J-S62020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

 MIGUEL ANGEL LANDRAU-MELENDEZ

                             Appellant                 No. 661 MDA 2017


                   Appeal from the PCRA Order March 28, 2017
                In the Court of Common Pleas of Lebanon County
               Criminal Division at No(s): CP-38-CR-0002086-2014


BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                       FILED NOVEMBER 22, 2017

       Miguel Angel Landrau-Melendez appeals from the March 28, 2017 order

entered in the Lebanon County Court of Common Pleas denying his petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

We affirm.

       The opinion prepared for direct appeal by the Honorable Bradford H.

Charles set forth a detailed factual history, which we adopt and incorporate

herein. See Opinion, 10/21/15, at 2-5. On May 7, 2015, a jury convicted

Landrau-Melendez of aggravated harassment by a prisoner, 18 Pa.C.S. §

2703.1,1 based on evidence that he threw a cup of urine on another inmate.
____________________________________________


       *   Retired Senior Judge assigned to the Superior Court.

       The trial court convicted Landrau-Melendez of harassment, 18 Pa.C.S.
       1

§ 2709, which, for sentencing purposes, merged with the other conviction.
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On June 17, 2015, the trial court sentenced Landrau-Melendez to 21 to 72

months’ incarceration on the conviction for aggravated harassment by a

prisoner. On November 18, 2015, Landrau-Melendez timely appealed to this

Court. On September 16, 2016, we affirmed his judgment of sentence.

     On June 20, 2016, Landrau-Melendez, acting pro se, filed the instant

PCRA petition.   On August 5, 2016, Landrau-Melendez, through appointed

counsel, filed an amended PCRA petition. On March 23, 2017, the trial court

held a hearing on the petition. On March 29, 2017, the trial court denied the

petition. On April 13, 2017, Landrau-Melendez timely filed an appeal.

     Landrau-Melendez raises seven issues on appeal:

           1. Whether Trial Counsel was ineffective for failing to
              take into account [Landrau-Melendez]’s comments on
              selecting the Jury and who Landrau-Melendez wanted
              and did not want on the Jury?

           2. Whether Trial Counsel was ineffective for failing to
              allow [Landrau-Melendez] to testify at trial after he
              stated his desire to do so?

           3. Whether Trial Counsel was ineffective for failing to call
              the cellmate of the victim . . . as a witness. Said
              witness would have aided in [Landrau-Melendez]’s
              defense?

           4. Whether Trial Counsel was ineffective for failing to
              request and use [Landrau-Melendez]’s misconduct
              report. Said report would have aided in [Landrau-
              Melendez]’s defense?

           5. Whether Trial Counsel was ineffective for failing to
              adequately cross-examine . . . Captain [Ott] during
              cross-examination.        [Landrau-Melendez]      had
              requested Trial Counsel to question him on where and
              how the interview took place and also how he obtained
              the letter that [Landrau-Melendez] allegedly wrote?

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            6. Whether Trial Counsel was ineffective for failing to
               subpoena a handwriting expert to prove that
               [Landrau-Melendez] did not write the confession
               letter?

            7. Whether the Trial Court erred when it appointed
               Attorney Elizabeth Judd, after she was found to be
               ineffective in another case where she represented
               [Landrau-Melendez.]

Landrau-Melendez’s Br. at 4-5.

      Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the PCRA

court’s factual findings “unless there is no support for [those] findings in the

certified record.” Commonwealth v. Melendez-Negron, 123 A.3d 1087,

1090 (Pa.Super. 2015).

      All but the last of Landrau-Melendez’s claims asserts trial counsel

ineffectiveness. To prevail on ineffective assistance of counsel claims, “[the

PCRA petitioner] must plead and prove, by a preponderance of the evidence,

three elements: (1) the underlying legal claim has arguable merit; (2) counsel

had no reasonable basis for his action or inaction; and (3) [the petitioner]

suffered prejudice because of counsel’s action or inaction.” Commonwealth

v. Spotz, 18 A.3d 244, 260 (Pa. 2011).       “The law presumes counsel was

effective.” Commonwealth v. Miner, 44 A.3d 684, 687 (Pa.Super. 2012).

