J-S05029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LUIS MANUEL MARTINEZ,

                            Appellant                No. 799 MDA 2015


                   Appeal from the PCRA Order April 16, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005489-2010


BEFORE: BENDER, P.J.E., SHOGAN, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 07, 2016

       Appellant, Luis Manuel Martinez, appeals from the April 16, 2015 order

denying his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

       The relevant facts of this case were set forth by the PCRA Court as

follows:

             [Appellant] was charged on Docket number 5489-2010
       with two counts of Rape of Child,2 three counts of Involuntary
       Deviate Sexual Intercourse with a Child,3 four counts of Indecent
       Assault of a Person Less that Thirteen,4 one count of Aggravated
       Indecent Assault;5 one count of Corruption of Minors,6 and one
       count of Terroristic Threats.7 The charges stemmed from sexual
       assault allegations made by [Appellant’s] niece and nephew for
       conduct by [Appellant] between October 1, 2005 and October
       31, 2008. A trial was held on July 18, 2012. At trial,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     [Appellant’s] nephew, M.M., testified that [Appellant] put his
     penis in his mouth, penetrated M.M.’s anus with [Appellant’s]
     penis, and [Appellant] used his hands to touch M.M.’s penis.
     (N.T. Trial, 7/18/12, p. 40-48). [Appellant’s] niece, A.M.,
     testified that [Appellant] put his penis in her mouth, licked her
     vagina, licked her breasts, and raped her. (N.T. Trial, 7/18/12,
     98-106). After this conduct became known, [Appellant]
     threatened to kill M.M. and A.M. while holding a knife. (N.T.
     Trial, 7/18/12, 57, 115). Additionally, at trial, Detective
     Christopher DePatto testified that during his interview of
     [Appellant], [Appellant] denied committing the alleged acts, and,
     in response, Detective DePatto testified that he told [Appellant]
     he believed [Appellant] did commit the acts and discussed with
     him whether [Appellant] needed to make amends by admitting
     to the acts. (N.T. Trial, 7/19/12, 63, 65).
           2
               18   Pa.C.S.   §3121(c).
           3
               18   Pa.C.S.   §3123(b).
           4
               18   Pa.C.S.   §3126(a)(7).
           5
               18   Pa.C.S.   §3125(b).
           6
               18   Pa.C.S.   §6301(a)(1).
           7
               18   Pa.C.S.   §2706(a)(1).

            On July 20, 2012, after a three day trial, a jury convicted
     [Appellant] on all counts. On December 17, 2012, [Appellant]
     was sentenced to an aggregate sentence of twenty (20) to forty
     (40) years of incarceration, followed by a consecutive period of
     five (5) years of probation. [Appellant] was also found to be a
     sexually violent predator. On January 16, 2013, [Appellant] filed
     a Notice of Appeal to the Superior Court of Pennsylvania.
     Subsequently, counsel filed an Anders8 brief and, on September
     27, 2013, the Superior Court affirmed [Appellant’s] judgment of
     sentence and granted counsel’s petition to withdraw. [Appellant]
     filed a counseled PCRA petition on October 14, 2014, alleging
     ineffective assistance of counsel on the basis that trial counsel
     was ineffective for failing to present character testimony and for
     failing to object after the detective commented that he believed
     [Appellant] to be guilty.
           8
               Anders v. California, 386 U.S. 738 (1967).

PCRA Court Opinion, 4/16/15, at 1-2.




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       The PCRA court held a hearing on Appellant’s petition, and in an order

filed on April 16, 2015, the PCRA court denied Appellant’s petition.        This

appeal followed.      Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

       On appeal, Appellant raises two issues for this Court’s consideration:

       1. Did the PCRA court err when it found that trial counsel did not
       provide ineffective assistance of counsel because counsel failed
       to introduce character evidence at Appellant’s trial?

       2. Did the PCRA court err when it found that trial counsel did not
       provide ineffective assistance of counsel when counsel failed to
       act to protect Appellant when detective DePatto twice improperly
       expressed his personal belief to the jury that Appellant was
       guilty.

Appellant’s Brief at 1-2 (full capitalization omitted).1

       When reviewing the propriety of an order granting or denying PCRA

relief, this Court is limited to determining whether the evidence of record

supports the conclusions of the PCRA court and whether the ruling is free of

legal error.   Commonwealth v. Perez, 103 A.3d 344 (Pa. Super. 2014).

