J. S52004/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
OSCAR ALVARADO,                        :          No. 963 EDA 2015
                                       :
                       Appellant       :


                Appeal from the PCRA Order, March 13, 2015,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0001284-2009


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 18, 2016

     Oscar Alvarado appeals, pro se, from the order entered in the Court of

Common Pleas of Philadelphia County that dismissed his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”). We affirm.

     The PCRA court set forth the following factual history:

                 At approximately 4:20 p.m. on October 21,
           2008, Marta Martinez (decedent) was fatally shot by
           [appellant] at Fairhill Square Park, located at the
           intersection of Lawrence Street and Lehigh Avenue in
           Philadelphia.

                  At approximately 3:00 p.m. that same day,
           [appellant] and his cousin, co-defendant Cynthia
           Alvarado (Cynthia), had purchased Xanax pills from
           a person in Fairhill Park, which was well-known for
           the     illegal sale   of   prescription   medication
           pills.[Footnote 9] While [appellant] purchased the
           pills in the park, Cynthia waited across the street in


* Retired Senior Judge assigned to the Superior Court.
J. S52004/16


          her car, a red Honda Civic. While waiting, Cynthia
          encountered      a    childhood   friend,    Maiced
          Beltran.[Footnote 10] Cynthia offered Ms. Beltran a
          ride, which she accepted. When [appellant] returned
          from purchasing the drugs, each person ingested
          multiple Xanax pills.

                [Footnote 9] The identity of this person
                is unknown.

                [Footnote 10] Ms. Beltran testified for
                the Commonwealth to many of the facts
                contained herein.

                 The trio spent an hour travelling to various
          locations, with Cynthia driving, [appellant] sitting in
          the passenger seat, and Ms. Beltran and Cynthia’s
          one-year old daughter sitting in the back seat. At
          some point during this hour, [appellant] pulled a gun
          out from underneath his seat and showed it to
          Ms. Beltran and Cynthia.            At approximately
          4:00 p.m., the trio returned to the park to purchase
          more Xanax pills. Cynthia parked the car near the
          intersection of 4th and Lawrence Streets.         Upon
          arriving, Ms. Beltran suggested to [appellant] that he
          try to “get a play,” meaning that he should try and
          get extra pills in addition to the amount for which he
          was paying. [Appellant] began to walk away from
          the car and into the park to make the purchase, but
          Cynthia called him back and stated, “Cuz, you know,
          you know what to do. You know, if they don’t give
          you a play, just pull that shit out.” Ms. Beltran
          understood this to mean that Cynthia was suggesting
          to [appellant] that he should use his gun to get the
          extra pills. Ms. Beltran got upset with Cynthia for
          making this statement and began to yell at her.
          [Appellant] then left the vehicle and walked into the
          park.     The decedent, a homeless woman, was
          standing near the parked vehicle.

                [Appellant] approached a male drug dealer in
          the park,[Footnote 11] pulled the gun out of his
          waistband, stuck it into the drug dealer’s midsection,
          and took a bottle of Xanax pills that the drug dealer


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          was holding in his hand. [Appellant] then turned
          around and began walking back to the vehicle. The
          drug dealer began yelling, “He robbed me!” and the
          other people in the park, including the victim, joined
          in.    Some people started following [appellant].
          [Appellant] ran towards the car and got back into the
          passenger seat of the vehicle.          The decedent
          approached the vehicle and attempted to look inside
          the driver’s side window. [Appellant] reached across
          the driver’s seat and shot the victim through the
          partially open driver’s side window. [Appellant] then
          opened the passenger door, reached over the hood
          of the car, and fired two to three more shots into the
          park area.[Footnote 12]         [Appellant] then told
          Cynthia to drive away, and she obliged, leaving the
          area of the park.

                [Footnote 11] The identity of the drug
                dealer is unknown.

                [Footnote 12] Eyewitness accounts differ
                as to how [appellant] shot the gun after
                the initial shot through the open window.
                One eyewitness, Edwin Schermety,
                stated that [appellant] did not reach over
                the hood but continued to shoot through
                the window. In her police statement,
                Cynthia stated that [appellant] walked to
                the back of the car and fired the shots
                from that location.

                 As the trio left the park, they ingested more
          Xanax pills from the bottle that [appellant] had just
          taken from the drug dealer. The group then drove to
          various locations, including Cynthia’s father’s house,
          where they traded the Honda Civic for her father’s
          red Dodge pickup truck, and dropped off Cynthia’s
          child.   After leaving the house, the group also
          purchased a vial of the drug angel dust.[Footnote
          13] The group then drove to Cynthia’s apartment,
          located at 106 West Thompson Street, where they
          stayed until their arrest at approximately 8:00 p.m.
          that evening. The police, having received a license
          plate number for the red Honda Civic and descriptive


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            information of [appellant] and Cynthia, were able to
            eventually locate them both the same day. As the
            police arrived at Cynthia’s residence to arrest them,
            [appellant] went to the apartment of Erica Martinez,
            a neighbor who lived in that same building, and
            banged on her apartment door. When Ms. Martinez
            opened the door, [appellant] stated, “I need to hide
            in your apartment.”      Ms. Martinez refused, and
            [appellant] was arrested at that time.

