J-S18012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    JUAN PABLO RIOJAS                           :
                                                :
                       Appellant                :   No. 1530 MDA 2018

             Appeal from the PCRA Order Entered August 9, 2018
     In the Court of Common Pleas of Franklin County Criminal Division at
                       No(s): CP-28-CR-0002169-2012


BEFORE:      BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.:                        FILED: AUGUST 22, 2019

       Juan Pablo Riojas appeals pro se from the order entered by the PCRA

court that denied his first counseled PCRA petition and permitted counsel 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).

After careful review, we affirm.

       Appellant was arrested on October 10, 2012, and charged with two

counts of rape by forcible compulsion, and one count each of false

imprisonment, terroristic threats, simple assault, intimidation of a witness,

aggravated assault, and burglary.1             The charges stemmed from actions




____________________________________________


1 Aggravated assault and burglary were charged at a separate docket number,
which was filed in November of 2012. However, the cases were joined before
trial.


*    Former Justice specially assigned to the Superior Court.
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Appellant committed against his paramour, Ana Medellin, from October 4,

2012 to October 9, 2012.

      By way of background, in December of 2008, Appellant illegally brought

the pregnant victim and their minor child from Mexico to live with him in

Chambersburg, Pennsylvania. The victim did not speak English and knew no

one in the United States other than Appellant. After the victim moved in with

Appellant, he began hitting her and threatening to have her deported without

the children if she reported the abuse. On February 28, 2012, the victim left

the house after Appellant came home drunk and assaulted her in front of the

children. At first, she went to a Women in Need (“WIN”) shelter, where she

met an interpreter named Vanessa Vasquez, but she eventually moved into

her own apartment with the children.

      On October 4, 2012, Appellant forced his way into her home, threw

coffee on the wall, broke various objects, and repeatedly assaulted her until

she lost consciousness. Later, Appellant threatened to kill her as he cut her

chest with a knife he obtained from her kitchen. Appellant made a phone call

from the victim’s phone to his other paramour, Ana Ochoa, and forced the

victim to call off of work. After the children arrived home from school, Ana

Ochoa and a police officer called the victim’s phone. Appellant spoke with the

officer before taking the victim and children with him to a Lowes store. While

in the Lowes restroom, the victim sent a text message to Ms. Vasquez asking

for help. After Lowes, Appellant took the victim and the children to a jobsite




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with him for several hours, later returning to the victim’s apartment where

the physical abuse continued.

      The next morning, before dropping her off at work, Appellant took the

children to school and threatened the victim that she would never see her

children again if she reported the abuse. While at work, she complied with his

order to send him a message saying that she loved and missed him. That

night, Appellant picked the victim up from work and the children from a

babysitter. Once back in the apartment, Appellant proceeded to vaginally rape

the victim. The next two days proceeded similarly, with Appellant controlling

all of the victim’s movements. On October 8, 2012, Appellant vaginally raped

the victim a second time, before hitting her with a toy baseball bat on her

head in front of the children. Afterwards, Appellant left the apartment with

the victim’s keys.

      In the morning of October 10, 2012, the victim went to the police station

where she was interviewed by detectives and transported to the hospital for

a sexual assault examination. Ms. Vasquez accompanied the victim for the

examination, assisting as a translator.     The examination revealed small

lacerations in the victim’s labia minor, which was consistent with the victim’s

report of forcible vaginal penetration by Appellant. Bruising on the victim’s

face, fingers, and chest was photographed. Scratches on her arms and chest

were also documented.

      On October 22, 2012, police interviewed the victim for a second time.

Three days later, police went to the victim’s residence in order to collect

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evidence. While there, they retrieved the knife involved in the assault, took

photographs of the damage to the victim’s residence, and took an additional

photograph of the bruising on the victim’s face. Ms. Vasquez was also present

and acted as a translator between the victim and the police. The knife was

tested for DNA, but it was found to contain a mixture of DNA such that it could

not be interpreted.      However, sperm analyzed from the crotch area of the

victim’s underwear was determined to be a match to the DNA profile of

Appellant. During the pendency of this case, the victim obtained a U-Visa2

and became a legal alien for the first time.

       Appellant proceeded to a preliminary hearing on November 13, 2012.

At the conclusion of the hearing, all of the charges were held for trial.

