J-S01044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    HENRY ZABALA-ZORILLA                       :
                                               :
                      Appellant                :       No. 841 MDA 2016

                  Appeal from the PCRA Order May 17, 2016
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0002404-2012,
                            CP-06-CR-0003321-2012

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    HENRY MIGUEL ZABALA-ZORILLA                :
                                               :
                      Appellant                :       No. 842 MDA 2016

                   Appeal from the PCRA Order May 16, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002404-2012


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 01, 2018

        Appellant, Henry Miguel Zabala-Zorilla,1 appeals from the order

entered in the Berks County Court of Common Pleas, which dismissed his

____________________________________________


1Appellant’s name appears throughout the certified records as either Henry
Miguel Zabala-Zorilla or Henry Zabala-Zorilla.
J-S01044-18


first petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      We summarize the relevant facts and procedural history of these cases

as follows.      At several docket numbers, the Commonwealth charged

Appellant with multiple sex offenses and related crimes against multiple

victims.   Under some pretext or another, Appellant eventually took each

victim back to his residence, where he held his victim against her will and

sexually violated her.   A jury convicted Appellant of numerous offenses,

including multiple counts of kidnapping and rape.     The court sentenced

Appellant on May 3, 2013, to an aggregate term of 84½ to 169 years’

incarceration.    New counsel represented Appellant to file post-sentence

motions, which the court denied on May 14, 2013. This Court affirmed the

judgment of sentence on March 25, 2014, and our Supreme Court denied

allowance of appeal on October 15, 2014. See Commonwealth v. Zabala-

Zorilla, 100 A.3d 318 (Pa.Super. 2014), appeal denied, 631 Pa. 719, 110

A.3d 997 (2014).       Appellant sought no further direct review, so the

judgment of sentence became final on January 13, 2015, upon expiration of

the 90 days to seek review with the U.S. Supreme Court. See U.S.Sup.Ct.R.

13.

      Still represented by post-sentence/direct appeal counsel, Appellant

timely filed a counseled first PCRA petition on October 8, 2015. The court

issued notice of its intent to dismiss the petition without a hearing per


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Pa.R.Crim.P. 907, on January 20, 2016.2 On May 17, 2016, the PCRA court

denied the petition. Appellant pro se filed timely notices of appeal at each

docket on May 23, 2016. On June 6, 2016, the court ordered Appellant to

file concise statements of errors complained of on appeal at each docket

number, which Appellant filed through counsel on June 10, 2016.          This

Court consolidated the appeals the same day.

       On August 1, 2016, Appellant filed a petition in this Court to proceed

pro se; this Court remanded the matter on August 4, 2016, for a Grazier3

hearing that took place on September 13, 2016.      On November 23, 2016,

the PCRA court granted both counsel’s application to withdraw and

Appellant’s request to proceed pro se on appeal.      On January 24, 2017,

Appellant filed in this Court an application for appointment of counsel, which

this Court denied as moot on February 8, 2017. Between February and May,

Appellant requested several extensions of time to file his brief, which this

Court granted. In the last request, Appellant asked for the appointment of a
____________________________________________


2 In response to Rule 907 notice, Appellant did not challenge the assistance
of PCRA counsel on any grounds, such as identifying issues Appellant wanted
to raise, which counsel did not raise in the petition. So, Appellant has
waived any claims of ineffective assistance of PCRA counsel Appellant might
have or suggest because he cannot raise them for the first time on this
appeal. See Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044 n.
14 (2011); Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 894 n.
12 (2010); Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014) (en
banc), appeal denied, 627 Pa. 771, 101 A.3d 785 (2014). Therefore, current
counsel was limited to briefing the only issue properly preserved for appeal.

3   Commonwealth v. Grazier, 552 Pa. 9, 12-13, 713 A.2d 81, 82 (1998).



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Spanish-speaking attorney, based on Appellant’s assertion that he did not

understand the prior Grazier colloquy.         This Court remanded for another

Grazier hearing that took place on June 5, 2017, after which the court

appointed new counsel to assist Appellant in his appeals. On July 5, 2017,

Appellant filed a pro se praecipe to withdraw his appeal, which this Court

forwarded to newly-appointed counsel.          On July 6, 2017, newly-appointed

counsel requested an extension of 90 days from July 18, 2017, to file a brief

in this case, so he could familiarize himself with the file, communicate with

Appellant via an interpreter, and research the relevant issues, while

balancing the needs of his other court-appointed clients. This Court granted

the application and extended Appellant’s brief due date to October 16, 2017.

