J. S30017/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
JOE ESCOBAR,                           :          No. 1451 EDA 2015
                                       :
                       Appellant       :


                 Appeal from the PCRA Order, May 8, 2015
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0005463-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 15, 2016

     Joe Escobar appeals from the May 8, 2015 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 procedural history of this case as follows:

                 On March 27, 2012, Appellant entered into a
           negotiated guilty plea to the charges of Attempted
           Murder, Persons Not to Possess Firearms, and
           Criminal Conspiracy.[1] On the same date, he was
           sentenced to 12 ½ to 25 years’ incarceration.
           Appellant timely filed a notice of appeal on April 25,
           2012. The Superior Court dismissed the appeal on
           November 20, 2012, however, for failure to comply
           with the Court’s briefing schedule.


1
  18 Pa.C.S.A. § 901(a), 18 Pa.C.S.A. § 6105(a)(2)(i), and 18 Pa.C.S.A.
§ 903, respectively.
J. S30017/16


                  On March 22, 2013, Appellant timely filed a
           pro se PCRA petition. PCRA counsel thereafter was
           appointed, and on May 2, 2014, she filed an
           amended PCRA petition, alleging ineffectiveness of
           counsel for failure to litigate a “Motion to Compel the
           Reoffering of Uncommunicated Plea Offer.”            On
           May 8, 2015, this Court held a hearing on Appellant’s
           petition and, upon considering the evidence
           presented and argument from counsel, denied relief.

                 Appellant subsequently filed a timely notice of
           appeal. This Court ordered him to file a Concise
           Statement of Matters Complained of on Appeal in
           accord with Pa.R.A.P. 1925(b).          Counsel for
           Appellant timely complied.

           ....
                 At Appellant’s plea hearing, the Commonwealth
           presented the facts as though they would have been
           presented at trial. Briefly, on February 11, 2011, at
           approximately 5:30 p.m. on the 3300 block of Amber
           Street in Philadelphia, Appellant fired numerous
           shots at a fleeing, unarmed 15-year-old boy, striking
           him three (3) times, nearly killing him. Appellant,
           who was 34 years of age at the time, was wearing a
           bullet proof vest, and notably, continued to fire and
           strike the young victim even after he collapsed.
           Moreover, the entire horrific episode not only
           occurred on a crowded street before numerous
           eyewitnesses, but in fact was captured on video.
           (See N.T. 03/27/12, pp. 9-17).

                 Significantly, prior to imposing sentence, this
           Court expressly noted on the record that the
           negotiated sentence of 12 ½ to 25 years was indeed
           a very favorable negotiation[.]

PCRA court opinion, 10/22/15 at 1-2.

     Appellant raises the following issues on appeal:

           I.     Is the appellant entitled to post-conviction
                  relief in the form of the opportunity to plead
                  guilty to the Commonwealth’s plea offer of 7 to


                                    -2-
J. S30017/16


                       20 years since this plea offer was never
                       communicated to the appellant prior to his
                       entry of a negotiated guilty plea?

               II.     Is the appellant entitled to post-conviction
                       relief in the form of an opportunity to plead
                       guilty to the Commonwealth’s plea offer of 7 to
                       20 years since trial counsel rendered
                       ineffective assistance of counsel when he failed
                       to pursue the “motion to compel the reoffering
                       of uncommunicated plea offer” prior to the
                       appellant[’s] entry of a negotiated guilty plea?

Appellant’s brief at 4.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in     the     light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.           Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).         We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.            Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).                In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

      Appellant’s issues assert ineffective assistance of initial trial counsel

and subsequent trial counsel.

               In evaluating claims of ineffective assistance of
               counsel, we presume that counsel is effective.
               Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
               435, 441 (Pa. 1999).          To overcome this
               presumption, Appellant must establish three factors.