Appellant’s Attorney Annie Gomez-Shockey filed a motion to introduce

evidence of prior sexual encounters. The Commonwealth filed an answer and

the trial court entered an order granting the motion.      The trial court also

continued the trial to the next trial term. Trial counsel also filed a motion

asking for the appointment of an expert. The trial court entered an order

granting the motion.

       On November 4, 2013, the trial court issued a pre-trial order notifying

the defense that the Commonwealth had advised the court of their intent to

offer an expert witness in the field of counterintuitive behavior by victims and

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2 A U-Visa is a temporary visa given to an alien who has been a victim of a
qualifying crime, has suffered serious physical or mental harm as a result, and
is cooperating in the prosecution of the crime. N.T. Trial, 3/6/14, at 26-29.

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directed Appellant that he had until December 9, 2013 to file a motion in

limine. Attorney Gomez-Shockey filed a motion in limine to exclude the expert

report and testimony and the Commonwealth responded with its answer. A

Frye3 hearing was held and the trial court denied Appellant’s motion to

exclude the testimony.

        On January 23, 2014, Attorney Gomez-Shockey filed a motion for

transcript of a hearing that occurred on May 20, 2013, involving his child

support case with the victim. The trial court issued an order directing the

support master to provide a copy of the audio recording of the hearing.

        On January 30, 2014, Attorney Gomez-Shockey filed a motion in limine

to preclude evidence of prior bad acts. In the motion, Appellant sought to

preclude the introduction of allegations of abuse that the victim claimed to

have occurred prior to October of 2012.                  The court directed the

Commonwealth to file an answer. Instead, the Commonwealth filed its own

motion to introduce evidence of prior bad acts, requesting to introduce the

evidence Appellant sought to preclude.           On February 28, 2014, the court

issued an order stating that the evidence of prior bad acts would be admissible

depending on the manner in which the evidence was presented at trial. The

court    also   noted   that    it   presumed    Appellant   was   opposed   to   the

____________________________________________


3 Pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), in order
to be admissible, the methodology underlying novel scientific evidence must
be sufficiently established and accepted in the relevant scientific community.
The Frye test is the standard. See Commonwealth v. Topa, 369 A.2d
1277, 1281 (Pa. 1977).

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Commonwealth’s motion and left open the opportunity for Appellant to object

contemporaneously at trial.

       On February 18, 2014, Attorney Gomez-Shockey filed a motion to obtain

a transcript of the Frye hearing to assist her cross-examination preparations

for the Commonwealth’s expert at trial. The court denied this motion, finding

that the court reporter did not have enough time to generate the transcript

prior to trial.

       Appellant proceeded to a jury trial on March 4, 2014, and was found

guilty on all counts except for aggravated assault and burglary. As a result,

Appellant received an aggregate standard range sentence of 103 to 270

months of incarceration. Appellant filed a timely post-sentence motion. After

the Commonwealth filed an answer and Appellant filed a written argument in

support of his post-sentence motion, the court issued an opinion and order

denying it. Appellant’s direct appeal rights were reinstated through the PCRA.

Appellant pursued a nunc pro tunc direct appeal challenging the admittance

of the Commonwealth’s expert, the admission of the prior bad acts testimony,

the trial court’s denial of his motion for judgment of acquittal, the trial court’s

granting of the Commonwealth’s motion to quash,4 the trial court’s denial of

a defense DNA expert, and the court’s denial of Appellant’s motion for

continuance of trial due to the absence of a necessary witness. On January

____________________________________________


4 The motion to quash resulted in the withholding of the victim’s U-Visa
application and some information pertaining to it that Appellant had
subpoenaed.

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31, 2017, this Court affirmed Appellant’s judgment of sentence.            See

Commonwealth v. Riojas, 158 A.3d 169 (Pa.Super. 2016) (unpublished

memorandum).

      On August 25, 2017, Appellant filed the instant timely pro se PCRA

petition raising sixteen issues, requesting discovery, and attaching fourteen

exhibits. Appointed counsel, Attorney Mark Bayley, filed a motion to withdraw

and a Turner/Finley no-merit letter. The PCRA court granted PCRA counsel’s

motion to withdraw and issued notice of its intent to dismiss the petition

without a hearing.    See Pa.R.Crim.P. 907 Notice, 7/19/18, at 2.          In a

contemporaneous opinion, the PCRA court detailed why none of Appellant’s

sixteen issues entitled him to relief under the PCRA.      See PCRA Opinion,

7/19/18, at 12-58.    Appellant did not file a response and his petition was

dismissed by the PCRA court on August 9, 2018.

