J-S26003-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

JUAN MIGUEL SERRANO-TORRES

                        Appellant                   No. 719 MDA 2016


                Appeal from the PCRA Order April 12, 2016
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0002943-2012


BEFORE: BOWES, DUBOW, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 22, 2017

     Juan Miguel Serrano-Torres appeals from the April 12, 2016 order

denying him PCRA relief.

     Based upon the following events, Appellant was found guilty of

second-degree murder, robbery, conspiracy, and carrying an unlicensed

firearm. At approximately 7:30 p.m. on April 12, 2012, Appellant and Josue

Figueroa were standing in the 1300 block of Thompson Street, Harrisburg.

The victim, Francisco Oquendo-Nieves, and an unidentified individual arrived

in a car, and Figueroa sold drugs to the victim. As Mr. Oquendo-Nieves was

leaving the area, Appellant shot him in the back, and Figueroa removed

money and drugs from the victim’s pockets.




* Former Justice specially assigned to the Superior Court.
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      The Commonwealth’s evidence was as follows. During the afternoon

of April 12, 2012, Veronica Ortiz overheard Appellant and Figueroa planning

a robbery because they needed money, but they did not mention a particular

victim or outline their plan.   At the time, Figueroa was in possession of a

firearm. Jodeci Saunders, who lived in the area, was an eyewitness to the

crime and identified Appellant and Figueroa as the perpetrators.     Wanda

Baez-Lugo, a friend of Appellant, observed Appellant try to purchase a plane

ticket to Puerto Rico after the incident, but he was unable to do so.

Appellant admitted to Ms. Baez-Lugo that he robbed someone, took his

money, and shot him once.

      In April of 2012, Elizabeth Lopez was an acquaintance of Appellant and

owed him money. Shortly after April 12, 2012, Appellant asked her to repay

the debt so he could buy a ticket to Puerto Rico. Ms. Lopez was unable to

give Appellant the money, but he returned on April 17, 2012, again seeking

payment of the debt. At that time, Appellant revealed to Ms. Lopez he killed

someone in the midst of robbing the person.

      Jacqueline Arroyo, whom Appellant referred to as his wife, lived with

Appellant during April 2012. Other people told Ms. Arroyo about the April

12, 2012 events, and, when she confronted Appellant, he informed her that

he was trying to rob someone and shot him because he was running away.

After hearing this admission, Ms. Arroyo kicked Appellant out of her home.




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      Detective Joseph A. Zimmerman was assigned to the murder.        After

ascertaining that Mr. Oquendo-Nieves was dead from a single gunshot, he

contacted Mr. Oquendo-Nieves’s girlfriend, Keyla Soto. As a result of their

conversation, Detective Zimmerman believed that Figueroa was a witness to

the crime, and Figueroa was asked by police to come to the police station.

On April 13, 2012, Figueroa voluntarily appeared at the Harrisburg police

station.   Figueroa thereafter falsely identified two other men as the

shooters; they were subsequently eliminated as suspects through police

investigation.   Figueroa eventually admitted that he and Appellant had

planned to rob Mr. Oquendo-Nieves during a pre-arranged drug transaction.

Figueroa told police that Appellant shot the victim.   On April 19, 2012,

Appellant was arrested at Ms. Baez-Lugo’s home.

      After Appellant was arrested, he and Figueroa were placed in adjacent

holding cells. Police overheard them arguing, and they discussed the crime,

how they hid the murder weapon, and that Appellant shot the victim. DNA

on a cigarette at the scene of the crime included the DNA of Appellant and

Figueroa. After hearing Figueroa’s recorded confession, Appellant admitted

to police that he killed Mr. Oquendo-Nieves.

      Appellant litigated an unsuccessful motion to have his confession

suppressed, and proceeded to a jury trial, where he was convicted of the

above-delineated offenses on August 7, 2013.      The trial court thereafter

imposed a sentence of life imprisonment. Appellant filed an appeal, raising

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two issues: 1) the trial court erred in denying his motion to suppress his

inculpatory statement; and 2) the evidence was insufficient to support the

verdict.    We rejected those averments and affirmed.      Commonwealth v.

