J-S04022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

FELIPE VEGA, JR.,

                         Appellant                   No. 293 MDA 2014


          Appeal from the PCRA Order entered January 27, 2014,
            in the Court of Common Pleas of Dauphin County,
           Criminal Division, at No(s): CP-22-CR-0000340-2007


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 09, 2015

      Felipe Vega, Jr., (“Appellant”) appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. sections 9541-46. We affirm.

      The pertinent facts are as follows:

         A jury found Appellant and his co-defendant/cousin, Carlos
         Lopez-Malave, guilty of second degree murder, robbery,
         conspiracy to commit robbery, burglary, and conspiracy to
         commit burglary in connection with the home invasion,
         robbery and fatal shooting of Cung Duong, the owner of a
         Harrisburg pool hall and a well[-]known bookie in the
         Harrisburg Asian community. Three other co-conspirators
         were charged with the murder, and entered guilty pleas.
         As part of their plea agreements, they testified against
         [Appellant and his co-defendant] at trial. [The testifying
         co-conspirators included Ronald Whitstyne, Angel Luis
         Rivera-Figueroa, and Quong Luong.             A sixth co-
         conspirator, Lebron Johnson, did not testify.] The jury was


*Retired Senior Judge assigned to the Superior Court.
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         informed of the plea agreements and the bargains the co-
         conspirators made in exchange for specifically defined
         sentences. After his conviction, Appellant was sentenced
         to life imprisonment for the murder conviction and
         concurrent terms of imprisonment for the remaining
         charges. Appellant did not file post-sentence motions.

Commonwealth v. Vega, 981 A.2d 937 (Pa. Super. 2009), unpublished

memorandum at 1-2 (footnote omitted).

      Appellant filed a timely appeal to this Court in which he raised the

following claims of trial court error: 1) admission of a photo array, which

included a photograph of him bearing the notation, “Harrisburg Police

Department;” 2) the improper limitation of defense counsel’s cross-

examination of a co-conspirator who testified for the Commonwealth, as well

as disparaging remarks made by the trial court regarding defense counsel’s

prior cross-examination; and 3) allowing the jury to view an x-ray of the

victim, showing a severe facture he received as a result of having been shot

in the leg. See id., unpublished memorandum at 2. Concluding that these

claims were waived or otherwise meritless, on July 29, 2009, we affirmed

Appellant’s judgment of sentence.    Id.   On March 10, 2010, our Supreme

Court denied Appellant’s petition for allowance of appeal.

      Appellant filed a pro se PCRA petition on March 14, 2011, and the

PCRA court appointed counsel.       However, Appellant later hired private

counsel (“PCRA counsel”) who replaced court-appointed counsel. Thereafter,

PCRA counsel filed a supplemental PCRA petition, and the Commonwealth

filed an answer to the petitions. Following the grant of several continuances,


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the PCRA court held an evidentiary hearing on August 3, 2012.                Both the

prosecutor who tried the case for the Commonwealth and Appellant’s trial

counsel testified. At the conclusion of the hearing, the PCRA court directed

the parties to file supporting briefs. By order entered January 27, 2014, the

PCRA court denied Appellant’s petition. This timely appeal followed. Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issues:

         I. Did the PCRA court err when it dismissed [Appellant’s
         PCRA] Petition because the prosecution withheld material
         evidence, Ronald Whitstyne’s criminal history, in violation
         of Appellant’s state and federal constitutional rights to due
         process?

         II. Did the PCRA court err when it dismissed [Appellant’s
         PCRA] Petition because trial counsel ineffectively prepared
         for trial by failing to obtain Ronald Whitstyne’s criminal
         history?

Appellant’s Brief at 3.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the      evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).        Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

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record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,

1104 (Pa. Super. 2001).

      To be eligible for post-conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated errors or defects in 42

Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been

previously litigated.   Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012).   An issue has been "previously litigated" if “the highest appellate

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue, or if the issue has been raised and decided

in a proceeding collaterally attacking the conviction or sentence.” Koehler,

36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2).       If a claim has not been

previously litigated, the petitioner must prove that the issue was not waived.

An issue will be deemed waived under the PCRA “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 post[-]conviction proceeding.”     Id. at 132; 42

Pa.C.S.A. § 9544(b).

