J-S23025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    GABRIEL MARTINEZ-LOPEZ                 :
                                           :
                     Appellant             :   No. 1171 EDA 2019

              Appeal from the PCRA Order Entered March 18, 2019
    In the Court of Common Pleas of Montgomery County Criminal Division at
                        No(s): CP-46-CR-0003402-2010

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.:                            FILED JULY 17, 2020

        Gabriel Martinez-Lopez (Appellant) brings this pro se appeal from the

order entered in the Montgomery County Court of Common Pleas dismissing

his first petition under the Post-Conviction Relief Act (PCRA).1 He raises three

claims of trial counsel’s ineffectiveness. We affirm.

        This Court previously summarized the facts and procedural history of

Appellant’s case as follows.

        On April 9, 2010, Upper Merion Police, and members of the
        Montgomery County Detective Bureau, were dispatched to 148
        Walker Lane in King of Prussia, Pennsylvania. Upon their arrival,
        police discovered the beaten body of Jose Armando Cazares-
        Olarte (hereinafter “the victim”). After processing the crime
        scene, police surmised that the victim had been killed at a
        different location, and his body dumped on Walker Lane. An
        autopsy revealed that the victim died as a result of numerous
        blunt force injuries to his head, face, and torso, and the manner


1   42 Pa.C.S. §§ 9541-9546.
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     of death was ruled a homicide. The victim’s phone records
     revealed that Appellant was the last person to call the victim on
     the day of the murder.

             On April 27, 2010, police interviewed Appellant. While he
     initially denied any involvement in the murder, he eventually
     admitted that he and the victim’s wife, Delia Hernandez-Cortes
     (hereinafter, “Delia”), were involved in an affair. Appellant further
     confessed that Delia told him that the victim was physically
     abusing her, and she asked Appellant to kill him. Appellant
     agreed, and enlisted his brother, Miguel Martinez (hereinafter,
     “Miguel”), to assist him. Appellant told police that on the night of
     the murder, he and Miguel kidnapped the victim at gunpoint,
     forced him into the bed of their truck, and drove him to their home
     at 349 Heritage Lane in King of Prussia. During this time, Delia
     was in frequent contact with Appellant, asking him about the
     events taking place.

            Once Appellant and Miguel arrived at their home with the
     victim, they removed him from the truck and ordered him to the
     ground. Appellant then grabbed a large retaining wall block and
     struck the victim with it in the back of the head. He then put a
     plastic bag around the victim’s neck, attempting to suffocate him.
     Once the victim died, they loaded his body back into the truck and
     dumped it at the location where it was later discovered by police.
     The brothers then returned to their home to clean up. Appellant
     also told police that he hid the victim’s keys, cell phone, and one
     of the victim’s sneakers in his home. Police later discovered those
     items inside Appellant’s residence. Appellant stated that at 6:40
     a.m. on the morning after the murder, Delia called to ask him if
     the victim was dead, and Appellant informed her that he was.

           Investigating detectives also interviewed Miguel, who
     essentially corroborated Appellant’s version of the murder. Miguel
     added that Appellant had struck the victim three times in the head
     with the brick, and after the victim collapsed to the ground, Miguel
     took the rock and threw it at the victim’s head.

           After obtaining confessions from Appellant and Miguel,
     police interviewed Delia on April 30, 2010. Delia admitted that
     she and Appellant conspired to kill the victim because he had been
     physically and mentally abusive to Delia. Delia claimed that she
     confided in Appellant about the abuse, and Appellant suggested


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      that he kill the victim for Delia. She agreed, and offered to pay
      Appellant by giving him the victim’s truck after the murder.

             Appellant, Miguel, and Delia were all charged as co-
      defendants. Before trial, however, Miguel and Delia entered guilty
      pleas to third-degree murder and related offenses in exchange for
      testifying against Appellant . . . .

             Appellant’s case proceeded to a jury trial, at which Miguel
      and Delia, among others, testified for the Commonwealth.
      Appellant also took the stand in his own defense.            At the
      conclusion of trial, the jury convicted Appellant of first-degree
      murder, kidnapping, robbery, criminal conspiracy, possession of a
      firearm [by a person prohibited], and criminal solicitation. The
      trial court ordered a pre-sentence investigation report (PSI), and
      conducted a sentencing hearing on March 27, 2014. At the
      conclusion thereof, the court sentenced Appellant to a mandatory
      term of life imprisonment, without the possibility of parole, for his
      first-degree murder offense.       The court also imposed a
      consecutive term of 20 to 40 years’ incarceration for Appellant’s
      conspiracy conviction, and a consecutive term of 11½ to 23
      months’ imprisonment for his firearm offense. Additionally, the
      court imposed two concurrent terms of twenty years’ probation
      for the kidnapping and robbery convictions.

