J-S30004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DANNY R. CRUZ,

                         Appellant                 No. 1872 MDA 2016


               Appeal from the PCRA Order October 7, 2016
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0005534-2013


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 25, 2017

      Appellant, Danny R. Cruz, appeals from the order entered October 7,

2016, denying his petition for relief filed pursuant to the Post Conviction

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

      A previous panel of this Court summarized the factual and partial

procedural history of this case as follows:

            On October 5, 2013, Carlos Dipres went with his friends
      Rafael Sanchez and Maritza David to a dance club, Anastacia’s,
      on Sixth Street in Harrisburg to dance and listen to the band in
      which another friend was a DJ. As Mr. Dipres walked to the bar
      to order a drink, Orlando Ayuso-Rivera (“Ayuso-Rivera”)
      accompanied by Appellant, tapped him on the shoulder.

            Mr. Dipres’ acquaintance with Ayuso-Rivera dated back to
      1997. In 1997, on two consecutive evenings, Mr. Dipres loaned
      his car to his then brother-in-law and Ayuso-Rivera, who told Mr.
      Dipres they needed the car to meet dates. At the time, Mr.
      Dipres was moving his residence and left [belongings], including
      a shotgun used for hunting, in the trunk of the car. On the
J-S30004-17


     second night of their use of the car, Ayuso-Rivera and the
     brother-in-law did not return. Mr. Dipres saw police officers and
     K-9 dogs surrounding the brother-in-law’s home a few blocks
     away. Mr. Dipres approached the scene and told officers he was
     there to pick up his vehicle.     Officers arrested Mr. Dipres,
     believing that he participated in robberies of fast food
     restaurants on the two previous nights in which the vehicle was
     used.

           Mr. Dipres told police that he was not present at the
     robberies.    Mr. Dipres instead became a witness after the
     Commonwealth charged Ayuso-Rivera with the robberies. Mr.
     Dipres testified against Ayuso-Rivera at trial following which a
     jury convicted Ayuso-Rivera.

            Mr. Dipres next saw Ayuso-Rivera in 2010 at a shopping
     plaza in Harrisburg. Ayuso-Rivera expressed anger toward Mr.
     Dipres, who sought to avoid further confrontation. Dipres saw
     Ayuso-Rivera again in 2013, three months before the incident at
     issue.

           Before the incident, Dipres knew Appellant only by way of
     a few casual encounters in the community.

           On the night of this incident, October 5, 2013,
     accompanied by Appellant, Ayuso-Rivera tapped Dipres on the
     shoulder and indicated he wanted to fight. Security told them to
     take it outside. Before Dipres followed Ayuso-Rivera outside, he
     handed his cell phone and keys to his friend Rafael Sanchez and
     instructed him to call the police. Dipres told Sanchez that people
     were calling him “a rat” and “a snitch”.

           Before leaving the club, Dipres did not see a gun. Dipres
     had a knife, but did not take it out because he believed he was
     going to have a fistfight with Ayuso-Rivera. Mr. Dipres stepped
     outside to the parking lot. A group of approximately ten men
     followed Ayuso-Rivera and Appellant.

           Ayuso-Rivera and Appellant separated from the group and
     went to a car. Appellant returned with a gun.

           Having returned from the car with Appellant, Ayuso-Rivera
     called Dipres “a rat” and “the snitch who wanted to ruin
     someone’s life”, stating, “yeah, he’s the snitch, he’s the snitch.”

                                    -2-
J-S30004-17


     The group of men who surrounded Dipres began brutally beating
     him with bottles, a metal object, and punches and kicks to the
     head.

           Appellant approached the crowd and fired one shot which
     caused the group to scatter. Appellant then stepped back and
     shot Dipres four times at close range. Dipres was conscious the
     entire time and saw Appellant shoot him.

           Rafael Sanchez testified that he went outside to the
     parking lot and he saw the group punching and kicking Dipres.
     He began to intervene but stopped when he saw Appellant with
     the gun.

            Officer Christopher Silvio responded to the scene where he
     saw people frantically waving and pointing to Mr. Dipres. The
     officer observed that Mr. Dipres had been shot and was bleeding
     profusely. Emergency personnel transported Mr. Dipres to the
     Hershey Medical Center.        Officer Silvio testified that in the
     ambulance, Mr. Dipres stated that the shooter approached him
     and said something to the effect of “you’re the snitching bitch”
     or “I know you’re the snitching bitch.”

