                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use i n other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5770-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KELVIN ROSA,

     Defendant-Appellant.
_______________________________

                   Submitted December 9, 2019 – Decided April 20, 2020

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 06-10-
                   1443.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (David J. Reich, Designated Counsel, on the
                   briefs).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Alexis R. Agre, Assistant
                   Prosecutor, of counsel and on the brief).

          PER CURIAM
      Defendant Kelvin Rosa appeals from the denial of his petition for post -

conviction relief (PCR) without an evidentiary hearing. We affirm, substantially

for the reasons expressed by Judge Terrance R. Cook in his twenty-page written

decision that accompanied the order denying defendant's petition.

      The facts underlying defendant's conviction are set forth in detail in our

earlier opinion affirming defendant's conviction and need not be repeated. State

v. Rosa, No. A-3808-11 (App. Div. Aug. 3, 2015) (slip op. at 2-16). As we

described in that opinion, a jury found defendant guilty of "attempted murder

and other crimes, all arising from his shooting of a police officer during a

burglary."   Id. at 1.   In reaching its verdict, the jury rejected defendant's

contention that he was not present during the burglary, evidently accepting the

testimony of one of his codefendants that placed defendant at the scene as the

shooter. Thereafter, defendant was sentenced to an aggregate term of thirty

years, subject to a parole disqualification period under the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2.

      At sentencing, and without filing a motion for a new trial,

             defense counsel provided the court with documents that
             indicated [a different codefendant, Pablo Acevedo was]
             willing[] to testify at defendant's trial. The documents
             included an affidavit submitted as part of Acevedo's
             October[] 2011 PCR petition, and two letters from
             Acevedo to defendant, dated October 31, 2011, and

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                                        2
            November 17, 2011.          Counsel represented that
            defendant had recently provided the letters to him. The
            [sentencing] court refused to consider the documents,
            stating they could be addressed during a PCR hearing.[1]

            [Id. at 32-33.]

      In his ensuing direct appeal, defendant argued that (a) his rights were

violated when the court admitted N.J.R.E. 404(b) other crime evidence; (b) the

trial court should have conducted a hearing to determine whether alleged newly

discovered evidence, which consisted of Acevedo's letters and affidavit,

warranted a new trial; (c) his constitutional right to confrontation was violated

through his inability to observe one of the witness's full testimony at trial; (d)

the trial court assumed defendant's guilt and inappropriately considered

unproven allegations; and (e) the trial court erred in imposing the maximum

sentence based on those unproven allegations. Id. at 2.

      In affirming defendant's conviction, among our other conclusions, we

determined that the Acevedo's materials, on their face, were not newly




1
  Acevedo was convicted in 2007 for his role in the subject offense. At his trial,
his inculpatory, pretrial statement to police was admitted into evidence. That
statement included his identification of defendant as the shooter. As discussed
below, as part of Acevedo's 2011 PCR petition, he later claimed that his
statement was coerced.


                                                                          A-5770-17T1
                                        3
discovered evidence as the documents predated defendant's trial,2 and the trial

court properly delivered a limiting instruction regarding the admission of the

N.J.R.E. 404(b) evidence, so defendant suffered no prejudice. Id. at 32, 34.

Although we affirmed defendant's conviction, we remanded for re-sentencing,

as the sentencing court "assumed defendant's guilt of unproven crimes" and

failed "to provide any explanation for the imposition of consecutive sentences."

Id. at 38.

      On remand, the trial court imposed its original sentence without

consideration of the impermissible evidence as we directed.             Defendant

appealed, only arguing that his sentence was excessive. On April 5, 2016, an

excessive sentencing panel of this court affirmed defendant's sentence. State v.

Rosa, No. A-1199-15 (App. Div. April 5, 2016). The Supreme Court denied

defendant's petition for certification. State v. Rosa, 227 N.J. 146 (2016).

