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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                                          :
            v.                            :
                                          :
JONATHAN LANDRON                          :
                                          :
                  APPELLANT               :     No. 2154 MDA 2015

             Appeal from the PCRA Order November 18, 2015
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0000559-2013

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                      FILED SEPTEMBER 26, 2016

      Appellant, Jonathan Landron, appeals from the November 18, 2015

Order, entered in the Berks County Court of Common Pleas, dismissing his

first Petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46, without an evidentiary hearing. After careful review, we affirm.

      The PCRA court summarized the facts as follows:

         Appellant and Alexander Cruz-Cintron, then residents at
         1230 Spring Street in the City of Reading, were looking for
         “someone to burn”—that is, someone to “rip off [or] steal
         from.” In November 2012, Cruz-Cintron approached his
         longtime friend, Danielle Mojica [(“Mojica”)] and suggested
         that she could help them “burn” Raymond Hiester. Cruz-
         Cintron knew that Hiester and Mojica sometimes smoked
         marijuana together and that Heister bought cigarettes for
         Mojica, gave her money, and had promised to buy her a
         tablet. Mojica at first told Cruz-Cintron and Appellant she
         didn’t want to steal from Hiester—she worried that doing
         so would jeopardize his willingness to buy her gifts,
         including the tablet.
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       A few days after Cruz-Cintron first proposed the idea, he
       and Appellant repeated the idea of stealing from Hiester.
       Mojica again said she was not interested.          But on
       November 26, 2012, Mojica learned that the plans to
       victimize Hiester were already in motion. Appellant and
       Cruz-Cintron showed Mojica a black handgun which, she
       was told, would only be used to scare Hiester—it “wasn’t to
       be fired or anything like that.” Two days later, four
       individuals from New York—a Hispanic female known as
       “Kay-Kay” and three males, one black and two Hispanic—
       arrived in Reading to assist in the operation.

       On the morning of November 28, Mojica received a phone
       call. On the other end of the line she could hear Appellant,
       Cruz-Cintron, and Kay-Kay, who informed her that the plan
       was going forward but assured her nothing “serious” was
       going to happen. They picked Mojica up and brought her
       back to Cruz-Cintron[’s] and Appellant’s residence at 1230
       Spring Street in Reading.       Cruz-Cintron and Kay-Kay
       persuaded Mojica to call Hiester and arrange to go to his
       house, while Appellant continued to assure Mojica that
       “everything was going to be fine.”

       Mojica made contact with Hiester around 11:00 a.m. She
       sent him a series of test messages, trying to persuade him
       to allow her to come over:

          I kept asking him if I could go over to his house, if I
          could chill with him. I was trying to smoke. I was
          telling him that I was going through it, I was trying
          to smoke, that I didn’t want to chill long, you know,
          stuff like that.

       N.T. 6/11/13, at 88. Hiester said it was not a good time,
       but Mojica persisted, and Hiester agreed to allow her to
       come to his house.

       After Mojica made plans with Hiester, Kay-Kay drove her
       to Hiester’s house, located in the 500 block of South 18 th
       Street in Reading. Kay-Kay left, and Mojica went inside,
       where she and Hiester began smoking marijuana and
       talking. After a few minutes, Mojica told Hiester that she
       had left her cigarettes in the car she arrived in, and that
       she also wanted to smoke more marijuana. Hiester went


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       out to purchase some cigarettes and blunt paper from a
       corner store nearby. Hiester left through the back door,
       and Mojica remained at the house.

       As soon as Hiester left, Mojica called Cruz-Cintron to let
       him know that Hiester was gone; concurrently, the three
       men from New York arrived at Hiester’s home in
       Appellant’s car, a gold Mercedes sedan. After entering the
       home through the front door, they began looking for items
       to steal. They grabbed Mojica, taped her to a chair, and
       placed tape over her mouth. Hiester soon returned to his
       home, re-entering through the back door. He was met in
       the kitchen by a black male who was holding a black-and-
       silver handgun. The gunman told Hiester to “get on the
       ground” as soon as he walked into the room. Hiester
       hesitated, and the gunman approached him, put the gun to
       his chest and tried to push him to the ground. Hiester
       resisted, and the gunman shot him in the chest.