                                         -3-
J. S30017/16


          First, that the underlying claim has arguable merit.
          See Commonwealth v. Travaglia, 541 Pa. 108,
          661 A.2d 352, 356 (Pa. 1995). Second, that counsel
          had no reasonable basis for his action or inaction.
          Id. In determining whether counsel’s action was
          reasonable, we do not question whether there were
          other more logical courses of action which counsel
          could have pursued; rather, we must examine
          whether counsel’s decisions had any reasonable
          basis.       See Rollins, 738 A.2d at 441;
          Commonwealth v. (Charles) Pierce, 515 Pa. 153,
          527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant
          must establish that he has been prejudiced by
          counsel’s ineffectiveness; in order to meet this
          burden, he must show that ‘but for the act or
          omission in question, the outcome of the proceedings
          would have been different.’” See Rollins, 738 A.2d
          at 441 (quoting Travaglia, 661 A.2d at 357). A
          claim of ineffectiveness may be denied by a showing
          that the petitioner’s evidence fails to meet any of
          these prongs.       Commonwealth v. (Michael)
          Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa.
          2001); Commonwealth v. Basemore, 560 Pa. 258,
          744     A.2d    717,    738      n.23    (Pa.    2000);
          Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d
          693, 701 (Pa. 1998) (“If it is clear that Appellant has
          not demonstrated that counsel’s act or omission
          adversely affected the outcome of the proceedings,
          the claim may be dismissed on that basis alone and
          the court need not first determine whether the first
          and second prongs have been met.”). In the context
          of a PCRA proceeding, Appellant 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.” 42 Pa.C.S. § 9543(a)(2)(ii). See
          also (Michael) Pierce, 786 A.2d at 221-22;
          Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d
          326, 333 (Pa. 1999).

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




                                   -4-
J. S30017/16


      We have carefully reviewed the record. Because the PCRA court has

filed a thorough, comprehensive, eight-page opinion, with appropriate

citation to the record and relevant case law, explaining why appellant’s

claims of ineffectiveness of initial and subsequent trial counsel lack merit, we

affirm on the basis of that opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/15/2016




                                       -5-
                                                                               Circulated 03/30/2016 04:04 PM




           IN THE COURT OF COMMON PLEAS OF PHILADELPHJA COUNTY
                   FIRST JUDICLA.L DtSTRlCT OF PENNSYLVANIA
                            CRIMINAL TRJAL DIVISION

COMMONWEAL TH OF PENNSYL VA.NIA                              CP-51-CR-0005463-2011

                       vs.

JOE ESCOBAR                                                  1415 EDA 2015
                                                                                                r. . • . .
                                         PCRA OPINlON

SCHULMAN, SJ .• J.

       Joe Escobar ( ..Appellant") has appealed this Court's Order denying his petition under the

Post Conviction Relief Act ( .. PCRA"). 42 Pa.C.S. § 9541 et~         Th.is Court submits the

following Opinion in accordance with the requirements of Pa.R.A.P. 1925, and for the reasons

set forth herein. recommends that us Order be affirmed.

I.     PROCEDUR>\L HISTORY

       On March 27: 2012. Appellant entered into a negotiated guilty plea to the charges of

Attempted Murder, Persons Not to Possess Firearms, and Criminal Conspiracy. On the same

date. he was sentenced to 12 ~ to :!5 years' incarceration. Appellant timely filed a notice of

appeal on April 25, 2012. The Superior Court dismissed the appeal on November 20, 2012,

however, for failure to comply with the Court· s briefing schedule.

       On March 22. 2013, Appellant timely filed a prose PCRA petition. PCRA counsel

thereafter was appointed, and on Mar 2, 2014, she filed an amended PCRA petition, alleging

ineffectiveness of counsel for failure to litigate a "Motion to Compel the Reoffenng of

Uncornmunicated Pica Offer." On May 8, 2015, this Court held n hearing on Appellant's

petition and. upon considering the evidence presented and argument from counsel, denied relief.
       Appellant subsequently filed a timely notice of appeal. This Court ordered him to file a

Concise Statement of Maners Complained of on Appeal in accord with Pa.R.A.P. 1925(b).

Counsel for Appellant timely complied.

