J-S57026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

EUGENIO JOVEL TORRES

                            Appellant                     No. 150 EDA 2015


                Appeal from the PCRA Order December 19, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003002-2008


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                 FILED OCTOBER 21, 2015

       Eugenio Jovel Torres appeals, pro se,1 from the order entered

December 19, 2014, in the Court of Common Pleas of Northampton County,

denying him relief on his petition filed pursuant to the Post Conviction Relief

Act, 42 Pa.C.S. § 9541 et seq.           In this timely appeal, Torres raises three

issues. He claims the PCRA court erred in determining trial counsel was not

ineffective for preventing Torres from testifying at trial, and for failing to

object to crime scene photographs as being inflammatory and prejudicial.

Additionally, Torres argues PCRA counsel was ineffective for failing to seek

relief on the basis of recanted testimony of Commonwealth trial witness,
____________________________________________


1
  Torres’ appointed counsel filed a Turner/Finley no merit letter with the
PCRA court and was permitted to withdraw from representation.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S57026-15



Damion Moses. After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

      Briefly, Torres was convicted of first-degree murder in the beating

death of his girlfriend’s three-year old son. The evidence at trial showed the

child suffered more than 90 injuries including a fractured skull, which led to

cerebral edema and a lacerated liver which in turn caused to severe internal

bleeding, both of which were contributing causes of death.      The child also

had second-degree burns on his buttocks. The burn pattern suggested hot

water had been thrown onto the child while he was wearing his underwear.

Blistering occurred where cloth would have covered the child, but stopped

where the elastic band would have repelled the water. Wet underwear was

found at the scene that supported this theory of how the child was scalded.

Blood spots were located throughout the apartment.       A white adult’s belt,

paper towel, a child’s sock were also found in the apartment, all of which

were blood stained.

      Torres claimed he had no idea how the child was burned, but admitted

the two had been taking a shower/bath, and the bath water sometimes

became uncontrollably hot. Torres claimed the child had inhaled some water

while in the bath and stopped breathing. As he tried to lift the child from the

tub, he dropped him, causing the child to hit his abdomen on the toilet and

his head on the floor. He then called 9-1-1 and tried to follow the directions




                                     -2-
J-S57026-15



for administering CPR, but might have injured the child more.2 Despite his

claim regarding being in the tub with the child, there was no water on the

bathroom floor, nor any water on the living room floor where Torres claimed

to have immediately taken the child to perform CPR. Paramedics and police

testified that neither Torres nor the child was wet.

       Finally, Damion Moses testified he saw Torres hit the child the morning

of the child’s death and that Torres told him the child was getting on his

nerves.

       After his conviction, Torres filed a direct appeal, raising 17 issues. He

was denied relief in a comprehensive 65-page, unpublished decision,

Commonwealth v. Torres, 68 A.3d 353 (Pa. Super. 2013) (unpublished

memorandum), appeal denied, 79 A.3d 1098 (2013) (table).               After our

Supreme Court denied allowance of appeal, Torres filed this, timely PCRA

petition, which was denied following a hearing. As noted, after the hearing,

appointed counsel, Alexander J. Karam, Esq., filed a Turner/Finley no-merit

letter and was allowed to withdraw as counsel.          Torres filed this timely

appeal.

       Our standard of review for the denial of PCRA relief is well-settled.


____________________________________________


2
  Torres’ version of the events is taken from his recorded statement to the
police. See Commonwealth Exhibit SC-1(A) (transcript of July 8, 2008 oral
statement). He gave different versions to the child’s mother, the
paramedics, and the first police officers on the scene.




                                           -3-
J-S57026-15


       Our standard of review for an order denying post-conviction
       relief is whether the record supports the PCRA court's
       determination and whether the PCRA court’s determination is
       free of legal error. The PCRA court's findings will not be
       disturbed unless there is no support for the findings in the
       certified record.

Commonwealth v. Perzel, 116 A.3d 670, 671 (Pa. Super. 2015).

