J-S74007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
JUAN CARLOS GARCIA                       :
                                         :
                   Appellant             :   No. 1937 EDA 2017

                 Appeal from the PCRA Order May 25, 2017
 In the Court of Common Pleas of Montgomery County Criminal Division at
                     No(s): CP-46-CR-0000448-2014,
                          CP-46-CR-0008438-2014


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 14, 2018

      Juan Carlos Garcia appeals from the denial of his first PCRA petition.

We affirm.

      We restate the factual and procedural background, as ably set forth by

the trial court:

            [Appellant] entered open guilty pleas in the above-indexed
      cases on January 12, 2015, to three counts of robbery and three
      counts of conspiracy.      The Commonwealth nolle prossed
      approximately 300 additional counts. The charges stemmed
      from [Appellant’s] participation in armed robberies at three
      separate restaurants while they were occupied by employees
      and/or patrons

             More specifically, [Appellant] admitted for purposes of the
      case indexed at 448-14, that, on November 4, 2013, he entered
      the Whitpain Tavern in Montgomery County and threatened eight
      individuals inside with serious bodily injury, placing them in fear
      for their lives while taking or attempting to take property from
      them. [Appellant] admitted that he possessed a BB gun during
      the robbery, while his co-conspirator, Tyrice Griffin, possessed a
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        firearm. He also admitted that he conspired with Griffin to
        commit the robbery.

               [Appellant] admitted in the case indexed at 8438-14 that
        he and Griffin conspired to and did commit robberies at the
        Belvedere Inn in Lancaster County and Arooga’s Tavern in
        Cumberland County by placing the individuals inside in fear for
        their lives. [Appellant] again possessed a BB gun and Griffin had
        a firearm during both of the robberies.

              [The trial] court sentenced [Appellant] on August 21,
        2015, in the case indexed at 448-14, to 10 to 20 years in prison
        for robbery and a consecutive 10 to 20 years in prison for
        conspiracy to commit robbery. [Appellant] received concurrent
        sentences of 10 to 20 years in prison for the out-of-county
        offenses, plus probation, for an aggregate prison sentence of 20
        to 40 years.

PCRA Court Opinion, 8/9/17, at 1-2 (citing Trial Court Opinion, 11/30/15, at

1-2).

        Appellant appealed his judgment of sentence to this Court, and we

affirmed on October 3, 2016.       Commonwealth v. Garcia, 159 A.3d 32

(Pa.Super. 2016) (unpublished memorandum).           He did not seek further

appellate review, thus rendering his judgment of sentence final on

November 3, 2016.        On that same day, Appellant filed a pro se PCRA

petition. PCRA counsel was appointed, and, on April 5, 2017, Appellant filed

an amended PCRA petition contending that plea counsel was ineffective for

failing to present mitigating evidence at his sentencing hearing.      After a

hearing, the court denied Appellant’s PCRA petition. Appellant filed a timely

notice of appeal to this Court, and complied with the PCRA court’s order to

file a Rule 1925(b) concise statement of errors complained of on appeal.




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The court authored its Rule 1925(a) opinion, and this matter is ready for our

review.

      Appellant raises a single question for our consideration:         “Did the

[PCRA court] err in not finding [plea] counsel ineffective for failing to call [a]

witness[] who would provide mitigation testimony regarding Appellant’s

childhood at a sentencing hearing following an open guilty plea where such

witness[] would have been known to [plea] counsel upon minimal

investigation and communication with [A]ppellant?” Appellant’s brief at 5.

      When reviewing the denial of a PCRA petition, we are guided by the

following principles:

      Our review is limited to the evidence of record and the factual
      findings of the PCRA court. This Court will afford great deference
      to the factual findings of the PCRA court and will not disturb
      those findings unless they have no support in the record. When
      a PCRA court’s ruling is supported by the evidence of record and
      is free of legal error, we will not disturb its decision. However,
      we review the court’s legal conclusions de novo.

Commonwealth v. Domek, 167 A.3d 761, 764 (Pa.Super. 2017) (internal

citations and quotation marks omitted).

      When evaluating a claim that counsel was ineffective, “we begin with

the presumption [that] counsel is effective.”      Id.   (citation omitted).   In

order to succeed on such a claim, Appellant must establish, by a

preponderance of the evidence:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s actions or failure to act; and (3)
      appellant suffered prejudice as a result of counsel’s error, with


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      prejudice measured by whether there is a reasonable probability
      that the result of the proceeding would have been different.

Id.

      An ineffectiveness claim will fail if the petitioner does not establish any

of these three prongs. Commonwealth v. Watley, 153 A.3d 1034, 1040

(Pa.Super. 2016). Specifically, Appellant challenges plea counsel’s failure to

call his sister, Monica Hicks, to testify on his behalf at sentencing. In order

to establish a claim of ineffectiveness premised upon counsel’s alleged

failure to call a witness, Appellant must demonstrate that: (1) the witness

existed; (2) the witness was available; (3) counsel knew of, or should have

known of the existence of the witness; (4) the witness was willing to testify

for the defense; and (5) the absence of the testimony was so prejudicial to

petitioner to have denied him or her a fair trial. Commonwealth v. Miner,

44 A.3d 684, 687 (Pa.Super. 2012).

      At a hearing before the PCRA court, Appellant presented the testimony

of Ms. Hicks.   Ms. Hicks testified that she learned of Appellant’s criminal

conviction on the day he was sentenced. She had not been approached to

testify on his behalf, but stated, that she was willing to do so if counsel had

requested it. Further, Ms. Hicks suggested that, had she testified, she would

have discussed Appellant’s troubled upbringing, including abuse he suffered

at the hands of their grandmother, and her inability to properly care for him

during a year-long period wherein Appellant had lived with Ms. Hicks while

she was in her early twenties and Appellant was a twelve-year-old.           Ms.