       Hiester did not lose consciousness but attempted to use
       the phone in the kitchen to call 9-1-1. Meanwhile, the
       gunman resumed digging through the contents of Hiester’s
       desk. At that time Hiester also became aware of a second
       male in the home, who was descending the stairs from the
       second floor while trying to fend off an attack by Hiester’s
       Rottweiler. Fearing that the gunman would shoot the
       dog—or shoot Hiester again—Hiester called off the dog and
       rushed out the back door to seek help.

       Hiester found a neighbor and told him he had been shot by
       unknown individuals who were attempting to rob him
       inside his house.     He then lay down in front of the
       neighbor’s house to wait for the ambulance. While he was
       waiting for the ambulance, he saw the two males run out
       the front door of his house, enter a “small silver car,” and
       drive away.     Police and emergency medical personnel
       arrived thereafter, where they found Hiester outside.
       Hiester was taken to the hospital to receive treatment for
       his gunshot wound. He was released from the hospital
       after only six hours. Hiester’s neighbor untied Mojica from
       the kitchen chair, and she was questioned throughout the
       day by police. Afterwards, Mojica sought out Appellant
       and Cruz-Cintron. Cruz-Cintron returned Mojica’s phone,
       which had been taken while she was tied up at Hiester’s


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           house.    Appellant and Cruz-Cintron questioned Mojica
           about her statements to the police, but after she assured
           them they had not been implicated, they went to dinner
           together and then went bowling.

           After Hiester was discharged from the hospital, he began
           to develop fluid buildup in his chest, which had to be
           drained. Surgery was required around the area of the
           bullet hole, while a pump drained fluid from the area.
           Hiester, a roofing and home improvement contractor,
           returned to work after about three weeks of recovery.
           Hiester discovered that an iPod Touch, a new Samsung
           Galaxy II cell phone, and approximately three ounces of
           marijuana had been taken from his home.

Trial Ct. Op., 1/14/16, at 2-4 (some citations omitted).

        Following a bench trial held on June 11, 2013, the trial court convicted

Appellant of three counts of Robbery,1 Burglary,2 Theft by Unlawful Taking,3

Criminal Trespass,4 and Conspiracy5 to commit each of the foregoing

offenses.

        The trial court sentenced Appellant on September 19, 2013, to an

aggregate sentence of eight to forty years’ imprisonment. Appellant filed a

post-sentence motion seeking to modify his sentence on September 29,

2013. The trial court denied the motion to modify sentence on October 2,

1
 18 Pa.C.S. § 3701(a)(1)(ii); 18 Pa.C.S. § 3701(a)(1)(iii); and 18 Pa.C.S. §
3701(a)(1)(iv).
2
    18 Pa.C.S. § 3502(a)(1).
3
    18 Pa.C.S. § 3921(a).
4
    18 Pa.C.S. § 3503(a)(1)(i).
5
    18 Pa.C.S. § 903(a)(1).



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2013.    Appellant filed a timely appeal from his Judgment of Sentence on

October 17, 2013. This Court affirmed Appellant’s Judgment of Sentence on

September 16, 2014.      See Commonwealth v. Landron, NO. 1855 MDA

2013 (Pa. Super. filed September 16, 2014) (unpublished memorandum).

        On July 6, 2015, Appellant filed a timely, counseled, first Petition

seeking relief under the PCRA.     The PCRA court sent Appellant a Notice

pursuant to Pa.R.Crim.P. 907, indicating that his Petition would be dismissed

as without merit.    Appellant filed a “Petition in Response to Dismissal of

PCRA Petition” on September 10, 2015.            The PCRA court dismissed

Appellant’s Petition on November 18, 2015, without a hearing. This timely

appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        Appellant claims on appeal that the trial court erred in denying his

PCRA Petition because his trial counsel was ineffective for failing to cross-

examine the Commonwealth’s primary witness, Danielle Mojica, about

whether she had entered into a plea agreement not to be charged as an

accomplice and whether, as a result of such agreement, her testimony was

biased. Appellant’s Brief at 15-16. Appellant alleges that counsel’s failure to

effectively cross-examine Majoica “made it impossible to argue corrupt and

polluted source under the theory of accomplice liability.” Id. at 16.

