J-S65004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 CARMELO RODRIGUEZ                        :
                                          :
                     Appellant            :   No. 738 MDA 2018

                 Appeal from the PCRA Order April 5, 2018
   In the Court of Common Pleas of Lebanon County Criminal Division at
                     No(s): CP-38-CR-0001581-2014


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY SHOGAN, J.:                  FILED: JANUARY 11, 2019

      Appellant, Carmelo Rodriguez, appeals from the order denying his

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court summarized the factual and procedural history of this

case as follows:

            [Appellant] was charged with two counts of Aggravated
      Assault1 relating to an incident that occurred on August 4, 2014.
      [Appellant] waived the preliminary hearing on September 18,
      2014, and the formal arraignment on October 25, 2014. The
      matter first went to jury trial, which ended in a mistrial on April
      13, 2015. A second jury trial was held on June 4, 2015, resulting
      in [Appellant] being found guilty on both counts of Aggravated
      Assault. Our November 30, 2015 Opinion adequately sets forth
      the facts reflected at trial as follows:

            1  18 Pa.C.S.A.      §   2702(a)(1);    18   Pa.C.S.A.
            § 2702(a)(4).
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                 Michael Morris (hereinafter “Morris”), a friend of
          Randy Wolfe (hereinafter “victim”) testified for the
          Commonwealth. On August 4, 2014, Morris and the
          victim were at the William Penn bar (hereinafter “bar”)
          in Lebanon, having a couple of drinks. Morris stated
          that when they were at the bar, the victim, who is
          very outgoing, was socializing with several people,
          playing games and performing magic tricks. At a later
          point in the evening, Morris heard a commotion by the
          door and saw the victim with three guys; Frank Velez
          (hereinafter “Velez”), [Appellant] and Dennis Kreider
          (hereinafter “Kreider”).

                Morris followed the group outside and saw the
          victim, [Appellant] and Velez walking up the street;
          the victim and Velez were arguing. Morris stated that
          when [Appellant] walked behind a tree, he bent down
          where loose bricks were present. At some point
          during the verbal altercation between the victim and
          Velez, the victim spit on [Appellant]. The victim told
          [Appellant] it was an accident and Morris stated the
          victim went to wipe the spit off of [Appellant]. When
          the victim went to wipe the spit off of [Appellant],
          [Appellant] hit the victim and the victim fell straight
          back. When Morris saw the victim get hit, he punched
          [Appellant], knocking him down. [Appellant] and his
          two friends immediately got in their car and left.

                Kreider testified that he and [Appellant] have
          been friends for approximately 30 years.          When
          Kreider, Velez and [Appellant] were in the bar, Kreider
          saw Velez hit the victim in the face one time and heard
          the victim scream to Velez that Velez “hit like a girl.”
          Thereafter, the bartender told [Appellant] and Velez
          to leave the bar. Kreider followed them outside, at
          which point [Appellant], Velez and the victim were
          already walking away down the street, with
          [Appellant’s] back towards Kreider.

                Shortly after coming outside, Kreider witnessed
          [Appellant] make a “fighting motion,” and then the
          victim’s friend, Morris, punched [Appellant] in the
          face. Kreider, Velez and [Appellant] immediately
          headed to their car and left. As they were leaving,

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          Kreider heard a girl yell, “you pussy, you hit him with
          a brick.” When Kreider asked [Appellant] in the car if
          [Appellant] hit the victim with a brick, [Appellant]
          replied, “I hit the nigger.” However, Kreider did not
          see [Appellant] hit the victim with a brick.

                 Velez testified that during his time at the bar,
          he got into a physical altercation with the victim where
          he threw a few punches because the victim had gotten
          in Velez’s face about a petty argument Velez was
          having with a third individual. Velez stated that he
          did not knock the victim over and that he didn’t see
          any injuries besides “maybe a little blood on the side
          of his like lip or something” As Velez was trying to
          leave the bar, the victim was blocking Velez’s way,
          until the bartenders forced the victim out of the way
          so Velez could leave.