      Appellant filed a timely pro se notice of appeal and the PCRA court

directed him to file and serve a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Appellant complied, filing a statement on September

28, 2013, wherein he raised three new issues in addition to the sixteen

preserved in his pro se PCRA petition.     The PCRA court issued a Pa.R.A.P.

1925(a) decision, relying on its July 19, 2018 opinion and addressing the three

new issues therein. The PCRA court found two of the new issues to be factually

inaccurate and the third to be waived for failure to raise the claim in response

to its 907 notice.




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       Appellant raises three issues in his statement of questions for our

review:

       I.     Whether the PCRA court erred and abused it’s [sic]
              discretion by dismissing Appellant’s PCRA petition as
              untimely pursuant to 41 Pa.C.S.A. §9545(b)?

       II.    Whether the Appellant’s sentence pursuant to the sex
              offender registration and notification act (SORNA) is illegal
              and violates the ex post facto clause of the United States
              and Pennsylvania Constitutions, where the SORNA statutes
              registration requirements constitutes a punishment?

       III.   Whether the PCRA court erred and abused it’s [sic]
              discretion in dismissing Appellant’s PCRA petition where all
              prior counsel(s) rendered ineffective assistance of counsel
              in violation of the sixth amendment of the United States
              Constitution?

Appellant’s brief at 4.5

       We begin with the principles pertinent to our review.      Our “review is

limited to the findings of the PCRA court and the evidence of record” and we

do not “disturb a PCRA court’s ruling if it is supported by evidence of record

and is free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183

(Pa.Super. 2012).        Similarly, “[w]e grant great deference to the factual

findings of the PCRA court and will not disturb those findings unless they have

no support in the record. However, we afford no such deference to its legal

conclusions.”     Id.    “[W]here the petitioner raises questions of law, our



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5 Appellant’s third question contains eight subparts, addressing the sixteen
claims he previously preserved in his pro se PCRA petition.

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standard of review is de novo and our scope of review is plenary.” Finally, we

“may affirm a PCRA court’s decision on any grounds if the record supports it.”

Id.

         In his first issue, Appellant challenges the PCRA court’s dismissal of his

PCRA as untimely.         Appellant’s brief at 13.     The PCRA court and the

Commonwealth respond that Appellant’s PCRA was not dismissed as untimely.

Commonwealth’s brief at 5.          Instead, the PCRA court’s August 9, 2018

dismissal order contained a typo stating that it dismissed the petition as

untimely, while “a review of the entire record shows that the PCRA court

dismissed the petition on the merits.” Commonwealth’s brief at 5. After a

careful review of the record, we agree.

         On July 19, 2018, the PCRA court issued an opinion along with its Rule

907 notice, in which it addressed all sixteen of the issues Appellant raised in

his pro se PCRA petition on the merits. See Trial Court Opinion, 7/19/18, at

15-58. Later, in its 1925(b) Opinion, the PCRA court explicitly stated that it

“did not dismiss the petition for being untimely.” See PCRA Court Opinion,

10/23/18, at 8. Accordingly, Appellant is entitled to no relief on this claim of

error.

         Appellant’s second issue challenges his sex offender registration based

on the holding in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

Appellant’s brief at 15-18. Specifically, Appellant argues that his reporting

requirements are illegal and violate the ex post facto clauses of the United


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States and Pennsylvania Constitutions. Id. at 16. The Commonwealth and

PCRA court counter that Appellant’s issue is waived because he did not raise

it before the PCRA court. See Commonwealth’s brief at 6. We agree.

       Generally, “issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.” Pa.R.A.P. 302. Where counsel files a

Turner/Finley no-merit letter, the proper procedure for raising claims not

originally included in a pro se petition is to request leave to amend the petition

in a Rule 907 response. Rykard, supra at 1192.

