J-S16032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MATHEW STEFAN MORALES,                   :
                                          :
                    Appellant             :        No. 1143 MDA 2018

            Appeal from the PCRA Order Entered June 19, 2018
             in the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0001430-2015

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MAY 31, 2019

      Mathew Stefan Morales (“Morales”) appeals from the Order denying his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On February 8, 2016, a jury found Morales guilty of first-degree murder

for the shooting death of Xavier Garriga (“the victim”), following an argument

in a Turkey Hill store. See 18 Pa.C.S.A. § 2502(a). The trial court sentenced

Morales to a mandatory term of life in prison without the possibility of parole.

Morales filed a post-sentence Motion, which the trial court denied.       After

Morales filed an untimely Notice of Appeal, he filed a counseled Motion to

Reinstate Appellate Rights Nunc Pro Tunc, which the PCRA court granted. This

Court affirmed Morales’s judgment of sentence on May 11, 2017.             See

Commonwealth v. Morales, 170 A.3d 1207 (Pa. Super. 2017) (unpublished

memorandum).
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      On July 5, 2017, Morales, pro se, filed the instant timely PCRA Petition.

The PCRA court appointed Morales counsel, who filed an Amended Petition on

his behalf. The Commonwealth filed an Answer. The PCRA court conducted

an evidentiary hearing on March 8, 2018, after which both parties submitted

briefs. On June 19, 2018, the PCRA court denied Morales’s Petition. Morales

filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

      On appeal, Morales raises the following claims for our review:

      A. Whether trial counsel was ineffective when he failed to object
      when the prosecutor introduced evidence that [Morales] had a
      tattoo stating “Respect Few Fear None[,]” and cited those words
      in his closing argument[,] which comments were inflammatory
      and unduly prejudicial?

      B. Whether trial counsel was ineffective when he failed to file a
      meritorious motion to suppress various items[,] which were seized
      pursuant to a search warrant[,] when the affidavit for said warrant
      failed to set forth probable cause to believe that items subject to
      seizure would be found in the place to be searched?

      C. Whether trial counsel was ineffective when he failed to call
      Frank Costanzo [(“Costanzo”)] as an expert witness at trial[,]
      when [] Costanzo was ready, willing and able to testify that the
      analysis performed by the Commonwealth’s expert, Sergeant
      [Jeffrey] Jones [(“Sgt. Jones”)], was flawed[,] and that there was
      insufficient evidence to determine the location of [Morales’s]
      vehicle at the time the victim was shot?

      D. Whether trial counsel was ineffective when he failed to object
      to the testimony of Detective [John Wettlaufer] [(“Detective
      Wettlaufer”)] concerning the use of trajectory rods[,] when
      Detective Wetlauffer was not properly qualified as an expert
      witness?

Brief for Appellant at 4 (issues reordered).


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      Morales’s claims challenge the effectiveness of his trial counsel. The

applicable standards of review regarding the dismissal of a PCRA petition and

ineffectiveness claims are as follows:

            Our standard of review of a PCRA court’s denial of a petition
      for post[-]conviction relief is well-settled: We must examine
      whether the record supports the PCRA court’s determination, and
      whether the PCRA court’s determination is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

                                     ***

             It is well-established that counsel is presumed to have
      provided effective representation unless the PCRA petition pleads
      and proves all of the following: (1) the underlying legal claim is of
      arguable merit; (2) counsel’s action or inaction lacked any
      objectively reasonable basis designed to effectuate his client’s
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error. The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

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

omitted).

      In his first claim, Morales asserts that trial counsel was ineffective for

failing to object to the admission of evidence that Morales has a tattoo reading

“Respect Few Fear None.” Brief for Appellant at 22. Morales contends that

the language of his tattoo has no probative value, but was instead an attempt

by the Commonwealth to create an inference that Morales had violent

propensities. Id. at 23. Additionally, Morales points out that the prosecutor

referred to the language of the tattoo again during closing arguments, which,

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Morales asserts, was an attempt to inflame the passions of the jury. Id. at

23-24. Morales claims that trial counsel failed to articulate a reasonable basis

for his failure to object to evidence of the tattoo. Id. at 24-25. Additionally,

Morales argues that he was prejudiced as a result of counsel’s inaction

because the prosecutor essentially asked the jury to render a verdict based

on emotion. Id. at 25.

         In its Opinion, the PCRA court set forth the relevant law, addressed

Morales’s claim, and concluded that it lacks merit. See PCRA Court Opinion,

9/7/18, at 5-12.       Specifically, the PCRA court concluded that Morales’s

underlying claim lacks merit because the prosecutor’s comment (1) was fair,

based on the evidence presented; (2) was offered to rebut Morales’s

credibility; and (3) did not violate a constitutionally or statutorily protected

right.     See id. at 8.    Moreover, after summarizing the “overwhelming”

evidence of Morales’s guilt established at trial, the PCRA court concluded that

the outcome of Morales’s trial “was not affected in any meaningful way” by

the evidence concerning, or the prosecutor’s comments regarding, Morales’s

tattoo. See id. at 8-12. We agree with the PCRA court’s cogent analysis,

which is supported by the record. Therefore, we affirm on this basis as to

Morales’s first issue. See id. at 5-12.

         In his second claim, Morales challenges trial counsel’s effectiveness for

failing to file a motion to suppress evidence seized from his apartment

(including, inter alia, a .40 caliber Glock semi-automatic pistol, a pistol box, a

magazine for a Glock semi-automatic pistol, and a gun cleaning kit). Brief for

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Appellant at 25, 30. Morales contends that the Affidavit for the search warrant

is “grossly defective,” and did not establish a reasonable probability that the

firearm used in the shooting would be located in his apartment. See id. at

27-30. Morales argues that trial counsel had no reasonable basis for failing

to file a motion to suppress.   Id. at 30.   Morales also claims that he was

prejudiced by counsel’s failure because the evidence admitted at trial was

used to show that Morales is a gun owner and firearms aficionado, but had

little probative value as to his identity as the shooter. Id. at 30-31.

