J-S35002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    RODRIGO MACEDO ARANA,

                             Appellant                  No. 134 MDA 2018


           Appeal from the PCRA Order Entered December 18, 2017
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0000004-2011


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED AUGUST 27, 2018

       Appellant, Rodrigo Macedo Arana, appeals from the post-conviction

court’s December 18, 2017 order denying his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we affirm.

       On July 21, 2011, a jury convicted Appellant of first-degree murder

based on the following facts:

              On September 11, 201[0] into the early morning hours of
       September 12, 201[0,] Alfredo Uribe, Jr., Axel Charicata, Mario
       Ceballos and Julio Romero went to a “Sweet 15” birthday party.
       They met [Appellant] at the party.[1] Uribe, Ceballos, Romero,
       and [Appellant] then proceeded to a second “after party.” The
       men left the “after party” and tried to purchase beer at a local bar.
       Romero remained in the silver Dodge Intrepid the group traveled
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1The record states that Appellant was born in November of 1990, making him
19 years old in September of 2010.
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      in. [Appellant] and Ceballos entered the bar to try to purchase
      beer. Uribe waited outside the bar because he did not believe he
      would be permitted entry due to his youthful appearance. After a
      short time, Uribe returned to the vehicle where Romero was. The
      vehicle was approximately one block away from the bar. During
      the course of the evening, Uribe entered the vehicle and “found”
      and retrieved a firearm from under the front passenger seat.
      Uribe put the firearm in his waistband and stated he intended to
      keep the gun and planned to attempt to sell it at school. Upon
      further examination from the [trial court], Uribe was unsure of the
      exact point in the evening when he retrieved the firearm.
      Elsewhere, [Appellant] and Ceballos left the bar unable to [ob]tain
      beer. They then came in contact with the victim, [W.T.], aged
      fifteen (15), and two of his friends, [D.D.], aged fourteen (14)[,]
      and [A.R.], aged sixteen (16). An argument ensued between the
      two groups, although it is unclear which group spoke the first
      words. Ceballos testified that he saw the victim, [W.T.], “messing
      with his waist” and so he asked him “yo, what are you reaching
      for,” believing he may have a firearm. Ceballos further testified
      that he went to check [the victim’s] waist, [the victim] moved
      Ceballos’[s] hand, and Ceballos then hit the victim. [Appellant]
      and the victim engaged in a fist fight, with [Appellant] clearly
      winning the fist fight. At some point during the scuffle[,] Ceballos
      removed the victim’s sneakers. [D.D.] and [A.R.] both testified
      that they ran before the fist fight began. Uribe further testified
      that after the fight had progressed and the victim was already
      down on the ground, and after he too had participated in hitting
      the victim, Uribe believed the victim to be reaching for his
      waistband again. Uribe removed the firearm from his waistband
      and [Appellant] grabbed the gun, firing eight (8) to nine (9)
      rounds into the victim. [Appellant], Uribe, Ceballos, and Romero
      then left the scene in Romero’s vehicle.

Commonwealth v. Arana, No. 1688 MDA 2011, unpublished memorandum

at 1-2 (Pa. Super. filed Dec. 21, 2012) (quoting Trial Court Opinion, 2/1/12,

at 1-3) (citations omitted)).

      On August 31, 2011, Appellant was sentenced to life imprisonment

without the possibility of parole. He filed a timely direct appeal, and this Court

affirmed.   See Arana, supra. Our Supreme Court denied his subsequent


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petition for allowance of appeal on July 16, 2013. Commonwealth v. Arana,

69 A.3d 599 (Pa. 2013).

      On March 6, 2014, Appellant filed a timely, pro se PCRA petition and

counsel was appointed.        After being granted several extensions of time,

counsel filed an amended petition on Appellant’s behalf on July 27, 2017.

Therein, counsel raised three claims of ineffective assistance of Appellant’s

trial counsel. On October 23, 2017, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to deny Appellant’s petition without a hearing. Appellant

did not respond and, therefore, on December 18, 2017, the court filed an

order denying his petition.

      Appellant filed a timely notice of appeal, and he also timely complied

with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Herein, he presents three questions for our

review:

      1. Did the PCRA [c]ourt err in not scheduling a hearing and not
         finding that trial counsel provided ineffective assistance of
         counsel when she interfered with Appellant’s right to testify and
         when she gave specific advice so unreasonable as to prevent
         him from presenting his claim of mistaken belief self-defense
         consistent with [v]oluntary [m]anslaughter?