       A review of the record reveals that Appellant did not raise this issue in

his pro se PCRA petition and neglected to file a response to the PCRA court’s

Pa.R.Crim.P. 907 notice of dismissal. Since Appellant did not seek leave to

amend his petition or otherwise preserve this claim, he waived the issue when

he raised it for the first time in his Pa.R.A.P. 1925(b) statement.6

       Appellant’s    remaining     claims     allege   trial   and   appellate   counsel

ineffectiveness. In reviewing claims of ineffective assistance of counsel, we

note that counsel is presumed to be effective, and a PCRA petitioner bears the

burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112

(Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal



____________________________________________


6 In any event, Appellant’s substantive claim lacks merit. He remains
incarcerated, serving the sentence imposed at this case. Therefore, Appellant
has never registered as a sexual offender. Additionally, SORNA has been
replaced by Act 29, so he will not be required to register under SORNA in the
future. See 42 Pa.C.S. § 9799.52. As such, Appellant’s argument is moot.

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claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s

decision to act (or not) lacked a reasonable basis designed to effectuate the

petitioner’s interests; and that (3) prejudice resulted.     Id.   The failure to

establish any of the three prongs is fatal to the claim. Id. at 113.

       First, Appellant alleges that trial counsel rendered ineffective assistance

by stipulating to facts at trial without consulting with him. See Appellant’s

brief at 9, 20. The specific stipulations that Appellant argues deprived him of

his constitutional right to confrontation were to chain-of-custody issues

related to the sexual assault kit, panties, pajama bottoms, and knife which

were sent for DNA testing, and the entry of the victim’s hand-written

statement in Spanish, along with a document containing its English

translation.7   Id. at 21.     The PCRA court found this claim lacked arguable




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7 Appellant also challenges counsel’s alleged stipulation to exclude AT&T and
Sprint company experts from testifying at trial. See Appellant’s brief at 21.
However, Appellant has provided no citation to the record where such a
stipulation occurred and has not provided any argument beyond this bald
assertion to support it. Our own review of the trial transcripts has not
uncovered the existence of such a stipulation. Therefore, we are unable to
consider this inadequately-developed portion of the claim.




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merit, since Appellant provided no legal authority suggesting that such

consultation was required. PCRA Court Opinion, 7/19/18, at 21. We agree.8

       Attorneys undoubtedly have a duty to consult with their clients

regarding “important decisions,” including questions of overarching defense

strategy. Strickland v. Washington, 466 U.S. 668, 688 (1984). However,

trial counsel does not need to obtain consent for “every tactical decision”

made.        See    Commonwealth               v.   Brown,   18   A.3d   1147,   1158

(Pa.Super.2011).       Unlike the decision to plead guilty or testify in one’s

defense, decisions made where the circumstances are not exceptional, or do

not signal a defendant’s guilt, do not implicate constitutional concerns. Id.

       Appellant is challenging the stipulation to the chain of custody of a

couple of pieces of evidence and the admission of a defense exhibit. First,

trial counsel stipulated to the chain of custody of the sexual assault kit,

panties, pajama bottoms, and knife. N.T. Trial, 3/5/14, at 116-17. As a result

of the stipulation, both parties agreed that the proper chain of custody

procedure was followed when these items were taken into custody by the


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8 The PCRA court’s analysis of this claim improperly relies on statements
allegedly made by trial counsel to PCRA counsel during his investigation of the
issues raised in Appellant’s pro se PCRA petition. As these statements are not
part of the record, it was improper for the trial court to base its decision on
this information. See Commonwealth v. Duffey, 855 A.2d 764, 775 (Pa.
2004) (remanding for a determination of a reasonable basis, noting that in
the absence of testimony from counsel, the court “should refrain from gleaning
whether such a reasonable basis exists.”). However, because we find support
in the record for the PCRA court’s conclusion that this claim lacks arguable
merit, we affirm its decision on that basis.

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Chambersburg Police Department, sent to Harrisburg, and then onto the

Greensburg DNA lab for analysis. Id. at 117. DNA testing results of these

materials revealed that Appellant’s sperm was in the victim’s underwear. Both

sides agreed that the victim and Appellant had sexual intercourse. The dispute

was to whether that interaction was consensual or the result of a forcible rape.

Therefore, simply stipulating to the fact that proper procedures were followed

in the transportation and handling of this evidence did not amount to the

admittance of guilt such that trial counsel needed to consult with Appellant

before engaging in this agreement.

