J-S84004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
ROGELIO ZALDIVAR PENA                   :
                                        :
                   Appellant            :   No. 772 MDA 2017

              Appeal from the PCRA Order January 14, 2016
   In the Court of Common Pleas of Lebanon County Criminal Division at
                     No(s): CP-38-CR-0000942-2010

BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                          FILED MARCH 21, 2018

      Appellant, Rogelio Zaldivar Pena, appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed a petition seeking

to withdraw representation.    We grant counsel’s petition to withdraw and

affirm the order of the PCRA court.

      This Court previously summarized the facts of the case in Appellant’s

direct appeal, as follows:

             On May 12, 2010, a stabbing occurred in a parking lot at
      Aldi’s food store in Lebanon City, Lebanon County, Pennsylvania.
      Prior to the stabbing, [Appellant] and the victim were arguing
      inside Aldi. The[se] men left inside the store at approximately
      the same time. There was an altercation in the parking lot.
      [Appellant] and the victim were seen grappling with each other
      in the Aldi parking lot before the victim was stabbed. The victim
      was lying partially inside of [Appellant’s] van door, and the body
      was on the ground. A man was standing over top of the victim.
      A stream of blood was flowing from the victim’s chest.
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            There were numerous witnesses that testified that after
     the stabbing [Appellant] came back into the store, and he was
     holding a bloody knife. There was testimony that [Appellant]
     said it was self-defense when he came back into the store.
     There was also testimony that [Appellant] stated that a person
     tried to rob him. [Appellant] left the store again, and eventually
     placed the knife on the ground outside. [Appellant] was taken
     into custody at the scene that day.

            Johanna Morales (hereinafter “Morales”) knew [Appellant]
     and the victim. The victim was like a father figure to Morales.
     [Appellant] and the victim knew each other.         Morales had
     borrowed money from [Appellant] more than one time.
     [Appellant] would ask for his money back, and Morales would
     feel threatened. Morales told the victim about the problems she
     was having with [Appellant]. The night before the victim was
     killed, [Appellant] came by Morales’ house. The next morning,
     [Appellant] came back to Morales’ house. [Appellant] told the
     victim that Morales owed him money, and the victim told
     [Appellant] to leave her alone.         Then, [Appellant] left.
     [Appellant] called Morales later. Morales agreed to go to Aldi’s
     to pay him. Prior to going to Aldi, Morales went to lunch with
     the victim and her children. At lunch, Morales saw [Appellant].
     When leaving lunch, [Appellant] gave Morales a note, which
     stated he would fight for her and “I am not scared to die for
     you.” After lunch, Morales, the victim, and her children all went
     to Aldi’s, and they saw [Appellant] there. Morales paid for the
     groceries of [Appellant] and for a friend of [Appellant’s], Jose
     Ramos-Flores.

Commonwealth v. Pena, 100 A.3d 323, 1499 MDA 2013 (Pa. Super.

March 28, 2014) (unpublished memorandum at 2–3) (internal citations

omitted).

     A jury convicted Appellant of third-degree murder, 18 Pa.C.S. § 2501,

and aggravated assault, 18 Pa.C.S. § 2702. On February 28, 2011, the trial

court sentenced Appellant to twenty to forty years in prison for homicide and

held that the aggravated-assault conviction merged for sentencing purposes.


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Appellant filed post-sentence          motions, which the   trial court denied.

Appellant filed a timely notice of appeal, 1668 MDA 2011,1 that this Court

dismissed on February 8, 2012, for failure to file a brief. Pena, 1499 MDA

2013, unpublished memorandum at 3.

        On February 6, 2013, Appellant, pro se, filed a PCRA petition.     The

PCRA court appointed counsel, who filed an amended petition on March 27,

2013.     Following a hearing, the PCRA court reinstated Appellant’s direct

appeal rights nunc pro tunc on August 12, 2013.        This Court affirmed the

judgment of sentence on March 28, 2014, Pena, 1499 MDA 2013, and our

Supreme Court denied Appellant’s petition for allowance of appeal on

November 14, 2014.         Commonwealth v. Pena, 110 A.3d 997, 241 MAL

2014 (Pa. 2014).

