J-S78032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ERIC CRUZ                                 :
                                           :
                    Appellant              :   No. 556 EDA 2018

               Appeal from the PCRA Order January 23, 2018
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0003627-2012


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                     FILED JANUARY 28, 2019

      Appellant Eric Cruz appeals from the order of the Court of Common Pleas

of Chester County that dismissed his petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant raises three claims

of the ineffectiveness of trial counsel. After careful review, we affirm.

      This Court previously summarized the factual background of this case:

            This matter arises out of an incident that took place in the
      early morning hours of September 1, 2012, outside of the Star
      Social Club, on Market Street, in West Chester, Pennsylvania. A
      fight broke out as people were leaving the club sometime after
      3:00 a.m. During the course of that fight, the victim, Jareal Mills,
      was shot in the left forearm, thereby fracturing it. The break
      required an open reduction/internal fixation. The Star Social Club,
      described in testimony as an after-hours drinking establishment,
      had video surveillance inside. Federal drug enforcement agents
      had placed video surveillance on a nearby utility pole outside the
      club. This “pole camera” captured the fight and shooting from a
      distance of approximately 100 feet.



____________________________________
* Former Justice specially assigned to the Superior Court.
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            Detectives Louis DeShullo and John O’Hare both testified
     they knew [Appellant] from the community. Further, internal
     surveillance video taken from the Star Social Club revealed Cruz
     was in the club that night and that he left the club shortly before
     the shooting. Based upon their personal knowledge of [Appellant]
     and the video of [Appellant] inside the club, they testified they
     could identify [Appellant] as the assailant in the outside
     surveillance video. Based upon this, the police put together a
     photo array, containing a photograph of [Appellant]. This photo
     array was then shown to Mills, who stated that he could not
     identify the shooter from the lineup. A few days later, Mills
     returned to the police, telling them he could identify the shooter
     in the lineup, but had feared retaliation. He had told his mother
     about the incident and his mother had convinced him to return to
     the police. Mills looked at the photo lineup again and identified
     [Appellant] as the person who shot him. However, at trial, Mills
     disavowed his pre-trial identification of [Appellant], claiming he
     had been drinking excessively on the night in question, had likely
     smoked marijuana, and taken Xanax pills as well.

Commonwealth v. Cruz, 1127 EDA 2015, at *2-3 (Pa.Super. April 11, 2016)

(unpublished memorandum).

     On May 15, 2014, a jury convicted Appellant of Aggravated Assault,

Simple Assault, Recklessly Endangering Another Person, and Possessing an

Instrument of Crime.   On August 14, 2014, Appellant was convicted at a

separate bench trial of Persons Not to Possess a Firearm, and Firearms Not to

be Carried Without a License.   On January 7, 2015, Appellant received an

aggregate sentence of fifteen to thirty years’ imprisonment.      This Court

affirmed the judgment of sentence on April 11, 2016, and our Supreme Court

denied Appellant’s petition for allowance of appeal on August 30, 2016.

     On April 18, 2017, Appellant filed this PCRA petition. The PCRA court

appointed counsel, who subsequently filed a petition seeking permission to

withdraw and a no-merit brief pursuant to Commonwealth v. Turner, 518


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Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988). On December 7, 2017, the PCRA court issued notice of its

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.

On January 2, 2018, Appellant filed a pro se response. On January 23, 2018,

the PCRA court dismissed Appellant’s petition and permitted counsel to

withdraw. This timely pro se appeal followed.

       Appellant raises the following issues on appeal:

       I.     Whether trial counsel ineffectively failed to file a pretrial
              motion to suppress Appellant’s inculpatory statement,
              where Appellant gave a statement in a custodial setting to
              detectives without being advised of his Miranda rights?

       II.    Whether trial counsel ineffectively conceded to Appellant’s
              presence and involvement in the melee without consulting
              with Appellant thereby so undermining the truth
              determining process that no reliable adjudication of guilt or
              innocence could have taken place?

       III.   Whether trial counsel was ineffective for failing to object to
              the prosecutor’s prejudicial remark, where the prosecutor
              improperly stigmatized a class of people by negatively
              stereotyping urban people to live by a street code?

Appellant’s Brief, at 3. 1

       Our standard of review is as follows:

       When reviewing the denial of a PCRA petition, we must determine
       whether the PCRA court's order is supported by the record and
       free of legal error. Generally, we are bound by a PCRA court's
       credibility determinations. However, with regard to a court's legal
       conclusions, we apply a de novo standard.