      Second, trial counsel stipulated to the entry of the victim’s Spanish

handwritten statement and its English translation as defense exhibits. N.T.

Trial, 3/6/14, at 4-5.   Defense counsel utilized these exhibits in its cross-

examination of the victim, attempting to impeach the victim by pointing out

inconsistencies between the different reports the victim gave over the course

of the case. Clearly, an exhibit used to impeach the victim’s testimony did

not signal Appellant’s guilt. Therefore, counsel was not required to consult

with Appellant before entering into this stipulation either.

      Appellant has failed to convince us that stipulation to a mere custodian

of records, someone who would otherwise be unconnected to the performance

of the actual analysis, and the stipulation to defense exhibits, which were

admitted   for   his   benefit   implicate   confrontation   clause   protections.




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Accordingly, we find that the PCRA court did not err when it concluded that

Appellant’s claim lacked arguable merit.

      Next, Appellant argues that trial counsel was ineffective for failing to

compel the trial court to comply with all of the Rules of Appellate procedure

regarding the production of transcripts. Specifically, Appellant challenges the

court reporter’s failure to notify him that transcripts had been lodged and the

trial court’s failure to give him the opportunity to make objections to their

text. See Appellant’s brief at 28-29. The Commonwealth and the PCRA court

concede that there was a technical deviation from the rules, because the court

reporter did not include language regarding the parties’ ability to make

objections prior to the transcript becoming part of the record. See PCRA Court

Opinion, 7/19/18, at 16; Commonwealth’s brief at 11. Ultimately, however,

both conclude that because Appellant has not identified any errors within the

transcripts that he wished to object to or indicated how this technical deviation

adversely impacted the outcome of his trial, he has not shown the prejudice

necessary to entitle him to relief. Trial Court Opinion, 7/19/18, at 18.

      We have reviewed the transcripts and discern no abuse of discretion in

the PCRA court’s conclusion that Appellant has failed to establish the

necessary prejudice.    Appellant has not identified any inaccuracies in the

transcripts to which he was denied the opportunity to object, to or that

adversely impacted the outcome of his trial.      In fact, Appellant’s appellate




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counsel utilized the transcripts when making arguments on Appellant’s behalf

on direct appeal. Therefore, no relief is due.

      In a related claim, Appellant alleges that counsel was ineffective when

he litigated a sufficiency-of-the-evidence challenge based upon the allegedly

defective transcripts. See Appellant’s brief at 35. The PCRA court dismissed

this claim since Appellant had not supported his argument with any controlling

precedent that suppression was an appropriate remedy for the technical

deviation that existed in the transcripts. See PCRA Court Opinion, 7/19/18,

at 19. We agree. As explained above, Appellant has not shown how appellate

counsel’s inaction in this area changed the outcome of his case. Accordingly,

we find that the PCRA court did not err when it dismissed this claim.

      Fourth, Appellant attacks trial counsel’s effectiveness for proceeding

with the preliminary hearing without first ensuring that a certified transcript

was being made, as allegedly required by Pa.R.Crim.P. 547. Appellant also

challenges appellate counsel’s failure to raise this issue on appeal. The PCRA

court found that both claims lacked merit, since Pa.R.Crim.P. 547 did not

support Appellant’s argument and he provided no other support for his

contention that a transcript of the preliminary hearing was required.      We

agree.

      In cases where a defendant is held for court after a preliminary hearing,

Pa.R.Crim.P. 547 requires that the issuing authority prepare a “transcript” of

the proceedings. It directs the reader to Pa.R.Crim.P. 135 for a listing of the


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general contents required to be contained within the “transcript.” A review of

these rules reveals that a transcription of hearing notes or witness testimony

is not required. Instead, “transcript” refers to what is more commonly called

a docket sheet. Such a document must contain items like the date and place

of hearings, the charges against the defendant, and the amounts of bail. See

Pa.R.Crim.P. Rule 135; see also Commonwealth v. Lee, 368 A.2d 812, 815

(Pa.Super. 1976) (reviewing the predecessor to Rule 547 and finding that all

that was required was “a transcript of [the issuing authority’s] docket

entries”).   Since the Rules of Criminal Procedure do not require a court

reporter to create a transcript of the notes of testimony and Appellant has

advanced no other argument as to why the preliminary hearing needed to be

transcribed, we find no abuse of discretion in the PCRA court’s determination

that these claims lacked arguable merit.

