J-S19039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
              v.                            :
                                            :
JESUS ROSARIO TORRES,                       :
                                            :
                      Appellant             :           No. 1223 EDA 2015

                   Appeal from the PCRA Order March 9, 2015
                 in the Court of Common Pleas of Pike County,
               Criminal Division, No(s): CP-52-CR-0000286-2008

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED MAY 04, 2016

        Jesus Rosario Torres (“Torres”) appeals from the Order denying his

first Amended Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).1         Additionally, Torres’s appointed counsel, Brendan R. Ellis,

Esquire (“Attorney Ellis”), has filed a Petition to Withdraw as counsel, and an

accompanying no-merit brief pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). We grant Attorney Ellis’s Petition to Withdraw and

affirm the Order.

        The PCRA court set forth the procedural history underlying this appeal

as follows:

        Following a seven[-]day jury trial in April and May, 2010,
        [Torres], represented by Attorney Michael Weinstein (“Attorney
        Weinstein”), was convicted of the following charges: [] murder in
        the first degree; [] criminal conspiracy to commit murder in the

1
    See 42 Pa.C.S.A. §§ 9541-9546.
J-S19039-16


     first degree; [] kidnapping; and [] criminal conspiracy to commit
     … kidnapping. On June 24, 2010, th[e trial c]ourt sentenced
     [Torres] to incarceration in a State Correctional Facility for the
     balance of his life. [Torres] filed a timely appeal to the Superior
     Court[,] … [which] affirmed [Torres’s] sentence.              [See
     Commonwealth v. Torres, 34 A.3d 224 (Pa. Super. 2011)
     (unpublished memorandum.]           [Torres] filed a Petition for
     Allowance of Appeal to the Supreme Court of Pennsylvania[,]
     which was denied on February 1, 2012. [See Commonwealth
     v. Torres, 37 A.3d 1195 (Pa. 2012).]

            [Torres] then filed the underlying pro se [PCRA Petition].
     Counsel was appointed for [Torres] (hereinafter “PCRA
     Counsel”). On October 23, 2012, PCRA Counsel filed a Motion to
     Withdraw as Counsel along with a five[-]page “No[-]Merit
     Letter[,]” in which PCRA Counsel outlined his rationale. Th[e
     PCRA c]ourt granted PCRA Counsel’s Motion to Withdraw and
     notified [Torres] that his [PCRA Petition] would be dismissed
     unless a response was filed within twenty (20) days. [Torres]
     filed a Petition for Extension of Time to Respond to Court Order
     on November 8, 2012. The Petition was granted and [Torres]
     was given an additional sixty [] days to file his response.

            [Torres] filed an Amended [PCRA] Petition … on January 7,
     2013, claiming ineffective assistance of counsel at trial.
     [Specifically, Torres] claimed that Attorney Weinstein [had]
     advised [Torres] not to testify, thereby depriving [Torres] of
     both his right to testify and his right to [a] coherent trial
     strategy. [Torres] averred further that th[e trial c]ourt erred by
     failing to colloquy [Torres] to determine whether [his] waiver of
     the right to testify was knowing and voluntary. A hearing was
     scheduled for February 25, 2013[,] and continued to March 25,
     2013 at [Torres’s] request.

           [Torres] filed a Motion for Appointment of Counsel on
     February 27, 2013[,] which was subsequently denied on the
     ground that [Torres] previously had the benefit of appointed
     PCRA Counsel[,] who was granted leave to withdraw after
     finding no merit in [Torres’s] claims. The hearing on [Torres’s]
     Amended [PCRA] Petition took place on March 25, 2013
     [(hereinafter “PCRA Hearing”)], wherein [Torres] appeared pro
     se[,] with the benefit of an interpreter. During the [PCRA
     H]earing, [Torres] neither presented evidence nor called



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     witnesses in support of his Amended Petition.           [Torres’s]
     Amended Petition was denied.

           [Torres] filed a timely appeal on April 16, 2013. Th[e
     PCRA c]ourt submitted a 1925[(a)] Opinion on June 10, 2013,
     and the Superior Court affirmed the decision by Order dated
     December 4, 2013. [See Commonwealth v. Torres, 93 A.3d
     500 (Pa. Super. 2013) (unpublished memorandum).] [Torres]
     then filed a Petition for Allowance of Appeal with the Supreme
     Court of Pennsylvania.         On September 29, 2014, the
     Pennsylvania Supreme Court vacated the decision of the
     Superior Court and remanded the matter to th[e PCRA c]ourt
     with direction to appoint counsel for the purpose of assisting
     [Torres] in a limited evidentiary hearing. [See Commonwealth
     v. Torres, 101 A.3d 781 (Pa. 2014).]

