J-S55033-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
            Appellee                     :
                                         :
      v.                                 :
                                         :
RODOLFO HIRALDO PEREZ,                   :
                                         :
            Appellant                    :   No. 1723 MDA 2016

             Appeal from the PCRA Order September 23, 2016
              in the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0000898-2011

BEFORE:     DUBOW, RANSOM, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED OCTOBER 24, 2017

      Rodolfo Hiraldo Perez (Appellant) appeals from the order which denied

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546.     Also before us is a petition to withdraw filed by

Appellant’s counsel and a no-merit brief pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).        We affirm the order and grant

counsel’s petition to withdraw.

      On March 26, 2012, following a jury trial, Appellant was convicted of

first-degree murder and criminal conspiracy for his involvement in the

stabbing death of Vladimir Ruiz. On May 29, 2012, Appellant was sentenced

to a term of life imprisonment for the murder conviction, and a consecutive

20-to-40-year term of imprisonment for conspiracy. Appellant’s judgment of



*Retired Senior Judge assigned to the Superior Court.
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sentence was affirmed by this Court on August 13, 2013, and on February

20, 2014, our Supreme Court denied Appellant’s petition for allowance of

appeal. Commonwealth v. Perez, 83 A.3d 1077 (Pa. Super. 2013), appeal

denied, 86 A.3d 233 (Pa. 2014).

     On February 13, 2014, Appellant pro se filed a PCRA petition. Counsel

was appointed and on August 19, 2016, after a number of continuances by

both parties, a hearing was held. By order dated September 23, 2016, the

PCRA court denied Appellant’s petition. This timely appeal followed.

Thereafter, PCRA counsel sought from this Court leave to withdraw his

representation of Appellant pursuant to Turner/Finley.     Appellant has not

filed a response to counsel’s request to withdraw.

     Before we may address the potential merit of Appellant’s claims, we

must determine if counsel has complied with the technical requirements of

Turner and Finley.

           … Turner/Finley counsel must review the case zealously.
     Turner/Finley counsel must then submit a “no-merit” letter to
     the trial court, or brief on appeal to this Court, detailing the
     nature and extent of counsel’s diligent review of the case, listing
     the issues which the petitioner wants to have reviewed,
     explaining why and how those issues lack merit, and requesting
     permission to withdraw.

           Counsel must also send to the petitioner: (1) a copy of
     the “no-merit” letter/brief; (2) a copy of counsel’s petition to
     withdraw; and (3) a statement advising petitioner of the right to
     proceed pro se or by new counsel.

           If counsel fails to satisfy the foregoing technical
     prerequisites of Turner/Finley, the court will not reach the

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      merits of the underlying claims but, rather, will merely deny
      counsel’s request to withdraw. Upon doing so, the court will
      then take appropriate steps, such as directing counsel to file a
      proper Turner/Finley request or an advocate’s brief.

             However, where counsel submits a petition and no-merit
      letter that do satisfy the technical demands of Turner/Finley,
      the court—trial court or this Court—must then conduct its own
      review of the merits of the case. If the court agrees with
      counsel that the claims are without merit, the court will permit
      counsel to withdraw and deny relief. By contrast, if the claims
      appear to have merit, the court will deny counsel’s request and
      grant relief, or at least instruct counsel to file an advocate’s
      brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)

(citations omitted).

      We are satisfied that counsel has complied with the technical

requirements of Turner and Finley.           Therefore, we will consider the

substantive issues contained in counsel’s brief.

      On appeal, Appellant raises four claims of trial counsel ineffectiveness.

Specifically, Appellant alleges that trial counsel was ineffective for (1) failing

to communicate with him adequately in furtherance of his defense, (2)

failing to present a diminished capacity defense to the charge of first-degree

murder, (3) failing to call an expert to support his defense of voluntary

intoxication, and (4) stipulating to Appellant’s guilt at trial. Turner/Finley

Brief at 6-7.

      Our standard and scope of review is well-settled:

      [A]n appellate court reviews the PCRA court’s findings of fact to
      determine whether they are supported by the record, and

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      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

             To establish trial counsel’s ineffectiveness, a petitioner
      must demonstrate: (1) the underlying claim has arguable merit;
      (2) counsel had no reasonable basis for the course of action or
      inaction chosen; and (3) counsel’s action or inaction prejudiced
      the petitioner.

            Furthermore,

            [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
            ineffective assistance of counsel which, in the
            circumstances of the particular case, so undermined
            the truth-determining process that no reliable
            adjudication of guilt or innocence could have taken
            place. 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is
            presumed effective, and to rebut that presumption,
            the PCRA petitioner must demonstrate that counsel’s
            performance was deficient and that such deficiency
            prejudiced him.

      Counsel’s assistance is deemed constitutionally effective once
      this Court determines that the defendant has not established any
      one of the prongs of the ineffectiveness test.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(internal quotation marks and citations omitted).