“A claim of ineffectiveness will be denied if the petitioner’s evidence fails to




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meet any of these prongs.” Commonwealth v. Williams, 980 A.2d 510,

520 (Pa. 2009).

       First, Landrau-Melendez argues that his counsel at jury selection,

Nicholas J. Sidelnick, Esquire,2 “was ineffective for failing to listen to [his]

requests and direction regarding the selection of his jury.”          Landrau-

Melendez’s Br. at 10. Landrau-Melendez claims that he expressed concerns

to counsel about the racial makeup of his jury and that counsel said there was

little he could do because “almost all the jury that come[s] over here is like

white, in the middle, old persons.” Id. at 9 (quoting N.T., 3/23/17, at 9).

       The trial court concluded that Landrau-Melendez’s claim lacked merit

chiefly because the court found that Landrau-Melendez never raised an issue

regarding jury composition with trial counsel. Opinion, 6/2/17, at 6 (“1925(a)

Op.”). The trial court also observed that “it is not unusual for Lebanon County

juries to be predominantly Caucasian” based on the county’s demographics.

Id.

       To the extent that Landrau-Melendez is claiming that counsel should

have objected on the basis that the jury panel was not a fair cross-section of



____________________________________________


       2Landrau-Melendez was represented by the public defender through his
direct appeal.    While Landrau-Melendez was primarily represented by
Elizabeth Judd, Esquire, he was counseled at jury selection by Attorney
Sidelnick, another member of the public defender’s office. N.T., 3/23/17, at
28.




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the community,3 Landrau-Melendez presented no evidence that would support

such a claim. Further, counsel did not recall Landrau-Melendez raising any

discussions or concerns during the jury selection process and recalled telling

other defendants that there is little he could do to change the racial makeup

of the jury pool other than tell clients to “write down any particular people

that they don’t want in the jury.” N.T., 3/23/17, at 30. Counsel also testified

that if there had been an issue with the racial makeup of the jury, he would

have objected to preserve that issue.            See id. at 32-33.   Under these

circumstances, Landrau-Melendez failed to demonstrate that trial counsel

lacked a reasonable basis for not objecting during jury selection. Accordingly,

the trial court did not err in dismissing this claim.

       Next, Landrau-Melendez argues that his trial counsel, Elizabeth Judd,

Esquire, was ineffective for failing to allow him to testify on his own behalf.

According to Landrau-Melendez, he told trial counsel that he wanted to testify.

Landrau-Melendez asserts that he told the trial court he did not want to testify

in his own defense “[b]ecause [he] thought [he] was doing the right thing at

the moment” by following trial counsel’s advice not to testify.         Landrau-

Melendez’s Br. at 15.

____________________________________________


       To prevail on such a challenge, a defendant must show that “1) the
       3

group allegedly excluded is a distinctive group in the community; 2)
representation of this group in the pool from which juries are selected is unfair
and unreasonable in relation to the number of such persons in the community;
and 3) the under-representation is due to the systematic exclusion of the
group in the jury selection process.” Commonwealth v. Lopez, 739 A.2d
485, 495 (Pa. 1999) (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)).

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      Our Court has stated:

         [T]he decision to testify on one’s own behalf:

            is ultimately to be made by the accused after full
            consultation with counsel. In order to support a claim
            that counsel was ineffective for “failing to call the
            appellant to the stand,” [the appellant] must
            demonstrate either that (1) counsel interfered with his
            client’s freedom to testify, or (2) counsel gave specific
            advice so unreasonable as to vitiate a knowing and
            intelligent decision by the client not to testify in his
            own behalf.