Commonwealth v. Martinez-Lopez, 2248 EDA 2014 (unpub. memo. at 1-

4) (Pa. Super. May 3, 2016), appeal denied, 388 MAL 2016 (Pa. Aug. 30,

2016).

      Appellant appealed from his judgment of sentence, and this Court

affirmed.   The Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on August 30, 2016.        Appellant filed his initial PCRA

petition on October 14, 2016. PCRA petitions filed within one year of the date

the judgment becomes final are timely per 42 Pa.C.S. § 9545(b).

      The PCRA court appointed counsel, who filed a motion to withdraw and

no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.


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1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc).   The PCRA court granted counsel’s motion; Appellant has not

challenged the propriety of counsel’s withdrawal.2

      Appellant’s petition was dismissed without a hearing by order docketed

March 18, 2019. His notice of appeal was docketed on Friday, April 19, 2019.

By operation of the prisoner mailbox rule, we deem the appeal to be timely

filed. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (this

Court is “inclined to accept any reasonably verifiable evidence of the date that

the prisoner deposits the appeal with the prison authorities”).

      Appellant has three claims arising from alleged ineffective assistance of

trial counsel. He raises them as follows:

      I. Whether trial counsel was ineffective for telling Appellant that
      he had to testify on his own behalf, and whether the [trial judge]
      committed judicial misconduct when [they] did not instruct
      Appellant that whether or not to testify in his own behalf was up
      to him.

      II. Whether trial counsel was ineffective for failing to request that
      [the trial judge] instruct the jury, when they asked could a
      defendant lose [specific intent], that yes a defendant could lose
      the intent, and/or give a clearer definition of intent.

      III. Whether trial counsel was ineffective for basically pleading
      [A]ppellant guilty by proxy, by either stipulating to, or either


2 Appellant’s petition was initially dismissed on June 15, 2017, after the PCRA
court’s order of May 26, 2017, denying Appellant’s request for his file. On
appeal, this Court vacated the order and remanded, directing the PCRA court
to provide Appellant with the necessary documents (especially notes of
testimony from his trial) to prepare his own amended petition.
Commonwealth v. Martinez-Lopez, 2319 EDA 2017 (unpub. memo. at 5)
(Pa. Super. January 16, 2018).

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      outright telling the jury that [A]ppellant was guilty of every
      element of all the charged offenses.

Appellant’s Brief at 2 (spelling and grammar slightly modified).

      Our appellate courts review PCRA orders to determine whether factual

findings are supported by the record and legal conclusions are free from error.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). When reviewing

claims of ineffective assistance of counsel, courts must presume that counsel

provided effective assistance.   Commonwealth v. Brown, 196 A.3d 130,

150 (Pa. 2018).       To overcome this presumption, our courts require the

defendant to plead and prove that (1) the claim has arguable merit; (2)

counsel lacked any reasonable basis for the action or inaction; and (3) the

petitioner suffered prejudice as a result. Id. Prejudice is established only

where, but for counsel’s action or inaction, there was a reasonable probability

that the proceeding would have had a different outcome.         Id. at 150-51

(citation omitted).     “[B]oilerplate allegations and bald assertions of no

reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden

to prove that counsel was ineffective.” Commonwealth v. Paddy, 15 A.3d

431, 443 (Pa. 2011).

      To be clear, Appellant is not arguing that trial counsel misinformed him

that testifying was legally mandated; he argues, rather, that counsel advised

him that he should testify to address damaging pretrial statements made by

Appellant. Appellant’s Brief at 6. He claims that the trial court never advised

him of his right to refrain from testifying. The record reflects that he was

present during voir dire, when the trial court instructed jurors that “[t]he

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defendant in a criminal case has the Fifth Amendment right to remain silent.

No inference of guilt is to be drawn against him if he chooses not to testify at

this trial nor can any adverse interest be drawn if he does not present a

defense.” N.T., 11/18/13, at 25-26.

        “Claims alleging ineffectiveness of counsel premised on allegations that

trial counsel’s actions interfered with an accused’s right to testify require a

defendant to prove either that ‘counsel interfered with his right to testify, or

that counsel gave specific advice so unreasonable as to vitiate a knowing and

intelligent decision to testify on his own behalf.’” Commonwealth v. Miller,

987 A.2d 638, 660 (Pa. 2009), quoting Commonwealth v. Nieves, 746 A.2d

1102, 1104 (Pa. 2000).

        The PCRA court determined that Appellant could not prevail because he

could not establish prejudice, as the evidence against him was overwhelming.

PCRA Ct. Op., 8/30/19, at 11, 12 (unpaginated). Further, the PCRA court

determined that his claims lacked merit, as counsel was applying a reasonable

trial strategy. Id. at 10, 11.

