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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
OSCAR LOZANO GARCIA,                     :          No. 1229 MDA 2019
                                         :
                        Appellant        :


            Appeal from the PCRA Order Entered June 19, 2019,
             in the Court of Common Pleas of Luzerne County
             Criminal Division at No. CP-40-CR-0002621-2014


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 12, 2020

      Oscar Lozano Garcia appeals from the June 19, 2019 order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

      The relevant facts and procedural history of this case, as summarized

by a prior panel of this court on direct appeal, are as follows:

            On September 22nd, 2014, the District Attorney of
            Luzerne County filed a criminal information charging
            [appellant] with one count of criminal homicide,
            pursuant to 18 Pa.C.S.[A.] § 2501(a), for the murder
            of Maria Brea, which occurred on December 14th,
            2012. [Appellant] was a citizen of Mexico who was
            working and residing in Pennsylvania at the time of
            the crime. Prior to her murder, Brea and [appellant]
            lived together as boyfriend and girlfriend at [Brea’s]
            apartment, located at 343 East Diamond Avenue,
            Apartment 2B, City of Hazleton. Brea and [appellant]
            also lived with Brea’s two minor children[.]
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          After her family discovered that she was missing,
          Brea’s family contacted the police. The Pennsylvania
          State Police executed a search warrant at Brea’s
          residence on December 18th, 2012. During their
          search, Trooper John R. Corrigan and Corporal
          David Andreuzzi discovered a small storage room that
          had a small closet and a second door[,] which led to
          an attic area. The officers noticed the attic door was
          padlocked, and that duct tape had been placed along
          the left side and top of the door, and clear tape had
          been placed along the right side of the door. They
          also noticed that tissue paper was stuffed into the
          opening at the bottom of the attic door. Once they
          removed the barriers to accessing the attic, the
          officers observed a body wrapped in a plastic sheet
          laying supine on the old tar roof portion of the attic.
          Subsequently, a second search warrant was obtained
          to allow for a homicide investigation. The body was
          taken to Wilkes–Barre General Hospital, where an
          autopsy was performed and the body was identified
          as [] Brea. The cause of death was determined to be
          asphyxiation by strangulation, and the manner of
          death was ruled a homicide.

          Immediately following the December 14[], 2012
          murder of [] Brea, [appellant] fled from Pennsylvania
          to Mexico with an acquaintance, Juan Cervantes.
          [Appellant]    was      later    arrested    on    the
          Commonwealth’s       Provisional     Arrest   Warrant,
          incarcerated based on that warrant, and permitted to
          challenge the extradition. The Mexican court granted
          the Commonwealth’s request for extradition, and
          [appellant] was subsequently returned to Luzerne
          County, Pennsylvania by the United States Marshal
          Service. On September 23rd, 2014, [appellant] was
          arraigned, entered a plea of not guilty, and requested
          a jury trial.

          Counsel for [appellant] submitted a motion to
          transcribe discovery to Spanish, requesting that the
          court enter an order stating that all discovery from the
          Commonwealth be transcribed to Spanish.             The
          documents were transcribed to Spanish at the



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           expense of the Public Defender’s Office on behalf of
           its client.

           Trial in this matter was continued at least twice at the
           request of counsel for the defense. On June 27th,
           2016, after an extensive colloquy by [the trial] court,
           translated into Spanish for [appellant] through two
           court       interpreters,    [appellant]      knowingly,
           intelligently, and voluntarily waived his right to a jury
           trial and elected to be tried by [the trial court]. A
           bench trial in the above-captioned matter took place
           from June 27th, 2016 to June 30th, 2016. Following
           the full bench trial, on July 1st, 2016, [the trial] court
           found [appellant] guilty of murder in the first degree.
           Sentencing took place on August 5th, 2016[, at the
           conclusion of which appellant was sentenced to life
           imprisonment.]

Commonwealth v. Garcia, No. 1468 MDA 2016, unpublished memorandum

at 1-3 (Pa.Super. filed October 11, 2017) (citation and extraneous

capitalization omitted; some brackets in original), appeal denied, 183 A.3d

980 (Pa. 2018).

     On October 11, 2017, a panel of this court affirmed appellant’s judgment

of sentence, and our supreme court denied appellant’s petition for allowance

of appeal on April 10, 2018. Id. On June 18, 2018, appellant filed a timely

pro se PCRA petition, and Leonard Gryskewicz, Jr., Esq. (“PCRA counsel”),

was appointed to represent him. PCRA counsel filed a supplemental PCRA

petition on appellant’s behalf on February 15, 2019. Following a hearing on




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May 22, 2019, the PCRA court dismissed appellant’s petition on June 19, 2019.

This timely appeal followed on July 18, 2019.1

        Appellant raises the following issues for our review:

              1.    Whether the PCRA Court erred by holding that
                    trial counsel[2] was not ineffective for failing to
                    object to and/or move for a mistrial after the
                    testimony of Wendy DeJesus regarding prior
                    bad acts of appellant was admitted into
                    evidence in violation of the [trial c]ourt’s pretrial
                    rulings?