Serrano-Torres,       105   A.3d    806    (Pa.Super.    2014)    (unpublished

memorandum), appeal denied, 106 A.3d 725 (Pa. 2015)

      Appellant filed a timely pro se PCRA petition, and counsel, Jennifer E.

Tobias, Esquire, was appointed. Based upon a conflict of interest, Ms. Tobias

moved to withdraw, and Bryan E. DePowell, Esquire, was appointed in her

stead.     Mr. DePowell thereafter filed a petition to withdraw and no-merit

letter indicating why the myriad issues that Appellant raised in his pro se

petition were meritless and indicating that his review of the record and prior

counsel’s files established that Appellant was not entitled to PCRA relief.

      Appellant responded to the request to withdraw by contending that

there were additional meritorious issues that Appellant wished to raise and

that PCRA counsel should analyze them in his no-merit letter. On March 2,

2016, the trial court conducted an independent review of the record and

granted counsel’s petition to withdraw.       The March 2, 2016 order also

contains notice of the PCRA court’s intent to dismiss the petition without a

hearing. On April 12, 2016, the petition was denied, and Appellant timely

filed the present appeal. He raises two issues on appeal:

           I. Whether the PCRA court erred as a matter of law and /or
      abused its discretion in allowing PCRA counsel to withdraw where



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      PCRA counsel failed to advance all of Appellant's claims for relief
      or certify their lack of merit?

            II. Whether this matter should be remanded to the lower
      court for the appointment of new counsel and an evidentiary
      hearing where the claims as presented by Appellant, both within
      his pro se PCRA and response to counsel's motion to withdraw, if
      proven, would entitle Appellant to relief?

Appellant’s brief at 4.

      Initially, we observe, “Our standard of review of a PCRA court's

dismissal of a PCRA petition is limited to examining whether the PCRA

court's determination is supported by the record evidence and free of legal

error.”   Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.

2016).    Appellant’s first issue in his statement of issues involved is that

PCRA counsel failed to address and analyze certain issues that Appellant

wanted to have raised.

      Counsel    can        withdraw   in   the     PCRA   setting    pursuant    to

Commonwealth           v.    Turner,    544       A.2d   927   (Pa.   1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Our

Supreme Court articulated in Commonwealth v. Pitts, 981 A.2d 875 (Pa.

2009), that a Turner/Finley withdrawal is permitted if the following

mandates are followed:

      1) A “no-merit” letter by PCRA counsel detailing the nature and
      extent of his review;

      2) The “no-merit” letter by PCRA counsel listing each issue the
      petitioner wished to have reviewed;



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     3) The PCRA counsel's “explanation”, in the “no-merit” letter, of
     why the petitioner's issues were meritless;

     4) The PCRA court conducting its own independent review of the
     record; and

     5) The PCRA court agreeing with counsel that the petition was
     meritless.

Id. at 876 n. 1 (quoting Finley, 550 A.2d at 215).

     Herein, in his no-merit letter, PCRA counsel addressed the seven

issues raised in the pro se PCRA petition and demonstrated that they lacked

merit.   Additionally, PCRA counsel stated that he “carefully reviewed all

pertinent documents, including a full review of client files from previous

attorneys and the trial transcript.”   No-Merit Letter, 2/9/16, at 8.    Mr.

DePowell continued that in “the exercise of his professional judgment, [Mr.

DePowell] believes the defendant is not entitled to post-conviction relief

under the PCRA.” Id. PCRA counsel reported that, “No genuine issues exist

which would justify an evidentiary hearing.” Id. at ¶ 24.

     On appeal, Appellant first suggests that PCRA counsel should have

raised the issues presented in Appellant’s response to the withdrawal motion

as they were issues that Appellant wanted to present to the PCRA court.