           Th[e PCRA c]ourt appointed Attorney [] Ellis … to assist
     [Torres,] and scheduled an evidentiary hearing for March 3,
     2015. Following the hearing, th[e PCRA c]ourt issued an Order
     denying [Torres’s] Amended [PCRA] Petition on March 9, 2015.

PCRA Court Opinion, 6/1/15, at 1-3 (some capitalization and paragraph

breaks omitted).

     Torres then filed a pro se Notice of Appeal from the March 9, 2015

Order.2 The PCRA court ordered Torres to file a Pa.R.A.P. 1925(b) concise



2
  We note that Torres’s Notice of Appeal had to be filed by April 8, 2015.
The PCRA court’s docket indicates that the Notice of Appeal was entered on
April 10, 2015. Torres dated the Notice of Appeal April 6, 2015. Due to the
current state of the certified record, we are unable to determine whether
Torres, an inmate, had deposited his Notice of Appeal with prison authorities
for mailing prior to the expiration of the thirty-day appeal period. See
Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super. 2007)
(setting forth the “prisoner mailbox rule” and deeming the appellant’s notice
of appeal timely pursuant to this rule where the certified record was
inadequate to confirm whether the appeal was, in fact, untimely).
Additionally, neither the Commonwealth nor the PCRA court has challenged
the timeliness of Torres’s Notice of Appeal. Accordingly, we deem the appeal
to be timely filed. See id.


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statement of errors complained of on appeal.       Torres timely filed a pro se

Concise Statement.

      Subsequently, Attorney Ellis filed with this Court a Petition to Withdraw

as counsel, and an accompanying Turner/Finley brief, asserting counsel’s

opinion that there were no non-frivolous issues to be raised on appeal. In

response, Torres filed with this Court a pro se “Motion For Leave To File Brief

for Appellant Pro Se.” We permitted Torres to file a pro se appellate brief,

within thirty days. Torres then timely filed a pro se brief.

      In the Turner/Finley brief, Attorney Ellis presents the following issues

for our review:

        1. Did the PCRA court abuse its discretion in failing to
           grant relief on [Torres’s] claim that [Attorney
           Weinstein] was ineffective for giving unreasonable
           advice to not testify on his own behalf where [Torres]
           produced evidence that [c]ounsel’s advice was based on
           a hunch that the Commonwealth had not produced
           enough evidence to sustain a guilty verdict?

        2. May [Torres] raise the question of [] PCRA counsel’s
           effectiveness for the first time on appeal?

Turner/Finley Brief at 5.     In his pro se brief, Torres raises the following

issue: “Did the PCRA [c]ourt abuse its discretion by failing to grant relief on

[Torres’s] claim that [Attorney Weinstein] was ineffective for offering

unreasonable advice to not testify and, in doing so, interfer[ed] with




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[Torres’s] right to testify on his own behalf?” Pro Se Brief for Appellant at

7.3

        Before addressing the claims Torres wishes to present on appeal, we

must determine whether Attorney Ellis complied with the requirements of

Turner/Finley in petitioning to withdraw as counsel.                   Pursuant   to

Turner/Finley, independent review of the record by competent counsel is

required     before   withdrawal    on    collateral    appeal    is     permitted.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).                      Such

independent review requires proof of

        1) A “no-merit” letter by PCRA counsel detailing the nature and
        extent of his review;

        2) The “no-merit” letter by PCRA counsel listing each issue the
        petitioner wished to have reviewed;

        3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of
        why the petitioner’s issues were meritless;

        4) The [] court conducting its own independent review of the
        record; and

        5) The [] court agreeing with counsel that the petition was
        meritless.

Id. (citation and brackets omitted).

        Here, our review of the record discloses that Attorney Ellis has

complied with each of the above requirements.          In addition, Attorney Ellis

sent Torres copies of the Turner/Finley brief and Petition to Withdraw, and

advised him of his rights in lieu of representation in the event that the court

3
    The Commonwealth did not file a brief on appeal.


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granted   Attorney   Ellis   permission   to   withdraw,   in   compliance   with

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since

Attorney Ellis has complied with the Turner/Finley requirements, we will

proceed with our independent review of the record and the merits of Torres’s

claims.

