J-S36030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

MICHAEL FELICIANO,

                           Appellant                No. 2417 EDA 2016


                Appeal from the PCRA Order of June 30, 2016
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0000497-2011


BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                 Filed July 3, 2017

      Appellant, Michael Feliciano, appeals from the order entered on June

30, 2016, denying relief on his petition filed pursuant to the Post Conviction

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

      The trial court summarized the facts of the case in its direct appeal

opinion as follows:

        At the time of the events on trial, [Appellant] and his wife,
        Erica Brandau, were separated. Ms. Brandau was living at
        the Racquet Club Apartments in Middletown Township,
        Bucks County. [Appellant] resided in Philadelphia. After her
        separation from [Appellant], Ms. Brandau began dating the
        victim, Edwin Bayron. On October 13, 2010, approximately
        two weeks prior to the assault in the instant case, the victim
        and [Appellant’s] wife were at a local park. Just as they
        were about to leave the park, [Appellant] approached the
        victim and punched him in the back of his head. Ms.
        Brandau fled the area in her car. The victim was able to
        wrestle [Appellant] to the ground. [Appellant] fled the scene
        after a bystander called the police.
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       On October 30, 2010, shortly after 11:00 p.m., the victim
       and Ms. Brandau were standing outside of Ms. Brandau's
       apartment when they saw [Appellant] and an unidentified
       man walking toward them. Upon seeing [Appellant] and his
       companion, Ms. Brandau screamed, ran inside her
       apartment, and locked the door leaving the victim outside.
       The victim was unarmed. As [Appellant] approached, he
       stated, "Didn't I tell you not to mess with my wife?" After an
       exchange of words between the victim and [Appellant],
       [Appellant] charged the victim. As the two men began to
       fight, the victim was able to maneuver [Appellant] up
       against the apartment door. When he did so, the
       unidentified man pulled the victim away from [Appellant].
       Thereafter, [Appellant] again charged the victim. Ultimately
       the victim was able to wrestle [Appellant] to the ground.
       The victim was able to pin [Appellant’s] upper arms to the
       ground but was unable to control [Appellant’s] forearms and
       hands as [Appellant] continued to struggle with him for one
       or two minutes. When Ms. Brandau called out that the police
       were on their way, the unidentified man who had been
       standing off to the side watching the assault, approached
       the victim and, using both hands, pulled him off of
       [Appellant]. The victim got to his feet and realized for the
       first time that he had been stabbed. The victim testified that
       he never saw a knife.

       Ms. Brandau testified that after she went inside her
       apartment, she directed her son, Christian Rivera, to call
       911. Ms. Brandau testified that when she looked out the
       second floor window of her apartment, she saw the victim
       and [Appellant] struggling on the ground. The unidentified
       man who had arrived with [Appellant] was standing nearby
       watching them.

       Christian Rivera [] testified that he was home the night of
       the stabbing and was awakened by the sound of arguing.
       He testified that he could not see anything from his upstairs
       window. He stated that at his mother's direction, he called
       911. During that call, Christian told the dispatcher that
       [Appellant] was at the house and that the victim had been
       stabbed. While speaking with the dispatcher, Christian told
       [Appellant] to leave the house, saying "Don't do this."




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          In response to the 911 call, police officers from the
          Middletown Township Police Department responded to the
          Racquet Club Apartments. Upon arrival, an officer saw the
          victim outside of the apartment, bleeding from the left side
          of his body. A search of the property revealed no weapons
          on scene. A search of the area the next day likewise failed
          to produce any weapon.

          The victim was transported by ambulance to St. Mary's
          Medical Center. He remained hospitalized for two days.
          During the assault, he had been stabbed eleven times.
          Photographs of the victim taken at the hospital reveal large
          slicing wounds to his left side between his left hip and waist,
          stab wounds to the left side of his upper back, his left
          shoulder, the left side of his neck and the left side of his
          head.