Appellant is essentially challenging PCRA counsel’s stewardship in failing to

identify certain issues of merit when PCRA counsel reviewed the record and




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the files of Appellant’s prior lawyers and in concluding that there were no

issues of merit that entitled Appellant to PCRA relief.1

       The specific issues are that trial counsel ineffectively: 1) failed “to

move for suppression of those statements” by Josue Figueroa that were

inculpatory; 2) did not seek redaction of Appellant’s name from Figueroa’s

confession; 3) did not object when the trial court failed to inform the jury

that the length of time that Appellant was held in custody was pertinent to

whether his confession was voluntary; 4) did not object when the trial court

told the jury that there was a presumption of malice herein sufficient to

support a finding of guilty as to second-degree murder; 5) neglected to

complain about the trial court’s improper definition of reasonable doubt

during jury instructions; and 6) did not challenge on appeal the trial court’s

denial of a) Appellant’s motion to sever his trial from that of Figueroa and b)
____________________________________________


1
   We note that Appellant does not suggest that counsel had a legal duty to
consult with him, and there is no authority suggesting that the law imposes
such a duty in this context. Pitts does not have, as one of its requirements,
that PCRA counsel consult with his client. We have held that there is no
duty to consult the defendant when counsel withdraws on direct appeal.
Commonwealth v. Torres, 630 A.2d 1250 (Pa.Super. 1993). Counsel
herein conducted the required review, addressed the numerous issues raised
in the PCRA petition, and came to the conclusion that there were no other
meritorious issues to raise that would warrant the grant of PCRA relief. In
light of these circumstances and the precept that counsel is presumed to be
effective, we do not view Appellant’s assertion that he was not contacted to
ascertain whether he wanted to raise other issues, which, as analyzed in the
text, infra, lack merit, as sufficient to raise the specter of a violation of PCRA
counsel’s duties under Pitts.




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request to proceed pro se. Appellant’s brief at 12-13. We note that, while

none of these averments was presented in the original pro se PCRA petition,

they were raised in Appellant’s reply to counsel’s petition to withdraw.

      We examine allegations of ineffective assistance of counsel under the

following standards:

                   Counsel is presumed effective, and to rebut
            that presumption, the PCRA petitioner must
            demonstrate that counsel's performance was
            deficient and that such deficiency prejudiced him.
            Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
            2052, 80 L.Ed.2d 674 (1984).            This Court has
            described the Strickland standard as tripartite by
            dividing the performance element into two distinct
            components. Commonwealth v. Pierce, 515 Pa.
            153, 527 A.2d 973, 975 (1987). Accordingly, to
            prove counsel ineffective, the petitioner must
            demonstrate that (1) the underlying legal issue has
            arguable merit; (2) counsel's actions lacked an
            objective reasonable basis; and (3) the petitioner
            was prejudiced by counsel's act or omission. Id. A
            claim of ineffectiveness will be denied if the
            petitioner's evidence fails to satisfy any one of these
            prongs.

      Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 34, 35, 45
      (2012). Furthermore, “in accord with these well-established
      criteria for review, an appellant must set forth and individually
      discuss substantively each prong of the Pierce test.”
      Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super.
      2009).

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016).

      We consider Appellant’s first allegation waived as undeveloped since

he does not provide any legal authority for the proposition that he can seek

to suppress a statement made by another person nor does he make any

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attempt to prove why Figueroa’s statement was obtained unconstitutionally.

He merely presents this assertion in a single sentence.         As our Supreme

Court admonished in Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa.

2002), “Claims of ineffective assistance of counsel are not self-proving” and

“undeveloped arguments respecting counsel are insufficient to prove an

entitlement to relief.” Accord Commonwealth v. Bracey, 795 A.2d 935,

940 n.4 (Pa. 2001) (“a sentence that trial and appellate counsel were

ineffective for failing to raise and/or properly litigate the underlying claims of

error” constitutes “an undeveloped argument, which fails to meaningfully

discuss and apply the standard governing the review of ineffectiveness

claims” and fails to “satisfy Appellant's burden of establishing that he is

entitled to any relief.”).

      Appellant’s second position, which is that PCRA counsel was ineffective

when he did not raise the position that trial counsel should have objected to

the admission of Figueroa’s statement as it named Appellant, is minimally

supported by Appellant’s reference to Bruton v. United States, 391 U.S.

