J-S07041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
ABIDIK QUESADA GONZALEZ,                   :
                                           :
                   Appellant               :           No. 717 MDA 2016

                   Appeal from the PCRA Order April 7, 2016
                 in the Court of Common Pleas of York County,
              Criminal Division, No(s): CP-67-CR-0005872-2010

BEFORE: BOWES, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 28, 2017

        Abidik Quesada Gonzalez (“Gonzalez”) appeals from the Order denying

his first Petition for Relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        In a prior appeal, this Court summarized the history underlying the

instant appeal as follows:

        Several weeks prior to the stabbing that gave rise to this case,
        [Gonzalez] gave the complainant a white substance[, which] the
        complainant believed[,] could be used as a cutting agent for
        cocaine. A few days later, police searched the residence where
        the complainant was staying and, though they found no cocaine,
        [they] apparently seized drug paraphernalia. Police later made a
        comment of some type leading the complainant to believe [that
        Gonzalez] had advised police [that] the complainant had drugs
        and/or drug paraphernalia.

        At some point after his arrest and eventual release, the
        complainant was present with several other people at the
        residence of one of his friends. The complainant was outside
        [of] the home. [Gonzalez] arrived in a vehicle. The complainant

1
    42 Pa.C.S.A. §§ 9541-9546.
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     approached the vehicle, intending to confront [Gonzalez] about
     the police having searched the complainant’s residence.

     [Gonzalez] ignored the complainant as the complainant tried to
     talk to him. A trial witness indicated [that Gonzalez] then exited
     his vehicle and “went towards the complainant.” N.T., 11/01/11,
     at 121. The witness similarly testified [that Gonzalez] went
     “after [the complainant] and [the complainant] fell on the floor.”
     Id. Testimony clarified that, when using the phrase “the floor,”
     the witness meant the surface of a parking lot.

     While the complainant lay on the ground, [Gonzalez] held him
     and stabbed him repeatedly.          The complainant sustained
     multiple stab wounds, including two wounds to the chest. He
     suffered collapsed lungs and needed to have chest tubes
     inserted. Medical testimony indicated [that] the complainant’s
     injuries were life threatening, though he did survive.

     The foregoing incident occurred in June 2010. By August 2010,
     [Gonzalez] had been arrested and faced multiple criminal
     charges….

Commonwealth v. Gonzalez, 63 A.3d 823 (Pa. Super. 2012) (unpublished

memorandum at 1-2).

     Following a jury trial, Gonzalez was found guilty of aggravated assault

(attempting to cause or causing serious bodily injury), 18 Pa.C.S.A.

§ 2702(a)(1).   The trial court thereafter sentenced Gonzalez to 7½ to 15

years in prison.   On November 8, 2012, this Court affirmed Gonzalez’s

judgment of sentence.   Gonzalez, 63 A.3d 823. Gonzalez did not petition

for allowance of appeal to the Pennsylvania Supreme Court.

     In December 2012, Gonzalez timely filed the pro se PCRA Petition

underlying this appeal. On December 12, 2013, the PCRA court appointed

counsel to represent Gonzalez, who subsequently filed an Amended PCRA



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Petition.   The PCRA court conducted an evidentiary hearing on September

26, 2014.       While his first PCRA Petition was pending, Gonzalez filed

additional pro se PCRA Petitions alleging ineffective assistance of PCRA

counsel.    On April 7, 2016, the PCRA court denied Gonzalez’s first PCRA

Petition. PCRA Court Order, 4/7/16. Gonzalez filed a timely appeal of the

PCRA court’s Order.      On April 22, 2016, the PCRA court entered an Order

denying Gonzalez’s subsequent pro se PCRA Petitions as untimely filed.

PCRA Court Order, 4/22/16, at 1.

        On appeal,2 Gonzalez challenges the denial of his first PCRA Petition,

presenting the following claim for our review:          “Whether trial counsel was

ineffective for failing to call [Gonzalez] as a witness?” Brief for Appellant at

4. Gonzalez asserts that

        [i]n a case where virtually the only issue is the credibility of the
        Commonwealth’s witnesses versus that of Gonzalez, [the] failure
        to explore all alternatives available to assure that the jury heard
        the testimony of a known witness[,] who might be capable of
        casting a shadow upon the Commonwealth’s witness’s
        truthfulness[,] is ineffective assistance of counsel.

Id. at 18 (citation omitted). Gonzalez contends that in order to consider the

subjective aspects of his justification defense, the jury “needed to have two

competing stories to weigh and determine which is more credible.”           Id. at

21. According to Gonzalez, it was not reasonable for counsel to believe that

Gonzalez’s     justification   defense   was   likely   to   succeed,   where   the

Commonwealth’s witnesses had disputed that justification.           Id.   Gonzalez

2
    Gonzalez is represented by counsel on appeal.


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argues that, “if the jury believed the version of events presented by

Commonwealth witness Jeffrey Rios (“Rios”), i.e., that only Rios had

approached Gonzalez’s vehicle, “and not a crowd of people loyal to Rios—

then there was simply no justification for Gonzalez to have left the safety of

the vehicle to confront Rios.” Id. at 22. Gonzalez posits that if the jury had

believed his version of the events, as he testified to at the PCRA hearing, the

jury could have found that it was “arguably reasonable” for Gonzalez to

leave his vehicle “in order to keep Rios and his friends from removing both

him and [Denise] Hostetter from the car. They were surrounded and could

not retreat in complete safety.”        Id.   Gonzalez further challenges trial

counsel’s   failure,   during   cross-examination    of   the   Commonwealth’s

witnesses, to elicit evidence “about [the] size and strength of the parties,

[the] disparity in numbers, and threatening or menacing actions by Rios at

the time of the incident.” Id. at 23. Gonzalez contends that such evidence

would have made his justification defense “self-explanatory.” Id. at 23-24.

      Gonzalez additionally argues that his counsel was unreasonably

concerned about Gonzalez’s prior conviction for a crimen falsi offense, where

Rios also had prior crimen falsi convictions.     Id. at 24.    Finally, Gonzalez

claims that his counsel rendered ineffective assistance by failing to explain

the viability of Gonzalez’s defense at the time he made the decision not to

testify on his own behalf. Id. at 25.




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     “In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted).

     In its Opinion, the PCRA court set forth the relevant law, addressed

Gonzalez’s claim and concluded that it lacks merit.    PCRA Court Opinion,

4/7/16, at 2-8. We agree with the sound reasoning of the PCRA court, as

set forth in its Opinion, and affirm on the basis of the PCRA court’s Opinion

with regard to this claim. See id.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017




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