                 [Footnote 13] Ms. Beltran testified that
                 she smoked the angel dust, but did not
                 see either [appellant] or Cynthia do so.

PCRA court opinion, 9/16/15 at 2-4 (citations to the notes of testimony

omitted).

     The PCRA court also set forth the following procedural history:

                   On July 15, 2010, following           a jury
            trial[Footnote 1] before this Court, [appellant] was
            found guilty of murder of the second degree (H-2),
            robbery (F-1), and carrying a firearm without a
            license (F-3).[Footnote 2] That same day, after the
            jury returned its verdict, [appellant] pled guilty to
            the charge of persons not to possess firearms
            (F-2).[Footnote 3] Sentencing was deferred until
            August 3, 2010, at which time [appellant] was
            sentenced to the mandatory term[Footnote 4] of life
            in prison.[Footnote 5]

                 [Footnote 1] At trial, [appellant] was
                 represented by Marit Anderson, Esquire
                 and Andrea Konow, Esquire of the
                 Defender Association of Philadelphia.

                 [Footnote 2] 18 Pa.C.S.[A.] §§ 2502(b),
                 3701(a)(1)(i),      and      6106(a)(1),
                 respectively. [Appellant] was found not
                 guilty     of    criminal    conspiracy,
                 18 Pa.C.S.[A.] § 903. [Appellant] was
                 tried      with     a      co-defendant,
                 Cynthia Alvarado, who was also found


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               guilty of murder of the second degree
               (H-2) and robbery (F-1).

               [Footnote      3]      18     Pa.C.S.[A.]
               § 6105(a)(1).     On August 3, 2010,
               [appellant] consolidated three open
               cases and pled guilty to the following
               charges:     escape (F-3) (CP-51-CR-
               0001865-2010), aggravated assault by a
               prisoner   (F-3)     (CP-51-CR-0005962-
               2010), and robbery (F-1), criminal
               conspiracy    (F-1),    and   possessing
               instruments of crime (PIC) (F-1) (CP-51-
               CR-0004737-2009).

               [Footnote 4] 18 Pa.C.S.[A.] § 1102(a).

               [Footnote 5] The robbery charge merged
               with the charge of second degree murder
               for sentencing purposes.       As to the
               charge of carrying a firearm without a
               license, [appellant] was sentenced to a
               concurrent term of not less than 3 ½ nor
               more than 7 years [of] imprisonment.
               As to the charge of persons not to
               possess firearms, to which [appellant]
               pleaded     guilty,    [appellant]    was
               sentenced to a concurrent term of not
               less than five nor more than ten years
               [of] imprisonment. As to the charge of
               robbery, for which [appellant] had pled
               guilty, [appellant] was sentenced to a
               consecutive term of not less than 8 nor
               more than 20 years [of] imprisonment.
               As to the charge of criminal conspiracy,
               to    which   [appellant]   pled   guilty,
               [appellant]    was    sentenced    to    a
               concurrent term of not less than 7 nor
               more than 20 years [of] imprisonment.
               As to the charge of PIC, to which
               [appellant] pled guilty, [appellant] was
               sentenced to a concurrent term of not
               less than 1 nor more than five years [of]
               imprisonment.      As to the charge of


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               escape, to which [appellant] pled guilty,
               [appellant]   was    sentenced    to    a
               concurrent term of not less than 2 ½ nor
               more than five years [of] imprisonment.
               As to the charge of aggravated
               harassment by prisoner, to which
               [appellant] pled guilty, [appellant] was
               sentenced to a concurrent term of not
               less than 2 ½ nor more than five years
               [of] imprisonment.

               Petitioner filed a timely notice of appeal on
          August 16, 2010. On March 20, 2012, the Superior
          Court affirmed [appellant’s] judgment of sentence,
          and on January 30, 2013, our Supreme Court denied
          [appellant’s]    petition    for    allowance   of
          appeal.[Footnote 6]

               [Footnote   6]   Commonwealth        v.
               Alvarado, No. 2366 EDA 2010, slip op.
               (Pa.Super.,    March      20,     2012)
               (memorandum      opinion),    allocatur
               denied 185 EAL 2012 (Pa., Jan. 30,
               2013).

