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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
ROBERTO LABOY,                              :
                                            :
                          Appellant         :      No. 2166 MDA 2014

                Appeal from the PCRA Order November 21, 2014
               In the Court of Common Pleas of Lebanon County
               Criminal Division No(s).: CP-38-CR-0000979-2006

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED OCTOBER 21, 2015

        Appellant, Roberto Laboy, appeals from the order entered in the

Lebanon County Court of Common Pleas denying relief on his timely Post

Conviction Relief Act1 (“PCRA”) petition.       Appellant avers the PCRA court

erred in not finding trial counsel ineffective for: (1) offering erroneous legal

advice to not testify at trial; (2) failing to investigate the whereabouts of the

murder weapon; and (3) failing to seek removal of two jurors. We affirm.

        On direct appeal, another panel of this Court summarized the facts of

the underlying crime as follows. “In the early morning of January 21, 2006,

Tina Garcia and her friend, David Kern, left a bar in Lebanon City[.]”



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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Commonwealth v. Laboy, 211 MDA 2012 (unpublished memorandum at 1)

(Pa. Super. Sept. 11, 2012). Appellant and co-defendant James T. Hower

(“Co-Defendant”), “wearing parkas with fur hoods,” followed them, and

eventually accosted them. “Garcia heard one of the men asking Kern for his

money.”     Id.   Kern and Garcia told them they did not have any and

continued walking.

          The men pursued Garcia and Kern, and caught up to them
          near a garage. Kern told Garcia to get help as there was
          “gonna be a problem.” As she ran to knock on nearby
          doors, Garcia watched as the two men viciously beat Kern.
          In particular, Garcia observed the taller of the males,
          whom she later identified as [Appellant], punch Kern in the
          chest several times. Shortly thereafter, Kern slumped to
          the ground.

             The assailants promptly fled the scene of the attack.
          Garcia . . . summon[ed] the authorities, who arrived to
          find that Kern had died as a result of multiple stab wounds
          to his chest.

Id. at 1-2. Garcia subsequently identified Appellant in a photo array. Both

Appellant and Co-Defendant were arrested and charged. We note that the

Commonwealth sought the death penalty against Appellant.

     The Commonwealth appealed pretrial matters to the Superior Court,

and trial did not commence until May of 2011, more than five years after the

incident. In “the months immediately preceding the trial,” Appellant and his

appointed trial counsel, Robert Daniels, Esq. (“Trial Counsel”) learned Co-

Defendant

          made a statement to the police that he had been given the
          murder weapon, which was wrapped in a bandana, by a


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           third party shortly after the incident, and had thrown it
           into a quarry near the Boscov’s Department Store in
           Lebanon. Prior to [Appellant’s] jury trial, [Co-Defendant]
           pled guilty to Third-Degree Murder pursuant to a plea
           agreement which required him to testify against
           [Appellant].

           . . . [Co-Defendant] testified in accordance with the
           statement he had made to police. [Appellant] did not
           testify [but called witnesses.]

PCRA Ct. Op., 11/21/14, at 2.

        On May 10, 2011, the jury found Appellant guilty of murder of the

second degree,2 conspiracy, aggravated assault, robbery,3 and related

offenses.    On July 27th, the trial court imposed life imprisonment and a

consecutive sentence of ten to twenty years’ imprisonment. On September
                                                                           4
11, 2012, this Court affirmed the judgment of sentence on direct appeal.

Our Supreme Court denied allowance of appeal on March 14, 2013.5

        On May 9, 2013, Appellant filed a timely pro se PCRA petition.   The




2
    18 Pa.C.S. § 2502(a)(2).
3
    18 Pa.C.S. §§ 903(a), 2702(a)(1), (4), 3701(a)(1)(i).
4
  Appellant had filed a timely post-sentence motion, which was denied. On
direct appeal, Appellant claimed: (1) the Commonwealth committed Brady
violations by withholding certain information; and (2) the evidence was
insufficient to support his convictions.
5
    Commonwealth v. Laboy, 778 MAL 2012 (Pa. Mar. 14, 2013).




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PCRA court appointed counsel, who did not file an amended petition. 6 The

court held two hearings, on April 28 and May 12, 2014, at which Appellant

and Trial Counsel testified. On November 21, 2014, the PCRA court issued

the instant order denying relief.   Appellant timely appealed and complied

with the court’s order to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.