          While incarcerated at the Bucks County Correctional Facility
          awaiting trial, [Appellant] spoke by telephone to an
          unidentified female. During these conversations, [Appellant]
          made inconsistent statements about what occurred the
          night of the offense. First, [Appellant] claimed that the
          victim was not, in fact, stabbed. [Appellant] claimed the
          victim stabbed him. Later, [Appellant] admitted to
          assaulting the victim and attempted to explain the victim's
          injuries as having been accidentally inflicted by the victim to
          himself. Finally, [Appellant] claimed that Ms. Brandau tried
          to stab [Appellant] and suggested that in doing so, she
          stabbed the victim by accident.

Trial Court Opinion (direct appeal), 8/27/2012, at 1-4 (record citations

omitted).

        The procedural history of this case is as follows. On August 11, 2011,

a jury convicted Appellant of: attempted murder,1 two counts of aggravated


____________________________________________


1
    18 Pa.C.S.A. §§ 901(a), 2502(a).




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assault,2 simple assault,3 and possessing an instrument of crime.4 The jury

acquitted    Appellant    of:      conspiracy    to   commit   aggravated   assault, 5

conspiracy to commit simple assault,6 and stalking.7           On March 23, 2012,

the trial court sentenced Appellant to a term of ten to 20 years’ incarceration

on the attempted murder charge, and a consecutive five-year probationary

period on the possession of an instrument of crime charge.

        Appellant filed a post-sentence motion on April 2, 2012.            The trial

court denied that motion by order dated June 7, 2012. This court affirmed

the judgment of sentence on April 18, 2013, and the Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal on October 22,

2013.

        The trial court appointed counsel to represent Appellant on March 24,

2014, following his timely pro se PCRA petition, filed on March 13, 2014.

PCRA counsel filed an amended petition on May 15, 2014. A PCRA hearing


____________________________________________


2
    18 Pa.C.S.A. §§ 2702(a)(1), (a)(4).
3
    18 Pa.C.S.A. § 2701(a)(1).
4
    18 Pa.C.S.A. § 2709.1(a)(1).
5
    18 Pa.C.S.A. §§ 903(c), 2702(a)(1), (a)(4).
6
    18 Pa.C.S.A. §§ 903(c), 2701(a)(1).
7
    18 Pa.C.S.A. § 2709.1(a)(1).




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was held on February 19, 2016. The PCRA court denied Appellant’s petition

by order dated June 30, 2016. This timely appeal followed.8

        Appellant raises the following issues on appeal:

        1. [Was trial counsel ineffective in failing] to call eyewitness, Lawrence
           Cooper, at trial who would have provided exculpatory evidence on
           Appellant’s behalf[?]

        2. [Was trial counsel ineffective in failing] to call Keyani Smith as a
           witness to rebut the testimony of a key Commonwealth witness,
           Erica [Brandau], and who would have explained that Appellant had
           no ill-intent in going to her home on the night in question[?]

        3. [Was trial counsel ineffective in failing] to call a witness regarding
           the Complainant’s medical records [which stated] that he was
           “stabbed by an unknown assailant from behind”[?]

        4. [Was trial counsel ineffective in failing] to present evidence
           regarding Appellant’s previous back injury, which would have
           proved Appellant was physically incapable of committing the crimes
           of which he was convicted[?]

        5. [Was trial counsel ineffective in failing] to properly redact
           Appellant’s medical records, which contained multiple, highly
           prejudicial   references to   Appellant   “being cleared  for
           incarceration”[?]

        6. [Was trial counsel ineffective in failing] to request a pre-sentence
           investigation on Appellant’s behalf[?]

Appellant’s Brief (capitalization removed) at 4-5.9

____________________________________________


8
 By order dated August 11, 2016, the PCRA court required Appellant to file
a concise statement of errors complained of on appeal under Pa.R.A.P.
1925(b) within twenty-one days. Appellant filed a timely concise statement
on August 24, 2016. The PCRA court filed its Pa.R.A.P. 1925(a) opinion on
November 10, 2016.
9
    We have renumbered these issues for ease of disposition.



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      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determinations are supported by the record and are free of legal

error.”   Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)

(internal quotation marks and citations omitted). Each of the issues raised

by Appellant involves a claim of ineffective assistance of trial counsel.

      A PCRA petitioner will be granted relief on this ground only when he
      proves, by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel which,
      in the circumstances of the particular case, so undermined the truth
      determining process that no reliable adjudication of guilt or innocence
      could have taken place.”