Counsel sought another extension of time on October 13, 2017, which this

Court granted until November 15, 2017.

      On or about November 13, 2017, Appellant filed in this Court a pro se

motion for substitution of counsel, claiming current counsel (1) failed to

fulfill his duty to represent Appellant adequately and conduct a preliminary

investigation of the record and facts of the case to determine prior counsel’s

ineffectiveness; (2) sought two extensions of time to file a brief on

Appellant’s   behalf   without   “good    cause”   indicating   “mere   sloth   and

incompetence”; and (3) failed to utilize the appointed interpreter. Appellant

sought an order from this Court that (a) compelled the appointment of a

Spanish-speaking attorney to review all prior proceedings to ensure there


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was no defaulting of relevant claims and (b) retained jurisdiction over the

PCRA proceedings. Counsel filed an appellate brief on Appellant’s behalf and

later he filed a court-ordered response to Appellant’s pro se motion on

December 12, 2017. In the response to Appellant’s motion, counsel denied

Appellant’s accusations; explained again the reasons for his two requests for

extensions of time to file a brief, which this Court had already granted;

informed this Court that a Spanish-speaking attorney was unavailable or had

declined representation of Appellant, thus the PCRA court retained an

interpreter; all letters Appellant sent to current counsel, except the first,

were written in standard English only; and Appellant at no time ever

indicated that he was unable to understand counsel’s letters.      For these

reasons, counsel averred that Appellant’s purported language barriers do not

exist with respect to written communications, which belies any claim that

Appellant’s PCRA rights were compromised because of a language barrier.

Given the timely filed brief advocating on Appellant’s behalf, counsel

concluded he has fulfilled his duty to provide Appellant with adequate

representation on this appeal.      The Commonwealth filed its brief on

December 18, 2017. Appellant’s motion was then deferred for disposition to

the panel assigned to the case.

     Initially, regarding Appellant’s motion for substitution of counsel, the

Pennsylvania Supreme Court’s decision in Jette, supra wholly abrogated the

procedure previously followed under Commonwealth v. Battle, 879 A.2d


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266 (Pa.Super. 2005), when an appellant filed a pro se motion for

appointment of new counsel during the pendency of a counseled appeal;

Jette also clarified the process for a defendant to pursue claims of

ineffective assistance of appellate counsel in the context of post-conviction

collateral proceedings:

           [A]bsent a motion for change of counsel, where the
           appellant can demonstrate he has an irreconcilable
           difference with counsel that precludes counsel from
           representing him, or perhaps a timely petition for self-
           representation, or the retention of private counsel, the
           appellant must remain with appointed counsel through the
           conclusion of the appeal.

Jette, supra at ___, 23 A.3d at 1042 (internal citation omitted).              “[T]he

proper response to any pro se pleading is to refer the pleading to counsel,

and to take no further action on the pro se pleading unless counsel forwards

a motion. Moreover, once the brief has been filed, any right to insist upon

self-representation has expired.” Id. at ___, 23 A.3d at 1044. Consistent

with the Majority’s position, Chief Justice Castille wrote:

           [T]he decision to proceed with counsel, once made, should
           not include reservation of a veto power and a power to
           change one’s mind concerning counsel, after counsel has
           already been put to the task. The procedure inverts the
           attorney-client relationship. Just as defendants have no
           “right” to taxpayer-financed counsel of their choice, I see
           no reason in law or logic to assume they have a right to
           dictate the issues to be pursued on collateral appeal (or
           direct appeal for that matter), once counsel is appointed.
           The proper repository for complaints concerning counsel is
           the PCRA, and not a cumbersome process once the case is
           already on appeal and briefed.

Id.   at   ___,   23   A.3d   at   1047    (Chief   Justice   Castille,   Concurring).