     In reviewing the denial of PCRA relief, this Court examines

        [“]whether the lower court’s determination is supported by
        the evidence of record and whether it is free of legal
        error.”  Where, as here, a petitioner claims that he
        received ineffective assistance of counsel, our Supreme
        Court has stated that:

           [A] PCRA petitioner will be granted relief 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.”      Generally, counsel’s performance is
           presumed to be constitutionally adequate, and
           counsel will only be deemed ineffective upon a
           sufficient showing by the petitioner. To obtain relief,
           a petitioner must demonstrate that counsel’s
           performance was deficient and that the deficiency
           prejudiced the petitioner. A petitioner establishes
           prejudice when he demonstrates “that there is a
           reasonable probability that, but for counsel’s
           unprofessional errors, the result of the proceeding
           would have been different.” . . . [A] properly pled

6
  After granting Appellant’s motion to substitute initial counsel, the PCRA
court appointed Bret Weist, Esq., who continues to represent Appellant in
this appeal.




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            claim of ineffectiveness posits that: (1) the
            underlying legal issue has arguable merit; (2)
            counsel’s actions lacked an objective reasonable
            basis; and (3) actual prejudice befell the petitioner
            from counsel’s act or omission.

Commonwealth v. Walker, 110 A.3d 1000, 1003 (Pa. Super. 2015)

(citations omitted).

      “If a petitioner fails to prove any of these prongs, his claim fails.”

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014),

appeal denied, 104 A.3d 523 (Pa. 2014).       In examining whether “counsel

had some reasonable basis designed to effectuate his client’s interest . . . we

are not to employ a hindsight evaluation to determine whether other

alternatives may have been more reasonable, but whether there was a

reasonable basis for the course of action actually selected.” Id. at 1027.

      In this appeal, Appellant first avers “the PCRA Court incorrectly

determined [T]rial [C]ounsel had a reasonable basis for advising [him] it

would not be wise to testify at trial and that Appellant failed to show how he

sustained prejudice by not testifying.” Appellant’s Brief at 18. He reasons

“the PCRA Court incorrectly focuse[d] on whether [T]rial [C]ounsel had a

reasonable basis for advising [him],” instead of “the primary issue of

whether [T]rial [C]ounsel failed to call [him] to the stand despite [his]

request to testify.” Id. at 20. Appellant further claims he “wanted to testify

. . . to clarify issues and attempt to defend against the crimes,” and “was




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simply seeking the opportunity to directly face the jury and permit them to

hear his version of the events.” Id. at 19. We find no relief is due.

         At the PCRA hearings, Appellant testified to the following.     Prior to

trial, he and Trial Counsel discussed whether he should testify and discussed

“the fact that if [he testified he would be] subject to being cross examined

by the District Attorney and that it could be a bad decision.” N.T., 4/28/14,

at 7-8.     Appellant decided on the last day of trial to testify and told Trial

Counsel.      Counsel responded “it wasn’t a wise decision.”        Id. at 10.

Appellant “felt as though [he] had no say,” that Trial Counsel’s “mind was

very much made up” and that counsel “rushed things.”          Id.   When asked

why he wanted to testify, Appellant responded,

           I felt as though I needed to clarify some things and that I
           needed to in some way defend myself. And I just wanted
           the opportunity to sit down and face the jury and allow
           them to hear from my side . . . because I felt as though it
           weighed on their minds that I did not take the stand.

Id. at 9. In response to the question of why testifying would have benefited

his case, Appellant stated: “I am not sure if it was going to benefit anything,

but I believe that I had every right to sit on that stand and to fight for my

life.”    Id. at 11.    On cross-examination, Appellant conceded that Trial

Counsel was concerned “from a strategy standpoint . . . about subjecting

[him] to cross-examination by the Commonwealth.” N.T., 5/12/14, at 16-

17.

         Trial Counsel confirmed he did not “think it would have been a good



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idea for [Appellant] to testify” and that he advised Appellant with this

opinion. Id. at 23. Trial Counsel stated Appellant “may have” informed him

during trial of his desire to testify, but Trial Counsel did not remember the

specific conversation: “I am sure we discussed it[, but] I can’t sit here today

and tell you exactly what was said between the two of us.” Id. at 24-25.

However, Trial Counsel also stated that if Appellant specifically requested to

testify, he would have called him as a witness. Id.

          With respect to Appellant’s claim that Trial Counsel prevented him

from testifying, we first note the trial transcript does not include an oral

colloquy of Appellant for waiving his right to testify, and there is no written

colloquy in the record.7       The PCRA court credited Trial Counsel’s PCRA

hearing testimony and found, “Although [T]rial [C]ounsel did not feel that it

was a good idea for [Appellant] to testify, he never told [Appellant] that he

could not do so.”        PCRA Ct. Op. at 5-6 (citing N.T., 5/12/14, at 17).