       Further, in reviewing a claim of ineffective assistance of counsel, we

are reminded:

       [C]ounsel is presumed effective, and to rebut that presumption,
       the PCRA petitioner must demonstrate that counsel’s
       performance was deficient and that such deficiency prejudiced
       him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
       80 L.Ed.2d 674 (1984). This Court has described the Strickland
       standard as tripartite by dividing the performance element into
       two distinct components. Commonwealth v. Pierce, 515 Pa.
       153, 527 A.2d 973, 975 (1987). Accordingly, to prove [plea]
       counsel ineffective, the petitioner must demonstrate that: (1)
       the underlying legal issue has arguable merit; (2) counsel's
       actions lacked an objective reasonable basis; and (3) the
       petitioner was prejudiced by counsel’s act or omission. Id. A
       claim of ineffectiveness will be denied if the petitioner’s evidence
       fails to satisfy any one of these prongs.

Id. at 671-72.

       Torres’ first issue is a claim the PCRA court erred in failing to find trial

counsel was ineffective for not permitting Torres to testify on his own behalf

at trial.   Our review of the certified record demonstrates the PCRA court’s

determination denying Torres relief is based upon the record and is free of

legal error. We base our ruling on the analysis provided by the PCRA court

in its Pa.R.A.P. 1925(a) opinion of 4/22/2015 at pages 5-7.                    Our

independent review of the certified record confirms that counsel had valid

reasons for encouraging Torres not to take the stand – specifically cross-

                                       -4-
J-S57026-15



examination of Torres would have exposed and highlighted the many

versions of Torres’ story. Because Torres’ medical expert based his opinion

on the last version Torres provided to the police, highlighting other versions

would have cast serious doubt over the expert’s conclusions. Moreover, the

trial colloquy revealed that while Torres wanted to testify, he nonetheless

chose to follow counsel’s advice. Counsel did not force or threaten him into

giving up his right to testify. Accordingly, the certified record belies Torres’

underlying thesis that counsel did not permit him to testify. Torres is not

entitled to relief on this issue.

      Torres’ second issue is a claim the PCRA court erred in failing to find

trial counsel was ineffective for failing to challenge the admission of certain

crime scene photos as being improperly inflammatory.          First, it is unclear

what photographs Torres is complaining were prejudicial.       Torres’ argument

is titled as: “Was trial counsel ineffective for failing to move for suppression

of prejudicial crime scene photographs?” See Appellant’s Brief at 16. The

PCRA court interpreted this to reference the photographs taken by

Investigator Crouse of the apartment prior to the issuance of a search

warrant.    Testimony by trial counsel at the August 1, 2014, PCRA hearing

addressed     Crouse’s    photographs.     However,     the    certified   record

demonstrates counsel did, in fact, challenge the introduction of those

photographs.     See Defendant’s Brief in Support of its Omnibus Pretrial




                                     -5-
J-S57026-15



Motions for Relief, 4/5/2010, at 16-19.          Accordingly, counsel cannot have

been ineffective for failing to file a motion that was, in fact, filed. 3

       However, in his appellate brief, Torres does not refer to the Crouse

crime scene photographs that were the subject of testimony at the PCRA

hearing. Rather, Torres refers to “three particularly graphic photographs of

the victim in this case.”        Appellant’s Brief at 16.   Because the failure to

suppress these photographs was not raised before the PCRA court, this issue

has been waived.4         Moreover, the issue of the three photographs was

already litigated in Torres’ direct appeal. See Commonwealth v. Torres,

68 A.3d 353 (Pa. Super. 2013) (unpublished memorandum) at *60-63.5

Accordingly, Torres is not entitled to relief on this issue.

