J-S74034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

LUIS D. RODRIGUEZ

                            Appellant                 No. 3528 EDA 2015


                Appeal from the PCRA Order November 12, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0802282-2006


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                        FILED NOVEMBER 14, 2016

        Appellant, Luis D. Rodriguez, appeals from the November 12, 2015

order, denying his petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

        We adopt the following statement of facts, derived from the PCRA

court’s opinion, which in turn is supported by the record. See PCRA Court

Opinion (PCO), 3/4/16, at 3-4. Appellant and Nicholas Santiago were both

involved romantically with Melissa Sanchez. On May 5, 2001, Mr. Santiago

discovered Appellant in bed with Ms. Sanchez. Mr. Santiago threw Appellant

down a flight of stairs, broke his nose, and gave him two black eyes.

Appellant informed several individuals that he was going to “get” Mr.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Santiago.      He approached Marco Agosto, Michael Wood, and Shawn

Beckham to assist him in murdering Mr. Santiago.

        On May 8, 2001, Mr. Agosto drove Appellant and Mr. Beckham to Mr.

Santiago’s mother’s house, where they proceeded to shoot him to death.

Appellant later boasted about shooting Mr. Santiago to several witnesses. In

an altercation with another individual following the murder, Appellant

threatened to shoot that person just as he did Mr. Santiago.

        A bench trial commenced July 19, 2007, and concluded July 26, 2007.

The trial court convicted Appellant of murder in the first degree, criminal

conspiracy, firearms not to be carried without a license, and possessing

instruments of crime.1 The court proceeded immediately to sentencing, and

sentenced Appellant to a mandatory sentence of life imprisonment for first-

degree murder, and concurrent terms of ten to twenty years’ incarceration

for conspiracy, three and one-half to seven years’ incarceration for VUFA,

two and one-half to five years’ incarceration for PIC.

        Appellant timely filed post-sentence motions, asserting that his

conviction for first-degree murder was against the weight of the evidence.

The trial court denied this motion without a hearing. Appellant timely filed a

notice of appeal pro se; this Court requested that the trial court conduct a

Grazier2 hearing, and on October 3, 2007, the trial court appointed new

____________________________________________


1
    18 Pa.C.S. § 2502(c), § 903, § 6106, and § 907, respectively.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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counsel for Appellant.       Appellant filed a court-ordered Pa.R.A.P. 1925(b)

statement; the trial court issued a responsive opinion on September 2,

2008, and a supplemental opinion on December 4, 2008.

      On February 23, 2010, this Court affirmed Appellant’s judgment of

sentence, and the Pennsylvania Supreme Court denied his subsequent

petition for allowance of appeal on January 30, 2012. See Commonwealth

v. Rodriguez, 996 A.2d 15 (Pa. Super. 2010) (unpublished memorandum),

appeal denied, 38 A.3d 824 (Pa. 2012).

      On April 11, 2013, Appellant timely filed the instant PCRA petition,

contending that trial counsel was ineffective for failing to present alibi

testimony at trial, for improperly advising him to waive his right to a jury

trial, and for failing to object to the trial judge’s decision to limit the number

of spectators during the trial. On August 16, 2014, appointed counsel filed

an amended PCRA petition.         On November 19, 2014, the Commonwealth

filed a motion to dismiss.

      On June 2, 2015, the PCRA court conducted an evidentiary hearing

with regard to the alibi claim only. PCO at 4-9.

      Trial counsel, David Rudenstein, testified at the hearing.        Although

during their initial interactions, neither Appellant nor his parents mentioned

a possible alibi defense, Mr. Rudenstein nevertheless informed them of the

possibility. Mr. Rudenstein advised Appellant’s parents by letter that if they

wished to provide an alibi, they needed to give full statements to his private

investigator.   Mr. Rudenstein further discussed the alibi defense with

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Appellant’s parents and attempted to elicit facts and details to support the

claim to no avail.      Without details, he was concerned the claim would

irreparably harm Appellant’s defense.            Mr. Rudenstein and Appellant

discussed these concerns, specifically, that the alibi was too general and

would not be persuasive. Appellant agreed with counsel’s assessment; the

defense   was   not    an   option   and   was   not   discussed    in   subsequent

correspondence or interviews. Additionally, Mr. Rudenstein testified that it

would not have cost Appellant’s parents additional money to speak with his

investigator.

      Appellant’s     mother,   Maria   Domenech,      testified   on    his   behalf.