Instead, counsel merely “advised him that ‘it wasn’t a wise decision.’” Id.

          The PCRA court further found Trial Counsel “had a reasonable basis for

advising [Appellant] that it would not be a wise decision for him to testify at

trial.”     PCRA Ct. Op. at 8.      It held, “[T]he avoidance of opening up

[Appellant] for cross-examination in a capital murder case was sound advice

7
  Appellant’s brief states the general rule that “if a defendant voluntarily
waives the right to testify after colloquy on the record, then he is precluded
from claiming trial counsel was ineffective for not calling him to the stand.”
Appellant’s Brief at 18-19. However, he does not specify whether there was
a colloquy in this case.



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and was reasonable trial strategy under the circumstances.”           Id.   We

reiterate that Appellant conceded Trial Counsel had a reason for advising

him to not testify. We find the court’s ruling is supported by the record and

free of legal error.8 See Walker, 110 A.3d at 1003; Charleston, 94 A.3d

at 1027. Accordingly, we find no relief due on Appellant’s first claim.

      Appellant’s second issue is whether the PCRA court erred in denying

his claim that Trial Counsel was ineffective for not investigating Co-

Defendant’s statements about the knife. In support, Appellant asserts the

following. “Co-Defendant’s statements regarding the location of the alleged

murder weapon [were] a key piece of evidence in the Commonwealth’s case

in chief.” Appellant’s Brief at 21. “Although [T]rial [C]ounsel did not know

whether the knife could be found in the quarry, [he] did not visit the . . .

quarry or conduct any independent investigation.”      Id.   Although “a great

deal of time had elapsed between the time the knife was allegedly disposed

8
  The PCRA court denied relief on an additional ground, that Appellant “failed
to identify the substance of any testimony he could have offered to establish
his innocence of [the] charges or to specify how his testimony would have
affected the outcome of his case.” PCRA Ct. Op. at 9. However, this Court
recently held:

         [T]he appropriate standard for assessing whether a
         defendant was prejudiced by trial counsel’s ineffectiveness
         regarding the waiver of his right to testify is whether the
         result of the waiver proceeding would have been different
         absent counsel’s ineffectiveness, not whether the outcome
         of the trial itself would have been more favorable had the
         defendant taken the stand.

Walker, 110 A.3d at 1005.



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in the quarry and Co-Defendant’s statements,” “[a]t a minimum, it would

have been prudent to consider the possibility based upon Appellant’s

request.”     Id. “[T]he knife may have shed light on who was actually

responsible for [the victim] Mr. Kern’s death, potentially to the detriment of

the Commonwealth’s case. Also, an investigation may have . . . render[ed]

Co-Defendant’s statements unreliable or inconsistent.”         Id. at 21-22

(emphasis added). We find no relief is due.

      We emphasize that Appellant avers only the possibility that an

investigation would have yielded favorable information or evidence, without

explaining what the new information would be. See id. at 21. Likewise, at

the PCRA hearing, Appellant testified, “It’s possible [an investigation] could

have led to whether [Co-Defendant’s] claims [were] reliable or if [Co-

Defendant] was, in fact, deceiving authorities.   Recovery of the knife . . .

possibly may have shed light on who actually was responsible for Mr. Kern’s

homicide.” N.T., 4/28/14, at 13.

      Trial Counsel, on the other hand, testified at the PCRA hearing as

follows.    He did not investigate the truth of Co-Defendant’s statements or

the location of the knife. N.T., 5/12/14, at 26. He opined, “I don’t see how

it would have advanced his cause whatsoever,” and that an investigation

“would only corroborate [Co-Defendant’s] story.”     Id. at 26-27.   Instead,

Trial Counsel reasoned, “by leaving [the whereabouts of the knife] as an

open-ended question, I think that was a question for the jury to consider.”



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Id. at 21.     Furthermore, Trial Counsel “cross examine[d Co-Defendant]

vigorously . . . and pointed out in closing [arguments] that the police didn’t

attempt to retrieve the weapon.” Id.

