J-S70015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANDRES MIGUEL MORALES

                            Appellant                 No. 595 EDA 2014


                 Appeal from the PCRA Order January 17, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004512-2007


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 08, 2015

        Andres Miguel Morales appeals from the order of the Court of Common

Pleas of Chester County that dismissed his petition brought pursuant to the

Post Conviction Relief Act (PCRA).1 After careful review, we affirm.

        This Court previously summarized the underlying facts as follows:

        On July 9, 2007, [Morales], Richard Bermudez, Tyrell Jamar
        Jones, Carlos Bermudez, and Efrain Molina planned the armed
        robbery of Christian Oliveras, who was a drug dealer living at
        317 South Adams St., West Chester. Richard Bermudez and
        Molina, a frequent customer of Oliveras, orchestrated the crime
        while Carlos Bermudez obtained the gun. Molina cased the
        home and reported to his co-conspirators. [Morales] and Jones
        entered the home with the weapon. Oliveras was in bed with his


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*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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      girlfriend and their baby and, after he resisted the armed
      robbers, was shot and killed.

Commonwealth          v.    Morales,   No.    2584   EDA   2010,      unpublished

memorandum at 1-2 (Pa. Super. filed November 22, 2011).

      On    August    22,   2007,   Morales   appeared   before   a   grand   jury

investigating the murder, and testified that he was not in West Chester on

the date of the crime.      Approximately one month later, on September 25,

2007, Morales was interviewed by Corporal Scott Whiteside of the West

Chester Police Department.      Corporal Whiteside read Morales his Miranda

warnings, and Morales agreed to continue the interview, which was

recorded.      Corporal Whiteside told Morales that he was investigating a

homicide and that Morales was under arrest for perjury based on his grand

jury testimony.      Consistent with his grand jury testimony, Morales told

Corporal Whiteside that he was not in West Chester on the date of the

murder.

      On October 28, 2008, West Chester Police arrested Morales, Jones,

Molina, Richard Bermudez, and Carlos Bermudez for the robbery and murder

of Oliveras.

      Molina, Richard Bermudez, and Carlos Bermudez pled guilty to
      third degree murder and agreed to testify against [Morales] at
      trial. Richard Bermudez related that [Morales] was aware of the
      planned robbery and that [Morales] saw the gun before he and
      Jones entered Oliveras’ home. Carlos Bermudez indicated that
      following the murder, [Morales] was in possession of the weapon
      and confessed to being the shooter. Carlos disposed of the gun
      in a body of water in Maryland. Molina provided testimony
      largely consistent with that of the Bermudezes, although he
      could not identify Jones and [Morales].


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      Police obtained telephone records of Richard Bermudez’s cell
      phone, which indicated that [Morales] and he telephoned each
      other five times around the time of the murder. [Morales’] car
      was used to transport the co-conspirators to and from the
      Oliveras’ residence.

      At trial, Jones, whom the trial court determined was not credible,
      claimed that Richard Bermudez accompanied him to the Oliveras
      home and shot the victim. [Morales], whom the trial court also
      determined was not credible, maintained that he was in the
      driver’s seat of the car at the time of the robbery and was
      completely unaware that the other men were planning the crime.
      At trial, a Commonwealth witness identified Richard Bermudez as
      the driver of the car.

Morales, supra, at 2-3.

      Following a non-jury trial, the court convicted Morales of second-

degree murder, robbery, reckless endangerment, and conspiracy. Under a

separate docket number, the court convicted him of perjury.        On April 5,

2010, he was sentenced to life imprisonment.

      This Court denied Morales’ direct appeal on November 22, 2011. On

December 21, 2012, Morales filed a timely PCRA petition, and a hearing was

held on September 25, 2013. On January 17, 2014, the court dismissed the

petition, and this appeal followed.

      Morales raises the following issues for our review:

      1. Whether the PCRA court erred in denying [Morales’] petition
         for PCRA relief for ineffective assistance of counsel based on
         trial counsel’s failure to file a meritorious motion to suppress
         [Morales’] grand jury testimony where [Morales] was denied
         counsel.

      2. Whether the PCRA court erred in denying [Morales] relief
         under the PCRA for ineffective assistance of counsel based on
         trial counsel’s decision to consolidate [Morales’] perjury case
         with his separate murder case, despite potential prejudice to
         [Morales].