        We review the denial of a PCRA petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise



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free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

      The   law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “The

burden of demonstrating ineffectiveness rests on [A]ppellant.”          Id.   To

satisfy this burden, Appellant must plead and prove by a preponderance of

the evidence that: “(1) his underlying claim is of arguable merit; (2) the

particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and, (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “Failure to establish any prong of

the test will defeat an ineffectiveness claim.”           Commonwealth v.

Champney, 65 A.3d 386, 396 (Pa. 2013) (citation omitted).

      With respect to Appellant’s allegation of ineffectiveness of trial counsel,

the PCRA court opined as follows:

         Appellant’s legal claim has arguable merit because the
         pertinent witness, Danielle Mojica, was the only individual
         who could connect Appellant to the crime. Additionally, it
         is unlikely that trial counsel’s failure to cross-examine


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         Mojica about her plea deal was the product of a reasoned
         trial strategy. Appellant cannot show, however, that he
         was prejudiced by trial counsel’s inaction.

         Appellant’s PCRA petition cites Commonwealth v.
         Murphy[, 591 A.2d 278 (Pa. 1991)], in which defense
         counsel similarly failed to cross-examine a critical witness
         about potential bias. [ ] The Supreme Court wrote in
         Murphy:

            It was incumbent upon defense counsel to bring to
            the jury’s attention the possibility that [the witness]
            had a motive for testifying against the defendant,
            whether based upon a formal agreement with the
            prosecution or a subjective belief that she would
            receive favorable treatment with regard to her
            juvenile probation. If defense counsel was able to
            show that [the witness] was biased, it would have, in
            all probability, affected the outcome of the
            proceeding.

            Id. at 280-281.

         The instant case is distinguishable from Murphy because
         Appellant was convicted following a nonjury trial, rather
         than a jury trial. It was abundantly clear to this [c]ourt
         that Mojica had acted as an accomplice during this criminal
         episode. Accordingly, we are aware that her testimony
         was likely incentivized by some agreement with the
         Commonwealth.         Similarly, since Mojica was an
         accomplice, this Court was well aware that she is a
         “corrupt and polluted source.”[6] A jury of laypersons may
         not be privy to such considerations in the absence of
         effective cross-examination by a defense attorney; the
         same cannot be said of this [c]ourt. We were the finder of
         fact at Appellant’s trial.     Accordingly, we can state
         unequivocally that our verdict would not have changed if
         trial counsel had pursued the disputed line of cross-

6
 “It is well established that in any case where an accomplice implicates the
defendant, the judge should tell the jury that the accomplice is a corrupt and
polluted source whose testimony should be viewed with great caution.”
Commonwealth v. Chmiel, 639 A.2d 9, 13 (Pa. 1994) (citation omitted).



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         examination. We analyzed Mojica’s testimony with great
         caution, and we ultimately found it to be accurate and
         reliable.

         We also note that Mojica’s credibility was otherwise
         impeached by Appellant’s trial counsel and counsel for the
         codefendant, Alexander Cruz-Cintron.         The cross-
         examination emphasized Mojica’s role as an accomplice in
         the crime, in addition to the fact that she had initially
         given the police a different story.

Trial Ct. Op. at 5-6.

      We agree with the trial court that Appellant presented an underlying

claim of arguable merit, and that it is unlikely that trial counsel’s decision

not to cross-examine Mojica about whether she and the Commonwealth had

entered into an agreement favorable to her in exchange for her testimony

was the product of a reasoned trial strategy. However, Appellant has failed

to demonstrate that, but for counsel’s ineffectiveness, the outcome of his

trial would have been different. Because Appellant has failed to establish all

of the prongs of the ineffectiveness test as set forth in Fulton, supra,

Appellant is not entitled to relief.    See Champney, 65 A.3d at 396.

Accordingly, we affirm the Order of the PCRA court dismissing Appellant’s

PCRA Petition.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2016




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