      Fifth, Appellant purports that trial counsel was ineffective for failing to

respond to the Commonwealth’s February 21, 2014 motion to introduce

evidence of prior bad acts. See Appellant’s brief at 42. The PCRA court found

that this claim lacked arguable merit, as it was a mischaracterization of the

record. See PCRA Court Opinion, 7/19/18, at 34-36. We agree.

      On January 30, 2014, Appellant’s counsel filed a motion in limine

seeking to preclude testimony and evidence of various allegations of abuse

that the victim stated occurred during the course of her relationship with

Appellant, prior to October of 2012.           The trial court ordered the


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Commonwealth to file an answer to Appellant’s motion. The Commonwealth

responded with its own motion in limine seeking to admit evidence of prior

bad acts, instead of an actual answer.        However, the Commonwealth

requested to admit the same evidence that Appellant’s motion in limine sought

to preclude.

      On February 28, 2014, the trial court issued an order wherein it

presumed that Appellant was opposed to the Commonwealth’s motion based

on his previous filing. See Trial Court Order, 2/28/14. It also found that the

evidence would likely be admissible depending on how it was introduced and

what contemporaneous objections defense counsel lodged at the relevant

time. Id. The issue was preserved and appellate counsel later challenged the

admission of evidence surrounding these prior bad acts unsuccessfully. See

Riojas, supra (unpublished memorandum at 3). Since trial counsel did in

fact challenge the Commonwealth’s motion in limine, Appellant’s claim lacks

arguable merit. Accordingly, we discern no abuse of discretion in the PCRA

court’s determination that this claim lacked arguable merit.

      Sixth, Appellant alleges that the Commonwealth committed a violation

of Brady v. Maryland, 373 U.S. 83 (1963). Under Brady and its progeny,

the prosecution has an obligation to disclose exculpatory information that is

material to the guilt or punishment of the accused, including evidence of an

impeachment nature. Commonwealth v. Hutchinson, 25 A.3d 277, 310

(Pa. 2011). In order to establish a Brady violation, an accused must prove


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that:    “[1] the evidence [at issue] was favorable to the accused, either

because it is exculpatory or because it impeaches; [2] the evidence was

suppressed by the prosecution, either willfully or inadvertently; and [3]

prejudice ensued.”       Commonwealth v. Lambert, 884 A.2d 848, 854

(Pa.2005).

        The evidence must have been “material evidence that deprived the

defendant of a fair trial.” Commonwealth v. Johnson, 815 A.2d 563, 573

(Pa. 2002). Favorable evidence is material “if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Commonwealth v. Weiss, 986 A.2d

808, 815 (Pa. 2009).       “[T]he mere possibility that an item of undisclosed

information might have helped the defense, or might have affected the

outcome of the trial, does not establish materiality in the constitutional sense.”

Commonwealth v. McGill, 832 A.2d 1014, 1019 (Pa. 2003).

        At trial, the victim testified that Appellant struck her in the head with a

baseball bat on the evening of October 8, 2012. N.T. Trial, 3/4/14, at 103.

Trial counsel attempted to impeach the victim’s testimony during her cross-

examination of the sexual assault examiner by pointing out that the victim’s

injuries were inconsistent with her testimony. N.T. Trial, 3/5/14, at 90-91.

The Commonwealth later asked the victim’s landlord to identify a toy bat on

cross-examination. N.T. Trial, 3/6/14, at 79. Trial counsel did not object, the

Commonwealth did not move to admit the bat, and no further testimony


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occurred   surrounding    the   bat.       Finally,   in   closing   argument,   the

Commonwealth explained that it showed the landlord the toy bat, in order to

highlight the fact that some of the discrepancies in the victim’s testimony were

the likely result of language barriers she faced and not because she was being

untruthful or exaggerating the facts. N.T. Trial, 3/7/14, at 35-36.

