J-S52001-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :        IN THE SUPERIOR COURT OF
                                            :              PENNSYLVANIA
            v.                              :
                                            :
JOSE LUIS GARCIA,                           :
                                            :
                   Appellant                :            No. 131 MDA 2017

                 Appeal from the PCRA Order December 20, 2016
                  in the Court of Common Pleas of Berks County,
                Criminal Division, No(s): CP-06-CR-0003340-2012

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED SEPTEMBER 21, 2017

       Jose Luis Garcia (“Garcia”), pro se, appeals from the Order dismissing

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

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       At the close of a jury trial in January 2013, Garcia was convicted of

various sexual offenses, stemming from his sexual assault of the five-year-old

victim in 2006. The trial court sentenced Garcia to an aggregate term of 8½

to 25 years in prison. This Court affirmed the judgment of sentence.           See

Commonwealth v. Garcia, 91 A.3d 1284 (Pa. Super. 2013) (unpublished

memorandum).       Garcia did not seek allowance of appeal with the Supreme

Court of Pennsylvania.

       In November 2014, Garcia filed a timely pro se PCRA Petition.

Following a procedural history that is not relevant to the instant appeal, the

PCRA    court    appointed   Michael   Dautrich,    Esquire   (hereinafter,   “PCRA
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counsel”), to represent Garcia.1     In August 2016, PCRA counsel filed an

Amended PCRA Petition.

     On November 30, 2016, the PCRA court issued a Pa.R.Crim.P. 907

Notice of Intent to Dismiss the PCRA Petition without a hearing (hereinafter

“Rule 907 Notice”).    Garcia thereafter filed a counseled Response, and a

separate pro se Response. By an Order entered on December 20, 2016, the

PCRA court dismissed Garcia’s PCRA Petition.

     Garcia timely filed a pro se Notice of Appeal, after which PCRA counsel

filed a separate Notice of Appeal.    On January 18, 2017, the PCRA court

ordered Garcia to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. On February 6, 2017, Garcia timely filed a pro se

Concise Statement, raising eighteen separate alleged errors. The next day,

PCRA counsel filed a separate Concise Statement. On February 8, 2017, the

PCRA court issued a Statement of Reasons in support of its dismissal of

Garcia’s PCRA Petition, wherein the court relied on its reasoning advanced in

the Rule 907 Notice.

     In March 2017, Garcia filed with this Court an Application requesting

permission to proceed pro se on appeal, and for a remand for the PCRA court

to conduct a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81

(Pa. 1998).   This Court granted Garcia’s Application, and ordered the PCRA



1
  Garcia had previously been appointed two other counsel to assist him on
collateral review, but both withdrew their appearances after Garcia had filed
disciplinary complaints against them.


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court to conduct a Grazier hearing to determine whether Garcia’s decision to

proceed pro se was made knowingly, intelligently and voluntarily.

        By an Order entered on April 19, 2017, the PCRA court granted Garcia’s

request to represent himself on appeal. Additionally, upon Garcia’s request,

the PCRA court withdrew the Concise Statement filed by PCRA counsel, and

permitted Garcia to proceed on the issues presented in his pro se Concise

Statement.

        Initially, we note that Garcia’s pro se brief does not meet the following

requirements:       Pa.R.A.P.    2111(a)(2)      and    2115(a)   (order   in   question);

Pa.R.A.P. 2111(a)(3) (statement of both the scope of review and the standard

of     review);    Pa.R.A.P.    2111(a)(4)      and    2116   (statement   of   questions

involved);2 Pa.R.A.P. 2111(a)(5) and 2117 (statement of the case); and

Pa.R.A.P. 2111(a)(6) and 2118 (summary of the argument).                    However, we

will    overlook     these     defects    and    address      Garcia’s   issues.      See

Commonwealth            v.     Blakeney,       108     A.3d   739,   766    (Pa.    2014)

(acknowledging that this Court may liberally construe materials filed by a pro

se litigant). But see also id. (noting that pro se defendants are held to the

same standards as licensed attorneys).