      2. Did the PCRA [c]ourt err in not scheduling a hearing and not
         finding that trial counsel provided ineffective assistance of
         counsel when she interfered with Appellant’s right to testify and
         when she gave specific advice so unreasonable as to prevent




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          him from presenting his claim of mistaken belief or self-defense
          consistent with [v]oluntary [m]anslaughter?[2]

       3. Did the PCRA [c]ourt err in not scheduling a hearing and not
          finding that trial counsel provided ineffective assistance of
          counsel when she failed to investigate and call witnesses even
          though she told the jury that she would provide character
          witnesses to testify about Appellant’s reputation in the
          community for being peaceful or nonviolent, and produced only
          a single family member?

Appellant’s Brief at 4.

       We begin by recognizing that “[t]his Court’s standard of review from the

grant or denial of post-conviction relief is limited to examining whether the

lower 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) (citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4

(Pa. 1995)). Where, as here, a petitioner claims that he received ineffective

assistance of counsel, our Supreme Court has stated that:

       [A] PCRA petitioner will be granted relief only when he proves, by
       a preponderance of the evidence, that his conviction or sentence
       resulted from the “[i]neffective assistance of counsel which, in the
       circumstances of the particular case, so undermined the truth-
       determining process that no reliable adjudication of guilt or
____________________________________________


2 Appellant’s first two issues are identical in his Statement of the Questions
portion of his brief. However, in the argument section of his brief, Appellant
alleges in his second issue that his trial counsel acted ineffectively by
indicating in her opening statement that she would present certain evidence
that she ultimately did not produce. See Appellant’s Brief at 15-18. This
argument aligns with the second issue preserved in Appellant’s Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and discussed
by the PCRA court in its opinion. See PCRA Court Opinion, 10/23/17, at 2, 3-
4. Accordingly, while we could deem Appellant’s second issue waived based
on his failure to set it forth in his Statement of the Questions, we decline to
do so, as that error does not impede our meaningful review of his argument.

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      innocence could have taken place.”             Generally, counsel’s
      performance is presumed to be constitutionally adequate, and
      counsel will only be deemed ineffective upon a sufficient showing
      by the petitioner. To obtain relief, a petitioner must demonstrate
      that counsel’s performance was deficient and that the deficiency
      prejudiced the petitioner. 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.” … [A] properly pled claim of
      ineffectiveness posits that: (1) the underlying legal issue has
      arguable merit; (2) 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, 532-33 (Pa. 2009) (citations

omitted). We also note that, “[t]here is no absolute right to an evidentiary

hearing.”   Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa. Super.

2015) (en banc) (citation omitted). However, on appeal in a case such as

Appellant’s, where the PCRA court did not conduct a hearing, “we examine 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.”     Id. (citation and internal quotation

marks omitted).

      Appellant first contends that his trial counsel was ineffective for advising

him to waive his right to testify at trial. As our Supreme Court has explained,

      [t]he decision of whether or not to testify on one’s own behalf is
      ultimately to be made by the defendant after full consultation with
      counsel. In order to sustain a 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.


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

omitted).

       Here, Appellant contends that his trial counsel interfered with his right

to testify by not adequately consulting with him about that decision or fully

explaining his case to him, including what defense theory counsel intended to

pursue. Appellant claims that counsel could not have explained her defense

strategy to him - and how his testifying would help or hinder that defense -

where the record demonstrates that counsel was herself confused about what

defense theory she was advocating.             For instance, Appellant avers that at

times counsel pursued a ‘mistaken-belief’ (or ‘unreasonable belief’) defense,3

and at other points she argued that Appellant had a diminished capacity due

to his consumption of alcohol on the night of the shooting.4 Appellant also

contends that counsel unreasonably advised him not to testify because “his

testimony would not be helpful.” Appellant’s Brief at 13. Appellant maintains

that there was no logical reason for counsel to advise him as such, and her
____________________________________________


3 See 18 Pa.C.S. § 2503(b) (“Unreasonable belief killing justifiable.--A
person who intentionally or knowingly kills an individual commits voluntary
manslaughter if at the time of the killing he believes the circumstances to be
such that, if they existed, would justify the killing under Chapter 5 of this title
(relating to general principles of justification), but his belief is unreasonable.”).

4 “A defense of diminished capacity, whether grounded in mental defect or
voluntary intoxication, is an extremely limited defense available only to those
defendants who admit criminal liability but contest the degree of culpability
based upon an inability to formulate the specific intent to kill. … For a
defendant who proves a diminished capacity defense, first-degree murder is
mitigated to third-degree murder.” Commonwealth v. Hutchinson, 25 A.3d
277, 312 (Pa. 2011) (citations omitted).


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doing so prejudiced him, because there was no other evidence to support a

mistaken-belief defense, which requires proof of his state of mind at the time

of the shooting.