            Dipres suffered a broken nose, wounds to the head from
     pistol whipping, and gunshot wounds to the elbow, thigh and
     torso which required surgery . . . .

           Although he did not know Appellant’s name at the time,
     Dipres identified him in a police photo array as the person who
     shot him.     Mr. Dipres stated that he could not remember
     Appellant’s name but could never forget his face.          Rafael
     Sanchez also identified Appellant in a photo array and at trial as
     the shooter.

           The jury viewed video surveillance film taken at
     Anastacia’s on the night of the incident.   The film depicts
     Appellant in a private conversation with Ayuso-Rivera in the
     crowded club then the two approaching Mr. Dipres. Appellant
     stood close to Ayuso-Rivera as he spoke to Mr. Dipres shortly
     before the shooting.

          A jury convicted Appellant of criminal attempt–murder of
     the first degree, aggravated assault, criminal conspiracy–
     aggravated assault, criminal conspiracy–firearms not to be

                                    -3-
J-S30004-17


        carried without a license, possession of a firearm prohibited, and
        retaliation against witness or victim.1 The trial court sentenced
        Appellant to an aggregate term of 101/2 to 23 years’
        incarceration. Appellant filed a post-sentence motion, which the
        trial court denied. [A] timely appeal followed.
              1
                 18 Pa.C.S.A. §§ 901; 2702(a)(1);           903(c);
              6105(a)(1); and 4953(a), respectively.
              2
                The trial court vacated the conviction of possession
              of a firearm prohibited prior to sentencing.

Commonwealth v. Cruz, 141 A.3d 587, 537 MDA 2015 (Pa. Super. filed

February 5, 2016) (unpublished memorandum).

        This Court affirmed Appellant’s judgment of sentence on February 5,

2016. Id. Appellant did not petition the Pennsylvania Supreme Court for

allowance of appeal.

        On March 21, 2016, Appellant filed a pro se PCRA petition.           PCRA

counsel was appointed on April 4, 2016. On May 3, 2016, PCRA counsel filed

a no-merit letter and request to withdraw.       On September 16, 2016, the

PCRA court entered a notice of intent to dismiss and granted counsel’s

request to withdraw.        Appellant submitted a response on September 29,

2016.    The PCRA court dismissed Appellant’s PCRA petition on October 7,

2016.     Appellant filed a notice of appeal on November 7, 2016. 1          Both

Appellant and the trial court complied with Pa.R.A.P. 1925.2

____________________________________________


1
 Because the thirtieth day of the appeal period, November 6, 2016, fell on a
Sunday, Appellant had until Monday, November 7, 2016, to file his notice of
appeal. See 1 Pa.C.S. § 1908 (stating that, for computations of time,
(Footnote Continued Next Page)


                                           -4-
J-S30004-17


      Appellant presents the following issue for our review:

      1.     Was PCRA counsel ineffective for not raising trial counsel’s
             ineffectiveness for failing to object to the sentencing judge
             confusion of which defendant that he was actually
             sentencing.

Appellant’s Brief at vi (verbatim).

      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. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011).                 The PCRA court’s findings will not be

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

Id.

      When considering an allegation of ineffective assistance of counsel

(“IAC”), counsel is presumed to have provided effective representation

unless the PCRA petitioner pleads and proves that: (1) the underlying claim

is of arguable merit; (2) counsel had no reasonable basis for his or her

conduct; and (3) petitioner was prejudiced by counsel’s action or omission.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet

the prejudice prong of the ineffectiveness standard, a defendant must show

                       _______________________
(Footnote Continued)

whenever the last day of any such period shall fall on Saturday or Sunday,
or a legal holiday, such day shall be omitted from the computation);
Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004).
2
 The PCRA court filed a statement in lieu of a memorandum opinion on
December 19, 2016.



                                            -5-
J-S30004-17


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

one of the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260

(Pa. 2013).     “The burden of proving ineffectiveness rests with Appellant.”

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

      “Where the defendant asserts a layered ineffectiveness claim he must

properly argue each prong of the three-prong ineffectiveness test for each

separate attorney.” Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.

Super. 2012).

          Layered claims of ineffectiveness are not wholly distinct from
      the underlying claims, because proof of the underlying claim is
      an essential element of the derivative ineffectiveness claim. In
      determining a layered claim of ineffectiveness, the critical inquiry
      is whether the first attorney that the defendant asserts was
      ineffective did, in fact, render ineffective assistance of counsel.
      If that attorney was effective, then subsequent counsel cannot
      be deemed ineffective for failing to raise the underlying issue.

