witnesses in

support of his claim that: (1) Appellant had been involved in drug trafficking;

(2) his primary competitor had been the rival gang DTO; (3) Officer Cordero’s

half-brother was a member of DTO; (4); and that, as a result, Officer Cordero

“had a specific motive to ensure that [Appellant] was convicted of murder and

taken off the streets.” Supplemental Amended PCRA Petition, 1/12/18, at ¶¶

26-29.

      In light of Appellant’s failure to proffer any evidence or identify any

witnesses that could establish a nexus between Officer Cordero’s 2013

convictions and Appellant’s own alleged drug dealing, the PCRA court properly

declined to grant Appellant an evidentiary hearing on his clam.           See

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (holding that the

denial of ineffective assistance of counsel claim is proper where the claim was




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“based on nothing more than speculation, devoid of any factual evidentiary

support”). Appellant is, therefore, not entitled to relief on this claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/19




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