____________________________________________


1 Appellant’s PCRA petition was timely filed within one year of the date the
judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b)(1).

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Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted). To be eligible for PCRA relief, the

petitioner must prove by a preponderance of the evidence that his conviction

or sentence resulted from one of the enumerated circumstances found in 42

Pa.C.S.A. § 9543(a)(2). One of these circumstances includes the “ineffective

assistance of counsel, which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      In reviewing a claim of the ineffectiveness of counsel, we are guided by

the following principles:

      It is well-established that counsel is presumed to have provided
      effective representation unless the PCRA petitioner pleads and
      proves all of the following: (1) the underlying legal claim is of
      arguable merit; (2) counsel's action or inaction lacked any
      objectively reasonable basis designed to effectuate his client's
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel's
      error. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d
      973, 975–76 (1987); Strickland v. Washington, 466 U.S. 668,
      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The PCRA court may
      deny an ineffectiveness claim if “the petitioner's evidence fails to
      meet a single one of these prongs.”           Commonwealth v.
      Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000)....
      Because courts must presume that counsel was effective, it is the
      petitioner's burden to prove otherwise. See Pierce, supra;
      Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039,
      1044 (1999).

Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018)

(quoting Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d

310, 321 (2007)).



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      Our courts have provided further explanation of our review of

ineffectiveness claims:

         Generally, counsel's assistance is deemed constitutionally
         effective if he chose a particular course of conduct that had
         some reasonable basis designed to effectuate his client's
         interests.    Where matters of strategy and tactics are
         concerned, a finding that a chosen strategy lacked a
         reasonable basis is not warranted unless it can be concluded
         that an alternative not chosen offered a potential for success
         substantially greater than the course actually pursued. To
         demonstrate prejudice, the petitioner must show that there
         is a reasonable probability that, but for counsel's
         unprofessional errors, the result of the proceedings would
         have been different.         A reasonable probability is a
         probability that is sufficient to undermine confidence in the
         outcome of the proceeding.

      Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super.
      2014) (internal brackets and some internal citations omitted).
      Moreover, “[a] court is not required to analyze the elements of an
      ineffectiveness claim in 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 first.”
      Commonwealth v. Tharp, 627 Pa. 673, 101 A.3d 736, 747
      (2014) (citation omitted).

Commonwealth v. Sarvey, ___A.3d___, 2018 PA Super 307 (Pa.Super.

Nov. 16, 2018).

      First, Appellant claims trial counsel was ineffective in failing to seek the

suppression of Appellant’s statement to police in which he conceded that he

was present at the scene of the crime and involved in the fight that occurred

before the shooting. Appellant argues that the police impermissibly obtained

this statement through custodial interrogation before providing Appellant with

his Miranda rights. Moreover, Appellant contends that, but for the admission


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of the statement, the Commonwealth would have been unable to prove

Appellant was present at the crime scene or involved in the fight.

      We agree with the PCRA court’s determination that this claim lacks

arguable merit. Our review of the record confirms the PCRA court’s finding

that Appellant provided no factual basis in his PCRA petition to support his

bald allegation that he was subjected to custodial interrogation without first

being given his Miranda rights. Appellant’s failure to properly plead facts to

demonstrate that his claim has arguable merit is a sufficient basis to deny this

particular claim.

      However, even assuming arguendo that Appellant was improperly

subjected to custodial interrogation, trial counsel had a reasonable basis for

refraining from filing a motion to suppress Appellant’s statement, which was

substantially exculpatory. As stated above, Appellant admitted to police that

he was involved in the fight that occurred before the shooting but averred that

he did not shoot the victim.    The admission of Appellant’s statement into

evidence would present the jury with Appellant’s assertion that he was not the

shooter without Appellant having to testify and be subject to cross-

examination. Commonwealth v. Goosby, 461 Pa. 229, 231–32, 336 A.2d

260, 261 (1975) (finding counsel had a reasonable basis to acquiesce to the

admission of the defendant’s statement in order to use its exculpatory content

to weaken the prosecution's case); Commonwealth v. Wright, 832 A.2d

1104, 1110 (Pa.Super. 2003) (finding counsel had a reasonable basis in not

moving to suppress the appellant’s statement when its admission would allow

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the jury to hear the appellant’s explanation for his conduct without having the

appellant testify and be subject to cross-examination). Thus, Appellant is not

entitled to appellate relief on this claim.