We grant great deference to the PCRA court’s findings that are supported in

the record, Commonwealth v. Rachak, 62 A.3d 389 (Pa. Super. 2012),

and will not disturb them unless they have no support in the certified record.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014), appeal

denied, 95 A.3d 277 (Pa. 2014).
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1
  We grant Appellant’s application for relief relating to the addition of page
twelve to his timely-file appellate brief.



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      In both issues on appeal, Appellant claims that he received ineffective

assistance of counsel at trial. A PCRA petitioner alleging ineffectiveness of

counsel will be granted relief only if he is able to prove that, “in the

circumstances of [his] particular case,” the truth-determining process was

undermined to the extent “that no reliable adjudication of guilt or innocence

could have taken place.”   42 Pa.C.S. § 9543(a)(2)(ii).    The law presumes

that counsel was effective, and it is the petitioner’s burden to prove the

contrary.   Perez, 103 A.3d at 348.     To prevail on a claim of ineffective

assistance of counsel, a PCRA petitioner must plead and prove by a

preponderance of the evidence that: (1) the underlying legal claim has

arguable merit; (2) counsel had no reasonable basis for acting or failing to

act; and (3) the petitioner suffered prejudice.         Commonwealth v.

Baumhammers, 92 A.3d 708, 719 (Pa. 2014) (citing Commonwealth v.

Pierce, 527 A.2d 973, 975-976 (Pa. 1987)).       A petitioner must prove all

three factors of the Pierce test or the claim fails.      Commonwealth v.

Busanet, 54 A.3d 35, 45 (Pa. 2012). In addition, on appeal, a petitioner

must adequately discuss all three factors of the Pierce test, or the appellate

court will reject the claim.   Commonwealth v. Reyes-Rodriguez, 111

A.3d 775, 780 (Pa. Super. 2015) (citing Commonwealth v. Fears, 86 A.3d

795, 804 (Pa. 2014)). Moreover:

      to satisfy the prejudice prong, it must be demonstrated that,
      absent counsel’s conduct, there is a reasonable probability that
      the outcome of the proceedings would have been different.
      Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa.

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       Super. 2014). If it has not been demonstrated that counsel’s act
       or omission adversely affected the outcome of the proceedings,
       the claim may be dismissed on that basis alone, and the court
       need not first decide whether the first and second prongs have
       been met.

Perez, 103 A.3d at 348.

       Appellant first contends that trial counsel was ineffective for failing to

call   witnesses   to   introduce   evidence   of   Appellant’s   good   character.

Appellant’s Brief at 6-7. We disagree.

       “Where an appellant claims that counsel was ineffective for failing to

call a particular witness, we require proof of that witness’s availability to

testify, as well an adequate assertion that the substance of the purported

testimony would make a difference in the case.”              Commonwealth v.

Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (citation omitted). In order

to establish such claims, the appellant must show:

       (1) that the witness existed; (2) that the witness was available;
       (3) that counsel was informed of the existence of the witness or
       should have known of the witness’s existence; (4) that the
       witness was prepared to cooperate and would have testified on
       appellant’s behalf; and (5) that the absence of the testimony
       prejudiced appellant.

Id. at 868.

       The PCRA court addressed this issue as follows:

             In the instant case, it is undisputed that these witnesses
       existed, counsel knew about the existence of the witnesses, and
       that the witnesses were willing to testify for the defense. There
       was no testimony at the PCRA hearing indicating whether the
       witnesses would have actually been available at the time of trial.
       [Appellant] fails to show, however, that the absence of the
       testimony of the witnesses was so prejudicial as to have denied

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      him a fair trial. Furthermore, [Appellant] fails to show trial
      counsel lacked a reasonable basis for not calling these witnesses.
      [Appellant’s] mother, father, and sister were all called at trial
      and could have been questioned on [Appellant’s] reputation for
      being a law abiding citizen. Trial counsel testified that he
      believed there was a strong defense based on the inconsistent
      statements from the victim, the lack of physical evidence,
      testimony from other witnesses that they never saw anything
      happen between [Appellant] and the victims even though they
      were present, and the fact that the victims could not identify a
      quarter size mole on [Appellant’s] genitalia. (N.T. PCRA,
      1/16/15, pp. 7-8). Trial counsel wanted the jury to focus on
      those issues, rather than “muddy the waters with having
      character witnesses saying [Appellant] has a good reputation,
      having the other side coming at not having a good reputation.”
      (Id. at 8). Trial counsel put on the stand three witnesses who
      could have testified that [Appellant] was law abiding, but
      specifically chose not to for the above reasons; therefore, trial
      counsel will not be found ineffective for failing to call character
      witnesses because he had a reasonable trial strategy.

