J-S42003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL FUENTES

                            Appellant                 No. 983 WDA 2013


                   Appeal from the PCRA Order May 13, 2013
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0004167-2005


BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 29, 2014

        Appellant, Michael Fuentes, appeals pro se from the order entered May

13, 2013, by the Honorable Jeffrey A. Manning, Court of Common Pleas of

Allegheny County, which denied Fuentes’s petition filed pursuant to the Post

Conviction Relief Act.1 We affirm.

        On direct appeal, a panel of this Court previously recounted the history

of this case as follows.

              On the evening of February 18, 2005, Ronald Fehl and his
        fiancée, Shannon O’Kelley, were having an anniversary party.
        N.T., 7/25/07 at 57-61. The couple was there with Mr. Fehl’s
        cousin, Clifford Crotteau; their friend, Amanda Hippensteel; Mr.
        Fehl’s co-worker, Andrew Loeffler; and Ms. O’Kelley’s infant
        daughter. Id. at 58, 90, 104-105. While Mr. Fehl left for a brief
        period, two men pushed their way into the house; and one of the
        men, brandishing a gun, demanded the victims empty their
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1
    42 PA.CONS.STAT.ANN. §§ 9541-9546.
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     pockets and lie down on the carpet. Id. at 61. The men
     proceeded to remove items from the home to ransack it. Id. at
     63, 73. Mr. Fehl eventually returned and was shot in the
     stomach by one of the intruders. N.T. 7/26/07 at 8. Both
     intruders eventually fled the residence. Id. at 11.

           A short time after the incident, [Fuentes], who matched
     the description of the gunman, was apprehended while running
     down the street. Id. at 33-37. He was transported to the police
     station, and ultimately the robbery victims, Ms. O’Kelley, Ms.
     Hippensteel, and Mr. Loeffler, were taken to that same police
     station for more questioning. Id. at 47, 56. Mr. Fehl, the
     shooting victim, was taken to the hospital for treatment. Id. at
     46.

            At some point, according to Detective Scott Scherer, the
     victims saw [Fuentes], through the police station window, being
     processed. Id. at 58. During this encounter, none of the
     victims could positively identify [Fuentes]. Later that evening, a
     photo array was shown to the other victim, Mr. Fehl, and he
     positively identified [Fuentes] as the shooter. Id. at 63-66.

            On July 17, 2007, defense counsel filed a motion to
     suppress the in-court identification based on the three witnesses
     who were not able to identify [Fuentes] at the police station as
     the perpetrator and based on a claim that the photo array shown
     to the fourth victim was unduly suggestive. The trial court
     denied the motion at the start of trial on July 25, 2007.
     Appellant was found guilty of [robbery, 18 Pa.C.S. § 3701(a)(1),
     aggravated assault, 18 Pa.C.S. § 2702(a)(1), burglary, 18
     Pa.C.S. § 3502(a), violation of the uniform firearms act-firearm
     not to be carried without a license, 18 Pa.C.S. § 6106, and
     conspiracy, 18 Pa.C.S. § 903], and on October 29, 2007, the
     trial court sentenced [Fuentes] to an aggregate term of 180 to
     360 month’s imprisonment.

Commonwealth v. Fuentes, 2107 WDA 2007 at 2-3 (Pa. Super., filed June

23, 2009) (mem. op.). On appeal, this Court affirmed Fuentes’s judgment

of sentence and the Pennsylvania Supreme Court denied allocatur on

December 1, 2009. See id.; Commonwealth v. Fuentes, 985 A.2d 218

(Pa. 2009) (Table).


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       On September 1, 2010, Fuentes filed a pro se PCRA petition. Counsel

was subsequently appointed and directed to file an amended PCRA petition.

On March 12, 2013, appointed counsel instead filed a Turner/Finley no

merit letter and requested to withdraw. After reviewing the record and the

no-merit letter, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent

to dismiss. Fuentes filed a response to the PCRA court’s notice on March 27,

2013. The court entered a final order and allowed counsel to withdraw on

May 13, 2013. This timely pro se appeal followed.

       On appeal, Fuentes raises a staggering 22 allegations2 of ineffective

assistance of counsel. See Appellant’s Brief, at 4-7.