      Second, Appellant argues that trial counsel was ineffective in conceding

that Appellant was present at the scene of the crime and participated in the

fight that occurred before the shooting.       Based on the circumstances and

evidence presented in this case, we find this claim to be meritless.            The

prosecution obtained two surveillance videos that showed Appellant was

present at the crime scene at the time of the shooting.          In addition, the

prosecution could present the victim’s prior statement identifying Appellant as

the shooter as well as Appellant’s own statement admitting he was present at

the club when the shooting occurred.

      As a result, it was a reasonable strategy for trial counsel to concede that

Appellant   was   present   at   the   crime   scene   while   arguing   that   the

Commonwealth could not prove Appellant was the shooter. We agree with

the trial court’s observation that it would be difficult for trial counsel to argue

that Appellant was not present at the crime scene as counsel would need to

convince the jury to reject overwhelming evidence showing the contrary,

namely, the video evidence and the testimony of the detectives who identified

Appellant as one of the participants captured on the surveillance footage.

Further, our courts have held that it is reasonable strategy for counsel to

concede unfavorable facts or the defendant’s guilt of a lesser included offense

in an effort to defend against more serious charges. See Commonwealth v.

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DeHart, 539 Pa. 5, 18, 650 A.2d 38, 44 (1994) (finding it reasonable for

counsel to concede the appellant’s guilt with respect to the escape charge in

an effort to defend against the other more serious charges which could have

resulted in the imposition of a death sentence).

      Moreover, we also reject Appellant’s claim that trial counsel was

ineffective in failing to discuss with Appellant his strategy to concede

Appellant’s presence at the crime scene. The United States Supreme Court

has rejected the suggestion that counsel must discuss all strategic options

with a criminal defendant:

      An attorney undoubtedly has a duty to consult with the client
      regarding ‘‘important decisions,’’ including questions of
      overarching defense strategy. Strickland, 466 U.S., at 688, 104
      S.Ct. 2052. That obligation, however, does not require counsel to
      obtain the defendant's consent to “every tactical decision.”
      Taylor v. Illinois, 484 U.S. 400, 417–418, 108 S.Ct. 646, 98
      L.Ed.2d 798 (1988) (an attorney has authority to manage most
      aspects of the defense without obtaining his client's approval).

Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004).

      Our state appellate courts have reached the same conclusion:

            We do not hold that counsel's failure to discuss all strategic
      options with a defendant is per se ineffective assistance. “A
      decision by counsel not to take a particular action does not
      constitute ineffective assistance if that decision was reasonably
      based, and was not the result of sloth or ignorance of available
      alternatives.” Commonwealth v. Collins, 519 Pa. 58, 65, 545
      A.2d 882, 886 (1988). See also: Commonwealth v. Christy,
      511 Pa. 490, 501, 515 A.2d 832, 837 (1986), cert. denied, 481
      U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987);
      Commonwealth v. Twiggs, 460 Pa. 105, 110-111, 331 A.2d
      440, 443 (1975). “‘[S]trategic choices made after thorough
      investigation of law and facts relevant to plausible options are
      virtually unchallengeable, and strategic choices made after less

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      than complete investigation are reasonable precisely to the extent
      that reasonable professional judgments support the limitations on
      investigation.’” Commonwealth v. Lee, 401 Pa.Super. 591, 600-
      601, 585 A.2d 1084, 1089 (1991), quoting Strickland v.
      Washington, supra, 466 U.S. at 690-691, 104 S.Ct. at 2068, 80
      L.Ed.2d at 695. The relevant inquiry in cases such as this is
      whether counsel's failure to pursue a particular defense theory
      was reasonable. See: Commonwealth v. Blair, 491 Pa. 499,
      506, 421 A.2d 656, 660 (1980) (“The decision not to present a
      particular defense is a tactical one and will not be deemed
      ineffective stewardship if there is a reasonable basis for that
      position.”), e.g. Commonwealth v. Davenport, 494 Pa. 532,
      431 A.2d 982 (1981) (counsel's choice of self-defense theory over
      that of voluntary intoxication was reasonable); Commonwealth
      v. Garcia, 370 Pa.Super. 132, 535 A.2d 1186 (1988) (strategy
      seeking acquittal rather than one seeking verdict of manslaughter
      was effective assistance of counsel).