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Significantly, “an indigent criminal defendant does not enjoy the unbridled

right to be represented by counsel of his own choosing.”     Id. at ___, 23

A.3d at 1041. See also Commonwealth v. Albrecht, 554 Pa. 31, 63, 720

A.2d 693, 709 (1998); Commonwealth v. Tighe, ___ A.3d ___, 2018 PA

Super 86 *13 (filed April 12, 2018) (stating same).

      Instantly, Appellant filed a motion for substitution of counsel, on

November 13, 2017, just days before counsel filed an advocate’s brief for

Appellant.     The timing of Appellant’s motion alone, however, cannot be

dispositive.    See Jette, supra.    Appellant’s motion makes clear he is

primarily dissatisfied with current counsel’s delay in filing a brief and the

failure of the PCRA court to appoint for him a Spanish-speaking attorney.

This Court forwarded Appellant’s motion to counsel, ordered counsel to

respond, and counsel complied, concluding he had not defaulted on

Appellant’s appeal and Appellant’s request for substitution of counsel lacked

merit for various reasons.   Appellant’s purported complaints about current

counsel were not based on irreconcilable differences; Appellant merely

disputed counsel’s appellate strategy.

      Moreover, the appellate record makes clear that Appellant is largely

responsible for the delay in his appeal.    Between August 2016 and July

2017, Appellant asked to proceed pro se and gained a remand for a Grazier

hearing, after which he proceeded pro se.     During his pro se period, he

sought several extensions of time to file his brief. Appellant then changed


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his mind and demanded appointment of a Spanish-speaking attorney, and

obtained a second remand for a second Grazier hearing, after which the

court appointed current counsel and an interpreter, because no Spanish-

speaking attorney was available.      So, a majority of the delay in resolving

this appeal is directly attributable to Appellant.

      Once the PCRA court appointed current counsel, counsel sought only

two extensions of time to file a brief, which this Court deemed good faith

requests and granted.       After counsel filed the appellate brief, Appellant

indicated no dissatisfaction with the brief or specific factual allegations which

if true would establish current counsel as ineffective.         Consistent with

prevailing law, we refuse to remand the case again on the grounds alleged.

Instead, we deny Appellant’s open motion for substitution of counsel and

require Appellant to remain with current counsel, now that the briefs are

filed, to avoid further and unnecessary “disruption of the orderly disposition”

of this appeal. See Albrecht, supra. Accordingly, we will address the one

issue properly preserved in Appellant’s counseled PCRA petition, which the

PCRA court addressed and current counsel briefed for this appeal:

         DID THE PCRA COURT ERR IN DENYING POST-
         CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING
         WHERE THE PCRA PETITION ALLEGED THAT TWO
         WITNESSES WERE AVAILABLE AND KNOWN TO TRIAL
         COUNSEL BUT WERE NOT CALLED TO TESTIFY AT TRIAL
         AND THAT THE TWO WITNESSES WERE PRESENT AT THE
         RESIDENCE WHERE THE ALLEGED SEXUAL ASSAULT
         OCCURRED?

(Appellant’s Brief at 4).   Although raised under both docket numbers, the

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record makes clear this issue refers solely to the victim, M.C., in the case

prosecuted at Docket No. 2404-2012.

      Appellant argues M.C., the victim in the case prosecuted at Docket No.

2404-2012, testified that she screamed for help during her ordeal involving

Appellant.   Regardless of whether her screams were muffled or she was

choked, Appellant maintains the screams would have been heard by his

housemate, Leonor Rogaluna, or by his son, Henry Zabala-Zorilla, Jr., both

of whom were in the house. Appellant insists his claim that his housemate

and his son heard no screams is viable. Appellant contends defense counsel

was informed of these two potential witnesses. Appellant insists both were

prepared to cooperate and testify for Appellant at trial. Because the issue

for the jury at trial was one of credibility, Appellant submits defense counsel

was ineffective for failing to call these witnesses on Appellant’s behalf;

counsel’s decision resulted in prejudice to Appellant and denied him a fair

trial. Appellant concludes he is entitled to a hearing, where the PCRA court

can weigh trial counsel’s testimony that Appellant’s son was unavailable for

trial against Appellant’s son’s testimony that he was.          For the following

reasons, we disagree.