        We begin by noting our well-settled standard of review: “In reviewing

the denial of PCRA relief, we examine whether the PCRA court’s determination



2
   We observe that Garcia divides the Argument section of his brief into
eighteen separate, numbered “issues,” which closely mirror the eighteen
issues presented in his pro se Concise Statement.


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is supported by the record and free of legal error.”        Commonwealth v.

Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “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.” Id. (citation omitted).

      Under the PCRA, an issue is waived “if the petitioner could have raised

it but failed to do so before trial, at trial, during unitary review, on appeal or

in a prior state post[-]conviction proceeding.” 42 Pa.C.S.A. § 9544(b); see

also Commonwealth v. Jones, 815 A.2d 598, 607 (Pa. 2002) (same).

      Here, the issues that Garcia sets forth in his Argument section

numbered 1-6 and 13, could have been raised before the trial court and/or on

direct appeal.     See Brief for Appellant at 1-5, 9 (raising claims of

prosecutorial misconduct and trial court error in, inter alia, (1) failing to

conduct a competency hearing concerning the minor victim (who was 12

years of age at the time of trial); (2) permitting the victim to take a break

during her testimony to speak with her mother; and (3) sentencing Garcia).

Accordingly, all of these issues are waived under section 9544(b).           See

Jones, 815 A.2d at 607; see also Commonwealth v. Abdul-Salaam, 808

A.2d 558, 560 (Pa. 2001).

      In the majority of his remaining issues, Garcia alleges that the

representation rendered by his trial counsel was deficient in several respects.

See Brief for Appellant at 5-11.




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     We review claims alleging ineffectiveness of counsel under the following

standard:

     [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. … [T]o
     prove counsel ineffective, the petitioner must show that: (1) his
     underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. If a petitioner fails to prove
     any of these prongs, his claim fails.          Generally, counsel’s
     assistance is deemed constitutionally effective if he chose a
     particular course of conduct that had some reasonable basis
     designed to effectuate his client’s interests. Where matters of
     strategy and tactics are concerned, a finding that a chosen
     strategy lacked a reasonable basis is not warranted unless it can
     be concluded that an alternative not chosen offered a potential for
     success substantially greater than the course actually pursued.
     To demonstrate prejudice, the petitioner must show that there is
     a reasonable probability that, but for counsel’s unprofessional
     errors, the result of the proceedings would have been different. A
     reasonable probability is a probability that is sufficient to
     undermine confidence in the outcome of the proceeding.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations, quotation

marks and brackets omitted).

     Before addressing Garcia’s ineffectiveness claims, we must determine

whether he properly preserved them on appeal.         Garcia did not raise his

issues numbered 8, 10, 11 and 16 (see Brief for Appellant at 6, 7-8, 10) in

his pro se PCRA Petition, Amended PCRA Petition, or the Responses to the

Rule 907 Notice.   Accordingly, he has waived these issues.      See Pa.R.A.P.



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302(a) (stating that a claim cannot be raised for the first time on appeal);

Commonwealth v. Roney, 79 A.3d 595, 611 (Pa. 2013) (holding that the

appellant/PCRA petitioner waived his issues for failing to present them to the

PCRA court); see also Pa.R.Crim.P. 902(B) (stating that “[e]ach ground

relied upon in support of the relief requested shall be stated in the [PCRA]

petition.   Failure to state such a ground in the petition shall preclude the

defendant from raising that ground in any proceeding for post-conviction

collateral relief.”).

      In his issue numbered 7, Garcia argues that his trial counsel was

ineffective for failing to request a competency hearing concerning the

proposed testimony of the minor victim, “where it [was] clear that the alleged

victim did not remember the events that alleged[ly] took place[.]” Brief for

Appellant at 5. According to Garcia, he was “prejudice[d] because[,] had trial

counsel requested a competency hearing[,] there is a re[ason]able probability

that [Garcia] would have been acquitted ….” Id. at 6.