        Appellant, through counsel, filed a timely PCRA petition on July 16,

2015, which was treated as a first PCRA petition.2 The PCRA court held a

hearing on January 14, 2016. On January 15, 2016, the PCRA court denied

PCRA relief. Thereafter, despite Appellant’s alleged request, counsel failed

____________________________________________


1   The Commonwealth erroneously reports that Appellant failed to file a
direct appeal. Commonwealth’s Brief at 10.

2  Because Appellant’s first petition resulted in the restoration of his direct
appeal rights, the July 16, 2015 petition was akin to a first PCRA petition.
See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013)
(“[W]hen a PCRA petitioner’s direct appeal rights are reinstated nunc pro
tunc in his first PCRA petition, a subsequent PCRA petition will be considered
a first PCRA petition for timeliness purposes.”).



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to file an appeal from the denial of PCRA relief. Appellant then filed a motion

to reinstate his appellate rights on May 4, 2016, which the PCRA court

treated as a PCRA petition. The PCRA court appointed counsel on May 13,

2016, and directed counsel to file an amended PCRA petition. Counsel filed

an amended petition on November 1, 2016, and the PCRA court scheduled a

hearing for January 5, 2017, which was rescheduled to April 20, 2017.

Following the hearing, the PCRA court reinstated Appellant’s appellate rights

nunc pro tunc on April 24, 2017. Order, 4/24/17. This appeal followed on

May 1, 2017.

       On May 12, 2017, Appellant filed a court-ordered statement pursuant

to Pa.R.A.P. 1925(b).          The PCRA court, rather than file a Rule 1925(a)

opinion, noted on May 18, 2017, “[A]ll errors are addressed in our Opinion

dated January 14, 2016, and we adhere to that analysis.” Order, 5/18/17.3

       PCRA    counsel       filed   a      petition   to   withdraw   as    counsel      and    a

Turner/Finley4       brief     in    this     Court    on   September       26,   2017.         On

September 29, 2017, this Court ordered PCRA counsel to send a new letter

____________________________________________


3  The January 14, 2016 order is not an opinion; rather, it is an attachment
of five pages of notes of testimony from the January 14, 2016 PCRA hearing.
However, the page numbers of the attached pages do not comport with the
pages of the notes of testimony. The January 14, 2016 order attaches
pages 55 through 59, and the corresponding pages of the notes of testimony
are pages 53 through 57. N.T., 1/14/16, at 53–57.

4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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to Appellant clarifying that Appellant has the immediate right to proceed pro

se or through privately retained counsel, Commonwealth v. Muzzy, 141

A.3d 509 (Pa. Super. 2016), because counsel’s prior letter indicated that

Appellant could so proceed “if” this Court granted the request to withdraw.

Order, 9/29/17. Counsel complied with our order.

      Prior to addressing Appellant’s claims on appeal, we must address

counsel’s petition to withdraw as counsel. When counsel seeks to withdraw

representation in a collateral appeal, the following conditions must be met:

            Counsel petitioning to withdraw from PCRA representation
      must proceed ... under [Turner and Finley and] ... must review
      the case zealously. Turner/Finley counsel must then submit a
      “no-merit” letter to the trial court, or brief on appeal to this
      Court, detailing the nature and extent of counsel’s diligent
      review of the case, listing the issues which petitioner wants to
      have reviewed, explaining why and how those issues lack merit,
      and requesting permission to withdraw.

            Counsel must also send to the petitioner: (1) a copy of the
      “no merit” letter/brief; (2) a copy of counsel’s petition to
      withdraw; and (3) a statement advising petitioner of the right to
      proceed pro se or by new counsel.

                                   * * *

             [W]here counsel submits a petition and no-merit letter that
      ... satisfy the technical demands of Turner/Finley, the court—
      trial court or this Court—must then conduct its own review of the
      merits of the case. If the court agrees with counsel that the
      claims are without merit, the court will permit counsel to
      withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).