      In denying relief, the PCRA court found Trial Counsel “articulated a

reasonable basis for his failure to conduct this investigation,” and that

successful    retrieval   of   the   knife   “would   have   only   reinforced   [Co-

Defendant’s] credibility to the jury.” PCRA Ct. Op. at 11. The court further

agreed with counsel’s doubt “that physical examination of the knife, after it

sat in the quarry for several years, would offer anything useful in

exonerating” Appellant. Id. The court also found Trial Counsel’s strategy,

“that it was better to leave the question open in the minds of the jurors as to

why the Commonwealth had not recovered the knife,” “had a much greater

likelihood of casting the shadow of doubt over [Co-Defendant’s] testimony

and was appropriate under these circumstances.” Id. We find no error in

the court’s analysis. See Walker, 110 A.3d at 1003; Charleston, 94 A.3d

at 1027.

      In his final issue, Appellant claims the PCRA court erred in not finding

Trial Counsel ineffective for failing to seek removal of two jurors, Juror 3 and

Juror 11. For ease of disposition, we first summarize:

           Per the agreement of the parties, all guilt-phase witnesses
           were sequestered during the course of the trial, but
           potential penalty-phase witnesses were not sequestered.
           During [trial,] Juror 3 indicated that he recognized
           someone sitting in the audience in the Courtroom . . . . At
           that point, the jury was sent upstairs, Juror 3 was brought


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         back to the Courtroom, was sworn in and questioned by
         the Court. The Court asked Juror 3 whether the presence
         of the individual in the Courtroom during the guilt phase of
         the trial would impact his decision in any way in the event
         the person was to testify in the penalty phase of the
         proceeding. Juror 3 answered that he would still be able
         to be fair and impartial during the guilt phase. Neither the
         Commonwealth or [T]rial [C]ounsel asked any questions of
         Juror 3.

             Later, Juror 11 related to the Court that she had gone
         to high school with one of the witnesses who testified
         during presentation of the Commonwealth’s case. Juror 11
         advised the Court that she had never socialized with the
         witness, the two were not close friends, and that they had
         no contact for six years since graduation. Juror 11 noted
         that she had not recognized the witness’s name, but had
         recognized her face when she was called to testify. When
         the trial was reconvened, the Court called the
         Commonwealth attorney and [T]rial [C]ounsel to sidebar
         and notified them of the situation. We explained that Juror
         11 had indicated that she would be able to continue as a
         fair and impartial juror despite her acquaintance with the
         witness.     Neither the Commonwealth or trial counsel
         thought it necessary to question Juror 11 under the
         circumstances. [Appellant] now claims that he requested
         [T]rial [C]ounsel [to] seek removal of both jurors.

PCRA Ct. Op. at 12-13 (citations to trial transcript omitted).

      At the PCRA hearing, Appellant testified that when the issues with the

juror was brought to the trial court’s attention, he requested Trial Counsel to

seek their removal. N.T., 5/12/14, at 11-12. Appellant stated, “I simply no

longer wanted them on the jury panel once they brought forth that they

knew [a] possible [or] potential witness.” Id. at 12. Trial Counsel testified

he did not remember whether Appellant requested him to take action

concerning the jurors, but that if Appellant did, he would have complied. Id.



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at 28-29.

      In the instant appeal, Appellant argues Trial Counsel’s failure to seek

removal of the jurors “was in direct contradiction to Appellant’s request.”

Appellant’s Brief at 23. Appellant further contends “Trial [C]ounsel should

have, at a minimum, objected to preserve Appellant’s right.” Id. We find

no relief is due.

      In finding no ineffectiveness, the PCRA court opined:

           Both jurors were appropriately questioned by the Court
           and indicated that they would be able to remain fair and
           impartial in their consideration of the evidence.
           [Appellant] has not shown how his case was prejudiced by
           their remaining on the jury or how the jurors’ tenuous
           connections with the individuals involved in the case
           affected the outcome of the case.

PCRA Ct. Op. at 14-15. We find no error in the PCRA court’s analysis. See

Walker, 110 A.3d at 1003.

      Finally, we note that in the appellate brief, Appellant’s counsel avers

that after the instant notice of appeal was filed, Appellant sent him a letter,

“request[ing] for the first time that four additional issues be raised in this

matter.”    Appellant’s Brief at 24.    The four claims are allegations of trial

counsel’s and PCRA counsel’s ineffectiveness.        We hold all of these are

waived for failure to present them first to the PCRA court.                 See

Commonwealth v. Henkel, 90 A.3d 16, 26 (Pa. Super. 2014) (en banc)

(“[P]etitioner could not raise PCRA appellate counsel's ineffectiveness for the

first time on appeal.”); Commonwealth v. Bedell, 954 A.2d 1209, 1216



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(Pa. Super. 2008) (stating claims not raised in PCRA court are waived and

cannot be raised for first time on appeal).

      For the foregoing reasons, we affirm the order denying relief on

Appellant’s PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2015




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