      The PCRA court addressed this issue in its Rule 907 Notice as follows:

      [Garcia] alleges that his trial counsel was ineffective for failing to
      request a competency evaluation/determination of the minor
      victim.   Every witness, however, is presumed            competent.
      Pa.R.E. 601(a). A party who challenges the competency of a
      minor witness must prove by clear and convincing evidence that
      the witness lacks “the minimal capacity … (1) to communicate,
      (2) to observe an event and accurately recall that observation,
      and (3) to understand the necessity to speak the truth.”
      Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003);
      Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011).
      Due to the fact [that] a child’s ability to comply with these
      competency considerations increases with age, the inquiry must



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      be in line with the child’s chronological immaturity.
      Commonwealth v. King, 786 A.2d 993, 997 (Pa. Super. 2001).
      The failure of a court to conduct a separate competency hearing
      of a child will not necessarily prejudice a defendant.
      Commonwealth v. Harvey, 812 A.2d 1190, 1199 (Pa. Super.
      2002) (holding that because [the] trial court had the opportunity
      to observe a 13-year-old witness’s demeanor and was the sole
      determiner of her truthfulness, the fact that the court did not
      engage in a distinct colloquy regarding the truthfulness aspects
      of her competency did not prejudice the appellant).

            In this matter, [Garcia] has not presented any facts in his
      [PCRA] Petition how the failure of his counsel to call for a
      competency hearing did not have some reasonable basis
      designed to effectuate his interests[,] and would have changed
      the outcome of the case.         The record demonstrates that,
      although no formal competency hearing was held, the court did
      swear the [victim] before she began [her] testimony, and the
      Commonwealth’s direct examination of the [victim] began with
      simple factual questions[,] which the [victim] answered
      truthfully – her age, her school level and name, and the names
      of her mother, stepfather, and siblings. Given that the [victim]
      was nearly old enough to proceed without any competency
      hearing due to age, and given her apparent ability to answer the
      questions posed with a reasonable degree of certainty, [Garcia’s]
      counsel may have reasonably concluded that the [victim] did not
      require a competency hearing, and that, accordingly, [counsel]
      did not find calling for one a necessary step in his trial strategy
      for [Garcia]. As a final note, [Garcia’s] initial pro se [P]etition
      failed to explain how the [victim] could have been both too
      incompetent to testify and was “being coach [sic] by her mother
      to give false testimony to the court.” [Garcia’s] claim on this
      issue is thus without merit.

Rule 907 Notice, 11/30/16, at 4-5 (citation to record omitted).      The PCRA

court’s analysis and determination is sound and supported by the record, and

we therefore affirm on this basis in rejecting this claim of trial counsel’s

ineffectiveness.   See id.; see also Commonwealth v. Puksar, 951 A.2d

267, 277 (Pa. 2008) (stating that “[a] claim of ineffectiveness cannot succeed




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through comparing, in hindsight, the trial strategy employed with alternatives

not pursued.”).

      In his issue numbered 9, Garcia avers that trial counsel was ineffective

for failing to request a “bias jury instruction” concerning the testimony of

Commonwealth witness Cynthia Midina (“Midina”).3 Brief for Appellant at 7.

Garcia points out that Midina had testified prior to trial that Garcia had

allegedly perpetrated other, uncharged sexual acts against the victim. 4 Id.

      “[T]he decision whether to seek a jury instruction implicates a matter of

trial strategy[.]”   Commonwealth v. Lesko, 15 A.3d 345, 401 (Pa. 2011)

(citing, inter alia, Commonwealth v. Hawkins, 894 A.2d 716, 730 (Pa.

2006) (collecting cases)). Where defense counsel had any reasonable basis

for not requesting a certain jury instruction, counsel will not be found

ineffective.   Commonwealth v. Sullivan, 299 A.2d 608, 611 (Pa. 1973);

see also Spotz, supra.

      At trial, Midina did not present any testimony concerning the uncharged




3
  Midina is the victim’s adult cousin, who often supervised the victim. N.T.
(trial), 1/16-17/13, at 37.     On the date of the sexual assault, Midina
temporarily left the victim in the care of Garcia, while Midina went to the
emergency room for treatment. Id. at 37-41. Upon returning later that day,
Midina gave the victim a bath and noticed that her genitals were “really,
really red[,]” whereupon the victim told Midina that Garcia had inserted his
finger in her vagina. Id. at 43-45.
4
  Specifically, Midina testified at the Motion in Limine hearing that the victim
had told her that Garcia had also forced the victim to perform oral sex on him
(hereinafter referred to as “the uncharged sexual conduct”), in addition to
touching her genitals with his fingers. N.T., 1/11/13, at 10, 13.