      In his first issue, Appellant contends that he is entitled to post-

conviction relief because the Commonwealth committed a violation of Brady

v. Maryland, 373 U.S. 83 (1963), in that it failed to disclose, prior to trial,

Ronald Whitstyne’s complete criminal history, which included two crimen

falsi convictions.


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       This Court recently summarized:

              In the landmark case of [Brady, supra], the United
          States Supreme Court held that the suppression by the
          prosecution of evidence favorable to an accused upon
          request violates due process where the evidence is
          material either to guilt or to punishment, irrespective of
          the good faith or bad faith of the prosecution. The Brady
          rule is not limited exclusively to directly exculpatory
          evidence.     Because the reliability of a witness may
          ultimately affect a finding of guilt or innocence, the Brady
          mandate also encompasses impeachment evidence. Thus,
          the Supreme Court of the United States held that []there
          are three components of a true Brady violation: The
          evidence at issue must be favorable to the accused, either
          because it is exculpatory, or because it is impeaching; that
          evidence must have been suppressed by the State, either
          willingly or inadvertently; and prejudice must have
          ensued.

Commonwealth v. Feese, 79 A.3d 1101, 1106 (Pa. Super. 2013) (citations

omitted).

       Appellant failed to raise an alleged Brady violation in his direct appeal.

Thus, his claim is waived under the PCRA.          Koehler, supra.1      Absent

waiver, our review of the record supports the trial court’s conclusion that


____________________________________________


1
  Appellant’s co-defendant did raise a Brady violation as an issue in his
appeal. We agreed with the trial court that Lopez-Malave failed to meet his
burden of proof because he “failed to show that there was a reasonable
probability that the outcome of trial would have been different with the
proffered impeachment evidence,” and that Lopez-Malave “was not
prejudiced because there was other inculpatory evidence presented at trial.”
Commonwealth v. Lopez-Malave, 4 A.3d 695 (Pa. Super. 2010),
unpublished memorandum at 7. As discussed supra, the PCRA court
reached the same conclusion regarding the merits of Appellant’s post-
conviction claim.



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Appellant did not meet his burden of proof with regard to his claim. The trial

court explained:

            [Appellant] clearly fails to prove the third element of a
         Brady violation, which is that he was prejudiced by the
         concealment or suppression.

                                    ***

            The jury in this case heard Ronald Whitstyne testify that
         as part of his plea agreement, he agreed to plead guilty to
         third degree murder, robbery, and criminal conspiracy to
         commit robbery and to testify against the co-defendants in
         exchange for a sentence of five to ten years. Furthermore,
         the jury was specifically warned during closing instructions
         that the testimony of the three accomplices – Whitstyne,
         Rivera-Figueroa and Luong – offered against their co-
         conspirators should be viewed with disfavor. The jury was
         instructed, among other things, that accomplices often
         testify falsely in the hopes of obtaining favorable treatment
         and that as such, their testimony can be considered to
         derive from a corrupt or polluted source. The jury was
         thus apprised of both Whitstyne’s dubious character
         including that he had been convicted in this incident of
         third degree murder, robbery (a crimen falsi crime) and
         criminal conspiracy to commit robbery, and that Whitstyne
         had a strong motive to testify falsely. It is highly unlikely
         under these circumstances that evidence of an additional
         crimen falsi crime and corresponding crimen falsi
         instruction would have tipped the scales such that the jury
         would have discredited Whitstyne’s testimony in its
         entirety.

            Furthermore, Whitstyne’s testimony was not the only
         evidence produced against [Appellant].            Whitstyne’s
         testimony was essentially cumulative to that of Rivera-
         Figueroa, each offered testimony concerning [Appellant’s]
         participation in the home invasion, robbery and shooting
         that was identical to the other’s in all substantive aspects.
         Quong Luong’s testimony further supported each of their
         versions wherein he identified in detail [Appellant’s]
         lengthy interest in robbing Cung Duong including casing
         the victim’s property, obtaining specific information as to


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          Duong’s habits and purchasing walkie talkies, one of which
          was retrieved from the crime scene.        Other evidence
          clearly implicated [Appellant’s] involvement in the crimes,
          independent of Whitstyne’s testimony, including that
          [Appellant] drove the wounded Rivera-Figueroa in the
          black SUV to the hospital within minutes of the shootings,
          as revealed on surveillance tapes, and that a phone
          number [Appellant] was known to use was in constant
          contact with numerous other telephone numbers used by
          the other perpetrators of the crimes. In light of this
          additional evidence, [Appellant] did not meet his burden of
          showing that he was prejudiced by the failure of the
          Commonwealth to provide the 2003 crimen falsi evidence.