      Appellant’s claim lacks arguable merit.     First, the record does not

support his allegation that counsel did not sufficiently consult with him prior

to his waiving his right to testify. Just before closing arguments, the court

asked Appellant if he had decided whether he wanted to testify, and Appellant

responded that he did not. N.T. Trial, 7/19/11-7/21/11, at 418. Counsel then

informed the court that she and Appellant had “discussed at length the rights

he gives up by not testifying, [and] the benefits … for him if he does not

testify….” Id. Counsel stated that she “believe[d] [Appellant was] making a

knowing, intelligent, [and] voluntary waiver of his right to take the stand in

his own defense.”     Id.   The court then informed Appellant that he could

“[a]bsolutely” change his mind and take the stand if he desired. Id. at 419.

Appellant again confirmed that he did not want to testify. Id. When asked if

he had any questions, Appellant stated that he did not.      Id. Additionally,

when asked if he was “satisfied with the representation of [his] attorney[,]”

Appellant answered that he was. Id.

      Furthermore, the record belies Appellant’s claim that his counsel could

not have adequately advised him about testifying because she had not formed

a clear defense strategy. Counsel argued throughout trial that Appellant could

only be convicted of voluntary manslaughter under the mistaken-belief theory

of section 2503(b).     For instance, in counsel’s opening statement, she

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explained that Appellant had shot the victim under the mistaken belief that

the victim was reaching for a gun.        See id. at 50.     There was evidence

admitted during the Commonwealth’s case-in-chief that supported this

defense, namely Appellant’s own statement to police that he shot the victim

because he “saw [the victim] reaching for his hip[.]”          Id. at 226, 392.

Appellant’s counsel repeatedly reiterated Appellant’s mistaken-belief defense

in closing arguments, see id. at 426, 428, 429, 432, and the trial court

instructed the jury on that defense, id. at 467. While counsel did refer to

Appellant’s intoxication as diminishing his capacity to form the specific intent

to kill, see, e.g., id. at 422, counsel clearly centered her defense on

contending that the jury could convict him only of voluntary manslaughter

under a mistaken-belief defense.     Therefore, the record belies Appellant’s

assertion that counsel lacked a focused defense strategy and could not have

effectively advised him on the impact his testimony would have on that

defense.

      Finally, we address Appellant’s claim that counsel advised him not to

testify because his testimony would not be helpful. Appellant contends that

counsel’s   advice   was   unreasonable    because   there    was   no   evidence

establishing his state of mind at the moment he shot the victim, which was

necessary to support his mistaken-belief defense.      However, in Appellant’s

confession to police, he stated that he shot the victim because he believed the

victim was reaching for his hip. This evidence conveyed Appellant’s state of

mind at the moment of the shooting, supported his mistaken-belief defense,

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and made it unnecessary for him to take the stand and expose himself to a

potentially damaging cross-examination.          Therefore, Appellant has not

established that counsel’s advice was “so unreasonable as to vitiate a knowing

and intelligent decision to testify on his own behalf.” Nieves, 746 A.2d at

1104.

        In sum, we perceive no genuine issue of material fact regarding

Appellant’s first claim of ineffective assistance of counsel, premised on

counsel’s advising him not to testify. Therefore, the PCRA court did not err in

denying that claim without a hearing.

        In Appellant’s second issue, he avers that counsel was ineffective for

telling the jury, in her opening statement, that certain evidence would be

presented to support Appellant’s mistaken-belief defense, but then not

producing that evidence. Specifically, Appellant claims that counsel promised

the jury that several of the victim’s friends would testify that they heard one

of Appellant’s companions ask the victim, “what do you have?” Appellant’s

Brief at 16. However, none of the victim’s friends testified as such. In regard

to how he was prejudiced by this purported error by counsel, Appellant

confusingly states the following:

               In the end, the trial court provided a very brief mistaken
        belief charge; however, it did not instruct the jury on self-defense
        or diminished capacity. The trial court determined that: “Beyond
        the above instruction we do not believe that a self-defense
        [instruction] was warranted as the ground work was not laid
        throughout the trial.” Trial Court … Opinion, 2/12/2012, p. 12.
        Accordingly, Appellant was prejudiced.

Id. at 17.

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        Appellant’s prejudice argument is insufficient to demonstrate that

counsel acted ineffectively. Appellant does not explain why, if the victim’s

friends had testified as counsel said they would (i.e., that they heard

Appellant’s cohort ask the victim what he was reaching for), it would have

prompted the court to give an instruction on self-defense or diminished

capacity.5    Indeed, this testimony would have only further supported the

mistaken-belief defense, on which Appellant concedes the court instructed the

jury.    We also note that Appellant does not discuss why a self-defense

instruction would have changed the outcome of his trial, given that it is clear

the victim did not actually possess a firearm.       Therefore, the PCRA court

properly denied this claim of ineffectiveness without an evidentiary hearing.

        In Appellant’s third and final issue, he argues that his trial counsel was

ineffective for failing to present character witnesses.