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the   evidence    of   record    supports    the     court’s

determination   and     whether   its    decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,


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612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a

PCRA hearing as a matter of right; the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact, the

petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 701

A.2d 541 (1997); Commonwealth v. Taylor, 933 A.2d 1035, 1040

(Pa.Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008);

Pa.R.Crim.P. 907(1).   “A reviewing court on appeal must examine each of

the issues raised in the PCRA petition in light of the record in order to

determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and in denying relief without an evidentiary

hearing.”   Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super.

2015), appeal denied, 635 Pa. 763, 136 A.3d 981 (2016) (quoting

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa.Super. 2007),

appeal denied, 594 Pa. 685, 934 A.2d 72 (2007)).

      The   law   presumes    counsel   has   rendered   effective   assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, a petitioner is required

to make the following showing: (1) the underlying claim is of arguable merit;


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(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness of counsel will

cause the claim to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Taylor, supra at 1042 (quoting Commonwealth v. Poplawski, 852 A.2d

323, 327 (Pa.Super. 2004)).

         Once this threshold is met we apply the “reasonable basis”
         test to determine whether counsel’s chosen course was
         designed to effectuate his client’s interests. If we conclude
         that the particular course chosen by counsel had some
         reasonable basis, our inquiry ceases and counsel’s
         assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [a defendant] demonstrates
         that counsel’s chosen course of action had an adverse
         effect on the outcome of the proceedings. The defendant
         must show that there is a reasonable probability that, but
         for counsel’s unprofessional errors, the result of the
         proceeding would have been different.       A reasonable
         probability is a probability sufficient to undermine
         confidence in the outcome. In [Kimball, supra], we held
         that a “criminal defendant alleging prejudice must show

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           that counsel’s errors were so serious as to deprive the
           defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).                  “The

petitioner bears the burden of proving all three prongs of the test.”            Id.

“Where it is clear that a petitioner has failed to meet any of the three,

distinct prongs of the…test, the claim may be disposed of on that basis

alone, without a determination of whether the other two prongs have been

met.”    Commonwealth v. Basemore, 560 Pa. 258, 295, 744 A.2d 717,

738 n.23 (2000).

        A petitioner’s claim that counsel was ineffective, for failing to call a

particular witness at trial, requires certain proof:

           [T]he [petitioner] must show: (1) that the witness existed;
           (2) that the witness was available; (3) that counsel was
           informed of the existence of the witness or should have
           known of the witness’ existence; (4) that the witness was
           prepared to cooperate and would have testified on
           [petitioner’s] behalf; and (5) that the absence of the
           testimony prejudiced [petitioner].

Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa.Super. 2013).

Significantly, a court shall not find trial counsel ineffective for failure to call a

witness unless the petitioner shows how the uncalled witness’ testimony

would have been beneficial under the circumstances of the petitioner’s case.

Commonwealth v. Gibson, 597 Pa. 402, 441, 951 A.2d 1110, 1134

(2008); Commonwealth v. Auker, 545 Pa. 521, 548, 681 A.2d 1305, 1319

(1996). Trial counsel’s failure to call a witness does not constitute arguable

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merit without some showing that the testimony of the absent witness would

have been valuable to the asserted defense.      Commonwealth v. Durst,

522 Pa. 2, 6, 559 A.2d 504, 506 (1989). In this context, the petitioner must

establish prejudice by demonstrating that he was denied a fair trial due to

the absence of the testimony of the proposed witness. Commonwealth v.

O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal denied, 580 Pa. 696,

860 A.2d 123 (2004).

      “Where a petitioner requests an evidentiary hearing, the petition shall

include a signed certification as to each intended witness stating the

witness’s name, address, date of birth and substance of testimony and shall

include any documents material to that witness’s testimony.        Failure to

substantially comply with the requirements of this paragraph shall render

the proposed witness’s testimony inadmissible.” 42 Pa.C.S.A. § 9545(d)(1).

