J-S48030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    ORACIO SANCHEZ

                             Appellant               No. 1576 MDA 2016


             Appeal from the PCRA Order Entered August 31, 2016
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0006000-2011


BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 09, 2017

        Appellant, Oracio Sanchez, appeals pro se from the August 31, 2016

order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”) 42 Pa.C.S.A. §§ 9541-46. We affirm.

        This Court summarized the facts on direct appeal:

              On June 26, 2011, Javier Alvarado had a birthday party at
        his house. Guest began arriving at the party around 7 p.m.
        Around 8 p.m., a man named Poncho arrived and got into an
        argument with Oracio Sanchez Sr., Appellant’s father. At that
        time, Oracio Sanchez Sr. called Appellant and asked him to bring
        guns to the party. Appellant arrived at the party with a shotgun,
        remained there until Poncho left, and then departed. Shortly
        thereafter, Appellant returned again with two friends. Appellant
        and his friends placed the guns they brought under a nearby car,
        and then joined the party.


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*   Retired Senior Judge assigned to the Superior Court.
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            A short while later, the victim, Alejandro Castro, observed
     Appellant’s friend, “Creeper,” urinating in front of some female
     guests. The victim asked Creeper to stop this behavior. At that
     time, Appellant approached the victim and hit him. Appellant and
     Creeper continued to hit the victim. In an effort to get away, the
     victim hit Appellant in the face with two glass bottles. Appellant
     fell to the ground and the victim ran away towards the house.
     Appellant then ran to the car, grabbed a gun from underneath,
     and ran back towards the victim. Oracio Sanchez Sr. attempted
     to stop Appellant, but Appellant pushed him out of the way.
     Appellant ran towards the victim and shot him in the back as he
     tried to enter the house. The victim died instantly.

            After fleeing the scene, Appellant went to the hospital for
     his head injury. At the hospital, Appellant told detectives he was
     attacked by a group of black males while out for a walk. Blood
     tests revealed that Appellant’s blood alcohol content (BAC) was
     .151. The detective that questioned Appellant stated that he was
     lucid enough to understand and answer all questions.

Commonwealth v. Sanchez, 2186 MDA 2012 (Pa. Super. July 18, 2013),

unpublished memorandum at 1-3 (record citations omitted).

     A jury found Appellant guilty of first-degree murder. On July 2, 2012,

the trial court sentenced him to life in prison without parole.   This Court

affirmed the judgment of sentence on July 18, 2013, and our Supreme Court

denied allowance of appeal on January 15, 2014. Appellant filed this timely

first PCRA petition on July 23, 2014. Appointed counsel filed an amended

petition on September 8, 2014.     Dissatisfied with the counseled petition,

Appellant petitioned the PCRA court for a change of appointed counsel. The

PCRA court granted Appellant’s request, and his second appointed counsel

filed an amended petition on April 2, 2015. Once again dissatisfied with the

counseled petition, Appellant asked the PCRA court to appoint different



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counsel. On December 24, 2015, the PCRA court appointed Appellant’s third

counsel. On April 19, 2016, third appointed counsel filed a no merit letter and

petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)

(en banc). On August 10, 2016, the PCRA court filed its Pa.R.Crim.P. Rule

907 notice of intent to dismiss the petition without a hearing and granted

counsel’s petition to withdraw. The trial court dismissed Appellant’s petition

on August 31, 2016 and this timely appeal followed.

      Appellant presents seven questions for our review. Appellant’s Brief at

4. His first and third questions address alleged prosecutorial misconduct, and

trial counsel’s ineffectiveness for failing to raise this issue at trial. We must

determine whether the record supports the PCRA court’s findings of fact, and

whether its ruling was free of legal error. Commonwealth v. Washington,

927 A.2d 586, 593 (Pa. 2007). In order to succeed on a claim of ineffective

assistance of counsel, a petitioner must establish that the underlying issue is

of arguable merit, that counsel had no reasonable strategic basis for his act

or omission, and that counsel’s error prejudiced the petitioner such that the

outcome of the proceeding would have been different absent the error.

Commonwealth v. Koehler, 36 A.2d 121, 132 (Pa. 2012).

      Appellant claims the prosecutor committed misconduct by presenting

the trial testimony of Azalea Bernal. According to Appellant, Bernal said in a

police statement that she did not see the shooting. At trial, she testified that


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she saw Appellant shoot the victim. Appellant claims counsel was ineffective

for failing to object to the prosecution’s presentation of false testimony.