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Hicks stated that Appellant’s difficult upbringing played a major role in the

legal trouble he faced later in life.

      The PCRA court found that Appellant did not establish any of the

prongs necessary to prove plea counsel’s ineffectiveness. As is pertinent to

our disposition herein, the court determined that Appellant had not

established that Appellant was prejudiced by plea counsel’s purported error.

After considering Ms. Hick’s testimony, the court noted that it “already had

the benefit of a [presentence investigation] report that included information

about [Appellant’s] childhood.” PCRA Court Opinion, 8/9/17, at 6. The court

observed that plea counsel had detailed many aspects of Appellant’s

troubled youth during the sentencing hearing, and observed that it was

aware of this when it fashioned Appellant’s sentence. The court concluded

that “Ms. Hicks’ purported testimony would not have changed this court’s

sentencing determination.” Id. at 7.

      In rebutting this finding, Appellant argues that Ms. Hicks “would have

put a human face to the Appellant’s background.”     Appellant’s brief at 11.

He maintains that Ms. Hicks presented information not previously available

in Appellant’s presentence investigation report, and thus, the court erred in

claiming that it had considered Appellant’s upbringing.        For example,

Appellant asserts that Ms. Hicks offered insight into the “abuse that

[Appellant] suffered at the hands of his grandmother, who took him in

following his abandonment,” and “that as a twenty-four year-old, Ms. Hicks


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took a twelve-year-old [A]ppellant into her home, but could not afford to

care for him.” Appellant’s brief at 11-12. Finally, Appellant contends that

the PCRA court “failed to give weight to the basic human understanding that

receiving information from a person, as opposed to the cold, hard

[presentence   investigation    report]   could   have   swayed    the   court’s

understanding of the depth of the extent of the hardships the Appellant

endured.” Id. at 12. We disagree.

      During the sentencing hearing, plea counsel noted:

      Now, I think when you look at the PSI, Your Honor, there are
      several mitigating factors supporting my tendency towards
      leniency on this, Your Honor. First and foremost, I think it’s
      crystal clear from the PSI my client had a terrible childhood.
      Abandoned by both parents; mother was a drug addict who did
      not raise him, was not present in his life. Father was in prison
      and he did not know him. He bounced around from school to
      school in Philadelphia between grandparents, other family
      members, really never had a home.

Sentencing Hearing, 8/21/15, at 6.

      In fashioning its sentence, the sentencing court stated:

      Being the trial judge, I had an opportunity of seeing you in
      action, not only testifying, but also on the videotapes of these
      four robberies. And all I can say is you are a real pro. You are a
      real pro at robbing people.          You might have had a tough
      upbringing. It’s a consideration, but albeit a minor one because
      at this point in your life prior to these robberies you have already
      been in the state prison system.

Id. at 10. After recounting Appellant’s extensive adult and juvenile criminal

history, the court continued,

      I have to tell you that when I was reading your file over this
      week in preparation for today, I looked at the PSI. I considered

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     the information there and the guidelines, the fact that what I
     saw you do on the videotape, looking at the victims in this case,
     and I had an idea of where this was going to go. I thought
     about sending you something like 40 years in jail. That’s what I
     was thinking about. Based upon your record, the violence and
     the damage that’s occurred in this case, it didn’t bother me at all
     thinking in those terms.

           ....

     . . . I have considered your age, the information that you
     presented about yourself today, and the information in the Pre-
     Sentence Investigation, as well as the evidence of the
     circumstances of the offense. The facts as to your personal
     background and circumstance is not in dispute.         And after
     considering these factors, the Court finds there is an undue risk
     that during the period of probation or partial confinement you
     will commit another crime. A lesser sentence would depreciate
     the seriousness of your crime and I therefore find that a
     sentence of total confinement is proper.

Id. at 11-13. The court then sentenced Appellant to an aggravated-

range sentence as delineated above.

     It is clear from the sentencing court’s above-statements that the court

was aware that Appellant suffered a difficult childhood.   Nevertheless, the

court emphasized Appellant’s criminal history, the serious nature of his

crimes, and the likelihood that Appellant would reoffend in sentencing him to

a sentence in the aggravated range of the guidelines. The court expressly

stated that, in light of these aggravating factors, the mitigating effect of

Appellant’s childhood was a minor consideration. Indeed, after hearing Ms.

Hicks’ testimony, the PCRA court explicitly stated that such information

would not have changed the sentencing court’s determination.




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      Likewise, we are not persuaded that Ms. Hicks’ testimony would have

overcome the substantial reasons the sentencing court set forth in rendering

Appellant’s judgment of sentence.      The sentencing court was aware of

Appellant’s upbringing, and Ms. Hicks’ additional information did not

significantly add to the grim picture of Appellant’s childhood painted by the

presentence investigation report.   As such, we find that Appellant has not

established that there is a reasonable probability that the outcome of his

sentencing proceeding would have been different but for plea counsel’s

alleged error. Domek, supra; Watley, supra. Accordingly, we affirm the

PCRA court’s denial of Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/18




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