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       Here, counsel described the extent of his review, evaluated the issues,

and concluded that the appeal is frivolous.          Counsel has also listed issues

relevant to this appeal and explained why, in his opinion, the issues are

without merit. In addition, counsel has included the revised letter sent to

Appellant containing a copy of his motion to withdraw and a statement

advising Appellant of his right to proceed pro se or through privately-

retained counsel. Thus, we conclude that counsel has substantially complied

with   the    requirements      necessary      to   withdraw   as   counsel.   See

Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)

(holding that substantial compliance with the requirements to withdraw as

counsel will satisfy the Turner/Finley criteria).          We now independently

review Appellant’s claims to ascertain whether they entitle him to relief.5

       Appellant raises the following issues in the Turner/Finley brief:

          A. Whether the PCRA Court erred in denying Appellant’s PCRA
             Petition claiming ineffective assistance of counsel for failing
             to present the entirety of a recorded prison phone call
             involving the Appellant’s statements?

          B. Whether the PCRA Court erred in denying Appellant’s PCRA
             Petition claiming ineffective assistance of counsel for failing
             to present the entire Aldi surveillance video to establish
             the Appellant acted in self-defense?

          C. Whether the PCRA Court erred in denying Appellant’s PCRA
             Petition claiming ineffective assistance of counsel when the
             Appellant informed counsel that the letter authored by the
____________________________________________


5   We note that Appellant has not filed either a pro se brief or retained
alternate counsel for this appeal.



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            Appellant in Spanish was not properly translated by a
            court-approved interpreter?

Turner/Finley Brief at 5.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error.   Commonwealth v. Robinson, 139 A.3d 178, 185

(Pa. 2016). The PCRA court’s findings will not be disturbed unless there is

no support for them in the certified record. Commonwealth v. Lippert, 85

A.3d 1095, 1100 (Pa. Super. 2014).

      All of Appellant’s issues raised in this appeal assert the ineffective

assistance of trial counsel. To plead and prove the ineffective assistance of

counsel (“IAC”), a petitioner must establish: (1) that the underlying issue

has arguable merit; (2) counsel’s actions lacked an objective reasonable

basis; and (3) actual prejudice resulted from counsel’s act or failure to act.

Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en

banc). A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to meet any one of these prongs. Commonwealth v. Martin, 5 A.3d

177, 183 (Pa. 2010).       Counsel is presumed to have rendered effective

assistance of counsel.    Commonwealth v. Montalvo, 114 A.3d 401, 410

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(Pa. 2015).       We have explained that trial counsel cannot be deemed

ineffective for failing to pursue a meritless claim.             Commonwealth v.

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).                   “We need not

analyze the prongs of an ineffectiveness claim in any particular order.

Rather, we may discuss first any prong that an appellant cannot satisfy

under the prevailing law and the applicable facts and circumstances of the

case.”    Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016)

(citing Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)).

       Appellant’s first issue alleges trial counsel’s ineffectiveness in failing to

present    at   trial   the   entirety   of    a   recorded   prison   telephone   call.

Turner/Finley Brief at 15.6 Appellant testified at the PCRA hearing that he

wanted the entire telephone call played for the jury so that the jurors could

recognize Appellant’s voice.        N.T., 1/14/16, at 41.       Trial counsel testified

that the telephone call in question was redacted to eliminate references to

Appellant’s prison account and his expressed need of adding additional funds

to the account. Id. at 17.

       In rejecting this issue, the PCRA court noted that at trial, trial counsel

provided Appellant with “ample opportunity to explain the phone call in its

____________________________________________


6 Not only does the Turner/Finley brief switch between labeling the issues
A–C in the statement of the questions and 1–3 in the body of the brief, the
order of the issues presented in the two portions of the brief is altered. We
address the issues consistently with their presentation in the statement of
the questions presented.



