J-S36019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAIME OTERO

                            Appellant                 No. 2771 EDA 2013


               Appeal from the PCRA Order September 24, 2013
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0000290-2008


BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 06, 2014



                                                                                1



Specifically, Appellant argues that his trial counsel was ineffective for failing

to cross-

officer before calling the police following the assault for which Appellant was

convicted. After careful review, we affirm.

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

case as follows:


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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           On August 22, 2008, [Appellant] was convicted by a jury
     of Simple Assault, Terroristic Threats, Possession of a Controlled
     Substance, and Possession of Drug Paraphernalia. The charges
     stemmed from an incident which occurred between [Appellant]

     Springfield Township, where [Appellant] had been temporarily
     living with Complainant and her young son. [Appellant] and
     Complainant had an argument in the morning on November 29,
     2007, during which [Appellant] used a utility knife in a
     threatening manner towards Complainant, threatening to cut
     both her and her son. Complainant called 911 and reported

     advised the 911 dispatcher that he could be found in her home.

     [Appellant] answered the door and identified himself as Jaime
     Otero. Complainant subsequently gave police written consent to
     search her apartment and [Appellant] was placed in handcuffs
     for the safety of the officers.

           A search of the apartment yielded a blue utility knife; a set

     currency; two cell phones; a chilled and open can of beer; and a
     black 35mm plastic film container. [Appellant] confirmed all of
     the items were his with the exception of the film canister. Police
     opened the plastic film canister and discovered sixteen small
     individually wrapped packages which appeared to contain a
     controlled substance.    After laboratory examination, it was
     determined that the substance in the packages was .70 grams of
     heroin.

           On August 27, 2008, following his trial, [Appellant] was
     sentenced to 22-72 months incarceration by Judge Heckler. On
     September 4, 2008, trial counsel filed a Motion for Post-
     Sentence Relief on behalf of [Appellant], which was denied by
     this [c]ourt. On September 5, 2008, [Appellant] filed a pro se
     appeal to the Superior Court and Motion for New Counsel,
     without consulting trial counsel and without providing notice to
     them.

           On October 7, 2008, a Petition for the Appointment of

     Office. On October 16, 2008, this [c]ourt denied the Post-
     Sentence Motion as well as the Petition for Appointment of
     Private Counsel. On May 4, 2009, [Appellant] filed a Motion for
     Withdrawal of Appointed Counsel and to Proceed Pro Se and the

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      Superior Court ordered this [c]ourt to conduct a hearing on the
      matter.   A hearing was held wherein this [c]ourt found

      [Appellant] was permitted to proceed pro se.

            On June 30, 2009, [Appellant] filed a Motion for Setting
      Bail Pending Appeal with the Superior Court and subsequently,
      the Superior Court directed the Motion to be decided by this

      Motion for Bail in an Order dated September 15, 2009.
      [Appellant] appealed the denial of bail and the Superior Court
      ultimately affirmed this [c]ourt. On December 16, 2010, our

      Appeal.

             On November 14, 2011, [Appellant] filed a pro se PCRA
      petition. On December 14, 2011, this [c]ourt appointed Attorney
      Stuart Wilder to represent [Appellant]. On August 13, 2012, a

      PCRA petition. In an order dated November 8, 2012, this [c]ourt
      denied [Appellant] relief under the PCRA. Petitioner did not
      appeal.

             On August 27, 2013, [Appellant] filed his Second PCRA
      Petition. On September 26, 2013, this [c]ourt entered an Order
      permitting [Appellant] to file an appeal of the denial of his first
      PCRA Petition nunc pro tunc.         On September 30, 2013,
      [Appellant] filed this Notice of Appeal. On October 17, 2013,
      [Appellant] filed a Concise Statement of Matters Complained of
      on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure
      1925(b).




at 1-4 (internal record citations and footnotes omitted).

      Appellant raises the following question for our review:

      Did counsel, who failed to present impeachment evidence by

      parole officer before she called the police, provide ineffective
      assistance in violation of the Sixth Amendment to the United
      States Constitution and Article 1, Section 9 of the Pennsylvania
      Constitution?


