J-S45016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARCELINO SANTIAGO

                            Appellant                 No. 564 EDA 2013


                Appeal from the PCRA Order of January 14, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0006429-2011


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                            FILED AUGUST 20, 2014



denying his petition for relief under the Post-

42 Pa.C.S. §§ 9541-46. We affirm.

       The PCRA court aptly set forth the facts and procedural history of this

case as follows:

       On April 5, 2011[,] at around 3:20 a.m., Philadelphia Police
       Officer Ken Fazio, along with his partner Officer Rabinovitch,
                                                                 e of
       [sic] 3000 Kensington Avenue, in Philadelphia, Pennsylvania.

       Fazio observed a black male lying on the ground with the
       [appellant], Marcelino Santiago on top of him. N.T. 2/15/2012,
       at 10. [Santiago] was holding this black male, Paris Riley, down
       with one hand and repeatedly thrusting a knife he held in his

____________________________________________


*
       Former Justice specially assigned to the Superior Court.
J-S45016-14


                                                           -10. At this
       time, Officers Fazio and Rabinovitch exited their vehicle and
       ordered [Santiago] to drop his knife. N.T. 2/15/2012, at 11.
       [Santiago] then looked in the direction of the [o]fficers and
       started to walk in the opposite direction. Id. The [o]fficers
       eventually forced [Santiago] to the ground and found the knife
       underneath [Santiago]. Id. Officer Fazio testified that the knife
       was about nine inches in length with a four[-]inch blade. Id.

       paperwork
       person. N.T. 2/15/2012, at 13. Mr. Riley suffered a cut to his
       finger but refused medical treatment. N.T. 2/15/2012, at 12.
       [Santiago] was arrested and charged with aggravated assault,[1]
       robbery,[2] theft by unlawful taking,[3] receiving stolen
       property,[4] possession of an instrument of crime,[5] simple
       assault,[6] and recklessly endangering another person.[7]

                                                       -2 (citations modified).

       On February 15, 2012, Santiago waived his right to a jury trial after an

on-the-record colloquy with the trial court. N.T., 2/15/2012, at 3-7. After a

brief bench trial, the trial court found Santiago guilty of all the charges filed

against him.      N.T., 2/15/2012, at 25.        On July 10, 2012, the trial court

sentenced Santiago to eighteen to thirty-
____________________________________________


1
       18 Pa.C.S. § 2702(a).
2
       18 Pa.C.S. § 3701(a)(1)(ii).
3
       18 Pa.C.S. § 3921(a).
4
       18 Pa.C.S. § 3925(a).
5
       18 Pa.C.S. § 907(a).
6
       18 Pa.C.S. § 2701(a).
7
       18 Pa.C.S. § 2705.



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J-S45016-14



aggravated assault conviction, and a concurrent eighteen to thirty-six

                                                                  , at 16-18. The



                                                   Id. at 19. Order of Sentence,

July 10, 2012.

       Santiago did not file any post-sentence motions, nor did he file a direct

appeal.     On August 30, 2012, Santiago filed a timely counseled PCRA

petition in which he asserted that his trial counsel, Joseph Kelly, was

ineffective for failing to inform Santiago of his right to testify at his own trial.

PCRA Petition, 8/30/2012, at ¶7 (unpaginated).           The PCRA court held a



PCRA Petition. N.T., 1/14/2013 at 5.

       On January 30, 2013, Santiago filed a timely notice of appeal.           On

March 12, 2013, Santiago filed a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).8 In his Rule 1925(b) statement,



                                                                      self-defense

claim and did not advise Santiago about his right to testify in court. Concise

Statement, 3/12/2013, at ¶1 (unpaginated).



____________________________________________


8
      It does not appear from the certified record that the PCRA court
specifically ordered a 1925(b) statement.



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J-S45016-14



        The PCRA court issued its Pa.R.A.P. 1925(a) opinion on November 15,

2013.    The PCRA court first stated that Santiago could not prove that his

counsel was ineffective because it was not unreasonable for counsel to

conclude that keeping Santiago off of the stand was an effective strategy.