                 When Velez went outside, the victim followed,
          wanting to continue the altercation that was started in
          the bar. At this point Velez stated “I was backing up
          and...his arms were flailing. He said he wanted to get
          into it with me. So as I was backing up and I was
          taking off my shirt and my jewelry and then in an
          instant hey, let’s get out of here.” Velez testified that
          he did not see the victim get hit or see the victim
          laying on the ground because after he took off his shirt
          and jewelry, his friend was telling Velez to leave.
          When Velez, Kreider and [Appellant] got into the car
          to leave, [Appellant] asked Velez to take the blame
          for what happened, but Velez did not know what had
          happened and did not want to take the blame for
          anything. The next morning, the police asked Velez
          to come in to talk about what occurred the previous
          night, and he came in to cooperate with the police.

                                   ***

                 The Commonwealth also presented stipulated
          medical testimony from Dr. John Kelleher, a
          neurosurgeon at the Penn State Milton Hershey
          Medical Center and Dr. Jessica Lighthall, an
          Otolaryngologist. Dr. Kelleher determined that the
          skull fractures suffered by the victim were caused by

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          blunt force trauma to the head, requiring a large
          amount of force to cause the injuries sustained.2 Dr.
          Lighthall was on call the evening that the victim was
          transported to the Penn State Milton Hershey Medical
          Center and was needed to assist with the victim’s
          injuries due to their complex nature. Dr. Lighthall’s
          stipulated medical testimony closely mirrored Dr.
          Kelleher’s testimony, specifically that the injury was
          caused by a blunt object and the injury is one that
          would require a significant amount of force.

                2Dr. Kelleher made the following post-
                operative diagnoses:

                1. Comminuated frontal depressed skull
                fracture;
                2. Subarachnoid hemorrhage;
                3. Pneumocephalus;
                4. Intraparenchymal hemorrhage;
                5. Diffuse axonal injury;
                6. Orbital wall fractures; and
                7. Complex midface fractures which
                shifted the face to the right.

                Amber Green, a Forensic DNA scientist working
          with the Pennsylvania State Police was qualified as an
          expert and testified in regards to the DNA samples
          taken from the brick, which was collected at the scene
          of the incident. Ms. Green opined that one DNA
          sample from the brick matched the DNA sample given
          by the victim.     Ms. Green further opined that
          [Appellant] could not be included as a contributor to
          the DNA samples collected from the brick.

                 [Appellant] took the stand and testified that
          while he was at the bar on August 4, 2014, he saw
          Velez get into an argument with the victim and
          subsequently punch the victim twice in the face.
          [Appellant] stated that he tried to deescalate the
          situation while in the bar by getting between Velez
          and the victim. When they were outside, [Appellant]
          stated he just watched Velez and the victim and [sic]
          argue. After the victim spit on him, the victim reached
          out towards [Appellant].       The victim’s action of

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              reaching out towards [Appellant] made [Appellant]
              feel threatened and he punched the victim in the face.
              [Appellant] did not see what happened to the victim
              after he punched him because he was hit from the side
              and then immediately left with Velez and Kreider.

             [Appellant] was sentenced on August 19, 2015, to an
       aggregate sentence of six (6) to twenty (20) years in a State
       Correctional Facility. [Appellant] filed Post-Sentence Motions on
       August 31, 2015, which this court denied by Order dated
       December 4, 2015. [Appellant] appealed our decision and the
       Superior Court affirmed in a Memorandum Decision dated October
       4, 2016.

            [Appellant] filed a pro se PCRA Petition on December 2,
       2016. This court appointed counsel to represent [Appellant] and
       a counseled Amended Petition was filed on January 23, 2017. . . .
       A PCRA hearing was conducted on December 21, 2017.

PCRA Court Opinion, 4/5/18, at 1-6 (internal citations omitted).

       The PCRA court dismissed Appellant’s PCRA petition on April 5, 2018,1

and Appellant filed his timely appeal on April 23, 2018. The PCRA court and

Appellant complied with Pa.R.A.P. 1925.2

       Appellant presents the following issue for our review:       “Did the Trial

Court err in ruling that trial counsel was not ineffective for failing to interview



____________________________________________


1 There is no indication in the record that the PCRA court provided Appellant
with notice of its intent to dismiss his PCRA petition pursuant to Pa.R.Crim.P.
907. However, Appellant has not challenged this omission on appeal. The
failure to challenge the absence of a Rule 907 notice constitutes waiver.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).

2In an order filed pursuant to Pa.R.A.P. 1925(a) on June 26, 2018, the PCRA
court stated that “we find that all errors lack merit and have been sufficiently
addressed in our Order and Opinion filed April 5, 2018.” Order, 6/26/18, at
1.