See also Pa.R.Crim.P. 902(A)(15). “[T]he certification requirement can be

met by an attorney or pro se petitioner certifying what the witness will

testify regarding”; the certification requirement can also be met by the

proposed witness or the witness’ attorney.     Commonwealth v. Pander,

100 A.3d 626, 640-41 (Pa.Super. 2014) (en banc), appeal denied, 631 Pa.

712, 109 A.3d 679 (2015).      The content of the certification must comply

with Section 9545(d)(1) and include an accurate summary of the missing

witness testimony, to the best of the certifier’s knowledge. Id.

      Instantly, Appellant filed a counseled first PCRA petition in which he


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asserted ineffective assistance of trial counsel for failing to call Leonor

Rogaluna and Henry Zabala-Zorilla, Jr. at trial as witnesses for the defense.

The certification attached to Appellant’s petition in relevant part stated:

         That at the time of the evidentiary hearing, Petitioner
         intends to call Leonor Rogaluna to testify. Leonor Rogaluna
         will testify that she and Roberto Antonio Castro were
         renting a room inside the residence located at 1552 N.
         10th Street, Reading, PA. Leonor Rogaluna will testify that
         she was paying rent to the Petitioner in order to live at the
         aforementioned      residence   and   resided    there     for
         approximately 6 months during 2011. Leonor Rogaluna
         will testify that she was present when the Reading Police
         conducted a search of the residence following allegations
         made by [M.C.]. Leonor Rogaluna will testify that she
         spoke with the police on the date of the initial search,
         provided her biographical information and was present
         during several other times when the police came back to
         take pictures or collect evidence. Leonor Rogaluna will
         testify that on one occasion during the time frame of
         [M.C.’s] complaint, she observed a woman with clean hair
         go inside the Petitioner’s bedroom with the Petitioner.
         Leonor Rogaluna will testify that she and Roberto Antonio
         Colon are always home by 8 pm. and watch TV until the
         late hours of the evening. Leonor Rogaluna will testify that
         at no time while living at 1552 N. 10th Street, Reading, PA
         did she hear a woman screaming for help.              Leonor
         Rogaluna will testify that she was willing and available to
         testify at trial.   Leonor Rogaluna will testify that she
         appeared at the Petitioner’s sentencing hearing at the
         request of the Petitioner’s mother because the Petitioner’s
         attorney never contacted her about coming in to testify at
         trial.

         That at the time of the requested evidentiary hearing in
         this matter, Petitioner intends to call Henry Zabala-Zorilla,
         Jr. [who] will testify that he was present inside 1552 N.
         10th Street, Reading, PA at the time the Petitioner brought
         [M.C.] to the home. Henry Zabala-Zorilla, Jr. will testify
         that he heard his father having sex with [M.C.] and at no
         time that evening did he hear [M.C.] screaming for help.
         Henry Zabala-Zorilla, Jr. provided this information to the

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        Petitioner’s counsel prior to trial and was available to
        testify at the trial. Henry Zabala-Zorilla, Jr. spoke with
        Petitioner’s counsel several times prior to trial and will
        testify that none of his contact information changed prior
        to trial. Henry Zabala-Zorilla, Jr. was present at the time
        of sentencing because he was never contacted to testify at
        trial and wanted the trial court to hear the information he
        would have testified to at trial if called as a witness.

(Certification of Intended Witnesses, attached to Appellant’s PCRA Petition,

filed 10/8/15).   The Commonwealth answered that Appellant’s son was

unavailable as a witness at trial because his family and defense counsel

could not locate him; and Ms. Rogaluna’s proposed testimony was so vague

that it would not have changed the outcome of the trial.

     In response to Appellant’s issue, the PCRA court stated:

        The record…reflects that trial counsel did not call Henry
        Zabala-Zorilla, Jr. to testify because his family could not
        locate him. Accordingly, it is clear that that particular
        witness was not available and/or willing to cooperate.
        With regard to Ms. Rogaluna, this court agrees with the
        Commonwealth’s assessment that her description of a
        “women with clean hair” is so vague that it is impossible to
        determine whether she is referring to one of the…victims in
        this case or some other woman. Moreover, given the
        overwhelming evidence of the [petitioner’s] guilt, while
        taking into consideration the fact that the uncorroborated
        testimony of a rape victim is sufficient to support a rape
        conviction, we are unable to see how the [petitioner] could
        prove that Ms. Rogaluna’s testimony was necessary to
        avoid prejudice.