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       3. Whether the PCRA court erred in denying [Morales’] petition
          for PCRA relief for ineffective assistance of counsel based on
          trial counsel’s decision to call Tyrell Jones as a defense
          witness while recognizing the detriment to [Morales’] defense.

Appellant’s Brief, at 3.2

       In reviewing an appeal from the denial of PCRA relief, “our standard of

review is whether the findings of the court are supported by the record and

free of legal error.”       Commonwealth v. Martin, 5 A.3d 177, 182 (Pa.

2010) (citations omitted).

       To be eligible for relief under the PCRA, Morales must prove by a

preponderance of the evidence that his conviction resulted from “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.”           42 Pa.C.S. § 9543(a)(2)(ii).

“Counsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”           Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa. Super. 2011). To prevail on an ineffectiveness claim, the

defendant must show that the underlying claim had arguable merit, counsel

had no reasonable basis for his or her action, and counsel’s action resulted



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2
  Morales also includes in his statement of questions involved that the court
erred in determining that counsel was not ineffective when she advised him
to waive his right to a jury trial. However, Morales has withdrawn the claim.
Appellant’s Brief, at 13.



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in prejudice to the defendant. Commonwealth v. Prince, 719 A.2d 1086,

1089 (Pa. Super. 1998).

      Morales first argues that trial counsel was ineffective for failing to seek

suppression of his grand jury testimony because he was denied counsel.

Prior to appearing before the grand jury, Morales was given a written

colloquy, in which he answered “no” to the following question: “In the event

that you do not have an attorney, do you still wish to proceed today without

an attorney?” Witness Colloquy, 8/22/07, at 4.

      After completing the written colloquy, Morales was brought before the

supervising judge who asked if he had read the colloquy, to which he

responded, “Yes.” Oral Colloquy, 8/22/07, at 2. When the judge asked if he

had any questions, Morales responded, “No.” Id. Morales then agreed to be

sworn in, and stated that he would testify truthfully before the grand jury.

Id. at 3.

      At the commencement of the grand jury proceedings, Morales testified

that he reviewed the colloquy and did not have any questions concerning his

rights. N.T. Grand Jury, 8/22/07, at 3. When asked if he was prepared to

testify and tell the truth, he responded, “yes.” Id. at 13. Accordingly, even

if Morales initially did not want to proceed without an attorney, he waived

his right by testifying under oath that he was prepared to proceed.

      The PCRA court properly noted that Morales’ claim that counsel was

ineffective for failing to file a motion to suppress is of arguable merit.


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However, it also determined that counsel had a reasonable basis for her

decision not to challenge the grand jury testimony.       At the PCRA hearing,

counsel testified:

      Mr. Morales told us that at the time that he made the statements
      to the grand jury, and at the time that he spoke to Whiteside,
      Richard Bermudez, Richard or Carlos Bermudez, one of the two
      were still out. So, he was concerned for his safety and the
      safety of his family. So, he was going to stick to his story even
      though there was ample evidence to show he was in West
      Chester.

      So, the position that we took was that we had initially requested
      to suppress the statements to Corporal Whiteside, but we
      decided to withdraw and argue that the lies during the grand
      jury and lies to Whiteside were the result of him being afraid of
      retaliation and harm coming to him and his family. And in our
      opinion, Mr. Morales had to testify in his trial because there were
      three other codefendants who were saying that he got out of the
      car and he was the shooter. So, he needed to get on the stand
      and dispute that.

      So, had he testified at his trial and testified inconsistent with the
      lies told in the grand jury and lies told to Whiteside, he could
      have been confronted with what he said in the grand jury and
      what he said to Whiteside.

N.T. PCRA Hearing, 9/25/13, at 31-32.

      Trial counsel had a reasonable basis for failing to object to the

admission of grand jury testimony that supported the theory that Morales

consistently lied out of fear of retaliation against himself and his family.

Accordingly, the PCRA court properly denied relief to Morales on this claim.

      Morales next asserts that trial counsel was ineffective for requesting

that his perjury case be consolidated with his murder case. He argues that if

the cases had not been joined, evidence of perjury would only have been



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admissible in his murder trial to impeach him if he testified. However, even

if the cases had been tried separately, evidence of the perjury charges would

have been admissible under the prior bad acts exception of Pa.R.E. 404(b).