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totality.” Order, 1/15/16, at 56; N.T., 1/14/16, at 55. Further, the PCRA

court determined that counsel’s trial strategy was “sound and legitimate.”

Id.   We concur.     Counsel’s explanation for redacting a portion of the

telephone call was reasonable trial strategy aimed at protecting Appellant

from potential prejudice by jurors focusing on the fact that Appellant was in

prison.   “With regard to ‘reasonable basis,’ the PCRA court ‘does not

question whether there were other more logical courses of action which

counsel could have pursued; rather, the court must examine whether

counsel’s decisions had any reasonable basis.’” Commonwealth v. Mason,

130 A.3d 601, 618 (Pa. 2015).       Here, Appellant failed to show that trial

counsel had no reasonable basis for his action, and thus, we reject this IAC

claim. See Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 783 (Pa.

Super. 2015) (The appellant’s failure to support his contention that his trial

counsel had no reasonable basis for inaction results in rejection of the IAC

claim).

      Appellant next asserts the PCRA court erred in denying Appellant’s IAC

claim for failing to present the entire Aldi surveillance video to establish that

Appellant acted in self-defense.    Turner/Finley Brief at 14–15. Appellant

testified at the PCRA hearing that there was video from inside the Aldi store

that showed the victim threatening Appellant and counsel was ineffective for

not showing the video to the jury. N.T., 1/14/16, at 35.




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      Defense counsel testified at the PCRA hearing that the entire defense

“was to claim self-defense in the stabbing of [the victim].” N.T., 1/14/16, at

20. When asked about failing to present video from inside Aldi’s to the jury,

defense counsel extensively described the existing video and its presentation

to the jury, making clear that the interaction described by Appellant was

outside of the camera angle.

      [Trial Counsel:] The interaction between [Appellant] and
      [the victim] did not appear on the video. The Aldi video
      actually had four different camera locations. The top left was
      the entryway that showed the entrance from the exterior of the
      store, the lobby and then the entrance into the main store itself.
      Basically the glass box that was the entrance. The bottom left
      view, I believe it was bottom left, was actually the—a
      refrigerated cabinet or refrigerated or a cooler at the back.

            The interaction that [Appellant] had spoken of actually had
      taken place down further. And I believe per his testimony, as
      well as [the witness’s] testimony, it took place in front of the ice
      cream cooler which was a different—which was a different type
      of cabinet refrigerated area.

            The other two views in the video and I may be reversing
      where they are, but it’s four separate screens that you could
      look at each individually. One of which showed the rear loading
      door which was [of] little to no value whatsoever to anything.
      And the last one was the cash wrap area where on video you
      could see [Appellant] organizing his groceries and going through
      the checkout, organizing his groceries and then being followed
      from the store by [the victim].

      [PCRA Counsel: ] And given those four particular camera
      angles that depict or depicted the inside of the Aldi’s, what was
      your rationale in not displaying to the jury essentially that entire
      video from the moment that [Appellant] and [the witness]
      arrive[]—we add to the mix that the victim in the case—to the
      point where both of them exit the store?




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      [Trial Counsel:] Actually the jury had the opportunity to
      view all of that. They viewed the entry of [Appellant] into the
      store. They viewed the entry of then [a witness] and [the
      victim] whenever they arrived separately. I don’t believe that
      we were able to identify—there were actually two or three
      witnesses who had—who we had spoken to—had a private
      investigator speak with—who had indicated they were at the Aldi
      at the time, but we could not identify positively those individuals
      entering the store.

             The jury also had the opportunity and saw the entirety of
      the waiting in line, the checkout, [the witness] going and paying,
      [Appellant] then organizing his groceries and then exiting the
      store.

            The other two views would frankly have been just the
      same as watching a blank screen. There was no evidentiary
      value one way or the other to those other screens.

      [PCRA Counsel:] To your knowledge, did the video at any
      point—regardless of the fact that the jury had the opportunity to
      look at this—did any of the videos based upon your preparation
      depict the victim besides—obviously did not depict this
      interaction where words were allegedly exchanged between the
      victim and [Appellant]. Were there any—was there any video
      available that would depict the victim’s demeanor, physical
      demeanor prior to leaving the store or at the time that he was
      leaving the store?