           [W]hen raising a claim of ineffectiveness for the failure to
           call a potential witness, a petitioner satisfies the
           performance and prejudice requirements of the [Strickland
           v. Washington, 466 U.S. 668 (1984),] test by establishing
           that: (1) the witness existed; (2) the witness was available
           to testify for the defense; (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 of the witness was so prejudicial as to have
           denied the defendant a fair trial....

        Commonwealth v. Sneed, 45 A.3d 1096, 1108–09 (Pa. 2012).
        “To demonstrate Strickland prejudice, a petitioner must show
        how the uncalled witnesses’ testimony would have been beneficial
        under the circumstances of the case.” Sneed, 45 A.3d at 1109.
____________________________________________


5Indeed, this same testimony was offered by Mario Ceballos, and yet the court
ruled that no self-defense instruction was warranted.

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      Counsel will not be found ineffective for failing to call a witness
      “unless the petitioner can show that the witness’s testimony would
      have been helpful to the defense. A failure to call a witness is not
      per se ineffective assistance of counsel for such decision usually
      involves matters of trial strategy.” Id. (internal quotation marks
      and citations omitted).

Commonwealth v. Matias, 63 A.3d 807, 810–11 (Pa. Super. 2013).

      In the present case, Appellant claims that he provided counsel with the

names and contact information of five individuals who were willing to testify

on his behalf, but counsel only called one character witness, Theresa Robles.

Appellant acknowledges that Ms. Robles testified that he participated in a

community program to stop violence, “he was … a mentor for being a

nonviolent person[,]” and he had a reputation in the community for

peacefulness. Appellant’s Brief at 19 (quoting N.T. Trial at 415). However,

Appellant avers that he was prejudiced by counsel’s failure to call more

character witnesses because, in counsel’s opening statement, she had

promised the jury that multiple witnesses would be called to “testify about

Appellant’s reputation in the community for being peaceful or nonviolent.” Id.

at 18.   Appellant maintains that counsel’s decision to call only one such

witness “prevented [the jury] from believing that Appellant had others who

would verify his character[,]” thus causing him prejudice. Id. at 20.

      Appellant’s argument is unconvincing. Appellant centers his argument

that counsel ‘promised’ to call multiple character witnesses on the following

portion of trial counsel’s opening statement:

      [Defense Counsel:] You will hear evidence from witnesses who
      will tell you that [Appellant] enjoys a reputation in the community
      of Reading for being a peaceful or nonviolent person. People will

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       not come in here and tell you he is a trouble-maker, he is a fighter
       and … one who starts up with other people. That’s not what you
       will hear. You will hear that he enjoys a reputation for being a
       peaceful and nonviolent person and [the court] will tell you that
       we as human beings tend to act in conformity with our character.
       If you’re a funny person[,] you act funny. If you’re a peaceful
       person[,] you tend to act peaceful. If you’re a dishonest person[,]
       you tend to act dishonestly.

Id. at 18 (quoting N.T. Trial at 54-55; emphasis added).

       From this passage, it is clear that counsel only once referred to multiple

character witnesses.       We disagree with Appellant that this single remark

amounted to a ‘promise’ to the jury that counsel failed to keep by calling only

one character witness to the stand. Instead, counsel stated to the jury that

they would hear evidence of Appellant’s reputation for being peaceful and

nonviolent, and counsel produced that evidence by calling Ms. Robles to the

stand. Accordingly, we discern no prejudice caused to Appellant.6



____________________________________________


6 We also point out that, of the five individuals who Appellant names as
potential character witnesses, see Appellant’s Brief at 19, only two submitted
affidavits that referenced his reputation in the community for being peaceful
or nonviolent. See Appellant’s Pro Se PCRA Petition, 3/6/14, at “Exhibit A”
(affidavits of Lamberto Figueroa, Luis E. Figueroa-Villaseñor, and Natalie
Palomaes) and “Exhibit C” (affidavits of Maria M. Mora-Zavala and Jesus
Perez). Moreover, each of those two individuals, Lamberto Figueroa and Luis
E. Figueroa-Villaseñor, presented only a one-sentence statement that
Appellant has a “good” or “great” reputation in the community for being
peaceful and nonviolent; neither man elaborated on that claim in any way.
See id. at “Exhibit A” (affidavits of Figueroa and Figueroa-Villaseñor). In light
of the character testimony offered by Ms. Robles, and the boilerplate
statements in Figueroa’s and Figueroa-Villaseñor’s affidavits, Appellant has
not demonstrated that the absence of their character testimony deprived him
of a fair trial.



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      In sum, none of Appellant’s three claims of ineffective assistance of trial

counsel raises a genuine issue of material fact necessitating a hearing.

Therefore, the PCRA court did not err in denying his petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2018




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