      Appellant first contends that counsel was ineffective for failing to meet

with him an adequate number of times to discuss his defense strategy prior

to trial. Turner/Finley Brief at 6. “[I]t is well[-]settled that the amount of

time an attorney spends consulting with his client before trial is not, by

itself, a legitimate basis for inferring the total extent of counsel’s pretrial

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preparation, much less the adequacy of counsel’s preparation.” See

Commonwealth v. Harvey, 812 A.2d 1190, 1196–97 (Pa. 2002) (citation

omitted). The PCRA court addressed this claim as follows.

            Though Appellant complains that trial counsel was
     ineffective in failing to properly communicate with him prior to
     trial, in light of the trial testimony and evidence referenced
     herein, we fail to see how any number of meetings could alter
     the result at trial. During his testimony at the PCRA hearing,
     Appellant testified that he met with one of his court appointed
     attorneys three or four times, Attorney Pike once, and the
     defense’s private investigator …. [] Appellant went on to testify
     that the defense’s investigator, Bob Harris, prepared the
     [Appellant] to testify at trial.

           Attorney Pike testified credibly that he met with the
     Appellant two to four times prior to trial and [Appellant]
     acknowledges meeting with Attorney Pike’s co-counsel, David
     Lampman, Esquire, three to four times. [Appellant] also met on
     multiple occasions with the Defense Team’s Investigator. It is
     clear to the [c]ourt that Appellant’s defense team adequately
     prepared and attempted to prepare [Appellant] for trial.

PCRA Court Opinion, 5/15/2017, at 4-5 (citations omitted).

     The PCRA court’s assessment is supported by the record. See N.T.,

8/19/2016, at 6-7, 20-21; Commonwealth v. Spotz, 18 A.3d 244, 259

(Pa. 2011) (citation omitted) (holding that “[t]he PCRA court’s credibility

determinations, when supported by the record, are binding on this Court.”)

Accordingly, we find no error in the PCRA court’s determination that this

claim lacks arguable merit and, therefore, must fail. Freeland, 106 A.3d at

775 (“Counsel’s assistance is deemed constitutionally effective once this




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Court determines that the defendant has not established any one of the

prongs of the ineffectiveness test”).

      Appellant next argues that counsel was ineffective for failing to assert

at trial a defense of diminished capacity due to voluntary intoxication.1

Turner/Finley Brief at 6.    However, the trial transcript demonstrates that

counsel argued at trial a defense of diminished capacity due to Appellant’s

voluntary intoxication and the trial court issued a voluntary intoxication jury

instruction prior to deliberations. N.T., 3/27-30/2012, at 619-20, 641, 723-

25.   Accordingly, as the record belies Appellant’s claim, the claim has no

arguable merit and we discern no error in the PCRA court’s denial of relief.

      In his third argument, Appellant contends that counsel was ineffective

for failing to call an expert witness to testify to support his diminished

capacity defense. Turner/Finley Brief at 6-7. It is well-settled that expert

testimony concerning a defendant’s ability to formulate a specific intent to

kill is admissible. See e.g. Commonwealth v. Legg, 711 A.2d 430 (Pa.

1998).   However, where an appellant seeks to raise a claim that expert

testimony should have been introduced at trial, he or she must articulate

“what evidence was available and identify a witness who was willing to offer



1 “For a defendant who proves a diminished capacity defense, first-degree
murder is mitigated to third-degree murder. To establish a diminished
capacity defense, a defendant must prove that his cognitive abilities of
deliberation and premeditation were so compromised, by mental defect or
voluntary intoxication, that he was unable to formulate the specific intent to
kill.” Commonweatlth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011).
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such [testimony].” Commonwealth v. Gwynn, 943 A.2d 940, 945 (Pa.

2008) (citation omitted). Appellant has failed to do so. As the PCRA court

explained,

      Appellant at his PCRA hearing did not call such an expert who
      plainly could have watched the same video that informed Officer
      Zipovsky’s testimony and offered his or her own opinion.
      Accordingly, Appellant does not offer a scintilla of evidence on
      this issue to establish the requisite prejudice required to grant
      relief. His appeal must fail. There was no expert testimony on
      this subject presented at the PCRA Hearing let alone expert
      testimony which would have contradicted the testimony of
      Officer Zipovsky. Accordingly, there is absolutely no showing of a
      reasonable probability that the outcome of the proceedings
      would have been different as it relates to this issue.

PCRA Court Opinion, 5/15/2017, at 7.

      Accordingly, we find that Appellant has not met his burden under

Freeland and find no error in the PCRA court’s denial of his third claim.

      Finally, Appellant argues that counsel erred in stipulating to Appellant’s

guilt at trial. Turner/Finley Brief at 7.      It is well-settled that, “[i]f a

defendant does not admit that he killed the victim, but rather advances an

innocence defense, then evidence on diminished capacity is inadmissible.”

Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 632 (2010). The

record reveals that, in support of his defense of diminished capacity,

Appellant testified that he stabbed the victim, as required, and defense

counsel presented this diminished capacity defense to the jury. Accordingly,

counsel had a reasonable basis for stating that Appellant killed the victim:

the chosen defense required it. No relief is due.

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     Because we agree with Appellant’s counsel that none of the issues

Appellant raised in his PCRA petition has merit, we grant his petition to

withdraw and affirm the order dismissing Appellant’s PCRA petition.

     Order affirmed. Petition to withdraw granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/24/2017




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