II.    FACTUAL HISTORY

       At Appellant's plea hearing, the Commonwealth presented the facts as though they would

have been presented ei trial. Briefly, on February l 1. 20 I J, at approxunately 5;30 p.m. on the

3300 block of Amber Street in Philadelphia. Appellant fired numerous shots at a fleeing,

unarmed 15-year-old boy. striking him three (3) Limes, nearly killing him. Appellant, who was

34 years of agent the rime. was wearing a bullet proof vest, and notably, continued to tire and

strike the young victim even after he collapsed. Moreover, the entire horrific episode not only

occurred on a crowded street before numerous eyewitnesses, but in fact was captured on video.

(See N.T. 03/27112, pp. 9-17).

       Significantly, prior to imposing sentence. this Coun expressly noted on tbe record that

the negotiated sentence of 12 Y, to 25 years was indeed a very favorable negotiation;

                      11iE COURT' There is also a good deal to be said for
              stepping up once you were caught and for pleading guilty today.
              And because of those things you are receiving what is a very
              favorable negotiation from the Commonwealth.

                       However, I watched that video and it is apparent that you
              were shooting to kill. It is apparent that after that boy fell and got
              up againj.] you ye: again fired another shot that had the intention
              to kill that boy.

                      There's no other interpretation that 1 would find or that a
              jury would find had you gene to trial and had the jury seen that
               videotape

                     Quite frankly. it was a cowardly uction from somebody
              who fell somehow entitled to shoot on a crowded street at a young
              boy who was fleeing, who was running away, a cowardly action,

                                                 2
              and a potentially deadly one. You are so extraordinarily fortunate
              that that boy did not die l will say in my years oo the bench I have
              never seen anything like it.

                        I have seen and heard of shootings where there is
              immediate danger from a person who is facing you or [ ] from a
              person [who] is clc:.a.tl} armed. I have never seen a cold-blooded
              shooting at a victim who is trying to flee as 1 did on that video. It
              rs haunting,

                      The fact that you were wearing a bulletproof vest again
              shows your premeditation, Mr. Escobar. and the fact that you fled
              and were caught in an alleyway and had discarded the gun as I'Il
              take license to interpret from the facts. Mr. Escobar, are such
              cowardly acts that. as l said it's difficult to put together the person
              I'm seeing m front of me crying and the person who l saw on the
              street.

                       You should know, sir, that had you gone to trial and been
              convicted. my sentence would have been putting you away nearly
              for life, nearly for life. So when the assistant district attorney says
              that this is a very favorable negotiation, you need to understand
              that.

                     Quite frankly, sir, I was all ready to try your case today, all
              ready. \\'e have .1 jury waiting downstairs ready to come up.

                        If you will rise. [Whereupon the Court imposed the
              negotiated sentence of 12 1/: to 25 years' incarceration].

(NT. 03/27/12, pp. 25<!8).

Ill.   DISCUSSION

       Counsel for Appellant raises the following issue on appeal:

                        Whether .. [t]he [PCRA] Court erred when it denied
              (Appellant] PCR..o.\ relief following an evidentiary hearing.
              [Appellant] is entitled to post-conviction relief in the form of an
              opportunity to plead guilty to the Commonwealth's initial plea
              offer [sic] of seven to twenty years since initial trial counsel
              rendered ineffective assistance of counsel when [he] failed to
              communicate this plea offer [,tic] to [Appellant] prior to hj~ entry
              of a negonsted guilty plea ... f and] failed to pursue the "motion to


                                                 3
               compel the reoffering of uncommunicated plea offer" prior to
               [Appellant's] entry of a negotiated guilty plea.

       Appellant's PCR~ Claim ls Without Merit.

        Appellant claims that the Court erred by denying bis counsel ineffectiveness of claim.

The record utterly refutes this claim.

               a.      Standard of Review

       On uppeal from the denial of PCRA relief. a reviewing court must determine whether the

ruling of the PCRA coun is supported by the record and free of legal error. Commonwealth v.

Steel~ 961 A.2d 786, 796 (Pa. 2008) (citing ComrnonweaJch v. Washlngton, 927 A.2d 586, 593-

94 (Pa. 2007); Commom1>ealth v. Breakiron, 781 A.2d 94 (Pa. 2001); Commonwealth v. Strong,

76l A.2d 1 I 67. I J 70 n.3 (Pa 2000)).    In order 10 be eligible for PCRA relief, Appellant must

prove by a preponderance of the evidence that his conviction or sentence resulted from one or

more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2). Commonwealth v.