       We review the lower court’s denial of a PCRA petition as follows. “On

appeal from the denial of PCRA relief, our standard and scope of review is

limited to determining whether the PCRA court’s findings are supported by

the record and without legal error.” Commonwealth v. Edmiston, 65 A.3d

____________________________________________


2
  “While criminal defendants often believe that the best way to pursue their
appeals is by raising the greatest number of issues, actually, the opposite is
true: selecting the few most important issues succinctly stated presents the
greatest likelihood of success.” Commonwealth v. Robinson, 864 A.2d
460, 480 n.28 (Pa. 2004) (citation omitted; emphasis added). This is
because “[l]egal contentions, like the currency, depreciate through over
issue.” Id. (quoting Robert H. Jackson, “Advocacy Before the United States
Supreme Court,” 25 Temple L.Q. 115, 119 (1951)); see also, Ruggero J.
Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,” 129 (2d
ed. 2003) (“When I read an appellant’s brief that contains more than six
points, a presumption arises that there is no merit to any of them.”)
(emphasis in original).




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339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v.

Pennsylvania, 134 S. Ct. 639 (2013). “[Our] 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   PCRA   court   level.”

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 PA.CONS.STAT.ANN.

§ 9543(a)(2). These issues must be neither previously litigated nor waived.

See 42 PA.CONS.STAT.ANN. § 9543(a)(3).          “[T]his Court applies a de novo

standard of review to the PCRA court’s legal conclusions.” Commonwealth

v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

       To determine whether the PCRA court erred in dismissing Fuentes’s

claims of ineffectiveness of counsel, we turn to the following principles of

law.

       In order for Appellant to prevail on a claim of ineffective
       assistance of counsel, he must show, by a preponderance of the
       evidence, 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 … Appellant must
       demonstrate: (1) the underlying claim is of arguable merit; (2)
       that counsel had no reasonable strategic basis for his or her
       action or inaction; and (3) but for the errors and omissions of
       counsel, there is a reasonable probability that the outcome of
       the proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005).


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      Moreover, “[w]e presume counsel is effective and place upon Appellant

the burden of proving otherwise.” Commonwealth v. Springer, 961 A.2d

1262, 1267-1268 (Pa. Super. 2008).          “This Court will grant relief only if

Appellant satisfies each of the three prongs necessary to prove counsel

ineffective.” Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007).

Thus, we may deny any ineffectiveness claim if “the evidence fails to meet a

single one of these prongs.” Id., at 321.

      Our review of Fuentes’s brief reveals that several of the 22 issues are

waived or abandoned on appeal. We will address these claims seriatim.

      Fuentes first argues that all prior counsel were ineffective for failing to

request the preliminary hearing transcripts.         The primary flaw of this

argument is Fuentes’s failure to support his claim with any evidence proving

that counsel did indeed fail to request the preliminary hearing transcripts.

Even if we were to assume prior counsel did not request the preliminary

hearing transcript as Fuentes claims, Fuentes fails to state with specificity

the manner in which he was prejudiced by this omission. Although Fuentes

alludes to “conflicting and inconsistent statements that took place during

trial,” Appellant’s Brief at 10, he does not cite a single inconsistent or

conflicting statement supporting his claim. As Fuentes has failed to provide

this Court with any specific instances of conflicting testimony or evidence,

we cannot establish whether Fuentes suffered any prejudice. Therefore, this

claim fails.


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       The next two issues Fuentes raises on appeal concern the alleged

failure of all prior counsel to adequately contest the allegedly suggestive

photo array at the police station.3 Trial counsel filed a motion to suppress

the photo array identifications, and the trial court rejected that motion after

argument prior to trial. See N.T., Jury Trial Vol. I, 7/25/07 at 3-24. The

fact that counsel’s arguments were ultimately deemed by the trial court to

be unavailing does not render counsel’s performance deficient.       Moreover,

the record reflects that counsel cogently argued the claims Fuentes now

raises on appeal regarding suppression of the police station identifications

before the trial court.      Accordingly, we do not find counsel to have been

ineffective in this regard.