Commonwealth v. Smith, 17 A.3d 873, 883 (Pa. 2011), quoting 42 Pa.C.S

§ 9543(a)(2)(ii).

      Generally, “counsel is presumed to be effective.” Commonwealth v.

Patterson, 143 A.3d 394, 398 (Pa. Super. 2016) (citation omitted).

Pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984), a claim

of ineffective assistance of counsel requires a showing that counsel’s

performance was deficient, and the deficiencies prejudiced the defendant.

To succeed on a claim of ineffective assistance of counsel in Pennsylvania, a

petitioner must prove, “(1) the legal claim underlying the ineffectiveness

claim has merit; (2) counsel’s action or inaction lacked any reasonable basis

designed to effectuate petitioner’s interest; and (3) counsel’s action or

inaction resulted in prejudice to petitioner.”    Commonwealth v. Mason,

130 A.3d 601, 618 (Pa. 2015) (citation omitted). “The failure to satisfy any




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one of the three prongs will cause the entire claim to fail.” Commonwealth

v. Faurelus, 147 A.3d 905, 911 (Pa. Super. 2016) (citation omitted).

      In his first three issues, Appellant argues that his trial counsel was

ineffective in failing to call three different witnesses.    To prevail on such

claims, Appellant must establish, “(1) the witnesses existed; (2) the

witnesses were available to testify; (3) counsel knew, or should have known,

the witnesses existed; (4) the witnesses were willing to testify; and (5) the

absence of the witnesses’ testimony was so prejudicial that it denied

[Appellant] a fair trial.” Commonwealth v. Solano, 129 A.3d 1156, 1166

(Pa. 2015), citing Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa.

2012).

      Appellant’s first complaint of ineffectiveness for failure to call a witness

involves a friend of Brandau’s son, Lawrence Cooper (“Cooper”). Appellant

contends that Cooper could have provided “exculpatory evidence” on

Appellant’s behalf. Appellant’s Brief at 4. Cooper did not testify at the PCRA

hearing.   Instead, Appellant relied on a notarized, signed statement from

Cooper, presented at a post-sentence evidentiary hearing.

      The statement alleged that from the second floor, Cooper was able to

see the altercation between Appellant and victim.           Cooper’s statement

asserts that he saw the unidentified man pick up a knife from a nearby

table, but specifically denies that he saw the man stab anyone. Appellant’s

Brief in Support of PCRA Petition, 5/24/16, Exhibit “A” at ¶ 11, 15. Cooper’s


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statement does not establish that he was available or willing to testify at

trial on behalf of Appellant. Therefore, this claim fails the second and forth

prong of the Sneed test.

      Furthermore, Cooper’s statement is not sufficient to establish prejudice

such that, absent his testimony, Appellant could not have received a fair

trial. As the trial court noted in its direct appeal opinion, “[t]he impact of

Cooper’s proposed testimony is ... questionable.      He, like all of the other

witnesses, did not see who stabbed the victim.           Moreover, there are

substantial questions regarding the reliability and credibility of Cooper’s

statement.” Trial Court Opinion (direct appeal), 8/27/2012, at 13. Cooper’s

account of the events did not come to light until, by happenstance, he met

Appellant in the Bucks County Correctional Facility.      He did not make a

statement to police at the time of the incident, and the record is free of any

indication that he told Ms. Brandau or her son his version of the story prior

to meeting Appellant. Therefore, the decision of the PCRA court is free of

legal error because trial counsel’s failure to call Cooper as a witness does not

amount to ineffective assistance of counsel.

      Appellant’s second claim of ineffectiveness for failure to call a witness

involves his niece, Keyani Smith.     He contends that her testimony would

have rebutted the testimony of a “key Commonwealth witness, Erica

[Brandau],” and proved he had no “ill intent” when he arrived at the scene

on the night in question. Appellant’s Brief at 4. Ms. Smith testified at the


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PCRA hearing that she was at her grandmother’s house with Appellant on

the night of the incident, prior to his departure to Ms. Brandau’s home.