         [Commonwealth v. Thomas, 783 A.2d 328,] 334
         [Pa.Super. 2001)].      “Counsel is not ineffective where
         counsel’s decision to not call the defendant was reasonable.”
         Commonwealth v. Breisch, 719 A.3d 352, 355 (Pa.Super.
         1998).

Commonwealth v. Todd, 820 A.2d 707, 711 (Pa.Super. 2003).

      Here, the trial court colloquied Landrau-Melendez on his right to testify

and ensured his decision not to do so was voluntary. N.T., 5/7/15, at 48-49.

Under these circumstances, we agree with the trial court’s conclusion that trial

counsel did not interfere with Landrau-Melendez’s right to testify in his own.

      Next, Landrau-Melendez argues that trial counsel was ineffective for

failing to call the victim’s cellmate, Bryan Bennett, as a witness at trial.

According to Landrau-Melendez, “Bennett’s testimony would have been very

crucial as to what occurred at the time of alleged incident. . . . [and h]ad [t]rial

[c]ounsel called [] Bennett to testify at trial, the [j]ury would have been able

to determine that [Landrau-Melendez] did not commit such acts.” Landrau-

Melendez’s Br. at 21.



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      To establish counsel’s ineffectiveness for failing to call a potential

witness, a petitioner must show 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. To demonstrate . . .
         prejudice, a petitioner “must show how the uncalled
         witnesses’ testimony would have been beneficial under the
         circumstances of the case.” Thus, counsel will not be found
         ineffective for failing to call a witness unless the petitioner
         can show that the witness’s testimony would have been
         helpful to the defense. A failure to call a witness is not per
         se ineffective assistance of counsel for such decision usually
         involves matters of trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (internal

citations and some quotations marks omitted).

      The trial court dismissed this claim because Attorney Judd testified that

Landrau-Melendez had admitted his guilt to her and, had Bennett witnessed

the incident, Attorney Judd “could have legitimately believed that [] Bennett

would tell the truth and describe what [Landrau-Melendez] himself admitted

doing.” 1925(a) Op. at 10.

      We conclude that Landrau-Melendez’s claim is meritless. Trial counsel

testified that she and Landrau-Melendez had discussed Bennett passing the

note to the victim, but that Landrau-Melendez “did not bring to [her]

attention] a witness that he wanted subpoenaed and brought to trial.” N.T.,

3/23/17, at 37. Further, Landrau-Melendez did not establish that Bennett was

available or willing to testify.


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       Next, Landrau-Melendez argues that trial counsel was ineffective for

failing to introduce a misconduct report4 from the Lebanon County

Correctional Facility regarding the incident. According to Landrau-Melendez,

because the report did not disclose that Landrau-Melendez admitted to the

offense or that there was any direct evidence linking Landrau-Melendez to the

offense, the report would have supported his defense.

       The trial court concluded that counsel had a reasonable basis for not

introducing the misconduct report because, even though the report lacked any

confession, “[t]here were many more things negative than positive in the

report.” 1925(a) Op. at 11. We agree.

       At the PCRA hearing, Attorney Judd testified that while misconduct

reports may sometimes help a defendant, she did not believe that this report

was helpful because it portrayed Landrau-Melendez as uncooperative and

combative. N.T., 3/23/17, at 37. Attorney Judd further stated that the report

was unhelpful because it disclosed that when corrections officers confronted

Landrau-Melendez, he told them “you would have to test the urine, you have

my DNA.” Id. at 38. Attorney Judd stated that she was “relieved when the

report wasn’t brought up because there were more things that were negative

for him than positive.” Id. at 38. Given these issues with the misconduct

report, we agree with the trial court that Attorney Judd had a reasonable basis

for not introducing it at trial.
____________________________________________


       4Landrau-Melendez did not attach a copy of the report to his PCRA
petition or his brief, nor did he introduce the report at his PCRA hearing.