             This Court examines PCRA appeals in the light most
      favorable to the prevailing party at the PCRA level. Our review
      is limited to the findings of the PCRA court and the evidence of
      record. Additionally, we grant great deference to the factual
      findings of the PCRA court[,] and will not disturb those findings
      unless they have no support in the record. In this respect, we
      will not disturb a PCRA court’s ruling if it is supported by
      evidence of record and is free of legal error. However, we afford
      no deference to its legal conclusions.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)

(internal citations, quotation marks and brackets omitted).

      Torres argues that Attorney Weinstein rendered ineffective assistance,

and interfered with Torres’s right to testify in his own defense, by

unreasonably advising Torres not to testify at trial. Turner/Finley Brief at

11; Pro Se Brief for Appellant at 18-19.4 Torres alleges that

      [d]uring [pre-trial] preparations, he told [Attorney] Weinstein
      that he wanted to testify …. In response, [Attorney] Weinstein
      told him that his testimony was not necessary …. [] Torres
      remained adamant in his desire to testify on his own behalf, but
      [Attorney] Weinstein told him that he would only do damage to
      the case if he did.




4
  Since Attorney Ellis’s first issue and Torres’s sole issue are essentially
identical, we will address them simultaneously.


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Id. at 18; see also id. (asserting that “Torres felt he had [no] choice but to

obey his lawyer’s instructions”). Additionally, Torres urges that, “[i]n light of

the porous explanations [Attorney] Weinstein offered [at the PCRA Hearing]

for keeping his client off the witness stand, it is much more probable that []

Torres’[s] testimony concerning his attorney’s advice was the truth.” Id. at

21.

      To prevail on a claim of ineffectiveness of counsel, the PCRA petitioner

must demonstrate “(1) that the underlying claim is of arguable merit; (2)

that counsel’s course of conduct was without a reasonable basis designed to

effectuate his client’s interest; and (3) that he was prejudiced by counsel’s

ineffectiveness[.]” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super.

2012) (citations omitted).    The PCRA court may deny an ineffectiveness

claim if the petitioner’s evidence fails to meet any of these prongs.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010).

Moreover, a PCRA petitioner bears the burden of demonstrating counsel’s

ineffectiveness.   Id.; see also Commonwealth v. Lesko, 15 A.3d 345,

380 (Pa. 2011) (stating that “[w]hen evaluating ineffectiveness claims,

judicial scrutiny of counsel’s performance must be highly deferential.”

(citation and internal quotation marks omitted)).

      The decision to testify on one’s own behalf

      is ultimately to be made by the accused after full consultation
      with counsel. In order to support a claim that counsel was
      ineffective for “failing to call the appellant to the stand,” the
      appellant must demonstrate either that (1) counsel interfered


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      with his client’s freedom to testify, or (2) counsel gave specific
      advice so unreasonable as to vitiate a knowing and intelligent
      decision by the client not to testify in his own behalf.

Commonwealth v. O’Bidos, 849 A.2d 243, 250 (Pa. Super. 2004) (citation

and brackets omitted). “Counsel is not ineffective where counsel’s decision

to not call the defendant was reasonable.”     Commonwealth v. Breisch,

719 A.2d 352, 354-55 (Pa. Super. 1998). Additionally, regarding the second

prong of the ineffectiveness test,

      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.

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

quotation marks and brackets omitted).

      In its Opinion, the PCRA court addressed Torres’s ineffectiveness

challenge as follows:

      [Torres] has failed to establish all three prongs of the
      [ineffectiveness] test[,] and his testimony at the … PCRA
      Hearing[] lacked credibility.