                 On February 28, 2013, [appellant] filed a
          timely pro se PCRA petition.            Counsel was
          appointed[Footnote 7] and, on October 11, 2014,
          filed a Finley “no merit” letter and motion to
          withdraw as counsel.[Footnote 8] On February 5,
          2015, having reviewed the pleadings and conducted
          an independent review, this Court sent [appellant]
          notice of its intent to dismiss his claims without a
          hearing pursuant to Pa.R.Crim.P. 907 (907 Notice).
          Consistent with the 907 Notice, [appellant’s] PCRA
          petition was dismissed on March 13, 2015. This
          timely appeal followed.

               [Footnote 7] Janis Smarro, Esquire, was
               appointed to represent [appellant] on
               collateral attack.

               [Footnote 8] Commonwealth v. Finley,
               550 A.2d 213 (Pa.Super. 1988).


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Id. at 1-2.

      Appellant raises the following issues for our review:

              1.   Whether the PCRA court erred by dismissing
                   [appellant’s] PCRA petition alleging ineffective
                   assistance of counsel and [c]onfrontation right
                   violations, where [appellant’s] [c]onfrontation
                   rights were violated when having denied a
                   motion      to   sever    co-defendant      Cynthia
                   Alvarado’s trial from [appellant’s] trial, the trial
                   court      admitted     the     statements     that
                   non-testifying co-defendant Cynthia Alvarado
                   had given to police and the prosecutor’s
                   opening statements undid the redaction.
                   [Appellant’s] 6th Amendment right to effective
                   assistance of counsel was violated, where trial
                   counsel failed to object to the [c]onfrontation
                   violations.      [Appellant’s] rule-based and
                   Article I, Sec. 9 rights to effective assistance of
                   counsel were violated, where PCRA counsel
                   filed a no-merit letter despite existence of
                   these meritful [sic] claims.

              2.   Whether the PCRA court erred by dismissing
                   [appellant’s] PCRA petition alleging ineffective
                   assistance of counsel based on counsel’s failure
                   to interview Marvin Kennedy and eyewitness
                   Mark Vandegrift (who witnessed the incident,
                   and identified [and] spoke to the “robbery
                   victim” drug dealer “Albert”), and for failing to
                   subsequently call them to testify at trial.

Appellant’s brief at 4.

      We limit our review of a PCRA court’s decision to examining whether

the record supports the PCRA court’s findings of fact and whether its

conclusions of law are free from legal error.       Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s



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findings and the evidence of record in a light most favorable to the prevailing

party. Id.

      To be entitled to PCRA relief, the defendant bears the burden of

establishing, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “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)(i)

and (ii); see also Mason, 130 A.3d at 618 (citations omitted).

      Here, appellant’s claims assert that his trial and PCRA counsel provided

ineffective assistance.

             Counsel is presumed effective, and in order to
             overcome that presumption a PCRA petitioner must
             plead and prove that: (1) the legal claim underlying
             the ineffectiveness claim has arguable merit;
             (2) counsel’s action or        inaction   lacked any
             reasonable basis designed to effectuate petitioner’s
             interest; and (3) counsel’s action or inaction resulted
             in prejudice to petitioner. With regard to reasonable
             basis, the PCRA court ‘does not question whether
             there were other more logical courses of action
             which counsel could have pursued; rather, [the
             court] must examine whether counsel’s decisions
             had any reasonable basis.          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, a petitioner
             must show that there is a reasonable probability
             that, but for counsel’s actions or inactions, the result
             of the proceeding would have been different. Failure


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             to establish any prong of the [] test will defeat an
             ineffectiveness claim.

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

      Appellant first contends that PCRA counsel was ineffective in failing to

challenge    the    effectiveness    of   trial   counsel   because     trial   counsel,

Attorneys Marit Anderson and Andrea Konow, (1) failed to move to sever

appellant’s trial from that of his co-defendant, Cynthia Alvarado; (2) failed to

object when the Commonwealth read Ms. Alvarado’s redacted statement to

the jury because the redaction failed to comply with Bruton v. United

States,     391    U.S.   123   (1968);     and    (3)   failed   to   object   to   the

Commonwealth’s opening statement because it referred to appellant by

either his name or “defendant” 28 times and this somehow negated the

redaction in violation of Bruton.

      Our review of the record reveals that on February 5, 2015, the PCRA

court filed its notice of intent to dismiss appellant’s PCRA petition pursuant

to Pa.R.Crim.P. 907 (Rule 907 Notice).              Appellant then filed a timely

response to the PCRA court’s Rule 907 Notice. In that response, however,

appellant    did    not   allege    ineffective    assistance     of   PCRA     counsel.