       In his final argument, Torres claims PCRA counsel was ineffective for

failing to seek relief regarding the alleged recantation of testimony by

Commonwealth witness Damion Moses.6              Our review finds no error in the

PCRA court’s denial of this claim.
____________________________________________


3
   We have reviewed the crime scene photographs and we see nothing
inflammatory and/or improperly prejudicial about them.
4
  “Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.” Commonwealth v. Cruz, 71 A.3d 998, 1009 (Pa.
Super. 2013); Pa.R.A.P. 302(a).
5
  This Court agreed that the three photographs were inflammatory but
determined the valid evidentiary value outweighed any possible prejudice.
6
 Torres has again improperly changed the focus of the argument. At the
PCRA hearing, Torres complained that trial counsel was ineffective for failing
(Footnote Continued Next Page)


                                           -6-
J-S57026-15



      At trial, Moses, an admitted drug dealer, testified he lived in the same

building as Torres. On the day the child was killed, Moses went to Torres’

apartment to try to obtain money from Torres. While at Torres’ apartment,

he witnessed Torres hit the child at least once. He also testified he saw the

child curled up and whimpering.                   After his conviction, Torres was

incarcerated in the same prison as Moses, who had been convicted of

unrelated drug charges. The two men apparently met in the prison yard, at

which time Moses allegedly told Torres he had lied at trial. Torres informed

his mother, who then informed trial counsel.                 Trial counsel sent an

investigator to the prison to interview Moses. Moses told the investigator he

had lied at trial, but he was worried about perjury charges. Moses agreed to

meet with counsel when he got out of prison.

      Moses was eventually released from incarceration, but he never

fulfilled his promise to meet with counsel to give a formal statement.

Counsel attempted to contact Moses several times, including contacting

Moses’ probation officer. Despite these many attempts, Moses never spoke

with counsel or in any way indicated a willingness to cooperate with Torres’

PCRA claim.     Trial counsel testified that as he had been unable to verify

Moses’ recantation, had been unable to gauge Moses’ credibility by meeting

with him, and had no indication that Moses was willing to cooperate, he

                       _______________________
(Footnote Continued)

to raise the issue of Moses’ recantation. We will address the issue as raised
before the PCRA court.



                                            -7-
J-S57026-15



could not in good faith raise the issue of Moses’ alleged recantation.      The

PCRA court determined counsel’s explanation to be valid and not evidence of

ineffective assistance.     The certified record supports the PCRA court’s

determination and we find no error of law therein. Accordingly, Torres is not

entitled to relief on this claim.

      Order affirmed. Parties are directed to attach pages 5-7 of the PCRA

Court’s 4/22/2015 Opinion, regarding Torres’ failure to testify at trial, in the

event of further proceedings.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2015




                                     -8-
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                                                                                                         No. CR-3002-2008

                     v.
                                                                                                                                         r~·t··· ~-:-
EUGENIO TORRES,                                                                                                                          :~-;
                                                                                                                                         ,., ~.?
                                                                                                                                              .. .        x~
                                                                                                                                         (':;~ -~i       s _,

                                                                                                                                         ..   [   ....
                                                                                                                                         --,       ·_.
                      Defendant/Appellant
                                                                                                                                         ... !,

                                                                                                                                         --··




         MEMORANDUM OPINION FILED PURSUANT TO Pa R.A.P. 1925(a)

       Appellant, Eugenio Torres appeals from the order entered on December 19,

2014 denying his petition for relief filed pursuant to the Post-Conviction Relief Act

(PCRA), 42 PA.CONS.STAT.ANN.§§ 9541-9546.

     Torres was convicted, following an extensive jury trial held from November 8 -

15th, 2010, of first-degree murder for the death of his girlfriend's three-year-old son. In

the death penalty phase, the jury was unable to reach a unanimous decision and as

such, this Court sentenced Torres on November 17, 2010 to a term of life imprisonment,

without the possibility of parole. Torres filed a direct appeal to the Superior Court which

affirmed his judgment of sentence on February 1, 2013. See Commonwealth v.

Torres; 68 A.3d 353 (Pa. Super. 2013). Torres's petition for allowance of appeal to the

Supreme    Court   of· Pennsylvania              was         denied             on                       November                   8,   2013.                  See

Commonwealth v. Torres, 622 Pa. 750, 79 A.3d 1098 (~013).