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and call witnesses who were mentioned in discovery materials as having been

at or near the crime scene where the alleged assault took place?” Appellant’s

Brief at 5.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Hernandez, 79 A.3d

649, 651 (Pa. Super. 2013). “The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.” Id.

      Appellant’s issue raises claims of ineffective assistance of counsel.

         To prevail in a claim of ineffective assistance of counsel, a
      petitioner must overcome the presumption that counsel is
      effective by establishing all of the following three elements, as set
      forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
      975–76 (1987): (1) the underlying legal claim has arguable
      merit; (2) counsel had no reasonable basis for his or her action or
      inaction; and (3) the petitioner suffered prejudice because of
      counsel’s ineffectiveness.

Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011). With regard to the

second, reasonable-basis prong, “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.”

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

strategy will not be found to have lacked a reasonable basis unless it is proven

that ‘an alternative not chosen offered a potential for success substantially

greater than the course actually pursued.’” Commonwealth v. Williams,

899 A.2d 1060, 1064 (Pa. 2006). “In order to meet the prejudice prong of

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the ineffectiveness standard, a 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.’” Commonwealth v. Reed, 42

A.3d 314, 319 (Pa. Super. 2012).

      A claim of ineffective assistance of counsel will fail if the petitioner does

not meet any of the three prongs. Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004).      “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

      Appellant argues that trial counsel was ineffective for failure to interview

and subpoena for trial two witnesses:       John Orner and Zachary Edwards.

Appellant’s Brief at 18. Appellant maintains that “it is clear that the testimony

of both John Orner and Zachary Edwards offered a potential for success

substantially greater than Attorney Judd’s strategy of not interviewing them

and not subpoenaing them for trial.” Id. at 18.

             To establish that counsel was ineffective for failing to call a
      witness, Appellant must demonstrate that: (1) the witness
      existed; (2) the witness was available to testify for the defense;
      (3) counsel knew of, or should have known of, the existence of
      the witness; (4) the witness was willing to testify for the defense;
      and (5) the absence of the testimony of the witness was so
      prejudicial as to have denied the defendant a fair trial. Failure to
      call a witness is not per se ineffective assistance of counsel, for
      such a decision implicates matters of trial strategy.           It is
      Appellant’s burden to demonstrate that trial counsel had no
      reasonable basis for declining to call . . . a witness.

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007) (internal

citations omitted).


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      Herein, both John Orner and Zachary Edwards testified at the PCRA

hearing. We begin with the testimony provided by John Orner at that hearing,

as summarized by the PCRA court:

             At the PCRA hearing, [Appellant] first called John Orner to
      testify. Mr. Orner testified that he was at the William Penn Bar on
      August 4, 2014, when he observed a blonde guy and a man named
      Frank [Velez] swinging at each other as they were being pushed
      outside by a large group. Mr. Orner went outside where he saw
      the incident continue as Frank [Velez] took off his shirt and got
      ready to fight the blonde man and then he saw the blonde man
      drop. Mr. Orner stated that he saw a man in a blue t-shirt pick up
      a brick and come around and hit the blonde man in the head.
      After the blonde man went down, Mr. Orner saw three men run
      towards a car. Mr. Orner ran out to help the man who had been
      hit and took down the license plate number of the car the three
      men entered.

            When questioned by [Appellant’s] counsel regarding
      inconsistencies between his testimony at the hearing and the
      police report, Mr. Orner stated that the statement he gave to
      police officers was consistent with his recollection of events at the
      hearing, but that the police officer was not paying attention to
      him. Mr. Orner testified that he was contacted by the District
      Attorney’s office but not by [Appellant’s] trial attorney and that he
      was never subpoenaed to testify at the trial.

PCRA Court Opinion, 4/5/18, at 6 (internal citations omitted).

      In addressing Appellant’s claim that trial counsel was ineffective for

failing to call Mr. Orner as a witness, the PCRA court determined:

             John Orner testified at the PCRA hearing that he was
      available to testify at trial, he would have testified had he been
      subpoenaed, and that, although he had spoken with the District
      Attorney regarding this matter, he had not been contacted by
      [Appellant’s] trial counsel. Furthermore, Mr. Orner’s statement
      had been included in the police report and [Appellant] testified
      that his review of the discovery revealed the same. Therefore,
      the first through fourth prongs are satisfied and we are left to


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      determine whether the absence of Mr. Orner’s testimony at trial
      was so prejudicial as to deny [Appellant] a fair trial.