Steele, 961 A.2d at 796; see 42 Pa.C.S. §9543(a}(2) (providing limited bases for relief, including

.. [ijneffective assistance of counsel which, in the circumstances of the particular case, so

undermined the truth-determining          process that no reliable adjudicatfon of guilt or

innocence could have token place.") (emphasis added).

               b.      Ineffectiveness of Counsel

       Counsel is presumed to have acted effectively, and defendant bears the burden of proving

otherwise. Commonwealth\. Rivers. 567 Pa. 239. 786 A.2d 923, 927 (2000). In order to

overcome this presumption, defendant must demonstrate that: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his course of conduct; and (3) but for the

act or omission in question. the outcome of the proceedings would have been different.

Commonwealth, .. Porter, 556 Pa. 301. 728 A.2d 890i 896 (1999) (citing Commonwealth v.
                                              4
Travagliu. 541 Pa 108, 661 A.2d 352. 356-357 ( 1995)). ''The threshold inquiry in ineffectiveness

claims is whether the issue/argument/tactic which counsel bas forgone and which forms the basis

of the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered

ineffective for failing to assen a rneritless claim" Commonwealth v. Pierce, 537 Pa. 514, 524,

645 A.2d 189, 194 ( 1994) (citations omitted)      See also Commonwealth v. Baldwin. 760 A.2d

883. 885 (Pa. Super. 2000) (where the underlying claim is meritless, the Inquiry mto counsels

actions need go no further ...for counsel cannot be ineffective for failing   10   assert a meritless

claim), Indeed/la] failure ta satisfy any prong of the test for ineffectiveness will require

rejccuonofthe claimlCommonweahb v. Sne-ed, 899 A.2d 1067, 1076 (Pa. 2006} (emphasis

added) (citations omitted)

               c.      Application

       Applying the foregoing considerations, Appellants claim fails quite remarkably.

Preliminarily it must be observed that any alleged ineffectix eness in this case is not of the ilk that

wouldso undermine]'] the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place" 42 Pa.C.S. §9543(a}(2). Indeed - putting aside the video

which clearly depicted Appellant commuting the offenses in t1agrante delicto - Appellant

provided a detailed confession   10   detectives following his apprehension, end testified al the

PCRA hearing thar he al ways had the intention of pleading guilty for the crimes he committed:

'My intentions were never going to trial. The only offer on the table was 12 Vi-to-25 and I was

going to plead guilty from the beginning" (See N.T. 05/08/15,      p. 48). Thus, there is no question

that the ascertainment of Appellant's guilt in this case is completely reliable

       Nonetheless. Appellant claims that initial trial counsel {the Defender Association of

Philadelpbia) was ineffective for not communicating an alleged plea offer of 7 to 20 years, and

                                                    5
subsequent counsel (Benjamin G. Perez, Esquire) was ineffective for not pursuing the "Motion

to Compel the Reoffering of Uncornmunicated Plea Offer" •• which Attorney Perez himself had

drafted. The record squarely refutes these contentions

        At the PCRA hearing, Attorney Perez testified that he discovered the alleged "offer" on

March 211 2012. while reviewing the Commonwealth's file for discovery purposes. Specifically,

he testified that on said date, he went to ADA Guy D' Andrea's office to review the file, in which

be came across an unsigned "S.~1.A.R.T.    Room" offer sheet with a typed entry of 7 to 20 years.

According to A. ttorney Penez:

                        A.      Wt: had a conversation immediately upon my
                finding. I'm like, what's this'? And Guy initially indicated to me
                that the offer was off the table because [itj was a Smart Room offer
                that had been rejected.

                          Then it was l guess the next time we talked about the case
                ... be told me something different, He said that upon further review
                that offer had never been actually extended.


(N.T. 05/08/ 15, p. 9).