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sexual conduct.    Rather, she only testified to the victim’s statement to her

that Garcia had touched her genitals with his fingers.      N.T., 1/16-17/13, at

45-46.    Moreover, the trial court issued comprehensive instructions to the

jury, including an instruction that it was the jury’s sole province to evaluate

whether any witness was biased for or against either party.        Id. at 154-55

(stating that “[i]f you find that a witness has an interest or bias in the

outcome of the case, you should consider such interest or bias in weighing his

or her testimony.”). Accordingly, we conclude that Garcia’s trial counsel had

no reasonable basis to request a separate “bias jury instruction” 5 concerning

Midina’s testimony, and therefore, cannot be deemed ineffective in this

regard.    See Sullivan, supra; see also Hawkins, 894 A.2d at 731

(rejecting the PCRA petitioner’s challenge to his trial counsel’s effectiveness in

failing to request a jury instruction); Commonwealth v. Fisher, 813 A.2d

761, 770 (Pa. 2004) (stating that trial counsel cannot be deemed ineffective

for failing to object to a proper jury charge).

      In his issue numbered 12, Garcia contends that trial counsel was

ineffective for failing to present evidence that, when the trial court permitted

the victim to take a break in her testimony to speak with her mother, two

witnesses allegedly overheard the victim’s mother (in the courtroom hallway)




5
  Garcia fails to specify precisely which jury instruction would have been
appropriate for his trial counsel to request in order to inform the jury that
Midina, an adverse witness, was biased against Garcia.


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“coaching” the victim to testify falsely (hereinafter, “the purported coaching

evidence”). Brief for Appellant at 8-9.

      This claim does not entitle Garcia to relief. Garcia cites to no evidence

to substantiate his bald assertion that he had informed trial counsel of the

purported coaching evidence.      See Commonwealth v. Solano, 129 A.3d

1156, 1166 (Pa. 2015) (stating that, in order to prevail on a claim that trial

counsel was ineffective for failing to call a witness, a PCRA petitioner must

establish, inter alia, that counsel knew or should have known of the existence

of   the   witness   and   his   or   her   proposed   testimony);   see   also

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002) (undeveloped

claims of ineffectiveness do not entitle a petitioner to relief). In any event,

Garcia has failed to meet his burden of establishing that the absence of the

purported coaching evidence was so prejudicial that it denied him a fair trial,

see Solano, 129 A.3d at 1166, particularly where the Commonwealth

provided other evidence that corroborated the victim’s allegation that she was

sexually assaulted.6 Thus, Garcia’s claim is without merit.

      In his issue numbered 14, Garcia avers that trial counsel was ineffective

for failing to cross-examine Commonwealth witness Detective William Kase




6
  Additionally, the PCRA court correctly observed in its Rule 907 Notice that
“[t]he record also demonstrates that the trial court took care, while allowing
the [victim] to step down briefly from the stand, to instruct her not to discuss
the case with anyone during the break, even reiterating that she could talk to
her mother about ‘anything else[,] but not about the case.’             (N.T.[,]
10/16/12[,] at p. 26).” Rule 907 Notice, 11/30/16, at 6.


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(“Detective Kase”)7 at the Motion in Limine hearing, wherein Detective Kase

allegedly testified falsely. Brief for Appellant at 9. We disagree.

      Garcia does not offer any evidence to establish (1) how trial counsel’s

failure to cross-examine Detective Kase at the pretrial hearing caused Garcia

prejudice; or (2) Garcia’s bald claim that Detective Kase’s testimony was

false. Accordingly, Garcia failed to establish that trial counsel was ineffective

in this regard. See Spotz, supra; Jones, supra.8

      In his issue numbered 15, Garcia contends that trial counsel was

ineffective for failing to object to a medical opinion offered at trial by

Commonwealth witness William Sotack, M.D. (“Dr. Sotack”), an emergency

room physician who had performed an examination of the victim on the day

of the sexual assault. Brief for Appellant at 9-10. According to Garcia, this

“opinion” (which Garcia fails to identify) was based on hearsay statements

that the victim made to Dr. Sotack, rather than Dr. Sotack’s own observations

during his examination. Id.