        Given that Appellant concedes that counsel advised him to testify to

mitigate the damage done by Appellant’s pretrial statements,3 it would be

impossible to conclude that the advice was so unreasonable that it vitiated

Appellant’s ability to make a knowing and intelligent decision on his own

behalf, as the advice corresponded to a reasonable mitigation strategy.


3   See Appellant’s Brief at 6.


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Appellant had confessed to murder, and several of his co-conspirators

confirmed his account.      Because of the damning nature of his pretrial

statements, a strategy of chipping away at specific intent to attempt to

mitigate is not unreasonable. This claim is meritless.4

      Appellant next argues that trial counsel was ineffective for failing to

request different jury instructions on specific intent. During deliberations, the

jury asked the trial court whether a person could have specific intent and then

lose it. The trial court told the jury that “the question is for you to determine

what was his state of mind when he killed him.” The trial court also reiterated

its standard instruction on specific intent. N.T., 11/20/13, at 147-49.

      To establish ineffectiveness, Appellant must show that the alternate

course he argues counsel should have taken has arguable merit. See Brown,

196 A.3d at 150-51. The trial court did not err in its instructions to the jury;

nor is it at all apparent that Appellant was in any way disadvantaged by the

trial court’s response to the jury’s query. Counsel cannot be faulted for failing

to raise a meritless claim. See Commonwealth v. Harris, 852 A.2d 1168,

1173 (Pa. 2004).

      Appellant claims that the court’s instruction relieved the Commonwealth

of the burden of proving his state of mind, and that the court misstated


4 To the extent that Appellant faults the trial court for failing to inform him of
his right not to testify, the argument is void of merit in that it is clear that
Appellant knew that testifying was a strategic decision and not legally
mandated; this allegation also fails because Appellant was present when the
trial court advised potential jurors of Appellant’s right not to testify. See N.T.,
11/18/13, at 25-26.

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Pennsylvania law. In fact, the trial court did not misstate Pennsylvania law.

The instruction that the jury must determine his intent at the time of the

killing was actually favorable to Appellant, given that his co-conspirators

testified that this was a killing for hire. Because there was ample testimony

of premeditation, the court’s instruction to determine his intent at the time of

the killing (as opposed to focusing on the times prior to the killing when

Appellant discussed with others his intent to kill the victim) gave Appellant a

chance at being convicted of a lesser degree of homicide. However, it is also

apparent that the mountain of incriminating evidence doomed his defense, as

well as rendering any potential error harmless. See Brown, 196 A.3d at 150-

51.

      Finally, Appellant argues that trial counsel was ineffective for “basically

pleading [him] guilty by proxy” by conceding “every element of all the charged

offenses.” Appellant’s Brief at 10. Elsewhere in his brief, he concedes that

this is inaccurate, and that trial counsel employed a strategy of contesting

specific intent to attempt to mitigate the damage that Appellant had inflicted

with his incriminating pretrial statements and to give Appellant a chance to

escape a life sentence by persuading the jury to convict of a lesser degree of

homicide. See id. at 8 (acknowledging that trial counsel contested specific

intent).

      The record reflects, however, that trial counsel’s strategy of contesting

specific intent was designed to preserve the possibility that Appellant might




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be convicted of a lesser degree of murder, with the potential to escape a

mandatory sentence of life without the possibility of parole.5

        Appellant also argues that this Court should apply United States v.

Cronic, 466 U.S. 648 (1984), to hold that Appellant was per se prejudiced by

trial counsel’s concessions. In Cronic, the Supreme Court held that some

deficiencies    constituted   constructive   denial   of   counsel,   and   there,

ineffectiveness is established even absent a showing of prejudice. Id. at 660.

        Cronic reminds us that “the Sixth Amendment does not require that

counsel do what is impossible or unethical. If there is no bona fide defense to

the charge, counsel cannot create one and may disserve the interests of his

client by attempting a useless charade.”        Cronic, 466 U.S. at 656 n.19.

Appellant has not demonstrated the type of categorical failure that implicates

Cronic; the Strickland standard thus applies. The oft-repeated admonition

that our courts will not consider ineffectiveness claims in a vacuum demands

that we instead consider the context in which counsel’s performance was

made.6     In this case, that means taking into account the overwhelming

evidence not only of guilt but of premeditation.

        Appellant has not shown that he is entitled to relief; thus we affirm.

Order affirmed.




5   See 18 Pa.C.S. §§ 1102(d), 2502(c).

6 See, e.g., Commonwealth v. Anderson, 461 A.2d 208, 214 (Pa. 1983)
(“claims of ineffectiveness cannot be abstractly reviewed in a vacuum”).

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President Judge Emeritus Ford Elliott joins.



Judge Nichols concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/20




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