        ADA D'Andrea testified as follows:

                       Q.      Now do you remember in this case whether or not
                there was ever an offer extended in the Smart Room?

                          -\.   No [there was no offer in] my shootings in general
                but specifically this case which I will never forget and I can
                explain how that is. This case, an offer was not conveyed at the
                Smart Room which was the standard pracuce for any nonfatal
                shooting that was specifically assigned to me.

                        But 1f somebody was actually struck by a bullet but [ } of
                course- did not die. the file would go to (the assigned Smart Room
                DA]. No offer would be conveyed. That would then, the file
                would come back 10 mt! to be assigned for trial and the
                negotiations would begin If there were going to be negotiations.


                                                 6
0-,:.T 05/08115. p. 36).

          The evidence that this Court found most compelling, however, was the docket entry from

the date of the actual Smart Room session (June l, 2011), which explicitly states "no offer".

(See N.T. 05/08115. pp. 24-25, 33 & Exhibit C-1) (emphasis added).1 Thus, based on the

evidence submitted at the hearing, this Court found that Appellant failed to meet his burden of

proof See Commonwealth v. Steele. 96 t A.2d at 796. There simply was no evidence that an

offer of7-to-20 years ever was extended in the first place, and thus, counsel cannot be ineffective

for failing to communicate same See Commonwealth v. Pierce. 645 A.2d at 194.

          Nor, for that matter, could subsequent counsel (Attorney Perez) be deemed ineffective for

failing to litigate the "Motion to Compel the Reoffering of Uncommunicared Pleas Offer", when

in fact there was no ofter in the first place.

         Moreover, Attorney Perez testified at the hearing as co why be did not pursue the motion

-- which this Court found eminently reasonable:

                          l was trying to get the best outcome for [Appellant]. I was
                 speaking with Mr. o· Andrea about what the off er was. trying to
                 get it lower. closer to what J had seen in the file, regardless of
                 whether st had been conveyed or not.

                        Up until the last minutes I know that it did get contentious.
                 t did threaten 10 litigate the motion. Re did threaten to
                 withdraw the [12 ~-to-25 year) offer. Thal was still
I
    Additionally. current counsel for Appellant candidly revealed at the bearing below as follows:

                          MS. SMAR.RO: Judge, as an Officer of the Court, I have
                 to tell the Court that I have spoken with members of the Defender
                 Association who reviewed the file while I was on the phone with
                 [ them] so that J would know what was coming over to the
                 courtroom and there's no indrcauon in there that an offer was
                 made

(N. T. 05/08/15, p, 31 ).

                                                   7
                significantly better than what I thought be would have gotten
                from an open plea ancJ rhat's where it was.

lN.T. 05108/15, pp. 17-18) (emphasis added). Thus, as a matter of sound strategy, counsel

declined to litigate the motion ro compel in order to achieve the best result for his client -- who,

by all accounts including his   O\\D,   was indeed guilty of horrific offenses that otherwise could

have garnered double the sentence be actually received. See Commonwealth v. Paolello. 542

Pa. 47, 665 A2d 439. 454 (1995) (''[fwe conclude that the particular course chosen by counsel

had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective:'),

quoted in Commonwealth,·. Soo~ 896 A.2d 1191, 1218 (Pa. 2006).

         Perhaps most cogently, span from the applicable standards and ineffectiveness rubric,

common sense dictates that no defendant in the Commonwealth of Pennsylvania, much less

Philadelphia, would be offered a 7-)ear minimum sentence for callously and repeatedly shooting

an unarmed. fleeing minor adolescent on a crowded street, while wearing a bullet proof vest. In

a phrase, never in a million years. The misplaced and/or mistyped "Smart Room" sheet simply

was an oversight of mole hill proportions our of which counsel for Appellant vigorously

attempted to mold mto a mountain. His lack of success in capitalizing on an obvious oversight

hardly comprises ineffectiveness of counsel


IV       CONCLUSIO~

         For the reasons set forth in the foregoing Opinion, this Court's Order denying PCRA

relief should be affirmed.




DA TE:   /PP!lr<                                         B~---
                                                         SUSAN L SCHULMAN, J.