              2.    Whether the PCRA Court erred by holding that
                    trial counsel was not ineffective for failing to
                    object to hearsay testimony of Aura Santiago
                    that she heard the victim scream appellant’s
                    name three times in a row prior to being
                    abruptly disconnected from her phone call with
                    the victim on the day the victim was killed?

Appellant’s brief at 4 (extraneous capitalization omitted).

        Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the


1  On July 22, 2019, the PCRA court directed appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b).    Following an extension, appellant filed his timely
Rule 1925(b) statement on August 27, 2019. On September 9, 2019, the
PCRA court filed a “statement in lieu of an opinion” indicating that it was
relying on the reasoning set forth in its prior opinion authored in support of
its June 19, 2019 order denying appellant’s PCRA petition.

2   Appellant was represented during his bench trial by Mark A. Singer, Esq.


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certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). In order to be eligible for PCRA relief, a defendant must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3).

      Here, both of appellant’s arguments on appeal concern the purported

ineffectiveness of trial counsel. To prevail on a claim of ineffective assistance

of counsel under the PCRA, a petitioner must plead and prove by a

preponderance of the evidence that counsel’s ineffectiveness “so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). We apply

a three-pronged test for determining whether trial counsel was ineffective,

derived from the test articulated by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 687 (1984), and as applied in

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). Commonwealth v.

Simpson, 66 A.3d 253, 260 (Pa. 2013).

            The Pierce test requires a PCRA petitioner to prove:
            (1) the underlying legal claim was of arguable merit;
            (2) counsel had no reasonable strategic basis for his
            action or inaction; and (3) the petitioner was
            prejudiced — that is, but for counsel’s deficient
            stewardship, there is a reasonable likelihood the
            outcome of the proceedings would have been
            different.

Id., citing Pierce, 527 A.2d at 975.


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      This court has explained that a petitioner “must meet all three prongs

of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d

1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),

appeal denied, 104 A.3d 523 (Pa. 2014).             “[C]ounsel 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) (citation

omitted), appeal denied, 30 A.3d 487 (Pa. 2011). Additionally, we note that

counsel cannot be found ineffective for failing to raise a claim that is devoid

of merit. See Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

      Appellant first contends that trial counsel was ineffective for not

objecting   to   or   requesting    a   mistrial   after   Commonwealth   witness

Wendy DeJesus testified as to appellant’s prior bad acts, in violation of the

trial court’s pre-trial ruling.    (Appellant’s brief at 11.)    For the following

reasons, we disagree.

      Generally, “[e]vidence of a crime, wrong, or other act is not admissible

to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with the character.”             Pa.R.E. 404(b)(1).

Evidence of prior bad acts may be admissible, however, “when offered to

prove some other relevant fact, such as motive, opportunity, intent,

preparation, plan, knowledge, identity, and absence of mistake or accident.”

Commonwealth v. Ross, 57 A.3d 85, 98 (Pa.Super. 2012) (citations

omitted), appeal denied, 72 A.3d 603 (Pa. 2013). Prior bad acts evidence



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“may also be admissible . . . in situations where the bad acts were part of a

chain or sequence of events that formed the history of the case and were part

of its natural development.” Commonwealth v. Melendez-Rodriguez, 856

A.2d 1278, 1283 (Pa.Super. 2004) (citation omitted).            “In determining

whether evidence of other prior bad acts is admissible, the trial court is obliged

to balance the probative value of such evidence against its prejudicial impact.”

Ross, 57 A.3d at 98 (citation omitted).

      Here, DeJesus testified on redirect examination as follows:

            We celebrated New Year’s [D]ay in [the victim’s]
            apartment on Broad Street at the time where she was
            living with [appellant] and two kids. And midnight
            came, we all got, took our shots, and then we all
            decided to go to the bar, Club 570 up the road. He
            did not agree with it. I guess the dress that she was
            wearing, he was not agreeing to it so he didn’t want
            to go. She’s like, I’m going to celebrate with my
            sisters.   He got aggressive and abusive and
            luckily my other family members were there and
            he separated from her. Then she jumped in the car
            with us. When we were driving to Club 570
            [appellant] was in his pick-up truck and
            followed us all the way to the Club 570 and was
            beeping the horn and trying to run us over inside
            the Club 570 parking lot. My sister said at the time
            I’m just going to go home with him so he doesn't start
            nothing. And from there, they went home together.

Notes of testimony, 6/27/16 at 119 (emphasis added). Trial counsel did not

object to this testimony.

      Upon review, we find that appellant’s ineffectiveness claim fails because

he failed to satisfy the second prong of the Pierce test; namely, that trial

counsel did not have a reasonable strategic basis for not objecting to DeJesus’


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testimony. See Simpson, 66 A.3d at 260. “[G]enerally, where matters of

strategy   and   tactics   are   concerned, counsel’s    assistance      is   deemed

constitutionally effective if he chose a particular course that had some

reasonable     basis   designed     to    effectuate   his   client’s     interests.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012).                   “If counsel’s

chosen course had some reasonable basis, the inquiry ends and counsel’s

assistance is deemed effective.”      Commonwealth v. Williams, 899 A.2d

1060, 1064 (Pa. 2006).