According to her, due to the injuries Appellant sustained on May 5, 2001, he

was confined to her home until May 9, 2001. Ms. Domenech acknowledged

that she did not contact police about this defense during the initial

investigation or after Appellant’s arrest.       She testified that trial counsel,

David Rudenstein, told her the proposed alibi defense was useless and

unbelievable. At first, Ms. Domenech denied that Mr. Rudenstein requested

formal statements be given to his investigator, but later claimed she did not

have the money to pay for an investigator’s services.

      Juan Alicea, Appellant’s stepfather, also testified on his behalf.

According to him, Appellant was always home when Mr. Alicea returned from

work and could not leave the house because he could not see. Mr. Alicea

asked counsel about presenting an alibi defense but was told a judge or jury

would not believe him and that presenting Appellant’s parents as witnesses

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would be detrimental to the case.       He claimed counsel had not asked for

specific details regarding Appellant’s whereabouts. At the time of trial, Mr.

Alicea still believed he would testify as an alibi witness, despite claiming Mr.

Rudenstein had refused to allow him to do so.             Mr. Alicea testified as a

character witness but did not mention an alibi on the stand.

      On November 12, 2015, the PCRA court formally dismissed Appellant’s

petition.   Specifically, the court made credibility determinations: it did not

find the testimony of Appellant’s parents credible and did find Mr.

Rudenstein’s testimony credible. See Notes of Testimony (N. T.), 11/12/15,

at 2-3.

      Appellant timely appealed and submitted a court-ordered Pa.R.A.P.

1925(b) statement. The PCRA court issued a responsive opinion.

      Herein, Appellant presents three issues for our review, all involving

allegations of ineffective assistance of trial counsel.

      A. Is Appellant entitled to post-conviction relief in the form of a
      new trial as a result of trial counsel’s ineffective assistance in
      failing to present an alibi defense on behalf of Appellant?

      B. Is Appellant entitled to post-conviction relief in the form of a
      new trial or a remand for an evidentiary hearing as a result of
      trial counsel’s ineffective assistance in failing to properly advise
      Appellant with regard to his waiver of his right to a jury trial?

      C. Is Appellant entitled to post-conviction relief in the form of a
      new trial or a remand for an evidentiary hearing as a result of
      trial counsel’s ineffective assistance in agreeing to the trial
      court’s clearing of the courtroom during the testimony of
      Commonwealth witness Marco Agosto?

Appellant’s Brief at 4.

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     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. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).        We afford the court’s findings

deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

     We presume counsel is effective.     Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence: “(1) the underlying legal issue has arguable

merit; (2) that counsel’s actions lacked an objective reasonable basis; and

(3) actual prejudice befell the petitioner from counsel’s act or omission.”

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted).   “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. Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).




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      First, Appellant asserts that trial counsel was ineffective for failing to

interview and call Appellant’s parents as trial witnesses in support of an alibi

defense. Appellant argues that had they testified, the court would not have

convicted him. See Appellant’s Brief at 4.

      Here, the PCRA court determined that Appellant’s witnesses were not

credible in their testimony regarding trial counsel’s actions.      See N. T.,

11/12/15, at 2.   Further, it found Mr. Rudenstein’s testimony that he had

pursued the alibi defense in a reasonable fashion credible and that Appellant

and his family had provided Mr. Rudenstein no information that would lead a

reasonable defense attorney to argue an alibi defense. Id. at 2-3. We may

not disturb this finding, as it is supported by the record.    See Brown, 48

A.3d at 1277.

      Although the PCRA court’s credibility finding eliminates the argument

Appellant now presents to this Court, we will examine briefly whether the

failure to present an alibi defense was objectively reasonable.

      The test for deciding whether counsel had a reasonable basis for
      his action or inaction is whether no competent counsel would
      have chosen that action or inaction, or, the alternative, not
      chosen, offered a significantly greater potential chance of
      success. Counsel’s decisions will be considered reasonable if
      they effectuated his client’s interests. We do not employ a
      hindsight analysis in comparing trial counsel’s actions with other
      efforts he may have taken.

Commonwealth v. Pander, 100 A.3d 626, 631 (Pa. Super. 2014) (en

banc) (citations omitted). To establish a claim that counsel was ineffective

for failing to investigate or call witnesses, an appellant must meet four

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prongs: 1) identify the witnesses; 2) demonstrate that defense counsel knew

of the existence of those witnesses prior to trial; 3) demonstrate the

witnesses would have provided material evidence at the time of trial; and 4)

establish the manner in which the witnesses would have been helpful to his

or her case.   See Commonwealth v. Poindexter, 646 A.2d 1211, 1216

(Pa. Super. 1994).

