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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
PEDRO LUIS GAVILAN-CRUZ,                 :         No. 1117 MDA 2017
                                         :
                         Appellant       :


                  Appeal from the PCRA Order, April 24, 2017,
              in the Court of Common Pleas of Lancaster County
               Criminal Division at No. CP-36-CR-0001911-2014


BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 20, 2018

        Appellant, Pedro Luis Gavilan-Cruz, appeals from the April 24, 2017

order of the Court of Common Pleas of Lancaster County denying appellant’s

petition for relief filed pursuant to the Post-Conviction Relief Act1 (“PCRA”).

After careful review, we affirm.

        The PCRA court provided the following relevant facts and procedural

history:

             On March 6, 2014, [appellant] was arrested and
             charged with rape, involuntary deviate sexual
             intercourse, aggravated indecent assault, terroristic
             threats, unlawful restraint (two counts), simple
             assault (two counts), and sexual assault.[Footnote 1]
             These charges related to [appellant’s] sexual assault
             of his ex-girlfriend while he held her hostage, under
             the threat of death, in her home from March 2,
             2014, to March 3, 2014.

1   42 Pa.C.S.A. §§ 9541-9546.
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                [Footnote 1] 18 Pa.C.S.A. § 3121(a)(1),
                18 Pa.C.S.A. § 3123(a)(1),18 Pa.C.S.A.
                § 3125(a)(2), 18 Pa.C.S.A. § 2706(a)(1),
                18 Pa.C.S.A.           § 2902(a)(1),(2),
                18 Pa.C.S.A.    § 2701(a)(1),(3),    and
                18 Pa.C.S.A. § 3124:1, respectively.

          The case proceeded to a jury trial before [the
          Honorable David L. Ashworth] on December 15,
          2014, and concluded on December 18, 2014, with a
          verdict of guilty on all nine charges. The jury further
          found that [appellant] used a deadly weapon at the
          time of each offense.           Following the verdict,
          sentencing was deferred pending a pre-sentence
          investigation.

          On April 2, 2015, the [PCRA] Court imposed
          consecutive sentences of 8 to 16 years’ incarceration
          for the rape and IDSI charges, plus concurrent
          sentences of 5 to 10 years for the aggravated
          indecent assault, 1 to 2 years for the terroristic
          threats, 1 to 2 years for the unlawful restraint – risk
          of bodily injury, 1 to 2 years for the unlawful
          restraint – involuntary servitude, and 1 to 2 years for
          each of the simple assault charges. The charge of
          sexual assault merged with the rape count for
          purposes of sentencing. The aggregate sentence,
          therefore, was 16 to 32 years’ incarceration. The
          sentencing was enhanced due to [appellant’s] use of
          a deadly weapon during the commission of the
          offenses.     [Appellant] was RRRI ineligible, but
          received credit for time served of 412 days.
          Restitution in the amount of $2,078.92 was imposed,
          as well as fees and costs. [Appellant] was advised at
          sentencing of his lifetime registration obligations
          pursuant to 42 Pa.C.S.A. § 9799.10. et seq., as a
          Tier III sexual offender.

          [Appellant] filed no post-sentence motions. A timely
          notice of appeal to the Superior Court of
          Pennsylvania      was     filed   on     April   29,
          2015.[Footnote 2]      On August 20, 2015, the
          Pennsylvania Superior Court dismissed the appeal for


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          failure of counsel to file a brief for [appellant.] (See
          No. 758 WDA 2015.)              [Appellant] had been
          represented at trial, sentencing, and on direct appeal
          by privately retained counsel, William D. Hobson,
          Esquire.

                [Footnote 2] Pursuant to this Court’s
                directive, [appellant] filed a statement of
                matters complained of on appeal, in
                which [appellant] raised four issues:
                (1) whether the prosecutor violated
                Pa.R.E. 404 by failing to provide written
                notice to defense counsel of the
                Commonwealth’s intention to introduce
                [appellant]’s prior bad acts; (2) whether
                [appellant]’s right to testify was violated
                by the Commonwealth’s intended use of
                prior bad acts as rebuttal evidence;
                (3) whether       the       Commonwealth
                improperly withdrew the plea offer; and
                (4) whether the guilty pleas were
                properly entered in the two prior
                convictions so as to serve as prior bad
                acts in the instant case.

          On July 14, 2016, [appellant], through newly
          retained private counsel, filed a PCRA petition
          claiming he was denied effective assistance of
          counsel when Attorney Hobson failed to perfect his
          direct appeal. The Commonwealth agreed that the
          petition was timely and that [appellant] was entitled
          to have his direct-appeal rights reinstated.
          Accordingly, the Commonwealth did not contest the
          PCRA [petition]. On July 20, 2016, [appellant] was
          granted PCRA relief, and leave to file an appeal
          nunc pro tunc to the Superior Court from his
          judgment of sentence.