            First, Attorney Weinstein’s testimony indicates his advice
      was both reasonable and logical under the circumstances.
      During the PCRA Hearing, Attorney Weinstein testified that
      [Torres], through an interpreter, informed Attorney Weinstein
      that he shot the victim. PCRA Hr’g Tr. vol. 1, [at] 24 ….
      [Torres] then reneged, but finally admitted to the shooting[,]
      without [an] intent to kill the victim. Id., at 24-25. In addition,
      Attorney Weinstein testified as to evidence involving the tracing
      of cellular telephones[,] which would have contradicted


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     [Torres’s] testimony as to his location at the time of the incident.
     Id., at 25.     Based on this information, Attorney Weinstein
     indicated his reluctance to recommend [that Torres] testify on
     his own behalf to avoid solicitation of perjury. Id., at 24.
     Furthermore, Attorney Weinstein testified that he wanted to
     separate [Torres] from his co-defendant[, Joseph Atwell], felt
     that separation would be established by the evidence alone, and
     that [Torres’s] testimony would interfere with that distinction.
     Id., at 26-28. Th[e PCRA c]ourt is convinced [that] Attorney
     Weinstein’s strong recommendation that [Torres] not testify on
     his own behalf was a reasonable and logical trial strategy.

            Second, [Torres’s] position that he was denied his right to
     testify on his own behalf lacks credibility. [Torres] testified [at
     the PCRA Hearing that] he did discuss the right to testify with
     Attorney Weinstein [].        PCRA Hr’g Tr. vol. 1, 5-8 ….
     [Additionally, Torres executed an] Affidavit dated December 29,
     2012, [which] indicates:

         [Attorney] Weinstein initiated a discussion with me,
         advising me that he did not need me to take the stand
         because now the case “looked good for us.” … The
         defense rested without me taking the stand. It was on
         the basis of that advice that I used my right to remain
         silent and did not testify.

     []Torres Aff. December 29, 2012. This language is a clear
     indication that the decision not to testify on his own behalf was
     made by [Torres,] based upon the advice of Attorney Weinstein.
     Attorney Weinstein’s testimony offered at the PCRA Hearing
     verifies as much. PCRA Hr’g Tr. vol. 1, 22-23 ….

           Therefore, … Attorney Weinstein had both a logical        and
     reasonable basis for his recommendations to [Torres,] and      th[e
     PCRA c]ourt is not convinced that the result of [Torres’s]     trial
     would have been different if [Torres] had testified on his     own
     behalf.

PCRA Court Opinion, 6/1/15, at 6-7 (emphasis in original); see also Order,

3/9/15, at 2 (stating that Attorney Weinstein “is an extremely experienced

defense attorney with 40 years of criminal [defense] experience, a great



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deal of knowledge of the law and the legal process, including how to actually

handle jury trials, and [he has] a full understanding of his responsibility to

both the client and the Court.         Based upon all of that knowledge and

experience, his advice to [Torres] was both logical and legal[,] and certainly

qualified as effective assistance of counsel.”).

      Our independent review of the record shows that the PCRA court’s

sound rationale is supported by the record, and we therefor affirm on this

basis in rejecting Torres’s ineffectiveness challenge regarding Attorney

Weinstein.     See PCRA Court Opinion, 6/1/15, at 6-7; see also Spotz,

supra.5

      Next, to the extent that Attorney Ellis asserts in the Turner/Finley

brief that Torres wishes to challenge Attorney Ellis’s representation at the

PCRA Hearing, Torres does not argue this claim in his pro se brief.

Nevertheless, this claim is not ripe for our review because Torres raises it for

the first time on appeal.      See Commonwealth v. Ford, 44 A.3d 1190,

1200-01      (Pa.   Super.   2012)   (holding   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[,]” and “claims of PCRA counsel

ineffectiveness cannot be raised for the first time after a notice of appeal has


5
  Additionally, we decline Torres’s invitation to reassess the PCRA court’s
credibility determination concerning the testimony presented at the PCRA
Hearing. See Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013)
(stating that “[t]he PCRA court’s credibility determinations, when supported
by the record, are binding on this Court[.]”).


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been taken from the underlying PCRA matter.”); see also Commonwealth

v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011) (stating that “[w]hile difficult,

the filing of a subsequent timely PCRA petition [alleging ineffectiveness of

PCRA counsel] is possible, and in situations where a [time bar] exception …

can be established[,] a second [PCRA] petition filed beyond the one-year

time bar may be pursued.”).

      Accordingly, because we conclude that the PCRA court neither abused

its discretion nor committed an error of law in denying Torres’s first

Amended PCRA Petition, we grant Attorney Ellis’s Petition to Withdraw and

affirm the Order on appeal.

      Petition to Withdraw as counsel granted; Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/4/2016




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