      Appellant cannot show that his parents would have provided material

evidence at the time of trial or that they would have been helpful to his case.

Appellant’s parents did not provide counsel with details to support an alibi

defense.    Without information that could have been corroborated, defense

counsel was wary of calling Appellant’s parents, who could have been

perceived as biased by a fact-finder.          He discussed these concerns with

Appellant, who agreed not to present an alibi defense. Based on the above,

counsel’s decision not to call Appellant’s parents as alibi witnesses had a

reasonable, objective basis. See Brown, 48 A.3d at 1277. Consequently,

this Court discerns no legal error in the PCRA court’s denial of Appellant’s

claim of ineffective assistance of counsel for failure to call Appellant’s

parents as alibi witnesses. See Ragan, 923 A.2d at 1170.

      The   PCRA     court   dismissed   Appellant’s   remaining   allegations   of

ineffective assistance of counsel without a hearing. PCO at 2. There is no

absolute right to an evidentiary hearing.              See Commonwealth v.

Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On appeal, we examine


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the issues raised in light of the record “to determine whether the PCRA court

erred in concluding that there were no genuine issues of material fact and in

denying relief without an evidentiary hearing.” See Springer, 961 A.2d at

1264.

        Appellant claims that counsel was ineffective for failing to properly

advise him with regard to his waiver of his right to a jury trial. He avers that

the   only    reason   he   waived   this    right   was   that   he   assumed   the

Commonwealth would be seeking the death penalty. See Appellant’s Brief

at 4. This assertion is contradicted by testimony elicited during the waiver

colloquy and the record.

        The Commonwealth stated at the waiver colloquy that it would not be

seeking the death penalty, and that this was not in return for a waiver; the

death penalty was off the table regardless of how Appellant chose to

proceed.     See N. T., 7/18/07, at 30.       Additionally, Appellant testified that

the decision to waive his right to a jury was knowingly, voluntarily, and

intelligently made, and executed a four-page written jury waiver form.

Appellant’s    claim   is   belied   by     the   record   and    meritless.     See

Commonwealth v. Bishop, 645 A.2d 274, 277 (Pa. Super. 1994) (noting

that it is clear an appellant may not obtain post-conviction relief by claiming

that he lied during his waiver colloquy); see also Commonwealth v.

Smith, 450 A.2d 973, 974 (Pa. 1982) (noting that a signed jury waiver form




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must be accorded prima facie validity). Accordingly, we discern no error in

the PCRA court’s decision to dismiss this claim without a hearing.

      Finally, Appellant claims that counsel was ineffective in agreeing to the

trial court’s “clearing of the courtroom” during the testimony of Marco

Agosto. He argues that this order violated his right to a public trial where

there was “no reason” to clear the courtroom. See Appellant’s Brief at 4.

      The decision to limit the number of spectators in a courtroom is within

the sound discretion of the trial court and will be reversed only if the court

abuses its discretion in issuing an exclusion order or in fashioning the scope

and duration of said order. See Commonwealth v. Berrigan, 501 A.2d

226, 234 (Pa. 1985).

      At trial, Mr. Agosto was uncomfortable testifying before a large crowd,

and the trial court judge, at a sidebar with counsel, noted Mr. Agosto’s fear

of testifying before the “extraordinary” number of people in the courtroom.

See N. T., 7/19/07, at 109-10.       The trial court expressed concern that

spectators in the courtroom had previously acted in a disruptive manner.

Id., at 112, 122, 126. Counsel objected to clearing the courtroom, arguing

that this violated Appellant’s right to a public trial.      Id. at 110-114.

Following argument, the trial court cleared the courtroom for Agosto’s

testimony alone, with the relatives of Appellant, his co-defendant, and the

victim, to remain.   Id., at 126.   Counsel then rescinded his objection to

clearing the courtroom for Mr. Agosto’s testimony only, subject to the


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presence of the aforementioned spectators.      Id. at 127.    Consequently,

counsel was not ineffective for failing to object to the trial court’s partial

closure of the courtroom during the testimony of a witness. We discern no

abuse of the court’s discretion.

      We discern no error in the PCRA court’s decision to dismiss Appellant’s

claims without a hearing, as Appellant’s claims are without merit and he is

not entitled to relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2016




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