          A nunc pro tunc appeal to the Superior Court of
          Pennsylvania was filed on July 26, 2016.[Footnote 3]
          (See No. 1238 MDA 2016.) A three-judge panel of
          the Superior Court affirmed the judgment of
          sentence in an unpublished memorandum filed on
          December      5,      2016[Footnote 4]          See


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           Commonwealth v. Gavilan-Cruz,                 2016     WL
           7048829 (Pa.Super. 2016).

                 [Footnote 3] Pursuant to this Court’s
                 directive, [appellant] furnished a concise
                 statement of matters complained of on
                 appeal which set forth two bases for the
                 appeal: (1) “Attorney Hobson, prior to
                 trial, failed to properly prepare appellant
                 to testify during the trial”; and
                 (2) ”Attorney Hobson gave appellant bad
                 advice, resulting in appellant giving up
                 his right to testify.”

                 [Footnote 4] [Appellant]’s claims of
                 ineffectiveness were dismissed without
                 prejudice to his right to seek relief under
                 the PCRA, pursuant to Commonwealth
                 v. Grant, 572 Pa. 48, 813 A.2d 726
                 (2002).

           On December 13, 2016, an amended petition was
           filed by PCRA counsel which raised the following
           issues: (1) trial counsel failed to adequately prepare
           his client to testify at trial; (2) trial counsel failed to
           explain to [appellant] that [appellant’s] prior record
           would not be presented to the jury if his testimony
           were limited to the historical facts of the incident;
           and (3) trial counsel advised [appellant] he was
           more likely to be acquitted if he chose to remain
           silent. The Commonwealth filed a response to the
           amended petition on January 12, 2017, conceding
           the need for an evidentiary hearing on these claims.
           Accordingly, a hearing was held on February 27,
           2017, at which time the [PCRA] Court heard
           testimony from Defense Attorney Hobson and
           [appellant]. Briefs having been filed by the parties,
           this matter is now ripe for [consideration].

PCRA court opinion, 4/24/17 at 1-4 (citations omitted).

     The PCRA court denied appellant’s petition on April 24, 2017.

Appellant filed a timely notice of appeal to this court on May 19, 2017. The


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PCRA court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) and Appellant timely

complied. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on

July 13, 2017, in which it incorporated its April 24, 2017 opinion and order

denying appellant’s PCRA petition.

      Appellant raises the following issue for our review:

            Did the PCRA court err when it denied [appellant’s]
            petition for post conviction relief when it found that
            trial counsel provided effective assistance when trial
            counsel failed to advise his client properly regarding
            his right to testify due to his misunderstanding of the
            trial court’s evidentiary ruling and misunderstanding
            of the fundamenals [sic] or [sic] evidence and trial
            counsel failed to prepare his client to testify at trial?

Appellant’s brief at 4 (capitalization omitted).

      Appeals following the denial of PCRA relief are subject to the following

standard of review:

            Our standard of review from the grant or denial of
            post-conviction relief is limited to examining whether
            the PCRA court’s determination is supported by the
            evidence of record and whether it is free of legal
            error. Commonwealth v. Morales, 701 A.2d 516,
            520 (Pa. 1997). We will not disturb findings that are
            supported by the record.           Commonwealth v.
            Yager, 685 A.2d 1000, 1003 (Pa.Super. 1996) (en
            banc).

Commonwealth v. Ousley, 21 A.3d 1238, 1241 (Pa.Super. 2011), appeal

denied, 30 A.3d 487 (Pa. 2011).

            To be entitled to relief on an ineffective assistance
            claim, a PCRA petition must establish: (1) the
            underlying claim has arguable merit; (2) no


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            reasonable basis existed for counsel’s action or
            failure to act; and (3) he suffered prejudice as a
            result of counsel’s error, with prejudice measured by
            whether there is a reasonable probability that the
            result of the proceeding would have been different.
            Commonwealth v. Chmiel, 30 A.3d 1111, 1127
            (Pa. 2011) (employing ineffective assistance of
            counsel test from Commonwealth v. Pierce, 527
            A.2d 973, 975-976 (Pa. 1987)[Footnote 5] Counsel
            is presumed to have rendered effective assistance.
            Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.
            2010).     Additionally, counsel cannot be deemed
            ineffective for failing to raise a meritless claim.
            Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.
            2006).     Finally, because a PCRA petitioner must
            establish all the Pierce prongs to be entitled to
            relief, we are not required to analyze the elements of
            an ineffective assistance claim in any specific order;
            thus, if a claim fails under any required element, we
            may dismiss the claim on that basis. Ali, 10 A.3d at
            291.

                  [Footnote 5]:     Pierce reiterates the
                  preexisting   three-prong     test   for
                  ineffective assistance of counsel in
                  Pennsylvania and holds it to be
                  consistent    with     the    two-prong
                  performance and prejudice test in
                  Strickland v. Washington, 466 U.S.
                  668 (1984). Pierce, 527 A.2d 976-977.