            As the PCRA transcript revealed, Mr. Orner testified that he
      saw [Velez] and the victim begin arguing inside and the fight
      continued outside the bar. Once outside, Mr. Orner saw the two
      men getting ready to fight and then saw a man in a blue t-shirt
      pick up a brick. At the second jury trial, [Appellant’s] blue t-shirt
      was entered into evidence and several people testified that
      [Appellant] was wearing a blue shirt on the evening of the
      incident. Furthermore, a video showing [Appellant] wearing a
      blue shirt was also entered into evidence and presented to the
      jury. [Appellant] attempts to persuade us that the trial attorney
      could have used Mr. Orner’s testimony to impeach his statement
      recorded by police. We find this attempt unavailing.

             When counsel has chosen a particular course of strategy and
      tactic with a reasonable basis to effectuate the client’s interests,
      counsel’s assistance is generally deemed effective. Com. v. Miller,
      819 A.2d 504 (Pa. 2002). Furthermore, hindsight comparison of
      trial strategy with alternatives not employed must conclude that
      the alternative strategy not employed would have offered a
      greater potential for success. Id. at 517. [Appellant] has failed
      to prove that trial counsel’s strategy was less successful than had
      she presented Mr. Orner’s testimony, nor has he shown that the
      absence of Mr. Orner’s testimony so prejudiced him as to deny
      him a fair trial.

PCRA Court Opinion, 4/5/18, at 10-11 (some internal citations omitted).

      We agree with the PCRA court’s determination. If Mr. Orner had testified

at trial, he would have stated that he saw an individual wearing a blue t-shirt

hit the victim in the head with a brick. N.T., 12/21/18, at 4-8. As noted by

the PCRA court, other testimony at trial would have established that Appellant

was wearing a blue t-shirt during the incident. PCRA Court Opinion, 4/5/18,

at 10-11. Accordingly, the absence of Mr. Orner’s testimony at trial did not

prejudice Appellant.   In fact, introduction of Mr. Orner’s testimony at trial


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would have impacted Appellant’s position negatively, as it was evidence

reinforcing the conclusion that Appellant was guilty of the crimes charged.

Thus, Appellant has failed to establish that trial counsel was ineffective for

failing to interview Mr. Orner and to call Mr. Orner as a witness at trial.

      We now consider the testimony that Zachary Edwards would have

provided at trial. The PCRA court aptly summarized Mr. Edwards’s testimony

at the PCRA hearing as follows:

      Mr. Edwards, who was present for Mr. Orner’s testimony, stated
      that “[p]retty much the same thing [Mr. Orner] said, the
      altercation that happened. They all went outside. I didn’t go
      outside. I didn’t follow them. I watched through the window from
      what I could see.” Mr. Edwards testified that the victim, Randy,
      was his boss and that he remembered an individual, later
      identified as Frank Velez, approaching him earlier in the evening
      and asking whether he had a problem with him and whether he
      wanted to go outside and fight. Mr. Edwards continued that he
      saw the victim, [Appellant] and [Velez] arguing and moving
      around outside, but that he couldn’t see them clearly. Mr.
      Edwards admitted that he did not see the victim get hit or who
      picked up the brick, but just saw the victim fall to the ground.
      Finally, Mr. Edwards saw [Velez] hit the victim two or three times
      inside the bar, but did not see what happened outside the bar.

            Mr. Edwards admitted that he had not been contacted by
      the District Attorney or [Appellant’s] trial counsel and did not
      receive a subpoena to testify at trial. However, had he been
      subpoenaed, Mr. Edwards would have testified consistent with his
      testimony at the hearing. On re-direct, Mr. Edwards admitted
      again that he did not see [Appellant] strike the victim at all.

PCRA Court Opinion, 4/5/18, at 6-7 (internal citations omitted).

      In addressing Appellant’s claim of ineffective assistance of counsel for

failure to interview Mr. Edwards or call Mr. Edwards as a witness at trial, the

PCRA court provided the following analysis:

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       Mr. Edwards testified that he was available and would have
       testified if subpoenaed, and admitted that he was never contacted
       by [Appellant’s] trial attorney. Again, we are faced with a
       determination of the prejudice upon [Appellant’s] ability to be
       granted a fair trial with the absence of Mr. Edward’s testimony.