P.C.O. at 4-5. Furthermore, the PCRA court stated that Santiago could not

prove ineff

events incredible, and because Santiago would not have been able to

establish a credible self-

testimony. P.C.O. at 5-6.

        Santiago raises the following issue for our review.

        Was trial counsel ineffective in failing to inform [Santiago] of his
        right to testify and allow [Santiago] to testify on his own behalf
        to assert a claim of self[-]defense?

Brief of Santiago at 4.

                                        neffective counsel claim, we note that

                                                                      -conviction



supported by the evidence of record and whether it is free of le

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) (citing

Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where,

as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has stated:

        [A] PCRA petitioner will be granted relief only when he proves,
        by a preponderance of the evidence, that his conviction or

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J-S45016-14



      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable


      constitutionally adequate, and counsel will only be deemed
      ineffective upon a sufficient showing by the petitioner. To obtain

      was deficient and that the deficiency prejudiced the petitioner. A

      there is a reasonable probability th
      unprofessional errors, the result of the proceeding would have

      posits that: (1) the underlying legal issue has arguable merit;
                                                reasonable basis; and

      omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

any particular order of priority; instead, if a claim fails under any necessary

element of the [ineffectiveness] test, the court may proceed to that element

       Commonwealth v. Lambert, 797 A.2d 232, 243 n.9 (Pa. 2001).



supported by the record, are binding upon this Court. Commonwealth v.

Johnson, 966 A.2d 523, 532 (Pa. 2009).

      After a review of the transcript of S

that Santiago has not met his burden of demonstrating that Attorney Kelly

was ineffective as his counsel. Santiago presently argues that Attorney Kelly

never informed Santiago of his right to testify, and that if he had, Santiago




                                     -5-
J-S45016-14



would have raised a self-defense claim.      In considering an ineffectiveness

claim based upon the decision to testify, our Supreme Court has stated:


      ultimately to be made by the defendant after full consultation
      with counsel.      Commonwealth v. Uderra, 706 A.2d 334
      (1998); Commonwealth v. Bazabe, 590 A.2d 1298 (Pa. Super.
      1991); Commonwealth v. Fowler, 523 A.2d 784 (Pa. Super.
      1987). In order to sustain a claim that counsel was ineffective
      for failing to advise the appellant of his rights in this regard, the
      appellant must demonstrate either that counsel interfered with
      his right to testify, or that counsel gave specific advice so
      unreasonable as to vitiate a knowing and intelligent decision to
      testify on his own behalf. Id.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (citations



                                                                              t to



other than what he had written in the motion for post-conviction relief. N.T.

1/14/2013, at 4.

      However, even if Santiago were to prove that Attorney Kelly never

discussed Sa

basis for not doing so, Santiago is not entitled to relief because we discover

no actual PCRA prejudice that befell Santiago in the event that he could

establish the first two prongs of the ineffective assistance of counsel test.

As previously noted, Santiago waived his right to a jury and appeared before

Judge Sean F. Kennedy for a bench trial. N.T., 2/15/2012, at 3-7. Judge

                                                                               nd


                                      -6-
J-S45016-14



his account of the facts. Although Santiago claimed that he would attempt

to establish a self-defense narrative if called to the stand, Judge Kennedy

stated in his opinion that he would not have credited this sequence of

events.   Judge Kennedy pointed to the fact that he found Officer Fazio



was inconsistent.      P.C.O. at 6.     Furthermore, Judge Kennedy noted

independent evidence that would tend to implicate Santiago, such as cuts on



                     Id.   Because Judge Kennedy would not have credited



suffered no prejudice. Because Santiago cannot satisfy this element of the

ineffective assistance of counsel claim, his petition fails. Lambert, 797 A.2d

at 243 n.9 (Pa. 2001).

     Order affirmed.

     Fitzgerald, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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