       Fuentes next claims that all prior counsel were ineffective in failing to

object to witness Cliff Crotteau’s in-court identification of Fuentes. Fuentes

argues that the in-court identification lacked an independent basis and was

therefore unreliable.      Although Fuentes provides no legal support for his

claim, we nonetheless find this argument to be unavailing. “An independent

basis is established when ‘the in-court identification resulted from the

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3
  To the extent that Fuentes argues counsel was ineffective for failing to
adequately contest the in-person “show up” identification at the police
station, this argument is meritless. As previously noted, the victims were
unable to identify appellant when they saw him at the police station.
Therefore, no identification took place and suppression was not warranted.
The only positive identification of note occurred when the victim, Richard
Fehl, identified Fuentes through a photo array.



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criminal     act   and   not   the   suggestive   [identification   procedure].’”

Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super. 2011) (citation

omitted).

      Here, Fuentes points to no evidence to suggest that Crotteau’s in-court

identification was the result of suggestive police techniques, such that an

independent basis for the identification was necessary. Moreover, Crotteau

testified that he recognized Fuentes as the gunman from the burglary

because “he was in my face.” N.T., Trial Vol. I, 7/5/07 at 116. As the in-

court identification had a sufficient independent basis, counsel had no basis

to object or otherwise challenge the identification. This claim fails.

      In his fifth claim on appeal, Fuentes argues trial counsel was

ineffective for failing to request a jury instruction regarding Ronald Fehl’s

alleged consumption of drugs on the night the burglary occurred and the

possible effect drug use can have on the witness’s ability to accurately recall

events.     Fuentes further argues that counsel was ineffective for failing to

acquire and review the victim’s medical reports, which indicated the victim

admitted to hospital staff that he used marijuana and alcohol on the night in

question.

      Initially, we note that the record belies Fuentes’s claim that trial

counsel did not review the victim’s medical records. At trial, defense counsel

questioned the victim on his use of drugs and alcohol on the evening of the

burglary, and confronted the victim with the results of the medical records


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from the Allegheny General Hospital. See N.T., Jury Trial Vol. II, 7/26/07 at

20-21. The victim admitted that he imbibed alcohol and that drugs were in

his system, but despite best counsel’s efforts to strongly suggest otherwise,

the victim steadfastly denied that he was high on that evening. See id. at

21.

      It is well-established that “the trier of fact while passing upon the

credibility of witnesses and the weight of the evidence produced is free to

believe all, part or none of the evidence.” Commonwealth v. Slocum, 86

A.3d 272, 276 (Pa. Super. 2014) (citation omitted). It is uncontested that

the trial court instructed the jury on their duty regarding the credibility of

witnesses in general.   Under the circumstances, we find that the jury was

sufficiently apprised of their duty to weigh the credibility of a witness when

confronted with conflicting evidence such that a special instruction was not

warranted. Fuentes suffered no prejudice by counsel’s failure to request a

more specific jury instruction in this regard.

      In his sixth claim Fuentes argues that trial counsel was ineffective for

failing to challenge the Commonwealth’s motion in limine to preclude

evidence that the victim, Ronald Fehl, possessed a scale allegedly used for

weighing drugs. Generally, only relevant evidence is admissible, that is, “if

it logically tends to establish a material fact in the case, tends to make a fact

at issue more or less probable or supports a reasonable inference or

presumption regarding a material fact.”          Commonwealth v. Kinard, 95


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A.3d 279, 284 (Pa. Super. 2014) (citation omitted). Here, Fuentes advances

no argument as to the relevance of the scale to this case and provides no

other admissible grounds for the introduction of the evidence. As there is no

merit to the underlying claim on which counsel’s ineffectiveness is

predicated, this argument fails.

      Fuentes next claims that counsel failed to file or otherwise pursue

various pre-trial motions on Fuentes’s behalf. Fuentes provide no basis to

support his claim; rather, it appears this issue is another attempt to argue

that trial counsel did not adequately seek to exclude the photo array

identification. As we have already determined that counsel’s representation

was not deficient in this regard, we need not address this claim further.

      Fuentes fails to provide any argument for the eighth issue he raises on

appeal, regarding counsel’s alleged failure to obtain the victim’s medical

records. Accordingly, we find Fuentes has abandoned this claim on appeal.

We additionally note that we have already determined that the record belies

this claim. See N.T., Jury Trial Vol. II, 7/26/07 at 20-21.