See also Commonwealth v. Cristina, 391 A.2d 1307 (Pa. 1978) (false

denial     of   guilt   by   accused   admissible   as   substantive   evidence   of

consciousness of guilt).

         At the PCRA hearing, trial counsel Amparito Arriaga, Esquire, testified

that consolidating the perjury charge with the homicide charge benefitted

Morales because the Commonwealth would have to prove the perjury

beyond a reasonable doubt. Otherwise, the perjury charge stemming from

Morales’ lying to the grand jury would have been admissible under the lower

standard for establishing prior bad acts or consciousness of guilt. N.T. PCRA

Hearing, 9/25/13, at 66-67.

         In addition, co-counsel Elizabeth Plesser-Kelly, Esquire, testified that

by consolidating the cases, Morales avoided going into a murder trial already

having a crimen falsi conviction on his record. Id. at 86. Accordingly, we

agree with the trial court’s conclusion that counsel had a reasonable strategy

to consolidate the cases.

         Morales’ final argument is that trial counsel was ineffective for calling

Tyrell Jones as a witness.        By way of background, on October 15, 2007,

Jones gave a confession admitting that he and Morales entered the Oliveras

residence on July 8, 2007, and that Morales shot the victim.            Jones later

recanted the portion of his statement implicating Morales as the shooter.

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      Like Molina and the Bermudezes, Jones was offered an agreement to

plead to third degree murder if he would testify that Morales was the

shooter.   While Molina and the Bermudezes took the deal, Jones did not.

Following a trial, Jones was found guilty of first degree murder.

      Morales argues that if his counsel had not called Jones to testify about

his recanted confession, Jones’ statement that Morales was the shooter

could not have been introduced by the Commonwealth because it was

hearsay. Accordingly, at trial, the Commonwealth would have had to rely on

the statements of the three co-defendants who were identifying Morales as

the shooter as part of their plea agreements.        The testimony of these

witnesses would have been subject to heightened scrutiny because it came

from a corrupt and polluted source.        However, because Jones was not

testifying pursuant to a plea agreement, Morales asserts that Jones’ prior

statement implicating Morales “could have been given more credibility.”

Brief of Appellant, at 26.

      At trial, Jones testified that on the day of the murder, Richard

Bermudez threatened him with a gun and told him that he had to participate

in a robbery in exchange for money Jones owed him. Bermudez told Jones

to call someone who had a car, and Jones called Morales, and told him that

he needed a ride.     Morales went to Sam’s Pizza Island where Jones, the

Bermudezes and Molina got into the car.      They did not tell him that they

intended to commit a robbery.     Jones further testified that it was Richard

Bermudez, not Morales, who committed the murder, and that Morales, who

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remained in the car, was unaware of the robbery or murder until they were

completed.

      Jones testified at trial that most of the information he provided to the

police and his testimony before the grand jury was untruthful. He explained

that he previously lied about Morales’ involvement because Richard

Bermudez threatened him if he did not do so. In support of his testimony he

stated that he rejected an offer to plead guilty to third degree murder

because he would have to testify against Morales and lie by saying that

Morales was the shooter.

      At the PCRA hearing, Attorney Arriaga testified regarding her strategy

behind calling Jones as a witness.      She noted that Jones was credible

because he refused to accept a favorable plea agreement in exchange for

implicating Morales. Moreover, because three other people involved in the

case were going to testify that Morales was the shooter, it was necessary to

have the only other participant corroborate Morales’ testimony that he did

not get out of the car, did not go into Oliveras’ house, and did not shoot and

kill Oliveras. N.T. PCRA Hearing, 9/25/13, at 22-25.

      The Honorable Thomas G. Gavin, who presided over Morales’ trial and

the PCRA hearing, noted:

      Jones’ testimony, if believed, exonerated [Morales] of the
      shooting and lent credence to why he, [Morales], lied to the
      grand jury and police. The fact that [Morales] was found guilty
      of felony murder, not murder in the first degree demonstrated
      that Jones’ testimony was helpful, not hurtful.



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PCRA Court Opinion, 1/17/14, at 10.

      Accordingly, we agree with the PCRA court that counsel had a

reasonable basis for calling Jones as a witness, and therefore he is not

entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/2015




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