PCRA Court Opinion, 4/16/15, at 6.

      We agree with the PCRA court’s conclusion that counsel had a

reasonable trial strategy and rationale for not delving into character

evidence.   As trial counsel testified to a reasonable basis for not calling

character witnesses, he cannot be found to be ineffective. Commonwealth

v. Reed, 42 A.3d 314, 324 (Pa. Super. 2012), appeal denied, 114 A.3d 416

(Pa. 2015) (“If a reasonable basis exists for the particular course, the inquiry

ends and counsel’s performance is deemed constitutionally effective.”).

Thus, we reject Appellant’s claim of error.

      Next, Appellant argues that trial counsel was ineffective for failing to

object when Christopher DePatto, the detective who questioned Appellant

about the sexual abuse, allegedly expressed his personal belief to the jury

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that Appellant was guilty.    Appellant’s Brief at 12-13.   We conclude that

there is no merit to this claim.

      The challenged portion of the detective’s testimony is reproduced

below:

      [Assistant District Attorney] Q. When you talked to [Appellant]
      about the incidents involving [M.M.] and [A.M.], what was his
      response?

      [Detective DePatto] A. His responses were that he didn’t do it.
      And I confronted him with the fact that I believed he did. And I
      went on to talk about curiosity with what he had told me earlier
      with some limited sexual history, he had curiosity about certain
      sexual acts. And although he said no, he was looking down, but
      nodding his head up and down like this.

      Q. You talked about - - in terms of curiosity, can you explain
      more specifically what was it that he was nodding his head up
      and down to?

      A. During the earlier part of the interview [Appellant] had stated
      that he had never had oral sex, he had never had anal sex. So
      my curiosity questions were in the reference of what it felt like,
      what it did to him and things of that nature.

      Q. And, so, was it more of the nature of were you curious about
      it?

      A. Exactly. Were you curious as to how it felt or how it made
      you feel and just the acts themselves.

      Q. So in response to that, so it is clear for the jury, again, what
      was his response both physical and verbal?

      A. When I would say, so, basically you were curious about these
      types of acts? He would verbally say, no, but looking down, his
      head would be nodding up and down as to indicate yes.

      Q. Were there any other comments that he made to you of
      note?


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J-S05029-16


      A. The only comment that was made during that interview - -

            [Appellant’s Trial   Counsel]   Mr.   Renteria:    May   we
            approach, briefly?

            THE COURT: Okay.

            (A side-bar discussion was held off the record.)

            (Following a side-bar discussion:)

            THE COURT:        Ladies and gentlemen, relative to the
            Detective’s testimony, he indicated this nodding, and he
            used the phrase, as to indicate a yes. I am striking from
            the record, as to indicate a yes. The response verbally and
            physically is for the jury to determine such an issue and
            not for the Detective. So that phrase, as to indicate a yes,
            shall be stricken from the record and not be used for
            anything you use in your deliberations in this case.

      [Assistant District Attorney] Q. Was there a point in time when
      you, again, pressed him to give any sort of details or explanation
      as to what happened?

      A. Yes ma’am. I made mention, when he came in the room,
      only two people had really known if he had done this or not,
      truly. And I made reference to himself and God, because he had
      talked about his family and church background and upbringing.
      I said, well, you know - - I went on to say, further, that if you
      know you need to make amends for what you did. And he
      responded with, I can’t say it.

      Q. What time did your interview with [Appellant] end?

      A. I would say maybe around 1:00, maybe a little later.

      [Assistant District Attorney]: Nothing further.

N.T., Trial, 7/19/12, at 63-65 (original bold type omitted).

      Appellant cites to Commonwealth v. Rizzutto, 777 A.2d 1069 (Pa.

2001), as support for his positon that Detective DePatto was a fact witness,


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and therefore, he was precluded from offering an opinion on Appellant’s

guilt. Appellant’s Brief at 13. In Rizzutto, our Supreme Court explained as

follows:

      [Defendant] raises an additional allegation of counsel’s failure to
      object as to another portion of Mr. Smith’s testimony. Mr. Smith
      testified that he suspected [defendant] might be involved in the
      assault on Mrs. Laurenzi. According to [defendant], this
      expression of opinion was not a proper subject of testimony for
      Mr. Smith, as he was called as a fact witness, not an expert
      witness. [Defendant] analogizes this testimonial reference to
      improper statement of personal opinion by a prosecuting
      attorney. Commonwealth v. Smith, 490 Pa. 380, 416 A.2d
      986 (1980). [Defendant] argues that the expression of an
      opinion as to guilt by any witness called by the Commonwealth
      falls within the same ban on personal opinions that applies to the
      prosecuting attorney. It is further asserted that by allowing Mr.
      Smith to express an opinion on the ultimate factual issue in the
      case, the guilt of [defendant], the province of the jury as the
      factfinder was improperly invaded. Commonwealth v. Holmes,
      486 Pa. 415, 406 A.2d 510 (1979).