              Mr. Edwards testified that the events occurred in
       substantially the same way as Mr. Orner described. Mr. Edwards
       testified that he told police that he saw [Velez] take off his white
       shirt and that [Velez] was the person who hit the victim, though
       he stated that this was while the two men were fighting inside the
       bar. Mr. Edwards later identified [Velez] from a photo array.
       However, Mr. Edwards admitted that he was inside the bar and
       did not clearly see the events that occurred outside the bar.
       Additionally, Mr. Edwards denied seeing who actually picked up
       the brick or who hit the victim with the brick.

             When applying the final prong of the prejudice suffered by
       [Appellant] in the absence of Mr. Edwards’s testimony, we find
       [Appellant’s] proof to be lacking. While [Appellant] contends that
       Mr. Edwards’ testimony would have provided support for the
       theory that someone other than [Appellant] committed the crime,
       we find this argument lacking. We fail to see how the absence of
       Mr. Edwards’ testimony that he didn’t see who committed the
       crime to be prejudicial to [Appellant’s] right to a fair trial.

PCRA Court Opinion, 4/5/18, at 11-12.

       We agree with the PCRA court’s determination.             Mr. Edwards’s

testimony, had it been presented at trial, would not have had any impact on

the conclusion regarding Appellant’s guilt. Mr. Edwards testified that he did

not see who picked up the brick, or who hit the victim with the brick. N.T.,

12/21/18, at 14-15. Thus, the absence of Mr. Edwards’s testimony at trial did

not prejudice Appellant. Accordingly, Appellant has failed to establish that

trial counsel was ineffective for failing to interview Mr. Edwards or call him to

testify at trial.


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      Appellant further asserts that “where there is a limited amount of

evidence of guilt, it is per se unreasonable not to attempt to investigate and

interview known eyewitnesses in connection with defenses that hinge on the

credibility of other witnesses,” pursuant to Commonwealth v. Dennis, 950

A.2d 945 (Pa. 2008).     Appellant’s Brief at 24.    Appellant maintains that

because there is no direct evidence that he hit the victim with a brick and only

circumstantial evidence supports Appellant’s convictions, pursuant to Dennis,

it was “per se unreasonable for Attorney Judd not to make any attempt to

investigate and interview Zachary Edwards and John Orner.” Id. at 24-25.

      The PCRA court addressed this claim in its April 5, 2018 opinion, and

concluded as follows:

            At trial, [Appellant’s] trial counsel presented two witnesses–
      [Appellant] and a Forensic DNA analyst with the Pennsylvania
      State Police who performed analysis on the evidence in this case.
      The Forensic DNA analyst provided testimony to the effect that
      while the victim’s DNA was found on the brick, [Appellant’s] DNA
      was not. [Appellant] testified on his own behalf refuting the
      testimony of other witnesses brought by the Commonwealth and,
      while admitting that he punched the victim, denied hitting the
      victim with the brick.

            While the Supreme Court in Dennis did state that it is per
      se unreasonable not to interview known eye witnesses where
      defenses hinge on the credibility of other witnesses and there is a
      limited amount of evidence of guilt, the Court also stated that such
      does not support “the proposition that such an omission is per se
      prejudicial.” [Dennis, 950 A.2d at 960-961]. In order to reach a
      determination of prejudice, [Appellant] must prove that there was
      a reasonable probability that the outcome of the trial would have
      been different had counsel interviewed and/or called Mr. Orner
      and Mr. Edwards to the stand.           We cannot make such a
      determination based on the testimony of the witnesses at the
      PCRA hearing. Neither witness provided any further testimony

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      affirming that [Appellant] was not the person who picked up the
      brick and hit the victim. In fact, while Mr. Edwards testified that
      he could not clearly see the events outside the bar, Mr. Orner
      testified that he saw the man in the blue t-shirt pick up the brick.
      If, as [Appellant] has suggested, trial counsel would have placed
      Mr. Orner on the stand, only to then refute the credibility of his
      testimony and statements to police, we fail to see how this would
      have been helpful to [Appellant].

PCRA Court Opinion, 4/5/18, at 12-13.

      The PCRA court’s determination is supported by the evidence of record

and is free of legal error. Thus, Appellant is entitled to no relief on his claims

of ineffective assistance of trial counsel.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/11/2019




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