     On April 16, 2014, Torres filed a pro se PCRA petition. See Motion for Post

Conviction Collateral Relief, 4/16/14. In his pro se PCRA petition Torres raised

ineffectiveness of counsel claims. Id. This Court appointed Alexander Karam, Esquire to

represent Torres in his PCRA petition. See Order, 4/30/14. On June 30, 2014, Attorney


                                                       1



                                                       . 3    I   •   .......   11,,   ... .,,   .....    -   .. -~   ......
                           . ~   • ,,   .   ,2
                                                                                     Circulated 09/24/2015 03:09 PM




"lack merit to secure relief under the PCRA Act." See No-Merit Letter, 6/30/14, at 2. This

Court held an evidentiary hearing on Torres's PCRA petition on August 1, 2014. On

November          26,    2014,   this   Court   issued   an   order   and   notice   to dismiss     with

accompanying            statement of reasons.     See Order, 11/26/14 at 1-15. In our Order of

November 26, 2014, we further granted Attorney                   Karam's request to withdraw. Id.

Torres' PCRA petition was dismissed on December 19, 2014. See Order, 12/19/14.

Torres filed a Notice of Appeal to the Superior Court on January 9, 2015. See Notice of

Appeal, 1/9/15. On January 15, 2015, we issued an Order, pursuant to Pa.RAP.

1925(b) directing Torres to file his Concise Statement of Matters Complained of on

Appeal within twenty-one (21) days. See Pa.RAP. 1925(b) Statement Order, 1/15/15.

Torres complied with our Order and filed his Concise Statement of Matters Complained

of on Appeal pursuant to Pa.RAP. 1925(b) on February 3, 2015. See Statement of

Matters Complained of on Appeal Pursuant to Rule 1925(8), 2/3/15.

        On appeal, Torres raises the following issues for the Superior Court's review:

        1. Was trial counsel ineffective for failing to permit the Petitioner to testify on his
           own behalf?

        2. Was trial counsel ineffective for failing to move for suppression of prejudicial
           crime scene photographs?

        3. Was PCRA counsel ineffective for failing to file a motion for relief based on
           newly discovered evidence in the form of a retraction statement given by
           Commonwealth witness Damion Moss, who authored a statement recanting
           his trial testimony?


Id. at 11111-3.



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the Superior Court must determine whether the ruling of the PCRA court is supported by

record evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260,
                        .
1267 (Pa. Super. 2010). "Great deference is granted to the findings of the PCRA court,

and these findings will not be disturbed unless they have no support in the certified

record." Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).

       Counsel is presumed to be effective. Commonwealth v. Martin, 5 A.3d 177, 183

(Pa. 2010). To overcome this presumption, Torres bears the burden of proving the

following: "(1) the underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his actions or

failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient

performance." Id. To demonstrate prejudice, an appellant must prove that a reasonable

probability of acquittal existed but for the action or omission of trial counsel.

Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008). A claim of ineffective

assistance of counsel will fail if the petitioner does not meet any of the three prongs. Id.

Further, a PCRA petition must exhibit a concerted effort to develop his ineffectiveness

claim and may not rely on boilerplate allegations of ineffectiveness. Id.

       In determining whether counsels' action was reasonable, the court does not

consider "whether there were other more logical courses of action" counsel could have

pursued, but simply examines whether counsels' decision had any reasonable basis.

Commonwealth v. Washington,927 A.2d 586, 594 (Pa. 2007). Conversely, to merit

relief, counsel's action,   given all the other available alternatives, must be "so



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·   Unf~as611~61~'th~f     h6 b6rhp~te~f 1J~;/<,;;6~ld ·h~~~--~ho~en. it."     Commonwealth v.

    Miller, 431 A.2d 233, 234 (Pa. 1981 ).

             A failure to satisfy any prong of the test for ineffectiveness will require rejection of

    the claim. Washington,'927 A.2d at 594. "In the context of a PCRA proceedings, [the

    defendant] must establish that the ineffective assistance of counsel was of the type

    '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."' Id.