      Pennsylvania Courts recognize “the general proposition that a conviction

cannot be based upon false evidence[.]” Commonwealth v. Sepulveda, 55

A.3d 1108, 1138 n.28 (Pa. 2012) (citing Napue v. Illinois, 360 U.S. 264,

269 (1959)).    “[T]his Court has held that a ‘conviction obtained by the

knowing use of perjured testimony is fundamentally unfair, and must be set

aside if there is any reasonable likelihood that the false testimony could have

affected the judgment.’” Commonwealth v. Lambert, 765 A.2d 306, 325

(Pa. Super. Ct. 2000) (quoting Commonwealth v. Romansky, 702 A.2d

1064, 1067 (Pa. Super. 1997)) (emphasis in original). This principle holds

whether the prosecution solicits the false evidence or allows unsolicited false

evidence to go uncorrected. Napue, 360 U.S. at 269.

      Appellant offers no evidence that Bernal’s change in testimony was the

result of prosecutorial misconduct. There is no evidence that Bernal was under

any suspicion, or that she had any incentive to testify favorably to the

Commonwealth. Furthermore, Bernal’s trial testimony, even if she falsified it

at trial, could not have contributed to the verdict. Three other eyewitnesses

testified that Appellant shot the victim. N.T. Trial, 5/14-16/12, at 90, 137,

147, 156, 166. As set forth above, the shooting occurred at a party where

many witnesses were present.        At trial and on direct appeal, Appellant

presented evidence and arguments for voluntary intoxication and provocation.


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He did not seriously contest the overwhelming evidence implicating him as the

shooter.   In summary, Appellant has failed to present any evidence of

prosecutorial misconduct, and the allegedly falsified testimony did not

prejudice Appellant. This argument fails.

      Appellant’s second argument is that his sentence of life imprisonment

without parole is illegal because he committed noncapital first-degree murder.

Appellant is mistaken about the law governing first-degree murder. Pursuant

to 18 Pa.C.S.A. § 1102 and 42 Pa.C.S.A. § 9711, a defendant convicted of

first-degree murder receives a sentence of death or life imprisonment,

depending upon the applicability of factors specified in § 9711. Appellant’s

life sentence is legal. Appellant’s argument fails.

      Appellant’s fourth argument (we considered the third together with the

first) is that trial counsel was ineffective for failing to cross-examine various

witnesses about prior inconsistent statements.        Appellant notes that one

eyewitness to the shooting, Javier Alvarado, told police that it was Appellant,

not Appellant’s friend “Creeper,” who was urinating in front of some women

prior to the altercation. At trial, Alvarado testified that Creeper, not Appellant,

did the public urinating. Likewise, eyewitness Denora Vargas told police that

Appellant, the victim, and others were in a brawl before Appellant shot the

victim. At trial, she offered more detail, stating that the problem began with

Creeper’s public urination.




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      The PCRA court noted that Alvarado and Vargas never wavered in their

testimony that they saw Appellant shoot the victim, and they were not the

only eyewitnesses to the shooting. We observe that Vargas’ trial testimony

was more detained than, but not necessarily inconsistent with, her statement

to police. The PCRA court found no prejudice to Appellant, and we agree.

Despite slightly inconsistent accounts of the beginning of the altercation,

eyewitnesses were unanimous that Appellant was the shooter, and that he

shot the victim in the back as the victim was leaving the scene of the

altercation.   Cross-examination on minor inconsistencies would not have

created a basis upon which the jury could have found that someone other than

Appellant was the shooter. Furthermore, Appellant does not explain how the

omitted cross-examination could have advanced his voluntary intoxication or

provocation theories.   We agree with the PCRA court that this issue lacks

merit.

      Appellant’s fifth argument is that trial counsel was ineffective for failing

to object to the trial court’s jury instructions on murder.     Appellant claims

“counsel should have objected to the charge of first-degree murder, because

this charge did not pertain to Appellant since his case was non-capital.”

Appellant’s Brief at 18. As we explained above, this is simply incorrect.

      Appellant also claims the trial court charged the jury on common law

murder, rather than one of the statutory homicide offenses, because the trial

court used the word “malice.” Appellant’s Brief at 19. Appellant is incorrect.


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As noted above, Appellant offered a voluntary intoxication defense at trial. If

successful, Appellant would have been convicted of third-degree murder

rather than first-degree murder.    18 Pa.C.S.A. § 308; Commonwealth v.

Fletcher, 861 A.2d 898, 907-08 (Pa. 2004), cert. denied, 547 U.S. 1041

(2006). That is, a successful voluntary intoxication defense can negate the

specific intent to kill necessary for a first-degree murder conviction.     Id.