      Defendant filed his PCR petition in September 2016, in which he argued

that his trial counsel failed to protect him by allowing the admission of other

crime evidence at trial. A brief was submitted on behalf of defendant, in which



2
  We also stated that based upon "the limited record before us, which does not
contain a full record of Acevedo's prior statements, it is impossible to assess the
other elements of a newly discovered evidence claim. Such a record may be
developed, should defendant wish to do so, in a petition for PCR." Id. at 34.
                                                                           A-5770-17T1
                                        4
he argued that trial counsel's errors constituted ineffective assistance of counsel

(IAC) and denied defendant the right to a fair trial. He specifically contended

that "counsel failed to object to . . . highly prejudicial testimony" and "failed to

seek a limiting instruction"; trial counsel failed to investigate and interview

Acevedo as a potential witness; and failed to timely file and argue a motion for

a new trial. In support of his petition, defendant also submitted copies of the

documents written by Acevedo.

      The Acevedo affidavit was dated October 17, 2011. In it, Acevedo stated

that he knew nothing about the robbery during which the police officer was shot.

However, because Acevedo was threatened during law enforcement's

interrogation of him, he told the police "what [he] knew about it," but they were

not satisfied and told Acevedo he "had to state that [he] saw [defendant] with a

gun, and that [he] saw [defendant] fire the gun." Acevedo further stated that he

knew the statements he was making to the police were untrue, but did so because

his "life was on the line and [he] felt [he] had no choice." Acevedo told the

police "what they wanted to hear [so he could] go home." In Acevedo's PCR

brief, which the State submitted excerpts of in opposition to defendant's PCR

petition, Acevedo argued that his trial counsel should have investigated a

prospective witness, another codefendant, who would have "corroborated the


                                                                            A-5770-17T1
                                         5
fact that [Acevedo] was an unwilling participant as he was unaware of the

intentions of his co[]defendants." 3

      In one of Acevedo's letters, also dated before defendant's trial, he stated

that he hoped to testify on defendant's behalf, as he was "the only one that

[could] help [defendant] get out of this problem." He also stated that with the

affidavit, defendant had "very big power in [his] hands to compel [defendant's]

attorney and [the] prosecutor to do what [defendant] want[ed]." Acevedo ended

the letter by stating that he was defendant's "exit to all of this."

      In the other letter, dated a few weeks after the first letter, Acevedo stated

that he "was prepared to help [defendant] because [he] was not going to let [the]

prosecutor do to [defendant] what [the prosecutor] did to [him]. [Defendant

was] not the person that was there that night." He again stated that "the only

person that could help [defendant was him] and no one else because [defendant

was] not the person that [he] saw that night and these people want[ed him] to go

speak things that [were] not true against [defendant]."



3
  The PCR court in Acevedo's case denied the petition, finding that Acevedo
"confessed to his participation in the robbery but denied having shot the police
during the robbery" and had already implicated the codefendants in the crime,
including defendant. It stated that at trial, Acevedo testified that defendant was
the only one with a firearm the night of the burglary and that defendant is the
one that shot at the police officer.
                                                                           A-5770-17T1
                                          6
      In its response to defendant's petition, the State filed a certification from

defendant's trial counsel, which stated that he received Acevedo's letters from

defendant on the day of defendant's original sentencing, and he recalled that

"Acevedo had already been convicted at the time of [defendant's] trial."

According to counsel, he "did not think [Acevedo's] testimony would be

helpful." Trial counsel also stated that after speaking to Acevedo's attorney

before defendant's trial about Acevedo's "involvement," it "in part led to [his]

decision not to pursue [Acevedo] as a witness as did [counsel's] review of a

transcript of [Acevedo's] trial." The State also submitted to the PCR court a

copy of Acevedo's 2006 statement to police that Acevedo's affidavit referenced,

in which he identified defendant as the shooter during the burglary in which they

both participated.

      Judge Cook denied defendant's petition by order dated February 27, 2018.

In his comprehensive written decision, the judge concluded that defendant failed

to meet the two-pronged test under Strickland v. Washington, 466 U.S. 668, 687

(1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987).