      Garcia’s claim is belied by the record.    Though Dr. Sotack recounted

that the victim had informed him that Garcia had “rubbed her genital area



7
  Detective Kase had observed an employee of Berks County Children and
Youth Services (“CYS”) interview the victim (hereinafter, “the CYS
interview”), via closed circuit television. In the CYS interview, the victim
described the sexual assault by Garcia.
8
   Moreover, trial counsel cross-examined Detective Kase at trial, and
attempted to undermine the allegations made by the victim at the CYS
interview by pointing out that this interview occurred four days after the
alleged sexual assault. N.T., 1/16-17/13, at 78-79.


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with his fingers[,]” N.T., 1/16-17/13, at 63, Dr. Sotack also testified that he

had personally observed “swelling and redness” in the area of the victim’s

vulva. Id. at 64. Moreover, Garcia’s trial counsel vigorously cross-examined

Dr. Sotack, and elicited from Dr. Sotack concessions that (1) he could not

determine whether the victim’s genitals had been penetrated; and (2) his

recollection of his examination of the victim was based wholly on his medical

notes, not his independent memory. Id. at 65-66. Accordingly, trial counsel

was not ineffective for failing to object to Dr. Sotack’s testimony. See Spotz,

supra; Commonwealth v. Weiss, 606 A.2d 439, 441 (Pa. 1992) (stating

that “[c]ounsel cannot be found ineffective for failing to pursue a baseless or

meritless claim.”).

      In his issue numbered 17, Garcia argues that trial counsel was

ineffective for failing to retain an expert medical doctor to review the victim’s

medical records, so that this expert could purportedly offer an opinion that

other factors might have caused the redness and swelling of the victim’s

vulva after the alleged assault.    Brief for Appellant at 10-11; see also id.

(asserting that the swelling could have also been caused by a viral illness or

the victim’s having soiled herself on the date in question).

      In its Rule 907 Notice, the PCRA court determined that Garcia failed to

properly preserve this issue, stating as follows:

      [Garcia] failed to attach to his [PCRA] Petition a certification of
      any expert witnesses.        “Where a petitioner requests an
      evidentiary hearing, the petition shall include a signed
      certification as to each intended witness stating the witness’s



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         name, address, date of birth and substance of testimony and
         shall include any documents material to that witness’s
         testimony. Failure to substantially comply with the requirements
         of this paragraph shall render the proposed witness’s testimony
         inadmissible.”    42 Pa.C.S.A. § 9545(d)(1).          As [Garcia]
         requested for his relief an evidentiary hearing, [his] failure to
         comply with this section renders this claim meritless.

Rule 907 Notice, 11/30/16, at 6-7. We agree with the PCRA court’s reasoning

and determination, and affirm on this basis as to this issue. See id.

         In his final issue, Garcia alleges that PCRA counsel was ineffective for

filing (1) a “late” Response to the Rule 907 Notice, i.e., after the PCRA court’s

issuance of the Order dismissing Garcia’s PCRA Petition; and (2) an Amended

PCRA Petition that did not justify an evidentiary hearing. Brief for Appellant

at 11.

         It is well established that “claims of PCRA counsel’s ineffectiveness may

not be raised for the first time on appeal.” Commonwealth v. Henkel, 90

A.3d 16, 20 (Pa. Super. 2014) (en banc) (collecting cases); Commonwealth

v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012) (stating that “issues of PCRA

counsel effectiveness must be raised in a serial PCRA petition or in response

to a notice of dismissal before the PCRA court.”).

         In the instant case, Garcia never raised his instant claim of PCRA

counsel’s ineffectiveness prior to the dismissal of his PCRA Petition and his

filing of a Notice of Appeal and Rule 1925(b) Concise Statement.             Thus,

because Garcia raised this claim for the first time on appeal, we may not now

address it. See Henkel, supra; Ford, supra; see also Pa.R.A.P. 302(a).




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     Accordingly, as none of Garcia’s claims entitle him to collateral relief,

the PCRA court properly dismissed his PCRA Petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2017




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