Id. (internal citations and quotation marks omitted).

      Appellant argues that during his sentencing, the trial judge confused

him with his co-defendant, Ayuso-Rivera, by either sentencing him as if he

was his co-defendant, or by sentencing him as if he had the same history

with the victim. Appellant’s Brief at 4. Appellant asserts that, as a result,

he received a longer sentence than the judge would have otherwise

imposed.    Id.    Appellant maintains that trial counsel was ineffective for

                                        -6-
J-S30004-17


failing to object to the trial judge’s mistake.      Id. at 7-8.    Specifically,

“Appellant contends that he suffered prejudice from trial counsel’s failure to

object to the judge’s misunderstanding that it was him who had past

associations with the victim, when in fact it was his co-defendant who had a

past history with the victim.” Id. at 7. Appellant further argues that PCRA

counsel was ineffective for failing to raise trial counsel’s ineffectiveness. Id.

at 8.

        We find Appellant’s argument that the trial court mistook Appellant for

his co-defendant, or that it perceived Appellant as having the same history

with the victim as co-defendant, to be unpersuasive.         At the sentencing

hearing, it was made clear that there was a presentence investigation report

as well as a defense presentence investigation report prepared on Appellant

in this case.     N.T., Sentencing Hearing, 1/26/15, at 2.         “[W]here the

sentencing judge had the benefit of a presentence investigation report, it will

be presumed that he or she was aware of the relevant information regarding

the defendant’s character and weighed those considerations along with

mitigating statutory factors.”   Commonwealth v. Bricker, 41 A.3d 872,

876 n. 9 (Pa. Super. 2012). Additionally, the Commonwealth and defense

agreed that the conviction at Count four should be vacated, which resulted

in an amended prior record score. N.T., Sentencing Hearing, 1/26/15, at 3.

The trial court indicated that in sentencing Appellant, it considered the

amended prior record score, “read the presentence report, read the


                                      -7-
J-S30004-17


presentence mitigation memorandum, the letters, [and] attachments.” Id.

at 5.    Thus, we conclude that the trial court properly sentenced Appellant

and had significant information upon which to do so.

        Moreover, upon review of the sentencing hearing transcript, it is clear

that the trial court did not mistake Appellant for his co-defendant or

conclude that Appellant had the same history with the victim as did co-

defendant. Rather, the court’s comments regarding what happened ten to

twelve years ago were made in reference to Appellant’s motivation for

involvement in this crime as related to his relationship with Ayuso-Rivera.

N.T. (Sentencing), 1/26/15 at 5-6; N.T. (Jury Trial), 10/20/14 at 71-72.

Additionally, the trial court clearly understood that Appellant was the

individual who shot the victim, which conclusion was consistent with the

facts established at trial. N.T. (Sentencing), 1/26/15, at 6; N.T. (Jury Trial),

10/20/14 at 70, 75-76, 189. Accordingly, we cannot agree with Appellant’s

assertion that the trial court issued a longer sentence due to its

misapprehension regarding Appellant’s identity or history with the victim.

        Because we conclude that the trial court did not err in sentencing

Appellant, we cannot agree that trial counsel was ineffective for failing to

object    to   the   trial   court’s   alleged   mischaracterization   of   Appellant.

Accordingly, there is no arguable merit to this claim. Thus, the first prong of

the three-pronged ineffectiveness test has not been met. Spotz, 84 A.3d at

311.


                                          -8-
J-S30004-17


      Furthermore, because trial counsel was not ineffective, appellate

counsel cannot be deemed ineffective for failing to raise trial counsel’s

ineffectiveness.

      To establish the arguable merit prong of a claim of appellate
      counsel ineffectiveness for failure to raise a claim of trial counsel
      ineffectiveness, the petitioner must prove that trial counsel was
      ineffective under the three-prong [ineffectiveness] standard. If
      the petitioner cannot prove the underlying claim of trial counsel
      ineffectiveness, then petitioner’s derivative claim of appellate
      counsel ineffectiveness of necessity must fail, and it is not
      necessary for the court to address the other two prongs of the
      [ineffectiveness] test as applied to appellate counsel.

Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011).                 Accordingly,

Appellant’s claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




                                      -9-