      Addressing defendant's contention that trial counsel failed to object to

testimony about defendant's and his codefendants' roles in other burglaries,


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                                        7
Judge Cook found that the evidence was not prejudicial, and the claim was

unfounded as it was belied by the record. Not only did the judge find that

defendant's trial counsel argued against admitting such evidence at a N.J.R.E.

404(b) hearing, but the judge also found that contrary to defendant's contention,

the trial court delivered a limiting instruction to the jury, and, in any event, we

"already determined that [defendant] was not prejudiced by the introduction of

such evidence."

      Next, Judge Cook found that trial counsel acted reasonably by deciding

not to call Acevedo as a witness since Acevedo's affidavit did not exonerate or

provide an alibi for defendant. The judge found the decision to be part of trial

counsel's strategy, and since Acevedo gave a full confession that identified

defendant as the shooter, the decision to not call Acevedo was appropriate.

      Turning to trial counsel's failure to file a motion for a new trial based on

Acevedo's materials, Judge Cook found that the documents did not support

seeking that relief. Citing to Rule 3:20-1 and State v. Carter, 85 N.J. 300, 314

(1981), the judge explained that we already determined that the documents did

not constitute new evidence, and in any event, they were not likely to have

changed the jury's verdict.




                                                                           A-5770-17T1
                                        8
      Last, Judge Cook found defendant's reasons for claiming that his trial and

appellate counsel were ineffective, were unsupported by the record.           He

determined that an evidentiary hearing was not warranted as defendant failed to

establish a prima facie claim of IAC. This appeal followed.

      Defendant presents the following issues for our consideration on his

appeal:

            POINT I

            THE PCR COURT ERRED IN DENYING
            [DEFENDANT] AN EVIDENTIARY HEARING
            CONCERNING HIS CLAIM HIS TRIAL COUNSEL
            WAS    INEFFECTIVE     IN   FAILING   TO
            INTERVIEW . . . ACEVEDO OR CALL HIM AS A
            WITNESS IN [DEFENDANT'S] DEFENSE.

            POINT II

            THE PCR COURT ERRED IN DENYING
            [DEFENDANT] AN EVIDENTIARY HEARING
            CONCERNING HIS CLAIM HIS TRIAL COUNSEL
            WAS INEFFECTIVE IN FAILING TO FILE A
            MOTION FOR A NEW TRIAL BASED ON THE NEW
            INFORMATION SUPPLIED BY . . . ACEVEDO.

            POINT III

            THE PCR COURT ERRED IN DENYING
            [DEFENDANT] AN EVIDENTIARY HEARING
            CONCERNING HIS CLAIM HIS TRIAL COUNSEL
            WAS INEFFECTIVE IN FAILING TO OBJECT TO
            OTHER CRIME[] EVIDENCE OR SEEK LIMITING
            INSTRUCTIONS.

                                                                        A-5770-17T1
                                       9
            POINT IV

            COUNSEL WAS INEFFECTIVE IN FAILING TO
            ARGUE THAT [DEFENDANT'S] ALLEGED
            INCULPATORY STATEMENT SHOULD HAVE
            BEEN SUPPRESSED BECAUSE IT OCCURRED
            AFTER [DEFENDANT'S] INDICTMENT WITHOUT
            COUNSEL PRESENT. (NOT RAISED BELOW).

      We review de novo a decision to deny a petition for PCR where the PCR

court did not conduct an evidentiary hearing. State v. Harris, 181 N.J. 391, 419

(2004). Under those circumstances, "it is within our authority 'to conduct a de

novo review of both the factual findings and legal conclusions of the PCR

court.'" State v. Reevey, 417 N.J. Super. 134, 147 (App. Div. 2010) (quoting

Harris, 181 N.J. at 421).

      At the outset, we refuse to consider the argument raised by defendant in

Point IV about the improper admission of his inculpatory, pretrial statement to

a third person because he never made that argument to Judge Cook or even to

us in his direct appeal. Not only does his failure to have raised the argument

before the PCR judge prevent our consideration, see State v. Robinson, 200 N.J.

1, 20 (2009), but it is also procedurally barred, see R. 3:22-4(a); Reevey, 417

N.J. Super. at 148.