      Appellant argues that appellate and trial counsel were ineffective for

failing to object or challenge on appeal the Commonwealth’s introduction of a

baseball bat and testimony related to it, since it had not been disclosed to the

defense in discovery. See Appellant’s brief at 47-48. At one point Appellant

alleges that the evidence was favorable to him, but later argues that counsel

should have objected and moved for suppression of the evidence. Id. at 49,

52.   Appellant cannot have it both ways.         Even if the Commonwealth did

withhold the existence of a bat, Appellant must still plead and prove that the

evidence was favorable, such that there was a reasonable probability that if it

had been disclosed the outcome of the proceeding would have probably been

different. He has not done so, and in fact the evidence was disclosed during

trial, enabling Appellant to take advantage of any favorable aspects of it.

Instead,   while   arguing   that   a    Brady    violation    occurred,   Appellant

simultaneously alleges that he was “blindsided” by the evidence and unable

to defend himself effectively. Appellant’s brief at 52.

      Furthermore, Appellant fails to suggest how the outcome of the

proceeding would have been different if he had seen the toy bat pretrial. In


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fact, it is entirely possible that the toy bat benefited Appellant, as he was

acquitted of aggravated assault.               As such, we affirm the PCRA court’s

conclusion that trial and appellate counsel were not ineffective for failing to

object and litigate a direct appeal in this area.9

       Penultimately, Appellant challenges counsel’s failure to move for the

suppression of the victim’s second statement, which was made at the hospital,

and the evidence derived from it: the knife, DNA test results of the knife, and

pictures taken of the victim’s injuries. See Appellant’s brief at 52. According

to Appellant, suppression of the evidence was required pursuant to

Pa.R.Crim.P. Rule 519, after the police unreasonably delayed his preliminary

arraignment so that they could corroborate the victim’s statement. Appellant

explains that after he was arrested, police held him for six hours without a

preliminary arraignment while the victim was at the hospital being examined

and making a statement to the sexual assault examiner. Id. at 53, 55. The

Commonwealth responds that Appellant has failed to show that an


____________________________________________


9 While the PCRA court and the Commonwealth both improperly rely on
information gathered by Turner/Finley counsel that is not contained in the
official record, because an alternative basis for reaching their conclusion is
apparent from the record, we affirm. See Commonwealth v. McGill, 832
A.2d 1014, 1022 (Pa. 2003) (holding that the court should resolve questions
of reasonable basis for counsel’s actions in absence of evidentiary hearing only
when the answer is clear from the record); see also Commonwealth v.
Spotz, 870 A.2d 822, 832 (Pa. 2005) (reiterating that “this Court has
expressed a distinct preference for a hearing on counsel’s strategy before
venturing to hold that counsel lacked a reasonable basis for his or her actions
or inactions.”).


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unnecessary delay occurred or that any delay that did occur was related to

the victim’s sexual assault examination. We agree.

      Pa.R.Crim.P. Rule 519(A)(1) provides in relevant part,

      when a defendant has been arrested without a warrant in a court
      case, a complaint shall be filed against the defendant and the
      defendant shall be afforded a preliminary arraignment by the
      proper issuing authority without unnecessary delay.

Pa.R.Crim.P. Rule 519(A)(1). Our Supreme Court has developed a three-part

test for determining whether evidence obtained during a pre-arraignment

delay should be suppressed:    (1) the delay must be unnecessary; (2) the

evidence must be prejudicial; and (3) the evidence must be reasonably related

to the delay. Commonwealth v. Williams, 319 A.2d 419, 420 (Pa. 1974).

      Appellant argues that the six hours he spent in custody was unnecessary

and that any evidence obtained during that time period or derived from it

should be suppressed.    However, Appellant has failed to explain how the

evidence collected during that period was reasonably related to the delay. In

Williams, a twenty-seven hour        delay occurred between       arrest and

preliminary arraignment. The Commonwealth admitted that the delay was

not due to administrative considerations, but instead to allow the police time

to corroborate Williams’s story and apprehend other participants in the crime.

Williams, supra at 421. This explanation led our Supreme Court to conclude

that the “lack of satisfaction with the accused’s initial admission [provided]

the reasonable relation of the confession to the unnecessary delay,” rendering

the delay a violation of the predecessor to Pa.R.Crim.P. 519. Similarly, in

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Commonwealth v. Tingle, 301 A.2d 701, 703-04 (Pa. 1973), the accused

was in police custody for twenty-one and one-half hours prior to arraignment.