123 (1968). That case requires a defendant’s name to be redacted when his

co-defendant’s confession is presented to a jury. However, our review of the

trial transcript reveals that Appellant was not mentioned by name when the

contents of Figueroa’s confession were read to the jury. See N.T. Trial, 8/6-

7/15, at 348-50 (Appellant is referred to as “the guy”). Thus, there was no




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basis for PCRA counsel to argue that trial counsel should have objected

under Bruton.

      Appellant’s third position is that PCRA counsel should have advanced

the claim that trial counsel was ineffective for failing to argue that

Appellant’s confession was involuntary. That issue was previously litigated

on direct appeal, wherein Appellant argued that the length of his detention

before his confession rendered his waiver of his Miranda rights invalid and

his confession involuntary.     We analyzed and specifically rejected that

averment. It is established that a PCRA petitioner cannot obtain relief on a

claim that has been previously litigated. 42 Pa.C.S. § 9543(a)(3) (“To be

eligible for relief under this subchapter, the petitioner must plead and prove

by a preponderance of the evidence all of the following . . . . the allegation

of error has not been previously litigated[.]”). 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.” 42 Pa.C.S.

§ 9544(a)(2). Herein, this Court, the highest court in which Appellant had

review as of right, ruled that the length of time between the arrest and the

administration of his Miranda rights did not render his confession

unconstitutional. Hence, Appellant cannot obtain PCRA relief on the basis of

this issue.

      Appellant’s fourth allegation is that PCRA counsel should have averred

that trial counsel ineffectively neglected to object when the trial court told

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the jury that it could make an inference that Appellant acted with malice.

The evidence establishes that Appellant shot his victim in the back.        It is

established that “the finder of fact may infer malice and specific intent to kill

based on the defendant's use of a deadly weapon on a vital part of the

victim's body.”     Commonwealth v. Faurelus, 147 A.3d 905, 912

(Pa.Super. 2016) (quoting Commonwealth v. Hitcho, 123 A.3d 731, 746

(Pa. 2015)). Since Appellant shot the victim in a vital part of the body, trial

counsel could not have objected to the trial court’s statement that malice

could be inferred in the present case.        PCRA counsel had no basis upon

which to suggest that this instruction would have warranted PCRA relief.

      Appellant’s fifth and sixth issues are undeveloped.             In single

sentences, he asserts that PCRA counsel should have advanced these

positions: trial counsel ineffectively failed to object to the trial court’s

improper definition of reasonable doubt; trial counsel should have challenged

on direct appeal the fact that his case should not have been consolidated

with that of Figueroa; and trial counsel should have litigated on direct appeal

the contention that the trial court improperly denied Appellant’s request to

proceed pro se.      Appellant does not outline the given instruction on

reasonable doubt, nor does he indicate how it conflicted with the legal

definition of that term by citing to relevant law. Appellant fails to make any

reference to the pertinent law on consolidation, nor does he establish how

counsel could have challenged the consolidation ruling in question. Finally,

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Appellant does not direct us to the place in the record where he even asked

to proceed pro se, much less cite to applicable law and how it was violated

by that denial. Hence, we find Appellant has not established his entitlement

to relief on these undeveloped claims.

      Thus, we hold that PCRA counsel was not ineffective for failing to file

an amended PCRA petition presenting the issues raised in Appellant’s

response to PCRA counsel’s petition to withdraw and no-merit letter.

      Appellant’s second claim is that he is entitled to remand for the

appointment of new PCRA counsel and an evidentiary hearing because the

issues raised in his pro se PCRA petition, as well as those contained in his

response to counsel's motion to withdraw, entitle Appellant to PCRA relief.

Once again, Appellant wholly fails to develop this argument. Indeed, in this

section of his brief, Appellant does not even mention the issues that

supposedly warranted a grant of PCRA relief.

      Our review of counsel’s no-merit letter establishes that he properly

analyzed the contentions raised in Appellant’s pro se PCRA petition.       Our

discussion of Appellant’s first averment raised on appeal resolves his position

that he was entitled to PCRA relief on the basis of the issues raised in

response to PCRA counsel’s no-merit letter.     Hence, we reject Appellant’s

second allegation raised on appeal.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




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