      Fuentes next argues that all prior counsel were ineffective for failing to

seek suppression of the show up and photo array identification at the police

station because counsel was not present. “In Pennsylvania, a defendant has

a   constitutional   right   to   have   counsel   present   during   identification

procedures.”    Commonwealth v. Kearney, 92 A.3d 51, 67 (Pa. Super.

2014) (citation omitted). “However, this right is triggered by the arrest of


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the accused.” Id. (citing Commonwealth v. DeHart, A.2d 656, 665 (Pa.

1986)   (“To   extend     the   Sixth   Amendment    right   to   counsel   during

photographic identification proceedings to any person merely suspected of a

crime would be an unreasonable burden on law enforcement officials and on

the taxpayer, who in many instances must ultimately underwrite the cost of

such representation.”).

      Here, Fuentes fails to establish that he was formally arrested prior to

the police station show up, and not, as the Commonwealth contends, merely

detained for investigation. At this point, Fuentes was not charged with any

crime and no indictment had been filed.           “Appellant is not entitled to

constitutional relief based on mere unsupported speculation.” Kearney, 92

A.3d at 67 (citing Commonwealth v. McCoy, 975 A.2d 586, 590 (Pa.

2009) (holding right to counsel attaches at initiation of adversary judicial

proceedings, generally at arraignment)).         Moreover, as was done here,

allegedly suggestive identification procedures may be challenged through the

vehicle of a motion to suppress the evidence. Fuentes’s argument that all

prior counsel were ineffective for failing to raise this claim must therefore be

rejected.

      The tenth claim Fuentes raises on appeal pertains to trial counsel’s

failure to object to the allegedly perjured trial testimony of Detective Scott

Scherer, regarding the number and location of the tattoos Fuentes had on

the night of the crime. From what we can gather from Fuentes’s rambling


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argument, Fuentes claims that he did have tattoos on his hands on the night

the burglary occurred, but that Detective Scherer did not note tattoos on the

perpetrator’s hands in his police report.    When questioned regarding the

tattoos Fuentes had on his hands at the time of trial, Detective Scherer

testified that “[t]hose would have been most noticeable and those would

have been documented [in his report].” N.T., Jury Trial Vol. II, 7/26/07 at

126. Notably, Detective Scherer did not emphatically state that he did note

hand tattoos in his report. Simply put, we find no evidence that Detective

Scherer testified falsely, and therefor can discern no basis on which trial

counsel could have objected to this testimony.

      Fuentes next argues trial counsel was ineffective for failing to question

a juror who admitted she was acquainted with Officer Erica Miller following

her testimony at trial.    After Officer Miller’s testimony, juror number 7

indicated to the court that she realized that she went to high school with

Officer Miller’s brother and that, as a result, her ability to be impartial was

compromised. See N.T., Jury Trial Vol. II, 7/26/07 at 96-97. Thereafter,

juror number 7 was excused by the court and an alternate was appointed.

See id. at 99.     The trial court quickly remedied the situation. Fuentes

suffered no prejudice—trial counsel had no reason to question the juror after

her dismissal. This claim fails.

      Insofar as Fuentes provides no argument in support of issue number

12, we find that he has abandoned this claim.


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      In issue number 13, Fuentes alleges that trial counsel was ineffective

for failing to seek the trial court’s recusal or other remedies for perceived

trial court bias.   Other than mere conjecture, Fuentes provides no concrete

support or citations to the record to support his claim of trial court

impartiality or prejudice. He fails to provide any support for his bald claim

that the trial court’s actions in some way deprived Fuentes of a fair trial.

“[I]t is axiomatic that [trial] counsel will not be considered ineffective for

failing to pursue meritless claims.” Commonwealth v. Charleston, 94 A.3d

1012, 1024 (Pa. Super. 2014) (citation omitted). Accordingly, this claim is

without merit.

      Fuentes next argues that trial counsel was ineffective for failing to file

post-sentence motions. Fuentes fails to cite any pertinent legal authority in

support of his claim in violation of Pa.R.A.P. 2119(b).     Moreover, Fuentes

notably fails to argue that any post-sentence motion would have been of

merit. Fuentes fails to establish that he was prejudiced by counsel’s failure

to file such motions.    See Commonwealth v. Reaves, 923 A.2d 1119,

1132 (Pa. 2007) (defendant alleging ineffective assistance of counsel for

failure to file post-sentence motions is not relieved of the burden of

establishing prejudice). Accordingly, this claim fails.