Commonwealth v. Carter, 597 A.2d 1156, 1162–63 (Pa.Super. 1991).

      In the instant case, the record belies Appellant’s allegation that he was

unaware trial counsel would concede to Appellant’s presence at the crime

scene. Appellant was present when the trial court reached its decision to deny

the suppression of the video surveillance evidence; thus, Appellant was aware

that the video footage placing him at the crime scene would be admitted into

evidence.   As noted above, trial counsel was limited in available defense

strategies as the prosecution had overwhelming evidence to place Appellant

at the crime scene. As a result, we agree with the PCRA court’s conclusion

that trial counsel’s decision to concede Appellant’s presence at the scene

constituted a reasonable tactical strategy that did not require approval by

Appellant. Accordingly, this ineffectiveness claim fails.

      Lastly, Appellant contends that trial counsel was ineffective in failing to

object to remarks made by the prosecutor in closing argument. This Court


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has applied the following principles to similar claims of prosecutorial

misconduct:

             A prosecutor is generally allowed to vigorously present and
      argue the case, as long as the comments are supported by
      evidence and contain inferences reasonably derived from that
      evidence. Commonwealth v. Kemp, 562 Pa. 154, 753 A.2d
      1278, 1281 (2000). “The focus of this Court's consideration of
      claims regarding prosecutorial misconduct is to determine
      whether the defendant was deprived of a fair trial and not whether
      the defendant was deprived of a perfect trial.” Id., at 1282 (citing
      Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221, 231
      (1995)); see also Commonwealth v. Holloway, 524 Pa. 342,
      572 A.2d 687 (1990). Thus, “prosecutorial misconduct does not
      occur unless the unavoidable effect of the comments at issue was
      to prejudice the jurors by forming in their minds a fixed bias and
      hostility toward the defendant, thus impeding their ability to weigh
      the evidence objectively and render a true verdict.”
      Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 316
      (2002).

Commonwealth v. Lawrence, 165 A.3d 34, 41–42 (Pa.Super. 2017)

(quoting Commonwealth v. Cuevas, 574 Pa. 409, 832 A.2d 388, 394

(2003)).

      Specifically, Appellant argues that the prosecutor improperly suggested

that the victim recanted his identification of Appellant as the shooter because

the victim feared retaliation and did not want to be labeled a snitch. Appellant

also contends that it was improper for the prosecutor to tell the jury that

individuals in an urban environment live by a street code that discourages

cooperation with crime investigations.

      Upon review of the record, we agree that the prosecutor’s comments

were supported by the evidence presented in this case.         After the victim



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identified Appellant in a photo array as the shooter, the victim told detectives

that he did not initially come forward due to fear of retaliation. The victim

again identified Appellant as the shooter at the October 4, 2012 preliminary

hearing. At trial, the victim admitted twice on the witness stand that he feared

retaliation for identifying his shooter. N.T. Trial, 5/13/14, at 143-44, 169. In

spite of these statements, the victim recanted this identification and claimed

at trial that he was too intoxicated during the incident to identify the shooter.

      In closing argument, the prosecutor attempted to explain the victim’s

reluctance to identify his shooter by highlighting the victim’s own admission

that he feared retaliation for his cooperation with police and providing a

context for this fear.   The prosecutor was properly allowed to explore the

reasons for the witness’s inconsistent statements as the prosecutor’s

explanation was a fair response to the defense’s attempt to attack the

reliability of the victim’s identification due to his alleged intoxication.   See

Commonwealth v. Moody, 654 A.2d 1120, 1124 (Pa.Super. 1995) (finding

that prosecutor’s attempt to explain the witnesses’ initial hesitance to testify

by referring to the element of fear was a fair response to the defense’s attack

on the witnesses’ credibility).

      Moreover, we agree with the PCRA court’s finding that Appellant has not

shown that the prosecutor’s statement “prejudice[d] the jurors by forming in

their minds a fixed bias and hostility toward the defendant, thus impeding

their ability to weigh the evidence objectively and render a true verdict.” See




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Lawrence, supra. Therefore, we find trial counsel was not ineffective for

failing to raise this allegation of prosecutorial misconduct.

      For the foregoing reasons, we affirm the order dismissing Appellant’s

PCRA petition.

      Order affirmed.

      Judge Lazarus joined the memorandum.

      Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/19




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