PCRA Court Opinion, 1/27/14, at 11-13 (citation and footnotes omitted).2

       Our review of the record and pertinent case law involving alleged

Brady violations supports the PCRA court’s conclusions. Thus, even if not

waived under the PCRA, Appellant’s first issue would not entitle him to relief.

       In his remaining issue, Appellant asserts that trial counsel was

ineffective because he “failed to search for, obtain, and use Whitstyne’s

[crimen falsi] convictions as impeachment evidence.” Appellant’s Brief at 9.

According to Appellant: “[Trial counsel] testified at Appellant’s PCRA hearing

that he could have used those convictions as impeachment evidence and the

evidence absolutely may have changed the outcome of the trial.” Id.
____________________________________________


2
   Although within his brief Appellant also refers to a 2002 retail theft
conviction, the PCRA court found as fact that this record was provided to
Appellant’s trial counsel. PCRA Court Opinion, 1/27/14, at 8. Additionally,
the PCRA court concluded that the language it provided to the jury regarding
accomplice testimony (corrupt source) “is considerably stronger regarding
the potential of a witness-accomplice to be untruthful than the language in a
crimen falsi instruction, if one had been provided.” Id. at 12, n.8.




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     To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) petitioner was

prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice"

requires the petitioner to show "that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different." Id. Counsel cannot be deemed ineffective for failing

to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003).

     In assessing a claim of ineffectiveness, when it is clear that appellant

has failed to meet the prejudice prong, the court may dispose of the claim

on that basis alone, without a determination of whether the first two prongs

have been met.    Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995). Counsel will not be deemed ineffective if any reasonable basis exists

for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.



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1994). Even if counsel had no reasonable basis for the course of conduct

pursued, however, an appellant is not entitled to relief if he fails to

demonstrate the requisite prejudice which is necessary under Pennsylvania's

ineffectiveness standard.    Douglas, 645 A.2d at 232.        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), appeal denied,

852 A.2d 311 (Pa. 2004).

      Moreover, trial counsel's strategic decisions cannot be the subject of a

finding of ineffectiveness if the decision to follow a particular course of action

was reasonably based, and was not the result of sloth or ignorance of

available alternatives. Commonwealth v. Collins, 545 A.2d 882, 886 (Pa.

1988) (cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204

(Pa. 1997)).     Counsel's approach must be "so unreasonable that no

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

A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller,

431 A.2d 233, 234 (Pa. 1981).              Our Supreme Court has defined

“reasonableness” as follows:

            Our inquiry ceases and counsel’s assistance is deemed
        constitutionally effective once we are able to conclude that
        the particular course chosen by counsel had some
        reasonable basis designed to effectuate his client’s
        interests. The test is not whether other alternatives were
        more reasonable, employing a hindsight evaluation of the
        record.    Although weigh the alternatives we must, the
        balance tips in favor of a finding of effective assistance as
        soon as it is determined that trial counsel’s decision had any
        reasonable basis.

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Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com.

ex rel. Washington v. Maroney, 235 A.2d 349, 352-53 (Pa. 1967)). See

also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining

that a defendant asserting ineffectiveness based upon trial strategy must

demonstrate that the “alternatives not chosen offered a potential for success

substantially greater than the tactics utilized”). A defendant is not entitled

to appellate relief simply because a chosen strategy is unsuccessful.

Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995).

      The PCRA court found that trial counsel provided effective assistance

to Appellant and reasoned:

            With regard to [trial] counsel’s alleged ineffectiveness
         for failing to present the 2002 retail theft conviction,
         counsel agreed that he had been apprised prior to trial of
         that conviction in documents supplied to him by the
         Commonwealth.        He testified that this evidence was
         admissible as crimen falsi and could have been used to
         impeach Whitstyne but that he chose not to use it. [Trial
         counsel’s] failure to so impeach Whitstyne is thus a claim
         of arguable merit under the PCRA.