Commonwealth v. Trieber, 121 A.3d 435, 444-445 (Pa. 2015).

      A criminal defendant’s decision whether to testify in his own defense or

remain silent is a basic fundamental right grounded in both our national and

Commonwealth’s Constitutions. See U.S. Const. amdt. 5; Pa. Const. Art. I,

§ 9. Generally, a defendant cannot successfully claim ineffective assistance

of counsel for failing to call him to testify after a defendant has voluntarily

waived his right to testify in a colloquy, unless certain exceptions are


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established.   Commonwealth v. Rigg, 84 A.3d 1080, 1086 (Pa.Super.

2014), citing Commonwealth v. Peay, 806 A.2d 22, 29 (Pa.Super. 2002),

appeal denied, 813 A.2d 840 (Pa. 2002); Commonwealth v. Schultz,

707 A.2d 513, 520 (Pa.Super. 1997).

           In order to sustain a [PCRA] claim that counsel was
           ineffective for failing to advise the appellant of his
           rights in this regard, the appellant must demonstrate
           either that counsel interfered with his right to testify,
           or that counsel gave specific advice so unreasonable
           as to vitiate a knowing and intelligent decision to
           testify on his own behalf.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000), quoted by

Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013).

     Here, appellant waived his right to testify on his own behalf.    The

PCRA court administered the following colloquy in open court:

           THE COURT: All right. Mr. Gavilan-Cruz, it’s my
           understanding that you, after discussions with your
           attorney, have chosen not to testify; is that correct?

           [APPELLANT]: Yes.

           THE COURT: All right. Do you understand that you
           have both the right to testify and the right not to
           testify? Do you understand that?

           [APPELLANT]: Yes.

           THE COURT: And that you understand by choosing
           not to testify, the jury will be instructed that they
           may not in any way draw any negative inference or
           think that they should hold it against you for not
           testifying? Do you understand that?

           [APPELLANT]: Yes.



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             THE COURT: . . . . Do you understand that I will
             instruct the jury exactly that, and that they may not
             draw any negative inference against you for your
             decision to exercise your constitutional rights not to
             testify? Do you understand that?

             [APPELLANT]: Yes.

             THE COURT: Is this a decision that you have made
             of your own free will?

             [APPELLANT]: Yes.

             THE COURT: And you’ve discussed this with your
             attorney; correct?

             [APPELLANT]: Yes.

             THE COURT:       Have any threats or promises or
             anything of any kind been made to you or against
             you to force you to make this decision today?

             [APPELLANT]: No.

             THE COURT: All right. Do you have any questions
             of me or of your attorney?

             [APPELLANT]: No.

Notes of testimony, 12/17/14 at 500-501.

     In Nieves, the defendant elected not to testify on his own behalf

because     his counsel   was concerned about      the   defendant’s previous

convictions, none of which were crimen falsi, being used for impeachment

purposes.    Nieves, 746 A.2d at 1103.       The defendant’s counsel initially

alluded to having concern that the defendant’s testimony may have opened

a door to allow the Commonwealth to use evidence of the convictions for the

purposes of impeachment; however, upon further examination by the PCRA


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court, counsel testified that his concern of opening the door was not the

primary reason that he advised the defendant not to testify. Id. at 1105.

      Unlike in Nieves, appellant’s trial counsel testified that his primary

concern in advising appellant not to testify was that appellant would open

the door to allow the Commonwealth to use evidence of non-crimen falsi

convictions for the purpose of impeachment. See Pa.R.E. 404(a)(2)(A) (if a

defendant offers evidence of a particular character trait, a prosecutor may

then offer evidence to rebut). Specifically, Attorney Hobson testified that he

was concerned about the jury’s hearing about two previous convictions:

            The jury doesn’t know about the prior attack of a
            prior assault with the other -- with the other woman.

            But if [appellant] take[s] the stand and say[s], you
            know, [victim], I love you; [victim], I’d never hurt
            you; [victim], I’d never harm you, it’s coming in.
            And I said to [appellant], it is your decision, not
            mine, but if you say those words and that comes
            out, I believe you will get convicted.

            ....

            All I could do, I had to lay out to him that if he --
            again, if he said -- if his testimony went in certain
            directions, and I couldn’t see how he could defend
            himself and have that testimony not go in those
            directions.

Notes of testimony, 2/27/17 at 42-43.

      In its opinion, the PCRA court stated that it found Attorney Hobson’s

testimony to be credible.    Based on Attorney Hobson’s testimony, we find

that he did not interfere with appellant’s right to testify on his own behalf, as



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Attorney Hobson emphasized to appellant that it was appellant’s decision.

We further find that Attorney Hobson’s advising appellant not to testify was

based on reasonable strategic concerns about preventing the jury from

learning of appellant’s previous convictions.    (See notes of testimony,

2/27/17 at 42-43.)      We therefore hold that the PCRA court’s denial of

appellant’s PCRA petition was supported by the evidence of record and is

free of legal error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/20/18




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