      In its Opinion, the PCRA court set forth the relevant law, addressed

Morales’s claim, and concluded that it lacks merit. See PCRA Court Opinion,

9/7/18, at 12-18. Because the PCRA court’s sound reasoning is supported by

the record and free of legal error, we affirm on this basis as to Morales’s

second claim. See id.

      In his third claim, Morales argues that trial counsel was ineffective for

failing to call Costanzo as an expert witness to testify that the analysis

performed by Sgt. Jones, the Commonwealth’s expert witness in forensic

reconstruction, was flawed. See Brief for Appellant at 14-22. Specifically,

Sgt. Jones opined that the fatal shot had come from Morales’s vehicle, which

he was driving at that time. Id. at 15-16. Morales claims that Costanzo, the

proprietor of Accident Cause and Analysis, LLC, who has more than 30 years

of experience in investigations and reconstructions, was ready and willing to

testify at trial regarding the following weaknesses and discrepancies in Sgt.

Jones’s testimony:

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       The victim walked 535 feet from the Turkey Hill store on New
        Holland Avenue to the location where he was shot, but only
        about 75 feet of that walk was recorded on cameras. Sgt.
        Jones’s calculations assumed that the victim walked at the same
        speed for the entire 535 feet, which is “pure speculation.”

       Sgt. Jones’s calculations assumed an “average” acceleration to
        turn out of the Turkey Hill parking lot, onto New Holland
        Avenue, even though there was no indication that the vehicle
        accelerated in an “average” manner.

       Based on Sgt. Jones’s “flawed” assumption that the victim
        walked at the same speed on New Holland Avenue as he had
        walked within the Turkey Hill parking lot, Sgt. Jones excluded
        the possibility that a light-colored SUV, which was in the area
        at approximately the same time as the shooting, could have
        been involved.

Id. at 18-19. According to Morales, trial counsel’s asserted basis for failing to

call Costanzo as a witness (i.e., to avoid giving the Commonwealth a copy of

Costanzo’s report prior to trial, in an effort to surprise Sgt. Jones and more

effectively damage Sgt. Jones’s credibility), was “unsuccessful” and “not

particularly effective.” Id. at 19-20; see also id. at 20 (arguing that Sgt.

Jones “was a veteran witness and [] must have been well aware of the

weaknesses in his analysis.”). Morales argues that he was prejudiced by trial

counsel’s inaction because Costanzo’s testimony “was the one and only

explanation which made sense given the limited information available in this

case.” Id. at 21.

      In its Opinion, the PCRA court set forth the relevant law, addressed

Morales’s claim, and concluded that it lacks merit. See PCRA Court Opinion,

9/7/18, at 19-25. Specifically, the PCRA court set forth Sgt. Jones’s expert



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testimony regarding his accident reconstruction analysis. See id. at 19-21.

The PCRA court additionally pointed out that trial counsel met with Costanzo

twice prior to trial, and Costanzo helped trial counsel prepare for the cross-

examination of Sgt. Jones.     See id. at 21-22; see also id. at 22 (noting

Costanzo’s testimony during the PCRA hearing that trial counsel had “followed

through” with the cross-examination questions they had prepared). We agree

with the PCRA court’s analysis, which is supported by the record, and affirm

on this basis as to Morales’s third claim. See id. at 19-25.

      In his fourth claim, Morales avers that trial counsel was ineffective for

failing to object to Detective Wettlaufer’s testimony concerning bullet

trajectory analysis, as he was not properly qualified as an expert witness.

Brief for Appellant at 31-32. Morales claims that the use of trajectory rods to

plot a bullet’s trajectory requires specialized knowledge. Id. at 32. Morales

acknowledges this Court’s decision in Commonwealth v. Kennedy, 151 A.3d

1117, 1122-27 (Pa. Super. 2016) (collecting cases and, in a matter of first

impression, holding that a police officer’s testimony concerning bullet

trajectories was a permissible lay opinion, and did not require the specialized

knowledge of an expert witness), but points out that the Kennedy decision

was filed after the jury trial in the instant case. Brief for Appellant at 33; see

also id. (wherein Morales stated his wish to challenge the Kennedy decision).

Morales also argues that counsel’s asserted basis for failing to object to the

trajectory testimony (i.e., that Detective Wettlaufer’s testimony could be

useful for Morales’s case to show that the shot could have been fired from

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another vehicle) was unreasonable, because Detective Wettlaufer had not

conducted an analysis relative to the opposing lane of travel. Id. at 33-34.

Morales claims that he was prejudiced by trial counsel’s failure because

Detective Wettlaufer’s testimony corroborated the testimony of other

witnesses. Id. at 34.

      In its Opinion, the PCRA court set forth the relevant law, addressed

Morales’s final claim, and concluded that it lacks merit.     See PCRA Court

Opinion, 9/7/18, at 25-28.       The PCRA court specifically remarked that

Detective Wettlaufer “made it clear to the jury that he was not testifying as

an expert, nor was he offering an opinion to a reasonable degree of scientific

certainty.” Id. at 26. The PCRA court’s reasoning is supported by the record

and free of legal error. We therefore affirm on this basis as to Morales’s final

claim. See id. at 25-28. Moreover, we must decline Morales’s invitation to

revisit this Court’s sound decision in Kennedy.

      Based upon the foregoing, we affirm the PCRA court’s Order denying

Morales’s Petition for relief.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019



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