      In issue number 15, Fuentes argues that pre-trial counsel was

ineffective for failing to communicate a plea offer. Fuentes provides no

support for his self-serving claim that a plea deal was offered by the


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Commonwealth prior to trial, and we find no evidence in the certified record

that a deal was ever offered.     Counsel cannot be deemed ineffective for

failing to communicate a plea deal where none existed.        This argument is

meritless.

      In his next claim, Fuentes argues that trial counsel was ineffective for

instructing him to retake the stand on redirect in order to testify that he had

been incarcerated since his arrest.     Fuentes argues that “[t]o purposely

place Fuentes on the stand to admit that he had been locked up for two and

a half years on these charges was very prejudicial.” Appellant’s Brief at 43.

The record reveals that trial counsel did elicit testimony from Fuentes that

he had been incarcerated in Allegheny County Jail since he was arrested on

February 18, 2005. See N.T., Jury Trial Vol. II, 7/26/07 at 115-116. He

also questioned whether inmates had access to tattoo equipment in prison,

to which Fuentes responded, “No, sir.” Id. at 116. Counsel’s questioning

clearly aimed to relay to the jury that Fuentes had the hand tattoos at the

time the burglary took place and thus impeach police and the victims who

did not note hand tattoos on the perpetrator of the burglary.       As counsel

clearly had a strategic basis for eliciting this testimony from Fuentes on

redirect, Fuentes’s claim of ineffective assistance of counsel in this regard is

meritless.

      Insofar as Fuentes provides no argument in support of issue number

17, we find that he has abandoned this claim.


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      Fuentes argues in issue 18 that all prior counsel were ineffective for

failing to contest the in-court identification by witnesses Amanda Hippensteel

and Shannon O’Kelley.     Fuentes argues that the witnesses’ identifications

were tainted by the suggested police station show up. This claim is belied

by the record. Both Hippensteel and O’Kelley testified that they were unable

to see Fuentes clearly at the police station and thus were unable to identify

him at that time. Shannon O’Kelley testified that from her vantage point at

the station, the appellant’s back was facing her and she was unable to

identify him.   See N.T., Jury Trial Vol. I, 7/25/07 at 76-77.         Amanda

Hippensteel similarly testified that she was unable to identify the appellant

at the police station given her vantage point. See id. at 95-97.

      As no identification occurred at the police station, we fail to see in

what manner the witnesses’ in-court identifications were compromised.

More importantly, both witnesses testified that they were able to identify

Fuentes based upon their clear observations of Fuentes as the perpetrator of

the burglary. Thus, we find a sufficient independent basis existed for the in-

court identifications. See Davis, 17 A.3d at 394 (“An independent basis is

established when ‘the in-court identification resulted from the criminal act

and not the suggestive [identification procedure].’” ). As this claim is without

merit, counsel cannot be deemed ineffective for failing to contest the

identifications on this ground.




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      Fuentes next claims that trial counsel was ineffective for failing to

object to allegedly misleading remarks made by the Commonwealth during

closing.   The citations to the transcript Fuentes provides in his appellate

brief, however, do not correspond to the closing arguments made at trial.

Given that Fuentes has failed to provide accurate record citations to the

prosecutor’s allegedly improper remarks, we are unable to analyze Fuentes

claims. Accordingly, this claim is waived.           See Commonwealth v.

Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (“We shall not develop an

argument for [the appellant], nor shall we scour the record to find evidence

to support an argument; consequently, we deem this issue waived.”).

      Fuentes next argues that trial counsel was ineffective and generally

unprepared for trial. In advancing this argument, Fuentes relies generally

upon the myriad allegations of ineffective assistance of counsel detailed in

his brief. As we find all 22 of these claims to be without merit, this general

claim, too, must fail.

      Insofar as Fuentes provides no argument in support of issue number

21, we find that he has abandoned this claim on appeal. As the argument

advanced in support of issue number 22 merely rehashes, ad nauseam,

Fuentes’s many qualms with the so-called police “show up” and photo array

identifications, we will not address this further.

      In sum, none of Fuentes’s 22 claims of ineffective assistance of trial

counsel merit relief.


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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2014




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