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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                   v.                     :
                                          :
JUAN JAVIER RIVERA-RIVERA,                :          No. 1030 MDA 2015
                                          :
                        Appellant         :


                  Appeal from the PCRA Order, May 27, 2015,
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No. CP-38-CR-0000162-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 06, 2015

      Juan Javier Rivera-Rivera appeals from the order of May 27, 2015,

denying his first petition for post-conviction collateral relief filed pursuant to

the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           We

affirm.

      The PCRA court, the Honorable Robert J. Eby, S.J., has aptly

summarized the history of this matter as follows:

                   On February 26, 2013, the Commonwealth
            filed a Criminal Information charging [appellant] with
            five violations of the [Drug Act], along with five
            conspiracy counts relating to those violations.
            Criminal Informations emanating from the same
            investigation were filed contemporaneously against
            [appellant]’s co-conspirators, Jose Rivera-Rivera and
            Adelaida Gaston-Vasquez. The charges stemmed
            from an investigation conducted by members of the
            Lebanon County Drug Task Force, who observed
            [appellant] selling heroin out of a vehicle parked at


* Former Justice specially assigned to the Superior Court.
J. S64014/15


           the rear of 1406 Willow Street, Lebanon, a residence
           associated with Jose Rivera-Rivera, [appellant]’s
           brother, and Jose’s wife, Adelaida Gaston-Vasquez.
           Subsequent searches of the vehicle, the residence at
           1406 Willow Street, customers seen making
           purchases from [appellant], and [appellant] himself
           uncovered various amounts of identically packaged
           heroin.

                 Jose Rivera-Rivera pled guilty to all charges
           against him on August 29, 2013, while [appellant],
           along with Adelaida Gaston-Vasquez, proceeded to a
           joint jury trial on December 3, 2013, where
           [appellant] was represented by then First Assistant
           Public Defender, Kimberly Adams. At the conclusion
           of that trial, the jury found [appellant] guilty of all
           charges except for Count III, Possession with Intent
           to Distribute [(“PWID”)] the heroin found inside
           1406 Willow Street. On January 15, 2014, this Court
           sentenced [appellant] to an aggregate term of
           imprisonment of 4-10 years.

                 [Appellant] filed a pro se [PCRA petition] on
           August 8, 2014. On August 18, 2014, the Court
           issued an Order appointing [counsel] to represent
           [appellant] and directed that counsel file a
           Supplemental or Amended Petition on [appellant]’s
           behalf within thirty days.

PCRA court opinion & order, 5/27/15 at 2-3.

                  Before the Court is a counseled, Third
           Amended Petition for [PCRA relief].         [Appellant]
           argues he is entitled to post-conviction relief because
           his trial attorney was ineffective.        Specifically,
           [appellant] argues that trial counsel should have
           withdrawn from representation when it became
           apparent there was a breakdown in communication
           over differences in opinion regarding the decision to
           have [appellant]’s co-defendant and brother,
           Jose Rivera-Rivera, testify on behalf of [appellant] at
           his trial. After a thorough review of the testimony
           presented at a PCRA hearing held on April 27, 2015,



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              the post-hearing Briefs submitted by the parties, and
              the compete record of the case, we disagree.

Id. at 1-2.

      On May 27, 2015, the PCRA court denied appellant’s petition. A timely

notice of appeal was filed on June 15, 2015. On June 16, 2015, the PCRA

court filed a statement pursuant to Pa.R.A.P. 1925(a), indicating that it was

relying on its May 27, 2015 opinion, and directing the clerk to immediately

transmit the record to this court. (Docket #62.)

      Appellant has raised the following issue for this court’s review:

              1.   Whether Trial Counsel was ineffective for
                   failing to ask the Court to be removed where
                   Trial Counsel knew that there was a material
                   breakdown in communication between herself
                   and Appellant?

Appellant’s brief at 4.

      Initially, we recite our standard of review:

              This Court’s standard of review regarding an order
              denying 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, 582 Pa. 164, 870 A.2d
              795, 799 n. 2 (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).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

              “To    prevail on a claim alleging counsel’s
              ineffectiveness, Appellant must demonstrate (1) that
              the underlying claim is of arguable merit; (2) that


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            counsel’s course of conduct was without a
            reasonable basis designed to effectuate his client’s
            interest; and (3) that he was prejudiced by counsel’s
            ineffectiveness.” Commonwealth v. Wallace, 555
            Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
            Commonwealth v. Howard, 538 Pa. 86, 93, 645
            A.2d 1300, 1304 (1994) (other citation omitted). In
            order to meet the prejudice prong of the
            ineffectiveness standard, a defendant must show
            that there is a “‘reasonable probability that but for
            counsel’s unprofessional errors, the result of the
            proceeding     would     have     been     different.’”
            Commonwealth v. Kimball, 555 Pa. 299, 308, 724
            A.2d 326, 331 (1999), quoting Strickland v.
            Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
            80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’
            is defined as ‘a probability sufficient to undermine
            confidence in the outcome.’” Id. at 309, 724 A.2d at
            331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
            2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal

denied, 832 A.2d 435 (Pa. 2003).       “We presume counsel is effective and

place upon Appellant the burden of proving otherwise. Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(citations omitted).