      Instantly, trial counsel testified at length at the PCRA hearing on his

strategic decision to forgo objecting to DeJesus’ testimony, based upon his

belief that this testimony helped prove his case theory that appellant and the

victim were “essentially living as husband and wife[] and that they had a

stormy relationship”. (Notes of testimony, 5/22/19 at 6.) Counsel indicated

that his goal was to reduce appellant’s charges to voluntary manslaughter and

he believed that DeJesus’ testimony helped in that regard and “didn’t feel that

[the testimony] would hurt us that much.” (Id. at 6-7.)

      Based on the foregoing, we find that trial counsel had a reasonable

strategic basis for electing not to object to DeJesus’ testimony. Accordingly,

appellant’s first ineffectiveness claim must fail.

      Appellant next argues that trial counsel was ineffective for not objecting

to hearsay testimony of Commonwealth witness Aura Santiago. (Appellant’s

brief at 18.) For the following reasons, we disagree.



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      Hearsay is defined as “a statement that the declarant does not make

while testifying at the current trial or hearing[, offered] in evidence to prove

the truth of the matter asserted in the statement.”             Pa.R.E. 801(c)

(numeration omitted); see also Commonwealth v. Ali, 10 A.3d 282, 316

(Pa. 2010). Hearsay is generally inadmissible at trial unless it falls into an

exception to the hearsay rule. See Pa.R.E. 802.

      Here, appellant takes issue with the following exchange between

Assistant District Attorney Daniel E. Zola and Santiago that occurred during

direct examination:

            Q.    Let’s back up a second so that we don’t get
                  confused. Are you talking about the same
                  conversation --

            A.    Yes, the same conversation.

            Q.    -- that you had with [the victim] that took place
                  at 12:50?

            A     Yes. 12:50. I has [sic] spoke to her like early
                  for ten minutes. And she say [sic] to me -- I
                  ask her for $10. She say [sic] to me, [c]ome
                  over here because [appellant] has my bank
                  card. So you can come and get it from him and
                  I can give it to you.

            Q     But you didn’t go over for that purpose?

            A.    No. I told her I just wanted you to get out of
                  the house and go in the front, I [sic] going to
                  get the card from you because I was expecting
                  it. So she can get out because something
                  sounds weird. The only thing I want is she get
                  out of the house. She say [sic], I don’t feel
                  safety [sic]. And the last thing I hear was when
                  she say Oscar, Oscar, Oscar, three times.


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               Q.      Was that prior to the end of the phone
                       conversation?

               A.      That was the end of the phone conversation.

Notes of testimony, 6/27/16 at 124-125. Trial counsel did not object to this

testimony.

         Upon review, we find that appellant’s ineffectiveness claim fails because

he failed to satisfy the third prong of the Pierce test; namely, that he was

prejudiced by trial counsel’s failure to object. See Simpson, 66 A.3d at 260.

“A petitioner establishes prejudice when he demonstrates that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Commonwealth v. Johnson,

966 A.2d 523, 533 (Pa. 2009) (citations and internal quotation marks

omitted). “Absent a showing of such prejudice, the claim of ineffectiveness

fails,    regardless     of   whether   counsel   lacked   a   reasonable   basis.”

Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014) (internal quotation

marks omitted).

         Here, the record reflects that even if trial counsel had objected to

Santiago’s testimony as hearsay, appellant failed to demonstrate “a

reasonable likelihood the outcome of the proceedings would have been

different.” See Simpson, 66 A.3d at 260 (citation omitted). As the PCRA

court recognized in its opinion, although Santiago’s statements qualified as

inadmissible hearsay, “they had de minimus value and sustaining any



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objections would not have changed the outcome of the case.” (PCRA court

opinion, 6/19/19 at 6.3)      The PCRA court found that the Commonwealth

presented overwhelming credible evidence that appellant murdered the victim

that mitigated any prejudicial impact of Santiago’s testimony and, in any

event, the trial court, sitting as fact-finder, did not consider this testimony

when rendering its guilty verdict. (See id.; Rule 1925(a) opinion, 2/23/17 at

6-8.) This court has long “presume[d] that a judge, sitting as finder of fact in

a   non-jury     trial,     disregards      inadmissible   hearsay   testimony.”

Commonwealth v. Guerra, No. 3438 EDA 2017, unpublished memorandum

at 6 (Pa.Super. filed April 8, 2019), citing Commonwealth v. Dent, 837 A.2d

571, 582 (Pa.Super. 2003), appeal denied, 863 A.2d 1143 (Pa. 2004).

Based on the foregoing, we conclude that appellant’s second ineffectiveness

claim warrants no relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/12/2020




3 The PCRA court’s opinion does not contain pagination; for the ease of our
discussion, we have assigned each page a corresponding number.


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