Rizzutto, 777 A.2d at 1084. The Rizzutto Court concluded:

      The “opinion” of Mr. Smith was revealed during his recollection
      of the conversation he had with [defendant] a few days after the
      assault on Mrs. Laurenzi. Mr. Smith, during the phone
      conversation with [defendant], asked [defendant] if he had
      anything to do with the assault. Mr. Smith explained his query of
      [defendant] was prompted by his suspicion that [defendant] may
      have been involved. The remark was not uttered as a conclusion
      as to [defendant’s] guilt. However, even assuming the “opinion”
      was improperly admitted, [defendant] fails to establish that he
      was prejudiced as a result. Any harmful effect caused by the
      “opinion” testimony of Mr. Smith was minimal in light of the
      overwhelming evidence of his guilt revealed through
      circumstantial evidence in addition to [defendant’s] confessions
      to Mr. Jachinowicz and Mr. D'Alessandro. Without prejudice there
      can be no finding of ineffectiveness warranting relief to
      [defendant].

Id.

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      After review, we conclude that Detective DePatto’s testimony was not

proffered to provide an opinion as to Appellant’s guilt; rather, he was simply

recounting his interview with Appellant. We further conclude that, because

Attorney Renteria did not believe Detective DePatto stated an opinion to the

jury relative to Appellant’s guilt, he had a reasonable basis for not objecting.

See Reed, 42 A.3d at 324 (“If a reasonable basis exists for the particular

course,   the   inquiry   ends   and   counsel’s   performance     is   deemed

constitutionally effective.”). The PCRA court explained succinctly as follows:

      Attorney Renteria testified in the PCRA hearing that he did not
      believe Det. DePatto’s testimony was objectionable because it
      was not clear to Attorney Renteria that Det. DePatto was making
      an opinion as to the guilt or innocence of his client; he believed
      Det. DePatto was simply repeating the conversation that
      occurred between [Appellant] and Det. DePatto during
      interrogation. (N.T. PCRA, 1/16/15, pp 17-19). Det. DePatto was
      not usurping the fact finder’s function by expressing an opinion
      on the ultimate factual issue in the case; instead, he was
      testifying only as to what he said to [Appellant] during the
      interrogation. Nor did Det. DePatto express an opinion on the
      ultimate factual issue when he testified that he told [Appellant]
      in the interrogation that “if you know you need to make amends
      for what you did.” (emphasis added). Det. DePatto was not
      saying that [Appellant] needed to make amends, but rather, was
      offering [Appellant] the opportunity to make amends during the
      interrogation, if, in fact, he knew what had happened. Attorney
      Renteria believed Det. DePatto was merely stating what
      [Appellant] told Det. DePatto and what Det. DePatto said in
      response. (Id. at 19). Finally, [Appellant] was not prejudiced
      because the jury was specifically instructed that the members of
      the jury are the sole judges of the facts.

PCRA Court Opinion, 4/16/15, at 7-8.

      Other than a bald claim that Detective DePatto’s testimony was

prejudicial, Appellant fails to establish prejudice, a factor that a petitioner

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must establish in order to be afforded PCRA relief.        Baumhammers, 92

A.3d at 719. Moreover, Appellant failed to establish that, but for counsel not

lodging an objection to Detective DePatto’s testimony, the outcome of the

trial would have been different. Id.

      As noted, Detective DePatto testified as to what happened during his

interview with Appellant. N.T., Trial, 7/19/12, at 63-65. Attorney Renteria

testified that he did not reasonably believe there was a basis for objection.

N.T., PCRA Hearing, 1/16/15, at 19. The trial court properly instructed the

jury as to how to weigh the testimony and that fact witnesses may testify as

to what they perceived only. N.T., Trial, 7/20/12, at 63, 66-73. Finally, and

as noted above, Appellant failed to establish prejudice.

      After careful review, we conclude that Appellant is entitled to no relief.

Accordingly, we affirm the order denying Appellant’s PCRA petition.

      Appellant’s petition for relief is granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2016




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