      Turning to defendant's remaining arguments, we conclude they are

without merit and we affirm substantially for the reasons stated by Judge Cook

                                                                        A-5770-17T1
                                      10
in his thorough written decision. We concur with Judge Cook's determination

that defendant failed to establish a prima facie case of IAC and therefore an

evidentiary hearing was not warranted. See R. 3:22-10(b); State v. Preciose,

129 N.J. 451, 462-63 (1992). We add only the following comments.

      A criminal defense attorney's decision to call or not to call witnesses is a

matter of trial strategy generally entitled to presumptive deference. As the Court

has explained:

            Determining which witnesses to call to the stand is one
            of the most difficult strategic decisions that any trial
            attorney must confront. A trial attorney must consider
            what testimony a witness can be expected to give,
            whether the witness's testimony will be subject to
            effective impeachment by prior inconsistent statements
            or other means, whether the witness is likely to
            contradict the testimony of other witnesses the attorney
            intends to present and thereby undermine their
            credibility, whether the trier of fact is likely to find the
            witness credible, and a variety of other tangible and
            intangible factors. Therefore, like other aspects of trial
            representation, a defense attorney's decision
            concerning which witnesses to call to the stand is "an
            art," and a court's review of such a decision should be
            "highly deferential."

            [State v. Arthur, 184 N.J. 307, 320-21 (2005) (citations
            omitted).]

      These principles of deference extend to counsel's decisions especially

where a defendant asserts an alibi defense. While an attorney's "[f]ailure to


                                                                           A-5770-17T1
                                       11
investigate an alibi defense is a serious deficiency that can result in the reversal

of a conviction," State v. Porter, 216 N.J. 343, 353 (2013), "[c]ounsel's fear that

a weak alibi could cause more harm than good is the type of strategic decision

that should not be second guessed on appeal," State v. Drisco, 355 N.J. Super.

283, 291 (App. Div. 2002) (emphasis added); see also State v. Coruzzi, 189 N.J.

Super. 273, 321-22 (App. Div. 1983) (finding no error in not calling the

defendant's brother as alibi witness, when the testimony was contradicted by

other, credible witnesses and could "undermine the entire defense strategy").

      Applying these principles, we conclude the evidence in the record

established that in not pursing Acevedo as a witness, defendant's trial counsel

made a knowing and intelligent strategic decision that cannot support a claim of

IAC. Generally, although "a suspicious or questionable affidavit supporting a

PCR petition 'must be tested for credibility and cannot be summarily rejected,'"

Porter, 216 N.J. at 355 (quoting State v. Allen, 398 N.J. Super. 247, 258 (App.

Div. 2008)), defendant's trial counsel conducted an investigation into whether

Acevedo would be helpful to defendant's cause before deciding not to pursue

him as a witness. This finding stands regardless of when trial counsel was first

provided with the affidavit and letters that defendant relied upon.




                                                                            A-5770-17T1
                                        12
      Defendant's trial counsel, after contacting Acevedo's attorney and

examining Acevedo's trial transcript, made the decision not to call Acevedo as

a witness, which falls within trial strategy. Counsel's decision was supported by

the fact that Acevedo confessed to the crime, implicating defendant as the man

who shot at the police officer. Acevedo's confession was admitted in evidence

at his own trial, which would impeach any contrary testimony Acevedo would

have given in this case. Further, besides stating that defendant was not present

at the burglary that night, neither Acevedo's affidavit nor the letters provided

any information creating a reasonable doubt about defendant's guilt. See State

v. Pierre, 223 N.J. 560, 588 (2015) (holding that it was IAC for trial counsel not

to call witnesses who submitted affidavits placing the defendant in a different

State at the time the crime was committed and whose testimony would have

reinforced defendant's alibi evidence established by an out-of-state traffic

ticket). Even if trial counsel's actions were deficient, the evidence against

defendant was substantial, including the testimony from another codefendant

and defendant's own pretrial statements to a third party, both of which implicated

defendant.

      Affirmed.




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                                       13