    The defendant must establish actual prejudice, or demonstrate that the alleged act of

    ineffectiveness falls within a narrow range of circumstances in which there is a

    presumption of prejudice. Commonwealth v. Reed, 971 A.2d 1216, 1224-1225 (Pa.

    2009).

             As the Pennsylvania Supreme Court emphasized, "a fair assessment of attorney

    performance requires that every effort be made to eliminate the distorting effects of

    hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to

    evaluate the conduct from counsel's perspective" under the law in existence at the time

    of counsel's act or omission. Commonwealth v. Daniels, 963 A.2d 409, 429 (Pa. 2009)

    (quoting Stricklandv. Washington, 466 U.S. 668, 689 (1984)). "[A] defendant is not

    entitled to relief simply because the strategy is unsuccessful." Commonwealth v.

    Tippens, 598 A.2d 553; 556 (Pa. Super. 1991) (en bane); accord Commonwealth v.

    Buksa, 655 A.2d 576, 582 (Pa. Super. 1995). The Superior Court may affirm the order

    of a· PCRA court on any grounds. Commonwealth v. Fisher, 870 A.2d 864, 870 n.11

    (Pa. 2005).




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           In his first issue on appeal, Torres claims that trial counsel was ineffective for

 failing to call him to testify at trial. The decision of whether or not to testify on one's own

 behalf is ultimately to b~ made by the defendant after full consultation with counsel.

 Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334 (1998). 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. Commonwealth v. Nieves, 560 Pa.

529, 533, 746 A.2d 1102, (2000).

           Counsel had sound tactical reasons for advising Torres not to testify on his own

behalf at the time of trial. At the PCRA hearing trial counsel, Michael Corriere, Esquire

testified that he, along with co-counsel, Bohdan J. Zelechiwsky, Esquire discussed

Torres' testimony with him "prior to the trial, and in the prison, and you know, during the

trial". See N.T., PCRA Hearing, 8/1/14 at 11. Torres "said he definitely did want to

testify"; however, Attorney Corriere advised him that, it was not in his best interests

strategically to testify. Id. at 11-12. In a pre-trial order, this Court in a favorable ruling for

the defense, suppressed a statement made by Torres at the Wilson Borough Police

Department on July 8, 2008 as the Commonwealth violated Miranda during Torres'

custodial interrogation. However, after Torres was charged with criminal homicide, he

waived his Miranda rights prior to interrogation and provided a statement on July 9,

2008 where he gave what counsel called "a very clear rendition of the facts." Id. at 12.

In explaining the rationale for advising Torres not to testify, Attorney Corriere testified as

follows:



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      "Wefhe1i~~;d it th;
       the truth,
                          t~;;~~    ~leas allowed that evidence to be used for
                  and in fact it was the evidence that our experts utilized in
       formulating their opinions to provide Mr. Torres with a defense to the three
       main injuries to the child, which obviously were the head injury, number
       two was to the liver lacerations and the· stomach, and to the burns. So Mr.
       Torres' testimony to the police were relied upon by our experts. Mr. Torres
       had the advantage of not being cross examined by Mr. Houck.

       At the time Mr. Torres gave a statement to the police, they were trying to
       extract a statement. So they were not as adversarial as Mr. Houck, I
       believe, would have been. And they did not have all of the information.

       The investigation was on-going, it wasn't complete. There were a number
       of facts that the police just didn't have at that time in their possession to
       ask Mr. Torres about.

       We told him that if he were to testify, we were sure Mr. Houck would make
       a list of all of the pieces of evidence that Mr. Torres would not be able to
       say or not respond to say how certain things were found in the apartment.

       And we felt that if he did testify, the jury was going to come back and it
       was going to damage his credibility. We felt that the best case scenario for
       Mr. Torres was that he not take the stand.