      Instantly, Attorney Adams testified at the PCRA hearing before

Judge Eby    that   she   explained   why   she   did   not   intend   to   call

Jose Rivera-Rivera (“Jose”) as a witness, and appellant agreed with that

decision. Attorney Adams testified that if appellant had been adamant about

calling Jose as a witness at trial, Attorney Adams would have asked for a

sidebar conference and put the matter on the record:


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             Q.   And was he in agreement with your decision to
                  not call Jose as a witness?

             A.   My answer is going to be yes, because if he
                  was completely 100 percent adamant that Jose
                  still had to have been called I probably would
                  have asked off -- outside of the jury to explain
                  this situation to the judge. That despite what I
                  was telling my client that he wanted this
                  witness called and that I thought it was against
                  his best interest just to preserve the record of
                  that. He never wanted to talk to the judge
                  about that or anything else.

             Q.   So if there was this issue between the two of
                  you that you had this disagreement as to how
                  to proceed, you would have called the court’s
                  attention to it?

             A.   Yes, I have done that in other cases and I
                  would have done that in this case.

             Q.   To protect    yourself   from    this   sort   of
                  proceeding?

             A.   Yes.

             Q.   And as far as your recollection goes,
                  [appellant] was on board with the decision not
                  to call Jose as a witness?

             A.   Yes.

Notes of testimony, 4/27/15 at 17-18.

             But on more than one occasion through Ms. Lopez
             [(Sarah Lopez, the interpreter)] I explained to him
             my concerns of calling Jose to testify. And after
             every time we talked about it he appeared to be in
             agreement. He would acknowledge what we were
             saying, he would say yes, okay.

Id. at 20.



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     Attorney Adams testified that appellant appeared to understand

everything she was saying and that on multiple occasions they discussed the

issue of Jose testifying, including the morning of trial.      (Id. at 21.)

Judge Eby, who also presided over trial, specifically found Attorney Adams to

be credible in this regard. (PCRA court opinion, 5/27/15 at 9.) In addition,

Attorney Adams’ testimony was corroborated by Lopez, who testified that

they discussed the matter many times and appellant appeared to be in

agreement with the decision not to call Jose as a witness:

           Q.    If you can recall, what were the discussions
                 that you would have been present for where
                 that was discussed?

           A.    From what I recall the -- [appellant] wanted to
                 call Jose -- [appellant] wanted to call Jose to
                 testify and Attorney Adams did not think that
                 was a good idea because we didn’t think it was
                 going to help the case.

           Q.    And did Attorney Adams explain through you
                 her concerns regarding that issue?

           A.    Yes, many times.

           Q.    When     you   explained    those   things    to
                 [appellant], what was his response?

           A.    From what -- I can’t recall word-for-word
                 everything that was said.       But from his
                 standpoint he wanted to call him and he -- I
                 don’t even know how to say it. He said he
                 wanted to call him, Attorney Adams would tell
                 him why he should not be called to testify and
                 then kind of just started talking about other
                 stuff.




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              Q.   During the course of these discussions did
                   [appellant] at some point agree not to call Jose
                   as a witness?

              A.   Yes, the day of [t]rial.

              Q.   Was there any anger or hostility or anything
                   like that between Attorney Adams and
                   [appellant] during these discussions?

              A.   Not that I recall. Stuff like that kind of sticks
                   out.

Notes of testimony, 4/27/15 at 25-26.         Clearly, the underlying issue, that

there was some sort of breakdown in meaningful communication between

attorney and client, lacks arguable merit.       A difference in opinion in trial

strategy would not constitute a reason for Attorney Adams to request

withdrawal.

       In addition, appellant cannot show how he was prejudiced by

Attorney Adams’ continued representation. In fact, appellant testified at the

PCRA hearing that despite their alleged disagreement, he felt that

Attorney Adams could continue to effectively represent him at trial. (Id. at

10.)   Appellant conceded that he never informed the trial court of any

disagreement between himself and defense counsel and that he was found

not guilty of one of the most serious offenses, involving the heroin found

inside the house. (Id.) Attorney Adams testified that the only reason this

case went to trial was because of the PWID charge involving the heroin

found inside the house, which appellant denied possessing. (Id. at 22-23.)

Appellant was acquitted of that charge, even without Jose’s testimony. (Id.)


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         Throughout his brief on appeal, appellant argues that Jose would have

offered material, exculpatory testimony on his behalf.           According to

appellant, Jose would have testified that appellant was not involved in selling

drugs and was only at Jose’s residence to fix Jose’s and Adelaida’s vehicles.

(Appellant’s brief at 22.)

         In his amended petition, appellant alleged that trial counsel was

ineffective for failing to call a material witness, presumably Jose.    (PCRA

court opinion, 5/27/15 at 3.)     Subsequently, however, appellant indicated

that he was “no longer pursuing the failure to call witnesses issue.” (Id. at

4.) Jose was not called as a witness at the PCRA hearing, and there is no

indication in the record what he would have testified to, as neither appellant

nor his co-defendant, Adelaida Gaston-Vasquez, called Jose as a witness at

trial.   As the PCRA court observes, Jose pled guilty to all charges prior to

appellant’s jury trial, including charges of conspiring to sell drugs with

appellant.    If, in fact, as appellant alleges, Jose would have testified that

appellant was not involved in the sale of drugs, it would have contradicted

his sworn statements at the guilty plea hearing. (Id. at 11.) There is no

merit here.

         Order affirmed. The Commonwealth’s motion for extension of time in

which to file its brief is denied as moot.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2015




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