N.T., 2/19/16, at 71.       Her testimony was that she witnessed Appellant’s

phone ringing a number of times while displaying Ms. Brandau’s name. Id.

Further, she alleges that, after speaking with Ms. Brandau on the phone,

Appellant told her he was going to pick up his son from Ms. Brandau’s

residence. Id. at 72.          Appellant argues this testimony would have

established that Ms. Brandau was aware that Appellant was coming to her

home (contrary to her testimony at trial) and that he had a legitimate

reason for his appearance.

         This argument fails to establish the requisite prejudice for two reasons.

First, Ms. Smith admitted on cross examination that she heard only the

Appellant’s side of the alleged phone conversation, so she could not testify

that Ms. Brandau invited or expected Appellant to arrive at her home that

night.    N.T., 2/19/16, at 75. Second, the only statement Ms. Smith heard

was that of Appellant saying he was going out to pick up his son. Although

probably admissible as an exception to hearsay under Pa. Rules of Evidence

803(3), the admission of this statement would not have been outcome

determinative. Appellant arrived at the house with an unknown accomplice,

close to midnight, and there is nothing in the record to suggest he asked

about his two-year-old son before initiating the altercation.       As such, the




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PCRA court was correct in determining Appellant’s second claim of

ineffectiveness for failure to call a witness is without merit.

      In his final claim of ineffectiveness for failure to call a witness,

Appellant argues that trial counsel should have called a live witness from St.

Mary Medical Center to testify that, during treatment, the victim stated he

was “stabbed by an unknown assailant from behind.” Appellant’s Brief at 4.

Appellant’s contention that the victim made such a statement at the hospital

is based on the victim’s medical records, which were admitted at trial as an

exhibit for the Commonwealth. Those records include the statement, “42-

year-old male, stabbed multiple times by an unknown assailant during an

altercation.” Commonwealth Exhibit C-5, (8/9/11), at 15. Appellant argues

that because it was clear the victim was familiar with Appellant, and was on

top of him during the altercation, that this statement is inconsistent with the

Commonwealth’s theory of the case. Appellant’s Brief at 22. However, the

statement is included on a page titled, “Discharge Summary,” and there is

no indication that it was the victim’s account of events.         Commonwealth

Exhibit C-5, (8/9/11), at 15.

      Furthermore, no witness testified at the PCRA hearing as to the

victim’s alleged statements, and Appellant’s brief makes no mention of a

particular witness who could have done so.        Therefore, Appellant has not

established that such a witness existed, was available, or willing to testify.

He argues, despite admission of the victim’s medical records, that, “it is


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unclear whether the jurors saw or considered this important evidence.”

Appellant’s Brief at 22-23. However, in his closing statement, trial counsel

mentioned these records specifically, and argued at length that they

exonerated Appellant. N.T., 8/10/11, at 184-187. There is no doubt that

the jury considered this information.           Trial counsel will not be deemed

ineffective for failing to call a witness whose testimony would simply be

cumulative of other evidence.       Commonwealth v. Tharp, 101 A.3d 736

(Pa. 2014). Appellant has failed to satisfy the Sneed test in his final claim

of ineffectiveness for failing to call a witness.

      Next, Appellant argues his trial counsel was ineffective for failing to

introduce evidence of a prior back injury that allegedly rendered him

incapable of committing the crimes for which he was convicted. Appellant’s

Brief at 4. At the PCRA hearing, Appellant introduced medical records from

a 2007 motorcycle injury. He also testified that from the time of the injury

through the time of the PCRA hearing, his back prevented him from

performing many physical acts. N.T., 2/19/16, at 19. However, Appellant’s

medical records from the date of the altercation with the victim indicate that

his back was examined and he was determined to have, “full range of

motion, [and] no back tenderness.”           Defense Exhibit D-3 (trial), at 3.

Therefore, trial counsel’s failure to introduce evidence of the old injury at

trial was not prejudicial to Appellant.