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      Next, Landrau-Melendez argues that trial counsel was ineffective

because she inadequately cross-examined Captain Michael Lee Ott of the

Lebanon County Correctional Facility.    According to Landrau-Melendez, he

asked Attorney Judd to cross-examine Captain Ott about (1) “being how that

chain command that the letter got to the victim,” and (2) who was at the

interview, “to try to poke hole in the interview.” Landrau-Melendez’s Br at 28

(quoting N.T., 3/23/17, at 22). Landrau-Melendez asserts that Attorney Judd

had no reasonable basis not to cross-examine Captain Ott.

      The trial court rejected this claim, concluding not only that it “did not

understand what it was [Landrau-Melendez] wanted to ask Captain Ott,” but

also that Landrau-Melendez presented “no evidence . . . that any answers that

Captain Ott could have offered would somehow have been helpful.” 1925(a)

Op. at 12. Further, the trial court noted that Attorney Judd was aware that

Captain Ott held information damaging to Landrau-Melendez’s case and, as a

result, Attorney Judd “believed that the best strategy in dealing with Captain

Ott was to ask as few questions as possible.” Id. Thus, Attorney Judd elected

not to cross-examine Captain Ott more extensively to avoid the release of

damaging information which, under the circumstances, was not ineffective

assistance.   Cf. Commonwealth v. Showers, 681 A.2d 746, 753-54

(Pa.Super. 1996) (concluding that decision to limit cross-examination of

Commonwealth’s forensic psychiatrist was reasonable because “an extended

cross-examination might have allowed [the expert] to restate his opinion




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regarding the deceased’s risk of suicide”). Under these circumstances, we

conclude that the trial court correctly dismissed this claim.

      Next, Landrau-Melendez argues that trial counsel was ineffective for

failing to subpoena a handwriting expert witness to prove that he did not write

the note the victim received.

      The trial court dismissed found this claim meritless, largely because

Landrau-Melendez told Attorney Judd that he had written the letter. At the

PCRA hearing, trial counsel testified that Landrau-Melendez told her that he

had written the note that was given to the victim. N.T., 3/23/17, at 40. Trial

counsel also testified that this informed her decision not to subpoena a

handwriting expert because she “believed it would be unethical to get an

expert” after learning that information. Id. at 41. Because Landrau-Melendez

admitted to trial counsel that he wrote the letter, the trial court did not err in

concluding that this claim was meritless.

      Finally, Landrau-Melendez argues that the trial court erred in appointing

Attorney Judd as trial counsel because Attorney Judd had provided ineffective

assistance to Landrau-Melendez in a different case. According to Landrau-

Melendez, because “Attorney Judd was previously found to be ineffective on

[his] behalf, [he] believes that it was not judicially fit to have that same

ineffective counsel appointed to another one of [his] cases.”

      The trial court concluded that this claim was meritless because Landrau-

Melendez “never filed a motion with the Court to remove Attorney Judd. . . .

[and] failed to express any concern verbally about Attorney Judd’s

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representation of him.” 1925(a) Op. at 13. In addition, the trial court found

that Attorney Judd acknowledged that she had missed a filing deadline for a

petition for allowance of appeal in Landrau-Melendez’s other case. Id. The

trial court also found that when Attorney Judd disclosed this mistake to

Landrau-Melendez and informed him that he could obtain another attorney in

this case, Landrau-Melendez expressed confidence and satisfaction with her

representation. Id.

      Despite being told that he could obtain another attorney, Landrau-

Melendez never filed a motion to remove Attorney Judd. He raised this issue

for the first time in his PCRA petition. Because Landrau-Melendez could have

raised this issue before the trial court, we conclude that Landrau-Melendez

has waived this claim. See 42 Pa.C.S. § 9544(b) (“[A]n issue is waived if the

petitioner could have raised it but failed to do so before trial, at trial, during

unitary review, on appeal or in a prior state postconviction proceeding.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2017




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