            This court finds, however, under the second prong of
         the ineffective assistance of counsel test, that trial
         counsel’s decision not to impeach Whitstyne on the
         summary retail theft was based upon a reasonable trial
         strategy. [Trial counsel] explained that he chose not to
         offer it as impeachment because he did not think the retail
         theft conviction “would make that much of a difference”
         since it was a summary violation and because he believed
         he     had    more     powerful    impeachment    evidence.
         Specifically, [trial counsel] believed there was significant
         impeachment evidence based upon Whitstyne’s role as a
         co-conspirator      who   agreed     to   testify for    the
         Commonwealth in return for a lenient sentence and that


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       this impeachment evidence was in fact conveyed to the
       jury. Indeed, Whitstyne testified at trial that under his
       plea deal he would be getting a “large break” and avoiding
       a “murder rap.”        As noted above, [the trial court]
       instructed the jury it could disfavor Whitstyne’s testimony
       as it came from a corrupt or polluted source. Since these
       reasons reveal reasonable trial strategy, [Appellant] is not
       entitled to PCRA relief under this claim.

           Furthermore, even assuming this was not a reasonable
       strategy, [Appellant’s] claim fails because [trial] counsel’s
       failure to present the 2002 retail theft conviction as
       impeachment evidence caused him no prejudice. In order
       to show prejudice on an ineffective assistance of counsel
       claim, [Appellant] must prove that but for counsel’s
       omission there is a reasonable probability that the
       outcome of the proceedings would have been different.
       This is the same prejudice standard [Appellant] failed to
       meet in attempting to prove a Brady violation.            As
       discussed above in detail, the omission of relatively minor
       impeachment evidence against Commonwealth witness
       Whitstyne could not have altered the verdict in this case
       whereby Whitstyne’s testimony was cumulative and
       otherwise corroborated by other witnesses, where
       evidence independent of Whitstyne’s testimony implicated
       [Appellant’s] involvement in the crimes, and where
       powerful impeachment evidence was offered against
       Whitstyne at trial concerning his role as an accomplice-
       turned-state’s-witness.

           [Appellant] also argues that trial counsel was ineffective
       for failing to obtain the 2003 unsworn falsification
       conviction information and present it to impeach
       Whitstyne. This claim lacks arguable merit since trial
       counsel made reasonable efforts to obtain all of
       Whitstyne’s prior criminal history record. [Trial counsel]
       specifically requested Whitstyne’s prior criminal history
       record from the Commonwealth and duly received the
       NCIC report indicating that history. The credible evidence
       presented, which was offered both by the prosecutor and
       [trial counsel], was that the NCIC reports were routinely
       employed by attorneys within the criminal justice system
       as the best and most inclusive source of prior criminal
       records. [Trial counsel] thus reasonably relied upon the
       criminal records provided him by the Commonwealth and

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         was not further obligated to make any additional searches,
         including within the CPCMS.

            Again, even assuming [trial counsel] should have
         discovered the 2003 unsworn falsification conviction
         evidence and further assuming counsel could offer no
         reasonable basis for failing to impeach Whitstyne upon it,
         [Appellant] cannot satisfy the prejudice prong of his
         ineffectiveness claim. [The PCRA court] addressed and
         dismissed this exact prejudice claim under the Brady
         analysis and adopt that reasoning here.

PCRA Court Opinion, 1/27/14, at 14-15 (citations omitted).

      Again, our review of the record supports the PCRA court’s conclusions.

Both Appellant’s alleged Brady violation and ineffectiveness claim fail

because, given the other evidence presented by the Commonwealth at trial,

Appellant cannot establish prejudice.   Additionally, we note that when, as

here, the trial court’s credibility determinations are supported by the record,

they cannot be disturbed on appeal. See Commonwealth v. Battle, 883

A.2d 641, 648 (Pa. Super. 2005) (explaining that credibility determinations

are solely within the province of the PCRA court). Thus, because Appellant

cannot establish the requisite prejudice, his claim of trial counsel’s

ineffectiveness fails. Travaglia, supra.

      For the above reasons, we affirm the PCRA court’s order denying

Appellant’s PCRA petition.

      PCRA Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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