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      Furthermore, counsel is afforded a great deal of discretion in

determining tactics and strategy.      Fowler, supra.      Counsel will only be

deemed ineffective if the strategy employed is, “so unreasonable that no

competent lawyer would have chosen it.”        Commonwealth v. Ervin, 766

A.2d 859, 862-863 (Pa. Super. 2000) (citation omitted). Here, trial counsel

testified at the PCRA hearing that his decision not to introduce such evidence

had a reasonable basis. N.T., 2/19/16, at 93. First, based on the positions

of Appellant and the victim during the altercation (which the defense and

Commonwealth agreed upon), trial counsel believed Appellant’s back was

not an issue. Id. He felt that if Appellant argued he had a bad back, the

Commonwealth would counter by arguing that is why he brought another

man and a knife with him.          Id.    Therefore, Appellant has failed to

demonstrate that counsel’s performance deviated from the standards

ordinarily demanded of defense counsel or that any such deviation

prejudiced him. The PCRA court was correct in denying Appellant relief.

      Appellant’s fifth claim argues that trial counsel was ineffective in failing

to properly redact his medical records.       Appellant’s Brief at 5.    At trial,

Appellant’s medical records from the day after the incident were admitted as

an exhibit for the defense to show that he too suffered stab wounds. Trial

counsel inadvertently failed to redact two references to Appellant being

“medically cleared for incarceration.” N.T. 2/19/16, at 85; Appellant’s Brief

in Support of PCRA Petition, 5/24/16, Exhibit “B,” at 2. Appellant analogizes


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these references to incarceration in the medical records to a defendant

having to come to court in handcuffs or a prison uniform. Appellant’s Brief

at 24. He cites to Commonwealth v. Cruz, 311 A.2d 691 (1973), arguing

that the references to incarceration, like wearing prison garb in court,

“brands him as convicted in the state’s eyes.” However, the rationale behind

disallowing defendants to be dressed in prison uniforms at trial is to avoid

presenting the jury with a “constant reminder of the accused’s condition.”

Commonwealth v. Johnson, 838 A.2d 663, 681 (Pa. 2003).                  Two short

references to incarceration in Appellant’s medical records are not a

prejudicial constant reminder, like courtroom appearance.

      Furthermore, “there is no rule in Pennsylvania which prohibits

reference to a defendant’s incarceration awaiting trial or arrest for the

crimes charged.”     Id.   As such, the Commonwealth was permitted to

introduce evidence of phone calls recorded by the correctional facility

between Appellant and an unidentified female.       N.T., 8/10/11 at 160-163.

Thus, the jury was already aware that at some point between his arrest and

trial, Appellant was incarcerated.      N.T., 8/10/11, at 163.          The brief

references to incarceration, which were not redacted from Appellant’s

medical records, are not sufficient to establish prejudice.

      Finally, Appellant contends his trial counsel was ineffective for failing

to request a pre-sentence investigation.      Appellant’s Brief at 5.   Appellant

contends he was prejudiced by counsel’s decision not to request a


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pre-sentence investigation, “because it would have brought to the court’s

attention medical issues and obtained information that the conduct he was

convicted of did not match his personality or character.”                   Id. at 28.

However,     as    previously    discussed,    counsel    has    broad   discretion   in

determining strategy, and will not be deemed ineffective unless no

reasonable attorney would have chosen the same approach.                    Ervin, 766

A.2d 859, 862-863.           At the PCRA hearing, trial counsel testified that he

never requests pre-sentence investigations because they, “never, ever, ever,

ever help[] the defense.” N.T. 2/19/16, at 87.

        Appellant’s contention that the pre-sentence investigation would have

shown the crimes of which he was convicted did not match his personality is

without merit. Trial counsel introduced witnesses at sentencing to testify to

his character and relationship with his family.               N.T., 3/23/12, at 9-18.

Furthermore, a pre-sentence report could have included information about

Appellant’s history of violent crimes.          And, as previously discussed, trial

counsel determined that information regarding Appellant’s medical history

would not be considered favorably to him. Moreover, had Appellant wanted

to introduce information about his medical condition at sentencing, he could

have done so without a pre-sentence report. We agree with the PCRA court

that,   “trial   counsel’s    decision   to   control   the   information   concerning

Petitioner’s background through presentation of witnesses at sentencing was

reasonable.” PCRA Court Opinion, 11/10/16, at 15.


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     Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/2017




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