Id. at 12-13. Torres had "multiple discussions" with counsel about testifying during the

trial as well. According to Attorney Corriere, "[Torres] was not saying yes or no, but he

said he would like to speak to his mother." Id. at 13. Torres was given the opportunity to

speak with his mother alone so that counsel did not make Torres "feel like [they] were

pressuring him as to what he wanted to do." Id. at 14. Torres and his mother had a

private conversation in the interview room. Torres's mother, Debra Medina testified at

the PCRA hearing that she spoke with trial counsel for her son Torres and was worried

"he could get the death penalty" if he testified. Id. at 43. She "begged (her] son not to

testify." Id. at 43. After speaking with his mother, Torres communicated directly to

Attorney Corriere that "he wasn't really happy, but he would follow [their] advice and not

take the witness stand." Id. Attorney Corriere adamantly stated that in no way did he



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force him to testify. Id. Attorney Corriere and Attorney Zelechiwsky strongly urged

Torres not to testify and both believe that ''he made the right move". Id. at 15 .
                          .
       Accordingly counsel in no way interfered with Torres's right to testify nor did

counsel give specific advice so unreasonable as to vitiate a knowing and intelligent

decision to testify on his own behalf. Counsel's advice was clearly sound in this case

and as such, he cannot be deemed ineffective.

       In his second issue raised on appeal, Torres argues that trial counsel was

ineffective for failing to file a motion to suppress the photographs taken from the crime

scene. This claim has no arguable merit as the record belies this argument. Trial

counsel filed a comprehensive omnibus pretrial motion which included a motion to

suppress the photographs of the crime scene included in the receipt inventory for the

search warrant. In our exhaustive opinion wherein we denied Torres's motion to

suppress, we stated the following:

      Turning to the challenged photographs, Officer Siegfried testified that he
      had observed everything in the photographs during his walk-through. It
      follows that these photographs, which depict only what Officer Siegfried
      had lawfully observed in plain view, are not the product of an illegal
      search.

See Opinion, 8/26/10, at 38 (citing Commonwealth v. Witman, 750 A.2d 327, 338 (Pa.

Super. 2000)).   Thus, the plain view exception to the warrant requirement was

applicable. Furthermore, this issue was previously litigat_ed on direct appeal and as

such, it is waived. Accordingly, counsel cannot be deemed ineffective for failing to do

something which he did and advocated well for on behalf of Torres. Simply because

Torres was unhappy with the outcome of his motion to suppress the photographs or the




                                              7
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                       order affirming his judgment of sentence is not an arguable claim for

 ineffectiveness of counsel under the PCRA. Accordingly, this claim must fail.

         In his last claim, Torres argues that PCRA counsel was ineffective for failing to

 file a motion for relief based on newly discovered evidence in the form of a retraction

 statement given by Commonwealth         witness Damion Moses, who authored a statement

 recanting   his trial testimony.   See Statement of Matters Complained of on Appeal

 Pursuant to Rule 1925(b), 1/6/15 at       ,r   3. While Torres categorizes his as a claim of

 ineffective assistance of PCRA counsel, at the time of the PCRA hearing, Torres argued

that trial counselwas ineffective in failing to pursue, by the filing of a motion, the taint

of Commonwealth witness, Damion Moses's testimony. While this issue was not raised

in Torres's PCRA petition, this Court heard testimony on this ineffectiveness claim at the

time of the PCRA hearing.

        Specifically, Torres avers that Damion Moses admitted to the private investigator

while in state prison that he lied under oath at trial. Damion Moses testified on behalf of

the Commonwealth that he "went up to the apartment" where Torres "was alone with the

child after Lauren Anderson had left to go to work" and that Torres "was really mad,

[Damion Moses] saw him smacking the child, the child was screaming, and he said he

was going to take the child in the bathroom." See N.T., PCRA Hearing, 8/1/14, at 22.

According to Attorney Corriere, Damion Moses's testimony was "damaging to [Torres] in

the sense that he was confirming that [Torres] was abusing the child before the child

died, and was verifying some of those injuries to the child." Id. at 22-23. Attorney

Corriere had the benefit of cross-examining Damion Moses at the time of trial as to his

veracity. Id. at 23.