(Order and Notice of Intent to Dismiss, filed January 20, 2016, at 5-6,

attached as Exhibit A to PCRA Court Opinion, filed June 27, 2016).

     Here, trial counsel told the court at sentencing that she could not

present Henry Zabala-Zorilla, Jr. at trial because neither he nor his family

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made him available for trial. Trial counsel told the court that the family did

not produce him, she could not locate him, and the Commonwealth was

unable to find him, despite efforts by the District Attorney’s office, who

wanted to call him as a witness for the prosecution. (See N.T. Sentencing,

5/3/13, at 20.)   Importantly, the certification of Henry Zabala-Zorilla, Jr.

does not say he was prepared and willing to testify at trial on Appellant’s

behalf. See Michaud, supra.

      Further, Henry Zabala-Zorilla, Jr.’s certification states he “was present

at the time of sentencing because he was never contacted to testify at trial

and wanted the trial court to hear the information he would have testified to

at trial if called as a witness.”   (See Certification of Intended Witnesses,

attached to Appellant’s PCRA Petition, filed 10/8/15.) After trial counsel told

the court at sentencing about Henry Zabala-Zorilla, Jr.’s unavailability at

trial, the court allowed him to testify for Appellant.   At no time did Henry

Zabala-Zorilla, Jr. explain his absence from trial or contradict counsel’s prior

representation to the court.   (See N.T. Sentencing at 21-22.)      The record

contains no evidence that Henry Zabala-Zorilla, Jr. was even on hand to

support his father during the trial, despite the witness’ opportunity to say so

at the sentencing hearing. Nothing in his certification precludes or explains

Henry Zabala-Zorilla, Jr.’s nonappearance during Appellant’s trial. Because

the record shows this proposed witness was unavailable at trial, defense

counsel cannot be deemed ineffective for failing to present his testimony.


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      Likewise, the proposed testimony of Ms. Rogaluna was not genuinely

exculpatory. Trial counsel told the court at the sentencing hearing that she

knew about the older couple who lived in the house, but she did not think

their testimony would be helpful because they saw nothing to rebut any of

the allegations against Appellant.         (See N.T. Sentencing at 20.)        The

certification for Ms. Rogaluna’s proposed testimony offered a description of a

“woman with clean hair” going into Appellant’s bedroom. The description is

so lacking in detail that it cannot represent M.C. with any certainty. Further,

Ms. Rogaluna certified that she heard no screaming but she also did not hear

the   police   make   forcible   entry    into    the   home, after   knocking and

announcing, to execute a search warrant. According to the trial testimony,

she appeared very surprised to encounter the police on the third floor where

she lived. The victim also testified at trial that the person in the room next

to Appellant’s turned up the volume on the television in that room. Thus,

trial counsel assessed this testimony would not have contributed to the

defense.   Given the other evidence against Appellant, we cannot say with

confidence that the verdict would have been different with the testimony of

these proposed witnesses.

      Ordinarily, counsel’s decision not to present witnesses would be

considered a matter of trial strategy, and challenges to trial strategy often

invoke questions of counsel’s rationale behind the chosen tactic, which in

turn can require an evidentiary hearing on the reasonableness of counsel’s


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actions under the circumstances. See Commonwealth v. Cousar, 638 Pa.

171, 191-92, 154 A.3d 287, 299 (2017) (expressing preference for

evidentiary hearing on reasonableness of counsel’s actions or inactions

before     deciding   that   counsel’s   strategy   was,   in   fact,   reasonable).

Nevertheless, the PCRA court did not require another hearing in this case

because the court had the benefit of counsel’s rationale at the sentencing

hearing.    Further, any testimony from a third party concerning the fact of

the victim’s presence in the house had little or no evidentiary value for the

defense because it would confirm only that the victim was there with

Appellant. Based on the foregoing, Appellant failed to meet his burden to

plead and prove his defense counsel was ineffective on the grounds alleged.

Given the record in this case, Appellant’s claim lacked arguable merit and

therefore warranted no relief. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/01/18




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