Voluntary intoxication, however, does not negate a finding of malice necessary

to commit third degree murder. Commonwealth v. Ruff, 405 A.2d 929, 929

(Pa. Super. 1979).

      Appellant also argues that the trial court improperly instructed the jury

that it could infer specific intent to kill if they found that Appellant used a

deadly weapon on a vital part of the victim’s body. Appellant’s Brief at 20.

Appellant’s argument directly contradicts governing law. Commonwealth v.

Ragan, 743 A.2d 390, 400 (Pa. 1999) (“It is well settled law in Pennsylvania

that the Commonwealth may prove specific intent to kill by circumstantial

evidence, and, therefore, a jury may infer the requisite malice to establish

first-degree murder from the defendant’s use of a deadly weapon upon a vital

part of the victim’s body.”).

      Appellant’s sixth argument is that counsel was ineffective for failing to

move to suppress Appellant’s statement to police. The record reveals that

Appellant sustained a blow to the head with a beer bottle during the altercation

that preceded the shooting.     Appellant voluntarily checked himself into a


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hospital to receive treatment for his injuries. He claims police subjected him

to a custodial interrogation during his hospital stay and failed to inform him

of his Miranda1 rights.

              The standard for determining whether an encounter with the
       police is deemed “custodial” or police have initiated a custodial
       interrogation is an objective one based on a totality of the
       circumstances, with due consideration given to the reasonable
       impression conveyed to the person interrogated.            Custodial
       interrogation has been defined as questioning initiated by law
       enforcement officers after a person has been taken into custody
       or otherwise deprived of his [or her] freedom of action in any
       significant way. Interrogation is police conduct calculated to,
       expected to, or likely to evoke admission. When a person’s
       inculpatory statement is not made in response to custodial
       interrogation, the statement is classified as gratuitous, and is not
       subject to suppression for lack of warnings. Id.

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999).

       Detective Jeffrey Spence testified that the investigating officers received

word that a Mexican male checked into a local emergency room with head

injuries, and he decided to interview the injured party. N.T. Trial, 5/14-16/12,

at 237-38.      Unsure if Appellant’s injuries were related to the brawl and

subsequent homicide under investigation, Spence asked Appellant how we

was injured. Id. at 238. Appellant claimed he had been jumped by a group

of black males. Id. at 239. Appellant was wearing a neck brace and claimed

he had been drinking, but he was lucid and able to understand and respond

to questions. Id. at 239-40. Spence did not read Appellant his Miranda



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1   Miranda v. Arizona, 384 U.S. 436 (1966).

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rights, because Spence viewed Appellant as a possible victim rather than a

suspect at the time. Id. at 246. Spence was at the hospital for twenty to

thirty minutes, and did not engage in a long conversation with Appellant. Id.

at 242-43. Spence spoke to Appellant’s cousin while waiting for hospital staff

to bring Appellant to his assigned room. Id.

      Thus, the record reflects a short conversation between Appellant and

Detective Spence in a hospital room, during which time Detective Spence

viewed Appellant as a potential victim. Appellant claims Detective Spence was

lying, and that witnesses at the scene already identified him as the shooter.

In any event, the PCRA court concluded that Appellant was not subjected to a

custodial interrogation, and we agree.     A question of how Appellant was

injured did not invite or require an admission from Appellant that he shot the

victim. Furthermore, Appellant voluntarily checked himself into a hospital and

was not in police custody. Detective Spence left Appellant’s hospital room

after a short conversation. Appellant’s argument fails.

      In his final argument, Appellant asserts that trial counsel’s bad advice

led Appellant to reject a favorable plea agreement. The PCRA court found this

issue waived because Appellant failed to include it in his PCRA petition. Our

review of the record confirms the PCRA court’s finding.     Appellant did not

include this issue in his original pro se petition or either of his amended,

counseled petitions. He cannot raise it for the first time on appeal. Pa.R.A.P.

302(a).


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       In summary, we have concluded that six of Appellant’s arguments lack

merit and the seventh is waived.2 We therefore affirm the order dismissing

his petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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2  Appellant also has filed a supplemental brief in which he claims, among
other things, that he is innocent of first-degree murder, that counsel was
ineffective for failing to conduct sufficient investigations of the witnesses to
testify at trial, and that the PCRA court erred in permitting his third appointed
counsel to withdraw. Appellant failed to raise these issues prior to this appeal.
They are unreviewable under Pa.R.A.P. 302(a).

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