Consequently, appellant’s failure to raise his claims of ineffectiveness of

PCRA counsel in his response to the Rule 907 Notice results in waiver of

those claims on appeal. See Commonwealth v. Ford, 44 A.3d 1190, 1198




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(Pa.Super. 2012) (finding that “when counsel files a Turner/Finley[1]

no-merit letter to the PCRA court, a petitioner must allege any claims of

ineffectiveness of PCRA counsel in a response to the court’s notice of intent

to dismiss.”); see also Commonwealth v. Pitts, 981 A.2d 875, 880 n.4

(Pa. 2009).

       With respect to appellant’s underlying claims on his first issue on

appeal, appellant first alleges that trial counsel were ineffective for failing to

move    to    sever   appellant’s   trial    from   that   of   his   co-defendant,

Cynthia Alvarado.     Appellant then further alleges ineffectiveness for trial

counsel’s failure to object to two Bruton violations.

       With respect to the motion to sever, the record belies appellant’s

contention that trial counsel failed to move for severance.             The record

reflects that trial counsel filed a motion to sever on August 18, 2009. The

record further reflects that Attorney Anderson again objected to a joint trial

at a pre-trial hearing when she stated, “We continue our vociferous objection

to the cases being tried together.”         (Notes of testimony, 7/21/10 at 77.)

Additionally, defense counsel renewed the motion immediately prior to jury

selection, and the trial court denied the motion. (Notes of testimony, 7/8/10

at 131-132, 144.) Therefore, this claim lacks arguable merit.




1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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      With    respect     to   appellant’s   underlying    claim    of   trial   counsel’s

ineffectiveness for failing to object to appellant’s claimed Bruton violations,

the record reflects that although appellant included this claim in his

Pa.R.A.P. 1925(b) statement, he failed to preserve this issue in his PCRA

petition and did not raise it in his response to the PCRA court’s Rule 907

Notice.      Therefore,    appellant    waives    this    issue    on    appeal.     See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). See also Commonwealth

v. Smith, 121 A.3d 1049, 1055 (Pa.Super. 2015) (recognizing that a PCRA

petitioner is unable to raise his claims for the first time in his Rule 1925(b)

statement).

      Appellant finally claims that trial counsel were ineffective for failing to

interview Marvin Kennedy and Mark Vandegrift and for failing to call them as

defense witnesses.

      When the trial court conducts a colloquy with the defendant that

demonstrates that the defendant knowingly, voluntarily, and intelligently

decided against calling defense witnesses, a subsequent claim that counsel

was ineffective for failing to call such witnesses lacks arguable merit. See

Commonwealth v. Pander, 100 A.3d 626, 642-643 (Pa.Super. 2014); see

also Commonwealth v. Rios, 920 A.2d 790, 802-803 (Pa. 2007)

(concluding that a claim of ineffective assistance of counsel in failing to call

alibi witnesses lacked arguable merit where the trial court conducted a



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colloquy of defendant regarding whether he agreed with the decision not to

call witnesses); Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002)

(finding that because defendant “expressed the view that the decision not to

call alibi witnesses was his as well as trial counsel’s, and his decision has not

been shown to have been unknowingly, involuntarily, or unintelligently

made, this allegation of ineffectiveness lacks merit.”).

      Here, the following colloquy took place:

            THE COURT: . . . . So have either of you taken any
            drugs, alcohol, or medication in the last 12 hours?

            ....

            [APPELLANT]: No.

            ....

            THE COURT: . . . . Do you each read, write, and
            understand the English language?

            ....

            [APPELLANT]: Yes.

            THE COURT: Have you ever been diagnosed with a
            mental illness?

            ....

            [APPELLANT]: No.

            ....

            THE COURT: . . . . Now, were there any witnesses
            that either of you wanted to call or anything that you
            discussed with your attorney that is not going to
            happen?      Because we’re about to finish this
            afternoon and so if there’s nobody coming to testify


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           and you thought there was, this is the moment to
           tell me.

           ....

           [APPELLANT]: Nobody.

           ....

           THE COURT: And do you each understand that you
           are bound by -- which means stuck with -- the
           answers that you’re giving me here under oath in
           open court?

           ....

           [APPELLANT]: Yes.

           THE COURT: So you can’t come back later and say,
           well, I really did have witnesses, but I answered this
           way because my lawyer said if we delayed anything,
           you’d get mad.

                 Believe it or not, people actually say these
           things after the fact.

                If you have anything to say, this is the
           moment to say it and you can’t later blame your
           lawyer for telling you. You’re under oath, and this is
           when you’re answering me.

                  Do you understand that?

           ....

           [APPELLANT]: Yeah, I understand.

Notes of testimony, 7/13/10 at 159-165.

     Based on this colloquy, appellant’s claim that trial counsel were

ineffective for failing to interview and call Mr. Kennedy and Mr. Vandegrift

lacks arguable merit.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2016




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