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        Attorney Corriere testified   at the PCRA hearing that Debra Medina, Torres's

mother, contacted him in May or June 2012 and "advised [him] that she believed that

Damion Moses had recanted his testimony." Id. at 22. Torres "had conferred to her that

Mr. Moses was now saying he would help [Torres] out, that he lied at trial and he was

ready to do the right thing." Id. at 24. Attorney Corriere immediately contacted his

private investigator, Rod Devine, and directed him to go to state prison to take a

statement. Id. The private investigator met with Damion Moses in state prison and

prepared a report for Attorney Corriere. Id. at 25. The report indicated that "[Damion

Moses] acknowledged that he was not truthful at trial. That he never saw [Torres] hitting

the child. That he testified falsely, essentially, because he had a revenge or vendetta

because of some kind of drug issue with selling drugs and that what he said at trial was

not truthful." Id.

       Attorney Corriere evaluated the credibility of Damion Moses's statement to the

private investigator. Of concern was that "the report indicated that [Damion Moses] and

[Torres] had some conversation in the prison yard." Id. Attorney Corriere questioned

whether Damion Moses really wanted to do the right thing, or whether he was "saying

that because he is having contract with [Torres] and he wants to keep the peace, so to

speak." Id. at 26. The· report further indicated that Damion Moses was reluctant to speak

with the private investigator because he was concerned about perjury. This "raised [a]

red flag" to Attorney Corriere about Damion Moses's willingness to cooperate. Id. More

importantly, before Attorney Corriere filed a motion and presented it to the Court he

needed to meet with him "to make sure [Damion Moses] understood what [he] was

going to be asking of him and that he was going to cooperate." Id. Damion Moses was



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                      . 'from   stat~ prison "within thirty days or so" so "once he got out of
prison, [Attorney Corriere] instructed his investigator to talk to his probation officer." Id.

The private investigator "went out multiple times to [Damion Moses's] apartment" left

cards and messages to call, knocked on the door; however "never had any further

contact with [Damion Moses]." Id. at 28. Attorney Corriere "gave it a couple of months"

but he never heard from Damion Moses again. In explaining his rationale to this Court

for not pursuing a motion for newly discovered evidence on Torres's behalf, Attorney

Corriere stated the following:

      I just felt in good faith if I didn't - if I couldn't interview him and know he was
      going to be cooperative, I felt I didn't have enough to proceed to Court. All he
      had to do was take the Fifth. I couldn't impeach him. I couldn't use what he
      told the private investigator. That is something where he would have to come
      in and testify in front of Judge Zito and say he lied, for that to even go
      anywhere.

      I just felt at that point I didn't have a cooperative witness and I was a little
      skeptical about the whole thing now that he is out of prison. Why isn't he
      cooperative? He was all ready to cooperate when he was in prison, he is not
      around [Torres] anymore, why is he not willing to come up and step up to the
      plate if he, quote, wants to do the right thing? I wasn't sure.

     I didn't feel it was appropriate to file a motion representing something in
     Court without me saying at least I have a witness coming representing what I
     think he's going to say.

Id. at 29-30.

       Accordingly, it is evident that trial counsel had a reasonable basis for his actions

in not pursuing a motion on the grounds of newly discovered evidence. Damion Moses

was not a strong witness. Attorney Corriere impeached him on cross-examination on his

delay in cooperating with the police, his crimen falsi convictions, and his occupation as

a heroin dealer. Damion Moses's credibility was minimal and his contribution to the

Commonwealth's case was questionable at best. Damion Moses's testimony was not


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                                                                             Circulated 09/24/2015 03:09 PM




        essential to the verdict. The jury could have easily convicted Torres of the charges

        without Damion Moses's testimony. For these reasons, we discount the impact, if any

        Damion Moses's prison recantation would have had on a possible PCRA claim, even if

        Damion Moses would have followed-up with Attorney Corriere upon his parole to aid
I
        Torres in pursuing this claim. As such, this claim must fail.



II             According, this Court's Order of December 19, 2014 dismissing Torres' PCRA

        petition should be affirmed on appeal as all of his issues lack arguable merit.




 I
    I
        DATE: April      22,   2015




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