Six hours after arrest, Tingle gave an incriminating statement. Id. The police

found the statement to be inadequate and continued the interrogation for

another fifteen hours.    Id.   Again, our Supreme Court found that the

confession was related to the unnecessary and prejudicial delay. Id.

      Here, no such connection is present.     Appellant spent six hours in

custody prior to arraignment. However, unlike in Williams and Tingle, he

did not make any incriminating statements during that time. Also, the record

does not support his contentions. A review of the affidavit of probable cause,

filed at CP-28-CR-0002169-2012, shows that the criminal complaint was

based entirely on the victim’s original statement to police, which occurred

before Appellant was arrested. See Affidavit for Probable Cause, 10/10/12,

at 1. At trial, testimony by Officer Dianne Kelso, on cross-examination by

Appellant’s counsel, confirmed this reality. See N.T. Trial, 3/5/14, at 131-32

(agreeing that the entire investigation before the filing of the charges

consisted of the victim’s statements and officer observations of her in the

police station).

      Simply because the investigation continued after Appellant was arrested

does not mean that the investigation was in any way related to the six hours

Appellant spent in custody before the preliminary arraignment.          Many

administrative tasks must be completed in conjunction with an arrest. Since


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Appellant has not shown that the time between arrest and the preliminary

arraignment was in any way related to the victim’s sexual assault

examination, he has not met the burden of proof necessary to entitle him to

relief. Therefore, we affirm the PCRA court’s decision, finding that this claim

lacked arguable merit.10

       Finally, Appellant attacks trial counsel’s failure to object to and move for

the suppression of all statements and affidavits on the basis that they were

not translated properly from Spanish to English. See Appellant’s brief at 57.

Specifically, Appellant challenges the admission of the translated statements

of the victim and all evidence that was based on her statements because there

was no offer of the translator’s competence. Id. Additionally, the translations

of the victim’s statements were not signed by the translators, the translators

were not identified, and no oaths of affirmation to make a true translation

were attached. Id. at 58. Appellant cites to Fed.R.E. 604, Pa.R.E. 901, and

Pa.R.E. 603 in support of his argument. Id. at 58-59.

       The Commonwealth argues that Appellant’s claim is without merit, as

he did not provide any support for his allegation that these requirements apply

to translations made outside of the courtroom, that are later properly


____________________________________________


10Although, the PCRA court analyzed this issue on a different theory than the
one alleged by Appellant in his pro se PCRA and in his appellate brief, we find
support for the PCRA court’s ultimate conclusion in the record and affirm on
that basis. See Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super.
2012).


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authenticated before being admitted. See Commonwealth’s brief at 19-20.

Also, Appellant has not identified any errors in the translations.              Id.

Additionally, the PCRA court points out that trial counsel introduced some of

the at-issue exhibits and stipulated to the entry of the victim’s translated

statement that Appellant now challenges as inaccurately translated. Finally,

counsel used these pieces of evidence in order to pursue the defense theory

of the case, which was that the victim was fabricating allegations against

Appellant because she was jealous of Appellant’s other girlfriend and wanted

sole custody of the children. PCRA Court Opinion, 7/19/18, at 56.

       We discern no abuse of discretion in the PCRA court’s decision to dismiss

this claim. We find most persuasive the fact that Appellant has not identified

any potential errors in the translations.          Also, a review of the transcripts

reveals that all of the challenged exhibits were either admitted by defense

counsel, stipulated to by the parties, or properly authenticated by the

Commonwealth before they were admitted. Further, Appellant’s trial counsel,

who is fluent in Spanish,11 used many of the inconsistencies within these

statements to Appellant’s advantage. Accordingly, since Appellant has not

persuaded us that the admission of these exhibits harmed him in any way, no

relief is due.


____________________________________________


11 At sidebar, trial counsel told the court that she speaks Spanish, before
requesting that the court instruct the translator to translate word for word
what the victim was saying, instead of “her best translation.” N.T. Trial,
3/4/14, at 63-66.

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      Appellant has not met his burden of convincing us that the PCRA court’s

rulings were the product of an abuse of discretion or an error of law warranting

relief from this Court.   See Commonwealth v. Miner, 44 A.3d 684, 688

(Pa.Super. 2012). Therefore, we affirm the order denying his petition.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2019




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