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       In reviewing an order denying PCRA relief, our well-settled standard of



supported by the evidence of record and is free of legal error. The PCRA

                                                 nless there is no support for the

                                        Commonwealth v. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

       This Court follows the Pierce2 test adopted by our Supreme Court to

review PCRA claims of ineffective assistance of counsel:


       PCRA petition, he must prove by a preponderance of the
       evidence that his conviction or sentence resulted from 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. We have interpreted this provision in the PCRA to
       mean that the petitioner must show: (1) that his claim of

       reasonable strategic basis for his action or inaction; and (3) that
       the error of counsel prejudiced the petitioner-i.e., that there is a
       reasonable probability that, but for the error of counsel, the
       outcome of the proceeding would have been different. We
       presume that counsel is effective, and it is the burden of
       Appellant to show otherwise.

Commonwealth v. duPont, 860 A.2d 525, 531 (Pa.Super.2004) (internal

citations and quotations omitted).             The petitioner bears the burden of

proving all three prongs of this test.         Commonwealth v. Meadows, 787
____________________________________________


2
    Commonwealth v. Pierce, 527 A.2d 973 (Pa.1987).



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A.2d 312, 319-

preponderance of the evidence any of the Pierce prongs, the Court need not

                                               Commonwealth v. Fitzgerald,

979 A.2d 908, 911 (Pa.2010) (citation omitted).

                                                               -examination     of

witnesses are matt

Commonwealth v. Smith



deemed constitutionally effective if he chose a particular course that had



Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa.2010) (citation

omitted).

where he or she has a reasonable ba

Commonwealth v. Spotz, 896 A.2d 1191, 1235 (Pa.2006)              Moreover, the

mere fact that this trial strategy ultimately proved unsuccessful does not

                               Id.

chosen by counsel had some reasonable basis, our inquiry ceases and

                                                Commonwealth v. Paolello,

665 A.2d 439, 454 (Pa.1995).

      Appellant argues that trial counsel provided ineffective assistance by

failing   to   cross-examine    the   complainant   about   whether   she   called




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which Appellant was convicted. See                             -14. This claim

lacks merit.

      At the PCRA hearing, trial counsel explained his tactical decision to



            There was an issue that Mr. Otero was currently on state
      probation and parole. Although Mr. Otero says DUI is not a big
      offense, I look at DUI differently.

      But most people drive on the road and see[] some idiot who run

      And I thought why should I l
      criminal record. All we had to do was admit to the crimen falsi,
      which is lying to the police officer.


      Otero, you did this back in 2003, right? That was a long time
      ago. Yes. You pled guilty because you were guilty, right? Yeah.
      You paid the full price for that.




                                      ...

               So whether [the complainant] called state parole first


      jury think, gee, look, she was just trying to call the PO not to get
      him in real trouble with the police. And you enhance her
      credibility.


      decision not to put into fact [sic] he was on state parole. So I

      he even open


      alone.

                                      ...



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      state p


                                                                 edibility
      one iota after we lost bringing [another witness] in to talk about
      her bias, prejudice and motive for making the story up.

N.T. 8/13/2012, pp. 37-39.

      The PCRA court summarized this testimony as follows:

                                              PCRA hearing. He stated
      that he made a strategic decision not to question Complainant
      on this issue because he did not want the jury to be prejudiced
      by the knowledge that [Appellant] was on parole at the time of
      the incident. [Trial counsel] took a number of other steps prior
      to and during the trial to ensure the jury would not be aware of



1925(a) Opinion, p. 5; see also N.T. 8/13/2012, pp. 37-39. The PCRA court

then concluded:

      This is a legitimate trial tactic with a reasonable basis and
      therefore cannot be grounds to render counsel ineffective.
      Further, given the likelihood this information would have
      prejudiced the jury, [Appellant] has no basis for arguing the
      outcome of his case would have been different.

Id. at 5-6.

      We

the record and free of legal error. Accordingly, we affirm.

      Order affirmed.




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J-S36019-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2014




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