      [Trial Counsel:] Absolutely. And I’m sure you’ve reviewed the
      transcript and got to see in my closing that I placed great weight
      and great argument and—onto the you’ve seen the video.
      You’ve seen [the victim] follow [Appellant] out the door. The
      argument was [Appellant], never turns around, never pays him
      any mind. Never engages in any interaction with him. And [the
      victim] followed [Appellant] out the door 10 seconds later after
      standing off to the side waiting and watching. And I don’t know
      that I use the argument that he was stalking him, but this was
      clearly a man who was waiting for [Appellant] to leave the store.
      And then you see him follow him out.

N.T., 1/14/16, at 6–9 (emphases added). Thus, trial counsel testified that

the jury was able to view the video inside the store in its entirety.

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      The PCRA court, in rejecting this claim, noted that the video inside the

store was played in its entirety. The PCRA court stated:

      I watched it [the video] like the jury did. My recollection is
      the entire interaction was played. You might remember
      something different in your recollection of the interaction that
      perhaps you perceived the video didn’t show. But I do not recall
      nor does the record recall anything where that video was edited,
      cut out. The video was played in its entirety. This jurist
      recalls seeing you along with the others at the checkout. Seeing
      him follow you out and then it obviously cuts out because there
      were no cameras outside of Aldi’s.

Order, 1/15/16, at 57; N.T., 1/14/16, at 56 (emphases added). As counsel

will not be deemed ineffective for failing to assert a baseless claim,

Commonwealth v. Sheppard, 648 A.2d 563 (Pa. Super. 1994), we

conclude the PCRA court did not err in denying relief on this basis.

      Lastly, Appellant contends that trial counsel was ineffective for failing

to correct a translation by a court-approved interpreter of a letter that

Appellant   wrote   in   Spanish,   which    was   presented   to      the   jury.

Turner/Finley Brief at 17–18.        This claim is based upon Appellant’s

testimony at the PCRA hearing wherein he asserted that the interpreter

mistakenly used the word “he” twice, rather than using the word “you” in

place of the second “he.” N.T., 1/14/16, at 37.

      We note that Appellant never clearly identified where in the letter the

misinterpretation occurred. N.T., 1/14/16, at 37. Despite that ambiguity,

the PCRA court was able to identify the portion of the letter, and it noted




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that any misstatement was corrected prior to presentation.         The court

stated:

      Unfortunately for [Appellant], what the jury heard, which was
      read to him[,] was exactly what he contended because that’s
      what the record says. And I quote on page 122 starting at line
      16 [of the trial testimony, N.T., 1/3–6/11] “that’s why I told you
      in the store that he found what you found for him a fight with
      me.”

                                   * * *

      The [c]ourt finds that that was corrected and inconsistent with
      what you’re now saying and was the facts that the jury viewed.
      What you’re now concocting—I don’t know if it’s concocting or
      misinterpreting, is your belief that they heard he because the
      translation letter might have said he. When in fact the evidence
      that the jury viewed was consistent in exactly with what you are
      now asserting should have been heard. So that can’t be a
      cognizable PCRA [claim] on behalf of [trial counsel]. It was
      corrected prior to reading. So that PCRA claim is unfounded.

Order, 1/14/16, at 54; N.T., 1/14/16, at 54–55 (emphases added). In light

of the fact that any misstatement was corrected, this claim lacks arguable

merit. Stewart, 84 A.3d at 706.

      We have concluded that Appellant’s issues either lack arguable merit

or that trial counsel exhibited reasonable strategy at trial. Our independent

review of the record in light of the PCRA petition, as well as the contents of

counsel’s motion to withdraw and Turner/Finley brief, compels our

agreement that the PCRA petition is meritless, and we permit counsel to

withdraw.

      Petition to withdraw granted. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/21/2018




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